Delhi District Court
Smt. Bimla @ Vimal vs Shri Satish Kumar on 30 March, 2010
1
IN THE COURT OF SHRI D.C. ANAND
ADDITIONAL DISTRICT JUDGE (NORTH)-04 : DELHI
CS No. 68/09
Smt. Bimla @ Vimal
W/o Shri Puran Lal
R/o A-704, Rail Vihar,
Sector-15, Part-II,
Jharsa Road, Gurgaon (Haryana) ... Plaintiff
Versus
1. Shri Satish Kumar
R/o C-9, NTPC Township
Sector-33, Noida
Gautam Budh Nagar, UP.
2. Shri Sanjeev Kumar
R/o C-9/228, Raghurpura
Gali No.46, Karol Bagh,
New Delhi-110005.
3. Smt. Saroj Devi (since deceased)
Died on 14.11.06.
W/o late Sh. Kishan Lal
H. No. 4785, Gali No.46,
Raghurpura,Karol Bagh,
New Delhi110005.
4. Smt. Sushma Barupal
W/o Shri Mahendra Barupal
R/o Laxmi Niwas
Parmanand Basti, Bikaner
Rajasthan.
5. Smt.Savita
W/o Shri Ashok Kumar
R/o H.No.322, Janta Flats,
GTB Enclave, Delhi-93.
6. Shri Sushil Kumar
R/o Hanuman Gate
Bhiwani Haryana. ... Defendants
2
Date of institution : 10.5.1999
Date of arguments : 05.03.2010
Date of Decision : 30.03.2010
JUDGMENT
The plaintiff pleaded that Shri Kishan Lal was a Hindu died on 20.12.96 intestate leaving behind the defendants and movable and immovable properties at New Delhi and Bhiwani, Haryana besides deposits in the bank as ascertained by the plaintiff as follows:
i) House No.4785, Gali No.46, Regharpura, Karol Bagh, New Delhi-110005 (Four storeyed structure).
ii) A House in Uttam Nagar, New Delhi (particulars of which are in the knowledge of the defendant no.1 to 3).
iii) Janta Flat no.322, G.T.B. Enclave, Delhi-93,which was purchased in the name of Smt. Saroj Devi (defendant no.3).
iv) A residential house at Bhiwani (Haryana) which is occupied by Shri Sushil Kumar-defendant no.6.
The three storey property at Regharpura, Karol Bagh, New Delhi is occupied by various tenants, namely, Shri Sunil who is in occupation of second floor, Sh. Gutam Adik who is in occupation of 3rd and 4th floor. The plaintiff also sought direction to the defendant to disclose the name of the tenants, terms and conditions of occupation and rate of rent. Similarly, 3 direction are also sought in respect of the property at Uttam Nagar which is also stated to be let out to the tenants. The property at GTB Enclave is occupied by the defendant no.5 whereas the property at Bhiwani is occupied by the defendant no.6. The plaintiff further pleaded that the defendant no.1 to 3 are collecting the rent since the death of Shri Kishan Lal from the tenants of the property at Regharpura, Karol Bagh, New Delhi besides the rent of the property at Uttam Nagar who are mismanaging, usurping and illegally converting and secreting the joint property while depriving the plaintiff of her due shares in the property. The defendant no.1 to 3 are as such liable to render the account of the profits made by them after the death of Shri Kishan Lal.
The plaintiff further pleaded that late Shri Kishan Lal was also having saving bank account in Allahabad Bank, New Delhi besides fixed deposit of Rs. One lac and fixed deposit and saving bank accounts having Rs.89,000/-. The parties to the suit are pleaded to be in joint possession of the property whereas the defendant no.1 to 3 threatened to dispose off the properties at Karol Bagh and Uttam Nagar, New Delhi of which notice dated 29.7.88 was served by the plaintiff to the defendant no.1 to 3. 4 The notice was not replied by the defendant no.1 to 3 whereas the defendant no.6 replied the notice expressing his willingness to settle the matter peacefully and amicably. The attitude of the defendant no.1 to 3 are rigid or non-cooperative. The parties are governed by the Hindu Succession Act and accordingly the plaintiff has 1/7th share in each item of the estate of late Shri Kishan Lal. The plaintiff further pleaded that the defendants be directed to disclose the cash left by Shri Kishan Lal or any other assets acquired and on such disclosure the same be divided amongst the parties to the suit in equal shares for which the plaintiff reserve the rights to amend the plaint. The plaintiff further pleaded that the defendants be directed to disclose the movable or immovable properties and assets other than mentioned in the plaint left by deceased Shri Kishan Lal for division amongst the parties to the suit. Since the defendants failed to respond to the request of the plaintiff to divide and partition the properties and render the account, the plaintiff filed the present suit seeking decree of partition in respect of the suit properties, appointment of the local commissioner suggesting ways and means of partition of the said properties, direction to the defendant no.1 to 3 to render the accounts and 5 money received by them and decree thereof, distribution of the money lying in the bank equally amongst the parties to the suit and any other relief as deem proper.
