Mukul Katariya (Minor) Through His Legal Guardian Smt. Pinki and Anr v. Sh. Rambhool and Anr

RAJIV SAHAI ENDLAW, J. MAY, 01, 2019 "bs" (Corrected & released on 23rd May, 2019)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st May, 2019. + CS(OS) 490/2018 & IAs No.13500/2018 (u/O XXXII R-1 CPC), 13501/2018 (u/O XXXIX R-1&2 CPC), 13502/2018 (u/O XI R-14 CPC), 1123/2019 (u/O VIII R-10 CPC) & 3267/2019 (u/O VI R-17 CPC) MUKUL KATARIA (MINOR) & ANR .... Plaintiffs Through: Mr. Harsh Kumar, Adv. Versus RAM BHOOL & ANR …...Defendants Through: Mr. C.M. Grover, Adv. for D-2. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The two minor plaintiffs namely Mukul Katariya and Chhavi, acting through their mother Smt. Pinki, have instituted this suit against their paternal grandfather defendant no.1 Ram Bhool and their father defendant no.2 Deepak, for (i) partition of properties No.32 & 33, Gali No.3, Sarojini Naidu Park, Shastri Nagar, Delhi claiming 1/6th share each therein; (ii) rendition of accounts; and, (iii) permanent injunction restraining the defendants from alienating, encumbering or parting with possession of the said properties and/or from dispossessing the plaintiffs therefrom. 2. The suit came up first before this Court on 1st October, 2018, when observing that the plaintiffs on the averments in the plaint were not found to have any share in the property but finding that the plaintiffs were residing in the properties and were required to be protected against forcible dispossession, the suit was entertained and vide ex-parte ad-interim order status-quo directed to be maintained qua possession of the plaintiffs, only of property No.33, Gali No.3, Sarojini Naidu Park, Shastri Nagar, Delhi (and not of property No.32, Gali No.3, Sarojini Naidu Park, Shastri Nagar, Delhi). 3. The order dated 8th January, 2019 records that both the defendants i.e. Rambhool and Deepak had been served on 22nd October, 2018. The defendants till date have not filed written statement. The plaintiffs filed IA No.1123/2019 under Order VIII Rule 10 of the Code of Civil Procedure, 1908 (CPC) which came up before this Court on 25th January, 2019. On perusal of the plaint to see whether the plaintiffs were entitled to a decree forthwith as sought vide detailed order citing judgments, it was reasoned that the plaintiffs had no share in the properties and were thus not entitled to the relief of partition. On request of the counsel for the plaintiffs, further hearing was adjourned. The plaintiffs, having realized the position in law as detailed in the order dated 25th January, 2019, have filed IA No.3267/2019 for amendment of the plaint. The defendants, inspite of opportunity have not filed reply to the said application also. 4. The plaintiffs instituted this suit pleading: "4. That Late Sh. Shiv Ram, during his lifetime, accumulated a considerable amount of funds and bought two adjoining properties bearing no.32&33, Gali No.3, Sarojini Naidu Park, Shastri Nagar, Delhi-110051, but unfortunately in 1996/1998 he died intestate. It is pertinent to mention here that two daughters were also left behind by Sh. Shiv Ram, one of which is alive, namely Smt. Saroj, and another has already expired, name of which is not in the knowledge of the plaintiffs. 5. That as there has been no partition of the HUF of the Sh. Shiv Lal till date… 6. That at the time of his death, Sh. Shiv Ram owned / controlled the following properties to the best of the knowledge of the Plaintiffs: i. 32, Gali No.3, Sarojini Naidu Park, Shastri Nagar, Delhi-110031 ii. 33, Gali No.3, Sarojini Naidu Park, Shastri Nagar, Delhi-110031 iii. Other Movable / liquid assets including monies in Bank Accounts (however the complete details of all bank accounts and other liquid assets are with Defendants). 7. That in 1982, Sh. Shiv Ram, out of his savings, bought one plot bearing no. 33, Gali No.3, Sarojini Naidu Park, Shastri Nagar, Delhi-110031 admeasuring 153 yd2 where the construction was raised and he started his residential life along with his wife Smt. Anaro Devi. 8. That on 01.08.1986, Sh. Shiv Ram, further from his savings, bought the adjoining plot bearing no. 3