Mankaran Singh Johar vs Smt. Satwant Kaur Johar and Others

V.K. Jain, J.

IA Nos. 4792/2008 (O 39 R 1 & 2 CPC) and 14347/2010

This is a suit for partition of property No. B-60, Greater Kailash, New Delhi. Admittedly, the aforesaid property was owned by late Sardar Gurbachan Singh Johar. Late Shri Gurcharan Singh Johar had nine children, six daughters and three sons, including late Shri Pratap Singh Johar. The case of the plaintiff, who claims to be the grandson of late Sardar Gurbachan Singh Johar, is that the aforesaid property was thrown by late Sardar Gurbachan Singh Johar into hotchpotch of Gurbachan Singh Johar (HUF) and, therefore, he also has a share in this property, he being the son of Pratap Singh, a pre-deceased son of Sardar Gurbachan Singh. Vide IA No. 4792/2008, the plaintiff has sought an interim injunction, restraining Defendants from transferring or alienating the suit property and creating any third party interest therein.

The case of the Defendants, however, is that the aforesaid property continued to be the self-acquired property of late Sardar Gurbachan Singh Johar and was never thrown into the hotchpotch of HUF. This is also the case of Defendants other than Defendant No. 3 that the plaintiff is not the son of late Shri Pratap Singh Johar.

Vide interim order dated May 2, 2008, the Defendants were directed to maintain status-quo qua title and disposal of the suit property till disposal of IA No. 4792/2008. IA No. 14347/2010 has been filed by Defendant No. 3, seeking vacation of the interim order on the ground that the plaintiff has failed to make out a prima facie case in his favour and has relied upon a forged and fabricate document, in support of the case set up by him.

In support of his contention that this property was thrown into the hotchpotch of Sardar Gurbachan Singh Johar (HUF), the plaintiff has relied upon an affidavit, alleged to have been sworn by late Sardar Gurbachan Singh Johar on 07th December, 1966 and attested by Shri H.G. Mullick, Notary, Delhi on 26th August, 1971. The case of the plaintiff is that copies of affidavit were submitted by late Sardar Gurbachan Singh Johar to various authorities and a photocopy of the same was handed over to him by his father late Shri Pratap Singh Johar. It is pertinent to note here that the photocopy, placed on record by the Defendant, does not bear any signature of the deponent and the case of the Defendants is that this is a forged and fabricated document.

The question as to whether the suit property was thrown into the hotchpotch of Sardar Gurbachan Singh Johar (HUF) or not is a disputed question of fact though, prima facie, there is no authentic evidence of the property having been thrown into the hotchpotch of the HUF. No affidavit sworn by late Sardar Gurbachan Singh Johar has been produced in original and the plaintiff has also disclosed where the original affidavit is available. Even the photocopy filed by him does not bear signature of the deponent though it purports to have been attested by a public notary at New Delhi on 26th August, 1971, this otherwise unsigned affidavit purports to have been executed at Guwahati on 07th December, 1966. However, assuming that the property No. B-60, Greater Kailash, New Delhi was never thrown into hotchpotch of Sardar Gurbachan Singh Johar (HUF), as claimed by the plaintiff, it would continue to remain as self-acquired property of late Sardar Gurbachan Singh Johar and if the plaintiff is the son of Sardar Pratap Singh, a pre-deceased son of late Sardar Gurbachan Singh Johar, he being one of the Class I legal heir of Sardar Gurbachan Singh Johar, would be entitled to 1/10 share in the property. It was also be pertinent to note here that in a letter written by Defendant No. 3 in reply to legal notice sent on behalf of the plaintiff, Shri Mnkaran Singh and his mother Mrs. Mala Chavda to late Smt. Satwant Kaur Johar, wife of late Shri Gurbachan Singh Johar, it was not the case of Defendant No. 3 Shri Harvinder Johar that Shri Mnkaran Singh was not the son of late Shri Pratap Singh Johar. In any case, whether the plaintiff is the son of late Shri Pratap Singh Johar or not is a question of fact which can be adjudicated only after trial and prima facie, for the purpose of deciding these applications, the Court has to proceed on the assumption that he is the son of late Shri Pratap Singh Johar, as claimed by him.

In these circumstances, prima facie, it is difficult to dispute that the plaintiff thus has a share in property No. B-60, Greater Kailash, New Delhi. The Defendants, therefore, need to be restrained from creating any third party interest in the property No. B-60, Greater Kailash, New Delhi during pendency of the. The parties to the suit are accordingly directed to maintain status-quo with respect to the title and possession of property No. B-60, Greater Kailash, New Delhi during pendency of the suit. They shall not sell, assign, transfer or otherwise part with possession of the aforesaid property during the pendency of the suit, without prior permission of the Court.

Both these applications stand disposed of.

CS(OS) 709/2008

Replication, wherever not filed, can be filed within four weeks. Documents can also be filed within that period. The parties are directed to appear before the Joint Registrar for admission/denial of documents on 02nd February, 2011.

The matter be listed before the Court for framing of issues on 20th April, 2011.