RAVI DUTT & ORS. vs DAL CHAND
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th May, 2024
+ CS(OS) 99/2017
RAVI DUTT & ORS. ….. Plaintiffs
Through: Mr. Samarth Chowdhary, Advocate.
versus
DAL CHAND ….. Defendant
Through: Mr. Dinesh Kumar and Ms. Preeti Thakur, Advocates.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
I.A. 494/2023 (under Order 1 Rule 10 CPC for impleadment and for stay of operation of preliminary decree dated 18.07.2019)
1. The present application, under Order 1 Rule 10 CPC, 1908 has been filed on behalf of the applicants, Mr. Amit Tyagi and Mr. Lalit Tyagi, sons of Sh. Sugreev Tyagi, to be impleaded as a party in the present Suit and for the stay of the Preliminary Decree dated 18.07.2019.
2. It is submitted that the present Suit has been filed against Sh. Dal Chand, the grandfather of the applicants seeking partition of properties and the Preliminary Decree dated 18.07.2019 entitling the plaintiffs to 2/3th share while Sh. Dal Chand/defendant has been held entitled to 1/3th share.
3. The applicants have explained that the Suit Properties were originally belonged by their common ancestor, Late Sh. Daya Ram who was succeeded by four sons, namely Late Sh. Bhawani, Late Sh. Trikha, Late Sh. Chunni and Late Sh. Kabul.
4. Late Sh. Kabul died issueless and the entire properties devolved upon the other three sons. Thus, Late Sh. Trikha, who was entitled to 1/3rd share was survived by 2 sons namely Late Sh. Girwar and Sh. Dal Chand, each becoming entitled to 1/6th share in the Suit Property.
5. Late Sh. Girwar, who had died issueless, had executed the Will dated 07.12.2000 in favour of the applicants i.e. the grandsons of Sh. Dal Chand/Defendant No. 1. Late Sh. Girwar expired on 02.12.2002 and the Probate Petition bearing No. PC-73/2011, in regard to the Will dated 07.12.2000 executed by Sh. Girwar, filed by the applicants, had been allowed vide Order dated 31.08.2012 and the Probate was granted.
6. The applicants have therefore, submitted that they are together entitled to 1/6th share and individually entitled to 1/12th share each in the Suit Property by virtue of the Will dated 17.12.2000 and are therefore necessary and proper party to the present Suit.
7. The plaintiffs have contested the application and have submitted that a Preliminary Decree dated 18.07.2019 has already been passed, wherein the Defendant No.1/ Sh. Dal Chand has been entitled to 1/3th share in the Suit Property. The Local Commissioner, appointed by this Court to ascertain whether the property can be divided by metes and bounds, had visited the Suit Property on 14.09.2019 and subsequently, demarcation was carried out on 12.11.2022, in the presence of the parties.
8. Since a Preliminary Decree has already been passed and acted upon, the only remedy available to the applicants to challenge the Preliminary Decree would be by way of an Appeal and thus, the said Preliminary Decree cannot be modified.
9. It is further contented that the present application is claimed to be blatantly belated and has been filed at the final stage of the Suit. At no point of time was the Will or the bequest in favour of the applicants by Late Sh. Girwar, was brought to the knowledge of the parties.
10. Thus, they are not entitled to be impleaded as a party at this stage of passing of Final Decree and the application is liable to be rejected.
11. Submissions heard and record perused.
12. The present Suit for Partition has been instituted between the successors-in-interest of three brothers namely, Late Sh. Bhawani, Late Sh.Trikha and Late Sh. Chunni, with respect to the properties of their common ancestor Late Sh. Daya Ram. The 1/3rd share of Late Sh. Trikha devolved upon his two sons, namely Late Sh. Girwar and Sh. Dal Chand, each becoming entitled to 1/6th share each in the Suit Property.
13. It emerges that this 1/6th share of Late Sh. Girwar was further bequeathed, by way of the Will dated 07.12.2000 to the present applicants, entitling them to 1/6th share together and 1/12th share individually, in the Suit Property, by virtue of the Will which stands probated.
14. It was submitted in the petition that Late Sh. Girwar had died issueless but there is no mention of the Will dated 07.12.2000 of Sh. Girwar and about its Probate having been granted, apparently for the reason that it was not within the knowledge of the parties to the Suit.
15. Since the applicants have together inherited the total 1/6th entitled share of Late Sh. Girwar, it is evident that Sh. Dal Chand did not become entitled to 1/3th share of Late. Sh. Trikha, but in fact, his share got divided in half between his two sons and the 1/6th share of Sh. Girwar has got bequeathed to the applicants (who are none other than the grandsons of Sh. Dal Chand).
16. In view of the probated Will, it has been shown that the applicants are entitled to the share of Late Sh. Girwar which is 1/6th share together i.e. 1/12th share each in the Suit Property and are therefore, necessary and proper party to the present Suit for Partition.
17. Even though a Preliminary Decree has been made, the same records that Sh. Dal Chand is entitled is entitled to 1/3rd share and thus, the same is required to be modified in view of the facts which have now been brought on record.
18. The application is thus, allowed and the applicants are impleaded as Defendant No. 2 and 3. Amended Memo be filed before the next date.
CS(OS) 99/2017
19. List before the Court on 31.05. 2024 for consideration.
(NEENA BANSAL KRISHNA)
JUDGE
MAY 14, 2024/PT
CS (OS) 99/2017 Page 4 of 4