Delhi District Court
Avani Kapur vs Smriti Talwar on 25 February, 2025
1 of 53
Suit No. 16470/16
Suit No. 485/17
IN THE COURT OF SH. DIVYANG THAKUR, LD. DJ-03,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
Civil Suits No: 16470/16, 485/17
CNR Nos. : DLSW01-002041-2016, DLSW01-003633-2017
Memo of Parties in CS No. 16470/16
Avani Kapur
D/o late Rajiv Kapur
R/o S-351, Panchsheet Park
Also resident of:
B-7, Pushpanjali Farms,
Village Bijwasan, New Delhi. ........Plaintiff
Versus
Smriti Talwar
R/o A-54, Ground Floor,
Defence Colony,
New Delhi-110054. ......Defendant
Digitally signed
by DIVYANG
DIVYANG THAKUR
THAKUR Date:
2025.02.25
16:03:43 +0530
Avani Kapur vs. Smriti Talwar
Smriti Talwar vs. Avani Kapur & Ors.
2 of 53
Suit No. 16470/16
Suit No. 485/17
Memo of Parties in CS No. 485/17
Dr. (Smt.) Smriti Talwar
(alias Smriti Talwar Kapur)
W/o late Sh. Rajiv Kapur
R/o B-7, Pushpanjali Farms,
Bijwasan, New Delhi.
Presently at :
A-54, Ground Floor,
Defence Colony,
New Delhi-110054. ...........Plaintiff
Versus
1. Ms. Avani Kapur
D/o late Sh. Rajiv Kapur
R/o S-351,
Panchsheel Park,
New Delhi.
2. Mrs. Suvira Kapur
Digitally
signed by
W/o late Sh. Shiv S. Kapur DIVYANG
THAKUR
DIVYANG
THAKUR
Date:
2025.02.25
16:03:49
R/o Flat No. 14-A, 45, Friends Colony,
+0530
(East), New Delhi. (suit abated)
3. Station House Officer,
Police Station Kapashera,
New Delhi. ...........Defendants
Avani Kapur vs. Smriti Talwar
Smriti Talwar vs. Avani Kapur & Ors.
3 of 53
Suit No. 16470/16
Suit No. 485/17
Date Of Institution: 02.01.2012 / 17.03.2011
Date Of Final Arguments: 11.02.2025
Date Of Decision: 25.02.2025
Suit for declaration and in the alternative for partition and
perpetual injunction /
Suit for mandatory and perpetual injunction with consequential
relief
JUDGMENT
BRIEF BACKGROUND OF THE LITIGATION
1. Vide present common judgment, I would decide two suits namely suit filed by Smriti Talwar against Avani Kapur which was originally filed before the Ld. Additional District Judge, Dwarka Courts and numbered as suit no. 69/2011 (new No. 485/2017) and titled as 'Smriti Talwar vs. Avani Kapur' and the suit filed by Avani Kapur against Smriti Talwar which was also DIVYANG THAKUR originally filed before the Hon'ble High Court of Delhi and Digitally signed by DIVYANG THAKUR numbered as suit No. 86/2012 (new No. 16470/2016) and titled Date:
2025.02.25 16:03:54 +0530 as 'Avani Kapur vs. Smriti Talwar'. The suit titled 'Avani Kapur Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
4 of 53 Suit No. 16470/16 Suit No. 485/17 vs. Smriti Talwar' has been treated as the main suit vide order dated 07.04.2018 passed by Ld. Predecessor of this court and the suit were clubbed and common evidence has been led by the parties in both the suits. Thereafter, both the suits have been tried in accordance with law and the said trial has resulted in the present common judgment in both the suits.
2. To avoid confusion and for the sake of clarity, the parties shall be referred by their position in the suit titled ' Avani Kapur vs. Smriti Talwar ' for the sake of convenience i.e. Avani Kapur shall be referred to as the " plaintiff" and Smriti Talwar shall be referred to as the "defendant".
Pleadings of the Suit titled 'Smriti Talwar vs. Avani Kapur'
3. The defendant had initially filed this suit for the relief of permanent and mandatory injunction. The pleadings are being referred to in brief.
4. It is averred in the plaint that the defendant was married to Rajeev Kapur on 08.06.1997 and the said marriage was also registered and her husband expired on 14.07.2005. The late DIVYANG THAKUR Rajeev Kapur had an earlier marriage with one Lekha Bhagat and Digitally signed by DIVYANG THAKUR Date:
2025.02.25 16:04:00 +0530 Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
5 of 53 Suit No. 16470/16 Suit No. 485/17 from the said marriage, he had one daughter namely Avani Kapur. The late Rajeev Kapur at the time of his death left various properties including an agricultural land bearing katha no. 72, residential area, ½ share of (7-4) and khasra No. 492, ½ share of residential area (4-16) in Village Bijwasan, New Delhi in the said farm house forming part of Khasra No. 76/15/2 and 16, situated in the revenue estate of Bijwasan, New Delhi, commonly known as B-7, Pushpanjali Farms, Bijwasan, New Delhi, along with his mother, Smt. Suvira Kapur, defendant No. 2 to the extent of 50% share in the said farm house, which is subject matter of the present suit. The said property shall be referred to as the 'suit property' hereinafter.
5. It is further averred that the suit property is governed by the provisions of Section 50 of the Delhi Land Reforms Act, 1954 and, therefore, it is claimed that the defendant i.e. Smriti Talwar was the sole owner of the property in so far as the share of her late husband is concerned. It is further averred that accordingly the 50% undivided share in the property was mutated DIVYANG THAKUR in favour of the defendant by the Revenue Authorities. Digitally signed by DIVYANG THAKUR Date:
2025.02.25 16:04:15
6. It is further averred that the defendant was residing along +0530 with her husband in the suit property and continued to reside Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
6 of 53 Suit No. 16470/16 Suit No. 485/17 therein after the death of her husband. She is also paying the property tax to the MCD. It is further submitted that the other co- owner of the property namely Suvira Kapur had never resided in the suit property and was residing in her own residential property in Friends Colony, New Delhi. It is further submitted that the defendant in order to facilitate the education of her two adopted children took a rented accommodation in Defence Colony to be near her job posting but all the belongings of the defendant and her late husband were lying in the suit property.
7. It is further submitted that the plaintiff Avani Kapur challenged the mutation before the SDM Vasant Vihar, New Delhi, which was dismissed and an appeal was filed. It is DIVYANG THAKUR thereafter alleged that the plaintiff in collusion with Suvira Kapur Digitally signed by DIVYANG THAKUR Date:
(who was impleaded as defendant No.2 in the suit titled 'Smriti 2025.02.25 16:04:24 +0530 Talwar vs. Avani Kapur' but died during the pendency of the suit and proceedings stood abated as against her) started various acts of domestic violence against the defendant and, therefore, she initiated proceedings under DV Act.
8. It is further averred that the plaintiff and Suvira Kapur in collusion and conspiracy with each other deployed two security guards at the entry gate of the suit property with a view to Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
7 of 53 Suit No. 16470/16 Suit No. 485/17 deprive the defendant of the peaceful use and enjoyment of the suit property and obstructed her ingress and egress to the suit property. On 23.02.2011, when the defendant went to the suit property, a guard came at the outer gate of the suit property and obstructed her ingress into the suit property and on inquiry, it was revealed that the said guard was posted at instructions of the plaintiff and in the meantime, the plaintiff also reached the spot along with PCR van. The defendant showed the property papers to the local police.
9. On the basis of aforesaid facts, the defendant filed the suit seeking the following reliefs:
(a) pass a decree of perpetual injunction in favour of the DIVYANG THAKUR plaintiff and against the defendants No. 1 and 2 Digitally signed by DIVYANG THAKUR restraining defendants No. 1 and 2, their associates, Date:
2025.02.25 16:04:32 +0530 agents, employees, etc. from causing any interference in the peaceful use and enjoyment of the plaintiff of the suit property comprising agricultural land measuring 7 bigha 4 biswas (khata No. 72) and 4 bigha 16 biswas in khasra no. 492 in the revenue estate of Village Bijwasan, New Delhi and commonly known as B-7, Pushpanjali Farms, New Delhi and they be further Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
8 of 53 Suit No. 16470/16 Suit No. 485/17 restrained from causing obstruction in the ingress and egress of the property to the suit property in any manner whatosever;
(b) pass a decree of mandatory injunction in favour of the plaintiff and against the defendants No. 1 and 2 directing them to remove her associates and other bad elements deployed by the defendants no. 1 and 2 outside the suit property of the plaintiff comprising agricultural land measuring 7 bigha 4 biswas (khata no.
