Delhi District Court
Also At vs Sh. Madan Mohan Mago on 15 February, 2017
IN THE COURT OF MS. ASHA MENON : DISTRICT
& SESSIONS JUDGE : SOUTH DISTRICT : SAKET
NEW DELHI
CIS-CS DJ209513-2016
CNR DLST01007391 2016
Sh. Sushil Kumar Mago
S/o Late Sh. Ram Lal Mago
R/o W12, Green Park, New Delhi.
ALSO AT :
G4/69, Sector11,
Rohini, Delhi ........Plaintiff
Versus
1 Sh. Madan Mohan Mago
S/o Late Sh. Ram Lal Mago
R/o W12, Green Park, New Delhi.
2 Smt. Beena Mago,
W/o Late Sh. Inder Prakash Mago.
3 Sh. Ashok Kumar Mago,
S/o Late Sh. Inder Prakash Mago.
4 Ms. Sonia
D/o Late Sh. Inder Prakash Mago.
All R/o W12, Green Park, New Delhi.
5 Smt. Shashi Mago, (since deceased)
Wd/o Late Sh. Kulbhushan Mago.
R/o W12, Green Park, New Delhi.
CIS-CS DJ209513-2016 Page 1 of 17
6 Smt. Pushpa Devi
Wd/o Late Sh. Krishan Mohan Mago.
7 Sh. Amit Mago
S/o Late Sh. Krishan Mohan Mago.
8 Ms. Jyoti
D/o Late Sh. Krishan Mohan Mago.
All R/o W12, Green Park, New Delhi. .......Defendants
Date of Institution : 12.05.2008
Judgment reserved on: 19.01.17
Judgment pronounced on: 15.02.17
J U D G M E N T
This is a suit for partition. Late Sh. Ram Lal Mago and
Smt. Mira Mago had seven children of which five were sons and two
were daughters namely Sh. Inder Prakash, Sh. Kulbhushan, Sh.
Krishan Mohan, Sh. Madan Mohan and Sh. Sushil Kumar. Smt.
Sudershan Soni and Ms. Asha Thakur. Late Sh. Ram Lal Mago was
the owner of the 200 sq. yards plot bearing no.W12, Green Park, New
Delhi on which at various times two and half storeyed house was
constructed. During his life time, late Sh. Ram Lal Mago executed his
alleged Will and testamants on 20.08.1971 bequeathed the property
and other moveable assets in favour of his wife Smt. Mira Mago. Smt.
Mira Mago died on 03.01.1987. According to the plaintiff since the
Will had excluded his sisters, the property in question had devolved on
all the sons upon the demise of their mother, Smt. Mira Mago and
CIS-CS DJ209513-2016 Page 2 of 17
thus, they all became the joint owners of the property. Sh.
Kulbhushan died on 28.11.2000 leaving behind his wife Smt. Shashi
Mago. Sh. Inder Prakash Mago died on 22.03.2000 leaving behind his
wife Smt. Beena Mago, his son Sh. Ashok Kumar Mago and daughter
Ms. Sonia. Sh. Krishan Mohan Mago died in the year 2007 leaving
behind his wife Smt. Pushpa Devi, his son Sh. Amit Magi and his
daughter Ms. Jyoti.
The plaintiff has filed this suit for partition against his
brothers Sh. Madan Mohan Mago as defendant no.1, the LRS of Sh.
Inder Prakash Mago as the defendants no.2 to 4, Ms. Shashi Mago as
defendant no.5 and the LRs of his brother Sh. Krishan Mohan Mago
as the defendants no.6 to 8.
In the plaint, it is stated that all the brothers and now
through the LRs had onefifth share in the property being W12,
Green Park, New Delhi. The plaintiff has also stated that his family
and the defendants no.6 to 8 have been residing in half portions of the
ground floor with common using of the drawing room. The first floor
was in the possession of the defendant no 5 and the defendants no.6 to
8 were not in use and possession of the upper floor of the property. It
is claimed that for long there were no differences or disputes among
the brothers. However, after the death of Sh. Krishan Mohan Mago
who died of a natural cause, his wife Smt. Pushpa Mago lodged a false
complaint with the police against the plaintiff on the basis of which an
FIR No.550/07 was lodged with the PS Hauz Khas U/s 304 IPC
despite the fact that the postmortem report mentioned that the
CIS-CS DJ209513-2016 Page 3 of 17
deceased had died a natural death.
