S JASDEEP SINGH Vs. S KEHAR SINGH

JUDGEMENT

(1.) The plaintiff herein has filed the present suit praying for a decre of declaration against the defendants declaring that the oral partition dated January 5, 1989 and subsequent memorandum dated February 12, 1989 and the entire proceedings and judgment and decree dated November 6, 1989 passed in Suit No. 483/1989 by the Sub Judge, Delhi, in respect of house property No. W-18, Greater Kailash-I, New Delhi, are null and void, and also for a decree of partition in respect of the aforesaid property declaring the plaintiff and the defendants to be entitled to 1/6th share each in the said property.

(2.) The aforesaid suit was contested by defendants 1,2,4,5,7 and 9 by filing their written statement, whereas the remaining defendants have not entered appearance and, therefore, they have been proceeded ex parte. The aforesaid defendants in their written statement have pleaded that the present suit filed by the plaintiff, who is the son of defendant No.3, is not maintainable as he does not have any locus standi to file the present suit. It was submitted on their behalf that the plaintiff does not have any right or interest in the aforesaid property as under the provisions of the Hindu Succession Act, the plaintiff during the life time of his father cannot claim any right or interest in the share of his father's property. It was also pointed out that the defendant No.3 agreed to the partition of the suit property and to receive his share in the property including his lineal descendants which has become final and binding on the parties. It is also pointed out that earlier another brother of the plaintiff and a son of defendant No.3 filed another suit, being Suit No. 318/1997, in which a similar objection was taken by the present contesting defendants that the suit was not competent. In support of the said contention in the said suit, reference was made to the pleadings in paragraph 17 of the plaint in Suit No. 318/1997 wherein it was stated to the effect that defendant No.3 had relinquished his part of the share of the suit property in favour of his son S. Harminder Singh, the plaintiff in the said suit, and that the plaintiff was, therefore, legally entitled to 1/8th share in the suit property. As there was no such document to that effect and in support of the said plea, the said suit was withdrawn and it is stated that the present suit is actually being filed by defendant No.3 through his younger son, the present plaintiff. In the light of the aforesaid pleadings of the parties, a preliminary issue was framed in this suit to the following effect:- " Whether the plaintiff has any locus standi to file the present suit."

(3.) After framing the said preliminary issue, the court ordered that the aforesaid issue be placed for arguments. The order sheet of the suit also discloses that the aforesaid preliminary issue was heard by this Court and the order was reserved as is clear from the order dated September 11, 2002. However, in the meantime the concerned judge having retired, the matter was again directed to be listed for final arguments. At that stage, defendant No.3 filed an application which is registered as I.A. No. 1570/2004 praying for transposition of defendant No.3 as plaintiff No.2. Reply thereto has also been filed by the defendants 1, 2, 4, 5, 7 and 9 opposing the said prayer. The said application was also listed for arguments and accordingly I heard the learned counsel appearing for the plaintiff, defendant No.3 and defendants 1,2,4,5,7 and 9 on the said application also, while hearing arguments on the preliminary issue. By this common order I propose to dispose of the said application as also give my decision on the preliminary issue framed by this Court.