Delhi District Court
Mr. Shuman Mukherjee vs Mr. Sanjoy Mukherjee on 23 March, 2023
IN THE COURT OF SH. GAURAV RAO, ADJ-03 / NEW
DELHI DISTRICT, PATIALA HOUSE COURTS, NEW
DELHI.
CS No. 57238/16 (Old no. 4042/2014)
CNR No. DLND01-001312-2014
Mr. Shuman Mukherjee
S/o Late Sh. Jyotirmoy Mukherjee
R/o C-4/31, Safdarjung Development Area,
New Delhi - 110016.
........Plaintiff
Versus
Mr. Sanjoy Mukherjee
S/o Late Sh. Jyotirmoy Mukherjee
R/o Flat no. 602, Tower-19,
The Close South, Nirvana Country,
Gurgaon - 122018
..........Defendant
Date of institution : 23.12.2014
Date on which reserved for judgment : 23.03.2023
Date of decision : 23.03.2023
Decision : Preliminary decree of
partition passed
JUDGMENT
1. The present suit for partition, possession and perpetual injunction has been filed by the plaintiff against the defendant.
CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 1/10 Plaint/Plaintiff's version
2. It is the case of the plaintiff that he is owner of undivided share to the extent of 87.50% in property i.e. DDA Flat no. 2321/C-2 (Ground Floor), Sector-C, Pocket-2, Vasant Kunj, New Delhi-110070 (hereinafter referred to as the suit property) and defendant, who is his real brother, is owner of undivided share in the same to the extent of 12.50%.
2.1 It is his case that the suit property was allotted to Sh. Jyotirmoy Mukherjee & Smt. Namita Mukherjee in equal shares vide allotment letter no. 126(367) 83/SFS/VKIII dated 04.07.1988 and after completion of all the formalities the physical possession of the same was handed over, by the J.E. of DDA, to the aforementioned allottees vide possession slip dated 12.06.1989, being the joint owners of the same.
2.2 It is his case that unfortunately Sh. Jyotirmoy Mukherjee expired on 06.08.2010 at Delhi leaving behind legal heirs i.e. Smt. Namita Mukherjee (wife), Smt. Rupali Choudhury (daughter), the plaintiff and the defendant.
2.3 It is his case that after the death of Sh. Jyotirmoy Mukherjee his undivided share in the suit property devolved upon all the above legal heirs and his ½ undivided share was inherited by the said legal heirs i.e. 12.50% each.
CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 2/10 2.4 It is his case that after the death of Sh. Jyotirmoy Mukherjee, his wife Smt. Namita Mukherjee became owner of undivided share in the suit property to the extent of 62.50% i.e. 50% as original allotee and 12.50% which she has inherited after the death of her husband. It is his case that Smt. Namita Mukherjee and Smt. Rupali Choudhury have relinquished their undivided shares in the suit property to the extent of 75% (i.e. share of Smt. Namita Mukherjee 62.50% and Smt. Rupali Choudhury 12.50%) in his favour vide registered relinquishment deed registered with Sub-Registrar IX New Delhi dated 17.10.2014 bearing registration No. 12145 in book No. 1 Volume No.7928 on pages 58 to 62 dated 21.10.2014 and thus he became owner of undivided share to extent of 87.50% in the suit property and defendant is entitled to 12.50% undivided share in the same.
2.5 It is his case that defendant alongwith his family was residing in the suit property and after the death of Sh. Jyotirmoy Mukherjee, the defendant along with his family shifted to Gurgaon, without disclosing his address to him. It is his case that he was working in Steel Authority of India from where he retired as Executive Director on 31.10.2014 and thereafter, he tried to contact the defendant but due to non-availability of address, he could not contact him.
2.6 It is his case that he visited the suit property and observed that the outer main external gate of the same was not locked from outside and the side external gate was locked from CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 3/10 outside and since he was not having keys, as such he could not enter the same, however, he locked the outer main external gate from outside as well as the side external gate from outside and thereafter was able to trace the mobile telephone number of defendant's son Sh. Saurav Mukherjee and called him on his mobile No. 9810889737 requesting him to hand over the keys of the suit property, which were lying with him, however, he did not respond properly.