72) and 4 bigha 16 biswas in khasra no. 492 in the revenue estate of Village Bijwasan, New Delhi and commonly known as B-7, Pushpanjali Farms, New Delhi.
(c) pass a decree of mandatory injunction in favour of the plaintiff and against defendant No. 3 directing defendant No. 3 and his officials to provide the plaintiff (a lone lady of 43 years) protection at the hands of local police, from the mischievous acts and onslaughts of the defendants No. 1 and 2 and their associates, hired agents/miscreants, etc. who are causing threats of physical assaults to the plaintiff so that she is not deprived of residing in her own property comprising agricultural land measuring 7 bigha 4 biswas (khata no. Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date:
2025.02.25 16:04:40 +0530 9 of 53 Suit No. 16470/16 Suit No. 485/17
72) and 4 bigha 16 biswas in khasra No. 492 in the revenue estate of Village Bijwasan, New Delhi and commonly known as B-7, Pushpanjali Farms, Bijwasan, New Delhi of which the plaintiff is the lawful owner and in possession thereof."
Defence of the plaintiff Avani Kapur and filing of the suit titled 'Avani Kapur vs. Smriti Talwar' and the pleadings therein
10. The plaintiff Avani Kapur not only filed a written statement but also filed a subsequent suit for declaration and in the alternative partition of the suit property against defendant Smriti Talwar. As the written statement of the earlier suit and the plaint of the main suit titled 'Avani Kapur vs. Smriti Talwar' are more or less identical and as the main suit is comprehensive inasmuch as it requires the court to come to a finding to the ownership rights of the parties in the suit property and not merely the rights of permanent or mandatory injunction, the same is being discussed together.
11. It is alleged by the plaintiff that she is the daughter of late Rajeev Kapur and Smt. Lekha Bhagat, who was the first wife of Digitally Avani Kapur vs. Smriti Talwar signed by Smriti Talwar vs. Avani Kapur & Ors. DIVYANG DIVYANG THAKUR THAKUR Date:
2025.02.25 16:04:46 +0530 10 of 53 Suit No. 16470/16 Suit No. 485/17 late Rajeev Kapur, and the said marriage ended in a divorce.
Thereafter, admittedly late Rajeev Kapur married the defendant on 08.06.1997. The suit property is an urbanized village in terms of the notification under Section 507 of the Delhi Municipal Corporation Act and the said property is a residential house with a Swimming Pool. Admittedly, the suit property was co-owned jointly by late Rajeev Kapur and late Suvira Kapur and it was self acquired property.
12. It is averred that the defendant was living with late Rajeev Kapur at place of his posting outside India and the marriage broke down and the defendant and late Rajeev Kapur started living separately since March 2004 and defendant returned to Bangalore. The late Rajeev Kapur and defendant filed for divorce by mutual consent on 19.01.2005 in case bearing MC No. 892/2005 before Ld. Family Courts, Bangalore in which it was specifically written that both the parties have no claim against each other but the petition did not result in divorce as Rajeev Kapur died on 14.07.2005 at Colombo, Sri Lanka.
13. It is further averred that the defendant got a fraudulent mutation in her name and a review petition was filed by the plaintiff which was dismissed and an appeal has been thereafter Digitally signed by DIVYANG Avani Kapur vs. Smriti Talwar DIVYANG THAKUR Smriti Talwar vs. Avani Kapur & Ors. THAKUR Date:
2025.02.25 16:05:06 +0530 11 of 53 Suit No. 16470/16 Suit No. 485/17 filed. It is further alleged that late Smt. Suvira Kapur on 10.04.2008 executed a Will bequeathing her share as well as the rights of Suvira Kapur in the share of late Rajeev Kapur in the suit property to the plaintiff.
14. It is further averred that the defendant filed a false complaint under the Domestic Violence Act wherein in her reply late Suvira Kapur declared that the plaintiff was having all the rights in the suit property. It is further averred that the plaintiff is in the possession of the suit property and no hindrance has been caused to the ingress and egress of the defendant. On basis of the aforesaid facts, the following reliefs are claimed by the plaintiff in her suit:
A. A decree for declaration be passed declaring the plaintiff to be a sole and exclusive owner of the property bearing No. B-7, Pushpanjali Farm, Village Bijwasan, New Delhi;
B. In the alternative if prayer A is not granted a preliminary decree be passed for partition declaring the share of the plaintiff to be 5/6th and the defendant as 1/6th;
C. A decree for perpetual injunction be passed Digitally signed by DIVYANG DIVYANG THAKUR Date: Avani Kapur vs. Smriti Talwar THAKUR 2025.02.25 16:05:11 Smriti Talwar vs. Avani Kapur & Ors. +0530 12 of 53 Suit No. 16470/16 Suit No. 485/17 restraining the defendant, her agents, servants and assigns etc. from selling, alienating, assigning, parting with property or mortgaging or creating any charge in respect of suit property bearing No. B-7, Pushpanjali Farm, Village Bijwasan, New Delhi permanently and D. A decree for perpetual injunction be passed restraining the defendant to the effect that the defendant, her agents, servants, attorneys/ assigns, etc. be permanently restrained from entering the building and dispossessing the plaintiff and her care takers from the peaceful use and occupation of the suit property i.e. property No. B-7, Pushpanjali Farms, Village Bijwasan, New Delhi and restraining the defendant from taking forcible possession of the suit premises."
15. The defendant filed the written statement and contested the suit on similar pleadings as those contained in the plaint of her suit.
Issues framed in both the suits Digitally signed DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:05:16 +0530
16. On the basis of pleadings, following issues were framed in Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
13 of 53 Suit No. 16470/16 Suit No. 485/17 case titled 'Smriti Talwar vs. Avani Kapur ' on 18.11.2013:
1. Whether the suit of the plaintiff is not maintainable in view of non-applicability of DLR Act? OPD
2. Whether the plaintiff has not valued her suit property for the purpose of Court fee and jurisdiction? OPD
3. Whether the plaintiff is entitled for decree of injunction, as prayed for? OPP
4. Whether the plaintiff is entitled for relief of mandatory injunction, as prayed for? OPP
5. Relief.
17. On the basis of pleadings, following issues were framed in case titled 'Avani Kapur vs. Smriti Talwar ' on 08.01.2014:
(i) Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD
(ii) Whether the suit of the plaintiff is liable to be stayed under Section 10 of the Code of Civil Procedure in view of the pendency of Civil Suit No. 69/11? OPD
(iii) Whether the suit of the plaintiff is barred under Section 41 of the Specific Relief Act, 1963? OPD
(iv) Whether the suit property at the time of the death of Shri Rajeev Kapur on 14.07.2005 was agricultural land and was Digitally signed Avani Kapur vs. Smriti Talwar DIVYANG by DIVYANG THAKUR Smriti Talwar vs. Avani Kapur & Ors. THAKUR Date: 2025.02.25 16:05:23 +0530
14 of 53 Suit No. 16470/16 Suit No. 485/17 governed under the provisions of Delhi Land Reforms Act, 1954 for the purpose of succession? OPD
(v) Whether the suit of the plaintiff has been properly valued under the Court Fee Act? OPD
(vi) Whether the plaintiff is entitled to a decree of partition? OPP
(vii) Whether the plaintiff is entitled to a decree of declaration, as prayed in the plaint? OPP
(viii) Whether the plaintiff is entitled to a decree of injunction, as prayed? OPP
(ix) Relief.
