Shri Harish Kumar Bhateja vs Shri Bhagwan Dass and Others

V.K. Jain, J.—This is a suit for partition of property No. H-10, Kirti Nagar, New Delhi. The case of the Plaintiff is that the aforesaid property was owned by an HUF of which he is a member, along with his father, brother, uncles and cousins. The case of the Plaintiff is that the sale consideration for the aforesaid property was paid from the funds of the HUF, though the Title Deed was executed in the sole name of his grandfather. The HUF, according to the Plaintiff, was headed by his grandfather late Sh. Kesho Dass. In the lifetime of Sh. Kesho Dass, Defendant No. 11 Baldev Raj filed a civil suit being 607/1973 seeking a declaration that the aforesaid property which had been acquired in the name of late Sh. Kesho Dass was an HUF property. Vide judgment and decree dated 18th November 1974 Sh. Ravi Kumar, then Civil Judge, Delhi passed a decree for declaration declaring the aforesaid property as HUF property. The Plaintiff, who claims to be a member of the aforesaid HUF, is seeking 1/18th share in the aforesaid property. IA 7014/2008 has been filed seeking injunction against sale, transfer, assignment and parting with possession of the suit property during pendency of the suit.

The suit has been contested by Defendants No. 1 to 10. Their plea is that the aforesaid property was the self acquired property of late Sh. Kesho Dass, who had bequeathed it to his daughter-in-law Smt. Vimal Bhateja, wife of Sh. Bhagwan Dass and the Plaintiff has no right, title or interest in the aforesaid property. Defendants No. 13 and 14, on the other hand, are supporting the Plaintiff and claim that the aforesaid property was an HUF property and was declared as such by the Court of Sh. Ravi Kumar, then Civil Judge, Delhi.

Defendants No. 13 and 14 have placed on record a certified copy of the judgment dated 18th November 1974 passed by Sh. Ravi Kumar, then Sub-Judge 1st Class, Delhi declaring therein that property No. 10, Block H, Kirti Nagar, New Delhi was an HUF property and Sh. Kesho Dass, who was Defendant No. 1 in the suit, had no exclusive right, title or interest in that property to alienate it to anyone to the exclusion of other members of the HUF. A certified copy of the decree passed by the Court pursuant to the aforesaid judgment has also been placed on record.

The contention of the learned Counsel for Defendants No. 1 to 10 is that the documents filed by Defendants No. 13 and 14 are forged documents and no such decree was ever passed by the Court. He also states that this suit is a counter blast to the suit already filed by his clients, which is pending before the learned Additional District Judge, Delhi.

At this stage, there is no material on record on the basis of which it can be said that the documents filed by Defendants No. 13 and 14 are forged documents. It was contended by the learned Counsel for Defendants No. 1 to 10 that the copies of the judgment and decree sheet filed by the Plaintiff are different from the copies filed by Defendants No. 13 and 14. I have compared the photocopies filed by the Plaintiff with the certified copies filed by Defendants No. 13 and 14 and I have not been able to notice any discrepancy in the two sets of copies. Prima facie, these documents appear to be genuine certified copies of the judgment and decree dated 18th November 1974, passed by Sh. Ravi Kumar, then Sub-Judge 1st Class, Delhi. If the suit property is an HUF property in terms of the aforesaid judgment and decree, obviously late Sh. Kesho Dass had no right to bequeath whole of it to his daughter-in-law and he could have bequeathed only his share in the aforesaid property.

Since Plaintiff has made out a prima facie case, showing the suit property to be an HUF property and he claims to be a member of the HUF having 1/18th share in the property, it would only be appropriate that the suit property is preserved during pendency of the suit and no third party interest is created therein. It is settled proposition of law that in a suit for partition, the property subject matter of the suit needs to be preserved during pendency of the suit, if a prima facie case is made out in favour of the Plaintiff. If the injunction is not granted and consequently the contesting Defendants are able to sell, transfer or alienate the suit property either wholly and in part or part with its possession, that may negate the decree which may be passed in favour of the Plaintiff and it may be difficult for the Plaintiff to execute such a decree in view of creation of third party interest and delivery of possession to a third party. The parties to the suit are, therefore, directed to maintain status quo with respect to title and possession of the suit property during pendency of the suit.

The application stands disposed of.

IA 7443/2009 (Under Section 151 of Code of Criminal Procedure)

Dismissed as not pressed.

IA 13920/2009 (Under Section 151 of Code of Criminal Procedure)

Heard. Since certified copy of the judgment and decree dated 18th November 1974 has already been filed by defendants No.13 and 14, the purpose of passing the order dated 30th May 2008 requiring the plaintiff to file the original/certified copy of the order has been fulfilled.

Mr. Pandey states that the record of the suit is not available in District Court being old record. The question whether the record is available or not, has no relevance at this stage, since the authenticity or otherwise of the certified copies filed by defendants No.13 and 14 has to be finally decided only after recording of evidence.

The application stands disposed of.