Delhi District Court
Miss Sonali Trehan @ Sonali Kalra vs Shanti Devi on 31 August, 2016
IN THE COURT OF MS. SAVITA RAO
ADJ (WEST)01, TIS HAZARI COURTS, DELHI
Suit No. 108/16
IN THE MATTER OF :
1.Miss Sonali Trehan @ Sonali Kalra W/o Sh. Rakesh Kalra R/o 50/16, First Floor, Ashok Nagar New Delhi110018
2. Smt. Chander Kanta W/o Late Sh. Rajendra Kumar Trehan R/o 766, Sector16, Faridabad Haryana ........Plaintiffs Versus
1. Shanti Devi (Deceased Through LRs) (A) Mrs. Suvarsha Verma D/o Late Sh. Premanand Trehan C/o 77C/4, Mukesh Nagar, Shahdara Delhi110032 (B) Smt. Santosh Mehra D/o Late Sh. Premanand Trehan C/o 77C/4, Mukesh Nagar, Shahdara Delhi110032 (C)SMT. SUSHIL BEHL D/o Late Sh. Premanand Trehan C/o 77C/4, Mukesh Nagar, Shahdara Delhi110032
2. Ravinder Trehan Page No. 1/23 S/o Late Sh. Premanand Trehan C/o 77C/4, Mukesh Nagar, Shahdara Delhi110032
3. Naresh Trehan (Dabboo) S/o Late Sh. Premanand Trehan C/o 77C/4, Mukesh Nagar, Shahdara Delhi110032
4. Life Insurance Corporation of India (I) Unit 310, 86, Janpath, New Delhi (II) Divisional Office, Saket, Meerut
5. Delhi Development Authority (Deleted from array of parties vide order dated 23.01.1984) 6(A).State Bank of India 257, Defence Colony, New Delhi (B). Defence Colony Flyover Branch New Delhi
7. Pushpa Arora (Mother of Ms. Madhubala) R/o 12/7, Ramesh Nagar New Delhi .........Defendants Date of Institution : 27.10.1983 Date of Transfer to this Court : 21.03.2016 Date of Arguments : 27.05.2016, 01.06.2016, 01.07.2016, 02.08.2016, 16.08.2016 & 22.08.2016 Date of Judgment : 31.08.2016 J U D G M E N T
1. This is suit for partition and recovery of properties, filed by plaintiffs against defendants. Plaintiff No. 1 is daughter and plaintiff No. Page No. 2/23 2 as stated is widow of deceased Sh. Rajendra Kumar Trehan & original defendant No. 1 (now deceased & now represented by her LRs) i.e. defendant No. {1 (a), 1(b) and 1(c) & defendants No. 2 and 3} was mother of deceased Rajendra Kumar Trehan. Defendants No. 2 to 3 are brothers of Late Sh. Rejendra Kumar Trehan. Defendant No. 4 is Life Insurance Corporation of India. Defendant No. 5 was Delhi Development Authority. Defendants No. 6A and 6B are two branches of State Bank of India. Defendant No. 7 is mother of Late Madhubala Trehan, second wife of Late Sh. Rajendra Kumar Trehan.
2. The suit has been filed by plaintiffs, to claim share out of the properties left by deceased Rajendra Kumar Trehan which were possessed by him as per ScheduleA and the articles belonging to plaintiff No. 2 which were also in possession of Late Sh. Rajendra Kumar Trehan as mentioned in ScheduleB. Said Sh. Rajendra Kumar Trehan, died intestate leaving behind plaintiffs and deceased defendant No. 1 as his legal heirs. Though as stated, a decree of divorce was obtained by Late Sh. Rajendra Kumar Trehan against plaintiff No. 2 but the said decree, as stated in plaint, was obtained by fraudulent means and is not binding upon her. Said Rajendra Kumar Trehan, as further stated, after obtaining decree fraudulently against plaintiff No. 2, remarried with one Madhu Bala, however, no child was born out of their relationship and both of them i.e. Rajendra Kumar Trehan and his partner, namely, Madhu Bala died intestate in road accident on 15.08.1983.
