Delhi District Court
Smt. Saroj Kalra vs Sh. Harikishan Lal Arora on 29 April, 2011
IN THE COURT OF SH RAKESH KUMAR ADJ-03 (C) : DELHI
Suit No.354/08
Smt. Saroj Kalra
W/o Sh. Sushil Kalra,
D/o Late Sh. Bansi Lal Arora,
R/o 181, Ram Nagar,
Krishan Nagar, Delhi-110051. .....Plaintiff.
Versus
1. Sh. Harikishan Lal Arora,
S/o Late Sh. Bansi Lal Arora.
R/o A33, N.D.S.EI, South Extension,
New Delhi - 110049.
2. Sh. Harish Arora,
S/o Late Sh. Bansi Lal Arora.
R/o A33, N.D.S.EI, South Extension,
New Delhi - 110049.
3. Sh. Narender Kumar Arora,
S/o Late Sh. Bansi Lal Arora.
R/o A33, N.D.S.EI, South Extension,
New Delhi - 110049.
4. Smt. Krishna Wanti,
W/o Late Sh. Bansi Lal Arora.
R/o A33, N.D.S.EI, South Extension,
New Delhi - 110049.
Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.1 of pages 19
5. Smt. Suman Diwan,
W/o Sh. Nalin Diwan,
D/o Late Sh. Bansi Lal Arora,
R/o 205, Sector 19, Shastri Colony,
Faridabad (Haryana). .....Defendants.
J U D G M E N T
1. The instant suit for declaration, partition and permanent injunction has been filed by the aforesaid plaintiff against the above named defendants wherein the plaintiff is praying for the following reliefs:
(i) A decree for declaration in favour of the plaintiff declaring th that she is entitled to 1/6 share of the property bearing No. A 33 NDSEI, South Extension, New Delhi49 and five shops bearing No. 24,26,27, 31 and 41 situated in the area of the Mehar Chand Market, Lodhi Road, New Delhi.
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(ii) To pass a preliminary decree of partition thereby 1/6 share of the above mentioned properties to the suit and thereafter to appoint a local commissioner to suggest the mode of partition and to pass a final decree of partition in respect of the aforesaid properties as shown red in the site plan attached with the plaint and Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.2 of pages 19 th
(iii) to hand over the peaceful and vacant possession of 1/6 share to the plaintiff.
(iv) to pass a decree of permanent injunction thereby restraining the defendants, their agents etc from selling, alienating, transferring or parting with the possession of the properties
2. As per plaint, the plaintiff is a married daughter of late Sh. Banarasi Lal Arora who expired on 19.01.2001 intestate. The defendant No. 1, 2 & 3 are real brothers of the plaintiff whereas defendant No. 4 & 5 are her mother and real sister respectively. The plaintiff was married to Sh. Sushil Kalra. It is stated that Sh. Bansi Lal Arora was the exclusive and absolute owner of the property bearing No. A33, NDSEI, South Extension New Delhi49 and five shops bearing No. 24, 26, 31 & 41 situated in the area of Mehar Chand Market, Lodhi Road, New Delhi. The said properties have been shown specifically as Red in the site plan. The said properties were purchased by the father of the plaintiff out of his own earning and income and they are his self acquired property. The aforesaid properties still in the name of sh. Bansi Lal Arora. After the demise of Sh. Bansi Lal Arora, the plaintiff being the coowner equally Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.3 of pages 19 th entitled to get her 1/6 share in the aforesaid properties. All the other LRs of Late Sh. Bansi Lal Arora are also equally entitled to get th 1/6 share of the aforesaid properties. The plaintiff by operation of th law and by law of inheritance is the owner of 1/6 share of the aforesaid properties. All the LRs of Late Sh. Bansi Lal Arora had partitioned the properties by meets and bounds with each other but th they have not given the 1/6 share thereof to the plaintiff despite of repeated requests and demand made by the plaintiff. The property bearing No. A33, NDSEI, South Extension is measuring 200 Sq Yds nd having constructed upto 2 floor. There are six rooms each on ground and first floors. Defendant no. 2 and 3 are residing on first floor having possession of three rooms each attached with WC, Kitchen and Bathroom. While on the ground floor three rooms each have been occupied by defendant No. 1 and 4 respectively. Defendant no. 4 is residing separately and she is having her separate mess and nd kitchen. All the defendants have sold the 2 floor of the property to nd one Sh. P.Bhagat and in the roof of the 2 floor, there are two stores and the same are in possession and control of defendant No. 2 and 3. Further the five shops bearing No. 24, 26, 27, 31 & 41 are measuring about 12 x 50 