Delhi District Court
Cs : 397/09 vs Sh. Jai Narian Mathur on 5 May, 2010
1
IN THE COURT OF SH. RAJENDER KUMAR SHASTRI
ADJ-06(CENTRAL) DELHI.
CS : 397/09
SH. JAI PRAKASH MATHUR,
S/O. SH. JAI NARIAN MATHUR,
R/O. VILLAGE MAJRI, P.S. KARALA,
DELHI-110081.
SECOND ADDRES
120, AUCKLAND ROAD,
LONDON, SC 19 2RP (U.K.) ....PLAINTIFF
VERSUS
1. SH. JAI NARIAN MATHUR
S/O. LATE SH. SHEESH RAM
R/O. JAGDAMBA NIWAS,
VILLAGE MAJRI, P.O. KARALA,
DELHI-110081.
ALSO AT :
20, CHARLES DRIVE, CUXTON,
ROCHESTER, KENT (U.K.)
ME2 IDP
2. SH. JAI DEEP MATHUR
S/O. SH. JAI NARAIN MATHUR
20, CHARLES DRIVE, CUXTON,
ROCHESTER, KENT (U.K.)
ME2 IDP
3. MRS. ANNAPURNA SOFAT,
W/O. SH. JANARDAN SOFAT,
D/O. SH. JAI NARAIN MATHUR
20, CHARLES DRIVE, CUXTON,
ROCHESTER, KENT (U.K.)
ME2 IDP ....DEFENDANTS
2
Date of Institution : 26.10.2005
Date of Judgment : 05.05.2010
Present: Sh. Mukesh Kumar, advocate for plaintiff.
Defendant in person.
JUDGMENT
This is suit for partition, possession and permanent injunction. As per his case, the plaintiff is son of defendant no. 1, while half blood brother of defendant no. 2 and 3. Grandfather of same (plaintiff) namely Sh. Sheesh Ram was owner of Land measuring 1 Bigha 10 Biswas in Khasra No. 132; 1 Bigha in Khasra No. 133 and 1 Bigha 40 Biswas in Khasra No. 194 situated in Lal Dora of Village Majri, P.O. Karala, Delhi. He expired in Mid 80's and was survived by six children (four sons and two daughters). Properties left by deceased Sheesh Ram were partitioned amount successors of latter. One of sons namely Sh. Ram Karan had pre- deceased Sheesh Ram and hence, wife and children of same took share of him Ram Karan. Father of plaintiff i.e. Defendant no. 1 got 1/4th share in land left by deceased Sheesh Ram, as described above.
Defendant no. 1 is a non resident Indian who usually lives in England and occasionally visits India. After partition took place as mentioned above, same returned to India to get possession of his share. Some construction also raised by him on property comprising in Khasra No. 132 and 133.
In the morning of 2.10.2005, the plaintiff came to know from his cousin namely Anil Kumar that defendant no. 1 was negotiating with some property dealers to sell property, in which plaintiff has also 1/4th undivided share. Plaintiff came to India from England and requested his father (defendant no. 1) not to dispose of or create any third party interest in it. The plaintiff also requested for partition of property and hand over 1/4th share of it to him but defendant refused to do so and hence, plaintiff has approached this court seeking relief mentioned above.
Defendant no. 1 is contesting the suit. Even maintainability of this case has been questioned by the defendant on the ground that during his lifetime (being a father), plaintiff as a son cannot claim partition of property 3 inherited by him from his forefathers. It is again the plea of defendant that being a British Citizen, the plaintiff is not entitled to hold agricultural land in India and also that there is no evidence that plaintiff was son of of defendant.
By filing replication, plaintiff reiterated his claim by controverting plea taken by defendant.
On the basis of pleadings of parties, following issues were framed on 13.7.2006 :-
1. Whether the suit is not maintainable in view of averments made in preliminary objection no. 2 of the written statement?
2. Whether the suit is not maintainable in view of averments made in preliminary objection no. 3 of the written statement?
3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? If so, to what effect?
4. Whether the plaintiff is entitled to a preliminary decree of partition as prayed for? OPP
5. Whether the plaintiff is entitled to a decree of injunction as prayed for? OPP
6. Relief.
In order to prove his case, plaintiff examined himself as PW2 and also examined Sh. Anil Kumar as PW1.
Defendant stood in the witness box and examined himself as DW1.
I heard Ld. Counsels appearing on behalf of both the parties. My findings issue wise are as under :-
ISSUE NO. 1.
