Delhi District Court
Ritu Singh & Anr. vs . Sanjiv K. Singh & Ors. on 26 May, 2012
Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
IN THE COURT OF SH.AJAY KUMAR KUHAR
ADJ-01 CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
Suit No. 387/03 (old No. 2607/94)
IN THE MATTER :
1. Miss Ritu Singh
D/o late Sardar Kavaljit Singh,
104, Malcha Marg,
Chanakya Puri,
New Delhi-110021
2. Mrs. Rashmi A. Jolly
W/o Mr. Arvind K. Jolly
Residing at ROW House No. 7,
Grand Paradi Apartment,
August Kranti Marg,
Mumbai-400036
.... Plaintiffs.
Versus
1. Mr. Sanjiv K. Singh.
104, Malcha Marg,
Chanakya Puri,
New Delhi-110021
2. Dr. Stephen J. Atwood
(Deleted from array of parties)
3. Mrs. Surjit K. Singh.
104, Malcha Marg,
Chanakya Puri,
New Delhi-110021
4. Mrs. Natasha Robinson
Suit No. 387/03 Page No. 1
Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
W/o Edmund Harold Robinson-III
4901 E FIG AVE
MANTEA
CA95337
... Defendants.
Date of Institution: 12.11.1994
Date of arguments: 10.05.2012
Date of decision: 26.05.2012
JUDGMENT
This is a suit for partition, declaration and rendition of account and mesne profits against the defendants. The plaintiff No.1 and 2 namely Ms. Ritu Singh and Ms. Rashmi A Jolly are the daughters of late Sardar Kavaljit Singh and have filed the present suit against the defendants. Defendant No.1 is the son of late Sardar Kavaljit Singh, defendant No. 2 Dr. Stephen J. Atwood, was the occupant of a portion of the suit premises (who was lateron deleted from the array of defendants as per order dated 03.12.2008). Defendant No. 3 Smt Surjeet K. Singh is the widow of late Sardar Kavaljit Singh (initially defendant No. 3 was plaintiff No. 4 who was lateron transposed as defendant No.3). Defendant No. 4 is Ms. Natasha Robinson, daughter of late Sardar Kavaljit Singh (initially defendant No. 4 Ms. Natasha Robinson was the plaintiff No.3 in the suit who lateron transposed as defendant in the case).
2. Late Sardar Kavaljit Singh was the owner of property No. 104, Malcha Marg, (hence forth referred as suit premise) Suit No. 387/03 Page No. 2 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
formally bearing No. 140/48 Diplomatic Enclave, New Delhi. The plot was given to him by the President of India vide the Perpetual Lease Deed dated 04.04.1963. Late Sardar Kavaljit Singh had built a house on this plot. He died interstate in October 1971 leaving behind his legal heirs i.e three daughters, one son and a widow. The suit premises was let out from time to time.
3. The last tenant in the suit property was M/s Care India. This tenancy was created by indenture of the lease dated 20.11.1991 for a period of two years commencing from 15.12.2011 at the monthly rent of Rs 15,000/-. The said lease was entered into between M/s Care India through its Director and defendant No.1 who purportedly represented himself and acted as the Karta of Hindu undivided family. It was agreed between the plaintiffs and defendant No.1 that the amount of rent received per month by defendant No.1 would be shared by all the members of the family, however, the defendant No.1 paid the said share to other members of the family only till April 1994.
4. Since the differences had arisen amongst the family members, they decided to formally partition the suit property and plaintiffs suggested that the suit property may be partitioned by metes and bound. Defendant, however, Suit No. 387/03 Page No. 3 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
suggested that having taken a legal advice in this regard, he found that this property cannot be partitioned under the law and he further suggested that there should be a "written family agreement" amongst the members of the family as regard their respective shares under the law. The plaintiffs not knowing their status in law agreed to the shares as suggested by defendant No.1 believing that he was acting bonafide and in interest of all the members in the family. Consequently, the deed of family arrangement was prepared which was signed by all the members of the family. As per the said family settlement the members were given the following share:-
(i) Mrs Surjit K. Singh (widow) - 30%
(ii) Mr. Sanjiv K. Singh (son) - 40%
(iii) Miss Rashmi K. Singh
(now Rashmi A. Jolly)
(daughter) - 6.66 %
(iv) Ms. Ritu K. Singh (daughter) - 13.34%
(v) Miss Natasha K. Singh
(now Mrs. Natasha Ed. Robinson)
(daughter) - 10%
5. It was provided in the said family deed of settlement that defendant No.1 would make sincere efforts to sell and dispose of of the suit premises after obtaining the consent of the Suit No. 387/03 Page No. 4 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
plaintiff and divide the proceeds as per the said deed of family arrangement. In the present suit the plaintiffs claimed that the said deed of family arrangement is non-est and void ab-initio as the same was executed by the plaintiffs under "undue influence" of the defendant No.1. The plaintiffs submitted that they were misrepresented that the immovable property comprising of the suit premises was not capable of being physically partitioned under the law. They were also misrepresented that the shares as mentioned in the deed were in accordance with law and each member was entitled only to the shares mentioned in the deed of family arrangement. The plaintiffs were also made to understand that the suit property was in the name of an HUF.
6. The plaintiffs further submitted that the defendant No.1 represented to the plaintiffs that the lease with M/s Care India would expire in December 1993 and it would not be renewed. He also assured that he would look for a proper buyer for the suit property and then dispose of the suit property. However, in December 1993 the defendant No.1 informed the plaintiffs that the lease with M/s Care India have been terminated but on the request of the later he had permitted them to use the premises till 31st March 1994. In April 1994 defendant No.1 informed the plaintiffs that M/s Care India vacated the said property and he is carrying out the necessary renovation and Suit No. 387/03 Page No. 5 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
improvements in the suit property and thereafter, he stopped paying any amount to the plaintiffs w.e.f 01.04.1994.
