Delhi District Court
(2) Smt. Surekha Dewan vs Sh. Alok Vahie on 9 January, 2017
IN THE COURT OF SH. RAKESH KUMAR SHARMA, ADJ03
(N/W) ROHINI COURTS:DELHI
Civil Suit No. 68/16
(1) Smt. Alka Goindi
w/o Sh. Ramesh Kumar Goindi
r/o B6, Brij Vihar, Pitampura,
Delhi110034
(2) Smt. Surekha Dewan
w/o Sh. A. K. Dewan,
r/o Flat no. 90, PocketD4,
Rohini, Delhi110085 ....... Plaintiffs
Versus
Sh. Alok Vahie
s/o late Sh. Hem Raj Vahie
r/o A299, Kidwai Nagar (East)
New Delhi110023 ......Defendant
Date of Institution of the Suit : 21032002
Date of decision : 09012017
J U D G M E NT
1. This is a suit for partition filed by the plaintiffs against the
defendant.
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 1 of 28
2. Admitted/ undisputed facts are that the defendant is the
brother of the plaintiffs. The parties are son and daughters of Sh.
Hem Raj Vahie who expired on 30031998. After his death, his wife
Smt. Sheela Vahie stayed with the defendant. She also died on 26
021999. All the parties are and their parent were Hindu. Sh. Hem
Raj Vahie left behind an MIG Flat no. 114, Pocket D15, Sector7,
Rohini, Delhi consisting of two bedrooms, one drawingcumdining
room, one bathroom, and one kitchen (hereinafter "the suit premises),
one bank account and certain FDRs (particulars of the bank account
and FDRs have been given in the plaint) at the time of his death.
3. It is stated in the plaint that Sh. Hem Raj Vahie died
intestate. After the death of the parents of the parties, the parties
herein are entitled to inherit the estate left by Sh. Hem Raj Vahie in
equal share i.e. 1/3 each. The suit premises is lying vacant and
locked. The defendant is not staying in the suit premises. The
original FDRs left behind by Sh. Hem Raj Vahie were in the control of
Smt. Sheela Vahie. She was living with the defendant till her death.
After the death of Smt. Sheela Vahie, the FDRs are under the control
of the defendant. The plaintiffs have requested the defendant on
several occasions to disclose the documents pertaining to Sh. Hem
Raj Vahie and to give their share to the plaintiffs. However, the
defendant has failed and neglected to disclose any information and
has refused to partition the suit premises. Hence, the present suit.
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 2 of 28
The prayer in the plaint is as follows:
"PRAYER
It is, therefore, most respectfully prayed that this Hon'ble
Court may be pleased to:
(a) That a preliminary decree for partition of the estate left
behind the said Shri Hem Raj Vahie by metes and bounds, be
passed in favour of the plaintiffs and against the defendants.
(b) That a final decree of partition be passed by metes and
bounds in favour of the plaintiffs and against the defendants
and the parties be ordered to retain possession of their
respective shares in the property/ estate.
(c) That in case the immovable property is held to be not
divisible by this Hon'ble Court then the property be ordered to
be sold through the court auction and the proceeds may be
divided amongst the coowners.
(d) That the cost of the proceedings be awarded to the
plaintiffs against the defendants.
(e) That any other relief to which this Hon'ble Court deed fit
and proper in the circumstances of the case, may also be
passed in favour of the plaintiffs and against the defendant."
4. The defendant has contested the suit by filing a written
statement. As preliminary objections, it is submitted that the suit has
not been properly valued for the purposes of court fees and
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 3 of 28
jurisdiction and proper court fees has not been paid. Admittedly, the
plaintiffs are not in possession of any part of the estate and thus they
are liable to pay advalorem court fees on the amounts claimed. On
merits, the contents of the plaint are denied by the defendant who has
submitted that plaintiffs are well aware that bank accounts and the
fixed deposits mentioned in the plaint were in the joint names of Sh.
