VIDHI CONSTRUCTION PRIVATE LIMITED Vs. BALJIT KAUR

JUDGEMENT

(1.) The appellant feeling aggrieved against dismissal of its application (IA.10720/2000) whereby it sought impleadment as a defendant in a suit; has preferred this appeal against the order passed by learned Single Judge oh; 18/12/2000. Appellant has also felt aggrieved by non- consideration of the prayer for vacation of ex- parte injunction made in IA.10721/2000 and has consequently prayed for vacation of ad-interim order of injunction dated 28/9/2000 passed in I A,10043/2000.

(2.) Facts as are relevant for the purpose of disposal of the appeal in brief are that on 26/9/2000 Suit No. 2205/2000 was filed by respondent Baljlt Kaur against Ajit Singh and Harish Kaur (the other two respondents in this appeal). In the said suit, plaintiff Baljit Kaur claimed a preliminary decree for partition of property, namely ,House No.D6/4, Vasant Vihar, New Delhi by declaring respective shares of the parties In the said property and on determination of shares to pass a final decree as - regards her 1/3rd share. The suit was filed, inter alia, alleging that late S.Joginder Singh, the father of the? parties was the sole owner of the suit property standing on land admeasuring 400 sq.yards, it was single storey residential building and was self acquired property of S.Joginder Singh, who passed away on 8.6.1987 leaving behind Smt.Harjit Kaur (widow) Ajit Singh (son) and Baljit Kaur and Harish Kaur (daughters). During his life time, S.Joginder Singh had execut- ed a registered will whereby he gave life estate in the suit property to his wife Smt.Harjit Kaur in lieu of her existing right of maintenance and residence. The will stipulates that after her demise, the property shall vest absolutely in favour of his son Ajit Singh. It is alleged that Smt.Harjit Kaur passed away on 24/8/1994. There- fore as per the provisions of sub-section (1) of Section 14 of the Hindu Succession Act (hereinaf- ter referred to as "the Act"), Smt.Harjit Kaur became full and absolute owner and on her demise, the suit property devolved upon the son and the two daughters of S.Joginder Singh. 'The plaintiff alleged that she was married and was residing in her matrimonial home at Chandigarh but continued to occupy a part of the property owned by S.Jo- gijnder Singh. On 5/9/2000 when she along with her family members came to Delhi and went to the suit premises she found that Ajit Singh had shifted from the suit premises to another premises and also learnt that he had entered into .an agreement with some contractors/builders in respect of the suit property. The single storeyed house had been demolished to be rebuilt. Faced with this situation she contacted Ajit Singh at his new address and protested about demolition of the property. Ajit Singh refused to accept the plain- tiff to be a co-owner. Thereafter she learnt that a fraud has been played by Ajit Singh by getting the property mutated in his exclusive name. It is further alleged that on the basis of the will dated 14.6.1983 full rights of ownership could not be conferred on AJit Singh alone. Irrespective of the mutation property was jointly owned by AJit singh, Baljit Kaur and Harish Kaur Ajit Singh had only one third share in the suit property and he alone could not have entered into collaboration agreement or any other agreement with a third party in respect of the suit property, nor could he could demolish or re-build the same to the detriment of her rights. With malafide intention Ajit Singh was attempting to usury the entire property including her share.

(3.) On the basis of the aforementioned allegations made in the plaint decree has been prayed for partition of property. Along with the suit an application under Order 39 'Rules 1 and 2 of the Code of Civil Procedure was also filed. An eX parte order of injunction was passed by learned Single Judge on 28/9/2000 restraining the two defendants (respondents 2 and 3) .from selling, transferring, alienating, encumbering or creating third party interest or parting with possession of the'' suit property to the extent of the alleged 1/3rd share of the plaintiff. On the same day Local Commissioner was also appointed to as certain the status of the construction being carried out at D-6/4, Vasant Vihar, New Delhi. The suit is contested by respondents 2 and 3 on a number of grounds. They have challenged plaintiff's right to claim partition of the property-alleging that suit is not maintainable and the case is fully covered by the provisions of sub-section (2) of Section 14 of the Act. Smt.Harjit Kaur enjoyed restricted rights in the property for her life time. She did not become absolute owner. Sub-section (1) of ;Section 14 of the Act is not applicable to the facts and circumstances of the case. It is alleged that the plaintiff was fully aware of the ;will and the intention of the deceased father. Before making the Will decased, father had fully 'discussed the matter with his three children that;'the property is to be given exclusively to Ajit Singh his son since the daughters had already been got married and were living happily in their matrimonial homes. Suit property, stood duly mutated in the records of Delhi-1 Development Authority in the name of respondent No.1 and he had every right to deal with the same In exercise of his rights he had 'entered into property development/collaboration agreement with the appellant, which agreement was.duly executed on 5/4/2000. Under the collaboration agreement the appellant was to construct and develop the ' property in question and as per the terms of the agreement, a sum of Rs.85.00 lacs had been deposited with defendant No.1 As per the terms of agreement, the entire basement and the entire ground floor with one servant quarter and common toilet in the building and one car parking in the drive way along with front lawns and rear courtyard on the ground floor of the newly constructed building forms part of the share of defendant No.1. The remaining portion of the property i.e. entire first floor and second floor,along with the rights in the terrace above second, floor, after leaving the area of the servant block and water tank etc., two car parkings in the drive way along with proportionate undivided rights in the land underneath in the new building has fallen in the share of the buildier/developer. In the month of April, 2000 itself, the builder had demolished the old structure and commenced construction of a new building. The building including; civil works was already complete. It was at finishing stage only. Thus denying the rights of the plaintiff to the suit property, it was alleged that the suit was malafide. Respondents 2 and 3 on 9/10/2000 also applied for vacation of the ex-parte ad-inferim injunction by moving IA.10551/2000.