7. The defendant No.3 (originally plaintiff No.4), who was residing temporarily in Delhi Gymkhana Club, New Delhi, expressed her desire to shift to the suit premises believing that M/s Care India had vacated the property but when in July 1994 the defendant No.3 (originally plaintiff No.4) went to the suit premises with plaintiff No.1 they came to know that it was in occupation of a tenant under a lease of agreement with defendant No.1. The plaintiffs submitted that the defendant No.1 had no intention of selling the suit property for the purpose of partition and he misled the plaintiff into entering into the said deed of agreement which provide that the suit property would be sold but inspite of that defendant No.1 let out the suit property on a fresh lease agreement. It was lateron found that Dr. Stephen J. Atwood (defendant No.2 who was lateron deleted from the array of parties) was in possession of the suit property. The plaintiffs sent a letter through their Advocate on 09.08.1994 to the defendant No.1 and also a letter to Dr. Stephen J. Atwood (defendant No.2) informing him about his unlawful and unauthorized occupation of the suit property. Defendant No.1 also sent a letter to the plaintiffs through his Advocate alleging that the plaintiffs were not cooperating in disposing of the suit property.
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8. In the background of these facts the plaintiff filed the present suit for partition of the suit property by metes and bound or in the alternative for selling the suit property and distribution of proceeds thereof accordingly as per their respective shares. The plaintiffs also sought a declaration that the deed of family arrangement dated 02.08.1993 is void ab- initio and non-est . The plaintiffs also sought a decree for rendition of account of money which is realized by defendant No.1 on account of rent and occupational charges from the defendant No.2. The plaintiffs also sought a decree for direction to the defendant No.1 to make the payment of the same which is found due to the plaintiffs in respect of their share in rents and the occupational charges received by him and also for direction to defendant No.2 to pay the mesne profits for wrongful occupation.
9. Now during the pendency of this suit the defendant No.2 vacated the house and he was deleted from the array of parties. Originally plaintiff No.4 Smt Surjit K. Singh transposed as defendant No. 3 and at a later stage the plaintiff No. 3 Ms. Natasha K. Singh also transposed as defendant No.4 in the present case.
10. The written statement was filed by defendant No.1 to the Suit No. 387/03 Page No. 7 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
original plaint and he took the preliminary objection with regard to the maintainability of the suit and on merits it was submitted that the defendant No.2 was a lawful tenant in the suit property. It was further submitted that the defendant No.1 was the Karta of the HUF Sardar Kavaljit Singh and sons (HUF). The defendant further avered that on the demise of late Sardar Kavaljit Singh the notional partition between the coparceners of the HUF took place and the coparceners at that time consisted of Sardar Kavaljit Singh and defendant No.1 himself. The defendant No.3 (originally plaintiff No.4) being mother of defendant No.1 was also entitled to share of notional partition. He further submitted that the defendant No. 2 was a lawful tenant and that defendant No.1 has paid and is continuing to pay the money as per the request and requirement of the coparceners of the HUF. He further submitted that the family settlement had taken place with the agreement of all the parties concerned. He further submitted that on the demise of Sardar Kavaljit Singh the notional partition took place as per which the share of defendant No.1 and 3 (originally plaintiff No.4) was 1/3rd each with Sardar Kavaljit Singh. After the demise of Sardar Kavaljit Singh his 1/3rd share is to be divided /inherited by all the legal heirs which include the plaintiff as well. It was specifically denied that the family arrangement/settlement was non-est and void ab-initio. The other averments made in the plaint have also Suit No. 387/03 Page No. 8 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
been denied by defendant No.1.
11. On the basis of these averments in the pleadings of the original plaintiffs in the suit and the defendant No.1 , following issues were framed on 03.12.2001:-
1. Whether the deed of family arrangement dated 3rd August, 1993 is non-est and void ab-
initio for the reasons alleged in paras 5, 6 and 13 of the plaint. If so, its effect?
2. To what shares, if any, parties to the suit are entitled in the suit property.
3. Whether the suit property is capable of being physically partitioned by metes and bounds? OPP
4. Whether the plaintiff is entitled to rendition of account in respect of their shares in the rents/occupational charges received by the defendant No.1 from the suit property?
5. Whether the suit as framed is maintainable? OPP
6. Relief.
12. Issue No.5 "Whether the suit as framed is maintainable? OPP" was treated as a preliminary issue. After hearing the arguments on this issue my Ld. Predecessor decided this issue Suit No. 387/03 Page No. 9 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
against the plaintiff in view of section 23 of the Hindu Succession Act. Accordingly, the suit was dismissed on 29.11.2004. This judgment of 29.11.2004 was challenged in the Hon'ble High Court in RFA No. 8/05. This Appeal was allowed by the Hon'ble High Court on 09.07.2008 by giving the liberty to the plaintiffs to raise additional ground based upon the repeal of section 23 of the Hindu Succession Act by the Hindu Succession (Amendment) Act 2005. It is pertinent to note that while the suit was decided by this court on the basis of the preliminary issue, section 23 of the Hindu Succession Act was on the statute book which has been omitted by the Act No. 39 of 2005 w.e.f 09.07.2005. After the case was remanded back to this court for trial in accordance with law further change occurred. The plaintiff No. 3 Ms. Natasha A Robinson moved an application under Order 1 Rule 10 CPC seeking her transposition as defendant. This application was allowed. This further led to the amendment of the plaint by the plaintiffs and the amended plaint was filed. The defendant No.1 and defendant No. 3 (originally plaintiff No. 4) and defendant No.4 (originally plaintiff No.3) also filed the amended written statement but there is no material change in the substance of the pleadings except that in the plaint the prayer clause was modified. After the amendment the following changes came up in clause (a) in the prayer clause which after the amendment read as follows:-
Suit No. 387/03 Page No. 10Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
"Order partition of the suit premises bearing No 140/48 Diplomatic Enclave, New Delhi also known as 104 Malcha Marg, New Delhi by meets and bound in in five equal shares and according to the legal position that avails after the passage of the Hindu Succession Amendment Act 2005."
