Delhi District Court
Sanjay Kumar Sharma vs Harkesh on 22 August, 2023
IN THE COURT OF SH. ANUJ AGRAWAL, ADDITIONAL
DISTRICT JUDGE - 05, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI
Civil Suit No. 17744/16
CNR No.DLSW01-008378-2016..
In the matter of :
Sanjay Kumar Sharma
S/o Sh. Mahender Singh
R/o 170, VPO Pandwala Kalan
New Delhi.
.....Plaintiff
Versus
1. Harkesh
2. Brij Mohan
Both S/o Sh. Mahender Singh
3. Mahender Singh (since deleted in view of his death)
All R/o 170, VPO Pandwala Kalan
New Delhi.
4. PNB, Pandwala Kalan Branch
Through Branch Manager
VPO Pandwala Kalan
New Delhi.
....Defendants
Date of institution of the suit : 04.11.2016
Final Arguments heard on : 18.08.2023
Date of Judgment : 22.08.2023
SUIT FOR PARTITION, RENDITION OF ACCOUNTS
AND PERMANENT INJUNCTION
CS No. 17744/16
Sanjay Kumar Sharma Vs. Harkesh & Ors. Page no. 1 of 10
JUDGMENT
1. The plaintiff has filed the present suit seeking partition, rendition of accounts and permanent injunction with the averments that the plaintiff is brother of defendant no. 1 and 2 and son of defendant no. 3. It is averred that mother of plaintiff and wife of defendant no. 3 namely Smt. Sarla Devi died intestate on 25.10.2016 leaving behind the plaintiff and defendants as legal heirs.
2. As per plaintiff, Smt. Sarla Devi had one FDR of Rs. 16,25,689/- bearing Sl. no. 308100, customer ID no. 107753731 A/c no. 3081000P00014537 in PNB Branch Village Paprawat, New Delhi and another FDR of around three lakhs as well as cash in her SB A/c No. 3081000100057614 and also one pension account in PNB, Najafgarh Branch(having very nominal amount) but the plaintiff is not aware about the details of the same as after death of Smt. Sarla Devi, defendant no. 1 took away the pass book as well as other FDRs in her name.
3. It is further averred that defendant no. 1 being nominee, took away all the documents pertaining to the accounts of Smt. Sarla Devi to grab the share of plaintiff and other defendants. The plaintiff and defendant no. 2 and 3 contacted the officials of defendant no. 4 seeking details of all the documents and FDRs of Late Smt. Sarla Devi but they are not cooperating the plaintiff despite a representation dated 31.10.2016 made to defendant no. 4 in this regard. Hence the present suit.
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4. The summons of the suit were issued to the defendants and defendant no. 1 and 4 filed their respective written statements. Defendant no. 2 and 3 did not file their written statements despite given opportunity.
5. It is relevant to mention here that defendant no. 3 i.e. father of plaintiff as well as defendant no. 1 & 2 expired during course of trial and his name was deleted from the array of parties vide order dated 26.07.2022 as he was survived by plaintiff and defendant no. 1 & 2, who are already parties to the suit.
6. In his written statement, it is averred by defendant no. 1 that the present suit is a collusive suit between plaintiff and defendant no.2. He admitted the relationship between the parties, however, denied that he took away the pass book as well as FDRs of late Smt. Sarla Devi. It is further averred that without issuance of Succession Certificate by the competent court, single paisa cannot be obtained by anyone from the banks.
7. In the written statement filed by defendant no.4, it is averred that Smt. Sarla Devi had one FDR of Rs. 14,80,000/- dated 12.12.2014 bearing Sl. no. 308100, customer ID no. 107753731 A/c no. 3081000P00014537 in which the nominee was defendant no. 1 and a claim form was filed by defendant no. 1 on 02.11.2016 and accordingly payment was made to him. It is further averred that Smt. Sarla Devi had a SB A/c No. CS No. 17744/16 Sanjay Kumar Sharma Vs. Harkesh & Ors. Page no. 3 of 10 3081000100057614 which is having an amount of Rs. 17,101.15 and there is no withdrawal from said account. It is further averred that nominee of the said account is Ms. Nidhi, daughter of defendant no. 1 Harkesh.
8. Vide order dated 05.03.2018, following issues were framed :-
1) whether plaintiff is entitled to a decree of partition in respect of movable properties left behind by Smt. Sarla Devi as mentioned in prayer clause no. 1? OPP.
