Delhi District Court
Sh. Rishi Ram Vashisht vs Sh. Jain Dass Jain (Since Deceased) on 19 January, 2015
IN THE COURT OF SHRI RAJ KUMAR: ADDL. DISTRICT
JUDGE17: TIS HAZARI COURTS : DELHI
Suit No. 548/14 (Old Suit No. 58/03)
Unique Case ID No. 02401C0226072003.
Sh. Rishi Ram Vashisht
S/o late Sh. B.D. Sharma,
R/o 37, Bazar Lane,
Jangpura, Bhogal, New Delhi110014. ........... Plaintiff.
VERSUS
1. Sh. Jain Dass Jain (since deceased)
Through his legal heir
Smt. Bimla Devi @ Smt. Bimla Jain,
W/o Late Sh. Jain Dass Jain,
R/o 46, Bazar Lane, Jangpura, Bhogal,
New Delhi110014.
2. Sh. Nirmal Kumar Jain,
S/o Late Sh. Vimal Prasad Jain,
R/o 131, Samman Bazar, Bhogal,
New Delhi110014.
3. Sh. Pramod Kumar Jain,
S/o Late Sh. Vimal Prasad Jain,
R/o 51, Jangpura Road, Bhogal,
New Delhi110014.
Suit No. 548/14 (Old Suit No. 58/03) Page No. 1/22
4. Ms. Sudha Rani Jain
W/o Late Sh. Dhaninder Kumar Jain,
R/o 133, Samman Bazar, Bhogal,
New Delhi110014. ......... Defendants.
Date of institution of the suit : 01.09.2003
Date on which order was reserved : 08.12.2014
Date of decision : 19.01.2015
SUIT FOR PARTITION AND RENDITION OF ACCOUNTS
JUDGMENT
The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that the property no. 46, Central Road, Jangpura, Bhogal, New Delhi, measuring about 131 sq. yards was owned by Late Sh. Anup Singh Jain and after his death, the said property had fallen to the share of his three sons namely Sh. Jain Dass Jain, Sh. Vimal Prasad Jain and Sh. Dhaninder Kumar Jain, who became the joint and undivided owners of 1/3rd share in the said property. It has been further stated that the other legal heirs of Late Sh. Anup Singh Jain had relinquished their rights in favour of the said three sons of Late Sh. Anup Singh Jain. It has been further stated that after the death of Sh. Vimal Prasad Jain, his wife Smt. Rukmani Devi and two sons namely Sh. Nirmal Kumar Jain and Sh. Pramod Kumar Jain succeeded to his 1/3rd share in the said property. It has been further stated that the Suit No. 548/14 (Old Suit No. 58/03) Page No. 2/22 lease of the said property along with other properties of Late Sh. Anup Singh Jain was mutated in the names of Sh. Jain Dass Jain, Sh. Dhaninder Kumar Jain (both sons of late Sh. Anup Singh Jain) and Smt. Rukmani Devi, Sh. Nirmal Kumar Jain and Sh. Pramod Kumar Jain (legal heirs of late Sh. Vimal Prasad Jain). It has been further stated that Sh. Dhaninder Kumar Jain, husband of the defendant no.4 died intestate on 10.12.1990 in respect of his 1/3rd undivided share in the said property, which devolved jointly upon his three legal heirs namely Ms. Sudha Rani Jain (defendant no.4 herein), Sh. Ashish Jain and Smt. Neena Jain, son and daughter of Late Sh. Dhaninder Kumar Jain. It has been further stated that Sh. Ashish Jain and Ms. Neena Jain relinquished their entire 2/3rd share in the said property in favour of their mother Smt. Sudha Rani Jain, who became the owner of 1/3rd undivided share in the said property alongwith the defendants no.1 to 3. It has been further stated that Smt. Rukmani Devi w/o late Sh. Vimal Prasad Jain had already expired on 22.10.2001. It has been further stated that the defendant no.4 has sold her 1/3rd undivided share in the said suit property to the plaintiff by means of registered Sale Deed dated 22.10.2002 and as such, the plaintiff has become coowner/colessee of 1/3rd undivided share in the said property. It has been further stated that the entire suit property is in possession of the tenants and the monthly rent is being paid by the tenants to Sh. Jain Dass Jain. It has been further stated that the rate of Suit No. 548/14 (Old Suit No. 58/03) Page No. 3/22 rent is not known to the plaintiff and as such, the plaintiff is entitled for rendition of the accounts to the extent of 1/3rd share. It has been further stated that the defendants no.1 to 3 have refused to share the rents/profits and as such, it is not possible to continue as joint owners by the plaintiff with the defendants no.1 to 3. It has been further stated that the defendants have refused to partition the suit property and hence, the present suit.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a preliminary decree of Partition of the suit property as shown in the site plan annexed with the plaint. The plaintiff has also prayed for a preliminary decree for rendition of the accounts.
