Raj Kumari Sharma vs Rakesh Kumar Sharma & Another on 28 August, 2017

[Cites 5, Cited by 2]

Delhi High Court

Raj Kumari Sharma vs Rakesh Kumar Sharma & Another on 28 August, 2017

1. The dispute pertains to two properties viz (a) No.25A and 25B, Block - C, Rama Park, Uttam Nagar, New Delhi admeasuring 246 square yards consisting of two rooms (hereafter referred as Uttam Nagar property) and (b) MIG Flat No.B-3/11, IA No.4055/2016 in CS(OS) No.3206/2014 1 of 10 Sector - 18, Rohini, Delhi (hereafter referred as Rohini property). Both the properties were owned by Shri Madan Mohan Lal Sharma, who expired on 17.02.2000, leaving behind his widow - plaintiff; his son - defendant No.1; and his daughter - defendant No.2 herein.

2. It is alleged by the plaintiff that she was residing with defendant No.1 at Rohini property, but the behavior of defendant No.1 and his wife was so cruel and she was turned out from there on 11.06.2013 and since then she has been residing with her relative(s). Neither the defendant No.1 nor his wife have even bothered to see how his mother is residing in miserable condition having no place to stay or food to eat. Defendant No.1 is not paying any amount to her as maintenance either. A petition under Section 12 of the Domestic Violence Act, 2012 is filed by the mother / plaintiff against her son/defendant No.1.

3. In the above backdrop, I now proceed to deal with the application - IA No.4055/2016 moved by defendant No.1 for recalling of the order dated 26.05.2008. Since the deceased had died intestate leaving behind the aforesaid properties, all the three parties to suit are, even otherwise, entitle to 1/3rd share each in both properties. Hence, on 26.08.2015 with the consent of parties, following order was passed by this Court:-

"With the consent of the parties, a preliminary decree is passed declaring that the plaintiff and the defendants are entitled to 1/3rd share each in the property bearing IA No.4055/2016 in CS(OS) No.3206/2014 2 of 10 No.25A & 25B, Block-C, Rama Park, Uttam Nagar, New Delhi, and property bearing No.MIG Flat No.B-3/11, Sector-18, Rohini New Delhi. Accordingly Mr.Amiet Andlay, Advocate (Mob.9811151686) is appointed as the Local Commissioner to visit the said suit properties and suggest the modes of partitioning the same by metes and bounds. The fee of the Local Commissioner is fixed at Rs.60,000/- to be shared by the parties in equal proportions. The Local Commissioner shall file the report before the next date. List on 15th December, 2015."

4. It is now alleged by defendant No.1 that on 26.08.20015 he was not present in the Court and his Advocate gave the consent for preliminary decree without obtaining his consent. When the defendant No.1 came to know about the consent for passing the preliminary decree for partition, he immediately approached his advocate and asked the reasons for giving such consent and as he did not receive any satisfactory reply, the defendant No.1 discontinue the services of his advocate and approached the present advocate for recalling of the order dated 26.08.2015.

5. It is alleged that according to the Hindu Succession (Amendment) Act, 2005 daughters have no succession rights in the properties of father, who died prior to coming into force of such amendment, hence, defendant No.2 has no right to get a share in the properties of her father.

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6. Learned counsel for applicant/ defendant No.1 relies upon the decision of the Supreme Court in Prakash & Ors vs. Phulavati & Ors ILC-2015-SC-CIVIL-Oct-20 decided on 16.10.2015 and says the consent preliminary decree for partition passed by this Court is, even otherwise, illegal and in contravention of the decision in Prakash (supra). The aforesaid decision interpreted Section 6 of the Hindu Succession Act, 1956 amended by Hindu Succession (Amendment) Act, 2005 and it runs as under:-

"6.Devolution of interest in coparcenary property.--

(1) xxxx xxxx (2) xxxx xxxx (3)Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) The share of the pre-deceased child of a pre-deceased son or of a pre-

deceased daughter, as such child would have got had he or she been alive at the IA No.4055/2016 in CS(OS) No.3206/2014 4 of 10 time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not."

7. Before adverting to the contentions raised by the learned counsel for defendant No.1, let me say that in Prakash (supra) the following was held as under:-

"22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6 (1) and (3) is not in any manner intended to be affected but strengthened in this way.

Settled principles governing such transactions relied upon by the appellants IA No.4055/2016 in CS(OS) No.3206/2014 5 of 10 are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition \effected thereafter will be governed by the Explanation."

8. The above section and decision clearly does not apply to the facts of this case for the reason there is no allegation by defendant no.1 that the properties aforesaid are HUF properties or defendant no.2 is claiming share in coparcenary property.

9. Now, one thing is admitted by defendant no.1 in this case is that counsel for defendant No.1 appeared on 26.08.2015 though defendant No.1 was not present in the Court. However, during the course of arguments on this application, defendant No.1 changed his stand that he never appointed Mr.Sanjiv Narula, Advocate and he do not know how Sh.Sanjiv Narula Advocate appeared on behalf of defendant No.1 on 26.08.2015. Defendant No.1 rather says that Ms.Naina Kejeriwal was his advocate.

