GOPAL CHAND Vs. MOHENDER MALHOTRA AND ORS.

JUDGEMENT

(1.) THE plaintiff/respondent No. 1 herein instituted a suit against the defendants for partition of the suit property held by them as co -owners, besides the relief of rendition of accounts qua the suit property was claimed in the suit instituted by the plaintiff/respondent No. 1 herein. On the learned trial Court having struck apposite issues, on the pleadings set up by the parties in their respective plaint, written statement, besides in the replication furnished by the plaintiff/respondent No. 1 herein to the written statement instituted by the defendants, the plaintiff/respondent No. 1 herein instituted an application under Order 6, Rule 17 of the CPC before it seeking its leave to incorporate in the plaint the amendments comprised in paragraph No. 2 of the application which stand extracted hereinafter: - -

(2.) THE application as preferred by the plaintiff/respondent No. 1 herein before the learned trial Court was opposed by the petitioner herein/defendants by fling a reply to it.

(3.) A perusal of paragraph No. 2(d) of the application at hand unfolds the factum that one of the parties to the lis has alienated his share in the undivided holdings held jointly inter se the parties at lis yet it emanates on a reading of the aforesaid paragraph of the application at hand that the sale consideration received by the co -owner who sold his share in the joint property has been kept in the joint kitty. Obviously, then when on the suit for partition/rendition of accounts instituted by the plaintiff/respondent No. 1 being decreed, the amount of sale consideration derived by a co -owner by selling his share in the property reflected in paragraph No. 2(d) of the application at hand, would in proportion to their share in the joint property be allotted to each of the co -owners. Hence, when the counsel for the petitioner herein/defendant No. 2 does not contest the factum of the property depicted in paragraph No. 2(d) of the application at hand being partitionable inter se the parties at lis, it being an undivided holding jointly held by them as co -owners, as such, even if a co -owner in the joint property reflected in paragraph No. 2(d) of the application at hand has sold his share therein and has received the sale consideration thereof which stands constituted in a joint kitty, it is deemed fit and appropriate that the order rendered by the trial Court permitting the incorporation in the plaint the averments comprised in paragraph No. 2(d) of the application be not interfered with, especially when on a decree for partition by metes and bounds of the joint holdings as also for rendition of accounts having come to be rendered by the learned trial Court, the property manifested in paragraph No. 2(d) of the application, would not only come to be subjected to its partition by metes and bounds amongst them besides, in proportion to the share held by each of the co -owner in the joint property or undivided holdings, they would receive a share in the sale consideration derived by a co -owner by his alienating his hare in the joint property.