Delhi District Court
Chameli Devi vs Mahesh Chander Sharma Etc Page No. 1 Of 34 on 17 April, 2018
IN THE COURT OF DR. SAURABH KULSHRESHTHA:
ADDITIONAL DISTRICT JUDGE -11, CENTRAL,
TIS HAZARI COURTS, DELHI
Civil Suit No. 19495/2016
Smt. Chameli Devi,
W/o Late Sh. Sadanand Shastri,
R/o H.No. 1942, Street No. 41,
Hari Singh Nalwa Street,
Karol Bagh,
New Delhi-110005. ....... Plaintif
Versus
1. Sh. Mahesh Chander Sharma
S/o Late Shri Sadanand Shastri,
338, Deepli, Pitampura,
New Delhi.
2. Sh. Anand Swaroop
S/o Late Shri Sadanand Shastri,
338, Deepli, Pitampura,
New Delhi.
3. Sh. Ramesh Chander Sharma
S/o Late Shri Sadanand Shastri,
H-166, Vikas Puri,
New Delhi.
4. Sh. Umesh Chander Sharma
S/o Late Shri Sadanand Shastri,
H.No. 1942, Street No. 41,
Hari Singh Nalwa Street,
Karol Bagh,
New Delhi.
Suit No. 19495/2016
Chameli Devi Vs Mahesh Chander Sharma etc Page No. 1 of 34
5. Smt. Kamla Sharma
W/o Sh. N.L. Sharma
D/o Late Sh. Sadanand Shastri,
KP-193, Pitam Pura,
Delhi.
6. M/s Rashmi Sharma
D/o Sh. D.D. Kaushik,
B-105, Prashant Vihar,
Delhi.
7. Ms. Dolly Kaushik
D/o Sh. D.d. Kaushik
B-105, Prashant Vihar,
8. M/s. Gargi Kaushik
D/o Sh. D.D. Kaushik
B-105, Prashant Vihar,
Delhi. .....Defendants
SUIT FOR PARTITION
Date of institution of the Suit : 08.11.2011
Date on which judgment
was reserved : 23.02.2018
Date of decision : 17.04.2018
Decision : Preliminary Decree
for Partition passed
JUDGMENT
1. This is a suit for partition. The version of the plaintif is that Late Sh. Sadanand Shastri, husband of the Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 2 of 34 plaintif died intestate on 11.02.1990 leaving behind the following legal heirs: (i) Smt. Chameli Devi (wife, plaintif);
(ii) Shri Mahesh Chander (Son, defendant no. 1); (iii) Shri Anand Swaroop (Son, defendant no. 2); (iv) Shri Ramesh Chander Sharma (Son, defendant no. 3); (v) Shri Umesh Chander Sharma (Son, defendant no. 4); (vi) Smt Kamla Sharma (daughter, defendant no. 5) and (vii) Smt. Sudesh Sharma (daughter, now deceased).
2. It is further the case of the plaintif that Late Sh. Sadanand Shastri was the owner of the following two properties which were his self acquired properties:-
(i) Two storied constructed House No. 1942, Street No. 41, Hari Singh, Nai Wala Street, Karol Bagh, New Delhi-110005.
(ii) Plot bearing no. 338, Deepali, Pitampura, Delhi-
110034 admeasuring 238.34 sq. yards situated in the layout plan of UP Samaj cooperative House Building Society Ltd. Presently know as Deepali, Pitampura, Delhi- Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 3 of 34 110034.
3. It is further the case of the plaintif that after the demise of Sh. Sadanand Shastri the suit properties devolved equally upon his seven legal heirs i.e. wife (plaintif), four sons (defendants no. 1 to 4) and two daughters (the defendant no. 5 and Smt. Sudesh Sharma). Later on, one of the daughters namely Smt. Sudesh Sharma also died intestate on 10.01.2009 leaving behind her three daughters who are the defendants nos. 6, 7 and 8 in the present case.
