Delhi High Court
Smt. Bala Devi vs Sh. Chhotu Ram & Ors. on 20 March, 2013
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th March, 2013
+ CS(OS) No.966/2010
SMT. BALA DEVI ..... Plaintiff
Through: Mr. Hasan Anzar & Mr. Samama
Suhail, Advs.
Versus
SH. CHHOTU RAM & ORS. ..... Defendants
Through: Mr. Rajesh Kumar Verma & Mr. S.S.
Gulia, Advs. for D-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1.The plaintiff by this suit seeks partition of her 1/9 th share in plot No.11, ad-measuring 250 sq. yds., Sector-23, Dwarka, Delhi and in house No. 227, village Kakrola, Dwarka, Delhi from her father impleaded as defendant No.1 and has impleaded her other siblings as defendants No.2 to 8.
2. It is the case of the plaintiff:
(i) that she is a coparcener in the aforesaid joint property held by the family of which her father / defendant No.1 is the Karta;
(ii) that the grandfather of the plaintiff Sh. Bhe Ram owned certain land in village Kakrola, Dwarka and constituted a HUF along CS(OS) No.966/2010 Page 1 of 11 with his two sons viz. the defendant No.1 and Mr. Mukhtiar Singh;
(iii) that on the demise of Sh. Bhe Ram in 1961-62, there was a partition in the family and accordingly the two sons of Sh. Bhe Ram i.e. the defendant No.1 and Mr. Mukhtiar Singh constituted their respective HUFs; out of total five acres of land owned by Sh. Bhe Ram, 2½ acres each fell to the respective shares of the said HUFs;
(iv) that in the aforesaid manner, the defendant No.1's family i.e. M/s Chhotu Ram HUF came to own 2½ acres of joint Hindu family property;
(v) that the said property is joint family property as it came out of nucleus of the joint property of five acres;
(vi) that the said property has not been purchased by the defendant No.1 out of his own funds, resources or income;
(vii) that the said property has always been joint and held by the defendant No.1 as its Karta;
(viii) that the defendant No.1 however in collusion with the Revenue Officer managed to show the said property in his name only; CS(OS) No.966/2010 Page 2 of 11
(ix) that the joint family of Chhotu Ram HUF besides the land aforesaid also holds ancestral house in village Kakrola, Dwarka;
(x) that the land ad-measuring 2½ acres was acquired vide Award No.1 of 1993 and compensation was received in the name of defendant No.1 and his brother Mr. Mukhtiar Singh;
(xi) that over and above the said compensation amount, alternative plot has also been given in or about March-April, 2010;
(xii) that the plot having been given as alternative to joint family land, is also joint family property;
(xiii) that the purpose of providing alternative is to rehabilitate and settle all the family members whose land is acquired;
(xiv) that after the amendment of the year 2005 to Section 6 of the Hindu Succession Act, 1956, the plaintiff though a daughter is also a coparcener and entitled to a share in the coparcenary property; and
(xv) that the defendant No.1 inspite of demand had denied partition.
3. The defendant No.1 has contested the suit by filing a written statement pleading:
CS(OS) No.966/2010 Page 3 of 11
(i) that the land aforesaid was owned by his father Mr. Bhe Ram and after the demise of the father, the said land and the residential house were inherited by the defendant No.1 and his brother Mr. Mukhtiar Singh and were mutated in their name in the year 1961-62;
(ii) that the possession of the land on acquisition was taken on 26.08.1992 and the residential house is still recorded in the name of the defendant No.1 and sons of Mr. Mukhtiar Singh who has since died;
(iii) that the plaintiff has no right to either of the said properties;
(iv) that the land aforesaid was inherited by the defendant No.1 by virtue of Section 50 of the Delhi Land Reforms Act, 1954;
(v) that the claim in the suit is barred by limitation inasmuch as the plaintiff by filing the present suit is challenging the mutation / transfer of the land in the year 1961-62 in the name of the defendant No.1 and Mr. Mukhtiar Singh aforesaid;
(vi) that there was never any joint family or joint family properties as alleged;
(vii) that the plaintiff was married on 02.06.1982; CS(OS) No.966/2010 Page 4 of 11
(viii) that the father of the defendant No.1 Mr. Bhe Ram, besides the defendant and Mr. Mukhtiar Singh, also left a daughter viz. Smt. Sarbati but in accordance with the provisions of Section 50 of the Land Reforms Act the land was mutated in the names of defendant No.1 and Mr. Mukhtiar Singh only; and
(ix) that there was never any joint family of Chhotu Ram HUF and thus the question of the said HUF owning the said land does not arise.
4. The defendants No.2 to 5 and 7&8 have supported the defendant No.1. No written statement has been filed by the defendant No.6. The plaintiff has filed replications to the written statement of the defendant No.1 and the written statement of the defendants No.2 to 5 and 7&8.
5. The defendant No.1 has filed IA No.12333/2010 under Order 7 Rule 11 of the CPC on the ground of no cause of action having accrued to the plaintiff. The counsels have been heard on the said application.
6. Attention of the counsel for the plaintiff has been invited to Neelam Vs. Sada Ram MANU/DE/0322/2013 where on a conspectus of the case law on the subject, it has been held that in the properties inherited by a father on demise after the coming into force of the Hindu Succession Act, 1956 of the CS(OS) No.966/2010 Page 5 of 11 grandfather, the son does not acquire any right and that a plea of the property being joint family property owing to being jointly owned by members of the family is not the plea of existence of a coparcenery or HUF and for a case for claiming a share in the property otherwise than under the Hindu Succession Act, 1956, it has to be pleaded that there existed a HUF since prior to coming into force of Succession Act and which by virtue of Section 6 of the Act has been permitted to continue.