The defendant no.4 filed separate written statement and admitted that Shri Kishan Lal left behind the suit properties to the knowledge of the plaintiff and rent is collected by Phoola Devi @ Saroj Devi Wd/o late Shri Kishan Lal (defendant no.3) and by defendant no.1 & 2 of which account is not shown to the defendant also despite request by him. All other averments also admitted by this defendant. The defendant no.1 to 3 also never agreed to partition and as such this defendant prayed for decree of the suit.
The defendant no.1,2,3 & 5 filed separate written statement and stated that the suit is not maintainable which has also not been valued properly for the purpose of court fee and jurisdiction. The defendants further stated that according to Section 23 of the Hindu Succession Act, if there is only one dwelling house left behind by the deceased which he used as such for the purpose of the residence, no partition of the same can be claimed by the female heir of the deceased. The defendant no.2 & 3 are residing at Regharpura property whereas 6 the defendant no.1 is residing in the accommodation allotted by the NTPC Ltd. at Noida. The defendant no.4 is residing at Bikaner whereas defendant no.6 is residing at Bhiwani alongwith his family. The plaintiff is residing with his family at the given address. The defendants detailed the property left behind by the deceased Shri Kishan Lal who died intestate as under:
a) A structure at 46/4785, Regharpura, Karol Bagh, New Delhi.
b) One plot measuring approx. 300 sq. yds. at Gali No.3, Bahar Bedha Hanuman Gate, Bhiwani, Haryana on which the defendant no.6 has constructed a three storey room.
c) A saving account in Allahabad Bank, Karol Bagh Branch, Arya Samaj Road, New Delhi bearing A/c No.1097in which approx. Rs.1,08,229/- is lying.
d) A saving account bearing A/c No.776 at United Bank of India, Padam Singh Road, WEA Karol Bagh, New Delhi in which approx. Rs.37,556/- is lying.
Further, the details are sought from the plaintiff by these defendants. These defendants further pleaded that house No. 4785, Regharpura, Karol Bagh, New Delhi, a four storey structure was self acquired property of late Shri Kishan Lal in which the defendant no.3 wife of late Shri Kishan Lal and Shri 7 Sanjiv Kumar (defendant no.4) alongwith his newly married wife are also residing and being used as a dwelling house. These defendants further pleaded that in fact the plot at Uttam Nagar was sold and proceed was utilized for the marriage of his daughter Savita by late Shri Kishan Lal and as such no house exist at Uttam Nagar. The plot at GTB Enclave was allotted to Smt. Saroj Devi Wd/o of late Shri Kishan Lal of which installments are being paid by her as well as by the defendant no.1 & 2, namely, Shri Satish Kumar and Shri Sanjeev Kumar to the DDA. Smt. Saroj Devi is the absolute owner of the flat.
The flat at Bhiwani was in the name of Shri Kishan Lal which is his self acquired property whereas defendant no.6 has constructed the dwelling house and rest of the portion is used for keeping buffaloes/ dairy. The structure at Regharpura property is stated to be for residential use of Smt. Saroj Devi, defendant no.3 & defendant no.2 Sanjeev Kumar and other two storeys are rented and vacated from time to time of which average monthly rent varies from nil to Rs.2500/- per month. The defendant no.5 is in residential use of flat at GTB Enclave temporary, a married daughter Savita of defendant no.3 whereas the defendant no.5 is awaiting allotment of residential 8 accommodation from Indian Railways. These defendants further pleaded that during the life time of late Shri Kishan Lal, the first floor of 46/4785, Regharpura, Karol Bagh, was let out for a few months only. Thereafter Shri Satish Kumar was in possession of the same even before the demise of Shri Kishan Lal on 20.12.96 and was being used for residential purpose by the children of Shri Satish Kumar and by Shri Satish Kumar himself while he was on leave from place of duty i.e. NTPC/ Rihand. This agreement continued till the marriage of Shri Sanjiv Kumar which was solemnized on 3.7.98. It is further pleaded that during the life time of Shri Kishan Lal only 3rd and 4th floor of the premises were rented out intermittently depending upon the availability of suitable tenants. Since late Shri Kishan Lal was a pensioner the rent so received was used by him in addition to his pension for meeting his own expenses. Further, the rent if any being received by Smt. Saroj Devi defendant no.3 was only to enable her to live an honourable and comfortable life after the sad demise of her husband. Smt. Saroj Devi, the widow of late Shri Kishan Lal gets a family pension of Rs.1300/- only and spends the amount available to her on account of this rent payment on her basic needs such as food, 9 clothing, medical treatment etc. She also contributes towards payment of electrical energy bills, house tax bills, legal expenses of the ongoing session trial u/S 498A, 302/34 IPC at Tis Hazari Courts since 4.11.88. Also the expenses on the food, clothing and other misc. items of Smt. and Shri Sanjiv Kumar are being met by Smt. Saroj Devi as he is presently unemployed.
