Delhi District Court
Indira vs Poonam on 7 June, 2023
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 189/2016
CNR No. DLNE01-001235-2016
Indira
W/o Sh. Kishore
D/o Late Hari Om
R/o T-130, Punjabi Basti,
Sabzi Mandi, Tikona Park,
Delhi. .....Plaintiff
Versus
Poonam
W/o Late Kewal Kishan
R/o B-9, New Seelampur, Delhi. ..... Defendant
Date of Institution : 29.03.2016
Date of Reserving Judgment : 07.06.2023
Date of Judgment : 07.06.2023
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant seeking the decree of partition, permanent injunction and possession.
2. Brief facts, as stated in the plaint are that the defendant is the real CS No. 189/2016 Indira Vs. Poonam Page No. 1 of 8 sister-in-law/bhabhi of the plaintiff. Brother and mother of the plaintiff had expired prior to the death of father of plaintiff. It is further stated that Late Hari Om that is the father of plaintiff and father-in-law of the defendant was exclusive owner of property bearing number B-9, New Seelampur, Delhi (hereinafter referred to as suit property), who had died intestate, on 17.02.2016. It is further stated that Late Hari Om had left only two legal heirs that Smt. Indira (daughter) and Smt. Poonam (daughter-in-law) respectively. It is further stated that the suit property therefore devolved upon the plaintiff and the defendant. It is stated that the suit property consisted of ground floor, first floor and second floor with roof rights and same is now in the possession of the defendant. It I further stated that after the death of Sh. Hari Om, plaintiff and the defendant had become the owner of the suit property in one half equal share of suit property. It is further stated that the suit property had not been partitioned with metes and bounds till date for which the plaintiff had requested the defendant on various occasions. But the defendant had not paid any heed to the request of plaintiff to get partitioned the suit property. It is further stated that the defendant had some illegal motives and she wanted to grab the share of the plaintiff as well in the suit property. It is further stated that on 28.02.2016, plaintiff had requested the defendant to get partitioned the suit property, but, she was threatened by the defendant. It is therefore requested that as the plaintiff is entitled to get her one half share of the suit property and hence, a decree of partition/possession be passed in favour of plaintiff keeping in view her share in the suit property.
3. Defendant has filed her written statement in which apart from denying all the allegations/contentions made by the plaintiff in her plaint, it is stated that the defendant is the owner of the suit property by virtue of Will, dated 18.02.2016, wherein the defendant was assigned all the CS No. 189/2016 Indira Vs. Poonam Page No. 2 of 8 absolute legal rights with regard to the suit property. It is also stated that this Will is duly registered with Sub Registrar-IV, Seelampur, Delhi. It is further stated that that the plaintiff was debarred from acquiring/claiming share in the suit property by the testator of the Will. It is further stated that that the testator had also disclosed about the declaration, dated 02.02.2005 regarding the debarring of the plaintiff from all his movable and immovable properties. It is further stated that the defendant is the absolute owner of the suit property and plaintiff has therefore no right and title in the suit property. Though, at the same time it is specifically admitted by the defendant that the suit property belongs to the deceased Hari Om. It is therefore requested that as the plaintiff has left with no cause of action so the suit of plaintiff be dismissed.
4. Replication to the written statement of defendant was filed which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement. It is stated in the replication by the plaintiff that the defendant has never bothered to produce/put on record the alleged Will, dated 18.02.2016, to which defendant is claiming rights over the suit property. It is specifically stated that Sh. Hari Om had died intestate, on 17.02.2016, and the alleged Will on which defendant is relying is forged and fabricated. It is further stated that Sh. Hari Om died on 17.02.2016 and the alleged Will of the defendant is stated to be of 18.02.2016 which is not understandable. It is further stated that the father of plaintiff was suffering from serious illnesses since last many years prior to his death and he was not even able to move properly. It is further stated that the defendant was not providing any medical treatment to her father and even at times not allowing the plaintiff to enter in the suit premises to look after her father. Plaintiff was thus forced to file the civil suit, on 19.11.2015, for allowing her to enter in the suit premises and to look after CS No. 189/2016 Indira Vs. Poonam Page No. 3 of 8 her father. It is stated that during the pendency of the suit, Sh. Hari Om had expired and hence, plaintiff had to withdraw that suit. It is stated that no doubt, father of plaintiff Sh. Hari Om since long was physically and mentally not in a position to execute any documents. Hence, the Will mentioned by the defendant can not be acted. It is stated that as Will is forged and fabricated thus, defendant had failed to produce even its's copy for bare perusal of the Court. It is further stated that the defendant is taking the bald objections just to grab the share of the plaintiff in the suit property. It is therefore requested that the plaintiff be given her share in the suit property.
5. On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff is entitled to decree of partition as prayed for? OPP
(ii) Whether the plaintiff is entitled for decree of possession as prayed for? OPP
(iii) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
(iv) Relief.
6. Plaintiff has led her piece of evidence. Plaintiff has got examined herself as PW1. She tendered her evidence by way of affidavit which is Ex.PW1/1 and relied upon the documents i.e. copy of aadhaar card of plaintiff as Ex.PW1/A (OSR), documents relating to the ownership/allotment by Municipal Corporation of Delhi in respect of suit property as Ex.PW1/B (colly) and the copy of site plan as Ex.PW1/C. PW1 was cross examined at length by Ld. Counsel for defendant. During the course of cross examination, PW1 has once again denied the suggestion put to her by Ld. Counsel for defendant regarding the execution of the CS No. 189/2016 Indira Vs. Poonam Page No. 4 of 8 Will/her debarment by her late father Plaintiff has also got examined Smt. Krishna as PW2. She tendered her evidence by way of affidavit which is Ex.PW2/A. During her examination in chief, PW2 deposed that Sh. Hari Om was the late brother of PW2. She has further stated that Sh. Hari Om was the exclusive owner of the property measuring 16 square yards bearing number B-9, New Seelampur, Delhi. She has further stated that Sh. Hari Om expired intestate on 17.02.2016 leaving behind only two legal heirs that is Smt. Indira (daguther) and Smt. Poonam (daughter-in-law). PW2 was cross examined at length by Ld. Counsel for defendant.
