Delhi District Court
Harjit Singh vs Harbhajan Singh on 23 January, 2024
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 476461/2015
CNR No. DLNE01-000244-2011
1. S. Harjit Singh
2. S. Amarjeet Singh
3. S. Manjeet Singh
4. S. Jagmohan Singh
5. S. Darshan Singh
All sons of Late S. Sher Singh
6. Amrit Kaur
W/o of Late S. Sher Singh
Plaintiff no. 1 to 6 are residents of H-204,
New Seelampur, Delhi.
7. Bhupinder Singh
S/o Late Attar Singh
R/o H-1/42, New Seelampur,
Delhi.
8. Satwinder Singh
S/o Late Attar Singh
R/o 12/43, Geeta Colony,
Delhi. .....Plaintiffs
Versus
1. Harbhajan Singh
CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 1 of 30
2. Paramjit Singh
3. Gurucharan Singh
4. Gurpratap
5. Atinder Pal Singh
All sons of Late S. Jhanda Singh
Defendant no. 1 to 5 are residents of H-206,
New Seelampur, Delhi.
6. Vandana
D/o Late Charanjeet Singh
R/o H-206, New Seelampur,
Delhi.
7. Gurdeep Singh
S/o Smt. Chandan Kaur
R/o 269, 1st Floor, Bank Enclave,
Delhi.
8. Harinder Singh
S/o Smt. Chandan Kaur
R/o H. No. 61, Gali No. 13,
Indra Park, Chander Nagar, Delhi.
9. Amarjeet Singh
S/o Smt. Chandan Kaur
R/o H. No. 61, Gali No. 13,
Indra Park, Chander Nagar, Delhi.
10. Chanchal
D/o Smt. Chandan Kaur
11. Nikki
D/o Smt. Chandan Kaur
12. Asha
D/o Smt. Chandan Kaur
13. Pushpa
D/o Smt. Chandan Kaur
CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 2 of 30
14. Nirmal
D/o Smt. Chandan Kaur
15. Kailash
D/o Smt. Chandan Kaur
Defendant no. 10 to 15 are residents of H. No. 254,
Gali No. 20, Saadh Nagar, Palam, Delhi.
16. Avtar Singh
S/o Amarjeet Kaur W/o Late Late Gurmukh Singh
17. Chanchal Singh
S/o Amarjeet Kaur W/o Late Late Gurmukh Singh
18. Harbhajan Singh
S/o Amarjeet Kaur W/o Late Late Gurmukh Singh
Defendant no. 16 to 18 are residents of H. No. 44,
Dakha Delhi Camp.
Also at:-
H. No. 86, Hakikat Nagar, Delhi.
19. Pritam Singh
S/o Amarjeet Kaur W/o Late Late Gurmukh Singh
R/o H. No. 44, Dakha Delhi Camp.
20. Dr. Chanchal Singh Deol
S/o Amarjeet Kaur W/o Late Late Gurmukh Singh
R/o H. No. 44, Dakha Delhi Camp.
21. Balbir
S/o Amarjeet Kaur W/o Late Late Gurmukh Singh
R/o I-520/521, Jahangir Puri, Delhi. .....Defendants
Date of Institution : 23.05.2011
Date of Reserving Judgment : 19.01.2024
Date of Judgment : 23.01.2024
CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 3 of 30
JUDGMENT
1. The present suit has been filed by the plaintiffs against the defendants seeking the decree of partition, permanent injunction, possession and declaration.
2. Brief facts, as stated in the plaint are that the property bearing number H-203, measuring 80 square yards, situated at New Seelampur, Delhi (hereinafter referred to as suit property) was belonged to Late Charantjit Singh. It is stated that the plaintiff number 1 to 5 are grandsons of Late Charanjit Singh and defendant number 6 is daughter of Late Charanjit Singh. The suit property was allotted in the name of Late Charanjit Singh by Delhi Development Authority under the scheme Jhuggi Jhopri Removal. It is further stated that the suit property was plot, wherein, single storey construction was made long ago. It is further stated that there was not any dispute among the legal heirs of Late Charanjit Singh with respect to suit property till the sons of Late Charanjit Singh were alive. It is also stated that father of the plaintiffs number 1 to 5, 7 and 8 died in the month of March 2011, and till then, the defendant number 1 to 5 were not disagreeable to share the property with the plaintiff. It is further stated that after March 2011, defendants number 1 to 5 with nefarious desires in their mind started to demolishing the old construction to make new construction in the suit property.
It is further stated that the plaintiffs asked the defendants number 1 to 5 not to make new construction in the suit property because the same is not partitioned. However, the defendant number 1 to 5 outrightly ignored the advice of plaintiffs. It is further stated that defendant number 1 to 5 are determined to grab the suit property and not to give rightful share of the plaintiffs. The plaintiffs have half (½) share belongs to the defendants that CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 4 of 30 is defendant number 6 is also having 1/4th share in the suit property. It is further stated that all five sons now deceased are as follows: (i) Sardar Sher Singh, (ii) Attar Singh, (iii) Jhanda Singh, (iv) Chandan Singh (died issue less and whose wife also expired) and (v) Jagjit Singh (died unmarried). It is further stated that Late Charanjit Singh had three daughters, namely, (1) Smt. Vandana, (2) Amarjeet Kaur and (3) Chandan Singh. It is worthwhile to mention here that Smt. Amarjeet Kaur and Chandan Kaur, daughters of Late Charanjit Singh are not willing to take any share in the suit property. However, off late, the children of Amarjeet Kaur filed an application of impleadment under Order 1 Rule 10 of Code of Civil Procedure which has been allowed. Hence they are impleaded as co-defendants in the present case. It is further stated that plaintiffs have noticed the malafide intention of defendant number 1 to 5, who wanted to sell or create third party interest and to deprive the plaintiffs from their legal share in the suit property. It is further stated that plaintiff at this time have no any other efficacious remedy except to move before this Hon'ble Court for the partition of the suit property and also to restrain the defendant number 1 to 5 from raising any construction or to create any third party interest in the suit property. It is therefore requested that decree of partition, permanent injunction alongwith possession and declaration be passed with respect to suit property.
