Delhi District Court
A.N. Mallik vs Smt. Kamla Mallik on 15 December, 2023
IN THE COURT OF SH. SUNIL BENIWAL, ADDITIONAL
DISTRICT JUDGE06, SOUTH DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ NO.62/2019
CNR No.DLST010006412019
SH. A.N. MALIK,
S/O Late Mallik Balram Das
R/o C6/50, Usha Niketan,
Bhim Nagari, Safdarjung Development Area (SDA),
New Delhi110016. .....Plaintiff
Versus
1. Smt. Kamla Mallik,
W/o Sh.A.N. Mallik.
2.Sh. Vikas Mallik
S/o Sh. A.N. Mallik
3. Ms. Ameyaa Mallik
D/o Sh.Vikas Mallik
All resident of:
C6/50, Usha Niketan,
Bhim Nagari,
Safdarjung Development Area (SDA),
New Delhi - 110016. .....Defendants
Date of institution : 25.01.2019
Date of final arguments : 15.12.2023
Date of judgment : 15.12.2023
CS No.62/2019
AN Mallik v. Kamal Mallik & Ors
Page 1 of 17
PRELIMINARY DECREE : SUIT FOR PARTITION
BRIEF FACTS:
1. That the plaintiff along with his younger brother namely Sh. Jagdish Chandra since deceased in the year 1991 jointly constitute(d) an H.U.F. whereas the plaintiff is the Karta of the said HUF. (Copy of ITR with respect to HUF and ICard of the plaintiff have been duly enclosed as Annexure A1, A2 & A3.
2. That the above said late Jagdish Chandra expired on 20/12/1997. It is further contented that, a commercial property, being the suit/ subject property bearing address as A217, Ansal Plaza, Hudco Place, Andrews Ganj, near South Extension, Khel Gaon Marg, New Delhi was allotted on lease in the name of the above mentioned HUF vide an allotment letter dated 25.08.2000. Copies of the death certificate of Lt. Sh Jagdish Chandra and copy if the allotment letter has been duly annexed by the plaintiff along with the plaint. Further, the younger brother of the deceased Lt. Sh Jagdish Chandra remained unmarried throughout his life, and is not survived by any Legal Heir except for the plaintiff.
3. It is also contended that there is no other property, which is liable for partition with respect the impleaded members of the HUF. Further, a separate schedule qua the above mentioned subject property along with a list of Legal Heirs has also been filed by the plaintiff.
4. It is stated that the plaintiff along with the three impleaded defendants, the same being his wife and his son and his grand daughter, have not contested the pleadings, and/or have contravened or objected to CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 2 of 17 the same in any manner whatsoever. Further, the defendants have filed NOCs before the Ld. Court in support of the prayer of the plaintiff.
5. Further, the defendant no.1, defendant no.2 and defendant no.3 (minor), through her father i.e. defendant no.2, have filed an affidavit stating that they are not willing to file written statement nor are they claiming any right, title or interest in the suit property being members of the HUF. Further, the defendants herein have stated that they wish to transfer their respective shares in favor of the plaintiff.
6. The plaintiff has sought a prayer seeking the passing of a preliminary decree, followed by a final decree for partition of the suit property in equal shares, thereby separating 1/4th share each.
7. It is relevant to mention herein that as per application U/s 151 CPC dated 01.12.2023 filed on behalf of plaintiff, a probate petition bearing PC No.06/2018 titled as A.K. Mallik & Ors v. State seeking Letter of Administration U/s 278 of Indian Succession Act, 1925 in respect of suit property is pending disposal in the Court of Ld. Addl. District Judge05, South, Saket Courts, New Delhi.
8. Further, while the suit was at final arguments stage, on 29.11.2023, an application U/o VI rule 17 r/w section 151 CPC filed on behalf for filing amended suit wherein the plaintiff added prayer clause and the same reads as under:
"To dissolve the status of HUF qua the suit property i.e. commercial space bearing no.A217 at Ansal Plaza, HUDCO Place, Andrews Ganj, near South Extension, Khelgaon Marg, New Delhi in consequence of the partition thereof."CS No.62/2019
AN Mallik v. Kamal Mallik & Ors Page 3 of 17
9. Summons of the suit were issued to the defendants. Defendants appeared through their counsel. No Objection Certificates in the form of affidavits have been filed by the defendants stating that they do not wish to file Written Statement and not claiming any right, title or interest in the suit property, and that they wish to transfer their share in the suit property in favour of plaintiff.
10. Plaintiff entered into witness box as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He relied upon following documents:
(1)Photocopy of ITR with respect to HUF and ICard of the plaintiff as Ex.PW1/A1, Ex.PW1/A2 and Ex.PW1/A3.
(2)Photocopies of the death certificate of deceased Jagdish Chandra and allotment letter dated 25.08.2000 as Ex.PW1/A4 and Ex.PW1/A5.
