SMT PATASO DEVI vs SH SATISH KUMAR & ORS

2024-01-23 Information

$~13

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:23rdJanuary, 2024
+ CS(OS) 43/2017, I.A. 10318/2019, I.A. 17559/2019

SMT PATASO DEVI ….. Plaintiff
Through: Counsel for plaintiff.
versus
SH SATISH KUMAR & ORS ….. Defendants
Through: Mr. Abdhesh Chaudhary, Mr. Nishi Kant Singh, Ms. Meena Yadav, Mr. Vinayak Mishra and Ms. Manisha Suri, Advocates for D1.
Mr. V.P. Rana, Advocate for D2.
Mr. Samarth Dahiya, Advocate for D3 & D4.
Mr. Adamaya Pal Singh, Advocate for D-5.
Mr. Akshat Gupta, Mr. Adeeb Arshad and Mr. Sriram I., Advocates for D6.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
I.A. 5609/2022 (under Order 23 Rule 1A CPC read with Order 1 Rule 10 CPC read with Section 151 CPC filed on behalf of the defendant No. 3 for transposition of defendant No. 3 Smt. Sudesh Hooda as plaintiff) &

I.A. 12312/2022 (under Order 23 Rule 1A CPC read with Order 1 Rule 10 CPC read with Section 151 CPC filed on behalf of the defendant No. 4 for transposition of defendant No. 4 Smt. Kavita as plaintiff)

