$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 27th July, 2022.
+ CS(OS) 657/2017 & I.A. Nos. 14547/2017 & 8118/2020
SMT. PHOOLWATI & ORS ..... Plaintiffs
Through: Ms. Kajal Chandra with
Ms. Prerna Chopra, Mr. Viren
Kapur and Ms. Sakshi Anand,
Advocates.
versus
SHRI DEVINDER SINGH & ORS ..... Defendants
Through: Mr. Ujjwal Jha with Mr. Shilp
Agrawal, Advocates for
defendant nos. 1-3 and 6-9
Mr. B.R. Kaushik, Advocate for
defendant no. 6.
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
JUDGMENT
MINI PUSHKARNA, J. (ORAL) I.A. No. 8118/2020 (Application under Chapter IX Rule 6 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC on behalf of the plaintiffs)
1. This is an application on behalf of the plaintiffs under Chapter IX Rule 6 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 CPC.
2. The present suit is a suit for declaration and partition filed on behalf of the plaintiffs with respect to suit properties owned by late Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 1 of 13 Signing Date:03.08.2022 17:22:09 Sh. Lo Ram. The plaintiff no. 1 is widow of Ram Chander, deceased son of the original owner, late Sh. Lo Ram. Plaintiff nos. 2 and 3 are the daughters of plaintiff no. 1 i.e. granddaughters of the original owner late Sh. Lo Ram.
3. Defendant no. 4 is the wife of late Sh. Subhash Kumar, son of the original owner late Sh. Lo Ram. Rest of the defendants i.e. 1 to 3 and defendants 5 to 9 are all sons of the original owner late Sh. Lo Ram, and uncles of plaintiff nos. 2 and 3.
4. In the present suit, the plaintiffs are seeking right, title and interest in the suit properties left behind by late Sh. Lo Ram, on the ground that they are joint equal owners along with the defendants, being the legal heirs/legal representatives of late Sh. Lo Ram. It is the case of the plaintiffs that late Sh. Lo Ram died interstate, leaving behind the suit properties as mentioned herein below:-
"a) Property being Khasra No.973/1 (2-8) and 974(3-15), situated in the revenue estate of village Mahipalpur , NCT of Delhi consisting of 6 Bigha 3 Biswas. New Delhi.
b) Khasra No. 509,462 as per the Khatuni situated in the revenue estate of village Mahipalpur, NCT Of Delhi consisting of 1 Bigha 13 Biswas New Delhi.
c) Property bearing Khasra No.283/1, 281/2,(mutation no. 1042), 284/1, 284/2(mutation no. 1040), 834/1, 838/1,838/2. 838/3 839/2, 841/2. 841/3, 451/1, 524, 1030, 1074, 1085,34, 39/4, 40, 41/2, 42/2, 1126, 1127, 1273, 1274, 1282, 1283 Mahipalpur, NCT of Delhi comprising of approximately 90 Bighas.
d) Property being Abadi Gram Sabha bearing Khasra No. 452, 454, 523, 1271/2."
Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 2 of 13 Signing Date:03.08.2022 17:22:09
5. The plaintiffs have put forward a case that no physical partition of the aforesaid properties/estate of late Sh. Lo Ram has ever taken place between his legal heirs/legal representatives i.e., the plaintiffs and the defendants 1 to 9 herein, by metes and bounds. Thus, as per the plaintiffs, all the legal heirs/legal representatives of late Sh. Lo Ram, including the plaintiffs, are the co-owners having equal rights and claims over the suit properties left behind by the deceased.
6. By way of the present application, it is contended on behalf of the plaintiffs that defendants 1 to 3 and defendants 6 to 9 in their written statements have taken preliminary objections that the suit filed by the plaintiffs is not maintainable, since late Sh. Lo Ram expired on 14.05.2005, much before the amendment to Section 6 of the Hindu Succession Act which deals with coparcenary rights of women. Thus, the said defendants have contended that since late Sh. Lo Ram has died before the amendment in Section 6 of the Hindu Succession Act, no action can be brought by the female legal heirs of late Sh. Ram Chander, deceased son of late Sh. Lo Ram.
