Full Judgment Text
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 16.07.2013
+ CS(OS) 303/2008
SMT. HARDEEP KAUR & ORS. ..... Plaintiff
Through Mr. Sunil Malhotra, Advocate
versus
SHRI SADHU SINGH & ORS. ..... Defendant
Through None.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J. (ORAL)
1. The plaintiffs, who are four in number, have filed the present suit to
claim reliefs of partition, rendition of accounts and permanent injunction
against the three defendants. The reliefs of partition have been sought in
respect of the following two properties;
(i) the property bearing No. 2113/164, Tri Nagar, Delhi, which
admittedly was owned by Smt. Sant Kaur, wife of late Shri Balwant
Singh; and
(ii) factory premises No. 256/9, Gali No. 7, Padam Nagar, Kishan
Ganj, Delhi, owned by Shri Balwant Singh.
CS(OS) No. 303/2008 Page 1 of 11
th
The plaintiffs have claimed 1/4 share in the aforesaid properties.
The plaintiffs have also sought rendition of accounts in respect of the firm –
M/s Balwant Plastic Industries which was carrying on business at the factory
premises aforesaid, situated at 256/9, Gali No. 7, Padam Nagar, Kishan
Ganj, Delhi. The plaintiffs also seek a perpetual injunction against the
defendants to seek a restrain against them from selling, alienating and
transferring or entering into any agreement in respect of the aforesaid
properties.
2. The case of the plaintiffs is that plaintiff No. 1 is the widow and
plaintiff Nos. 2 to 4 are the children of late Shri Gurbachan Singh. The
plaintiffs state that Smt. Sant Kaur, wife of late Shri Balwant Singh, was the
mother of late Shri Gurbachan Singh and defendant Nos. 1 to 3. Late Shri
Gurbachan Singh pre-deceased his mother. He passed away on 14.10.1986.
Late Smt. Sant Kaur died on 13.08.1996 and at the time of her death, she
was the owner of property bearing No. 2113/164, Tri Nagar, Delhi. The
th
plaintiffs claim that they have jointly succeeded to 1/4 share in the said
property of late Smt. Sant Kaur. The further claim of the plaintiffs is that the
father-in-law of plaintiff No. 1 and the grandfather of plaintiff Nos. 2 to 4 –
late Shri Balwant Singh, was the owner of factory premises No. 256/9, Gali
No. 7, Padam Nagar, Kishan Ganj, Delhi, wherein the business of M/s
Balwant Plastic Industries was being carried on. They claim that after the
demise of late Shri Balwant Singh, and thereafter Smt. Sant Kaur, the said
factory premises has also devolved upon the plaintiffs in one share and
th
defendant Nos. 1 to 3 equally. The plaintiffs claim 1/4 share in each of the
two properties above mentioned. The further case of the plaintiff is that at
CS(OS) No. 303/2008 Page 2 of 11
the relevant time, the business of M/s Balwant Plastic Industries was being
conducted by Shri Gurbachan Singh, predecessor-in-interest of the plaintiffs
and the three defendants - who were his brothers. After the demise of late
Shri Gurbachan Singh on 14.10.1986, the plaintiff No. 1 was inducted as a
partner in the partnership business of M/s Balwant Plastic Industries. The
plaintiffs state that the defendants have not rendered the accounts in respect
of the said partnership business. Consequently, the relief of rendition of
accounts of the said business is also claimed by the plaintiff. The claim for
permanent injunction is premised on the rights claimed by the plaintiffs in
the aforesaid two properties.
3. The defendants filed their written statement. In their written
statement, the defendants claimed that their late mother Smt. Sant Kaur had
executed her last Will dated 17.01.1996 wherein she has bequeathed the
property bearing No. 2113/164, Tri Nagar, Delhi, in their favour and to the
exclusion of the plaintiffs. The defendants further claim that defendant No.
1 – Shri Sadhu Singh, after leaving his job as a turner in the year 1962, took
the factory premises bearing No. 256/9, Gali No. 7, Padam Nagar, Kishan
Ganj, Delhi on rent, to start his own business in the name and style of M/s
Balwant Plastic Industries for manufacturing radio plastic parts. Defendant
No. 1 purchased the said factory premises in the year 1966 from his own
funds in the name of his father late Shri Balwant Singh. He subsequently
brought in his two younger brothers, namely, Shri Sawinder Singh-defendant
No. 3 and late Shri Gurbachan Singh, the deceased husband of plaintiff No.
