Delhi District Court
Poonam Ahluwalia vs Krishna Karanwal on 18 February, 2016
IN THE COURT OF SHRI RAJ KUMAR CHAUHAN : ADDITIONAL DISTIRCT
JUDGE04 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No. 460/14
Poonam Ahluwalia ............Plaintiff
Versus
Krishna Karanwal .............Defendant
ORDER
1. Defendant has moved an application under order VII Rule 11 (d) r/w Section 151 CPC inter alia alleging that the plaintiff has instituted the present suit for partition, permanent injunction, mandatory injunction and rendition of account on the ground that Mrs. Desh Kumari who was elder sister of plaintiff had died intestate and issue less on 03.07.2012; it is further alleged that husband of Mrs. Desh Kumari had already died 10 years ago before her death; It is further stated that it is alleged by plaintiff that Mrs. Desh Kumari was the owner and in possession of property bearing no. E7/12, Second Floor, Opposite Geeta Mandir, Malviya Nagar, New Delhi110007 (herein referred as suit property) and she ....1 of 13 was also the owner of movable properties such as jewellery, cash, documents etc.
2. It is further stated that plaintiff has alleged that Mrs. Desh Kumari has left behind the plaintiff and the defendant as only legal heirs being her real sisters and as such after her death the plaintiff and defendant are entitled to have 50% share each out of the estate left by their sister Mrs. Desh Kumari including in the suit property. The plaintiff has therefore prayed for partition of movable as well as immovable property having been left by deceased Mrs. Desh Kumari. It is further alleged in the application that the defendant by filing the WS has contested the suit stating that the plaint does not disclose any cause of action and is accordingly liable to be rejected. It is further alleged in the application that after death of Mrs. Desh Kumari neither the plaintiff nor the defendant became the legal heirs of their sister Mrs. Desh Kumari as per Section 15 of the Hindu Succession Act, 1956 because as per Section 15 (1) Hindu Succession Act if a Hindu female dies intestate then her property shall be devolved in the following manner as per Section 16 of the aforesaid act:.
(a) Firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and also the husband;
(b) Secondly, upon the heirs of the husband;
(c) Thirdly, upon the mother and father;
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(d) Lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in subsection (1),
(a) any property inherited by a female Hindu from her father or mother
shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heir of the father; and
(b) any property inherited by a female Hindu from her husband or from fatherinlaw shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heir of the husband and Section 16 of the said Act provides that the order of succession referred to in Section 15 shall be according to rules 1, 2 and 3 of Section 16.
3. It is further stated that Mrs. Desh Kumari has not left behind her either a son or a daughter or any children of her predeceased son or daughter and as her husband had also died before her death and as such the properties of the deceased Mrs. Desh Kumari shall devolve upon the heirs of her husband and not on the plaintiff or on the defendant in as much as Mrs. Desh Kumari was the absolute owner of the aforesaid property because she has purchased the same from Sh. Prem Chand ....3 of 13 Goel by means of agreement to sell dated 10.06.1993 and as such neither the plaintiff nor the defendant is an heir of the husband of the deceased Mrs. Desh Kumari.
4. It is further stated that as per section 8, 9 and 10 of Hindu Succession Act if there is no heir of Class 1 Hindu female, then property would devolve upon the heirs being the relatives specified in Class II of the schedule and as per Section 9 of the said Act those in first entry in Class II shall be preferred to those in second entry, those in second entry shall be preferred to those in third entry, and so on in succession. It is further stated that husband of deceased Mrs. Desh Kumari had died in 1997 leaving behind his brother Sh. Ravinder Singh who was a teacher in Delhi Public School, Mathura Road, New Delhi and Sh. Ravinder Singh had died in 2007 leaving behind him Sh. Harjeet Singh as his son, Ms. Komal as his daughter and also his wife; wife and daughter of Late Sh. Ravinder Singh have been living in House No. 57, Bilaspur, Tehsil Ram Garh, Rajasthan and aforesaid son of Sh. Ravinder Singh is at present living in Canada. It is further stated that after the death of Mrs. Desh Kumari her heirs are Sh. Harjeet Singh and Ms. Komal being the son and daughter of Sh. Ravinder Singh who was the brother of her husband Sh. Satnam Singh as provided in entry no. (IV) of Class II of the aforesaid Schedule and neither the plaintiff nor the defendants are the heirs of ....4 of 13 deceased Mrs. Desh Kumari and as such the plaintiff has no locus standi to file the present suit.
5. It is further stated in the application that the plaint is liable to be rejected for devoid of cause of action and the relief claimed is under valued or the plaintiff has failed to make up the deficiency in the court fees or that the plaint itself appears to be barred by law. It is therefore stated that the present suit is barred by the provisions of Hindu Succession Act, 1956 and therefore plaint is liable to be rejected under the provision of Order VII Rule 11 (d) CPC.
