* HIGH COURT OF DELHI AT NEW DELHI
+ C.S. (OS) No.1321/2010
Decided on : 06.02.2014
MASTER GAUTAM YADAV & ORS ..... Plaintiff
Through: Mr.Mohit Chaudhary and
Ms.Damini Chawla, Advs.
versus
JAGDISH YADAV & ANR ..... Defendant
Through: Mr.Ashok Chhabra, Adv. for
Defendant Nos.1 & 2.
Mr.Kapil Sankhla and
Mrs.Meghna Sankhla, Advs. for
Defendant Nos.3 & 4.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. The question which arises in the instant case is as to whether the suit as framed is liable to be rejected under Order 7 Rule 11(a) CPC as being without any cause of action. The contention of the learned counsel for the plaintiff is that the suit as framed is maintainable while as this aspect has been contested by the learned counsel for the defendants. Before dealing with the submissions made by the learned counsel for the plaintiff, it may be pertinent here to give a brief background of the case.
2. The plaintiffs/Master Gautam Yadav and his mother Smt.Mamta Yadav have filed a suit against the defendants for partition and mandatory injunction. It has been alleged in the plaint that the plaintiffs are the son and the widow of late Sh.Rakesh Yadav, who was the son of Sh.Jagdish Yadav and Smt.Shanti Devi, defendant Nos.1 & 2 herein respectively. It is alleged that Sh.Jagdish Yadav/Defendant No.1, the grandfather of plaintiff No.1 had inherited the following properties from his father late Sh.Mohan Singh: "a. 1126 square yards of land, bearing No.23/23, Gali No.7, Village Samaypur, Delhi.
b. Share in 4 bighas 15 biswas of land situated at Khasra No.8/18, situated at Village Libaspur, Delhi.
c. Share in 3 bighas 10 biswas of land situated at Khasra No.8/19, situated at Village Libaspur, Delhi.
d. 214 square yards of land situated at Khasra No.214, Gali No.7, Village Samaypur, Delhi.
e. 350 square yards of land wherein house is constructed bearing House No.109 at Khasra No.80, situated at Lal Dora, Abadi Deh, at Vilalge Samaypur, Delhi.
f. 200 square yards of land situated at
Narela.
g. 200 square yards of land situated at Gali No.7, Village Samaypur, Delhi."
3. In para 6 of the plaint, it has been averred that after the death of the husband of the plaintiff No.2, the entire family sat together and an oral partition amongst the family members took place whereby the property of the husband of the plaintiff No.2 was apportioned and was earmarked to be given to plaintiff No.1. That on 22.11.2006, the factum of the oral partition of the properties came to be recorded in the form of a registered Will executed by defendant No.1 whereby the ancestral property was divided amongst plaintiff No.1 and defendant No.4 in proportion.
4. In para 8 & 9 of the plaint, it has been averred as under:
"8. That out of the properties mentioned herein above in para No.4, the parties are getting regular rental incomes as most of the properties are in industrial area where factories are paying good rentals. Apart from the rentals received from the factories, families have constructed small rooms which are let out to staff working in the factories. This adds to the generation of rental income.
That the plaintiff No.1 is getting rental income to the following extent:
Rs.14,400/- from Mr.Jitendra Mohan Dhall.
Rs.4,000/ from Mr.Rajiv Bajaj.
Rs.6,000/ from Mr.Deepak.
Rs.1,800/ from Mr.Makhan Lal.
Rs.2,500/ from Mr.Shekhar.
Rs.1,800/ from the labour room.
Rs.1,600/ from Mr.Umesh.
Rs.1,600/ from husband of Mrs.Sanjana.
Rs.1,200/ from Mrs.Shanti.
Rs.1,000/ from Mr.Avdesh
Rs.26,000/ from Father in law i.e. Defendant No.1
(Rs.8,500/- from A-809 + 3,000/- from
basement of A-809 and Rs.14,500/- from
A-2548)
Total of
Rs.61,900/-
(Rent Agreement dated 14.05.2008 with Mr.Jitendra Mohan Dhall is filed with the list of documents) (Rent Agreement dated 03.07.2008 with Mr.Rajiv Bajaj is filed with the list of documents)
9. That from the income generated by collecting rent the plaintiff No.2 got constructed 3 storey building at A-1034.5 square feet where she has got the electricity meter fixed further she is getting the rental income from this area as well."
5. After making these averments, it has been alleged that defendant Nos.1 and 3 have started playing dirty tricks to oust the plaintiffs from the accommodation which is under his occupation and to stop the rental income being received by the plaintiffs. It has been further stated that the defendants are threatening the plaintiffs as they have got a certificate of marriage prepared by virtue of which they seek to prove to the society that plaintiff No.2 is a person of weak moral fibre for having contracted a second marriage and they would throw her out along with plaintiff No.1. It has also been alleged that at the behest of defendant Nos.1 and 3, some property brokers are visiting the property and they are intending to dispose of the same. The para 15 of the plaint states about the cause of action which has accrued to the plaintiffs and the same is as under: " Cause of Action That the cause of action arose in favour of the plaintiffs to ask for partition, when on 28.08.2006 father of plaintiff No.1 expired. Further, it arose when on 22.11.2006, the factum of the oral partition of the properties came to be recorded in the form of a registered Will executed by defendant No.1 whereby the ancestral property was divided amongst plaintiff No.1 and defendant No.4 in proportion.