1 and father of plaintiffs No. 2 to 4, into the business, and they were
subsequently taken in as partners in the firm.
CS(OS) No. 303/2008 Page 3 of 11
4. The defendants, in their written statement do not deny – and rather
admit, that after the demise of late Shri Gurbachan Singh, plaintiff No. 1 had
been taken in as a partner in the firm M/s Balwant Plastic Industries. The
defendants, however, deny that they have not rendered accounts of the said
firm to plaintiff No. 1. The defendant state that the business of M/s Balwant
Plastic Industries was not profitable after the year 2000 and the same was
dissolved by the dissolution deed dated 30.06.2007, by which the assets and
liabilities were divided amongst the partners. The defendants have further
averred that the assets of the factory were sold out in the year 2007 and
rd
plaintiff No. 4, son of late Shri Gurbachan Singh, received 1/3 share in the
sale proceeds though the plaintiffs were entitled for only 25% share as per
partnership deed dated 02.04.1992, according to which defendant No. 1 is
entitled to 40% share and defendant No. 3 is entitled to 35% share. The
further defence of the defendant was that during life time of late Shri
Gurbachan Singh, with a view to settle his share, a family settlement was
reached where under Plot No. 155, Pocket D-12, Sector 8, Rohini, Delhi,
allotted by the DDA was given to Shri Gurbachan Singh to avoid family
disputes. This plot was given to the plaintiff No. 1, as Gurbachan Singh had
died due to cancer.
5. On the basis of the pleadings of the parties, the court framed
following issues on 04.02.2009:
th
1. Whether document dated 17 January, 1996 is validly executed last
Will of Smt. Sant Kaur? OPD
2. Whether the plaintiffs have already received the share of their
predecessor in the partnership firm M/s Balwant Plastic Industries and
CS(OS) No. 303/2008 Page 4 of 11
are now not entitled to any relief with respect to the said partnership
firm? OPD
3. Whether the plaintiffs have no share in either of the properties owing
to the flat at Rohini having been settled in favour of the plaintiffs?
OPD
4. Whether the suit is properly valued for the purposes of court fees and
jurisdiction and appropriate court fees has been affixed on the plaint?
OPP
5. Relief.
6. The Court, after framing the issues, observed that if defendants fail to
establish the Will of late mother Smt. Sant Kaur, and also fail in establishing
th
the family settlement, the plaintiffs shall be entitled to 1/4 share in both the
properties. Similarly, if the defendants fail in proving the dissolution deed
of the firm, the plaintiff no.1 would be entitled to relief of rendition of
accounts. Since the onus to prove the main issues was fastened on the
defendants, they were required to lead the evidence first.
7. The defendants, however, did not file the list of witnesses and did not
even lead the evidence of any witness by filing any affidavit towards
examination-in-chief. The defendants, instead, moved an application for
amendment of the written statement being I.A. No. 13771/2009. This
application was dismissed on 18.11.2011 with costs of Rs. 5,000/-, while
observing that it was a gross abuse of the process of the Court. The first
appeal preferred by the defendants to assail the said order - being FAO(OS)
No. 135 of 2011, was dismissed by the Division Bench with further costs of
Rs. 5,000/-. The said costs have not been paid by the defendants to the
CS(OS) No. 303/2008 Page 5 of 11
plaintiff till date. The right of the defendants to lead their evidence was also
closed by the Court on 18.11.2011. Consequently, the plaintiff was given
the opportunity to lead its evidence. The plaintiff led the evidence of Shri
Inder Pal Singh, plaintiff No. 4 as PW-1 by filing the affidavit by way of
evidence towards his examination-in-chief. He tendered his affidavit by
way of evidence (Ex.PW1/A) on 14.08.2012. The defendants chose not to
appear to cross-examine the said witness, even though the date for the said
purpose had been fixed in the presence of their counsel Mr. B.R.Ahluwalia,
on 30.04.2012. Consequently, the opportunity to the defendant to cross-
examine the plaintiff’s witness was closed and the matter was directed to be
listed before the Court for hearing. On the last date, i.e. on 01.07.2013, the
defendant no.1 appeared with his son and stated that he needs to engage
another counsel to argue the matter. While taking note of the earlier conduct
of the defendants, in the interest of justice, it was directed that the matter
shall not be taken till the next day. It was made clear that further time shall
not be granted to either party and the matter shall proceed for final hearing
on the next date. The matter has been called for hearing today and, once
again, there is no appearance on behalf of the defendants. In these
circumstances, learned counsel for the plaintiff has taken me to the pleadings
as well as the unrebutted evidence led by PW1 Shri Inderpal Singh, plaintiff
No. 4. He has deposed in his affidavit by way of evidence on the lines of the
averments contained in the plaint.