These defendants further pleaded that the account No.1097 at Allahabad Bank has approx. Rs.1,08,229/- as the plaintiff refused to sign the relinquishment deed alongwith defendant no.4 and 6 whereas other defendants relinquished their interest in favour of their mother Smt. Saroj Devi. Another account no.101142 in Allahabad Bank was in the joint name of Saroj Devi and Shri Kishan Lal and after the demise of Shri Kishan Lal, the same is operated by the defendant no.3. Regarding the fixed deposit, the same was stated to be in the name of either or survivor and as such the plaintiff has no right whatsoever to question these transactions of her father. The saving bank account in United Bank of India having balance of Rs.37,556/-. There was also another account bearing No.802 which defendant no.3 operated.
These defendants denied the joint possession of 10 plaintiff either of the property at Regharpura, Karol Bagh or Bhiwani as the plaintiff is married and has been staying with her husband and children at the place of posting of her husband all over India. These defendants also denied that any point of time they ever threatened the plaintiff in any manner whatsoever either verbally or in writing. These defendants however admitted the notice dated 29.7.99 but denied any intention to dispose off the property as the properties are being used continuously for dwelling purpose after the demise of Shri Kishan Lal on 20.12.96. The defendant also denied that the plaintiff ever approached for partition who filed the present suit in respect of dwelling house at Regharpura and not in respect of property at Bhiwani in collusion with the defendant no.6. These defendants denied any intention to defraud or deprive the plaintiff of her share and willing to talk the matter with the plaintiff. The defendants as such assailed the merits of the plaint and pleaded that the same be dismissed.
The plaintiff filed respective replication to the respective written statements of the contesting defendants wherein she assailed the allegations as made in the written statement while reaffirmed the averments of the plaint in toto. 11
On the pleadings of the parties, the following issue was framed on 15.1.2005.
1. Whether the suit is properly valued and sufficiently stamped for the purpose of court fee?
Further the following issues were framed on 2.5.2009.
1. Whether the suit of the plaintiff is not maintainable under Section 23 of the Hindu Succession Act in view of preliminary objection to the WS? OPD.
2. Whether the suit is not properly valued or the purpose of court fee and jurisdiction.? OPD
3. Whether the property i.e. Janta Flat bearing No.1322, GTB Enclave, Nand Nagri, Delhi was purchased in the name of the defendant no.3 and owned by the deceased Kishan Lal, father of the plaintiff? OPP.
4. To what share the plaintiff is entitled in the joint property as mentioned in para 3 and 7 of the plaint? OPP.
5. To what amount if any, the plaintiff is entitled from the income of the joint property received by the defendant no.1 to 3? OPP.
6. To what amount if any, lying in the bank in the account of deceased Kishan Lal, the plaintiff is entitled? OPP.
7. Relief.
It is pertinent to mention that defendant no.3 expired on 14.11.2006 whose legal heirs were already party to the suit as recorded in the order dated 2.5.2009.
The plaintiff examined himself as PW1 and filed affidavit in evidence under Order 18 CPC as well as Shri Anil Kumar Dutta cash cum general clerk from United Bank of India and Shri Surender Kumar Special Asstt. Allahabad Bank as PW2 12 & PW3. The defendant no.1 examined himself as well as defendant no.2 Shri Sanjeev Kumar as DW1 and DW2 besides filing their affidavits in evidence under Order 18 CPC.
I have heard the ld. Counsel for the parties and have perused the evidence and documents on record carefully. My findings on the issues are as under:
Issue as was framed on 15.1.05 and Issue no.2 as was framed on 2.5.2009 are one and the same and as such taken up together for disposal.