2) whether plaintiff is entitled to the decree of permanent injunction, as prayed for by plaintiff in prayer clause no.2 ?
OPP.
3) whether plaintiff is entitled to a decree of rendition of accounts against defendant no.1, as prayed by plaintiff in prayer clause no.3 of the plaint ? OPP.
4) Relief.
9. Plaintiff examined two witnesses in support of his case. PW-1 is plaintiff himself, who filed his affidavit Ex. PW- 1/A in evidence wherein he deposed on line of averments made in plaint. He inter alia relied upon copy of death certificate of Smt. Sarla Devi Ex. PW-1/1, photocopy of the FDR, PNB Bank Ex. PW-1/3.
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10. PW-2 Sh. Abhishek Kumar Sinha, Branch Head, Punjab National Bank, who deposed that there were two FDRs bearing no. 3081000DP00014537, having maturity amount of Rs. 18,28,669/- and bearing no. 3081000OR00001921, having maturity amount of Rs. 3,20,000/-. He further deposed that as per bank record, both the said FDRs were credited in the account of her nominee namely Sh. Harkesh S/o Sh. Mahender Singh. He brought on record the certified copy of said FDRs as Ex. PW- 2/1 and Ex. PW-2/2.
11. Defendant no. 1 examined two witnesses in his defence. DW-1 is defendant no 1 himself, who filed his evidence by way of affidavit Ex. DW-1/A. It is relevant to mention that in his examination in chief (conducted vide affidavit Ex. DW-1/A) he deposed that late Smt. Sarla Devi was having two FDRs bearing no. 3081000DP00014537 worth Rs. 16,25,689/- and bearing no. 3081000OR00001921 worth Rs. 3 lakhs in PNB, Paprawat Branch.
11A. He further deposed that being nominee of late Smt. Sarla Devi, the payment of said FDRs have been credited in his account. He further deposed that he paid Rs. 7,50,000/- in cash on 18.02.2019 to plaintiff and wife of defendant no. 2 Ms. Lalita as their share in the said FDRs. During his cross-examination, he deposed that he does not recollect when the money was withdrawn, he further deposed that he did not take receipt regarding payment of Rs.7,50,000/-. He voluntary deposed that plaintiff and wife of defendant no. 2 did not issue any receipt regarding the payment saying that its a CS No. 17744/16 Sanjay Kumar Sharma Vs. Harkesh & Ors. Page no. 5 of 10 matter between brothers.
11B. DW-2 Renu Devi is the wife of defendant no.1 and she deposed on line of DW-1.
12. Heard. Record perused.
13. My issue-wise findings are as under :-
Issue no.(2) : whether plaintiff is entitled to the decree of permanent injunction, as prayed for by plaintiff in prayer clause no.2 ? OPP.
13A. Plaintiff sought a permanent injunction thereby restraining defendants from releasing of withdrawing the amount left behind by Smt. Sarla Devi including FDR as well as cash lying in her saving bank account. However, it has come on record in the written statement of defendant no. 4 as well as in the testimony of PW-2 that amount of FDRs have already been credited in the account of defendant no. 1 being nominee of Smt. Sarla Devi. Therefore, the relief of injunction qua FDRs has become infructuous. Further, no injunction qua saving account is required to be passed and instead the claim of parties qua said account is being decided in the following paragraphs. This issue is answered accordingly.
14. Issue No.(1) : whether plaintiff is entitled to a decree of partition in respect of movable properties left behind by Smt. Sarla Devi as mentioned in prayer clause no. 1? OPP.
CS No. 17744/16Sanjay Kumar Sharma Vs. Harkesh & Ors. Page no. 6 of 10 14A. The onus to prove said issue was upon plaintiff. It is evident from record that following facts are not in dispute :
i) that plaintiff and defendant no. 1 and 2 are sons of Smt. Sarla Devi ;
ii) that father of plaintiff and defendant no. 1 and 2 expired during course of trial and plaintiff, defendant no. 1 and 2 are the only surviving class one legal heirs of Smt. Sarla Devi;
iii) that Smt. Sarla Devi was having two FDRs and one saving account ;
iv) that Smt. Sarla Devi did not execute any Will with respect to said FDRs / saving account;
v) that defendant no. 1 was the nominee in both FDRs of Smt. Sarla Devi and maturity amount of said FDRs have already been credited in his account by the concerned bank.
14B. Therefore, in view of aforesaid admitted facts, plaintiff as well as defendant no. 1 and 2 are entitled to 1/3rd share each in both the FDRs as well as amount of saving account of Smt. Sarla Devi in terms of Section 15/16 of Hindu Succession Act.