After the amendment so made the court again considered the framing of additional issues and vide order dated 02.09.2009 re-framed issue No.5 as under:-
"Whether the suit as framed is not maintainable? OPD"
The rest of the issues were not touched by the said order except that burden to prove issue No.1 and 2 put on plaintiff.
13. The parties to the suit led the evidence. The plaintiff examined herself as PW1. Plaintiff No. 2 Rashmi A Jolly examined herself as PW2.
14. Defendant examined himself as DW1. Although the affidavit of Ms. Natasha Robinson (defendant No.4) was also filed but she did not appear as a witness in the case.
15. I have heard the arguments from the Ld. Counsel for the parties also perused the written submissions filed by them and Suit No. 387/03 Page No. 11 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
the law cited.
16. The dispute between both the parties is focused on two primary issues, first the nature of the suit property E-104 Malcha Marg and secondly the legality and enforceability of the family settlement dated 02.08.1993. As per the case of the plaintiffs suit property is the self acquired property of late Sardar Kavaljit Singh while the case of the defendant No.1 is that it is an HUF property. The case of the plaintiff is that the deed of family arrangement dated 02.08.1993 was non-est and void ab-initio because it was executed by the plaintiffs on the projection by the defendant No.1 that it is a HUF property and, therefore, this agreement was signed under this impression, without knowing, that this was a self acquired property of late Sardar Kavaljit Singh. On the other hand, the case of the defendant is that the family arrangement/agreement dated 02.08.1993 was entered into by all the parties knowing fully well that it was an HUF property and infact the property was HUF property, so there was no question of any misrepresentation and the family settlement was a voluntary contract amongst the members of the family.
17. On the basis of the evidence led by the parties and the documents submitted on the record my findings on the issues are as under.
Suit No. 387/03 Page No. 12Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
18. On the basis of this dispute of facts and law the issue No. 1 and 2 were framed. Issue No.1 is with regard to the family settlement and Issue No.2 is with regard to the share of the parties in the suit property. Since both these issues involve common question of law and facts, therefore, I intend to deal with both these issues together.
Issue No. 1. Whether the deed of family arrangement dated 3rd August, 1993 is non-est and void ab-initio for the reasons alleged in paras 5, 6 and 13 of the plaint. If so, its effect?
Issue No. 2. To what shares, if any, parties to the suit are entitled in the suit property.
19. The burden to prove the issues was on the plaintiff. It is not in dispute that the parties are governed by the Hindu Succession Act, 1956 (hereinafter referred to as the Act). After the enactment of this Act there has been a sea change in the law of Succession among the Hindus. Needless to say that after the enactment of this Act the provisions of this Act has an over riding effect over any rule or interpretation, custom or usage pertaining to Hindu law. Section 4 of the Act has made it amply clear. It reads as under:-
Section 4: Over-riding effect of Act- (1) Save as otherwise expressly provided in this Act,-Suit No. 387/03 Page No. 13
Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.
20. Prior to the enactment of the Act, the mode of devolution of the property of a Hindu was by survivorship and by succession. The rule of survivorship applied to the joint family property, in other words, the coparcenery property and the rule of succession applied to property held in absolute severalty by the owner, under the Mitakshra School of law.
21 After the enactment of this Act in the year 1956, again two mode of devolution of property were recognized. But the law was now modified and the restrictive right was also given to a daughter in the coparcenery property. Section 6 of the Act as it was prior to the amendment in the Act in 2005 provided that the interest of a male Hindu in the coparcenery property shall devolve by survivorship upon the surviving members of the coparcenery and not in accordance with this Act. However, Suit No. 387/03 Page No. 14 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
a proviso was made as per which, if the deceased has left surviving him a female relative specified in class 1 in the schedule or a male relative in the same class claiming through such female relative, the interest of the deceased in the coparcenery property would devolve either by testamentary or intestate succession under this Act and not by survivorship. Thus, section 6 of the Act gave due recognition to the concept of coparcenery and coparcenery property under the Hindu law. The interest of the deceased coparcener as per the Explanation 1 to section 6 would be his share in the property which would have been allotted to him if the partition of the property has taken place, immediately before his death.
22. The effect of this provision was that if a Hindu male had left behind son or sons and widow then they would get the interest of the deceased coparcener by way of survivorship. However, if the deceased male Hindu left behind a daughter as well, then as per the Explanation 1 to section 6 the interest of the deceased coparcener would be ascertained by way of a "notional partition", immediately before his death. The interest of the male Hindu so ascertained will then be distributed among the legal heirs as per section 8 of the Act including daughter being a Class-I heir. Under the Act the daughters have got a limited interest i.e. only the share in the Suit No. 387/03 Page No. 15 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
share of the deceased male while the son would get his share in the coparcenery property as well as his share in the share of deceased male.