Common Evidence led by parties in both the suits
18. On 04.08.2016, plaintiff Ms. Avani Kapur has examined herself as PW-1 and tendered her evidence by way of affidavit Ex.PW1/A and relied upon documents viz. Site plan of the suit property as mark A (it is shown as Ex. PW1/1 in affidavit in evidence); Notification dated 19.08.2002 issued by Delhi Government as Ex.PW1/2; Ordersheet and affidavit in MC no.892/2005 as Ex.PW1/3 (colly); letter to SHO PS Kapashera dated 15.07.2009 as Ex. PW1/4; Will of Smt. Suvira Kapur dated Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
Digitally signedby DIVYANG
DIVYANG THAKUR THAKUR Date:
2025.02.25 16:05:29 +0530 15 of 53 Suit No. 16470/16 Suit No. 485/17 10.04.2008 along with codicil is Mark A/1 (it is shown as Ex.
PW1/5 in affidavit in evidence); Affidavits of Smt. Asha Malhotra, Sh.A.V. Ravindra Nath and J. S. Nirodhi as Mark B (it is shown as Ex. PW1/6 (colly) in affidavit in evidence); E-mail written by Ms. Kavita Dina Medland to her as Ex.PW1/7 along with certificate of 65-B of Indian Evidence Act as Ex.PW1/B (objected to mode of proof); E-mail written by Sh. Ishan Kapur to her as Ex.PW1/8 along with certificate of 65-B of Indian Evidence Act as already Ex.PW1/B(objected to mode of proof); SPA dated 10.10.2011 as Ex.PW1/9; Copy of plaint of suit no.69/11 for mandatory and perpetual injunction as Ex. P-1; Order dated 13.04.2011 in the said suit as Ex. P-2; Judgment in appeal no.09/11 dated 28.05.2011 as Ex. P-3; Order/judgment of High Court in CM (Main) no.736/11 dated 08.07.2011 as Ex. P-4; Reply to Domestic Violence petition petition dated 03.06.2010 as Ex.P-5; Summons in Domestic Violence Petition dated 02.02.2010 as Mark C (which is shown as ex. PW1/10 in my affidavit); Original death certificate of Smt. Suvira Kapur as Ex. P-1/11; Certificate from Knight Watch securities as Mark B (it is shown as Ex. PW1/12 in my affidavit); Status report dated 23.03.2011 as Ex. P-6; Photographs of mine as Mark E (colly) (it Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date: 2025.02.25 16:05:35 +0530 16 of 53 Suit No. 16470/16 Suit No. 485/17
is shown as Ex PW1/13 in my affidavit); Letter to SHO PS Kapashera dated 23.02.2011 and 02.03.2011 as Mark F (colly) (it is shown as Ex. PW1/14 in my affidavit); Legal notice to Knight Watch securities dated 20.12.2011 as Ex. PW1/15 along with Certificate 65 B of Indian Evidence Act as already Ex. PW1/B and Letter to SHO dated 21.12.2011 as Mark G (it is shown as Ex. PW1/16 in my affidavit). PW-1 was cross-examined at length and discharged.
19. On 25.11.2021, PW-2 Sh. Ajay Pal had tendered his evidence by way of affidavit exhibited as Ex. PW2/1 and he was cross examined and discharged.
20. On the even date, PW-3 Ms. Lekha Bhagat had tendered her evidence by way of affidavit exhibited as Ex. PW3/1 and she was cross examined and discharged.
21. On 22.10.2022, PW-4 Sh. A. V. Ravindranath had tendered his evidence by way of affidavit exhibited as Ex. PW4/A and he was cross examined and discharged
22. On 17.12.2022, Ms. Asha, Inspector, PS Kapashera was summoned as witness and deposed as PW-5.
23. On 25.02.2023, Sh. Sanjay Thirwani, Chief Sector Supervisor, MTNL was summoned as witness and deposed as Avani Kapur vs. Smriti Talwar Digitally signed Smriti Talwar vs. Avani Kapur & Ors. DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:05:40 +0530 17 of 53 Suit No. 16470/16 Suit No. 485/17 PW-5 (inadvertently mentioned as PW-5). He was cross examined and discharged
24. On the even date, Sh. Vipin Vashisht, Division Engineer, MTNL, Delhi Cantt. was summoned as witness and deposed as PW-6. He was cross examined and discharged
25. No other witness was examined on behalf of the plaintiff and PE was closed vide separate statement of Ld. Counsel for Plaintiff on 24.03.2023 and matter was proceeded for defendant's evidence.
26. On 23.12.2023, defendant Dr. (Mrs.) Smriti Talwar examined herself as DW-1 and tendered her evidence by way of affidavit Ex. DW1/A and relied upon the documents viz. the Khatauni maintained by the Revenue Department of Tehsil Vasant Vihar which was de-exhibited as Ex.DW-1/1 and marked as Mark A (being photocopy) (objected to by ld. Counsel for plaintiff as the same is a photocopy); Copy of Memorandum of marriage as Ex. DW-1/2 (OSR); Copy of death certificate of Sh. Rajiv Kapoor which was de-exhibited as Ex.DW-1/3 and marked as Mark B (being photocopy) (objected to by ld. Counsel for plaintiff as the same is a photocopy); English translation of death certificate of Sh. Rajiv Kapoor which was de-exhibited as Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:05:52 +0530 18 of 53 Suit No. 16470/16 Suit No. 485/17 Ex.DW-1/4 and marked as Mark C (being photocopy) (objected to by ld. Counsel for plaintiff as the same is a photocopy); Copy of Registration Certificate which was de-exhibited as Ex.DW-1/5 and marked as Mark D (being photocopy) (objected to by ld. Counsel for plaintiff as the same is a photocopy); Copy of driving license as Ex.DW-1/5 (OSR) (as I have brought my new driving license as my old one was deposited with the Authority and they have issued a new one and the copy of the new driving license as Mark E; copy of MCD property tax mutation document as Ex. DW1/6 (OSR) (colly) (running from pages 128-
130); copy of the registration certificate no. DL9C 9266 (objected to by the Ld. Counsel for Plaintiff for being photocopy) as Mark F; copy of the MTNL bill for the period from 01.11.2008 to 31.12.2008 (objected to by the Ld. Counsel for Plaintiff for being photocopy) (de-exhibited from Ex. DW1/8 to Ex. DW1/13 being photocopy) as Mark G to Mark M (colly); Copy of Khasra Girdavri (objected to by the Ld. Counsel for Plaintiff for being photocopy) (de-exhibited from Ex. DW1/14 to Mark P being photocopy) as Mark P; application dated 07.02.2009 is de- exhibited as it is not found on record as Ex.DW-1/15; Order of Ld. SDM, Revenue Estate is already Ex.DW-4/A as Ex.DW-1/16; Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date:
2025.02.25 16:06:00 +0530
19 of 53 Suit No. 16470/16 Suit No. 485/17 copy of appeal before the Deputy commissioner, South West, Kapashera Ex.DW-16A (objected to by the Ld. Counsel for Plaintiff for being photocopy) (de-exhibited from Ex. DW1/16A being photocopy) as Mark Q; Passport of plaintiff (already Ex.PW-1/D1) as Ex.DW-1/17; copy of plaint between the plaintiff and defendant (already Ex.P-2), copy of order dated 13.04.2011 (already Ex.P-4), copy of order dated 28.05.2011 (already Ex.P-5) and copy of order dated 08.07.2011 (already Ex.P-6) as Ex.DW-1/18 (colly); order dated 24.11.2004 is de- exhibited as it is not found on record as Ex.DW-1/19 and copy of receipt issued by MCD (objected to by the Ld. Counsel for Plaintiff for being photocopy) as Mark O. The witness was partly cross examined on 02.03.2024 and cross examination was deferred. The witness did not thereafter step into the witness box and an application was moved by her for recording of her evidence through video-conferencing, which application was dismissed vide a detailed order dated 03.08.2024 and she was ordered to appear in person before the Court for continuation and conclusion of her cross-examination but the Defendant did not appear and subsequently, her evidence was taken off the record vide order dated 30.11.2024.
