Delhi District Court
Ms. Sunita Kalra vs Sh. Chander Pal Talreja on 27 July, 2011
IN THE COURT OF SHRI ARUN GOEL, CIVIL JUDGE (WEST),
TIS HAZARI COURTS, DELHI
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Suit No. 338/09/06
Date of Institution : 08.09.1997
Date of Arguments : 25.07.2011
Date of Judgment : 27.07.2011
IN THE MATTER OF :
Ms. Sunita Kalra,
W/o Late Kasturi Lal Kalra
R/o PP44, Ist floor, Pitampura,
Delhi - 110034 ...PLAINTIFFS
VERSUS
1. Sh. Chander Pal Talreja
S/o Sh. Bishan Dass Talreja.
2. Smt. Ruchi Talreja,
D/o late K.L Kalra,
W/o C.P Talreja.
Both Residents of IInd floor PP44, Pitampura,
Delhi - 110034. ...DEFENDANTS
SUIT FOR RECOVERY OF POSSESSION AND RECOVERY OF
MESNE PROFITS ALONG WITH INTEREST.
JUDGMENT:
1. The plaintiff has stated that she is the owner of the property bearing no. PP44, Pitam Pura, Delhi - 110034 (hereinafter Suit no. 338/09/06 Page 1 referred as 'suit property') which is a two and half storyed building constructed on 84 sq. meter lease hold plot allotted to late Shri Kasturi Lal Kalra.
2. It is stated by the plaintiff that the suit property was allotted to the husband of the plaintiff Late Shri Kasturi Lal Kalra. At the time of death of the husband of the plaintiff on 08.03.1987 suit property was constructed up to Ground Floor only. He died intestate leaving three LRs namely, (1)Smt. Sunita Kalra (widow) Plaintiff, (2) Km. Ruchi Kalra (daughter), defendant no.2, and (3) Km. Niti Kalra (minor) daughter.
It is further stated that after the death of the husband of the plaintiff the suit property was constructed on First Floor and second Floor from 1991 to 1993.
3. The plaintiff has further stated that the defendant no.2 had executed the relinquished deed dated 03.05.1995, relinquishing her share in the suit property in favour of the plaintiff and her sister Km. Niti Kalra. The plaintiff has further stated that the suit property stands mutated in her name vide order of the Delhi Development Authority on 08.02.1996. It is submitted by the plaintiff that the defendant no.2 after her marriage with defendant no.1 request the plaintiff to let them reside at the Second Floor of the suit property as they were not able to pay the market rent and on her request the plaintiff allowed them to reside at the suit property as a licensee, since 1994.
4. It is further stated by the plaintiff that the younger daughter namely Km. Niti Kalra had committed suicide on 27.03.1996. The plaintiff has further stated that the defendant took the advantage of helplessness of the plaintiff and forceful occupied the Ground Suit no. 338/09/06 Page 2 Floor of the suit property and push the plaintiff to the First Floor of the suit property. It is further stated that vide legal notice dated 05.02.1997,The plaintiff terminated the license of the defendant with respect of Ground Floor as well as Second Floor of the suit property.
5. The plaintiff has filed the present suit for recovery of possession of the Ground Floor as well Second Floor of the suit property. She has further prayed for decree of mesne profits of Rs.61,875/ and also prayed for pendent lite mesne profits @ Rs.10,000/ per month along with interest @ 15% p.a till the recovery of possession.
6. Written statement (herein after referred as 'W/S') has been filed on behalf of defendant who has taken the preliminary objection that the defendant no.2 is the 50% owner of the suit property and also in physical possession of the suit property of Ground Floor as well as Second Floor of the suit property. They have further stated that the plaintiff has no cause of action against the defendant no.1 and 2.
7. On merits, it is admitted that the suit property was allotted to Late Shri Kasturi Lal Kalra who died on 08.03.1987 left behind three LRs i.e. Plaintiff, defendant no. 2 and Km. Niti Kalra. However, the defendant has denied that the construction of the First Floor and the Second Floor was completed by the plaintiff. It is further stated that after the death of her husband , the plaintiff requested to the defendant and her husband to come to the suit property and live there. They have further stated that the plaintiff was doing the job of clerk in DESU and she was not in capacity to raise the construction due to paucity of fund. The defendants have further stated that the plaintiff had also advised defendant no.2 Suit no. 338/09/06 Page 3 that as her husband is running a handsome business, they can raise the construction of the First Floor and Second Floor out of their own funds. Accordingly defendant no.2 after receipt of Rs.2,75,000/ from defendant no.1 started construction at the First Floor and the Second Floor of the suit property. It is further stated that the construction of the suit property was completed in the month of July'1994.
