Delhi District Court
Civil Suit No. 8078/16 vs (1) Sh. Rakesh Sharma on 24 November, 2016
IN THE COURT OF SH. PRITAM SINGH, ADJ-04, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI.
Civil Suit No. 8078/16
Smt. Vineeta Sharma
W/o Sh. A.K. Sharma,
R/o 27-A (SFS) DDA Flats,
Vijay Mandal Enclave,
New Delhi-110016 .........Plaintiff
Versus
(1) Sh. Rakesh Sharma
S/o Late Sh. Dev Dutt Sharma,
R/o A-53, South Extension Part-II,
New Delhi-110049.
(2) Lt. Col. Satyendra Sharma
S/o Late Sh. Dev Dutt Sharma,
R/o A-53, South Extension Part-II,
New Delhi-110049.
(3) Mrs. Rameshwari Sharma
Widow of Late Sh. Dev Dutt Sharma,
R/o A-53, South Extension Part-II,
New Delhi-110049. .........Defendants
Date of institution of the suit : 01.02.2002
Date reserved for judgment : 24.11.2016
Date of pronouncement of judgment : 24.11.2016
Suit for partition and permanent injunction.
JUDGMENT
1. The brief facts of the case are that the plaintiff is real sister of defendant No.1 & 2 and daughter of defendant No.3. In the year 1956, Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 1/41 father of the plaintiff and defendants No.1 & 2 and husband of defendant No.3, Sh. Dev Dutt Sharma (now deceased) purchased a plot of land ad- measuring 250 square yards bearing No. A-53, South Extension, Part-II, New Delhi from DLF Housing and Construction Ltd. Late Sh. Dev Dutt Sharma exhausted all his savings in purchasing the said plot. In the year 1964-65, late Sh. Dev Dutt Sharma constructed two and half storeys house on the said plot (hereinafter called the suit property) from his savings and loans taken from the office, friends and relatives. Sh. Dev Dutt Sharma was residing in government accommodation and after his retirement in the year 1974, he alongwith his family shifted to the suit property and occupied first floor of the same. Ground floor and Barsati had rented out to the tenants. In the year 1980, he alongwith his family shifted and occupied the ground floor. Barsati and first floor were rented out to various tenants including first floor to Bank of Baroda at the rate of monthly rent of Rs. 3,000/- w.e.f 01.02.1985. Later on, Sh. Dev Dutt Sharma, defendant No.1 on his transfer to Delhi in the year 1984, occupied the Barsati floor. In the year 1998, Sh. Dev Dutt Sharma filed a suit for eviction against the Bank but during the pendency of the said suit, he expired on 11.12.1999 leaving behind his legal heirs i.e defendant No.1 Sh. Rakesh Sharma and defendant No.2 Lt. Colonel Satender Sharma being sons, Smt. Rameshwari Sharma his wife, plaintiff as daughter and one more son Dr. Shailender Sharma.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 2/41
2. It is further stated that Sh. Dev Dutt Sharma expired intestate, therefore, after his death, the suit property was devolved upon the above said five legal heirs in proportion to 1/5th share each. Sh. Shailender Sharma, the youngest son expired on 01.07.2001 and at the time of his death, he was unmarried, therefore, his share was devolved upon the remaining four legal heirs, their share became 1/4th each. The plaintiff being daughter of late Sh. Dev Dutt Sharma became entitled to 1/4th share in the suit property and she is also in possession of suit property as her goods/movable assets are lying there. Whenever she visits her parental home, she stays in the suit property and thus has constructive possession of the suit property. It is further stated that the defendant No.1 & 2 have illegally occupied the entire house/suit property except one small room at the ground floor to the exclusion of plaintiff and defendant No.3. The defendants No.1 & 2 denied the plaintiff to her legal right of 1/4th share in the suit property but when they realized that she has 1/4th share in the suit property, tried to persuade the plaintiff to not to ask for immediate partition and in pursuance thereof on 21.07.2001, defendants No.1 & 2 held a meeting with the plaintiff and orally decided that the suit property shall be divided by meets and bounds and the entire Barsati floor with roof rights would be given to her. However later on, defendants No.1 & 2 did not change their attitude and compelled the plaintiff to give them a legal notice dated 17.10.2001. In reply to the legal notice, it is stated by Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 3/41 the defendants No.1 & 2 that the suit property is HUF property and their father had executed a Will thereby bequeathing his undivided share/interest in the suit property in favour of the defendants No.1 & 2. It is further alleged that the said Will was not traceable.
3. It is further stated that the suit property was never treated as HUF property and no Will was ever executed by their deceased father in favour of the defendants No.1 & 2. It is further stated that in the application for substitution of legal heirs of late Sh. Dev Dutt Sharma filed during the pendency of eviction suit against Canara Bank in Tis Hazari Courts, plaintiff alongwith defendants was shown as legal heirs and nowhere the alleged Will was mentioned. It is further stated that the plaintiff being daughter of late Sh. Dev Dutt Sharma has 1/4th share in the suit property and a decree for partition may kindly be passed in the 1/4th share between the plaintiff and the defendants. It is further prayed that the defendants be restrained from selling, disposing of or creating third party interest and from partying with the suit property.