feet. The shops no. 26, 27 and 41 have been taken by Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.4 of pages 19 Sh. Kishan Lal Arora and he is in possession of all the three shops. The shop No. 41 and 24 is in possession of defendant No. 2 and 3 respectively. In this way the defendant No. 1, 2 & 3 have partitioned the property vide partition which took place in December, 2004. All the five shops were purchased by Bansi Lal Arora out of his own earning and none of the parties contributed even a single penny for the purchase thereof. Said Sh. Bansi Lal Arora was the exclusive and absolute owner of the aforesaid property till his demise and after his death the parties to the suit have inherited all the aforesaid properties in equal shares. In the oral partition which took place in December, 2004 the defendant No. 5 was given Rs. 5 lacs in cash by defendant No. 1 to 4 and defendant No. 1 to 4 assured her that she will be given due share when the said property is sold by them. However, nothing was given to the plaintiff by defendant No. 1 to 4 despite of her request and demand. The defendants have no right to grab the share of the plaintiff on the aforesaid property. It is added that earlier the plaintiff and defendant no. 5 have sent a joint legal notice through their counsel and sought partitioned of the above property, but later on defendant No. 5 turned dishonest and he did not come forward to file the suit for partition as he was given Rs. 5 Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.5 of pages 19 lacs and assurance by defendant No 1 to 4 to give further share in the property after selling of the property by them. Though the legal notice was given by plaintiff and defendant no. 5 jointly but later on defendant No. 5 backed out and now plaintiff has filed the present suit alone. The plaintiff has sent the legal notice dated 17.02.2003 through her counsel to defendant no. 4 asking therein the partition of the property. The defendant No. 1 to 3 contacted the plaintiff but they refused to partition the property and a threat was given to sold out the entire property. The defendants took no action despite of service of legal notice. The cause of action for filing the suit was arose on 19.01.2001 when the father of the plaintiff died. It further arose on 17.02.2003 when the plaintiff sent a legal notice and demanded partition. It further arose on several dates and it finally arose on 05.01.2005 when the plaintiff asked the defendant to partition the property by meets and bounds. Cause of action is still continuing. The suit has been properly valued for the purpose of Court fee and jurisdiction and appropriate Court fee has been paid. This Court has territorial & pecuniary jurisdiction to try and entertain the suit.
3. Defendant no.1, 2, 4 & 5 contested the suit by filing a joint Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.6 of pages 19 Written Statement wherein it is claimed that the properties in which the plaintiff is claiming her share never belong to Late Sh. Bansi Lal Arora and as such she has no locus standi to file the suit. The suit is otherwise bad on account of the fact that the appropriate Court fee has not been paid. It is stated that that the property bearing No. A33, NDSEI, South Extension was in the name of one Smt. Har Kaur wife of Sh. Munshi Ram, in the shape of plot and later on she constructed the same with her own funds and resources, during her lifetime, and after the demise of Smt Har Kaur, her legal heirs and successors sold the said property to one Smt. Agya Rani wife of Sh. Manohar Lal Sethi, through a registered sale deed. Later on in the year 1975 the defendant No. 4 acquired/purchased ½ of the portion of the said property from the said Mrs. Agya Rani Sethi, and the other ½ portion of the said property was acquired/purchased by her in the year 1996, and the same was duly mutated in the name of respondent No.4 on 03.08.1976. Later on in the year 1995 (19.07.1995) the defendant No. 4 entered into a Collaboration Agreement with one M/s Trishul Towers Pvt. Ltd for the redevelopment of the property, and the said builder constructed a residential building on the said property, by constructing the ground Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.7 of pages 19 floor, first floor and second floor and three servant quarters with common W.C on the top terrace of the building. In terms of the aforesaid Collaboration Agreement, Mrs. Krishna Wanti (defendant