8. The defendant no. 2 has further stated that the plaintiff with malafied intention and out of love and affection washed the brain of defendant no.2. She advised the defendant no. 2 to sign the English typed documents stating that thereby both the sisters i.e, defendant no.2 and Km. Niti Kalra will become 50% owner of the joint family property after the death of the plaintiff. It is stated that the relinquished deed dated 03.05.1995 was got signed by the plaintiff on the above said pretext. The plaintiff has further admitted that the suit property is mutated in the name of the plaintiff vide order dated 08.02.1996 of the Delhi Development Authority. The defendant has further denied that they have requested the plaintiff to let them live at the suit property. It is further stated that the defendants have made a contribution of Rs.2,75,000/ for the construction of the suit property. The defendants have denied that they are licensee under the plaintiff but they have stated that the defendant no. 2 is the coowner of the half share of the suit property.
9. The defendants have admitted that they have received the legal notice dated 04.02.1997 and 05.02.1997. The rest of the contentions have been denied by the defendants. They have prayed for the dismissal of the present suit.
10.On the completion of the pleadings, following issues were Suit no. 338/09/06 Page 4 framed vide order dated 19.09.2000.
i. Whether the plaintiff is owner of the property bearing no. PP44, Pitam Pura, New Delhi? OPP ii. Whether the defendant's possession over the Ground Floor and the Second Floor of property no. PP44, Pitam Pura, New Delhi, is in the capacity of a licensee? OPP.
iii.Whether the possession of the defendants after service of the notice dated 04.02.1997 is that an unauthorized occupant, if so, to what effect? OPP iv.Whether the plaintiff is entitled to possession or Ground Floor and the Second Floor of the premises in question? OPP.
v. Whether the plaintiff is entitled to mesne profits and interest, if so, at what period and for what amount? OPP.
vi.Whether the suit of the plaintiff is not maintainable in view of preliminary objections no.1 and 2? OPD.
vii.Whether the defendant no.1 contributed Rs.2,75,000/ in the construction of property bearing no. PP44, Pitam Pura, New Delhi, if so, what is its effect? OPD viii.Whether the defendant no.2 is the coowner of the suit property? OPD ix.Relief.
11.Thereafter matter was listed for P.E. In support of his case plaintiff himself deposed as PW1 and also examined himself. In support of his case plaintiff has relied upon the documents i.e. mutation order is Ex.P1, certified copy of registered deed is Ex.P2, legal notice served upon the defendant is Ex.P3 and Ex.P4, copy of the reply is Ex.P5, notice sent by the defendant is Ex.P6 and Ex.P7, reply to the said notice dated 04.02.1997 is Ex.P8, site plan is Ex.P9 and electricity and water bill is Ex.P10 and Ex.P11.
Suit no. 338/09/06 Page 5 Thereafter the plaintiff's evidence was closed vide order dated 06.07.2001.
12.Thereafter, the matter was fixed for defendant's evidence. However, repeated opportunities was given to the defendant to lead defendant's evidence. Affidavit of evidence of the defendant filed but the defendant failed to tender himself for cross examination despite repeated opportunities. The right to lead defendant's evidence was closed on 02.04.2011.
13.Thereafter, the matter was fixed for final arguments.
14.I have heard the counsel for the plaintiff and have perused the record carefully. Ld. Counsel for the defendant failed to advance arguments, despite repeated opportunities. My issue wise finding is given as below: ISSUE NO. 1, 6 and 8 are decided together.
1. Whether the plaintiff is owner of the property bearing no. PP 44, Pitam Pura, New Delhi? OPP.
6. Whether the suit of the plaintiff is not maintainable in view of preliminary objections no.1 and 2? OPP.
8. Whether the defendant no.2 is the coowner of the suit property? OPD The plaintiff in the present case has admitted that the property was initially owned by Late Sh. Kasturi Lal Kalra, who had died leaving behind three legal heirs namely Smt. Sunita Kalra, plaintiff, Km. Ruchi Kalra, defendant no. 3 and Km. Niti Kalra (minor). It is further admitted case that Sh. K.L Kalra died intestate. In such case, all the three LR's become the coownerof the suit property, up to 33.33% each. It is also stated by the plaintiff that the relinquishment deed dated 03.05.1995 was executed by the defendant no. 2 in favour of the plaintiff and Niti Suit no. 338/09/06 Page 6 Kalra.
