Delhi District Court
Sonali Sharma vs . Sh. Naresh Kumar Sharma & Ors. on 28 February, 2015
IN THE COURT OF SH. PRASHANT KUMAR,
ADJ04 (NW), ROHINI DISTRICT COURTS, DELHI.
CS No. 352/14
Sonali Sharma Vs. Sh. Naresh Kumar Sharma & Ors.
Miss Sonali Sharma
D/o Sh. Naresh Kumar Sharma,
R/o H. No. 64, Kapil Vihar,
Pitam Pura, Delhi110034. .............Plaintiff No. 1.
2. Smt. Parmeshwari,
W/o Late Sh. Ram Kumar Sharma,
R/o 132/1, Sector34, Janta Colony,
Rohtak (Haryana) ............Plaintiff No. 2.
Versus
1. Sh. Naresh Kumar Sharma
S/o Late Sh. Ram Kumar Sharma,
R/o H. No. 64, Kapil Vihar,
Pitam Pura, Delhi110034. .......... Defendant no. 1
2. Smt. Sunita,
W/o Sh. Devendra Kumar,
D/o Late Sh. Ram Kumar Sharma,
R/o 132/1, Sector34, Janta Colony,
Rohtak (Haryana) .......... Defendant no. 2
3. Miss Dolly Sharma
D/o Sh. Naresh Kumar Sharma,
R/o H. No. 64, Kapil Vihar,
Pitam Pura, Delhi110034. .......... Defendant no. 3
CS No. 352/14 Page No. 1/28
Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
4. Master Sameer Sharma
S/o Sh. Naresh Kumar Sharma,
R/o H. No. 64, Kapil Vihar,
Pitam Pura, Delhi110034.
(Through its father Sh. Naresh Kumar Sharma) ..........Defendant No. 4.
Date of Institution of the case : 07.11.2009
Date of hearing the arguments : 13.02.2015
Date of announcing the Judgment : 28.02.2015
J U D G M E N T
1. By this Judgment, I shall pronounce final Judgment in this case.
2. The facts of the case filed by the plaintiff in brief are as under:
It is stated that plaintiff no. 1 is residing in suit property in question which was purchased by her grand father from his own source of income, who was a Government servant. It is further stated that plaintiff no. 1 was serving in Drona Institute, Delhi and was earning more than Rs. 10,000/ per month. It is further stated that suit property in question was purchased by her grandfather and she is a cosharer in suit property in question. It is further stated that her grand father expired on 03.11.2004 leaving behind his legal heirs i.e. his son Sh. Naresh Kumar Sharma, his wife Smt. Parmeshwari Devi, his daughter Smt. Sunita Bhardwaj, his grand daughters Ms. Sonali Sharma and Ms. Dolly Sharma and his grandson Master Sameer CS No. 352/14 Page No. 2/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
Sharma. It is further stated that the construction and renovation of the suit property in question was carried out by Late Sh. Ram Kumar during his lifetime out of his own funds. It is further stated that plaintiff no. 1 is being harassed physically, sexually and mentally by her father i.e. defendant no. 1 for last so many years. It is further stated that defendant no. 1 used to beat plaintiff no. 1 without any reason and he used to raise finger on her character. It is further stated that the plaintiff no. 1 has several times complained the matter to the police. It is further stated that on 28.09.2009 also the matter was reported to the police and plaintiff no. 1 was got medically examined by the police in Mahaveera Hospital, Pitam Pura, Delhi. It is further stated that one criminal case against the defendant no. 1 is also pending in the court of Sh. Satish Kumar, Ld. MM, Rohini Courts, Delhi. It is further stated that the defendant no. 1 has been assaulting the plaintiff no. 1 time and again and she has made police complaints on several occasions. It is further stated that plaintiff no. 1 has so many times requested her father, grandmother and other cosharer to divide the suit property in question by mutual consent but the defendants are not interested for the same and defendant no. 1 flatly refused for the same and threatened her with dire consequences. It is further stated that the plaintiff no. 1 also approached the common relatives and friends requesting them to reconcile the matter but all efforts went in vain. It is CS No. 352/14 Page No. 3/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
further stated that the plaintiff no. 1 got issued the legal notice dated 05.10.2009 requesting the defendants to give the proportionate share in the ancestral property but inspite of receiving legal notice, the defendants are not ready to give share of plaintiff no. 1 in the said property. Hence, the present suit has been filed.