4. It is further the case of the plaintif that the defendants no. 2, 3 and 4 had executed relinquishment deed dated 28.06.2010 duly registered before the Sub- Registrar on 06.07.2010 in favour of the plaintif relinquishing their 3/7th share (1/7th share each) in the property no. 338, Deepali, Pitampura, Delhi. The defendant no. 5 had also executed a registered relinquishment deed Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 4 of 34 dated 26.07.2010 in favour of the plaintif on 31.07.2010 relinquishing her 1/7th share in the property no. 338, Deepali, Pitampura, Delhi. The defendants nos. 6, 7 and 8 had also executed relinquishment deed dated 28.06.2010 registered on 06.07.2010 thereby relinquishing their combined 1/7th share in the property no. 338, Deepali, Pitampura, Delhi in favour of the plaintif. The plaintif has therefore, contended that the plaintif is the owner of 6/7 th share in the property no. 338, Deepali, Pitampura, Delhi and the defendant no. 1 is the owner of the remaining 1/7th share therein.
5. It is further the case of the plaintif that in respect of the property no. 1942, Street No. 41, Hari Singh, Nai Wala Street, Karol Bagh, New Delhi the Plaintif and the defendants nos. 1 to 5, individually and the defendants nos. 6 to 8 jointly have equal (1/7th) share and all of them are the co-owners of the said property.
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6. It is further the case of the plaintif that the defendant no. 2 was in possession of the entire first floor portion of property no. 338, Deepali, Pitampura, Delhi. However, after execution of the relinquishment deed dated 28.06.2010 registered on 06.07.2010, he had handed over the symbolic and constructive possession of the same to the plaintif. Since then, the defendant no.2 is occupying the first floor portion of the Deepali, Pitampura property as the plaintif's licensee. It is further the case of the plaintif that the defendant no. 1 is occupying the ground floor of the Deepali, Pitampura property and the other legal heirs of Late Sh. Sadanand Shastri had allowed the defendant no.1 to use the ground floor as gratuitous licensee. The plaintif has further pleaded that the plaintif and the defendant no. 4 are in possession of the Karol Bagh property.
7. The plaintif has further pleaded that the plaintif had issued legal notice dated 07.03.2011 to the defendant no. 1, however he neither replied the same nor Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 6 of 34 partitioned the suit properties. The plaintif has therefore, prayed for a decree of partition of the suit properties.
8. The defendant no. 1 filed his written statement. The defendant no. 1 has pleaded that Late Sh. Sadanand Shastri had bought a number of properties with a view to settle his children, the details of which are as under:-
(a) A Janta flat single storey house at Kalkaji which he bought in early 70's in the name of Sh. Anand Swaroop i.e. the defendant no.2.
(b) DDA Flat no. H-166, Vikaspuri, New Delhi bought in the nme of Sh. Ramesh Chander Sharma i.e. the defendant no.3 and provided him all assistance to build the house.
(c) Plot no. 338, Deepali, Pitampura, Delhi, which he gave to the defendant no.1
(d) Two storeyed constructed house bearing no.
1942, Street No. 41, Hari Singh Nai Wala Street, Karol Bagh, New Delhi-110005.
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9. The defendant no. 1 further pleaded that Sh. S.N. Shastri had declared that the Karol Bagh property would be given to all his legal heirs but as far as the plot bearing no. 338, Deepali, Pitampura, Delhi is concerned the same would belong to the defendant no. 1 Sh. Mahesh Chander Sharma and the defendant no.1 would be entitled to build and own the same. The said mutual understanding and verbal family settlement was arrived at on 24.04.1988 between Sh. S.N. Shashtri, his wife and his children. The defendant no. 1 further pleaded that the defendant no. 1 pursuant to the said mutual understanding and verbal family settlement started construction of the house over the plot bearing no. 338, Deepali, Pitampura, Delhi in the year 1989 and his father initially helped him to build the same but during construction, his father expired in the year 1990. Thereafter, the defendant no. 1 continued to build the house slowly with his hard earned money and shifted therein in May 1993 and since then he has been living therein as its absolute and sole owner.
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10. The defendant no. 1 further pleaded that in December 2005, the defendant no. 2 was allowed to shift on the first floor of house no. 338, Deepali, Pitampura, Delhi for the marriage of his daughter which took place in January 2006. However, he continued to stay there for several months till he got an accommodation at his school premises being the Principal of Air Force School. Thereafter the defendant no. 2 had vacated the said portion. However, on 19.11.2010, the plaintif and the defendants nos. 2 to 4 in collusion with each other manhandled the defendant no.1 and forcibly took the keys of the first floor portion of house no. 338, Deepali, Pitampura, Delhi.