Hem Raj Vahie and Smt. Sheela Vahie and that after the death of Sh.
Hem Ran Vahie, Smt. Sheela Vahie operated the said accounts and
used the amounts of the fixed deposits after encashing the same on
her illness. As far as the suit premises is concerned, the same was
left by Sh. Hem Raj Vahie to Smt. Sheela Vahie and thereafter to the
defendant by the parents. As per the desire of Sh. Hem Raj Vahie,
after his death, the suit premises vested in his widow Smt. Sheela
Vahie who executed a duly registered Will dated 16071998 in favour
of the defendant. Hence, by virtue of the Will, the defendant is sole
and absolute owner of the suit premises and the plaintiffs have no
right therein. Hence, the plaintiffs cannot seek partition of the suit
premises. Even otherwise, the suit premises being a residential
house and single dwelling unit, the plaintiffs have no right to seek
partition thereof as per the provisions of Hindu Succession Act. The
defendant has sought dismissal of the suit with exemplary costs.
5. In their replication, it is submitted by the plaintiffs that
since the death of Sh. Hem Raj Vahie, the defendant never lived in
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 4 of 28
the suit premises till filing of the suit. The bank account and the fixed
deposits mentioned in the plaint were in the joint names of Sh. Hem
Raj Vahie and Smt. Sheela Vahie. Since Smt. Sheela Vahie had no
source of income, all the money belonged to Sh. Hem Raj Vahie.
After the death of Sh. Hem Raj Vahie, Smt. Sheela Vahie was only a
trustee of the amount left in the said account and had only 1/4 share
therein. After the death of Sh. Hem Raj Vahie, the defendant got
added his name in the bank account and thereafter, operated the said
account. He also encashed the FDR held by Sh. Hem Raj Vahie with
Steel Authority of India but deposited the same in a joint account in
State Bank of India, South Extension and used the amount to the
exclusion of the plaintiffs. The plaintiffs also sent a legal notice to the
defendant on 09071998 asking him to give their share in the estate
left by Sh. Hem Raj Vahie. The other contents of the written
statement are denied by the plaintiffs, who have reiterated the
contents of their plaint.
6. From the pleadings of the parties, following issues were
framed:
"1. Whether the plaintiff is entitled for partition of the
properties. If so, what is the share of the plaintiff? OPP
2. Whether the suit has not been properly valued for the
purpose of court fee and jurisdiction and proper court fee
has not been paid? OPD
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 5 of 28
3. Whether late Smt. Sheela Vahie executed a legal and
valid Will dated 16th June, 1998, if so, to what effect? OPP
4. Relief"
7. The plaintiffs examined three witnesses, including both
the plaintiffs, in support of their case. The defendant examined two
witnesses, including himself, in support of his case.
8. Written arguments were filed by both the parties.
9. The plaintiffs relief upon the following authorities in
support of their contentions:
(a) (2011) 9 SCC 788, Ganduri Koteshwaramma & Anr. Vs.
Chakiri Yanadi and Anr.
(b) (2009) 6 Supreme Court Cases 99, G. Sekar V. Geetha &
Ors.
(c) (2011) 6 SCC 462, Prema Vs. Nanje Gowda and ors.
10. The defendant relied upon the following authorities in
support of his contention:
(a) 2015 (1) SCALE 677, M/s Radiance Fincap (P) Ltd. & Ors.
Vs. Union of India & Ors.
(b) AIR 2011 Supreme Court Cases 294, Sadaram
Suryanarayana & Anr. Vs. Kalla Surya Kantham & Anr.
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 6 of 28
(c) (2009) 6 Supreme Court Cases 99, G. Sekar Vs. Geetha
& Ors.
(d) AIR 2005 Supreme Court 233, Daulat Ram and others Vs.
Sodha and others.
(e) (1996) 3 Supreme Court Cases 644, Narashimaha Murthy
Vs. Susheelabai (Smt.) and others.
