Delhi District Court
Smt Sneh Lata Khetarpal vs Anil Khetrapal on 28 February, 2017
IN THE COURT OF SH. RAKESH KUMARIV, ADJ06
WEST DISTRICT,TIS HAZARI COURTS
CS No. 12388/16
Surender Kumar
Through Lrs
1. Smt Sneh Lata Khetarpal
W/o Late Sh Surender Khetarpal
R/o A2/157, Prateek Apartments
Paschim Vihar, Delhi110063
2. Ms. Tanya Khetarpal
D/o Late Sh Surender Khetarpal
R/o A2/157, Prateek Apartments
Paschim Vihar, Delhi110063
.........Plaintiff
Versus
1. Anil Khetrapal
S/o Late Sh Om Prakash Khetarpal
R/o C34, Vishal Enclave, Rajouri Garden
New Delhi110007
2. Sh. Gulshan Kumar Khetarpal
S/o late Sh Om Prakash Khetarpal
R/o C2/282, Janakpuri
New Delhi
Also at
242, Old Lajpat Rai Market, Delhi
CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page1/36
3. Smt Renu Manocha
W/o Sh Ashok Manocha
D/o Late Sh Om Prakash Khetarpal
R/o E2, Preet Vihar,
New Delhi
...... Defendants
Date of Institution:19.03.2010
Date reserved for Judgment : 30.01.2017
Date of Judgment :28.02.2017
JUDGMENT
1. By filing the present suit, the plaintiff seeking to pass a preliminary decree in respect to the one fourth share in the property bearing no. C34, Vishal Enclave, Rajouri Garden, New Delhi total measuring 240 sq yards and property bearing shop no. 313, Old Lajpat Rai Market, Delhi110006 (hereinafter called as property no. A and property no. B respectively) and to pass decree of possession on the ground that plaintiff and defendant no. 1 & 2 are son of Late Sh Om Parkash Khetarpal and Smt Santosh Kumari and defendant no. 3 is daughter of Late Sh Om Parkash Khetarpal and Smt Santosh Kumari as such plaintiff is real brother of defendants. It is contended CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page2/36 that mother and father has expired on 07.04.1999 and 19.05.1999 respectively. After the death of the parents, plaintiff and other defendants became coowner in the property in question for one fourth share in the properties in question A and B. It is also contended that during life time of the parents of the parties and after death of the parents no partition has been taken place between the parties in respect to the properties in question orally or in writing till date. It is contended that when in the first week of February 2010 plaintiff requested the defendants to partition in property in question A and B by metes and bounds, amicably and peacefully but defendant have refused to do the same on one pretext or another even request through near, dear and relatives but all thing in vain. It is also contended that on 23.02.2010 plainiff had given representation to the MCD while requesting not to mutate the property in question A in favour of defendant no 1. Lastly it is also contended that on 28.02.2010, plaintiff and his wife went to the defendants and humbly requested to partition the property in question A and B but they refused and rather given the threat to the plaintiff that they will part possession of the properties in question A and B at any point of time as such intend to create third party interest, resulting into filing the present CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page3/36 suit.
2. On the other hand, the defendant no 1 has filed his written statement, (i) in the primarily objection qua dismissal of the suit has been prayed on the ground that plaintiff has no locus standi to file the suit since the plaintiff and defendant no 2 and 3 and had already been relinquished their rights in their property in question "A" through registered relinquished deed dated 05.04.2000 in favour of defendant no 1 and property in question B had been sold by the father of parties to Sabina Khetrapal wife of Sh Anil Khetrapal, defendant no 1 as such plaintiff neither is the coowner nor have any right title interest of any kinds in the property A and B.
(ii) Suit is bad of misjoinder of necessary party as defendant no 2 and 3 have no right.
(iii) The suit has been filed without cause of action. Hence, suit is liable to be dismissal Under rule 7 Rule 11CPC.
(iv) The suit has been filed by the plaintiff with ulterior motive for gratification.
(v) The suit has not been properly valued for the parties of court fees and jurisdiction.
CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page4/36(vi) Plaintiff is not in action and constructive position over the suit property.
(vii) Lastly preliminary objection had been taken the property bearing no. G140, Vikas Puri, Delhi was purchased in the name of plaintiff and property bearing no C 2/282, Janakpuri, New Delhi in the name of defendant no 2 by the father of the parties out of his own fund and income. Therefore, defendant no 2 had relinquished their rights in favour of defendant no 1 in respect to the property in question A.