3. A common written statement has been filed on behalf of defendant number 1 to 5 in which apart from denying the allegations/contentions of the plaintiffs, it is stated by the defendants that the suit filed by the plaintiff is not maintainable in the eyes of law because the plaintiff suppressed the material facts from this Hon'ble Court. It is further stated that the plaintiffs had instituted the present suit with their ulterior motives to grab the suit property from the defendants as they are well aware that the grandfather CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 5 of 30 that is Charanjeet Singh, who had expired way back in an around in the year 1965 when father of plaintiff number 1 to 5 and defendant number 1 to 5 were minor. It is further stated that the grandmother of defendant number 1 to 5, namely, Ms. Sunder Kaur had taken over all the properties left behind her husband and maintained her family which includes five sons and three daughters. It is further stated that the plaintiffs had failed to implead all legal heirs because they were aware that the grandmother of defendant number 1 to 5, Ms. Sunder Kaur had already distributed her property to her sons so that her sons and their heirs live peacefully in future. It is further stated that the plaintiffs had filed the present suit after the expiry of their father Sh. Sher Singh as their father had already executed an affidavit in which he affirmed that the suit property had already been transferred to the father of defendant number 1 to 5 as per the wishes of Ms. Sunder Kaur. It is further stated that plaintiff number 6 had also executed her affidavit and confirmed the version of her deceased husband Late Sher Singh. It is pertinent to mention here that the grandfather of defendant number 1 to 5, Late Charanjeet Singh had left behind the property bearing number H-203, New Seelampur, Shahdara, Delhi and H-1-41 and 42, New Seelampur, Shahdara, Delhi as well as shop bearing number 6, New Seelampur Market, Shahdara, Delhi, besides, that property at Village Fori, Alwar, Rajasthan.
It is further stated that from the abovesaid properties that is shop number 6, New Seelampur Market, Shahdara, Delhi was given to Sh. Sher Singh by Ms. Sunder Kaur. It is further stated that besides that Sh. Sardar Sher Singh had also taken over the possession of land situated at Alwar, which was later on sold by him. It is further stated that the property bearing number H-1-41 and 42, New Seelampur, Shahdara, Delhi was given to the father of plaintiff number 7 and 8, Late Attar Singh, who had expired when plaintiff number 7 and 8 were minor. It is further stated that CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 6 of 30 the plaintiff number 7 had already sold the property bearing number H- 1/41, New Seelampur, Shahdara, Delhi, while, H-1/42 is still in his possession which is also an ancestral property of the parties. It is further stated that during the life time of father of plaintiff number 1 to 5, plaintiff number 1 to 6 had never raised any objection towards the suit property as their father had already instructed them that the suit property solely belonged to defendant number 1 to 5 and their mother. It is further stated that the defendant number 1 to 5 and their mother are the absolute owners of the suit property as it is admitted and well known by the legal heirs of Late Charanjeet Singh. It is further stated that the grandmother of defendant number 1 to 5 had handed over the suit property to the father of defendant number 1 to 5, Late Jhanda Singh and Late uncle Jagdish Singh. It is further stated that the father of defendant number 1 to 5 had expired so their mother Smt. Jyoti Kaur alongwith her sons is in the possession of the suit property and Late Jagdish Singh had not left behind any issue. It is therefore requested that suit of plaintiff be dismissed.
Separate written statement has been filed on behalf of defendant number 6 in which apart from denying the allegations/contentions of the plaintiffs, it is stated by defendant number 6 that the present suit filed by the plaintiffs is not maintainable and is liable to be dismissed as the same is contrary to the family settlement arrived at between the legal heirs of Late Charanjeet Singh, whereby, the half of the suit property was given to defendant number 6. It is further stated that the present suit filed by the plaintiffs is not maintainable as the same is barred by time. It is stated that the owner of the house, Late Charanjeet Singh had died many years back, while, the mother of defendant number 6 died in the year 1987 and as such the present suit is barred by time. It is further stated that the defendant number 6 after her marriage was dragged into matrimonial litigation and forced to her matrimonial house, thus since the year 1982, she has been CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 7 of 30 residing in the suit property being the destitute woman. It is further stated that after seeing the destitution of defendant number 6, her brother and mother had settled that the half of the suit property would be given to defendant number 6. It is further stated that a settlement was arrived at just before the death of the mother of defendant number 6 as her mother wanted to get her daughter settled qua residential purposes. It is further stated that the settlement since that day was obeyed and performed by all the brothers and mother of defendant number 6. It is further stated that the plaintiffs have now become dishonest and wanted to take the advantage of death of all the brothers of defendant number 6.
It is further stated that during the lifetime of her mother and brothers, the settlement arrived at between the legal heirs of Sh. Harjeet Singh was obeyed/performed and the suit is barred by time. It is further stated that in the year 1987, defendant number 6 as well as her mother were in exclusive possession of the suit property and after the death of mother of defendant number 6, father of defendant number 1 to 5 took over the possession of the half of the house alongwith all the relevant documents of the house. It is further stated that the brothers of father of defendant number 1 to 5 was having no objection regarding the same and the management of possession was well within the knowledge of all the legal heirs including the plaintiffs and the defendants. It is further stated that the defendant number 1 to 5 now under their malafide intentions had given the newly constructed basement to the tenant and half of the ground floor to the defendant and still the first floor of the house is yet to be completed. It is further stated that the defendant number 6 in the present scenario could only take the possession of the half of the ground floor and one room on the first floor and meanwhile the present was filed. It is further stated that the defendant number 6 is the owner and in possession of half of suit property as per the family settlement by the brothers and CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 8 of 30 mother of defendant number 6 just before her death. It is further stated that the suit be accordingly decreed.