(f) AIR 1969 Madras 217 (V 56 C 50), M.V. Savitri Ammal
Vs. Secretary, Revenue Department, Govt. of Madras.
(g) AIR 1929 Madras 64, Mrs. M.E. D'Cruz Vs. Nagiah Naidu
and others.
11. I have gone through the record including the written
arguments as well as the authorities relied upon by the parties.
12. My issuewise findings are as follows:
13. Issue no. -2: The burden of proving this issue was on
the defendant.
14. Although in the written statement, the defendant claimed
that the suit has not been properly valued, no valuation which is
correct as per the defendant has been given.
15. No witness has been examined by the defendant in
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 7 of 28
respect of the issue. Even in his affidavit filed as examinationin
chief, the defendant did not say that the suit is not properly valued or
even what the correct valuation is.
16. In the written arguments of the defendant, nothing is
stated about this issue. Hence, the defendant is deemed to have give
up this objection.
17. Even otherwise, it is a settled law that a suit for partition is
to be valued at the market value of the entire property sought to be
partitioned and that plaintiffs have to pay advalorem court fees on
their share if they are not in possession of the property sought to be
partitioned.
18. Para 15 of the original plaint was as follows:
"15. That the value of the suit for the purpose of
jurisdiction for the relief of partition is same as that of the
market value of the property which is about Rs.
18,00,000/. The value of the suit for purpose of court fee
and jurisdiction for the said relief is Rs. 200/ on which a
court fee of Rs. 20/ is being paid. The plaintiffs undertake
to give deficit court fees, if any on the proportionate share
of the plaintiffs as and when the shares of the plaintiffs are
determined." (underlining by me)
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 8 of 28
19. A perusal of the record reveals that the said para was
amended by the plaintiff which amendment was allowed vide order
dated 03112004. The amended para is as follows:
"15. That the value of the suit for the purpose of
jurisdiction for the relief of partition is same as that of the
market value of the property which is about Rs.
26,20,056/. The value of the suit for purpose of court fee
and jurisdiction for the said relief is Rs. 200/ on which a
court fee of Rs. 20/ is being paid. The plaintiffs undertake
to give deficit court fees, if any on the proportionate share
of the plaintiffs as and when the shares of the plaintiffs are
determined."
(underlining by me)
20. A perusal of the record further shows that vide the same
order i.e. dated 03112004, the plaintiff agreed to pay advalorem
court fees in respect of the share claimed and the said court fees was
later on deposited by the plaintiff as recorded in order dated 2709
2005.
21. The plaintiffs examined one Sh. Ashok Bajaj as PW3.
This witness filed his affidavit in July 2007 claiming that market value
of the suit premises at that time (i.e. in July 2007) was around Rs. 36
to 38 lakh. Crossexamination of this witness was conducted on 31
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 9 of 28
072007. In his crossexamination, he stated that ".......two and half
years ago the cost of similar flat in the same locality was about Rs.
18 Lacs.....
22. Hence, as per PW3, the market value of the suit
premises in the year 2005 was Rs. 18 lakh. No suggestion was given
to the witness by the defendant that value was more than 18 lakh on
the date of filing of the suit.
23. In view of the above discussion, it can safely be taken that
the value of the suit premises on the date of the filing of suit was Rs.
18 lakh.
24. Further, the total value of the amount in the bank account
and the FDRs mentioned by the plaintiff in the plaint comes to Rs.
9,69,986/. The share of the plaintiffs' claim is 1/3 each i.e. 2/3 of the
Rs. 9,69,986/ which comes to Rs. 6,46,657/.
25. If the share of the plaintiffs in the bank account and the
FDRs (which comes to Rs. 6,46,657) is added to the value of Rs. 18
lakh for partition of the suit premises, the value is less than the
valuation given by the plaintiff in the plaint. Hence, it is held that suit
is properly valued for the purpose of court fee and jurisdiction. Issue
no. 2 is, accordingly, decided in favour of the plaintiffs and against the
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 10 of 28
defendant.