3. In written statement filed on behalf of defendants No. 1 to 3, Page No. 3/23 it was submitted that decree of divorce obtained by Late Sh. Rajendra Kumar Trehan, was never challenged by plaintiff No. 2, therefore, attained finality and now plaintiff No. 2 is left with no right in the properties left by deceased Rajendra Kumar Trehan.
4. With regard to the properties mentioned in Schedule B, it was submitted that none of those goods were ever in possession of the deceased nor anything was left by plaintiff No. 2 at Lajpat Nagar house where the deceased had been residing at the time of his death. As stated, defendant No. 1 after remarriage with Smt. Madhu had been residing there and only her articles were lying at their residence. With regard to properties as mentioned in ScheduleA, it was submitted that property No. 77C/4, Mukesh Nagar, Delhi was owned by defendant No. 1 having been purchased with her own funds and she was the absolute owner of the same, therefore, even deceased Rajendra Kumar Trehan, had no right in the said property belonging to his mother.
5. With regard to shop bearing No. 210, Azad Market, Delhi, right of deceased regarding one fourth undivided share was also denied on the submission that the said property was purchased by Late Sh. Parmanand Trehan, deceased father of deceased Rajendra Kumar Trehan which was his sole and exclusive property. As further stated, Late Sh. Parmanand Trehan, died in 1974 leaving behind his widow and children.
6. With regard to flat at Kalkaji, New Delhi, it was submitted that the entire payment qua the allotment of said flat had not been made by him and substantial amount of loan had been raised by deceased from Page No. 4/23 State Bank of India and from other relatives and friends which amount is to be discharged firstly out of the assets of the deceased.
7. In written statement filed on behalf of defendant No. 4 i.e. Life Insurance Corporation of India, it was submitted that liability under the policy of deceased has not yet been admitted by the defendant Corporation which amount shall be disbursed as per the entitlement held by Court.
8. In written statement filed on behalf of defendant No. 5 - Delhi Development Authority, it was submitted that flat of category III was alloted to Sh. Rajender Kumar Trehan by Delhi Development Authority under the self finance scheme which ownership as stated shall be transferred in accordance with the orders to be passed by the Court after the payment of total amount due against the deceased. Defendant No. 5 was deleted from the array of parties vide order dated 23.01.1984.
9. In written statement filed on behalf of defendants No. 6A and 6B, as submitted, only non convertible fixed deposit amount of Rs. 6,290/ was lying besides the amount in name of Smt. Madhu Trehan. As also submitted Late Sh. Rajender Kumar Trehan, obtained loan of Rs. 90,000/ from Defence Colony branch of SBI for payment of installment to DDA for his house registered under self financing scheme.
10. Replications to the respective written statements of defendants were filed on behalf of plaintiffs wherein contents of plaint were reiterated and those of the written statement were denied.
11. After completion of pleadings, following issues were framed Page No. 5/23 on 27.07.1987 :
1) What is the property left by the deceased Shri Rajendra Kumar Trehan ?
2) What are the respective shares of the parties in the estate left by the deceased ?
3) Whether plaintiff No. 2 is entitled to inherit any part of the estate of deceased Shri Rajendra Kumar Trehan ?
4) Whether the suit has been properly valued for purpose of Court fee and jurisdiction ?
5) Whether defendants No. 2 to 6 are necessary or even proper parties. If not, what is its effect ?
6) Relief.
12. To prove their case, plaintiffs examined PW 1 Sonali Trehan.
Defendants No. 1 (a), (b) and (c) & 3 examined DW 1 Naresh Kumar Trehan ; DW 2 Kamal Naresh and DW 3 Smt. Suwarsha Verma. Defendants No. 6(A) and 6(B) examined D6AW1 Sh. Mukhtiar Singh and D6BW1 Mohammad Rahamatullah Shah.
13. Ex. PW 1/1 is photocopy of proposal form.
Ex. PW 1 /2 is photocopy of insurance policy.
