AMIT SINGH Vs. INDU SINGH AND ORS.

JUDGEMENT

(1.) THIS Appeal assails the Order of the learned Single Judge dated 26.3.2009 whereby the Consent Decree dated 7.7.2008 has been modified pursuant to one of the parties preferring an application under Section 151 of the Code of Civil Procedure, 1908 ('CPC' for short).

(2.) THE Suit prays for the partition of immovable property bearing No. 6/1, Roop Nagar, Delhi owned by Late Smt. Vidyawati who was the mother of plaintiff No. 1 and Defendants 1 and 2. Late Smt. Vidyawati was married to Late Shri Haridwari Lal and from this wedlock four children were born, namely, three daughters - plaintiff No. 1 and Defendants 1 and 2 and the legal representatives of plaintiff No. 2. The youngest daughter, namely, Late Ms. Usha Chaudhary did not marry and passed away in 2007. Her share, therefore, devolved as per law. Since her parents had pre -deceased her, her rights devolved upon her Class -II heirs. It has been alleged by Defendant No. 2, namely, Ms. Prem Chaudhary who had separated from her husband and who thereafter resided with her parents in the subject immovable property that she had been gifted the immovable property by her mother, Late Smt. Vidyawati. However, Ms. Prem Chaudhary has given -up her claims flowing from the alleged Gift Deed in favour of her sister, plaintiff No. 1 and the Estate of her late brother, represented by his daughter, plaintiff No. 2.

(3.) THE Partition Suit was filed on 8.8.2005. An Application under Order XXIII Rule 3 dated 29.4.2008 was allowed by which it was agreed that the immovable property, that is, 6/1, Roop Nagar, Delhi would be divided in equal shares between plaintiff No. 1 and Defendant No. 1 and their niece plaintiff No. 2. We shall ignore all other properties, movable or immovable, which were the subject -matter of the compromise and shall concentrate our attention on immovable property. The said compromise Application was supported by an affidavit of Shri Amit Singh who had by then been impleaded; as well as an affidavit of his wife, Smt. Jyotika Jogi. It appears to us that this was done because plaintiff 1 had agreed that her share in the immovable property "shall be given to her son, Amit Singh as per her wish and who will be impleaded as a party to the present suit, before the preliminary decree is passed as per the compromise between the parties.... It is agreed between the parties that plaintiff No. 1 and her son Mr. Amit Singh and his family who is claiming possession through plaintiff No. 1 would vacate the portion of the property in their occupation as soon as the buyer of the property is finalized by the parties. The Defendant No. 1 shall also vacate the premises under her occupation on or before the sale of the property is finalized".