Delhi District Court
Vijay vs Rohtash on 12 September, 2024
IN THE COURT OF MS. RUCHIKA SINGLA,
DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
CS No. : 696/17
CNR no. DLNW01-008846-2017
In the matter of:
Vijay
S/o Sh. Rohtash
R/o H No. 31, Gali no. 1,
Near Chopal Village Bharola,
Delhi-110033.
........ Plaintiff
VERSUS
1. Sh. Rohtash
S/o Late Sh. Chaman Lal
R/o BW-519, Village Wazirpur,
Delhi-52.
2. Sh. Om Prakash
S/o Late Sh. Chaman Lal
R/o BW-519, Village Wazirpur,
Delhi-52.
3. Sh. Samay Singh
S/o Late Sh. Chaman Lal
R/o BW-519, Village Wazirpur,
Delhi-52.
4. Sh. Jai Singh (since deceased)
Through LR's
(i) Sh. Krishan
CS DJ NO. 696/17
VIJAY VS. ROHTASH
Page no. 16 of 16
S/o Late Sh. Jai Singh
R/o BW-519, Village Wazirpur,
Delhi-52.
(ii) Sh. Tej Pal,
S/o Lt. Sh. Jai Singh,
R/o BW-519, Village Wazirpur,
Delhi-110052.
(iii) Smt. Rainu,
W/o Not Known,
D/o Lt. Sh. Jai Singh,
R/o BW-519, Village Wazirpur,
Delhi-110052.
(iv) Smt. Meena,
W/o Not Known,
D/o Lt. Sh. Jai Singh,
R/o BW-519, Village Wazirpur,
Delhi-110052.
(v) Smt. Shakuntla,
W/o Lt. Sh. Jai Singh,
R/o BW-519, Village Wazirpur,
Delhi-110052.
....... Defendants
Date of institution : 28.02.2011
Date on which judgment was reserved : 09.09.2024
Date of pronouncement of the judgment : 12.09.2024
CS DJ NO. 696/17
VIJAY VS. ROHTASH
Page no. 16 of 16
JUDGMENT
SUIT FOR PARTITION WITH CONSEQUENTIAL RELIEF OF POSSESSION AND PERMANENT INJUNCTION
1. Vide this judgment, I shall decide present suit for partition with consequential relief of possession and permanent injunction.
2. Briefly stated the facts of the case as alleged by the plaintiff are that the plaintiff is the grandson of Late Sh. Chaman Lal S/o Late Sh. Jitu. The defendant no. 1 is his father and the other defendants are his uncles. It is stated that the plaintiff was born on 02.01.1986. Since his birth, his parents were residing at the ancestral property bearing no. BW- 519 Village Wazirpur, PS: Ashok Vihar, Delhi (hereinafter referred to as the 'suit property'). It has stated that since several years, the behavior and conduct of the defendant no. 1 towards the mother of the plaintiff was not good and he succeeded in shunting out the plaintiff and his mother from the ancestral property.
3. It is submitted that the suit property is measuring 45 sq yards and the same has been constructed upto the third floor. The grandfather of the plaintiff had divided the property into four parts amongst all his sons and the defendant no. 1. The father of the plaintiff was in the use and occupation of the third floor of the suit property. In Jan 2011, the plaintiff approached the defendant no. 1 to give his share in the said third floor of the suit property. The defendant no. 1 refused to CS DJ NO. 696/17 VIJAY VS. ROHTASH Page no. 16 of 16 give the share of the plaintiff to him. Hence, the plaintiff filed the present suit seeking partition, permanent injunction along with the consequential relief of possession.
4. WS was filed by all the defendants wherein they admitted the relationship amongst each other. However, it was specifically denied that the plaintiff had any share in the suit property. It was stated that apart from four sons, the grandfather of the plaintiff had three daughters namely Smt. Somati @ Savitri, Smt. Chandro @ Kamla and Smt. Omwati. Further, it was denied that the property was ancestral in nature. It was stated that the property belonged to the defendants and they were entitled to use the same as per their desire. Hence, it was stated that the suit may be dismissed.
5. No replication to the written statement of defendant was filed on behalf of the plaintiff.
6. Following issues were framed by Ld. Predecessor of this Court vide order dated 31.07.2013:-
"(1) Whether the plaintiff is entitled to a decree of possession, as prayed for? OPP.
(2) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP.
(3) Whether the suit of the plaintiff is without any cause of action? OPD.CS DJ NO. 696/17
VIJAY VS. ROHTASH Page no. 16 of 16 (4) Whether the plaintiff has no locus standi to file the present suit? OPD.
(5) Relief."
