Kiran Kumar Sethi v. Manohar Lal Sethi & Others

8. The applicant has further submitted that Kiran Kumar being conscious of the true facts, himself had filed an application I.A.2442/2004 in this suit and had withdrawn all his claims against the predecessor in interest of the applicant i.e Munshi Ram Sethi, defendant No.2 and Gulshan Lal Sethi, defendant no. 3 on 19th April, 2004. However, the suit has been decreed by this Court on 22nd May, 2018 and the shares of Defendant no.2 & 3 (whose names stood deleted in 2004) along with other defendants were determined along with that of the plaintiff. The amended memo of parties was filed on 10th August, 2012 without the names of defendant No.2 and 3, however, somewhere down the line while the suit was pending, application under Section 151 CPC bearing I.A. No.7179/2018 was filed for bringing on record the amended memo of parties. The amended memo of parties was filed on 18th May, 2018 wherein it has been clearly indicated that the suit against defendant No.2 and 3 were withdrawn on 19th April, 2004 vide I.A. No.2442/2014. Sh. Munshi Ram Sethi died on 29th May, 2016 i.e. much after the withdrawal of the suit against him. However, while filing the amended memo even though defendant No.2 Sh. Munshi Ram Sethi is deleted, he is shown to be represented through his legal heirs, even though there was no application ever for impleadment of legal heirs of Late Sh. Munshi Ram Sethi, nor was there any occasion to include the representative of defendant No.2 on his demise, since the suit stood withdrawn during his life time.

9. The applicant has asserted that subsequent to the withdrawal of the suit against Defendant no. 3 Sh. Gulshan Lal Sethi, he has sold his 1/3rd undivided share for Rs.22 lacs to Smt. Sangeeta Sethi, wife of Anil Sethi/ Applicant. Defendant no. 2 Sh. Munshi Ram died on 29th May, 2016 leaving a duly registered Will dated 04th September, 2014 bequeathing his 1/3rd share in the suit property in favour of Sangeeta Sethi. Hence, as on date Sangeeta Sethi holds 2/3rd share in her favour and is now in possession of the entire portion of the ground floor, entire first floor and the terrace of the above property. 1/3rd share in the property is in the name of Manohar Lal Sethi, defendant no[1].

10. It is claimed that the above chronology of facts clearly make out that plaintiff had no right, title or interest in the suit property who has concealed the true facts and has committed perjury. The applicant had no knowledge of the present case in which he has been residing. It is claimed that the applicant has vital interest in the suit property and the May, 2018 severally affects the rights.

11. The applicant Sangeeta Sethi has submitted that she has come to know about the pendency of the present suit through her cousin namely Mrs. Kamal Sahni and has immediately thereafter filed the present petition. A prayer is, therefore, made that Mrs. Sangeeta Sethi be impleaded as a party in the present suit and be allowed to contest it on merits.

12. Ms. Sangeeta Sethi wife of applicant Anil Sethi has sought impleadment as a party in I.A. No.9557/2018 on the aforementioned facts of being a necessary party, having acquired ownership in subject property.

13. It is further submitted in both the applications that aside from the above objections, the suit of the plaintiff is barred by limitation. The plaintiff through counsel had expressed his intention for partition of the suit property on 05th February, 1988 while the suit was filed only on 13th December, 2001 i.e. beyond the period of three years and hence is liable to be dismissed as barred by limitation.

14. The suit is also barred under Order 2 Rule 2 CPC as despite having expressed intention for partition way back in February, 1988, he did not seek partition in his earlier suit No.811/1988. Hence this suit is not maintainable. Furthermore, despite the plaintiff being aware of the factual matrix of ownership of the suit property, he has in furtherance of his illegal and malafide designs, not disclosed the true facts to the Court.

15. The applicant has claimed that he had never been impleaded as a party nor had he ever been served with the summons of the suit nor was he aware of the present proceedings as he had never been substituted in place of his father Munshi Ram Sethi. It is thus, claimed that the May, 2018 in the absence of the applicant is null and void and is liable to be set aside. He came to know about the proceedings around 30th May, 2018 and immediately contacted his advocate and moved the present application. Likewise, Ms. Sangeeta has sought her impleadment.