In such case, after the execution of the relinquished deed, the plaintiff as well as Niti Kalra, became the owners of the suit property up to 50% each. It is further admitted between both the parties that Km. Niti Kalra committed suicide on 27.03.1996 and she was minor on the date of her death. The plaintiff in the present case has stated that as defendant no. 2 has relinquished her share in the name of plaintiff and moreover after the death of Km. Niti Kalra, she became the owner of the suit property. During the arguments, Ld. Counsel for the plaintiff was asked to clarify how the succession of the property of Km. Niti Kalra would take place.
Ld. Counsel for the plaintiff has stated that in the present case, the succession of the property of Km. Niti Kalra will take place according to the provisions of Section 15 (1) of Hindu Succession Act, 1956 (hereinafter referred as ' Succession Act'). It is further stated by the counsel that the provisions of Section 15 (1) provides, how the property of a Hindu female will devolve. It was further stated that Section 15 (1) (a) and 15 (1)
(b) will not be applicable in case Km. Niti Kalra as she was not married and as per Section 15 (1) ( c), the whole share of the Km. Niti Kalra will devolve upon the mother and father. As the father has already died, the whole property will devolve upon the mother and she become the owner of the whole of the suit property.
However, the contention raised by the Ld. Counsel for the plaintiff is not fully correct. The property which was inherited by Km. Niti Kalra came to her from two sources. She had inherited 33.33% share of the suit property from her father, while 16.66% Suit no. 338/09/06 Page 7 of the property was inherited by her from her sister Smt. Ruchi Kalra, defendant no. 2 vide the relinquishment deed dated 03.05.1995.
The section 15 of the Hindu Succession Act provides the rules which are to be applied in case of succession of the property of female Hindu, dying intestate. Section 15 of the Hindu Succession Act states as : "15. General rules of succession in the case of female Hindus: (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16:
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) 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 pre deceased son or daughter) not upon the other heirs referred to in subsection (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her 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 heirs of the husband"
The above said section deals devolution to the property of the female Hindu, but the devolution depends upon the source of the property. The Section 15 (1) deals with the property which is self acquired property of the female and also which is not covered by section 15(2). The Section 15 (2) (a) deals with the property which is inherited by female from her mother and father. Section 15(2)(b) deals with the property which is Suit no. 338/09/06 Page 8 inherited by female from her husband or fatherinlaw. In case of female Hindu, Succession of the property is governed according to the source from which property is acquired by the female. In the present case, the property which Km. Niti Kalra had two sources. She had 33.33% inherited from her father and another 16.66%. from her sister .
As far as the property inherited from her sister is concerned, in that case, provision of Section 15 (1) will apply. However, as far as, the property which is inherited by Km. Niti Kalra from her father is concerned, the provisions of Section 15 (2) (a) will apply.
Ld. Counsel for the plaintiff has stated that the provisions of Section 15 (2) are only applicable in case of married female. However, perusal of above said section reveals that no difference has been made in case of inheritance of female, on the ground that whether she is married or unmarried. In the present case, the property consisting of 33.3%, which was inherited by Km. Niti Kalra from her father , the same will devolve according to the provisions of Section 15 (2) (a) which provides that In case of absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) the property will devolve upon the heirs of the father. The Section 8 of the succession Act provides the rules which are according to the property of the male Hindu shall devolve. It provides as: " General rules of succession in the case of males. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter Suit no. 338/09/06 Page 9
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of two classes, then upon the agnates of the deceased; and
(d) lastly , if there is no agnate, then upon the cognates of the deceased"
Perusal of the above said Section reveals that the property is to devolve upon the heirs including in class 1 of the scheduled. The Schedule provides as CLASS I "Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a pre deceased son of a predeceased son, daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son [son of a predeceased daughter of a predeceased daughter:
daughter of a predeceased daughter of a predeceased daughter; daughter of a predeceased son of a predeceased daughter; daughter of a pre - deceased daughter of a predeceased son]". In the above said Class I category, both the daughter and the widow are included as the heir of the Hindu male and in the present case, both the plaintiff and the defendant no 2 are respectively widow and daughter of Late Sh. K.L Kalra . In such case, the property of the Km. Niti Kalra comprises of 33.33% will devolve both on plaintiff and the defendant no. 2. In such case, the defendant no. 2 will be the coowners of the property in the present case.