2.7 It is his case that the defendant is fully aware that the suit property is in a dilapidated condition and there is every apprehension of it being misused by anti-social elements and because of these reasons he had put locks outside of the outer main external gate and side external gate, however, in order to save the suit property from any damage in future and to save the life & property of other occupants living in the flats above the sut property, it has become necessary to renovate/repair the same, after partitioning the same by metes and bounds.
2.8 It is his case that he is not having the telephone number of the defendant, because of which he talked to the son of the defendant and requested him to partition the suit property, but as he did not respond properly, he got issued one legal notice dated 03.12.2014 through his advocate requesting for partition of the same, however, despite receipt of the said notice, the defendant neither replied the same nor talked to him regarding partition of the suit property and hence the present suit.
CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 4/10 Defendant's version/Written Statement
3. In his written statement the defendant denied the contents of the plaint in toto while specificially denying that the plaintiff is owner of undivided share to the extent of 87.50% in the suit property or that defendant is owner of undivided share to the extent of 12.50% only.
3.1 It was pleaded that he is the absolute owner of the suit property as during the life time of their father the suit property was given to him under family arrangement.
3.2 It was pleaded that he & his family members were residing in the suit property under the said settlement and the documents in respect of settlement/transfer are not traceable, as the defendant is not in a physical & mental condition to provide any details about the documents which fact is/was well within the knowledge of plaintiff & other family members and thus the execution of relinquishment deed by their mother & sister is false & incorrect as they could not have relinquished any share in favour of the plaintiff, as the suit property already vested with him in terms of settlement/arrangement between the parties.
3.3 It was pleaded that the relinquishment deed in the present form could not have been executed and that the mere look at same reveals that page no. 1 of the same is missing, CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 5/10 further certificate number mentioned on e-stamp paper and page no. 2 is different, the date on stamp paper is mentioned as 14.10.2014 and date mentioned on page 2 is 17.10.2014 and date of registration has been shown as 21.10.2014. It was pleaded that the relinquishment deed mentions at page 2 that Smt. Namita Mukherjee and Late Shri Jyotirmoy Mukherjee were joint allottee/owners of suit property, however, document dated 20.01.1984 relied upon by plaintiff shows that suit property was allocated in favour of plaintiff, thus the recital of relinquishment deed are contrary to document dated 20.01.1984 and that the plaintiff has failed to file any document on record to show that on the basis of relinquishment deed his name has been mutated in the records of DDA.
3.4 It was pleaded that suit has not been valued property for the purpose of court fees and jurisdiction, the requisite court fees has not been paid by the plaintiff and this court has no jurisdiction to entertain the present suit as the same is beyond the pecuniary jurisdiction of this court.
3.5 It was pleaded that the suit is not maintainable and the same is liable to be dismissed as the suit property is allocated by DDA and as per the terms & conditions of DDA, suit property cannot be partitioned and that the plaintiff has deliberately not filed terms of lease on record, which specifically incorporates that the suit property cannot be partitioned between the parties.
CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 6/10 3.6 It was pleaded that the suit is not maintainable and is liable to be dismissed being barred by Limitation as father of the parties left for heavenly abode in the year 2010 and thus cause of action, if any, for filing the suit arose in the year 2010, however, the present suit has been filed in the year 2014 and thus the suit is barred by limitation.
3.7 However in para 4 of the reply on merits it was admitted that Late Sh. Jyotirmoy Mukherjee and Smt Namita Mukherjee i.e. their parents were joint owners of the suit property in equal shares and that unfortunately Sh. Jyotirmoy Mukherjee expired on 06.08.2010 at Delhi, though at the same time it was denied that after the death of Sh. Jyotirmoy Mukherjee his undivided share in the suit property devolved upon all the legal heirs i.e. his undivided share has been inherited by four legal heirs to the extent of 12.50 % each or that he is entitled to 12.50 % undivided share in the suit property.
3.8 It was denied that after the death of Sh. Jyotirmuy Mukherjee, his wife Smt Namita Mukherjee became owner of undivided share in the suit property to the extent of 62.50 % i.e. 50 % as original allotee and 12.50% which she has inherited after the death of her husband i.e. Sh. Jyotinoy Mukherjee or that Smt. Namita Mukherjee and Smt Rupali Choudhury have relinquished their undivided shares in the suit property to the extent of 75 % (i.e. share of Smt Namita Mukherjee 62.50% and Sm. Rupali Choudhury 12.50 %) in favour of plaintiff Sh. Shuman CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 7/10 Mukherjee by means of registered relinquishment deed registered with Sub-Registrar IX New Delhi dated 17.10.2014 bearing registration no. 12145 in book no. 1 Volume No.7928 on pages 58 to 62 dated 21.10.2014.