16. The plaintiff in the original suit and respondent in the present applications (hereinafter referred to as plaintiff) has filed a reply to the application I.A.9558/2018 under Order 9 Rule 13 CPC filed by Anil Sethi, son of Defendant No.2- Munshi Ram Sethi and I.A. NO. 9557/2018 filed by Ms. Sangeeta Sethi has filed similar reply.

17. The plaintiff has taken a preliminary objection that the judgment/ decree dated 22nd May, 2018 has been made on merits after hearing arguments at length and after appreciating the documents and the available evidence on record. It has not been passed ex-parte, as has been alleged by the applicant. It is further submitted that Order 9 Rule 13 refers to defendants in action who alone can move an application under Order 9 Rule 13 CPC. A person who is not a party, despite the fact that he may be interested in the suit, is not entitled to move an application under Order 9 Rule 13 CPC. He, therefore, has no locus to seek setting aside of the impugned order. The applicant not being a party to the proceedings, cannot move the present application for setting aside the decree. It is further submitted that an application under Order 9 Rule 13 can be maintained by a defendant on satisfying the Court that the summons were not duly served upon him or that he had sufficient reasons for not appearing, when the suit was called for hearing. The applicant herein was throughout aware of the proceedings of the present suit as defendant No.3 was being represented by the same counsel at the time of passing of order dated 19th April, 2004, who is now representing the applicant.

18. It is submitted that defendant No.2 father of the applicant/defendant No.4 and 6 on receiving the summons of the suit, had jointly filed a written statement wherein they had categorically admitted that they had no objection regarding the shares as were mentioned by the plaintiff in his plaint. They also stated that they had No Objection if the partition of the property is effected by metes and bounds. The matter was settled between the plaintiff, defendant No.2 Munshi Ram Sethi and defendant No.3 Gulshan Lal Sethi who jointly moved an application under Order 23 Rule 3 CPC wherein it was specifically stated that plaintiff as well as defendant no.2 and 3 have settled the matter amongst themselves. Plaintiff, therefore, gave up his share of 2.5% each in subject property from defendant no.2 and 3. In view of the settlement, defendant no.2 and 3 were dropped from the array of parties in the suit. Vide order dated 19th April, 2004, after giving away his 2.5% in the suit property, the plaintiff was left with 2.5% share in respect of which the final decree has been made.

19. It is denied that the applicant was not aware of the present proceedings. It is asserted that the applicant used to have meetings with the plaintiff and his counsel from time to time for an out of court settlement especially with respect to undivided property in question. The present application has been filed merely to delay the execution of the decree dated 22nd May, 2018. It is asserted that the present application is without merit and is liable to be dismissed.

20. It is further submitted that during the pendency of the present suit, Sunil Sethi and Master Sanchit Sethi (through his mother Sangeeta Sethi) sons of the applicant Anil Sethi had filed a suit for partition bearing Suit No. CS (OS) 147/2005 titled Sunil Sethi & Anr. vs. Munshi Ram Sethi & Ors against their grandfather i.e defendant No.2 Munshi Ram Sethi in this Court seeking partition of property No.52, Gokhle Market, Delhi which was also a subject matter in the suit before this court. The said suit was settled and the statements were recorded on 16th May, 2006. A sum of Rs.[9] lacs was agreed to be paid to the plaintiffs i.e. sons of the applicant by defendant no.3 to 6 i.e the plaintiff and defendant no.5 and 6 in the present suit. After the settlement in respect of that property, the same did not remain subject matter of the present suit. It is claimed that the applicant was always aware of the proceedings. Further, an intimation letter/ family circular was sent by the plaintiff to all the legal heirs of original defendant No.1, defendant No.2 including the applicant, defendant No.3, 6 and 6 and also the legal heirs of defendant No.4 informing about the Orders passed by this Court.