8. As noticed by this court in the order dated 04.02.2009 while framing
the issues, the onus to prove the substantive issues lay upon the defendants.
The defendants, while admitting that the property bearing No. 2113/164, Tri
CS(OS) No. 303/2008 Page 6 of 11
Nagar, Delhi was owned by Smt. Sant Kaur, and property bearing No. 256/9,
Gali No. 7, Padam Nagar, Kishan Ganj, Delhi, was registered in the name of
late Shri Balwant Singh, have failed to establish the due execution and
validity of the so called Will dated 17.01.1996 - stated to be the last Will of
late Smt. Sant Kaur which purports to oust the plaintiffs from the property
bearing No. 2113/164, Tri Nagar, Delhi. Similarly, the defendants have
failed to establish that factory premises bearing No. 256/9, Gali No. 7,
Padam Nagar, Kishan Ganj, Delhi, was not the property of late Shri Balwant
Singh, or that defendant No. 1 had purchased the same in the name of his
late father. Even if it was so purchased by defendant No. 1, the said
defendants have not established that the said property did not belong to late
Shri Balwant Singh, and that it did not devolve upon his class I heirs
equally.
9. The admitted position is that late Shri Balwant Singh and Smt. Kant
Kaur had four sons, namely, late Shri Gurbachan Singh - the predecessor-in-
interest of the plaintiffs, and the three defendants. Since the defendants have
failed to establish the Will attributed to late Smt. Sant Kaur, or that factory
premises bearing No. 256/9, Gali No. 7, Padam Nagar, Kishan Ganj, Delhi,
which, admittedly, stands in the name of late Shri Balwant Singh did not
belong to him, after their respective demise, the said two properties have
undoubtedly come to the share of the three defendants and the plaintiffs
through their late father late Shri Gurbachan Singh in equal shares i.e. the
th th
plaintiffs together have 1/4 share and defendant Nos. 1 to 3 have 1/4 share
each.
CS(OS) No. 303/2008 Page 7 of 11
10. The defendants have also not established their plea of a family
settlement whereunder it is alleged that Plot No. 155, Pocket D-12, Sector 8,
Rohini, Delhi, was given to late Shri Gurbachan Singh in full and final
settlement of his claim on the family properties.
11. In view of the aforesaid position, issue Nos. 1 to 3 are decided against
the defendants and in favour of the plaintiffs.
12. Though an issue has been raised by the defendants that the suit has not
been properly valued for the purpose of court fee and jurisdiction and
appropriate court fees has not been affixed on the plaint, no submission has
been advanced by the defendants to explain as to why, according to them,
the suit has not been properly valued for the purpose of court fees and
jurisdiction. It is not explained as to how it could be said that the court fees
has not been properly affixed at the initial stage. Pertinently, the plaintiffs
have stated that upon determination of the correct value of their share in the
property, they shall pay the requisite court fees after the partition takes
place.
13. This issue is also, therefore, decided in favour of the plaintiffs and
against the defendants.