Ex. PW 1/3 is certificate showing amount payable to heirs of policy holder.
Ex. PW 2/1 is statement of account reflecting due against Sh. R.K. Trehan in State Bank of India, Flyover Market, Defence Colony Branch.
Page No. 6/23Ex. PW 3/1 to Ex. PW 3/5 are photocopies of pay orders payable to Ms. Madhubala Trehan.
Ex. PW 3/6 is photocopy of FDR.
Ex. PW 3/7 is promissory note duly signed by Madhubala Trehan.
Ex. PW 3/8 is photocopy of loan account regarding loan bond by Ms. Madhu Trehan against the aforesaid FDRs.
Ex. DW 1/1 is certified copy of petition U/s 125 Cr.P.C. Ex. DW 1 /2 is certified copy of Judgment delivered in divorce petition.
Mark A is certificate of shop.
Ex. DW 1 /4 (colly.) is original lease deed dated 28.07.1965 and sale deed dated 13.10.1969.
Mark B is deed of relinquishment dated 25.10.2004. Ex. DW 1/6 is original sale deed dated 04.07.1959 in Urdu. Mark C is sale deed dated 22.10.2001. Ex. DW 2/1 is original Will.
Statement of housing loan of deceased Rajendra Kumar Trehan is Ex. D6B/W1/1.
Details of terminal benefits/provident fund etc. and liabilities of deceased Rajendra Kumar Trehan is Ex. D6B/W1/2.
Latest statement of account of housing loan of deceased Rajendra Kumar Trehan is Ex. D6B/W1/3.
14. I have heard the arguments & perused the record. Issuewise Page No. 7/23 findings are as under.
15. ISSUE NUMBER 3 : Plaintiff No. 2 was married to Late Sh. Rajendra Kumar Trehan. Plaintiff No. 1 was born out of the said wedlock. Vide the decree for dissolution of marriage, the marriage between plaintiff No. 2 and Late Sh. Rajendra Kumar Trehan, was dissolved on 31.10.1979. Copy of the said Judgment was placed on record by DW 1 and was exhibited as Ex. DW 1/1. The said decree was never challenged by plaintiff No. 2 and the factum of passing of said divorce decree as deposed by DW 1 was mentioned by plaintiff No. 2 herself in the petition U/s 125 of Cr.P.C. dated 27.07.1981.
16. As deposed by DW 1, after the dissolution of marriage of his brother Late Sh. Rajendra Kumar Trehan with plaintiff No. 2, he married Ms. Madhubala on 16.01.1989. Plaintiff No. 2 herself was not examined in the matter, however, the fact that decree of divorce was obtained by Late Sh. Rajender Kumar Trehan, was not disputed by the plaintiffs though the said decree of divorce as stated was fraudulently obtained in as much as no service of summons or notice was effected upon plaintiff No. 2.
17. PW 1 also admitted regarding the petition for maintenance having been filed by her mother i.e. plaintiff No. 2 prior to death of her father, though she was not aware of the records of the said petition. PW 1 denied that her mother deliberately chose not to contest the divorce proceedings filed by her father and stated that she was not aware of the same but admitted that she became aware when her Mama and her Page No. 8/23 mother's friend came to console her when exparte decree of divorce was granted. She admitted that no steps had been taken by her mother seeking setting aside of decree of divorce.
18. The decree of divorce having been obtained by deceased Sh. Rajendra Kumar Trehan and no challenge to the same by plaintiff No. 2 at any point of time, leads to finality of decree and binding upon the parties whereby the divorce was affected between the parties & plaintiff No. 2 lost the status of being wife of deceased Sh. Rajendra Kumar Trehan. Hence, she also lost her entitlement to inherit any part of the estate of her exhusband. She might have been entitled for the maintenance amount in pursuance to her petition U/s 125 Cr.P.C. but it is also not clear on record as to what was the fate of the petition U/s 125 Cr.P.C. filed by plaintiff No. 2. Even otherwise, the entitlement to claim the maintenance after divorce and quantification of the same has not been pleaded nor proved before this Court to consider her entitlement even qua maintenance from the estate left by deceased Sh. Rajendra Kumar Trehan.