3. Written statementcumcounterclaim has been filed on record by the defendant no.1 stating therein that the alleged sale deed executed by the defendant no.4 in favour of the plaintiff is in violation of the provisions of Section 22 of The Hindu Succession Act, 1956. The defendant no.1 has admitted that the suit property was owned by Sh. Anup Singh Jain at one point of time. The details of the legal heirs have also been admitted by the defendant no.1. However, the defendant no.1 has taken the stand that it was obligatory upon the defendant no.4 to give first option to the coowners, if at all, she wanted to sell her undivided share because the coowners have a preferential right to acquire the share Suit No. 548/14 (Old Suit No. 58/03) Page No. 4/22 of the defendant no.4. It has been further stated that the plaintiff, on the other hand, is bound to retransfer his share to the defendant no.1 on payment of Rs. 2,20,000/, the consideration, which was paid by the plaintiff to the defendant no.4. It has been further stated that the defendants no.2 and 3 have been unnecessarily added as defendants in the preset suit because the said defendants have already relinquished their 1/3rd undivided share in the suit property in favour of the defendant no.1 vide registered Relinquished Deed dated 19.08.2002. The defendant no.1 has admitted that Sh. Dhaninder Kumar Jain died intestate on 10.12.1990. The grievance of the defendant no.1 is that no opportunity was afforded to the defendant no.1 by the defendant no.4 prior to selling her share. It has been further stated that the property in question has always remained under the possession of the defendant no.1 to the exclusion of all other coowners. It has been further stated that all the tenants were inducted by the defendant no.1 and as such, the plaintiff is not entitled for any rendition of the accounts. It has been further stated that the defendant no.1 is now, the owner of 2/3rd undivided share in the property in question. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed.
4. In the counterclaim, the defendant no.1 has prayed that the counterclaim of the defendant no.1 be decreed directing the plaintiff to retransfer his 1/3rd undivided share in favour of the defendant no.1 on Suit No. 548/14 (Old Suit No. 58/03) Page No. 5/22 payment of Rs. 2,20,000/. It has also been prayed that in case, the plaintiff fails to execute the sale deed in favour of the defendant no.1, then, the sale deed may be executed through the medium of the Court.
5. Replicationcumwritten statement to the counter claim of the defendant no.1. has been filed on record by the plaintiff reiterating and reaffirming the stand as taken by the plaintiff in the plaint and denying the contents of the written statement filed by the defendant no.1.
6. The defendants no.2 and 3 have also filed on record their joint written statement, but the stand of the defendants no.2 and 3 is verbatim the same as is the stand of the defendant no.1. Defendants no.2 and 3 have taken one more preliminary objection to the effect that the market value of the suit property was not less than Rs. 25 lakhs at the time of the filing of the present suit and as such, the present suit has not been valued property for the purposes of court fees and jurisdiction. It has been further stated that this Court has no jurisdiction to entertain and try the present suit.
7. Replication to the written statement of the defendants no. 2 and 3 has also been filed on record by the plaintiff denying the contents of the written statement and reaffirming the stand as taken by the plaintiff in the plaint.
8. Written statement has also been filed on record by the defendant no. 4 admitting therein that she has sold her 1/3rd undivided Suit No. 548/14 (Old Suit No. 58/03) Page No. 6/22 share in the suit property to the plaintiff. The defendant no.4 has further stated that she has already sold her undivided share in property no. 56, Church Road, Jangpura, Bhogal, New Delhi in the year 1995. The defendant no.4 has further stated that she has also sold her 1/3rd share in property no. 51, Jangpura, New Delhi. It has been further stated that the defendants no.1 to 3 have not challenged the same. The defendant no.4 has alleged that the defendant no.1 is realizing the rents from the tenants in the suit property, but he was not paying the 1/3rd share of the rent to the defendant no.4 and as such, the defendant no.4 informed the defendants no.1 to 3 that she will sell her 1/3rd undivided share in the suit property.
9. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 18.11.2003 :
1) Whether the plaintiff has is not maintainable in terms of Section 22 of The Hindu Succession Act, 1956? OPD1
2) Whether the defendant no.1 is entitled to the counter claim as against the plaintiff for transfer of the share in question to him by executing a sale deal for consideration of Rs. 2,20,000/? OPD1
3) Whether the plaintiff is entitled to relief of partition with rendition of account in respect of the suit property?OPP
4) Whether the suit is properly value for the purpose of valuation of court fees? OPP Suit No. 548/14 (Old Suit No. 58/03) Page No. 7/22
5) Relief.
EVIDENCE :
10. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. PW1/A, the Relinquishment Deed dated 18.09.2002 as Ex. PW1/1, Sale Deed dated 22.10.2002 as Ex. PW1/2 and the site plan as Ex. PW1/3.
11. In the crossexamination done by the Ld. Counsel for the defendant no. 1, PW1 admits it to be correct that the latter property is entirely let out to different tenants. PW1 further states that Sh. Tirth Raj Vashisht is his son. PW1 further states that he was also a tenant in the said property during the year 1994 for about a year. PW1 further states that he does not remember whether those receipts reflected defendant no. 1 as the owner and landlord. PW1 further states that he cannot say whether in these premises the tenancy was created only by the defendant no. 1. PW1 further states that he cannot say as to whether in all the receipts issued to other tenants in the premises, defendant no. 1 is shown as the owner. PW1 further states that he has never been in possession of the suit property. PW1 further states that he does not know whether Smt. Sudha Rani, did not recover any rent at any point of time from anyone. Suit No. 548/14 (Old Suit No. 58/03) Page No. 8/22 PW1 further states that at the time of purchase, he gave no notice to the defendant no. 1 that he is purchasing the suit property. PW1 further states that he, however, cannot say anything about such a notice having given by Smt. Sudha Rani, the defendant no. 1. PW1 further states that he did not inquire about such notice. PW1 admits it to be correct that all the defendants came to possess legal right in respect of the suit property through Sh. Anoop Singh Jain. PW1 further states that he told the defendant no. 1 on several occasions as they are residing close by. PW1 further states that he, however, cannot give precisely the dates and time. PW1 further states that he does not know whether the defendant no. 1, 2 & 3 had relinquished their share in favour of the defendant no. 1 prior to this suit. PW1 further states that he came to know this only from the written statement.
12. In the crossexamination done by the Ld. Counsel for the defendants no. 2 & 3, PW1 admits it to be correct that all the five tenants in occupation of the suit property are tenants for commercial purposes. PW1 admits it to be correct that the suit property is situated in a commercial area. PW1 further states that he was not aware of the notified rates by the L&DO in the area of the suit property. By way of volunteer, PW1 states that the suit property falls in the area of DDA. PW1 further states that he was not aware of the market rate of the area notified by the DDA separately. PW1 admits it to be correct that the market value of the Suit No. 548/14 (Old Suit No. 58/03) Page No. 9/22 suit property, when he presented the plaint in this case was more than Rs. 25,00,000/. PW1 further states that the defendant no. 1 used to issue receipt to all the tenants on his behalf and on behalf of other defendants. PW1 further states that he has not seen, however, those rent receipts.
13. The plaintiff has further examined Sh. Sanjay Kumar Jain as PW2 and this witness, in his evidence by way of affidavit Ex. PW2/A, has supported the case of the plaintiff as per the stand of the plaintiff as contained in the plaint.