14. So far as the relief of rendition of accounts in respect of M/s Balwant
Plastic Industries is concerned, once again, I find that the defendants do not
dispute the fact that earlier late Shri Gurbachan Singh, and after his demise,
plaintiff No. 1 became partners in the said firm in which plaintiff No. 1 had
25% share. Though, it is claimed by the defendants that the said firm was
CS(OS) No. 303/2008 Page 8 of 11
dissolved and the accounts were rendered and settled, the said defence has
not been established on record. On the other hand, the plaintiff has stated in
their evidence that the accounts of the firm M/s Basant Plastic Industries
have not been rendered to the plaintiff No. 1 after the death of late Shri
Gurbachan Singh and that the said accounts are not being rendered to
plaintiff No. 1 even thereafter. The plaintiffs also served a legal notice on
the defendants (Ex.PW1/2) dated 25.10.2007 by registered post and under
certificate of posting. The postal receipts are Ex.PW1/3 in respect of the
packets sent by registered post and Ex.PW1/4 in respect of the U.P.C postal
certificates. The A.D. cards of the notices are Ex.PW1/5 collectively. The
plaintiffs have stated that the defendants have not responded to the said
notice and have not denied the plaintiff’s allegation that accounts of the said
firm have not been rendered. The defendants have not filed any documents
or evidence to the contrary. It is the admitted position of the defendants that
defendant No. 1 and defendant No. 3 were conducting the said business.
Defendant No. 1 claims that he was the eldest brother. On the other hand,
plaintiff No. 1 was inducted since she is the widow of the deceased brother
of the defendants late Shri Gurbachan Singh. It is, therefore, clear that it is
for the defendants to render accounts to the plaintiff no.1. In these
circumstances, the plaintiff No. 1 is held entitled to rendition of accounts in
respect of the firm M/s Balwant Plastic Industries. Since the plaintiffs have
th
1/4 of divided share in the aforesaid two properties, till such share is
determined and received by the plaintiffs, they are entitled to protection of
their rights and interest. Consequently, they are also entitled to relief of
perpetual injunction against the defendants.
CS(OS) No. 303/2008 Page 9 of 11
15. In the aforesaid facts and circumstances, I pass a preliminary decree
declaring the share of the plaintiffs jointly and of defendant nos.1, 2 and 3
th
individually as 1/4 (25%) in the following immovable properties:
(i) the property bearing No. 2113/164, Tri Nagar, Delhi, which
admittedly was owned by Smt. Sant Kaur, wife of late Shri
Balwant Singh; and
(ii) factory premises No. 256/9, Gali No. 7, Padam Nagar, Kishan
Ganj, Delhi, owned by Shri Balwant Singh.
16. I also pass a decree for rendition of accounts in favour of plaintiff
No. 1 and against the defendants, thereby directing defendant Nos. 1 to 3 to
render accounts of M/s Basant Plastic Industries to the plaintiffs. The same
be rendered within eight weeks.
17. The defendants are restrained from, in any manner, selling, alienating,
transferring, or entering into any agreement in respect of property bearing
Nos. (i) 2113/164, Tri Nagar, Delhi, which, admittedly, was owned by Smt.
Sant Kaur, wife of late Shri Balwant Singh; and, (ii) factory premises No.
256/9, Gali No. 7, Padam Nagar, Kishan Ganj, Delhi, owned by Shri
Balwant Singh, or parting with possession thereof, till the said properties are
partitioned by metes and bounds or disposed of in settlement of the claim of
the plaintiffs.
18. I appoint Mr. Amrit Pal Sing Gambhir, Advocate (Mobile
No.9999983935) , as a Local Commissioner to suggest the mode of division
in respect of the aforesaid two immovable properties. The Local
CS(OS) No. 303/2008 Page 10 of 11
Commissioner shall hold discussions with the parties after due notice to
them and also take their suggestions. The Local Commissioner shall also get
the valuation of the aforesaid properties determined and the valuation report
shall form part of his report. The Local Commissioner shall also be entitled
to take the assistance of a qualified architect and draftsman for executing the
commission. The Local Commissioner shall file his report within eight
weeks. The fees of the Local Commission is fixed at Rs. 80,000/-, which
shall be shared equally by the plaintiffs on the one hand, and each of the
defendants on the other hand. The plaintiff shall pay Rs. 20,000/-, and each
of the defendants shall pay Rs. 20,000/- to the Local Commissioner. The
Local Commissioner shall also be entitled to all out of pocket expenses and
fees of the Architect, Draftsman and Valuer, if any, which shall also be
borne by the parties in equal shares in advance, as may be communicated by
the Local Commissioner.
19. List before the Court for awaiting the report of the Local
Commissioner on 23.09.2013.
VIPIN SANGHI, J.