3. WS on behalf of defendant no. 2 & 3 also filed wherein almost similar objections have been taken. In preliminary objection, it is specifically averted that plaintiff and defendant no. 2 & 3 have already relinquished their rights in the property in question A by a registered deed of Relinquishment dated 05.04.2000 in favour of defendant no. 1 and the property in question B had already been sold by father of the parties to Smt Sabina Khetarpal wife of Sh. Anil Khetarpal by registered agreement to sell, receipt and a Will dated 31.07.1998. Other preliminary objections are taken as similar as to defendant no.1. On merits, all the contents of the plaint have been denied with further request to dismiss the suit with heavy cost.
CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page5/364. Replication filed by plaintiff wherein plaintiff has reiterated all the contents of the plaint.
5. Upon completion of the pleadings, vide order dated 01.12.2010 following issues have been framed: Issue no 1: Whether the plaintiff is entitled to the relief of preliminary decree of partition in respect of suit property bearing no. C34, Vishal Enclave, Rajouri Garden, New Delhi and shop no. 313, Old Lajpat Rai Market, Delhi ? OPP Issue no.2: Whether the plaintiff is entitled for decree of permanent injunction ? OPP Issue no.3 : Whether the plaintiff has already relinquished his right by registered deed of reliquishment deed dated 05.04.2000 in favour of defendant no. 1 in property no. C 34, Vishal Enclave, Rajouri Garden, New Delhi ? OPD no1 Issue no.4 : Whether the father of the parties late Sh. Om Parkash has sold the shop no.
313, Old Lajpat Rai Market, Delhi to the wife of defendant no. 1 ? OPD No. 1 CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page6/36 Issue no.5 : Whether the suit is bad for mis joinder of necessary parties ? OPD No. 1 Issue no.6 : Whether the suit has not been property valued for the purpose of court fees and jurisdiction ? OPD No. 1 Issue no.7 : Whether the plaintiff has no locus standi to file the present suit ? OPD Issue no.8 : Relief.
6. In support of his case, plaintiff has examined himself as PW1 by way of affidavit EX.PW1/A, Ms Sneh Khetarpal as PW2 by way of affidavit Ex.PW2/A. PE closed vide order dated 25.11.2011.
7. Defendant no.1 has examined himself as DW1 by way of affidavit Ex.DW1/A, Sh Dharambir Khetarpal as DW2 (who is attesting witness of RD in favour of defendant no.1 ), Sh Harish Chander as DW3 (who is attesting witness to the CD in favour of wife of defendant no. 1). DE closed vide order dated 07.07.2014.
8. Ld counsel for defendant contended that defendant no. 1 has not CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page7/36 disputed in respect to the fact that plaintiff has not executed relinquishment deed in favour of defendant no. 1. In response to the arguments qua fact, defendant no. 1 failed to explain other beneficiaries of the RD, defendant no. 2 who allegedly executed RD and in providing of RD allegedly/having been executed by D2 & 3, only one attesting witness Sh Dharamvir has been examined. Ld counsel for defendant contended that defendant no. 2 & 3 has already been given statement qua relinquishment deed has been executed in favour of Defendant no. 1 on 01.12.2010.
Ld counsel further contended that suit has not been properly valued and proper court fee has not been paid keeping in view the fact that plaintiff admittedly has not been in possession and since apart from record partition, possession and permanent injunction ie consequential relief for which she is supposed to pay ad volerum court fee on the claim. Opposed by ld counsel for plaintiff stating that plaintiff being coowner not supposed to pay court fee as per submission and objection of ld counsel for defendant.
Date of death of father of parties: 19.05.1999
Date of death of Mother of parties: 07.04.1999
CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page8/36
As per contention, it is contended that property is in the name of father of parties who executed Will in favour of defendant no. 1 in respect to property no. C34, Vishal Enclave. Ld counsel for defendant further submitted that to take precaution relinquishment deed were also obtained/reported to be executed by other defendants and plaintiff in favour of defendant no. 1 alongwith affidavit of the parties.
It is also contended by defendant that though it is case of plaintiff that mother is the owner of the property in question but no document has been filed alongwith plaint and even in support of evidence lead by the plaintiff.
