Virender Kumar (Minor) vs Shri Manish Kumar Thakur
2008 Latest Caselaw 1053 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS)248/2004

%                                Date of decision : 17.07.2008


VIRENDER KUMAR (MINOR)                            ....... Plaintiff
                                 Through:   Mr Sugriva Dubey, Advocate

                                  Versus


SHRI MANISH KUMAR THAKUR                          ........ Defendant
                                Through : Nemo.

CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
     1. Whether reporters of Local papers may
        be allowed to see the judgment?

     2. To be referred to the reporter or not?

     3. Whether the judgment should be reported
        in the Digest?


RAJIV SAHAI ENDLAW, J


1.        The plaintiff has instituted the present suit for partition of

following immovable properties :


     i.    House bearing No.19/16, Shakti Nagar, Delhi-7,
           consisting of three stories i.e., Ground, First and the
           Second Floors.

     ii) House property shop No. A/243, Subzi Mandi, Azadpur,
         Delhi, under the leasehold rights in the land slotted to
         me by the DDA, Delhi;


and of share in the partnership firms M/s Babulal Paras Ram and

M/s Babu Lal & Company to the extent of the 15 naya paisa in each

and for certain Fixed Deposit Receipts (FDRs) which were stated to

be in the name of Shri Babulal Thakur and his wife Smt Munni Devi

cs(os)248/2004                                               Page No 1 of 7
 being the grand father and grand mother            respectively of the

plaintiff and for certain other FDRs in the name of said Shri Babulal

Thakur alongwith each of his three daughters.


2.     The case of the plaintiff in the plaint, inter alia, was that his

grand father Shri Babulal Thakur had left a Will dated 5th March,

1993 leaving the properties aforesaid          and the plaintiff had

requested the defendant for partition and the defendant had denied

the partition. The plaintiff thus sued for partition and also claimed

the relief of permanent injunction restraining the defendant from

alienating or creating third party rights with respect to the

properties of which partition was sought. The defendant is the son

of the brother of the father of the plaintiff.    It is admitted in the

plaint itself that Shri Babu Lal Thakur, grand father of the plaintiff,

had left his wife Smt Munni Devi, two sons, namely, father of the

plaintiff and the father of the defendant and three daughters as his

natural heirs and further that the grand mother Smt Munni Devi has

also died. However, neither the sons nor the daughters of Shri Babu

Lal Thakur were impleaded as party to the suit and the suit was filed

against the defendant only.


3.     The defendant filed written statement to the suit in which the

defendant has admitted that Shri Babulal Thakur left the Will dated

5th March, 1993.    However, the defendant pleaded that under the

said Will, only the shop No. A/243, Subzi Mandi, Azadpur, Delhi had

been inherited by the plaintiff and the defendant in equal share but

none of the other properties of which partition was sought had

devolved upon the plaintiff and the defendant and the plaintiff and


cs(os)248/2004                                              Page No 2 of 7
 the defendant were not the owners of the other properties.                The

defendant thus averred that the suit with respect to other properties

was misconceived.


       On the pleadings of the parties, the following issues were

framed on 9th August, 2005 :


      1. Whether the plaintiff is the co-owner of House No.19/16,
           Shakti Nagar, Delhi and entitled to its partition?

      2. Whether the shop No.A-243, Subzi Mandi, Azadpur, Delhi
           cannot be partitioned, as per terms of Lease? OPD

      3. Whether the shop No..A-243, Subzi Mandi, Azadpur,
           Delhi is being noted used by both the parties to this suit
           as per the mutual agreement? OPP

      4. Whether the suit is without any cause of action and is not
           maintainable under Order 7 Rule 11 CPC?

      5. Whether the Hon'ble Court lacks necessary pecuniary
           jurisdiction to try this suit? OPD

      6. Whether the Hon'ble Court has no jurisdiction on account
           of    arbitration   clause   in   the   partnerships/Business
           Agreements?