4. Separate written statements were filed on behalf of defendants No.1 & 2 almost making similar averments. It is preliminary objected that the plaintiff has no locus standi to file the present suit as after her marriage, she seized to be a member of the family and all her rights come to an end. It is further objected that the suit filed is undervalued and the Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 4/41 value of the suit property is Rs. 40 lacs but the plaintiff has fixed the stamp duty only of Rs. 19.50 paise. It is denied that the plaintiff is in possession of any part of the suit property and she has wrongly valued the suit property. It is admitted that Sh. Dev Dutt Sharma had purchased a plot of land ad-measuring 250 square yards bearing A-53, South Extension, Part-II, New Delhi from DLF Housing and Construction Ltd. in the year 1956. However, it is denied that Sh. Dev Dutt Sharma had exhausted all his savings in purchasing the plot as alleged by the plaintiff. It is further admitted that in the year 1964-65, late Sh. Dev Dutt Sharma constructed two and half storeys house i.e suit property but it is denied that he was the only earning member and repaid his loans from rental so received from the tenants and from his own savings. It is further stated that the defendant No.1 paid Rs. 11,000/- to Sh. Dev Dutt Sharma for repayment of loan in the year 1971, who was working as Manager Travellers Lodge Elephanta Island, Bombay at that time. The defendant No.1 had contributed in the acquisition and development of the suit property. It is further admitted that Sh. Dev Dutt Sharma retired in the year 1974 and shifted alongwith his family in the first floor of the suit property. The ground floor and Barsati floor were with the tenants in the year 1980. The family shifted to the ground floor. Barsati and first floor were rented out.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 5/41
5. It is further stated that the defendant No.1 on his transfer to Delhi in 1980, occupied the Barsati floor and not in 1984 as alleged by the plaintiff. It is further admitted that during the pendency suit for eviction, Sh. Dev Dutt Sharma expired on 11.12.1999 leaving behind his wife (defendant No.3), three sons (defendants No.1 & 2 and third son Dr. Shailender Sharma) and one daughter (plaintiff). It is further stated that plaintiff got married on 18.01.1981 and in that marriage, Sh. Dev Dutt Sharma and defendants No.1 & 2 had spent Rs. 3,50,000/-. After the marriage, plaintiff seizes to be a member of the family of Sh. Dev Dutt Sharma and she is entitled to only to restricted rights. It is further admitted that Sh. Dev Dutt Sharma expired intestate but the suit property is an HUF property, therefore, the plaintiff has no right to share in the suit property. It is also admitted that youngest son Dr. Shailender Sharma expired on 01.07.2001 and he was unmarried at that time. It is further stated that the suit property was assessed by the Income Tax Department on the basis of HUF and the same was also assessed by the Wealth Tax Authority. All other averments made in the plaint were denied.
6. Replications to the written statements were filed on behalf of the plaintiff. In the replications, the plaintiff has denied the averments made in the written statements and reiterated and affirmed the contents of the plaint. Defendant No.3 did not appear despite service and she was Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 6/41 proceeded ex-parte on 09.07.2002.
7. From the pleadings of the parties, the following issues were framed on 08.12.2003.
ISSUES
1. Whether the suit is properly valued for the purposes of Court Fee and whether proper court fee has been affixed on the plaint in light of the plaintiff's claim that she is in constructive possession of the suit property?
2. Whether the suit property is self-acquired/HUF property of the father?
3. Whether the property was settled by way of oral partition dated 21st July, 2001 and whether the same was acted upon by the parties?
4. Whether the suit is maintainable in view of Section 23 of the Hindu Succession Act?
5. To what shares are the parties entitled to?
6. Relief.
8. In support of her case, plaintiff examined herself as PW-1. Plaintiff also examined Sh. G.C. Jatav, Manager (Marketing) Bank of Baroda, Branch Defence Colony, New Delhi, Sh. Sanjay Chauhan, Inspector, House Tax, Office of the MCD, Lajpat Nagar, New Delhi; Sh. Sanjay Kumar, LDC from Record Room (Session) Tis Hazari Courts and Sh. Sukhwinder Singh, LDC from the Office of Sub Registrar, Delhi Gate, New Delhi. Thus, the plaintiff has examined four summoned witnesses Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 7/41 but they were not given numbers. In order to avoid confusion, the said four witnesses will be called as PW-2 to PW-5 respectively. Plaintiff/PW-1 relied upon the following documents:
1. Statement of account of saving bank A/c No. 15117 of Sh.
Dev Dutt Sharma for the period of 01.06.2002 to 18.02.2015 Ex. PW1/1.
2. The certified copy of sale-deed dated 16.08.1956 Ex. PW2/1.
3. Certified copy of lease-deed dated 25.01.1985 Ex. PW2/2.
4. Memo of parties of suit 'Dev Dutt Sharma vs. Bank of Baroda' dated 15.01.2001 Ex. PW3/1.
5. Amended memo of parties of suit 'Dev Dutt Sharma vs. Bank of Baroda' dated 22.08.2001 Ex. PW3/2.
6. Certified copy of plaint of suit 'Dev Dutt Sharma vs. Bank of Baroda' Ex. PW3/3.
7. Written statement of Bank of Baroda filed in suit 'Dev Dutt Sharma vs. Bank of Baroda' Ex. PW3/4.
8. Replication filed by L.Rs of Sh. Dev Dutt Sharma Ex.
PW3/5.
9. Application under Order 22 CPC dated 22.07.2001 Ex.
PW3/6.
10. Affidavit of Lt. Colonel Surender Sharma in support of application under Order 22 CPC Ex. PW3/7.
11. Certified copies of order-sheets in the suit 'Dev Dutt Sharma vs. Bank of Baroda' Ex. PW3/8 running into 14 pages.
12. Attested true copy of House Tax Receipt dated 01.04.1975 Ex. PW4/1.
13. Attested true copy of House Tax Receipt dated 01.02.1966 Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 8/41 Ex. PW4/2.
14. Attested true copy of House Tax Receipt dated 15.02.1986 Ex. PW4/3.
15. Attested true copy of House Tax Receipt dated 23.02.1996 Ex. PW4/4.
16. Attested true copy of affidavit of Sh. Dev Dutt Sharma dated 21.12.1981 Ex. PW4/5.
9. In order to prove this case, defendant No.1 Sh. Rakesh Sharma has examined himself as DW-1 and his affidavit is Ex. DW1/A. Defendant No.2 has also examined himself as DW-2 and his affidavit is Ex. DW1/A also. To avoid confusion, the affidavit of DW-2 shall be read as DW2/A.