IA No.4055/2016 in CS(OS) No.3206/2014 6 of 10

10. Both Advocates Ms.Naina Kejriwal and Mr.Sanjeev Narula have filed their affidavits stating inter-alia as to how and why Mr.Sanjiv Narula, Advocate appeared on behalf of defendant No.1 on 26.02.2015 in this case. Both of them stated that defendant No.1 very much present during the course of hearing on 26.08.2015 and whatever he is saying, is totally false with ulterior motives to wriggle out of the preliminary decree passed by this Court. They also referred to the record maintained by the Visitors Pass Section, General Branch, of this Court. As per the report of the Visitors Pass Section, General Branch, of this Court, entry pass was issued to defendant No.1 on 26.08.2015 and hence the plea of defendant No.1 that he was not present in the Court is false.

11. Even Mr.Sanjeev Narula, Advocate says that the visitor pass was issued on the recommendation of Mr.Girish Sharma, Advocate, who is relative of the plaintiff as well as defendants and Sh.Girish Sharma Advocate, had introducted the defendant No.1 to the deponent on the said date and requested Mr.Sanjeev Narula, Advocate to be appointed as the counsel for defendant no.1 and was asked to appear on his behalf, though the Vakalatnama was to be signed and filed subsequently. Hence, on the instructions of defendant No.1, Mr.Sanjeev Narula, Advocate made the submissions as per law, thus enabling this Court to pass an order dated 26.08.2015. Ms.Naina Kejriwal Advocate who has been appearing on behalf of defendant No.1 say that she was not comfortable with the behavior of defendant No.1 and hence IA No.4055/2016 in CS(OS) No.3206/2014 7 of 10 refused to do his case and asked him to take back his files. All the above show that defendant No.1 is taking a false plea and is revoking his consent, probably, on being wrongly advised of the law.

12. There is substance in the submissions made by both Advocates namely Ms.Naina Kejriwal and Mr.Sanjiv Narula and further the report of the Visitors Pass Section of this Court also negates the plea of defendant No.1 that he was not present in the Court on said date. In his application, the defendant no.1 has rather stated that the Advocate who appeared on his behalf on 26.08.2015 was never authorized by him and his plea is that he was not present in the Court and that his Advocate gave the consent without being authorized by him. However, during arguments he back tracked and alleged he do not know his counsel Mr.Sanjeev Narula, Advocate and this cannot be allowed to be done.

13. The submission of defendant No.1 is further falsified by the fact that learned Local Commissioner was appointed by the impugned order itself and his fees was fixed at ₹60,000/- to be shared by the parties in equal proportion. It is not denied that the learned Local Commissioner Mr.Amiet Andlay, Advocate received a sum of ₹20,000/- towards fee from defendant No.1 by cheque. The cheque amount of ₹20,000/- represents 1/3rd of total fees of ₹60,000/-, of the learned Local Commissioner which also indicates the share of the defendant no.1 was 1/3rd and he accepted the same by paying 1/3rd fee of learned Local Commissioner.

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14. Further on 21.11.2015, the learned Local Commissioner visited at Rohini property with two draughtsman where he met the wife and son of defendant No.1 and after informing them the reason and purpose of his visit, he inspected the premises. Uttam Nagar property could not be inspected on said date and he inspected the same on 29.11.2017 at 11.30AM. Before the learned Local Commissioner, defendant No.1 never raise any objection qua not giving consent to the passing of the preliminary decree and rather was cooperative with the learned Local Commissioner. It appears that after he laid hand on the decision of Prakash (supra) probably was advised that daughter does not have any share in the property of late father who died after passing of the Hindu Succession (Amendment) Act, 2005 and hence for this reason the defendant No.1 had filed this application for withdrawing his consent for the preliminary decree for partition, which he has no right to do for the following reasons:-

(a) The decision in Prakash (supra) is not applicable in the present case for reasons stated above;

(b) defendant No.1 was very much present in the Court on said date;

(c) in the application, he never challenged the authority of Mr.Sanjeev Narula to appear on that date and rather alleged that his Advocate was not authorized to give statement;

hence his plea that he never appointed Mr.Sanjiv Narula is blatantly false;

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(d) he paid his 1/3rd share of fees to learned Local Commissioner continuously and even cooperated in the proceedings of the local commissioner when he visited the properties; and

(e) this application has been filed on 19.03.2016 i.e. after four months of the inspection of the properties by the learned Local Commissioner and after six months of the passing of the impugned order, probably on wrong advise that daughters do not have share in self-acquired properties of their late father.

15. In view of above reasons, the review application of defendant No.1 is hereby dismissed.

16. Considering the relationship between the parties and nature of lis, no punitive action is taken against defendant No.1. Both the noticee Advocates are also discharged from the Notice.

17. No order as to costs.

YOGESH KHANNA, J AUGUST 28, 2017 M IA No.4055/2016 in CS(OS) No.3206/2014 10 of 10

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