The issue as was framed on 15.1.05 was left open to be determined by this court at the stage of final disposal of the suit whereas the orders on that issues passed on 14.9.05 was set aside by the Hon'ble High Court. Since the orders whereby the plaintiff was directed to pay the court fee on the market value of the property with regard to the share of the plaintiff has been set aside and nothing placed or proved on record by the parties so as to prove the issue, accordingly the plea that at the stage of filing of the suit adequate court fee has to be paid by the plaintiff has not been emphasized on which basis the Hon'ble High Court directed this court to proceed with the case further.
The plaintiff filed the suit for partition claiming her share in the suit properties being sister of the defendants stating 13 in the plaint that parties are in joint possession of the property and hence despite valuation of the suit for the purpose of partition, the jurisdiction assessed at Rs.14 Lacs being market value of the suit property, the plaintiff paid the court fee of Rs.20/- as fixed value for the purpose of court fee. The plaintiff deposed so in her affidavit filed in evidence and nothing contrary is placed and proved on record by the defendants so as to deny the deposition of the plaintiff that she is in joint possession of the suit property on account of sister of the defendants although living separately but having not been ousted or dispossessed from the suit property by the defendants.
Since nothing to that effect is placed and proved on record by the defendants, reference is made to the case of Neelvathi and others Vs. N. Natrajan & others reported in AIR 1980 Supreme Court 691, Jagannath Amin Vs. Seetharama & ors reported in (2007) 1 SCC 694, Smt. Chanderlekha Tuli Vs. Shiv Sharan Dass Tuli reported in 75(1998) DLT 909 read with case law as laid down in Saroj Salkan Vs. Capt. Sanjeev Singh reported in 155(2008) DLT 300 (DB), Commercial Aviation and Travel Co.
Vs. Vimla Panna reported in AIR 1986 Delhi 439 and Sheela Devi & ors Vs. Kishan Lal Kalra & ors reported in ILR (1974) II 14 Delhi as was relied upon by the ld. Counsel for the plaintiff in view of the authorities and no evidence of ousting of the plaintiff from the suit premises, the issues are decided in favour of the plaintiff and against the defendants and the court fee paid is held to be only court fee payable by the plaintiff in the given facts as per Schedule II of the Court Fees Act.
Issue no.1 It is a matter of record that the suit was filed on 10.5.99 and the same was registered as suit no.999/99. It is also admitted that as on the date of filing of the suit Section 23 of Hindu Succession Act was very much in existence. Ld. counsel for the plaintiff without disputing the provisions as were containing in Section 23 of Hindu Succession Act submitted that the suit filed was maintainable because the plaintiff sought partition of the property which includes dwelling house as well as property/ house no.4785, Karol Bagh, New Delhi which was let out to the tenants and the defendants were collecting rent from the tenants besides the rent from the property at Uttam Nagar, New Delhi of which rendition of account was also sought by the plaintiff. Ld. counsel for the plaintiff as such submitted that the suit was maintainable by the plaintiff despite the 15 provisions as contained in Section 23 of Indian Succession Act. In support of the contentions, ld. counsel for the plaintiff referred to the case of Janki Narain Vs. Narayan Namdeo Kadam reported in (2003) 2 SCC 91, Kuldeip Narsimha Murthy Vs. Susheelabhai and others reported in AIR 1996 SC 1826, Jitender Singh Bindra Vs. Ms. Kwal Bindra and others reporte in 2001 II AD (Delhi) 469, Rajeshwar Dayal Vs. Sobhana Mathur reported in RLW (2000) 2 Raj. 969, Anil Kak Vs. Kumari Sharada Raje and others reported in (2998) 7 SCC 695, Prabhu Dayal Vs. Ramsiya & another reported in AIR 2009 Madhya Pradesh 52, Shrilekha Ghoh Vs. Partha Sarathi Ghosh reported in AIR 2000 SC 2500, Sathappa Chettiar Vs. Ramanathan Chettiar reported in AIR 1958 SC 245, Hemendra Rasiklal Vs. Subodh Mody reproted in 2009 AIHC 206, R.V.E. Venkatechala Gounder Vs. A.V. & V.P. Temple reported in AIR 2003 SC 4548. S.S., Srivastava Vs. State reported in ILR. Supp. I (2007) Delhi 65, Bhaskar Bhattacharya Vs. Rudrendra Nath Banerjee reported in AIR 2008 Calcutta 63, and Daulat Ram Vs. Sodha and another reported in (2005) I Supreme Court cases 49.