According to the plaintiff, the defendant no.6 with a
malafide intention did not allow the plaintiff's wife, Smt. Madhu
Mago access to the premises on the ground floor on 22.07.2007,
27.09.2007and 12.01.2008. It may be mentioned here that the plaintiff claims to have shifted to a house in Rohini in 2006. The plaintiff claims that due to the attitude of the defendants no.6 and as she kept closing the door and locking the main gates to harass them, The plaintiff and his family being in possession of the half portion on the ground floor, the plaintiff felt that it was proper that the property be not kept in the joint ownership of the brothers and their families and therefore, he requested the defendants for partition by metes and bounds, but that the defendants paid no heed and finally as they still did not heed to the request of the plaintiff on 04.04.2008 and further threatened to dispose off the property to third parties, the present suit was filed seeking partition. The plaintiff has prayed for a preliminary decree to the extent of onefifth share of the plaintiff in W12, Green Park, New Delhi and to partition the property by metes and bounds by appointing a Local Commissioner and thereafter issuing a final decree.
The defendants have filed their written statements. The defendants no.1 and 5 have filed a joint written statement whereas the defendants no.2 to 4 have filled a common written statement and the defendants no.6 to 8 have also filed a joint written statement. None of the defendants have disputed that the property had initially belonged CIS-CS DJ209513-2016 Page 4 of 17 to the father, late Sh. Ram Lal Mago / grandfather and that he had bequeathed the same to the mother, late Smt. Mira Mago / grandmother. The Will is also not disputed. The death of the mother and the succession thereafter to the property through intestate inheritance is also not challenged. However, the common stand taken by the defendants in their various written statements is that during the life time of their mother Smt. Mira Mago / grandmother, the property had been partitioned and each brother had been given the possession of the portion that fell into his share. Thus, the defendants stated that the ground floor was divided into two portions and the front portion was given to late Sh. Krishan Mohan Mago and was in possession of the defendants no.6 to 8 whereas the rear portion was in possession of the plaintiff as his share in the property. The defendants no.6 to 8 further claimed that the access of the plaintiff to his portion was through the rear entry and he had no right to invade their privacy. It is also their claim that the drawing room was not common and only the bathroom and the latrine were common to both the families.
All the defendants further stated that the defendants no.1 & 5 had similar portion on the first floor of which they were in possession as their share. The top floor was given to Sh. Inder Prakash Mago. The defendants no.2 to 4 claim that the entire construction was carried out by Late Sh. Inder Prakash Mago and they also claimed the upper floor as their property being the area falling into the share of Late Sh. Inder Praksh Mago. Thus, all the defendants claim that there was nothing remaining to partition and the entire suit CIS-CS DJ209513-2016 Page 5 of 17 was without cause and was not maintainable and that the suit for partition be dismissed.
The plaintiff has filed replications to all these written statements denying that the partition had ever taken place. It may be noticed that the plaintiff does not dispute that various families are in possession of separate defined portions in the property. It is submitted that the ownership is still joint as no partition has taken place between the brothers. It was, therefore, submitted that the suit for partition was maintainable and the plaintiff was entitled to the relief as he has sought.
Upon the pleadings of the parties, the following issues were framed :
i) Whether the suit property stands already partitioned, as alleged by the defendants? OPD 18
ii) Whether the suit lacks cause of action as against defendants? OPD 18
iii) Whether the suit is properly valued for the purpose of court fee and jurisdiction? If so, to what effect? OPD 18
iv) Whether the plaintiff is already in possession of his 1/5th share?
OPD 18
v) Whether the plaintiff is entitled to a decree, as prayed for? OPP
vi) Cost?
vii) Relief(s).
CIS-CS DJ209513-2016 Page 6 of 17
Sh. Sushil Kumar Mago examined himself as PW.1 and closed his evidence.
Sh. Madan Mohan Mago was examined as DW,1. Sh.
Ashok Kumar Mago examined himself as D3W1. Smt. Pushpa Devi examined herself as D6W1. Sh. Amit Mago examined himself as DW.7.
Ld. counsel for plaintiff submitted that the suit was for partition of a residential house which was two and half storeyed though there is an error in the plaint describing it as one and half storeyed building. This property had been purchased by the father of the plaintiff in 1956 vide a Sale Deed. A Will had been executed by the father in favour of the mother and after her demise, as she died intestate, as per the Will of the father, the property devolved on the five sons. The daughters were excluded and in the absence of the son, upon the son's legal heirs. The Will is not disputed. It is also not disputed that on the ground floor, the plaintiff and the defendants no.6 to 8 were residing and though the plaintiff was staying at Rohini, he continues to be possession of a portion on the ground floor till date. On the first floor, the defendant no.1 and defendant no.5 were residing. The defendant no.5 has died intestate and issueless. On the second floor, the defendants no.2 to 4 were residing in the constructed portion.