Even during crossexamination, PW1 admitted that he has not filed any documents showing mother of the parties was owner of the property in question. Moreover PW1 also admitted that property in question was purchased by father of parties in 1978.
Ld counsel also pointed out that in WS in para no. 4 of preliminary objection it is specifically mentioned that father has purchased property no. G 140, Vikas Puri, Delhi in name of plaintiff and property no. C2/282, Janakpuri in the name of deft no. 2 which is replied by plaintiff in replication stating that property was being CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page9/36 purchased out of sale transaction of Jewellery hence failed to prove that property was purchased alone.
Submission counter opposed by ld counsel for plaintiff stating that defendant himself failed to prove or file any document in respect to the property no. C34 Vishal Enclave has been given to plaintiff after any settlement or examine any witness/relative which can substantiate the contention of defendant. Ld counsel for plaintiff pointed out the crossexamination of DW1 dated 07.08.2013
9. I have heard ld counsel for the parties and perused the case file.
10. Prior to proceed further here it is important to consider that in the matter of Sunny (Minor) and Ors. Vs Raj Singh and Ors. CS (OS) No. 431/2006 Hon'ble High Court in para no. 6 and 7 has held that : " At the outset, it is necessary to refer to the ratio of the judgment of the Supreme Court in the case of Yudhister Vs. Ashok Kumar , MANU/ SC/0525/1986 : (1987) 1 SCC 204 and in para 10 of the said judgment the Supreme Court has made the necessary CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page10/36 observations with respect to when HUF properties can be said to exist before passing of the Hindu Succession Act, 1956 or after passing of the Act in 1956. This para reads as under: "10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen and Ors.
MANU/SC/0265/1986 : [1986] 161ITR370 (SC) where one of us (Sabyasachi Mukherji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, , his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page11/36 him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not ake it as Kar(ta) of his own undivided family but takes it in his individual capacity. At page 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. Pages924926 as well as Mayne's on Hindu Law 12th Edition pages 918 to 919. Shri Banerji replied on the said observations of Mayne on Hindu Law, 12th Edn. at pages 918919.
This Court observed in the aforesaid decision that the view expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Adhra Pradesh High Court appeared to be correct and unable to accept the view of the Gujrat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn page CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page12/36
919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under section 8 of the Hindu Succession Act, 1956 would be HUF in his hand visavis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellant authority was right in holding that the respondent was a licensee of his father in respect to the ancestral house".
7. (i) As the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessorsininterest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page13/36 him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a selfacquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to 'A'. After passing of the Hindu Succession, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a selfacquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining selfacquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successorsininterest upto the three degrees would have a right. The second exception to the property in the hands of a CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page14/36 person being not self acquired property but an HUF property is if after 1956 a person who owns a selfacquired property throws the self acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
Further in the matter of Surender Kumar Vs. Dhani Ram and others reported as 227 (2016) Delhi Law Times 2017, Hon'ble High Court has held in para no. 5,6 and 7 that"
5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, 1986 (SLT Soft) 14 = (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page15/36 into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, 1986 (SLT Soft) 209= (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956 inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the case of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956 and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page16/367. On the legal position which emerges pre 1956 ie before passing of the Hindu Succession Act, 1956 and post 1956 ie after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) & Anrs. Vs Sh. Raj Singh & Ors., 225 (2015) DLT 211 = CS (OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovabe property of such a person by his successorsininterest is no doubt inheritance of an 'ancestral' property but the inheritance is as a selfacquired property in the hands of the successors and not as an HUF property although the successor(s) indeed inherits 'ancestral' property I.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page17/36 family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc., of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order 6 Rule 4, CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners, etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparceners, etc will have a right to seek partition of the properties.CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page18/36
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener, etc of an HUF was entitled to partition of the HUF property.
11. Further, for the purpose of court fee in a case for partition, law is well settled. The Court fees that is required to be paid by the plaintiffs, for seeking the relief of partition of the suit properties by metes and bounds, has to be examined in the context of Section 7 of the Court fees Act, 1870 which prescribes computation of fees payable in suits. The relevant extract of Section 7 is reproduced hereinbelow:--
"7. Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
......
(iv) In suits--
.....
to enforce a right to share in joint family property--(b) to enforce the right to share in any property on the ground that it is joint family property;CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page19/36
.....
according to the amount at which the relief sought is valued in the plaint or memorandum of appeal."
