Delhi District Court
Sh. Devender Pal Bakshi vs Sh. Virender Pal Bakshi on 19 December, 2018
IN THE COURT OF MS. SHUCHI LALER, ADDITIONAL
DISTRICT JUDGE, EAST DISTRICT, KARKARDOOMA
COURTS, DELHI.
Suit No. 1092/2016
In the matter of:
Sh. Devender Pal Bakshi
S/o Late Sh Deputy Lal Bakshi
R/o 302, Ward No. B91,
Basera Apartment,
Shalimar Garden ExtensionII,
Sahibabad, Ghaziabad (U.P.) ......... Plaintiff
Versus
1. Sh. Virender Pal Bakshi
S/o Late Sh. Deputy Lal Bakshi
R/o 7/211, Jawahar Gali,
Farsh Bazar, Shahdara,
Delhi110032
2. Smt. Shelly Arora
W/o Sh. Vinay Arora
R/o 27/3, Opp. Church Road,
Jwala Nagar, Shahdara,
Delhi110032
3. Smt. Kailash Lata Sharma (Deceased)
Through
(A) Tarvinder Sharma (Son)
(B) Pawan Sharma (Son)
Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.1 of 16
(C) Seema Sharma (Divorcee Daughter)
R/o B451, Jahangirpuri,
Delhi
4. Smt. Nirmal Bakshi
5. Sh. Deepak Bakshi
6. Sh. Raj Kumar Bakshi
7. Smt. Sheetal Bakshi
All L/Rs of Sh. Ashok Kumar Bakshi
R/o H/26, Sant Nagar Ext,
Tilak Nagar, New Delhi ......... Defendants
Date of Institution : 24.05.2011
Date of Final Arguments : 11.12.2018
Date of Pronouncement : 19.12.2018
SUIT FOR PARTITION AND PERMANENT INJUNCTION.
JUDGMENT :
1. The present is a suit for partition with respect to property bearing no. 7/212, ad measuring 65 sq. yards situated at Jawahar Gali, Farsh Bazar, Shahdara, Delhi - 32 (hereinafter referred to as suit property). The parties are legal heirs of late Sh. Deputy Lal Bakshi. Plaintiff no. 1 is asserting his share in the suit property to be 1/6th whereas, the defendant no. 1 has claimed himself to be the owner of the suit Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.2 of 16 property by virtue of oral Will as well as adverse possession. Plaintiff no. 2 withdrew the instant suit on 14.09.2011 and the remaining defendants have not chosen to contest it.
PLAINT
2. Brief narration of the facts as disclosed, in the plaint, is as under : 2.1 That late Sh. Deputy Lal Bakshi was owner of the suit property having purchased the same in the year 1960 vide a registered sale deed. The plaintiff no. 1 is in possession of one room on the first floor of the suit property and defendant no. 1 is residing on ground floor of the suit property. 2.2 That original sale deed of the suit property is in possession and power of defendant no. 1. The plaintiffs demanded partition of the suit property to which defendant no. 1 declined and further threatened to create third party interest in the suit property.
Hence, the present suit.
WRITTEN STATEMENT
3. The defendant no. 1 has contested the present suit by filing written statement wherein he has taken preliminary objections such as the plaintiff has no locus standi to file the present suit; suit is barred by law of limitation and the suit is not properly valued for the purpose of court fees. The Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.3 of 16 averments to the contrary are as under: 3.1 That defendant no. 1 is only residing at the suit property. The plaintiffs as well as the remaining defendants have never resided at the suit property. The defendant no. 1 had spent an amount of Rs.1,50,000/ on the construction of the suit property.
3.2 That late Sh. Deputy Lal Bakshi had made an Oral Will during his lifetime in the presence of Sh. Satish Kumar and Sh. Subhash Asthana in favour of defendant no. 1 whereby he bequeathed the suit property to defendant no. 1. 3.3 That late Sh. Deputy Lal Bakshi was in possession of the suit property from 1947 to 1991 and defendant no. 1 is in its possession since its birth, so the possession of defendant no. 1 has converted into ownership by virtue of adverse possession.