19. Plaintiff No. 2 also sought recovery of the articles which were left by her at Lajpat Nagar house of her exhusband. As per the evidence brought on record, she left the said house in year 1972, the decree of divorce had also been obtained by her exhusband in the year 1979. Plaintiff No. 2 also filed the maintenance petition but no claim seems to have been filed regarding recovery of those articles till the time of filing of this petition in the year 1983. No evidence has been brought on record Page No. 9/23 regarding the articles mentioned in ScheduleB left by plaintiff No. 2 at her matrimonial home or possession of the same with defendants after the demise of her exhusband or even with her ex husband till time of his death so as to claim the same from them. On this count also, plaintiffs have not been able to bring anything on record. Hence, issue number 3 is decided against plaintiffs.
20. ISSUE NUMBER 1 : Plaintiffs have given the details of properties allegedly left by deceased Sh. Rajendra Kumar Trehan as mentioned in ScheduleA. With regard to items listed at serial number 7 to 19, no evidence has been brought or is available on record. Regarding other items, following is the discussion.
(I) With regard to item No. 1 i.e. duplex type flat alloted by DDA in favour of deceased Sh. Rajendra Kumar Trehan at Kalkaji Extension, New Delhi, parties are not at dispute that the said flat was alloted to Late Sh. Rajendra Kumar Trehan, though the entire payment of the said flat has not been made and possession of the said flat has also not been handed over till date. It is also not in dispute that substantial amount of loan was also raised by deceased Sh. Rajendra Kumar Trehan against the purchase of flat, from his employer State Bank of India which amount is required to be paid out of the estate of deceased. Therefore, after adjustment of liability of payment to DDA and against loan raised for purchase of said flat, the same shall be the part of assets left by deceased. (II) 1/4th UNDIVIDED SHARE IN HOUSE NUMBER 77C/4, MUKESH NAGAR, SHAHDARA, DELHI110032 : The abovesaid Page No. 10/23 property as stated by DW 1 was owned and possessed by his mother deceased defendant No. 1 which was purchased by her 52 years ago. The said property was sold by her during her life time to wife of defendant No. 3 by executing sale deed dated 22.10.2001. On the strength of above, it was submitted that deceased Sh. Rajendra Kumar Trehan or plaintiffs through him have got no right, interest or title in the said property.
The property was in the name of deceased defendant No. 1 i.e. mother, is not disputed fact on record. The contention of plaintiffs that the said property was purchased by father of parties in the name of deceased defendant No. 1 for the benefit of their father and his legal heirs was not proved on record by the plaintiffs, therefore, it is held that Late Sh. Rajendra Kumar Trehan did not acquire any right in the said property owned by deceased defendant No. 1.
(III) 1/4th UNDIVIDED SHARE IN SHOP NO. 210, AZAD MARKET, DELHI : The abovesaid property was in the name of father of deceased Rajendra Kumar Trehan who as admitted by DW1 was the sole owner of the said property. He had died in 1974 leaving behind defendant No. 1 and six children i.e. three sons including i.e. father of plaintiff No. 1, defendants No. 2 and 3 & three daughters i.e. defendants No. 1(A), 1(B) and 1(C). Mother of the parties expired on 23.02.2003 and after her death, all the rights, title and interest in the said shop of Azad Market were transferred in favour of DW 1 by his brother and other sisters by virtue of release deed dated 25.10.20014, as deposed by him. However, DW 1 in crossexamination admitted that no relinquishment deed of the Page No. 11/23 share in respect of the said property had been executed by defendant No. 2 and plaintiff No. 1 leading to conclusion of share of Late Sh. Rajendra Kumar Trehan in the said property intact which shall devolve upon his legal heirs as per their entitlement.