Vide order, dated 27.08.2012, application of the plaintiffs under Order VI Rule 17 of Code of Civil Procedure for the amendment of plaint and to implead the defendant number 7 to 18 alongwith the remaining legal heirs who have inherited the share in the suit property was allowed. Accordingly, defendant number 7, 8, 10, 12, 13, 14 and 18 have filed their common written statement. In the written statement, apart from denying the allegations/contentions of the plaintiffs, it is stated by defendant number 7, 8, 10, 12, 13, 14 and 18 that the suit filed by the plaintiffs is not maintainable because the plaintiffs have suppressed the material facts from the Hon'ble Court and have not approached the Court with clean hands. It is stated that the plaintiffs had filed the present suit in order to obtain wrongful gain and to cause wrongful loss as they are well aware from the facts that the grandfather that is Charanjeet Singh, who expired way back in the year 1965 when father of plaintiff number 1 to 5 and the defendant number 1 to 6 were minor and his wife that is grandmother of defendant number 1 to 6, Ms. Sunder Kaur took over all the properties left behind her and maintained her family which included five sons and three daughters.
It is further stated that the grandmother of defendant number 1 to 6 and Nani of defendant number 7, 8, 10, 12, 13, 14 and 18 had already divided the properties by way of settlement, dated 13.07.1987 amongst her sons. It is further stated that Late Charanjeet Singh left behind the properties bearing number (1) H-203, New Seelampur, Shahdara, Delhi, (2) H-1-41, New Seelampur, Shahdara, Delhi, (3) 42, New Seelampur, Shahdara, Delhi and (4) a shop bearing number 6, New Seelampur Market, Shahdara, Delhi and (5) having property at Village Fori, Alwar, Rajasthan. From the abovesaid properties, a shop bearing number 6, New Seelampur Market, Shahdara, Delhi was given to Sh. Sher Singh, father of plaintiff CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 9 of 30 number 1 to 5 and husband of plaintiff number 6 by the grandmother of defendant number 1 to 6, Late Sunder Kaur. Beside that, Sh. Sher Singh had also taken over the possession of land situated at Alwar, which was later on sold by him. It is further stated that as per the settlement, the properties bearing number H-1-41 and 42, New Seelampur, Shahdara, Delhi, (3) 42, New Seelampur, Shahdara, Delhi was given to the father of plaintiff number 7 and 8, Late Attar Singh. It is further stated that the mother of defendant number 7, 8, 10, 12, 13, 14 and 18 had already agreed to the family settlement which took place in the lifetime of Nani Late Sunder Kaur and the same was communicated to defendant number 7, 8, 10, 12, 13, 14 and 18 and as such in view of the same, the suit property was given to defendant number 1 to 6 and the defendant number 7, 8, 10, 12, 13, 14 and 18 have no claim in the suit property. As such, no cause of action has arisen in favour of plaintiffs to file the present suit.
Common written statement was also filed on behalf of defendant number 19 and 20 in which apart from denying the allegations/contentions of the plaintiffs, it is stated by both the defendants that is defendant number 19 and 20 that the plaintiffs have not come to the Court with clean hand. It is further stated that the plaintiffs have concealed and suppressed the material facts and thus are liable to be prosecuted under section 340 of Criminal Procedure Code for the criminal offences committed by them under section 193/195/200 etc. of Indian Penal Code. It is stated that the plaintiffs had intentionally did not implead the mother of defendant number 19 and 20, Smt. Amarjeet Kaur D/o Late Charanjeet Singh as a party to the said proceedings, though the plaintiffs were fully aware of the fact that Smt. Amarjeet Kaur was very much alive. It is further stated that the plaintiffs were aware that if Smt. Amarjeet Kaur would have made party then she opposed the the said partition suit filed by the plaintiffs for getting her due share in the suit property. It is also stated that twice the CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 10 of 30 amendments were made in the suit, but, the plaintiffs did not implead the defendant number 19 and 20 as parties to the suit. It is further stated that Smt. Amarjeet Kaur had died intestate in November 2011 leaving behind 9 children that is 7 sons and two daughters including the defendant number 19 and 20. It is further stated that the defendant number 19 and 20 are entitled to their shares in the suit property being the sons of Late Amarjeet Kaur and decree to that effect may accordingly be passed with respect to the suit property. It is further stated that during her life time, Smt. Amarjeet Kaur had been requesting for partition of the suit property and to give due share out of the same to her. It is further stated that the defendant number 19 and 20 have their due and legitimate right and share in the suit property and they are also entitled to their share. Decree regarding their share also deserves to be passed in favour of defendant number 19 and 20. It is further stated that defendant number 1 to 5 had also the malafide intentions to make further constructions in the said property and want to get undue benefit out of the same and, thus, they want to cause wrongful loss to the defendant number 19 and 20 and wrongful gain to themselves.
Despite due service, neither defendant number 9, 11, 15, 16 and 17 have appeared before the Court nor have filed their written statement and therefore, they were proceeded ex-parte, vide order dated 14.08.2013.
4. Replication to the written statement of defendant number 19 and 20 was filed which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement.
5. On the basis of pleadings, the following issues were framed:-
(i) Whether plaintiff is entitled for decree of partition as prayed in the suit? OPP
(ii) Whether the plaintiff is entitled for decree of permanent CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 11 of 30 injunction as prayed in the suit? OPP
(iii) Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP
(iv) Whether the plaintiff is entitled for decree of declaration as prayed in the suit? OPP
(v) Relief.
6. Plaintiffs have led their piece of evidence. Plaintiff number 1 Sh. Harjit Singh was examined as PW1. He reiterated the facts as are mentioned by plaintiffs in the plaint. He tendered his evidence by way of affidavit which is Ex.PW1/A and relied upon the documents i.e. site plan as Ex.PW1/1, copy of certificate of Goldsmith of Late Charanjeet Singh as Ex.PW1/2, copy of death certificate of Late Sunder Kaur as Ex.PW1/3, photocopy of allotment papers of the suit property in the name of Sh. Charanjit Singh as Ex.PW1/4, death certificate of father of plaintiff number 1 to 5, Late Sher Singh Bhalla as Ex.PW1/5 and complaint made to Station House Officer, Police Station Seelampur as Ex.PW1/6. PW1 was cross examined at length by Ld. Counsel for defendant number 1 to 5, 6, 7,8, 10, 12, 13, 14, 18, 19 and 20. During the course of his cross examination, PW1 submitted that his grandfather, namely, Sh. Charanjeet Singh had five sons and three daughters. PW1 has denied the suggestion put to him by Ld. Counsel for defendants that his late father had already given in writing that he or his sons had no right in the suit property. PW1 has also submitted that his father has no property in Village Phori, Alwar, Rajasthan though his grandfather had given his father the shop in Seelampur Market.