3. In his written statement, it is stated by defendants no. 1, 3 & 4 that the plaintiff has no right, title or interest in the suit property in question as the Hindu Succession (Amendment) Act 2005 came into force w.e.f. 05.09.2005 and as per the case of plaintiff her grandfather, who was admittedly original owner of the suit property in question expired on 03.11.2004. Hence, the suit filed by the plaintiff is not maintainable. It is further stated that on the death of father of defendant no. 1 on 03.11.2004, the presumptive HUF came to end and there was no HUF on the promulgation of the aforesaid Act no. 39 of 2005 on the basis of which the plaintiff is claiming her right in the suit property in question. The suit is, therefore, not maintainable.
It is further stated that plaintiff no. 1, defendant no. 3 & 4 have no right, title of interest over the suit property in question and after death of father of defendant no. 1, property devolved upon his class I heirs i.e. upon his widow and upon the defendant no. being son and Smt. Sunita Bhardwaj being daughter of Sh. Ram Kumar Sharma. CS No. 352/14 Page No. 4/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
It is further stated that the suit is bad due to misjoinder of parties and the defendants no. 4, 5 & 6 have no right, title or interest in the suit property in question. It is further stated that after the death of Sh. Ram Kumar Sharma, Smt. Parmeshwari Devi and Smt. Sunita Bhardwaj, executed relinquishment deed dated 10.02.2006 in favour of defendant no. 1. It is further stated that the defendant no. 1 has got converted the suit property in question from leasehold to freehold after following due procedure and the defendant no. 1 is now the registered owner of the suit property in question vide conveyance deed executed by DDA in his favour.
It is further stated that the plaintiff no. 1, who is the daughter of the defendant no. 1 is staying in the suit property in question as a licencee, however, she has no right, title or interest in the suit property in question. She has gone astray from the path of rectitude and on objections of defendant no. 1 and his wife she used to abuse, insult and disgrace them and used to make PCR calls at drop of a hat. It is further stated that plaintiff no. 1 had also got lodged an FIR No. 575/09 under Section 376/34 IPC making allegations against defendant no. 1 and his wife. It is further stated that defendant no. 1 hereby canceled the plaintiff's licence to reside in the said property who was residing in the suit property in question in her capacity of being daughter of defendant no. 1 and as her licence to stay in the CS No. 352/14 Page No. 5/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
suit property in question has been canceled, she has no right to stay in the suit property in question and the defendant no. 1 is making counter claim in the form of mandatory injunction seeking the plaintiff being mandated to remove herself and her belongings from the room on the ground floor of the suit property in question.
It is further stated that the property in question was purchased with the joint earnings of defendant no. 1 and earnings of his deceased father and the amount spent over the construction of the said property including the renovation from time to time was the joint earning of defendant no. 1 and his father. The defendant no. 1 had been living with his father since his birth and being an employee he had been giving all his earnings to his father.
It is further stated that suit property in question is not joint family property. Defendant no. 1 has not disputed that Ram Kumar Sharma died intestate. Plaintiff has lodged a false complaint and FIR against defendant no. 1. The allegations mentioned in the said FIR are false. Defendant no. 1 had already disinherited the plaintiff for which he has given a public notice through publication in Newspaper. The object of plaintiff for leveling the allegations against defendant no. 1 and his wife is that she wants to extort money and property from defendant no. 1. It is further stated that plaintiff is also in relation with one boy Kuldeep.
CS No. 352/14 Page No. 6/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
4. In his WS, defendant Sunita Bhardwaj has stated that the property was purchased by her father and the grand father of the plaintiff. Defendant Sunita Bhardwaj is cosharer in the property. Ram Kumar Sharma died intestate leaving behind legal heirs which are mention in para 1 C of the WS. The property was constructed by Late Ram Kumar Sharma out of his own earning and defendant no. 1 did not contribute anything. Ram Kumar Sharma was harassed and physically assaulted by defendant no. 1. Defendant Sunita Bhardwaj has requested defendant no. 1 to divide the property by metes and bounds. Defendant Sunita Bhardwaj came to know about the relinquishment deed dated 10.02.2006 when the court file was inspected by her counsel on 19.12.2002. with regard to all the other facts alleged by the plaintiff in the plaint, the defendant Sunita Bhardwaj has denied them due to want of knowledge.