14. In the crossexamination done by the Ld. Counsel for the defendant no. 1, PW2 states that he was not aware that in this case, the suit property is 46, Central Road, Bhogal. PW2 further states that no other property is in issue in this case. PW2 admits it to be correct that the entire suit property is let out to the tenants. PW2 also admits it to be correct that the defendant no. 1 alone is dealing with the tenants in all respects. PW2 denies the suggestion that the defendant no. 1 alone used to collect and appropriate the entire rent for himself. PW2 further states that in his presence, however, the rent collected was never distributed to others. PW2 further states that the defendant no. 4 has told him that the rent was appropriated by all the defendants no. 1, 2 and 3. PW2 further states that the defendant no. 4 had verbally informed the other defendants before selling the suit property to the plaintiff. PW2 further states that no written notice, however, was given to them. PW2 further states that about Suit No. 548/14 (Old Suit No. 58/03) Page No. 10/22 one and a half years that the defendant no. 4 verbally informed the other defendants. PW2 further states that the defendant no. 4 is mentally sound even today. PW2 further states that she is in Delhi and can be examined as a witness. PW2 admits it to be correct that his brotherinlaw i.e. the son of the defendant no. 4 has accompanied him today to the Court.
15. In the crossexamination done by the Ld. Counsel for the defendants no. 2 and 3, PW2 states that he cannot say if the market value of the suit property exceeds Rs. 25 Lacs on the date the plaint was presented in this case. PW2 further states that in his presence, the defendant no. 4 had told the defendant no. 1 about her intention to sell her share in the suit property as the property was yielding much. PW2 further states that he cannot give month, date and year.
16. In rebuttal evidence, the plaintiff has examined Sh. Tirath Raj Vashisht as PW3 and this witness, in his evidence by way of affidavit, has supported the case of the plaintiff as per the stand of the plaintiff as contained in the plaint. He has filed on record his evidence by way of affidavit as Ex. PW3/A, the Rent Deed as Ex. PW3/1, Surrender of Possession Letter dated 14.05.1995 as Ex. PW3/2, Certified copy of Relinquishment Deed dated 08.05.1995 by the defendant no. 1 in favour of defendant no. 4 as Ex. PW3/3, Certified copy of Relinquishment Deed dated 08.05.1995 by Sh. Neena Jain and Sh. Ashish Jain in favour of his mother defendant no. 4 as Ex. PW3/4 and the certified copy of Sale Deed Suit No. 548/14 (Old Suit No. 58/03) Page No. 11/22 by the defendant no. 4 in favour of one Sh. Avtar Singh and Sh. Preet Pal Singh as Ex. PW3/5.
17. In the crossexamination done by the Ld. Counsel for the defendant no. 1, PW3 states that the defendant no. 1 had told him that he was managing the property on behalf of all the coowners. PW3 further states that he used to get the receipt on payment of rent through Sh. Jain Dass. PW3 further states that in the receipts issued to him Sh. Jain Das Jain used to be shown as the owner/ landlord of the property under his tenant. By way of volunteer, PW3 states that he was signing on behalf of all the coowners. PW3 further states that this fact that he was signing on behalf of all the coowners was not written on the receipts issued to him. PW3 further states that the tenancy agreement was executed between him and Sh. Jain Das Jain. PW3 further states that this fact that he was managing the property on behalf of all the coowners was not mentioned in the rent agreement. PW3 further states that he has used the word 'we' in para no. 2 in line no. 3 of the affidavit Ex. PW3/A and by this, he means himself, his brother Sh. Pushkar Raj Vashisht and his father, the plaintiff herein. PW3 further states that his father did not know the facts mentioned in para no. 2 of his affidavit. PW3 further states that his father knew about the facts mentioned in para no. 3 of his affidavit when the suit was filed and the property was purchased. PW3 further states that he had read the contents of the written statement and the counterclaim of the Suit No. 548/14 (Old Suit No. 58/03) Page No. 12/22 defendant no. 1 after the issues were framed in this case. PW3 further states that he had also read the replication and the written statement of the counterclaim filed by the plaintiff before the framing of issues. PW3 further states that he had told the plaintiff about the said facts when he has approached him to give evidence in this suit. PW3 further states that at that time, he told his father that why these facts have not been mentioned in the replication/ written statement.
18. The defendant has examined himself as DW1 and in his evidence by way of affidavit Ex. DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant in the written statement. This witness has filed on record his affidavit as Ex. DW1/A, photocopy of the Relinquishment Deed as Ex. DW1/1 and the photocopies of the Lease Deeds in between the defendant no. 1 and three different tenants in the suit property as Ex. DW1/2 to DW1/4.