21. It is further submitted that this court vide order dated 18th December, 2001 had directed the defendants to maintain status quo in respect of the title and possession of the undivided suit properties. In view of this Order, none of the defendant was competent to sell, part with possession or create third party interest in the undivided property or any part thereof without the permission of this Court. The applicant has filed a Sale Deed dated 15th May, 2004 allegedly executed by defendant No.3 Gulshan Lal Sethi in favour of Sangeeta Sethi transferring his alleged 1/3rd undivided and unspecified share in the suit property in favour of Sangeeta Sethi. The said Sale Deed is in absolute violation and contravention of the Order dated 18th December, 2001 of this Court. The defendant No.3 is guilty of committing contempt of court for having deliberately infringed the order dated 18th December, 2001. Also, the alleged transfer is against the principle of law as no person can give what he does not have or that no one can transfer a title better that what he himself has, as is expressed in legal maxim nemo dat quode non habet, as observed by the Hon'ble Supreme Court in Pawitter Singh Walia vs. Union Territory Civil Writ Petition No.22898/2012 (O&M). It is submitted that defendant no.3 was owner of 25% undivided share in the suit premises and after the settlement with the plaintiff he became owner of additional 2.5% share and thus, his total share increased to 27.5% and not 33%, as alleged in the Sale Deed executed in favour of Sangeeta Sethi.

22. The plaintiff has further submitted that neither he nor the defendants aside from defendant no.2 and 3, were aware of the execution of this Sale Deed way back in 2004. This fact was cleverly hidden and concealed from the court by defendant no.2 (father of the applicant) and purchaser of the property, Sangeeta Sethi who is his wife.

23. The applicant has further submitted that sub division of disputed undivided property which is sub-judice in court of law of competent jurisdiction is violative of Section 52 of Transfer of Property Act, 1882. The Section prohibits alienation of immovable property in dispute in relation to which a suit is pending in the court of competent jurisdiction. For this reliance has been placed on Devraj Dogra & Ors. Vs. Gyanchand Jain & Ors. AIR 1981 SC 981. It is thus asserted that the transfer of undivided property by Gulshan Lal Sethi Defendant No.3 in favour of Sangeeta Sethi wife of the applicant is in violation of provisions of Section 52 of the Transfer of Property Act, 1882. The Plaintiff has thus opposed the impleadment of Ms. Sangeeta Sethi in the present proceedings.

24. It is further asserted by the plaintiff that the applicant and his family members are in unauthorized occupation qua the admitted share of the plaintiff and have not been paying damages and mesne profits. They are malafidely continuing to occupy the property with an intention to grab the share of the plaintiff. It is submitted that the application is without merit and is liable to be dismissed.

25. The plaintiff has further explained that the Suit bearing No.811/1988 was only in respect of rendition of accounts in respect of partnership firm and not for partition of other properties. In the said suit, pursuant to the directions of the Hon'ble Court, Valuation Report dated 16th August, 1998 with respect to the shares of the plaintiff in the assets and properties of the partnership Firms was got prepared from the Chartered Accountant and submitted by the defendants wherein it was clearly indicated that the valuation was done in respect of the immovable properties, machinery and other assets belonging to Sh. and Smt. Pishori Lal Sethi in their capacity as partners of the partnership firms namely M/s Sethi Welding and Radiator Works and M/s Sethi Engineering Works in terms of the order dated 08th August, 1988 in the said suit. Accordingly, the Valuation Report in respect of share of Sh. Pishori Lal Sethi and his wife in the movable and immovable properties as owned by the two partnership Firms were given. The documents of the defendants itself shows that the Suit No.811/1988 pertained to parthership firms and not to the properties held by Sh. Pishori Lal Sethi and others in their individual capacity.

26. In view of the aforesaid admissions of defendant No.2, father of the applicant, it is clear that the applicant has come up with the false claim of the plaintiff not having any right, title in the property. It is further submitted that aside from the joint properties in the name of the deceased father of the plaintiff and his brothers, there were other properties which were in the individual name of the father of the plaintiff which were also the subject matter of the present suit, but the dispute regarding the division of the said properties was settled and only one property i.e subject property of Punjabi Bagh was left admittedly in the joint name of father, plaintiff and other defendants. It is further clarified that after the settlement with defendant No.2 and 3 in the present suit, the defendant no.2 and 3 were still left 2.5% share in the suit property. However, now the said settlement is being mis-interpreted just to mislead the court. The plaintiff is clearly entitled to 2.5% share in undivided property in question. Furthermore, none of the parties to the suit had challenged the May, 2018. All the averments made in the application is therefore, without merits and the application is liable to be dismissed.

