Delhi District Court
Mrs. Kanta Shiva vs Mrs. Vijayshree Verma & Ors on 21 April, 2017
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Suit No. 652/16
CIS No.10366/16
In the matter of:
Mrs. Kanta Shiva ..........Plaintiff.
Vs
Mrs. Vijayshree Verma & Ors. .........Defendants.
Vide this order, I shall decide the application filed by the
defendants u/o 7 Rule 11 seeking rejection of the plaint.
1. The plaintiff, one of the five daughters of late Sh. Karan
Singh Verma seeks partition of the estate of Late Sh. Karan Singh
Verma besides other reliefs. The present application u/o 7 Rule 11
seeking rejection of the plaint is filed on behalf of defendants no. 1 to
5. The defendants no.1 to 5 are the legal heirs of the deceased son of
Sh. Karan Singh Verma, namely Sh. Satish Kumar Verma. The
defendants 1 to 5 seek rejection of the plaint on the ground that the
suit for declaration, partition, rendition of account and recovery of
possession in respect of properties; (i) bearing house No.C3, New
Agra; (ii) Delhi Land forming part of Building, Municipal No.1426
A, Vajir Nagar, Kotala Mubarakpur, Delhi; (iii) 300 share of Agra
Charamkala Kendra (P) Ltd.; (iv) 1900 share of Pooja Presetress
Cement Industries (P) Ltd.; instituted on 19.11.2008 is without any
CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 1 of 20
cause of action as the claims of the plaintiff are not only bereft of
merits but are also highly far fetched preposterous and untenable and
is without any cause of action by virtue of proviso substituted to
Section 6 of the Hindu Succession (Amendment) Act, 2005. Ld.
counsel for the applicant/defendants submits that from bare reading of
the present plaint it is clear that the present action has been instituted
before this Hon'ble Court without any causa causans. In other words,
the present action does not disclose a cause of action. And the
contention of the plaintiff that she became a coparcener, by virtue of
amendment to Hindu Succession (Amendment) Act 2005, in her own
right in the coparcenary properties owned by her deceased father late
Sh. Karan Singh Verma is devoid of any merit by virtue of proviso to
the section 6 of Hindu Succession Act 1956. Even otherwise, the
present suit could not have been instituted in the first place itself in
the absence of any documentary or evidentiary proof in support
thereof. In other words, the very foundation/baseline of the present
suit itself is devoid of terra firma. Further, the plaintiff has knowingly
made false and incorrect averments as whereas in para 7 the plaintiff
has inter alia made the following averments:
"That thereafter out of greed the plaintiff's brother
(husband of defendant no.1 on the basis of manufactured documents
started claiming himself as sole successor of his father and applied
for mutation of said "Agra House" exclusively in his name, under
Section 213 (1) of U.P. Town Municipal Act, 1959. The municipal
official without serving any notice this respect to the plaintiff effected
the mutation of "Agra house" in the name of late Satish Kumar
CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 2 of 20
Verma on 20.11.2002, this mutation is illegal. "
On the other hand, the plaintiff herself has filed attested
copy of notice dated 8.10.2002 issued by Town Municipality Agra,
u/s 213 (1) relating to change of mutation of "Agra house." That the
plaintiff has made the false averments with the knowledge that the
averments are false in order to cover the period of limitation to
challenge the Will after 23 years of the death of the father of the
plaintiff and after 17 years of the demise of the brother though the
plaintiff was having the knowledge of existence and authenticity of
the Will as the properties and shares were admittedly transferred in
the name of late Sh. Satish Kumar Verma on the basis of the Will.
The suit of the plaintiff is hopelessly barred by limitation as the
period of limitation for the relief sought by the plaintiff is to be
calculated as per Article 56,65,109, 110 and 103 of the Schedule.