The question was only whether there has been a partition as claimed by the defendants. In this regard, the Ld. counsel for the plaintiff pointed out that the defendant no.6 had admitted that there CIS-CS DJ209513-2016 Page 7 of 17 was no partition and that there was joint possession. The defendant no.7, son of the defendant no.6 also admitted that the property was joint and undivided property. The defendant no.1 referred to the undivided share. Additionally, roof and courtyard were also common. The plaintiff submitted the drawing room on the ground floor was also common to him and the defendant no.6 to 8 and thus, it was apparent that there was no partition. With regard to the share of the defendant no.5, Ld. counsel submitted that Section 15 of the Hindu Succession Act would be applicable and only the plaintiff and the defendant no.1 would inherit the share of the defendant no.5.
Ld. counsel for the defendants no.1 & 2 submitted that all the defendants' witnesses had deposed to the partition of the property in 1986 during the life time of the mother of the plaintiff. They, howevber claimed that the Barsati was partly constructed and the entire floor was constructed by Sh. Inder Prakash Mago, husband of the defendant no.2 and the father of the defendants no.3 & 4 after 1986. Ld. counsel pointed out to the Lease Deeds executed by Sh. Inder Prakash Mago when he let out the second floor from 1987 to 2003 to various tenants through the Lease Deeds wherein the father of the defendant no.7 and the plaintiff had signed as witnesses. It is further submitted that on the basis of the Lease Deeds, an inference may be drawn that the entire second floor was belonging to the defendants no.2 to 4. It was further argued that the suit had been filed after 28 years after the brothers had come into occupation of separate portions and had their separate water and electricity connections and CIS-CS DJ209513-2016 Page 8 of 17 therefore, the entire suit was malafide. With regard to the share of the defendant no.5, Ld. counsel submitted that the LRs of the deceased brother were also entitled to inherit her share and therefore, the partition of intestate share of the deceased defendant no.5, the deceased was required and the claim of the plaintiff seeking partition of the entire property was liable to be rejected.
Ld. counsel for the defendant no.1 and the defendants no.6 to 8 submitted that the plaintiff used to quarrel with the father of the defendants no. 7 & 8 and husband of the defendant no.6 which was why a case U/s 304 IPC was registered against the plaintiff. It was contended that it was not mandatory to have partition in writing. It was further argued that admittedly the brothers and their families have been residing in separate portions. Since no notice of partition had been served on the brothers, there was no cause of action to file the present suit and that the suit was premised on vague cause of action as no dates were mentioned about the demand for partition and since till date, the property had not been sold by the defendants, even that claim was wrong.
Ld. counsel also submitted that the entire property was misdescribed. Even the site plan did not reflect the portions that were stated to be in use and therefore, there was no property that was identifiable for partition. Ld. counsel submitted that the plaintiff had himself placed on record his electricity bill which described the premises as "rear portion". It is also submitted that the property had been partitioned through family settlement during the life time of the CIS-CS DJ209513-2016 Page 9 of 17 mother of the plaintiff. Therefore, there was nothing remaining for partition. Thus, the Ld. counsel for these defendants submitted that the suit for partition was not maintainable and liable to be dismissed.
I have heard the Ld. counsel for the parties and perused the evidence that has come on the record.
The findings on each of the issues are as follows :
ISSUES NO.1 & 4 :
The onus of these issues has been placed on the defendants no.1 to 8. It is their stand that after the demise of their father and after the mother had inherited the property through Will and the property was mutated in her name, the mother had divided the property amongst her five sons and the five sons and their families came to occupy the earmarked portions, the defendants claim that since the life time of the mother of the plaintiff i.e. since 1986, the admitted position is that the ground floor was shared between the plaintiff and his brother Sh. Krishan Mohan Mago who died leaving behind the defendants no.6 to 8 as his heirs; the first floor was shared between the families of the defendant no.1 and now deceased defendant no.5; the Barsati floor was in possession of Sh. Inder Prakash Mago, the brother of the plaintiff who has also died and whose legal heirs are the defendants no.2 to 4 who are in possession of that floor. The argument on behalf of the defendants was that this was family settlement which tantamounted to partition.