7. Thereafer, on 01.02.2023, additional issue was framed:-
"(1A) Whether the plaintiff is entitled to a preliminary decree of partition as prayed for? OPP."
8. Thereafter, the matter was fixed for plaintiff's evidence. In his evidence, the plaintiff examined himself as a witness i.e. Sh. Vijay as PW-1 and he tendered his evidence by way of affidavit, which is exhibited as Ex.PW1/A. He relied upon the following documents in his evidence:-
a) Original water supply bill in the name of the great grandfather of the plaintiff and grandfather of the defendant is Ex. PW1/1.
b) Photocopy of the order of deduction of maintainance charges in house-tax passed by concerned officer of MCD with regard to the suit property dated 12.04.1979 is Mark X.
9. Thereafter, the plaintiff has examined PW-2 i.e. Sh. Tushar, JSA, MCD, House Tax Department, Keshavpuram. He was the summoned witness and he proved the Demand and Collection Ledger with respect to property WP-519, Keshav puram Zone, Delhi in the name of Sh. Jittu as Ex. PW2/1 (colly). He further proved the circular No. Tax/A & C/KPZ/2023/ D-1127 dt.18.10.2023 and circular No. Tax/A & CS DJ NO. 696/17 VIJAY VS. ROHTASH Page no. 16 of 16 C/KPZ/2023-24/ D-860 dt.20.09.2023 and NCR Report dt. 21.10.2023 which are exhibited as Ex. PW-2/2 (Colly).
10. Thereafter, the plaintiff has examined PW-3 i.e. Sh. Bal Kishan, Junior Assistant, DJB, Ashok Vihar. He was the summoned witness has proved on record the water supply bill of K no. 5261080000 issued in the name of Sh. Jittu S/o Sh. Bhola R/o WP-519, Wazirpur Village, Delhi-52 as Ex. PW3/1 (colly).
11. The witnesses were duly cross examined by defendant and thereafter, PE was closed vide order dated 26.10.2023.
12. Thereafter, the matter was listed for DE. However, No DW was examined by the defendants. Vide separate statement of Ld. Counsel, DE was closed vide order dated 29.04.2024.
13. I have already heard final arguments from Sh. Sachin Vats, Ld. LAC for plaintiff and Sh. Sudhir Vats, Ld. Counsel for the defendants. I have perused the entire material available on record carefully. The issues were framed by Ld. Predecessor of this Court vide order dated 31.07.2013 & 01.02.2023. My Issue-wise findings are as under:-
Issue no. 1A:CS DJ NO. 696/17
VIJAY VS. ROHTASH Page no. 16 of 16 "(1A)Whether the plaintiff is entitled to a preliminary decree of partition as prayed for? OPP."
14. The onus to prove this issue was upon the plaintiff. In the present matter, the plaintiff has alleged that the suit property was owned by his grandfather Sh. Chaman Lal. Further, he had alleged that Sh. Chaman Lal expired intestate and the plaintiff being the grandson of Sh. Chaman Lal acquired an interest in the property being a coparcener in the suit property. Hence, he has filed the present suit seeking partition, possession and other reliefs. Ld. Counsel for the plaintiff has argued that as on the date of the death of Sh. Chaman Lal i.e. in the year 2001, the Hindu Succession Act, 1956 was in force. The amendment Act of 2005 had not yet been enforced. Hence, it is stated that the division of the property shall be as per the Section 6 of the Hindu Succession Act, 1956 whereby the property was to be divided by survivorship and not by the testamentary or intestate succession. Hence, it is submitted that as on the date of the birth of the plaintiff, he required a share in the suit property. Hence, he is entitled to the partition of the same. Judgment titled as Uttam v. Saubhag Singh & Ors. AIR 2016 SC 1169 relied upon.
15. Per contra, Ld. Counsel for the defendantx has opposed the same. It is submitted that by virtue of the Hindu Succession Act, 2005 the property is to be divided by testamentary/ intestate succession. It is submitted that this position has been upheld by the Hon'ble Supreme Court in Commissioner of Wealth Tax Vs. Chandra Sen AIR 1986 SC CS DJ NO. 696/17 VIJAY VS. ROHTASH Page no. 16 of 16 1753 and thereafter by the Hon'ble High Court of Delhi in Sunny (minor) and others Vs. Shri Raj Singh CS(OS) No. 431/2006 decided on 17.11.2015. Hence, it is stated that the plaintiff does not acquire any interest in the suit property as, as soon as Sh. Chaman Lal expired, his children i.e. the defendants and their sisters (who have not been impleaded on record by the plaintiff) succeeded to the property by way of interstate succession. The property then became the self acquired property of the defendants. Hence, it is submitted that the plaintiff has no right, title or interest in the suit property.
