Delhi District Court
Ms. Kashish vs Sh Ravi Sachan on 27 February, 2016
IN THE COURT OF R.L. MEENA, ADDL. DISTRICT JUDGE02:
SOUTH WEST DISTRICT: DWARKA COURTS: NEW DELHI
CS no. 200/14
Unique Case ID No. 02405C0282252011
Ms. Kashish,
D/o Sh Ravi Sachan,
Through mother,
Ms. Poonam Sachan,
r/o1018, Swarashti Vihar,
Delhi34
...... Plaintiff
VERSUS
1 Sh Ravi Sachan,
s/o Late JKS Sachan,
c/o Dr, Gauri Shanker Sachan,
r/o Village and PO Jalapur,
District Kanpur, Dehat U.P
2 Sh Ashish Sachan,
s/o Late JKS Sachan,
r/o Village and PO Jalapur,
District Kanpur, Dehat U.P
3 Mr Sanshal,
Through Mother Smt Mallika,
CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.1/20
Mathew, r/o 53 (third Floor),
10th Main, Maruthi Nagar,
Malash Palya, Banglore,
Karnataka
4 Dr Gauri Shankar Sachan,
r/o Village and Post Jalapur,
District Kanpur( Rural) UP
5 Dr Ail Sachan,
r/o Flat no. 6, ESI Hospital Campus,
Sahibabad, DistrictGhaziabad, UP
6 Dr Yogendra Nath,
42, New Campus No. 16,
IIT New Delhi
7 Sh Shailendra Singh,
s/o Dr. Gauri Shanker Sachan,
124/65B, Block, ( Mithi Sadan)
(Thanewali Gali)
Govind Nagar, Kanpur UP
8 Parvesh Kumar,
s/o Ramesh Chander,
r/o House no. WZ276G/3B, Inderpuri,
New Delhi 110012
CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.2/20
Second Address
Parvesh Kumar
EG62, (GF)
Inderpuri, New Delhi ...... Defendants
Date of institution : 1.03.2006
Date of arguments : 12.02.2016
Date of judgment : 27.02.2016
Suit for partition, preemption, possession and
mesne profits
JUDGMENT
1. Present suit has been filed through mother of minor Kashish(plaintiff) for partition, preemption with possession, recovery of mesne profits against the defendants with following reliefs:
a)pass a preliminary decree for the partition of HUF properties as per the schedule annexed to the plaint.
aa) Pass a decree of preemption with possession in favour of the plaintiff and against defendant no. 1,2 CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.3/20 and 8 in respect of dwelling house, i.e. EG 62, Ground Floor, Inderpuri, New Delhi as described in Annexure P3, against payment of Rs 6 laks.
ab) Pass a decree of mesne profits @ Rs 5000/ p.m in favour of the plaintiff and against defendant no.1 and / or 8 in respect of House no EG 62, Ground Floor, Inderpuri, New Delhi12, w.e.f 10.3.2006.
b) Pass a final decree in respect of partition of immovable property as per the Schedule annexed to the plaint by metes and bounds in terms of the preliminary decree aforesaid as per the procedure laid down in CPC.
c) Interest pendent elite @ 12 % p.a on income and proceeds relating to the share of the plaintiff be also awarded.
d) Costs, if contested.
2. It is the case of the plaintiffs that she is the coparcener of the HUF alongwith all defendants including Karta Khandan being the great grand father ( defendant no.4) belonging to the Bansaras School governed my Mitakshra CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.4/20 School of Hindi Law.
3. It is the case of the plaintiff that she and her mother have been deserted by defendant no. 1 who has treated her with cruelty for over four years in addition to the demand of dowry etc. A complained to said effect has already been lodged with the police on 27/5/2005.
4. It is further case of plaintiff that her mother has been looking after to her since her birth on 20/11/2001 and her all expenses i.e school, medical treatment, maintenance are being incurred by her mother.
5. It is further case of the plaintiff that she has 1/4th share in dwelling house i.e Flat no.EG62 (Ground Floor), Inderpuri, New Delhi and 1/20th share in the immovable properties mention in the schedule annexed to the plaint.
6. It is further case of plaintiff that during the pendency of present suit, defendant no.1 sold the above said dwelling house by way of registered sale deed dated 10/3/2006 to the defendant no.8 against the sale consideration amount of Rs 8 lacs and defendant no.1 has also obtained a release deed from defendant no.2 executed and registered CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.5/20 on 25/1/2006 to the extent of his share( 50% therein).