10. Defendant No.1 Sh. Rakesh Sharma examined himself as DW-1 and his affidavit for evidence Ex. DW1/A. Defendant No. 2 examined himself as DW-2. Defendants No.1 & 2 relied upon the following documents:
1. Certified copy of application under Order 22 Rule 3 dated 04.01.2000 Ex. DW1/2.
2. Certified copy of order dated 22.08.2001 in suit No. 417/2001 'Dev Dutt Sharma vs. Bank of Baroda' Ex. DW1/3.
3. True copy of legal notice dated 17.10.2001 issued by the plaintiff to the defendant No.1 Ex. DW1/4.
4. Photocopy of reply dated 13.11.2001 issued by the defendants to Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 9/41 the plaintiff Ex. DW1/5.
5. Copy of assessment of house by the Board to take it on rent @ Rs.
5,400/- Ex. DW1/6.
6. Certificate regarding bills claiming reimbursement Ex. DW1/7.
7. Copy of Willingness Certificate issued by Sh. D.D. Sharma to let out ground floor of the suit premises Ex. DW1/8.
8. Site plan Ex. DW1/9.
11. Final arguments heard from both the sides. Entire records including written submissions filed on behalf of both the parties have been perused.
12. Ld. Counsel for the plaintiff argued that both the defendants No.1 & 2 had admitted that the plot on which the suit property was constructed was purchased by late Sh. Dev Dutt Sharma from his own money and he had raised the construction upto two and half storeys from his own income. Ld. Counsel for the plaintiff further argued that from this, it is clearly proved that it was self acquired property of late Sh. Dev Dutt Sharma and none of the defendants had contributed any money in it. Ld. Counsel further submitted that late Sh. Dev Dutt Sharma issued the rent receipts to the defendants No.1 & 2 as well as to the other tenants in his individual capacity and had never shown himself as Karta of HUF. Ld. Counsel further submitted that late Sh. Dev Dutt Sharma filed eviction petition against Canara Bank in his individual capacity and during the Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 10/41 pendency of the said eviction petition, he expired and all his legal heirs including plaintiff, defendant No.3, who are female members of the family were brought on record alongwith male members of the family by moving an application under Order 22 Rule 3 CPC. Ld. Counsel further submitted that the said application was allowed and finally the matter was settled between the legal heirs of the late Sh. Dev Dutt Sharma and the Canara Bank. Ld. Counsel further submitted that the defendants No.1 & 2 received the possession of the tenanted premises from the Canara Bank in the concerned court on behalf of all the legal heirs including the plaintiff. Ld. Counsel further submitted that the defendants have failed to bring anything on record to establish that the suit property was HUF during the lifetime of late Sh. Dev Dutt Sharma. Ld. Counsel for the plaintiff has relied upon the following rulings:
1. Mrs. Premwati & Ors. vs. Mrs. Bhagwati Devi & Ors decided by Hon'ble High Court of Delhi on 29.08.2012 in C.S (OS) No. 305/1996.
2. Commissioner of Wealth Tax, Kanpur etc. vs. Chandra Sen etc. AIR 1986 SC 1753.
3. Yudhishter vs. Ashok Kumar, AIR 1987 SC 558.
4. Sathyaprema Manjunatha Gowda vs. Controller of Estate Duty, Karnataka (1997) 10 SCC 684.
5. Neelam & Anr. vs. Sadaram & Ors. decided by Hon'ble Delhi High Court on 30.01.2013 in C.S (OS) No. 823/2010.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 11/41
13. Ld. Counsel for the defendants No.1 & 2 argued that where a Joint Hindu Family has ancestral property, any of its member can throw his own property in the Joint Hindu Family and such a joining is known as blending. Ld. Counsel further argued that any member of Joint Hindu Family can voluntarily throw his self acquired property in the common stock or common hotchpotch, even when there is no ancestral property, with the intention of abandoning his separate claim in it. Ld. Counsel further submitted that the later process of throwing property in common hotchpotch is known as 'impressing'. Ld. Counsel further submitted that late Sh. Dev Dutt Sharma had voluntarily thrown his self acquired property in the common hotchpotch of the joint family by abandoning his share and created Sh. Dev Dutt Sharma HUF. He also made declaration on 23.05.1966 on an affidavit that the suit property came into existence as HUF. Ld. Counsel has further submitted that late Sh. Dev Dutt Sharma was Karta of the HUF and the income received from the suit property was being declared by him as HUF. Ld. Counsel has further argued that the assessment order under the Wealth Tax Act for the year 1977-78 onwards would also reflect that the suit property was assessed as HUF for the purpose of Wealth Tax. Ld. Counsel has further submitted that by filing an eviction suit against the Canara Bank by late Sh. Dev Dutt Sharma in his individual capacity and after his death during the pendency of the said suit, all his legal heirs including the plaintiff were substituted Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 12/41 and brought on record in the said eviction suit but still the suit property remains HUF. Ld. Counsel further argued that the suit property was assessed by the Income Tax Department for the assessment year 1972-73 as HUF property. Ld. Counsel for the defendants has also relied upon the following rulings:
1. DS Lakshamaiah & Anr. vs. L. Balasubramaniyam & Anr. (2003) 10 SCC 310.
2. Bhagwan Dayal through his L.Rs vs. Mst. Reoti Devi through her L.Rs AIR 1962 SC 287.
3. Commissioner of Income Tax vs. Smt. Pushpa Devi, ILR (1971) I 292.
4. Dr. Kewal Krishan Mayor vs. Kailash Chand Mayor ILR (1977) I Delhi 97.
5. Narashimaha Murthy vs. Susheelbai AIR 1996 SC 1826.
6. Prakash & Ors. vs. Phoolwati & Ors. decided by the Hon'ble Supreme Court of India on 16.10.2015 in Civil Appeal No. 7217 of 2013.
7. Rajdhani Films Pvt. Ltd. vs. Rajesh Arora 1995 Law Suit (Delhi) 47.
My findings on the issues are as follows:
Issue no.1
1. Whether the suit is properly valued for the purposes of Court Fee and whether proper court fee has been affixed on the plaint in light of the plaintiff's claim that she is in constructive possession of the suit property?