Reliance is also placed on the judgment of Hon'ble Supreme Court reported as AIR 1999 SUPREME COURT 1944 "Bhagat Ram Suit no. 338/09/06 Page 10 v. Teja Singh"
In the said judgment, similar question arose about the rule which will govern the devolution to the property of a Hindu female. In this case, the property was inherited by two sisters from their mother, both were married, one sister died. The question was whether the inheritance of the property will be covered under the provisions of Section 15 (1) or 15 (2)(a). Hon'ble Supreme Court have observed that the property will devolve according to section 15( 2)(a). Hon'ble Supreme Court observed as: "6. On perusal of the two subsections we find that their spheres are very clearly marked out. So far subsection (1), it covers the properties of a female Hindu dying intestate. Subsection (2) starts with the words 'Notwithstanding anything contained in subsection (1)'. In other words, what falls within the sphere of subsection (2), subsection (1) will not apply. We find that Section 15(2)(a) uses the words 'any property inherited by a female Hindu from her father or mother'. Thus property inherited by a female Hindu from her father and mother is carved out from a female Hindu dying intestate. In other words any property of female Hindu, if inherited by her from her father or mother would not fall under subsection (1) of Section 15. Thus, property of a female Hindu can be classified under two heads : Every property of a female Hindu dying intestate is a general class by itself covering all the properties but subsection (2) excludes out of the aforesaid properties the property inherited by her from her father or mother.
7. In addition, we find the language used in Section 15(1) read with Section
16 makes it clearly, the class who has to succeed to property of Hindu female dying intestate. Subsection (1) specifically states that the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16. So, in case subsection (1) applies, then after the death of Santi, Indro cannot inherit by succession but it would go to the heirs of the pre deceased husband of Santi.
8. In the present case, it is not in dispute that both Indro and Santi inherited Suit no. 338/09/06 Page 11 this property from their mother, hence inherited this property as a female from her mother. Thus on the facts of this case succession clearly falls under subsection (2). Hence, we have no hesitation to hold that on the facts of this case, the property would devolve after death of Santi not on the heirs of her predeceased husband but would devolve on Indro. This legal principle has wrongly been decided by all the Courts below including the High Court."
In view of the above stated discussions, the defendant no. 2 is the coowner of the property with the plaintiff, in the present case. Hence, these issues are decided in favour of the defendant and against the plaintiff.
ISSUES No. 2 and 3 are decided together.
2. Whether the defendant's possession over the Ground Floor and the Second Floor of property no. PP44, Pitam Pura, New Delhi, is in the capacity of a licensee? OPP.
3. Whether the possession of the defendants after service of the notice dated 04.02.1997 is that an unauthorized occupant, if so, to what effect? OPP The onus to prove these issues were upon the plaintiff. As per my findings on issue nos. 1, 6 and 8, these issues are also decided against the plaintiff.
ISSUE Nos. 4 and 5 are decided together.
4. Whether the plaintiff is entitled to possession or Ground Floor and the Second Floor of the premises in question? OPP.
5. Whether the plaintiff is entitled to mesne profits and interest, if so, at what period and for what amount? OPP. As per my findings on issue no. 1, 6 and 8, it is held that defendant no. 2 is the coowner of the suit property The defendant no. 1 is the husband of defendant no. 2. As the defendant no. 2 is the co owner, a suit for eviction cannot be Suit no. 338/09/06 Page 12 filed by one coowner against the another coowner. Reliance is also placed on the Judgment of Punjab and Haryana High Court reported as "Sant Ram Nagina Ram vs Daya Ram Nagina Ram And Ors reported in AIR 1961 P H 528" wherein the Hon'ble High Court has observed as : "19. In so far as a coowner is entitled to the possession of the entire common property he cannot be dispossessed by maintaining an action for ejectment at the instance of the others, and this is so, even in those cases, where the portion of the common property in his exclusive occupation exceeds his share to which he would be entitled on partition. The remedy of the co owners where they do not agree among themselves, either as to user or enjoyment in the event of exclusion is to sue for partition and for the settlement of accounts. In the event of an ouster of a coowner the person ousted can maintain an action for joint possession though not for ejectment".
Perusal of the above said judgment reveals that one owner cannot file suit for eviction against the another coowner. Accordingly, these issues are also decided against the plaintiff. ISSUE No. 7.
Whether the defendant no.1 contributed Rs.2,75,000/ in the construction of property bearing no. PP44, Pitam Pura, New Delhi, if so, what is its effect? OPD The onus to prove this issue was upon the defendant. In the present case, no evidence has been lead on behalf of the defendant to prove that any contribution was made by the defendant no. 1 in the suit property. Hence, this issue is decided against the defendant.
Suit no. 338/09/06 Page 13
RELIEF.
As per my findings on issue nos. 1, 4, 5, 6 and 8, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly File be consigned to record room after making necessary compliance.
Announced in the Open Court (ARUN GOEL) on 27th JULY, 2011 CIVIL JUDGE/WEST All Pages Signed DELHI Suit no. 338/09/06 Page 14