23. After the enactment of Hindu Succession (Amendment) Act, 2005 a drastic change had been made in the law of succession. After the Amendment Act of 2005 section 6 has been substituted altogether by giving daughters equal right as that of a son in the coparcenery property. As per section 6 as amended by Amendment Act of 2005 the daughter of a coparcenery become a coparcener by birth in her own right and she has the same right in the coparcenery property as that of a son. Meaning thereby, on the death of a Hindu male, his interest in the coparcenery property would devolve upon the coparceners which now includes daughter as well. When it is stated in section 6 as amended by the Act of 2005 that the daughter of a coparcener becomes a coparcener in her own right by birth, it means that even if a notional partition is take immediately before the death of a male Hindu coparcener, the daughter will get her share as a coparcener in the same manner as the son would get.
24. So as on this date, the law is that if the Hindu dies intestate his son and daughters will get equal share, notwithstanding the fact whether it is coparcenery property or Suit No. 387/03 Page No. 16 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
self acquired property.
25. Section 8 of the Act, 1956 provides a general rule of succession in the case of males. As per this, the property of a male Hindu dying intestate shall devolve according to the provisions of section 8, first of all upon the heirs specified in class 1 of the schedule. As per class 1 of the schedule, daughter is one of the heir of class 1 category.
26. Having considered the law prevailing which gives equal rights to son and daughter in the property of father, whether it is self acquired or ancestral/coparcenery, I come to the question whether the suit property i.e 104 Malcha Marg, New Delhi was the ancestral property or the self acquired property in the hands of late Sardar Kavaljit Singh, the predecessor in the interest of plaintiffs and the defendants?
27. Although, this distinction of the property being ancestral/coparcenery/HUF or self acquired has lost its value after the amendments in the Act of 1956 by the Hindu Succession (Amendment) Act, 2005, still it is necessary to deal with this issue because it has a nexus with the another issue framed in the case regarding the family settlement dated 02.08.1993.
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28. The case of the plaintiff is that this is a self acquired property of late Sardar Kavaljit Singh. It was submitted on behalf of the plaintiff that despite the claim by defendant No.1 that it is a HUF property no document to that effect has been proved on the record, except the Income-tax record particularly the Income-tax assessment order dated 29.11.1962 Ex. DW1/9 and other documents from Ex. DW1/10 to Ex. DW1/13 which are the Income-tax notices received by Kavaljit Singh & sons (HUF) and the documents Ex. DW1/19 to Ex. DW1/57 which are Income-tax returns, challans, acknowledgments, etc pertaining to Kavaljit Singh & sons HUF pertaining upto the year 1992-93.
29. The Ld. Counsel for the plaintiff argued that defendant appeared in the witness box as DW1 and he has admitted that there is no separate bank account in the name of HUF. DW1 had stated that the HUF had a PAN number but this PAN card of the HUF has never been filed in the court.
30. The Ld. Counsel for the plaintiff submitted that Sardar Kavaljit Singh never constituted an HUF. Ld. Counsel refers to the Perpetual Lease Deed of the suit property dated 04.04.1963 Ex. PW1/1 which shows that this property was not in the name of Kavaljit Singh & sons HUF but in the individual name of Sardar Kavaljit Singh. He further submitted that the Suit No. 387/03 Page No. 18 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
mutation record of the property in the L & DO establish that the property has been mutated in the name of all the legal heirs of late Sardar Kavaljit Singh jointly. He refers to the application for the mutation Ex. PW1/3 which is sent by defendant No.1 Sanjiv K. Singh in which there are specific averments for mutation of the property in the joint names of the legal heirs of late Sardar Kavaljit Singh. Herein he also point out that in this Ex. PW1/3 the applicant Sajiv K. Singh has mentioned about the deed of family arrangement but does not say that by virtue of the family arrangement the property has been partitioned. It means that this family arrangement was only for the purpose of authorizing Sanjiv K. Singh to manage the affairs of the property.
31. As regard the Income-tax record, it was submitted that simply because of the property being shown as HUF it does not partake the character of the ancestral or coparcenery property.
32. On the other hand, Ld Counsel for the defendant has vehemently argued that the plaintiff understand and knew that the suit property is an HUF property. He refers to the statement of PW1 Ritu Singh, where she admitted this fact. In her cross examination she stated that :-
"I am certain that Kavaljit Singh & sons was an HUF of my father late Kavaljit Singh. Before the family Suit No. 387/03 Page No. 19 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
settlement was signed Mr. Sanjiv K. Singh had shown me the document relating to Income-tax assessment of Kavaljit Singh & sons which is Ex. PW1/D1."
She further deposed that :-
"I did consult Mehta and Girdhari lal Advocates and Solicitors but that was at a much later stage. It is correct that notice dated 09.08.1994 was addressed by Mehta and Girdhari Lal, Advocates on my behalf and on behalf of my sisters and mother."
33. Ld. Counsel submitted that PW1 has, thus, admitted the existence of the HUF, the correctness of the Income-tax assessment order, correctness of the notices sent through Mehta and Girdhari Lal Advocates. He further submitted that the assessment order establish the fact that the suit property was HUF. Even the plaintiff No.1 in her notice through the Mehta and Girdhari Lal Advocates Ex. PW1/D3 refers to the suit property as the HUF property. Apart from this, he argued that PW2 also admit that the money which was received by Sardar Kavaljit Singh through the sale of property at Mahaldar Khan Bagh was utilized for the purchase of the suit property. He further submitted that this witness has admitted that her father had appeared before the Income-Tax Officer in relation to the assessment of the HUF and had made the statement that he was the Karta of the HUF and he and his brothers sold Suit No. 387/03 Page No. 20 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
the Mahaldar Garden from where he received a sum of Rs 1,06,932/- as his share of the proceeds of the sale and with the said amount he purchased plot No. 140/48, Diplomatic Enclave, New Delhi.