6. The plaintiff has filed reply to the application and taken preliminary objection to the effect that the application is not maintainable because it is hit by principle of Resjudicata as the similar issues raised by defendant were already declined by the present court during the course of the arguments on the application under order XXXIX Rule 1 & 2 CPC and under order XIV Rule 2 CPC vide order dated 05.01.2013.
7. On merit it is stated that there is a legal and valid cause of action accrued in favour of plaintiff and against the defendant; Section 15 of Hindu Succession Act has already been discussed by the present court at page no.2 of the order dated 05.01.2013 and the said order has not been assailed by defendant and has attained finality. The defendant is trying to create confusion to mislead the court.
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8. It is further stated that the suit property was self acquisitions of the deceased Mrs. Desh Kumari and as such rules of devolution as applicable to father's mother's or husband's cannot be invoked.
9. He further stated that neither heirs of her husband survive nor there any such claimants and the defendant cannot make such averments on their behalf when she claims herself to be the purchaser vide agreement to sell dated 10.06.1993; it is further stated that Section 8, 9 and 10 of Hindu Succession Act are being wrongly construed by the applicant; neither Ravinder Singh (now deceased) nor his heirs have any right, title or interest in the suit property; the plaintiff and defendant are the heirs of Mrs. Desh Kumari and for that reason the plaintiff has locus standi to file the present suit.
10. All averments in the application has been controverted and denied.
11. Both the plaintiff and defendant has filed written arguments in support of application and reply thereto.
12. In the written arguments the defendant/applicant has primarily reproduced the averments of the application and in addition it is argued that the suit has been filed without any cause of action and for that reason the defendant has filed the application under order 7 Rule 11 CPC for rejection of the plaint because the suit is barred under section 15 Hindu Succession Act 1956. With regard to the contention in reply to ....6 of 13 the application with regard to the bar of resjudicata, it is argued that the contention of the plaintiff is totally false and wrong because the Ld. Predecessor of this court has not decided the question of plaintiff being heir of Late Mrs. Desh Kumari while deciding the application of plaintiff under order 39 Rule 1 & 2 CPC dated 05.01.2013 or while deciding the application of defendant filed under section 14 Rule 2 CPC vide order dated 05.10.2013. It is further argued that vide order dated 05.10.2013 the Ld. Predecessor of this court has observed that since issue whether the plaintiff and defendant are the LRs of deceased Mrs. Desh Kumari or whether the plaintiff has no cause of action were not pure question of law and required evidence so that issues could not be treated as preliminary issue and for that reason the said order had not at all discussed the question whether the plaintiff or defendant are the LRs of deceased Mrs. Desh Kumari or not.
13. In the the written arguments the defendant/applicant has referred and relied the case of "AIR 1996 Madras 369" alongwith case reported as "(2005) 7 Supreme Court Cases 510", "VI (2005) SLT 529", "2006 V AD (DELHI) 198", "217 (215) DLT 79 (DB)", 1978 (1) All India Rent Control Journal 33. All these cases except the case of AIR 1996 Madras 369 relates to the filing of the application under order 7 Rule 11 CPC. The case of the Madras High Court refer (Supra) relates to the ....7 of 13 devolution of a female Hindu as provided in Section 15 (1) of Hindu Succession Act.
14. In the written arguments the plaintiff has argued that Late Mrs. Desh Kumari sister of parties died intestate and issueless on 03.07.2012 and her husband had expired about 10 years ago before her death and accordingly the plaintiff and defendant are entitled to 50% share of the estate left by her.
15. The plaintiff has also reiterated the contents of the reply in the written arguments stating that Section 8, 9 and 10 of Hindu Succession Act are wrongly construed by the defendant. It is further argued that the citation of "AIR 1996 Madras 369" relied by the defendant/applicant pertains to the property gifted to woman by her parents and the woman died intestate. It is argued that in the present case the property of Late Smt. Desh Kumari are self acquired property, therefore, the rule of succession under section 15 (1) would proceed as under:
(a) Firstly, upon the sons and daughters. In this case, Ms. Desh Kumari died issueless.
(b) Secondly, upon the heirs of the husband. In this case, there have been no heirs of husband because even Desh Kumari was not blessed with any children.
(c) Thirdly, upon the mother and father. In the present case, mother and ....8 of 13 father of Ms. Desh Kumari had already expired.
(d) Fourthly, upon the heirs of father. In the present case, the plaintiff and defendant are the heirs of their father.
(e) Lastly, upon the heirs of the mother. In the present case, the plaintiff and defendant are the heirs of their mother.