Further, Section 8 of the Suits Valuation Act, 1887 stipulates that in Suits other than those referred to in the Court fees Act, Section 7, paragraphs V, VI, IX and X, Clause (d), Court fees is payable ad valorem, the value as determinable for the computation of Court fees and the value for purpose of jurisdiction shall be the same. Thus, Section 7(iv)(b) of the Act prescribes the Court fees at which the relief sought is valued in the plaint and under Section 8 of the Suits Valuation Act, 1987, the plaintiff is required to value the Suits for the purpose of Court fees and jurisdiction identically except for the exceptions provided for under Section 7 of the Court fees Act, 1870.
12. It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the coowner of the property sought to be partitioned, fixed court fees would be payable under Article 17(vi) of Schedule II of the Court fees Act presuming the joint possession of the plaintiff even if the CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page20/36 plaintiff is not in actual possession. It is because of the reason that in the case of coowners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad valorem court fees on the market value of this share as provided under Section 7(iv)(b) of the Court fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession.
13. Once there is a complete ouster of a joint owner from possessory management of or any other direct involvement in the affairs of immovable properties, it would be necessary for such a person to pay the requisite advalorem court fees. In the case entitled Sudershan Kumar Seth v. Pawan Kumar Seth & Ors., reported as 124 (2005) DLT 305, it was held that it is settled law that in order to decide as to what relief has been claimed by the plaintiff, the entire plaint has to be read and only on perusal thereof can it be inferred that the plaintiff is in possession of any of the properties to be partitioned, and if so, then the court fees is payable under Article 17(6) of Schedule II of the CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page21/36 court fees Act, i.e., fixed court fees at the time of institution of the suit. However, if the conclusion is contrary thereto, then the plaintiff has to pay the court fees under Section 7(iv)(b) of the court fees Act, i.e., on the value of the plaintiff's share. Reference in this regard can be given of pronouncements in Jamila Khatoon v. Saidul Nisa, AIR 1999 Del. 48; Smt. Prakash Wati v. Smt. Daywanti, 42 (1990) DLT 421=AIR 1999 Del. 48; Ms. Ranjana Arora v. Satish Kumar Arora, 80 (1999) DLT 537; Harjit Kaur & Ors. v. Jagdeep Singh Rikhy, 116 (2005) DLT 392=2004 (VII) AD (Del.) 567; Rajiv Oberoi & Ors. v. Santosh Kumar Oberoi & Ors., 2005 (80) DRJ 120 & Smt. Sonu Jain v. Shri Rohit Garg & Ors., 128 (2006) DLT
633).
Therefore, in view of above said discussion, if on reading the plaint and the evidence of plaintiff, it is consistent case of the plaintiff that he is in possession of property in question, in such situation, the case would be covered under Article 17(6) of Schedule II of Court Fee Act, and therefore, fixed court fees is to be furnished. Ld. Counsel for the plaintiff has rightly relied upon the judgment of Delhi High Court in "V.S.K.Sood vs. Veer Surinder Singh Berri " decided on CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page22/36 26.08.2013 LAWS (DLH) 2013 8 164.
14. My issuewise finding is as hereunder: ISSUE NO 6 Whether the suit has not been property valued for the purpose of court fees and jurisdiction ?
This issue is being taken up first as same was framed on the objection taken on behalf of defendant to the effect that suit has not been properly valued for the purpose of court fees. Plaintiff was required to furnish court fee on advalorum valuation of subject matter of the suit, for the purpose of relief of partition and declaration.
Although, plaintiff is seeking relief of partition by metes and bounds for oneforth share in the property in question "A" and "B" along with relief of possession of property in question upto his 1/4th share. Evidently, these two reliefs are overlapping. If plaintiff is seeking the relief of partition, in case of the plaintiff is proved by necessary implication his share of ownership in the property would have automatically ascertained. Without commenting much on this CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page23/36 aspect, however, for the purpose of court fee in a case for partition, law is well settled. The Court fees that is required to be paid by the plaintiffs, for seeking the relief of partition of the suit properties by metes and bounds, has to be examined in the context of Section 7 of the Court fees Act, 1870 which is also discussed in para no 11. Admittedly in the present case plaintiff not been residing in the property in question "A" and "B" as such he has completely ouster of a joint owner from possessory management of or any other direct involvement in the affairs of immovable properties, it would be necessary for such a person to pay the requisite advalorem court fees. In the case entitled Sudershan Kumar Seth v. Pawan Kumar Seth & Ors., reported as 124 (2005) DLT 305. After taking into consideration the facts and circumstances as well as evidence led by the parties I am of the considered view that plaintiff has not correctly valued for the purpose and court fees and jurisdiction for partition as only fix court fees of Rs 200/ has been paid. Hence, this issue has been decided partly in favour of plaintiff and partly in favour of defendant.
CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page24/3615. ISSUE NO 3,5 and 7 Issue no.3 Whether the plaintiff has already relinquished his right by registered deed of reliquishment deed dated 05.04.2000 in favour of defendant no. 1 in property no. C34,Vishal Enclave, Rajouri Garden, New Delhi ? OPD no1 Issue no.5 Whether the suit is bad for mis joinder of necessary parties ? OPD No. 1 Issue no.7 Whether the plaintiff has no locus standi to file the present suit ? OPD The onus to discharge these issues have been casted upon defendant no. 1 and defendent. In discharge the onus, it specifically deposed by DW 1 that plaintiff has no right to file the present suit specially when plaintiff as well as defendant no. 2 & 3 executed a Registered relinquishment deed which is Ex PW1/D1 in favour of defendant no. 1 in respect to the property in question A and so far as property in question B is concerned, wife of plaintiff has purchased from father of CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page25/36 plaintiff and defendant no. 1, as such he(plaintiff) has no locus standi to file the present suit. There is no such objection/pleadings/evidence has been raised/ led in respect to the fact that how the Will allegedly executed by father of plaintiff and defendant no. 1 in favour of defendant no. 1 upon which Conveyance Deed Ex DW1/PX2 has been executed subsequently in favour of defendant no. 1, as such property in question A has been mutated in the name of defendant no. 1 and further during crossexamination of DW1, it had been denied by the DW1 that mother of plaintiff and defendant no. 1 was the owner of the property in question A. It is further wrong to suggest that father of the plaintiff and defendant no. 1 has no right to executed any Will in respect to the property in question A".
Since in the present case it is also contended by plaintiff that father of plaintiff and defendant no. 1 has never executed any Will dated 26.06.1997 in favour of defendant no. 1 or if there is any Will that was forged and fabricated but it is matter of fact that defendant contended that on the basis of Will, Conveyance Deed dated 30.07.2010 EX.DW1/PX2 was executed by DDA in favour of defendant no. 1. It is also contended that, not only on the basis of Will dated 26.06.1997 property in question A has been mutated in favour CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page26/36 of defendant no. 1 but also on the ground that plaintiff had executed Registered relinquishment deed dated 05.04.2000 in favour of defendant no. 1 EX.PW1/D1.
It is important to note here that further during cross examination of plaintiff/ PW1 Sh Surinder Kumar, Registered relinquishment deed has been put which is marked as Ex PW1/D1 and plaintiff/PW1 replied/ deposed that it is correct that there is a photograph affixed on the said Relinquishment Deed EX PW1/D1 and however suggestion has been denied which is as "it is wrong to suggest that any relinquishment deed dated 05.04.2000 was executed in favour of Anil Khetrapal , defendant no 1 as such defendant no 1 is the owner of property in question A. It is also important to note here that during further cross examination of PW1, it has also come up on record / deposed that it is correct that Sh Ram Prakash was the previous owner of property in question A. It is correct that property in question A was purchased in the year 1978 by my father vol. It was deposed that property was purchased in the name of my mother and father was GPA and also denied that it is wrong to suggest that agreement to sell of property in question A was executed in the name of my father.
CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page27/36Further here it is not out of mention to place here that in the present case one SPA has been produced by the plaintiff himself during the crossexamination of defendant/ DW1 I.e SPA having been executed by Ram Prasad in favour of father of the parties which is EX DW1/PX1 and DW1 further deposed that it is correct that Ex DW1/PX1 has been filed by me. It is also correct that the conveyance deed EX DW1/ PX2 has been filed by me in the Court file. My brother Surender Kumar had purchased a property in his name and the shop was purchased by my father and thereafter, he has shifted out of the suit property. I do not know where Sh Surender Kumar was residing when my father had expired. The address mentioned on Relinquishment deed was the address of my brother, as informed by him. It is incorrect to suggest that the photograph of Sh Surender Kumar pasted on the Relinquishment deed EX PW1/D1 was an old photograph. It is incorrect to suggest that I was having the photograph of Sh Surender Kumar which was misused by me.
