MAHESH DHINGRA Vs. KAMLA DHINGRA

JUDGEMENT

(1.) This is a suit for partition and rendition of accounts. The defendant No.2 is the sister of the plaintiff. They were both born to G.L.Dhingra and Padma Dhingra in Pakistan before the partition of the country in 1947. The properties of which the plaintiff seeks partition are in the possession of the defendant No.1, who allegedly married to late J.D.Dhingra, the brother of late G.L.Dhingra and uncle of the plaintiff and the defendant No.2. The plaintiff claims that he and the defendant No.2 were adopted in their childhood by J.D.Dhingra and were, therefore, heirs to the properties of J.D.Dhingra. The plaintiff and the defendant No.2 at the same time dispute that the defendant No.1 was ever married or was validly married to J.D.Dhingra. The defendant No.1, on the other hand, disputes that the plaintiff and the defendant No.2 were ever adopted by J.D.Dhingra and his late wife, Sheel Dhingra, who happened to be the sister of the defendant No.1. This is the gist of the entire gamut of the case. It is necessary to state in the beginning that there are several sets of plaints, written statements and replications as the defendant No.1 had to contest the plaint as well as the written statement of the defendant No.2. The defendant No.2 also filed a reply to the written statement of the defendant No.1. The plaintiff also came out with further facts in his replication and thereafter also amended the plaint. Sans details, the pleadings as they chronologically appear are given below. The pedigree will help to understand the relationship of various persons whose names will appear in this judgment:

(2.) The brothers, G.L.Dhingra and J.D.Dhingra, with their respective wifes, Padma and Sheel Dhingra, were settled in Leiah in Lahore and migrated to India following partition. On migration from Pakistan the family settled at 33/B, Pusa Road, New Delhi. The plaintiff and the defendant No.2 were being looked after by J.D.Dhingra and Sheel Dhingra. In or around 1955 G.L.Dhingra being a widower proposed to remarry. Before G.L.Dhingra remarried, as agreed upon between G.L.Dhingra and J.D.Dhingra, the plaintiff and the defendant No.2 were given in adoption by G.L.Dhingra to J.D.Dhingra and his wife Sheel Dhingra and thereafter the plaintiff and the defendant No.2 came to be known to friends, relatives and to the world at large as children of J.D.Dhingra and Sheel Dhingra and they ceased to have any right as members of the family of G.L.Dhingra. Sheel Dhingra died in February, 1968. G.L.Dhingra expired in July, 1973 leaving behind his second wife, Shanta, and two children born from his wedlock with Smt. Shanta. G.L.Dhingra by his last will had bequeathed all movable and immovable properties to his second wife, Shanta, to the total exclusion of the plaintiff and the defendant No.2. In or around 1973, the defendant No.1, the real sister of Sheel Dhingra, a mother of five children, aged about 53 years started living with J.D.Dhingra. The defendant No.1 claimed to have obtained a decree of divorce from her previous husband, Prof. Gupta, and has been holding out to have remarried J.D.Dhingra. No issue was born out of the alleged wedlock between the defendant No.1, Kamla Gupta, and J.D.Dhingra. The defendant No.1 accepted the plaintiff and the defendant No.2 as children of J.D.Dhingra. J.D.Dhingra acquired various properties of considerable value during his life time. He died intestate on 8.11.1983. The properties left behind by J.D.Dhingra are set out in Schedule A to the plaint which devolved completely and absolutely on the legal heirs and successors left behind by J.D.Dhingra in equal share. The same are required to be divided equally between the parties to this suit. Apart from the properties set out in Schedule A there are other properties and the plaintiff is making his best efforts to identify those properties. At the time of death of J.D.Dhingra the plaintiff was living in United States of America and the defendant No.2 at Bombay with her husband. The defendant No.1 has been managing the properties left behind by J.D.Dhingra on account of the absence of the plaintiff. The defendant No.1 has not given any returns to the plaintiff from any of the properties. She has been selling off various properties and has been acting to the detriment of the interests of the plaintiff. It is, therefore, necessary that all the properties of J.D.Dhingra be partitioned and the defendant No.1 be made liable to render truthful and correct account of all the properties and accretions thereto. The defendant No.1 has failed to comply with the requisitions made by the plaintiff for partition and accounts. The properties left behind and given in Schedule A would approximately value Rs.50 lakhs and the income expected by the plaintiff out of the accruals from those properties is to be Rs.5 lakhs, on which fixed court fees have been paid. Hence, the suit for a decree for partition by metes and bounds and for a declaration, that the plaintiff is entitled to joint enjoyment of usufructs of the properties which cannot be partitioned by metes and bounds and for a decree for rendition of accounts. The properties in respect of which the partition and rendition of accounts have been claimed are given in Schedule A. The Schedule is reproduced below:

(3.) The suit is not maintainable in its present form. The suit has been signed, verified and filed by a incompetent person, who is an alleged attorney. The plaint is not properly verified. The suit lacks in material particulars inasmuch as the date of birth, alleged date of adoption, particulars of the adoption have not been set out in the plaint. The plaintiff and the defendant No.2 were children of G.L.Dhingra and Padma Dhingra and have forever continued to be so. J.D.Dhingra's wife was Sushil Dhingra and not Sheel Dhingra and the plaintiff is not even aware of the correct name of the first wife of J.D.Dhingra. On migration J.D.Dhingra and G.L.Dhingra were in joint business and were living at 33/B, Pusa Road. J.D.Dhingra and G.L.Dhingra had been living in the joint family and the plaintiff and the defendant No.2 being the children of that family all the adults of the family took care of them. G.L.Dhingra remarried for the sake of the plaintiff and second defendant in or around 1956 and there was no decision or agreement between the two brothers as well as Sushil Dhingra about giving or taking in adoption of the plaintiff and the defendant No.2. There was no adoption of the plaintiff and the defendant No.2 by J.D.Dhingra and his wife. The proposal of G.L.Dhingra to remarry brought remorse to late J.D.Dhingra and Sheel Dhingra who were opposed to the marriage and the opposition led to a division between the two brothers in respect of their joint business and properties and thereafter the two parted company. In the partition the House No.33/B, Pusa Road fell to the share of G.L.Dhingra. J.D.Dhingra and his wife moved to 104, Golf Links, New Delhi. J.D.Dhingra started dealing in electronic items under the name and style of M/s. Envoys India Pvt. Ltd. from the Golf Link house and his business of insurance was set up under the name and style of J.D.Dhingra and Company run from the said house. This event of partition took place in 1956. J.D.Dhingra had got the plaintiff admitted in St.Colamba's School as guardian but subsequently G.L.Dhingra removed the plaintiff from the school and admitted him in Mayo College in Ajmer where the plaintiff studied upto 1962. The question of adoption of the plaintiff and the second defendant could not arise as no Hindu would give his only son in adoption. The alleged adoption of the plaintiff and the defendant No.2 could not have been the cause of G.L.Dhingra bequeathing his properties to his second wife. The defendant No.1 was the duly married wife of J.D.Dhingra. The marriage took place on 7.10.1973. She had obtained a divorce from her earlier husband from whom she had five children. The plaintiff in his legal notice dated 17.1.1984 admitted the defendant No.1 to be the wife of J.D.Dhingra. J.D.Dhingra did not treat the plaintiff and the defendant No.2 to be his adopted children although he extended a helping hand to both of them whenever there was any such need. J.D.Dhingra played the role of the father for the marriage of the second defendant as G.L.Dhingra vehemently opposed the marriage of the defendant No.2. Not all the properties mentioned in Schedule A belonged to J.D.Dhingra. One of the properties, namely, a plot of land bearing No.2758, Sector-8, Faridabad held in the joint name actually belonged to defendant No.1 while J.D.Dhingra was only a benamidar. She is making efforts to get all the other properties transferred to her name in the official records. The plaintiff is a Canadian citizen now married, third time, to Mary Joe, an American citizen. His Indian passport carried the name of G.L.Dhingra as his father. As J.D.Dhingra stood by everyone at times of stress and strains he was popular, particularly with the younger generation, on account of which he was also known as 'papa' amongst the younger ones and 'JD' to his contemporaries and he was termed as 'Jagat Papa' by the family. The defendant No.1 is in complete control of the assets left behind by J.D.Dhingra. The assets belong to her and, therefore, there is no question of her acting to the prejudice or detriment of the plaintiff. The plaintiff is only trying to take undue advantage of the solitary event of his admission to St. Columba's school by J.D.Dhingra. The plaintiff has no interest of any kind in the properties left behind by J.D.Dhingra nor did the plaintiff ever demand any partition. The valuation of the property given in the plaint are incorrect and the suit is liable to be dismissed. Additional Pleas