3.4 That once Sh. Pyare Lal claimed himself to be the owner of the suit property but he did not take any action to recover its possession.
Remaining material averments have been denied and defendant no. 1 prayed for dismissal of the present suit with exemplary cost.
4. WS has also been filed on behalf of defendant no. 2 to 7, wherein they have admitted the contents of the plaint and Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.4 of 16 have stated that they have no objection if the present suit is decreed.
REPLICATION
5. Plaintiffs have not preferred to file replication.
ISSUES
6. Issues were framed by Ld. Predecessor on 24.09.2015, which are as under :
(i). Whether plaintiff is entitled for the decree of partition as prayed for ? OPP
(ii). Whether the plaintiff is entitled for the relief of permanent injunction ? OPP
(iii). Whether the suit has no locus standie to file the present suit ? OPD 1
(iv). Whether deceased Deputy Lal Bakshi orally made a WILL in favour of the defendant no. 1 in respect of the suit property ? OPD 1
(v). Whether the suit has not been properly valued for the purpose of court fees and jurisdiction by the plaintiff ? OPD 1
(vi). Whether the suit is barred by limitation ? OPD 1
(vii). Relief.
Thereafter, parties were directed to lead evidence.
Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.5 of 16 PLAINTIFF'S EVIDENCE
7. In support of his case, plaintiff stepped into the witness box as PW1 and tendered his evidence by way of affidavit, which is Ex.PW1/A and relied upon the document i.e. site plan of the suit property as Ex PW1/1.
PW1 has been duly cross examined on behalf of defendant. Thereafter, plaintiff's evidence was closed.
DEFENDANT'S EVIDENCE
8. In rebuttal, defendant has stepped into the witness box as DW1 and tendered his evidence by way of affidavit which is Ex.DW1/A. Witness to oral Will Sh. Satish Aggarwal has been examined as DW2 who tendered his evidence by way of affidavit which is Ex DW2/A. Defendant no. 6 / Sh. Raj Kumar Bakshi appeared as DW6 and tendered his evidence by way of affidavit which is Ex DW6/X. He has relied upon following documents: • Registered Adoption Deed dated 27/09/1990 as Ex DW6/1 • Copy of Succession Order dated 28/01/2013 in SC No. 50/12 as Mark A. The aforesaid witnesses have been duly cross examined by ld. Counsel for plaintiff.
Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.6 of 16 FINAL ARGUMENTS
9. Rival submissions advanced at bar have been heard and record perused.
JUDICIAL RESOLUTION
10. Issuewise findings are as under :
Issue No. (i). Whether plaintiff is entitled for the decree of partition as prayed for ? OPP Issue No. (iii). Whether the suit has no locus standi to file the present suit ? OPD 1
11. Both these issues are taken up together as they are interconnected and can be disposed off by a common discussion. The plaintiff is claiming partition of the suit property on the ground that his father/Late Sh. Deputy Lal Bakshi was the owner of suit property who died intestate and upon his death, the parties to the instant lis have inherited 1/6th share in the suit property.
12. The property of a Hindu Male, who dies intestate, devolves upon his legal heirs immediately on the death of the owner. The share in the property would vest in the legal heirs only if the property was owned by deceased.
13. In para no.2 of the plaint, there is a mention about ownership of late Sh. Deputy Lal Bakshi qua the suit property. The said para is reproduced herein below:
Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.7 of 16 "2. That the property was his self acquired property and was purchased by him in the year about 1960 vide a registered sale deed."
14. A perusal of aforesaid para reveals that it is not the case of the plaintiff that the suit property is a joint family property. The plaintiff is asserting the suit property to be the separate/self acquired property of his father which parties have inherited, being class I legal heirs, by virtue of Section 8 of Hindu Succession Act, 1956.
15. Though late Shri Deputy Lal Bakshi is asserted to be the owner of suit property by virtue of registered sale deed, the same has not been filed on record. Plaintiff claimed it to be in possession of defendant no. 1 1but he did not prefer to issue any notice to defendant no. 1 to produce the said document. Even competent official from Sub Registrar Office has not been summoned to prove that late Sh. Deputy Lal Bakshi is recorded as registered owner of the suit property in their records.