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 13/41 OPP
14. Smt. Vineeta Sharma stated in the plaint that the value of the suit property is Rs. 40,00,000/-. The plaintiff had initially paid the court fee of Rs. 19.50/- only on the ground that she is in constructive possession of the suit property. The plaintiff failed to prove that she is in constructive possession of any room in the suit property. On the other hand, defendant No. 1 and 2 specifically denied that plaintiff is not in possession of any of the room of the suit property and she is not in constructive possession of the suit property as alleged by her. It is not in dispute that plaintiff married in the year 1981 and since then she has been residing in her matrimonial home. Being a daughter of late Sh. Dev Dutt Sharma, she must have visited the suit property during his lifetime and also after his death but it does not mean that she is in constructive possession of the suit property. In the absence of cogent and substantive evidence, the plea of the plaintiff that she is in the constructive possession of the suit property is mere a bald assertion.
15. The defendants have also not brought anything on record to show that the value of suit property is more than Rs. 40,00,000/-, therefore taking the value of suit property as claimed by the plaintiff as Rs. 40,00,000/- and she is claiming ¼ share in the suit property, she is liable to pay court fee at Rs. 10,00,000/- being ¼ of the value of the suit Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 14/41 property. The plaintiff has deposited the court fee in the sum of Rs. 12,110/- on her 1/4th share i.e Rs. 10 lacs, as per value of the suit after passing of the judgment dated 30.01.2013 by Hon'ble Mr. Justice Sh. M.L. Mehta (retired). Hence this issue is decided accordingly. Issue No. 2:
Whether the suit property is self-acquired/HUF property of the father? OPP/OPD
16. The burden to prove whether the suit property is self acquired property and not HUF, is upon the plaintiff. On the other hand, the burden to prove whether the suit property is HUF property, is upon the defendants.
17. PW-1, Smt. Vineeta Sharma deposed that her father late Sh. Dev Dutt Sharma purchased a plot of land ad-measuring 250 square yards bearing No. A-53, South Extension, Part-II, New Delhi from DLF Housing and Construction Ltd. Late Sh. Dev Dutt Sharma exhausted all his savings in purchasing the said plot. In the year 1964-65, late Sh. Dev Dutt Sharma constructed two and half storeys house on the said plot from his savings and loan taken from his office, friends and relatives. PW-1 further deposed that Sh. Dev Dutt Sharma expired intestate, therefore, after his death, the suit property was devolved upon the defendant No.1 (son), defendant No.2 (son), defendant No.3 (wife), Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 15/41 plaintiff (daughter) and Dr. Shailender Sharma (who was also son of late Sh. Dev Dutt Sharma) in the proportion to 1/5th share each. Dr. Sh. Shailender Sharma, the youngest son expired on 01.07.2001 and at the time of his death, he was unmarried, therefore, his share was devolved upon the remaining four legal heirs, as a result of which, their share became 1/4th each. PW-1 further deposed that she demanded her share from the defendants but defendants No.1 & 2 only assured her to give her share. PW-1 further deposed that she sent a legal notice dated 17.10.2010 to the defendants demanding her 1/4th share in the suit property. In reply to the legal notice, it is stated by the defendants No.1 & 2 that the suit property is HUF property and their father had executed a Will thereby bequeathing his undivided share/interest in the suit property in favour of the defendants No.1 & 2 but the alleged Will was not traceable. PW-1 further deposed that the suit property was never treated as HUF property by their father and no Will was ever executed by their deceased father in favour of the defendants No.1 & 2.
18. PW-1, Smt. Vineeta Sharma deposed in her cross-examination that she could say with certainty that her brothers i.e defendants No.1 & 2 did not even contribute towards repayment of the loans taken by her father to purchase the suit property. PW-1 admitted the suggestion that defendant No.2 was inducted as a tenant in the ground floor of the suit property Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 16/41 through the army and the rent was being paid by the army to her father. PW-1 voluntarily deposed that the rent received by her father in his individual capacity. PW-1 further admitted that defendant No.1 was also using Barsati floor and paying rent to her father. PW-1 again deposed voluntarily that the rent was received by her father in his individual capacity. PW-1 further deposed that as far as she knew at the time of filing of the suit, the declared market value of the suit property would have been in the range of Rs. 40 lacs. PW-1 denied the suggestion that the suit property was an ancestral property and not a self acquired property. On the one hand, defendants No.1 & 2 are claiming the suit property as HUF property but suggestion was given to the plaintiff that it was ancestral property. Thus, there is contradiction in the stand of the defendants No.1 & 2.
19. DW-1, Sh. Rakesh Sharma deposed in his evidence that the suit property was HUF and plaintiff was not entitled to any share in the suit property. DW-1 further deposed that the suit property was assessed by the Income Tax Department and Wealth Tax Authority on the basis of HUF. The deposition of DW-2 in his chief-in-examination are also on the similar lines as of DW-1. Therefore, same are not repeated for the sake of brevity.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 17/41
20. DW-1 deposed in his cross-examination that from the documents at page 12 to 70, he was satisfied that the same have not been signed as true copies. He was unable to state when the property in question was purchased by his father. His father informed him that the property was purchased from the DLF. DW-1 further deposed that he was unable to recollect exactly when the construction of the said property/plot was raised and when it was completed. The construction commenced around 1965 and thereafter it was completed but not aware the time period when it was completed. DW-1 further deposed that he had completed his higher secondary in 1964. DW-1 admitted that he had not contributed any amount towards the purchasing of the plot which was purchased by his father exclusively in his name. He had joined diploma course in hotel management in 1964 and completed his studies in 1968. DW-1 further admitted that all the expenses towards his studies and for diploma course were borne by his father. DW-1 further deposed that he was not getting any salary during summer vacation when he was working as a trainee in Ambassador Hotel, Delhi and Clarridge Hotel, Delhi. DW-1 further admitted that he did not contribute anything towards the construction of house during the period 1964-65. He was not aware whether his father was owner of the suit property as shown in the record of the MCD. The property in question was sold by DLF exclusively in his father's name. DW-1 further admitted that the house tax was being paid in the name of Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 18/41 his father exclusively. DW-1 voluntarily deposed this was in the beginning.