11. The defendant no. 1 has further pleaded that property no. 338, Deepali, Pitampura, Delhi is not partitionable and belongs to the defendant no. 1 solely and the other defendants had no right to execute the Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 9 of 34 relinquishment deeds in favour of the plaintif in respect of the Pitampura property. The defendant no. 1 has however admitted that he is having 1/7th share in the Karol Bagh property. He has pleaded that he has no objection in case house No. 1942, Street No. 41, Hari Singh, Nai Wala Street, Karol Bagh, New Delhi is partitioned.
12. The defendants no. 2 to 8 filed their joint statement. The defendants nos. 2 to 8 have pleaded that they have already relinquished their respective shares in the property bearing no. 338, Deepali, Pitampura, Delhi by virtue of three relinquishment deeds dated 28.06.2010, 26.07.2010 and 28.06.2010 duly registered before the Sub- Registrar, relinquishing their 5/7th share therein in favour of the plaintif. They further pleaded that they are left with no right, title or interest in the Pitampura property.
13. The defendants nos. 2 to 8 have further pleaded that the defendants nos. 2 to 5 each have 1/7th share and Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 10 of 34 the defendant no. 6 to 8 collectively have 1/7th share in the Karol Bagh property. The defendants nos. 2 to 8 have therefore prayed for partition of the Karol Bagh property.
14. Plaintif filed replication to the written statement of the defendant no.1 and denied the averments made by the defendant no. 1 and simultaneously reiterated and reafirmed the contents of the plaint.
15. On the basis of the pleadings of the parties the following issues were framed vide order dated 03.04.2013 (1) Whether the plaintif is entitled to 6/7 th share in Pitampura property ? OPP (2) Whether the plaintif is entitled to 1/7th share in Karol Bagh property ? OPP (3) Whether there was an oral family settlement on 24.04.1988 as stated by the defendant no.1 in his written statement ? OPD-1 Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 11 of 34 (4) Whether the defendant no.1 is the sole owner of the Pitampura property ? OPD-1 (5) Whether the suit is barred by limitation ? OPD-1 (6) In case an oral settlement is not proved, whether all the properties so purchased by Mr. S.N. Shastri either in his own name or in the name of his children are liable to be partitioned and divided between the parties equally ? OPD1 (7) Relief
16. In order to prove his case the plaintif examined herself as PW-1 and deposed on the lines of the plaint. She relied upon the following documents: the Relinquishment deed dated 28.06.2010 executed by her sons in her favour which is Ex. PW1/1; the relinquishment deed dated 28.06.2010 executed by her daughter in her favour which is Ex. PW1/2; the relinquishment deed dated 28.06.2010 executed by her grand-daughters in her favour which is Ex. PW1/3. She also relied upon the documents exhibited Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 12 of 34 during admission denial of documents - death certificate of Smt. Sudhesh Sharma which is Ex. P-1; legal notice dated 07.03.2011 which is Ex.P-2; sale deed of Karol Bagh property which is Ex. P-3; Perpetual Sub-Lease Deed of Pitampura property which is Ex. P-4 and death certificate of Late Shri Sadanand Shastri which is Ex. P-5.
17. As against this the defendant no. 1 examined himself as DW-2. He deposed on the lines of his written statement.
18. I have heard the Ld. Counsel for the parties and have given due consideration to their rival contentions and carefully perused the record. My issue-wise findings are as under:
Issue no. 2 (2) Whether the plaintiff is entitled to 1/7th share in Karol Bagh property ? OPP Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 13 of 34
19. PW1 has deposed that Shri Sadanand Shastri was her husband and he had expired intestate on 11.02.1990 leaving behind the following legal heirs: (i) Smt. Chameli Devi (wife, plaintif); (ii) Shri Mahesh Chander (Son, defendant no. 1); (iii) Shri Anand Swaroop (Son, defendant no. 2); (iv) Shri Ramesh Chander Sharma (Son, defendant no. 3); (v) Shri Umesh Chander Sharma (Son, defendant no. 4); (vi) Smt Kamla Sharma (daughter, defendant no. 5) and (vii) Smt. Sudesh Sharma (daughter, now deceased). Copy of the death certificate of Shri Sadanand Shastri is Ex. P-5.
