Delhi District Court
Subrata Chakraborty vs Sharmistha Gupta on 24 April, 2026
IN THE COURT OF SUMIT DALAL,
JOINT REGISTRAR (JUDICIAL),
HIGH COURT OF DELHI, NEW DELHI
CS DJ ADJ: 938/2022
CNR NUMBER: DLSW010101432022
SUBRATA CHAKRABORTY,
S/O LATE SH. LAL MOHAN CHAKRABORTY,
R/O ASHOK PARK APARTMENT FL G 2 268,
NSC BIOSE ROAD,
REGENT PARK S.O.,
REGENT PARK, KOLKATA,
WEST BENGAL - 700040 .....PLAINTIFF
VERSUS
SHARMISHTHA GUPTA,
D/O LATE SH. LAL MOHAN CHAKRABORTY,
W/O DR. SUBODH GUPTA,
R/O 153, EMBASSY HERITAGE,
62/2-1, 8 MALLESWARAM,
BANGLORE, KARNATAKA - 560055 .....DEFENDANT
DATE OF INSTITUTION : 27.09.2022
DATE OF FINAL ARGUMENTS : 02.02.2026
DATE OF JUDGMENT : 24.04.2026
Signature Not Verified
Signed By:SUMIT CS DJ ADJ 938/2022
DALAL
Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 1/71
16:40:33
JUDGMENT
The arguments in the present case were heard by the undersigned while the undersigned was posted as District Judge - 04, South West District, Dwarka. Vide transfer order no. 08/D-3/Gaz.IA/DHC/2026 dated 06.02.2026, the undersigned was transferred as Joint Registrar (Judicial) in the Hon'ble Delhi High Court and is presently presiding over JR Court No. 7. Vide the Note 2 appended to the said order, the undersigned has duly notified the present case to the Ld. Principal District & Sessions Judge, South West District, Dwarka
1. The plaintiff has instituted the present suit seeking a preliminary decree of partition, final partition in accordance with law, and consequential permanent injunction in respect of property bearing Flat No. B-206, Daffodils CGHS, Plot No. 36, Sector-6, Dwarka, New Delhi. The plaintiff and the defendant are siblings. Their dispute centres around the rights flowing from the death of their brother, Late Sh. Sukumar Chakravarty, who is stated to have been the allottee and owner of the suit property and who expired on 06.01.2020 intestate, divorced and without issue. The plaintiff asserts a right to one-half share in the suit property after the death of the parties' mother, whereas the defendant denies such entitlement and claims exclusive right on the strength of nomination and subsequent transfer in the records of the Cooperative Society. The suit has, therefore, given rise to questions relating to succession, the effect of nomination, and the inter se rights of the parties in the suit property.
PLAINTIFF'S CASE
Signature Not Verified
Signed By:SUMIT CS DJ ADJ 938/2022
DALAL
Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 2/71
16:40:33
2. The case of the plaintiff, as set out in the plaint, is that the
plaintiff and the defendant are real brother and sister and are the children of Late Sh. Lal Mohan Chakraborty. It is pleaded that Late Sh. Lal Mohan Chakraborty died in the year 1993 leaving behind his widow Smt. Gayatri Devi and his children, namely, Sh. Suprakash, Late Sh. Sukumar, the plaintiff and the defendant. It is further pleaded that Sh. Suprakash died unmarried on 25.07.2012 and that Late Sh. Sukumar Chakraboty died on 06.01.2020. According to the plaint, Smt. Gayatri Devi also died thereafter on 05.01.2022, and after the demise of the said family members, only the plaintiff and the defendant survived as the legal heirs in the family.
3. The plaintiff has further pleaded that during his lifetime, Late Sh. Sukumar had purchased the suit property, namely, Flat No. B-206, Daffodils CGHS, Plot No. 36, Sector-6, Dwarka, Delhi, admeasuring about 100 sq. yards, and that the entire outstanding dues in respect of the said flat had been cleared during his lifetime. It is the plaintiff's case that the flat was the self-acquired property of Late Sh. Sukumar, that the same was free from encumbrances, and that Late Sh. Sukumar was a divorcee who had no children. On that basis, the plaintiff has asserted that no legal representatives of Late Sh. Sukumar survived except the plaintiff and the defendant.
4. It is then averred that the suit property is under the constructive possession of both the parties, though the defendant has kept the same locked and neither party is physically residing there. The plaint also states that Late Sh. Sukumar was looking after his mother, Late Smt. Gayatri Devi, during his lifetime. According to the plaintiff, after the death of Late Sh. Sukumar, both parties became entitled to equal shares in the suit property.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 3/71 16:40:33
The plaintiff has further stated that some original documents relating to the suit property continued to remain in possession of the defendant.
5. The plaintiff has further pleaded that he repeatedly requested the defendant to partition the suit property in equal proportion, but the defendant either refused or kept postponing the matter on one pretext or another. It is also alleged in the plaint that the plaintiff came to know that the defendant was trying to create third-party interest in the suit property by way of sale, alienation or tenancy, and that on 11.08.2022 some person visited the flat as a proposed buyer or tenant with a view to create such third-party interest. According to the plaintiff, he was thus left with no option except to institute the present suit for partition and permanent injunction.
6. As regards cause of action, the plaint states that it first arose on 06.01.2020 on the death of Late Sh. Sukumar; again on 11.08.2022 when the plaintiff requested the defendant to partition the suit property; and again on 16.09.2022 when, according to the plaintiff, a person came to the property along with the defendant for the purpose of creating third-party interest by sale or tenancy. The plaintiff has valued the suit property approximately at Rs.64,00,000/- on the basis of circle rate, but has valued the relief of partition on the footing of constructive possession and paid fixed court fee thereon. The plaint further pleads that this Court has territorial jurisdiction as the suit property is situated within South West District, Dwarka.
7. On these pleadings, the plaintiff has prayed for a preliminary decree declaring him to be co-owner to the extent of one-half share in property bearing Flat No. B-206, Daffodils CGHS, Plot No. 36, Sector-6, Dwarka, Delhi; a final decree of partition by metes and bounds with Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 4/71 16:40:33 possession to the extent of his share; and a decree of permanent injunction restraining the defendant and persons claiming through her from creating any third-party interest in the suit property during the pendency of the suit.
DEFENDANT'S DEFENCE
8. The defendant has contested the suit by filing a detailed written statement raising both preliminary objections and a defence on merits. At the outset, the defendant has not disputed the relationship between the parties. It is, in substance, admitted that the plaintiff and the defendant are siblings and that Late Sh. Sukumar Chakravarty was their brother. However, the defendant has denied the plaintiff's entitlement to any share in the suit property and has prayed for dismissal of the suit.
9. The principal defence of the defendant is that Late Sh. Sukumar Chakravarty had, during his lifetime, nominated the defendant in respect of the suit flat and that such nomination was accepted by the Daffodils Co-operative Group Housing Society Ltd. According to the defendant, the nomination was made on 24.02.2002 in her favour with 100% share in the suit property. It is her case that after the death of Late Sh. Sukumar Chakravarty on 06.01.2020, she informed the Society and the Society initiated the process of transfer of shares and occupancy rights in her favour. The defendant has further pleaded that on 07.01.2020 the keys of the suit property were handed over to her by the President of the Society, and that on 09.02.2020 the Managing Committee of the Society accepted her application for transfer of shares and occupancy rights. On this basis, she has asserted that she became entitled to the suit flat to the exclusion of the plaintiff.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 5/71 16:40:33 10. A connected objection taken by the defendant is that the
plaintiff had full knowledge of her nomination and the subsequent transfer process, yet never raised any objection either at the time of nomination or thereafter. On that basis, the defendant has pleaded that the plaintiff is barred by the doctrines of approbate and reprobate, waiver, delay, laches and acquiescence. The written statement proceeds on the footing that the plaintiff, having accepted the defendant's status as nominee and having remained silent for a long period, cannot now turn around and claim partition of the suit property. The defendant has specifically alleged that the plaintiff was even a witness to the handing over of the keys, and that he accepted the same without protest.
11. The defendant has further pleaded that the suit is barred by limitation. According to her, the cause of action, if any, arose in the year 2002 when the defendant was nominated by Late Sh. Sukumar Chakravarty, or at the latest on 06.01.2020 when he died. The written statement alleges that despite knowledge of the nomination and the defendant's position in relation to the flat, the plaintiff waited until the end of September 2022 to institute the present suit and, therefore, the suit is hopelessly delayed and barred by law.
12. Another substantial objection taken by the defendant is that the plaintiff has approached the Court without clean hands and has suppressed material facts. In this regard, the defendant has alleged that besides the suit flat, Late Sh. Sukumar Chakravarty had left various movable assets including bank accounts, fixed deposits and lockers in Union Bank of India and Bank of Maharashtra, but the plaintiff deliberately omitted to disclose these facts in the present suit. The defendant has pleaded that she Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 6/71 16:40:33 apprehended that, in view of promises allegedly made by the deceased to her, a Will might surface from one of the lockers, and therefore she had even taken steps in that regard. According to the defendant, this concealment of the movable estate and other surrounding facts disentitles the plaintiff to relief.
13. The defendant has also objected to the maintainability of the suit on technical grounds. It is pleaded that the suit is liable to be rejected under Order VII Rule 11 CPC for want of proper cause of action and on account of improper valuation. A further plea is taken that the plaint is not properly verified and is therefore hit by Order VI Rule 15 CPC. In addition, the defendant has invoked Order II Rule 2 CPC by alleging that the plaintiff had already filed a succession certificate case under Section 372 of the Indian Succession Act, being Succession Court Case No. 129/2022, in respect of the estate of Late Sh. Sukumar Chakravarty, and that the present suit is not maintainable without first obtaining determination in the said proceedings.
14. On merits, the defendant has specifically denied the plaintiff's assertion that both parties were in constructive possession of the suit property. Her stand is that she has been in de facto possession of the flat and has been maintaining it and paying the property tax, electricity charges, gas charges, telephone charges and other dues. She has pleaded that she uses the property whenever she visits Delhi and that the plaintiff has neither resided there nor contributed to its upkeep. She has thus denied that the plaintiff can claim constructive possession merely by virtue of relationship.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 7/71 16:40:33 15. The written statement further denies the plaintiff's allegations
that he had repeatedly requested amicable partition of the property and that the defendant had refused or avoided partition. The defendant's case is that there was no such request and no such discussion regarding partition before institution of the suit. She has also denied the allegation that she was attempting to create third-party interest in the suit property by way of sale, lease or tenancy. According to her, she had no intention to sell or lease out the flat and the plaintiff's allegations in that regard are vague and baseless.
16. A major plank of the defendant's defence is based on the Delhi Co-operative Societies Act, 2003 and the Delhi Co-operative Societies Rules, 2007. The defendant has pleaded that by virtue of Section 28 of the 2003 Act and Rules 91 and 93 of the 2007 Rules, when a member of a co-operative society nominates a person and thereafter dies, the society is required to transfer the share, interest and occupancy rights in favour of the nominee. It is her specific case that transfer in favour of a nominee is the rule, while transfer in favour of legal heirs or representatives arises only where no nominee exists. She has also relied on the bye-laws of Daffodils CGHS, particularly Bye-law No. 15, to contend that after the death of a member, the share and interest in the flat are to be transferred to the nominee. On this basis, she has asserted that the plaintiff cannot claim co-ownership or seek partition in derogation of the statutory scheme governing the co-operative society.
17. The defendant has also traversed various factual averments of the plaint. She has denied that the plaintiff ever looked after their mother in the suit property or maintained any connection with the premises. She has disputed the plaintiff's version as to the exact date of death of Smt. Gayatri Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 8/71 16:40:33 Devi and has stated that the mother died on 04.01.2022 and not on 05.01.2022. She has also stated that the mother started residing in the suit property after the death of Late Sh. Sukumar Chakravarty, thereby indicating that the possession and occupation of the flat continued through the defendant's side.
18. In the final analysis, the defence set up in the written statement is that the plaintiff has no independent right, title or interest entitling him to claim partition of the suit flat; that the defendant, being the valid nominee and the person in whose favour the co-operative society transferred the relevant rights, alone is entitled to continue as member/occupant of the suit property; that the plaintiff's suit is barred by limitation and other preliminary objections; and that the same is liable to be dismissed with costs.