Lastly the cause of action arose in favour of the plaintiff on 1st July, 2010 when plaintiff No.2 came to know that the defendant No.1 and 3 has got a fake marriage certificate of the plaintiff prepared. Further, it is continuing as the defendants are showing the properties to third parties for sale and also they are calling panchayat on 06.07.2010 so as to throw the plaintiffs out of the village."
6. In the light of the aforesaid averments, the plaintiffs have prayed for a decree of partition in respect of the suit properties which are mentioned in para 4 of the plaint and which is recorded in the registered Will dated 22.11.2006. It is prayed that a preliminary decree of partition apportioning the shares of the co-sharers be passed and a local commissioner be appointed to suggest the ways and means of partition and thereafter pass a final decree of partition.
7. The contention which has been advanced by the learned counsel for the defendants is that the suit filed by the plaintiffs is essentially for partition of the properties as mentioned in the para 4 of the plaint. He states that the pleadings made in para 6 of the plaint, which are further fortified by the pleadings made in para nos. 8 & 9, the plaintiffs themselves are claiming that an oral partition has taken place way back on 22.11.2006 and the properties apportioned as a consequence of which not only the plaintiff No.1 is continuing to enjoy the rentals from various tenants as detailed in para 8 of the plaint, but he has also been living in one of the properties which has been built by him on the plot of land which has fallen to his share. This fact of partition is further fortified by the fact that it has been recorded in the Will of Sh.Jagdish Yadav, who is still alive. It has been contended that though the Will of Sh.Jagdish Yadav cannot be treated as Will because he is still alive, nevertheless, the said document having recorded the factum of partition amongst various members of the family clearly shows that a second suit for partition would not lie as the partition has already taken place.
8. The learned counsel for the plaintiffs on the contrary has contended that the suit for partition is maintainable on account of the fact that it was only an oral partition and nothing was reduced into writing and the plaintiffs have not got their entire share.
9. I have considered the submissions made by the learned counsel for the plaintiffs and gone through the plaint. In order to appreciate as to whether the present suit for partition is maintainable or not, it is essential to see what exactly is meant by partition. In Kalyani v. Narayanan; AIR 1980 SC 1173, it has been observed as under:
"... a disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right. From the time of such disruption, each member holds his aliquot share as tenant-in-common irrespective of whether there is actual division of the properties by metes and bounds. Such would be the position, unless there is proof or reunion as understood in law. It is established law that actual physical division or partition by metes and bounds is not an essential ingredient for the purpose of effecting severance of status. That is really a formality in the process of partition. When there is a severance of the joint family from a particular date, but the properties are not partitioned, the members of the family become tenants in common and would be liable to account for the incomings received by them till the time that a final partition takes place and the properties are in the respective possession of such members. Such coparcener are tenants in the common but cannot be characterized as trustees."
10. A perusal of the aforesaid observation of the Supreme Court would show that the moment there is apportionment of shares amongst the members of the coparcenary and there is actual division by metes and bounds, the partition is complete. In the instant case, the plaintiffs' own case is that an oral partition has taken place on 22.11.2006 between the plaintiffs and the other members of the coparcenary. This factum has been fortified by reference to the mention having been made in a document which is claimed by the plaintiffs to be the Will of Sh.Jagdish Yadav, the grandfather of plaintiff No.1. It has further been admitted by the plaintiffs in the plaint that in pursuance to this partition, he is receiving a rent from a number of tenants amounting to Rs.80,000/- or so apart from the fact that he has got a parcel of land on which construction was also raised by him. Therefore, these averments made by the plaintiffs themselves that an oral partition was effected, shares determined and the property received by the plaintiffs and which was continued to be enjoyed by them till the filing of the suit, the partition was complete and the second suit for partition would not be maintainable.
11. It is admittedly not the case of the plaintiffs that a partition has taken place and he was entitled to a share higher than what has been given to him. In that case, the appropriate remedy on the part of the plaintiffs would have been to file a suit for possession or a suit for giving complete effect to the partition by seeking declaration or mandatory injunction. This is not a suit filed for declaration, mandatory injunction or permanent injunction by the plaintiffs. On the contrary, he is claiming partition of the properties as detailed in para 4 of the plaint in respect of which his own case is that a partition has already taken place orally on 22.11.2006 which was subsequently reduced into writing also. In the cause of action clause also this fact is averred. That being the position, there was hardly any cause of action for the plaintiffs to file a second suit for partition of the suit properties.
12. I accordingly feel that the suit as filed by the plaintiffs is without any cause of action and the same is liable to be rejected.
13. Ordered accordingly.
IA No.1073/2014 (u/Order 6 Rule 17 CPC by the plaintiffs)
1. So far as the instant application to carry out clarificatory amendment in the plaint is concerned, the same is dismissed as having become infructuous inasmuch as the suit itself has been rejected on account of lack of cause of action.
V.K. SHALI, J.
FEBRUARY 06, 2014 dm