(IV) PROCEEDS OF LIFE INSURANCE POLICIES : The proceeds of insurance policies of Late Sh. Rajendra Kumar Trehan have not yet been paid to nominee of Late Sh. Rajendra Kumar Trehan. It is stated in written statement filed on behalf of Life Insurance Corporation of India that on 29.08.1983, a letter was received from plaintiff No. 1 stating that she is daughter of deceased and his legal heir. LIC on 04.10.1983 wrote a letter to Smt. Chander Kanta Trehan advising them to procure proper evidence of title to the assured's estate such as succession certificate in view of the dispute in the family. The said amount accordingly shall be payable as per the entitlement of parties. (V) TWO FIXED DEPOSIT RECEIPTS OF RS. 16,000/ HELD BENAMI IN THE NAME OF MS. MADHUBALA WITH SBI, DEFENCE COLONY, NEW DELHI : Wife of deceased Rajendra Kumar Trehan, namely, Madhubala Trehan also expired along with him in road accident. PW 3 S.K. Gupta brought the documents pertaining to amount payable to said Madhubala Trehan which were consisting of pay order, FDR and also stated about liability of loan by deceased Madhubala Trehan. Mother of Madhubala Trehan was made party in the instant matter as defendant No. 7 but there was no subsequent representation on her behalf in the proceedings. There is nothing on record to show Page No. 12/23 regarding any Will left by deceased Madhubala Trehan, therefore, properties or the dues payable to her, shall be governed by Section 15 of the Hindu Succession Act. There is nothing on record regarding the amount payable to deceased Madhubala Trehan as inherited by her from her parents side, therefore, in order of succession, amount payable to her after adjustment of loan amount shall now be receivable by heirs of her husband in terms of Section 15(1)(b).
In terms of record, Smt. Madhubala was working in State Bank of India and herself was earning. Legal heirs of her husband had no contribution in her life be it monetary or in form of love and affection, yet to the exclusion of her near and dear ones including her own mother will get the property left by her because of the continuation of unfair legislation which Parliament has not decided to mend so far. (VI) PROVIDENT FUND, GRATUITY, LEAVE WITH WAGES, UNPAID SALARY, PENSION AND OTHER FRINGE BENEFITS FROM STATE BANK OF INDIA : D6BW/1 Mohammad Rehamatullah Shah, retired Chief Manager of SBI exhibited the details of terminal benefits/provident fund etc. and liabilities of Sh. Rajendra Kumar Trehan as Ex. D6B/W1/2. He also brought on record latest statement of housing loan of Rs. 90,000/ obtained by Late Rajinder Kumar Trehan, according to which amount of Rs. 2,69,005/ is to be recovered against the amount of provident fund Rs. 9,06,435/ and gratuity at Rs. 40,504/. Therefore, after adjustment of the loan amount, rest of the amount remains payable to the LR(s) of deceased Rajendra Kumar Trehan.
Page No. 13/23Issue number 1 is answered accordingly.
21. ISSUE NUMBER 2 : It is not disputed that deceased Late Sh. Rajendra Kumar Trehan died intestate, therefore, his properties are to devolve upon, in order of inheritance amongst his legal heirs. Entitlement of plaintiff No. 2 has already been discarded while deciding issue number 3, therefore, as on the date of filing of the petition, legal heirs entitled to the estate left by deceased Late Sh. Rajendra Kumar Trehan were plaintiff No. 1 being his daughter and defendant No. 1 being his mother. The properties were consequently to be devolved upon, in equal share between plaintiff No. 1 and defendant No. 1. Defendant No. 1 herself died on 23.01.2003, during the pendency of the proceedings, in which eventuality, her estate was again to devolve upon her legal heirs including the daughter of predeceased son.
22. However, the reference was made to the Will dated 07.05.1993 executed by defendant No. 1. In terms of contents of the said Will, the entire share of deceased defendant No. 1 was to devolve upon defendant No. 3. The Will as stated by defendants' witnesses was executed in presence of Kamal Naresh, Suwarsha Verma and Kawal Jeet Singh Ahuja, Advocate which was a registered Will Ex. DW 2/1.