REPLICATION
19. In replication, the plaintiff has denied the preliminary objections and defence taken in the written statement and has substantially reiterated the averments made in the plaint. The plaintiff has specifically pleaded that the defendant's status as nominee does not confer upon her any beneficial or absolute ownership in the suit property and that nomination is only an arrangement authorising the nominee to receive or hold the property subject to the rights of the legal heirs. In this regard, the plaintiff has referred to the principle that nomination does not override the law of succession and has maintained that the suit property continues to be liable to devolve in accordance with the applicable succession law.
20. The plaintiff has further pleaded that after the death of Late Sh. Sukumar Chakravarty, the parties' mother, Late Smt. Gayatri Devi, started Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 9/71 16:40:33 residing in the suit property and continued to reside there till her death on 05.01.2022. According to the plaintiff, so long as the mother was residing in the premises, the question of immediately seeking partition did not arise, and it was only after her death and completion of the rituals that the plaintiff requested the defendant to partition the suit property. It is pleaded that the defendant avoided partition on one pretext or another, which ultimately compelled the plaintiff to institute the present suit.
21. The plaintiff has also denied that he ever waived his rights or acquiesced in the defendant's claim over the suit property. The case set up in replication is that the mere fact that the defendant was nominated, or that the keys of the flat were handed over to her on 07.01.2020, does not amount to acceptance of her exclusive ownership. The plaintiff has specifically pleaded that the keys were handed over to the defendant only in the capacity of nominee, and not as owner, and that no right, title or beneficial interest was thereby created in her favour to the exclusion of the plaintiff.
22. As regards limitation, the plaintiff has denied that the suit is barred by time. The specific stand in replication is that the mother of the parties was residing in the suit property till 05.01.2022 and, therefore, the plaintiff's right to seek partition arose only thereafter. The plaintiff has thus pleaded that there is neither delay nor laches on his part and that the present suit has been filed within limitation.
23. The plaintiff has further denied the allegation of suppression of material facts. In answer to the defendant's objection regarding bank accounts, fixed deposits and lockers of Late Sh. Sukumar Chakravarty, the plaintiff has pleaded that he has already filed a separate succession petition Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 10/71 16:40:33 in respect of the movable assets, that the same is pending before the competent court, and that nothing has been concealed from this Court. The plaintiff's case is that the succession petition relates to movable assets, whereas the present suit concerns partition of the immovable suit property, and therefore both proceedings are distinct and maintainable in their respective jurisdictions.
24. The plaintiff has also denied the defendant's plea based on Order II Rule 2 CPC and has asserted that the present suit is not barred on that account. According to the plaintiff, the succession case and the present suit do not overlap in respect of reliefs, inasmuch as the former pertains to movable properties/debts and securities, whereas the latter seeks partition and injunction in relation to the immovable suit property.
25. In response to the defence founded on the Delhi Co-operative Societies Act, 2003, the Delhi Co-operative Societies Rules, 2007, and the bye-laws of Daffodils CGHS, the plaintiff has specifically pleaded that the said provisions do not confer title upon the nominee so as to defeat the rights of the legal heirs. The plaintiff's case in replication is that the present dispute is one of succession and partition and that the statutory provisions relating to nomination in a co-operative society do not determine final ownership inter se the heirs of the deceased member.
26. The plaintiff has also denied the defendant's allegation that he never demanded partition or that the defendant never attempted to create third-party interest. On the contrary, the plaintiff has re-affirmed the relevant averments of the plaint and has maintained that he approached the defendant for amicable partition, but the defendant did not agree, thereby necessitating Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 11/71 16:40:33 the filing of the present suit. Ultimately, the plaintiff has prayed that the suit be decreed as prayed for in the plaint.
ISSUES
27. Vide order dated 10.08.2023, the following issues were framed by the Ld. Predecessor for trial:
1. Whether plaintiff is entitled to preliminary decree of partition of the property in question as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of injunction as prayed for? OPP
3. Whether the suit is within time? OPP
4. Whether the suit is without any cause of action? OPD
5. Whether the suit is liable to be dismissed on account of the reasons mentioned in para (B) of the preliminary objections of the written statement? OPD
6. Whether the suit is barred under Order II Rule 2 of CPC? OPD
7. Whether the suit is liable to be dismissed for the reason that the transfer of interest has been done in accordance with Section 28 of the Delhi Co-operative Societies Act, 2003 and Rules 91 and 93 of the Delhi Co-operative Rules, 2007? OPD
8. Relief.
PLAINTIFF'S EVIDENCE
28. The plaintiff examined only himself as PW-1, namely Sh. Subrata Chakraborty. He tendered his evidence by way of affidavit, which was exhibited as Ex. PW1/A. In his affidavit, Ex. PW1/A, the PW-1 Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 12/71 16:40:33 reiterated the stand taken in the plaint. At the stage of his examination-in-chief, PW-1 relied upon the following documents:
a. the original site plan, exhibited as Ex. PW1/1; b. copy of the death certificate of Late Sh. Sukumar Chakraborty, which, though referred to in the affidavit as Ex. PW1/2, was marked as Mark A at the time of tendering for want of original; c. photocopy of electricity bill of Late Sh. Sukumar Chakraborty, which, though referred to in the affidavit as Ex. PW1/3, was marked as Mark B;
d. copy of house tax receipt in the name of Late Sh. Sukumar Chakraborty, which, though referred to in the affidavit as Ex. PW1/4, was marked as Mark C;
e. copy of death certificate of Late Sh. Suprakash Chakraborty, which, though referred to in the affidavit as Ex. PW1/5, was marked as Mark D;
f. copy of cremation receipt of his mother, which, though referred to in the affidavit as Ex. PW1/6, was marked as Mark E; and g. copy of his Aadhaar card, exhibited as Ex. PW1/7.
29. In his cross-examination, PW-1 stated that he was residing in Kolkata and that on 11.08.2022 and 16.09.2022 he was at Kolkata. He stated that he did not remember the last time he visited the suit property, though he had knowledge of the suit property of his deceased brother for the last 15-20 years. He described the suit property as a three-bedroom flat with kitchen, bearing no. B-206, situated on the first floor in Daffodils Cooperative Housing Society. He stated that he did not remember when he first allegedly asked the defendant for partition. He also stated that no settlement talks took Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 13/71 16:40:33 place because the defendant had blocked his phone number, though he did not remember since when his number had been blocked. He further stated that he did not know Mukul Kumar Sharma and that his counsel had collected the site plan on his own. He admitted that he was not aware of the exact amount of maintenance charges payable for the suit property and stated that the assertion in his affidavit regarding absence of pending dues was based on information obtained by his counsel from the society.
30. PW-1 further stated in cross-examination that he used to visit his deceased brother approximately once in a year at the suit property, while the deceased brother rarely used to visit him in Kolkata. He stated that after the death of his brother, his mother stayed in the suit property during her last years and that she was not suffering from any ailment during the years preceding her death. He also stated that his mother was residing alone and without help of any caretaker. He deposed that the defendant had been nominated as nominee of the suit property "with our consent and willingness", though he did not remember the exact date. He also stated that his mother did not want to leave Delhi after the death of his brother. He denied the suggestion that he did not have cordial relations with his deceased brother and mother. He stated that he was not aware of any Will of his deceased brother or mother.
31. It is also material that during cross-examination, PW-1 admitted his signatures on the document shown to him as Ex. PW1/DA, i.e. the document relating to handing over of keys of the suit flat to the defendant. He further stated that the death of his brother was informed to him by his mother, whereas the death of his mother was informed to him by the defendant. He admitted that he was not present during the last rites of his Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 14/71 16:40:33 mother due to Covid-19 restrictions. He also stated that he did not have any title documents of the suit property.
32. PW-1 further admitted in cross-examination that he had not paid any property tax, maintenance charges or utility bills of the suit property and that he was not aware of the current condition of the suit property or as to who was making payment of maintenance charges and utility bills. He also stated that he had never offered to pay such charges. When asked whether he had filed any other case or litigation relating to the demise of his brother, he initially answered in the negative and then added that he had filed a "financial claim" in Dwarka Court and that his counsel was aware of the same. He stated that he was claiming right in the suit property because he was the brother of his deceased brother and, according to him, entitled as a legal heir. He also stated that he had not asked for partition right after the death of his brother in 2020 because his mother was staying in the suit property. He admitted that he was not aware of the contents of the Delhi Cooperative Society Act, 2003, and also not aware of the holding of the Hon'ble Supreme Court in W.P.(C) No. 3 of 2020, while adding that the affidavit had been drafted by his counsel under his instructions. The cross-examination was thereafter concluded and the witness denied the suggestions that he had deposed falsely or that the suit was barred by limitation, Order II Rule 2 CPC, or the provisions of the Delhi Cooperative Societies Act and Rules.
33. In this manner, the plaintiff closed his evidence after examining himself alone as PW-1 and relying upon the aforesaid documents.
DEFENDANT'S EVIDENCE
Signature Not Verified
Signed By:SUMIT CS DJ ADJ 938/2022
DALAL
Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 15/71
16:40:33
34. The defendant examined herself as DW-1, namely Smt.
Sharmishtha Gupta, and also examined DW-2, namely Sh. Tara Chand, Member of the Management Committee of Daffodils Co-operative Group Housing Society Ltd., as a summoned witness from the Society.
Evidence of DW-1
35. DW-1 tendered her evidence by way of affidavit, which was exhibited as Ex. DW1/A. In her affidavit, she deposed in line with the written statement and reiterated the stand taken by the Defendant in the written statement. At the stage of tendering her examination-in-chief, DW-1 relied upon the following documents:
a. copy of the index card for her nomination by Late Sh. Sukumar Chakravarty, exhibited as Ex. DW1/1;
b. copy of the letter dated 07.01.2020 regarding handing over of keys of Flat No. B-206, which, though mentioned in the affidavit as Ex. DW1/2, was during deposition referred to as Ex. DW1/DA; c. copy of the minutes of the Managing Committee meeting held on 09.02.2020, which, though referred to in the affidavit as Ex. DW1/3, was only marked as Mark A during evidence for want of original;
d. copy of maintenance receipts, property tax receipts, BSES receipts, IGL receipts and telephone payment receipts, collectively exhibited as Ex. DW1/4 (colly);
e. certificate dated 11.03.2020 issued by the Society in her favour, exhibited as Ex. DW1/5 (OSR); and Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 16/71 16:40:33 f. certificate under Section 65B of the Indian Evidence Act in respect of printouts of property tax receipts, BSES receipts, IGL payment receipts and telephone payment receipts, exhibited as Ex. DW1/6.
36. In her cross-examination, DW-1 stated that out of the siblings, the eldest was Suprakash Chakravarty, thereafter the plaintiff, thereafter Late Sh. Sukumar Chakravarty, and lastly herself. She admitted that Late Sh. Suprakash Chakravarty had died unmarried on 25.07.2012 and that Late Sh. Sukumar Chakravarty died on 06.01.2020 and was a divorcee. She also admitted that their mother was alive at the time of the death of Sukumar, though she insisted that the mother died on 04.01.2022 and that her cremation took place on 05.01.2022. She further admitted that the plaintiff had been working in Indian Overseas Bank and that all payments like property tax, electricity bill and other payments were being made in the name of the deceased Sukumar Chakravarty.
37. DW-1 denied the suggestion that the Society was not handing over the keys to her and that the keys were handed over only because the plaintiff signed as witness. She stated that after her marriage she used to visit Delhi regularly. She admitted that she had cordial relations with the plaintiff. However, she volunteered that the fact of her nomination by Late Sh. Sukumar Chakravarty had not been disclosed to anyone and was a "top secret". She denied the suggestion that the deceased had consulted the plaintiff before nominating her or that the plaintiff had offered to contribute towards property tax, electricity bills or other expenses. She also stated that she later blocked the plaintiff's phone after the death of their mother. The cross-examination of DW-1 was thereafter concluded.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 17/71 16:40:33 Evidence of DW-2 38. The defendant also examined DW-2, Sh. Tara Chand, Member
of the Management Committee of Daffodils Apartment, Plot No. 36, Sector-6, Dwarka, New Delhi, as a summoned witness from the Society. DW-2 stated that he had been authorised to appear on behalf of the Society by an authority letter, which was exhibited as Ex. DW2/1. He also filed the list of managing committee members as on July 2024, which was exhibited as Ex. DW2/2.