27. The plaintiff in his reply to the application under Order 1 Rule 10 CPC has taken preliminary objections that the applicant is not a necessary and proper party and the present application is clear example of abuse of process of law and cause of unnecessary harassment and hardship to the plaintiff. Furthermore, it is barred by limitation. No cogent or plausible reason has been given by the applicant for moving the present application after 14 years when the alleged Sale Deed was executed by defendant No.3 in her favour. Moreover, a person can be added as a party only if he is a necessary and proper party and the suit cannot be decided without his presence. It is submitted that applicant is neither the owner of the suit property by virtue of Sale Deed dated 24th March, 1967 executed in favour of Pishori Lal Sethi, Manohar Lal Sethi, Munshi Ram Sethi and Gulshan Lal Sethi nor is she legal heir of any of the owners of the suit property. The applicant is, therefore, not a necessary and proper party to the present suit as it was filed by the legal heirs of the predecessor in interest for partition. Furthermore, the Hon'ble Supreme Court in Bibi Zubaida Khatoon vs. Nabi Hassan Saheb Appl.(civil) 854-855 of 1998 decided on 06th November, 2003 has held that a transferee pendent lite, without the leave of the court, cannot as of right, seek impleadement as a party in the suit or appeal. However, whenever an application for joinder based on transfer pendent lite is made, the transferee should ordinarily be joined as a party to enable him to protect his interest. However, the purchase to made is hit by the doctrine of lis pendens by virtue of Section 52 of Transfer of Property Act, 1882, and shall be bound by the final adjudication between the parties. Once, the matter is decided and the decision delivered to the Decree holder, the petitioner who is the pendente lite purchaser has no right to become a party to the suit and has no locus standi to file an application to become a party in the appeal. The application is without merit and is thus, liable to be dismissed.

28. It is asserted that the applicant has intentionally and deliberately concealed and suppressed the execution of Sale Deed dated 15th May, 2004 from the plaintiff as well as the legal heirs of the deceased defendant for almost five years till the final of the present application. The shares/ ownership of the parties has been determined by this Court vide order dated 22nd May,2018. Pursuant to the settlement, the share of defendant No.3 and legal representative of deceased Munshi Ram Sethi has got enlarged from 25% to 27.5%. The Sale Deed in respect of 33% could not have been executed in favour of the application, when he was having ownership of only 27.5% in the property in question. It is further asserted that the applicant does not have any independent right to property, but has acquired the same through the Sale Deed dated 15th May, 2004, during the pendency of the present petition. Moreover, the alleged transactions are hit by the doctrine of lis pendens as contained in Section 52 of Transfer of Property Act, 1882. It is further submitted that a compromise was entered into between the plaintiff and defendant No.2 and 3 and the plaintiff had withdrawn his claim in respect of 2.5% share which the defendant No.2 and 3 held in the property in question. By virtue of this compromise the claim of the plaintiff got limited to 2.5% instead of 7.5% as was asserted by him. It is submitted that after the settlement and withdrawal of the suit by the plaintiff against the defendant No.2 and 3, no Sale Deed to the extent of 33% undivided share could have been executed in favour of the applicant. It is further asserted that the parties had settled the earlier suit bearing No.811/1988 which was only in respect of the partnership properties and the shares which their parents held in the partnership properties and that suit did not concern with the residential and other properties which were the subject matter of the present suit. It is claimed that the settlement in the suit No.811/1988 is being wrongly interpreted to assert that the plaintiff had got his claims settled in respect of suit premises by receiving Rs.12 lacs. It is submitted that the application under Order 1Rule 10 CPC is without merit and is liable to be dismissed.

29. The defendant No.1 (D) (i) & (ii) Naina and Mehek (Legal heirs of late Sh. Manohar Lal) in their reply to the application under Order 9 Rule 13 CPC have taken a preliminary objection that the application is barred by limitation and is not maintainable because it is not an ex-parte decree. The applicant is guilty of suppression and distortion of material facts and the application is liable to be dismissed.

