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2015 Supreme(Del) 384
High Court of Delhi
MANMOHAN SINGH, J.
Sunil Gupta - Appellant
Versus
Nargis Khanna - Respondent
I.A. Nos. 12251, 21133 of 2014 in CS(OS) No. 149 of 2011
Decided on: 10-03-2015
For the Plaintiff:Anil Sapra, Sr. Adv. with P.R. Agarwal, Anju Bhushan, Advocates.
For the Defendant:Harkirat Sawhney, Bakhshi Bikram Singh, Advocates.
The main legal point established in the judgment is the court's discretion to allow necessary and proper amendments to pleadings, including the impleadment of necessary parties, in order to determine the real controversy between the parties.
Headnote:
Partition - Property Dispute - Delhi Co-operative Societies Act, 2003, Transfer of Property Act, Limitation Act - The court discussed the provisions of the Delhi Co-operative Societies Act, 2003, Transfer of Property Act, and the Limitation Act in the context of a property dispute involving partition. The court allowed the amendments sought by the plaintiff, including impleading the Delhi Development Authority (DDA) as a necessary and proper party.
Fact of the Case:
The suit involved a dispute over the partition of a property in New Delhi. The property originally belonged to Late Shri Jagan Gopal Dewan and was bequeathed to his wife and children. Subsequent disputes arose regarding the ownership and partition of the property, leading to multiple legal proceedings.
Finding of the Court:
The court found that the amendments sought by the plaintiff were necessary for determining the real controversy between the parties and did not change the nature of the suit. The court allowed the amendments, including impleading the DDA as a necessary and proper party to the proceedings.
Issues: The main issues revolved around the ownership and partition of the property, the applicability of the Delhi Co-operative Societies Act, 2003, and the validity of the sale of the property.
Ratio Decidendi: The court held that the amendments sought by the plaintiff were necessary for determining the real controversy and did not cause prejudice to the other party. The court also emphasized the importance of avoiding multiplicity of proceedings and saving time and costs.
Final Decision: The court allowed the applications for amendments, directed the plaintiff to file the amended memo of parties, and listed the matter for further proceedings.
1. This is a suit for partition filed by the plaintiff against the defendant in respect of the property bearing No. N-47, Panchsheel Park, New Delhi-110017 (hereinafter referred to as the "suit property"). By this order, I propose to decide the pending applications, i.e.:-
(i) I.A. No.12251/2014 (under Order I Rule 10 CPC read with Section 151 CPC, filed by the plaintiff)
(ii) I.A. No.21133/2014 (under Order VI Rule 17 read with Section 151 CPC, filed by the plaintiff)
2. Brief facts for the purpose of adjudication of these applications are that the suit property belonged to one Shri Late Jagan Gopal Dewan who died on 27th April, 2001. Till the time of his death, Shri Late Jagan Gopal Dewan used to reside in the suit property. He was survived by his wife Amrit Kala Dewan, his son Prem Kumar Dewan and his married daughter Nargis Khanna, defendant herein.
3. By virtue of his last Will and Testament dated 9th December, 1972, Shri Late Jagan Gopal Dewan bequeathed the suit property to his wife Amrit Kala Dewan. While Amrit Kala Dewan let out the first and the second floor of the suit property, she continued to reside on the ground floor of the suit property. Amrit Kala Dewan also died on 12th November, 2005 leaving behind her son and daughter to whom she bequeathed the suit property in equal share by virtue of her Will and Testament dated 6th October, 2004.
4. Though the Will dated 6th October, 2004 laid down as to how the suit property is to be divided amongst Prem Kumar Dewan and Nargis Khanna, both of them after the death of their mother felt that it was not practical to partition the suit property in the manner provided in the Will dated 6th October, 2004. Accordingly, Prem Kumar Dewan and Nargis Khanna entered into a Memorandum of Settlement dated 24th November, 2005 by virtue of which they agreed that each of them will have 50% undivided share in the suit property.
5. Prem Kumar Dewan who had been residing with his family in Kolkata and also had his business in Kolkata, sold his 50% undivided share in the suit property by virtue of sale deed dated 23rd June, 2008 to two persons namely, Mr. Suneet Seth and Mr. Sunil Gupta, plaintiff herein.
6. It is averred by the plaintiff that in the said sale deed, it was represented by Prem Kumar Dewan that he was the absolute owner/sub-lessee and was otherwise well and sufficiently entitled to one half unspecified, undivided, indivisible and impartible sub-lease hold right in the entire suit property. Further, he was in exclusive physical possession of the entire second floor and terrace over and above the second floor and entire driveway adjoining property No.45 which he had acquired by means of Will dated 6th October, 2004 and Family Settlement dated 24th November, 2005 and he is fully entitled to sell, dispose of and transfer his one half share in the suit property.
It is further averred that it was represented by Prem Kumar Dewan that the tenants of the first floor of the suit property had not vacated the same after expiry of the lease period and so a declarative suit in respect thereto had been filed wherein status quo orders had been passed.
7. It is stated that Mr. Suneet Seth who had purchased 1/3rd of one half undivided share in the suit property, sold his entire share to the plaintiff. The plaintiff thereby became the exclusive owner of the one half undivided share of the suit property. The possession of the entire second floor and terrace over and above the second floor and one of the driveways leading to and meant only for the first and the second floor of the suit property, was given by Prem Kumar Dewan to the plaintiff.
8. It is the case of the plaintiff that defendant herein filed a civil suit No. 325/2009 under Section 44 of the Transfer of Property Act against the purchasers i.e. Mr. Suneet Seth and the plaintiff herein alleging that the purchasers are not entitled to joint possession or enjoyment of the suit property belonging to an undivided family because the purchasers
