CHANDRA PRABHA Vs. SATISH CHAND SHARMA

JUDGEMENT

(1.) This appeal is directed against the order dated 23rd February, 2010 passed by learned Single Judge whereby three applications viz. IA No. 6043 of 2007, IA No. 6044 of 2007 and IA No. 6045 of 2007 filed by the appellant plaintiff in her suit CS(OS) No. 526 of 2007 came to be dismissed.

(2.) The admitted facts are that the appellant/ plaintiff is daughter of Pt. Moolchand Sharma who died on 25th December 1939 leaving behind his widow and five minor children i.e. three sons (Mr. S.C. Sharma, Mr. R.C. Sharma and Mr. H.C. Sharma) and two daughters (Chander Lekha and appellant Chander Prabha). A will was executed by Pt. Moolchand Sharma dated 10th December, 1937 whereby he vested his entire property, movable as well as immovable, in five persons (trustees) who were to manage the said property and ensure that the family of the deceased was maintained, educated and married. The said Will was proved and registered before a Senior Subordinate Judge, Delhi on 14th December, 1940 in probate proceedings. The probate came to be granted by the Court on 28th May, 1941. The mother of the appellant also passed away in 1942 and her sister (Chander Lekha) got married in the year 1942. The appellant was married in the year 1951. On 12th July, 1954, a Transfer Deed was executed by the Trustees in favour of H.C. Sharma and S.C. Sharma who had attained majority. Since Mr. R.C. Sharma was minor at that time, his share continued to remain with Pt. Moolchand Trust. Mutation in the names of Mr. S.C. Sharma and Mr. H.C. Sharma was effected on 7th July, 1956. The share of Mr. R.C. Sharma was transferred by the trustees in his name on 11th October, 1958, after he attained majority. Admittedly, the shares of the sons of late Pt. Moolchand Sharma were mutated in their names and that they themselves or through their Lrs are in possession of their shares in the property.

(3.) It is also admitted that in a suit being CS (OS) 2166 of 1999 titled as S.C. Sharma and Others v. R.C. Sharma and Others, the appellant moved an application dated 4th November 1993 under Order 1 Rule 10 CPC for impleadment and she was allowed to be impleaded as defendant No. 9 in the said suit limited to her rights/ benefits as per the Will of her deceased father. It is also a matter of record that on 29th June, 1996 a suit being CS (OS) 1573 of 1996 titled as Chadra Prabha v. Satish Chand Sharma and Ors. was filed by the appellant seeking relief of declaration, rendition of accounts and permanent injunction against the defendants including her brothers. One of the pleas taken in the said suit was that she came to know of the factum of the Will on 19th July, 1999 i.e. ten days before her films the application for impleadment under Order 1 Rule 10 CPC m suit bearing number CS (OS) 2166/1990. The present suit came to be filed on 12th March, 2007 by the appellant / plaintiff. It is also an admitted fact that she filed an application being IA No. 11875/ 2006 under Section 55 of Indian Trust Act, 1882 in suit being CS (OS) No. 2166 of 1990 claiming her rights on the basis of the Will and seeking withdrawal of the rent of the properties deposited by the tenants. The said application of the appellant/ plaintiff came to be dismissed by Justice Sanjay Kishan Kaul of this Court vide order dated 29th May, 2007. Admittedly the said order has not been challenged by the appellant/ plaintiff and has attained finality. The appellant thereafter got her name deleted from the array of defendants in CS (OS) No. 2166 of 1990 vide order dated 3rd December 2009 of the said this Court. It is further an admitted fact that appellant also filed a suit being CS(OS) No. 2272/2001 in this Court claiming relief for her maintenance and that the same has been withdrawn by her.