JULY 16, 2013
sl
CS(OS) No. 303/2008 Page 11 of 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 16.07.2013
+ CS(OS) 303/2008
SMT. HARDEEP KAUR & ORS. ..... Plaintiff
Through Mr. Sunil Malhotra, Advocate
versus
SHRI SADHU SINGH & ORS. ..... Defendant
Through None.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J. (ORAL)
1. The plaintiffs, who are four in number, have filed the present suit to
claim reliefs of partition, rendition of accounts and permanent injunction
against the three defendants. The reliefs of partition have been sought in
respect of the following two properties;
(i) the property bearing No. 2113/164, Tri Nagar, Delhi, which
admittedly was owned by Smt. Sant Kaur, wife of late Shri Balwant
Singh; and
(ii) factory premises No. 256/9, Gali No. 7, Padam Nagar, Kishan
Ganj, Delhi, owned by Shri Balwant Singh.
CS(OS) No. 303/2008 Page 1 of 11
th
The plaintiffs have claimed 1/4 share in the aforesaid properties.
The plaintiffs have also sought rendition of accounts in respect of the firm –
M/s Balwant Plastic Industries which was carrying on business at the factory
premises aforesaid, situated at 256/9, Gali No. 7, Padam Nagar, Kishan
Ganj, Delhi. The plaintiffs also seek a perpetual injunction against the
defendants to seek a restrain against them from selling, alienating and
transferring or entering into any agreement in respect of the aforesaid
properties.
2. The case of the plaintiffs is that plaintiff No. 1 is the widow and
plaintiff Nos. 2 to 4 are the children of late Shri Gurbachan Singh. The
plaintiffs state that Smt. Sant Kaur, wife of late Shri Balwant Singh, was the
mother of late Shri Gurbachan Singh and defendant Nos. 1 to 3. Late Shri
Gurbachan Singh pre-deceased his mother. He passed away on 14.10.1986.
Late Smt. Sant Kaur died on 13.08.1996 and at the time of her death, she
was the owner of property bearing No. 2113/164, Tri Nagar, Delhi. The
th
plaintiffs claim that they have jointly succeeded to 1/4 share in the said
property of late Smt. Sant Kaur. The further claim of the plaintiffs is that the
father-in-law of plaintiff No. 1 and the grandfather of plaintiff Nos. 2 to 4 –
late Shri Balwant Singh, was the owner of factory premises No. 256/9, Gali
No. 7, Padam Nagar, Kishan Ganj, Delhi, wherein the business of M/s
Balwant Plastic Industries was being carried on. They claim that after the
demise of late Shri Balwant Singh, and thereafter Smt. Sant Kaur, the said
factory premises has also devolved upon the plaintiffs in one share and
th
defendant Nos. 1 to 3 equally. The plaintiffs claim 1/4 share in each of the
two properties above mentioned. The further case of the plaintiff is that at
CS(OS) No. 303/2008 Page 2 of 11
the relevant time, the business of M/s Balwant Plastic Industries was being
conducted by Shri Gurbachan Singh, predecessor-in-interest of the plaintiffs
and the three defendants - who were his brothers. After the demise of late
Shri Gurbachan Singh on 14.10.1986, the plaintiff No. 1 was inducted as a
partner in the partnership business of M/s Balwant Plastic Industries. The
plaintiffs state that the defendants have not rendered the accounts in respect
of the said partnership business. Consequently, the relief of rendition of
accounts of the said business is also claimed by the plaintiff. The claim for
permanent injunction is premised on the rights claimed by the plaintiffs in
the aforesaid two properties.
3. The defendants filed their written statement. In their written
statement, the defendants claimed that their late mother Smt. Sant Kaur had
executed her last Will dated 17.01.1996 wherein she has bequeathed the
property bearing No. 2113/164, Tri Nagar, Delhi, in their favour and to the
exclusion of the plaintiffs. The defendants further claim that defendant No.
1 – Shri Sadhu Singh, after leaving his job as a turner in the year 1962, took
the factory premises bearing No. 256/9, Gali No. 7, Padam Nagar, Kishan
Ganj, Delhi on rent, to start his own business in the name and style of M/s
Balwant Plastic Industries for manufacturing radio plastic parts. Defendant
No. 1 purchased the said factory premises in the year 1966 from his own
funds in the name of his father late Shri Balwant Singh. He subsequently
brought in his two younger brothers, namely, Shri Sawinder Singh-defendant
No. 3 and late Shri Gurbachan Singh, the deceased husband of plaintiff No.