According to provision of Schedule of Limitation Act, 1963 the
period for limitation for relief for declaration is 3 years under Article
56 from the date when right to sue accrues, for possession of
immovable property under article 65 is 12 years from the day when
the possession of the defendant becomes adverse to the plaintiff, to set
aside his father's alienation of ancestral property under article 109 is
12 years when the alinee takes possession of property, to enforce a
right to share in joint family property under Article 110 is 12 years
when the exclusion known to the plaintiff and, for any suit for which
no period of limitation is provided elsewhere in the schedule is 3
years when the right to sue is accrued. That admittedly late Sh. Karan
Singh Verma father of plaintiff died on 6.3.1986, Smt. Ramavati
CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 3 of 20
Mother of plaintiff died 10.09.1992 and Sh. Satish Kumar Verma
brother of plaintiff died on 21.04.2004. Interestingly after about 23
years of demise of her father on 6.3.1986 and 17 years of death of
Satish Verma on 10.09.1992, the plaintiff for the first time is claiming
coparcenery rights and seeking declaration of Wills dated 15.06.1985
bequeathing "Agra House" and 22.07.1985 bequeathing Delhi
property in favour of late Sh. Satish Verma husband of defendant
no.1, are forged/illegal/unlawful document. Moreover the suit of the
plaintiff is undervalued as the suit is valued for Rs.60,00,000 while
the market value of the suit property is several crore of rupees. Even
otherwise, a bare perusal of the plaint on record reveals that there is
no basis whatsoever for filing the present suit and the plaintiff is in no
manner entitled to the relief(s) claimed in the present proceedings as
per proviso appended to amended Section 6 of the Hindu Succession
Act. The present suit is thus bound to be rejected inter alia in
accordance with order 7 Rule 11 CPC
2. I have heard the Ld. counsels and perused the record with
their able assistance.
3. The suit for partition and declaration is contended to be
instituted without any cause of action as the plaintiff has founded her
cause of action for the relief of partition and declaration upon Section
6 of the Hindu Succession Act where as it is Section 6 of the Hindu
Succession Act that negates the cause of action set up and acts as a
bar to the reliefs being sought by the plaintiff. Shorne of all the
myriad meandering details as set out under the plaint, fundamentally
the plaintiff as the daughter of late Sh. Karan Singh Verma seeks
CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 4 of 20
partition of the several properties as detailed in the schedule to the
plaint, movable and immovable, situated at Agra and also at Delhi
acquired by late father as Karta of HUF and in respect of which the
plaintiff alleges that the late father of the plaintiff died intestate on
06.03.1986. Also the plaintiff has set up a challenge to the Wills dated 15.6.1985 and 22.7.1985 of the late father of the plaintiff as fraudulent and illegal documents whereunder the movable and immovable properties are bequeathed in favour of the only son of late Sh. Karan Singh Verma, since deceased, whose LRs are impleaded as defendant 1 to 3. It shall traverse the length and breadth of the pleadings set up to ascertain whether the pleadings disclose no cause of action in favour of the plaintiff to claim a right to reliefs as prayed for under the present suit against the defendants. It is the case of the plaintiff as set up under the plaint that the plaintiff is one of the daughters of late Sh. Karan Singh Verma,who was a successful business man and Karta of Joint Hindu Undivided Family comprising of his wife, one son (defendants no.1 to 5, 1st set are his legal heirs), five daughters (proforma defendant nos.6 to 9, 2nd set), and the family of his brother Sh. Parmeshwari Sahay. Out of the nucleus of joint family and ancestral funds the joint family through Karta acquired many properties and developed the business. That one late Sh. Bhura Ram was the great grand father of the plaintiff, defendant no.2 to 5 and proforma defendants 2nd set and great grandfather in law of defendant no.1 who was a successful business man. The nucleus of the joint family can be traced from him. He through his efforts and toil had created a lot of properties including the compound CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 5 of 20 and the shop at Mohalla Neem Darwaja, Agra, the late Shri Data Ram grand father of the plaintiff and proforma defendants 2nd set and grand father in law of defendant no.1was not so successful at all and lived on the properties created by his father. Late Sh. Data Ram had two sons late Karan Singh Verma (father of the plaintiff and proforma defendants 2nd set and grand father in law of defendant no.1) and late Sh. Parmeshwari Sahai. That the two brothers in association with their father started business a the shop at Mohalla Neem Darwaja, Agra which was the property created by late Sh. Bhura Ram and later constructed a shoe factory in the compound owned by the joint