Sunanda Suri & Anr. vs Smt. Kamlesh Suri & Ors.
1998 Latest Caselaw 526 Del

ORDER

J.B. Goel, J.

1. This I.A. No. 8385/93 has been filed by the plaintiffs under Section 151 of the Code of Civil Procedure (for short "the Code") for grant of interim relief of damages/mesne profits or in the alternative maintenance, at the rate of Rs.10,000/- P.M. in a suit for partition and injunction. Plaintiffs are the widow and son of deceased Ravi Suri who died on August 29, 1989.

Defendants 1 and 2 are his mother and father, whereas defendants 3 and 4 are his brothers. Defendant No.2 having died during the pendency of the suit, besides the parties on record his daughter Smt. Renu Khanna has been imp leaded as his legal representative.

2. The case of the plaintiffs is that deceased Ravi Suri was doing his separate business and he owned the following movable and immovable properties as his separate properties:-

Immovable properties:

     1.   Residential  House No.HD-32, Vishakha Enclave,  Pitam  Pura,      Delhi.
 

     2.   Factory  building  No.10, Dilkhush Bagh, G.T.  Karnal  Road,      Delhi.
 

     3.   Double  Storeyed  Shop bearing No. D-414, New  Fruit  Mandi,      Azadpur, Delhi.
 

     Movable properties :
 

     4.   Car No. NE-118, bearing registration No. DAC 4151.
 

     5.   Telephone connection No.7210043.
 

     6.   Household goods and 
 

     7.   Bank account and shares of Unit Trust of India.
 

3. It is alleged that after the death of her husband, plaintiff was harassed/ill-treated by the defendants and she had to leave the matrimonial home and in her absence the lock of the almirah of her husband was broken open and all valuable documents were removed by the defendants and all his goods are also with the defendants. On her complaint to the police some of her clothes, articles and ornaments were returned but her signatures were obtained under threat and coercion without returning all her goods. Plaintiffs claim that they alongwith the mother of the deceased (defendant No.1) have inherited these properties in equal share and claim 2/3rd share in these properties.

4. The defendants are contesting the suit on various grounds. Inter alia it is alleged that at the time of his death Ravi Suri did not own any property movable or immovable. He was suffering from various ailments and due to his ill health he was neither able nor was doing any business. He had earlier started his own business but suffered heavy losses in it. The plaintiff had deserted him and due to misbehaviour and ill-treatment meted out by her and her parents, he remained in mental tension, unable to do anything and was being looked after by the defendants. At his desire a family settlement was arrived at between the members of the family on 23.11.1988 whereby Ravi Suri was given jewellery and cash, besides a monthly stipend of Rs.1,000/- for his life time, in lieu of his share in house No.HD-32, Vishakha Enclave, New Delhi. It is denied that this house belongs to him. It is also alleged that all the movable assets belonging to the plaintiff were given to her in the presence of the police and a receipt was signed by her and her parents.

5. The defendants have also disputed and denied the claim of the plaintiff for interim relief by way of mesne profits or maintenance.

6. In the replication, the plaintiff has alleged that the alleged memorandum of family settlement is a sham, bogus and fabricated document.

7. I have heard the learned counsel for the parties. Learned counsel for the plaintiffs has contended that when house No.HD-32 was acquired by Ravi Suri, the defendants were living in their separate house at Model Town, Delhi; this house was acquired by Ravi Suri from his own and separate funds and other two immovable properties also exclusively belong to him. He has also contended that the alleged memorandum of family settlement is a bogus, sham and fabricated document, it is not even admissible in law and it can not affect the rights and interest of the plaintiffs; that as the defendants are denying the right of plaintiffs; and as plaintiffs have been deprived the use of the properties, they are entitled to mesne profits and maintenance. He has placed reliance on certain case laws. Whereas learned counsel for the defendants has contended that the deceased did not own any property, he was living separately from the plaintiffs during his life time and has not left behind any movable or immovable properties; he was given cash and jewellery as his share as per family settlement dated 23.11.1988.

8. Defendants in para 10 of the written statement in respect of House No.HD-32, Vishakha Enclave have stated as under:-

"That the entire consideration for acquiring the said property i.e. lease hold rights, as well as the entire expenses towards the cost of construction of the entire super structure were paid and met by the H.U.F. of the defendants to the exclusion of Late Shri Ravi Suri who had already as submitted had entered into a family arrangement dated 30.11.1988 (23.11.1988) in respect of all immovable properties in which he had any share jointly or otherwise."

9. As noticed hereafter this house was acquired in the year 1984. Whereas the alleged family settlement had taken place on or about 23.11.1988. If at all it was a HUF property, it was acquired before the said settlement and Ravi Suri would be a co-sharer in it being a Co-parcenar in the H.U.F.