1 and father of plaintiffs No. 2 to 4, into the business, and they were
subsequently taken in as partners in the firm.
CS(OS) No. 303/2008 Page 3 of 11
4. The defendants, in their written statement do not deny – and rather
admit, that after the demise of late Shri Gurbachan Singh, plaintiff No. 1 had
been taken in as a partner in the firm M/s Balwant Plastic Industries. The
defendants, however, deny that they have not rendered accounts of the said
firm to plaintiff No. 1. The defendant state that the business of M/s Balwant
Plastic Industries was not profitable after the year 2000 and the same was
dissolved by the dissolution deed dated 30.06.2007, by which the assets and
liabilities were divided amongst the partners. The defendants have further
averred that the assets of the factory were sold out in the year 2007 and
rd
plaintiff No. 4, son of late Shri Gurbachan Singh, received 1/3 share in the
sale proceeds though the plaintiffs were entitled for only 25% share as per
partnership deed dated 02.04.1992, according to which defendant No. 1 is
entitled to 40% share and defendant No. 3 is entitled to 35% share. The
further defence of the defendant was that during life time of late Shri
Gurbachan Singh, with a view to settle his share, a family settlement was
reached where under Plot No. 155, Pocket D-12, Sector 8, Rohini, Delhi,
allotted by the DDA was given to Shri Gurbachan Singh to avoid family
disputes. This plot was given to the plaintiff No. 1, as Gurbachan Singh had
died due to cancer.
5. On the basis of the pleadings of the parties, the court framed
following issues on 04.02.2009:
th
1. Whether document dated 17 January, 1996 is validly executed last
Will of Smt. Sant Kaur? OPD
2. Whether the plaintiffs have already received the share of their
predecessor in the partnership firm M/s Balwant Plastic Industries and
CS(OS) No. 303/2008 Page 4 of 11
are now not entitled to any relief with respect to the said partnership
firm? OPD
3. Whether the plaintiffs have no share in either of the properties owing
to the flat at Rohini having been settled in favour of the plaintiffs?
OPD
4. Whether the suit is properly valued for the purposes of court fees and
jurisdiction and appropriate court fees has been affixed on the plaint?
OPP
5. Relief.
6. The Court, after framing the issues, observed that if defendants fail to
establish the Will of late mother Smt. Sant Kaur, and also fail in establishing
th
the family settlement, the plaintiffs shall be entitled to 1/4 share in both the
properties. Similarly, if the defendants fail in proving the dissolution deed
of the firm, the plaintiff no.1 would be entitled to relief of rendition of
accounts. Since the onus to prove the main issues was fastened on the
defendants, they were required to lead the evidence first.
7. The defendants, however, did not file the list of witnesses and did not
even lead the evidence of any witness by filing any affidavit towards
examination-in-chief. The defendants, instead, moved an application for
amendment of the written statement being I.A. No. 13771/2009. This
application was dismissed on 18.11.2011 with costs of Rs. 5,000/-, while
observing that it was a gross abuse of the process of the Court. The first
appeal preferred by the defendants to assail the said order - being FAO(OS)
No. 135 of 2011, was dismissed by the Division Bench with further costs of
Rs. 5,000/-. The said costs have not been paid by the defendants to the
CS(OS) No. 303/2008 Page 5 of 11
plaintiff till date. The right of the defendants to lead their evidence was also
closed by the Court on 18.11.2011. Consequently, the plaintiff was given
the opportunity to lead its evidence. The plaintiff led the evidence of Shri
Inder Pal Singh, plaintiff No. 4 as PW-1 by filing the affidavit by way of
evidence towards his examination-in-chief. He tendered his affidavit by
way of evidence (Ex.PW1/A) on 14.08.2012. The defendants chose not to
appear to cross-examine the said witness, even though the date for the said
purpose had been fixed in the presence of their counsel Mr. B.R.Ahluwalia,
on 30.04.2012. Consequently, the opportunity to the defendant to cross-
examine the plaintiff’s witness was closed and the matter was directed to be
listed before the Court for hearing. On the last date, i.e. on 01.07.2013, the
defendant no.1 appeared with his son and stated that he needs to engage
another counsel to argue the matter. While taking note of the earlier conduct
of the defendants, in the interest of justice, it was directed that the matter
shall not be taken till the next day. It was made clear that further time shall
not be granted to either party and the matter shall proceed for final hearing
on the next date. The matter has been called for hearing today and, once
again, there is no appearance on behalf of the defendants. In these
circumstances, learned counsel for the plaintiff has taken me to the pleadings
as well as the unrebutted evidence led by PW1 Shri Inderpal Singh, plaintiff
No. 4. He has deposed in his affidavit by way of evidence on the lines of the
averments contained in the plaint.