34. The case of defendant No.1 is that the suit property was purchased out of the sale proceeds of the ancestral property of late Sardar Kavaljit Singh. It is the case of the defendant that Sardar Jaidev Singh was the father of late Sardar Kavaljit Singh and was the owner of the land measuring 1,04,741 sq yards in Mahaldar Khan Bagh in Sudhara Kalan Estate, Delhi. This property of late Sardar Jaidev Singh was inherited by Sardar Kavaljit Singh along with his three brothers namely Sardar Joravar Singh, Sardar Harkrishan Singh and Sardar Amarjeet Singh. All these four legal heirs of late Sardar Jaidev Singh entered into an agreement on 11.08.1950 Ex. DW1/1 with Delhi Land and Finance Ltd. with regard to the property at Mahaldar Khan Bagh inherited by them. The case of defendant No.1 is that out of the sale proceeds of this property at Mahaldar Khan Bagh, late Sardar Kavaljit Singh has got a sum of Rs 1,06,932/- as his share in the ancestral property.
35. On the basis of this fact that Sardar Kavaljit Singh bought the suit property out of the sale proceeds of the ancestral property, which came to his share, it was claimed Suit No. 387/03 Page No. 21 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
that the suit property was HUF property.
36. I have the considered the rival submissions on this issue and I revert back to the provisions of Hindu Succession Act, 1956 and Hindu Succession (Amendment) Act, 2005.
37. The question is whether by getting respective share in the ancestral property by way of the sale proceeds of the property at Mahaldar Khan Bagh, the sons of late Sardar Jaidev Singh had affected a partition?
38. A Hindu joint family has a community of interest and unity of possession in the joint family property. The moment there is a severance of joint status, the partition is said to take place. To constitute partition what is required is an unequivocal indication of the members of the family to separate from the joint family and enjoy their share in severalty. The essence of the partition is the severance of the joint status. Once a member of the joint family gets his share from the ancestral property, the partition is thereby affected and this share got by a member of the family becomes his separate property qua the joint family members. The question now arise what will be the status of this property of the male Hindu qua his own son and grandsons?
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39. This question get an answer from the section 8 of the Hindu Succession Act. In the case of Yudhishtar Vs. Ashok Kumar AIR 1987 SC 558 it was held that property which devolve on a Hindu under section 8 would not be an HUF property in his hand vis-a-vis his own son. In the case of Manoj Kapoor Vs. Shri Om Prakash Kapoor CS (OS) No. 230/2007 decided on 25.07.2007 (Delhi High Court) a reference was made to the judgment in Dr. Prem Bhatnagar Vs. Sh Ravi Mohan Bhatnagar 2006 IV AD (Delhi) 125 wherein after considering the judgment of Commissioner of Wealth Tax Vs. Chander Seh and Yudhisthar Vs. Ashok Kumar it was observed as under:-
"a reading of the aforesaid two judgments leaves no manner of doubt that the property inherited by a son from his father does not partake the character of an ancestral property nor does he hold it as a Karta of his own undivided family. Such a property would be a self acquired property."
40. It is the admitted case of the plaintiffs as well as the defendant that Sardar Kavaljit Singh got his share in the ancestral property of his father along with his three other brothers, all the four brothers of Sardar Kavaljit Singh got their respective share in the sale proceeds of the property of Mahaldar Khan Bagh. Thus, the moment all the four brothers Suit No. 387/03 Page No. 23 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
got their respective shares in the said property which was ancestral, it became their separate property, not only qua each other but also qua their son or grandsons. Therefore, when Sardar Kavaljit Singh purchased this suit property of 140/48 Diplomatic Enclave, presently 104 Malcha Marg, New Delhi from his share, he purchased this property from his separate property. The joint status had come to an end when Sardar Kavaljit Singh got his share along with his three other brothers.
41. The Perpetual Lease Deed Ex. PW1/1 is only in the name of Sardar Kavaljit Singh. The mutation of the suit property has been done in name of all the legal heirs of Sardar Kavaljit Singh jointly. Sardar Kavaljit Singh purchased this property after he received his share in the ancestral property. Therefore, the suit property cannot partake the character of the coparcenery property and it will be considered as a self acquired property of Sardar Kavaljit Singh.
42. Ld. Counsel for the defendant No.1 had submitted that the mutation of the property does not confer any right. He relied upon the judgment in the case of Savrani Vs. Inderpal (1996) 6 SC Cases 223 wherein it was held that mutation of name in revenue records does not create or extinguish title nor it has any presumptive value on title. He also relied upon Suit No. 387/03 Page No. 24 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
judgment in Rajender Singh Vs. State of Jammu & Kashmir 2008 (10) SCALE 60 on the same issue. I have gone through the judgments relied upon. The court does not dispute the proposition that mutation in the revenue record does not create title but it has some evidentary value which may not be so high as to offer a presumption as to title. Nevertheless the mutation record in the present case show the state of mind with which the defendant No.1 proceeded for the mutation of the property. His application for mutation Ex. PW1/3 clearly states that he had not projected to the L & DO that the property was in the name of Sardar Kavaljit Singh & Sons HUF rather he claimed therein for mutation in the name of all the legal heirs of Sardar Kavaljit Singh jointly.
