Delhi District Court
Unknown vs Sh. Shree Krishan on 27 August, 2013
IN THE COURT OF SH. CHANDER SHEKHAR,
DISTT. & SESSIONS JUDGE (NORTH),
ROHINI COURTS, DELHI.
CS No. 336/9/12
1. Smt. Phoolwati
w/o Late Sh. Nihal Singh
r/o House No. 32, Village Bhalsawa
Delhi.
2. Smt. Vidya
d/o Late Sh. Nihal Singh
r/o House No. 11, Village Bhalsawa
Delhi.
3. Smt. Krishna
d/o Late Sh. Nihal Singh
r/o House No. 287, Manyari Wali Gali
Village Azadpur, Delhi.
4. Smt. Anita
d/o Late Sh. Nihal Singh
w/o Sh. Shalinder
r/o 283, Mandir Wali Gali
Village Teha, Ganore, Sonepat
Haryana.
CS No. 336/9/12 Page 1 of 22
5. Smt. Babita
d/o Late Sh. Nihal Singh
w/o Sh. Mukesh Kumar
r/o 283, Mandir Wali Gali
Village Teha, Ganore, Sonepat
Haryana. ........Plaintiffs
Vs.
1. Sh. Shree Krishan
s/o Late Sh. Nihal Singh
r/o Plot No. 123, Harijan Colony
Pathwali Gali, Bhalsawa Gaon
Delhi - 110033
2. Sh. Sunder Singh
w/o Late Sh. Nihal Singh
r/o 27, Near J & K Block
Village Bhalsawa
Delhi - 110033
3. Sh. Ramesh Kumar
w/o Late Sh. Nihal Singh
r/o 27, Near J & K Block
Village Bhalsawa
Delhi - 110033
CS No. 336/9/12 Page 2 of 22
4. Sh. Anil Kumar
w/o Late Sh. Nihal Singh
r/o Plot No. 132, Harijan Colony
Patherwali Gali, Village Bhalsawa
Delhi - 110033
5. Smt. Kanta
w/o Late Sh. Ved Prakash
r/o House No. 29, Near J & K Block
Village Bhalsawa
Delhi - 110033
6. Smt. Babli
d/o Late Sh. Ved Prakash
r/o House No. 29, Near J & K Block
Village Bhalsawa
Delhi - 110033 ........Defendants
Date of institution : 13.11.2009
Date of clarifications : 08.08.2013
Date of decision : 27.08.2013
JUDGMENT
1. The plaintiffs have filed the present suit for partition, declaration and permanent injunction averring therein that the husband of plaintiff no. 1 Sh. Nihal Singh was the absolute owner CS No. 336/9/12 Page 3 of 22 and having movable and immovable properties including agricultural land/bagh situated at Village Bhalsawa, Jahangir Puri, Delhi, bearing Khata Khatoni No. 213/229, Khasra No. 322, measuring area 4 bhighea 16 biswa and 323 measuring area 4 bhighea and biswa in total measuring 9 bigha 12 biswa. It is further averred that plaintiff no. 1 along with her husband Sh. Nihal Singh and children i.e. plaintiff nos. 2 to 5 (daughters) and defendant nos. 1 to 4 and Sh. Ved Prakash (sons) were living in a joint hindu family and husband of plaintiff no. 1 was the karta of the said joint hindu family and being the karta, he was managing the whole affairs of the joint family.
2. It is further averred that husband of plaintiff no. 1 Sh. Nihal Singh died on 05.02.1995 leaving behind his legal heirs i.e. plaintiff nos. 1 to 5 and defendant nos. 1 to 4 and Sh. Ved Prakash (expired). It is further averred that Sh. Nihal Singh died interstate and he had not executed any testamentary documents whatsoever including Will in favour of any person including his legal heirs in respect of his movable and immovable properties including aforesaid agricultural land/bagh. It is further averred that plaintiff nos. 2 to 5 are married and living in their respective matrimonial homes. CS No. 336/9/12 Page 4 of 22
3. It is further averred that sons of plaintiff no. 1 i.e. defendant nos. 1 to 4 and Sh. Ved Prakash made promises to the plaintiffs that they would give plaintiffs' respective shares including aforesaid agricultural land/bagh to them and also made further promises that they would fulfill their all social, moral and legal obligations towards the plaintiff nos. 1 (mother) and 2 to 5 (sisters) and their relatives.
