Delhi District Court
Sh. Manohar Lal vs Ramesh Kumar Page No. 1 Of on 14 October, 2022
IN THE COURT OF MS. RUCHIKA SINGLA,
ADDL. DISTRICT JUDGE-03, NORTH-WEST DISTT.,
ROHINI COURTS, DELHI
CS No. : 77459/16
CNR No. : DLNW01-002551-2015
In the matter of:
1. Sh. Manohar Lal
S/o Lt Pyare Lal
Presently residing at
Flat No. 15/2, Lady Harding Hospital Compound,
Type 112, Staff Quarters, Bangla Sahib Road
New Delhi-110001
2. Sh. Dinesh Kumar
S/o Lt Pyare Lal
Presently residing at
Flat No. 33/5, Lady Harding Hospital Compound,
Type 112, Staff Quarters, Bangla Sahib Road
New Delhi-110001
3. Sh.Suresh Kumar
S/o Lt Pyare Lal
Presently residing at
Flat No. 61/8, Lady Harding Hospital Compound,
Type 112, Staff Quarters, Bangla Sahib Road
New Delhi-110001
4. Sh. Sunil Kumar
S/o Lt Pyare Lal
Presently residing at
Flat No. 15/2, Lady Harding Hospital Compound,
Type 112, Staff Quarters, Bangla Sahib Road
New Delhi-110001
........ Plaintiffs
CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 1 of 11
VERSUS
Sh. Ramesh Kumar
S/o Lt Pyare Lal
61-C, Block WP, Pitampura,
Delhi
....... Defendant
Date of institution : 02.01.2016
Date on which judgment was reserved : 17.09.2022
Date of pronouncement of the judgment : 14.10.2022
SUIT FOR PARTITION, PERMANENT INJUNCTION AND RENDITION OF
ACCOUNTS
JUDGMENT
1. By this judgment, I shall decide present suit filed by the plaintiff for partition, permanent injunction and rendition of accounts.
2. In brief, the case of the plaintiff as per plaint is that the plaintiffs and the defendants are real siblings. One of the sisters of the parties Smt. Purnima Devi was married to Sh. Om Prakash. Sh. Om Prakash was the original allottee of LIG Flat bearing no. 61-C Second Floor, Pocket WP, Pitampura Delhi (hereinafter referred to as the suit property) which was allotted to him by the DDA vide allotment letter bearing no. F.36(47)/ 90-LIG/ NP dt. 16.07.1990 . After the allotment, Sh. Om Prakash moved an application before the DDA dt. 07.06.1995 vide which he requested the DDA to include the name of Smt. Purnima Devi as the allottee of the suit property, which was allowed by the DDA and Smt. Purnima Devi was incorporated as co-allottee of the flat. Thereafter, the property was constructed by Sh. Om Prakash and Smt. Purnima Devi upto the third floor and the property was being let out by them for rent from time to time.
CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 2 of 11
3. It is stated that there was no issue from the wedlock of Sh. Om Prakash and Smt. Purnima Devi. Parents of Sh. Om Prakash expired during his life time. Sh. Om Prakash had only one brother namely Sh. Jagan Nath whose wife and minor child had expired before the partition of the country. Sh. Jagannath also expired on 06.04.1994 as a widower. Thereafter, Sh. Om Prakash expired on 05.09.2007 leaving behind Smt. Purnima Devi as his only legal heir.
4. Thereafter, Smt. Purnima Devi also expired intestate on 12.11.2013. As neither Sh. Om Prakash and Smt. Purnima Devi had any other legal heir, the property now stood devolved upon the siblings of Smt. Purnima Devi who are the plaintiffs and the defendant. Hence, the plaintiffs have filed the present suit for partition seeking their one fifth share in the suit property. The plaintiff has also sought rendition of accounts for the real account of money/rent receipt from the property. The plaintiffs also seek the permanent injunction that no third party interest should be created in the suit property by the defendant.
5. The summons of the suit was served upon the defendant and WS was filed by him. In the WS, the defendant admitted the ownership of Sh. Om Prakash and Smt. Purnima Devi over the suit property. He also admitted that Sh. Om Prakash and Smt. Purnima Devi expired without leaving any other legal heir. However, he has denied the plaintiffs' right over the suit property as it is stated that the suit property was left by Smt. Purnima Devi in his possession. It is submitted that he is the owner of the suit property due to this reason. Further, it is stated that Smt. Purnima Devi had a bank account in which she had made a defendant as a nominee. Hence, he is the owner of the suit property and her proceeds lying in the bank account. Hence, it is stated that the suit of the plaintiffs is liable to be dismissed.
