Delhi District Court
Aaryander Kumar vs Joginder Kumar on 26 February, 2018
IN THE COURT OF
SH. SAURABH PRATAP SINGH LALER
ADDITIONAL DISTRICT JUDGE-01 (CENTRAL)
TIS HAZARI COURTS, DELHI.
CS No. 16965/2016
1.AARYANDER KUMAR S/o Late Sh. Megh Singh Chaudhary, R/o 45, A-Block, Shish Mahal Enclave, Prem Nagar, Kirari Suleman Nagar, Delhi.
2. SURENDER KUMAR S/o Late Sh. Megh Singh Chaudhary, R/o L-147, Shastri Nagar, Delhi.
.......Plaintiff VERSUS
1. JOGINDER KUMAR S/o Late Sh. Megh Singh Chaudhary, R/O B-1296/1, Shastri Nagar, Delhi
2. SMT. KAMLESH W/o Sh. Ajay Pal Singh, D/o Late Sh. Megh Singh Chaudhary, R/o 481-B, DDA Flats, Bindapur, Uttam Nagar, Delhi
3. SMT. REKHA @ PARAMJIT KAUR D/o Late Sh. Megh Singh Chaudhary, W/o Sh. Charan Singh, R/o 12, Satguru Departmental Store, Shopping Centre, G.B. University, Greater Noida, UP.
4. SMT. SUNITA W/o Sh. Vijay Singh, D/o Late Sh. Megh Singh Chaudhary, R/o C/o Senior Sector Engineer, Karshar Vitran Karyalya, Roop Nagar, Uttar Railway, Punjab.
5. SMT. MANJU D/o Late Sh. Megh Singh Chaudhary, W/o Sh. Raju R/o H. No. 35, Giradharpur, Sunarasi, G. B. Nagar, Noida. ......Defendants CS No.16965/2016 Aaryander Kumar Vs. Joginder Kumar Page No. 1 of 7 ORDER ON THE APPLICATION U/O 12 R. 6 Code of Civil Procedure, 1908 (Suit for partition, possession, mesne profits and permanent injunction) Date of institution : 07.06.2013 Date of arguments : 25.012018 Date of Order : 26.02.2018
1. Plaintiffs have filed application under Order XII Rule 6 CPC seeking decree on the basis of admissions, on the ground that defendant No.1 and defendant No.4 and 5 have admitted the share (1/7 th share of the entire property) of the plaintiff in the suit property i.e. property bearing No. B-1296/1, Shastri Nagar, Delhi measuring 15 sq. Yards.
2. Reply to the application is filed by defendant No.1, who has opposed the applcation.
3. Plaintiffs filed the present suit for partition and possession, seeking partition of aforesaid property claiming that same devolved upon them and the defendants being the legal heirs of Sh. Megh Singh Chaudhary, who died intestate on 02.04.2013.
4. Defendant No.1 in his written statement has taken an objection that plaintiffs have filed the present suit for partition of only one property, whereas number of properties were jointly inherited by the parties after the demise of their father late Sh. Megh Singh Chaudhary. The details of the said property have been stated in para 4 of written statement. The same objection is taken by defendant No.1 even in reply to the present application.
5. It may be noted that it was after filing of written statement by defendant No.1, in which he disclosed the other properties inherited by the parties after the demise of their father, that the plaintiffs moved an appication under Order VI Rule 17 CPC on 02.03.2015, in which plaintiffs sought amendment with respect to valuation of the suit, but not with respect to the partition of the other properties as mentioned in para 4 of the written statement of defendant No.1.