16. Record perused.
17. In the plaint or WS, the date of death of Sh. Chaman Lal was not mentioned. Clarifications were sought from both the parties in this respect and on 09.09.2024, the defendant no. 1's statement on Oath was recorded whereby he stated that the death of his father occurred on 06.05.2001 i.e. prior to the coming in force of the Amendment Act, 2005. However, he did not have his death certificate. Vide order dated 27.08.2024, the plaintiff also had stated that his grandfather expired in the year 2002. Hence, as Sh. Chaman Lal expired prior to 2005, Hindu Succession Act, 1956 shall be applicable to the facts and circumstances of the case.
18. Having said that, first and foremost, the plaintiff must prove that the suit property in question was owned by his grandfather Sh.
CS DJ NO. 696/17VIJAY VS. ROHTASH Page no. 16 of 16 Chaman Lal and the same was ancestral. In this regard, as such no independent evidence was led by the plaintiff. He appeared in the witness box as PW1 and the title documents of the suit property were not proved by him. Thereafter, the plaintiff summoned the record which was available with the MCD House Tax Department. Shri Tushar, JSA appeared in the witness box as PW-2. He brought the Demand and Collection Ledger with respect to the property bearing no. WP-519 Keshav Puram Zone, Delhi which was in the name of one Sh. Jittu. The said record was proved as Ex. PW2/1.
19. Thereafter, the plaintiff also summoned a witness from the Delhi Jal Board. PW-3 Sh. Bal Kishan, JA, Delhi Jal Board proved on record the water supply bill which was issued in the name of Sh. Jittu S/o Sh. Bhola as Ex. PW3/1. Hence, from the record which was produced, it could not be proved that the property was in the name of Sh. Chaman Lal. During the course of oral arguments by the Ld. Counsel for the plaintiff it was argued that Sh. Chaman Lal was the son of Sh. Jittu in whose name the water connection and the MCD House Tax record was there. However, no such evidence was led by the plaintiff to prove the relationship between Sh. Chaman Lal and Sh. Jittu. Secondly, the summoned record was in respect of property bearing no. WP-519, Wazirpur Village while in the plaint, the details of the suit property were mentioned by the plaintiff BW-519 Village Wazirpur. The plaintiff did not lead any such evidence that both the addresses were of the same property. Hence, in the opinion of the court, the plaintiff has failed to CS DJ NO. 696/17 VIJAY VS. ROHTASH Page no. 16 of 16 prove that Sh. Chaman Lal was the owner of the suit property at any point of time.
20. For the sake of arguments, even if it is believed that Sh. Jittu was the owner of the suit property and Sh. Chaman Lal was his son, then the plaintiff has to prove that the property was coparcenary in nature. From the various pronouncements of the Hon'ble Supreme Court and the various Hon'ble High Courts, it has been held that a property which is acquired by the Hindu great grandfather which then passes undivided down the next three generations up to the present generation of grandson/ daughter is an ancestral property. If Sh. Jittu in the present matter was the great grandfather of the plaintiff and in the absence of any proof regarding actual partition, then it can be said that the property is ancestral.
21. Further, as Sh. Chaman Lal expired in the year 2001, in the opinion of the court, Section 6 of the Hindu Succession Act, 1956 (prior to the Amendment Act, 2005) shall be applicable to the facts and circumstances of the present case. The said provision is reproduced as under:-
"S. 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 Mithakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving CS DJ NO. 696/17 VIJAY VS. ROHTASH Page no. 16 of 16 members of the coparcenary and not in accordance with this act.
Provided that, if the deceased had left surviving him 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 Mithakshara 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 Mithakshara 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 has 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."
22. Hence by virtue of the above mentioned provision, it is clear that that upon the death of Sh. Chaman Lal, the property could have devolved by survivorship and not by testamentary or intestate succession. However, in the proviso it has been stated that if the deceased left behind CS DJ NO. 696/17 VIJAY VS. ROHTASH Page no. 16 of 16 a surviving female relative as specified in class I of the Schedule or a male relative through such female relative, then the interest in the property shall devolve by testamentary or intestate succession and not by survivorship. In the present matter, the defendant has specifically taken this objection in the WS that Sh. Chaman Lal was survived by not only the defendants but three daughters namely Smt. Somti @ Savitri, Smt. Chandro @ Kamla and Smt. Omwati. Hence, the proviso to Section 6 of the Hindu Succession Act 1956 shall be applicable to facts and circumstances of the present case.