30. Submissions heard.

31. The plaintiff had filed a suit for Partition, Rendition of Accounts, Declaration and Permanent Injunction in respect of various properties which included the property of Punjabi Bagh. In respect of the suit property, it was claimed that the said property belonged to Sh. Pishori Lal father of the plaintiff who along with his brothers Manohar Lal Sethi, Munshi Ram Sethi and Gulshan Lal Sethi, defendants no.2 to 4 respectively were the joint owners having 1/4th share in the said property. Sh. Pishori Lal Sethi died on 09th August, 1986 leaving behind following legal heirs: Smt. Shakuntala Sethi - Wife Sh. Harish Kumar Sethi - Son (Defendant No.4) Sh. Kiran Kumar Sethi - Son (Plaintiff) Ms. Asha Chaddha - Daughter (Defendant No.5) Ms. Sarita Bhasin - Daughter (Defendant No.6)

32. On his demise, the plaintiff inherited 1/5th share out of the 1/4th share in the suit property i.e. 1/20th share in the suit property. After the demise of his parents, he inherited 7.5% share in the suit property (5% share inherited from the father's 25% share and 2.5% i.e half of 5% from the mother's share in the property in question). The plaintiff thus, asserted that he has 7.5% share in the suit property and accordingly sought partition to the said extent. The defendant No.2 Munshi Ram Sethi had supported the plaintiff in his written statement and had not challenged his claim to the property in question. However, defendant No.3 Gulshan Lal Sethi had asserted that the claim of the plaintiff in respect of the suit property was settled in Suit No.811/1988 and he was left with no share in the property.

33. Accordingly, I.A.2442/2004 under Order 23 Rule 3 CPC dated 22nd March, 2004 was filed jointly by plaintiff and defendant no.2 and 3 wherein it was submitted that the parties had settled their claims in respect of the properties which was the subject matter of the plaint which included the suit property and the plaintiff gave up his right against defendant No.2 and 3 and sought withdrawal of the suit against defendant No.2 and 3. This settlement was accepted vide Order dated 19th April, 2004 and the suit of the plaintiff against defendant no.2 and 3 was dismissed as withdrawn.

34. From these admitted facts, it is evident that the settlement took place between the plaintiff and defendant No.2 vis-a-vis the claim of the plaintiff in the suit property against defendant No.2 and 3.

35. It has been explained that the plaintiff was claiming 7.5% share, but pursuant to the Agreement he settled for 2.5% while defendant No.2 and 3 became entitled to 2.5% share each in the subject property. The rights between the plaintiff and defendant no.2 and 3 thus got crystalized way back in April, 2004 and were never ever challenged either by defendant No.2 or 3 during their life time.

36. The applicant Anil Sethi is the son of defendant No.2 Munshi Ram Sethi, who died on 29th May, 2016. Late Munshi Ram Sethi in his written statement had not challenged the claim of the plaintiff to the extent of 7.5% in respect of property in question. Despite this, a settlement was entered into between them and he accepted his share to be 2.5% and that of the plaintiff as 2.5%. The controversy in respect of the share of the plaintiff, defendant no.2 and 3 were put to quietus by Late Munshi Ram Sethi during his life time and was recorded in the Order dated April, 2004. The applicant Anil Sethi is the legal heir of Munshi Ram Sethi and cannot claim a share which was never asserted by Munshi Ram Sethi in his life time or way of his written statement. A new case is sought to be projected by Anil Sethi under the garb of application under order 9 Rule 13 CPC which is clearly not tenable. In this context it would not be out of place to mention that the settlement was recorded way back on 19th April, 2004 and it has never ever been challenged by Munshi Ram Sethi during his life time. Any challenge to the said compromise therefore by the legal heirs of Munshi Ram Sethi is clearly not maintainable.

37. The applicant has sought to challenge the share of Late Munshi Ram as 2.5% by referring to a litigation in Suit No.811/1988 wherein disputes arose in respect of partition of two properties of two partnership firms. The subject property was also one of the properties in consideration, but as has been explained by the plaintiff in his plaint itself, that the earlier suit pertained to the share of the partnership Firm in the property in question and not in their individual capacity.