8. As noticed by this court in the order dated 04.02.2009 while framing
the issues, the onus to prove the substantive issues lay upon the defendants.
The defendants, while admitting that the property bearing No. 2113/164, Tri
CS(OS) No. 303/2008 Page 6 of 11
Nagar, Delhi was owned by Smt. Sant Kaur, and property bearing No. 256/9,
Gali No. 7, Padam Nagar, Kishan Ganj, Delhi, was registered in the name of
late Shri Balwant Singh, have failed to establish the due execution and
validity of the so called Will dated 17.01.1996 - stated to be the last Will of
late Smt. Sant Kaur which purports to oust the plaintiffs from the property
bearing No. 2113/164, Tri Nagar, Delhi. Similarly, the defendants have
failed to establish that factory premises bearing No. 256/9, Gali No. 7,
Padam Nagar, Kishan Ganj, Delhi, was not the property of late Shri Balwant
Singh, or that defendant No. 1 had purchased the same in the name of his
late father. Even if it was so purchased by defendant No. 1, the said
defendants have not established that the said property did not belong to late
Shri Balwant Singh, and that it did not devolve upon his class I heirs
equally.
9. The admitted position is that late Shri Balwant Singh and Smt. Kant
Kaur had four sons, namely, late Shri Gurbachan Singh - the predecessor-in-
interest of the plaintiffs, and the three defendants. Since the defendants have
failed to establish the Will attributed to late Smt. Sant Kaur, or that factory
premises bearing No. 256/9, Gali No. 7, Padam Nagar, Kishan Ganj, Delhi,
which, admittedly, stands in the name of late Shri Balwant Singh did not
belong to him, after their respective demise, the said two properties have
undoubtedly come to the share of the three defendants and the plaintiffs
through their late father late Shri Gurbachan Singh in equal shares i.e. the
th th
plaintiffs together have 1/4 share and defendant Nos. 1 to 3 have 1/4 share
each.
CS(OS) No. 303/2008 Page 7 of 11
10. The defendants have also not established their plea of a family
settlement whereunder it is alleged that Plot No. 155, Pocket D-12, Sector 8,
Rohini, Delhi, was given to late Shri Gurbachan Singh in full and final
settlement of his claim on the family properties.
11. In view of the aforesaid position, issue Nos. 1 to 3 are decided against
the defendants and in favour of the plaintiffs.
12. Though an issue has been raised by the defendants that the suit has not
been properly valued for the purpose of court fee and jurisdiction and
appropriate court fees has not been affixed on the plaint, no submission has
been advanced by the defendants to explain as to why, according to them,
the suit has not been properly valued for the purpose of court fees and
jurisdiction. It is not explained as to how it could be said that the court fees
has not been properly affixed at the initial stage. Pertinently, the plaintiffs
have stated that upon determination of the correct value of their share in the
property, they shall pay the requisite court fees after the partition takes
place.
13. This issue is also, therefore, decided in favour of the plaintiffs and
against the defendants.