Digitally signedby DIVYANG
DIVYANG THAKUR Avani Kapur vs. Smriti Talwar THAKUR Date:
2025.02.25 Smriti Talwar vs. Avani Kapur & Ors. 16:06:05 +0530 20 of 53 Suit No. 16470/16 Suit No. 485/17
27. On 23.12.2023, DW-2 Sh. Satyaprakash Patwari, Office of SDM, Kapashera was examined and the record brought by him was exhibited as Ex. DW2/A (OSR) and he was duly cross examined and discharged. On 17.02.2024, DW-3 Sh. Balram Meena, ADM, South West, New Delhi was examined and the record brought by him was exhibited as Ex. DW3/A. On 01.03.2024, DW-4 Sh. Sandeep, Naib Tehsildar, South West District, New Delhi was examined and the record brought by him was exhibited as Ex. DW4/A (OSR) and Mark A respectively and he was duly cross examined and discharged. On 18.05.2024, DW-5 Sh. Sanjay Thirwani, Chief Section Supervisor Employee in the office of Deputy General Manager, Admin. (West), MTNL, Rajouri Garden, New Delhi was examined and the record brought by him were exhibited as Ex. DW5/A and Ex.DW5/B respectively. On the even date, DW-6 Sh. Satya Prakash, Patwari from SDM Office, Kapashera, New Delhi was examined and the record brought by him were exhibited as Ex. DW6/A (OSR) and Ex.DW6/B (OSR) respectively. On the even date, DW-7 Sh.
Vikas Kumar, Senior Assistant at D.M. Office, Kapashera, New Delhi was examined. They all were duly cross examined and discharged. Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date: 2025.02.25 16:06:10 +0530 Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
21 of 53 Suit No. 16470/16 Suit No. 485/17
28. Thereafter, no other witness was examined on behalf of the defendants and DE was closed.
CONTENTIONS OF PARTIES
36. Written submissions were filed on behalf of the plaintiff and list of citations were filed on behalf of both the parties. Arguments on behalf of plaintiff Ms. Avani Kapur
37. Ld. Senior Advocate submits that the suit property, which is located in Bijwasan, New Delhi, is the self acquired property, which was co-owned by grandmother of the plaintiff i.e. late Suvira Kapur, who died on 24.11.2011 and father of plaintiff i.e. late Rajeev Kapur, who died on 14.07.2005 and both were having 50% undivided share in the suit property. It is submitted that the plaintiff is the daughter of late Rajeev Kapur from the first wife whereas the defendant is the second wife, who married Rajeev Kapur in the year 1997.
38. Ld. Senior Advocate has further submitted that the suit property is an urbanized piece of land which was never been used for any agricultural purpose and located in the area of Bijwasan. It is, therefore, submitted that the Delhi Land Reforms Act will Digitally signed Avani Kapur vs. Smriti Talwar by DIVYANG DIVYANG THAKUR Smriti Talwar vs. Avani Kapur & Ors. THAKUR Date:
2025.02.25 16:06:18 +0530 22 of 53 Suit No. 16470/16 Suit No. 485/17 have no application to the suit property and succession will be governed by the Hindu Succession Act, 1956 in the absence of any Will. It has been further submitted that residence i.e. a house has been built up on the property along with the Swimming Pool and it is submitted that once the land is not being used for agricultural purposes, it ceases to be governed by the Delhi Land Reforms Act. It is further submitted that once the area has been urbanized as per Notification dated 24.10.1994 issued under Section 507 of the Delhi Municipal Corporation Act, 1957, it ceases to be agricultural land. To support the aforesaid contentions, the following judgments have been relied upon:
(a) Praveen Jain vs. Financial Commissioner & Ors. 2024 SCC Online Del 2011
(b) M. S. Khatu Dham Residency Pvt. Ltd. vs. GNCTD & Ors.
W.P. (C) 8375/2023
(c) Holistic Farms Pvt. Ltd. vs. Gaon Sabha Rajokri & Ors. W.P. (C) 10778/2021 & CM Appl. 33255/2021
(d) Hemant Kumar vs. Sub Divisional Magistrate Revenue Assistant and Ors. W.P. (C) 11254/2023 & CM Appl. 43822/2023
(e) Badal & Ors. vs. M/s Niranjan Proptech Pvt. Ltd. & Ors. RFA No. 178/2018 (Hon'ble Delhi High Court) Digitally signed by DIVYANG Avani Kapur vs. Smriti Talwar DIVYANG THAKUR Smriti Talwar vs. Avani Kapur & Ors. THAKUR Date:
2025.02.25 16:06:23 +0530 23 of 53 Suit No. 16470/16 Suit No. 485/17
(f) Mohinder Singh (Dead) vs. Narain Singh 2023 SCC Online SC 261
(g) Indu Khorana vs. Gram Sabha & Ors. 2010 SCC Online Del 1334
(h) Blue Bird Properties Pvt. Ltd. vs. Government of NCT of Delhi & Ors. 2023:DHC:3221-DB
(i) Rajeev Shah (Deceased) through LR Ms. Gayatri Shah vs. Government of NCT of Delhi & Ors. 2023:DHC:2430
(j) Trikha Ram vs. Sahib Ram & Anr. 1997 (43) DRJ 669
(k) NB Singh vs. Perfexa Solutions 2009 (111) DRJ 106
(l) Ram Lubhaya Kapoor through LRs. vs. Dr. J.R. Chawla & Ors. 1986 SCC Online Del 131
(m) Vineeta Sharma vs. Rakesh Sharma (2020) 9 SCC 1
(n) Jai Prakash & Ors. vs. Pushpa & Ors. (1999) ILR 2 Delhi 145
39. It is thereafter submitted that the defendant Smriti Talwar was the wife of the deceased Rajeev Kapur, who had 50 % share in the suit property and that the First Motion for divorce by mutual consent had been filed before the concerned court at Bengaluru, Karnataka, India and that she had declared that she has no claim against Rajeev Kapur. It is submitted on the basis of the aforesaid fact that the defendant ceased to be a Class I legal Avani Kapur vs. Smriti Talwar Digitally signed Smriti Talwar vs. Avani Kapur & Ors. by DIVYANG DIVYANG THAKUR THAKUR Date:
2025.02.25 16:06:29 +0530 24 of 53 Suit No. 16470/16 Suit No. 485/17 heir of the intestate Rajeev Kapur and rather it was a solemn declaration that she would have no right in the properties of Rajeev Kapur which included the present suit property. An analogy has sought to be drawn by drawing attention of this court to the judgments in "Preeti Satija vs. Raj Kumari & Anr." 2014 SCC Online Del 188 and "Master Ryan vs. P.N. Juneja & Sons"
2009 SCC Online Del 2994 which are not directly on the point, however, it has been observed therein that the courts should be cautious in denying the rights of the wife in the shared household in the absence of a formal deed of partition or relinquishment. It has been submitted that the affidavit filed before the concerned Family Courts of Bengaluru for First Motion of divorce under Section 13B of the Hindu Marriage Act, 1955 is as solemn and binding as a formal deed of relinquishment. Therefore, it has been submitted that the defendant would not have even the share as the widow of the deceased intestate under the Hindu Succession Act.
40. It is further submitted that even assuming but not conceding that the defendant is a Class I legal heir of deceased intestate. She would only have 1/3rd share in the 50% share, which has devolved on her through late Rajeev Kapur. It is Avani Kapur vs. Smriti Talwar Digitally signed by Smriti Talwar vs. Avani Kapur & Ors. DIVYANG DIVYANG THAKUR THAKUR Date: 2025.02.25 16:06:35 +0530 25 of 53 Suit No. 16470/16 Suit No. 485/17 further submitted that as the defendant did not step into the witness box to face the cross-examination after recording of examination-in-chief and part cross-examination, therefore, an adverse inference has to be drawn against the defendant. Therefore, the case can only be decreed in favour of the plaintiff and against the defendant. It is further submitted that the defendant has neither challenged the Will of late Smt. Suvira Kapur and, therefore, there is no ground for the court to give any finding that the Will is invalid. The onus to prove that the Will was invalid was upon the defendant which onus has never been discharged.
Arguments of defendant Smriti Talwar
41. Per contra, Ld. Counsel for defendant has submitted firstly that the notification dated 24.10.1994 has been stayed by the Hon'ble High Court of Delhi in Writ Petition (Civil) 2596 of 2001 in order dated 24.11.2004. On the date of death of late Rajeev Kapur i.e. on 14.07.2005, the land was agricultural land and falling under the Delhi Land Reforms Act. He has, therefore, submitted that the share of late Rajeev Kapur would vest in the Avani Kapur vs. Smriti Talwar Digitally signed by DIVYANG Smriti Talwar vs. Avani Kapur & Ors. DIVYANG THAKUR THAKUR Date:
2025.02.25 16:06:42 +0530 26 of 53 Suit No. 16470/16 Suit No. 485/17 defendant in absence of any male heir under Section 50 of the Delhi Land Reforms Act. He has submitted that as per the judgment in "Har Naraini Devi vs. Union of India" AIR 2022 SC 4632, the Delhi Land Reforms Act would be applicable being the special law and the Hindu Succession Act being the general law.
