Delhi District Court
Smt. Sarabjit Kaur vs M. No. 15/16 Smt. Sarabjit Kaur Vs. ... on 27 January, 2016
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In the court of Anubhav Jain, Civil Judge-05, Central District, Tis Hazari
Courts, Delhi
CS. No. 15/16
Unique ID No. 02401C5476732004
1. Smt. Sarabjit Kaur
W/o Sh. Jawahar Singh
R/o B-234, Raghbirnagar (25 Yds)
New Delhi-110027
2) Smt. Ranjit Kaur
W/o Sh. Rajinder Singh
R/o N-104, Vishnu Garden,
New Delhi-110018
3) Smt. Narinder Kaur (deceased) Through her Lrs:-
a) Sh. Jagir Singh - Husband
b) Sh. Balraj Singh - Son
c) Sh. Sukhbir Singh - Son
d) Sh. Sukhvinder Singh - Son
e) Sh. Amarjit Singh - Son
All R/o NE-84-B Vishnu Garden, New Delhi,
Through their Special Attorney Sh. Rajinder Singh
S/o late Sh. Daswanda Singh
R/o N-104, Vishnu Garden,
New Delhi ............... Plaintiffs
Versus
M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh
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1. Harsharan Singh (now deceased through Lrs:-
a) Smt. Jasbir Kaur (wife)
b) Sh. Surjeet Singh (son)
c) Km. Santosh Kaur (daughter)
d) Ms. Rajni (daughter)
e) Master Harpreet Singh (son-minor
through his mother Smt. Jasbir Kaur)
2) Sh. Manjeet Singh
S/o Late Sh. Utta, Singh,
All residents of A-4, Shyam Nagar, Khayala Road
Delhi-110018.
3) Smt. Balbir Kaur
W/o Sh. Dharam Singh
R/o 3603, Raja Park, Near Bagh,
New Delhi. ................ Defendants.
Date of Institution: 22.01.1997
Date of Final Decision: 27.01.2016
JUDGMENT
1. Present suit for partition, mesne profit and permanent injunction is filed by the plaintiff against the defendants.
2. It is stated by the plaintiffs in their plaint that property bearing no. A-4, Shyam M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh 3 Nagar, Khayala Road, New Delhi-18 built on plot ad-measuring 125 sq. yards (hereinafter as "and suit property") was owned by late Sh. Uttam Singh father of the plaintiffs. It is stated that father of the plaintiffs Sh. Uttam Singh expired on 27.05.1976 leaving behind following legal heirs:-
i) Smt. Kulwant Kaur - Wife (since deceased) ii) Harsharan Singh - Son (defendant no.1) iii) Manjeet Singh - Son ( defendant no.2) iv) Smt. Balbir Kaur - Daughter (defendant no.3) v) Smt. Narinder Kaur daughter (since deceased plaintiff no. 3) vi) Smt. Sarabjit Kaur daughter of ( plaintiff no. 1) vii) Smt. Ranjit Kaur daughter of ( plaintiff no. 2)
It is further stated that Sh. Uttam Singh died intestate and as such all the legal heirs acquired equal undivided share in the suit property by operation of law. It is further stated that as Smt. Kulwant Kaur also expired intestate on 23.04.1989 and her undivided share in above said property was devolved upon the remaining legal heirs i.e. plaintiffs and defendants in equal share. It is further stated that defendant no. 1 and 2 requested the plaintiff to allow them to remain in possession of the undivided property and the said request of the defendants was acceded by the plaintiffs. It is further stated that on demise of Smt. Kulwant Kaur on 23.04.1999 plaintiffs asked the defendants to partition the suit property by meets and bounds and defendant no 1 and 2 requested the plaintiffs that they be allowed to continue in possession of the suit property for some time, so as to unable them to arrange an alternative accommodation and they further agreed to pay damages to the plaintiffs jointly @ 2000/- per month for their share in the suit property. It is further stated that the said arrangement was agreed by the parties for the period of one year and on the expiry of said one year, plaintiffs again approached the defendants to partition of the suit M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh 4 property by meets and bounds and to settle the accounts however defendants kept on postponing the same on one reason or the other. It is further stated that in the month of November, 1996 plaintiff came to know that defendant no. 1 and 2 are trying to dispose of the property and when the plaintiffs enquired about the same from defendant no. 1 and 2, defendant no. 1 and 2 failed to give any satisfactory reply and plaintiffs issued a legal notice on 20.11.1996 upon the defendants calling upon them to effect the partition of the suit property among all the co-owners and give half of the suit property jointly to the plaintiffs. It is further stated that defendant no. 1 despite service of the legal notice did not reply to the same and filed a frivolous petition seeking probate of alleged Will dated 08.02.1975. It is further stated that on 31.12.1996 plaintiffs again approached the defendants for amicable settlement however defendants refused the same and further extended threats to the plaintiffs that they will dispose of the suit property. By way of present suit plaintiff has sought a decree of partition along with a decree of Rs. 72,000/- towards mesne profit and damages. Plaintiffs have further sought injunction that defendants be restrained from creating any third party interest in the suit property.