26. Issue no. -3: The burden of proving this issue was on
the plaintiffs.
27. On 23082016, counsel for the plaintiffs made a
statement before the Court that plaintiffs do not dispute the execution
of the Will dated 16071998 by the mother of the parties but only the
effect of the Will.
28. The Will was relied upon by DW2 Sh. Anil Gulati in his
examinationinchief as Mark A which was later exhibited as Ex.
DW2/B. The entire Will comprises of one page only. The relevant
part of the Will Ex. DW2/B is as follows:
"WHEREAS the Testator make this WILL in respect of
her share in property MIG FLAT NO114, POCKETD15,
SECTORVII, SITUATED AT ROHINI, DELHI, which devolved
upon her after the death of her husband LATE SH. HEM RAJ
VAHIE and her own whole Bank Balance and Jewellery, and
all moveable assets whatsover.
And I hereby appoint my son SH. ALOK VAHI the sole
Executor of this 'WILL'.
(underlining by me)
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 11 of 28
29. In the written arguments of the plaintiffs, it is contended
that in this Will, the mother of the parties Smt. Sheela Vahie has not
bequeathed her share to the defendant and that defendant has
merely been appointed as Executor. Needless to say, this contention
is disputed by the defendant.
30. Sections 2(c) and 2(h) of the Indian Succession Act, 1925
(hereinafter "the Act") is as follows:
"2. Definitions: In this Act, unless there is anything
repugnant in the subject or context,--
(c) "executor" means a person to whom the execution of
the last Will of a deceased person is, by the testator's
appointment, confided;
(h) "Will" means that legal declaration of the intention of
a testator with respect to his property which he desires
to be carried into effect after his death."
(underlining by me)
31. It is clear from the provisions that the bequeathment by
way of a Will and appointment of an executor to carry out the
intention of the testator after his/ her death are two entirely different
things, although in the same cases, the person on whom the
properties are bequeathed by way of the Will may be appointed as an
executor.
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 12 of 28
32. I am of the considered view that a document can be said
to be a Will only if it contains all the specific words of bequeathment
to be given effect to after the death of the testator and that the desire
of the testator to give up the ownership of the property after his/ her
death is an essential constituent of the Will, and that Will regulates
succession and provides for succession as declared by it
(testamentary succession) instead of succession as per personal law
(nontestamentary succession) and that in case, these essential
ingredients are not fulfilled by a document, the document is not a Will.
33. As noted above, the relevant portion of the Will does not
say that after the death of the testator Smt. Sheela Vahie, any of the
properties owned by her shall devolve upon the defendant herein,
much less to the exclusion of all others, including her daughters. In
fact, there is not even a mention of the daughters (i.e. plaintiffs) in the
entire Will. It is not even stated in the Will that after her death, her
daughters i.e. plaintiffs herein, shall not have any share in the suit
premises.
34. In fact, the Will Ex. DW2/B does not say anything as to
what is to happen to the properties of Smt. Sheela Vahie on her
death. The first para, noted above, merely talks about the properties
regarding which the Will is being made. It itself does not bequeath
the property to any person specifically, much less to the defendant,
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 13 of 28
much less exclusively.
35. The second para of Ex. DW2/B, noted above, merely
appoints the defendant herein as the sole executor of the Will.
36. Hence, I find force in the contention of the plaintiffs that
Will merely appoints the defendant herein as the sole executor of the
Will without bequeathing any property on him. In this view of the
matter, the document Ex. DW2/B, although stated to be a Will, is not
a Will in the eyes of law.
37. Section 211 of the Act is as follows:
"211. Character and property of executor or
administrator as such.--(1) The executor or administrator,
as the case may be, of a deceased person is his legal
representative for all purposes, and all the property of the
deceased person vests in his as such.
