Delhi District Court
Civil Suit No.:2049/14 Suraj Mal. vs Rehdass. Date Of Decision :16.10.2018. on 16 October, 2018
Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
: IN THE COURT OF :
SH. KANWALJEET ARORA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No. 2049/2014
In the matter of:
SURAJ MAL,
S/o: Sh.Reh Dass,
R/o: A561, Gali No.15,
Mahavir Enclave, PartII, New Delhi59.
.....Plaintiff
Versus
REH DASS,
S/o.: Late Sh.Kirpa Ram,
R/o.: A561, Gali No.15,
Mahavir Enclave PartII,
New Delhi110059.
....Defendant
Date of Institution of Suit : 29.08.2014.
Date of reserving judgment : 06.10.2018.
Date of pronouncement : 16.10.2018.
Appearance:
(i) Sh.Manoj Kumar, Advocate, Ld. Counsel for the plaintiff.
(ii) Sh. V.K.Sharma, Advocate, Ld. Counsel for the defendant.
1
Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
SUIT FOR DECLARATION, PARTITION AND
FOR RENDITION OF ACCOUNTS
JUDGMENT :
1.Suraj Mal, the estranged son of Rehdass (defendant), had invoked the jurisdiction of this Court by filing the present suit seeking declaration, partition and rendition of accounts. Plaintiff claims that as son of defendant and grandson of Late Sh.Kripa Ram, he is entitled to a share in the property measuring 53 sq.yards, bearing no.A561, Gali No.15, Mahavir Enclave, PartII, New Delhi, which though stands in the name of his father ie. defendant Rehdass, but was purchased by his father from the ancestral funds given to him by late grandfather Sh.Kripa Ram of the plaintiff.
2. Relevant facts which necessitated the plaintiff to file the present suit, emanating from the plaint are as under:
(a) It is averred that common ancestor of plaintiff Suraj Mal and Defendant Rehdass was grandfather of plaintiff, namely Late Sh.Kripa Ram and that parties to the suit are governed by Mitakshara School of Hindu Law.
(b) It is alleged that in 1982, grandfather of plaintiff namely Late Sh.Kripa Ram gave ancestral money/ funds to defendant for purchasing a land measuring 100 sq.yards, using which defendant Rehdass alongwith his brotherin law, had purchased 100 sq.yards of land situated in Gali No.15, Mahavir Enclave PartII, Delhi.
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(c) It is alleged that defendant as well as plaintiff alongwith his mother namely Smt.Sona Devi, who was first wife of defendant, started living in the suit property. It is alleged that mother of plaintiff namely Sona Devi died in the year 1984, leaving plaintiff as the only child to defendant Rehdass.
(d) It is alleged that defendant Rehdass, after death of his first wife had married one Kusum and plaintiff continued to reside with them.
(e) It is alleged that on 21.06.1996, the land so purchased jointly by defendant along with his brother in law, was partitioned between them and defendant got "Title" of the property measuring 53 sq.yards bearing no.A561, Gali No.15, Mahavir Enclave, PartII, New Delhi110059 (hereinafter referred to as "suit property"), in his own name.
(f) It is alleged that defendant held interest, rights and title in the suit property, as property of the joint family and as such, plaintiff also had an "undivided interest"
therein.
(g) It is alleged that plaintiff got married in May 2002 and he alongwith his wife and three children continued to reside in one room on the ground floor of the suit property, where he is residing till date.
(h) It is alleged that in the year 2005, an oral partition took place between the plaintiff and defendant, whereby half of the suit property was agreed to fall in the share of plaintiff.3
Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
(i) It is alleged that parties however remained in joint status till 2005 and on 13.07.2005 a written agreement took place between the parties, whereby defendant agreed to give the possession of entire ground floor of suit property to plaintiff.
(j) It is alleged that defendant has given first floor of the suit property on rent, which he is appropriating as his separate income, without giving any amount of rental income, to the plaintiff towards his share.
(k) It is alleged that as defendant has failed to give the entire portion which fell in the share of plaintiff and also to share the rent arising out of the suit property with the plaintiff, plaintiff finding no other efficacious remedy has filed the present suit.
3. Plaintiff has prayed for :
(a) A decree of declaration to the effect that suit property stands partitioned in the year 2005; and that he is entitled to possession of entire ground floor of the suit property ;
(b) For having partition of the suit property by meets and bounds ; and
(c) For directing defendant for rendition of accounts with respect to rent received by him, through renting the 2nd floor of the suit property and to share the same with plaintiff.
4. Summons for settlement of issues were served on the defendant. Pursuant to service of summons, defendant Rehdass tendered his appearance and filed his written statement 4 Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
wherein facts alleged by the plaintiff were denied.