Further, in support of the contention and to discharge this issue, defendant no 1 also examined Sh Dharambir Khetrapal, DW2 who is attesting witness and deposed that relinquishment deed has been executed by plaintiff and defendant no. 2 & 3 in favour of defendant CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page28/36 no. 1 in his presence and this testimony has not been impeached in any manner despite crossexamination, as such I am of the considered view that the defendant had proved registered relinquishment deed dated 05.04.2000, which is Ex PW1/D1.
Further, it is specifically deposed in para no 8 of Evidence by way of affidavit of DW1 that I state that since I and my wife Smt Sabina Khetrapal are the owners in possession of the suit properties, there is no need to partition the said properties amongst the parties to the suit. In fact, I and my wife Smt Sabina Khetarpal are the absolute owner in possession of the properties "A" and "B" and the plaintiff and defaulting no 2 and 3 have no right, title or interest of any nature whatsoever in the suit properties despite that no cross examination has been done on this point. It is well settled law that :
'The question of locus standi has been fully and elaborately stated by the decision of Hon'ble Supreme Court of india in S. P. Gupta and Ors. Vs. The President of India AIR 1982 SC 149. In tracing the history of doctrine of locus standi the Hon'ble Supreme Court of India has referred to the traditional rule of locus standi. According to this rule judicial CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page29/36 redress is available only to a person who has suffered a legal injury by reason of violation of his legal right to property, body or reputation.' Hence, I am of considered view especially keeping in view the settled law as well as discussion above that defendants have discharged the onus qua the above issues and from the testimoy of PW 1 and DW 1, it is established that plaintiff has no locus standi to file the present suit. Accordingly, all these issues are decided in favour of defendant no. 1 and against the plaintiff.
16. ISSUE NO .4 Whether the father of the parties late Sh.Om Parkash has sold the shop no.
313, Old Lajpat Rai Market, Delhi to the wife of defendant no.1? OPD No.1 The onus to discharge this issue has been casted upon defendant no. 1 and in support of the case, defendant no. 1 examined himself by way of affidavit Ex.DW1/A. In his examination in chief, defendant has relied upon the title documents ie Agreement to sell, Ex DW1/2, Will CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page30/36 EX DW1/3, two GPA EX DW1/4 and EX DW1/5, executed by father of the plaintiff and defendant no. 1 in favour of wife of defendant no. 1 and in favour of defendant no 1 respectively and during cross examination DW1 remained affirm on the point that father of plaintiff is the owner of the property in question B. On the other hand, plaintiff has not led any cogent evidence which can suggest that the property in question B has not been owned by father of plaintiff and defendant no. 1 which put bar for executing/transferring the property to any one, specially keeping in view the testimony of DW3 Sh Harish Chander who is also attesting witness to the transfer of property in question B in favour of wife of defendant no. 1 in respect to the document and remained firm that documents Ex DW1/2 to Ex DW 1/5 have been executed in his presence and as such testimony of DW3 has not been impeached. After taking into the facts and circumstances, I am of the considered view that defendant no 1 is completely failed to discharge the onus and established that the father of the parties was owner of the property in question keeping in view the documents Ex DW1/2 to Ex DW 1/5 and successfully prove the documents Ex DW1/2 to Ex DW 1/5 through which by examingh DW3 Sh Harish Chander. Hence, this CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page31/36 issue is decided in favour of defendant no. 1 and against the plaintiff.
17. ISSUE NO 1 and 2 :
Issue no 1. Whether the plaintiff is entitled to the relief of preliminary decree of partition in respect of suit property bearing no. C34, Vishal Enclave, Rajouri Garden, New Delhi and shop no.313, Old Lajpat Rai Market, Delhi ? OPP Issue no.2 Whether the plaintiff is entitled for decree of permanent injunction ? OPP Since both these issues are interconnected and the onus to dishcharge these issues are casted upon the plaintiff hence are taken together. Prior to proceed further here it is not out of mention to place here that present suit has been filed for partition of the property in quetsion A and B on the ground taht plaintiff is co owner after the death of father and mother on 19.05.1999 and 07.04.1999 respectively of the parties. On the other hand, suit has been contested by defendant no 1 on the ground that plaintiff has no locus standi to file the present suit since plaintiff and defendant no 2 and 3 have already relinquished CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page32/36 their rights in respect to the property in question A and executed the registered Relinquishment Deed dated 05.04.2000, Ex PW1/D1 in favour of defendant no 1 and the property in question B had already been sold by the father of the parties to Smt Sabina Khetrapal who is wife of defendant no 1 by registered agreement to sell, receipts and Will dated 31.07.1998. It is contented that neither the plaintiff is the co owner nor have any right, title or interest of any other whatsoever in the both property in questions.