6. Replication was filed by the plaintiff wherein the plaintiff denied the averments of the defendant and reiterated his averments. After completion of CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 3 of 11 pleadings of both the parties, following issues were framed by Ld. Predecessor of this Court vide order dated 25.07.2016:-
(1) Whether the present suit does not disclose any cause of action, as alleged? OPD (2) Whether the plaintiff's are entitle to a decree of partition in respect of the impugned property viz. 61-C, Pocket WP, Pitampura, Delhi, consisting of second and third floors, as prayed? OPP (3) Whether the plaintiffs are entitle to a decree of rendition of accounts in respect of the impugned property, as prayed? OPP (4) Whether the plaintiffs are entitle to a decree of permanent injunction in respect of the impugned property, as prayed? OPP (5) Relief.
7. Thereafter, the matter was adjourned for PE. The plaintiff in support of their suit examined two witnesses. The plaintiff Sh. Manohar Lal was examined as PW-1 and he tendered his evidence by way of affidavit Ex.PW1/A and he relied upon the following documents:
a) Site plan of the property as Ex. PW1/1.
b)The original death certificate of Sh. Jagannath as Ex.PW1/2.
c) The original death certificate of Sh. Om Prakash as Ex. PW-1/3.
d) The original death certificate of Smt. Purnima Devi Kashyap as Ex. PW-1/4.
e) Photocopies of the envelopes and letters as Ex. PW-1/5, Ex. PW-1/6, Ex. PW-1/7, Ex. PW-1/8 (colly) (OSR)
f) Copy of the legal notice as Ex. PW-1/9 .
g) Original Speed Post Receipt as Ex. PW-1/10.
h) Courier receipt as Ex. PW-1/11.
i) Original speed post envelope as Ex. PW-1/12.
CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 4 of 11
j) P.O.D of courier as Ex. PW-1/13.
k) Allotment letter, letters by the DDA to Sh. Om Prakash are Mark A, Mark B and Mark C.
8. The plaintiff examined Sh. Dinesh Chander, Asstt. Housing DDA, Vikas Sadan was examined as PW-2 and he had brought part of the summoned record i.e. carbon copy of letter bearing no. F36(47) 90/LIG/NP/Pt. Dt. 28.12.1995 issued by Sh. L.C. Rathi, Asstt. Director/Lab (H) addressed to Sh. Om Prakash. He had tallied the documents which is marked as Mark C with the record brought by him and same was then Ex. PW-2/1. Thereafter, PE was closed vide order dated 22.02.2017.
9. Thereafter, the matter was listed for defendant evidence. The defendant examined Sh. Ramesh Kumar as DW-1 and he tendered his evidence by way of affidavit Ex.DW1/A. The Ld. Counsel for the plaintiff objected to the contents of the para nos. 2,3,4,5,7,8,9,10,11 and 12 of the affidavit, being beyond pleadings.
10. DW-1 was duly cross examined by the Ld. Counsel for the plaintiffs and DE was closed vide order dated 06.06.2017.
11. I have already heard arguments from Sh. Yashbir Thakur, Ld. Counsel for plaintiffs and Sh. Ashok Kumar, Ld. LAC for the defendant and have perused the entire material available on record carefully. Issues were framed by Ld. Predecessor of this Court vide order dated 25.07.2016. My Issue-wise findings are as under:-
Issue no. 1 & 2 (1) Whether the present suit does not disclose any cause of action, as alleged? OPD (2) Whether the plaintiff's are entitle to a decree of partition in respect of the impugned property viz. 61-C, Pocket WP, Pitampura, Delhi, CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 5 of 11 consisting of second and third floors, as prayed? OPP
12. As the issues are interconnected the same shall be dealt with together. The onus to prove the first issue was upon the defendant and the onus to prove the second issue was upon the plaintiffs.