43. Ld. Counsel for the defendant No.1 has vehemently argued that the Income-tax record Ex. DW1/9 to Ex. DW1/57 refers to the suit property as an HUF property and the plaintiffs had not cross examined DW1 on this issue that the property is HUF property. He argued that once these documents are accepted to be correct than there is no escape from conclusion that it was an HUF property. This record of Income-tax coupled with admission by plaintiff No.1 that it was an HUF and the admission by plaintiff No.2 that it was purchased out of the sale proceeds of the ancestral property of late Sardar Kavaljit Singh clearly establish the nature of property as an HUF Suit No. 387/03 Page No. 25 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
property. He refers to the Income-tax assessment order 29.11.1962 Ex. DW1/9. This order also establish that the plot No. 140/48, Diplomatic Enclave, New Delhi and the house thereon was constructed with the ancestral capital.
44. The argument of the Ld. Counsel for the defendant No.1 on this point is impressive but I would have respectable disagreement with the view of the Ld. Counsel for the defendant No.1. The term HUF as used in section 2 (31) of the Income-tax Act 1961 treat HUF as an entity distinct and different from an individual. In a broader sense the concept of HUF may be considered and compared with the expression "Hindu Joint family". The term Hindu Joint family as used in the Hindu law is broader than the concept of coparcenery/ancestral property. So, HUF property cannot be equated with ancestral/coparcenery property. The coparceners are the lineal descendants male (now after Hindu Succession (Amendment) Act 2005, female also) acquiring ownership in the ancestral property by birth and they can ask for partition of the ancestral property at any moment of time and till such partition take place they enjoy unity of possession and community of interest in the ancestral property/coparcener. Thus, coparcenery under the Hindu law governed by Mitakshra School is a creature of law and it cannot arise by act of parties. In the present case when Sardar Kavaljit Singh got his share of Suit No. 387/03 Page No. 26 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
ancestral property by way of the sale proceeds of the same, his joint status with his brothers in the joint family came to an end. What Sardar Kavaljit Singh got was his separate property. After the enactment of the Hindu Succession Act, 1956 the son of Sardar Kavaljit Singh did not get a right by birth in his property. Therefore, when the joint status of the family had come to an end, he could not have created a coparcenery. It is true that Sardar Kavaljit Singh formed a joint family with his son, wife and daughters but after a severance of his joint status with his brothers whatever he got from his ancestral property became a separate property and, therefore, his son would not claim a right in the said property by birth. As a necessary consequence the property so purchased by Sardar Kavaljit Singh cannot be considered as a coparcenery or ancestral property.
45. Now comes the question of shares of the parties. The issue is to what share the parties to the suit are entitled in the suit property?
46. As I have already observed that after the amendment in the Hindu Succession Act vide the Hindu Succession (Amendment) Act, 2005 the distinction between a coparcenery property and a self acquired property has been obviated. Even in a coparcenery property a daughter would have equal right Suit No. 387/03 Page No. 27 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
with the son of the deceased male Hindu and this right a daughter would have from the birth. The amended section 6 of the Act after the Amendment, 2005 has put a daughter on the same pedestal as the son of a deceased male Hindu. The new section 6, therefore, provides for parity of rights even in the coparcenery property among male and female member of a joint family on and from commencement of Hindu Succession (Amendment) Act, 2005 and the Legislature has now conferred equal rights in favour of daughters. As as has been observed in a recent judgment by the Hon'ble Supreme Court in Ganduri Koteshwaramma & others Vs. Chakiri Yanadi and others (2011) 9 SCC 788, the declaration in section 6, that the daughter of the coparcener shall have same rights and liabilities in the coparcenery property as she would have been a son, is unambiguous and unequivocal. A right accrued to a daughter in the property of joint Hindu family by virtue of 2005 Amendment Act, is absolute except in circumstances provided in the proviso appended to sub section (1) of the new section
6. The excepted categories to which new section 6 of 1956 Act, is not applicable are two, namely, (i) where the disposition or alienation including any partition of property has taken place before 20th December 2004 and (ii) where testamentary disposition of property has been made before 20th December 2004. It may be pertinent to note here that in this case a preliminary decree of partition was passed in the year 1999 Suit No. 387/03 Page No. 28 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
and modified in 2003 but before the final decree could be passed, Amendment Act, 2005 was passed. The Hon'ble Supreme Court held that the daughters would be entitled for equal share with the son in the coparcenery property by virtue of new section 6 of the Hindu Succession Act 1956.
47. The submission of the Ld. Counsel for the defendant No.1 is that if the family settlement is not accepted and the property being ancestral/coparcenery property, than by virtue of section 6 of the Act, the defendant No.1 and defendant No. 3 being the son and widow of late Sardar Kavaljit Singh would be entitled to 1/3rd share each in the suit property on the basis of the "notional partition" at the time of death of Sardar Kavaljit Singh in 1971 and after his death his 1/3rd share would be divided among his three daughters i.e. plaintiff No.1 and 2, defendant No. 4 alongwith the son (defendant No.1) and widow (defendant No. 3) equally. Meaning thereby, all the parties to the suit would get 1/5th share in the 1/3rd share of deceased Sardar Kavaljit Singh in the suit property. The defendant No.1 and defendant No.3 would get, first; 1/3rd share on the basis of notional partition and than 1/5th share in the 1/3rd share of late Sardar Kavaljit Singh. It means that defendant No.1 and defendant No.3 will get 40% each and defendant No. 4 and plaintiff No.1 and 2 will jointly get 20% in the suit property. He relied on judgment in case of Gurupad K. Magdum Vs. Suit No. 387/03 Page No. 29 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
Hirabai K. Magdum AIR 1978 SC 1239 to support his argument.