16. It is therefore argued that the suit of the plaintiff is not barred under any law as is construed by the defendant because the order of succession and manner of distribution amongst heirs of a female Hindu shall be governed by Section 16 & 18 of the Hindu Succession Act, 1956. It is further argued that the defendant/applicant has to choose as to whether she made claim as LR of deceased or as a purchaser of the suit property from the deceased. It is further argued that since the defendant has claimed that she had purchased the estate in question from the deceased Mrs. Desh Kumari then she has to prove her title, right and interest on the basis of GPA etc and specific issues have been framed with regard to the maintainability of the suit and also about the point raised about limitation as the Ld. Predecessor of this court has already decided that those questions are not the pure question of law as also raised in the present applications and need to be proved by the parties by leading evidence. It is further argued that the application is frivolous and liable to be dismissed with heavy cost.
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17. Ld. counsel for plaintiff has referred and relied the case of "AIR 1991 Kerala 10", "AIR 2005 Andhra Pradesh 26", "220 (2015) DLT 597".
18. I have considered the rival submissions and carefully examined the case file.
19. On perusal of order dated 05.10.2013 of Ld. Predecessor on the application under order 14 Rule 2 (2) CPC of the defendant/applicant it is found that the said application was moved for treating the issue no.1 and 2 as preliminary issues which are as under: (1) Whether the plaintiff and defendant are the legal heirs of deceased Mrs. Desk Kumari? OPP (2) Whether the plaintiff has no cause of action? OPD
20. All the points raised in the present application has been raised by the defendant/applicant in their application under order 14 Rule 2 (2) CPC. All those points were discussed by my Ld. Predecessor including the provision of Section 15 of Hindu Succession Act. The findings of Ld. Predecessor in order dated 05.10.2013 in para no.13 to 18 are relevant and reproduced as under: Para no. 13: Plaintiff has filed the present suit on the averments that the suit property vested in the name of Mrs. Desh Kumari who was the sister of plaintiff and after her death, plaintiff and defendant being the only legal heirs are entitled to 50% share each, in the estate left behind by their deceased sister.
Para no.14: Whereas, the contentions of defendants are that ....10 of 13 the defendant is the owner of the suit property by virtue of GPA, SPA, possession letter, agreement to sell and Will executed in her favour by Late Mrs. Desh Kumari. The defendant had relied upon notarized documents which are yet to be proved in the trial.
Para no.15: I am of the view that issue no.1 also is not a pure issue relating to the law as it also requires evidence as to whether the deceased executed Will and agreement to sell bequeathing her property to defendant or whether the plaintiff and defendants are the only legal heirs of deceased Mrs. Desh Kumari.
Para no. 16: As regards the issue no.2 the onus of which is on the defendant, it has to be proved by the defendant that she is the owner of the suit property by virtue of agreement to sell and will executed in her favour by late Mrs. Desh Kumari. The said issue cannot be decided without the evidence lead by the parteis as plaintiffs had laid her claim to the suit property being the legal heirs and has challenged the will being forged and fabricated.
Para no.17: I am of the view that the judgment relied upon by Ld. Counsel for defendants are distinguishable as the issues no.1 and 2 were not related to pure question of law. Para no.18: Thus, issue no.1 and 2 cannot be decided as preliminary issue. The application is dismissed.
21. Thus it stands clear from the above observation and findings of the Ld. Predecessor that the issues as to whether the plaintiff and defendant are LRs of deceased sister Mrs. Desh Kumari or whether the plaintiff has cause of action to file the present suit cannot be treated as preliminary issue as the same were not pure question of law and needed evidence of the parties for deciding the same.
22. Admittedly, the order dated 05.10.2013 was not questioned by the defendant/applicant either by filing a review application before this court ....11 of 13 or by filing any appeal against the said order before the Hon'ble High Court. The said order has attained finality. The present application under order 7 Rule 11 CPC was filed on 18.12.2013 after about two and a half months of the said order. The point raised by the defendant in their application under order 14 Rule 2 (2) CPC and disposed off in the order dated 05.10.2013 has been again taken in the present application asking the court to dismiss the suit of the plaintiff company being barred by law under order 7 Rule 11 (d) CPC. Since the Ld. Predecessor in the order dated 05.10.2013 has already decided that the points raised with regard to the plaintiff and the defendant whether being LRs of deceased Mrs. Desh Kumari or whether the plaintiff has cause of action to institute the present suit needed evidence and are not pure question of law, therefore, this court cannot entertain those points again because in case those points are again considered by this court, it would amount to review of the order dated 05.10.2013 which this court cannot do at this stage of hearing. Since the defendant/applicant has not challenged the order dated 05.10.2013, therefore, the defendant/applicant are considered to have accepted that the points raised with regard to the plaintiff having no cause of action and whether the plaintiff and defendant are LRs of deceased Mrs. Desh Kumari are not pure question of law as is being claimed in the present application. Because of these reasons, I ....12 of 13 am of the considered opinion that the application under order 7 Rule 11 CPC is not maintainable and accordingly the same stands dismissed.
(RAJ KUMAR CHAUHAN) ADJ04 (South) Saket Courts / New Delhi 18.02.2016 ....13 of 13