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Delhi High Court - Orders

Pravir K Vohra & Ors vs Tarun K Vohra on 18 November, 2022

Author: Sanjeev Narula

Bench: Sanjeev Narula

                          $~O-2
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      CS(OS) 508/2021
                                 PRAVIR K VOHRA & ORS.                                             ..... Plaintiffs
                                                       Through:       Mr. Amit Bhatia and Ms. Arzoo Raj,
                                                                      Advocates.

                                                       versus

                                 TARUN K VOHRA                                                   ..... Defendant
                                                       Through:       Mr. Ravi Gupta, Senior Advocate
                                                                      with Mr. Kapil Sankhla and Mr.
                                                                      Akhilesh Aggarwal, Advocates.

                                 CORAM:
                                 HON'BLE MR. JUSTICE SANJEEV NARULA
                                              ORDER

% 18.11.2022 REV PET. 111/2022 in CS(OS) 508/2021

1. For sake of clarity, order under review [hereinafter "impugned order"], is extracted hereinbelow: -

"1. The Plaintiffs had filed the present suit seeking a decree of partition declaring Plaintiffs and Defendant to be the owners of 1/4th undivided share each of property bearing No. D-7/7, Vasant Vihar, New Delhi comprising of Part Basement and Ground Floor (left hand side) of land measuring 780 square yards and the land underneath [hereinafter the "Suit Property"].

2. The Plaintiffs and Defendant are brothers. It is also not in dispute between them that the property originally jointly belonged to late Shri. B.B. Vohra and Smt. Primla Vohra. Late Shri. B. B. Vohra died intestate on 8th September, 1997- which is also undisputed. After his death, the property devolved upon the Plaintiffs, the Defendant and Smt. Primla Vohra. Thereafter, unfortunately Smt. Primla Vohra passed away on 1st June, 2019. According to the Plaintiff, Smt. Primla Vohra died intestate, however, Defendant claims that she executed a Will dated 14th January, 2014. However, counsel for the Defendant does not dispute that even under the Signature Not Verified Digitally Signed CS(OS) 508/2021 Page 1 of 5 By:SAPNA SETHI Signing Date:24.11.2022 18:26:22 Will, the 1/4th share which belong to Smt. Primla Vohra was bequeathed to all the parties to the suit in equal share.

3. In view of the above, therefore, it clearly emerges that in so far as the Suit Property is concerned, there is no dispute between the parties as to their share therein.

4. Accordingly, a preliminary decree is passed, declaring the Plaintiffs No. 1-3 and the Defendant, as owner of 1/4th share each, in respect of the Suit Property, along with 1/4th share each to the proportionate land rights in the land underneath.

5. All the parties agree that the property cannot be partitioned be metes and bounds. Counsel for the parties state that they will apply for a proclamation of sale and accordingly, a final decree has to be passed.

6. List on 19th April, 2022."

2. Mr. Ravi Gupta, Senior Counsel for Defendant/ Review-Applicant, has no objection qua declaration of shares of parties in respect of the suit property being - D-7/7, Vasant Vihar, New Delhi and observations made in the impugned order, up to paragraph No. 4, are not in controversy. However, he argues that there is an error apparent on face of the record in respect of observations/ findings given in paragraph No. 5. He submits that apart from the suit property, mother of the parties (late Smt. Primla Vohra), was owner of two more immoveable properties viz. (a) a flat situated in Vasant Kunj, New Delhi, and (b) agricultural land in Sonipat, Haryana [hereinafter "Vasant Kunj property" and "Sonipat agricultural land", respectively]. According to review applicant, above noted properties are subject matter of Will dated 14th January, 2014, which finds mention in the impugned order. Mr. Gupta states that since the said Will is disputed by Plaintiffs and since it has not been included in suit for partition, inter se division of suit property is impermissible. The division must be postponed awaiting conclusion of title Signature Not Verified Digitally Signed CS(OS) 508/2021 Page 2 of 5 By:SAPNA SETHI Signing Date:24.11.2022 18:26:22 dispute in respect of Vasant Kunj property and Sonipat agricultural land and therefore, Court has erred by proceeding to pass a final decree, as per paragraph No. 5 of the impugned order.

3. Per contra, Mr. Amit Bhatia, counsel for non-Applicants/ Plaintiffs, states that like the suit property, other two properties, which are purportedly subject matter of the Will propounded by the review applicant are not joint family properties. The rights of parties, in respect thereof is that of tenants- in-common i.e., they are all co-owners. Thus, in law there is no bar for division of the suit property as rights in respect of each property is independent and parties need not seek division of all property together. The rule for not entertaining a piecemeal partition suit, is attracted at the discretion of the court, in relation to suit pertaining to joint family properties and not properties where rights are that of tenants-in-common.

4. Having considered the afore-noted submissions advanced by counsel for parties, and the view taken by this Court in Sardar Jarnail Singh v. Sardar Amarjit Singh and Ors,1 and the decision of the Division Bench in Radhey Shyam Bagla v. Ratni Devi Kahnani,2 this Court finds no merit in the contention urged by Mr. Gupta.

5. The suit property is admittedly not a joint family property and would therefore, devolve on the parties either by intestate or testamentary succession. In either case, since there is no dispute in respect of the shares, 1 2016 SCC OnLine Del 6666 : MANU/DE/2783/2016.

2015 SCC OnLine Del 7103 : MANU/DE/3331/2014.

the Court has passed a preliminary decree. Since the parties agreed that partition is not possible by metes and bounds, directions were issued in paragraph No. 5 of the impugned order. Be that as it may, rights of parties in respect of suit property and other two properties noted above are based on succession and parties are, at best, tenants-in-common. There is no quarrel before this Court that the afore-said said properties are not joint family properties. Therefore, division of the suit property does not have to await the adjudication and/ or settlement of disputes regarding other properties. In this regard, findings of the Division Bench in Radhey Shyam Bagla as summarized in Sardar Jarnail Singh (supra) are relevant and are reproduced hereinbelow: -

"7. A Division Bench of this Court recently in Radhey Shyam Bagla Vs. Ratni Devi Kahnani, 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 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 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 Signature Not Verified Digitally Signed CS(OS) 508/2021 Page 4 of 5 By:SAPNA SETHI Signing Date:24.11.2022 18:26:22 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."

6. In light of the above, in the opinion of the Court, order under review, has no error on the face of the record. No ground is made out to review the same.

7. Dismissed.

CS(OS) 508/2021

8. List before the Roster Bench for further proceedings on 25th November, 2022.

SANJEEV NARULA, J NOVEMBER 18, 2022 nk (corrected and released on 24th November, 2022) Signature Not Verified Digitally Signed CS(OS) 508/2021 Page 5 of 5 By:SAPNA SETHI Signing Date:24.11.2022 18:26:22