4. It is further averred that after making such assurances and promises to the plaintiffs, defendant nos. 1 to 4 and Sh. Ved Prakash got equal shares i.e. 1/5th each in the aforesaid agricultural land/bagh, which was left out by Sh. Nihal Singh. Thereafter, all the above named sons of plaintiff no. 1 except defendant no. 1 and his family members, gave desired respective share to the plaintiff nos. 1 as well as 2 to 5 and their respective husbands, children and other relatives and also fulfilled their social, moral, legal and financial obligations towards them, but defendant no. 1 and his family members never fulfilled their moral, legal and social obligations towards the plaintiffs including at the time of Chhochhak and Bhat ceremonies and whenever, plaintiffs requested defendant no. 1 to fulfill his aforesaid promises and moral, social CS No. 336/9/12 Page 5 of 22 and legal obligations, but he refused to do so.
5. It is further averred that plaintiffs have no grievances against defendant nos. 2 to 6 and plaintiffs are not claiming their shares/partition from them as they and their family members are looking after and taking care of all kinds of need of plaintiff no. 1 and they are also helping financially all the plaintiffs.
6. It is further averred that the plaintiffs being the legal heirs of deceased Sh. Nihal Chand are seeking partition and claiming their shares from defendant no. 1 only in respect of 1/5th share as occupied by defendant no. 1 in the aforesaid agricultural land/bagh. It is further averred that plaintiffs requested defendant no. 1 number of times to make partition and handover their aforesaid 50% share from the aforesaid suit property to them, but defendant no. 1 and his family members initially asked for time on one pretext or the others.
7. It is further averred that on 28.10.2009, marriage of daughter of plaintiff no. 2 was solemnized, but defendant no. 1 and his family members did not contribute anything financially or otherwise despite repeated requests and defendant no. 1 is still adamant to dispose of the suit property without parting/ giving the shares of the plaintiffs.
CS No. 336/9/12 Page 6 of 22
8. It is further averred that on 02.11.2009, plaintiffs and their relatives came to know that defendant no. 1 is going to sell and dispose of the suit property without giving shares of the plaintiffs and some unknown persons also contacted and met with plaintiff no. 1 and defendant nos. 2 to 4 and made inquiry regarding title and interest etc. in respect of the suit property, but when they apprised about the legal and factual position of the same, then those persons left the spot without uttering even a word.
9. It is further averred that due to aforesaid illegal acts of defendant no. 1 and his family members, plaintiff no. 1 made complaint to SHO, PO Jahangir Puri, Delhi, on 02.11.2009, but the police did not take any legal action against defendant no. 1 and his family members.
10. It is further averred that the plaintiffs and the defendants are governed by The Hindu Succession Act, 1956, since they are Hindu by religion and no partition took place among them till the day as envisaged/described in Hindu Succession Act, 1956.
11. On these allegations, the plaintiffs have filed the present suit for partition, declaration and permanent injunction.
12. Summons of the suit were issued to the defendants, but only CS No. 336/9/12 Page 7 of 22 defendant no. 1 filed his written statement. Whereas defendant nos. 2 to 6 were proceeded ex parte vide order dated 10.08.2010 as they did not appear before the Court on that day despite several calls. However, defendant nos. 2 & 3 appeared on some dates before the Court after being proceeded ex parte.
13. It is stated in the WS filed on behalf of defendant no. 1 that the present suit is without any cause of action and is liable to be rejected under Order VII Rule 11 CPC. It is further stated in the WS that the suit is not maintainable and liable to be dismissed in the light of provisions of Delhi Land Reforms Act, 1954. It is further stated in the WS that plaintiffs are not entitled for any relief as claimed as plaintiff nos. 2 to 5 has already married and resided with their family members. It is further stated that all the plaintiffs and defendant nos. 2 to 4 have colluded with each other and they want to harass defendant no. 1 and also want to extort money from defendant no. 1. It is further stated that partition of the agricultural land has already been taken place between all the sons of Late Sh. Nihal Singh through plaintiff no. 1 and defendant nos. 2 to 4 and Sh. Ved Prakash after getting their shares, had already sold out/disposed of their shares and now they are pressurizing defendant no. 1 to sale CS No. 336/9/12 Page 8 of 22 out the land of defendant no. 1 just for the fulfillment of their bad habits.
14. The plaintiffs filed replication to the WS of defendant no. 1 and denied the contentions raised by defendant no. 1 in the WS and re affirmed those as stated in the plaint.