Ld. counsel for the defendants also relied upon the 16 authority in case of Narshimha Murthy (Supra). The plaintiff filed affidavit in support of the plaint as above in evidence and admitted during the cross examination that she did know the rate of rent and name of the tenant in respect of Uttam Nagar house while making denial that house at Uttam Nagar was sold by the deceased father of the parties. The plaintiff also admitted during the cross examination that house at Karol Bagh is a four storey building and there is no permanent tenant in the building as it goes on changing which is not drawing rental income of Rs.2500/-. The plaintiff however admitted that the amount received from rent is spent on the maintenance of the building by the defendants who are in occupation of the same. The defendants in their evidence namely, Sanjeev Kumar, admitted that he resided at the same address at Karol Bagh, property in suit and before that he was looking after the premises which was rented out only after the demise of their mother on 14.11.2006 and collected rent from the tenants which rent is spent on repairs and maintenance of which amount vary from nil to Rs.6,000/- per month.
Regarding the land at Uttam Nagar, he also deposed that the said plot was sold by his father during the life time. The 17 other properties are admittedly the dwelling house properties left behind by the deceased father and mother of the parties to the suit.
The onus to prove the issue was on the plaintiff that the property sought to be partitioned is not dwelling house. On the basis of evidence as discussed above, the plaintiff has failed to prove that the property at Uttam Nagar was not the dwelling house but was rented property of the deceased father of the parties. Regarding the property at Karol Bagh, Regharpura which is stated to be 50 sq. yds. land having four storey building, the same is basically used as dwelling house by the defendant Shri Sanjeev Kumar as well as defendant no.3 and also father of the parties before their death, who is also now collecting the rent that too for maintenance of the old structure of the building. As per the deposition of the defendants the property at Regharpura Karol Bagh was let out only after the demise of their mother on 14.11.06 where their mother used to reside alongwith other family members including the defendant Sanjeev Kumar.
From the testimony of defendant Sanjeev Kumar, it is clear that the property at Karol Bagh, Delhi was also let out during the life time of the father of the parties as the witness 18 deposed that after the death of his father, his mother used to receive rent from the tenants. The defendants also stated that defendants no.3 who is his mother executed a Will bequeathing all movable and immovable properties in his favour. Perusal of the authority, to be specific the authority relied upon by both the parties, reported in Narshimha Murthy (Supra) goes to show that Section 23 of Indian Succession Act is to be construed not in strict grammatical manner but by applying common sense, equity, justice and good conscience. Their Lordship further defined the word 'dwelling house' in Section 23 of Hindu Succession Act and observed as under:
"The expression 'dwelling house' though not defined in the Act, the context would indicate that it is referable to the dwelling house in which the intestate Hindu was living at the time of his/ her death; he/ she intended that his/ her children would continue to normally occupy and enjoy it. He or she regarded it as his or her permanent abode. On his or her death, the members of the family can be said to have continued to preserve the same to perpetuate his/ her memory."
On the basis of the said interpretation, his Lordship was of the view with regard to the male rights of residence of the daughter and observed as under:
"The right of residence to the male member in the dwelling house of the Hindu intestate should be 19 respected and the dwelling house may be kept impartible during the life time of the sole male heir of the Hindu intestate or until he chooses to divide and gives a share to his sister or sisters or alienate his share to a stranger or lets it out to others etc."
Their Lordship in the cited authority put forward the example as under:
"Take yet another instance, where two room tenement flat was left by deceased father or mother apart from other properties. There is no love lost between brother and sister. The latter demands her pound of flesh at an unacceptable price and the male heir would be unable to buy off her share forcing the brother to sell the dwelling flat or its lease-hold rights or interest to see that the brother and his family are thrown into the streets to satisfy her ego. If the right to partition is acceded to the son will he left high and dry causing greatest humiliation and injustice."
"Take yet another instance where son due to being in service is transferred to another place or places and consequently he has to leave his dwelling house and join at the place or places of his posting. Instead of keeping the house locked, he may lease it out or grant leave or licence to a tenant. The cessation of possession and enjoyment of the dwelling house is not due to his own volition but due to compulsion to eke out livelihood and this cause should not give rise to a cause of action to a sister to file the suit for partition."
In the present case, the property at Regharpura, Karol Bagh is not exclusively the rented house but the fact remained that not only the defendant Sanjeev Kuamar but his parents including the mother, who was made defendant no.3 by 20 the plaintiff in the suit, were using the same as dwelling house. Partial use of the dwelling house for acquiring expenditures involved in maintenance thereof by way of rent does not allow one to say that the house is not the dwelling house. In the cited judgment, their Lordship further detailed the discussions with regard to the word 'dwelling house' as under:
"From the afore quoted statements it is manifest that in the legal world the word 'dwelling house' is neither a term of art nor just a word synonymous with a residential house, be it ancestral, joint family owned or self acquired, as understood in the law applicable to Hindus. In the context of Section 23 therefore when the legislature has chosenly employed the word 'dwelling house', it has done so with a purpose, which is to say that on the death of the intestate, a limited status quo should prevail as existing prior to his or her death. His or her abode shared by him or her, with members of his or her family, identifiable from Class I heir of the schedule, should continue to be in enjoyment thereof, no partible at the instance of the female heirs till the male heirs choose to effect partition thereof."