21. DW-1 further deposed that his father declared Dev Dutt Sharma, HUF in the year 1973-74 but he was not aware about his father's contribution towards the creation of HUF. DW-1 further deposed that he was not aware whether there was any account in the name of his father or in the name of Dev Dutt Sharma, HUF. DW-1 further deposed that he was not aware whether he had opened account in the name of HUF either with his father or otherwise. He further deposed that he could say with certainty that he was not a party to the opening of any HUF account with his father. DW-1 further deposed that he was not aware that the suit for eviction and mesne profit filed by his father against Bank of Baroda was filed in his father name as absolute owner. DW-1 further deposed that his father expired during the pendency of said suit and application to bring legal-heirs of his father was singed by his mother, by his two brother, by sister as well as by him as legal-heirs of his father and the original of said application was filed in the court alongwith affidavits of all the said legal- heirs. The certified copy of said application Ex.PW-1/6 and he identified the signatures of his brother on the affidavit Ex.PW-3/7 in support of said application. DW-1 further admitted that all the legal-heirs had filed the replication to the written statement filed by the bank of Baroda, which is Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 19/41 Ex.PW-3/4, the replication Ex.PW-3/5 bears his signature, signatures of his bother, mother and sister. DW-1 further admitted that the contents of the plaint / suit Ex.PW-3/3 filed by his father were correct and the suit continued subsequently through legal-heirs of his father. DW-1 further admitted that during the proceedings of eviction suit No. 417/01 Ex.LCDW1/3 and even after substitution of the LRs of his father and till the disposal of the said suit on 22.08.2001, they had not claimed that the property in question was HUF property in the name of his father. DW-1 also admitted that in the application Ex. PW3/7, he had stated that his father died intestate. DW-1 further admitted that during the rituals consequent upon the death of his father, late Sh. D.D. Sharma was present but he did not make any reference to any Will of his father. DW-1 further deposed that he did not know whether his father executed a Will or not. DW-1 further deposed that he came to know about the HUF, namely, Dev Dutt Sharma in or around 1973-74. HUF was created by his father through an affidavit submitted to the Income Tax Authority and Wealth Tax Authority. DW-1 voluntarily deposed that no affidavit or consent was taken from him in respect of creation of HUF. Since he was not in Delhi at that time, therefore, not aware whether any such consent or affidavit was taken from his other brother in respect of creation of HUF. Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 20/41
22. DW-1 further deposed that after the demise of his father, he was substituted as Karta in HUF. No steps were taken by him to revive HUF after the demise of his father or in relation to HUF. DW-1 further deposed that they had been contesting the suit as HUF. DW-1 admitted that after the demise of his father, no returns whatsoever were filed with the Income Tax Authority by or in the name of HUF showing him as Karta of HUF. DW-1 voluntarily deposed that since there was no income tax payable in the HUF, therefore, no return was filed. DW-1 further deposed that he paid the rent in respect of Barsati floor by cheque in the name of his father Sh. Dev Dutt Sharma. DW-1 further admitted that his father had issued the rent receipt in token and having received the rent through the cheques and he was signing as D.D. Sharma alone. DW-1 further admitted that Sh. D.D. Sharma had not written anything on the receipt which might suggest that those receipts were issued by or on behalf of D.D. Sharma HUF. DW-1 voluntarily deposed that his father Sh. D.D. Sharma had shown the said amount received from him in the income tax record of the HUF. DW-1 was shown the copies of income tax returns of his father but he failed to point out with regard to any such rental income. DW-1 further admitted that his brother Dr. Shailender Sharma remained unmarried till his death. DW-1 further admitted that he, his brother -defendant No.2, his mother and the plaintiff are the only legal heirs of late Sh. Dev Dutt Sharma.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 21/41
23. DW-2 Sh. Satyender Sharma deposed that he was not employed for gain till the time he had completed his graduation and joined the Army in the year 1972. Initially, he remained in training for ten months since June 1972 when he was commissioned in April 1973 as Lieutenant and he was getting Rs. 900/- per month approximately. DW-2 further deposed that he did not remember exactly as to when his father purchased Plot No. A-53, South Extension, Part-II, New Delhi (suit property) and he did not know anything about the sale consideration which was paid by his father. As per his guess, his father had purchased in the year mid 1950. DW-2 admitted that the plot was purchased by his father in his own name namely Sh. Dev Dutt Sharma. DW-2 further deposed that he could not deny the suggestion that his father purchased the plot in question in the year 1955-56 and the construction i.e ground floor, first floor and the Barsati floor was done around in the year 1964-65. DW-2 further admitted that since the time when the plot was purchased by his father and till it was constructed and completed, he was a student and was not earning for gains. He had no income until he had joined the Army in April, 1973. DW-2 further admitted that he had not contributed for the purchase of the plot No. A-53 and for the construction and completion of two and half storeys building since he was student within that period. Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 22/41