39. DW-2 deposed that he had brought the summoned record, namely:
a. copy of the index card dated 24.02.2002 relating to the nomination; b. copy of the letter dated 07.01.2020 regarding handing over of keys of Flat No. B-206;
c. copy of the share certificate issued by Daffodils Co-operative Group Housing Society;
d. copy of the minutes of the Managing Committee meeting held on 09.02.2020;
e. copy of the ownership letter dated 11.03.2020 issued by the Society; and f. copies of receipts dated 27.06.2020 and 16.12.2021. He stated that he had also brought the originals of the said documents and, after comparison, the copies were collectively exhibited as Ex. DW2/3 (colly).
40. In cross-examination, DW-2 stated that the authority letter Ex. DW2/1 had been issued by the Vice-President of the Society authorising him Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 18/71 16:40:33 to appear before the Court, as the President had resigned and the post was vacant. He stated that he did not know who was the President at the time when the index card for Flat No. B-206 was issued. He further stated that in the Society, property is transferred to a prospective buyer through a sale deed executed before the Sub-Registrar Office, Kapashera. He also stated that appointment of nominee is mandatory in respect of every flat in the Society and that such nomination is as per the law laid down by the Registrar, Delhi Cooperative Society, and not under any separate rule framed by the Society itself. At the same time, he stated that he did not have any information or knowledge whether the nominee is appointed for the purpose of giving information regarding the death of the actual flat owner. Thereafter, the cross-examination of DW-2 was concluded.
41. Thus, the defence evidence consisted of the testimony of DW-1, i.e. the defendant herself, and DW-2, the summoned witness from the Society, along with the aforesaid documentary record.
ARGUMENTS ON BEHALF OF THE PLAINTIFF
42. Ld. Counsel for the plaintiff argued that the plaintiff has succeeded in proving that the suit property belonged to Late Sh. Sukumar Chakravarty and that, after the demise of the concerned family members, the plaintiff and the defendant alone remained entitled to claim rights in the same. It was submitted that the defendant herself had admitted in her evidence that the plaintiff is her real brother; that Late Sh. Sukumar Chakravarty was the allottee/owner of the suit property; and that the defendant is a married lady settled in Bengaluru who used to visit Delhi from time to time. It was further argued that the evidence on record shows Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 19/71 16:40:33 that the defendant's nomination was never intended to confer exclusive ownership upon her and that the plaintiff's claim for partition cannot be defeated merely because the defendant's name was entered as nominee in the records of the Cooperative Group Housing Society.
43. Ld. Counsel for the plaintiff further contended that the entire defence of the defendant rests only on the plea of nomination. According to him, nomination does not amount to succession and does not create absolute title in favour of the nominee. In this regard, reliance was placed on the judgment of the Hon'ble Supreme Court in Sarbati Devi v. Usha Devi (1984) 1 SCC 424, wherein it was argued that nomination does not confer beneficial interest upon the nominee and that the nominee is merely authorised to receive the amount/property subject to the rights of the legal heirs under the law of succession. It was submitted that the said principle has not been overruled and squarely supports the plaintiff's claim that the defendant, even if nominee, cannot exclude the plaintiff from inheritance.
44. Ld. Counsel also relied upon the judgment of the Hon'ble Delhi High Court in Shweta Singh Huria v. Santosh Huria & Anr., 2021 SCC Online Del 2492 to contend that mere nomination cannot defeat the rights of legal heirs and that the estate of the deceased has to devolve in accordance with the applicable law of succession. It was argued that the ratio of the said judgment fortifies the plaintiff's submission that the defendant, by virtue of nomination alone, cannot claim to "grab" the property to the exclusion of the plaintiff when another legal heir survives.
45. It was next argued that the plaintiff had been serving as a Bank Manager and had a transferable service, due to which he was posted outside Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 20/71 16:40:33 Delhi, whereas the defendant was shown as nominee only for convenience and for purposes of the Cooperative Society records. According to Ld. Counsel, the name of a nominee is often required in such societies for administrative purposes, and for that reason the defendant was appointed nominee of the flat, but such nomination did not divest the plaintiff of his rights as an heir. It was submitted that the plaintiff's presence at the time of handing over of keys to the defendant was only in the capacity of a witness to such administrative act and cannot be treated as acceptance of the defendant's exclusive ownership.
46. Ld. Counsel for the plaintiff also referred to the evidence of the defendant and argued that certain admissions made in her cross-examination support the plaintiff's case. It was submitted that the defendant admitted that she is married and settled in Bengaluru, that the parties had cordial relations, and that she blocked the plaintiff's phone only later, which, according to the plaintiff, reflected her subsequent attempt to exclude him. It was further argued that the plaintiff has consistently asserted his right in the suit property and that the stand of the defendant that the plaintiff has no share is legally unsustainable. On these submissions, Ld. Counsel prayed that the suit be decreed by passing a preliminary decree of partition in favour of the plaintiff in respect of his half share, along with consequential relief of injunction.
ARGUMENTS ON BEHALF OF THE DEFENDANT
47. Ld. Counsel for the defendant argued that the present suit is wholly misconceived, devoid of merit and liable to be dismissed. It was submitted that the defendant's status as nominee in respect of the suit property had been recorded as far back as the year 2002 and, after the death Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 21/71 16:40:33 of Late Sh. Sukumar Chakravarty in January 2020, the Daffodils CGHS validly acted upon such nomination and transferred the membership/share-interest in favour of the defendant in accordance with Section 28 of the Delhi Co-operative Societies Act, 2003 and Rules 91 and 93 of the Delhi Co-operative Societies Rules, 2007. According to Ld. Counsel, the plaintiff, despite full knowledge of such nomination and the defendant's exclusive possession, never challenged either the nomination or the society's action and, therefore, cannot now seek to unsettle the defendant's settled rights through the present suit.
48. Ld. Counsel further submitted that the plaintiff has no subsisting co-ownership in the suit property and that mere legal heirship is not sufficient to obtain a decree for partition. It was argued that the plaintiff neither proved possession, nor contribution, nor any independent title in the suit property, whereas the defendant produced documentary evidence showing her nomination, delivery of keys, recognition by the Society, and continued payment of property tax, maintenance and utility dues. It was thus contended that the evidence on record unmistakably shows the defendant's exclusive possession, occupation and management of the suit property after the death of Late Sh. Sukumar Chakravarty.
49. On limitation, Ld. Counsel argued that the plaintiff was fully aware of the defendant's nomination and of her possession over the suit property, yet he took no action for a considerable period and instituted the suit only in the year 2022. It was submitted that such inaction constitutes acquiescence, waiver, delay and laches, and that the suit deserves dismissal on this ground alone. Ld. Counsel emphasised that the plaintiff did not raise any protest either during the lifetime of the deceased or immediately after Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 22/71 16:40:33 his death, and that his silence until 2022 clearly militates against the present claim.
50. Ld. Counsel also submitted that the suit is barred under Order II Rule 2 CPC. In this regard, it was argued that the plaintiff had already initiated Succession Petition No. 129/2022 and had failed to consolidate his claims, despite the fact that both proceedings allegedly arose from the same foundational event, namely the death of Late Sh. Sukumar Chakravarty. It was contended that the plaintiff, having pursued an earlier proceeding without seeking all available reliefs, is precluded from maintaining the present suit separately.
51. On the aspect of cause of action, Ld. Counsel contended that the plaint does not disclose any legally enforceable cause of action. It was argued that the plaintiff himself admitted knowledge of the nomination in favour of the defendant and of the defendant's settled possession in the suit property, and yet failed to plead or prove any overt denial of a cognizable legal right by the defendant. According to Ld. Counsel, in the absence of any proof of co-ownership in possession or any challenge to the defendant's status as member/nominee in the Society, the suit is without cause of action and is liable to be dismissed.
52. Ld. Counsel further argued that the plaintiff has not approached the Court with clean hands and has suppressed material facts. It was submitted that the plaintiff concealed from the Court the pendency of the succession proceedings, the existence of the defendant's valid nomination, and the fact that the defendant had been in settled possession of the suit property since January 2020. It was also argued that the plaintiff deliberately Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 23/71 16:40:33 bypassed the statutory mechanism under the Delhi Co-operative Societies Act and Rules for challenging the nomination or transfer of membership and instead attempted to portray the property as jointly owned in order to sustain the present suit.
53. On the relief of injunction, Ld. Counsel submitted that the plaintiff is not entitled to any such decree because he has neither proved title nor possession and has not shown any real or imminent threat of unlawful alienation by the defendant. It was argued that the defendant is the person recognised by the Society and in possession of the property, and therefore the plaintiff cannot restrain her by way of injunction merely on vague allegations.
54. In support of the above submissions, Ld. Counsel for the defendant relied upon the judgments in Premji Ratansey Shah v. Union of India (1994) 5 SCC 547, Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594, T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467, S.P. Chengalvaraya Naidu v. Jagannath (1994) 1 SCC 1, and Indrani Wahi v. Registrar of Co-operative Societies (2016) 6 SCC 440. It was submitted that these authorities support the propositions that a suit without a clear legal foundation is liable to be rejected, that injunction cannot be granted where title itself is not established, that suppression of material facts disentitles a litigant to relief, and that a valid nomination under the co-operative societies law has legal consequences which cannot be lightly ignored. On these submissions, Ld. Counsel prayed that the suit be dismissed with costs.
ISSUE WISE ANALYSIS AND FINDINGS Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 24/71 16:40:33 ISSUE NO. 7 - WHETHER THE SUIT IS LIABLE TO BE DISMISSED FOR THE REASON THAT THE TRANSFER OF INTEREST HAS BEEN DONE IN ACCORDANCE WITH SECTION 28 OF THE DELHI CO-OPERATIVE SOCIETIES ACT, 2003 AND RULES 91 AND 93 OF THE DELHI CO-OPERATIVE SOCIETIES RULES, 2007. OPD
55. The burden to prove this issue was upon the defendant, as the issue is framed as "OPD". It was, therefore, for the defendant to establish not only that there was a valid nomination and that the Society acted thereon in accordance with the statutory framework, but also that such transfer, in law, has the effect of defeating or non-suiting the plaintiff's present claim.
Relevant Legal Principles
56. Section 28 of the Delhi Co-operative Societies Act, 2003, in substance, provides that on the death of a member, the co-operative society shall transfer the share or interest of the deceased member to the person nominated in accordance with the rules, and if there is no such nominee, then to the heir or legal representative who appears entitled. Sub-section (3) further declares that transfers and payments made by the society in accordance with the section shall be valid and effectual against any demand made upon the society by any other person.
57. Rule 91 of the Delhi Co-operative Societies Rules, 2007 provides for nomination by a member of a co-operative housing society in favour of a person or persons within blood relation, to whom, upon the member's death, his right and interest in the co-operative housing society shall be transferred. It also prescribes the mode of nomination in Form 17.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 25/71 16:40:33 58. Rule 93 deals with transfer of occupancy right to nominee, heir
or legal representative of a deceased member in a co-operative housing society. In case of leasehold property, the nominee, heir or legal representative has to apply to the society for transfer of share and interest; the committee has to recommend transfer of occupancy right to the lessor; and only upon approval of the lessor is the nominee, heir or legal representative to be enrolled as member. In case of freehold property, the nominee is to apply in Form 22.
59. Though Issue No. 7 is framed with reference to Section 28, it is also necessary to notice that the 2003 Act contains a special chapter for co-operative housing societies. Sections 78 to 80 therein show that nomination, transfer of share/interest, and permission for transfer of occupancy right are specially regulated in the context of co-operative housing societies. Section 78 requires nomination; Section 79 makes transfer to heir or nominee effective subject to stated conditions; and Section 80 recognizes that, for admission to membership of a nominee, heir or legal representative of a deceased member, the usual contractual or bye-law restrictions regarding eligibility do not apply.