15. From the pleadings of the parties and documents on record, following issues were framed on 01.10.2010 :
1. Whether the plaintiffs are entitled for preliminary decree of partition, as prayed? OPP.
2. Whether the plaintiffs are entitled to final decree of partition, as prayed? OPP.
3. Whether the plaintiffs are entitled to decree of declaration, as prayed? OPP.
4. Whether the plaintiffs are entitled to decree of permanent injunction, as prayed? OPP.
5. Relief.
16. In order to prove their case, the plaintiff examined four witnesses who tendered their affidavits in evidence as Exs. PW1/A to PW4/A respectively and their statements were recorded as PW1 to PW4 respectively. The details of all the four PWs are CS No. 336/9/12 Page 9 of 22 hereasunder :
PW1 Smt. Phoolwati (plaintiff no. 1) PW2 Smt. Krishna (plaintiff no. 3) PW3 Smt. Anita (plaintiff no. 4) PW4 Smt. Babita (plaintiff no. 5)
17. PW1 also proved various documents on the record i.e. Exs. PW1/1 to PW1/7 to support the case of the plaintiffs. Document Ex. PW1/1 is the site plan. Ex. PW1/2 is the copy of Khatoni. Ex. PW1/3 is the copy of Parcha Khatoni. Ex. PW1/4 is the copy of death certificate of Sh. Nihal Singh. Ex. PW1/5 is the copy of complaint made to the Police. Ex. PW1/6 is the postal receipt dated 12.11.2009. Ex. PW1/7 is the Krishak Bhumi Pustika.
18. All the PWs were duly cross examined.
19. On the other hand, from the side of the defendants, defendant no. 1 examined himself as DW1 and tendered his affidavit as Ex. DW1/A in evidence. Another witness namely Sh. Ramesh Kumar i.e. brother of defendant no. 1 was also examined on behalf of the defendants as DW2 who tendered his affidavit in evidence as Ex. DW2/A.
20. Both the DWs were duly cross examined.
CS No. 336/9/12 Page 10 of 22
21. I have heard Ld. Counsels for the parties and have gone through the entire record carefully.
22. Considering the pleadings, the issues framed, evidence led, documents proved and arguments addressed by both the parties, the issuewise findings are as under : Issue Nos. 1 & 2 :
Issue No. 1 : Whether the plaintiffs are entitled for preliminary decree of partition, as prayed? OPP.
Issue No. 2 : Whether the plaintiffs are entitled to final decree of partition, as prayed? OPP.
23. Both these issues are interconnected hence, are taken up together for the purpose of propose adjudication. Onus to Prove both these issues are upon the plaintiffs.
24. It is pertinent to mention here in the beginning itself that Counsel for the plaintiffs on 08.08.2013 submitted that plaintiff is claiming 20% share in the land in possession of defendant no. 1 only and is not claiming any share in the properties of defendant nos. 2 to 6 as they have paid in money the share of the plaintiff.
25. PW1 Smt. Phoolwati reiterated almost all the contents of the plaint in her affidavit in evidence Ex. PW1/A. However, in her CS No. 336/9/12 Page 11 of 22 cross examination, PW1 stated that she does not know what is written in her affidavit. She further stated that she pressed her thumb impressions on the affidavit and she does not remember where she put her thumb impressions. She also admitted that she is having the knowledge about the partition. She also stated that she herself along with her daughters never made any complaint in this regard to the concerned authority prior to filing of the present case. She also stated that no relative raised any objection at the time of partition regarding the same. She also admitted it to be correct that after the partition, all her sons have started to pull the normal life with their families, however, they had not given her share. In her cross examination PW1 also stated that she told her sons about her share, but none of them listened to her. She also admitted it to be correct that as per Khasra Khatoni, her all the sons are mutated except her and her daughters.
26. PW2 Smt. Krishna also reiterated almost all the contents of the plaint in her affidavit Ex. PW2/A. However, apart from other things, she stated in her cross examination that she demanded her share orally from her brothers, but not in writing. She also admitted specifically that she never demanded in writing her share from her CS No. 336/9/12 Page 12 of 22 brothers. She also stated that she does not know what is written in her affidavit in evidence. She further stated that she has not placed any evidence on record in regard defendant no. 1 who is not fulfilling her social obligations. She further stated in her cross examination that she has not demanded her share from her other brothers because they are fulfilling their social obligations. She further stated that she never approached any relative that defendant no. 1 is not fulfilling his social obligations. She further stated that she never made any complaint in regard to the mutation of the partition. She also stated that she has not read the written statement and she does not know what the facts have been written in the written statement. She further stated that she is illiterate and does not know what is written in the written statement and in her affidavit.