7. It is also the case of the defendants that the status of joint family was severed in or about the year 1980 and that the properties are in their possession as per their respective shares, with mutation having been effected in favour of the respective shareholders on 18.02.2002.
8. Issues in the present case were formulated on 25.11.2019, as follows:-
Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 3 of 13 Signing Date:03.08.2022 17:22:09 "i. Whether the plaintiffs are entitled to a decree of partition of the suit properties as mentioned in para No.3 of the plaint? OPP ii. Whether the plaintiffs are the legal heirs/legal representative of late Lo Ram? OPP iii. Whether the plaintiffs and defendants are joint owners of the suit properties? OPD iv. Whether the partition of the suit properties between the legal heirs of late La Ram have taken place in the year 1980? OPD v. Whether the present suit is not maintainable being barred by Section 185 of the Delhi Reforms Act, 1954? OPD vi. Whether the present suit is barred by limitation? OPD vii. Whether the present suit is barred under the provisions of the Delhi Land Revenue Act? OPD viii. Whether the plaintiffs are entitled to receive compensation awarded with respect to any other properties of deceased Lo Ram along with defendants? OPP ix. Whether the plaintiffs are entitled for a decree of permanent injunction against the defendants or their employees, agents, assignees, representatives and/or any other person or body claiming through them, as successor or otherwise, restraining them from creating third party interest and/or transferring, encroaching, constructing or - trespassing the possession of the suit properties to any person or in any manner?
x. Reliefs."
9. Thus, it has been contended on behalf of the plaintiffs that the matter be disposed of in view of Chapter IX, Rule 6 of Delhi High Court (Original Side) Rules, 2018 by pronouncement of judgment, in view of judgment of Hon'ble Supreme Court in the case of Vineeta Sharma Vs Rakesh Sharma, (2020) 9 SCC 1. The learned counsel for the plaintiffs has relied upon Para 129 of the said judgment, which is Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 4 of 13 Signing Date:03.08.2022 17:22:09 reproduced as below:-
""129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9. 9. 2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December. 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9. 9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 5 of 13 Signing Date:03.08.2022 17:22:09 evidence alone cannot be accepted and to be rejected outrightly."
10. Thus, relying upon the aforesaid judgment of Hon'ble Supreme Court, it is contended on behalf of the plaintiffs that issues no. 1 to 4, 6, 8 and 9 are fully covered and that the objections of the defendants do not survive any more. It is the case of the plaintiffs that the aforesaid judgment of Hon'ble Supreme Court recognises that that plaintiffs are the coparceners and that the plea of alleged oral partition has no relevance in the eyes of law.
11. It is further contended on behalf of the plaintiffs that with respect to issues no. 5 and 7, in view of notification dated 23.04.1982 under section 507 of the DMC Act, 1957, the area of Mahipalpur was urbanised and notified as urbanised vide notification dated 05.10.1989. Thus, the entire abadi land and the revenue estate of Village Mahipalpur had been urbanised and that the land was no longer governed by the Delhi Land Reforms Act. Thus, the mutation in favour of the defendants in the year 2002, is null and void.
12. It is, thus, contended on behalf of the plaintiffs that issues framed on questions of law and fact by this Court, are satisfied and are fully covered by the judgment of the Hon'ble Supreme Court in the case of Vineeta Sharma (supra) and the notifications pertaining to urbanisation of Mahipalpur. Learned counsel for the plaintiffs, therefore, submits that no further evidence is required to be adduced upon by the parties herein. Thus, prayer is made to decide the present suit and pronounce judgment in terms of Chapter IX Rule 6 of Delhi High Court (Original Side) Rules, 2018.
Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 6 of 13 Signing Date:03.08.2022 17:22:09
13. In support of her arguments, ld. Counsel for the plaintiffs has relied upon the following judgments:
Nirmala & Ors. vs. Government of NCT of Delhi & Ors. 170 (2010) DLT 577 (DB) Smt. Indu Khorana vs. Gram Sabha & Ors. 2010 SCC OnLine Del 1334 Sh. Ishwar Singh vs. Sh. Sunder Singh & Ors. 2011 SCC OnLine Del 1654
14. On the other hand, on behalf of the defendants, it has been contended that present application is not maintainable and that by way of the present application, the plaintiffs want to get decree of the suit wrongly, on the basis of wrong and false facts.