However, the evidence that the defendants have brought on record does not establish that there has been a family settlement in CIS-CS DJ209513-2016 Page 10 of 17 respect of the rights of the parties to the property in question, much less a physical partition of the property during the life time of the mother. The Will no doubt vested the mother with the right to dispose of the property, but it is significant that she did not gift or transfer any portion to any of the children vesting rights in them. There is nothing to suggest that she had relinquished her rights in the property that she had inherited from its husband in favour of any of her sons. The mother may have arranged a family settlement by assigning the portions to her sons and their families and the sons may have cheerfully taken the portions as assigned by the mother for their residences. The said assignment of portions is neither a family settlement nor a partition.
Thus, when the mother, Late Smt. Mira Mago died on 03.01.1987, she was the owner of the property bearing No. W12, Green Park, New Delhi as per the Will of late Sh. Ram Lal Mago which is not disputed by any of the parties. Upon her demise, leaving no Will or other testaments behind which each son inherited onefifth share in that property, again in accordance with the Will of late Sh.
Ram Lal Mago.
The question is whether the portion in possession of the brothers or their families is equal to that onefifth share that they had inherited in terms of their late father's Will. Again the question would be whether the portions were so vested and therefore, there was nothing remaining to be partitioned, except for the portion or share left behind by the defendant no.5, she being issueless at the time of her CIS-CS DJ209513-2016 Page 11 of 17 death. The reference to the evidence that has come on the record would reveal that infact onefifth share has not been determined in actual measurements and nor has the property been partitioned in terms of the said measurements.
It is significant to note that the defendant no.3 in his affidavit claimed that the plaintiff and late Sh. Krishan Mohan Mago, predecessor in interest of the defendants no.6 to 8 had been given 540 sq. yards each on the ground floor and similarly 540 sq. yards had been given to the defendant no.1 and the deceased husband of the defendant no.5 while claiming that the defendants no.2 to 4 had been given 640.98 sq. yards on the second floor. On the face of it, this does not reflect a onefifth share distribution.
The evidence also brings out the differences among the defendants themselves, what to talk of the plaintiff. The plaintiff no doubt claims the entire property was joint and was required to be partitioned to identify the onefifth share of each brother / their LRs. While the defendants no.2 to 4 claimed that the terrace belonged to them and on the crossexamination of the defendant no.7 as DW.7 also claimed roof rights, the defendant no.1 as DW.1 was categorical that the terrace was joint and common. The defendants no.6 to 8 have also repelled the claim of the defendant no.2 that the terrace was exclusive to them and both the defendants no.6 & 7 admit that the terrace was common.
The courtyards both in the front and in the back have also variously been claimed to be joint. The defendant no.1 and the CIS-CS DJ209513-2016 Page 12 of 17 defendant no.7 admittedly parked their vehicles in the courtyards. The defendant no.6 as DW.6 admitted that courtyards and terrace were common. The water tanks were also on the terrace and the defendant no.1 also had a water tank in the rear courtyard. The defendant no.1 as DW.1 explained that he parked his vehicle in the rear courtyard as it was joint. The defendant no.3 admitted that the defendant no.7 parked his scooter in the courtyard as it was common. Thus, it is clear that the division as claimed by the defendant no.3 in his affidavit is not supported by any other defendant or the plaintiff and there are disputes in respect of the said property which has come out in the open during this trial. No one has ofcourse mentioned anything about a share in the land beneath the building.
Thus, it is clear that none of the parties have been proved shown to be in possession of their exact onefifth share in the property. With regard to the plaintiff, he has also claimed that the drawing room is joint with the defendants no.6 to 8. While initially they disputed the same, the defendant no.3 has admitted that the drawing room was common to the plaintiff and the defendants no.6 to 8 and there has no crossexamination of this assertion by the defendants 6 to 8. The plaintiff has disputed that he has been given access from the rear side when admittedly the other members of the family have access from the front side through the staircase to the upper floors. The defendants no.6 to 8 have not been able to prove that the drawing room is in their exclusive possession. While they challenged the site plan, Ex.PW.1/1. filed by the plaintiff, the CIS-CS DJ209513-2016 Page 13 of 17 defendants no.6 to 8 did not care to file on record their site plan to clearly delineate the exclusive areas belonging to them with common areas shared with the plaintiff and the rest of the family. Similarly, the defendant no.7 has not chosen to file on record his site plan in support of his contention that 540 sq. yards had been vested with the brothers while his father had been given the entire second floor. No doubt filing of the site plan alone would not have substantiated this claim.