42. It is further argued that assuming but not conceding that the Delhi Land Reforms Act no longer applies, the defendant being the lawfully married wife of late Rajeev Kapur at the time of his death i.e. on 14.07.2005, she would be the Class I legal heir and would be having the share in the suit property accordingly. It has been submitted that merely moving the First Motion does not sever the ties of husband and wife and, therefore, the same would not have the effect of ousting the inheritance of the defendant under the Hindu Succession Act as the widow of the deceased intestate. Ld. Counsel has submitted that there is always the possibility of reconciliation between the parties even after filing the First Motion and hence there is cooling down period prescribed under Section 13B of the Hindu Marriage Act.
43. It has been further submitted that the deletion of Section 4 (2) of the Hindu Succession Act vide the amending Act of 2005 Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
Digitally signed
DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:06:51 +0530 27 of 53 Suit No. 16470/16 Suit No. 485/17 is not retrospective as the succession opened prior to the promulgation of the 2005 Amendment as the date of death of late Rajeev Kapur is 14.07.2005. Ld. Counsel referred to the judgment of Hon'ble High Court of Delhi in "Mukesh & Ors. vs. Bharat Singh & Ors." 149 2008 DLT 114 wherein it has been held that the provisions of DLR Act would be applicable to the successions which opened before the coming into effect of the 2005 amendment which was on 09.09.2005.
44. It has been further submitted that the Will of late Suvira Kapur is forged and fabricated and in this regard, Ld. Counsel has referred to the reply filed by late Suvira Kapur before the Ld. MM, Patiala House Courts in CC No. 490/3 of 2010 in response to the complaint filed by the defendant herein under Section 12 of DV Act, 2005. He has further submitted that in the said reply, late Suvira Kapur has nowhere mentioned about the said Will but merely mentioned that her declaration should be treated as a Will. FINDINGS
45. I have heard the Counsels for the parties in detail, have perused the case laws cited and the written submissions filed. The basic factual matrix of the present suits is in fact not Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date:
2025.02.25 16:07:14 +0530 28 of 53 Suit No. 16470/16 Suit No. 485/17 disputed. Late Rajeev Kapur and Lt Suvira Kapur were the joint owners of the suit property having 50 % undivided share in the suit property. This is the admitted fact from the pleadings of the parties themselves. Lt Rajeev Kapur's date of death and the fact that he predeceased his mother is also not disputed, and that he died intestate is also not disputed. The fact that the defendant was the wife of Late Rajeev Kapur at the time of his death is also admitted between the parties- that they had a legally binding marriage, is not disputed. It is also admitted fact that the defendant and Rajeev Kapur had moved an application for first motion for divorce by mutual consent, though the legal consequences of said act of filing motion under Section 13B of the Hindu Marriage Act is disputed by the parties. The main points of dispute raised by the parties are (i) whether the suit land would be governed by the provisions of the Delhi Land Reforms Act, 1954 or whether the succession of the estate of Late Rajeev Kapur would be governed by Section 8 of the Hindu Succession Act, it being admitted that there was no will of the deceased?; (ii) whether the act of filing for divorce by mutual consent by the defendant and Late Rajeev Kapur would mean that the defendant had lost her rights to succeed to the estate of Late Rajeev Kapur Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed by DIVYANG
DIVYANG THAKUR THAKUR Date:
2025.02.25 16:07:21 +0530 29 of 53 Suit No. 16470/16 Suit No. 485/17 who was her husband whether under Section 50 of the Delhi Land Reforms Act or as Class I Legal Heir under the Hindu Succession Act, 1956?. In fact, these are purely questions of law, the facts being admitted.
46. The following observations and inferences can be drawn from the evidence adduced by the parties and the pleadings on record:-
a) Whether the succession of the suit property is governed by Section 50 of the Delhi Land Reforms Act, 1954 or the Hindu Succession Act, 1956?
47. The answer to this question lies in answering whether the suit property was agricultural land as per the definition under the Delhi Land Reforms Act, 1954 or whether it was urbanized land and hence no longer under the purview of the said Act at the time of the death of Late Rajeev Kapur i.e. when succession opened? Admittedly the suit property falls in village Bijwasan. It is the admitted fact that a notification dated 24.10.1994 no F.33/Engg/TP(DP)/11424/94 was issued under Section 507 of the Delhi Municipal Corporation Act, 1957 declaring inter alia the village Bijwasan as urbanized. Though a litany of judgments has been cited at the bar, reference need be made to two judgments Digitally signed Avani Kapur vs. Smriti Talwar DIVYANG by DIVYANG THAKUR Smriti Talwar vs. Avani Kapur & Ors. THAKUR Date: 2025.02.25 16:07:26 +0530 30 of 53 Suit No. 16470/16 Suit No. 485/17 which in my mind settle the issue comprehensively and without shadow of a doubt.
48. In Indu Khorana v. Gram Sabha in W.P (Civil) 4143 of 2003 (2010 SCC Online Del 1334), the Single Bench of the Hon'ble High Court of Delhi had referred a question of law to the Division Bench of the Hon'ble High Court which was answered vide order dated 26.03.2010 as:-
"1. A Single Judge of this Court, while hearing the present petition, has made a reference to the Larger Bench for considering certain questions of law as stated in order dated 25.08.2004. This petition is therefore referred to this Bench for answering the reference.
2. Briefly, the facts of the case are as under:
Petitioner is the owner/bhoomidar of land situated in village Kaikorola bearing khasra No. 106/12 min. measuring 1 bigha and 9 biswas. Petitioner constructed a small shed on a piece of land measuring 100 sq. yards for the storage of gas cylinders for which permission was granted by the Delhi Fire Department and also for the DIVYANG storage of implements required for carrying out THAKUR agricultural activities. A major portion of the Digitally signed by DIVYANG THAKUR land, i.e. 1 bigha and 8 biswas is being used for Date:
2025.02.25 16:08:23 +0530 agricultural purposes only. Petitioner has alleged that the village Kaikorola including the Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
31 of 53 Suit No. 16470/16 Suit No. 485/17 land in question along with the entire abadi land and the Revenue Estate of village has been urbanized by the issue of a notification No. F-33/Engg./TP/DP/11424/94 dated 24.10.1994 under Section 507 of Delhi Municipal Corporation Act, 1957 and the land is no longer governed by Delhi Land Reforms Act, 1954. On 29.05.2000, a complaint was filed against the petitioner for misuse of the aforesaid land.
Petitioner replied to the same. The Revenue Assistant called for the report of Halqa Patwari and thereafter dismissed the complaint being barred by time vide order dated 14.05.2001. Aggrieved with the said order, respondent filed an appeal under Section 185 of Delhi Reforms Act which was accepted by the Deputy Commissioner, District South-West, Najafgarh, vide order dated 05.12.2001. Aggrieved with the same, petitioner filed a revision petition which was dismissed by the Financial Commissioner vide order dated 13.05.2003. Aggrieved with the same, the petitioner filed the present petition.
3. The stand of the petitioner before the Single Judge was that the land in question had been DIVYANG THAKUR urbanized vide notification issued by the MCD Digitally signed dated 24.10.1994 under Section 507 of the by DIVYANG THAKUR Date: Delhi Municipal Corporation Act, as such the 2025.02.25 16:08:30 +0530 Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
32 of 53 Suit No. 16470/16 Suit No. 485/17 area in question ceased to be a rural area and the revenue authorities had no jurisdiction to deal with the matter and impugned order was liable to be set aside. In support of his contention, the learned Counsel for the petitioner had relied upon the judgment of Trikha Ram v. Sahib Ram and Anr.