The example/ reference as made above in the cited judgment inclined me to the conclusion that examples and observations are squarely applicable to the facts and circumstances of the present case and as such on the basis of latest authority and considering the authority as referred to above by the plaintiff, I hold that the suit property is not 21 impartible at the instance of the plaintiff having regard to the authority relied upon by the plaintiff as referred to above including the case of Prabhu Dayal (Supra) of which observations are not applicable to the facts and circumstances of the case in dispute. However, reference made to the case of Bhaskar Bhattacharya (Supra) by the ld. counsel for the plaintiff wherein their Lordship observed as under:
"After the omission of Section 23 of Hindu Succession Act, the bar of partition of family dwelling house at the instance of female heir of the Class I is lifted and consequently such defence is no longer available to the male heir to oppose partition as in the Amending Act, even the pending proceedings for partition have not been saved."
has been contested by the ld. Counsel for defendants in appreciation thereof also and referred to the case law decided in the case of Valliammal Vs. Muniyappan & others wherein their Lordship observed as under:-
"In the plaint, it is stated that the father of the plaintiffs died about thirty years prior to the filing of the suit. The second plaintiff as PW1 has deposed that their father died in the year 1968. The Amendment Act 39 of 2005 amending Section 6 of the Hindu Succession Act, 1956 came into force on 9.9.2005 and it conferred right upon female heirs in relation to the joint family property. The contention put forth by the ld counsel for the appellant is that the said amendment came into force pending disposal of the suit and hence the plaintiffs are 22 entitled to the benefits conferred by the Amending Act. The Amending Act declared that the daughter of the coparcener shall have the same right in the co- parcenery property as she would have had if she had been a son. In other words, the daughter of a coparcener in her own right has become a co- parcener in the same manner as the so in so far as the rights in the coparcenery property are concerned. The question is as to when succession opened in so far as the present suit properties are concerned. As already seen, the father of the plaintiffs died in the year 1968 and on the date of his death, the succession had opened to the properties in question. In fact, the Supreme Court in a recent decision in Sheela Devi and others Vs. Lal Chand and another (2007) 1 MLJ 797 (SC) considered the above question and has laid down the law as follows: '19. The act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confe3r right, upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application."
In view of the above statement of law by the Apex Court, the contention of the appellant is devoid of merits. The succession having opened in the year 1968, the Amendment Act 39 of 2005 would have no application n the facts of the present case. No other contention was advanced by the counsel for the appellant."
Also ld. Counsel for the defendants referred to the observations of Apex Court in the case of Sheela Devi and others Vs. Lal Chand and another reported in 2007(2) ALT52 (SC) as was referred in the cited authority wherein their 23 Lordship observed as under:
"The act indisputably would prevail over the old Hindu Law. We may notice that the Parliament, with a view to confer right, upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act, 2005. Such a provision was enacted as far back in 1987 by the State of Andhra Pradesh. The succession having opened in 1989, evidently, the provisions of Amendment Act, 2005 would have no application. Sub-Section (1) of Section 6 of the Act governs the law relating to Succession on the death of a coparcener page 4327 in the event the heirs are only male descendants. But, proviso appended to Sub-Section (1) of Section 6 of the Act creates an exception."
To counter the submission as made by the ld.
Counsel for the defendants that the suit was not at all maintainable for partition by the plaintiff before amendment of Hindu Succession amendment Act of 2005, ld. Counsel for the plaintiff referred to Section 8 of Hindu Succession Act and submitted that properties of the deceased father and mother of the plaintiff and the defendants is governed by the provisions of Section 8 of Hindu Succession Act, 1956 as was in existence even before Amendment of 2005 in Hindu Succession Act, 1956. Ld. Counsel for the plaintiff also submitted that suit for partition was not filed by the plaintiff under Section 6 of Hindu Succession Act as co-parcener as the same was filed under 24 Section 8 of the Hindu Succession Act seeking partition of the property. The submission by the ld. Counsel for the defendants are misconceived as facts remained that the plaintiff was not a co-parceners and the suit was filed keeping in view the provisions of Section 8 of Hindu Succession Act, 1956 wherein there is no amendment in the Amendment Act, 2005. Looking at the provisions as was in existence in the Hindu Succession Act, 1956 specially Section 23 which debar filing of the suit for partition by the plaintiff even under the provisions of Section 8 of Hindu Succession Act, 1956 as provisions of Section 8 only provides General Rules of Succession in case of male Hindu died intestate and not right to file a suit for partition by a female member of the family of a person who died intestate leaving behind the suit property as detailed by the plaintiff in the present case.