23. The authenticity of the Will was challenged by the plaintiffs by submitting that after the death of defendant No. 1, all the LR(s) were brought on record but no additional issue was framed. Neither defendant No. 3 amended his written statement on the basis of Will nor claimed the ownership of the share of defendant No. 1, therefore, proving of Will by Page No. 14/23 defendant No. 3, as argued, was beyond pleadings. Defendant No. 3 also did not take any objection when all the LR(s) of the defendant No. 1 were impleaded despite the fact that in the said Will, no share was bequeathed in favour of other LR(s) of defendant No. 1, except for defendant No. 3.
24. It was also submitted that even otherwise, Will was of no consequence, considering the major contradictions in the statement of DW 2 and DW 3 regarding the execution of Will before the Sub Registrar and regarding the presence of defendant No. 3 himself at the time of preparation and execution of the Will when he himself was the beneficiary.
25. It was also argued that defendant No. 3 was not able to prove the Will, therefore, attesting witnesses and as such the Will was not proved in view of the provision contained U/s 63 of the Indian Succession Act, and U/s 68 of the Indian Evidence Act.
26. Counsel for plaintiff also sought to draw the attention of the Court to the contents of the Will which were recited in English whereas deceased defendant No. 1 was stated to be only 8th passed by DW 3 and that she could read English but could not write though she was conversant with Hindi and Urdu language.
27. Counsel for plaintiffs relied upon Bharpur Singh and Ors. vs. Shamsher Singh, MANU/SC/8404/2008, wherein it was observed that "suspicious circumstances like the following may be found to be surrounded in the execution of the Will : (i) the signature of the testator may be very shaky and doubtful or not appear to be his usual signature Page No. 15/23
(ii) the condition of the testators mind may be very feeble and debilitated at the relevant time (iii) the disposition may be unnanatural, probable or unfair in the light of relevant like exclusion of or absence of adequate provisions for the natural heirs without any reason (iv) the dispositions may not appear to be the result of the testators free will and mind (v) the propounder makes a prominent part in execution of the Will (vi) the testator used to sign blank papers (vii) the Will did not see the light of the day for long (viii) incorrect recitals of essential facts."
28. Per contra, Counsel for defendant No. 3 sought reliance from following authorities :
Gopal Swaroop vs. Krishna Murari Mangal MANU/SC/0988/2010 wherein "Will was held to be duly executed when signed by testator in presence of attesting witnesses."
29. Savithri and Others vs. Kathiyayani Ama etc. 2007 (4) Kerala Series 623, "deprivation of due share of natural heirs by itself is not a factor which can point to suspicious circumstances regarding the execution of the Will and setting aside the same."
30. Pentakota Satyanarayana and Ors. vs. Pentakota Seetharantnam, MANU/SC/0819/2005 "every circumstance is not such, even active participation in execution of Will by propounders is by itself not sufficient to create any doubt about testamentary capacity and genuineness of Will."
31. In the instant case, as deposed by all the defendant's witnesses, Page No. 16/23 Will was prepared at the instructions of deceased defendant No. 1 and DW(s) denied that deceased defendant No. 1 signed the Will on the asking of defendant No. 3 without knowing the contents of the same.
32. Though, it is correct that there are minor contradictions here and there in the deposition of DW 1 and DW 3 regarding the execution of the Will, which are more in the form of natural variations, however, the fact remains that the attesting witnesses to the Will specifically deposed about the execution of Will by deceased defendant No. 1 of her own volition and knowingfully the contents of same. In terms of Will itself, contents of the same were read over to deceased defendant No. 1 in Hindi / Punjabi.