3. In reply thereof, written statement was filed by the defendant no. 1 and 2 wherein it is stated that plaintiffs have no locus standi to file the present suit ; that the plaintiffs have no right to claim partition in the suit property. It is further stated that late Sh. Uttam Singh i.e. father of the parties executed a Will dated 08.02.1975 in favour of answering defendants and that answering defendants have already filed a probate petition. Answering defendants admitted the fact that late Sh. Uttam Singh was the owner of the suit property and that he expired on 25.05.1976 and left behind the legal heirs as stated by the plaintiffs in their plaint. Answering defendants denied all the other averments as made by the plaintiffs in their plaint and prayed for dismissal of the suit.
M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh 5
4. Written statement was further filed by defendant no. 3 who make the similar averments as made by the defendant no. 1 and 2 in their written statement and prayed for dismissal of the suit.
5. In reply thereof, replication was filed by the plaintiffs wherein plaintiffs denied all the averements as made by the defendants in their written statement and reiterates those as made by the plaintiffs in their plaint.
6. On the basis of pleadings filed by the parties, following issues are framed by the court vide its order dated 21.02.2012:-
1) Whether the plaintiff is entitled for decree of partition as prayed for? OPP
2) Whether the plaintiff is entitled for a decree of mesne profit, as prayed for? OPP
3) Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP
4) Whether the suit of the plaintiff is without any cause of action and plaintiff has no locus standi to file the present suit? OPD
5) Relief.
7. Plaintiffs in support of their case has filed the affidavit of Smt. Ranjit Kaur Ex. PW-1/A and relied upon site plan Ex. PW-1/1, copy of notice Ex. PW-1/2, Postal Receipt, UPC receipt and AD Card Ex. PW-1/2 to Ex. PW-1/5, copy of order dated 08.04.2004 whereby the probate petition filed by the defendants was dismissed Ex. PW-1/6. Plaintiffs have further examined Sh. Ghanshyam, LDC, Record Room Session as PW-2 in order to prove the order dated 08.04.2004 and the same was Ex.
M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh
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PW-2/1.
8. Defendants in their defence has filed affidavit of Sh. Surjit Singh Ex. DW-1/A and affidavit of Smt. Jashmeet Kaur Ex. DW-2/A.
9. I have heard the Ld. Counsels for the parties and perused the case file carefully. My issue wise findings are as follows:-
Issue No. 1Whether the plaintiff is entitled for decree of partition as prayed for? OPP
10. Burden to prove the present issue lies upon the plaintiffs. It the case of the plaintiffs that Sh. Uttam Singh was the owner of the property bearing no. A-4, Shyam Nagar, Khayala Road and that Sh. Uttam Singh expired intestate on 27.05.1976 and that plaintiffs and defendants are legal heirs of late Sh. Uttam Singh and that after the demise of Sh. Uttam Singh, plaintiffs have half share in the suit property.
On the other hand, it is stated by the defendants that Sh. Uttam Singh expired after executing a Will dated 08.02.1975 by virtue of which the suit property was devolved by Sh. Uttam Singh in favour of the defendants and as such the plaintiffs have no right in the suit property.
11. It is pertinent to state in here that defendants filed a probate petition qua the Will dated 08.02.1975 left by Sh. Uttam Singh and same was dismissed by the Court of Ld. ADJ Sh. G.P. Mittal vide order dated 08.04.2004.
12. Considering the same, the issue which is required be determined is whether the plaintiffs i.e. daughter of Late Sh. Uttam Singh have any share in the property left M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh 7 behind by him, if any. It was argued by the counsel for the defendants that as Sh. Uttam Singh has expired in the year 27.05.1976 i.e. prior to amendment in Section 6 of Hindu Succession Act of 2005, the amended provision shall not be applicable in the present case and as such the plaintiffs, being daughter of late Sh. Uttam Singh, cannot claim any share in the property left behind by Late Sh. Uttam Singh. Counsel for the defendants place heavy reliance upon judgment passed by Hon'ble Apex Court in Prakash & Ors Vs. Phulavati & Ors, 2015 (11) SCALE, 643. Relevant paragraph of the said judgment is being reproduced as under:-
" Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9 th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20 th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the explanation."
13. As such, considering the fact that Sh. Uttam Singh expired on 27.05.1975 (i.e. prior to year 2005), it is clear that the provision of Hindu Succession Act 2005 will not be applicable in the present case in hand.