60. The most apposite authority on the legal effect of such nomination is Indrani Wahi (supra). In para 17, the Hon'ble Supreme Court held that where a member of a co-operative society nominates a person in consonance with the rules, the society is mandated to transfer the share or interest of such member in the name of the nominee, and that rights of inheritance or succession are only relevant if no nomination exists. In paras 21, 22 and 23, however, the Court made an equally important clarification:
the society is bound to transfer membership/share or interest in favour of the Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 26/71 16:40:33 nominee, but such transfer is only with reference to the concerned co-operative society and has no relevance to the issue of title between the inheritors or successors to the property of the deceased.
61. The judgments relied upon by the plaintiff, namely Sarbati Devi (supra) and Shweta Singh Huria (supra), arose in the context of nomination under Section 39 of the Insurance Act. In that context, the legal principle noticed is that nomination does not by itself confer beneficial interest and does not constitute a third mode of succession. Shweta Singh Huria (supra) itself discusses Sarbati Devi (supra) in that insurance-law setting. These authorities, therefore, cannot be transplanted mechanically into the field of co-operative housing society membership, though they do indicate, at the level of principle, that nomination does not automatically conclude inter se succession rights.
62. The other judgments relied upon by the defendant, namely Premji Ratansey Shah (supra), Anathula Sudhakar (supra), T. Arivandandam (supra) and S.P. Chengalvaraya Naidu (supra), concern injunction, maintainability, clever drafting, or suppression/fraud. They are not direct authorities on the precise legal effect of transfer pursuant to nomination in a co-operative housing society, and therefore do not govern the present issue in any determinative manner.
Rival Contentions / Pleadings relevant to the Issue
63. The defendant's case in the written statement was that Late Sh. Sukumar Chakravarty had nominated the defendant in 2002 with 100% share in the suit property; that after his death the Society transferred the shares and occupancy rights in her favour; and that by virtue of Section 28 Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 27/71 16:40:33 of the 2003 Act and Rules 91 and 93 of the 2007 Rules, transfer to the nominee was the rule, while transfer to a legal heir would arise only when there was no valid nominee. The defendant, thus, pleaded that the plaintiff had no enforceable right to seek partition of the flat.
64. The plaintiff, in replication, specifically denied that the statutory scheme relied upon by the defendant had the effect of conferring exclusive ownership on the nominee. The plaintiff pleaded that nomination does not indicate ownership, that succession remains governed by law, that the Delhi Co-operative Societies Act/Rules and even the society bye-laws do not conclude title, and that the present matter is governed by succession and partition. In the plaintiff's affidavit (Ex. PW1/A) also, it was stated that no rights or benefits are created in favour of a nominee as against surviving legal representatives, and that the provisions of the Delhi Co-operative Societies law are not applicable for deciding title to the suit property as against the legal representative.
65. In written arguments, the plaintiff continued to urge that the defendant was at best a nominee/custodian and not the absolute owner, whereas the defendant contended that the transfer of membership and interest in her favour was lawful, final, and sufficient to defeat the present suit.
Evidence led by the Parties on this Issue
66. The plaintiff, while deposing as PW-1, reiterated in his affidavit (Ex. PW-1/A) that the defendant's objection based on Section 28 and Rules 91 and 93 was not sustainable and that a nominee does not acquire beneficial ownership as against a living legal representative. He further pleaded that he, Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 28/71 16:40:33 being the brother and legal representative of the deceased, was entitled to claim share in the property.
67. However, in cross-examination, PW-1 made an important admission. He stated that the defendant "was nominated as a nominee of the suit property with our consent and willingness", though he did not remember the exact date. He also stated that he claimed right in the suit property because he was the brother of the deceased and, according to him, a legal heir. He further stated that he was not aware of the contents of the Delhi Co-operative Society Act, 2003. These admissions are material because they substantially dilute the plaintiff's earlier denial, in replication, of the nomination itself.
68. On behalf of the defendant, DW-1 deposed that Late Sh. Sukumar Chakravarty had nominated her on 24.02.2002; that the index card reflecting this nomination was maintained by the Society; that after the death of the deceased, the Society initiated the process of transfer of shares and occupancy rights in her favour; that the keys were handed over to her on 07.01.2020 in the plaintiff's presence; and that on 09.02.2020 the Managing Committee considered and approved her application for transfer of shares and occupancy rights. She relied on the nomination index card as Ex. DW1/1, the handing over letter as Ex. PW1/DA (referred to in her affidavit as Ex. DW1/2), and the minutes of the Managing Committee meeting as Mark A / part of the Society record. She also relied on a society certificate dated 11.03.2020 as Ex. DW1/5 and maintenance/property/utility payment documents as Ex. DW1/4 (colly).
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 29/71 16:40:33 69. In her cross-examination, DW-1 admitted that all payments like
property tax and electricity were still made in the name of the deceased Sukumar Chakravarty. She also stated that the matter of making her nominee was not disclosed to anyone and was a "top secret". That part of the cross-examination assumes significance because the plaintiff, in written arguments, sought to argue that the nomination had been made with family consent and only as a matter of convenience. The defendant's own testimony does not support that plaintiff-side theory. On the contrary, it shows that the nomination was the unilateral act of the deceased.
70. DW-2, Sh. Tara Chand, produced the Society record. He proved the authority letter as Ex. DW2/1, the list of managing committee members as Ex. DW2/2, and the relevant society record collectively as Ex. DW2/3 (colly), including the nomination index card, the key handover letter dated 07.01.2020, the minutes dated 09.02.2020, the ownership letter dated 11.03.2020, and the receipts dated 27.06.2020 and 16.12.2021. In cross-examination, however, DW-2 stated that in the Society, property is transferred to a prospective buyer through sale deed executed before the Sub-Registrar, Kapashera; that nominee has to be appointed for every flat and it is a mandatory procedure; and that the rule regarding nomination is not framed by the Society but laid down by the Registrar. He further stated that he did not know who was the President at the time the index card was issued and had no knowledge whether the nominee is appointed for the purpose of merely giving information about the death of the actual flat owner.
Appreciation of Evidence and Findings
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71. The first question is whether the defendant has proved the
factum of nomination and the factum of transfer by the Society. On this aspect, the answer has to be in the affirmative to a considerable extent.
72. The nomination index card, Ex. DW1/1, carries the name of Late Sh. Sukumar Chakravarty as member and shows the defendant as nominee. The plaintiff's denial of nomination in replication and in his affidavit is materially weakened by his own admission in cross-examination that the defendant had indeed been nominated and that such nomination was with their consent and willingness. Whatever be the correctness of the explanation later sought to be built around that admission, the existence of nomination cannot now be seriously disputed.
73. Likewise, the key handover document dated 07.01.2020, proved as Ex. PW1/DA, shows that the keys of Flat No. B-206 were handed over to the defendant as "sister and nominee" of Late Sh. Sukumar Chakravarty, and the plaintiff signed the said document as witness. The minutes of the Managing Committee meeting dated 09.02.2020 also record that the Committee considered the defendant's application for transfer of share and occupancy right and decided to process the case with DDA/RCS for transfer in her name. To that extent, therefore, the defendant has proved that the Society treated her as nominee and acted on that basis.
74. However, that is not the end of the matter. Issue No. 7 is not whether the Society acted on the nomination. The issue is whether, because such transfer of interest has been done in accordance with Section 28 and Rules 91 and 93, the suit itself is liable to be dismissed.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 31/71 16:40:33 75. On that precise legal consequence, the defendant has not succeeded. 76. First, the statutory scheme itself does not support such a wide
proposition. Section 28 protects the Society when it transfers share or interest to the nominee in accordance with the rules. Sub-section (3) makes such transfer or payment "valid and effectual" against any demand made upon the Society by any other person. The emphasis is thus on protecting the Society and validating its action in the matter of membership/share transfer. The section does not declare that the nominee thereby becomes the absolute owner as against all heirs to the exclusion of succession law.
77. Secondly, Rule 93 itself undermines the defendant's plea of exclusivity. The Rule does not speak only of nominee. It repeatedly uses the composite expression "nominee, heir or legal representative". In case of leasehold property, it contemplates an application to the society, recommendation by the committee to the lessor, and enrollment as member only on receipt of approval of the lessor. This is a statutory machinery for effecting transfer in the records of the co-operative housing society and the lessor. It is not, by its own force, an adjudication of beneficial title inter se rival inheritors.
78. Thirdly, even on proof of compliance, the defendant's evidence remains incomplete. The minutes dated 09.02.2020 record only that the matter would be "processed with DDA/RCS" for transfer. Rule 93, however, requires approval of the lessor in case of leasehold property before the committee enrolls the nominee/heir/legal representative as member. No approval of the lessor/DDA has been proved on record. The society Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 32/71 16:40:33 certificate dated 11.03.2020, Ex. DW1/5, describing the defendant as "owner" and resident with effect from 06.03.2020, was issued only for residence proof in connection with obtaining a telephone connection. Such a certificate may show the stand of the Society for that limited administrative purpose, but it is not a conveyance document and cannot, by itself, conclude title.
79. Fourthly, the cross-examination of DW-2 is of considerable significance. He expressly stated that in the Society, property is transferred to the prospective buyer through sale deed executed before the Sub-Registrar, Kapashera. He also stated that nominee has to be appointed to every flat and that it is a mandatory procedure. This evidence, coming from the Society witness produced by the defendant herself, indicates that nomination is part of the mandatory society mechanism and is not the same thing as a registered transfer of proprietary title. It also reinforces that the role of the Society is in the sphere of membership and internal recognition, not final adjudication of title.
80. The legal position is put beyond doubt by Indrani Wahi (supra). Paras 17, 21, 22 and 23 of the judgment, read together, make a twofold distinction: first, if there is a valid nomination, the co-operative society is bound to transfer membership/share or interest to the nominee; second, such transfer is only with reference to the co-operative society and has no relevance to the question of title between the inheritors or successors of the deceased. Thus, the very authority most favourable to the defendant answers the present issue against her contention that the civil suit must fail merely because the Society transferred membership/interest to her.
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81. The plaintiff's reliance on Sarbati Devi (supra) and Shweta
Singh Huria (supra) cannot be accepted in the broad form in which it has been canvassed, because both arise out of nomination under the Insurance Act and not under the Delhi Co-operative Societies Act and Rules. Yet, even while distinguishing those authorities, it must be said that they do support the general caution that nomination is not, by itself, a complete substitute for succession law. More importantly, Shweta Singh Huria (supra) itself shows Sarbati Devi (supra) that was considered in the context of insurance nominations. The present case, however, falls to be governed more directly by the special statutory scheme of co-operative housing societies and by Indrani Wahi (supra).
82. In this backdrop, the plaintiff's contradictions must also be noticed. In replication and affidavit, he denied the nomination itself and denied the applicability of the co-operative societies framework. In cross-examination, however, he admitted nomination in favour of the defendant. This inconsistency certainly impairs the plaintiff's credibility. Yet, credibility of the plaintiff on that factual aspect is not decisive of Issue No. 7. Even after accepting the defendant's nomination and the Society's action thereon, the legal question remains whether that circumstance alone mandates dismissal of the suit. For reasons already recorded, the answer is in the negative.
83. Therefore, the defendant may legitimately claim that the Society was entitled, and perhaps bound, to recognize her as nominee and transfer membership/share or interest in its records in her favour. But from that, it does not follow that the plaintiff's suit for partition is barred or liable to dismissal solely on that ground. The transfer is binding on the Society; it Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 34/71 16:40:33 is not conclusive of beneficial title between rival successors. That distinction, in my view, completely answers Issue No. 7.
Final Finding on Issue No. 784. In view of the statutory scheme, the evidence on record, and the ratio of Indrani Wahi (supra), it is held that even if the Society transferred the share or interest/membership in favour of the defendant in accordance with its statutory obligations, such transfer would bind the Society but would not, by itself, conclude the issue of title or succession inter se the legal heirs of Late Sh. Sukumar Chakravarty. The defendant has, therefore, failed to prove that the present suit is liable to be dismissed merely because such transfer of interest was effected in her favour under Section 28 of the Delhi Co-operative Societies Act, 2003 and Rules 91 and 93 of the Delhi Co-operative Societies Rules, 2007.