14C. Though, defendant no. 1 in his examination in chief deposed that he has already paid a sum of Rs. 7,50,000/- in cash on 18.02.2019 each to plaintiff as well as wife of defendant no. 2 as one third share of said FDRs, however, in my considered view CS No. 17744/16 Sanjay Kumar Sharma Vs. Harkesh & Ors. Page no. 7 of 10 apart from bare assertions in this regard, he did not bring on record any material in support of same. Neither any receipt acknowledging the said payments were placed on record by defendant no.1 nor any bank statement showing corresponding withdrawal of the amount was placed by defendant no. 1. Even otherwise it has remained unexplained as to why defendant no.1 chose to pay the respective shares of plaintiff and defendant no. 2 (through his wife) in cash without obtaining any receipt when the parties were already at loggerheads by way of present litigation.
14D. Even otherwise as per defendant no. 1, the said payment of Rs. 7,50,000/- each was made on 18.02.2019 i.e. during pendency of present suit. However, it has remained unexplained as to why defendant no. 1 chose not to give shares of defendant no. 2 and plaintiff before this court which would have brought an end to this litigation. On one hand, defendant no. 1 is contesting the present suit tooth and nail by claiming that plaintiff and defendant no. 2 are in collusion, whereas on the other hand, he claims to have paid them in cash as per their respective shares without obtaining any acknowledgment thereof. Therefore, plea of defendant no. 1 appears to be nothing but a bundle of lies. The contention of Ld. Counsel for defendant No. 1, that instead of present suit plaintiff should have filed succession petition, is without merit as proceeding in succession petition are summary in nature and does not determine the substantive rights and liabilities of the parties and in my considered view the present suit thereby seeking partition of movable property is very much maintainable.
CS No. 17744/16Sanjay Kumar Sharma Vs. Harkesh & Ors. Page no. 8 of 10 14E. From the testimony of PW-2, it has come on record that a total maturity amount of Rs. 21,48,669/- was credited in the account of defendant no. 1 against both the FDRs of Smt. Sarla Devi. Therefore, plaintiff, defendant no. 1 and 2 are held entitled to one third share each in the said amount. Therefore, defendant no. 1 is directed to pay a sum of Rs. 7,16,223/- each to plaintiff as well as defendant no. 2.
14F. Further, plaintiff and defendant no. 1 and 2 are held entitled to one third share each in the cash lying in saving bank account No. 3081000100057614 PNB Branch Najafgarh. Accordingly, defendant no. 4 is directed to release the amount lying in said saving account to plaintiff, defendant no. 1 and 2 equally i.e. one third share to each of them. This issue is decided accordingly.
15. Issue No.(3) : whether plaintiff is entitled to a decree of rendition of accounts against defendant no.1, as prayed by plaintiff in prayer clause no.3 of the plaint ? OPP.
15A. The said issue stands answered in view of the findings of issue no. 2 and therefore no separate finding is required to be given qua said issue.
16. Issue no. (4) : Relief:- In view of the above findings, the present suit stands decreed. Plaintiff, defendant no. 1 and 2 are held entitled to one third share each of total maturity amount of Rs. 21,48,669/- in respect of two FDRs bearing no. 308100DP00014537 and bearing no. 308100OR00001921 of late Smt. Sarla Devi. Therefore, defendant no. 1 is directed to pay a CS No. 17744/16 Sanjay Kumar Sharma Vs. Harkesh & Ors. Page no. 9 of 10 sum of Rs. 7,16,223/- each to plaintiff as well as to defendant no.
2. Plaintiff and defendant no. 1 and 2 are also held entitled to one third share each in the cash lying in saving bank account No. 3081000100057614 PNB, Branch Paprawat of late Smt. Sarla Devi. Accordingly, defendant no. 4 is directed to release the amount lying in said saving account to plaintiff, defendant no. 1 and 2 equally i.e. one third share to each of them. Cost of the suit is also awarded to plaintiff and against defendant No. 1.
17. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Digitally signed by ANUJ AGRAWALAnnounced in the open ANUJ Date:
AGRAWAL 2023.08.22
court on 22.08.2023. 14:17:48
+0530
(Anuj Agrawal)
Additional District Judge-05
South West District/Dwarka Courts
New Delhi.
CS No. 17744/16
Sanjay Kumar Sharma Vs. Harkesh & Ors. Page no. 10 of 10