(3)Schedule of property is Ex.PW1/A6. (4)List of legal heirs as Ex.PW1/A7.
OBSERVATIONS AND REASONING:
11. A suit for partition when filed generally contains prayer for preliminary decree followed with final decree. The ascertaining of shares in the property between the claimants/legal heirs are prima face decided while passing preliminary decree.
CS No.62/2019AN Mallik v. Kamal Mallik & Ors Page 4 of 17
12. The partition suit in itself is quite different in its nature and therefore, the provisioning of preliminary decree is made for this purpose, unlike any conventional suits.
13. The Hon'ble Supreme Court in a matter captioned as Shub Karan Bubna @ Shub Karan Prasad Bubna Vs Sita Saran Bubna & Ors in SLP No. 17932 of 2009 has dealt with the issue in great length. The basic parameter and concept of partition may require further elucidation, though.
4.'Partition' is a redistribution or adjustment of pre existing rights, among coowners/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 severally. 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 coowners get separated, it is a partition. Separation of share/s refers to a division, where, only one or only a few among several coowners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 5 of 17 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 property/properties should be divided by metes and bounds?
5.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. The decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 6 of 17 considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).
6.The Rule 18 of Order 20 of the Code of Civil Procedure ('Code' for short) deals with decrees in suits for partition or separate possession of a share therein which is extracted below.
"18. Decree in suit for partition of property or separate possession of a share therein. Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then (1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54; (2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 7 of 17 conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required."
The terms 'preliminary decree' and 'final decree' used in the said rule are defined in Explanation to section 2(2) of the Code and reads thus :
"A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
Section 54 of the Code dealing with partition of estate or separation of share, relevant for purposes of Rule 18(1) reads thus:
"Where the decree is for the partition of an undivided estate assessed to the payment of revenue of the government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates."CS No.62/2019
AN Mallik v. Kamal Mallik & Ors Page 8 of 17 Rule 13 of Order 26 of the Code dealing with Commissions to make partition of immovable property, relevant for purposes of Rule 18(2) reads thus :
"Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree."
xxxx
8.Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree. Sometimes, either on account of the pendency of an appeal or other circumstances, the court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property.
CS No.62/2019AN Mallik v. Kamal Mallik & Ors Page 9 of 17
9.The following principles emerge in the above backdrop and relating to partition suit:
(i)If estate assessed to payment of revenue to the government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with section 54 of Code.
xxxxx It is necessary for two reasons:
(ia)Revenue Authorities are more conversant with matters relating to agricultural lands and apart from that safeguarding the revenue interest of government; (ib)Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.
xxxx So far as immovable properties (other than agricultural lands paying land revenue) are concerned CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 10 of 17 including moveable assets following situation shall emerge:
(i)where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.
(ii)where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.
The function of making a partition or separation according to the rights declared by the preliminary decree is entrusted to a Commissioner, as it involves inspection of the property and examination of various CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 11 of 17 alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.
14. The preliminary decree could be passed by a trial court suo motu or upon filing of application under Order 12 Rule 6 of the Code of Civil Procedure if the admission in the pleadings are conspicuous. In the case of Delhi Jal Board vs. Surendra P. Malik SCC OnLine Del 292 , it is held that:
8.The provision confers almost sweeping powers on the Court to render a speedy judgment in the suit to save the parties from going through the rigmarole of a protracted trial. The only prerequisite for this is that there must be admissions of fact arising in the suit, be that in the pleadings or otherwise or orally or in writing. Such admission of facts must be clear and unequivocal, unconditional and unambiguous and CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 12 of 17 may relate to the whole claim or a part of it. These need not be made specifically or expressly and could be a constructive admissions also. Whether or not such admission arose in the suit would depend on the facts and circumstances of the case. If it involved disputed facts, claims and counter claims requiring evidence of parties for determination of issues or where the defence of a party touched the root of the matter, a judgment could not be passed under Order, 12 Rule 6 dispensing with the trial because the valuable right of going to trial could not be taken away from the party unless the claim was admitted. A duty was, therefore, cast on the court to ascertain the admission of facts and to render judgment on these either in respect of the whole claim or part of it. The court could do so on its own or on the application of a party and without waiting for the determination of any other question between the parties....".
15. The Delhi High Court very recently in a matter captioned as Bhushan Kumar Gupta Vs Rajinder Kumar Gupta CS(OS) 244/2022 was pleased to pass preliminary decree of partition upon filing of application under Order 12 Rule 6 of Code of Civil Procedure and after finding admission in the pleadings as regards the entitlement of shares CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 13 of 17 between parties. Thus, what clearly emanates from here is that a preliminary decree could be passed as per the record or after application filed to that effect.
16. Further, the prayers as sought by the plaintiff here is for a preliminary decree and thereafter a final decree in favor of the plaintiff and against the defendants separating their respective 1/4th share each.