19. In the crossexamination, DW1 states that there are five tenants in the property, besides the tenants mentioned his affidavit Ex. DW1/A. DW1 further states that he has not prepared any statement of accounts in respect of the rent realized from all the tenants from the last 3 years. DW1 further states that he has been maintaining counter of the rent receipts of all the rents as and when received by him from the tenants. DW1 further states that he has got the rent receipt book upto the month of April which he has not brought today. DW1 further states that he can Suit No. 548/14 (Old Suit No. 58/03) Page No. 13/22 produce it before this Hon'ble Court. DW1 denies the suggestion that the defendant no. 4 had been demanding rent of the premises from various tenants which he had not paid. DW1 further states that no notice was issued by him either to defendant no. 4 or to the plaintiff, even after he came to know about the property in question, being sold. DW1 admits it to be correct that the defendant no. 4 was owner of onethird undivided share of the suit property. DW1 denies the suggestion that the defendant no. 4 had sold his undivided share to the plaintiff or that she was not obliged to offer the sale of her share to the defendant no. 4. DW1 denies the suggestion that she has sold her share in the undivided property.
20. I have carefully gone through the entire material available on record and heard the rival submissions of Ld. counsels for both the parties. Both the parties have filed on record their written final arguments as well. I have also carefully gone through the written final arguments filed on record by the both the parties.
21. My issuewise finding on the abovesaid issues is as under:
Issues No. 1 to 4 :
22. All these issues have been taken up together as the same are connected interse and overlap each other. Issues no. 1 and 2 pertain to the objections of the defendant no. 1 as contained in his written statement and as such, the onus to prove these issues has been placed upon the Suit No. 548/14 (Old Suit No. 58/03) Page No. 14/22 defendant no. 1. Issues no. 3 and 4 pertain to the prayer clause of the present suit and as such, the onus to prove these issues have been placed upon the plaintiff.
23. The defendants no. 1, 2 and 3, in their written statement, have not denied that the property bearing no. 46, Central Road, Jangpura, Bhogal, New Delhi was owned by late Sh. Anup Singh Jain. It has also not been denied that after the death of Sh. Anup Singh Jain, the said property devolved on his three sons namely Sh. Jain Dass Jain, Sh. Vimal Prasad Jain and Sh. Dhaninder Kumar Jain, who became the joint and undivided owners of 1/3rd share in the said property. It has also not been denied that Sh. Vimal Prasad Jain expired and the LRs left behind by deceased Sh. Vimal Prasad Jain, his wife namely Smt. Rukmani Devi and two sons namely Sh. Nirmal Kumar Jain and Sh. Pramod Kumar Jain succeeded to his 1/3rd share in the suit property. It has also not been denied that Sh. Dhaninder Kumar Jain, the husband of the defendant no. 4 died intestate on 10.12.1990 in respect of his 1/3rd undivided share in the said property, which jointly devolved upon his three legal heirs namely Smt. Sudha Rani Jain (defendant no. 4), Sh. Ashish Jain and Smt. Neena Jain. It has also not been denied that Sh. Ashish Jain and Smt. Neena Jain relinquished their shares in the said property in favour of their mother Smt. Sudha Rani Jain (defendant no.4), who became the owner of 1/3rd undivided share in the said property alongwith defendants no. 1 to 3. It Suit No. 548/14 (Old Suit No. 58/03) Page No. 15/22 has also not been denied that the defendant no. 4 sold her 1/3rd undivided share in the said property to the plaintiff by means of registered Sale Deed dated 22.10.2002. The stand of the defendants is that the defendant no. 1 has preferential right by virtue of Section 22 of the Hindu Succession Act and as such, the sale deed in favour of the plaintiff dated 22.10.2002 executed by the defendant no. 4 is in violation of Section 22 of the Hindu Succession Act.
24. As such, the vital question to be considered by this Court is as to whether Section 22 of the Hindu Succession Act is applicable and as to whether the defendant no. 1 had any preferential right to purchase the share of the defendant no. 4 or not.