(2) When the deceased was a Hindu, Muhammadan,
Buddhist, Sikh, Jaina or Parsi or an exempted person, nothing
herein contained shall vest in an executor or administrator any
property of the deceased person which would otherwise have
passed by survivorship to some other person."
(underlining by me)
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 14 of 28
38. Admittedly, Smt. Sheela Vahie was a Hindu. Hence, as
per the provision, the property of Smt. Sheela Vahie does not vest in
the defendant herein and the same passes to all the legal heirs of
Smt. Sheela Vahie equally by survivorship.
39. Daulat Ram (supra) was relied upon by the defendant to
contend that the burden of proving that the Will was obtained under
undue influence or coercion by playing a fraud was on the plaintiffs.
As noted above, counsel for the plaintiffs made a statement before
the Court that the plaintiffs do not dispute execution of the Will but
only effect thereof. Hence, the question whether the Will was
obtained by fraud/ coercion/ undue influence does not arise. Thus, in
my considered view, the authority is not applicable to the facts of the
present case.
40. The defendant has relied upon M.V. Savitri Ammal
(supra), M.E. D'Cruz (supra) and Sadaram Suryanarayana (supra)
to contend that the court must gather the intention of the executor
from the Will and give effect to the said intention. The contention is
that the intention of Smt. Sheela Vahie was to bequeath the entire
suit premises to the defendant.
41. As noted above, in the present case, there is no
bequeathment by way of the Will at all.
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 15 of 28
42. Section 81 of the Act is as follows:
"81. Extrinsic evidence inadmissible in case of
patent ambiguity or deficiency.--Where there is an
ambiguity or deficiency on the face of a Will, no extrinsic
evidence as to the intentions of the testator shall be admitted."
(underlining by me)
43. This Section forbids admission of any extrinsic evidence
for recording the intentions of the testator where there is deficiency on
the face of a Will.
44. I have carefully gone through the authorities. There
cannot be any dispute about the propositions of law laid down in the
authorities but it is a settled law that each case is to be decided
according to its own facts. I am of the view that facts in the present
case are materially different from those in the authorities. In none of
these authorities, there was merely appointment of an executor
without bequeathing the property, as in the present case. Hence, I
am of the considered view, with great respect, that none of these
authorities is applicable to the facts of the present case.
45. Since it was held above that Ex. DW2/B is not a Will in the
eyes of law. The result is that after the death of Smt. Sheela Vahie,
her estate is to devolve upon her legal heirs, as per the Hindu
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 16 of 28
Succession Act, 1956, as per the law applicable to the Hindu women
dying intestate. Hence, all the parties herein, are entitled to succeed
to the movable and immovable properties left behind by Smt. Sheela
Vahie equally i.e. in 1/3 share each. The issue is, accordingly,
decided in favour of the plaintiffs and against the defendant.
46. Issue no. 1: The burden of proving this issue was on
the plaintiffs. In their respective affidavits filed as examinationin
chief, both the plaintiffs fully supported their case as stated in the
plaint.
47. Significantly, in her crossexamination, PW1 Smt. Alka
Goindi stated as follows:
"....... It is correct that all the bank accounts of my
mother was having, it was joint account with my father. It is
also correct that in my father's bank accounts, my mother was
either jointly holding the bank account or she was a nominee
of my father in his accounts and fixed deposits etc. I was
aware of the fact that my mother was joint holder of the bank
accounts with my father or she was a nominee of my father in
his bank accounts, fixed deposits etc. at the time of death of
my father...... I am aware that my mother had gone to the
banks as well as to the office of Steel Authority of India and
had withdrawn the amount of fixed deposits and the amount in
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 17 of 28
the joint accounts."
(underlining by me)
48. It is clear that as per plaintiff no. 1, the amount of fixed
deposits and bank account were withdrawn by her mother during her
lifetime.