48. However, this interpretation to section 6 of the Hindu Succession Act 1956 cannot be accepted in view of the amendment made in the year 2005 therein and the observation of the Hon'ble Supreme Court in the case of Ganduri Koteshwaramma & others Vs. Chakiri Yanadi and others (supra).
49. Now, since it has already been held that the property is the self acquired property of late Sardar Kavaljit Singh, his succession will take place as per section 8 of the Act. As per the schedule of the Hindu Succession Act, son, daughter and widow of a male Hindu dying intestate are his class 1 heir. As per section 9 of the Hindu Succession Act all the heirs in class 1 shall take simultaneously and to the exclusion of all other heirs. Thus, the plaintiffs and the defendants being the class 1 heirs of the deceased Sardar Kavaljit Singh take one share each simultaneously. Accordingly, all the plaintiffs and the defendants (defendant No.2 already deleted) get 1/5th share in the suit property.
DEED OF FAMILY SETTLEMENT
50. Now, I shall consider the deed of family settlement Ex.
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DW1/2 dated 02.08.1993.
51. The position of law is uncontroverted that courts give effects to the family settlement upon the broad and general ground that it settle the existing or future disputes regarding the property amongst member of family and it also ensure amity and goodwill in the family members. Because of this the courts lean heavily in favour of upholding a family arrangement.
52. The reading of deed of family arrangement Ex. DW1/2 would show that it refers to an oral settlement dated 16.02.1993. By virtue of which, it was agreed that the parties thereto shall have a specified share and as per this oral family settlement the parties agreed that the management of the subject property shall vest in Sanjiv K.Singh (defendant No.1), till the time the property is sold and finally disposed off. Now comes the significant clause of this agreement i.e clause 3 and clause 4 of the terms and conditions which read as under:-
"Clause 3-That all the parties undertake to make sincere efforts to sell & dispose off the subject property at the earliest and divide the proceeds according to this settlement; and Clause 4-That all the parties undertake to co-operate with each other in all matters relating to the mutation, Suit No. 387/03 Page No. 31 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
agreement to sell, registration of the sale and other sale related formalities of the subject property."
53. The bare reading of these two clause would show that it was a contingent contract. The parties had merely decided about the share but the property was not partitioned by metes and bound, therefore, this agreement Ex. DW1/2 was simply an arrangement for the management of the property and the partition had to take place at a later stage after disposing of the property and thereafter distributing the sale proceeds as per the share determined.
54. The Ld. Counsel for the plaintiffs had argued that this deed of family arrangement is non-est and void ab-initio. It was submitted that the plaintiffs was kept under the influence and the misrepresentation that the property was an HUF property and secondly, that it could not be physically divided and that the share being offered to the daughters was as per the law. It was submitted by the Ld. Counsel that the plaintiff No.1 came to understand, when the copy of the mutation certificate issued by L & DO on 14.06.1994 Ex. PW1/4 was received, that it was the self acquired property of the father. Even the Perpetual Lease Deed Ex. PW1/1 came to the notice of the plaintiffs which confirmed that it was the self acquired property of their father. So, the case of the plaintiffs is that defendant No.1 has misrepresented firstly; regarding the Suit No. 387/03 Page No. 32 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
status of the suit property and secondly; with regard to the right of daughter in the property.
55. Ld. Counsel for the defendant No.1 vehemently argued that plaintiffs are well educated women. They live in metropolitan cities and have also availed legal advise from prominent Advocates namely Mehta and Girdhari Lal, Advocates & Solicitors. They sent a notice dated 09.08.1994 Ex. PW1/2 through Mehta and Girdhari Lal Advocates in which they referred the suit property as HUF property. Thus, when the plaintiffs are well educated persons and have been seeking suitable legal advise, it cannot be said that defendant No.1 could have misrepresent to them about the nature of the property. The Ld. Counsel further argued that when plaintiff No. 1 had come to know on 14.06.1994 that the suit property was self acquired property, than why in the legal notice dated 04.08.1994, given almost after two months, they still refer to suit property as HUF property.
56. The Ld. Counsel for the plaintiffs counter this argument by referring to the statement of PW1 in the cross examination where in reference to the notice dated 09.08.1994 she stated that they took the stand (by referring the property as HUF property) because they wished to end the matter if they were paid the dues from the property. The entire case of the Suit No. 387/03 Page No. 33 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
plaintiffs is based on this premise that when this deed of family arrangement was executed they were given the impression that it was a HUF property. Therefore, they agreed for the share which was given to them. The defendant No. 1 had shown the assessment order dated 29.11.1962 Ex. DW1/9 where the property was mentioned as a HUF property and they believed defendant No.1 that he was bonafide and acting in the interest of the family. Thus, if the plaintiffs had known about their share as per the law, this deed of arrangement Ex. DW1/2 would not have been executed.
57. The law recognize and give sanctity to an agreement between two persons but the condition for the enforceability of such agreement would require that there was no misconception either of facts or of law in the minds of the executants at the time of agreement. If there was any such misconception on the basis of any representation by a party to such an agreement, than such agreement will not be legally binding on the person so misrepresented.
58. In the present case, the plaintiffs were never aware about their legal rights. The defendant No.1 perhaps also thought that it was an HUF property and, therefore, he projected the same picture to the plaintiffs when the deed of family settlement was signed. Thus, this deed of family arrangement Suit No. 387/03 Page No. 34 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
was executed under a misapprehension. Therefore, such an agreement cannot be made enforceable.