5. Before proceeding further, it is important to mention here that initially Sonali Sharma was the only plaintiff in this case and there were five defendants including Parmeshwari Devi who also filed her written statement. However, subsequently, Parmeshwari Devi became plaintiff no. 2 in this case vide order dated 19.01.2011. Thus, as per the new amended memo of the parties now there are two plaintiffs and four defendants and defendant no. 1, 3 and 4 are on one CS No. 352/14 Page No. 7/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
side who are contesting against the plaintiffs and defendant no. 2 is on one side who is supporting the case of plaintiffs.
6. After the completion of pleadings, following issues were framed vide order dated 24.04.2012
(i) Whether the plaintiff no. 1 has right, title or interest in the suit property in question? OPP1.
(ii) Whether the plaintiff no. 1 is entitled to the decree of partition of the suit property in question as prayed? OPP.
(iii) Whether the plaintiff no. 1 is entitled for decree of permanent injunction in her favour and against the defendants as prayed? OPP.
(iv) Whether the defendant no. 1 is entitled to decree of mandatory injunction as prayed in the counter claim? OPD1
(v) Whether the defendant no. 1 is entitled to decree for a sum of Rs. 20,000/ per month towards the damages and mesne profits against plaintiff no. 1 as prayed? OPD1.
(vi) Whether the defendant no. 1 is entitled for decree of perpetual injunction against plaintiff no. 1 as prayed? OPD1.
7. Before proceeding further, It is pertinent to mention here that two witnesses have been examined by the plaintiff in PE and the defendant no. 1, 3 & 4 have examined two witnesses in their defence, CS No. 352/14 Page No. 8/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
and defendant no. 2 has examined herself as the sole witness during her defence evidence.
8. Arguments heard at length from both the sides. Record is also perused thoroughly as well.
9. My issue wise findings are as under:
Issue No. 1: Whether the plaintiff no. 1 has right, title or interest in the suit property in question? OPP1.
Issue No. 2: Whether the plaintiff no. 1 is entitled to the decree of partition of the suit property in question as prayed? OPP.
Onus of both these issues is upon plaintiff. Both these issues are interlinked. Hence, they are taken up together.
Plaintiff has examined herself as PW1 and has stated that the property in question was purchased by her grandfather from his own source of income who was a Government servant. The copy of allotment letter is Ex. PW1/3 and copy of share certificate in respect of suit property in question is Ex. PW1/4. The appreciation certificate given to the grandfather of plaintiff no. 1 is Mark A. It is stated that grandfather of PW1 constructed the house from his own income by obtaining a loan. The letter of taking housing loan is Mark B. The sanction letter of housing loan dated 02.09.1987 is Mark C. It is CS No. 352/14 Page No. 9/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
further stated that her grandfather also withdraw Rs. 10,000/ from his GPF vide letter dated 12.11.1990 which is Mark D. It is submitted by water and electricity connection is in the name of her grandfather, the copy of water bill is Ex. PW1/9 and electricity bill Ex. PW1/10. It is submitted by PW1 that she is a cosharer in the suit property in question. It is stated that her grandfather expired on 03.11.2004. The death certificate is Ex. PW1/11. The legal heirs after his death are:
(a) Naresh Sharma (son)
(b) Parmeshwari (wife)
(c) Sunita Bhardwaj (Daughter)
(d) Sonali Sharma (grand daughter)
(e) Dolly Sharma (grand daughter)
(f) Sameer Sharma (grand son) It is further stated that construction and renovation of the suit property in question was carried out by Late Sh. Ram Kumar Sharma out of his own savings and earning. It is stated that Ram Kumar Sharma died without executing any Will or any other document in favour of anyone. PW1 has stated certain facts which are part and parcel of an FIR lodged against her father defendant no. 1 under section 376 IPC and facts alleged from para no. 12 to para no. 21 are pertaining to the said FIR against defendant no. 1 under which PW1 has alleged that her father has been beating, threatening and abusing CS No. 352/14 Page No. 10/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
her for which several complaints have been lodged.
