Anita Roy v. Samir Majumdar & Ors.

1. The plaintiff, in this suit for partition of property bearing No.G-1425, Chittaranjan Park, New Delhi, vide IA No.3273/2019 seeks to withdraw the suit.

2. The counsel for the defendants No.2 & 4 i.e. Shipra Chakraborty and Chitra Kapoor contends that this application has been filed to prevent the defendant No.4 Chitra Kapoor from transposing herself as plaintiff in the suit and for which purpose, the application has been filed and which is likely to come up before this Court tomorrow.

3. The counsel for the defendant No.1 has argued, (i) that late Shri B.B. Majumdar, father of the plaintiff and defendants No.1 to 4 and husband of CS(OS) 224/2016 2019:DHC:1479 defendant No.5, was the owner of the aforesaid property; (ii) that Shri B.B. Majumdar left behind a validly executed last registered Will with respect to the said property; (iii) that defendant No.2 first filed a petition before the District Judge, Delhi seeking Letters of Administration with respect to the aforesaid property, claiming that Shri B.B. Majumdar died intestate; defendant no.1 produced the Will in the said proceedings and whereupon the defendant No.2 Shipra Chakraborty, on 29th March, 2005 withdrew the said petition, without prejudice to her rights and the petition was dismissed as withdrawn, without prejudice to the rights of the said Shipra Chakraborty; attention in this regard is drawn to pages 33 and 43 of Part III-B file; (iv) that the said defendant No.2 Shipra Chakraborty thereafter filed a suit before the Civil Judge, Delhi, for declaration as null and void of the document claimed by defendant No.1 to be the Will and for permanent and mandatory injunction with respect to the property; preliminary issues were framed in the said suit as to the maintainability thereof on account of withdrawal of earlier petition for Letters of Administration and on the ground of limitation; though the issue qua the bar under Order XXIII Rule 1 of the Code of Civil Procedure, 1908 (CPC) was decided in favour of the defendant No.2 Shipra Chakraborty but it was held that the suit was barred by limitation and the suit was dismissed; attention in this regard is drawn to pages 53 and 34 of Part III-B file; (v) thereafter, defendant No.5, being the mother of the parties, instituted a suit against the defendant No.1 and which suit was disposed of in terms of the Settlement Agreement dated 16th May, 2014 at page 75 of Part III-B file; (vi) that under the Will claimed by the defendant No.1, defendant No.5 has a right of residence during her lifetime and else the house has been bequeathed only to the defendant No.1, subject to defendant No.1 paying certain amounts to the sisters; and, (vii) that defendant No.1 has paid the named amount to the defendant No.2, as evidenced from the documents at page 23 of Part III-B file.

4. It is thus argued that the defendant No.2 Shipra Chakraborty cannot continue the suit. It is also stated that similarly, the defendant no.4 Chitra Kapoor has also received the money to be paid to her under the Will.

5. The counsel for the defendants No.2 & 4 states that though the defendants No.2& 4 admit their signatures on the aforesaid documents, but it is their plea that signatures were obtained on blank paper.

6. I have considered the contentions of the counsel for the defendant No.1 and do not find any of the contentions to be coming in the way of the defendant No.4, if desirous of being transposed as the plaintiff and continuing the suit for partition, being not entitled to do so. The cause of action for the Letters of Administration first sought and the cause of action for the suit thereafter filed for declaration as null and void of the Will set up by the defendant No.1, is separate and distinct from the cause of action for this suit for partition. Dismissal as barred by time, of a simplicitor suit for declaration as null and void of the document claimed to be the Will, would not divest the rights, if any of the defendant No.4 in the property as an heir of her father and/or would not constitute the defendant No.1 as the sole owner of the property and would not bar a suit for partition. It is not argued that the relief claimed of partition is barred by time, as indeed it cannot be in view of the facts aforesaid. The facts show that the defendant No.4 and/or the defendant No.2, ever since the demise of the father, have been claiming a share in the property and have never accepted the Will set up by the defendant No.1. A limitation, if at all for a suit for partition would be of 12 years commencing from the date when a Will in ouster of the title claimed by the defendants No.2&4 is set up and the defendants No.2&4, within the period of 12 years therefrom take no action. Reference in this regard may be made to Anita Kumari Gupta Vs. Ved Khushan 2014 SCC OnLine Del 2895 and M.K. Govil Vs. Harish Chand Govil (2017) 278 DLT

91.

7. As far as the Settlement Agreement with the mother is concerned, though the counsel for the defendant No.1 has argued that all the sisters of the defendant No.1 were accompanying the mother before the Mediation Cell when the Settlement Agreement was drawn up, but neither were the defendants No.2&4 parties to the suit in which settlement was arrived at nor parties to the Settlement Agreement and nothing contained in the Settlement Agreement, to which they are not parties, can divest the defendants No.2 &4 of their share, if any.

8. Though the MOU claimed to have been executed by the defendants No.2&4 would have amounted to an estoppel, coming in the way of the defendants No.2&4 now disputing the Will, but in view of the plea of the defendants No.2&4 of the defendant No.1 having obtained their signature on blank paper, the said plea also has to be put to trial and it cannot be said that the defendants No.2&4 are not entitled to seek their transposition and/or to maintain the suit.

9. Thus, the objection of the defendant No.1 has no merit.

10. Since the plaintiff desires to withdraw as the plaintiff in the suit, IA No.3273/2019 is allowed and as far as the plaintiff is concerned, she is permitted to withdraw the suit. CS(OS) 224/2016 & IA Nos.5750/2016 (of plaintiff u/O XXXIX R-1&2 CPC), 262/2018 (of D-2&4 u/S 151 CPC), 13875/2018 (of D-1 u/O XXXIX R-1&2 CPC) & 13876/2018 (of D-1 u/O X R-2 CPC)

11. In accordance with the above, the defendant No.4 is transposed as the plaintiff and the plaintiff who has withdrawn the suit is transposed in place of the defendant No.4.

12. The defendant No.4, who is now the plaintiff, to file amended Memorandum of Parties within ten days.

13. The counsels, on enquiry, state that defendant No.3&5 have been served but have not filed their written statement and their right to file written statement has been closed.

14. None appears for the defendants No.3&5 Mitra Guha and Bhulurani Majumdar.