20. PW1 has further deposed that Shri Sadanand Shastri was the owner of House No. 1942, Street No. 41, Hari Singh Nalwa Street, Karol Bagh, New Delhi, ad measuring 64 square yards and the sale deed in respect of this property is Ex. P-3. The sale deed has not been disputed. PW1 has further deposed that she and Shri Umesh Chander Sharma are in possession of the Karol Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 14 of 34 Bagh property. PW 1 has further deposed that the Karol Bagh property devolved equally on the wife, four sons and two daughters of Shri Sadanand Shastri. Later on, one of the daughters namely Smt. Sudesh Sharma also died intestate on 10.01.2009 leaving behind her three daughters who are the defendants nos. 6, 7 and 8 in the present case. The death certificate of Smt. Sudesh Sharma is Ex. P2.
21. The defendant no. 1 (DW1) has also stated that he has no objection for partition of the Karol Bagh property. The defendants nos. 2 to 8 have also admitted the claim of the plaintif with respect to the Karol Bagh property in their written statement and have stated that the Karol Bagh property be partitioned.
22. In these facts and circumstances and in view of the evidence on record it is clear that Shri Sadanand Shastri was the owner of Karol Bagh property i.e. House No. 1942, Street No. 41, Hari Singh Nalwa Street, Karol Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 15 of 34 Bagh, New Delhi, ad measuring 64 square yards and he expired intestate. Accordingly, the said property devolved upon his wife (plaintif), four sons (defendants no. 1 to 4) and two daughters (the defendant no. 5 and Smt. Sudesh Sharma). Later on, one of the daughters namely Smt. Sudesh Sharma also died intestate on 10.01.2009 leaving behind her three daughters who are the defendants nos. 6, 7 and 8 in the present case.
23. The result is that the parties to the suit are the co-sharers in the property/ House No. 1942, Street No. 41, Hari Singh Nalwa Street, Karol Bagh, New Delhi, ad measuring 64 square yards and are having the following shares :
Plaintif : 1/7th
Defendant no. 1 : 1/7th
Defendant no. 2 : 1/7th
Defendant no. 3 : 1/7th
Defendant no. 4 : 1/7th
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Defendant no. 5 : 1/7th
Defendants no. 6 to 8 : 1/7th jointly (1/21th each).
24. Accordingly, the plaintif is entitled to a
preliminary decree for partition of the property/ House No. 1942, Street No. 41, Hari Singh Nalwa Street, Karol Bagh, New Delhi, ad measuring 64 square yards.
Issues nos. 1, 3 and 4 (1) Whether the plaintiff is entitled to 6/7 th share in Pitampura property ? OPP (3) Whether there was an oral family settlement on 24.04.1988 as stated by the defendant no.1 in his written statement ? OPD-1 (4) Whether the defendant no.1 is the sole owner of the Pitampura property ? OPD-1
25. In so far as the property bearing no. 338, Deepali, Pitampura, Delhi-110034 admeasuring 238.34 sq. Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 17 of 34 yards is concerned, PW1 has deposed that Shri Sadanand Shastri was the owner of the same and perpetual sub-lease deed in this respect is Ex. P-4. The defendants nos. 2 to 8 have also not disputed this position. The defendant no. 1 / DW1 had also admitted that Shri Sadanand Shastri was the owner of the Deepali, Pitampura property.
26. PW1 has further deposed that Shri Anand Swaroop, Shri Ramesh Chander and Shri Umesh Chander Sharma had executed a relinquishment deed dated 28.06.2010 in favour of PW1 relinquishing their 3/7th share in the Deepali, Pitampura property. Copy of the said relinquishment deed is Ex. PW1/1. PW1 has further stated that Smt. Kamla Sharma had also executed a relinquishment deed dated 26.07.2010 in her favour relinquishing her 1/7th share in the Deepali, Pitampura property. Copy of the said relinquishment deed is Ex. PW1/2. PW1 has further stated Smt. Rashmi Sharma, Ms. Dolly Kaushik and Ms. Gargi Kaushik had also executed a Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 18 of 34 relinquishment deed dated 28.06.2010 relinquishing their respective shares in the Deepali, Pitampura property in favour of the plaintif.
