RAM PRASAD Vs. MOHAN LAL

JUDGEMENT

(1.) A simple but interesting question of law falls for consideration before the Court in the present appeal. The suit of the plaintiff for partition was dismissed by the learned Trial Court on the ground that the subject matter of the suit was covered by Section 60 of the Delhi Cooperative Societies Act, 1972, (hereinafter referred to as 'the Act') and while rejecting the plaint under Order 7 Rule 11 of the Code of Civil Procedure (for short 'CPC'), dismissed the suit with costs. It is contended that this approach of the learned Trial Court is contrary to the settled principles of law. Thus, the question arises, whether the bar of Section 60 of the Act was attracted in the facts and circumstances of the present case?

(2.) Parties to the suit are brothers. They all were living at House No.43, Suraj Nagar, Delhi. According to the plaintiff, the plot was purchased and construction was raised thereupon by the father of the parties. It is submitted that these constructions included shops, godowns etc. and there were even tenants in the said property. After the death of Sh. Munshi Lal (father of the parties), the parties along with their mother started residing in the property and the mother became a co-owner along with the other legal heirs of the deceased-father. After the death of the mother, the plaintiff and the defendants became the co-owners in equal shares i.e. to the extent of 1/3rd share. It is submitted that though, the defendants had been realising the rent from different tenants even during the lifetime of their mother, however, they did not give any money to the plaintiff. Earlier, the plaintiff had filed a suit and as certain new developments occurred and further facts came to the knowledge of the plaintiff, he filed the present suit for partition taking into consideration the averments which were made by the defendants in their written statement filed by them in the earlier suit. According to the plaintiff, he is entitled to 1/3rd share as a co-owner of the property left by his late father but as the defendants were not giving any share to him nor were they giving any benefits of the property including the rents collected by them earlier, the plaintiff has filed the present suit with the following prayers:-

(3.) The defendants filed the written statement on 11.9.1995 taking various preliminary objections including that no cause of action had arisen against the defendants and in favour of the plaintiff; the plaintiff had not come to the court with clean hands and the suit was bad for non-joinder of parties as 'The Low Income Friends Co-operative House Building Society Ltd.' was a necessary party. The defendants denied to state as to how the property was purchased. It was also denied that the plaintiff had never resided in the said property. The defendants stated that the defendant no.2 was carrying on the business of tailoring in one of the shops during the lifetime of Sh. Munshi Lal with his wish and will. They were nominated and after his death on 5.10.1980, the defendants approached the society for transfer of shares. The Society after verifying the documents on 26.7.1980 transferred the shares in the joint name of the defendants and on the date of filing of the suit, the property had not been mutated in their names. Thus, it was stated that the defendants were in no way interested in the welfare of the family, and had not even bothered to check-up on their mother during her lifetime and in these circumstances it was submitted that the suit be dismissed.