It is further stated that PW1 had requested her father, grand mother and other cosharer to divide the property by mutual consent, however, defendants have not acceded to the request of plaintiff nor any family settlement has been arrived at. PW1 has stated that she is having 1/ 12th share in the property in question. Site plan of the suit property in question is Ex. PW1/15. It is further stated by PW1 that she also asked the defendants, in first week of October 2009 to divide the property among the family members which has been declined. PW1 has given a legal notice dated 22.10.2009 which is Ex. PW1/16. It is further stated that defendant no. 1 has been continuously threatening her to take forceful possession and defendant no. 1 and his friends are threatening to kill her. PW1 has further stated that she has the possession of the room shown in the red colour in site plan. It is further stated that defendant no. 1 is not the absolute owner of the suit property in question which is the ancestral property purchased by her grandfather. PW1 has alleged herself as coparcener in the suit property in question. It is further stated that plaintiff no. 2 and defendant no. 2 have 1/3rd share each in the suit property in question. It is submitted by Parmeshwari Devi and Sunita Bhardwaj never relinquished their share vide relinquishment deed dated 10.02.2006 in favour of defendant no. 1.
CS No. 352/14 Page No. 11/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
During his cross examination, PW1 has expressed her ignorance that suit property in question has been converted from leasehold to freehold and conveyance deed is in name of her father defendant no. 1. So far as other part of cross examination is concerned, no material contradiction has emerged.
PW2 is Parmeshwari Devi who has stated that the suit property in question was purchased by her husband Sh. Ram Kumar Sharma from his own source of income, who was a Government servant. PW2 has alleged herself as cosharer in the suit property in question. It is stated that Ram Kumar Sharma expired on 03.11.2004 without executing any Will or any other document. It is stated that construction and renovation of the property was carried out by her husband out of his own savings and earnings by taking a loan from his department. It is further stated that Ram Kumar Sharma also withdrew amount from his GPF for this purpose and defendant no. 1 Naresh Kumar Sharma did not contribute even a single penny in purchase and construction of the suit property in question. It is further stated that husband of PW2 was harassed and physically assaulted by defendant no. 1 and defendant no. 1 and his wife also tried to dispossess Ram Kumar Sharma and PW2. Husband of PW2 had lodged a police complaint against defendant no. 1 on 18.12.1998. The copy of the complaint is Ex. PW2/1. It is further stated that plaintiff no. CS No. 352/14 Page No. 12/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
2 alongwith plaintiff no. 1 requested so many time to defendant no. 1 to divide the property by metes and bounds, however defendant no. 1 has refused. PW2 has further stated that she received a legal notice dated 05.10.2009 and requested defendant no. 1 for partition, however, defendant no. 1 refused again. It is further stated that PW2 received summons in the second week of November 2009 in the present suit and when, on 20.11.2009 she reached at her H. No. 64, Kapil Vihar, Pitam Pura, Delhi then defendant no. 1 and his wife did not allow her to enter into her own house and threatened her as well. PW2, thereafter, made a call at 100 no. The police came and lodged the complaint of plaintiff no. 2 which is dated 20.11.2009. Police also medically examined the plaintiff no. 2, the copy of complaint is Ex. PW2/2 and MLC is Ex. PW2/3. PW2 also lodged a complaint dated 23.11.2009 which is Ex. PW2/4. It is further stated that PW2 engaged her counsel in this matter and inspected the court file and found that one copy of relinquishment deed dated 10.02.2006 has been filed by defendant no. 1. PW2 has never relinquished her share in favour of defendant no. 1. PW2 is an illiterate lady and defendant no. 1 has took the advantage of her illiteracy. It is further stated that defendant no. 1 obtained the thumb impressions of plaintiff no. 2 on certain papers under the pretext that the property was to be mutated in the name of all the legal heirs of Late Sh. Ram Kumar Sharma and has CS No. 352/14 Page No. 13/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
misused those papers and got executed the relinquishment deed dated 10.02.2006 in his favour. It is further stated that defendant no. 1 has been assaulting plaintiff no. 1 time and again for which plaintiff no. 1 has made several complaints. Both the plaintiffs have requested defendant no. 1 to divide the property, however, of no consequences. Plaintiff no. 2 is having 1/3rd share in the suit property in question.
During her cross examination, counsel for defendant no. 1, 3 & 4 have given the relevant suggestions which are denied by PW2.