5. It is averred that suit of the plaintiff being devoid of any cause of action, be rejected. It is contended that the suit property is a "Self Acquired" property of the defendant, wherein he has permitted the plaintiff to live in one room of the ground floor. It is contended that the legal relationship between the parties is that of "licensor" and "licensee".
6. It is contended that the suit property was purchased by defendant jointly with one Kishan Lal from the erstwhile owner Kali Ram. It is contended that no property was ever inherited by defendant from his father. It is contended that the exact area of the suit property is 50 sq.yards and defendant is using the same as absolute owner and has a right to letout the same, to the tenants. It is contended that defendant had permitted the plaintiff (who is his son) to use one room on the ground floor of the suit property. It is contended that plaintiff does not have any right, title or interest in the suit property owned by defendant. It is contended that as the property in question is "self acquired"
property of the defendant, therefore there is no question of any partition. It is contended that nowhere in the family settlement dated 13.05.2005, it was ever agreed upon by defendant to give the entire ground floor of the property to the plaintiff or for any partition. It is contended that suit of the plaintiff being false and frivolous, be dismissed.5
Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
ISSUES:
7. On the basis of pleadings of the parties, Ld.Predecessor of this Court vide orders dated 14.12.2015, had framed following issues:
1) Whether the present suit is not maintainable in view of preliminary objections No.01, 02 and 03 of the written statement? ...O.P.D.
2) Whether the present suit has not been valued properly for the purposes of court fee, in view of preliminary objection No.04 of the written statement? ...O.P.D.
3) Whether the plaintiff has no locus standi to file the present suit in view of preliminary objection no.06 of the written statement ? ... O.P.D.
4) Whether the plaintiff is entitled to relief of declaration, as prayed for in prayer (a)? ...O.P.P.
5) Whether the plaintiff is entitled to relief of partition by meets and bound, as prayed for in prayer (b)? ...O.P.P.
6) Whether the plaintiff is entitled to the rendition of accounts, as prayed for in prayer (c)?
...O.P.P.
7) Relief.
8. Parties to the suit were thereafter called upon to substantiate their respective cases by leading evidence.
6Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
9. Plaintiff in order to do so,appeared in the witness box as PW1. He filed his examination in chief by way of affidavit Ex.PW.1/A. During the course of his examination in chief, PW1 had proved "Family Settlement Deed" dated 13.07.2005 as Ex.PW.1/1. He was cross examined in detail by Sh.V.K.Sharma, Advocate, Ld.Counsel for Defendant.
10. No other witness was examined by the plaintiff.
11. Defendant was thereafter called upon to produce his evidence. Defendant in order to substantiate his case appeared in the witness box as DW1. He during the course of his testimony placed on record the title documents dated 31.12.1982 vide which the property was jointly purchased by him and Kishan Lal from one Kali Ram. DW1 during the course of his testimony has proved following documents:
(i) General Power of Attorney as Ex.DW.1/1 ;
(ii) Agreement as Ex.DW.1/2 ;
(iii)Affidavit as Ex.DW.1/3 ; and
(iv)Receipt dated 31.12.1982 regarding payment of consideration amount as Ex.DW.1/4 ;
(v) Receipt of payment of registration charges was proved as Ex.DW.1/5 ;
(vi) GPA dated 21.06.1996 executed by Kishan Lal in favor of defendant Rehdass, was proved by him as Ex.DW.1/6.
7Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
12. Defendant was cross examined by Sh.Manoj Kumar, Advocate, Ld.Counsel for plaintiff.
13. Defendant in support of his case had also examined Kishan Lal, who appeared in the witness box as DW2 and filed his examination in chief as Ex.DW.2/A.
14. Examination in chief as well as cross examination of plaintiff and both DW1 and DW2 is not being referred here for the sake of brevity and material portion thereof, more particularly the one referred to by Ld.Counsels for the parties, shall be adverted to, while giving my findings on the issues so framed.
15. I have heard the arguments advanced by Sh.Manoj Kumar, Advocate, Ld.Counsel for plaintiff. Sh.V.K.Singh, Advocate, had advanced arguments on behalf of defendant Rehdass.
16. Sh.Manoj Kumar, Advocate, Ld.Counsel for the plaintiff submitted that an oral partition took place between the parties in the year 2005 which was subsequently reduced into writing vide settlement deed Ex.PW.1/1. He contended that as the suit property was purchased by defendant from the ancestral funds, therefore plaintiff has an equal share in the suit property being coparcner in the joint family property. It is further 8 Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
contended by Ld.Counsel for plaintiff that as per the family settlement deed Ex.PW.1/1, plaintiff is residing there as owner and the property be partitioned by meets and bounds.