Examination u/s 10 CPC
4. Defendant's son Sh. Shourav Mukherjee was examined u/s 10 CPC and during his examination he made the following statement:-
"I am son of the defendant in the present matter as well as his legal guardian in terms of orders dated 27.08.2019. Plaintiff is the real brother of the defendant. Property bearing no. 2321/C- 2, Ground Floor, Sector C, Pocket 2, Vasant Kunj, New Delhi- 110070 was jointly owned by the parents of plaintiff and defendant namely Sh. Jyotirmoy Mukherjee and Smt. Namita Mukherjee. The parents died intestate. Apart from the plaintiff and defendant there is one more legal heir of Late Sh. Jyotirmoy Mukherjee & Smt. Namita Mukherjee i.e. Ms. Rupali Choudhury. As far as Smt. Namita Mukherjee she executed relinquishment deed in respect of 50% share of the above property in favour of the plaintiff and Ms. Rupali Choudhury also executed relinquishment deed qua her share in the above property. Thus the plaintiff became owner of 87.5% of the above property and the defendant is presently having 12.5% share in the above property. I have no objection to a preliminary decree being drawn in respect of the above property viz-a-viz the respective shares of the parties."
5. In fact the WS on behalf of defendant was filed by Sh. Shourav Mukherjee being his next friend/legal guardian in terms of orders dated 27.08.2019. The admitted position which emerges from the statement of Sh. Shourav Mukherjee is as under:-
CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 8/10 (A) The suit property was jointly owned by Late Sh. Jyotirmoy Mukherjee & Smt. Namita Mukherjee;
(B) Sh. Jyotirmoy Mukherjee died intestate and he left behind four legal heirs i.e. the plaintiff (son), defendant (son), Smt. Namita Mukherjee (wife) and Ms. Rupali Mukherjee (daughter);
(C) Being joint owner Smt. Namita Mukherjee was having 50% share in the suit property and on account of death of her husband she became owner to the extent of 62.5% (50% + 12.5%) and the plaintiff, defendant and Ms. Rupali Mukherjee became owner of undivided share of 12.5% each in the suit property;
(D) Smt. Namita Mukherjee and Ms. Rupali Mukherjee executed registered relinquishment deed dated 17.10.2014 in respect of the suit property in favour of the plaintiff thereby relinquishing their share in his favour; (E) Plaintiff thus became owner of 87.5% undivided share and leaving the defendant with 12.5 % undivided share in the suit property;
(F) The plea of oral family settlement/arrangement was not taken during examination u/s 10 CPC and thus has been given up. Even otherwise the said plea in the absence of exact details, date, month or year when the settlement took place is otherwise not tenable. Most importantly in the absence of any written memorandum of settlement or any transfer deed, sale deed etc., as per the provisions of Transfer of Property Act, 1882 and The Registration Act, CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 9/10 1908, complete/exclusive ownership in the suit property cannot devolve upon the defendant;
(G) Most importantly, the defendant's son, next kin/legal guardian admitted the ownership of the plaintiff to the extent of 87.5% in the suit property while admitting the defendant's share at 12.5% and gave no objection to preliminary decree of partition being passed. In view of the above admissions and admissions in the written statement, particularly para 4 of the reply on merits, it is a fit case where preliminary decree of partition should be drawn in terms of Order XII Rule 6 CPC.
5.1 Therefore preliminary decree of partition is hereby drawn and it is held that plaintiff is entitled to undivided share to the extent of 87.5% in the suit property i.e. DDA Flat no. 2321/C-2 (Ground Floor), Sector-C, Pocket-2, Vasant Kunj, New Delhi-110070 and defendant is entitled to undivided share to the extent of 12.5% in the suit property i.e. DDA Flat no. 2321/C-2 (Ground Floor), Sector-C, Pocket-2, Vasant Kunj, New Delhi- 110070. I order accordingly.
5.2 Decree sheet be prepared in terms of judgment. Announced in the open court on 23rd March 2023 (Gaurav Rao) Additional District Judge-3 New Delhi District Patiala House Courts, New Delhi.
CS 57238/2016 Shuman Mukherjee Vs. Sanjoy Mukherjee Pages 10/10