family at Neem Darwaja. The business of the joint family grew by leaps and bounds and it is from this business further expansion of business was effected. That on 16.1.1961 a big piece of land, bearing plot no.C3, New Agra Colony, Agra and thereafter from the ancestral fund and nucleus of joint family the house was constructed over the said land, (hereinafter referred as "Agra House") and plaintiff has grown up in the said house and till her marriage i.e. 8.2.1980 she was permanently residing in that house, due to marriage she came to Roorkee, and time to time whenever she visited to Agra she use to live in the 'Agra House.' That on 10.09.1974 there was a partition by metes and bounds between Sh. Karan Singh Verma and his brother Sh. Parmeshwari Sahay and accordingly they put themselves in possession of their respective shares in the properties and such partition was reduced into writing on 30.10.1979 and registered and "Agra House" exclusively fell to the share of Sh. Karan Singh Verma and accordingly mutation was effected. That in the year 1983 a portion of the "Agra House" was CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 6 of 20 let out to the Industrial Tribunal IV and Labour Court, Agra on monthly rent. That the plaintiff's father Sh. Karan Singh Verma died intestate on 6.3.1986. That after the death of Sh. Karan Singh Verma, his wife and mother of the plaintiff started receiving monthly rent of "Agra House" from the aforesaid tenant in her name. The plaintiff's brother Mr. Satish Kumar Verma was the defacto Karta of the family of HUF of late Karan Singh Verma. However plaintiff's mother Mrs. Ramawati Verma also died intestate on 10.9.92. After her death the plaintiff's brother Mr. Satish Kumar Verma (now deceased) being Karta of the family of HUF of late Karan Singh Verma started realizing monthly rent from the aforesaid tenant. On 7.1.2000 he entered into fresh lease agreement with Presiding Officer, Industrial Tribunal IV and Labour Court, Agra for monthly rent of Rs.6866.93/. That thereafter out of greed the plaintiff's brother (husband of defendant no.1) on the basis of manufactured documents started claiming himself as sole successor of his father and applied for mutation of said 'Agra House' exclusively in his name, under Section 213 (1) of U.P. Town Municipal Act, 1959. The municipal officials without serving any notice in this respect to the plaintiff effected the mutation of "Agra House" in the name of late Satish Kumar Verma on 20.11.2002. This mutation is illegal. That on 21.4.2004 Mr. Satish Kumar Verma died. After the death Satish Kumar Verma his wife the defendant no.1 herein is realizing the monthly rent of the "Agra House". That after the death of plaintiff's brother Sh. Satish Kumar Verma, the builders have set their eyes upon the "Agra House" they manufactured some forged documents, namely power of attorney CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 7 of 20 dated 2.6.2003 of Sh. Satish Kumar Verma and lease deed dated 12.1.2004 executed by Sh. Satish Kumar Verma relating to "Agra house". Aggrieved by this act of the builders the defendant 1st set on 16.5.2005 filed a suit for declaration and injunction for "Agra House"
bearing O.S. No.404 of 2005. In the plaint the defendant 1st set made categorical averments that on 16.1.1961 the land on which "Agra House" is situated was purchased and construction raised on it out of funds acquired from the nucleus of ancestral fund. That at the same time contrary to the stand taken in aforesaid Suit no.404 of 2005 the defendants 1st set herein are claiming exclusive ownership on the "Agra House" and have started negotiation with strangers for transfer/sale of the "Agra House". That defendant no.8 on 5.12.2005 filed a suit in the Court of Ld. Civil Judge(Sr. Division) Agra being Original Suit No.982 of 2005 seeking relief of permanent injunction and decree for declaration, that defendants 1st set herein have 1/6th share in the "Agra House". That the defendants 1st set herein on 7.9.2006 filed their written statement in the said original Suit no.982 of 2005 and in this written statement for the first time they disclosed about the Will dated 15.6.1985 of late Karan Singh Verma in respect of "Agra House" and shares in companies (defendants no.19 and 20) and Will dated 22.7.1985 for "Delhi Land" in favour of late Satish Kumar Verma. After court's direction on 3.1.2007 a copy of the both alleged wills purported to be Wills of father of plaintiff were placed on record in Original Suit no.982 of 2005. The aforesaid facts were disclosed by the defendant no.8 to her other sisters. After hearing the parties the Ld. Court of Civil Judge (Sr. Division) Agra on 16.3.2007 CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 8 of 20 temporarily restrained the defendants 1st set herein from alienating or transfering the "Agra House", but the appellate court on 23.1.2008 vacated the said temporary injunction by order dated 16.3.2007 stating that the plaintiff therein has not claimed proper relief for partition and not stated about her share, and without seeking relief of