17. Ld.Counsel for plaintiff further contended that the rent derived by defendant, from the joint family property, is required to be equally divided between plaintiff and defendant.
18. Countering these contentions, it is urged by Sh.V.K.Singh Advocate, Ld.Counsel for the defendant that suit of the plaintiff merits dismissal. It is contended that admittedly the suit property was purchased by defendant. It is contended that as the property in question was self acquired property of defendant, therefore, there is no question of the partition of the same, during the lifetime of defendant. It is contended that defendant out of love and affection has permitted plaintiff to reside in one room on the ground floor, whereas attitude of the plaintiff towards defendant has always remained rude and hostile.
19. It is submitted by Ld.Counsel for defendant that suit of the plaintiff be dismissed as plaintiff has failed to prove the averments made by him in the plaint, so as to prove on record that suit property is an ancestral property or has been purchased out of funds raised from ancestral property.
9Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
20. I have considered the submissions advanced by Ld.Counsels for the parties visavis the oral as well as documentary evidence on record.
21. My issuewise finding is as under: ISSUE NO.1 and 3:
22. Considering the fact that the outcome of Issue No.1 and 3, rests on the findings on Issue Nos. 4, 5 and 6, therefore both these issues shall be taken up together, after my discussion and finding on Issue No.4, 5 and 6.
ISSUE NO.2:
23. The onus to prove this issue was on the defendant. Defendant Rehdass has raised this plea in his written statement, as plaintiff initially had not annexed the court fees and sought indulgence of the Court to file the present plaint, as indigent person. However, during the course of proceedings, it is apparent that vide orders dated 04.11.2015, the plaintiff had withdrawn the application under Order XXXIII Rule 1 CPC and had deposited the requisite court fees.
24. Having regards to this fact and considering that defendant neither during the course of his evidence, nor during arguments had agitated this issue any further, therefore this issue is decided against the defendant and in favor of the 10 Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
plaintiff.
ISSUE NO.4, 5 AND 6:
25. Considering the fact that all these issues relates to the entitlement of the prayers made by plaintiff before Court regarding declaration, partition, and rendition of accounts qua the suit property, therefore the same are being discussed together.
26. As plaintiff has sought his entitlement to seek the reliefs of declaration, partition and rendition of accounts qua suit property claiming himself to be a coparcener and the suit property to be ancestral property having status of "joint family property." Therefore, the sinequanon for entitlement of the plaintiff to seek such reliefs is, as to whether the suit property is joint family property in the hands of defendant, inherited by him from his ancestors and whether plaintiff is coparcener in the same.
27. For getting answers to these questions, it is necessary to peep into not only the evidence on record but also the averments made in the pleadings. Before adverting to the factual position which has emerged on record, on basis of oral and documentary evidence, that has been brought to the fore by the parties, it is pertinent to mention herein as to what is the legal position, regarding "Law of Inheritance" which was prevailing 11 Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
prior to passing of "Hindu Succession Act 1956" and the change therein, after passing of the Act.
28. The legal position of "Law of Inheritance" which was prevalant pre 1956 ie. before passing of the Hindu Succession Act, 1956 and post 1956 ie. after passing of the Hindu Succession Act, 1956, was considered by Hon'ble High Court in judgement titled "Sunny (minor) & Anr. vs. Sh.Raj Singh & Ors.", bearing CS(OS) No.431/2006 decided on 17.11.2015. In the said judgment, Hon'ble High Court of Delhi, had relied upon the judgment passed by Hon'ble Supreme Court in the case titled "Yudhishter vs. Ashok Kumar" reported as (1987) 1 SCC 204 . Relevant paras of the judgement passed by Hon'ble High Court, with respect to the "Law of Inheritance" are reproduced as under:
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of death of such a person, inheritance of an immovable property of such a person by his successorsininterest is no doubt inheritance of an 'ancestral property' but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits "ancestral property" ie. A property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family / joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual property is thrown into a common hotchpotch, it is necessary 12 Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
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 VI 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 selfacquired 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 theHUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties.
(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.
29. In the backdrop of above, it is apparent that plaintiff in his plaint, had to allege and aver as to whether the suit property was inherited prior to 1956 or after 1956. The same is not to be.
30. After passing of the Hindu Succession Act, there is no such presumption that inheritance of ancestral property, creates an HUF. The difference brought by passing of Hindu Succession Act is that a person inheriting the property from his 13 Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
ancestors would take the same, as self acquired property unless, there is evidence to the effect that the same was thrown into a common hotchpotch creating an HUF.
