Mona Sharma v. Vishal Gautam

1. This appeal is directed against order dated 21.08.2019 passed by the learned Single Judge. The impugned order inter alia, contains two directions.

1.1. First, the appellant would deposit the keys concerning property described as C-15/3, First Floor, SFS Flats (Category-III), Malviya Nagar Extension, Saket, Delhi-110017 [hereafter referred to as “Malviya Nagar property”] with the registry of this court. Furthermore, a direction has been issued that the Station House Officer (SHO) of the concerned area would ensure that Malviya Nagar property is not trespassed.

1.2. Second, both parties would stand restrained from alienating, handing over or creating any third party interests in the suit properties which includes the Malviya Nagar property during the pendency of the suits filed by the parties against each other.

2. To be noted, Mr S.C. Singhal, who appears on behalf of the appellant, says that the appellant has no objection to the second direction that has been issued by the learned Single Judge via the impugned order.

2.1. Mr Singhal says that the appellant’s grievance is with regard to the first direction which requires the appellant to deposit the keys of the Malviya Nagar property with the registry of this court.

3. To be noted, the appellant has filed the suit i.e., CS(OS) 142/2019 for declaration, permanent injunction and partition. The subject matter of this suit is not only the Malviya Nagar property but also a parcel of land described as Plot No.451, Sector-15A, Noida, U.P., admeasuring 200 sq. mtrs. [hereafter referred to as “Noida property”].

4. As noticed above, the respondent has also filed a suit for declaration and permanent injunction albeit, only vis-a-vis the Malviya Nagar property.

4.1. We are told by Mr Singhal that the respondent, in the first instance, had filed the suit in the District Court at Saket, which stands transferred to this court and is numbered as CS(OS) 413/2019.

5. The record shows that both the appellant and the respondent are siblings and are residents of USA. As a matter of fact, the respondent in his suit has averred that the appellant is a permanent resident of USA. The appellant has, likewise, made a similar assertion in her suit qua the respondent. The appellant’s case in the suit is that she has acquired half share in the Malviya Nagar property by virtue of a Gift Deed dated 24.08.2016 and, insofar as the other half is concerned, it has, as averred, fallen to the appellant’s share by virtue of a registered will dated 31.08.2016 executed by late mother. Based on this, the appellant’s stand is that the respondent has no right, title or interest in the Malviya Nagar property.

5.1. Insofar as the Noida property is concerned, the appellant seeks partition of the same and thus claims 50% share in the said property. However, the grievance of the appellant is that although in IA No. 3506/2019, in which the impugned order was passed, the appellant had sought an injunction against the respondent from selling, alienating or creating any third party interest in the Noida property, the same was not adverted to in the impugned order.

6. As noticed above, both suits are pending trial on the original side of this court.

6.1. The record shows that both sides claim that they are in possession of the Malviya Nagar property. However, what emerges is that even the impugned order recognises the fact that the key to the Malviya Nagar property was in possession of the appellant. It is in that context that the learned Single Judge has granted leave to the respondent to move an appropriate application in CS(OS) 142/2019, to enable him to remove his valuable movable articles, if any, lying in the Malviya Nagar property.

7. Notice in this appeal was issued on 18.09.2019. The respondent has also filed a reply which is on record.

8. However, the respondent, after having entered appearance via his advocate one Mr Saurabh Yadav, has chosen to keep away from the proceedings in court.

9. The record shows that there was no appearance on behalf of the respondent on 27.04.2022 when the matter was listed before the Joint court. On 10.10.2022, after noticing the fact that there was no representation on behalf of the respondent, a direction was issued for listing the matter today.