17. The Hon'ble Supreme Court of India in a recent order passed by the double bench of HON'BLE MR. JUSTICE M.M. SUNDRESH, HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA dated 11.09.2023 in A. KRISHNA SHENOY [PETITIONER(S)] VS. GANGA DEVI G. & ORS. [RESPONDENT(S)]PETITION(S) FOR SPECIAL LEAVE TO APPEAL (C) NO(S). 8080/2019 held as follows:
" 8. Section 10 of the CPC has got no application in the case on hand. ADMITTEDLY, WE ARE DEALING WITH A SUIT FOR PARTITION, IN WHICH EVERY INTERESTED PARTY IS DEEMED TO BE A PLAINTIFF. Law does not bar passing of numerous preliminary decrees. The fact that the applicants are the sisters of the petitioner is not in dispute."CS No.62/2019
AN Mallik v. Kamal Mallik & Ors Page 14 of 17
18. Now case of the plaintiff has remained unrebutted, unchallenged and uncontrovered, as all the defendants have given their No Objection in the form of affidavit in favour of the plaintiff.
19. Considering the totality of facts and circumstances of the case, and in view of unrebutted testimonies of witness, the plaintiff and defendants are held entitled to a preliminary decree of partition as prayed for in respect of suit property i.e. commercial space bearing no.A217 at Ansal Plaza, HUDCO Place, Andrews Ganj, near South Extension, Khelgaon Marg, New Delhi to the extent of 1/4th share each in the suit property.
Relief:
20. In view of the above findings, the suit of the plaintiff stands decreed.
21. A preliminary decree of partition is passed and the plaintiff and defendants each are held entitled to 1/4th share in the suit property i.e. commercial space bearing no.A217 at Ansal Plaza, HUDCO Place, Andrews Ganj, near South Extension, Khelgaon Marg, New Delhi.
22. Further, status of HUF qua the suit property, in consequence of partition of the suit property stands dissolved.
23. No order as to cost.
24. Preliminary decree sheet be prepared accordingly.
25. Further, regarding appointment of Local Commissioner for the assistance of Court, reliance is placed upon the judgment of the Hon'ble CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 15 of 17 High Court of Delhi in the case of Louis Vuitton Malletier Petitioner vs. Mr. Omi & Anr. SCCP(O) 10/2018 in CS(COMM) 291/2018 Delhi High Court (07 Aug 2018) that:
22. In the opinion of this Court, a Local Commissioner appointed by the Court is an extended arm and agent of the Court. The Local Commissioner is appointed by the Court because a Judge, normally, cannot personally step out of the precincts of his Court to see for himself the situation prevailing at the relevant site. [See: Autodesk Inc. & Anr. v. Arup Das & Ors, 2013 SCC OnLine Del 4225 and Anil K. Aggarwal V. Union of India, 2014 SCC OnLine Del 2292].
26. In view of above, further, for the purpose of granting the relief as claimed by the plaintiff, the Court by way of the present preliminary decree is inclined to appoint a Court Appointed Local Commissioner to inspect the suit property for the purpose of its identification, measurement, and to suggest the mode of partition by way of metes and bounds, and or other means as permitted under the law, and to submit a report before this Court thereby declaring the share of the parties in the same whereupon.
27. For the same, Sh. Mikhil Sharda, Advocate having Enrollment No.D/4297/2016, 10th Floor, Hindustan Times Building, plot No.1820, CS No.62/2019 AN Mallik v. Kamal Mallik & Ors Page 16 of 17 Kasturba Gandhi Marg, New Delhi110001 (Mobile No.9654000003/01168137707) is appointed as Local Commissioner. Fees of the Local Commissioner is fixed at Rs.1,00,000/ to be paid by the plaintiff that may be recovered by the plaintiff from rest of the parties in proportionate measure.
28. Further, the concerned parties are directed to assist the Ld. Local Commissioner in the process of execution of the Court Commission. The Ld. Local Commissioner is at liberty to seek the assistance of a Draughtsman and/or an architect, as the case maybe, for which the expenses shall be paid by the plaintiff.
29. The plaintiff is directed to contact the Ld. Local Commissioner and to remunerate him before the commencement of commission proceedings by paying his fees within a period of seven (7) days from today.
30. The Ld. Local Commissioner is directed to file his report within a period of twenty one(21) days from today in accordance with the directions of the Court, and the law of the land.
31. In light of the above stated, the Ld. Court Commissioner is directed to complete the proceedings of the commission in an expeditious manner, whilst acting as an extension of the Court.
Miscellaneous file be maintained as and when the report of Local Commissioner is received.
Announced in the open
court on 15.12.2023 (Sunil Beniwal)
Additional District Judge06(South),
Saket Courts, New Delhi
CS No.62/2019
AN Mallik v. Kamal Mallik & Ors
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