As per defendant no. 1, the plaintiff who, even if, is his son cannot claim partition during his lifetime. I do not find much substance in this plea. It is well settled that every Hindu adult coparcener is entitled to demand partition whenever he likes. It was held by Gujarat High Court in case titled as "Aber Hamir Vs. Aber Duda AIR 1978 Gujarat 10" that under Mayukha Sub School of Mitakshara, assent of the father is not necessary to a suit against the grandfather and his co-laterals have partitioned by meets and bounds where there had already been severance of status. Mullah in his 4 book "Principles of Hindu Law, 20th Edition, Volume 10" has described that it is now settled law in Delhi that a son can ask for partition from the father.
This issue is thus decided against the defendant. ISSUE NO. 2.
It is not in dispute that the plaintiff as well as defendant no. 1, both are non resident Indians (NRI's) residing in United Kingdom. As per plaintiff, defendant no. 1 inherited land from his father. He i.e. Plaintiff is also entitled to have share in it. Admittedly, suit land was patrimony, which came in hands of defendant no. 1, after partition between hims and other successors of his later father. I could not found any provision which debars an NRI from succeeding agricultural land situated in India.
This issue is therefore decided against the defendant. ISSUE NO. 3.
The plaintiff has valued the suit for the relief of partition and possession, for the purpose of jurisdiction of this court at Rs. 4,20,000/- amd for the purpose of court fee at Rs. 1,05,200/-. Ad-volerum court fee is stated to have been affixed on plaint. In his affidavit Ext.Dw1/1, it is claimed by the defendant that value of property is more than 4,20,000/-. No evidence is lead to prove said fact, except said bald statement. In this way, defendant has failed to prove that value of suit property is more than Rs. 4,20,000/- as claimed by the same.
This issue is thus decided in favour of plaintiff. ISSUE NO. 4.
There is no quarrel on the point that father of defendant no.1, Sh. Sheesh Ram died leaving behind properties i.e. Land as detailed above, it was partitioned also and defendant no. 1 got 1/4th share in it. Defendant no. 1 disputed the plaintiff being his son. Though, in his affidavit Ext.Dw1/1, the former claimed that plaintiff has failed to prove himself being son of defendant no. 1. Said fact is not disputed in his another affidavit dated 4.4.2007 put on record. However, said defendant claimed that plaintiff had only 1/5th share in the estate and not 1/4th share.
It is not denied by defendant no. 1 that plaintiff was born to his 5 wife Smt. Dhan Kaur, who died in year 1957 during subsistence of their marriage. Section 112 of The Indian Evidence Act provides that the fact that any person was born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution, another remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that parties to the marriage had no access to each other at any time, when he could have been begotten. No evidence is lead by the defendant to establish that the same and mother of plaintiff had no access to each other, at the time when plaintiff was conceived.
As discussed above, while deciding issue no. 1, every adult Hindu coparcener is entitled to claim partition of ancestral property. The plaintiff has claimed 1/4th share in the property, which came in share of his father i.e. Defendant no. 1, while as per latter i.e. Defendant no. 1, plaintiff is entitled only for 1/5th share in it. Defendant has mentioned in his affidavit dated 4.4.2007 about fourth child having born to him. It is contended by Ld. Counsel for plaintiff that defendant no. 1 has only three children i.e. Plaintiff as well as defendant no.2 and 3. This fact is verified by PW1 (Anil Kumar) stated to be a nephew of plaintiff. The defendant did not contend during arguments hat he has four children and not three.
Considering all this, in my opinion, it is established on file that defendant no.1 has three children i.e. Plaintiff, defendant no. 2 and 3 and not the four. In this way, the plaintiff is entitled to get preliminary decree of partition having 1/4th share in it.
This issue is decided in favour of plaintiff.
ISSUE NO. 5.
Contending that it was disclosed by his cousin that defendant no. 1 was negotiating with some property dealers to sell property in question, plaintiff apprehends that defendant no. 1 may not dispose of / sell this property. This fact is not controverted by the defendant. Keeping in view said fact, plaintiff is entitled to have a decree of injunction as prayed. ISSUE NO. 6. (Relief).
On the reasons as discussed above, petition is allowed and 6 plaintiff is declared as entitled to have partition of property i.e. Land measuring 625 sq yds in Khasra NO. 132 and 133 and also land measuring 425 sq yds in Khasra No. 194 situated in Lal Dora of Village Majri, P.O. Karala, Delhi. Same has 1/4th share in it. Similarly, defendants, their agents, associates etc are restrained from selling, alienating or disposing of in any manner said property till disposal of this case / further orders.
A preliminary decree be prepared accordingly.
To come for consideration on mode of partition on 28.5.2010.
Announced in open court. (Rajender Kumar Shastri) on 05.05.2010. ADJ-06(Central) / Delhi