6. At this stage, the court would like to reproduce para 4 of written statement of defendant No.1 and corresponding para of replication as under:-
Para 4 of written statement of defendant Para 4 of replication to written statement of No.1 defendant No.1 "That the plaintiffs have not come to this "That the contents of para No.4 of the Hon'ble Court with clean hands and have not preliminary objectionsare wrong and denied. It stated the true facts and suppressed the true is denied that the plaintiffs have not come to CS No.16965/2016 Aaryander Kumar Vs. Joginder Kumar Page No. 2 of 7 material facts from this Hon'ble Court. In this this Hon'ble Court with clean hands and have respect it is submitted that the father of the not stated the true facts and suppressed the parties Shri Megh Singh Chaudhary died true material facts from this Hon'ble Court. It is intestate on 02.04.2013 leaving behind the admitted that the father of the parties Shri plaintiffs and defendants as the only legal Megh Singh Chaudhary died inteste on heirs, who have inherited various properties as 02.04.2013 leaving beind the plaintiffs and left behind by the father i.e. (i) property bearing defendants as the only legal heirs, who have No. B-1296/1, Shastri Nagar, Delhi-52, inherited vaious properties as left behind by measuring about 15 sq. Yards (ii) property the father i.e. (i) That the contents of sub-para bearing No. L-147, area measuring 115 sq. No.1(i) and (ii) need no reply. That the Yards, situated at Shastri Nagar, Delhi-52 (iii) contents of sub-para No.(iii) of para 4 party property bearing No. D-53, area measuring 25 admitted and partly denied , however. It is sq. Yards, situated at Camp No.2, Nangloi, denied that the shop a mentioned in the sub- Delhi-41 in which shop bearing private No.1 on para that the shop No.2 on ground floor with ground floor with roof rights was given by the roof rights was given by the father to the father to the defendant No.1, while shop No.2 plaintiff No.2 as per the Memorandum of on ground floor with roof rights was given by Family settlement. In reply to sub-para No.(iv) the father to the plaintiff No.2 as per the of Para 4, it is sunmitted that agriculture land is Memorandum of Family settlement executed around 23 3/4 bigha which flls three khasra among the father Shri M.S. Chaudhary, and not 26 1/2 bigha. (v) That the contents of plaintiffs No.1 and 2, and defendant No.1 on sub-para No.v of para 4 are wrong and denied. 12.08.2005 and (iv) agriculture land in Khasra It is denied that one built up house measuring No.1123, 1224, 1230 and 1238, situated in the 5 sq. Yards in village Baragaon, District Etah, revenue estate of Village Baragaon, District UP (vi) That the contents of sub-para No. vi of Etah, Uttar Pradesh measuring about 26- 1/2 para 4 are wrong and denied. It is denied that bigha (v) one built up house measuring 50 sq. one built up house measuring 100 sq. Yards in Yards in Village Baragaon, District Etach, Uttar Village Baragaon, District Etah, UttarPradesh Pradesh (vi) one built up house measuring 100 (vii) That the contents of sub-para No.vii of sq. Yards in Village Baragaon, District Etah, para 4 are need no reply, it is matter of record.
UP (vii) one baithak measuring 200 sq. Yards It is denied that the present suit as filed by in Village Baragaon, District Etah, UP. All the the plaintiffs in respect of one jointly aforementioned properties have been owned property is legally not maintainable jointly inherited by the plaintiffs and and the patition can not be allowed unless defendants in equal shares and the and until all the properties are not divided / plaintiffs have deliberately and intentionally partitioned by metes and bounds among suppressed about these properties, despite the plaintiffs and defendants to the extent the fact that it is settled law that in a suit of their respective shares. It is further for partition all the jointly owned properties denied that the father during his life had are subject for partition. Therefore, the executed a Memorandum of Family settlement present suit as filed by the plaintiffs in dated 12.08.2005, which was exeuted among respect of one jointly owned property is the father, plaintiffs No.1 and 2 and defendant legally not maintainable and the partition No.1 in respect of some of the properties. It is can not be allowed unless and until all the further denied that the defendant No.1 has properties are not divided / partitioned by also incurred the huge medical treatement metes and bounds among the plaintiffs and expenditure of Rs.5,00,000/- approx. On the defendants to the extent of their respective treatement of his father, which all the legal shares. It is however submitted that the father heirs including the plaintiffs are liable to during his life had executed a Memorandum of contribute / share and divide and the Family Settlement dated 12.08.2005, which defendant No.1 is thus entitled to adjustthe was executed among the father, plaintiffs No.1 said treatement bill of Rs.5,00,000/- from the and 2 and defendant No.1 in respect of some suit property in case the same is sold out, of the properties. It is further submitted that otherwise the defendant No.1 reserves his the defendant No.1 has also incurred the huge right to take all legal course to recover the medical treatment expenditure of Rs.5,00,000/- respective share from the plaintiff and other CS No.16965/2016 Aaryander Kumar Vs. Joginder Kumar Page No. 3 of 7 approx. on the treatment of his father, which all defendants as the being the legal heirs." the legal heirs including the plaintiff are liable to contribute / share and divide and the defendant No.1 is thus etitled to adjust the said treatement bill of Rs.5,00,000/- from the suit property in cas the same is sold out, otherwisethe defendant No.1 reserves his right to take all legal course to recover the respective share from the plaintiff and other defendants as they being the legal heirs."