27. PW3 Smt. Anita i.e. plaintiff no. 4 also reiterated almost all the contents of the plaint in her affidavit Ex. PW3/A. In her cross examination PW3 stated that she does not know what is written in her affidavit. She also stated that she never submitted any written complaint to the concerned authorities in regard to the partition of the property. She further stated that she never demanded her share CS No. 336/9/12 Page 13 of 22 before filing of the present suit.
28. Similarly, PW4 Smt. Babita i.e. plaintiff no. 5 also reiterated almost all the contents of the plaint in her affidavit Ex. PW4/A. However, in her cross examination, PW4 stated that during her presence at her parental home, partition took place among her brothers. She further stated that she has not demanded her share in the property during the partition. She further stated that her other three brothers have sold their shares as on today.
29. On the other hand DW1 Sh. Krishan in his affidavit in evidence Ex. DW1/A stated that the partition of the agricultural land has already been taken place between all the sons of Late Sh. Nihal Singh meats and bounds through plaintiff no. 1 and after getting their shares, defendant nos. 2 to 4 and Ved Prakash had already sold out/disposed of their shares and now they are pressurizing him (DW1) to sale out his land just for the fulfillment of their bad habits. He further stated that on each and every occasion of Bhat and Chochhak of the plaintiffs, he performed his duties and obligations, but defendant nos. 2 to 4 created hindrances in discharging his duties. He further stated that the partition took place 1520 years ago and since then, the plaintiffs never put any claim before him or CS No. 336/9/12 Page 14 of 22 before the concerned authority. In his cross examination, DW1 stated that they are five brothers and his mother is not residing with him now and he is not bearing the expenses of his mother for the last one year.
30. Another witness on behalf of the defendants namely Sh. Ramesh Kumar i.e. defendant no. 3 also appeared in the witness box as DW2 who stated in his affidavit Ex. DW2/A that the partition of the agricultural land had already taken place after the death of the father with the consent of all the members of the family which includes mother i.e. the plaintiff as well as the sisters. DW2 further stated in his affidavit that at the time of partition, none of the plaintiffs objected to the partition and accordingly, all the four brothers have taken equal share out of which, three sons of Late Sh. Nihal Singh has disposed of their shares and only defendant no. 1 is having his share. He further stated that the plaintiffs are not having any share in the share of defendant no. 1 as it was already decided at the time of last ceremony of his father. DW2 in his cross examination stated that his father expired 1415 years back, however, he cannot tell the exact date. He further stated that his father did not execute any Will in his life time. He further stated in his cross examination that his CS No. 336/9/12 Page 15 of 22 father had not parted the property during his life time. He further stated that after the death of his father, the partition of the property had taken place in the presence of his mother and accordingly, the said property was parted into five shares. He further stated that he and his brothers have undertaken to lookafter properly their mother jointly.
31. In nutshell, it has come on the record that the oral partition took place between the parties about 1520 years back and the suit property was mutated in the name of defendant nos. 1 to 4 and Sh. Ved Prakash who got equal share i.e. 1/5th each in the suit property.
32. It is a well settled law that a suit for partial partition is not maintainable. Partition once effected and acted upon, cannot be re opened. Reliance is placed upon AIR 1923 Bombay 25 and AIR 1947 Patna 22.
33. Substance of the entire material available would clinchingly indicate that there had been an oral partition in the family and that the defendants enjoyed the property on the strength of the oral partition.
34. It is contended by the Ld. Counsel for the plaintiffs that in respect of property owned by the coowners there could not be an CS No. 336/9/12 Page 16 of 22 oral partition of immovable property worth more than Rs.100/. In this case, it is not disputed that value of the property is more than Rs.100/. Hence oral partition is not permissible. Learned Counsel for defendants in response argued that partition of immovable property, be it among coowners or coparceners is only a renunciation of mutual rights and the law does not prohibit an oral partition of immovable property even among coowners irrespective of the value of the property. According to the learned counsel, it is only when a deed of partition is executed and the value of the property is more than Rs.100/ that it requires registration.
35. In P.Reddiar v. K.Reddi (AIR 1966 Madras 419) the Madras High Court held that the Transfer of Property Act does not expressly require a partition to be in writing and that there is no other provision of law requiring such a partition to be evidenced by writing. It held that an oral partition between coowners is valid in law. Section 17 of the Registration Act comes into operation only when a deed of partition is executed involving properties worth more than Rs.100/. The Supreme Court in Roshan Singh v. Zile Singh (AIR 1988 SC 881) stated that a document which merely recited about a previous partition is not the declaration of a Will but CS No. 336/9/12 Page 17 of 22 a mere statement of fact and does not require registration. The Courts have recognized oral partitions in cases of joint families. An oral partition is not an instrument of partition as contemplated under Section 2(15) of the Stamp Act. Therefore, as it is not an instrument, on an oral partition, no stamp duty is payable. The above being the position of law, I am unable to accept the contention of learned counsel for appellant that there could be no oral partition among coowners or cosharers involving immovable property worth more than Rs.100/.