Plaintiff number 2 Sh. Amarjit Singh was examined as PW2. PW2 deposed on the same lines as that of PW1. PW2 tendered his evidence by way of affidavit which is Ex.PW2/A. PW2 was cross examined at length CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 12 of 30 by Ld. Counsel for defendant number 1 to 5, 6, 7, 8, 10, 12, 13, 14, 18, 19, 20 and 21. During the course of his cross examination, PW2 submitted that at the time of death of his grandmother, he was residing alongwith his parents at H-204, New Seelampur, Delhi. It is further submitted by PW2 that he is not aware about any other property of his grandfather Late Charanjeet Singh except the suit property that is H-203, New Seelampur, Delhi. PW2 has denied the suggestion that his father Late Sher Singh got his share of land situated in Village Pataliya, Tehsil Kishangarh, District Alwar, Rajasthan vide Khasra number 316 by his grandmother and the same was sold by him. PW2 had also shown by Ld. Counsel for defendants two documents viz. Ex.PW2/X-1 and Ex.PW2/X-2 to which he showed ignorance. PW2 has further denied the suggestion that his father had given written affidavits in favour of wife of Late Jhanda Singh in which he had given his no objection and also relinquished his right over the suit property in favour of defendant number 1 to 5. PW2 was shown the affidavit Ex.PW3/X-1 allegedly executed by his father on which he denied the signature to be of his father. PW2 had also denied the alleged signatures of his mother on affidavit Ex.PW3/X-2. PW2 submitted that the legal representatives of Late Charanjeet Singh had not executed any documents regarding relinquishment of their share in the suit property.
Plaintiff number 3 Sh. Manjit Singh was examined as PW3. PW3 too deposed on the same lines as that of PW1 and PW2. PW3 tendered his evidence by way of affidavit which is Ex.PW3/A. PW3 was cross examined at length by Ld. Counsel for defendant number 1 to 5, 6, 7, 8, 10, 12, 13, 14, 18, 19, 20 and 21. PW3 during the course of his cross examination submitted that he is not aware whether his grandmother Smt. Sunder Kaur had equally divided all properties left by Late Charanjeet Singh among the five sons and three daughters by way of family settlement, dated 13.07.1987. PW3 has denied the suggestion that as per CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 13 of 30 family settlement, his father was given lands situated at Village Pataliya, Tehsil Kishangarh, District- Alwar. Rajsthan vide Khata number 316 and Shop number 6, New Seelampur Market, Delhi.
Plaintiff number 4 Sh. Jagmohan Singh was examined as PW4. PW4 too deposed on the same lines as that of PW1, PW2 and PW3. PW4 tendered his evidence by way of affidavit which is Ex.PW4/A. PW4 was cross examined at length by Ld. Counsel for defendant number 1 to 5, 6, 19, 20 and 21. During the course of his cross examination, PW4 submitted that he had filed the present suit qua the property bearing number H-203, New Seelampur, Delhi ad-measuring 80 square yards for its partition as it belonged to his grandfather. PW4 denied the suggestion put to him by Ld counsel for defendants that his father had already been given his share of property by his grandmother Smt. Sunder Kaur. PW4 has further denied the suggestion that his grandmother had executed family settlement in the year 1982 and given respective shares to all legal heirs of Late Charanjeet Singh. PW4 has further denied the suggestion that before the death of his grandmother, one settlement was entered into between her, his father, Jhanda Singh and all male members of the family and by way of settlement, half of the property number H-203 was given to defendant number 6. PW4 has also submitted that no Will was executed by Late Charanjeet Singh and Surender Kaur as well.
Plaintiff number 5 Sh. Darshan Singh was examined as PW5. PW5 has deposed on the same lines as that of PW1, PW2, PW3 and PW4. PW5 thereafter tendered his evidence by way of affidavit which is Ex.PW5/A. PW5 was cross examined at length by Ld. Counsel for defendant number 1 to 5, 6, 7, 8, 10, 12, 13, 14, 18, 19, 20 and 21. During the course of cross examination of PW5, PW5 denied the suggestion that his grandmother Smt. Sunder Kaur had bequeathed half portion of the suit property to defendant number 6. PW5 has submitted that his grandfather Late CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 14 of 30 Charanjeet Singh had left only one property behind him that is property number H-203, New Seelampur, Delhi measuring 80 square yards. PW5 has denied the suggestion that his grandfather Late Charanjeet Singh had left the property at Village Pataliya, Tehsil Kishangarh, District Alwar, Rajasthan vide Khata number 316 totaling 16 bighas. PW5 has further submitted that he is also not aware about any property bearing number H- 1-41 and 42, New Seelampur and shop number 6, New Seelampur, allegedly left by his grandfather. PW5 has further submitted that he is not aware whether his grandmother Smt. Sunder Kaur had equally divided all the properties left by Late Charanjeet Singh among the five sons and three daughters by way of family settlement, dated 13.07.1987.
Plaintiff number 8 Sh. Satwinder Singh was examined as PW8. PW8 has also deposed on the same lines as that of PW1, PW2, PW3, PW4 and PW5. Thereafter, PW8 tendered his evidence by way of affidavit which is Ex.PW8/A and relied the documents already exhibited as Ex.PW1/1 to Ex.PW1/6. PW8 was cross examined at length by Ld. Counsel for defendant number 1 to 5, 6, 7, 8, 10, 12, 13, 14, 18, 19, 20 and
21. PW8 in his cross examination submitted that his father Attar Singh had expired in the year 1978. PW8 has submitted that he did not know how much properties had been left by his grandfather and grandmother. PW8 has further submitted that his father used to own one property bearing number H-1/41-42, New Seelampur, Delhi measuring 25 square yards. PW8 has denied the suggestion that his grandmother in her life time, distributed all the properties left by Late Charanjeet Singh to her all five sons and three daughters as per family settlement. PW8 has also denied that in purview of that settlement only, his father had got his share of property bearing number 11-1/41-42. New Seelampur. PW8 has also denied the suggestion that since H-203 was exclusively given to the Jhanda Singh as his share of property by his grandmother, hence, they never CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 15 of 30 objected and filed any partition suit qua the suit property during their life time. PW8 has denied the suggestion that the brothers and mother of defendant number 6 had given half of the house in question to defendant number 6. PW8 has also denied the suggestion that the defendant number 6 is the owner of the half of the property in question.