23. Hence, by virtue of the same, even though the property was a coparcenary property, the interest in the same shall devolve by testamentary/intestate succession and not by survivorship. For this, class I of the schedule of the Hindu Succession Act has to be perused as per which, a grandson is not a class I legal heir. The effect of the same has been clarified by the Hon'ble Supreme Court in the Commissioner of Wealth Tax Vs. Chander Sen AIR 1986 SC 1753, which has been relied upon by the Hon'ble High Court of Delhi in the judgment relied upon by the Ld. Counsel for the defendant. The Hon'ble Supreme Court has clearly observed that after the coming into force of the amendment Act in the Hindu Succession Act 1956, the inheritance of ancestral property does not create an HUF. The same shall be deemed to be the self acquired property of the beneficiary of the Will. The relevant observations are as under:-
CS DJ NO. 696/17VIJAY VS. ROHTASH Page no. 16 of 16 "Before we consider this question further, it will be necessary to refer to the view of the Madras High Court. Before the full bench of Madras High Court in Additional Commissioner of Income-tax, Madras v. P.L. Karappan Chettiar, 114 I.T.R. 523, this question arose..... On a reference to the High Court at the instance of the revenue, it was held by the Full bench that under the Hindu law, the property of a male Hindu devolved on his death on his sons and grandsons as the grandsons also have an interest in the property. However, by reason of section 8 of the Hindu Succession Act, 1956, the son's son gets excluded and the son alone inherits the property to the exclusion of his son. No interest would accrue to the grandson of P in the property left by him on his death. As the effect of section 8 was directly derogatory of the law established according to Hindu law, the statutory provision must prevail in view of the unequivocal intention in the statute itself, expressed in section 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu law. Accordingly, in that case, K alone took the properties obtained by his father, P, in the partition between them, and irrespective of the question as to whether it was ancestral property in the hands of K or not, he would CS DJ NO. 696/17 VIJAY VS. ROHTASH Page no. 16 of 16 exclude his son. Further, since the existing grandson at the time of the death of the grandfather had been excluded, an after-born son of the son will also not get any interest which the son inherited from the father. In respect of the property obtained by K on the death of his father, it is not possible to visualise or envisage any Hindu undivided family. The High Court held that the Tribunal was, therefore, correct in holding that the properties inherited by K from his divided father constituted his separate and individual properties and not the properties of the joint family consisting of himself, his wife, sons and daughters and hence the income therefrom was not assessable in the hands of the assessee- Hindu undivided family. This view is in consonance with the view of the Allahabad High Court noted above..... In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore."
24. The observations of this case were followed by the Hon'ble High Court of Delhi in Sunny (minor) and Ors. Vs. Shri Raj Singh CS (OS) 431/06 and in another matter Dr. Suraj Munjal Vs. Chandan Munjal CS DJ NO. 696/17 VIJAY VS. ROHTASH Page no. 16 of 16 CS no. 682/2017. Hence, in the opinion of the court, following the same principle, the present plaintiff does not acquire any interest in the suit property. Ld. Counsel for the defendant has rightly argued that the plaintiff has no cause of action in his favour. Hence, by virtue of the same, the plaintiff is not entitled to the preliminary decree of partition as claimed. Hence, this issue is decided in the favor of the defendants and against the plaintiff.
Issue no. 3 and 4:
"(3) Whether the suit of the plaintiff is without any cause of action? OPD.
(4) Whether the plaintiff has no locus standi to file the present suit? OPD."
25. The onus to prove these issues was upon the defendants. In view of the discussion in issue no. 1A, as the plaintiff has no right to get the property partitioned in view of the applicability of the proviso to Section 6 of the Hindu Succession Act, 1956, these issues are decided in the favor of the defendants and against the plaintiff.
Issue no. 1 and 2:
(1) Whether the plaintiff is entitled to a decree of possession, as prayed for? OPP.
(2) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP."CS DJ NO. 696/17
VIJAY VS. ROHTASH Page no. 16 of 16
26. The onus to prove these issues was upon the defendants. In view of the above discussion in issue no. 1A, the plaintiff is not entitled to the said reliefs as well. Hence, these issues are also decided in the favor of the defendants and against the plaintiff.
Relief:
In view of the same, the suit of the plaintiff is dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court on 12th September, 2024.
(RUCHIKA SINGLA) District Judge-03, North-West Distt., Rohini Courts, Delhi.
This judgment contains 16 pages and each page is checked and signed by me.Digitally signed by RUCHIKA SINGLA
RUCHIKA Date:
SINGLA 2024.09.12
15:19:46
+0530
CS DJ NO. 696/17
VIJAY VS. ROHTASH
Page no. 16 of 16