15. It is submitted on behalf of the defendants that the properties in dispute, have already been partitioned in the year 1980 during the lifetime of late Sh. Lo Ram. After partition of the properties, all the co-sharers are already in possession of their respective shares. Mutation in respect of the suit properties has already been done in favour of the respective co-sharers by the Revenue Court, Kapashera, Delhi. Thus, it is contended that if the plaintiffs are raising disputes with respect to the oral partition of 1980, then the said issue can only be decided by adducing evidence on behalf of both the parties.
16. The defendants further contend that as per amendment of 2005, the partition of which property has already been arrived before 20.12.2004, a suit for partition is not maintainable by any co-sharer. After partition of property in dispute in the year 1980, the said Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 7 of 13 Signing Date:03.08.2022 17:22:09 property has not remained as coparcenary property, hence, the present suit for partition is not maintainable.
17. I have considered the submissions made on behalf of both the parties. The main averment on behalf of the plaintiffs is that the issues as framed in the present case are fully covered by the judgment of Vineeta Sharma Vs. Rakesh Sharma (Supra) and other judgments as aforesaid. It is thus prayed on behalf of the plaintiffs to pass judgment since the provisions as contained in the substituted Section 6 of Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment, in the same manner as son with the same rights and liabilities. However, it is to be noted that in the present case, the defendants have setup case with respect to an oral partition which took place way back in the year 1980. It is pertinent to mention here that with respect to the issue of oral partition, Hon'ble Supreme Court itself carves out an exception in paragraph 137.5 of the aforesaid judgment. Thus, it has been held in the aforesaid judgment of Vineeta Sharma (Supra) that oral partition is not maintainable, however, the exception carved out by Hon'ble Supreme Court is that the oral partition can be proved by supporting evidence/documentary evidence.
18. Hon'ble Supreme Court has held in categorical terms that in exceptional cases, where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been effected by a decree of court, it may be accepted. Paragraph
- 137.5 states as follows:
Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 8 of 13 Signing Date:03.08.2022 17:22:09 "137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
19. There is clear finding by Hon'ble Supreme Court in the aforesaid judgment that if any partition of property has been arrived at before 20.12.2004, the suit for partition is not maintainable. Further, in terms of paragraph 137.5 of the said judgment, Hon'ble Supreme Court has also laid down the criteria when oral partition may be accepted. As already noted hereinabove, mutation of the various properties falling under the share of different parties, has already been effected. Thus, prima facie the oral partition as alleged in the present case by the defendants, is supported by public document, viz. the mutation carried out on 18.02.2002 by the Revenue Authorities.
20. It was also brought to the notice of this Court that the plaintiffs herein had earlier filed a writ petition, W.P. (C) 5163/2015, titled Phoolwati & Ors. Vs. Union of India & Ors. to mutate the land holdings in the revenue records in their favour as legal heirs of late Sh. Lo Ram. The said writ petition filed by the plaintiffs was withdrawn vide order dated 17.03.2016, to file appropriate application before the Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 9 of 13 Signing Date:03.08.2022 17:22:09 Revenue Authority. Thereafter, the plaintiffs had filed an application before the Revenue Authority, which came to be dismissed by the said Authority vide order dated 14.08.2017. Against the aforesaid order dated 14.08.2017 passed by the Revenue Authority, appeal has been filed on behalf of the plaintiffs before the Financial Commissioner. The said appeal before the Financial Commissioner is stated to be still pending.
21. A perusal of the aforesaid clearly shows that as of today a valid mutation of the property exists in favour of the defendants and the appeal by the plaintiffs, challenging the mutation in favour of the defendants is still pending. It is to be noted that the mutation of the property in the present case took place on 18.02.2002. Thus, on this aspect, various issues have been raised on behalf of the defendants with respect to the present suit being barred by limitation, besides the issue pertaining to maintainability of the present suit.