After closing of plaintiffs' evidence, defendants have led their piece of evidence. Defendant number 1 had himself stepped into the witness box and deposed as D1W1. D1W1 has reiterated the same facts as are mentioned by him in his written statement. He tendered his evidence by way of affidavit which is Ex.D1W1/A and relied upon the documents i.e. written documents of Smt. Sunder Kaur, dated 13.07.1987 bearing her thumb impression at point X and Y as Ex.DW1/A, Ex.DW1/B, affidavit executed by Late Sher Singh, dated 06.05.2010 as Ex.DW1/C and affidavit executed by Smt. Amrit Kaur W/o Late Sher Singh, dated 06.05.2010 as Ex.DW1/D. D1W1 was cross examined at length by Ld. Counsel for defendant number 19. During the course of his cross examination, it is submitted by D1W1 that he has no knowledge whether Late Charanjeet Singh had transferred the title of any of his property in the name of his wife Late Sunder Kaur. D1W1 had also failed to identify the handwriting of the person who had written the alleged document Ex.DW1/A. Instead, it is submitted by D1W1 that he is not aware about the name of the person who had written the document Ex.DW1/A. D1W1 had also submitted that the document Ex.DW1/C was not prepared, typed or executed in his presence.
Defendant number 6 Smt. Vandana was examined as D6W1. D6W1 has reiterated the same facts as are mentioned by her in her written statement. Apart from this, it is stated by D6W1 that the present suit filed by the plaintiff is not maintainable as the same is contrary to the family settlement arrived between the legal heirs of Late Charanjeet Singh CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 16 of 30 whereby half of the house bearing number H-203, New Seelampur, Delhi was given to D6W1 for all particular purposes just before the death of her mother. Thereafter, she tendered her evidence by way of affidavit which is Ex.D6W1/A and relied upon the documents i.e. photocopy of aadhar card acknowledgment of resident copy, dated 17.03.2015 of Smt. Vandana as Ex.D6W1/1 (OSR), photocopy of aadhar card of Smt. Vandana as Ex.D6W1/2 (OSR), photocopy of voter ID card of Smt. Vandana as Ex.D6W1/3 (OSR), photocopy of membership ID card of Smt. Vandana of Shivsena issued on 10.08.1999 as Ex.D6W1/4, photocopy of gas connection card and gas passbook, dated 09.07.2013 as Ex.D6W1/5 (OSR), Ex.D6W1/6 (OSR), photocopy of bank passbook of Bank of Baroda in the name of Smt. Vandana issued, on 05.05.1997 as Ex.D6W1/8 photocopy of gas cylinder consumer slips in the name of Smt. Vandana as Ex.D6W1/9 (colly), photocopy of letter from RTI office,d ated 03.03.2016 alongwith its envelope as Ex.D6W1/10, photocopy of application under section 151 Code of Civil Procedure filed by plaintiff number 5 in the present suit, sent to Smt. Vandana on her address i.e. H-203, New Seelampur, Opposite Gurudwara, Delhi as mentioned on its original envelope as Ex.D6W1/11, photocopy of an Inland Letter Card in the name of Smt. Vandana from Sh. Bhagwat Swaroop Brahamchari Trust (Regd.), Haryana with postal department stamp, dated 29.06.2011.
D6W1 has also relied upon photocopy of another Inland letter Card in the name of Smt. Vandana from Sh. Bhagwat Premi Mandal, Sh. Gauri Shanker Mandir, Chandni Chowk, Delhi of the year 2012 of which Smt. Vandana is the member as Ex.D6W1/12 and Ex.D6W1/13 respectively, photocopy of statement of Sh. Harbhajana Singh, Paramjeet Singh, Smt. Vandana and Sh. Deepak, all dated 24.03.2011 given before the SI Gyansingh, Police Station Seelampur as Ex.D6W1/14 (colly), photocopy of certified copy of statement of Smt. Vandana before the Special CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 17 of 30 Executive Magistrate, North East District, Delhi, dated 21.05.2012 as Ex.D6W1/15, photocopy of certified copy of cross examination of Smt. Vandana done by the Counsel for plaintiff, dated 20.06.2012 as Ex.D6W1/16, photocopy of police complaint made by Smt. Vandana against defendant number 2 to 4, dated 25.04.2016, 30.04.2016 and 02.06.2016 as Ex.D6W1/17, Ex.D6W1/18, Ex.D6W1/19, certified copy of judgment passed by Sh. Ajay Singh Shekhawat, the then Ld. JSCC/ASCJ/G. Judge, North, Karkardooma Court, Delhi in Suit No. 4308/15 dated 17.12.2016 as Ex.D6W1/20, photocopy of letter from the office of Deputy Commissioner of Police, North East District, dated 15.06.2016 and a certificate issued by Gurudwara Sri Guru Singh Sabha, New Seelampur, issued on 16.02.2018 in favour of Smt. Vandana as Ex.D6W1/21 and Ex.D6W1/22. D6W1 was cross examined at length by Ld. Counsel for plaintiff in which she has stated that her mother Smt. Sunder Kaur had not executed any Will in respect of the suit property. Neither any meeting had taken place regarding the partition of the suit property.
Defendant number 18 Sh. Harbhajan Singh was examined as D18W1. D18W1 has reiterated the same facts as are mentioned by him in his written statement. Apart from this, it is stated by D18W1 that he was well aware that the property bearing number H-203, New Seelampur, Delhi was given by Late Sunder Kaur to her son Late Jhanda Singh and now after the death of Sh. Jhanda Singh, his wife and children are having possession of the same. D18W1 has further stated that neither the parents of plaintiff nor the other legal heir of Late Charanjeet Singh objected over the same, but, after the death of Sh. Sher Singh, plaintiff number 1 to 6 with their malafide intention filed the suit for partition of the property bearing number H-203, New Seelampur, Delhi. Though the father of plaintiff number 1 to 5, Sh. Sher Singh was given shop number 6, New CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 18 of 30 Seelampur, Delhi by Smt. Sunder Kaur as per thesettlement taken place on 13.07.1987 and the said facts had been told to him by his mother Late Amarjeet Kaur. Thereafter, D18W1 tendered his evidence by way of affidavit which is Ex.D18W1/A. D18W1 was cross examined by Ld. Counsel for plaintiff. During the course of his cross examination, it is submitted by D18W1 that on 13.07.1987, his maternal grandmother Smt. Sunder Kaur had executed a written family settlement in respect of aforesaid property.