partition, declaration and permanent injunction cannot be granted in the said suit. That defendants 1st have not produced the original document alleged to be the will of late Karan Singh Verma dated 15.6.1985. The document produced is a photostate copy of the attested copy of the said Will. The 2nd Will dated 22.7.1985 separately for Delhi property is again a forged document wherein the signatures of late Karan Singh Verma have been forged. That in the year 1960 the father of plaintiff invested HUF Fund in a business and on 24.12.1960 incorporated a company under the Indian Companies Act 1956 namely; "Agra Charm Kala Kendra Private Ltd." (defendant no.19) having its registered office at: C1, New Agra, Uttar Pradesh. Being the considerable share holder became its Director. After the death of plaintiff's father, her said brother Mr. Satish Kumar Verma illegally and without the knowledge of the plaintiff applied for transfer of the entire 300 shares of late Karan Singh Verma in his own name. That the other Directors in collusion with Mr. Satish Kumar Verma illegally transferred the 300 shares standing in the name of Late Karan Singh Verma in the name of Mr. Satish Kumar Verma. Thus the plaintiff and other daughters of late Sh. Karan Singh Verma were deprived of their share in the ancestral joint family property. That on 5.3.1984 Sh. Karan Singh Verma father of the plaintiff CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 9 of 20 entered into an agreement to purchase a piece of land measuring 877.48 sq. yards at Mauja Mau, District Agra and paid an advance amount of Rs.30000/ to one Ram Charan. However during the lifetime of Sh. Karan Singh Verma the sale deed in respect of the above land could not be executed. That after the death of Shri Karan Singh Verma his son and plaintiff's brother late Satish Kumar Verma (husband of defendant no.1) got only a portion of the said plot i.e. 530 sq. yards registered in his name for a consideration of Rs.26,000 and utilized the remaining Rs.4,000 paid as advance to the seller of the land for payment of stamp duty etc. That out of the said 530 sq. yds of land late Satish Kumar Verma dishonestly sold 300 sq. yds of land to one 'Bhagwati Sahkari Awas Samiti Ltd.' Agra and misappropriated the entire consideration of the said sale. These facts have recently come to the knowledge of the plaintiff. That Sh. Karan Singh Verma promoted another company along with others under the Companies Act,1956 namely "Puja Prestress Cement Industries Pvt. Ltd." having its registered office at: 277, Jaipur House, Agra, Uttar Pradesh, he held 600 shares of Rs.100 each in the said company. Late Karan Singh Verma was made the 1st Managing Director of the said company and Sh. Vishwendra Kumar Upadhaya, Joint Managing Director of the company. That further on 27.9.1984 another piece of land was jointly purchased with Mr. Vishwendra Kumar Upadhyaya, Joint M.D of above company "Puja Prestress Cement Industries Pvt. Ltd." from Sh. Ram Singh of village Farah, District Mathura a land of an area of 3.15 ½ acres. After the death of Sh. Karan Singh Verma the entire share standing in the name of late Karan Singh Verma was CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 10 of 20 illegally got transferred in the name of late Satish Kumar Verma (husband of defendant no.1) and in the name of mother of the plaintiff as in the year 1993, the total shares in this company was 1900 of Rs.100 each nominal value. The plaintiff and her other sisters (proforma defendant 2nd set) have an equal 1/6th share in the said shares of late Karan Singh Verma in the "Puja Prestress Cement Industries Pvt. Ltd (defendant no.20). That from the ancestral fund and nucleus of joint family on 4.10.1967 the father of plaintiff jointly purchased a piece of land of an area of 400 sq. yds with his another friend Mr. Surinder Kumar Saxena (ancestor of defendants 3rd Set) bearing Plot no.11 and 12 situated at Wazir Nagar, (Kotla Mubarakpur), New Delhi, details of this property is given in Schedule A (hereinafter referred as "Delhi Land"). That both the friends desired to sell the said "Delhi Land" and since late Sh. Karan Singh Verma father of the plaintiff was not residing in Delhi and was busy in his business at Agra he therefore for the purpose of looking after the said "Delhi Land", executed a power of attorney on 6.3.1973 in favour of his friend Mr. Surindra Kumar Saxena. The property was not sold during the life time of late Sh. Karan Singh Verma, after a decade the said Mr. Surindra Kumar Saxena (ancestor of defendant nos 10 to 16) became dishonest and without the knowledge of Sh. Karan Singh Verma added one line in the said power of attorney at page no.2 end of para (I) to the effect "Received money from S.K. Saxena. Now, I have no lien in the property", and on the basis of this forgery entered into a collaboration agreement on the said "Delhi Land" with Sh. N.K. Jain (defendant no.17) and Mohinder Singh Chowdhary (defendant CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 11 of 20 no.18). That as stated above after the death of father of plaintiff, her brother