31. Plaintiff not only in order to succeed but also to become entitle to file the suit was required to state as a positive statement in the plaint, as to how the suit property is HUF property in the hands of his father i.e. defendant. Although, plaint as well as deposition of plaintiff as PW1 is silent as to when his grandfather through whom he is claiming had expired. However, there is an averment made in the plaint that grandfather of plaintiff had given money to defendant in the year 1982 and from that money defendant Rehdass had purchased the suit property. Meaning thereby that grandfather of plaintiff had expired after 1956.
32. That being the position and considering the fact that admittedly the suit property being owned by defendant Rehdass and not by grandfather of plaintiff there had to be specific averment in the plaint as to when this HUF came into existence and when this property was thrown in common hotch potch. But it is evident from plaint that except for uttering a single self serving statement that the suit property is a "joint family property", there is nothing averred or brought in evidence by plaintiff as PW1, as to how the suit property is a "joint family property" and how he is a coparcener, having any undivided interest in the same.
14Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
33. Bare perusal of the plaint as well as entire testimony of PW1 i.e. his examinationinchief as well as cross examination reveals that the same is silent with respect to the aspect of the socalled ancestral properties in the hands of his grandfather late Sh.Kripa Ram. Neither any details of those properties are brought on record nor the date or time when the same were sold and for what consideration.
34. Defendant, on the other hand, during the course of his testimony as DW1, categorically stated that his father was a laborer and he did not inherit any amount from him. During the course of crossexamination of this witness conducted by Ld.Counsel for plaintiff, though it was admitted by defendant that his father had got 2 plots, which were given to him by Govt in programme of allotment of land to poor persons, however he denied having the knowledge as to when those plots were sold by his father.
35. DW1 during the course of his cross examination categorically stated that for the purposes of purchasing the suit property, he had borrowed some amount from the factory owner, where he was working and from his brother in law Kishan Lal. DW1 denied the suggestion that property was purchased by him from the funds given to him by his father.
15Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
36. As the onus to prove the facts alleged in the plaint, was on the plaintiff, PW1 nowhere in his examination in chief filed by way Affidavit had disclosed any ancestral property in the hands of his grandfather Kripa Ram or transfer of the proceeds thereof from his grandfather Kripa Ram to defendant Rehdass.
37. Plaintiff for the purposes of his claim has further relied upon a "Family Settlement Deed" dated 13.07.2005 Ex.PW.1/1 stating that by virtue of this agreement, partition has taken place between him and his father and the entire ground floor of the suit property was agreed to fall in his share. Although, the original of this deed Ex.PW1/1 was not placed on record. However, considering the fact that execution of this document was not disputed by defendant, therefore, the same is being considered, in order to ascertain as to whether it is of any help to the claim of plaintiff.
38. Having due regards to Section 91 of Indian Evidence Act and perusal of Ex.PW.1/1, the document relied upon by plaintiff for the purposes of proving his claim, makes it evident that plaintiff has nonsuited himself, by relying on it. It is apparent on perusal of this document that plaintiff admitted in the said agreement signed by him, that defendant Rehdass is the "absolute owner" of the suit property. It is further apparent on perusal of this document that the same does not talk of any partition between the parties with respect to the suit property.
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Thus, the oral testimony of PW1 to the effect that suit property was purchased by his father i.e. defendant out of ancestral funds and thus the property is/was joint family property and that the same was partitioned between him and his father in the year 2005, stands belied on bare perusal of Ex.PW1/1.
39. Even otherwise, this document not being a registered document does not and can not convey or transfer any right in the suit property in favour of plaintiff.
40. Having regards to these facts and circumstances and considering that the suit property is owned by defendant and there is no evidence to the effect that this property was purchased out of ancestral funds and also considering the changed scenario of 'Law of Inheritance' after passing of Hindu Succession Act 1956, I am of the considered opinion that plaintiff has failed to discharge the onus caste on him to get the necessary relief and to prove these issues.
41. Consequently, Issue No.4, 5 and 6 are decided against the plaintiff and in favor of the defendant.
ISSUE NO.1 AND 3:
42. In view of my findings on Issue No.4,5 and 6, suit of the plaintiff is NOT maintainable as has been alleged by defendant in the written statement.
17Civil Suit No.:2049/14 SURAJ MAL. V/s REHDASS. Date of Decision :16.10.2018.
43. Consequently, Issue No.1 and 3 are decided in favor of the defendant and against the plaintiff.
RELIEF:
44. In view of my finding on above Issues, suit of the plaintiff is "Dismissed".
45. Parties are left to bear their own cost. Decree Sheet be prepared accordingly.
46. File be consigned to Record Room.
Announced in the open court on
Digitally signed
16th Day of October, 2018. KANWAL by KANWAL
JEET JEET ARORA
Date: 2018.10.18
ARORA 16:31:41 +0530
(KANWALJEET ARORA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
18