Defendant number 19 Sh. Pritam Singh was examined as D19W1. D19W1 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, D19W1 tendered his evidence by way of affidavit which is Ex.D19W1/A. D19W1 was cross examined by Ld. Counsel for plaintiff. During the course of his cross examination, it is submitted by D19W1 that no meeting had taken place regarding the partition of the suit property and the suit property had not been transferred in the name of any person after the death of Sh. Charanjeet Singh.
Defendant number 20 Dr. Chanchal Singh Deol was examined as D20W1. D20W1 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, D20W1 tendered his evidence by way of affidavit which is Ex.D20W1/A. D20W1 was cross examined by Ld. Counsel for plaintiff. During the course of his cross examination, it is submitted by D20W1 that Smt. Sunder Kaur was his maternal grandmother (Nani) and she had not prepared any deed of family settlement during her life time. D20W1 has further submitted that Smt. Amarjeet Kaur that is the mother of Dr. Chanchal Singh Deol had not executed any relinquishment deed in respect of her share in the suit property. D20W1 has further submitted that Late Charanjeet Singh had not executed any Will in respect of suit property.
CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 19 of 30
7. Now, before, going forward, it is essential to assimilate all the changed facts/developments for proper understanding/interpretation. The varied developments which took place were summarized well in the order dated 03.02.2017, by Learned Predecessor Court. The concerned order is reproduced herein for the sake the brevity:-
This case has been transferred to this court only on the last date of hearing and was at the stage of disposal of application of defendants no. 19 and 20.
Arguments heard on the application under Order 18 Rule 17 r/w section 151 CPC filed by defendant no. 19 on 04.10.2016 for recalling of PWs no. 1 to 5 and 8. Counsel for plaintiff has no objection if this application is allowed but the same is opposed by counsel for defendants no. 1 to 5.
However, no reply of this application has been filed by anyone.
The present suit for partition and permanent injunction was filed in the court about six years back on 21.05.2011 against six defendants. During pendency of the suit, application of armendment of the plaint was moved by the plaintiff under Order 6 Rule 17 CPC with extra prayer to implead more defendants i.e. defendants no. 7 to 18 which was allowed on 27.08.2012. Plaintiff no. 7 expired and his LRs were brought on record. Defendants no. 9. 11. 15 to 17 became ex-parte vide order dated 14.08.2013. Issues in this case were framed on 26.02.2014. Plaintiffs examined total 6 witnesses (PW-1 to PW-5 and PW-8) and closed their evidence on 05.11.2015. There is no witness having number PW-6 and PW-7. Defendant no. 1 filed his affidavit of evidence but before his cross examination could be started, an application under Order 1 Rule 10 CPC was filed on 01.02.2016 by three applicants namely Pritam Singh, Chanchal Singh and Balbir Singh which was allowed on 31.03.2016 and they were impleaded as defendants no. 19 to 21. Defendants no. 19 and 20 only filed their written statement as per record and no written statement of defendant no. 21 came on record. The court felt no need to reframe the issues so vide order dated 02.08.2016 granted opportunity to newly impleaded defendants no. 19 and 20 to cross examine the plaintiff's witnesses already examined.
The record further shows that witnesses PW-1 to PW-5 and PW-8 were recalled on 08.09.2016 and the counsel for the newly impleaded defendants no. 19 and 20 cross examined them by simply stating that he is adopting the cross examination of the witnesses already conducted. No question was put to these six witnesses on behalf of defendants no. 19 and 20.
The case was again fixed for cross examination of DW-1 vide order dated 08.09.2016 whose affidavit had come on record but in between the present application was filed. It is CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 20 of 30 stated in the application that due to inadvertence and oversight as well as due to the fact that counsel for the defendants no. 19 and 20 was feeling unwell so the said PWs i.e. PW-1 to PW- 5 and PW-8 could not be cross examined on certain material points. In this application it is admitted that the witnesses were recalled and were cross examined.
Nothing is disclosed in the application on what certain material points the witnesses could not be cross examined. During arguments counsel for defendants no. 19 and 20 stated that only one question and one suggestion is to be put to all the witnesses which cannot be disclosed now.
However, I feel that ground taken in the application is not justified to recall the six witnesses when they were recalled on 08.09.2016 but counsel for the defendants did not opt to put any single question to them and simply stated that he is adopting the cross examination of the witnesses already conducted. The record indicates that defendants no. 1 to 5 are only contesting the case and had conducted the cross examination of all the plaintiff witnesses whereas other defendants did not choose to put any question to them and got the cross examined treated as nil. From these facts it is clear that the defendants no. 19 and 20 were also not to ask other question to the plaintiff's witnesses except to adopt the cross examination as done by defendants no. 1 to 5.
Defendants no. 19 and 20 could inform the court that they were adopting the cross examination already done but instead of informing the same they got recalled six witnesses of the plaintiff unnecessarily and then allowed to send back. In fact due to this attitude and conduct of the defendants no. 19 and 20 six witnesses of the plaintiff were unnecessarily appeared in the court and suffered harassment. After considering these facts I am of the opinion that this application of the defendants no. 19 and 20 cannot be allowed so the same is dismissed with cost of Rs. 5000/- to be deposited in DLSA. Receipt of the payment of the cost be shown on next date otherwise the defence of these two defendants can be struck off or any other adverse order can be passed. Now put up this matter on 02.05.2017 for cross examination of DW-1 and remaining evidence on behalf of defendants no. 1 to 5.