49. Plaintiff no. 2 as PW2 in her affidavit filed as examination
inchief, relied upon one letter dated 15051998 sent by the
Manager, Oriental Bank of Commerce, Sector7, Rohini, Delhi to
plaintiff no. 1 herein i.e. Smt. Alka Goindi. This letter is regarding SB
A/c no. 1428 with the Bank. The letter states that said account was
open with the Bank in the joint names of Sh. Hem Raj Vahie and Smt.
Sheela Vahie with the instructions to be operated by "either or
survivor".
50. In her crossexamination, PW2 stated as follows:
".....I do not know much about the joint account
maintained by my father and mother. I also do not know about
the fixed deposit of my parents...... I do not know that my
mother had gone to SAIL and bank after paralytic attack or
that she operated the bank account in the presence of the
bank manager. I do not know whether she withdrew the
money from SAIL. ..... I do not know whether my mother had
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 18 of 28
withdrawn the money from bank and SAIL after putting her
signatures on the relevant papers."
(underlining by me)
51. It is clear that plaintiff no. 2 is unable to deny the fact that
money in the joint accounts and the fixed deposit was withdrawn by
her mother Smt. Sheela Vahie. As noted above, this fact is
specifically admitted by PW1 in her crossexamination.
52. In view of the above discussion, it stands proved on
record that the amount in the bank account and the fixed deposit was
withdrawn by Smt. Sheela Vahie. Needless to say, the defendant
cannot be held liable for withdrawal of the amounts by Smt. Sheela
Vahie. Hence, no order regarding the partition of the same can be
passed. In other words, the plaintiffs are not entitled to partition of the
said amount alleged to be lying in the bank account and the FDRs.
53. As far as the suit premises is concerned, one of the
contentions of the defendant is that the suit premises was given by
Sh. Hem Raj Vahie to his wife Smt. Sheela Vahie and thereafter, by
virtue of a Will executed by Smt. Sheela Vahie, the same devolved
upon the defendant exclusively. During the evidence, it was stated by
the defendant that there was a Will executed by Sh. Hem Raj Vahie in
favour of his wife Smt. Sheela Vahie in respect of the suit premises
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 19 of 28
but in the same breath, the defendant stated that the Will had not
been traced till then. Hence, no Will executed by Sh. Hem Raj Vahie
has been placed on record, much less proved. On the contrary, I
have found that in the alleged Will dated 16071998 Ex. DW2/B
executed by Smt. Sheela Vahie relied upon by the defendant himself,
it is specifically stated that no Will was left by Sh. Hem Raj Vahie.
Hence, it is held that there is no Will executed by Sh. Hem Raj Vahie.
54. I have held above that alleged Will executed by Smt.
Sheela Vahie in favour of the defendant is not a Will in the eyes of
law. The result is that the suit premises devolves upon all the legal
heirs of Sh. Hem Raj Vahie equally. After the death of Smt. Sheela
Vahie, all the parties herein have 1/3 share each in the suit premises.
55. However, at this stage, an important aspect of the matter
is to be decided. As noted above, one of the pleas of the defendant
is that in view of Section 23 of the Hindu Succession Act, 1956,
(which was applicable at the time of filing of the suit), the plaintiffs
cannot seek partition of the suit premises by metes and bounds, as
the suit premises was a dwelling unit. The contention of the plaintiffs
in this regard is two fold. Firstly, it is contended that the suit premises
is not a dwelling house and hence both plaintiffs are entitled to
partition of the suit premises. The second contention is that even if
the suit premises is a dwelling house, Section 23 of the Hindu
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 20 of 28
Succession Act was repealed vide amendment w.e.f. 09092005 and
the said amendment is retrospective.
56. Section 23 of the Hindu Succession Act, as it stood on the
date of filing of the suit (i.e. before repeal w.e.f. 09092005) was as
follows:
"23. Special provision respecting dwelling houses.--
Where a Hindu intestate has left surviving him or her both male
and female heirs specified in case I of the Schedule and his or
her property includes a dwellinghouse wholly occupied by
members of his or her family, then, notwithstanding anything
contained in this Act, the right of any such female heir to claim
partition of the dwellinghouse shall not arise until the male
heirs choose to divide their respective shares therein; but the
female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she
shall be entitled to a right of residence in the dwellinghouse
only if she is unmarried or has been deserted by or has
separated from her husband or is a widow."
