YOGINDER PARKASH DUGGAL Vs. OM PRAKASH DUGGAL

JUDGEMENT

(1.) I.A. W14/95 is under Order 22 Rule 2 of the Code of Civil Procedure (for short "the Code") for substitution of legal representatives of deceased Defendant No. 2; I.A. 8994/95 is under Section 5 of the Limitation Act for condonation of delay and I.A. 9013/95 is for modification of the preliminary decree passed in the suit in view of the death of Defendant No. 2.

(2.) Deceased Smt. Vidyawati widow of Shri Sardari Lal Duggal had died on 6.2.1981 leaving behind two sons Yoginder Parkash Duggal and Om Prakash Duggal and a daughter Ms. Santosh Kumari Duggal (Defendant No.2) as her legal representatives. She owned properly No.F-254, Shankar Road, New Rajinder Nagar, New Delhi. Yoginder Parkash Duggal filed the suit for partition of the property claiming l/3rd share in its. The Plaintiff died during pendency of the proceedings and his widow Smt. Pratibha Duggal was substituted as his legal representative on 8.9.1989. As there was no dispule about the shares of the parties, a preliminary decree was passed on January 8, 1992 declaring that each of the three heirs are entitled to 1/3rd share each. Actual partition has not taken place so far. In the meantime, Defendant No. 2 has also died. She died issueless and was unmarried. There is a dispule between the Plaintiff and the Defendant No. 1 as to who is entitled to her l/3rd share, Defendant No. 1 claims exclusive right to her l/3rd share whereas Plaintiff claims equal share with Defendant No.1

(3.) Learned counsel for the Plaintiff has contended that as the deceased Defendant No. 2 had inherited the share in property from her mother, her share would devolve among the heirs of her father under Section 15(2) (a) of the Hindu Succession Act, 1956 (for short "the Act"). He has relied on Bhagat Ram (Dead) v. Teja Singh (1999) 4 SCC 86. Whereas learned counsel for the Defendant No. 1 has contended that the succession will be governed by Section 15(1) read with Rule 3 of Section 16 of the Act and Defendant No. 1 alone inherits it. He has relied on Seethalakshmi Ammal v. Muthuvenkatarama Iyengar & Anr. 1998 III AD (SC) 681 and State of Punjab v. Balwant Singh & Ors. AIR 1991 SC 2301.