MANU/DE/0968/1997MANU/DE/0968/1997 :
69 (1997) DLT 749 and Madho Prasad v. Shri Ram Kishan and Ors. 2001 (VII) AD [Delhi 72]. Both the aforesaid cases are decided by a Single Bench of this Court.
It is also the case of the petitioner that the said contention was also raised before the Financial Commissioner but the same has not been dealt with in the impugned order.
4. In Trikha Ram v. Sahib Ram and Anr.
(supra), it has been held that once by virtue of notification issued under Section 507(a) of Delhi Municipal Corporation Act the land is declared to be an urban land, it could no longer be classified as village abadi land within the DIVYANG THAKUR definition of land under Delhi Land Reforms Digitally signed Act and the provisions of Delhi Land Reforms by DIVYANG THAKUR Date: 2025.02.25 16:08:36 +0530 Act would not be applicable. Following the above judgment, another Single Judge of this Court in Madho Prasad v. Shri Ram Kishan and Ors. (supra) has held that once Section 507 of the Delhi Municipal Corporation Act Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
33 of 53 Suit No. 16470/16 Suit No. 485/17 notification had been issued urbanizing the property necessarily Delhi Land Reforms Act will have no application.
5. In the order dated 25.08.2004, Single Judge has noted that prima facie issue of urbanization has no concern with the land use which is regulated by the Master Plan for Delhi. Learned Single Judge was also of the view that if a land irrespective of the fact whether it is in an urban or rural areas, continues to be an agricultural land, prima facie the provisions of Delhi Reforms Act, 1954 have to apply.
It is observed in the aforesaid order that if the view taken in Trikha Ram's case and Madho Prasad's case is taken to its logical conclusion, then all agricultural land of the urbanized villages would cease to be governed by the provisions of Delhi Land Reforms Act, 1954 and the Municipal Corporation of Delhi would be entitled to levy property tax on these lands. It is also noted in the order of reference dated 25.08.2004 that, under the Income Tax Act, capital gain is exempted when agricultural lands are compulsorily acquired and when DIVYANG THAKUR agricultural land in an urban area is acquired, Digitally signed by DIVYANG what would happen to those provisions of the THAKUR Date: 2025.02.25 16:08:44 +0530 Income Tax Act. Further, what would be the position while valuing the capital cost of the Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
34 of 53 Suit No. 16470/16 Suit No. 485/17 said land under the Wealth Tax, etc. It is also noted that the above aspects were never placed for consideration before the two Single Judges, pronouncing the abovesaid judgments and considering the wider ramification, the matter has been referred to a Larger Bench.
...................................... ...................................... ......................................
10. The view taken by the Division Bench is binding on this Bench. No sufficient reason has been shown to us for taking a different view other than what has already been taken by Division Bench earlier. As regards the issues under the Income Tax Act about the capital gains, being exempt when agricultural lands are acquired and what would be the position while valuing the capital cost of the land under the Wealth Tax etc. are concerned, these issues do not directly arise in this case. As and when such DIVYANG THAKUR issues will arise, the concerned authorities Digitally signed would examine the same in accordance with by DIVYANG THAKUR Date:
2025.02.25 law.
16:08:50 +0530
11. We thus hold that once rural area is urbanized by issuance of notification under Section 507(a) of the Delhi Municipal Corporation Act, 1957, provisions of Delhi Reforms Act will cease to apply. The reference stands answered accordingly. The file be placed Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
35 of 53 Suit No. 16470/16 Suit No. 485/17 before the Acting Chief Justice for sending the same to the learned Single Judge for deciding the case on merits."
49. Consequently the matter was finally disposed of by the Single Bench of the Hon'ble High Court of Delhi vide order dated 02.12.2010, as:-
"1. The legal questions emanating from this petition were vide order dated 25th August, 2004 referred for consideration to a Larger Bench. Though the order dated 25th August, 2004 does not appear on the file but the counsel for the respondent has handed over a copy thereof in the Court and the same is taken on record. The matter was since considered by the Division Bench and which has vide judgment dated 26th March, 2010 answered the reference. The file was thereafter placed before this Bench for decision on merits.
2. The petitioner in this petition had challenged DIVYANG THAKUR the order under Section 81 of the Delhi Land Reforms Act, 1954 with respect to her land in Digitally signed by DIVYANG THAKUR Date: village Kaikorola, New Delhi. It was the 2025.02.25 16:08:57 +0530 contention of the petitioner that the said village had been urbanized vide Notification dated 24th October, 1994 and 1/- upon urbanization the provisions of the DLR Act had ceased to apply Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
36 of 53 Suit No. 16470/16 Suit No. 485/17 to the said village and thus action under Section 81 could not have been taken.
3. The Division Bench vide judgment dated 26th March, 2010 (supra) has held that once the rural area is urbanized by issuance of a Notification under Section 507 (a) of the Delhi Municipal Corporation Act, 1957, the provisions of the DLR Act will cease to apply.
4. In view of the aforesaid finding of the Division Bench, the petition is to succeed and the order dated 13th May, 2003 of the Financial Commissioner affirming the order dated 5th December, 2001 of the Appeal Officer vesting the property of the petitioner in the Gaon Sabha under Section 81 of the DLR Act cannot be sustained."
50. It may also be mentioned that the Hon'ble Supreme Court dismissed the Special Leave Petition (Civil) 16106/2012 against the aforesaid order dated 02.12.2010 vide its order dated 05.04.2016. In Mohinder Singh (Dead) through Lrs & Anr v. Narain Singh and Others 2023 SCC Online SC 261 , a 3 judge DIVYANG THAKUR bench of the Hon'ble Supreme Court of India explicitly approved Digitally signed by DIVYANG THAKUR Date:
the view of the Hon'ble High Court's Division Bench in Indu 2025.02.25 16:09:06 +0530 Khorana (Supra).
Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
37 of 53 Suit No. 16470/16 Suit No. 485/17
51. A reading of the facts of Indu Khorana (supra) would show that the land in question of that case was falling in a village which was urbanized vide the very same notification as Bijwasan. The Hon'ble High Court ultimately found that the land stood urbanized in view of the notification of 1994 and therefore the provisions of Delhi Land Reforms Act, 1954 had no application. The order of the Financial Commissioner under Section 81 of the DLR was finally quashed. The facts of Indu Khorana (supra) relate to a period before 2005, therefore, it is safe to say that when the succession opened in the present case i.e. on 14.07.2005 when Late Rajeev Kapur expired, the suit property stood urbanized.
52. Ld Counsel for the Defendant has argued that the said notification stood temporarily suspended vide order of the Hon'ble High Court in W.P (C) no 2596 of 2001 dated 24.11.2004, however, in view of the later authoritative ruling in Indu Khorana (supra) as explained above, it stands to reason that the suit property was urbanized and that the provisions of Delhi Land Reforms Act would have no application post the 1994 notification.
53. There is one more reason why the suit property has to be Digitally signed by DIVYANG Avani Kapur vs. Smriti Talwar DIVYANG THAKUR THAKUR Date:
Smriti Talwar vs. Avani Kapur & Ors. 2025.02.25 16:09:13 +0530 38 of 53 Suit No. 16470/16 Suit No. 485/17 held to be not land for the purposes of the Delhi Land Reforms Act, 1954. In NB Singh (HUF) v. Perfexa Solutions Pvt Ltd MANU/DE/0743/2009, the Hon'ble High Court of Delhi has held that land which is not used for the agricultural purpose cannot be said to covered under the provisions of the Delhi Land Reforms Act, 1954. The relevant portion is extracted hereunder :-
"5. What is an agricultural land in terms of the Delhi Land Reforms Act, 1954 is defined in Section 3(13) of the said Act. The relevant extract of the same runs as under:
3 Definitions In this Act, unless the context otherwise require 13- "land" except in Sections 23 and 24, means land held or occupied for purpose connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming and includes -
(a). Buildings appurtenant thereto,
(b). village abadis, Digitally signed by Avani Kapur vs. Smriti Talwar DIVYANG Smriti Talwar vs. Avani Kapur & Ors. DIVYANG THAKUR THAKUR Date:
2025.02.25 16:09:21 +0530 39 of 53 Suit No. 16470/16 Suit No. 485/17
(c). grovelands,
(d). lands for village pasture or land covered by water and used for growing singharas and other produce or land in the bed of a river and used for casual or occasional cultivation, but does not include -
Land occupied by building in belts or areas adjacent to Delhi town, which the Chief Commissioner may by a notification in the Official Gazette declare as an acquisition thereto;
14. ...