(underlining by me)
57. The first question is to be decided is whether the suit
premises is a dwelling house or not, for the simple reason that in case
the same is not a dwelling house, Section 23 as it stood at the time of
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 21 of 28
filing of the suit, was not applicable and the suit premises is liable to
be partitioned by metes and bounds, irrespective of the amendment.
58. It has been held by the majority view of 2:1 in
Narashimaha Murthy (supra) relied upon by the defendant as
follows:
"22. PUNCHHI, J. (for Kuldip Singh, J. and himself)--
The special and multiangular provision, Section 23 of the
Hindu Succession Act, 1956, emits two legal questions of
importance for determination, in this appeal by special leave,
against the order of the Karnataka High Court dated 2102
1992 in RSA no. 1045 of 1991, affirming in limine the
appellate order of the Civil Judge, Ramanagaram dated 22
101990 in RA no. 31 of 1985, namely:
(I) What is a 'dwelling house' on which the provision confers
the cloak of impartibility? and
(ii) Where a Hindu intestate leaves surviving him or her a
single male heir and one or more female heir or heirs,
specified in Class 1 of the Schedule, is the provision
attracted?"
* * * * *
32. Every right has a corresponding duty. This
principle vigorously applies in this multiangular provision. A
house tenanted brings in strangers and it ceases to be a
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 22 of 28
dwelling house in habited by members of the family. The
protection of Section 23 is thus not available to the males. It
is in this light that Question no. 1 need be answered to say
that a dwelling house is that house which is in actual,
physical, inhabited possession of one or the other members
of the family in stricto sensu, and if some are absent due to
exigencies of service or vocations, the dwelling house
remains available for them to reenter without any obstruction
or hindrance and on that premise enabling the female heir to
assert a right of entry residence therein. A tenanted house
does not fit into this description. Disabled daughters need
instant succour, not litigation. They need doors of the dwelling
house always wide open, not stoneyeyed responses of
strangers. The provision silences them in seeking partition,
but not their ownership extinct. If marriage has the
inescapable consequence of displacement of the daughter
from the parental roof, her interests forever cannot be
sacrificed on the altar of matrimony. Her distress revertendi
is of equal importance standing alongside the qualified
defence of impartibility by the male heir as aforeexplained.
The first question is answered accordingly."
(underlining by me)
59. It is clear from the authority that in case the house is
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 23 of 28
available to the male legal heir(s) to reenter without any obstruction
or hindrance, even if said male legal heir is not in actual physical
possession of the said house, the same is "dwelling house" for the
purpose of the Act. In the said case, it was held that since the house
in question was tenanted, it was not a dwelling house for the
purposes of Section 23 of the Hindu Succession Act.
60. As noted above, even as per the pleadings of the plaintiffs
in the plaint, the suit premises was lying vacant on the date of filing of
the suit. It is nowhere the case of the plaintiffs that any third party
interest was created in the said suit premises. Merely because on the
date of filing of the suit, as per the plaintiffs, the defendant was not
residing in the suit premises, it cannot be said that suit premises is
not a dwelling house for the purposes of Section 23 of the Hindu
Succession Act. Hence, the authority is squarely applicable to the
facts of the present case. It is held that suit premises is a "dwelling
house" for the purposes of Section 23 of the Hindu Succession Act,
1956.
61. The next question is to be decided is whether the
amendment w.e.f. 09092005 (whereby Section 23 of the Hindu
Succession Act was repealed) or whether the law existing on the date
of filing of the suit (i.e. Section 23 of the Hindu Succession Act) is
applicable to the facts of the present case.
CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 24 of 28
62. As noted above, interestingly, both the parties have relied
upon G. Sekar (supra) in support of their contentions.
63. It has been held in the said authority as follows:
"30. Neither the 1956 Act nor the 2005 Act seeks
to reopen vesting of a right where succession had already
been taken place. The operation of the said statute is no
doubt prospective in nature. The High Court might have
committed a mistake in opining that the operation of Section 3
of the 2005 Act is retrospective in character, but, for the
reasons aforementioned, it does not make any difference.
What should have been held was that although it is not
retrospective in nature, its application is prospective."
* * * * *
55. Even otherwise, it is not a fit case where we
should exercise our discretionary jurisdiction under Article 136
of the Constitution of India as the fact remains that Section 23
of the Hindu Succession Act as it stood was to be applicable
on the date of the institution of the suit. The respondents may
file a new suit and obtain a decree for partition."
(underlining by me)
64. It is clear from the authority relied upon by both the parties that operation of the amendment is prospective only as contended by CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 25 of 28 the defendant and not retrospective, as contended by the plaintiffs. Hence, Section 23 of the Hindu Succession Act was applicable at the time of filing of the suit.
65. Similarly, it has been held in M/s Radiance Fincap (P) Ltd. (supra) relied upon by the defendant that there is a presumption against the retrospective operation of a statute and that the substantive rights of the parties on the date of suit are to be decided unless such a legislature is retrospective.
66. Hence, it is held that the rights of the parties existing as per law as it stood on the date of filing of the suit are to be decided in the present matter.
67. Ganduri Koteshwaramma (supra) and Prema (supra) were relied upon by the counsel for the plaintiffs. I have gone through both the authorities. There cannot be any dispute about the propositions of law laid down in the authorities, but it is a settled law that each case is to be decided according to its own facts. I am of the considered view that facts in the present case are materially different from those in the authorities. In Ganduri Koteshwaramma (supra), the question before the Hon'ble Supreme Court, as noted in para 12 of the authority, was whether the preliminary decree passed by the Trial Court on 19031999 and amended on 27092003 deprived the CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 26 of 28 appellants of the benefits of 2005 Amendment Act although final decree for partition had not been passed till then. In the said matter, it was held by the Hon'ble Supreme Court that preliminary decree can be amended in view of the Amendment Act of 2005. No question of amendment of preliminary decree is involved in the present matter. Prema (supra) deals with the Karnataka Amendment in the Hindu Succession as stated in para 1 of the authority, which is not the case here. Hence, with great respect, I am of the considered view that neither of the authorities is applicable to the facts of the present case.
68. However, it has been held in G. Sekar (supra) relied upon by both the parties as follows: "48. As indicated hereinbefore, the institution of a suit is not barred. What is barred is actual partition by metes and bounds."
(underlining by me)
69. It is clear from the authority that institution of the suit itself is not barred by Section 23 of the Hindu Succession Act and it is merely the actual partition by metes and bounds which is barred.
70. The authority is squarely applicable to the facts of the present case. It is held that the plaintiffs are entitled to 1/3 share in the suit premises. However, the suit premises cannot be partitioned CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 27 of 28 by metes and bounds. The issue is, accordingly, decided partly in favour of the plaintiffs and partly against them.
71. Relief: In view of my findings on the issues above, the suit is partly allowed i.e. only to the extent that it is held that all the parties herein have 1/3 share each in the suit premises i.e. MIG Flat no. 114, Pocket D15, Sector7, Rohini, Delhi consisting of two bedrooms, one drawingcumdining room, one bathroom, and one kitchen. The remaining suit is dismissed.
72. Decree sheet be prepared accordingly.
73. File be consigned to Record Room.
Announced in the open Court on 09012017 (RAKESH KUMAR SHARMA) ADJ03 (N/W) ROHINI COURTS DELHI: 09012017 CS no. 68/16; Alka Goindi & Anr. Vs. Alok Vahie Page no. 28 of 28