The defendant no. 1, on the other hand, has examined himself as DW1 and stated that suit property in question was purchased by the joint earning of himself and his father and the construction was also raised with common funds and joint earning. It is further stated that neither plaintiff no. 1 nor his other children have any right, title or interest in the suit property in question. The suit property in question was in the name of his father having purchased by joint earning of himself and his father and after the death of his father on 03.11.2004, the suit property in question devolved upon his legal heirs i.e. plaintiff no. 2 and defendants no. 1 & 2. It is further stated that after the death of his father plaintiff no. 2 and defendant no. 2 shown their willingness and intention that they do not want any share in the suit property in question, therefore, plaintiff no. 2 sometime after the death of Ram Kumar Sharma started residing with defendant no. 2 at Rohtak. It is CS No. 352/14 Page No. 14/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
further stated that few years back plaintiff no. 1 had fallen into bad company and started remaining out of the house till late in night and used to roam around with boys and also started consuming alcohol and drugs. It is further stated that many a time wife of defendant no. had found contraceptive pills in her purse and when they both tried to chastise her, she turned violent and abusive. It is further stated that plaintiff no. 2 and defendant no. 2 had willingly and without any coercion had executed a relinquishment deed on 10.02.2006 which is duly registered. After this relinquishment deed the entire property is now vested with defendant no. 1 and on that basis he applied for conversion of leasehold rights into freehold rights in the office of DDA and the property was converted from leasehold to freehold on 11.12.2008. It is further stated that plaintiff is having relation with one boy Kuldeep and has been demanding to live with him in the suit property in question without marrying him. Plaintiff no. 1 is a person of loose morales and under influence of her maternal uncle and aunt she has been demanding her share and has been threatening defendant no. 1 and his wife. It is further stated by defendant no. 1 that he has disinherited her from his movable and immovable properties and has issued a public notice in the newspaper in this regard. It is further stated that when defendant no. 1 refused to give any share to plaintiff no. 1, she conspire with plaintiff no. 2 and defendant no. 2 and lodged CS No. 352/14 Page No. 15/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
a series of false and scandalous complaints.
During his cross examination, defendant no. 1 has stated that he has not filed on record any document which shows that the suit property in question was purchased by joint earning of himself and his late father. Defendant no. 1 has further admitted that plaintiff no. 2 alongwith plaintiff no. 1 is residing in the room in which his father R. K. Sharma was residing. DW1 has further admitted that plaintiff no. 1 is drawing the pension of her late husband from Delhi. Apart from all this, DW1 has answered all the relevant suggestions accordingly.
DW2 is Sunita Bhardwaj who is defendant no. 2 and it is stated by her that she is the cosharer in the suit property in question which was purchased by her father from his own source of income who was a Government servant. The details of legal heirs are mentioned in para no. 4 of the affidavit. It is further stated that her father had taken loan to construct the suit property in question from his department and withdrew amount from his GPF for this purpose. It si further stated that defendant no. 1 did not contribute a single penny for the said construction. It is further stated that her father died without executing any Will or document. It is stated that her father was harassed and physically assaulted by defendant no. 1 during his lifetime and wife of defendant no. 1 also tried to dispossess Late Sh. Ram Kumar Sharma. It is stated that her father lodged a police compliant against CS No. 352/14 Page No. 16/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
defendant no. 1 on 18.12.1998. DW2 has acknowledged the receiving the notice dated 05.10.2009 and requested defendant no. 1 for partition of the property b;y metes and bound, however, he refused. It is further stated that on 20.11.2009 when defendant no. 2 reached at suit property in question, defendant no. 1 and his wife did not allow her to enter and threatened her and they were alleging that they are the exclusive owner of the suit property in question. The mother of defendant no. 2 made a call at 100 no. It is further stated that defendant no. 2 engaged her counsel in this regard and came to know that one copy of relinquishment deed dated 10.02.2006 has been filed by defendant no. 1. It is stated that after the death of her father, defendant no. 1 told defendant no. 2 that suit property in question was to be mutated among all legal heirs of late Ram Kumar Sharma and he took signatures and thumb impressions of defendant no. 2 on some papers. On this pretext, defendant no. 2 put her signatures and thumb impression under good faith. It is stated that defendant no. 1 has intentionally and deliberately misused the said papers and got executed the relinquishment deed dated 10.02.2006 in his favour and has misappropriated the share of defendant no. 2. It is further stated that defendant no. 2 is having 1/3rd share in the suit property in question.
During her cross examination, it is stated by defendant no. 2 CS No. 352/14 Page No. 17/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
that she is not aware as to when the suit property in question was purchased or when the construction was done. It is further stated that she had not filed any proof of loan on record. Defendant no. 2 has answered all the relevant suggestions accordingly.