85. Accordingly, Issue No. 7 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 6 - WHETHER THE SUIT IS BARRED UNDER ORDER II RULE 2 OF THE CODE OF CIVIL PROCEDURE, 1908.
86. The burden to prove this issue was upon the defendant, the issue being expressly framed as "OPD". It was, therefore, for the defendant to establish all ingredients necessary for attracting the bar under Order II Rule 2 CPC, namely, identity of cause of action, entitlement of the plaintiff to claim more than one relief on that very cause of action, and omission of the later relief without leave of the Court. It was also for the defendant to Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 35/71 16:40:33 prove the earlier proceeding and its foundational pleadings with cogent evidence.
Relevant Legal Principles
87. Order II Rule 2 CPC mandates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; where the plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted; and where a person entitled to more than one relief in respect of the same cause of action omits, except with leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
88. The settled requirements for successfully raising a plea under Order II Rule 2 are that: first, the later proceeding must be founded on the same cause of action as the earlier one; second, in respect of that very cause of action, the plaintiff must have been entitled to more than one relief; and third, the plaintiff must have omitted to claim the later relief without leave of the Court. Such a plea cannot be decided by conjecture and the defendant who raises it must bring on record the pleadings of the earlier suit/proceeding so as to establish identity of cause of action.
89. Equally relevant to the present issue are the provisions of the Indian Succession Act, 1925. Section 372 shows that an application for succession certificate is by way of a petition, and Section 372(1)(f) confines such application to the debts and securities in respect of which the certificate is sought. Section 373 further provides that the District Judge shall decide such application in a summary manner, and even where intricate questions Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 36/71 16:40:33 arise, may grant a certificate to the person having prima facie the best title. Most significantly, Section 387 declares that no decision under that Part upon any question of right between any parties shall bar the trial of the same question in any suit or any other proceeding between the same parties.
90. Thus, a proceeding for succession certificate is a special and summary proceeding limited to debts and securities. It is not a regular civil suit for declaration of title or partition of immovable property, nor does its outcome statutorily bar a substantive civil suit.
Rival Contentions / Pleadings relevant to the Issue
91. The defendant, in para G of the preliminary objections in the written statement, pleaded that the suit is barred under Order II Rule 2 CPC on the ground that the plaintiff had already filed Succession Court Case No. 129 of 2022 before the Court of Ld. ACJ-CCJ-ARC, Dwarka, under Section 372 of the Indian Succession Act for grant of succession certificate, and that the plaintiff had failed to include the whole of the claim in respect of the cause of action and had intentionally relinquished a portion thereof. The defendant further pleaded that without determination of succession in the said proceedings, partition could not take place.
92. The plaintiff, in replication, specifically denied the plea of bar under Order II Rule 2 CPC. At the same time, the plaintiff admitted that a succession petition in respect of the movable property of Late Sh. Sukumar Chakravarty was pending before the Court of Ld. ACJ, Dwarka Court. The plaintiff further pleaded that the succession case and the partition suit were being pursued in two different courts as the jurisdiction of the two matters fell in the respective courts.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 37/71 16:40:33 93. In the plaintiff's affidavit by way of evidence (Ex. PW1/A),
PW-1 stated that he had already filed the suit for partition and permanent injunction seeking the entire relief available in that suit, and therefore the question of Order II Rule 2 CPC did not arise. He also asserted that no relief other than the one contained in the prayer clause of the present suit was being sought by him.
94. In the defendant's written submissions, Issue No. 6 was elaborated by contending that the succession proceedings and the present suit arise from the same foundational event, namely, the death of Late Sh. Sukumar Chakravarty, and the plaintiff's assertion of inheritance rights as a legal heir; and that the plaintiff, having first sought a succession certificate in respect of movable assets, was precluded from maintaining a separate suit for partition of the immovable estate.
Evidence led by the Parties on this Issue
95. On this issue, the plaintiff entered the witness box as PW-1 and reiterated in his affidavit (Ex. PW1/A) that the objection under Order II Rule 2 CPC was not sustainable. In cross-examination, however, when asked whether he had filed any other case, suit or litigation relating to the demise of his brother Sukumar Chakraborty, he first answered "No" and then immediately added, "Again said, I have filed a financial claim in Dwarka Court and my counsel is knowing the same." This part of the testimony is material because it amounts to an admission of another proceeding, but the witness did not furnish its particulars, nature, pleadings, or reliefs.
96. The defendant examined herself as DW-1 and a Society witness as DW-2. However, neither DW-1 nor DW-2 proved on record the petition Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 38/71 16:40:33 filed under Section 372 of the Indian Succession Act, its pleadings, the schedule of debts and securities, the order-sheet therein, or any order granting or refusing leave for any omitted relief. The exhibits produced by DW-1 and DW-2 pertain to nomination, handing over of keys, minutes of the managing committee, maintenance receipts, property tax receipts, and society certificates. None of those exhibits pertains to the alleged earlier succession proceedings forming the foundation of the plea under Order II Rule 2 CPC.
97. Significantly, no certified copy or even copy of Succession Case No. 129/2022 was exhibited by the defendant. The plea is, therefore, sought to be sustained only on the basis of the defendant's pleading and the plaintiff's admission in replication that a succession petition regarding movable property was pending. There is no documentary proof on record enabling the Court to compare the cause of action in the earlier proceeding with the cause of action in the present suit.
Appreciation of Evidence and Findings
98. The defendant has failed to discharge the burden of proving the bar under Order II Rule 2 CPC, for more than one reason.
99. First, the foundational requirement of proving the earlier proceeding in the manner known to law has not been satisfied. A plea under Order II Rule 2 CPC cannot be decided on inference or speculation, and the pleadings in the earlier suit/proceeding must be brought on record to establish the identity of the cause of action. In the present case, the defendant has not proved the petition under Section 372 of the Indian Succession Act or the pleadings therein. In the absence of the earlier Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 39/71 16:40:33 pleading, this Court cannot judicially compare the causes of action in the two proceedings. The plea, therefore, fails at the threshold for want of proof.
100. Secondly, even if it is accepted, on the basis of the plaintiff's own admission in replication and in cross-examination, that the plaintiff had filed Succession Court Case No. 129/2022, that by itself does not establish the bar. The plaintiff's stand in replication is that the said petition pertains to the movable property of Late Sh. Sukumar Chakravarty. The written statement itself refers to the plaintiff having filed a petition under Section 372 of the Indian Succession Act for grant of succession certificate. Under Section 372(1)(f), such a petition can only concern debts and securities. A succession certificate does not encompass a prayer for partition of immovable property. The present suit, on the other hand, seeks partition and injunction in respect of Flat No. B-206, Daffodils CGHS, Plot No. 36, Sector 6, Dwarka, New Delhi, i.e. immovable property. It necessarily follows that the relief claimed in the present suit was not a relief that could have been claimed in the earlier succession petition. Where the earlier forum could not grant the later relief at all, the bar under Order II Rule 2 CPC cannot be attracted.
101. Thirdly, the cause of action in the two proceedings is not shown to be identical. Mere similarity of background facts, or the fact that both proceedings arise after the death of Late Sh. Sukumar Chakravarty, is not enough. The cause of action for a petition for succession certificate consists in the death of the deceased, the existence of specified debts and securities, and the applicant's claim to collect them. The cause of action for the present suit, as pleaded in the plaint, is the plaintiff's assertion of co-heirship in the suit flat, the alleged refusal by the defendant to partition the property, and Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 40/71 16:40:33 the alleged attempt to create third-party interest therein. These are not the same bundle of essential facts. The written arguments of the defendant proceed on the erroneous assumption that because both proceedings have a common historical event, namely the death of the deceased, the cause of action must necessarily be the same. That is not the test in law.
102. Fourthly, the very nature of a succession certificate proceeding militates against the defendant's plea. Section 373 mandates that such petition is to be decided in a summary manner and, where questions are too intricate, even a prima facie best title is sufficient for grant of certificate. Section 387 expressly preserves the right of parties to have the same question tried in a suit or other proceeding and states that no decision under that Part shall bar such trial. Therefore, far from supporting the defendant's objection, the statutory scheme of the Indian Succession Act itself negatives the contention that the pendency or filing of a succession petition bars a subsequent civil suit relating to rights in property.
103. Fifthly, the oral evidence led by the defendant is wholly insufficient. DW-1 did not prove the earlier petition. DW-2 had no connection with that proceeding at all. The defendant thus failed to place before the Court even the minimum primary material required to sustain a technical bar of this nature. On the contrary, the plaintiff's own affidavit clarifies that the present suit seeks the entire relief available in a suit for partition and injunction, while the replication states that the succession petition concerns movable property and is pending in a different court because of the nature of the relief and jurisdiction. These statements may not by themselves prove the plaintiff's substantive entitlement, but they are Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 41/71 16:40:33 sufficient to repel the defendant's objection under Order II Rule 2 CPC, especially when the defendant bears the burden.
104. In view of the above discussion, this Court is of the considered view that the defendant has failed to prove:
a. the pleadings and exact reliefs in the earlier succession proceedings; b. identity of cause of action between the two proceedings; and c. that the relief of partition/injunction regarding immovable property was a relief which the plaintiff could and ought to have claimed in the earlier succession certificate proceedings.
105. The plea under Order II Rule 2 CPC, therefore, remains wholly unsubstantiated.
Final Finding on Issue No. 6106. Accordingly, Issue No. 6 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 5 - WHETHER THE SUIT IS LIABLE TO BE DISMISSED ON ACCOUNT OF THE REASONS MENTIONED IN PARA (B) OF THE PRELIMINARY OBJECTIONS OF THE WRITTEN STATEMENT.
107. The burden to prove this issue was upon the defendant, the issue having been framed as "OPD". It was, therefore, incumbent upon the defendant to establish, by cogent pleadings and evidence, that the plaintiff had consciously waived his right in the suit property and that, by reason of Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 42/71 16:40:33 his conduct, the suit deserved dismissal on the principles of delay, laches and acquiescence.
Relevant Legal Principles
108. Para (B) of the written statement is founded on the doctrines of waiver, delay/laches, and acquiescence. These doctrines are equitable in nature. A plea of waiver cannot succeed unless there is clear, conscious and unequivocal abandonment of a known right. Mere silence, inaction, or failure to immediately litigate does not, by itself, amount to waiver unless it is shown that the conduct unmistakably evinced an intention to relinquish the right.
109. Similarly, laches and acquiescence are not to be mechanically inferred from passage of time alone. Delay, to become legally material in equity, must ordinarily be accompanied by conduct showing assent, encouragement, or conscious standing by, such that the opposite party altered position on the faith of such conduct. Mere delay, especially in a family dispute, is not synonymous with abandonment of rights.
110. It is also necessary to keep in view that Issue No. 3 separately concerns statutory limitation. Therefore, while para (B) of the written statement uses the expression that the plaintiff "failed to file the present suit in a timely manner", the adjudication under the present issue is confined to whether the plaintiff's conduct amounts to waiver/acquiescence so as to non-suit him independently of statutory limitation.
Rival Contentions / Pleadings relevant to the Issue Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 43/71 16:40:33
111. In para (B) of the preliminary objections, the defendant pleaded that the plaintiff had waived his right over the suit property by not raising objection to the nomination from the year 2002 till the death of Late Sh. Sukumar Chakravarty; that he had failed to file the present suit in time; and that the suit thus fell under the doctrine of delay, laches and acquiescence, since the plaintiff had already accepted the defendant as nominee as well as "rightful owner" of the shares and occupancy rights in the suit property.
112. In replication, the plaintiff specifically denied the said plea. He pleaded that nomination does not confer beneficial ownership; that it is only an authorization to receive the property; and that the mother of the parties was residing in the suit property till 05.01.2022, and therefore the question of filing a partition suit earlier did not arise. He also denied that he had accepted the defendant as rightful owner.
113. In the defendant's written arguments, this objection was reiterated by contending that the plaintiff was fully aware of the nomination and the defendant's exclusive possession, remained silent after the death of Sukumar in January 2020, and instituted the suit only in 2022, thereby acquiescing in the defendant's position.