1. By way of the two applications, defendant Nos. 3 Smt. Sudesh Hooda and 4 Smt. Kavita respectively, who are the daughters of the deceased plaintiff, have sought their transposition as plaintiffs. It is submitted that the plaintiff, who was their mother, has expired on 26.04.2021 and none has been appearing on her behalf. It is further asserted that there has been deliberate lack of interest on the part of the counsel for the plaintiff, who has sought to withdraw the suit after five years of litigation. The shares of the parties are yet to be determined and the mode of partition is also pending. No fruitful purpose would be served of permitting the counsel for withdrawal of the suit. It is, therefore, submitted that, in order to put an end of the entire controversy, they must be permitted to be transposed as the plaintiffs.
2. Learned counsel on behalf of the defendant No. 1, has taken a preliminary objection that after the demise of the plaintiff, her legal heirs have not been brought on the record. No application for substitution of the legal representative of the deceased plaintiff has been filed for more than one year and the suit stands automatically abated by operation of law, after 90 days from 26.04.2021.
3. These applications have been filed for transposition and no application has been filed for substitution of LRs. Moreover, this transposition application cannot be treated as an application for bringing the LRs on record. Once the proceedings stand abated, nothing survives in which these applications to be considered.
4. It is further asserted that the defendant No. 3 and 4 are the daughters of the deceased plaintiff and Late Sh. Sahab Singh, for whose estate, the present suit for partition has been filed. The entire estate already stands divided/partitioned by virtue of Memorandum of Family Settlement dated 25.01.1992 and 17.03.1999, which is to the knowledge of all the family members especially because the parties herein are all brothers, sisters and children of Late Sh. Sahab Singh and Smt. Pataso Devi.
5. It is further submitted that since the defendant Nos. 3 and 4 are not in possession, they would be required to also seek relief of possession. Moreover, defendant Nos. 1 and 2 are in possession of the suit property pursuant to the Family Settlement, for a decade and no objection has been raised, during the said time period. Such transposition would necessarily entail amendment in the relief to claim the possession and also would change the nature of the suit. The valuation of the suit for the purpose of Court fees under Section 7(v) of the Court Fees Act, on the market value of the share and the property would also be required to be amended.
6. It is, therefore, submitted that the transposition application of the defendant Nos. 3 and 4, is liable to be dismissed.
7. The defendant No. 2, Sh. Suresh Kumar in his reply has asserted that the transposition can be permitted only in terms of Order 23 Rule 1A read with Section 151 CPC, 1908, only if the suit is either said to be withdrawn or abandoned by the plaintiff in the manner provided under Order 23 Rule 1A read with Section 151 CPC, 1908. The present suit has neither been withdrawn nor has been abandoned by the plaintiff and therefore, the provisions, which have been invoked by defendant No. 3 and 4, are not applicable to the facts of this case. After the demise of plaintiff, no application for substitution of legal heirs has been moved by the LRs of deceased plaintiff and the suit already stands abated. Therefore, there is no question/occasion for withdrawal of the suit or abandonment thereof. It is further averred that the cause of action for filing the suit by the deceased plaintiff is different from the cause of action/ defence of the defendant Nos. 3 and 4 respectively as disclosed in their Written Statements and if the transposition is allowed, it would imply replacement of the original plaint. Therefore, the defendant no.3&4 are at liberty to claim their rights by way of an independent suit and the application is liable to be dismissed.
8. The defendant No. 6, Ms. Vanjana Rana, in her reply to the applications has taken a plea that before the demise, the plaintiff had disclosed and confided with the defendant No. 6 that the defendant Nos. 1 and 2 though are taking care of her day-to-day affairs, but because of the ill-advise and influence of the sisters, the Late plaintiff had filed a maintenance case in the Family Court at Saket, New Delhi. Subsequently, since the brothers and especially defendant No. 1 did not come under pressure, therefore, the deceased plaintiff on advice of her lawyer, filed the present Civil Suit seeking partition. She had filed the suit on the ill-advice of a lawyer and the daughter, who wanted to create a pressure on defendant Nos. 1 and 2, her sons for giving maintenance to the plaintiff/mother so that she could maintain herself independently, without going back to her sons. The deceased mother further regretted having been misled which unfortunately has brought the entire family into distress and put brothers and sisters into loggerheads.
9. It was further asserted that the partition of the property has already been affected and she is a witness to the Settlement Deed as well as Agreement to Sell, for sale of property. It is, therefore, submitted that the present application is misconceived and is liable to be dismissed.
10. Submissions heard.
11. The first contention raised on behalf of the defendants is that after the demise of the plaintiff, no application has been filed to bring her legal heirs on record and the suit stands abated and therefore, there is no question of transposition of defendant Nos. 3 and 4 as the plaintiffs.
12. It may be noted that the defendants including the defendant Nos. 3 and 4 are the legal heirs of the plaintiff. When they were already on record, there exists no question of the suit getting abated. The only question would be of transposition of some of the legal heirs as the plaintiffs. The first objection taken on behalf of the contesting defendants is, therefore, without merit.
13. The second objection taken is that the contesting defendants have already pleaded in their Written Statement that vide Settlement Deed the partition has already taken place. However, that is a matter of defence, which can be determined only on merits, after recording of evidence. This was the defence taken by the contesting defendants in the respective Written Statement, during the life-time of the plaintiff. Therefore, the contention on merit, as raised by the contesting defendants, cannot be a basis for rejection of the application for transposition.
14. The third objection taken is that if the defendant Nos. 3 and 4 respectively are transposed as the plaintiffs, the nature of the suit or cause of action would change. This argument is again misplaced for the simple reason that this is a suit for partition and determination of shares of the parties. The plaintiff in her suit had also admitted that the defendant Nos. 3 and 4, being the daughters, are entitled to a share. Essentially, insofar as the relief of possession is concerned, the same is incidental in the claim for partition. Furthermore, the objections in regard to the non-maintainability of the suit can be raised by the contesting defendants, at the appropriate stage.
15. Considering that the defendants Nos. 3 and 4 are the legal heirs of the plaintiff and this is a suit for partition wherein, all the parties whether the plaintiff or the defendant, are essentially in the nature of the plaintiff, there is no question of abatement of this partition suit, when the legal heirs were already a party.
16. Therefore, the application of defendant Nos. 3 and 4 respectively is allowed and they are hereby transposed as the plaintiffs.
17. The amended memo of parties be filed.
18. Be listed for framing of issues on 11.03.2024.

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 23, 2024
RS/JN

CS(OS) 43/2017 Page 6 of 6