8. Proceeding further, I have heard the arguments advanced on behalf of parties and perused the case file carefully.
Written submissions have been filed on behalf of plaintiff. Apart from reiterating the contents of plaint, their testimonies and the contents of the written statement, it is stated that the defendants have admitted that the suit property is an ancestral property belonging to Late Charanjeet Singh CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 21 of 30 and he had died intestate. It is also stated that defendant number 6 has stated that both Charanjeet Singh and Sunder Kaur had not executed any Will. It is also stated that defendant number 19 had himself stated that no meeting had taken place regarding the partition of the suit property. It is stated that the alleged family settlement, dated 13.07.1987 is not legally enforceable document as Smt. Sunder Kaur had no capacity to transfer the suit property to any person. Further, the alleged family settlement is not a registered document neither stamped and there was no mention of any witness. Thereafter, reliance is placed upon Roshan Singh & Ors. Vs. Zile Singh & Ors, AIR 881, 1988 SCR (2) 1106, decided on 24.02.1988. It is further stated that the forged affidavit of Sher Singh and his wife were also relied upon by the defendants. It is further stated that the suit property though is leasehold but can be partitioned as per law. Plaintiff has relied upon the judgments titled as Inderjit Singh Vs. Tarlochan Singh, decided on 07.02.1991 and Chiranji Lal & Anr. Vs. Bhagwan Das & Ors, decided on 30.05.1991. All these judgments perused carefully.
Written submissions on behalf of defendant number 1 to 5 have also been filed in which apart from reiterating the contents of the plaint of the plaintiffs as well as the written statement filed by the defendants, it is stated that defendant number 1 to 5 have duly filed their written statement and mentioned about the details of legal heirs of Late Charanjeet Singh and also p rayed that the suit be dismissed because of non compliance of provision of Code of Civil Procedure as the plaintiffs fail to implead all the legal heirs of Late Charanjeet Singh as necessary party to the suit. It is further stated that the defendant number 1 to 5 have also taken a plea that the suit property allotted under the removal of Jhuggi Jhopri Scheme by Delhi Development Authority in the name of late Charanjeet Singh and after his death, the grandmother of defendant number 1 to 5, Late Sunder Kaur being head of the family managed all children of Late Charanjeet CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 22 of 30 Singh which includes five sons and three daughters. Defendant number 1 to 5 also objected that their mother Smt. Jyoti Kaur was also not impleaded as a party to the suit. It is further stated that the defendant number 1 to 5 have taken a plea that their father Late Jhanda Singh was given the suit property as his share and Late Jhanda Singh had paid all the charges to the Delhi Development Authority and remained in possession since beginning. It is further stated that the defendant number 1 to 5 have also taken a plea that the instant suit filed by the plaintiffs is also not maintainable as the suit property cannot be partitioned being allotted under the Scheme of Jhuggi Jhopri by the Delhi Development Authority and charges had been made till date since beginning by the father of defendant number 1 to 5.
It is further stated that defendant number 6 being a daughter of Late Charanjeet Singh filed her written statement in which she had taken a plea that her mother had partitioned the property among her children and the suit property was given to father of defendant number 1 to 5 and her mother had given her half (½) of the suit property. It is further stated that the defendant number 7, 8, 10, 12, 13, 14 and 18 have also filed their written statement and they have admitted that Late Sunder Kaur had divided the properties left by Late Charanjeet Singh among his children during her life time by way of settlement, dated 13.07.1987. Thereafter, defendants in their written submissions discussed the evidence adduced by the plaintiffs being PW1, PW2, PW3, PW4 and PW5. It is stated that PW1 to PW5 are the real brothers and interested witnesses. It is also stated that their depositions are contradictory to each other. It is stated that the plaintiffs have not brought plaintiff number 6 as witness and plaintiff number 8 has admitted in his cross examination that he is not aware about the contents of the affidavit. PW8 has filed the present suit under the influence of plaintiff number 1 to 5. It is further stated that defendant number 1 has led his evidence as D1W1. It is also stated that DW18 has CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 23 of 30 led his evidence and stated the facts regarding the family settlement.
Written submissions have also been filed on behalf of defendant number 19 in which once again, he has reiterated the contents of his written statement and his testimony. It is stated that the mother of defendant number 19 had contributed a lot of money for the constructions of the suit property. It is stated that Smt. Amarjeet Kaur during her life time requested for partition of the suit property and defendant number 19 has legitimate right and interest in the suit property. It is stated that defendant number 1 to 5 have malafide intention to grab the suit property. It is also stated that defendant number 19 and his other brothers and sisters jointly have 1/6th share in the suit property.
Written submissions have also been filed on behalf of defendant number 20 in which once again, he has reiterated the contents of his written statement and his testimony. It is stated that after the death of Late Charanjeet Singh and before filing the present suit, his wife also died. Two sons of Late Charanjeet Singh, namely, Chander Singh and Jagjit Singh died issueless and after their death, there are six share holders in the suit property that is Late Sher Singh (through legal heirs that is plaintiff number 1 to 6), Late Attar Singh (through legal heirs that is plaintiff number 7), Late Jhanda Singh (through legal heirs that is defendant number 1 to 5), Smt. Vandana that is defendant number 6, Late Chander Kaur (through legal heirs that is defendant number 7 to 15) and Late Amarjeet Kaur (through legal heirs that is defendant number 16 to 21). It is further stated that prayer of the plaintiffs for the half share in the suit property is not maintainable and plaintiff number 1 to 6 are only entitled for 1/6th share and plaintiff number 7 is also entitled for 1/6 th share. It is further stated that Smt. Sunder Kaur has no right/title to hand over the suit property to the father of defendant number 1 to 5. It is also stated that Ex.DW1/C and Ex.DW1/D are not proved in accordance with law and CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 24 of 30 therefore, these documents do not possess any value in the eyes of law.
9. 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 plaintiff is entitled for decree of partition as prayed in the suit? Issue number 2, that is, whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? Issue number 3, that is, whether the plaintiff is entitled for decree of possession as prayed in the suit? and Issue number 4, that is, whether the plaintiff is entitled for decree of declaration as prayed in the suit? The onus to prove all these issues is on the plaintiff. All these issues being interconnected and having the bearing upon each other are taken up together.