16. The Plaintiff/PW1 admitted, in his cross examination, that he has not filed any title document of his father on record. The relevant extract of crossexamination of PW1 is as under: "I do not have any document of the suit property to show that the suit property was purchased by Shri Deputy Lal Bakshi/our father ..... It is correct that the suit property was originally belonged to Sh. Pyarey Lal 1 As mentioned in para no. 8 of plaint.
Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.8 of 16 Arora ..."
17. The plaintiff has set up the case that the suit property was purchased by his father from Shri Pyarey Lal Arora. Even a suggestion to this effect has been given to defendant no. 1/DW1 who has admitted it to be correct. The plaintiff could have examined Sh. Pyarey Lal Arora or any other person who must have witnessed the sale transaction with respect to the suit property in favour of father of parties. The same has not been done. A suggestion has been put to defendant No.1/DW1 regarding non existence of the title documents in favour of their father which has been admitted by the defendant. The said suggestion has demolished the plaintiff's case in entirety. It reads as under: "It is correct that no title document with respect to the suit property was in favour of my father ."
18. Thus, non filing of title documents in favour of plaintiff's father qua the suit property has proved fatal, more so, when he is asserted to be its owner by way of registered sale deed. Even documents such as House Tax Receipts, Electricity bill or water bill in the name of plaintiff's father have not been filed on record. There is categoric admission of plaintiff and defendant no.1 that there is no title document in their father's name qua the suit property. In these Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.9 of 16 circumstances, when late Shri Deputy Lal Bakshi has not been proved to be owner of the suit property, the suit property cannot devolve upon his legal heirs nor any share becomes vested in them. The plaintiff neither had the cause of action nor locus standi to file the instant suit.
These issues are answered against the plaintiff. Issue No. (ii). Whether the plaintiff is entitled for the relief of permanent injunction ? OPP
19. A restraint order against creation of third party interest and against forcible dispossession has been prayed for. In order to be entitled to the relief of permanent injunction, the plaintiff was required to prove his right, title or interest in the suit property as well as actual or threatened invasion of the said right.
20. While adjudication upon issue no. (i) and (iii), it has been observed that plaintiff failed to establish his father's ownership qua the suit property. There is not even a single document to suggest that plaintiff even remained in possession of any portion of the suit property. Thus, the plaintiff has no right, title or interest in the suit property, consequently, he is not entitled to the relief of permanent injunction.
Issue no. (ii) is also decided against the plaintiff. Issue No. (iv). Whether deceased Deputy Lal Bakshi Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.10 of 16 orally made a WILL in favour of the defendant no. 1 in respect of the suit property ? OPD 1
21. The defendant no. 1 / DW1 has deposed that his father late Sh. Deputy Lal Bakshi had executed an oral Will in his favour thereby bequeathing the suit property to him in the presence of DW2. Prior to Hindu Wills Act, 1870, Will made by any Hindu was not required to be in writing, the Will could be oral. It is the not the case of the defendant that the oral Will was made prior to Hindu Wills Act or the Indian Succession Act.
22. Section 30 of Hindu Succession Act, 1956 confers the right upon a Hindu to dispose off his property by Will in accordance with provisions of Indian Succession Act, 1925. Section 63 of Indian Succession Act relates to execution of unprivileged Wills which reads as under: "63. Execution of unprivileged Wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signatures or mark of the testator, or the signature of the person signing for him, shall be so Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.11 of 16 placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has been the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
23. The aforesaid Section requires a Will to be in writing. In the case titled as Sunita Shivdasani Vs. Geeta Gidwani & Anr. AIR 2007 Delhi 242, Hon'ble Delhi High Court observed that after 01.01.1927, no Hindu can execute any oral Will in respect of his property except who is a solider employed in a expedition or engaged in actual warfare or mariner being at sea.