33. Further, none of the parties or witnesses stated or raised doubt about the sound disposing mind of executor of Will. The Will was got registered and signatures were also made before the Registrar. One of the attesting witnesses to the Will is daughter of the deceased defendant No. 1 who has also been excluded to be given any share in the Will. All the legal heirs of defendant No. 1 were impleaded on record after her death but none of them objected to or raised any objection regarding the valid execution of the Will by their deceased mother. It is also apparent from the record that plaintiffs and defendant No. 1 were not at cordial terms whereas in terms of contents of Will, the properties were bequeathed in favour of defendant No. 3 with whom the deceased defendant No. 1 had been residing till the time of her death. Therefore, merely because the other legal heirs have been excluded or the beneficiary of Will was also Page No. 17/23 present at the time of execution of the same, itself would not be the suspicious circumstance, sufficient to discard the Will considering the other aspects of matter.
34. The execution of Will having not been found surrounded with suspicious circumstances is held to be validly executed entitling the defendant No. 3 to claim the right over the properties bequeathed in his favour in terms of contents of the Will.
35. Counsel for defendant No. 3 further raised objection regarding the maintainability of the suit for partition of the properties having been filed by female which as argued is not maintainable as per Section 23 of the Hindu Succession Act. Amendment in the Act, was effected in the year 2005 whereby the daughters were granted equal right to seek partition of the dwelling unit as well, but as argued, since the suit was filed in the year 1983 and amendment having no retrospective operation, the suit to that extent becomes non maintainable.
36. Per contra, it was submitted by Counsel for plaintiffs that as held in Krishan Sharma vs. Raj Rani Bhardwaj and Ors. AIR 2013 Delhi 136, "consequent to the amendment in the year 2005, the Law applicable after 2005 was held good and suit cannot be dismissed though filed prior to amendment in the year 2005.
37. In Prakash and Ors. vs. Phulavati and Ors. Civil Appeal No. 7271 of 2013, it was observed by Hon'ble Apex Court that "the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such Page No. 18/23 daughters are born. Disposition or alienation including partitions which may have taken place before 20th December 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected, thereafter, will be governed by the explanation."
38. Instant matter is not based upon any plea of disposition or partition having taken place prior to year 2005. Besides that possession of DDA flat at Kalkaji Extension is yet to be handed over which property was the self acquired property of father of plaintiff No. 1 and cannot be termed as dwelling unit of the coparcenary/the Joint Family Holding.
39. The shop at Azad Market, Delhi is also not a dwelling unit, therefore, even otherwise, provision of Section 23 of Hindu Succession Act, is neither attracted nor applicable to the facts of the instant matter and plaintiff No. 1, therefore, cannot be deprived of her right to seek partition in the properties left by her deceased father.
40. Had the death of grandmother of plaintiff No. 1 preceeded the death of father of plaintiff No. 1, the said flat would have exclusively devolved upon the plaintiff No. 1 but here is her Uncle whose greed seems to have not been satiated despite getting many other properties even to the exclusion of other legal heirs of his parents. He wants not only the share in the said flat which he has been able to get only through his mother but also wants the exclusion of plaintiff No. 1 by taking the plea of the said flat being dwelling unit. The said plea of the defendant No. 3 already stands discarded and this Court is unhappily constrained to give him the share in the said flat only due to legal compulsions. Plaintiff Page No. 19/23 No. 1 and defendant No. 3 through his mother by virtue of Will in his favour are, accordingly, held entitled for equal share in properties left by deceased Rajendra Kumar Trehan.
41. ISSUE NUMBER 4 : As argued, the suit was not properly valued for the purpose of Court fee and jurisdiction. Counsel for defendant argued that plaintiff is claiming the relief in respect of 19 properties quoted in ScheduleA and 12 properties in ScheduleB which also contain several immovable properties but no specific value to the properties has been disclosed and given in plaint. As argued, plaintiffs themselves have shown the provident fund amount of Rs. 8,65,931/ which points out incorrect valuation by the plaintiffs.