38. Defendant no.3 had also specifically claimed that the entire right of the plaintiff in suit property had got determined on payment of Rs.12 lacs to the plaintiff. However, it has been explained that Rs.12 lacs received by the plaintiff in Suit No.811/1988 pertained to his share in the property by virtue of being a partner in the business of partnership firm and not in the property in the individual capacity.

39. The fact that suit no.811/ 1988 pertained to the partnership properties is clearly borne by the valuation report which was in respect of the partnership firms, submitted in that suit by all the defendants namely Manohar Lal Sethi defendant No.1, Munshi Ram Sethi defendant No.2 and Gulshan Lal Sethi defendant No.3 themselves. The relevant part of the Valuation Report categorically stated by as under: ''House Properties. Cottage No. 11, Patel Nagar, And 42/48, Punjabi Bagh: These properties are residential properties owned by Sh. P.L. Sethi, M.L Sethi, M.R Sethi, Sh. G.L. Sethi in equal shares. Cottage no. 11, Patel Nagar is in possession of Shri Harish Kumar Sethi partly and remaining portion is on rent. The rent is collected by Shri Harish Sethi. \ Property no. 42/48, Punjabi Bagh is in possession of Sh. M.L Sethi, M.R Sethi and Sh. G.L. Sethi. As these properties are co-ownership properties and are not the subject matter of this Suit, no valuation is put on these properties ".

40. It is abundantly evident from the document of defendants itself that the subject property was not included in the earlier suit which was only in respect of business/ partnership properties and Rs12 lacs accepted by the plaintiff were not in respect of subject property.

41. The defendant No.3 had specifically taken a defence that the plaintiff had no right, title in the suit property but he abandoned his contention and entered into the settlement along with defendant No.2 and accepted the share of the plaintiff to the extent of 2.5% while defendant no.2 and 3 also having 2.5% each. The defence which is now trying to be taken by the applicant of plaintiff not having any share in the suit property, already stands settled. The applicant is estopped from reagitating a defence once taken and abandoned by the predecessor in interest, under the garb of Order 9 Rule 13 CPC. This defence is clearly not available to the applicant who is now trying to rake up the matters when they had got settled way back in 2004, after 14 years.

42. The rights of defendant no.2 and 3 having been determined by way of a compromise with plaintiff way back in 2004, they were deleted accordingly. Once, defendant no.2 was deleted and the decree made accordingly, the applicant Anil Sethi cannot claim himself to be a party to the suit as he is claiming his right through defendant No.2 Munshi Ram Sethi, who stood deleted way back in 2004. Order 9 Rule 13 CPC is maintainable by a party to the suit in a situation where either he is not served with the summons of the suit or he is unable to appear during the trial and it results in an ex-parte decree. There is no ex-parte decree made against defendant No.2 the predecessor in interest, on 22nd May 2018, but it was a compromise Order dated 19th April, 2004 and, therefore, the application under Order 9 Rule 13 CPC is not maintainable on this ground.

43. The other aspect which has been agitated is that even though defendant No.2 &3 were deleted in 2004 but a final decree has been passed against them on 22nd May, 2018 in their absence. For this, one may also refer to the final Order dated 22nd May, 2018 vide which the suit of the plaintiff was allowed and a preliminary and final decree was made. The record shows that though there is mention of name of defendant No.2 Munshi Ram Sethi and defendant No.3 Gulshan Lal Sethi defining their shares as 2.5% each, but it is clearly reflected that their shares were specified as determined vide I.A.2442/2004. Clearly, their names have only been mentioned by way of reflecting how the share of the plaintiff in the subject property has been calculated. There is no adjudication per se in respect of the shares of defendant no.2 Munshi Ram Sethi and defendant no.3 Gulshan Lal Sethi, but their names have been indicated only for the purpose of explaining the share of the plaintiff. There is no decree made against defendant No.2 and 3 since deceased, on 22nd May, 2018. The determination of rights took place way back on 19th April, 2004 and not on 22nd May, 2018 as is wrongly asserted by Anil Sethi. The application under Order 9 Rule 13 CPC is also clearly and hopelessly barred by limitation.