Evidence led by the Parties on this Issue
114. On behalf of the defendant, DW-1 Sharmishtha Gupta, in her examination-in-chief (Ex. DW1/A), stated that the plaintiff did not raise any objection to her nomination from 2002 till the demise of their brother; that after the death of Late Sh. Sukumar Chakravarty, the co-operative society initiated transfer formalities in her favour; that the keys were handed over to her on 07.01.2020 in the plaintiff's presence; and that no objection was Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 44/71 16:40:33 raised by the plaintiff. She further stated that, by not raising any objection from 2002 till the death of Sukumar, the plaintiff had effectively waived any claim to the property and had accepted the intentions of the deceased.
115. The defendant relied upon Ex. DW1/1, i.e. the index card showing nomination in her favour; Ex. PW1/DA i.e. the letter dated 07.01.2020 recording handing over of keys to her as "sister and nominee"; and the minutes of the managing committee meeting dated 09.02.2020, showing that the society considered her application for transfer of shares and occupancy rights.
116. However, in cross-examination, DW-1 made certain admissions of significance. She admitted that the plaintiff and she had cordial relations. More importantly, she stated that when she was made nominee, "it was not disclosed to anyone and it was a top secret." She further stated that she blocked the plaintiff's phone only after the death of her mother. These answers materially qualify, if not undermine, her earlier plea that the plaintiff, with knowledge since 2002, had consciously acquiesced in and waived his rights.
117. On behalf of the plaintiff, PW-1 denied in his affidavit that the defendant's plea regarding limitation and allied objections was sustainable and stated that the issue of share remained one of mutual understanding due to cordial relations till the dispute arose. He also stated that the documents dated 07.01.2020 (Ex. PW1/DA) showed cordial relations between the parties when he did not oppose handing over of keys to the defendant.
118. In cross-examination, PW-1 admitted that the defendant had been nominated as nominee of the suit property and stated that such Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 45/71 16:40:33 nomination was "with our consent and willingness", though he did not remember the exact date. He also admitted his signature on Ex. PW1/DA as witness. When asked why he had not asked for partition right after the demise of his brother in the year 2020, he answered that his mother was staying in the suit property and hence he had not done so.
Appreciation of Evidence and Findings
119. Having considered the pleadings, oral evidence, documentary evidence, and the written arguments, this Court is of the view that the defendant has failed to discharge the burden cast upon her under this issue.
120. To begin with, para (B) of the written statement contains two essential assertions: first, that the plaintiff had knowledge of and accepted the defendant's nomination/rightful ownership; and second, that by reason of such conduct he waived his rights and acquiesced so as to non-suit himself. The evidence led by the defendant does not satisfactorily establish either proposition in the manner required by law.
121. The existence of nomination in favour of the defendant is undoubtedly borne out from Ex. DW1/1. Likewise, Ex. PW1/DA shows that on 07.01.2020 the keys of the flat were handed over to the defendant, and the plaintiff signed as a witness. The minutes of the society meeting also indicate that the defendant's application for transfer was considered. These documents are sufficient to show that the defendant was nominated and that the society acted on such nomination. However, these documents do not contain any recital that the plaintiff relinquished, released, abandoned, or waived any claim in the suit property. Ex. DW1/1 is a nomination document emanating from the deceased and the society. Ex. PW1/DA only records Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 46/71 16:40:33 handing over of keys to the defendant as nominee. The minutes of the society record the internal society decision. None of them is a document of waiver by the plaintiff.
122. The central weakness in the defendant's case lies in DW-1's own cross-examination. In her affidavit she projected the case that the plaintiff had not objected "since 2002" and had accepted the intention of the deceased to leave everything to her. Yet, in cross-examination, she stated that the nomination was "not disclosed to anyone" and that it was a "top secret". If that be so, the very factual basis of para (B)--namely, that the plaintiff knowingly failed to object from 2002 onwards--stands seriously dented. A person cannot be said to have waived a right by not objecting to a matter which, according to the defendant herself, was not even disclosed to him as a matter of open family knowledge.
123. It is true that PW-1, in cross-examination, admitted that the defendant had been nominated and that such nomination was with "our consent and willingness". This answer does weaken the plaintiff's earlier categorical denial in replication regarding the defendant's stand of a long-standing nomination. It also shows that the plaintiff was not a stranger to the nomination. Yet, even this admission does not carry the defendant's case to the level of waiver. Consent to someone being named a nominee is not the same thing as an express or implied relinquishment of one's future inheritance or co-heirship claim. A nomination may be accepted for administrative or practical reasons without amounting to abandonment of proprietary rights. The defendant has produced no document, correspondence, or unequivocal oral arrangement whereby the plaintiff agreed that the defendant alone would own the property to his exclusion.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 47/71 16:40:33 124. The same reasoning applies to the plaintiff's conduct of
witnessing the handing over of keys on 07.01.2020. That conduct may show cordiality, temporary acceptance of the immediate arrangement, or absence of then-existing protest. But it cannot, without more, be elevated to a permanent and legally binding waiver of succession-related claims. The plaintiff's own affidavit (Ex. PW1/A) states that the documents of 07.01.2020 indicate cordial relations. This explanation finds some support from the surrounding circumstances, including the admitted fact that family relations were cordial and that the mother of the parties was alive and, according to both sides in substance, was linked with residence in relation to the suit premises after the death of Sukumar.
125. Further, PW-1 offered an explanation in cross-examination as to why he did not immediately seek partition in 2020, namely that his mother was staying in the suit property. Whether or not that explanation ultimately answers Issue No. 3 on limitation is a separate matter. For present purposes, it certainly negatives the contention that the plaintiff's inaction was necessarily referable to waiver or abandonment. The existence of an explanation, coupled with family circumstances and continued cordiality, prevents this Court from drawing the strong inference of conscious relinquishment that the defendant seeks.
126. The defendant's written submissions emphasise that the plaintiff had knowledge of the nomination and remained silent till 2022. However, silence by itself is not sufficient. For waiver or acquiescence, the conduct must be so clear and unequivocal that it leaves no manner of doubt that the person intended to surrender the right. That standard is not met in the present case. The defendant has not proved any release deed, family settlement, Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 48/71 16:40:33 relinquishment, correspondence, prior admission, or even a consistent oral case establishing that the plaintiff agreed to treat the defendant as sole owner. Rather, DW-1's cross-examination introduces uncertainty by describing the nomination as undisclosed and "top secret", while the plaintiff's conduct is equally capable of being explained by family arrangement, temporary accommodation, or delay short of abandonment.
127. The judgments relied upon by the defendant also do not materially advance her case on this issue. Premji Ratansey Shah (supra) concerns injunction in favour of a trespasser or person in unlawful possession and does not deal with waiver by a co-heir. Anathula Sudhakar (supra) pertains to the nature of suits for injunction and title disputes. T. Arivandandam (supra) addresses vexatious plaints and meaningful reading thereof. S.P. Chengalvaraya Naidu (supra) concerns fraud and suppression. These authorities, though good law in their own fields, do not establish that mere delay in objecting to nomination, or witnessing delivery of keys to a nominee, results in waiver of a co-heir's claim in a partition action. Nor has any judgment been shown to this Court holding that such conduct, without express relinquishment, is sufficient to dismiss the suit on equitable grounds alone.
128. On the other hand, the plaintiff's reliance on the proposition that nomination does not by itself confer beneficial ownership, though more directly relevant to Issue No. 7, does indirectly reinforce the conclusion that mere acceptance of nominee status cannot automatically be treated as assent to exclusive ownership. In any event, for the purpose of Issue No. 5, it is sufficient to hold that the defendant has not proved an unequivocal waiver by the plaintiff.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 49/71 16:40:33 129. Thus, while the defendant has succeeded in proving that she
was nominated and that the plaintiff did not object at the moment of handing over of keys, she has failed to prove the far stronger proposition that the plaintiff, by conscious and unequivocal conduct, waived his rights or so acquiesced as to forfeit the present suit. The plea in para (B) of the written statement, therefore, remains unproved.
Final Finding on Issue No. 5130. In view of the aforesaid discussion, this Court holds that the defendant has failed to establish that the plaintiff had consciously waived his rights in the suit property or that the suit is liable to be dismissed on the doctrines of delay, laches and acquiescence as pleaded in para (B) of the preliminary objections of the written statement. Accordingly, Issue No. 5 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 3 - WHETHER THE SUIT IS WITHIN TIME? OPP
131. The burden to prove this issue was placed upon the plaintiff, the issue having been framed as "OPP". The plaintiff was, therefore, required to show that the present suit for partition and permanent injunction was instituted within the prescribed period of limitation reckoned from the accrual of the right to sue, or that, on the facts pleaded and proved, the suit was otherwise not barred by time.
Relevant Legal Principles
132. For a suit by a person excluded from joint family property to enforce a right to share, Article 110 of the Schedule to the Limitation Act, 1963 prescribes a period of twelve years, commencing from the date when Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 50/71 16:40:33 the exclusion becomes known to the plaintiff. The residuary Article 113 prescribes a period of three years when no other specific article applies, beginning when the right to sue accrues.
133. The Hon'ble Supreme Court has repeatedly held, in the context of co-owners/co-heirs, that possession of one co-owner is, in the eye of law, possession of all; mere occupation of a larger portion or even of the whole does not by itself amount to ouster; and passage of time does not extinguish the right of a co-owner out of possession except in the event of ouster or abandonment. Ouster requires open assertion of hostile title and exclusive possession to the knowledge of the other co-owner. Moreover, ouster is a weak defence in a partition suit and requires consistent and open assertion of denial of title, long and uninterrupted possession, and exercise of exclusive ownership openly and to the knowledge of the other co-owner.
134. It is also relevant that, by orders passed in In Re: Cognizance for Extension of Limitation, the Hon'ble Supreme Court directed exclusion of the period from 15.03.2020 till 28.02.2022 for purposes of limitation, and granted a further period of 90 days from 01.03.2022 in all proceedings where limitation would otherwise have run during the excluded period.
Rival Contentions / Pleadings relevant to the Issue
135. In the plaint, the plaintiff pleaded that the cause of action first arose on 06.01.2020 when Late Sh. Sukumar Chakravarty died; that it again arose when the plaintiff requested partition of the suit property; and that it again arose on 11.08.2022 and 16.09.2022 when, according to the plaintiff, the defendant was attempting to create third-party interest in the flat. The suit is shown to have been filed in September 2022.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 51/71 16:40:33 136. In the written statement, the defendant pleaded that the suit was
barred by limitation because the cause of action first arose in 2002, when the deceased nominated the defendant; that even after the death of the deceased on 06.01.2020, the plaintiff delayed in filing the suit until the end of September 2022; and that since 2002 he had not objected and had accepted the alleged intention of the deceased to give everything to the defendant.
137. In replication, the plaintiff specifically denied that the suit was barred by limitation. The plaintiff pleaded that the mother of the parties, Late Smt. Gayatri Devi, remained residing in the suit property till 05.01.2022, and therefore the question of filing a partition suit earlier did not arise. The plaintiff further pleaded that the right of partition in his favour arose after the death of the mother, and that the suit, filed in September 2022, was well within time.
138. In the plaintiff's affidavit by way of evidence (Ex. PW1/A), PW-1 further pleaded that the deceased died on 06.01.2020, that the pandemic and lockdown intervened shortly thereafter, and that, in any case, the period from 15.03.2020 till 28.02.2022 stood excluded pursuant to the directions of the Supreme Court in Suo Motu Writ Petition (C) No. 3 of 2020.
139. It has been argued on behalf of the Defendant that the plaintiff was fully aware of the defendant's possession and status as nominee, yet did not sue until 2022; that Article 110 applies; and that the plaintiff's inaction from 2020 to 2022 bars the suit.
Evidence led by the Parties on this Issue
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140. PW-1, in his evidence affidavit (Ex. PW1/A), supported the
plea that the suit was within time, referred to the death of Late Sh. Sukumar Chakravarty on 06.01.2020, to the death of the mother on 05.01.2022, and to the Hon'ble Supreme Court's orders excluding the pandemic period for purposes of limitation. He further stated that the issue of share remained one of mutual understanding between the parties due to cordial relations till the dispute arose.