no. 4) became the absolute owner of the entire ground floor and the entire first floor with two servant quarters with common W.C on the top terrace of the building, with terrace rights, thereof and the remaining portion i.e entire second floor (without terrace thereupon) with one servant quarter and the right to use the common W.C on the top terrace of building was owned by the builder, in lieu of the construction and development of said property. Later on the defendant No. 4 donated the said property, to the defendant No. 1, 2 & 3 in terms of the Gift Deed executed in favour of the each defendant no. 1, 2 & 3 separately. As regards to shop no. 24 the same was directly purchased by defendant No. 3 out of his own resources. The shop no. 26 although was in the name of Late Sh. Bansi Lal as a licensee but during his lifetime, he through a will dated 30.09.1992 bequeathed the same in favour of his grandson namely Sameer Arora, S/o Sh. Hari Kishan Lal Arora and the same stands transferred in the name of Sameer Arora and as such the plaintiff has no concern with the same. The shop No. 27 and 41 were Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.8 of pages 19 duly alloted directly in the name of defendant No. 2 and defendant no. 1 respectively by the Directorate of Estate. Shop No. 31 was purchased directly by the wife of defendant No. 1 from one Devender Sofat on 04.07.2000. All the above made it clear that the plaintiff has no locus standi to claim anything in the property. It is specifically denied that any partition took place in December, 2004. Question of partition does not arise as the shops are self allotted and self acquired.
4. No written statement has been filed on behalf of defendant No. 3.
5. The plaintiff had filed his replication to the Written Statement of defendants wherein he reiterated and reaffirmed the contents of plaint and denied the allegation made in the Written Statement. It is specifically denied that the property in which the plaintiff is claiming her share never belongs to Late Sh. Bansi Lal Arora. It is reiterated that all the properties as aforesaid were purchased by Sh. Bansi Lal Arora out of his own earnings and funds and therefore the plaintiff is entitled for her share after getting them divided by meets and bounds.
6. Then from the pleadings of the parties following issues were Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.9 of pages 19 framed vide order dated 10.02.2006:
(i).Whether after the death of Sh. Bansi Lal Arora the parties to the suit inherited the property in suit situated at Mehar Chand Market, Lodhi Road, New Delhi ?
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(ii).Whether the plaintiff inherited the ownership of 1/6 share of the suit property or has no locus standi to file the present suit ?
(iii).Whether the suit property was Will out by Sh. Bansi Lal and bequeathed to his grandson namely Samir Arora if so, its effects and site plan of the plaintiff is not correct ?
(iv).Relief.
7. In support of his case plaintiff examined herself as PW1.
8. PW1 in her examination in chief proved the documents i.e Site plan ExPW1/A & ExPW1/B, notice dated 17.02.2003 is ExPW1/3, postal receipt ExPW1/D, UPC ExPW1/E, reply dated 28.02.2003 ExPW1/F. During cross examination she confirmed that her marriage took place in November, 1983 and before her marriage she was Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.10 of pages 19 residing alongwith her mother in the property in dispute. The address of the property where she had resided alongwith her mother is A33, South Ext. New Delhi. She has denied that the property in question was not purchased by her father out of his own earnings and the property bearing No. A33, South Extension, New Delhi was not with them before her marriage. She also denied that the property bearing No. A33, South Ext. New Delhi neither in the name of her father nor in the name of her mother. The property bearing No. 26 Mehar Chand Market Lodhi Road is in the name of her father. She denied that all the remaining four shops are property of L&DO Deptt. and they are rented properties. She denied that the shop No. 31 has been alloted in the name of Sh. Ram Lal Wadhwa. She has further denied that till date all the four shops are the exclusive properties of L&DO Department.
9. In their defence, the defendants examined DW1 Hari Kishan Lal Arora and DW2 Sh. Ghyan Prakash, UDC in the office of Land and Estate, MCD, Town Hall, Delhi.