24. DW-2 further admitted that from the date of completion of the suit property, the house tax was being assessed in the name of his father, namely, Sh. Dev Dutt Sharma. DW-2 further admitted that after completion of the construction, his father had let out the ground floor portion as well as the Barsati floors to various tenants from time to time, and his father was collecting the rent in his own name. DW-2 further admitted that his father had filed the suit in his personal capacity for eviction and mesne profits against Canara Bank before the courts of District Judge, Delhi and he identified the signatures of his father on the plaint and its verification, same is Ex. LCDW1/1. DW-2 further admitted after death of his father, his all five legal heirs including plaintiff were substituted on record as plaintiffs in the place of his father. DW-2 further admitted that the said suit was compromised and the Canara Bank had vacated the premises and handed over the keys to him and his elder brother -defendant No.1 on 22.08.2001. DW-2 further deposed that his statement alongwith his elder brother was recorded on 22.08.2001 when they had accepted the keys of the premises from the officials of the bank in the court on behalf of all the legal heirs of his father. DW-2 further deposed that he was not aware whether his father had any bank account in the name of Sh. D.D. Sharma, HUF. He had not given any amount to his father in the HUF account.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 23/41
25. From the deposition of PW-1, DW-1 and DW-2, it is established that their father late Sh. Dev Dutt Sharma purchased the plot of land ad- measuring 250 square yards bearing No. A-53, South Extension, Part-II, New Delhi from his own personal money by virtue of sale-deed dated 16.08.1956, same is Ex. PW2/1. It is further established from their deposition, neither defendant No.1 nor defendant No.2 had contributed in the construction of the said plot upto two and half storeys building i.e ground floor, first floor and Barsati on the second floor. Thus, the plaintiff succeeds to discharge the burden that the suit property was self acquired property of their father. It is admitted by defendant No.1 and defendant No.2 that their father late Sh. Dev Dutt Sharma let out the various portion of suit property to different tenants and collected the rent in his name and not in the name of Dev Dutt Sharma HUF. It is further admitted by both the defendants that their father late Sh. Dev Dutt Sharma filed a suit for eviction against the tenant - Canara Bank and during the pendency of the said suit, he expired. Thereafter, an application under Order 22 Rule 3 CPC was filed on behalf of his legal heirs including plaintiff, both the defendants, third son Dr. Shalender Kumar and his wife. The said application was signed by all the said legal heirs of late Sh. Dev Dutt Sharma and the same was allowed in the court where it was pending. Later on, the matter was settled between the legal heirs of late Sh. Dev Dutt Sharma and the Canara Bank. DW-2 admitted Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 24/41 that he gave a statement alongwith his elder brother (defendant No.1) on 22.08.2001 in the said court that they had accepted the key of the premises from the official of the bank on behalf of all the plaintiffs i.e all the legal heirs of late Sh. D.D. Sharma. DW-1 and DW-2 both further admitted that they had never opened any bank account alongwith their father in the name of HUF or ever contributed any money in the creation of Sh. Dev Dutt Sharma HUF.
26. DW-1 deposed in his affidavit that his father Sh. Dev Dutt Sharma had not exhausted all his savings in purchasing the plot and he (DW-1) had contributed substantially in the acquisition and development of the suit property in the form of repayment of loan raised over the acquisition of the property and amount spent on the construction of the property. DW-2 had also deposed on the similar lines. However, both the DW-1 and DW-2 admitted in their cross-examination that their father late Sh. Dev Dutt Sharma had purchased the plot on which suit property was constructed by his own funds and also raised the construction by his own funds. Both DW-1 and DW-2 were studying during that period and were having no source of income. Thus the stand taken by both the defendants in the written statement and in their affidavit is contradictory to what they deposed in their cross-examination.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 25/41
27. DW-1 deposed that the suit property was assessed by the Income Tax Department on the basis of HUF and the same was assessed by the Wealth Tax Authority as property Hindu Undivided Family. DW-1 further deposed that after the marriage of plaintiff, she seized to be the member of the defendant family and she was entitled to only a restricted right only. According to both the defendants, the suit property was assessed by the Income Tax Department and Wealth Tax Department as property of HUF but they failed to prove that the property was assessed by the Income Tax Department and Wealth Tax Department as HUF property. The defendants No.1 & 2 have filed Notice of Demand under Section 156 of the Income Tax Act 1961, Income Tax Return for the assessment year 1972-73; Income Tax Return for the assessment year 1977-78'; Income Tax Return for the assessment year 1978-79; Income Tax Return for the assessment year 1987-88; Income Tax Return for the assessment year 1988-89; Income Tax Return for the assessment year 1998-99, Income Tax Return for the assessment year 1999-2000 and computation of taxable income. The defendants have also filed Wealth Tax receipts showing the suit property HUF for the assessment year 1977-78; 1978-79; 1979-80; 1980-81; 1981-82; 1982-83; 1983-84; 1984- 85; 1985-86; 1986-87; 1987-88 and 1988-89. However, the defendants No.1 & 2 failed to prove any of these Income Tax or Wealth Tax documents. Just filing of a document on record does not amount to prove Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 26/41 the document. A document has to be proved as provided under the Indian Evidence Act. Thus, no document was proved on behalf of the defendants No.1 & 2 to establish that the suit property was HUF property. It was held by the Hon'ble Supreme Court of India in DS Lakshamaiah & Anr. vs. L. Balasubramaniyam & Anr. (Supra) the property cannot be presumed to be a joint family property mainly because of existence of a joint family. Burden to prove the property to be joint lies on the person who asserts so. When he proves that the family possessed sufficient nucleus with the aid of which joint family property could be acquired, then presumption would be that the property is joint and onus would shift on the person claiming if to be self acquired. On failure to establish the nucleus, the burden of proof remains on the person who asserts the property to be joint.