141. In cross-examination, PW-1 admitted his awareness of the nomination and also admitted his signatures on Ex. PW1/DA, the document relating to handing over of keys. However, when specifically asked why he had not sought partition immediately after the death of his brother in 2020, he answered that his mother was staying in the suit property and therefore he had not asked for partition right after the demise of his brother. He also stated that the death of his mother was informed to him by the defendant and that he could not participate in her last rites due to Covid-19 restrictions.
142. DW-1, in her affidavit, stated that the plaintiff did not raise any objection to her nomination from 2002 till the demise of the deceased; that after the death of Late Sh. Sukumar Chakravarty on 06.01.2020, the society initiated transfer formalities; that the keys were handed over to her on 07.01.2020 in the plaintiff's presence; and that the managing committee considered her application on 09.02.2020. She further stated that the mother started residing in the suit property from 07.03.2020 onwards.
143. However, in cross-examination, DW-1 stated that the nomination was not disclosed to anyone and was a "top secret". She also admitted that the plaintiff and she had cordial relations. These answers Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 53/71 16:40:33 materially affect the defendant's stand that the plaintiff must be treated as having known, since 2002, of a hostile and exclusive assertion of title by the defendant.
144. The documentary record also shows that Ex. PW1/DA is merely the letter of handing over of keys dated 07.01.2020 in favour of the defendant as sister and nominee, and the minutes dated 09.02.2020 show that the society considered the transfer of share and occupancy rights. Neither document records any express denial of the plaintiff's title or any communication of exclusion to him.
Appreciation of Evidence and Findings
145. Upon an overall consideration of the pleadings, evidence, and applicable law, this Court is of the opinion that the plaintiff has succeeded in showing that the suit is within time.
146. Even accepting the defendant's own legal submission that Article 110 of the Limitation Act governs the field, the suit is plainly within limitation. Article 110 gives a period of twelve years from the date when exclusion becomes known. The present suit was instituted in September 2022. Even if the date of exclusion is assumed, in favour of the defendant, to be as early as 07.01.2020 (handover of keys) or 09.02.2020 (society's consideration of transfer), the suit filed in September 2022 is far within twelve years. On the defendant's own formulation of the applicable article, therefore, the plea of bar by time cannot succeed.
147. The defendant's contention that limitation began in 2002, when the nomination was made, is not acceptable on the evidence led. A Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 54/71 16:40:33 nomination in the records of the society is not, by itself, proof of known exclusion of a co-heir from the property. More importantly, DW-1 herself stated in cross-examination that the nomination was not disclosed to anyone and was a "top secret". Once that is the defendant's own evidence, she cannot simultaneously contend that the plaintiff must be treated as having been knowingly excluded from 2002 onwards. This contradiction goes to the root of the defence on limitation.
148. Further, the legal standard for ouster among co-heirs is a stringent one. Possession of one co-heir is presumed to be possession of all; mere exclusive occupation is not enough; and there must be open assertion of hostile title to the knowledge of the other co-owner. On the record of the present case, no such open and hostile denial brought home to the plaintiff in 2002 has been proved. Nor do Ex. PW1/DA or the society minutes amount to such proved ouster. They show administrative steps by the society and physical handing over of keys to the nominee, but not an adjudicated or openly asserted extinguishment of the plaintiff's claim as a co-heir.
149. The plaintiff's explanation for not immediately seeking partition in 2020 also cannot be brushed aside. In replication, as well as in cross-examination, the plaintiff's stand was that the mother was residing in the suit property till her death in January 2022. DW-1 herself stated in her affidavit that the mother started residing in the suit property from 07.03.2020 onwards. Thus, the broad factual position that the mother was connected with residence in the suit property after the death of the deceased stands supported even by the defendant's evidence. In a dispute of this nature, involving siblings and the residence of the surviving mother, the plaintiff's Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 55/71 16:40:33 decision not to immediately insist on partition in 2020 cannot, by itself, be treated as fatal for limitation.
150. Even assuming, for the sake of argument, that the suit were to be examined under a shorter article such as the residuary Article 113, the result would still not change. The plaint specifically pleads recurring cause of action on 11.08.2022 and 16.09.2022, when the plaintiff allegedly requested partition and when third-party interest was allegedly sought to be created. The suit, filed in September 2022, would still be well within three years from those pleaded dates.
151. Moreover, the plaintiff's plea based on the Hon'ble Supreme Court's orders excluding the period from 15.03.2020 till 28.02.2022 also merits acceptance. The Hon'ble Supreme Court expressly directed exclusion of that period for purposes of limitation and granted a further period of 90 days from 01.03.2022. Therefore, even if one were to count time from the death of the deceased on 06.01.2020, the pandemic-excluded period would stand left out in computing limitation. On that additional ground as well, the suit filed in September 2022 cannot be said to be out of time.
152. The defendant's written arguments rely heavily on the plaintiff's knowledge of nomination and on his silence between 2020 and 2022. However, knowledge of nomination is not the same as knowledge of legal exclusion for the purpose of Article 110. Nor has the defendant proved a clear and communicated ouster. The evidence, at the highest, shows that the defendant was nominated and the society dealt with her as nominee/member. It does not prove that the plaintiff's right, if any, was Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 56/71 16:40:33 openly and unequivocally denied to his knowledge in such a manner as to render the suit, instituted in September 2022, time-barred.
Final Finding on Issue No. 3153. For all the aforesaid reasons, this Court holds that the present suit, instituted in September 2022, cannot be held to be barred by limitation. Whether tested on the defendant's own reliance on Article 110 of the Limitation Act, on the plaintiff's pleaded dates of recurring cause of action in August/September 2022, or on the benefit of the Hon'ble Supreme Court's Covid-related exclusion orders, the suit is within time.
154. Accordingly, Issue No. 3 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 1 - WHETHER THE PLAINTIFF IS ENTITLED TO A PRELIMINARY DECREE OF PARTITION OF THE PROPERTY IN QUESTION AS PRAYED FOR? OPP
155. The burden to prove this issue is upon the plaintiff, the issue having been framed as "OPP". It was, therefore, for the plaintiff to establish that the suit property is part of an estate in which he has a subsisting share and that, as against the defendant, he is entitled to determination of such share by a preliminary decree.
Relevant Legal Principles
156. A preliminary decree in a partition suit is passed when the Court is satisfied that the property is joint or co-owned as between the contesting parties and that their respective shares can be judicially Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 57/71 16:40:33 determined. The immediate task at this stage is not actual division by metes and bounds, but adjudication of title inter se the parties and declaration of shares.
157. In the present case, the foundational question is succession to the estate of Late Sh. Sukumar Chakravarty. Under Sections 8, 9 and 10 of the Hindu Succession Act, 1956, the property of a male Hindu dying intestate devolves first upon the heirs specified in Class I of the Schedule, to the exclusion of Class II heirs; and the surviving sons, daughters and mother each take one share.
158. The plaintiff and defendant are brother and sister of Late Sh. Sukumar Chakravarty. A brother and sister fall in Class II, whereas the mother is a Class I heir. Therefore, if the mother of Late Sh. Sukumar Chakravarty was alive at the time of his death, the estate of Late Sh. Sukumar Chakravarty would devolve first upon the mother, and not directly upon the plaintiff and defendant.
159. However, the matter does not end there. Under Sections 15 and 16 of the Hindu Succession Act, 1956, the property of a female Hindu dying intestate devolves, firstly, upon her sons and daughters and husband, and the heirs in the same entry take in accordance with Section 16.
160. As to the defendant's reliance on nomination in the co-operative society, the law is now settled by Indrani Wahi (supra). The Hon'ble Supreme Court held that, in case of a valid nomination, the co-operative society is bound to transfer the share or interest in the name of the nominee; but the Hon'ble Court also clarified that such transfer is with reference to the concerned co-operative society and has no relevance to the issue of title Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 58/71 16:40:33 between the inheritors or successors of the deceased, who remain free to pursue succession or inheritance in accordance with law.
161. Thus, for deciding Issue No. 1, the defendant's nomination and the society's transfer in her favour may explain her possession or her status in the records of the society, but they do not, by themselves, conclude the question whether the plaintiff has or does not have a share in the estate as an heir.
Rival Contentions / Pleadings relevant to the Issue
162. The plaintiff pleaded in the plaint that he and the defendant are real brother and sister; that Late Sh. Lal Mohan Chakraborty died in 1993; that Late Sh. Suprakash died unmarried on 25.07.2012; that Late Sh. Sukumar Chakraborty died on 06.01.2020; that Smt. Gayatri Devi died on 05.01.2022; and that only the plaintiff and defendant remained as surviving heirs in the family. The plaintiff further pleaded that the suit flat bearing No. B-206, Daffodils CGHS, Plot No. 36, Sector 6, Dwarka, was the self-acquired property of Late Sh. Sukumar Chakraborty and that both parties were entitled to equal share therein. The plaintiff sought a preliminary decree declaring him co-owner to the extent of one-half share.
163. The written statement contested the plaintiff's entitlement principally on the ground that Late Sh. Sukumar Chakravarty had nominated the defendant in 2002; that after his death the society transferred shares and occupancy rights in her favour; and that the plaintiff could not claim partition merely as a sibling/legal heir in the face of such nomination and transfer. The written statement, however, did not dispute that the flat had Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 59/71 16:40:33 been allotted to Late Sh. Sukumar Chakravarty or that the plaintiff and defendant are siblings.
164. In replication, the plaintiff maintained that nomination did not confer beneficial ownership, that the suit property was still liable to succession under law, and that after the death of the mother he asked the defendant to partition the premises.
165. In written arguments, the plaintiff reiterated that the suit property belonged to Late Sh. Sukumar Chakravarty; that only the plaintiff and defendant survived; and that nomination could not defeat inheritance. The defendant, on the other hand, argued that the plaintiff had no subsisting co-ownership, had not challenged the nomination or transfer of membership, and was therefore not entitled to a preliminary decree.
Evidence led by the Parties on this Issue
166. PW-1, the plaintiff, deposed in his evidence affidavit (Ex. PW1/A) that he and the defendant are real brother and sister; that their father died in 1993; that their elder brother Suprakash died unmarried; that Sukumar died on 06.01.2020; and that their mother Gayatri Devi died on 05.01.2022. He further deposed that the suit flat was purchased by Late Sh. Sukumar Chakraborty, was his self-acquired property, and that the parties are entitled to respective shares therein. He also deposed that Late Sh. Sukumar had no children and was divorced.
167. In cross-examination, PW-1 admitted that the defendant had been nominated as nominee of the suit property, and stated that such nomination was with "our consent and willingness", though he did not Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 60/71 16:40:33 remember the exact date. He also admitted his signature as witness on the document concerning handing over of keys i.e. Ex. PW1/DA. At the same time, he consistently claimed right in the suit property on the footing that he is the brother/legal heir of the deceased, and explained that he did not seek partition immediately after the death of Sukumar because the mother was staying in the suit property.
168. DW-1, the defendant, deposed that she and the plaintiff are siblings and the only living heirs of their brother, Late Sh. Sukumar Chakravarty; that the suit property was allotted to Late Sh. Sukumar Chakravarty; that on 24.02.2002 he made her nominee with 100% share in the suit property; and that after his death the society initiated transfer of shares and occupancy rights in her favour. She relied on the nomination index card Ex. DW1/1, the handing over letter dated 07.01.2020, the minutes of the managing committee meeting dated 09.02.2020, and the ownership letter dated 11.03.2020. She further deposed that she had been maintaining the property and paying its charges.
169. In cross-examination, DW-1 admitted that her deceased brother Sukumar was a divorcee and that the mother was alive at the time of his death. She also admitted that the plaintiff and she had cordial relations. Significantly, she stated that the nomination was "not disclosed to anyone"
and was a "top secret".
170. DW-2, Tara Chand from the Society, produced the society records collectively as Ex. DW2/3, including the nomination index card, the key handover letter, the minutes dated 09.02.2020, the ownership letter dated 11.03.2020, and receipts. In cross-examination, he stated that in the society a Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 61/71 16:40:33 property is transferred to a prospective buyer through sale deed executed before the Sub-Registrar, Kapashera; that nomination is mandatory for every flat; and that the nominee is appointed as per the law laid down by the Registrar. He had no knowledge whether nominee is appointed merely for information upon the death of the actual owner.