On the face of the authorities as referred to above and discussed in detail with reference to the observations of their Lordship, this court is of the view that the plaintiff has failed to prove that she was entitled to file the suit for partition despite bar u/S 23 of Hindu Succession Act, 1956 when the same was filed as admittedly there was embargo to the plaintiff 25 for filing the said suit under Section 23 of Hindu Succession Act, 1956. Nothing has been pointed out by the ld. Counsel for the plaintiff that Legislature in the amendment carried out vide amendment Act of 2005 in Hindu Succession Act, 1956 has legalize or validated the suit for partition filed by a female successor in respect of the property of the male Hindu who died intestate as was the case in the present suit which was filed for partition by the plaintiff in respect of the properties of her father who died intestate leaving behind the plaintiff and the defendants as survivor to whom the property devolved in accordance with the provisions as contained in Section 8 of the Hindu Succession Act, 1956. The proviso to Section 6 of Hindu Succession Act, 1956 as was amended vide amendment of 2005 in the Hindu Succession Act, 1956 when read with the proviso to Clause-3 and Sub-Clause-I thereof fortify the findings as above that the plaintiff was not within her rights to file a suit for partition as on date the suit was filed by her. Reference made to the case of Bhagwanti Vs. Manivanan decided by Hon'ble High Court of Madras on 14.8.2008 also makes it clear that plaintiff was having no right to seek partition of the suit property as on date the suit was filed under the provisions as was contained in 26 Section 8 as well as 6 of Hindu Succession Act, 1956 which was to be read with Section 23 of Hindu Succession Act as their Lordship in the similar facts observed as under:
"In the present case, the death of the father having taken place in 1975, succession itself opened in the year 1975 in accordance with the existing provisions contained in Section 6. If the contention of the petitioners is accepted, it would amount to giving retrospective effect to the provisions of Section 6 as amended in 2005. On the death of the father in 1975, the property had already vested with Class-I heirs including the daughters as contemplated in the unamended Section 6 of the Act. Even though the intention of the amended provisions is to confer better rights on the daughters, it cannot be stressed to the exent of holding that the succession which had opened prior to coming into force of the amended Act are also required to be re-opened."
Accordingly, I decide the issue in favour of the defendants and against the plaintiff and hold that suit of the plaintiff was not maintainable under Section 23 of Hindu Succession Act, 1956 which was filed on 10.5.1999 with the understanding that one of the suit property at Karol Bagh was not the dwelling house which plea has also been decided against the plaintiff while dealing with that plea with support of the authorities as referred to above.
Issue No.3 The plaintiff on whom the onus was to prove the 27 issue deposed that Janta flat at G.T.B Enclave, was purchased by her father in the name of her mother Smt. Saroj Devi since deceased. Smt. Saroj Devi was defendant no.3 in the present suit. This deposition which was reiterated during the cross examination has not been challenged by the defendants during cross examination and nothing placed and proved on record to say that the property was not purchased by the father of the defendants as well as LRs of deceased defendant no.3 to say that the flat at G.T.B Enclave was not purchased in the name of his wife i.e. the defendant no.3. In fact, the suggestion was put to the plaintiff that GTB Enclave flat has been sold by the plaintiff's mother during her life time of which no document placed on record by the defendants. The issue is accordingly decided in favour of the plaintiff and against the defendants. Issue no.4 It is an admitted case of the parties that the plaintiff is entitled to the share in the joint properties which are subject matter of the suit for partition in accordance with the Section 8 of Hindu Succession Act as amended vide Amendment Act, 2005 although the plaintiff is not entitled for partition thereof in view of my findings on the issue no.1. The issue is accordingly 28 decided in favour of the defendants and against the plaintiff. Issue no.5 & 6 The onus to prove these issues was on the plaintiff. No regular accounts of income received by the defendants has been placed and proved on record by the plaintiff on whom the onus was to prove the issue. As such the amount of Rs.59,222.67p. which was credit balance lying in the account Ex.PW2/1 as well as the amount of Rs.1550-69p. in the account Ex.PW2/2 as well as the amount of Rs.1,65,351-42p. lying in the account Ex.PW3/1 in the name of Shri Kishan Lal including the account Ex.PW2/2 which was in the name of Shri Kishan Lal and Smt. Saroj Devi is liable to be shared by the plaintiff with the defendants in accordance with the Law of Succession under Section 8 of Hindu Succession Act. The only admission by the defendants is in respect of the amount received as rent and that too after the death of defendant no.3 as after the death of Shri Kishan Lal, his wife i.e. the defendant no.3 was utilizing the amount of income received as rent in respect of the property at Karol Bagh where she was residing on the ground floor alongwith other defendants. The defendants were as such not able to give the details of the rent received by the defendant 29 no.3, mother of the parties to the suit during her life time. The defendant no.2 Sanjeev Kumar, however, stated that second floor of the property at Karol Bagh is lying vacant for the last 2/3 months when he made statement on 31.10.09 whereas the tenant of the fourth floor is paying Rs.4,000/- per month and tenant on the first floor is paying Rs.2,000/- per month. The defendant was not able to depose as to how much amount of rent his father or mother used to receive and how it was utilized except that it was utilized for meeting the expenditures involved in maintenance of the house as well as for personal maintenance of the defendant no.3.
