S SATINDER SINGH Vs. SARDARNI RAMINDER

JUDGEMENT

(1.) Plaintiffs 1 and 2 and defendant no.2 are real brothers. Plaintiff no.3 is their sister and defendant no.1 Sardarni Raminder Sarup Singh is their mother. The plaintiffs have filed the civil suit seeking a declaration that the oral family understanding as stated in the plaint i.e. during the lifetime of Sardar Bahadur Sarup Singh (father of the plaintiffs), the will dated 4.6.1981 of their father and the will executed by defendant no.1 lying in the custody of ANZ Grindlays Bank, Shimla so far as it relates to property No.3 Sardar Patel Marg, New Delhi, the oral settlement of 20/10/1987 and the protocol dated 23/10/1987 besides the family arrangement of, 15/09/1988 besides the will of 17/09/1988 of defendant no.1 and of 10th June, 1992 are binding on all the plaintiffs and the defendants. It also seeks a declaration that the compromise by way of IA No. 10195/93 in Suit No. 3403/91 does not bind the plaintiffs because they were not parties to the same. In addition to that permanent injunction is claimed restraining the defendants from alienating, transferring, parting with possession or reconstructing, building at Sardar Patel Marg. Declaration is also being prayed that plaintiffs are entitled to 3/4th share or in the alternative a declaration that defendant no.1 is holding 3/4th share in the said property as benami for the plaintiffs.

(2.) During the pendency of the suit the defendant no.2 has filed the IA 4866/2000 under Order 12 Rule 6 Code of Civil Procedure seeking dismissal of the civil suit. By the present order the said application is proposed to be disposed.

(3.) It has been asserted that plaintiffs have made various averments in the plaint which stands disproved by their own act, omission and commission. It has been pleaded that the case of the plaintiff as averred in paragraph 19 and 25 of the plaint that property 3 Sardar Patel Marg was and is a family property and is being held by defendant no.1 as benami for the benefit of the members of the family as their trustee. In support of their contention they rely on paragraph 20 of the plaint and the will of 4/06/1988. Subsequent to the institution of the suit certain new developments are stated to have taken place where the plaintiffs by their own acts of commission have belied the averments on which the suit is based. It has been pleaded that plaintiffs have filed the suit on the premise that property in question is a family property and not self-acquired property of defendant no.1. Therefore, she has no authority/right in the eyes of law to create any title, right or interest in the property. However, on 26/02/1999 despite taking the aforesaid stand the non-applicants/plaintiffs accepted the gift deed from defendant no.1 with respect to the suit premises. Under the said gift deed the non-applicants/plaintiffs accepted the gift to the tune of 40% of the defendant no.1's share in the suit property. A rectification deed was of 16/04/1999 was also executed. Thereafter a letter was addressed by Land and Development Office to non-applicant in this regard. It is alleged that this conduct of non-applicants in accepting the gift with respect to the suit premises reveals the baselessness of the claims made in the present suit. It is a clear admission of the fact that suit property is not a family property as alleged in the plaint. These developments have been concealed from the court and accordingly it has been prayed that in terms of the said facts the suit is liable to be dismissed and Order 12 Rule 6 Code of Civil Procedure has been pressed into service.