36. The Courts have recognised that it is legally permissible to arrive at an oral family settlement dividing/partitioning the properties.
37. In the matter of Shantaram Balkrishna vs. Woman Gopal Wadekar, reported in AIR 1923 Bombay 85, Hon'ble Mr. Justice Crump has held that both under Mitakshara and the Vyavahara Mayukha the land reserved as common passage at the time of previous partition between the parties is not divisible subsequently.
38. It is further held in this matter that an oral arrangement is an agreement between the members of the same family, intended to be generally and reasonably for the benefit of the family either by CS No. 336/9/12 Page 18 of 22 compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour. The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.
39. The family arrangements are governed by a special equity peculiar to themselves, and will be enforced. The Courts have, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. The family arrangements can as a matter of law be inferred from a long course of dealings between the parties. It must be shown that there was an occasion for affecting family arrangement and that it was acted upon.
40. Hence, in view of the pleadings of the parties, evidence on the record and testimonies of the witnesses, it stands proved that there had been an oral partition in the family of the parties to the suit and that the defendants had been in the enjoyment of the suit property on the strength of the oral partition.
41. Hon'ble Mr. Justice Patanjali Sastri, as he then was, in Sabbu CS No. 336/9/12 Page 19 of 22 Naidu v. Varadharajulu Naidu, AIR 1948 Mad. 26, made the following observations : ......... the oral evidence considered by their Lordships was in support of the plea that there having been a previous partition, the suit 'in the present form', i.e., framed as one for partition did not lie.
42. The plaintiffs after the lapse of 1520 years cannot claim re opening of the oral partition, as held in the matter of AIR 1923 Bombay 25 and AIR 1947 Patna 22. In this case, oral partition had already been affected and acted upon even otherwise it is a well settled law that a suit for partial partition is not maintainable. In the present case, Counsel for the plaintiffs on 08.08.2013 specifically submitted that the plaintiffs are claiming 20% share in the land in possession of defendant no. 1 only and the plaintiffs are not claiming any share in the properties of defendant nos. 2 to 6 as they have paid in money the share of the plaintiffs, which indicates that the plaintiffs now want to claim 20% share in the land of defendant no. 1 who seems to be not fulfilling his social obligations towards the plaintiffs, but the fact remains the same that the oral partition took place and now the plaintiffs want share in the partitioned share of defendant no. 1 only. Such a relief is untenable in the law, as CS No. 336/9/12 Page 20 of 22 discussed herein above.
43. It was a well known fact in the Indian society in the olden times that the shares are generally given to the sons of the family who were required to fulfill all other social obligations towards their surviving parents and/or sisters at the time of sons of functions and otherwise. Hence, it seems that defendant no. 1 is not fulfilling his social obligations towards the plaintiffs and they are constrained to file the present suit. However, this Court feels that good senses shall prevail upon defendant no. 1 who shall meet his social obligations towards the plaintiffs and their children. However, the present suit in its present form is not maintainable, accordingly, the plaintiffs are not entitled for the decree of partition, as prayed. Partition once effected and acted upon, cannot be reopened and even otherwise, prayer for partial partition against defendant no. 1 is not maintainable and accordingly dismissed. Accordingly, both these issues are decided against the plaintiffs and in favour of the defendants.
ISSUE NOS. 3 & 4 :
Issue No. 3 : Whether the plaintiffs are entitled to decree of declaration, as prayed? OPP.
Issue No. 4 : Whether the plaintiffs are entitled to decree of CS No. 336/9/12 Page 21 of 22 permanent injunction, as prayed? OPP.
44. The Onus To Prove both these issues is upon the plaintiffs.
45. However, in view of my findings on issue nos. 1 & 2 and in the view of the law as discussed herein above, both these issues are also decided against the plaintiffs and in favour of the defendants. RELIEF :
46. In the light of above discussions, no relief can be granted to the plaintiffs. Suit is accordingly dismissed. However, parties are left to bear their own costs.
47. Decree sheet be drawn accordingly and file be consigned to Record Room.
Announced in the open Court
today i.e. 27.08.2013 (CHANDER SHEKHAR)
Distt. & Sessions Judge (North)
Rohini Courts, Delhi
CS No. 336/9/12 Page 22 of 22