DW3 is defendant no. 3 as well in the arrays of parties who is another daughter of defendant no. 1 and has stated that her father has taken good care of family including plaintiff no. 2 with love and affection. It is further stated that they all stayed in the suit property in question as a family till 2004 and after the death of her grandfather, her grandmother i.e. plaintiff no. 2 left the suit property in question and started staying at the residence of her bua i.e. defendant no. 2 at Rohtak. It is further stated that her grandmother and her bua defendant no. 2 willingly relinquished their respective shares in the suit property in question in favour of defendant no. 1. It is further stated that plaintiff no. 1 started staying out of the house till midnight and her parents had scolded her for this conduct as she had been roaming around with boys and consuming alcohol and drugs. It is further stated that plaintiff no. 1 used to say bad words to everyone in the family. It is further stated that plaintiff no. 1 developed relations with one boy Kuldeep and she demanded separate room in the suit property in question to live with him without marrying him for which parents did not agree. Plaintiff no 1 has been demanding her share in CS No. 352/14 Page No. 18/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
the suit property in question and threatened her parents with dire consequences if her demand is not acceded to. It is further stated that plaintiff no. 1 has been disinherited by her parents.
It is further stated that plaintiff no. 1 has been not only mentally and physically torturing her parents but has also made the life of other siblings a living hell.
In her crossexamination it is reflected that she has corroborated what she has stated in her examination in chief and has answered all the relevant suggestions accordingly.
Before any observation is given upon merits, it is important to mention the point of controversies and disputes in between the parties which is reflected from the pleadings, are as under:
(i) plaintiff has alleged that the suit property in question is self acquired property of late Sh. Ram Kumar Sharma who died intestate.
Defendant no. 1 has not contributed anything either in purchase or construction of the suit property in question.
(ii) Defendant no. 1, on the other hand, has alleged that the suit property in question was purchased jointly by himself and his father. It is also stated by him that he also contributed towards the construction of the property. Defendant no. 1 has not disputed that Ram Kumar Sharma died intestate. The suit property in question is admittedly in the name of late Sh. Ram Kumar Sharma.
CS No. 352/14 Page No. 19/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
(iii) Defendant no. 1 has further stated that after the death of his father, there were three surviving legal heirs i.e. plaintiff no. 2, defendant no. 1 and defendant no. 2. Plaintiff no. 2 and defendant no. 2 have relinquished their share voluntarily and without any coercion, vide relinquishment deed dated 10.02.2006 and the property has been mutated in the name of defendant no. 1 by a conveyance deed. Defendant no. 1 has stated that suit property in question was never joint.
It is reflected from the point of controversies in between the parties that defendant no. 1 has taken the defence that plaintiff no. 2 and defendant no. 2 have relinquished their respective share in favour of defendant no. 1. In this regard plaintiff no. 2 has also filed a subsequent suit seeking declaration against the relinquishment deed dated 10.02.2006 and the conveyance deed that they are null and void. Such a connected matter is no doubt a subsequent suit, however, the outcome of this suit shall lay its impact upon the merits of this case. This connected matter bearing suit No. 353/14 has been decided on 28.02.2015 itself alongwith the present matter and has been dismissed. The declaration sought by the plaintiff no. 2 against the relinquishment deed and conveyance deed has been declined. The consequences of the dismissal of the suit No. 353/14 are that the relinquishment deed is validly executed. Relinquishment deed dated CS No. 352/14 Page No. 20/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
10.02.2006 is duly registered with SubRegistrar. There is a presumption attached to this document being registered that at the time its registration due procedure has been properly followed. There is no evidence from the side of plaintiffs contrary to this presumption in the present matter. Thus, considering the outcome of another connected matter bearing suit No. 353/14 and the presumption attached to the registration of document it is considered and I am of the considered opinion that the relinquishment deed has been validly executed in between the parties which means and implies that defendant no. 1 has become the absolute owner of entire suit property in question. With regard to the evidence led by the plaintiffs that there was a joint family existing in between the parties, it is reflected from the record itself that the relations in between the parties interse were never cordial. The one of such earlier instance is alleged by the plaintiff no. 2 herself that a complaint was lodged by late Sh. Ram Kumar Sharma himself on 18.12.1998. Plaintiff no. 2 has lodged a complaint against defendant no. 1 on 20.11.2009 as well which reflects that parties have not been living cordially and happily. Plaintiffs have further stated that defendant no.1 has been treating and subjecting them to cruelty on several occasions. Both plaintiffs and defendant no. 1 have been alleging and leveling various serious allegations against each other. Defendant no. 2 has also stated CS No. 352/14 Page No. 21/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
accordingly and has stated that plaintiff no. 2 used to visit her at Rohtak on several occasions. In these circumstances, the submission made by the plaintiff that there was existing a joint family does not seem to be tenable in light of above mentioned facts. The outcome of another connected matter bearing suit No. 353/14 has also laid its impact greatly to the merits of the case and by that outcome the declaration sought by Parmeshwari Devi has been declined, the defence taken by defendant no. 1 seems to have been established that he has become the owner of the entire suit property in question. It has already been observed above that there does not seem to be any joint family existing in between the plaintiffs and defendants. This fact is further strengthen from the subsequent development that plaintiff no. 1 has lodged a complaint against her father which resulted into registration of a criminal case against him and during the pendency of the present matter defendant no. 1 has been convicted accordingly. Defendant no. 1 has also shown from the record that he has disinherited plaintiff no. 1. in these circumstances, I am of the considered opinion that there does not exist any joint family on the date of filing of the present suit.
