ANSHUMALEE SOOD Vs. SUDARSHANA KUMARI BLAGAN AND ANR.

JUDGEMENT

(1.) THE Petitioner is the son and sole legal representative ('LR') of late Smt. Devi Kumari Sood, Defendant No. 3 in Suit No. 791 of 2007 (renumbered), which is a partition suit filed by her sister Smt. Sudarshana Kumari Blagan the Respondent No. 1 plaintiff way back in 1984. The Petitioner challenges an order dated 15th July 2009 passed by the Commercial Civil Judge ('CCJ'), Delhi whereby an application filed by the plaintiff under Order XXII Rule 4 CPC seeking to implead the Petitioner as LR was allowed and the Petitioner's application under Order 1 Rule 10 CPC seeking to implead himself as a party Defendant in his own right was dismissed.

(2.) RESPONDENT No. 1 filed the aforementioned suit for partition of the immovable property at I -13, Jangpura Extension, New Delhi ('suit property') which belonged to late Shri Mela Ram Sood, the husband of Defendant No. 1 Smt. Tulsan Devi, and the father of the plaintiff, and Defendant Nos. 2 and 3 Shri Din Dayal Sood and Smt. Devi Kumari Sood respectively. Shri Mela Ram Sood died intestate on 5th September 1975. The claim of the parties in the suit was that the suit property was his self -acquired property. The case of the plaintiff was that after being deserted by her husband she was residing in the suit property along with her mother; that Defendant Nos. 2 and 3 had relinquished their respective shares in the suit property in their favour and were therefore not co -owners. Separate written statements were filed by Defendant Nos. 1, 2 and 3 in the suit. Defendant No. 1, who died on 9th August 1984 soon after fling her written statement on 9th July 1984 denied that Defendant No. 2 had relinquished his share in the suit property. According to Defendant No. 1 the plaintiff and Defendant No. 3 had executed relinquishment deeds giving up their rights to the suit property. There was an oral family settlement under which each of them was paid Rs. 40,000. Defendant No. 1 claimed to be the exclusive owner of the suit property and further that only she and her son had any right to it. On his part defendant No. 2 filed a written statement on 11th December 1989 supporting his mother's stand and further pleading that she had by a Will dated 25th January 1984 bequeathed the entire suit property to him. He denied that the plaintiff had been deserted by her husband and asserted that they were having cordial relations. The Petitioner's mother Smt. Devi Kumari Sood stated in her written statement filed on 15th April 1984 (purportedly amended on 20th December 2001) stated that "the father of the plaintiff and replying Defendant had the property bearing No. I -13, Jangpura Extension, New Delhi which was acquired and built by the parents of the plaintiff and of the Defendant Nos. 2 and 3." She further admitted to both the plaintiff and herself having executed relinquishment deeds but maintained that the one executed by her was not a valid document as it was not registered. She admitted that there had been an oral family settlement and to having received Rs. 40,000. What is important to note that nowhere was it pleaded by any of the parties to the suit that the property was an ancestral one.

(3.) IT was then contended by the Petitioner that the partition of the undivided suit property "having acquired the rights in the property on the promulgation of the Hindu Succession (Amendment) Act 2005, being the sole heir of late Smt. Devi Kumari Sood, applicant is the only interested and necessary party." His case was that by virtue of Section 6 of the Act as amended in 2005, his mother "has been recognized as a coparcener" and that he had "acquired a right in the property through his mother, as the property is ancestral." He contended that "being the son of a coparcener of the Hindu Undivided Family" he was "entitled to partition and grant of his share in the property held by the coparceners together." He staked a claim to the 1/3rd share of the suit property to which his mother was entitled.