14. So far as the relief of rendition of accounts in respect of M/s Balwant
Plastic Industries is concerned, once again, I find that the defendants do not
dispute the fact that earlier late Shri Gurbachan Singh, and after his demise,
plaintiff No. 1 became partners in the said firm in which plaintiff No. 1 had
25% share. Though, it is claimed by the defendants that the said firm was
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dissolved and the accounts were rendered and settled, the said defence has
not been established on record. On the other hand, the plaintiff has stated in
their evidence that the accounts of the firm M/s Basant Plastic Industries
have not been rendered to the plaintiff No. 1 after the death of late Shri
Gurbachan Singh and that the said accounts are not being rendered to
plaintiff No. 1 even thereafter. The plaintiffs also served a legal notice on
the defendants (Ex.PW1/2) dated 25.10.2007 by registered post and under
certificate of posting. The postal receipts are Ex.PW1/3 in respect of the
packets sent by registered post and Ex.PW1/4 in respect of the U.P.C postal
certificates. The A.D. cards of the notices are Ex.PW1/5 collectively. The
plaintiffs have stated that the defendants have not responded to the said
notice and have not denied the plaintiff’s allegation that accounts of the said
firm have not been rendered. The defendants have not filed any documents
or evidence to the contrary. It is the admitted position of the defendants that
defendant No. 1 and defendant No. 3 were conducting the said business.
Defendant No. 1 claims that he was the eldest brother. On the other hand,
plaintiff No. 1 was inducted since she is the widow of the deceased brother
of the defendants late Shri Gurbachan Singh. It is, therefore, clear that it is
for the defendants to render accounts to the plaintiff no.1. In these
circumstances, the plaintiff No. 1 is held entitled to rendition of accounts in
respect of the firm M/s Balwant Plastic Industries. Since the plaintiffs have
th
1/4 of divided share in the aforesaid two properties, till such share is
determined and received by the plaintiffs, they are entitled to protection of
their rights and interest. Consequently, they are also entitled to relief of
perpetual injunction against the defendants.
CS(OS) No. 303/2008 Page 9 of 11
15. In the aforesaid facts and circumstances, I pass a preliminary decree
declaring the share of the plaintiffs jointly and of defendant nos.1, 2 and 3
th
individually as 1/4 (25%) in the following immovable properties:
(i) the property bearing No. 2113/164, Tri Nagar, Delhi, which
admittedly was owned by Smt. Sant Kaur, wife of late Shri
Balwant Singh; and
(ii) factory premises No. 256/9, Gali No. 7, Padam Nagar, Kishan
Ganj, Delhi, owned by Shri Balwant Singh.
16. I also pass a decree for rendition of accounts in favour of plaintiff
No. 1 and against the defendants, thereby directing defendant Nos. 1 to 3 to
render accounts of M/s Basant Plastic Industries to the plaintiffs. The same
be rendered within eight weeks.
17. The defendants are restrained from, in any manner, selling, alienating,
transferring, or entering into any agreement in respect of property bearing
Nos. (i) 2113/164, Tri Nagar, Delhi, which, admittedly, was owned by Smt.
Sant Kaur, wife of late Shri Balwant Singh; and, (ii) factory premises No.
256/9, Gali No. 7, Padam Nagar, Kishan Ganj, Delhi, owned by Shri
Balwant Singh, or parting with possession thereof, till the said properties are
partitioned by metes and bounds or disposed of in settlement of the claim of
the plaintiffs.
18. I appoint Mr. Amrit Pal Sing Gambhir, Advocate (Mobile
No.9999983935) , as a Local Commissioner to suggest the mode of division
in respect of the aforesaid two immovable properties. The Local
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Commissioner shall hold discussions with the parties after due notice to
them and also take their suggestions. The Local Commissioner shall also get
the valuation of the aforesaid properties determined and the valuation report
shall form part of his report. The Local Commissioner shall also be entitled
to take the assistance of a qualified architect and draftsman for executing the
commission. The Local Commissioner shall file his report within eight
weeks. The fees of the Local Commission is fixed at Rs. 80,000/-, which
shall be shared equally by the plaintiffs on the one hand, and each of the
defendants on the other hand. The plaintiff shall pay Rs. 20,000/-, and each
of the defendants shall pay Rs. 20,000/- to the Local Commissioner. The
Local Commissioner shall also be entitled to all out of pocket expenses and
fees of the Architect, Draftsman and Valuer, if any, which shall also be
borne by the parties in equal shares in advance, as may be communicated by
the Local Commissioner.
19. List before the Court for awaiting the report of the Local
Commissioner on 23.09.2013.
VIPIN SANGHI, J.
JULY 16, 2013
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