27. On the other hand DW1 has deposed that an oral family settlement was arrived at on 24.04.1988 between Shri Sadanand Shastri, his wife and children wherein it was agreed that the property bearing no. 338, Deepali, Pitampura, Delhi - 110034, admeasuring 238.34 square yards situated in the layout plan of U.P. Samaj Co-operative House Building Society Limited presently known as Deepali, Pitampura, Delhi - 110034, would be given to the defendant no. 1 and the defendant no. 1 shall be the sole owner thereof. Accordingly, the defendant no. 1 started construction of the house at the said plot in the year 1989 and initially his father helped him but his father expired in the year 1990 and thereafter defendant no. 1 built up the same slowly with his hard earned funds and shifted therein in the year 1993. The defendant no. 1 therefore claims to Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 19 of 34 be the sole owner of the Deepali, Pitampura property.
28. The defendant no. 1 has placed reliance on the judgments titled as Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119; K.K. Modi v. K.N. Modi, (1998) 3 SCC 573; Ameteshwar Anand v. Virender Mohan Singh; (2006) 1 SCC 148; Hari Shankar Singhania v. Gaur Hari Singhania, (2006) 4 SCC 658; Romesh Chander Sethi v. Inder Mohan Sethi, 163 (2009) DLT 4 and Amarjeet Lal Suri v. Moti Sagar Suri, 119 (2005) DLT 295. It has been contended that a family arrangement may be even oral and in view of the oral family settlement dated 24.04.1988 the plaintif is the owner of the Pitampura property.
29. There is no dispute about the legal position. However in case of an oral family arrangement the onus is upon the person who alleges the same to prove by cogent, viable and independent evidence that such a family settlement in fact took place between all the legal heirs. Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 20 of 34 The conduct of the parties afterwards and the fact as to whether such a family settlement was acted upon would be very imporatant indicators. Thus the onus to prove any such oral family settlement where under the Deepali, Pitampura property was given to the defendant no. 1 lies upon the defendant no. 1 and the onus is extremely heavy since the plaintif is alleging an oral family settlement.
30. DW1 stated in his cross examination that since 1988 till date he has not informed any authority like MCD, DDA or the society that this property has been given to him by his father. He further stated that the site plan of the Deepali, Pitampura property was sanctioned by the DDA in the name of his father in the year 1988. He further stated that C-Form was issued by DDA in the name of his father on 23.08.1989 and D-Form was also issued by the DDA in the name of his father on 26.12.1989. He further stated that he has not obtained any completion certificate in 1996 or thereafter. He further admitted that he is not in possession Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 21 of 34 of the title documents of the said property. He further stated that the electricity connection was installed in the suit property in the year 1989 in the name of his father. He further stated that he has not written to the society that Deepali, Pitampura property be transferred in his name. DW1 has further stated that he had not applied for mutation in DDA or MCD. He further stated that house tax has been revised in the name of his mother. He further admitted that his mother had paid Rs. 69,884/- on 08.02.2000 by cheque to MCD towards house tax of Deepali, Pitampura property. But he stated that he used to give money to his mother, however, he could not produce any evidence to this efect.
31. Thus apart from the mere self serving ipse dixit there is no independent, cogent and viable evidence to prove the existence of such an oral family settlement. There is no evidence to show that such a family settlement was acted upon. The conduct of the defendant no.1 himself Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 22 of 34 negates the possibility of any such oral family settlement. Moreover as per the said judgment Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 such a family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. However the alleged family settlement cannot be said to be fair or bonafide and it does not contemplate fair and equitable division of the property between various members. The result is that the defendant no. 1 has failed to prove any such oral family settlement.
32. Further the defendant no. 1 has failed to produce any evidence to prove that he had constructed the Pitampura property out of his own funds. No document or other independent, cogent and viable evidence has been proved by the defendant no. 1 in this respect. There is no evidence to show that any funds were spent by him on the construction. Even the existence of requisite funds has not Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 23 of 34 been proved. The defendant no. 1 has admitted that he has never been an Income Tax payee. Admittedly the C form and D form in respect of the Pitampura property were issued in the name of his father Sh. Sadanand Shastri. Thus the defendant has also failed to establish that the superstructure over the Pitampura plot was constructed by him out of his own funds.