10. In his examinationinchief, DW1 confirmed that the property in which plaintiff is claiming her share never belonged to Sh. Bansi Lal Arora and as such the plaintiff has got no locus standi to file the Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.11 of pages 19 present. Further the proper Court fee has not been paid. She further reiterated the contents of the plaint and confirmed that the properties in question never belonged to Late Sh. Bansi Lal rather they were purchased/allotted by/to the defendants. He denied that any partition took place in December, 2004 and claimed that no question of partition arises as the shops are self allotted and self acquired.
During cross examination he confirmed that he is doing the business of confectionery shop in shop No. 27 Mehar Chand Market, Lodhi Road. He claimed that his date of birth is 15.11.1951 and he is the eldest son in the family. He stated that his father was doing the business of tea before his marriage and his mother is the owner of the property bearing no. A33 NDSE Part I South Extension, New Delhi. He conceded that his mother is not working and she was a housewife. He did not produce the original document of the property bearing No. A33 NDSE Par I belonging to his mother. He claimed that the said property was purchased in the year 197374. All the shops bearing No. 24,26, 27, 31 & 41 situated in Mehar Chand Market Lodhi Colony, Delhi are rented shops. He conceded that notice ExPW1/3 was given by the plaintiff as well as other sister Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.12 of pages 19 namely Suman Diwan. No share has been given to said Smt. Suman Diwan. He confirmed that at the time when property bearing No. A33, NDSE Part I was purchased his both brothers were studying. At that time he was earning around 400500 per month.
DW2 Sh. Gyan Prakash brought the notification dated 24.03.2006, Ministry of Urban Development, Department on the market decided to transfer the markets under L&DO to MCD and NDMC. Shop Serial No. 49 annexure II, Mehar Chand Market was also transferred to MCD.
11. I have heard the rival submissions of Ld. counsels for the parties and carefully gone through the entire material placed on record and my issue wise findings as under:
12. Since Issues No.1 & 2 are interconnected, so I shall take them together.
12. ISSUE NO. 1 Whether after the death of Sh. Bansi Lal Arora the parties to the suit inherited the property in suit situated at Mehar Chand Market, Lodhi Road, New Delhi ?
ISSUE NO. 2
th Whether the plaintiff inherited the ownership of 1/6 share of the suit property or has no locus standi to file the present suit ?
Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.13 of pages 19 It is the case of the plaintiff that the father of the plaintiff was the absolute owner of the properties in suit i.e bearing no. A33, NDSE Part I, South Extension, New Delhi and the shops No 24, 26, 27, 31 & 41 situated in the area of Mehar Chand Market Lodhi Road New Delhi and after his death as intestate the plaintiff being the married daughter and one of the legal heirs of Late Sh. Bansi Lal is th entitled to the 1/6 share in the aforesaid properties.
Per contra, according to the defendants the plaintiff has no locus standi as the properties in suit were never owned by the Late father of the plaintiff namely Sh. Bansi Lal Arora, so after his death, parties to the suit did not inherit the properties in suit.
In his examinationinchief tendered by affidavit Ex.DW1/A, DW1 has confirmed that the property bearing No.A33, NDSE Part I, South Extension, New Delhi is initially a plot which was in the name of one Smt. Har Kaur, W/o Sh. Munshi Ram and later on she raised constructions therein and after her demise, her legal heirs sold the said property to one Sh. Agya Rani, W/o Sh. Manohar Lal Sethi through a registered sale deed. Later on defendant No. 4 purchased the half portion of the same in the year 1975 and subsequently she also purchased another half portion of Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.14 of pages 19 the said property in the year 1996 and the same was also duly mutated in the name of respondent No.4. Late on defendant no.4 entered into a collaboration agreement with M/s Trishul Towers Pvt. Ltd for redevelopment of the property and if he constructed the residential building thereupon by constructing the ground floor, first floor and second floor and three servant quarter with common W.C with the top of terrace of the building. As per agreement the builder nd retained the entire 2 floor without terrace right thereupon with one servant quarter and right to use the common W.C on the top of terrace of building and rest of the portion was given to defendant No. 4 and defendant No. 4 gifted her portion to defendant No. 2 and 3 vide gift deeds ExDW1/A and ExDW1/B. The shops in question except the shop No. 26 were also not belonging to the father of the plaintiff and shop No. 26 was also bequeathed by him through a will dated 30.03.1992 in favour Sameer Arora, the son of defendant No. 1. Thus the plaintiff has no locus standi to file the instant suit.
