Rohit Sachdeva v. Dinesh Kumar Sachdeva & Anr.

1. The plaintiff has sued his brother and sister, for partition of (i) house no.H-93/1 constructed over land ad measuring 146 sq. yds., Shivaji Park, Punjabi Park West, New Delhi; (ii) sites bearing no.89 and 90 part of Village Panchayath Katha No.198, Property No.198 formed in converted Residential Purpose Survey No.44 of Rayasandra Village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District, measuring both sites are 4801 sq. ft. i.e. land measuring 30 guntas; and, (iii) Toyota Corolla Altis car bearing Registration No.DL10CT 5790 registered with Registration Authority, Janak Puri, New Delhi. 2020:DHC:121

2. The suit came up before this Court first on 27th May, 2019 when the counsel for the defendant no.1 appeared on caveat. Vide subsequent order dated 9th July, 2019, summons of the suit were ordered to be issued and the plaintiff as well as the defendants restrained from alienating, encumbering or parting with possession of and/or making any additions, alterations, construction or demolition in House No.H-93/1, Shivaji Park, Punjabi Park West, New Delhi and Site No.89 and 90, part of Village Panchayath Katha No.198, Property No.198, Survey No.44 of Rayasandra Village, Kasaba Hobli, Devanahalli Taluk, Bangalore Rural District, Karnataka and from parting with possession of Toyota Corolla Altis Car bearing registration No.DL 10 CT 5790.

3. IA No.16748/2019 of the defendant no.1 for condonation of delay of 102 days in filing the written statement is for consideration today.

4. The counsel for the defendant no.1 states that the delay of 102 days is after the expiry of 30 days for filing the written statement.

5. The counsel for the plaintiff states that in Iridium India Telecom Ltd. Vs. Motorola Inc. (2005) 2 SCC 145 it has been held that delay beyond 90 days from expiry of 30 days cannot be condoned and thus the written statement filed by the defendant no.1 cannot be taken on record.

6. The counsel for the defendant no.1 states that the delay occurred for the reason of the defendant no.2, being the sister of the plaintiff and the defendant no.1, as well as the plaintiff informing the defendant no.1 that they were attempting amicable settlement and that the defendant no.1 should not file the written statement as the same would precipitate the dispute.

7. The plaintiff claims 1/3rd undivided share in the Delhi property, half undivided share in the Bangalore property and half undivided share in the Toyota Corolla Altis Car.

8. During the hearing it has emerged (i) that the properties at Delhi and Bangalore belonged to the father of the parties and the car belonged to the mother of the parties; (ii) that the plaintiff claims the father of the parties to have left a Will bequeathing the Delhi property equally to the plaintiff and the two defendants and the Bangalore property equally to the plaintiff and the defendant no.1; (iii) that the mother of the parties pre-deceased the father of the parties and thus on the intestate demise of the mother, 1/4th share each in the car was inherited by the father of the parties, the plaintiff and the two defendants and the father of the parties has under the Will aforesaid bequeathed his 1/4th share in the car to the plaintiff; (iv) that the father of the parties was also the owner of two other immovable properties situated in Delhi and which under the Will have been bequeathed exclusively to the plaintiff; (v) that the defendant no.1 does not admit the Will of the father and the said Will has not been proved in any other proceedings; and, (vi) that the defendant no.2 admits the Will.

9. I have thus enquired from the counsels for the parties, the need for putting this suit for partition with respect to the properties at Delhi and Bangalore and the car aforesaid to trial, inasmuch as even in the absence of the Will, the plaintiff and the two defendants would have 1/3rd undivided share each in the house at Delhi and though the defendant no.2 in the absence of the Will would also have a share in the property at Bangalore but since is accepting the Will, would not have any share therein and the Bangalore property can be divided equally between the plaintiff and the defendant no.1.

10. I have enquired from the counsel for defendant no.2, whether the defendant no.2 claims any share in the Bangalore property or in the car.

11. The counsel for defendant no.2 states that the defendant no.2 is not claiming any share in either of the said two properties.

12. The counsel for the defendant no.1 however states that the suit be put to trial for adjudication of the validity of the document claimed by the plaintiff to be the Will.

13. If for the purposes of adjudication of the reliefs claimed in this suit, the need to adjudicate the validity of the Will is not felt, there is no need to put the suit to trial for adjudicating on validity of the document claimed to be the Will.

14. While the counsel for the plaintiff states that the other two Delhi properties which have been bequeathed exclusively to the plaintiff, are in exclusive possession of the plaintiff, the counsel for the defendant no.1 states that out of the said other two properties, the property at Bawana Industrial Area is in the name of a company and the plaintiff as well as the defendant no.1 are in joint possession thereof and the property at Peera Garhi is in the exclusive possession of the defendant no.1.

15. The counsel for the plaintiff controverts. However for the purposes of present suit concerning aforesaid three properties only, the need to go into the aforesaid controversy is not felt. It will be open to any of the parties to initiate appropriate legal proceeding with respect to properties other than properties subject matter of this suit.