Sh. Satish Kumar Verma became the Karta of Hindu Undivided Family of late Karan Singh Verma, he also become dishonest and with malafide intention to grab his sisters share in the joint family property set up a forged and fabricated will which is dated 22.7.1985 purported to be executed by late Karan Singh Verma in respect of "Delhi Land".Late Sh. Satish Kumar Verma without the knowledge of the plaintiff filed a suit no.601 of 1990 for permanent injunction and partition of "Delhi Land" before the Hon'ble High Court. That on 28.2.1990 the Hon'ble High Court passed order for issuance of summons for appearance of defendants and ex parte restrained the defendants therein (defendant no.10, 11, 12, late husband of defendant no.13, 16 herein) from executing the sale deed in favour of Mr. N.K. Jain and Co. (Mr. N.K. Jain is defendant no.17 herein) or any person and further restrained them from alienating, transferring or parting with possession of plot measuring 400 sq. yards bearing no.1426A and 1426A/2 Wazir Nagar, Kotla Mubarakpur, New Delhi till further orders. That on 6.4.1990 the Hon'ble High Court further restrained the said defendants of suit no.601 of 1990 from carrying out any construction on the disputed plot bearing no.1426A and1426 A/2 Wazir Nagar, Kotla Mubarakpur, New Delhi till further orders. That on 4.8.1997 the plaintiff's brother Mr. Satish Kumar Verma came to Roorkee and met the plaintiff and stated that he has filed a suit to protect the "Delhi Land" and since the plaintiff and other sisters are also share holders in the said property therefore they need to sign some documents to CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 12 of 20 enable him to effectively prosecute the suit. On this pretext he got some papers signed by plaintiff and also requested the plaintiff to accompany him to a Magistrate for authentication of the documents. The plaintiff on account of trust signed the said papers without even reading them and accompanied him to the Magistrate for authentication of the document. That later on it transpired after the inspection of the case record of Suit no.601/90 that the papers signed by her were purported to be an affidavit assertive of relinquishment of her share in "Delhi Land" in his favour. The said brother of plaintiff had thus practiced a fraud on her. The said document was filed in the said suit after a period of 2 ½ years. That the defendant on
17.02.2007 filed application under order 1 Rule 10 read with Section 151 Code of Civil Procedure in the said Suit. Plaintiffs therein filed their reply to application for impleadment, in rejoinder to that applicants clarified that the Will of late Karan Singh Verma was a forged document and applicants affidavits were obtained by fraud. Before the application could be heard on 2.8.2008 the Ld. Trial Court has dismissed in default the Suit no.130 of 2006 (Satish Kumar Verma Through LRs Versus Smt. Neelam Saxena) and the Ld. ADJ observed that the plaintiffs have no interest in prosecuting the suit. That cause of action arises to this plaintiff for filing this suit on 6.9.2005 when Hindu Succession (Amendment) Act, 2005 came into force by which daughters were given right to partition in coparcenary property, on 7.9.2006 when the defendants 1st set filed their written statement in the court of Ld. Civil Judge (Sr. Division) Agra in original Suit no.982 of 2005 and first time they disclosed about the CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 13 of 20 Will dated 15.6.1985 related to "Agra House" and shares in companies (defendant nos.19 and 20), and Will dated 22.7.1985 for "Delhi Land" in favour of late Satish Kumar Verma, thereafter when plaintiff got information about pendency of suit no.130 of 2006 (Satish Kumar Verma Through LRs Versus Smt. Neelam Saxena) in the court of Ld. ADJ, Delhi and after court's direction on 3.1.2007 when they provided copy of the both testamentary documents (purported to the Wills of father of plaintiff), and on 11.2.2007 when defendant no.1 denied partition and giving any right in the joint family properties as per the schedule and on 22.1.2008 when Ld. Court of District Judge, Agra vacated the order of temporary injunction dated 16.3.2007 granted in Original Suit no.982 of 2005 by Ld. Court of Civil Judge (Sr. Division) Agra by which the defendants 1st Set herein were temporarily restrained from alienating or transfer the "Agra House" and finally on 2.8.2008 when the Ld. Trial Court has dismissed the suit no.130 of 2006 (Satish Kumar Verma through LRs Versus Smt. Neelam Saxena) in default holding that it appears that the plaintiffs have no interest in prosecuting the suit. That suit is valued for Rs.60,00,000/ and the plaintiff is claiming their 1/6th share in the suit properties, accordingly as per the share claimed advolurem court fees of Rs.10,151/ is filed for the relief prayed and for the purposes of injunction of Rs.200/ court fee is affixed, and undertakes that whatsoever this Hon'ble court Directs for the payment of court fees, or the plaintiff will pay the same at the time of passing of final decree in this suit.