13. It is the case of the plaintiffs that the suit property was earlier owned by Sh. Om Prakash while allotment letter dt. 16.07.1990 which is Mark A. Thereafter, Sh. Om Prakash wrote a letter to the DDA to include the name of his wife in the allotment. The same was approved by the DDA vide its letter dt. 28.12.1995 which is Mark C. The plaintiff produced Sh. Dinesh Chander, Assistant (Housing) DDA to prove this document, which was proved on record by him and was then exhibited as Ex. PW-2/1. Hence, it is proved on record that the property stood allotted in the name of Sh. Om Prakash and Smt. Purnima Devi. This fact has also not been disputed by the defendant.
14. Now, it is the case of the plaintiff that Sh. Om Prakash and Smt. Purnima Devi had no children. Their respective parents also expired before the filing of the present suit. Further, it is stated by the plaintiff that there was only one brother of Sh. Om Prakash whose wife and children expired before partition and Sh. Jagan Nath also expired before the death of Sh. Om Prakash on 06.04.1974. His death certificate was proved on record as Ex. PW-1/2. Now it is the case of the plaintiffs that after the death of Sh. Om Prakash, the suit property devolved upon Smt. Purnima Devi. The death certificate of Sh. Om Prakash proved as Ex. PW-1/3. In this regard, Section 8 of the Hindu Succession Act is relevant. Section 8 of the Hindu Succession Act provides for the rule of devolution in the case of the death of a male Hindu who has expired intestate. As per the said provision, the property shall devolve upon the heirs as specified in Class I of the Schedule. Further, as per Section 9 of the Hindu Succession Act, the properties is to be divided in all the Class I heirs simultaneously CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 6 of 11 and to the exclusion of the other heirs. Class I heirs as mentioned in the schedule are the Son, Daughter, Widow, Mother, Son of a predeceased son, Daughter of a pre deceased son, Son of pre deceased daughter, Daughter of the pre deceased daughter and so on and so forth. In the present matter, it is alleged by the plaintiff that Sh. Om Prakash had no children. His parents had already expired. Hence, by virtue of the same the entire property devolved upon Smt. Purnima Devi.
15. In the WS filed by the defendant, he has admitted the same. Hence, these facts need not be proved by the plaintiffs. Hence, it is proved that Sh. Om Prakash did not leave any other heir behind after his death except Smt. Purnima Devi. Hence, the property devolved upon Smt. Purnima Devi upon the death of Sh. Om Prakash.
16. Thereafter, it is alleged by the plaintiffs that Smt. Purnima Devi also expired. The death certificate of Smt. Purnima Devi is proved as Ex. PW-1/4. Hence, it is stated that the plaintiffs and the defendant who are the brothers of the deceased Smt. Purnima Devi are now the owners of the suit property.
17. In the WS, the defendant had admitted the above mentioned relationships between the parties and he had taken the ground that as Smt. Purnima Devi had made him a nominee in her bank account and had left the possession of the suit property in his custody, he was the owner of the suit property. However, in his affidavit in evidence which is Ex. DW-1/A, he submitted that the plaintiffs were not related to him. He further stated that only the name of the father of the plaintiffs and the defendant and Smt. Purnima Devi was the same but their mother was one Smt. Sharda Devi. In his affidavit Ex. DW-1/A, the defendant has claimed that the plaintiffs and himself and Smt. Purnima Devi belong to different families. Same was objected to by the Ld. Counsel for the plaintiff at the time of the exhibition of the said affidavit.
CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 7 of 11
18. It is also argued by the Ld. Counsel for the plaintiff that the defendant cannot take a contrary stand as taken by him in the WS. As the defendant has admitted the relationship between the parties in his WS, he is estopped from taking the said claim in the affidavit. The court is inclined to agree with the argument of the Ld. Counsel for the plaintiff. In the WS, the defendant has clearly admitted his relationship with the plaintiffs and Smt. Purnima Devi. For the first time, the defendant has changed his stand in the affidavit Ex. DW-1/A. Furthermore, he did not place on record any document to corroborate this fact that he and the plaintiffs are not family members but are the children of different set of parents. Hence, in the opinion of the court, this fact cannot be taken into consideration and in view of the admission of the defendant in his WS, it is proved that the plaintiffs, the defendant and Smt. Purnima Devi are siblings to each other.