14. Once it is observed that amended provision of Hindu Succession Act, 2005 will not be applicable in the present case, the relevant provision of Hindu Succession Act, 1956 come into play. For the sake of convenience Section 6, 8 & 9 of Hindu Succession Act, 1956 are being reproduced as under:-
6. Devolution of interest in coparcenary property.--When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act :
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh 8 coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.--For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.--Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
8. 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--
(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 the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
9. Order of succession among heirs in the Schedule.--Among the heirs specified in the Schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.
15. Proviso to Section 6 Hindu Succession Act, 1956 clearly provides that, that if a Hindu male dies having an interest in Mitakashara Coparcanarya property and has left behind him surviving a female relative as specified in Class-I of the schedule, the interest of the deceased in the Mithakshara Coparcanary property shall devolved by testamentary or intestate succession and not by survivorship. Further Section 8 of the said Act further states that the property of a male Hindu dying intestate shall devolves, firstly, upon the Heirs, being the relatives specified in Class-I of the schedule. Further Section 9 of the said Act provides that the heirs so mentioned in M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh 9 Class-I schedule shall take simultaneously and to the exclusion of other heirs."
16. In the present case in hand, it is admitted fact that Late Sh. Uttam Singh expired on 27.05.1976 leaving behind the plaintiffs and the defendants as his legal Heirs. Further the probate petition so filed by the defendants is dismissed by the then Ld. ADJ Sh. G.P. Mittal vide order dated 08.04.2004. In view of the same, it can be said that Sh. Uttam Singh died intestate. Considering the law discussed above as well facts of the present case, it is held that the plaintiffs being Class I heir of Late Sh. Uttam Singh have equal share in the property left behind by Sh. Uttam Singh.
17. It is pertinent to state in here that it is stated by the plaintiffs in their plaint that Sh. Uttam Singh has left behind the property bearing no. A-4, Shyam Nagar, Khayala Road, New Delhi. Although, the said fact is not denied by the defendants in their written statement, however the burden lies upon the plaintiffs to prove that Sh. Uttam Singh was owner of the abovesaid property, as ownership over a property cannot be said to be proved merely on the basis of admission of other parties. I may gainfully referred the observations made by Hon'ble Apex Court in in Rangammal v. Kuppuswami, (2011) 12 SCC 220 "101.Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party.
18. Further in Ramchandra Sakharam Mahajan v. Damodar Trimbak Tanksale, M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh 10 (2007) 6 SCC 737 it is observed by Hon'ble Apex court has observed that:
13. The suit is for recovery of possession on the strength of title.
Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.
19. The plaintiffs for the reason best known to them, has not filed or proved any document to show that late Sh. Uttam Singh was owner of the abovesaid property i.e. the property of which partition is sought. In absence of said evidence of ownership of late Sh.Uttam Singh, the relief for partition so sought by the plaintiffs cannot be granted.
In view of the same, present issue is decided in favour of the defendants and against the plaintiffs.
Issue No. 2 and 3Whether the plaintiff is entitled for a decree of mesne profit, as prayed for? OPP Whether the plaintiff is entitled for a decree of permanent injunction, as prayed for? OPP
20. Burden to prove both the abovesaid issues lies upon the plaintiffs. As both the issues needs common discussion of law and facts, both the issues dealt with together. As discussed in issue no. 1 that plaintiffs have failed to prove that late Sh. Uttam Singh was owner of the suit property, plaintiffs are not entitled for the relief sought for.
In view of the same, both the said issues are decided against the plaintiffs and in favour of defendants.
M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh 11 Issue No. 4 Whether the suit of the plaintiff is without any cause of action and plaintiff has no locus standi to file the present suit? OPD
21. Burden to prove the present issue lies upon the defendants. It is stated by the defendants as the suit property devolved upon them by virtue of Will dated 08.02.1975, the plaintiffs have left with no right in the suit property and as such the plaintiffs have no locus standi to file the present suit. As discussed above, the probate petition so filed by the defendants with respect to Will dated 08.02.1975 was dismissed by the Court of Ld. ADJ, Sh. G.P. Mittal vide judgment dated 08.04.2004, as such there are no merits in the contentions so raised by the defendants.
However, considering the fact that plaintiffs have failed to prove that their father, namely, Sh. Uttam Singh was the owner of the property in dispute, the plaintiffs have failed to show their locus to file the present suit.
In view of the same, present issue is decided in favour of defendants and against the plaintiffs.
Relief Considering the law and facts discussed above, suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Pronounced in open court on 27.01.2016 ( Anubhav Jain ) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment is consisted of 11 pages and each page is signed by me.
M. No. 15/16 Smt. Sarabjit Kaur Vs. Harsharan Singh