10. In para 3 of the memorandum of family settlement in question, it is admitted that the house was acquired and constructed from HUF funds. Para 3 of the memorandum reads as under:-

"The land and house bearing No. HD-32, Vishakha Enclave, Pitam Pura, New Delhi had been acquired and constructed from HUF Funds and it is thus HUF property, but in accordance with the earnest desire and the Will of Shri Ravi Suri, he had withdrawn himself and retired from the H.U.F. and disclaimed all his rights, title and interest, in any part or whole of the said or any other HUF property and the lease hold rights and super structure on the said land (bearing No. HD-32, Vishakha Enclave, Pitam Pura, New Delhi) and in lieu thereof, he has preferred to keep and retain with him, some gold ornaments of the value of Rs. 90,000/- which are already in his possession. Over and above the said gold ornaments, he has already received a total sum of Rs.40,000/- in cash, in four instalments, from time to time, the receipt of which amounts he hereby acknowledges. All the other family members had also agreed and consented that in view of the indifferent and weak health of Shri Ravi Suri, all the male family members would pay him (Ravi Suri) a sum of Rs.1,000/- per month, towards his maintenance, throughout his life time...."

11. This is an admission of the defendants that this property was HUF property when acquired and obviously Ravi Suri was a co-parcenar in the HUF when it was acquired. Earlier the family was having another house in Model Town. As admitted in the written statement, that house was sold in the year 1989 and thereafter the defendants had shifted to this house in Vishakha Enclave.

12. Plaintiff has placed on record a copy of Will dated 11.4.1984 executed by Smt. Raj Kaur in favour of Ravi Suri bequeathing the land of this House and copy of receipt dated 11.4.1984 issued by her for Rs.75,000/- paid to her by means of a bank draft by Ravi Suri. These documents show that Smt. Raj Kaur was a lessee of the said plot of land No. HD-32, Vishakha Enclave by virtue of a perpetual lease deed in her favour dated 10.2.1982 and by her Will she has bequeathed the land to Shri Ravi Suri after taking its consideration. This property also appears to have been mutated in his name in the municipal house tax records as appears from assessment order dated 22.8.1988 passed by Dy. Assessor & Collector and the house tax notice/ demand bill issued in his name placed on record. These documents prima facie show that the property belonged to Ravi Suri. The defendants have not placed any material on record to show that it was acquired out of the HUF funds.

13. Factory premises bearing No.10, Dilkhush Bagh, G.T. Karnal Road, Delhi also appears to have been initially acquired by Ravi Suri as appears from copy of lease deed dated 5.5.1984 in his favour though it appears that later on on 5.4.1989 another lease was executed in the name of Deepak Suri, after the alleged memorandum of settlement was entered into.

14. Shop No. D-414, New Fruit Mandi, Azadpur, Delhi was owned by one K.N. Khanna as per perpetual lease in his favour dated 21.8.1989 w.e.f. 21.12.1972. No document has been placed on record to show that it was acquired by Deepak Suri, if so when and how it was financed.

15. There is no material placed on record that Deepak Suri was doing any separate business or had separate funds.

16. It is stated in the memorandum of family settlement that the defendants constituted HUF. When property has been acquired in business by persons constituting the joint Hindu Family with the aid of joint family properties, it becomes a joint family property. In the memorandum dated 23.11.1988 also it is mentioned that the residential House No. HD-32 was a HUF property of the parties. If it was so, the other two properties also would be belonging to the HUF and not to Deepak Suri.

17. Plaintiff No. 2 being the minor son of a co-parcenar had a share in the co-parcenary properties by birth.

18. It is well settled that where the partition as effected between the members of the Hindu Undivided Family which includes minor coparcenars, the partition is binding on the minors also if it is done in good faith and in bona fide manner, keeping into account the interests of the minors. Where, however, a partition effected between the members of the HUF which consists of minors is proved to be unfair and unjust and is detrimental to the interests of the minors, the partition is not binding on a minor and it can be reopened at any time. And in such a case it is the duty of the court to protect and safeguard the interests of the minors. And the onus to prove that the partition was just and fair is on the party supporting the partition. Such a partition could be reopened at the instance of a minor coparcenar though there was no fraud, misrepresentation or undue influence, and despite the fact that at the time of partition his branch was represented by his father. (Ratnam Chettiar and others Vs. S.M. Kuppuswami Chettiar and others and Smt. Sukhrani (dead) by L.Rs. and others Vs. Hari Shanker and others ).

19. The market value of residential house and other properties on 23.11.1988 has not been mentioned in this document nor it is mentioned in the written statement. The Dy. Assessor & Collector while assessing the value of the house for the purpose of determining the rateable value has noticed that the construction was commenced in 1984 and was completed in 1986. He has taken the cost of the land in 1984 at the rate of Rs.1300 per sq. meter and the cost of construction at the rate of Rs.125 per sq. foot. According to this assessment the market value of the property in 1984 would be over Rs. 9 lakhs. On 23.11.1988 its value would be much more as the prices of properties have been continuously increasing everywhere thereafter. Ravi Suri being a coparcenar would be entitled to 1/5th share in this house.