6. The defendant in its written statement has not denied that the suit property was leased out to it vide lease agreement dated September 10, 2004. Rather it is the stand of the defendant that after it received communication purporting to terminate the lease deed dated September 10, 2004, it approached the plaintiff to implement the extension clause in the lease deed and that Digitally signed by DIVYANG DIVYANG THAKUR Avani Kapur vs. Smriti Talwar THAKUR Date:
2025.02.25 Smriti Talwar vs. Avani Kapur & Ors. 16:09:29 +0530 40 of 53 Suit No. 16470/16 Suit No. 485/17 consequent thereto, the lease was extended for a further period of 24 months from September 15, 2006 till September 14, 2008 on the mutually agreed terms by the parties. In other words, the defendant admits execution of the lease deed between the parties and insofar as the contents of the lease deed are concerned, though it describes the suit property as a farm-house, but it is clearly mentioned therein that there are constructions raised on it with all amenities, lawns, swimming pool and servant quarters etc. It is also mentioned therein that it has been leased out to the defendant-company for the residence of its Managing Director Shri T.S. Sandhu for a period of two years commencing from September 10, 2004 which could be renewed on mutually agreed terms.
7. In view of the nature of construction raised on the suit property consisting of a dwelling unit on the ground floor and first floor, a swimming pool and other amenities, such as, lawns, servant quarters etc. and there being no Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date:
2025.02.25 16:09:37 +0530 41 of 53 Suit No. 16470/16 Suit No. 485/17 denial of the same from the side of the defendant, it was contended by learned Senior counsel for the plaintiff that the suit property no longer retained the character of an agricultural land. It was further contended that in view of the fact that the suit property was being used by the Managing Director of the defendant-
company for his residence on as high a rent as Rs. 1,60,000/- per month, it would be a total misnomer and a travesty of justice to call the suit property as agricultural land in terms of the Delhi Land Reforms Act, 1954. Learned Counsel for the plaintiff also placed reliance upon photocopy of the sanctioned site plan of the suit property, photocopy of the completion certificate issued by the Municipal Corporation of Delhi to the plaintiff dated May 04, 1990, photocopy of the electricity bills issued by BSES Rajdhani Power Limited in the name of the plaintiff and also the photocopy of house- tax calculations whereby the suit property was assessed to house-tax by the Municipal Avani Kapur vs. Smriti Talwar Digitally signed Smriti Talwar vs. Avani Kapur & Ors. by DIVYANG DIVYANG THAKUR THAKUR Date:
2025.02.25 16:09:42 +0530 42 of 53 Suit No. 16470/16 Suit No. 485/17 Corporation of Delhi. On the basis of these documents, it was argued that if the suit property was an agricultural land, there was no need to get the plan sanctioned for the construction raised thereon or for obtaining completion certificate from the Municipal Corporation of Delhi and there was also no reason to get the property assessed to house-tax.
8. On the other hand, learned Senior counsel appearing for the defendant in support of its case that the suit property is agricultural land, placed on record Khasra Girdawari of the suit property for the year 2006-2007 and Khatauni of the year 2002-2003 wherein the plaintiff has been described as a Bhumidhar.
9. Before I proceed further, it needs to be noticed that this Court in the case of Ram Lubbaya Kapoor v. J.R. Chawla and Ors. 1986 RLR 432 has held that any land before it can be termed as "land" for the purpose of Delhi Land Reforms Act, 1954 must be held or occupied for Digitally signed Avani Kapur vs. Smriti Talwar DIVYANG by DIVYANG THAKUR Smriti Talwar vs. Avani Kapur & Ors. THAKUR Date: 2025.02.25 16:09:50 +0530 43 of 53 Suit No. 16470/16 Suit No. 485/17 purposes connected with agriculture, horticulture or animal husbandry etc. and if the land is not used for said purposes, it ceases to be land for the purpose of Delhi Land Reforms Act, 1954. It has been further held that a Bhumidhar is bound not only to retain possession of his land but also use it for specified purposes at all material times if he is to continue to be a Bhumidhar. A similar view was taken by this Court in Narain Singh and Another v. Financial Commissioner in WP(C) No. 670 of 1995 decided on July 14, 2008.
10. It is manifest from the above judgments of this Court that a property ceases to be an agricultural property if it is not used for agricultural purposes. In the present case, as noticed above, defendant in its written statement has admitted that the suit property is a farm-house which consists of a dwelling unit on its ground floor and first floor, a swimming pool and servant quarter etc. The defendant has Digitally signed Avani Kapur vs. Smriti Talwar by DIVYANG Smriti Talwar vs. Avani Kapur & Ors. DIVYANG THAKUR THAKUR Date:
2025.02.25 16:09:55 +0530 44 of 53 Suit No. 16470/16 Suit No. 485/17 further admitted that the suit property was leased out to it for the residence of its Managing Director Shri T.S.Sandhu. It is also admitted that the rental of the suit property at the time it was leased out to defendant was Rs.
1,60,000/- per month and it is being continuously used by its Managing Director Shri T.S.Sandhu for his residence.
11. The aforesaid facts coupled with the fact that the plaintiff got the plan sanctioned from the Municipal Corporation of Delhi for raising construction on the so-called agricultural land, obtained completion certificate from the Municipal Corporation of Delhi and is paying house-tax as assessed by the Municipal Corporation of Delhi lead me to no other conclusion except to the conclusion that the suit DIVYANG THAKUR property, by no stretch of imagination, can be Digitally signed by DIVYANG THAKUR Date:
2025.02.25 called an agricultural land. The defendant-
16:10:06 +0530 company who had taken premises on lease for the residence of its Managing Director on a hefty rent of Rs. 1,60,000/- per month is Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors.
45 of 53 Suit No. 16470/16 Suit No. 485/17 estopped from contending that the suit property is an agricultural land covered by the Delhi Land Reforms Act, 1954. Of-course, learned Counsel for the defendant sought to place reliance on the revenue records to make good the submission that the plaintiff continues to be a Bhumidhar in such records but in the facts and circumstances, as noticed above, the description of the plaintiff as a Bhumidhar is of no consequence.
54. In the present case, the photographs of the suit property, the site plan proved by the plaintiff PW-1, and the pleadings of the parties wherein it is the admitted case that the suit property is a piece of land with garden, swimming pool and built up farm house for residence, show that the property has admittedly, even at the time of death of the Late Rajeev Kapur, never been used for agricultural purposes. The defendant has not even averred that she has cultivated the property or used it for agricultural purposes, let along leading any evidence to show any such fact.
Rather it is manifest from her pleadings that even as per her own Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date:
2025.02.25 Avani Kapur vs. Smriti Talwar 16:10:12 +0530 Smriti Talwar vs. Avani Kapur & Ors.
46 of 53 Suit No. 16470/16 Suit No. 485/17 case, she was using the property as a residence and not even cultivating any part of the land or carrying on any animal husbandry, horticulture etc at any period of time, to bring the land under the definition of land under the Delhi Land Reforms Act.
55. In conclusion I find that the suit property is not falling under the provisions of Delhi Land Reform Act, 1954 and consequently Section 50 of the said Act would not govern the intestate succession to the said property and rather, the parties would be governed by the Hindu Succession Act, 1956.
b) Whether the defendant Smrithi Talwar would be the Class I LR of Late Rajeev Kapur?
56. The argument of the Ld Senior Advocate for the Plaintiff hinges upon the fact that before the death of Late Rajeev Kapur in 2005, he and the defendant had jointly moved an application before the Family Court at Bangalore for divorce by mutual consent whereby the defendant had averred along with her husband that "both the petitioners submit that they have no claim against the other". It has been submitted that this declaration has great solemnity attached with it and the defendant and Late Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:10:18 +0530 47 of 53 Suit No. 16470/16 Suit No. 485/17 Rajeev Kapur were separated since 2004 and therefore she cannot succeed to the property of the Late Rajeev Kapur having already declared that she will have no claim against him, prior to his demise.