59. Further, this deed of family arrangement Ex DW1/2 has not been acted upon so far. Although, PW1 has accepted that PW1 and PW2 had received Rs 1,33,400/- and Rs 66,600/- from September 1993 to April 1994 towards their share in the rent received which was as per the share determined under the deed of family settlement. Ld. Counsel for the defendant No.1 argued that in view of this admission the plaintiffs cannot say that the family arrangement was not acted upon. He further argued that the property could not be sold because it was rented out and not because the defendant No.1 was not willing to dispose it off. Ld. Counsel for the plaintiffs on the other hand had argued that as per defendant No.1 the tenancy was to come to an end in December 1993 but instead of getting the house vacated he again rented out the house for another three months and even thereafter, it has been given on rent. This reflect that defendant No.1 was not willing to dispose off the suit property.
60. Whatever may have been the reason, the fact remains that the property could not be sold and there could not be a partition by metes and bounds. It is not the case where the plaintiffs got their share in the suit property as per the deed of Suit No. 387/03 Page No. 35 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
family arrangement and lateron they realized that they were entitled for something more than what was given in the deed of family settlement. In that case the plaintiffs would not have any right to reopen the partition. But in the present case the deed of family arrangement has not been fully implemented and the plaintiffs are yet to receive the share in the property as per the law. No doubt the court give recognition to family arrangements but the purpose of that is that harmony in the family remains. But when such an arrangement becomes the bone of contention and also devoid one of the party to the arrangement of his/her legal or rightful claim in the suit property, then such arrangement cannot be accepted.
61. The Section 8 of Hindu Succession Act gives equal right to the plaintiffs and the defendants in the suit property. This right cannot be denied to the plaintiffs and the defendants in the garb of this deed of family arrangement. Therefore, it is held that the family arrangement dated 02.08.1993 Ex. DW1/2, though admittedly executed by the parties to the suit but the plaintiffs had signed the same in ignorance of their right in the suit property, therefore, a family arrangement cannot be acted upon. Since, this deed of arrangement was executed under the misconception about the factual and legal position, it cannot be enforced.
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62 Hence, the Issue No.1 is decided in favour of the plaintiffs by holding that the deed of family arrangement Ex. DW1/2 is not enforceable and, therefore, it is declared null and void.
Issue No. 2 is decided in favour of plaintiffs by holding that the plaintiffs as well as defendants (defendant No.2 already deleted) are entitled for 1/5th share in the suit property.
Issue No. 3. Whether the suit property is capable of being physically partitioned by metes and bounds? OPP
63. The burden was on the plaintiffs to prove that the property is incapable of being physically partitioned by metes and bounds. However, the plaintiffs did not lead the evidence to show what is the status of the suit property, how many floors exists therein, whether it can be divided into five segments or not. Therefore, it is not possible to give any finding on this issue at this stage. Moreover, in a suit for partition the possibility of partition of the suit property by metes and bounds is explored at the time of final decree. The finding on this issue, therefore, would come at the time of final decree.
Issue No.4. Whether the plaintiff is entitled to Suit No. 387/03 Page No. 37 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
rendition of account in respect of their shares in the rents/occupational charges received by the defendant No.1 from the suit property?
64. It is the case of the plaintiffs that defendant No.1 had received rent from the tenant which was not paid to them after April 1994. Ld. Counsel for the defendant No. 1 argued that even during the pendency of the case the rent was paid to the plaintiffs as per their share. Moreover he relied upon a judgment in K.V. Narayanan Vs. K.V. Ranganandhan and others 1976 (3) SCR 637 wherein it was observed that in the absence of proof of misappropriation or fraudulent or improper conversion by the Manager, a coparcerner seeking partition cannot call upon the Manager to account for his past dealing with the family. Coming to the present case, although this court has observed that suit property was not a coparcenery property but still an analogy can be drawn from the observation in the above said judgment. The plaintiffs have not leveled any specific allegation of misappropriation of the funds by the defendant No.1. It has come in the statement of DW1 that he has been making payment and bearing various expenses of the family members, out of the income from the house. Moreover, it has come on the record that since 2002, the house is in occupation of the plaintiff No.1 and defendant No.1 with defendant No.3 and as such there is no rental Suit No. 387/03 Page No. 38 Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
income from the house. In such facts it would not be fare and appropriate to seek any rendition of account from the defendant No.1 with regard to the rent/occupational charges received by him. The issue is accordingly decided against the plaintiffs.
Issue No.5 Whether the suit as framed is maintainable? OPP
65. This issue has not been pressed during the course of arguments. Moreover, no specific ground has been taken to challenge the maintainability of the suit. Merely, stating that the suit is not maintainable in the preliminary objections would not be sufficient. The Issue is accordingly decided against the defendants.
Issue No.6: Relief
66. The suit of the plaintiffs is, hereby, decreed by declaring that the deed of family arrangement dated 02.08.1993 is not enforceable and is thus null and void.
67. A preliminary decree of partition is hereby passed by holding that the plaintiff No.1 and 2 and defendant No.1, 3 and 4, all have 1/5th share in the suit property i.e. 140/48, Diplomatic Enclave, now known as 104, Malcha Marg, New Delhi. Decree sheet be prepared accordingly.
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68. Any of the party to the suit may apply for appointment of a Local Commissioner to suggest mode of partition of the suit property by metes and bound or any other appropriate mode of partition.
Announced in the open (AJAY KUMAR KUHAR)
court on 26th May 2012 Addl. District Judge- 01 Central
Tis Hazari Courts, Delhi
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Ritu Singh & Anr. Vs. Sanjiv K. Singh & Ors.
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