33. PW1 has further deposed that the defendant no. 2 Shri Anand Swaroop was in possession of the entire first floor portion of the Deepali, Pitampura property and after execution of the relinquishment deed he had handed over the symbolic / constructive possession of the first floor portion of the Deepali, Pitampura property to the plaintif and now the defendant no. 2 is in possession of the same as licensee of the plaintif.
34. On the other hand DW1 has deposed that the defendant no. 2 was allowed by him to shift at the first floor Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 24 of 34 portion for the marriage of his daughter which took place in January, 2006 and thereafter defendant no. 2 vacated the portion. However, two years prior to the filing of the present suit the plaintif and the defendants no. 2 to 4 on 19.11.2010 had forcibly taken the keys of the first floor portion of the Deepali, Pitampura property. The defendant has also acquiesced in the possession of the plaintif in the first floor portion of the suit property since he has stated in the written statement that he allowed the plaintif and the defendant no. 2 to keep on occupying the said portion. DW 1 has also admitted that landline telephone connections in the name of the defendant no. 2 were installed at Deepali, Pitampura property. Thus it is clear that the plaintif is in possession of a portion of the Deepali, Pitampura property as well.
35. In these facts and circumstances and in view of the evidence on record it is clear that Shri Sadanand Shastri was the owner of the Pitampura property i.e. Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 25 of 34 property no. 338, Deepali, Pitampura, Delhi and he expired intestate. Accordingly, the said property devolved upon his wife (plaintif), four sons (defendants no. 1 to 4) and two daughters (the defendant no. 5 and Smt. Sudesh Sharma). Later on, one of the daughters namely Smt. Sudesh Sharma also died intestate on 10.01.2009 leaving behind her three daughters who are the defendants nos. 6, 7 and 8 in the present case.
36. Further by virtue of registered relinquishment deeds Ex. PW 1/1 to Ex. PW 1/3 the defendants no. 2 to 8 have relinquished their right, title, interest and shares in the Pitampura property in favour of the plaintif. I have no reason to disbelieve the said relinquishment deeds especially when the defendants no. 2 to 8 have admitted them. DW 1 has also admitted the factum of relinquishment in his cross examination. Moreover the said relinquishment deeds are registered documents and ought to be presumed as authentic. Reference may be made to the judgment titled Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 26 of 34 as Prem Singh v. Birbal reported as (2006) 5 SCC 353 in this respect. The efect of the said relinquishment deeds is that the 5/7th share of the defendants nos. 2 to 8 in the Pitampura property stands relinquished in favour of the plaintif and the plaintif becomes the owner of the said 5/7th share of the defendants nos. 2 to 8. Reference may be made to the judgment titled as Srichand Badlani v. Govt. of N.C.T. of Delhi, 2013 SCC OnLine Del 5128 : AIR 2014 (NOC 539) 192.
37. Thus the plaintif becomes the co-owner of the Deepali, Pitampura property to the extent of 6/7th share alongwith the defendant no. 1 who has only 1/7th share therein. The plaintif is therefore entitled to a preliminary decree for partition qua the property no. 338, Deepali, Pita- mpura, Delhi admeasuring 238.34 sq. yards also. These is- sues are therefore decided in favour of the plaintif and against the defendant no. 1.
Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 27 of 34 Issue No. 6 (6) In case an oral settlement is not proved, whether all the properties so purchased by Mr. S.N. Shastri either in his own name or in the name of his children are liable to be partitioned and divided between the parties equally ? OPD-1
38. The defendant no. 1 has contended that his father Shri Sadanand Shastri, apart from the aforesaid two properties, had also purchased the following properties:
(i) A janta flat single storey house at Kalkaji which he bought in early 70's in the name of Shri Anand Swaroop i.e. defendant no. 2.
(ii) DDA Flat No. H-166, Vikaspuri, New Delhi bougth in the name of Shjri Ramesh Chander Sharma.