20. In the memorandum of family settlement it is mentioned that jewellery of the value of Rs. 90,000/- and cash amount of Rs. 40,000/- had already been paid to him earlier in lieu of his share in this house. It is the case of the defendants that the plaintiff had deserted her husband and was living with her parents during his life time. The said jewellery and the cash, if actually given, remained with him and after his death it is with the defendants. No material has been placed on record to show what was that jewellery and how that jewellery and cash have been disposed of.

21. In the alleged family partition no provision has been made for the residence and maintenance of the plaintiffs who were dependent on Ravi Suri. The alleged partition is prima facie unjust, unfair and highly prejudicial to the interest of the minor, plaintiff No. 2 as well as of plaintiff No.1. This partition would be liable to be reopened.

22. Plaintiffs are entitled to residence in the HUF house as a matter of right.

23. In Mohd. Abdul Jalil Khan and Anr. Vs. Modh. Abdul Salam Khan AIR 1933 All. 519 (DB) it was held that "it is the right of each and every co-owner to enjoy the property with other co-owners and as soon as that right is denied or a co-owner is prevented from enjoying the property, like other co-owners, he has a cause of action for recovery of compensation for use and occupation of his share from which he was excluded".

24. In Jahuri Sah and others Vs. Dwarika Prasad Jhunjhunwala and others also it was held that liability to pay compensation arises against a co-owner who deliberately excludes the other co-owners from the enjoyment of the property......."

25. The right and interest of the plaintiffs in the properties which prima facie appear to be belonging to HUF is being denied. They have been ousted from the use and enjoyment of those properties. They are entitled to claim mesne profits/damages for use and occupation from the defendants.

26. Learned counsel for the plaintiff relying on some authorities has also contended that in a suit for partition of joint properties, a co-owner or the heirs of a co-owner is entitled to claim interim maintenance against the other co-owners.

27. In Anurag Aggarwal & Others Vs. Sunil Aggarwal and Ors. (IAs 2526/98 & 6151/90 in Suit NO. 1031/88 decided on December 17, 1990), plaintiffs 1 and 2, a minor and the wife of defendant No. 1 in a suit for partition of family properties were granted interim maintenance; in Syed Hussein & Anr. Vs. Rahmathabi & Anr 1975 Kar. 182 and in Hakimuddin Vs. Zohrabai and Ors. II (1990) DMC 72 MP in a suit for partition the sister was awarded interim maintenance against her brothers; in Ramdeo Sharma and Ors. Vs. Smt. Deepkala Devi and Ors. 1976 B.L.J.R. 498 (DB), plaintiff, the wife of the brother of the defendant, in a suit for partition, in respect of her husband's share, the husband having become a sanyasi, was allowed interim maintenance. In Tarun Kumar & Ors. Vs. Ajay Kumar & Ors. (FAO (OS) 76 of 1983) decided on 19.4.1995, plaintiffs who were son, daughter and wife of defendant No. 1 in a suit for partition of the joint family properties against the father and husband of plaintiff, his two brothers and their mother as Dedefendants, inspite of the plea that the joint family had already been disrupted and its properties already divided and as such the plaintiffs are not entitled to claim any maintenance, interim maintenance was awarded.

28. No contrary case law has been cited on behalf of defendants and in fact no serious contest was raised in this respect.

29. It is not the case of the defendants that the plaintiffs have any independent source of income or means to support themselves nor any material to this effect has been produced.

30. In the facts and circumstances, I do not find any valid reason or circumstance not to grant interim relief of mesne profits or in the alternative maintenance to the plaintiffs.

31. The properties of which partition is claimed are of great market value. The parties also seem to be of good status. Plaintiffs have claimed mesne profits/interim maintenance @ Rs. 10,000/- per month. This amount does not seem to be unreasonable or excessive or unjust in the circumstances.

32. This application is, accordingly, allowed and interim mesne profits at the rate of Rs.5,000/- p.m. each is awarded to the plaintiffs with effect from 20..9.1993 when this application was filed till disposal of the suit against defendants 1, 3 & 4 jointly and severally.

33. The arrears due upto the end of July, 1998 shall be paid in five equal monthly instalments. The first instalment shall be paid on or before 25.7.98 and each subsequent instalment shall be paid by 25th day of each succeeding month. Amount payable from the month of August, 1998 shall be paid regularly in advance by the 15th day of each calendar month.

Costs of these proceedings will be the costs in the suit.

This application is accordingly disposed of.