Infact this claim is completely questioned by the other defendants in their testimony. The defendant no.7 has explained that his father had no doubt signed the Lease Deed, Ex.DW1D24. but that when Sh. Inder Prakash Mago started to claim that the terrace on the second floor was exclusively his, Late Sh. Krishan Mohan Mago declined to sign the Lease Deed. Thus, there was a challenge to the claim of Sh. Inder Prakash Mago from his own brother when they were both alive. They plaintiff has also explained that he had signed the Lease Deeds as witness but clearly, mere signing of the Lease Deed cannot be taken as relinquishment of rights in immovable property. It could rather have been concurrence to the lease and probably the receipt of the rent by only one brother.
Be that as it may, the evidence brought on record does not establishe that the suit property stood partitioned at the time of the filing of the case and that the plaintiff was already in possession of his onefifth share in the property. These issues are, therefore, answered against the defendants and in favour of the plaintiff.
CIS-CS DJ209513-2016 Page 14 of 17ISSUE NO.2 :
The onus of this issue was on the defendants. However, except for a submission that there was no notice served by the plaintiff seeking partition and the contention of Ld. counsel for the defendants no.1 and the defendants no.6 to 8 that no dates have been specified in the plaint, the defendants have not been able to discharge the onus placed on them to show how the suit was filed without cause of action. Admittedly, the property belonged to the late father of the plaintiff. Admittedly, the defendants are his brothers or the legal heirs of his brothers. Admittedly, the Will left by the late father records that after the death of the mother intestate, the five sons would inherit one share each i.e. would have onefifth share in the property. The plaintiff is claiming only that onefifth share. This issue is, therefore, answered against the defendants and in favour of the plaintiff.
ISSUE NO.3 ;
The onus of establishing that the property had not been properly valued for the purpose of court fee is on the defendants No.1 to 8. Once again they have not led any evidence to suggest that the suit property was improperly valued for the court fee and the jurisdiction. None of them have denied that the plaintiff is also in possession of a portion of the property. In these circumstances, this issue is answered against the defendants and in favour of the plaintiff.CIS-CS DJ209513-2016 Page 15 of 17
ISSUE NO.5 :
In the light of the aforementioned findings, clearly the plaintiff is entitled to a decree, as prayed for. The objection that the plaintiff had not issued a written notice is not sufficient to defeat his right to claim partition of his share by metes and bounds. Filing of the suit itself amounts to demand for partition.
The defendant no.5 has died intestate. U/s 15 of the Hindu Succession Act, 1956, a property of a female Hindu dying intestate would devolve in accordance with the rules set out in S ection 16 firstly upon her sons and daughters or children of any predeceased son or daughter and the husband. Where the husband has pre deceased her, the property would devolve upon heirs of the husband. The successors to the husband is provided for by Section 8 which says that a property of a male Hindu who died intestate shall devolve firstly upon his class I heirs and in their absence upon class II heirs as provided in the schedule. The schedule lists his own lineage through his sons and daughter along with widow and the mother as class I heirs. These heirs have to be excluded as not being available in the present instance. Class II heirs are the father and the father is also not alive. The next class is sons, daughter's sons and daughter, brother and sister, the third is children and the grand children which is also not applicable here. The fourth is brother's son and daughter and sister's son and daughter.
Thus, among class II, heirs of the defendant no.5, Smt. Shashi Mago, being heirs of her late husband, being his brother, the CIS-CS DJ209513-2016 Page 16 of 17 plaintiff and the defendant no.1 and the children of the deceased defendants namely the defendants no.3 & 4 and the defendants no.7 & 8 are available. However, under the Rules of Section 16 read with Section 9, those in the first entry in Clause II are to be preferred to those in the second entry and those in the second entry are to be preferred to those in the third entry and so on. In other words, brothers are to be preferred to the heirs of a deceased brothers Thus, onefifth share of the defendant no.5 is to be equally shared between the plaintiff and the defendant no.1. The defendants no.4 & 8 have relinquished their shares in favour of their brothers, the defendant no.3 and the defendant no.7.
A preliminary decree be drawn up on these lines.
Announced in open Court (ASHA MENON )
today on 15.02.2017 District & Sessions Judge (South)
Saket/New Delhi.
CIS-CS DJ209513-2016 Page 17 of 17