Counsel for the defendant has relied upon the following judgments in this regard:
CS No. 352/14 Page No. 22/28
Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
(i) Amit Johri Vs. Deepak Johri & Ors., 196 (2013) Delhi Law Times 29, Delhi High Courts.
(ii) Brij Narain Aggarwal Vs. Anup Kumar Goyal & Ors., 144 (2007) Delhi Law Times 386, Delhi Law Times.
(iii) Pratap Vs. Shiv Shanker, 2009 (113) DRJ 811, High Court of Delhi.
In all these judgments, it has been held by Hon'ble High Court of Delhi that in a suit for partition where the suit property in question is not the joint family property and it is established that it is a self acquired property then property can not be partitioned unless until the owner dies intestate.
With regard to the amendment in section 6 of Hindu Succession Act in the year 2005, Hon'ble Mr. Justice Sh. S. N. Dhingra in judgment titled as Brij Narayan Aggarwal (Supra) has held that applicability of amended Hindu Succession Act presupposes a condition precedent that Hindu undivided family should be existence on day when amendment act came into force.
Counsel for the plaintiff, on the other hand, has relied upon judgment titled as Krishna Gupta. It has been held in this case that the law is presumed to be prospective in nature unless and until legislature intends it to be retrospect. In the absence of any partition undertaken by execution of deed of partition duly registered under Registration Act or partition effected by decree of court or in the CS No. 352/14 Page No. 23/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
absence of testamentary disposition of property that has taken place before 20.12.2004 in respect of a joint Hindu family governed by Mitakshra law, envisaged in proviso to section 61, daughter of a co parcener by birth shall become a coparcener in her all right in same manner as son.
The position in the present case is, however, different. Plaintiff has not been able to establish that there was a joint Hindu family existing on the date of filing of the suit. Plaintiff has also not been able to establish in another connected matter bearing suit no. 353/14 that the relinquishment deed dated 10.02.2006 is null and void. Therefore, the judgment relied upon by the plaintiff is not applicable in the present case whereas the judgment relied upon by defendant no. 1 is equally applicable in the present facts and circumstances.
In these circumstances, therefore, as plaintiffs are left with no legal right qua the suit property in question and defendant no. 1 has become the absolute owner of the suit property in question vide relinquishment deed dated 10.02.2006, plaintiffs have no right to seek partition in the suit property in question. Hence, the issued no. 1 & 2 are decided against the plaintiffs.
Issue No. 3: Whether the plaintiff no. 1 is entitled for decree of permanent injunction in her favour and against the defendants as prayed? OPP.
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Onus of this issue upon plaintiff. Plaintiff has prayed that defendants may restrained from dispossessing the plaintiffs from the suit property in question and they be restrained from disturbing in their day today peaceful life. Outcome of issue no. 1 & 2 that defendant no. 1 is the absolute owner of the suit property in question and plaintiffs and defendant no. 2 are left with no right, title or interest in the suit property in question. Thus, the position of plaintiffs and defendant no. 2 is nothing but that of a licensee unless and until plaintiffs and defendant no. 2 show anything to the contrary. Thus,in these circumstances, plaintiffs cannot be said to have any prima faice legal right qua the relief so prayed and balance of convenience cannot be said to be titled in their favour. Similar is the position with regard to the relief prayed by the plaintiffs against the defendant no. 1 seeking restraining from creating hindrance in peaceful enjoyment by them. In terms of these observation issue no. 3 is decided against plaintiffs. Issue No. 4: Whether the defendant no. 1 is entitled to decree of mandatory injunction as prayed in the counter claim? OPD1 Issue No. 5: Whether the defendant no. 1 is entitled to decree for a sum of Rs. 20,000/ per month towards the damages and mesne profits against plaintiff no. 1 as prayed? OPD1.