25. In the written final arguments, it has been argued by the defendant no. 1 that from the crossexamination of PWs, it is apparently clear that no notice was given to the defendant no. 1 before purchasing of 1/3rd share of the suit property from the defendant no. 4. It has been further argued that Section 22 of the Hindu Succession Act can also be exercised, when the transaction of sale has already taken place. Ld. Counsel for the defendant no. 1 has relied upon an authority cited as 1(2009) CLT 74 titled as Arati Das vs. Bharati Sarkar & Ors., wherein the Hon'ble Calcutta High Court has held as under :
"(i) Hindu Succession Act, 1956 - Section 22 -
Partition Act - Section 4 - Preemption - Accrual of right - Suit No. 548/14 (Old Suit No. 58/03) Page No. 16/22 Under Section 22 of Hindu Succession Act, such right has been conferred upon preemptor even before actual transfer if any of the heirs of Class I proposes to transfer his undivided share - Even if transfer has taken place, right of preemptor under this section is not lost - It is absurd to suggest that right conferred upon heir as provided in Section 22(1) can be frustrated by merely completing transfer without disclosing intention of transferor to persons who have right of preemption."
26. It is true that from the crossexamination of PWs, it can be safely inferred that no notice of the sale of the share of the defendant no. 4 was given to the defendant no.1, either by the plaintiff or by the defendant no. 4, but it has to be seen that the defendant no. 4 is not the Class 1 legal heir of late Sh. Anup Singh Jain. I am of the opinion that the Ld. Counsel for the plaintiff has rightly pointed out that since the defendant no. 4 does not fall under the category of Class 1 legal heir of late Sh. Anup Singh Jain and as such, Section 22 of the Hindu Succession Act, 1956 does not put any bar for the grant of relief to the plaintiff. It has to be seen that in the authority cited as AIR 1999 PUNJAB & HARYANA 254 titled as Kamal Goel vs. Purshottam Dass, it has been held by the Hon'ble High Court of Punjab and Haryana that :
"From a reading of above Section, it is clear that it Suit No. 548/14 (Old Suit No. 58/03) Page No. 17/22 confers a right on Class 1 heir only to seek the transfer of property in his or her name when the other coheir proposes to sell the property. This Section is also applicable to the interest already transferred, but the intention of enacting the Section is to see that the property will remain in the hands of coheirs only and to prevent the strangers from acquiring any interest of the coheir. Further it is clear that the provisions of this Section are confined only to Class1 heirs specified in the Schedule. It is only a personal right given to one or other of the coheirs. That right is neither transferable nor inheritable. In such cases, the common law maxim actio personalis moriturcum persona (a personal right of action dies with the person)."
27. The Hon'ble High Court of Delhi as well in CS (OS) No. 1229 of 2008 titled as Manjeet Kaur & Ors. Vs. Daya Singh Alias Suphwas Srichawla, has held as under :
"13. As far as Plaintiff Nos. 2 to 5 are concerned, they were parties to the earlier partition suit CS (OS) 1196 of 1988 in which the order dated 25th April 2008 recording the fact of transfer of the shares of Shri Sukhdev Singh and Shri Manjeet Singh to Shri Parshottam Chawla by the relinquishment deed was recorded in their presence. That Suit No. 548/14 (Old Suit No. 58/03) Page No. 18/22 order has become final. Plaintiff Nos. 2 to 5 cannot be permitted to reopen the issue concerning their share in the suit CS (OS) No. 1229 of 2008 batch Page 9 of 10 property. Further, the decision in Kusum Kumria v. S.P. Kumria precludes them from claiming any preemptive right under Section 22 HSA since they are not Class 1 heirs of late Shri Seth Narain Singh."
28. From the abovestated authorities of the Hon'ble High Court of Delhi and the Hon'ble High Court of Punjab and Haryana, it is apparently clear that Section 22 of the Hindu Succession Act confers the right on Class 1 heir only to seek the transfer of the property in his name, when the other coheir proposes to sell the property. It is also crystal clear from the reading of the abovestated authorities that the right is neither transferable, nor inheritable and the right under Section 22 of the Hindu Succession Act is merely a personal right given to one or the other coheir. As such, I have no hesitation to hold that the defendant no. 1 has utterly failed to prove on record that he is entitled for the counterclaim or that the suit is not maintainable in terms of Section 22 of the Hindu Succession Act. Accordingly, I hereby decide issues no. 1 and 2 against the defendants and in favour of the plaintiff.