22. In view of the clear law position as laid down by Hon'ble Supreme Court in the aforesaid case of Vineeta Sharma, it is clear that this Court would have to consider the plea of oral partition set up by the defendants, since the defendants are relying upon a public document in their favour, viz. the mutation document, in order to bring the case of the defendants within the exception as carved out by Hon'ble Supreme Court in the aforesaid case. Thus, any finding as regards allegation of any oral partition in the present case, would essentially have to be given only after evidence is adduced by the respective parties, especially in view of the mutation in favour of the defendants. Though law is clear that mutation does not confer any Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 10 of 13 Signing Date:03.08.2022 17:22:09 right or title over any immovable property, the document pertaining to mutation, as long as it is a valid document, would have to be considered to arrive at a decision as regards the plea of oral partition set up by the defendants and to arrive at the decision whether or not the case of the defendants is covered within the exception clause in the case of Vineeta Sharma (Supra). Thus, it is imperative that evidence is led in the present matter and only then a finding can be arrived at whether or not there was any oral partition in the present case, as alleged on behalf of the defendants.
23. The judgments in the case of Nirmala & Ors., Smt. Indu Khorana and Sh. Ishwar Singh (Supra), as relied by the counsel for the plaintiffs are on the issue, that is already subject matter of proceedings in the appeal of the plaintiffs pending before the Financial Commissioner. Since challenge by the plaintiffs to the mutation in favour of the defendants is still pending before the Financial Commissioner, GNCTD, the aforesaid judgments would be subject of reliance in the proceedings before the Financial Commissioner. No finding can be given by this Court on the basis of the said judgments at this stage, as the said issues pertaining to the Delhi Land Reforms Act are already pending before the Financial Commissioner.
24. It is also to be noted that the contention of the plaintiffs as regards their entitlement on the basis of Section 6 of the Hindu Succession Act, 1956, also needs consideration, which can be done only after requisite evidence is lead in this regard. The plaintiffs rely upon the said section to advance their right that a daughter by birth becomes a coparcener in her own right in the same manner as the son, Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 11 of 13 Signing Date:03.08.2022 17:22:09 post the 2005 amendment to the said Act. However, as noted in the preceding paragraphs, the defendants have set up a defence of oral partition. Considering the judgment of Hon'ble Supreme Court in the case of Vineeta Sharma (Supra) wherein the Hon'ble Supreme Court has carved out an exception wherein even plea of oral partition would be considered, if the same are supported by public documents, read with Section 6 (5) of the Hindu Succession Act, 1956 wherein it has been stated that nothing contained in this section shall apply to any partition which has been affected before 20.12.2004, it is clear that in the present case, judgment cannot be passed in terms of the prayers made in the present application. In view of the plea of oral partition set up by the defendants, coupled with mutation in their favour and plea regarding possession of respective shares by the different shareholders, the plaintiffs would have to establish their rights over the suit properties by leading evidence in that behalf.
25. On a conspectus of the facts in the present case, it is held that no judgment can be pronounced by this Court in terms of Chapter IX Rule 6 of the Delhi High Court (Original Side) Rules, 2018, as prayed in the present application. The issues as framed, cannot be said to be covered by the judgment of the Hon'ble Supreme Court in the case of Vineeta Sharma, (Supra), in view of the exception carved out by the Hon'ble Supreme Court itself as noted in paragraph 137.5 of the said judgment. Since in the present case mutation on the basis of oral partition is stated to have taken place on 18.02.2002 and proceedings challenging the same are still pending before the Financial Commissioner, it is held that evidence would have to be led by the Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 12 of 13 Signing Date:03.08.2022 17:22:09 parties on the issues framed by this Court vide order dated 25.11.2019.
26. In view of the aforesaid, the present application is dismissed. CS(OS) 657/2017
27. It is noted that in order dated 03.02.2021 it had been stated that the matter is listed for cross-examination of plaintiffs' witness. However, due to pendency of I.A. No. 8118/2020, the suit did not proceed any further in that regard. Since the said application, I.A. No. 8118/2020 has been dismissed by the present order, it is directed that the matter be placed before the Joint Registrar (Judicial) for fixing dates for cross-examination of plaintiffs' witness.
28. List before the Joint Registrar on 18.08.2022.
(MINI PUSHKARNA) JUDGE JULY 27, 2022 c/au Signature Not Verified Digitally Signed By:PREETI CS(OS) 657/2017 Page 13 of 13 Signing Date:03.08.2022 17:22:09