R S AHLUWALIA Vs. CAPT P S AHLUWALIA

JUDGEMENT

(1.) This appeal is directed against an order of the learned Single Judge dated 11/05/1999 disposing of plaintiff's application (IA 4542/99) under Order XXXIX Rules I and 2 Civil Procedure Code for interim relief. By the impugned order the learned Single Judge dismissed the said application and hence this appeal by the plaintiff.

(2.) The plaintiff filed the present suit for partition and rendition of accounts etc. with respect to property No.D-266, Defence Colony, New Delhi., Plaintiff and defendants 1 and 3 are real brothers being sons of late Lt.Col. C.S.Ahluwalia while defendant No.2 is the widow of Lt.Col C.S. Ahluwalia and is the mother of plaintiff and defendants 1 and 3. The plot measuring 325 sq. yards on which the property in question is constructed was purchased by Lt.Col. C.S.Ahluwalia in the fifties from the Defence authorities. According to the case set up by the plaintiff, the source of the funds for acquisition of the plot was ancestral and included sale proceeds of family ornaments. Lt.Col. C.S.Ahluwalia constructed a building on the said plot. He died in the year 1978. Plaintiff contends that after the death of Lt.Col. C.S.Ahluwalia, he became Karta of the HUF being the eldest son and male member of the family. He has filed the present suit for partition of the suit property and rendition of accounts with respect to the income derived therefrom. Admittedly the property is being managed by respondent No.2, the mother of the parties. She is realising the rental income from the property. The plaintiff claims that it is his right to manage the property as Karta of the HUF.

(3.) According to respondent No.2, she has been managing the property all along after the death of Lt.Col. C.S.Ahluwalia. She has been letting out the property and realising the rent from the tenants. She relies on a family settlement arrived at between the parties on 4/10/1997 under which the enjoyment of the property and its management including realisation of rent has been totally left to her during her life time- After her death, the property is to be divided into three equal portions. The property has three floors. One floor each has been allotted to the three brothers. The family arrangement also deals with adjustments between the brothers on account of different valuations of the three portions. The entire family arrangement dated 4/10/1997 is in the hand writing of the plaintiff/appellant and is signed by him as well as by the mother, respondent No.2 and another brother. The appellant does not dispute the family arrangement as well as the fact that it is in his own hand writing. In pursuance of the family arrangement, a lawyer was instructed to draft a formal document by way of memorandum of settlement. The draft memorandum of settlement prepared by the lawyer was circulated between the parties. The plaintiff made certain observations regarding the draft which are annexed to his letter dated 2 8/02/1998. In the observations the plaintiff/appellant has not challenged the right of the mother to manage the property or to realise the income from the property- He has not challenged the partition ,of the property. In fact in para 30 of the plaint, the appellant has himself pleaded the family arrangement dated 4/10/1997.