KAMLA Vs. SANTOSH DEVI & ORS

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no.6 in the suit impugning the judgment of the trial court dated 10.8.2005, by which the trial court has passed a preliminary decree of partition of the suit property bearing No. 19/29/1, West Moti Bagh, Sarai Rohilla, Delhi (as shown in the site plan Ex.PW1/2) determining the shares of the plaintiffs together as 1/3rd jointly and shares of the defendant nos. 1 and 2 as 1/3rd each. appellant/defendant no.6 has been denied any right, title and interest in the suit property.

(2.) At the outset I may note that all the parties to the suit have not been made parties to the present appeal. Only the plaintiffs have been made as respondents in this appeal and are represented through Advocate but this will have no bearing for the allowing of this appeal as discussed hereinafter. There were a total of six defendants in the suit with defendant nos. 1 and 2 being the sons of late Smt. Sarti Devi who owned the suit property. Defendant nos. 3, 4 and 5 were the daughters of late Smt. Sarti Devi. Appellant/defendant no.6 was not originally impleaded as party to the suit but she was impleaded subsequently by allowing of an application filed by her under Order I Rule 10 CPC as she claimed to be the daughter of Sh. Ram Dhari the pre-deceased son of Smt. Sarti Devi.

(3.) It is seen that three shares have been granted, in the suit property, being 1/3rd each to the three sons of late Smt. Sarti Devi with respondents/plaintiffs representing branch of one son Sh. Om Prakash and the other two sons being the defendant nos. 1 and 2 namely Sh. Jagdish Chand and Sh. Shyam Lal. Sh. Jagdish Chand did not appear in the suit did not contest the same and was proceeded Ex-parte. Suit was also not contested by defendant nos. 3 to 5 being the daughters of late Smt. Sarti Devi ie the daughters claimed no rights in the suit property and which is because the plaintiffs/respondents in suit plaint had pleaded that the daughters of Smt. Sarati Devi, being defendants Nos. 3 to 5 in the suit, had by virtue of family settlement of August/September, 1999 relinquished their shares in favour of respondents/plaintiffs and the defendants Nos.1 and 2 being the three sons/branches of Smt. Sarati Devi. Affidavits, proved as Ex Ex.PW 1/3 to Ex.PW1/5, were accordingly executed in terms of the family settlement. Defendant nos. 2 and 6 filed a joint written statement and defendant no.2 has admitted to the rights of appellant/defendant no.6 as the daughter of the pre-deceased son Sh. Ram Dhari who was the son of Smt. Sarti Devi.