28. Ld. Counsel for the defendants No.1 & 2 submitted that the documents which were exhibited by the parties did not bear any endorsement of exhibits, therefore, they could not be relied upon. Ld. Counsel relied upon the ruling 'Rajdhani Films Pvt. Ltd. vs. Rajesh Arora 1995 (Supra). This ruling is regarding the filing of the documents as per the Delhi High Court (Original Side) Rules. The crux of the ruling is that the Original Side Rules of Delhi High Court will prevail over the provisions of CPC.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 27/41
29. Both the defendants are claiming that the suit property is joint family property/HUF but they both have admitted that they neither contributed in purchasing the plot nor in construction of the suit property. Thus, it is established that the family of the defendants did not possess sufficient nucleus with the aid of which the suit property was acquired. Even a suggestion was not given to the plaintiff during her cross- examination that the suit property was HUF property at the time of death of their father whereas the plaintiff has categorically deposed that the suit property is self acquired property of their father and it was never HUF property. Both the defendants have also failed to prove that the property was assessed to Income Tax Department and Wealth Tax Department as HUF. Hence, the defendant no. 1 and 2 failed to discharge the burden that the suit property was joint family property or HUF. It is well settled law that a family member can throw his self-acquired property in the common stock or common hotchpotch. Even where there is no ancestor property as held by the Hon'ble Delhi High Court in Dr. Kewal Krishan Mayor Vs. Kailash Chand Mayor & Ors. 1977 (1) 2 Delhi 1997 as under:
"As I understand the law laid down by the Supreme Court, it does not lay down that a separate property could not be impressed with the character of joint Hindu family property in the absence of the existence of a joint family or coparcenery property. The existence of joint family property is not necessary before a member of the family throws his Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 28/41 self-acquired property in the common stock. The existence of a joint estate is not an essential requisite to constitute a joint family and a family which does not own any property, movable or immovable, may, nevertheless be joint. If the existence of the coparcenery property is considered as a per-requisite for throwing the property into the common hotchpotch or common stock, then, only those joint families who are already possessed of ancestral property, can receive self-acquired properties of coparceners. If the arguments is taken to its logical conclusion, it will lead to absurdities or a situation that no joint Hindu family which does not own any ancestral property can ever acquire any property from any individual coparcener who intends to impress the self-
acquired property with the character of a joint family property. The terms 'blending' may suggest the existence of a nucleus but that does not mean that it is not possible to conceive of coparceners impressing their self-acquired properties with the status of the joint family property unless it is shown that the joint Hindu family is already possessed of a nucleus or ancestral stock or ancestral property. There is no reason to limit the cases of blending to only those families owning coparcenery property.
Throwing the self-acquired property in the common stock or hotchpotch is a well-recognized incidence of the joint Hindu families."
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 29/41
30. The Hon'ble Supreme Court of India in Bhagwan Dayal through his L.Rs vs. Mst. Reoti Devi through her L.Rs (Supra) has held that the general principle is that every Hindu family is presumed to be joint unless the contrary is proved but this presumption is rebutted by direct evidence or by cost of conduct. It is also settled that there is no presumption when one member separates from the others that the latter remains united; whether the latter remains united or not must be decided on the facts of each case.
31. The above discussed rulings are not to any help to the defendants No.1 & 2 because in the case in hand late Sh. Dev Dutt Sharma during his lifetime let out the suit property to various tenants in his individual capacity. He also let out some portion of the suit property to defendants no. 1 and 2 and issued rent receipts in his own name. Late Sh. Dev Dutt Sharma had also filed a suit for eviction against the tenant namely Canara Bank in his individual capacity. All these facts prove that Sh. Dev Dutt Sharma was using the said suit property as its owner and not as its Karta of HUF. The defendant no. 1 and 2 claimed that late Sh. Dev Dutt Sharma abandoned his right in the suit property by making a declaration on affidavit dated 23.05.1966 and submitted it with the Income Tax Department and the same was accepted as HUF property for the assessment year 1972-1973 and it continued till 1988-1990. These are Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 30/41 mere bald averments made by defendant no. 1 and 2 as they failed to prove any income tax or sale tax documents to establish that late Sh. Dev Dutt Sharma treated the suit property as HUF before the said authorities. The burden to prove that the suit property is HUF was upon the defendant no. 1 and 2 but they failed to discharge the burden. It is well settled law that civil cases are decided on the basis of preponderance of probability. Comparing the evidence of plaintiff and the evidence of defendants, it is clear that the preponderance of probability lies in favour of the plaintiff. The plaintiff has succeeded to prove that the suit property is self- acquired property of Sh. Dev Dutt Sharma and not HUF as claimed by the defendants. Hence, this issue is decided in favour of the plaintiff and against the defendants.
Issue no. 3:
Whether the property was settled by way of oral partition dated 21st July, 2001 and whether the same was acted upon by the parties? OPP
32. The burden to prove this issue was upon the plaintiff. The plaintiff claimed that defendant no. 1 and 2 denied the plaintiff to her legal right of ¼ share in the suit property but when they realized that she had ¼ share in the suit property, tried to pursue her to not ask for immediate partition. Plaintiff further stated that on 21.07.2001, defendant no. 1 and 2 held a meeting with her and orally decided that the suit property would be Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 31/41 divided by meets and bounds and the entire Barsati floor with roof rights would be given to her. However, later on defendant no. 1 and 2 did not give her share to her. The plaintiff has failed to establish that any partition took place on 21.07.2001 as claimed by her. There is no witness of such an oral partition. The question arises, if the oral partition took place between plaintiff and defendants then why did she filed the present suit for partition seeking her ¼ share in the suit property. The plaintiff has failed to discharge the burden to prove this issue. Accordingly, this issue is decided in favour of the plaintiff and against the defendants. Issue No. 4:
Whether the suit is maintainable in view of Section 23 of the Hindu Succession Act? OPP
33. As per the findings on issue no. 2, it is established that the suit property is a self-acquired property of the father of plaintiff and defendant No. 1 and 2 and not HUF property as claimed by the defendant No. 1 and 2. Section 8 of Hindu Succession Act 1956 provides as under:
The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 32/41 Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
34. In the case in hand, late Sh. Dev Dutt Sharma died intestate, therefore, being a Hindu, his property shall devolve as per clause (a) of Section 8 of Hindu Succession Act. Clause (a) deals with the heirs classifies in Schedule 1 of the Hindu Succession Act, and the same is as under:-
Schedule:
Class 1.
Son, daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-
deceased son of a pre-dece4ased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.
35. As per Section 8 (a) of Hindu Succession Act read with Schedule - Class 1, when a Hindu dies intestate, his property shall devolve upon his legal heirs, as per succession. The daughter of a Hindu dies intestate, comes in the category of Class 1 of the Schedule of the Act. However, Section 23 of Hindu Succession Act puts an embargo on the right of a Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 33/41 daughter to seek partition of the dwelling-house.