7. It may be noted in the corresponding para of replication, the plaintiff despite admitting that properties, besides the suit property, were inherited jointly by the plaintiff and defendants from their deceased father, have categorically pleaded that suit for partition of one property is maintainable and that one property alone can be divided and it is not necessary to seek partition of all the jointly inherited properties by metes and bounds.
8. There is only one objection to the application under Order XII Rule 6 CPC and the same is that the suit is for partial partition is not maintainable.
9. Therefore, the question before the court is whether suit for partial partition i.e. partition of only one or few of the jointly inherited properties is maintainable on behalf of one co-owner?
10. In the opinion of the court the answer to the question is in the negative for the following reasons:-
10.1. To avoid multiplicity of litigation.
10.2. To avoid confusion regarding jurisdiction of the trial Court and the forum of appeal, which may be different in case of partial partition as compared to complete partition.
10.3. For just partition, as parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts.
10.4. Lastly, because when partition is sought, the co-owner (who has jointly inherited the property) partitions his share in the inheritance and not only one property. The inheritance is partitioned as a whole and not in parts. The co-
owner divides/parts himself from the joint ownership of co-owners as a whole and not in part thereof.
11.In Kenchegowda v. Siddegowda, (1994) 4 SCC 294 Hon'ble Apex Court as CS No.16965/2016 Aaryander Kumar Vs. Joginder Kumar Page No. 4 of 7 regards maintainability of suit for partial partition observed as under:-
10. It is argued on behalf of the appellant that the learned Single Judge went wrong in converting the suits for declaration and injunction into one for partition when all the joint family properties were not made the subject-
matter of the suits nor were all the co-sharers impleaded. It is well-settled in law that a suit for partial partition is not maintainable. Merely because the plaintiff came to file an application under Order 6 Rule 17 CPC it would not mean it could be allowed and a preliminary decree for partition be passed. As a matter of fact, the causes of action are different. Therefore, the High Court went wrong in holding the larger relief of declaration of title and injunction even though not available to the plaintiff the smaller relief for partition could be granted.
16. Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate court. This being so, a decree for partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored. However, there shall be no order as to costs.
12. The reason for not permitting co-owner to seek partial partition in a suit for partition has been explained in judgment titled Govindrao v. Dadarao, 2004 SCC OnLine Bom 303, as under:-
16. On resume of the aforesaid authorities it would reveal that the general rule is that all the joint family properties should be brought into common hotchpotch and then seek partition of the same. A member of a joint property suing his coparceners for partition of family property is bound to bring into common hotchpotch the entire joint property in order that there may be complete and final partition of family properties that may be in his possession. The general rule is that initially suit for partition is brought by a corparcener against other coparceners, it should embrace the whole family property but this rule is subject to certain qualifications and exceptions. In the present case it is not in dispute that the plaintiff has filed suit for partition and separate possession of his half share in the suit house, without bringing into common hotchpotch the house property and open plot which are described in the written statement filed by him in Regular Civil Suit No. 85/86. The plaintiff even did not make any reference to these properties in his plaint and simply stated that the agricultural lands were partitioned by the partition deed dated 14-3-1959 between him and his brother Shrawan. It would thus reveal that there was already partition of some of the properties which were the agricultural lands by virtue of the said partition deed dated 14-3-1959.