57. Section 13B of the Hindu Marriage Act, 1955 which allows for divorce by mutual consent i.e. no fault divorce, envisages a two step procedure, namely, moving of the first motion when the parties have been living separately for more than a year and then a minimum cooling off period of six months after which the parties move the second motion after which the Court is empowered, after making inquiries, to pass a decree of divorce. It is the admitted position that no decree of divorce was ever passed severing the bond of marriage between the defendant and Late Rajeev Kapur. The affidavit of the first motion whereby the parties state that they have no claim against each other cannot be construed as a will of the deceased, as admittedly, it does not conform to the provisions of the Indian Succession Act, 1925. When Late Rajeev Kapur died on 14.07.2005, admittedly, the defendant was his widow, even though they had decided to part ways. It is impossible and unwise for a court of law to jump to conclusions about the ultimate fate that the petition for divorce Avani Kapur vs. Smriti Talwar Digitally signed Smriti Talwar vs. Avani Kapur & Ors. DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:10:25 +0530 48 of 53 Suit No. 16470/16 Suit No. 485/17 would have suffered if Late Rajeev Kapur had not expired. Mayhap, the couple could have reconciled, maybe not. Whatever the situation, the position remains that Late Rajeev Kapur died intestate and on the day of his death, the defendant who was his wife through a legal marriage, became his widow. Undisuptedly, the widow is the Class I legal heir under the Hindu Succession Act, 1956. Therefore, I find that the defendant would take a share in the estate of Late Rajeev Kapur as a Class I Legal Heir.
58. Having arrived at the aforesaid conclusions, the position that emerges is that Late Rajeev Kapur had three Class I Lrs, i.e his widow, the Defendant, his daughter i.e. the plaintiff and his mother Late Suvira Kapur. His share of the suit property therefore would be divided among the three equally. As Late Suvira Kapur died, and bequeathed her portion of the suit property as well the share falling to her from her son Rajeev Kapur to the plaintiff, in the final analysis, the plaintiff would have a 5/6th share in the suit property and the defendant, a 1/6th share. The plaintiff would therefore be entitled to a preliminary decree of partition accordingly.
59. A paper challenge has been raised by the defendant to the Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:10:31 +0530 49 of 53 Suit No. 16470/16 Suit No. 485/17 will of Suvira Kapur, however, as neither she would be a Class I legal heir even if Late Suvira Kapur had died intestate, she is in no position to challenge the same as against the plaintiff. In any case, the evidence of the defendant was taken off record as she did not step into the witness box for her continued cross examination, and therefore, any such pleadings of forgery and fabrication remained unsustainable and unproved. In any case, the plaintiff proved the will in accordance with law and produced the testimony of the attesting witness Sh. A. V. Ravindranath (PW-4), who remained unshaken in the cross examination.
60. Here, I may also consider, the suit of Smrithi Talwar, the defendant for permanent and mandatory injunction. In her suit the defendant avers that "the plaintiff had been residing along with her husband during his lifetime in the said suit property and continued to reside therein after the death of her husband. " This fact is contradicted by the averments in the petition of mutual divorce filed by her before the Family Court, Bangalore. Therein it is averred that "subsequent to the marriage both the petitioners resided together as husband and wife at Geneva, Switzerland and in Yangon, Myanmar (Burma)". In the accompanying affidavit dated 06.04.2005, the defendant avers that she is presently Avani Kapur vs. Smriti Talwar Smriti Talwar vs. Avani Kapur & Ors. Digitally signed DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:10:36 +0530 50 of 53 Suit No. 16470/16 Suit No. 485/17 residing at no 1, Prime Street, Richmond Road, Bangalore-560025. It is strange that though it is averred by the defendant in her suit that she was residing at the suit property after her marriage, not a single mention is made of the same in the divorce petition even though, other places such as Switzerland and Myanmar are mentioned. Even in the affidavit, the current place of residence is shown in Bangalore. It does not appear that the defendant had approached the Court with clean hands. Adverse inference has to also be drawn from the fact that, for all intents and purposes, the defendant never stepped into the witness box, as she did not appear in order to allow the cross examination to be conducted and completed and her affidavit was taken off the record and cannot be read into evidence. The opposite party had, therefore, no opportunity to seek clarification from the defendant about the apparent contradiction in her pleadings and evidence affidavit and in the affidavit of first motion admittedly filed by her before the Family Court at Bangalore. Such being the position, it would be unwise for the court to act on the pleadings of the defendant in order to decree her suit. The defendant also never, in the first instance disclosed the contents of the divorce petition before the Court, even though Avani Kapur vs. Smriti Talwar Digitally signed Smriti Talwar vs. Avani Kapur & Ors.
DIVYANG by DIVYANG THAKUR THAKUR Date: 2025.02.25 16:10:42 +0530 51 of 53 Suit No. 16470/16 Suit No. 485/17 the same was material to her assertion that after marriage she had resided at the suit property along with her husband. It would have been a different matter if the defendant had disclosed the affidavit and given a clarification or any qualification to explain her blanket averment in her plaint that she was residing with her husband at the suit property. Rather, it is not mentioned in her plaint that she was residing with her husband out of India nor the period of such stay outside India is clarified. It is the settled law that in a suit for injunction which is a discretionary relief of a Court of equity, a plaintiff must approach with clean hands and without the concealment of facts. A plaintiff in a suit for injunction who does not step into the witness box and is found to have concealed facts is not entitled to any relief. Therefore, I have to refuse the prayers sought for by the defendant in her suit. However, as I have found that the plaintiff and defendant are co sharers in the suit property and therefore, entitled to a decree of partition, the parties shall maintain status quo in all respects till such time as the final decree of partition is passed.
61. Accordingly, I find that (a) in suit titled "Smrithi Talwar v. Avani Kapur", Issues 1,3 and 4 are decided against the plaintiff Smrithi Talwar and in favour of the defendant Avani Kapur and Digitally signed Avani Kapur vs. Smriti Talwar DIVYANG by DIVYANG Smriti Talwar vs. Avani Kapur & Ors. THAKUR THAKUR Date: 2025.02.25 16:10:48 +0530 52 of 53 Suit No. 16470/16 Suit No. 485/17 issue no 2 is decided against the defendant and in favour of the plaintiff as the same was never pressed; (b) in suit titled "Avani Kapur v. Smrithi Talwar" issues 1,2,3,4 and 5 are decided against the defendant Smrithi Talwar and in favor of the plaintiff Avani Kapur whereas issue 7 is decided against the plaintiff Avani Kapur and in favour of the defendant Smrithi Talwar as it is held that Avani Kapur is not the sole owner of the suit property. Issue no 6 is held in favour of the plaintiff Avani Kapur. RELIEF
62. Consequently, the parties are found entitled to the following reliefs:- In suit titled "Avani Kapur v. Smrithi Talwar",
(a) a preliminary decree of partition is passed declaring the plaintiff Avani Kapur to have a 5/6 th share and the defendant Smrithi Talwar a 1/6th share in the "suit property" i.e. B-7, Pushpanjali Farms, Bijwasan, New Delhi. (b) a decree of injunction is passed against the parties and they are directed to maintain status quo subject to the final decree of partition; (c) the suit titled "Smrithi Talwar v. Avani Kapur" stands dismissed; (d) parties shall bear their own costs in both the suits.
63. Decree sheets be prepared accordingly in both the suits. Digitally signed by Avani Kapur vs. Smriti Talwar DIVYANG DIVYANG THAKUR Smriti Talwar vs. Avani Kapur & Ors. THAKUR Date: 2025.02.25 16:10:53 +0530 53 of 53 Suit No. 16470/16 Suit No. 485/17
64. File of "Smrithi Talwar v. Avani Kapur" be consigned to Record Room after due compliance. The suit titled " Avani Kapur v. Smrithi Talwar" shall vide separate order be listed for consideration on passing the final decree of partition.
Digitally signed by DIVYANG DIVYANG THAKUR THAKUR Date: 2025.02.25 16:10:59 +0530 Announced in the open court (Sh. Divyang Thakur) On 25.02.2025 DJ-03, Dwarka New Delhi Avani Kapur vs. Smriti Talwar
Smriti Talwar vs. Avani Kapur & Ors.