19. Having said that, the court now has to consider the rule of devolution in respect of the property owned by a Hindu female as prescribed under the Hindu Succession Act in Section 15. As per the Section 15, the property shall firstly devolved upon the sons and daughters and other children of the deceased and her husband. As mentioned above, the deceased i.e. Smt. Purnima Devi had no children. Hence, the said set of heirs is not present. Secondly, it has been provided that the devolution shall be upon the heirs of the husband. As discussed earlier there are no other heirs of Sh. Om Prakash. Hence, the said rule can also not be applied. Thirdly, it had been mentioned that the devolution shall be upon the mother and the father. The parents of Smt. Purnima Devi are no longer alive. Hence, the property cannot devolve upon them also. Fourthly, it has been provided that the property shall devolve upon the heirs of the father. This becomes the relevant clause here. As the parties i.e. the plaintiffs and the defendants are siblings of Smt. Purnima Devi and hence, they are the heirs of her father, hence, by virtue of Section 15, the property devolved upon the plaintiffs and the defendant in equal shares.
CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 8 of 11
20. The defendant has taken this plea that Smt. Purnima Devi had left the property in his possession. He has also stated that she had a bank account of which he was the nominee and hence he is the owner of the suit property. No such document has been placed on record by the defendant to prove this fact. Furthermore, even if the same is considered to be true, just because he was made a nominee by Smt. Purnima Devi in her bank account, that does not mean that he becomes the owner of the suit property. The ownership does not devolve upon him in the absence of any specific document. As Smt. Purnima Devi expired without leaving behind a Will, a gift deed, a sale agreement etc in the favour of the defendant, the properties devolved upon all the parties in equal shares i.e. one fifth share each. In view of the same, the plaintiffs are entitled to the partition of the suit property.
21. Hence, these issues are decided in the favour of the plaintiff and against the defendant.
Issue No. 3(3) Whether the plaintiffs are entitle to a decree of rendition of accounts in respect of the impugned property, as prayed? OPP
22. The plaintiffs have also sought a decree of rendition of accounts in respect of the impugned property regarding any rent which was being received by the defendant. However, no evidence has been led by the plaintiffs to show that any rent was received by the defendant in respect of the suit property. Hence, this issue is decided in the favour of the defendant and against the plaintiffs.
Issue no. 4 (4) Whether the plaintiffs are entitle to a decree of permanent injunction in respect of the impugned property, as prayed? OPP CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 9 of 11
23. The onus to prove this issue was upon the plaintiffs. As the plaintiffs have proved that the property has devolved in equal shares upon all the parties, this issue is decided in the favour of the plaintiffs and against the defendant.
Court fees
24. Ld. Counsel for the defendant has taken this objection in his written arguments that the suit is liable to be dismissed as the plaintiffs have not affixed the requisite court fees. He has placed on record a number of judgments to support this argument that where the plaintiffs are not in the possession of the suit property, there they have to affix ad valorum court fees as per the value of the suit property. Case titled as Nisheet Bhalla Vs. Malind Raj Bhalla AIR 2007 Delhi 60, Prakash Vati Vs. Daya Vanti AIR 1991 Delhi 48 and Dukhi Singh Vs. Harihar Shah MANU/BH/0142/1920 relied upon.
25. Ld. Counsel for the plaintiffs has relied upon case titled as Sushma Tehlan Dalal Vs.Shiv Raj Singh Tehlan 2011 IV AD (Delhi) 341 wherein it has been held that where the parties are in joint possession of the property, court fees shall be calculated at the amount valued in the plaint. However, in the present matter, the property is not in the joint possession of the parties. Admittedly the plaintiffs are not in the possession of the property. Hence, ad valorum court fees has to be filed by the plaintiffs on the value of the property, as per their respective shares.
Relief
26. In view of the above discussion, a preliminary decree of partition is passed holding that the plaintiffs and the defendant are all entitled to one fifth share each in the suit property i.e. LIG Flat bearing no. 61C Second Floor, Pocket WP, CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 10 of 11 Pitampura Delhi. Ad valorum court fees be deposited by the plaintiffs within six weeks of the order. Further the defendant is restrained from creating any third party interest in the suit property.
27. Two months time is granted to the parties to divide the property amongst each other by metes and bounds.
Announced in open court on 14.10.2022 (RUCHIKA SINGLA) Addl. Distt. Judge03, NorthWest Distt., Rohini Courts, Delhi.
This judgment contains 11 pages and each page is checked and signed by me.
CS DJ 77459/16 Manohar Lal & Ors. Vs. Ramesh Kumar Page no. 11 of 11