24. There is nothing on record to suggest that deceased Sh. Deputy Lal Bakshi was a solider or mariner, so the alleged oral Will, if any made, is of no consequence and of no effect. The oral Will cannot be taken into consideration and the evidence led on this score is inadmissible. The Oral Will, if any made by late Sh. Deputy Lal Bakshi has no legal binding and Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.12 of 16 no interest can be created in favour of defendant no. 1 with respect to the suit property by virtue of the said Will.
Issue no. (iv) is decided against the defendant no. 1 and in favour of the plaintiff.
Issue No. (v). Whether the suit has not been properly valued for the purpose of court fees and jurisdiction by the plaintiff ? OPD 1
25. The burden to prove this issue was upon the defendant no. 1 who has challenged the valuation of the suit for the purpose of court fees and jurisdiction 1 on the ground that the market value of the suit property is about Rs. 25 lakhs. The plaintiff has valued the suit property for the relief of partition at Rs.18 lakhs. In the entire cross examination of plaintiff / PW1, no suggestion or question has been put to him that the valuation of the suit property is improper. It has not been disclosed as to what was the minimum circle rate and market value of the suit property with cost of structure per square meter at the time of filing of the suit. It has remained unexplained as to on what basis the defendant no. 1 has asserted the valuation of the suit property to be Rs. 25 lakhs. Apart from self serving testimony of DW1, there is nothing on record to suggest that the market value of the suit property is 1 In para no. 4 and 5 of written statement.
Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.13 of 16 Rs. 25 lakhs.
26. Ld. Counsel for defendant no. 1 contended that the plaintiff is not in possession of the suit property, so he could not have affixed the court fees of Rs. 19.50 for relief of partition rather the plaintiff is required to pay ad valorem court fees on valuation of Rs.18 lakhs and shall also pray for consequential relief of possession.
27. The said argument is without merits and is liable to be rejected. In the judgments titled as Neelavathi Vs. M. Natarajan & Ors. 1980 AIR 691; Master Kunal Vs. Harsh Dev Shingari (2002) DLT 299 and Jagdish Pershad Vs. Jyoti Pershad 1979 RLR 2003 it has been held that normally if joint possession is pleaded by the plaintiff on the basis that he is co owner of the property, the court fees to be paid would be fixed court fees presuming the joint possession and even if the person is not in actual possession. The plaintiff is claiming himself to be co owner and in joint possession of the suit property along with defendant no. 1 so he had to pay fixed court fees and not ad valorem court fees on market value of his share.
Issue no. (v) is decided in favour of the plaintiff and against the defendant no. 1.
Issue no. (vi). Whether the suit is barred by limitation ?
Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.14 of 16 OPD 1
28. The suit is alleged to be barred by law of limitation on the plea that the instant suit has been filed after 20 years of the death of Sh. Deputy Lal Bakshi. The plaintiff has stated in para no. 16 of the plaint that in April, 2011, he requested defendant no. 1 to partition the suit property but he ignored. During cross examination of PW1, no question or suggestion has been put to him that at any date prior to April, 2011, PW1 had made any demand for partition of the suit property. The defendant has also not led any evidence on record to show that any exclusion of plaintiff had taken place prior to April, 2011.
29. Article 110 of Limitation Act provides that the limitation for partition suit is 12 years to be counted from the date when exclusion becomes known to the plaintiff. In the instant case the cause of action accrued in April, 2011. The present suit has been filed in May, 2011. Thus, the suit is well within time.
30. I answer this issue by holding that although the suit is not time barred but there was never really any cause of action for the plaintiff to seek the relief. There being no cause of action at all, it would be appropriate to say that the time never really begun to run as cause of action never accrued.
This issue is accordingly answered.
Suit No. 1092/2016 Devender Pal Bakshi & Others Vs Virender Kumar Bakshi Page No.15 of 16 RELIEF :
In view of findings on aforesaid issues, the suit of plaintiff is dismissed. No order as to costs.
Decree Sheet be prepared accordingly File be consigned to Record Room.
SHUCHI Digitally signed by SHUCHI
LALER
LALER Date: 2018.12.19 16:36:05
+0530
Announced in the open court (SHUCHI LALER)
on this day of ADJ-04, East District,
19th December, 2018 KKD Courts, Delhi
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