CS No.16965/2016 Aaryander Kumar Vs. Joginder Kumar Page No. 5 of 7
18. It may be pertinent to note that the rule that a partition suit should embrace of the joint family property is recognized and firmly applied in order to bring the equitable partition by metes and bounds. If the rules were not recognized and firmly applied, the multiplicity of litigation would be the inevitable result. If the suit for partial partition is allowed to be instituted in fragments, the jurisdiction of the trial Court and the forum of appeal might be altered; it might be of paramount importance to a party litigant whether he should have a first appeal or a second appeal to the High Court, and whether it should at all be permitted to seek the judgment of the Judicial Committee with regard to the matters in controversy. The rule further ensures a just partition; parties might otherwise be greatly prejudiced as regards equitable distribution, retention of possession, liability for improvements, and adjustment of accounts. Therefore, in the present case, it is not possible to accept the contention of the learned counsel for the plaintiff that the suit for partial partition of the properties owned by the joint family is maintainable, without bringing into the common hotchpotch the entire joint house property of the parties. Therefore, it is quite obvious that authorities on which reliance placed by the learned counsel for the plaintiffs is totally misconceived and cannot be accepted.
13. Hon'ble Division Bench of Hon'ble Delhii High Court recently in Radhey Shyam Bagla v. Ratni Devi Kahnani 2014 SCC OnLine Del 7103, also faced with a plea of the suit for partition being bad for the reason of being for partial partition, held i) that subject to exceptional circumstances, a suit instituted for partition should include all the joint family properties; ii) the general principle is that a co- sharer filing a suit for partition against the other co-sharers has to bring all the joint properties into the hotchpot, failing which a suit may be dismissed on the ground of partial partition as the proper equity in a suit for partition will not be possible if all joint properties are not brought into the hotchpot; iii) the normal rule governing suits for partition is that it has to incorporate all partible coparcenary property and should implead all those entitled to a share; iv) however this rule is not a rigid and an inflexible one; reliance was placed on Mst. Hateshar Kuer v. Sakaldeo Singh 1969 (2) SCWR 414 laying down that the rule aims for preventing multiplicity of legal proceedings which results if separate suits were to be instituted in respect of fragments of joint estates and that normally it is more convenient to institute one suit for partition of all the joint properties for equitable distribution and adjustment of accounts - however this being a rule dictated by consideration of practical convenience and equity, may justifiably be ignored when in a given case there are cogent grounds for departing from it; v) however the said rule applies primarily to coparcenary property - where the parties are not coparceners but tenants in CS No.16965/2016 Aaryander Kumar Vs. Joginder Kumar Page No. 6 of 7 common, it makes a substantial difference in the applicability of the rule as no coparcener has a share in any particular property but there is no such basis for application of the rule to property which is held in common; vi) a distinction has to be made between jointly or commonly held property and coparcenary property; and, vii) a suit for partition of a common property as distinct from joint property is not liable to dismissal on the ground that all the joint property in respect of which partition may have been sought have not been included. 1
14. As the plaintiff despite the objection of the defendants has failed to seek amendment in the pleadings, rather has filed the present application for decree on admissions for partial partition of the properties inherited by him jointly with the defendants, hence the present suit is not maintainable in its present form and the same is liable to be dismissed with the liberty to the plaintiff to file a proper and comprehensive suit seeking partition of all the properties inherited by him along with the defendants.
15. Application is dispsed of and suit is dismissed with liberty to plaintiff to file a proper and comprehensive suit for partition of all the properties, jointly inherited by the parties after death of late Sh. Megh Singh Chaudhary.
16. Decree sheet be drawn accordingly.
17. File be consigned to Record Room after necessary compliance. Announced in the Open Court on 26.02.2018 (S.P.S. LALER) ADDITIONAL DISTRICT JUDGE-01, CENTRAL, TIS HAZARI COURTS, DELHI 26.02.2018 1 Sardar Jarnail Singh Vs Sardar Amarjit Singh 2016 SCC Online Delhi 4280 CS No.16965/2016 Aaryander Kumar Vs. Joginder Kumar Page No. 7 of 7