36. Section 23 of the Hindu Succession Act 1956, provides as under:
23- Special provision respecting dwelling -houses- Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.
37. The beginning of Section 23 of the said Act makes it clear that it is a special provision regarding dwelling-house of a Hindu family. A bare reading of section 23 of the Hindu Succession Act 1956, makes it clear that where a Hindu died intestate and left behind his/her male and female heirs then in such a situation, the female heir cannot seek partition of the dwelling-house of the family. Only the male heirs can seek partition in which female heir will also get her share but she herself is not entitled to file a suit for partition of the dwelling-house. Only an unmarried daughter, a widow daughter or a daughter deserted by her husband can have right of residence in the dwelling-house. Even the married daughter Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 34/41 living with her husband has no right of residence in the dwelling-house. In such a scenario, Section 8 of the Hindu Succession Act shall not be applicable.
38. It is not in dispute that the suit property was got constructed by the father of the plaintiff and defendants No.1 & 2 and the entire family including defendant No.3 (mother) and third son Dr. Shailender Sharma were residing in the suit property. It is also not in dispute that presently the suit property is in possession of the defendants No.1 & 2 and they are living in the suit property. Ld. Counsel for the plaintiff submitted that defendants No.1 & 2 are living separately and they have separate kitchens and they have divided their share in the suit property, therefore, the plaintiff is entitled to seek her share in the suit property. I do not find any merit in the submissions of the Ld. Counsel for the plaintiff as both the defendants are residing in the suit property and just by having separate kitchens, it does not mean that they have divided the suit property between themselves. Thus, the suit property is a dwelling-house as per Section 23 of the Hindu Succession Act.
39. Ld. Counsel for the plaintiff further submitted that even otherwise after the amendment of Hindu Succession Act in 2005, Section 23 of the old Act has been repealed, therefore, it cannot be applicable in 2016. Ld. Counsel further submitted that amended Hindu Succession Act came into Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 35/41 force on 09.09.2005 and it was amended to place the Hindu females at parity with the Hindu males regarding the property of their father or ancestral property. Ld. Counsel further submitted that the amended Hindu Succession Act, 2005 is having retrospective effect, therefore, Section 23 will not be considered. On the other hand, Ld. Counsel for the defendants submitted that Section 23 of the Act is applicable to the facts of the present case and it does not apply retrospectively but prospectively.
40. The question whether Hindu Succession (Amendment) Act, 2005 will have retrospective effect or prospective effect came before the Hon'ble Supreme Court in 'Prakash & Ors. vs. Phoolwati & Ors' (Supra). After discussing Section 6 of the Hindu Succession Act and Section 6 of the Hindu Succession (Amendment) Act, 2005 in detail, the Hon'ble Supreme Court held as under:
"17. The text of the amendment itself clearly provides that the right conferred on a 'daughter of a coparcener' is 'on and from the commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 36/41 Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.
18. Contention of the respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20 th December, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20 th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under the Explanation.
19. Interpretation of a provision depends on the text and the context. Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 37/41 has to be given.
20. There have been number of occasions when a proviso or an explanation came up for interpretation. Depending on the text, context and the purpose, different rules of interpretation have been applied.
21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters. Object of interpretation is to discover the intention of legislature.
22. In this background, we find that the proviso to Section 6(1) and sub- section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20 th December, 2004. In no case Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 38/41 statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."
41. The ruling 'Prakash & Ors. vs. Phoolwati & Ors' (Supra) is squarely applicable to the facts of the present case. The instant suit was filed in the year 2002 when Section 23 of Hindu Succession Act, 1956 was in force. The Hindu Succession (Amendment) Act, 2005 came into force on 09.09.2005 and as held by the Hon'ble Supreme Court in above discussed ruling has prospective effect and not retrospective. A female Hindu can file a suit for partition of dwelling house after the implementation of Hindu Succession (Amendment) Act, 2005. Thus, it is clear that the plaintiff being female heir of late Sh. D.D. Sharma is not entitled to seek partition of the dwelling house as she is barred by the provisions of Section 23 of Hindu Succession Act, 1956. The rulings 'Commissioner of Wealth Tax, Kanpur etc Vs. Chandrasen (Supra)' ; Yudhishter vs. Ashok Kumar (Supra); Mrs. Premwati & Ors. vs. Mrs. Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 39/41 Bhagwati Devi & Ors (Supra); Sathyaprema Manjunatha Gowda vs. Controller of Estate Duty, Karnataka (Supra) and Neelam & Anr. vs. Sadaram & Ors. (Supra) relied upon by Ld. Counsel for the plaintiff are not applicable to the facts of the present case as in the said rulings, basically it has been held that after the death of Karta of a joint Hindu family, the surviving coparceners receive the property in their individual capacity and not as Karta of his own undivided family. The said rulings are not dealing with Section 23 of Hindu Succession Act. Hence, this issue is decided in favour of the defendants and against the plaintiff. Issue No. 5 To what shares are the parties entitled to?
42. As per my findings on issue No.4, it has been established that the plaintiff is not entitled to seek partition of the suit property which is a dwelling house. Therefore, the plaintiff herself cannot seek partition of the suit property. Hence, this issue is decided in favour of the defendants and against the plaintiff.
Issue No. 6.
Relief.
43. In view of my findings on issue No. 4, the suit is barred by Section 23 of Hindu Succession Act, 1956, therefore, the plaintiff cannot seek Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 40/41 partition of the suit property i.e a dwelling house. Hence, the suit of the plaintiff is dismissed.
44. No order as to cost.
45. File be consigned to the Record Room.
Announced in the open court. (PRITAM SINGH)
Dated:24.11.2016 ADJ-04 (South)
Saket Courts/New Delhi
Civil Suit No. 8078/16 Vineeta Sharma vs. Rakesh Sharma & Ors. 41/41