7. In the present case though the plaintiff has pleaded the grandfather to be the Karta of the HUF and the properties being of the said HUF and further that on the demise of the grandfather the land having been partitioned and the father of the plaintiff viz. the defendant No.1 having held it as Karta of his own HUF but save for the bald plea there is absolutely nothing to show the same.
8. The counsel for the plaintiff also does not argue that upon being given an opportunity to lead evidence, anything more will be available to the plaintiff to demonstrate the existence of any such HUF. Rather the argument of the plaintiff on existence of the HUF also is that since the property had been inherited by her father i.e. the defendant No.1 from his own father, it is an HUF property in the hands of the father and the plaintiff after the CS(OS) No.966/2010 Page 6 of 11 amendment of the year 2005 to the Hindu Succession Act having been conferred the status of a coparcener in the said HUF, has a share in the said joint property.
9. It is this understanding of the plaintiff and her counsel which has been challenged in Neelam supra as well as in number of other cases filed on similar misconception. The grandfather of the plaintiff having died in the year 1961-62 i.e. after the coming into force of the Hindu Succession Act, 1956, the property inherited by the defendant No.1 on such demise of his father was self-acquired property in the hands of the defendant No.1 in which the children of the defendant No.1 did not acquire any rights.
10. The counsel for the plaintiff has invited attention to Shivgonda Balgonda Patil Vs. The Director of Resettlement AIR 1992 Bombay 72 to contend that mutation entries in the name of the defendant No.1 only on the demise of his father cannot vest the land / property in the defendant No.1 only. Reliance in this regard is also placed on judgment dated 11.07.2008 of the Supreme Court in Civil Appeal No.5269/2003 titled Rajinder Singh Vs. State of Jammu & Kashmir.
11. Though I have in Ram Niwas Vs. The Financial Commissioner 2011 (122) DRJ 708, in the context of the Delhi Land Reforms Act, 1954 and the CS(OS) No.966/2010 Page 7 of 11 Delhi Land Revenue Act also of the year 1954 expressed doubts on the said proposition observing that the said records are records of rights providing a complete mechanism for adjudication of disputes but it is not necessary, in my opinion in this case, to enter into the said controversy as the suit has to be dismissed for the same reasons as recorded in Neelam supra.
12. The counsel for the plaintiff has also invited attention to Pyare Vs. The Financial Commissioner 94 (2001) DLT 348 to contend that the reliance by the defendant No.1 on Section 50 of the Delhi Land Reforms Act is misconceived as on acquisition, the said Act ceased to apply to the said land. However as aforesaid, even if we are to consider the matter on the anvil of the Hindu Succession Act, the premise on which the suit is based, of the child acquiring right in the property inherited by the father from his / her own father, is misconceived.
13. Per contra, the counsel for the defendant No.1 has argued that the alternative land is not in lieu of acquired land and an application is required to be made therefor within the prescribed time and the allotment is not as a matter of right. It is contended that the plaintiff neither filed any objections to the acquisition or to the Award nor applied for alternate plot and cannot in any case claim a share in the alternate plot allotted on the application of the CS(OS) No.966/2010 Page 8 of 11 defendant No.1. It is reiterated that the suit filed in the year 2010 challenging the mutation entries of the year 1961-62 is barred by limitation.
14. The counsel for the plaintiff in rejoinder has contended that since the alternate plot was allotted in the year 2010 only, the suit cannot be barred by limitation. It is contended that the scheme of alternate plot was introduced with rehabilitation of the displaced landholders in mind and thus the entire family which has been displaced would have a share in the alternate plot.
15. The counsel for the defendant No.1 rebuts by contending that the plaintiff at the time of acquisition was not in possession and has thus not been dispossessed.
16. I may mention that though the plaintiff in the plaint has also made allegations of the defendant No.1 having consented to the property being joint and having agreed to give the plaintiff a share but need is not felt to put the said issues to trial as once it is held that the plaintiff in law has no share, the question of any agreement as to partition which can only be amongst co- sharers does not arise.
17. I may add that though unlike in Neelam, in the present case there are pleadings of a HUF, but when the existence of an HUF is pleaded only on the premise of the property being inherited/ancestral, such plea of HUF CS(OS) No.966/2010 Page 9 of 11 ought not to be put to trial. It cannot be lost sight of that on an application of the plaintiff for interim relief, vide ex parte order dated 02.06.2010, the parties were directed to maintain status quo with respect to the possession of the suit properties. The suit has already remained pending for nearly three years and if it were to be put to trial, would take considerably more time. The Courts have to take judicial notice of litigation today being used as a tool of oppression. The Supreme Court in T. Arivandandam Vs. T.V. Satyapal (1997) 4 SCC 467 & Abdul Gafur Vs. State of Uttranchal (2008) 10 SCC 97 has held that where the Court comes to the conclusion that the case pleaded is wholly frivolous and vexatious and has no legal legs to stand on, then it is the duty of the Court to bring such a litigation to an end immediately. In the present case, on a holistic reading of the plaint and documents filed therewith, there is no manner of doubt that the sole basis on which the plaintiff claims the property to be of a coparcenary / HUF is the inheritance of the defendant No.1 of the properties from his own father and none else.
18. I am of the considered view that the suit is misconceived. CS(OS) No.966/2010 Page 10 of 11
19. The same is dismissed, leaving the parties to bear their own costs, in the fond hope that the same will bring about harmony amongst the family.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J MARCH 20, 2013 'gsr'..
CS(OS) No.966/2010 Page 11 of 11