Delhi District Court
Flat No. 87 vs Sh. Balbir Singh on 26 September, 2014
IN THE COURT OF CIVIL JUDGE-11, CENTRAL DISTRICT,
TIS HAZARI COURTS: DELHI
Civil Suit No. 268/14
Unique ID Number 02401C0639762003
In the matter of
Sh. Hari Singh (since deceased)
Through LRs.
(a) Sh. Krishan Kumar S/o Late Sh. Hari Singh
R/O H. No. 218-219,
Village and Post office at Mahipalpur, New Delhi.
(b) Sh. Subhash Sehrawat @ Tinku S/o Late Sh. Hari Singh
R/O H. No.218 219,
Village and Post office at Mahipalpur, New Delhi.
(c) Smt. Rachna W/O Sh. Rakesh Ahlawat
R/O H. No. 2, Bindapur, Near Allahabad Bank, Bindapur,
New Delhi-110 059
Also At
Flat no. 87, 1st Floor, Netaji Subhash Apartment
Sector - 13, Dwarka, New Delhi.
(d) Smt. Seema W/o Sh. Vinod Ahlawat
R/O H. No. 2, Bindapur, Near Allahabad Bank, Bindapur,
New Delhi-110 059
(e) Smt. Sabita W/O Sh. Vinay
R/O Village Bawana, New Delhi.
(f) Smt. Narendrawati W/O Late Sh. Hari Singh
R/O H. No. 218-19,
Village and Post office at Mahipalpur, New Delhi. .....Plaintiffs
(All above LRS a to f are legal heirs of Late Sh. Hari Singh i.e. plaintiff).
VS.
1. Sh. Balbir Singh
S/O Late Sh. Khazan Singh
R/O Near Taken House,
Village and Post office Mahipalpur,
New Delhi -110 037
Hari Singh Vs. Balbir Singh 1
2. Sh. Vijay
S/O Late Sh. Khazan Singh
R/O H. No. 218-219,
Village and Post Office Mahipalpur
New Delhi - 110 037 .....Defendants
Date of institution of the Suit : 23.07.2001
Date on which arguments were heard : 24.09.2014
Date of decision : 26.09.2014
SUIT FOR RECOVERY OF RS. 1,00,000/- (RUPEES ONE LAKH ONLY)
AND FOR PERMANENT AND MANDATORY INJUNCTION.
JUDGMENT
A Division Bench of Hon'ble High Court of Delhi in Swaran Lata vs Kulbhushan Lal RFA(OS) 11/2010 dated 31.01.2014 has clarified the position in respect of amended provision of Section-6 of Hindu Succession Act in following manner:
"Equally, however, the amending act clarifies what is meant by 'partition' in terms of Section 6, i.e. "any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court." Accordingly, only those partitions made by the execution of a duly registered partition deed or a partition effected by a decree of a Court, i.e. partitions recognized by Section 6 as valid, which have occurred before the cut-off date identified, are saved from the operation of the amended Section 6, which would, if operative, require a redistribution of shares within the HUF. Having defined the expression 'partition' in Section 6, Parliament clarified which partitions are left unaffected by the amendment, and those that are susceptible to this change in the statute, giving the Courts clear and unambiguous direction in this regard. Thus, if a partition, as envisaged under the explanation to Section 6(5) occurred before 20.12.2004, then only may the Courts ignore the amended Section 6."
"Crucially, since the rights and shares of the parties are decided as on the date of partition, it is important to determine the date of partition. First, as discussed above, the notion that a partition occurs as on the Hari Singh Vs. Balbir Singh 2 date of the death of a male member, and shares crystallize into vested rights at that point in time, as held by the learned Single Judge, is not the correct approach. That event (i.e. the death) only determines how that person's share will be divided amongst the family members (either by survivorship or by succession), rather than effecting any broad- based changes in the family holdings or effecting a partition inter se that would hold against subsequent changes in the family composition or changes in the law. Secondly, neither is the proposition that the shares are defined at the time of filing of the suit for partition correct. Rather, the HUF, and specifically, the coparcenary, continues even after the filing of the suit. The filing of a suit by itself does not mean that a partition has taken place, until a decree of Court effects partition, or a registered deed of partition is signed inter se the parties. Accordingly, the death or birth of family members during the pendency of a suit quite obviously will affect the shares in partition. Similarly, any change in law during the pendency of the suit, as for example is the case with Section 6 of the HSA, would affect the ultimate shares of the parties. A contrary conclusion would not only fly in the face of the definition of 'partition' in Section 6(5), but would also mean, for example, that no partition suit can be withdrawn after it is filed, a proposition which has been rejected on various occasions."
"In this case, till date no final decree has been passed, and neither has any registered partition deed been placed on record or relied upon by any of the parties. Accordingly, the amended Section 6 of the HSA is applicable. The reasoning and findings of the learned Single Judge on this aspect, therefore, cannot be sustained. Similarly, the reasoning and judgment in Bharat Singh (of a learned Single Judge) is held to be no longer good law, in view of Prema (supr) and Ganduri Koteshwaramma (supra). The said judgment is accordingly overruled."
