Delhi High Court
Smt. Leela Dhameja vs Smt. Bela Dhameja on 22 April, 2010
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22.04.2010
+ CS(OS) 284/2009, I.A. No. 2006/2009
SMT. LEELA DHAMEJA ..... Plaintiff
Through : Mr. Romesh Gautam, Advocate.
versus
SMT. BELA DHAMEJA ..... Defendant
Through : Mr. R.S. Sharma, Advocate.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether the Reporters of local papers Yes.
may be allowed to see the judgment?
2. To be referred to Reporter or not? Yes.
3. Whether the judgment should be Yes.
reported in the Digest?
S.RAVINDRA BHAT, J. (OPEN COURT)
1. Heard counsel for the parties.
2. In this suit, the relief claimed is partition and mandatory injunction against the defendant.
3. The suit contends that by a Perpetual Sub-lease dated 15.10.1968, (executed by the President of India, in favor of Sh. Ishwar Das Dhameja), the lease held rights in respect of suit property, D-5/16, Vasant Vihar, New Delhi, a 400 square yard plot were allotted to late Sh. Ishwar Das Dhameja. It is further contended that the said Sh. Ishwar Das Dhameja, on 10.08.1969, executed a Will, by which he bequeathed the property to his two sons - Sh. Vinod Kumar and Sh. Vijay Kumar. Sh. Ishwar Das Dhameja died on 02.11.1969, and at that time, was survived by his widow, Smt. Shanti Devi Dhameja; three sons - two sons mentioned above and CS(OS) 284/2009, I.A. No. 2006/2009 Page 1 Sh. Rajinder Kumar, and four daughters. It is submitted that all the four daughters are not residing in India and are now U.S. citizens.
4. The plaintiff contends that the third son, Sh. Rajinder Kumar died on 27.02.1971 at the young age of 23 years. He was unmarried and was, therefore, issueless. Sh. Ishwar Das Dhameja's widow, Smt. Shanti Devi Dhameja also expired on 30.04.1986. In these circumstances, says the plaintiff, the two sons, i.e. Sh. Vinod Kumar and Sh. Vijay Kumar were the only heirs entitled to the suit property. It is submitted that Sh. Vijay Kumar joined the Indian Army and held a permanent commission. It is claimed further that the mutation could not be completed due to want of signatures of one of the legal heirs - Smt. Sneh Bains, one of the daughters of the late Sh. Ishwar Das Dhameja. The plaintiff states that Major Vijay Kumar died on 27.12.1995 and was survived by his widow, (i.e. the plaintiff in this case) and two sons. Sh. Vinod Kumar died on 31.01.2007 and was survived by his wife Smt. Bela Dhameja (the defendant in this case), two sons and a daughter.
5. The plaintiff claims partition and submits that the defendant, widow of late Sh. Vinod Kumar has got a major portion of the property and is refusing to give a fair share of it to her. The plaintiff also submits that all attempts at a mutually acceptable settlement have failed and, therefore, seeks reliefs that are claimed.
6. The defendant in the written statement does not deny the essential facts. However, the principal submission is that sometime in 1993-94, the two brothers, i.e. Sh. Vinod Kumar and Sh. Vijay Kumar had entered into an oral family settlement on the basis of which they had agreed, broadly, for the partition of the property. It is claimed that late Mr. Vijay Kumar had undergone major heart surgery in 1990 and was not keeping good health and, therefore, he proposed that the property ought to be divided, whereby his branch would be entitled to the first CS(OS) 284/2009, I.A. No. 2006/2009 Page 2 floor of the property.
7. As far as the other aspects pertaining to the heirs of the property or the particulars of the acquisition or the dates of death of the various family members are concerned, the defendant does not join issue with the plaintiff.
8. The plaintiff has produced the documents relied upon, in support of her claim, which include the Site Plan of the property; a copy of the Perpetual Sub-Lease of 1968; the Death Certificates of various family members; the Will of late Sh. Ishwar Das Dhameja; copies of legal notice and the reply. The plaintiff also relies upon copies of the draft Family Settlement as well as the revised draft whereby the possible terms on which the property could be shared suitably by the two branches of the family were proposed. As against this, the defendant has not filed any documents in support of her case.
9. From the materials on record, it is evident that there is practically no issue about the ownership of the property and the share each party is entitled to. The defendant's substantial contention is that the family settlement took place sometime in 1993-94. There is neither any document containing the Memorandum or the terms of such settlement nor they have been indicated in precise terms in the pleadings. Furthermore, in support of such submission, other collateral documents, in the form of Tax Receipts and/or Sanction Plans or documents filed with the local or Municipal authorities have not been produced. In these circumstances, the defendant's contention of an oral partition whereby the first floor was to devolve on the predecessor-in-interest of the plaintiff is not only insubstantial but completely vague.
10. As a result of the above discussion, the only conclusion which the Court can arrive at is that both the parties, i.e. the plaintiff and defendant being the descendants of the two heirs constituted by late Sh. Ishwar Das Dhameja by his Will dated 10.08.1969 (which are relied upon CS(OS) 284/2009, I.A. No. 2006/2009 Page 3 by both the parties) are each entitled to one half undivided share of the suit property.
11. In the light of the above conclusions, a preliminary decree entitling the plaintiff and the defendant to one-half share each in the suit property shall be drawn. List on 20.08.2010, for further proceedings towards final decree to be drawn by the Court since the parties submit that an attempt at working-out the terms would be made, in the meanwhile.
S. RAVINDRA BHAT
(JUDGE)
APRIL 22, 2010
'ajk'
CS(OS) 284/2009, I.A. No. 2006/2009 Page 4