4. The plaintiff as one of the legal heirs of late Sh. Karan CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 14 of 20 Singh Verma seeks partition of the estate of late Sh. Karan Singh Verma between the surviving legal heirs of late Sh. Karan Singh Verma in equal shares. The plaintiff alleges that late Sh. Karan Singh Verma died intestate in respect of the properties which are detailed in a schedule to the plaint on 06.03.1986 and Smt. Ramvati, the mother of the plaintiff also died intestate on 10.09.1992 and therefore it is the five daughters and one son and their legal heirs upon their death who are entitled to succeed to the estate of late Sh. Karan Singh Verma in 1/6th equal share each. A daughter is a class one legal heir entitled to succeed to the estate of a deceased Hindu Male in terms of Section 8 to 10 of the Hindu Succession Act. The plaintiff alleges that the properties are HUF properties and that late Sh. Karan Singh Verma acquired the properties as Karta of HUF and the funds applied toward the acquisition of the properties can be traced back to HUF properties. The claim of the existence of HUF and a coparcenory is alleged to be baseless and without any merit and not substantiated by any document filed along with the plaint by the defendant and therefore rejection of the plaint is sought for. Even if the properties alleged to be a HUF properties are determined to be as self acquired properties of late Sh. Karan Singh Verma, the plaintiff as the daughter of late Sh. Karan Singh Verma, would still be entitled to maintain a suit for partition of the estate of late Sh. Karan Singh Verma as one the class one legal heirs amongst the legal heirs of Sh. Karan Singh Verma, in terms of Section 8 to 10 of the Hindu Succession Act. The plaintiff is not necessarily to assert her right for partition in terms of Section 6 of the Hindu Succession Act. The plaintiff is otherwise a CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 15 of 20 class one legal heir and would have a right to seek partition of the estate left behind by her father upon his death where the claim is that the late father died intestate.
5. The plaintiff has challenged Will dated 15.06.1985 and 22.07.1985 purported to be executed by the late father of the plaintiff in favour of his only son Sh. Satish Kumar Verma thereby bequeathing his movable and immovable properties upon Sh. Satish Kumar Verma, since deceased, defendants 1 to 5 being the legal heirs of late Sh. Satish Kumar Verma. The defendants contend that by virtue of the proviso substituted to Section 6 of the Hindu Succession Act, the suit setting up a challenge to the Will executed before the coming into force of the amended Section 6 is barred in terms of the proviso. The amended Section 6 along with the proviso is reproduced hereunder:
"6. Devolution of interest in coparenary property. (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu Family governed by the Mitakshara law, the daughter of a coparcener shall,
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had, if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakashara coparcener shall be deemed to include a reference to a daughter of a coparcener;CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 16 of 20
Provided that nothing contained in this sub section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004...."