1.1. Meaning thereby that if there is no partition through registered document or by court decree, the daughters can always be entitled for a share in the co-parcenary property. In the present case, there is no registered partition or partition by decree and therefore daughters would have been entitled for a share irrespective of any khangi partition between the sons had the property been claimed to be a co-parcenary property.
2. I have highlighted the above position only to emphasize that even in situations of co-parcenary property, the daughters would have been entitled for a share. In case of Hari Singh Vs. Balbir Singh 3 property which is not a co-parcenary one, the position is already clear that the same will succeeded by the class one legal heirs of the deceased in equal share and the property has to be divided amongst them. For this, a partition is also necessary by any mode if the legal heirs wish to get their separate share. Needless to say that in the absence of all the stake holders, a partition of property can not be affected. The question is what would happen if some of the legal heirs divides the entire property amongst themselves without involving rest of the legal heirs? Can such partition of property be treated as valid? Or should we treat such partition as non-existent and having no legal sanctity in law? Should we treat all the class one legal heirs as co-sharer/co-owner of the property?
2.1. In the absence of any law to the contrary being shown by the plaintiff, I am inclined to hold that any partition made by some legal heirs without caring for the rights of rest of the class one legal heirs can not be treated as a partition of the property and therefore all the class one legal heirs have to remain the co-sharer/co-owner of the property left behind by the deceased.
3. With the above proposition of law, we can travel through the factual position emerging from the present case. Plaintiff has filed the present suit for recovery of Rs.1,00,000/- (on account of damages and the loss of rent) and permanent injunction against his two brothers alleging as under:-
Father of plaintiff Khazan Singh was a co-owner of suit property with Meer Singh.
After the death of Khazan Singh the half share of the property was inherited by his sons namely Balbir Singh, Hari Singh, Vijay, Jagbir Singh and Ram Chander.
Later on four sons of Khazan Singh purchased the share of Ram Chander.
Half share in the property was inherited by Rajender, Sukhbir and Joginder but the said share was later on purchased by the sons of Khazan Singh.
Ultimately the four sons of Khazan Singh became absolute owner of the entire property and by way of Khangi partition on 26.01.2001 they divided the entire Hari Singh Vs. Balbir Singh 4 property amongst themselves.
Subsequently due to dispute regarding certain construction work and certain already constructed portion, the plaintiff suffered mental torture and loss of rent respectively whereupon he has claimed damages and permanent injunction.
3.1. From the cross-examination of plaintiff it becomes clear that the Khazan Singh was survived by his wife, five sons and three daughters. There is no claim that the said Khazan Singh has made any testamentary documents for inheritance of his property.
Therefore the property was bound to be inherited by the wife, five sons and three daughters of the said Khazan Singh so far as half portion of the property is concerned as the Khazan Singh was co-owner with Meer Singh in the said property. Plaintiff has not been able to justify as to how the property of Khazan Singh could only have been inherited by his five sons. As such there could not have been any partition of the property in the absence of the daughters and wife of Late Khazan Singh. Therefore the property has to be treated as a joint property and the remedy available with the plaintiff is seeking a decree for partition and not any injunction against his brothers.
3.2. In such circumstances, without seeking a partition, the plaintiff can not claim any injunction against other legal heirs nor can he claim any right of damages on account of any construction related matter in respect of the property or consequential mental torture as a co-owner/co-sharer always possesses the property on behalf of all the co-owner/co- sharer.
3.3. Further, without impleading other class one legal heirs, the plaintiff can not maintain a suit against some of the legal heirs as in such situation plaintiff may be found guilty of breach of a mandatory provision of law regarding impleadment of a necessary party which clearly dis-entitles the plaintiff from maintaining a suit.
4. The issues framed by the Ld. Predecessor in the present case read as under:
1. Whether the suit is not maintainable being without cause of action? OPD.Hari Singh Vs. Balbir Singh 5
2. Whether the suit is barred U/S 41 (h) of the Specific Relief Act? OPD.
3. Whether the suit is bad for non-joinder of necessary parties? OPD.
4. Whether the plaintiff is entitled for the relief of recovery of Rs.1,00,000/-?
OPP.
5. Whether the plaintiff is entitled for the relief of Permanent and Mandatory Injunction? OPP.
6. Relief.
5. In view of the discussion made above, all the issues are decided against the plaintiff and in favour of the defendants. Plaintiff is not entitled for any relief.
6. Suit is dismissed. Parties being family members inter-se are left to bear their own cost in the facts and circumstances of the present case.
7. Decree be prepared accordingly.
Announced in the open
court today on 26.09.2014 (Rakesh Kumar Singh)
CJ-11/CENTRAL
DELHI
Hari Singh Vs. Balbir Singh 6