Delhi High Court
Goutam Bhadra & Anr. vs Gouri Bhadra & Anr. on 26 March, 2014
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, Deepa Sharma
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: March 26, 2014
+ RFA (OS) 68/2014
GOUTAM BHADRA & ANR. .....Appellants
Represented by: Mr.Rajesh Sharda, Advocate
versus
GOURI BHADRA & ANR. .....Respondents
Represented by: None
CORAM:
HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
HON'BLE MS.JUSTICE DEEPA SHARMA
PRADEEP NANDRAJOG, J. (Oral)
1. Having heard learned counsel for the appellants we find no case made out to even issue a notice in the appeal which lays a challenge to an order dated February 19, 2014 passed by a learned Single Judge of this Court in CS (OS) No.1525/2012 passing a preliminary decree declaring the respondents and appellant No.1 to be having 1/3 rd share each in property No.D-690, Chitranjan Park, New Delhi.
2. Late Sh.Prosun Kanti Bhadra was the owner of property No.D-690, Chitranjan Park, New Delhi. He died intestate on June 21, 2003. He was survived by his wife Ms.Gouri Bhadra, daughter Ms.Swapna and son Sh.Goutam Bhadra.
3. The mother and the daughter sued for partition claiming to be Class I heir of the deceased and needless to state pleaded that the mother and the daughter had 1/3rd share each in the estate of the deceased and the remaining 1/3rd was that of the appellant No.1, who was impleaded as RFA (OS) 68/2014 Page 1 of 5 defendant No.1 in the suit and his wife the second appellant was impleaded as defendant No.2.
4. The appellants filed a written statement admitting that the suit property was the self acquired property of the deceased who died intestate on June 21, 2003. Admitting the relationship of the parties as pleaded in the plaint the right of the respondents was refuted by pleading a defence under Section 23 of the Hindu Succession Act, 1956 and secondly on the plea that 'a consensus family settlement had taken place in the year 1992 during the life time and under the guidance of the deceased'. It was pleaded that as per the settlement the property in question was agreed to be belonging to the first appellant. It was further pleaded that as per the consensus family settlement the respondent No.2 i.e. the daughter of the deceased was given financial help to purchase a flat at Noida. Thirdly on the plea that during his life time the deceased had made a declaration that the property shall devolve on appellant No.1.
5. The view taken by the learned Single Judge is that on account of amendment to the Hindu Succession Act, 1956 with effect from September 09, 2005, Section 23 being deleted from the statute book, the first defence could not be urged and thus no issue was required to be settled on said plea.
6. The second plea pertaining to a family settlement has been held to be no plea in the eyes of law because the pleading is vague.
7. The third defence pertaining to an oral declaration made by the deceased during his life time has not been noted by the learned Single Judge probably for the reason his attention was not drawn thereto; as recorded in the order the counsel for the appellants just kept on praying for the matter to be adjourned.
8. Learned counsel for the appellant concedes that the defence under RFA (OS) 68/2014 Page 2 of 5 Section 23 of the Hindu Succession Act, 1956 is not available because the said Section has been deleted from the statute book with effect from September 09, 2005 and it is irrelevant that the deceased had died prior to the amendment. The reason being that Section 23 was an embargo on the rights of females to seek partition of a dwelling house in which they had inherited a share till the male members chose to effect partition. With the deletion of the Section, the embargo has been lifted.
9. With respect to the two pleas of a family settlement and an oral declaration statedly made by the deceased, pertaining to the oral declaration suffice it to state that it is not the case of the appellants that the deceased had made an oral Will or there was an oral gift. If the appellants intended to plead that the deceased had made either an oral Will or had made an oral gift, they had to plead so. Needless to state if the plea was of an oral Will, the same would have been a privileged Will as contemplated by Section 65 of the Indian Succession Act, 1925 and it could be made and proved as per Section 66 thereof. It is not the case of the appellants that the deceased was a soldier and was employed in an expedition or engaged in warfare. If the intention was to plead an oral gift, it had to be pleaded specifically that during his life time the deceased gifted the property to the son. The said plea had to be made good with reference to the acceptance of the gift. The plea had to be made good with reference to the law as to when an oral gift can be made and what would constitute a material pleading concerning an oral gift. Thus, the so called oral declaration pleaded is as vague as vagueness can be. It is no plea in the eyes of law.
10. As regards the so called family settlement, except for pleading that a family settlement took place in the year 1992, when the deceased was alive, no particulars of the day or the month or the place where the family RFA (OS) 68/2014 Page 3 of 5 settlement took place has been pleaded. Further, the vague plea that as per the settlement the deceased financed his daughter to purchase a flat in Noida is again no plea in the eyes of law. No particulars of the flat statedly purchased in the name of the daughter of the deceased have been disclosed. What amount and when was paid has not been disclosed.
11. An issue has to be settled, as is apparent from Order XIV Rule 1 of the Code of Civil Procedure, where a material proposition of fact or law is affirmed by one party and denied by the other. We cannot but overlook the use of the word 'material' in sub-Rule (1) of Rule 1 of Order XIV of the Code which reads : 'Issues arise where a material proposition of law is affirmed by the one party and denied by the other.'
12. It is trite that material propositions are those propositions of law or fact which a plaintiff must alleged in order to show a right to sue or a defendant must alleged in order to constitute his defence.
13. It is settled law that pleadings of parties have to be read meaningfully and not pedantically. Pleadings of parties have to be clear and not blurred, slurred or contrived. As was observed by the Supreme Court in the decision reported as 2011 (6) SCALE 677 Ramrameshwari Devi vs. Nirmal Devi (para 52) the pleadings are the foundation of a claim by a party and it is the bounden duty of the parties to lay their claim precisely and it is the duty of the Court to carefully scrutinize the pleadings as also the documents on which the pleadings are predicated. In the decision reported as AIR 1999 SC 1464 D.M.Deshpande vs. Janardhan Kashinath Kadam the Supreme Court highlighted the relevance of pleading material facts to constitute a claim or a defence thereto with reference to the decision of the Bombay High Court reported as AIR 1982 Bom.491 Nilesh Construction Co.vs. Gangu Bai, where, with reference to a plea of tenancy the Bombay High Court highlighted RFA (OS) 68/2014 Page 4 of 5 that the pleadings must disclose the details with reference to the day when the tenancy was created and the exact nature thereof; holding that it would be an insufficient pleading to constitute a defence for the defendant to simply plead that he was a tenant under the plaintiff. In the decision reported as AIR 2006 SC 1828 Mayar (H.K.) Ltd. & Ors. vs. Owners & Parties Vessel MV Fortune Express the Supreme Court highlighted requirement to read pleadings meaningfully keeping in view the relied upon documents and see whether the pleading is meaningful; not illusory or vexatious. Illusory or vexatious pleadings would be no pleadings to challenge a material proposition of fact or law affirmed by one party.
14. We concur with the view taken by the learned Single Judge that the vague pleadings sans any material particular does not warrant any issue to be settled between the parties and since the deceased admittedly died intestate and survived by his wife, a son and a daughter, being a Hindu, his estate was inherited by the three each having 1/3rd share therein.
15. The appeal is dismissed in limine but without any orders as to costs.
CM No.5535/2014Dismissed as infructuous.
(PRADEEP NANDRAJOG) JUDGE (DEEPA SHARMA) JUDGE MARCH 26, 2014 mamta RFA (OS) 68/2014 Page 5 of 5