Firstly, it is to be noted that plaintiff has to establish his case and he will not automatically succeed merely because of the failure of the defendant to establish his/her defence. A party has to plead the case and produce/adduce sufficient evidence to substantiate his/her submissions made in the plaint. Further, burden of proof in cases of partition as mentioned in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides upon whom burden of proof lies. It has been provided that the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all where given on either side. Section 103 of the Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 25 of 30 particular person, and lastly Section 104 of the Act provides that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of other fact is on the person who wishes to give such evidence. There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Also, whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Now, again the expression "partition" under the Hindu law may comprehend, as pointed out by Lord Westbury in Appovier vs. Rama Subbaayyan, 11 Moo. Ind. App. 75 at p. 90 (P.C.) the division of title and division of property. A physical division of the family property may be brought about either by a suit for partition,or in pursuance of an agreement between the members dividing the property. The division of right likewise may be a matter of agreement between the parties. The members of an undivided family may agree among themselves with regard to any particular property that they shall enjoy the same thereafter in certain defined shares. Such a definment of share effects a change in the character of the undivided property. On such a definement of the shares, family CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 26 of 30 ceases to be joint and the members thereof cease to be joint tenants and become tenants-in-common. Under the Hindu Law, partition is of two kinds: (I) separation in status and (2) separation in interest or estate. While the first kind of separation is a notional separation, a second kind of partition is a physical division of the property of the family, giving each member of the family, separate possession of his share. Thus, partition is basically re-distribution or adjustment of pre-existing rights, among co- owners/coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it.
A person who does not have a share in such property cannot obviously be a party to a partition. `Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. Separation of share/s refers to a division where only one or only a few among several co- owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues: (i) whether the person seeking division has a share or interest in the suit property/properties; (ii) whether he is entitled to the relief of division and separate possession; and (iii) how and in what manner, the CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 27 of 30 property/properties should be divided by metes and bounds? In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. Every coparcener is entitled to the share upon partition. Every adult coparcenar is also entitled to demand and to sue for partition at any time. Reliance is placed upon Chennananjappa v. Khaleel, 43 Mys. 375 and Waman v. Ganpat, 1936 Bom. 10 at p.12 and Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna & Ors., Special Leave Petition (C) No. 17932/2009, decided on 21.08.2009 and 10 All. 272, 287 (P.C) alongwith Mulla, 2020 edition Hindu Law, 2023.
Now, in the instant case, though the defendant number 1 to 5 and especially the defendant number 1 who has deposed before the Court as D1W1 has relied upon the documents that are Ex.DW1/A and Ex.DW1/B claiming them to be written on the instructions of Late Sunder Kaur/written by Late Sunder Kaur. It is also claimed on behalf of D1W1 that as per these documents, suit property was given to their father Late Jhanda Singh and therefore, the plaintiffs or any other defendants have no right left in the suit property. Both these documents have been perused very carefully to understand the intention/circumstances/manner in which they come into existence. After, perusing both these documents, the exact intention of the writer as such is not culled out as claimed by the D1W1. In these documents, there are various claims made on behalf of writer of these documents especially qua Late Jagdish Singh and at one place, name of Late Sher Singh has also been reflected. Further, no steps were taken by the defendant number 1 to 5 to explain either the contents of these documents or to establish the handwriting of these documents. Neither these documents were witnessed by anybody nor the thumb impression proved/established. Also, the documents that are exhibited as Ex.DW1/C CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 28 of 30 and Ex.DW1/D, the affidavits, allegedly belonging to deponent Late Sher Singh and Amrit Kaur are specifically denied to be executed. Again, both these documents are not proved by defendant number 1 to 5 in light of purview of Indian Evidence Act either by calling the notary public or explaining their relevancy in the absence of registration in terms of the mandate of the Hon'ble Superior Courts. In Kale Vs. Dy. Director of Consolidation, AIR 1976 SC 807, Hon'ble Supreme Court has expressly laid down that family settlement must be bonafide one, so, as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
Thus, this Court is of the considered opinion that the suit property has to be partitioned among the legal heirs in the Class-I of the schedule, in accordance, especially with Rules 2 & 3 of the Section 10 of the Hindu Succession Act. Late Charanjeet Singh had five sons, out of which Sher Singh, Attar Singh and Jhanda Singh had legal representatives including sons, who are the parties in the present suit. Apart from this, Late Charanjeet Singh had three daughters as well. One of the daughters, Smt. Vandana is the party to the suit alongwith sons and daughters/legal heirs of other two daughters being Amarjeet Kaur and Chandan Kaur. The deceased sons alongwith one alive daughter and two deceased daughters of Late Charanjeet Singh are entitled to 1/6 th share each in the suit property. This 1/6th share then has to be redistributed further between the respective legal heirs of deceased sons and daughters of Late Charanjeet Singh. All these issues are accordingly decided.
10. In view of the facts and circumstances of the case, the suit of the plaintiffs is decreed in the following terms:- Late Charanjeet Singh had five sons, out of which Sher Singh, Attar Singh and Jhanda Singh had legal representatives including sons, who are the parties in the present CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 29 of 30 suit. Apart from this, Late Charanjeet Singh had three daughters as well. One of the daughters, Smt. Vandana is the party to the suit alongwith sons and daughters/legal heirs of other two daughters being Amarjeet Kaur and Chandan Kaur. The deceased sons alongwith one alive daughter and two deceased daughters of Late Charanjeet Singh are entitled to 1/6th share each in the suit property that is H-203, measuring 80 square yards, situated at New Seelampur, Delhi. This 1/6th share then has to be redistributed further between the respective legal heirs of deceased sons and daughters of Late Charanjeet Singh. The preliminary decree of partition be passed accordingly. However, the appropriate method of partition of suit property shall require further inquiry, which shall be conducted in due course.
Further, a decree of permanent injunction is also passed in favour of plaintiffs and against the defendants thereby restraining the defendants from selling, transferring, mortgaging or creating third party interest in the suit property that is H-203, measuring 80 square yards, situated at New Seelampur, Delhi.
11. 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. 23rd January, 2024 CS No. 476461/2015 S. Harjit Singh & Ors. Vs. Harbhajan Singh & Ors. Page No. 30 of 30