29. As stated by me hereinabove, DW1, in the cross examination, has categorically admitted that the defendant no. 4 was the Suit No. 548/14 (Old Suit No. 58/03) Page No. 19/22 owner of 1/3rd undivided share of the suit property. It is not in dispute that by virtue of the Sale Deed, certified copy of which is there on record in the form of Ex. PW1/2, the plaintiff purchased 1/3rd share of the defendant no. 4. It has also been brought on record that the defendants no. 2 and 3 have already relinquished their 1/3rd share in the suit property in favour of the defendant no. 1. Copy of the Relinquishment Deed executed by the defendants no. 2 and 3 in favour of the defendant no. 1 in the form of Ex. DW1/1 is already there on record. As such, the defendant no. 1 has become the owner of 2/3rd share in the property in question. Since, the plaintiff has been able to prove his case for partition for 1/3rd share, I am of the opinion that the plaintiff is entitled for 1/3rd share in the suit property as shown in red colour in the site plan Ex. PW1/3 on record and the defendant no. 1 is entitled for 2/3rd share in the suit property.
30. The plaintiff has also sought for the relief of rendition of accounts. It has to be seen that PW1 i.e. the plaintiff herein, in the cross examination, has categorically stated that he cannot say as to whether in the premises in question, the tenancy was created only by the defendant no. 1 and he also cannot say as to whether in all the receipts issued to the tenants, the defendant no. 1 has been shown as the owner. Similarly, PW2 also admits it to be correct, in the crossexamination, that the entire suit property is let out to the tenants and that the defendant no. 1 alone is dealing with all the tenants in all respects. As such, I am of the opinion Suit No. 548/14 (Old Suit No. 58/03) Page No. 20/22 that the plaintiff has not been able to make out a case for rendition of accounts.
31. Accordingly, I hereby decree the suit of the plaintiff partly and pass a preliminary decree of partition declaring that the plaintiff is entitled for 1/3rd share in the suit property as shown in red colour in the site plan Ex. PW1/3 on record and the defendant no. 1 is entitled for 2/3rd share therein. The claim of the plaintiff for rendition of the accounts is hereby declined. Issue no. 3 stand decided accordingly.
32. Now, coming to the issue of valuation, the Hon'ble High Court of Delhi in CS (OS) No. 663/2011 titled as Krishna Gupta and Anr. Vs. M/s Rajinder Nath & Co. HUF and Ors. decided on 11.02.2013 has held that :
"3....The law is wellsettled that the valuation of a suit for the purposes of Courtfee depends upon the prayers made in the plaint and in partition suits where immovable property sought to be partitioned is with the tenants, the co owners are deemed to be in constructive possession."
33. The Hon'ble High Court of Delhi in the abovestated authority has held further that :
"In view of the averments made in the plaint where the plaintiffs claim to be in joint and constructive possession of the suit properties partition whereof is sought, the Court Suit No. 548/14 (Old Suit No. 58/03) Page No. 21/22 is of the opinion that at this stage, they are only required to pay fixed court fees as per Article 17(vi) of Schedule II of the Court Fees Act, 1870 and not ad valorem court fees on the share claimed by them."
34. I am of the opinion that the ratio of the abovestated authority is squarely applicable to the facts and circumstances of the present suit. To my mind, the defendants have utterly failed to prove that the suit has not been valued properly for the purposes of court fees. Accordingly, I decide issue no. 4 against the defendants and in favour of the plaintiff. Relief :
35. In the light of my findings on the foregoing issues, I hereby decree the suit of the plaintiff partly and pass a preliminary decree of partition to the effect that the plaintiff is entitled for 1/3rd share in the suit property bearing no. 46, Central Road, Jangpura, Bhogal, New Delhi, measuring about 131 sq. yards as shown in red colour in the site plan Ex. PW1/3 on record and the defendant no. 1 is entitled for 2/3rd share therein. Decreesheet be drawn accordingly by the Reader.
Announced in the open court (RAJ KUMAR)
on this 19th day of January 2015. ADJ17 (Central)
Tis Hazari Courts, Delhi.
Suit No. 548/14 (Old Suit No. 58/03) Page No. 22/22