Defendant has miserably failed to lead any piece of evidence on her behalf despite ample effective opportunities having being granted to her.
7. I have heard the arguments advanced on behalf of parties and perused the case file carefully.
Written submissions have also been filed on behalf of plaintiff in which once again contents of plaint as well as the evidence by way of affidavit deposed by the plaintiff has been reiterated. Apart from this, it is specifically stated by the plaintiff that her father Late Hari Om was the exclusive owner of the suit property and he had died intestate. The plaintiff and the defendant are the only legal heirs and therefore, they are entitled to one half equal share of the suit property. Thereafter, the issues are discussed in the written submissions stating that all the issues must be decided in favour of plaintiff as plaintiff has successfully deposed before the Court and proves her case.
8. After recording the gist of evidence led by both the parties, let me record the findings on each issue.
Issue number 1, that is, whether the plaintiff is entitled to decree of CS No. 189/2016 Indira Vs. Poonam Page No. 5 of 8 partition as prayed for? The onus to prove this issue is on the plaintiff. Plaintiff has prayed for preliminary decree of partition in respect of suit property by suggesting the mode of partition in one half equal shares. There is no dispute as such with respect to the ownership of the suit property as defendant has expressly admitted Late Hari Om, father of the plaintiff as owner of the suit property. Even otherwise also, PW2 Smt. Krishna, sister of Late Hari Om had deposed that the suit property belonged to him.
It is pleaded by the plaintiff that Shri Hari Om had expired on 17.02.2016, leaving behind only two legal heirs that is Smt. Indira (daughter) and Smt. Poonam (daughter-in-law) respectively. The said fact was not disputed by the defendant in her written statement. But, at the same time, defendant had claimed herself to be the owner of the whole suit property by virtue of Will in favour of defendant qua the suit property is disputed by the plaintiff. Plaintiff has stated that her late father Hari Om had died intestate, on 17.02.2016, and the abovesaid Will is forged and fabricated as at the time of death and even before the same, her father was not in a condition to execute any Will being suffered from serious illnesses since long. It is also agitated by the plaintiff that despite having opportunities to produce the Will, defendant has never dared to produce the same or even its copy as it is forged and fabricated.
Defendant has also claimed that Late Hari Om, father of plaintiff had even debarred the plaintiff through publication in the newspaper "Rashtriya Sahara". However, the same fact has never been proved by the defendant either through documentary proof or by leading any cogent evidence to support her claim. Even the defendant has failed to cross examine the plaintiff on that aspect to cull something relevant in her favour. Admittedly, Late Hari Om is the owner of suit property as it is accepted position by the defendant as well. Again undisputably, plaintiff CS No. 189/2016 Indira Vs. Poonam Page No. 6 of 8 and defendant both are the legal heirs of deceased Late Hari Om. Though, defendant had claimed that Late Hari Om had executed a Will, dated 18.02.2016, in her favour but she has miserably failed to produce the same.
It has been time and again observed by the Hon'ble Superior Courts that even a license with respect to immovable property,once continue after the demise of licensee, is valuable property even if not immovable property and is partible among the legal heirs of the licensee. Also, the judgment in a Civil Suit is to be written on findings on issues framed in the suit and these issues which in turn arise from pleadings of the parties. It was never the plea of the defendant that suit property is not partible or that plaintiff is not one of the legal heirs of Late Hari Om. Reliance is placed upon Shyam Behari vs. Ram Kishan, 2013 SCC online Del 4110, Surjit Singh vs. Ekta Gulati 2012 SCC online Del 4233 and Gopi Chand vs. Geeta Devi & Ors., 2020 SCC online Delhi 2420. Thus, this Court is of the considered opinion that as per section 10 of the Hindu Succession Act, 1956, both plaintiff and defendant being daughter and daughter-in-law respectively of Late Hari Om are entitled for half shares each, being class-I legal heirs. Hence, this issue is decided in favour of plaintiff and defendant.
Issue number 2 and 3, that is, whether the plaintiff is entitled for decree of possession as prayed for? and whether the plaintiff is entitled for decree of permanent injunction as prayed for? Both the issues are taken up together as they are interconnected. The onus to prove both these issues is of course upon the plaintiff. Since issue number 1 has been decided in favour of the plaintiff and defendant, therefore, these issues are also decided in favour of the plaintiff and defendant.
9. In view of the facts and circumstances of the case, the suit of the plaintiff is decreed in the following terms:-Plaintiff and defendant shall be CS No. 189/2016 Indira Vs. Poonam Page No. 7 of 8 entitled to one half equal share in the suit property bearing number B- 9, New Seelampur, Delhi. The preliminary decree of partition be passed accordingly. Defendant to hand over the physical possession of one half equal share in the suit property to the plaintiff. The parties shall be entitled to exclusive possession of their respective shares in terms of preliminary decree. However, the appropriate method of partition of suit property shall require further inquiry, which shall be conducted in due course.
Further, the decree of permanent injunction is also passed restraining the defendant from selling, transferring, mortgaging or creating third party interest in the suit property.
10. Preliminary decree sheet be prepared accordingly.
(Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 7th June, 2023 CS No. 189/2016 Indira Vs. Poonam Page No. 8 of 8