Col. (Retd.) Suresh Chand and Another vs Sh. Satish Dayal

Manmohan Singh, J.—The application under consideration in the present case has been filed by the defendant under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 for modification of the order dated 15th December, 2006.

The plaintiffs have filed the present suit for partition of Immovable and moveable properties allegedly owned by HUF stated in Annexure "A" and "B" of the plaint.

Summons were issued in the suit on 15th December, 2006. On the same date, this Court granted the status quo order in respect of the properties mentioned in Annexure "A" and "B" of the plaint. The defendant in the meanwhile filed an application under Order 39 Rule 4 for the modification of the abovesaid order to lift the status quo order in respect of the following properties urging that they do not belong to HUF assets:

(i) 20, Sadhna Enclave, New Delhi.

(ii) 1, Bharti Colony, New Delhi.

(iii) Land measuring 325 sq.yards adjacent to the northern boundary wall of 20, Sadhna Enclave, New Delhi, on lease from Delhi Waqf Board to late Smt. Chandra Dayal.

When the application of the defendant was put up for hearing on 18th August, 2008 the learned Counsel for the defendant stated that he would confine the relief only to the property mentioned in sub para (b) of the prayer clause in the application i.e. property No. 1, Bharti Colony, New Delhi.

It is stated that the property at Bharti Colony stands in the name of Smt. Nina Dayal, wife of the defendant who is not a member of HUF. It is the self acquired property of Smt. Nina Dayal. She became the member of the Bharti Co-operative House Building Society in 1966 prior to her marriage with the defendant. The said property stands conveyed in the in her name vide conveyance deed dated 2nd March, 2000 which is filed by the defendant on record.

The plaintiffs despite giving repeated opportunities, have not filed their reply to the defendant''s application under Order 39 Rule 4 CPC.

Having heard the learned Counsel for the defendant, I find force in the submission made by him. There is no document on record filed by the plaintiffs to substantiate their claim that the property at Bharti Colony is an HUF property. In the case of Gava Dei and Another Vs. Gangadhar Mallik and Others, a case of Nagayasami Naidu and Others Vs. Kochadai Naidu and Others, was referred in para 7 wherein it was held as under:

...if on the side of the plaintiffs there is no evidence, there is no need for detailed scrutiny of the case of the female members or persons claiming through them, as to the resources of the female members and as to how they acquired the properties in question.

Accordingly, the ex parte ad interim injunction granted on 15th December, 2006 is discharged in respect of the property situated at 1, Bharti Colony, New Delhi. The status quo with regard to the other properties as mentioned in Annexure "A" and "B" of the plaint shall continue to operate. With the above directions, the application filed by the defendant under Order XXXIX Rule 4 of the Code is disposed of.

CS(OS) No. 2319/2006

List the matter before Joint Registrar on 25th January, 2010.