The plaintiff being not entitled to partition of the said property as was prayed for in the suit, the plaintiff cannot be held entitled to the rental income as derived from that very property by the defendants including the defendant no.3 who died during the pendency of the suit. The vague testimony of the defendant in respect of the amount of rent received in the suit property and considering that onus to prove the issue was on the plaintiff, I hold that the plaintiff is only entitled to the 1/6th share in the amount lying in the different accounts as referred to above whereas the plaintiff is held not entitled to the share in 30 the rental income of the properties which are not liable to be partitioned in the present suit. The issue no.6 is accordingly decided in favour of the plaintiff and against the defendants whereas the issue no.5 is decided against the plaintiff and in favour of the defendants as the plaintiff is not entitled from the income of joint property as was received by the defendant no.1 to 3 who are residing and maintaining the building at Karol Bagh left intestate by their father Shri Kishan Lal and mother Smt. Saroj Devi (who died during the pendency of the suit) and were using the rental income from that property till her death for maintenance of the building as well as for their maintenance and thereafter only the defendant Shri Sanjeev Kumar was being paid rent by the tenants as also the plaintiff is not entitled to claim the same on account of detailed findings on the issue no.1 that the suit for partition of the property of which rent was received after the death of the defendant no.3 by the defendant no.2, namely, Shri Sanjeev Kuamar was not maintainable as on date when the same was filed as per the provisions under Section 23 of Hindu Succession Act.
Relief In view of my findings on the issues as above, the 31 suit for partition is held to be not maintainable by the plaintiff, the plaintiff is not entitled to the relief as claimed for partition of the suit property as well as share of rent as was received out of the property at Karol Bagh, Delhi of which partition was sought by the plaintiff in the suit. However, the claim of 1/6th share in the amount lying deposited in the account of Shri Kishan Lal father of the parties to the suit including in the joint account in the name of the father of the parties to the suit and mother Smt. Saroj Devi since deceased is accepted and the plaintiff is held entitled to receive the said share of the amount on deposit of court fee ad-valorem on the share which she is entitled to receive subject to which only decree shall be executable. No order as to cost. Decree be drawn accordingly. File be consigned to record room.
Announced in open court (D.C. ANAND)
on 30.3.2010 Addl. Distt. Judge (North)-IV/
Delhi
32
CS No.68/09
30.03.2010
Present : None.
Vide separate judgment dictated and announced, the suit for partition is held to be not maintainable by the plaintiff, the plaintiff is not entitled to the relief as claimed for partition of the suit property as well as share of rent as was received out of the property at Karol Bagh, Delhi of which partition was sought by the plaintiff in the suit. However, the claim of 1/6th share in the amount lying deposited in the account of Shri Kishan Lal father of the parties to the suit including in the joint account in the name of the father of the parties to the suit and mother Smt. Saroj Devi since deceased is accepted and the plaintiff is held entitled to receive the said share of the amount on deposit of court fee ad-valorem on the share which she is entitled to receive subject to which only decree shall be executable. No order as to cost. Decree be drawn accordingly. File be consigned to record room.
(D.C. ANAND)
ADJ (North)-IV/Delhi
30.03.2010
33
CS No.68/09
20.03.2010
Present : Plaintiff in person.
Defendant in person.
Certain clarifications are required with regard to the authorities as placed on record. Put up accordingly for arguments on 27.3.2010.
(D.C. ANAND)
ADJ (North)-IV/Delhi
20.03.2010
27.03.2010
Present : Counsel for the parties.
Arguments heard. Put up for orders on 30.3.2010.
(D.C. ANAND) ADJ (North)-IV/Delhi 27.03.2010