It is settled law that the party can seek partition of only the property of which he/she is a joint owner/ co owner with the defendant the person having no existing right in any immoveable property cannot seek partition of the same. During cross examination of PW1 Sh Surender Kumar (now deceased) it is admitted that property in question 'A' was purchased in the year 1978 by my father and deposed that property was purchased in the name of my mother and my father was the GPA and denied the suggestion that agreement of sell/ GPA of property in question A was executed in the name of father of the party and also denied the suggestion that mother of the party was not owner of the property in question A. Further it is denied that any Registered Relinquishment Deed dated 05.04.2000 was CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page33/36 executed in favour of defendant no 1 but admitted that there is a photograph affixed on relinquishment deed Ex PW1/D1, it is found that four photographs have also been affixed on the Relinquishment Deed which is duly registered and also attested by the attesting witness.
On the other hand, in the present case defendant has examined one attesting witness Sh Dharambir Khetrapal as DW2 to the registered relinquishment deed EX PW1/D1 who is uncle of the parties. DW2 deposed that property in question A was purchased by his brother Sh Om Prakash who was the father of the parties. During crossexamination he reamined firm in respect to the fact that he stood attesting witness to the Relinquishment deed EX PW1/D1 and Relinquishment deed EX PW1/D1 is not forged and fabricated one and nothing can be impeached in respect to the attestation of the Relinquishment deed EX PW1/D1.
But, on the other hand, no evidence on behalf of plaintiff led in respect to proving of the fact that Registered Relinquishment Deed Ex PW1/D1 is forged and fabricated documents hence, I am of the considered view that defendant has proved the Relinquishment Deed Ex PW1/D1 and further nothing bring on record which can impeach CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page34/36 the testimony of the DW1 as he has denied the suggestion that it is incorrect to suggest that my mother was owner of the property in question "A". It is further wrong to suggest that his father (father of the party) has not allowed to execute any Will in respect to the property in question and remained firm on the basis of Will executed by the father in favour of defendant no 1 , he had obtained conveyance deed in respect to the property in question "A" on the basis of Relinquishment Deed EX PW1/D1 and NOC. Further he also remained firm in respect to the fact that father of parties had purchased the property in question "A" as well as property bearing no. G140, Vikas Puri, New Delhi in the name of plaintiff. During cross examinationof defendant no 1 it was also asked that the property bearing no D140, Vikas Puri, New Delhi (G140, Vikas Puri, New Delhi) was the rented premises but the plaintiff has not filed any as such documents in support of the contention and contrary to the cross examination in the replication, it is averted that wife of plaintiff by selling her gold, jewellery and from the income of tuition of purchased and acquired property bearing no G140, Vikas Puri, New Delhi and the parent of parties had no contribution in purchasing of the property bearing no G140, Vikas Puri, New Delhi and no as such documents in support of the contention has been filed. Hence I am of the CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page35/36 considered view that in view of the judgment referred in para no 10, plaintiff has completely failed to discharge the onus qua these issues and also failed to establish that he had/has ownership and co ownership in respect to the property in question "A" and "B" for which decree of partition can be passed. Accordingly these issues are decided in favour of defendant and against the plaintiff.
18. RELIEF In the light of the above discussion, considering the facts and circumstances of the present case and keeping in view the law discussed in para no 10, I am of the considered view that the plaintiff has failed to establish the fact that he is co owner of the property in question A and B as well as failed to establish the fact that property in question A and B have been thrown out into the joint family property, hence, the suit of the plaintiff is liable to be dismissed. Accordingly, the present suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced in the Open Court
on 28.02.2017 (Rakesh KumarIV)
Additional District Judge06
West District, THC
CS No. 12388/16 Surender Kumar Vs Anil Khetarpal Page36/36