42. Counsel for defendants No. 1(a), 1(b), 1(c) and defendant No. 3 placed reliance upon Sudershan Kumar Sethi vs. Pawan Kumar Seth and Ors. IA 9776/2000 in CS (OS) 710/2000 wherein Hon'ble High Court quoted the relevant extracts from the Judgment of Mohammad Ali that "the general principle of law is that in the case of coowners, the possession of one, is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession". In the instant case, the flat at Kalkaji is self acquired property of deceased father Page No. 20/23 of plaintiff No. 1 whereas with regard to the other property at Azad Market, there is no plea on behalf of defendants regarding exclusion of possession of plaintiff No. 1 or of her deceased father at any point of time, therefore, the said plea of Ld. Counsel for defendant No. 3 is also not tenable.
43. Plaintiffs in the plaint and in ScheduleA annexed stated about the proceeds of the life insurance policies, provident fund, gratuity etc. payable to deceased Rajendra Kumar Trehan but did not quantify the amount except for the LIC policies and fixed deposit receipts. The exact amount receivable came on record in the form of documents and evidence brought by the witnesses of the authorities concerned which after the demise of deceased Rajendra Kumar Trehan is payable to his legal heirs. Therefore, this plea of Ld. Counsel for defendants is also not found tenable.
44. The possession of flat at Kalkaji Extension, Delhi had not been handed over by Delhi Development Authority to even the deceased which is yet to be alloted and possession to be handed over, upon the payment of the charges. Therefore, the case of plaintiff No. 1 is at parity with other legal heirs who are also not in possession. Onus of this issue is upon defendants but in crossexamination of PW 1, she had not been suggested regarding any value other than as mentioned in plaint. Defendants themselves did not lead any evidence with regard to incorrectness of the assessment made by plaintiffs regarding valuation for the purpose of Court fees and jurisdiction. This issue, therefore, is Page No. 21/23 decided in favour of plaintiffs and against defendants.
45. ISSUE NUMBER 5 : Plaintiffs sought partition of DDA flat at Kalkaji Extension, Delhi, property No. 77C/4, Mukesh Nagar, Delhi and shop bearing No. 210, Azad Market, Delhi. As submitted by Counsel for plaintiffs, shop of Azad Market was in name of grand father of plaintiff No. 1 and house of Mukesh Nagar though was in name of defendant No. 1 but being the benami transaction, all the legal heirs of grand father are entitled for their respective shares and impleadment of defendants No. 2 and 3 who are sons of defendant No. 1 and real brother of father of plaintiff No. 1, therefore, are necessary parties in the matter.
46. As far as right of the legal heirs in the properties left by grand father of plaintiff No. 1 is concerned then the daughters were also the necessary parties having equal right in the said property left by grand father of plaintiff No. 1 who were not made parties in the matter but subsequently, due to demise of defendant No. 1, all of her legal heirs were brought on record, who were also the LR(s) of deceased grand father whereby this infirmity was cured.
47. As regard to defendants No. 4, 5 and 6, defendant No. 5 had already been deleted from the array of parties vide order dated 23.01.1984) whereas defendant No. 4 and defendants No. 6(A) and 6(B) were continued to be parties in the matter and rather the submission of defendants No. 6(A) and 6(B) for deletion of names was rejected by my Ld. Predecessor vide order dated 21.03.2007, observing that defendant No. 6 was custodian of funds and assets of deceased Rajendra Kumar Page No. 22/23 Trehan, therefore, there was no reason to delete defendants No. 6(A) and 6(B) from the array of parties. Similar would be the analogy applicable for defendant No. 4, hence, issue No. 5 is decided in favour of plaintiffs and against defendants.
48. Relief : In view of the discussion made herein above, preliminary decree is hereby passed. Plaintiff No. 1 is held entitled for half share in assets/properties left by deceased Rajendra Kumar Trehan and dues payable to him after adjustment of proportionate share of liabilities. Petitioner no. 1 is also held entitled for 1/7th share of property bearing no. 210, Azad Market, Delhi.
49. Decree sheet be prepared accordingly. Separate file be maintained for proceedings related to preparation of final decree. This file be consigned to record room after due compliance.
(SAVITA RAO) Addl. District Judge, (West01), Tis Hazari Courts, Delhi Announced in the open Court on 31.08.2016 Page No. 23/23