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High Court Of Delhi
ANAND DIP SINGH - Appellant
Versus
RANJIT KAUR - Respondent
Interim Application 4224 of 1989
Decided On : 01/16/1991
PARTITION SUIT - CONSOLIDATION OF SUITS - O. 2, R. 2 OF THE CODE OF CIVIL PROCEDURE - STAY OF SUBSEQUENT SUIT - LEGAL PRINCIPLES - PUBLIC POLICY - MULTIPLICITY OF JUDICIAL PROCEEDINGS.
Fact of the Case:
Plaintiff filed a suit for partition of immovable properties, rendition of accounts, and declaration against the defendants. The plaintiff's father had previously filed a suit for partition of alleged joint Hindu Family properties, which was still pending. The plaintiff claimed that certain properties were not included in the previous suit due to involuntary omission. The defendants argued that the second suit was barred by O. 2, R. 2 of the Code of Civil Procedure and that it should be consolidated with the previous suit.
Finding of the Court:
The court found that there was no prima facie case in favor of the plaintiff in the present suit because his late father had already filed a suit for partition in which he and his other brother, sisters, etc., had become parties as the legal representatives of the deceased father. The court also found that the balance of convenience did not seem to be in favor of the plaintiff because prima facie defendant 1 purchased the Greater Kailash property while she was unmarried and KMPS was admittedly the owner of one-half share of New Rohtak Road property.
Issues: 1. Whether the second suit was barred by O. 2, R. 2 of the Code of Civil Procedure? 2. Whether the suit should be consolidated with the previous suit? 3. Whether the plaintiff had a prima facie case and balance of convenience in his favor?
Ratio Decidendi: 1. The court held that the second suit was barred by O. 2, R. 2 of the Code of Civil Procedure because the plaintiff's father had already filed a suit for partition of the same properties and the plaintiff and his other family members could have suitably amended their plaint in that case, if otherwise permissible by law. 2. The court held that the suit should not be consolidated with the previous suit because it would create in-roads for the plaintiff's brother, mother, and sister to file similar suits in the future, thereby encouraging multiplicity of judicial proceedings. 3. The court held that the plaintiff did not have a prima facie case and balance of convenience in his favor because he had not disclosed any reasons for filing a second suit and the defendants had produced evidence to show that the Greater Kailash property was purchased by defendant 1 before her marriage and that KMPS was the owner of one-half share of New Rohtak Road property.
Final Decision: The court dismissed both applications filed by the plaintiff, vacated the order of status quo in favor of the plaintiff, and held that the second suit was barred by O. 2, R. 2 of the Code of Civil Procedure.
( 2 ) IN the plaint, the case is that plaintiff is the grandson of late S. Datarsingh (ISDSfor short) being son of his eldest son. S. Maninder Singh (SMS for short ). Defendant No. 1 Smt. Ranjit Kaur is the widow of Kanwar Mohinder Pal Singh (KMPS for short), a brother of his father SMS. Defendants 2 to 5 are the daughters of defendant No. 1. Defendant No. 6 is the mother of the plaintiff while defendant No. 7 is the brother. Defendants 8 and 9 are the daugthers of ISDS. Defendant No. 10 is the daughter of defendant No. 9 while defendants 11 and 12 are sisters of the plaintiff. The plaint goes on to narrate that the plaintiff attained majority on 28th October, 1986 and the suit is being filed within 3 years of attaining majority for partition, rendition of accounts and declaration. ISDS inherited about 6000 acres of land from his father Sardar Gopal Singh which was situated in Pakistan. It was mutated in the name of ISDS who got some of this land mutated in the name of his two sons. After partition of the country the claims of ISDS were assessed at Rs. 16,79,000. 00 and he was held entitled to a compensation of Rs. 1,8 , 89. 00 (sic ). ISDS purchased the property situate at 18, Rohtak Road, New Delhi for a sum of Rs. 1,63,100. 00 in auction which price was adjusted against his claims. Land in village Punjab Khore measure in 13065 sq. yeards was also allotted to him. Besides that he was also allotted lands in Raisen District, Madhya Pradesh which was exchanged by ISDS with land at village Pipal Kheria. Besides that ISDS purchased property at Bairagarh in 1968 for Rs. 1,30,000. 00. There were thus the self acquired properties of ISDS in which plaintiff s share is set out in Annexure B and Schedule I with the plaint. Besides that ISDS left behind various HUF properties on his death on 17-6-1973 which are detailed in Annexure C of Schedule II. ISDS had executed a will on 27-10-1972 bequeathing his share in various properties to the plaintiff and defendants. SMS was a very simple man who, it is allowed, did not understand worldly affairs because he was born a spastic. He was always dependent on his family for help and his family members got executed various power of attorneys in favour of ISDS and KMPS. SMS was depending on his father and after his death on KMPS who took over the role of the manager of the joint Hindu family property. KMPS took undue advantage of physical and mental infirmity of SMS. It is then allowed that SMS was persuaded to institute a suit being Suit No. 63 of 1975 for partition of various properties which is still pending in this Court. During the pendency of that suit SMS came to know for the first time that KMPS had obtained a decree in his favour of one-half of the house situate at New Rohtak Road, Delhi whereas in law he had only I/4th share in the aforesaid house. That suit resulted in a collusive decree in 1963 where as in fact SMS had no knowledge of any compromise decree having been obtained by KMPS. Thus the judgment and decree dated 9-9-63 being obtained fraudulently are liable to be declared null and void. KMPS as Karta or manager of the joint Hindu Family acquired properties described in Schedule II and some other properties with the aid of sufficient ancestral nucleus. Thus such properties were also ancestral and were joint Hindu family coparcenary properties. After the death of KMPS, defendant No. 1 is alleged to be using the Joint Hindu Family property and income therefrom for her own benefit in the shape of realising rent and profits etc. , and converting the
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