44. Defendant no. 2, the predecessor in interest of the applicant, was not a party to the final decree as their claim got settled way back in 2004 and the suit against him was withdrawn. In the circumstances neither can the applicant claim that the summons were not served upon him or that the defendant stopped appearing during the trial which are the only twin situations in which application under Order IX Rule 13 CPC could have been filed. There is no ex-parte decree against the applicant. His application is without merit and is hereby dismissed. I.A. No.9557/2018 of Ms. Sangeeta Sethi for impleadment.

1. Smt. Sangeeta is the wife of Anil Sethi, son of Munshi Ram Sethi, defendant no.2 in the original suit, who vide separate application has made an attempt to create a controversy in respect of the share of the plaintiff in the property by creating grounds which do not exist.

2. The applicant has asserted that on demise of Sh. Pishori Lal Sethi, he was survived by five legal heirs. The two daughters Ms. Asha Chhabra and Sarita Bhasin relinquished their respective shares in the property in favour of their brother Harish Sethi, who in turn relinquished his share which was 3/16th in the separate property in favour of Manohar Lal Sethi, Munshi Ram Sethi and Gulshan Lal Sethi vide registered Relinquishment Deed. In this way Manohar Lal Sethi and Gulshan Lal Sethi became owners to the extent of 1/3rd undivided share in the suit property. Gulshan Lal Sethi sold his undivided 1/3rd share to the applicant Smt. Sangeeta Sethi. Munshi Ram Sethi on his demise on 29th May, 2016 left his undivided share in favour of Sangeeta Sethi vide registered Will dated 04th September, 2014. The applicant has thus claimed that she has 2/3rd share in the subject property and plaintiff has no right, title or interest in the suit property.

3. In so far as the applicant is concerned, she is asserting her rights which according to her were created during the pendency of the suit. The doctrine of lis pendens as enumerated under Section 52 of the Transfer of Property Act, 1882 clearly provides that any title created during the pendency of the suit shall be subject to the final outcome of the suit. Furthermore, it is a settled principle that no person can transfer a share more than what he has. Moreover, the plaintiff himself has explained and admitted that pursuant to the settlement, the share of defendant No.3 Gulshan Sethi and legal representative of deceased Munshi Ram Sethi, defendant no.3 had got enlarged from 25% to 27.5%. The Sale Deed in respect of 33% could not have been executed in favour of the application, when he was having ownership of only 27.5% in the property in question. The applicant Sangeeta Sethi is asserting a right in the property on the basis of Relinquishment Deeds and Will allegedly executed in her favour subsequent to the settlement of the plaintiff with the defendant No.2&3. The suit stands finally adjudicated and no proceedings are pending in which the applicant can be impleaded. Therefore, her present application under Order 1 Rule 10 CPC is not maintainable. However, the applicant is claiming an independent right in the suit property which she is at liberty to claim as per law.

4. The application under Order[1] Rule 10 CPC is accordingly dismissed. I.A.9560/2018 (For Condonation of Delay)

1. An application under Section 5 of the Limitation Act for condonation of delay of seven days in filing the application under Order 9 Rule 13 CPC has been filed on behalf of Sh. Anil Sethi.

2. It is submitted in the application that there is a delay of 7 days in filing the application under Order 9 Rule 13 CPC. It is submitted that on coming to know about his decree from his cousin, he contacted his lawyer and obtained the certified copies on 31st May, 2018 though, it was ready on 05th June, 2018. He engaged another counsel, who thereafter collected the file from the previous Advocate and filed the present application. It is submitted that the delay is unintentional and the same may be condoned.

3. For the reasons stated in the application, the delay is condoned and the application is allowed. I.A. No.13793/2018

1. An application under Section 2 of the Partition Act for Sale of the suit property in terms of preliminary and final decree dated 22th May, 2018 has been filed on behalf of defendant no.2(iii) Ms. Neeti Raheja.

2. List this matter for consideration of application under Section 2 of Partition Act, 1893, on 26th August, 2022.

JUDGE JULY 28, 2022 ‘va’