6. The Will is not sought to be invalidated in view of the promulgation of the amendment to Section 6 of the Hindu Succession Act. The proviso does not bar the institution of a suit setting up a challenge to a testamentary disposition of property which took place before the 20.12.2004 by a daughter of the testator. It is not that any and every will purported to be executed before 20.12.2004 is rendered duly executed and right of the affected parties, may be a daughter of the testator is taken away or is being extinguished by virtue of the proviso to Section 6 of the Hindu Succession Act, under all facts and circumstances. Under the unamended Section 6, the daughter of a Male Coparcenor did not acquire coparcenary rights upon her birth alongwith the Male Coparcenors. The Male members of a family upto three degrees constituted a coparcenary governed by the Mitakshra School of Hindu Law, and acquired an interest by birth in the coparcenary. Now with the coming into force of the amendment w.e.f 9.9.2005, in a Joint Hindu Family governed by Mitakshara Law, the daughter of a coparcenor by birth has become a coparcenor in her own right and in the same manner as the son. The proviso clarifies that any partition effected any alienation effected in any manner and any testamentary disposition which took place before 20.12.2004 is not invalidated merely for the promulgation of the amendment. Even in respect of Wills executed before 20.12.2004, declaratory relief may CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 17 of 20 be claimed and the right to seek any kind of relief in respect of a testamentary disposition has not been rendered extinct. The proviso is an addendum that though the daughter of a Hindu Male Coparcener is also a coparcenor in her own right with all the attending rights and incidents of a coparcenary w.e.f 09.09.2005, however, any disposition/alienation/partition of property which took place before 20.12.2004 shall not be affected or invalidated by virtue of anything contained in sub section (1) of section 6 of HSA. The plaintiff has challenged the Wills dated 15.06.1985 and 22.07.1985 contending that the Wills are fraudulently prepared by the late brother of the plaintiff to illegally usurp the shares of the sisters. The testamentary disposition is challenged under the pleading not merely on the ground that Sh. Karan Singh Verma had not the capacity to Will his estate but on the ground that the Wills set up by the defendants are fraudulent/illegal/unlawful documents. The declaration is not premised on anything contained in S.6(1). The proviso does not come into play in the facts and circumstances as set out under the plaint. It is settled law that when deciding an application u/O 7 R11 it is the averments as set down under the plaint which are to be read in a meaningful manner, and when I consider the cause of action set up, particularly in respect of the challenge to the Wills and declaration of share and partition, taking into account the prayer clause as also the averments contained under paras 19 and 24 of the plaint, I find that the plaint is not bereft of cause of action and that the plaintiff as the daughter of late Sh. Karan Singh Verma is entitled to a right to claim the reliefs as sought under the suit for declaration, partition, rendition CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 18 of 20 of accounts and injunction.
7. The defendants contend that the cause of action as set up and the reliefs as claimed are time barred and the plaintiff seeks to agitate stale claims which is evident from the bare perusal of the plaint and accompanying documents i.e the affidavit of the plaintiff filed with the authorities for mutation of the property in favour of the deceased brother of the plaintiff and husband of defendant no. 1. I am unable to accept the contention of the defendants as the issue of limitation is more often than not a mixed question of law and facts as the point in time is to be determined in a particular suit in respect of the reliefs claimed taking into account the peculiar facts and circumstances of the case as to since when the prescribed period of limitation begins to run. Right to seek partition is a recurring right. The cause of action for seeking the declaratory relief would accrue when the existence of the right or status is denied by the defendant. The plaintiff contends that the impugned Wills saw the light of the day in course of proceedings of OS No. 982/2005 and plaintiff gained knowledge only in the year 2007 as regards the existence of such Wills of the late father. Further, the plaintiff contends that the defendant had fraudulently obtained signatures of the plaintiff on documents on the pretext that the same were required for the prosecution of a suit for the protection of the Delhi properties left behind by the late father of the plaintiff. From a bare perusal of the plaint, the suit does not appear to be time barred and the several allegations of fact would be required to be proved/disproved by the parties by leading evidence in the course of trial.
CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 19 of 208. The defendants contend that the suit is not properly valued for the purposes of jurisdiction and court fees. The plaintiff has valued the suit as per the value of the share claimed i.e 1/6th in the properties and has undertaken to deposit the court fees as may be determined by the court at the time of passing of final decree. In a suit for partition court fees is not payable ad volerum by a joint owner in joint possession even if the possession is constructive and not actual unless dispossession is established which would again be a matter of trial. Also where the court comes to a conclusion that adequate court fees is not affixed opportunity is to be granted to the plaintiff to make good the deficiency and it is only when the plaintiff fails to pay the adequate court fees despite opportunity that the plaint is liable to be rejected.
9. In view of the above discussion and for the aforestated reasons, the application u/o 7 Rule 11 seeking rejection of the plaint is dismissed.
10. Nothing stated herein above, however, shall be deemed to be an expression of opinion on the merits of the claims of the parties. The observations contained herein shall have no bearing on the merits of the claim or the final outcome.
Pronounced in the open Court (Neelofer Abida Perveen) on this 21st April, 2017. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
* This order contains 20 pages, all checked and signed by me.
CS No.10366/16 Mrs. Kanta Shiva V/s Mrs. Vijayshree Verma & Ors. Page 20 of 20