Appreciation of Evidence and Findings
171. Upon appreciation of the pleadings, oral evidence, documentary evidence, and the rival submissions, this Court finds that the plaintiff has succeeded in establishing entitlement to a preliminary decree of partition, though not for the precise legal reason articulated by him in the plaint.
172. The first aspect which stands proved beyond dispute is that the suit flat belonged to Late Sh. Sukumar Chakravarty and was his self-acquired property. The plaintiff has pleaded so in the plaint and affirmed it in his affidavit. The defendant, in her own affidavit, also accepted that the suit property was allotted to Late Sh. Sukumar Chakravarty and based her own case on his nomination in her favour. There is no rival plea that the property belonged to the father, to a Hindu undivided family, or to the defendant independently.
173. The second aspect which is equally clear is the family structure and sequence of deaths. The plaintiff and defendant are siblings. Suprakash died unmarried. Sukumar died on 06.01.2020. The mother Gayatri Devi was alive at the time of Sukumar's death and died thereafter in January 2022. These facts are pleaded by the plaintiff and substantially admitted by the defendant.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 62/71 16:40:33 174. At this stage, the plaintiff's pleading does reveal a legal
infirmity. The plaint and replication repeatedly proceed on the footing that after the death of Sukumar only the plaintiff and defendant were entitled as his surviving legal representatives and that both directly inherited half share each. That proposition is not legally accurate because, on the death of a male Hindu intestate, Class I heirs exclude Class II heirs, and the mother is a Class I heir whereas brother and sister are Class II heirs. Since Gayatri Devi was alive on 06.01.2020, the estate of Late Sh. Sukumar Chakravarty did not, at that stage, devolve directly upon the plaintiff and defendant. It devolved first upon the mother.
175. However, that pleading infirmity is not fatal to the plaintiff's claim on Issue No. 1. The plaintiff has pleaded the death of the mother on 05.01.2022 before institution of the suit, and has also pleaded that after the death of the mother he sought partition. Those foundational facts are not only on record but are admitted in substance by the defendant. The legal consequence flowing from admitted facts is a matter for the Court to draw. A Court is not bound to reject an otherwise sustainable claim merely because a party has misdescribed the precise provision of succession law, so long as the material facts necessary for applying the correct law are pleaded and proved.
176. Applying the correct law, the consequence is this: Late Sh. Sukumar Chakravarty having died intestate, divorced and without children, and his mother being alive on the date of his death, the property first devolved upon the mother as the surviving Class I heir. Thereafter, on the death of Smt. Gayatri Devi intestate in 2022, the property standing in her estate devolved, under Sections 15 and 16 of the Hindu Succession Act, Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 63/71 16:40:33 upon her surviving son and daughter, namely the plaintiff and defendant, in equal shares. The husband was already dead; Suprakash had died unmarried and without issue; Sukumar was already dead and had no surviving child. Consequently, on the mother's death, the plaintiff and defendant each became entitled to one-half share.
177. The defendant's principal resistance to this conclusion is founded on nomination and the society's transfer of membership. That contention cannot defeat the plaintiff's claim. As already noticed, the defendant has proved nomination in her favour through Ex. DW1/1 and society documents. The plaintiff himself admitted the nomination. But Indrani Wahi (supra) clearly distinguishes between the duty of the co-operative society to act upon nomination and the separate question of title between heirs. The society is bound to transfer membership/share or interest to the nominee; yet such transfer has "no relevance to the issue of title between the inheritors or successors to the property of the deceased", who remain free to pursue succession or inheritance in accordance with law.
178. DW-2's cross-examination reinforces that conclusion. He stated that in the society property is transferred to a prospective buyer through sale deed before the Sub-Registrar; nomination is mandatory for each flat; and the nominee is appointed as per the Registrar's rules. This evidence shows that nomination is part of the society's internal regulatory scheme and cannot, by itself, be treated as the equivalent of a registered conveyance conferring indefeasible title to the exclusion of succession law.
179. The plaintiff's reliance on Sarbati Devi (supra) and Shweta Singh Huria (supra) has to be approached with caution. Those authorities Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 64/71 16:40:33 arise in the context of nomination under the Insurance Act, and not directly under the Delhi Co-operative Societies Act. Therefore, they are not the most apposite authorities on the present controversy. Even so, they do support the broader proposition that nomination does not, by itself, constitute a complete substitute for succession law. The more directly relevant principle, however, is the one stated in Indrani Wahi (supra), which has been applied above.
180. The defendant's objection that the plaintiff did not challenge the nomination or implead the society also does not, at this stage, defeat the prayer for a preliminary decree. The issue here is not cancellation of the society's records but declaration of inter se shares between the plaintiff and defendant in the estate which originally belonged to Late Sh. Sukumar Chakravarty and thereafter came to be represented through the mother's estate. For adjudication of these shares, the defendant is the only necessary contesting party before this Court. The society records may remain binding on the society unless separately altered, but they do not extinguish the plaintiff's inheritable share as between the parties.
181. The defendant also urged that the plaintiff failed to prove contribution, possession, or co-management. In a claim founded not on purchase or contribution but on inheritance, such facts are not decisive. Once the succession chain is established, contribution to acquisition is immaterial unless a contrary title is pleaded and proved. No such contrary title has been proved by the defendant. Her case rests solely on nomination and society transfer, which, for reasons already recorded, do not override succession inter se the heirs.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 65/71 16:40:33 182. Thus, the plaintiff has proved the material facts necessary for
the Court to hold that he and the defendant presently hold equal shares in the suit property through succession. The defendant has not proved any legal ground to displace that conclusion.
Final Finding on Issue No. 1183. For the aforesaid reasons, this Court holds that the suit property was the self-acquired property of Late Sh. Sukumar Chakravarty; that on his death it devolved upon his mother, Smt. Gayatri Devi, who was alive at that time; and that on the subsequent death of Smt. Gayatri Devi intestate, the said property devolved equally upon her surviving son and daughter, namely the plaintiff and the defendant. The nomination and transfer of membership in favour of the defendant do not defeat the plaintiff's inheritable share inter se the parties.
184. Accordingly, the plaintiff is entitled to a preliminary decree of partition declaring that the plaintiff and the defendant each hold one-half share in property bearing Flat No. B-206, Daffodils CGHS, Plot No. 36, Sector-6, Dwarka, New Delhi.
185. Accordingly, Issue No. 1 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2 - WHETHER THE PLAINTIFF IS ENTITLED TO THE DECREE OF INJUNCTION AS PRAYED FOR? OPP
186. The burden to prove this issue was upon the plaintiff.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 66/71 16:40:33 187. Since Issue No. 1 has already been decided in favour of the
plaintiff and it has been held that the plaintiff and the defendant each hold one-half undivided share in the suit property, the plaintiff's entitlement to protective injunctive relief substantially follows. The suit property is thus not the exclusive property of the defendant. Any unilateral act by the defendant in relation to the entirety of the suit property, so as to prejudice the plaintiff's undivided share or complicate the eventual partition, would furnish a valid basis for injunction.
188. It is true that the plaintiff's specific allegation that on 11.08.2022 a proposed buyer or tenant had visited the property was not proved with much clarity, particularly in view of PW-1's cross-examination where he stated that he did not remember who informed him about the alleged attempt to create third-party rights. Equally, DW-1 denied any intention to sell or lease the property.
189. However, strict proof of an actual concluded attempt to alienate is not indispensable in a partition action once co-ownership is established and one co-owner is in exclusive control of the property. The purpose of such injunction is preservation of the property and protection of the other co-owner's undivided share until partition is worked out. In the present case, the defendant is in a position of control over the suit property and has been dealing with the society in her own name on the strength of nomination and transfer of membership. In these circumstances, if no restraint is issued, there exists a real possibility of complications being introduced in the property to the prejudice of the plaintiff's adjudicated share.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 67/71 16:40:33 190. Accordingly, the plaintiff is entitled to a decree of permanent
injunction restraining the defendant from creating any third-party interest in, alienating, or parting with possession of the suit property in a manner prejudicial to the plaintiff's one-half undivided share, till the property is partitioned in accordance with law.
191. Accordingly, Issue No. 2 is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 4 - WHETHER THE SUIT IS WITHOUT ANY CAUSE OF ACTION. OPD
192. The burden to prove this issue was upon the defendant, the issue having been framed as OPD.
193. It was for the defendant to show that the plaint, on a meaningful reading, discloses no enforceable right to sue against the defendant. In law, cause of action means the bundle of material facts which the plaintiff must prove to obtain relief. For examining whether a plaint discloses cause of action, the Court primarily looks to the plaint averments and the documents relied upon by the plaintiff; the plea is not to be sustained merely on the strength of the defence.
194. Order VII Rule 11(a) CPC contemplates rejection of a plaint where it does not disclose a cause of action. The settled test is whether, assuming the averments in the plaint to be true, they disclose a clear right to sue. Clever drafting cannot create an illusory cause of action, but equally, so long as the plaint discloses material facts giving rise to an enforceable claim, the suit cannot be thrown out on this ground.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 68/71 16:40:33 195. The plaintiff pleaded that the suit property was the self-acquired
property of Late Sh. Sukumar Chakraborty; that after the deaths of Sukumar and thereafter Smt. Gayatri Devi, the plaintiff and defendant were surviving heirs; that the plaintiff requested partition; and that the defendant did not agree and was allegedly attempting to create third-party interest. On that basis, the plaintiff sought partition and injunction.
196. The defendant, in written statement and written arguments, contended that the suit is without cause of action because the defendant was already nominee/member in the society records, was in possession, and the plaintiff had neither challenged her nomination/membership nor shown any legally enforceable right in himself.
197. This issue does not survive in favour of the defendant.
198. Once Issue No. 1 has been adjudicated in favour of the plaintiff and it has been held that the plaintiff has a subsisting one-half share in the suit property, the argument that the suit is without cause of action necessarily fails. A suit for partition by a person found to be a co-sharer cannot simultaneously be said to be devoid of cause of action. The plaint did disclose material facts constituting a right to sue, namely the death of the original owner, the plaintiff's asserted share as heir, the defendant's exclusive assertion/holding of the property, and refusal of partition. Those averments were sufficient to found a triable civil action.
199. The defendant's reliance on nomination and society records may constitute a defence on merits, but such defence does not negate the existence of cause of action in the plaint. As already held while deciding Issue No. 7, the society's transfer in favour of the nominee does not, by Signature Not Verified Signed By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 69/71 16:40:33 itself, conclude inter se title between rival heirs. Therefore, the plaintiff's claim was not illusory or vexatious merely because the defendant was nominee/member in the society records.
200. The defendant has thus failed to discharge the burden cast upon her under this issue.
201. Accordingly, Issue No. 4 is decided in favour of the plaintiff and against the defendant.
RELIEF
202. In view of the findings returned on Issue Nos. 1 to 7, the suit of the plaintiff succeeds.
203. A preliminary decree of partition is hereby passed declaring that the plaintiff and the defendant each hold one-half (1/2) undivided share in property bearing Flat No. B-206, Daffodils CGHS, Plot No. 36, Sector-6, Dwarka, New Delhi.
204. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant, thereby restraining the defendant, her agents, representatives, attorneys or any person claiming through or under her from creating any third-party interest in, alienating, encumbering, or parting with possession of the suit property in a manner prejudicial to the plaintiff's one-half undivided share, till the property is partitioned in accordance with law.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 70/71 16:40:33 205. It is clarified that the present decree is only a preliminary
decree determining the shares of the parties. The matter shall now proceed further for final decree proceedings in accordance with law.
206. No order as to cost at this stage. Ld. Successor Court may deal with the same at the stage of final decree.
207. Decree sheet be prepared accordingly.
208. Put up before the Ld. Successor Court for further proceedings with respect to the final decree on 25.05.2026.
PRONOUNCED IN OPEN COURT ON 24.04.2026 (SUMIT DALAL) Joint Registrar (Judicial) - 071, Hon'ble Delhi High Court, 24.04.2026.
1Formerly, District Judge - 04, South West District, Dwarka Courts, at the time of reserving orders.
Signature Not VerifiedSigned By:SUMIT CS DJ ADJ 938/2022 DALAL Signing Date:24.04.2026Subrata Chakraborty Vs. Sharmishtha Gupta Page No. 71/71 16:40:33