Issue No. 6: Whether the defendant no. 1 is entitled for decree of perpetual injunction against plaintiff no. 1 as prayed? OPD1. CS No. 352/14 Page No. 25/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
All these issues are interrelated, hence taken up together. These issues have been framed as per counter claim filed by the defendant no. 1 against the plaintiffs namely Sonali Sharma under which defendant no. 1, counter claimant has sought mandatory and permanent injunction against the plaintiff Sonali Sharma and has also sought damages @ 20000/ per month for the use and occupation charges. In this regard, defendant no. 1 stated that he is the absolute owner of the suit property in question & has disinherited plaintiff no. 1 from all his movable and immovable properties. There is no contradiction in cross examination of the defendant no. 1 conducted by the plaintiff no. 1. In these circumstances, therefore, the facts stated by defendant no. 1/ counter claimant stands proved and established. Defendant no. 1 has also shown by way of evidence that he is absolute owner of the suit property in question by virtue of relinquishment deed dated 10.02.2006.
In these circumstances, therefore, defendant no. 1 has been able to prove his prima case against plaintiff no. 1. The balance of convenience, in these circumstances, is also titled in his favour. Defendant no. 1 has alleged in his evidence that plaintiff no. 1 is licensee in the suit property in question. Defendant no. 1 has also expressed his desire, which is reflected from the evidence, that he is no more interested in keeping plaintiff no. 1 in the suit property in CS No. 352/14 Page No. 26/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.
question. In these circumstances, therefore, defendant no. 1 is entitled for mandatory injunction as prayed. With regard to the relief of perpetual injunction , I am of the considered opinion that in the light of right of defendant no. 1, so established by him that he is the absolute owner of the suit property in question, he is also entitled for the perpetual injunction so prayed by him in his counter claim.
Coming to the relief of damages, it is reflected from the cross examination of defendant no. 1 that certain questions have been put by the counsel for plaintiff no. 1 in this regard, however, no contrary evidence is led by the plaintiff no. 1. Therefore, no option is left but to consider the fact that defendant no. 1 has discharged the burden of proving this issue upon him as well. The claim of Rs. 20,000/ seems to be on higher side as the suit property in question is a flat and it would be in the interest of justice, in absence of the any documentary evidence filed by the parties, that Rs. 15,000/ per month is considered as reasonable amount for the use and occupation charges of the suit property in question. In terms of these observations, this issue is also decided in favour of defendant no. 1.
Relief: In the light of above discussion, it is reflected that plaintiff has not been able to establish her case against the defendants, therefore, suit filed by the plaintiffs is dismissed. No order as to cost in favour of plaintiff.
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With regard to the counter claim, defendant no. 1 is entitled for decree of mandatory injunction and plaintiff Sonali Sharma is directed to hand over the possession of one room shown in red colour in site plan filed alongwith the suit which is forming part of H. No. 64, Kapil Vihar, Pitam Pura, Delhi. Plaintiff Sonali Sharma is also restrained from letting out or parting with the possession or creating any third party interest in any manner with regard to the suit property in question bearing H. No. 64, Kapil Vihar, Pitam Pura, Delhi. Defendant no. 1 is also entitled for decree of damages and plaintiff Sonali Sharma is directed to pay damages @ Rs. 15,000/ per month for the use and occupation charges from the date of filing of the suit till handing over the possession. Defendant no. 1 is, however, directed to file the requisite court fee in this regard before the executing court at the time of filing the execution in respect thereof alongwith the execution petition. Cost is awarded in favour of defendant.
Decree sheet qua the suit and counter claim be prepared alongwith with cost.
10. Case file be consigned to record room after completion of all necessary formality.
Announced & dictated in the (Prashant Kumar) open court today i.e. on 28.02.2015. ADJ04(NW)/Rohini Courts Delhi/28.02.2015 CS No. 352/14 Page No. 28/28 Sonali Sharma & Anr. Vs. Naresh Kumar Sharma & Others.