7. It is further case of plaintiff that she is/was legally entitled to preemption within the meaning of section 44 and 52 of Transfer of Property Act r.w.sec 4 of Partition Act, 1893 by paying Rs 6 lacs as in case of transfer of the said dwelling house. It is further stated that plaintiff would have opted to purchase the share(s) of the defendant no.1 and 3 therein by paying the market value thereof Rs 6 lacs but defendant no.1 did not take any initiative and callously and illegally deprived her dwelling house.
8. It is further case of plaintiff that her share could not be validly transfered to the third party without the leave of the court and particularly when she had already been deserted along with her mother by defendant no.1 who already received notice u/s 125 Cr.P.C issued by Ms Barkha Gupta, the then Learned. MM, Rohini Courts,New Delhi.
9. It is further case of plaintiff that defendant no.4 is a very old person above 80 years who is unable to enforce the CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.6/20 discipline within the family members especially plaintiff's father (defendant no.1) who is very irresponsible and callous parent and feels that she( plaintiff) is a liability. Hence the present suit has been filed.
10.It is worth to note here that defendants no. 1 to 7 were proceeded Ex parte vide order dated 16/4/2007.
11. Defendant no.8 filed written statement wherein he raised many preliminary objections with this effect that present suit does not have any cause of action, suit is not properly valued,process is being misused, court does not have territorial jurisdiction as some of the immovable properties are lying outside the jurisdiction of this court. On merit, it is stated by the defendant that he purchased the property i.e Flat no.EG62 (Ground Floor), Inderpuri, New Delhi from the defendant no.1 vide registered sale deed dated 10/3/2006. It is further stated that he, at the time of purchasing the said property, carried out due diligence with respect to suit property and found that there was no defect in the title of defendant no.1 in respect of suit property. It is denied by the defendant no. CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.7/20 8 that plaintiff was having any share in respect of above said property to the extent of 1/4th share. It is further stated that he was not having any knowledge about the pendency of suit. Defendant has further denied other material fact of the plaint and prayed that the present suit be dismissed.
12. After pleading of parties, following issues were framed by Learned Predecessor on 15/10/2008:
1) Whether the properties being Flat no. EG 62, Ground Floor, Inder Puri, New Delhi and house and agriculture land of 60 Bighas at village Jalapur, District Kanpur, UP were are the properties of the HUF? ..OPP
2) If the issue No.1 is decided in favour of the plaintiff, whether the plaintiff has any share in the aforesaid HUF and if so to what extent? ...OPP
3) Whether the suit is correctly valued for thepurpose of court fee and jurisdiction? ..OPP
4) If the plaintiff is found to have any share in CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.8/20 property No. EG 62, Ground Floor, Inder Puri, New Delhi, whether the plaintiff has any right of preemption with respect to the same? ...OPP
5) Whether the claim, if any, for preemption is within time? ....OPP
6) Whether the plaintiff is entitled to any mesne profit? If so at what rate and for what period and against which of the defendants? ...OPP
7) Relief.
13.I have heard final arguments advanced at bar by Sh.
Dinesh Dhaiya counsel for the defendant no.8 and perused the record carefully.
14. It is worth to note here that counsel for plaintiff has not been appearing for the last two dates for addressing the arguments. Even today he has been given liberty for addressing the final arguments till 2 p.m but he has not appeared. However, the written submissions of plaintiff is on record.
15.Firstly, I take up issue no.1 which is as under:
CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.9/20 Whether the properties being Flat no. EG 62, Ground Floor, Inder Puri, New Delhi and house and agriculture land of 60 Bighas at village Jalapur, District Kanpur, UP were are the properties of the HUF? ..OPP
16. The onus to prove this issue was fixed upon the plaintiff.
Plaintiff, in order to discharge the said onus examined her mother(PW1),her maternal grandfather(PW2) and Ms Nisha Verma (PW3). Plaintiff's mother (PW1) has also relied upon following documents:
(i) Complaint dated 27.05.2005 Ex PW 1/1.
(ii) Birth certificate of plaintiff Ex PW 2.
(iii) Judgment and decree dictated 08.02.2007 Ex PW1/3.
(iv) Certified copy of sale deed Ex. PW 4.
(v) Certified copy of release deed Ex PW 1/5.
(vi) Copy of sale deed Ex. PW 1/6.
(vii) Certified copy of Khatoni and its English translation Ex PW 1/7 & 8.