      7. Whether the suit is barred u/S 41 of the Specific Relief
           Act?"

4.     The plaintiff has instituted the present suit as a minor through

his natural guardian and father. The date of birth of the plaintiff is

stated to be 15th August, 1990. The plaintiff till date continues to be

a minor.        That to prove the case of the plaintiff, the father and

natural guardian of the plaintiff tendered his affidavit by way of

examination-in-chief as exhibit PW1/A.             He was partly cross

examined by the counsel for the defendant. However, the defendant

cs(os)248/2004                                                  Page No 3 of 7
 or his counsel thereafter stopped appearing before the court and

were proceeded ex parte vide order dated 23rd October, 2007. The

defendant continues to be ex parte and has thereafter not appeared

before the court. The plaintiff thereafter tendered another affidavit

of Shri Ajay Kumar Sharma by way of his ex parte evidence and

thereafter closed his ex parte evidence.


5.     The factum of Shri Babu Lal Thakur having executed a Will

dated 5th March 1993 was not disputed in the written statement.

However, the said Will was not proved by the plaintiff by examining

any witness to the said will or otherwise. During final arguments, it

was put to the counsel for the plaintiff that the plaintiff had not

proved any case with respect to the property No.19/16,           Shakti

Nagar, Delhi-7 or with respect to the share in partnership firm or

with respect to the FDRs, inasmuch as no evidence whatsoever was

led establishing any right of the plaintiff and the defendant to the

said properties.   The counsel for the plaintiff fairly conceded that

the suit be treated as for partition for shop No.A-243, Subzi Mandi,

Azadpur, Delhi only.


6.     With respect to the shop No.A-243, Subzi Mandi, Azadpur,

Delhi, as aforesaid, there is an admission in the written statement

that the plaintiff and the defendant have an equal share in the said

shop. Even though the defendant has not led any evidence and is ex

parte, the defence of the defendant in the written statement to the

partition of the said shop is that (i) from the said shop two firms one

controlled by the father of the plaintiff and the other controlled by

the father of the defendant are functioning, both occupying


cs(os)248/2004                                             Page No 4 of 7
 approximately equal area (ii)     that the said shop being lease hold

cannot be partitioned.


7.     The defence of the defendant to partition of Shop No.A-243,

Subzi Mandi, Azadpur Delhi, is not tenable.       The said issue is no

longer res integra and it has been held by this court in the

judgments (1) Chiranji Lal & Anr v Bhagwandas & Ors 1991(3)

Delhi Lawyer 530; (2) Inderjeet Singh v Tarlochan Singh 1991

R.L.R. 239; (3) Mohinder Singh v Kartar Lal 1997 III AD (Delhi)

626 and (4) Ram Lal Sachdev v Smt Sneh Sinha AIR 2000 Del 92

that    there is no bar to partition of the super structure of the

leasehold properties and the same does not amount to division or

partition of leasehold right in land which is prohibited under the

terms of the lease. The plaintiff and the defendant would be entitled

to have the lease hold rights in their joint names.


8.     It is not the case of the defendant that the said property has

been partitioned by metes and bounds between the parties. The case

of the defendant only is that the said property was being used as per

mutual agreement of the parties.      However, such agreement would

not bar the partition of the said property.




9.     The plaintiff is, thus, entitled to a decree for partition of shop

No.A-243, Subzi Mandi, Azadpur, Delhi only on admission of the

defendant.        The plaintiff is not entitled to any other relief.

Accordingly, preliminary decree for partition is passed with respect

to shop No. A-243, Subzi Mandi, Azadpur, Delhi declaring the



cs(os)248/2004                                              Page No 5 of 7
 plaintiff and the defendant each having a 50% undivided share in

the said property.


10.    Mr S.M. Chopra, Additional District Judge (Retd) is appointed

as the Local Commissioner to suggest ways and means, if any, of

partition by metes and bounds of the said property.          His fee is

tentatively fixed at Rs 25,000/- to be borne first by the plaintiff. On

receipt of report of the Local Commissioner within three months,

the suit be listed for passing of the final decree of partition. It is

clarified that all out of pocket expenses, if any, incurred by the Local

Commissioner in making the site visit, in preparation of plans or in

taking any other technical help shall also be borne by the plaintiff.




                                          RAJIV SAHAI ENDLAW, J.

July 17, 2008. M

cs(os)248/2004 Page No 6 of 7