This witness was cross examined by the plaintiff but no question was put to the witness to the effect that the properties in dispute were the self acquired properties of late Sh. Bansi Lal Arora th and therefore the plaintiff has the right to acquire the 1/6 being one Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.15 of pages 19 of the LRs of deceased Sh. Bansi Lal Arora.
The plaintiff in her examination in chief tendered by way of affidavit Ex.P1 has reiterated the contents of the plaint but she did not file any documentary material on record to show that the properties in question were purchased and owned by the deceased father of the plaintiff and defendant No.1, 2, 3 & 5 and he died intestate.
The onus to establish the fact that after the death of Sh. Bansi Lal Arora, who died intestate, the parties to the suit inherited the properties in suit being his legal heirs and further further being one of the legal heirs of deceased Sh. Bansi Lal Arora the plaintiff is th entitled to the 1/6 share in the suit properties but she has been failed to discharge the onus by leading the cogent & trustworthy evidence. It is well settled that the burden to prove his/her case always lies upon the plaintiff and in the present case the plaintiff has been failed to discharge her burden. No documentary material has been placed on record by the plaintiff to show that the properties in questions were purchased/acquired by Late Sh. Bansi Lal Arora and he was the owner thereof and the plaintiff being her one of the th LRs entitled for 1/6 share therein. Even the plaintiff did not take Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.16 of pages 19 any step to prove the said facts by summoning the necessary records from the office of Registrar Concern or other Revenue or Municipal Authorities. Although it is true that the defendants have also not produced any original document in support of their claim that the property bearing no.A33, NDSEI, South Extension New Delhi49 was purchased by defendant no.4 from its erstwhile owners but onus to prove her case was upon the plaintiff to which she was required to prove on its own and since the plaintiff has been failed to do so, so both the issues are liable to be decided against the plaintiff. Issues no.1 & 2 stand decided accordingly.
14. ISSUE NO. 3 Whether the suit property was Will out by Sh. Bansi Lal and bequeathed to his grandson namely Samir Arora if so, its effects and site plan of the plaintiff is not correct ?
It is the case of the defendants that Shop No.26 although was in the name of late Sh. Bansi Lal, as a Licensee, but during his life time he thorough a Will dated 30.03.1992 bequeathed the same in favour of his grandson namely Sh. Sameer Arora S/o Sh. Harikishan Lal Arora and the same stands transferred in the name of Sameer Arora and such the plaintiff has no concerned with the same. Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.17 of pages 19 Perusal of the record reveals that a photocopy of Will dated 30.03.1992 has been placed on record but the same has not been proved as per the requirement of the Evidence Act. Neither the original has been produced before the Court nor the attesting witnesses have been examined by the defendant to establish and prove the aforesaid claim and in the absence of the same it can not be said that the suit property was Will out by Sh. Bansi Lal and bequeathed to his grandson namely Samir Arora. Issue stands decided accordingly.
15. RELIEF: In view of my findings on the foregoing issues, suit of the plaintiff is dismissed. No order as to cost in the facts and circumstances of the case.
16. Decree Sheet be prepared accordingly.
17. File be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR)
today on 29.04.2011) ADDL. DISTRICT JUDGE03 (C)
DELHI
Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.18 of pages 19 Suit No.354/08 Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors.
29.04.2011 Present: As before.
Vide a separate judgment, suit of the plaintiff is dismissed. Decree Sheet be prepared accordingly.
File be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ADJ03 (C)/DELHI/29.04.2011 Smt. Saroj Kalra Vs. Sh. Harikishan Lal Arora & Ors. (Suit No.354/08) Page No.19 of pages 19