(viii) Report of tehsildar Distt. Kanpur regarding CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.10/20 valuation of agriculture land Ex PW 1/9.
17. During the course of arguments counsel for defendant no.
8 submits that plaintiff has claimed for partition of two properties i.e. situated at Delhi and District Kanpur(UP). It is further submitted that the property of Kanpur(UP) is beyond the territorial jurisdiction of this court, therefore, no partition decree can be passed in respect of said property. Moreover, the said property situated at Kanpur measuring 60 Bighas at village Jalalpur, District Kanpur (UP) is the agricultural land and this court does not have any jurisdiction as Revenue Court is having jurisdiction regarding partition of agricultural land. It is further argued that since plaintiff's mother (PW1)and her maternal grand father (PW2) have also admitted in their course of cross examination that they do not have documents to show that property in question is a part of any HUF property, therefore, plaintiff has failed to prove her case in respect of suit properties. Even otherwise, plaintiff has no right over the suit property as suit property( Delhi) is inherited by the defendant no.1 in CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.11/20 view of section 8 of the Hindu Succession Act, 1956, therefore,he is/was having absolute right for transferring the said suit property in favour of defendant 8. Counsel for defendant no.8 in support of said arguments has also relied upon following citations:
i) Amit Johari Vs. Deepak Johari 2003 IV, AD (Delhi) 838
ii) Virender Kumar Garg Vs. Sh Ravinder Kumar Garg, 2013 IX AD (Delhi) 657.
iii) Pratap Vs. Shiv Shankar,2009 X AD (Delhi)97.
18.It is prayed by the counsel for defendant no.8 that since plaintiff has failed to prove his case, therefore, present suit is liable to be dismissed.
19. After having gone through the submission of the counsel of defendant no. 1 and perusal of written submission of plaintiff, I find that plaintiff has filed the present suit for partition against her father (defendant no. 1 and other relatives) on the basis that suit properties are a HUF properties therefore, she is having share in the said properties.
CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.12/20
20.It is worth to note here that one of the property i.e Agriculture land measuring of 60 Bigha situates at village Jalapur, District Kanpur, UP. It is settled proposition of law that civil courts does not have any jurisdiction in respect of partition of agriculture land, therefore, this court does not have jurisdiction for granting the relief of partitions. Reliance can be placed in the law laid down in case titled as Puttoo Lal Vs. Ram Sewak Decided on 14/7/1972 by Hon'ble Allahabad High Court.
21. Now coming on the second property ie. EG 62, Ground Floor, Inder Puri, New Delhi. It is claimed by the plaintiff's counsel in the written arguments that since the said property was purchased by the grandfather of the plaintiff, therefore, she is having share in the said property in view of Section 6 of the Hindu Succession Act.
22.On the contra counsel for defendant no.8 submits that plaintiff's mother PW1 and her maternal grandfather PW2 have deposed in the course of cross examination that they do not have any document to show the property CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.13/20 in question was the part of HUF property. Even otherwise the plaintiff has inherited the said property in view of section 8 of the Hindu Succession Act, 1956.
23.After having gone through the rival submissions of the parties, I find that it is admitted fact that plaintiff's mother and other witnesses have not brought on record any document to show that suit property situates at Delhi is a HUF property. Further, I find that defendant counsel is having force in his submission that as per section 8 of Hindu Succession Act,1956 plaintiff's father( defendant no.1) has inherited the suit property of Delhi after death of his father. Counsel for defendant no.8 has also rightly relied upon the law laid down in the following citations:
(i)Amit Johari Vs. Deepak Johari 2003 IV, AD (Delhi) 838
(ii) Pratap Vs. Shiv Shankar,2009 X AD (Delhi)97.
24.Hon'ble High Court of Delhi has observed in Amit Johari's case with this effect that ;
"It has been held in a series of judicial pronouncements that under section 8 of the CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.14/20 Act, a property that devolves on a Hindu cannot be treated as an HUF property in his hands, Visavis his own sons. As observed by this Court in the case of Bharat Bhushan Maggon Vs. Joginder lal and Ors ( CS(OS) No. 116/2012), decided on 15.10.2012, the Hindu Succession Act lays down rules of succession in the case of males. The first rule is that the property of a male Hindu dying interstate shall devolve according to the provisions of Chapter II, as stipulated in the aforesaid provision. Sub section (a) of Section 8 of the Act provides that the property of a male dying interstate shall devolve firstly upon the heirs, being the relatives specified in Class I of the Schedule. The List of heirs mentioned in Class I of the Schedule shows that it includes sons, daughters etc as also son of the pre deceased son, but does not specifically include the grandson, being the son of a living son. Under the Hindu law, as soon as a son is born, he gets a share in his father's property and becomes a part of the coparcenery. Such a right accrues in favour of the son by virtue of his birth and not on the date of demise of the father or inheritance from the father. However, under Section 8 of the Act, the property that devolves on a Hindu would not be an HUF property in his hand, visa vis his own sons.
CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.15/20
25. Hon'ble High court of Delhi has also observed in para no. 8 of Pratap Singh's case with this effect that: " A single judge of this court in the case of Rahul Behl and others Vs. Smt Ichayan Behl and others reported in DRJ 1981 (21) 205 followed the aforesaid judgment of the Supreme Court and rejected the plaint of the plaintiff therein, who had filed a suit for declaration against their grandmother and their father on the ground that the residential house situated in Greater Kailash Part I was a self acquired property of their grandfather and upon his demise, the property fell into HUF and become a coparcenery property, thus resulted in plaintiffs acquiring a share therein as coparceners on their birth. On an application filed by defendants therein seeking rejection of plaint under order 7 Rule 11CPC , the court held that father of the plaintiffs acquired a share in the suit property in his individual capacity as a heir of his deceased father and not as a coparcenery property. Thus by applying the provisions of section 8 of the Act, the single judge held that defendant no.2 therein alone inherited the property to the exclusion his sons because the said property devolved on him in his individual capacity and became his self acquired property, and CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.16/20 therefore, could not form a part of or become a coparcenery property.
26.It is worth to note here that the aforesaid Principal of law is squarely applicable to the facts of the case in hand. In the present case,defendant no.1 who is the father of plaintiff has inherited the suit property(Delhi property) from his father to the exclusion of her daughter (plaintiff) because the said property devolve on him in his individual capacity and same became his self acquired property, therefore, said property cannot be said as a coparcenery property.
27. With the said observations, I am of the view that plaintiff has failed to show/ prove that suit property situates at Delhi is a HUF property, therefore she is not entitled for relief of partition. With these observations,issue no.1 is decided in favour of defendant no.8 and against the plaintiff.
21. Now I take up the issue no.2 which is as under: If the issue No.1 is decided in favour of the plaintiff, whether the plaintiff has any share in the aforesaid CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.17/20 HUF and if so to what extent? ...OPP
22. As I have already observed in the issue no.1 that plaintiff has failed to prove that suit property situates at Delhi is HUF property, therefore, she does not have any share in the subject property.
23.Now coming on the third issue which is as under: Whether the suit is correctly valued for the purpose of court fee and jurisdiction? ...OPP
24.Since, plaintiff has neither brought any documentary evidence on record nor argued that she has correctly valued her suit for purpose of court fee and jurisdiction, therefore, this issue is also decided in favour of defendant no.8 and against the plaintiff.
25.Now coming to the issue no.4 and 5. The same are taken together as both the interlinked to each other. Q4 If the plaintiff is found to have any share in property No. EG 62, Ground Floor, Inder Puri, New Delhi, whether the plaintiff has any right of pre emption with respect to the same? ..OPP CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.18/20 Q5 Whether the claim, if any, for preemption is within time? ...OPP
26. Since, I have already observed that plaintiff has failed to prove that suit property situates at Delhi is HUF property, therefore, now it can be said that she does not have any right to preemtpion in the suit property i.e. EG 62, Ground Floor, Inder Puri, New Delhi. With these observations issue no. 4 and 5 are decided in favour of defendant no.8 and against the plaintiff.
27. Now coming to the issue no.6 which is as under: Q6 Whether the plaintiff is entitled to any mesne profit? If so a what rate and for what period and against which of the defendants? ...OPP
28. Since, I have already observed that plaintiff has failed to show that suit property situates at Delhi is a HUF property, therefore, she is not entitled for any mesne profit. With these observations issue no.6 is decided in favour of defendant and against the plaintiff.
29. Relief.
CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.19/20
30.Since, I have decided all issues in favour of defendant no. 8 and against the plaintiff, therefore, she is not entitled for any relief. Accordingly, suit of plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to record.
Pronounced in the open (R.L.Meena)
court on 27.02.2016 Addl. District Judge02/SouthWest,
Dwarka Courts Complex, New Delhi
CS no. 200/14 Kashish Vs. Ravi Sachan & Ors Page no.20/20