(iii). DDA Plot at Vikaspuri, New Delhi bought in the name of Shri Umsh Sharma which he sold in 1984. Suit No. 19495/2016
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39. However, the defendant no. 1 has not been able to produce any document or other independent, cogent and viable evidence to establish that said properties were purchased by his father or were owned by his father. During his cross examination DW1 has stated that he has no document to show that Shri Sadanand Shastri had purchased the said properties. He has further stated that he has no document to show that Shri Umesh Sharma had sold the DDA flat of Vikaspuri which was purchased by his father Shri Sadanand Shastri. He further stated that he does not know the particulars of any such plot / flat. Accordingly, the defendant no. 1 has failed to establish that Shri Sadanand Shastri owned any other properties apart from the Deepali, Pitampura property and the Karol Bagh property, which are also liable to be partitioned. This issue is therefore decided in favour of the plaintif and against the defendant no. 1.
Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 29 of 34 Issue no. 5 (5) Whether the suit is barred by limitation ? OPD-1
40. Under Article 110 of the Schedule to the Limitation Act the limitation period for enforcing a right in joint family property is 12 years and the same is to be reckoned from the date when the plaintif is excluded from joint family property and such exclusion becomes known to him.
41. Further in the judgment titled as Daya Devi v. Angoori Devi reported as AIR 2002 Delhi 295 it was observed:
".........The defendant No. 1 has set up his claim in his capacity as adopted son of the deceased owner. The very fact that the instant suit for possession is based upon inheritance neither the limitation of three years nor the Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 30 of 34 limitation of 12 years as stated is applicable. .............
20. If the law does not provide a specific period of limitation for initiating action or seeking possession by way of partition on the basis of inheritance any action by the party cannot be restricted through law of limitation unless there is specific provision in that regard. If the contention of Mr. Chaudhary is accepted then the party has to loose the right of inheritance and possession once for all if he or she fails for any reason whatsoever, take action for 3 years. Right of inheritance is of such a nature that cannot be taken away by inaction or incapacity of a person is taking the step well in time. This is why the diferent sets of articles have been prescribed for diferent suits. There is no law of limitation of 3 years or 12 years for every civil suit.....".
42. Adverting to the facts of the present case the plaintif is admittedly in possession of the House No. 1942, Street No. 41, Hari Singh, Nai Wala Street, Karol Bagh, Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 31 of 34 New Delhi-110005. The plaintif also claims herself to be in possession of the first floor portion of the property no. 338, Deepali, Pitampura, Delhi through the defendant no. 2. The defendant no. 1 has also admitted that the first floor portion is in possession of the defendant no. 2 and the plaintif, albeit he has stated that same was forcibly occupied by them. However this story of forcible takeover of possession has not been established by the defendant no.
1. Moreover the defendant no. 1 has acquiesced in such possession of the plaintif and the defendant no. 2. Accordingly the plaintif is in possession of a portion of the suit properties and no question of ouster of the plaintif arises. Therefore the suit is within limitation. This issue is therefore decided in favour of the plaintif and against the defendant no. 1.
RELIEF
43. A preliminary decree for partition of suit property i.e House No. 1942, Street No. 41, Hari Singh, Nai Suit No. 19495/2016 Chameli Devi Vs Mahesh Chander Sharma etc Page No. 32 of 34 Wala Street, Karol Bagh, New Delhi-110005 is passed thereby declaring the shares of the parties therein as under:
Plaintif : 1/7th Defendant no. 1 : 1/7th Defendant no. 2 : 1/7th Defendant no. 3 : 1/7th Defendant no. 4 : 1/7th Defendant no. 5 : 1/7th Defendants no. 6 : 1/21th Defendants no. 7 : 1/21th Defendants no. 8 : 1/21th 44. A preliminary decree for partition of suit
property i.e. the property no. 338, Deepali, Pitampura, Delhi admeasuring 238.34 sq. yards is passed thereby declaring the shares of the parties therein as under:
Plaintif : 6/7th
Defendant no. 1 : 1/7th
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45. The suit is decreed in the aforesaid terms and Preliminary Decree for Partition is passed. Costs of the suit are awarded in favour of the plaintif and against the defendant no. 1. Decree sheet be prepared accordingly. Digitally signed by
SAURABH SAURABH KULSHRESHTHA
KULSHRESHTHA Date: 2018.04.18 16:56:08
+0530
Announced in the open (Dr. Saurabh Kulshreshtha)
Court on 17.04.2018. Additional District Judge-11 Central District Tis Hazari Courts, Delhi.
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