Mr. Sameer Magoo vs Mr. Vijay Kr. Magoo & Ors
2009 Latest Caselaw 4738 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                 RESERVED ON: 22.07.2009
                                               PRONOUNCED ON: 20.11.2009

+                                    CS (SO) 234/2008


MR. SAMEER MAGOO                                                         ...... PLAINTIFF
                Through : Mr. Ashok Chhabra with Mr. Saurabh Gaur, Advocates

                                     Vs.
MR. VIJAY KR. MAGOO & ORS                                                ...... DEFENDANTS
                Through : Mr. Neeraj Malhotra, Advocate for Defendants 2 to 4.
                          Mr. Jaideep Sethi, Advoate for defendants 5 & 6.


CORAM:
MR. JUSTICE S. RAVINDRA BHAT

1.

     Whether the Reporters of local papers              Yes
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?                 Yes

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

MR. JUSTICE S.RAVINDRA BHAT

%

1. The plaintiff is the son of late Suman Magoo. He sues for a decree of partition of ground floor of property E-613, Greater Kailash-II, New Delhi ("the suit property"). The said property belonged to Mr. Dharam Pal Puri father of the said late Suman Magoo. It is the admitted position that Mr. Dharam Pal Puri was the owner of the aforesaid property and died intestate leaving, -besides Ms. Suman Magoo (his daughter), two sons Mr. Anil Puri and Mr. Deepak Puri and his widow, Ms.Rup Lata Puri as his heirs. It is not in dispute that Ms. Rup Lata Puri also died intestate subsequently, before institution of the present suit.

CS(OS) 234/2008 Page 1

2. The plaintiff contends that Mr. Anil Puri, who died before filing of this suit (and whose legal representatives are defendants No. 2 to 4), his mother Suman Magoo aforesaid and Mr. Deepak Puri (whose legal representatives are Defendants No. 5 and 6) acquired 1/3rd equal share in the property.

3. After summons were issued in the suit, the ddefendants entered appearance. The Defendant No. 1 who is the plaintiff's father has supported the suit averments. The Defendant No. 2 and 3 and the defendant No. 4 in their separate written statements have contested the suit on the grounds that

(1) the plaintiff and the defendant No. 1 are not the son and husband of Ms. Suman Magoo

(2) late Dharam Pal Puri had during his lifetime given the suit property to his sons Mr. Anil Puri and Mr. Deepak Puri though an oral settlement.

4. The defendants No. 5 and 6 in their written statement admitted that the plaintiff and the Defendant No. 1 are the son and husband of late Suman Magoo. They contested the suit on the ground that Ms. Suman Magoo during the lifetime of the father had been given enough money and gifts and thus was not left with any share in the property. They also contend that since Ms. Suman Magoo during her lifetime did not have any right of partition by virtue of Section 23 of the Hindu Succession Act, notwithstanding its repeal, the plaintiff cannot claim partition. It is further stated that the plaintiff and Defendant No. 1 prior to the institution of the present suit instituted a suit for declaration and mandatory injunction in the District Court with respect to the said property, which was withdrawn therefore, the present suit is not maintainable. The valuation for purposes of court fee was also challenged, the plaintiff not being in possession of the property.

5. This court had observed that the technical pleas -about maintainability of the suit, and suit valuation were insubstantial as to impel any issue to be framed. The court also was of the opinion, on 16th February, 2009 that in the circumstances, a preliminary decree for partition could immediately be passed.

CS(OS) 234/2008 Page 2

6. The counsel for Defendants No. 2 to 4 had at that stage, sought adjournment. The Defendants No. 2 to 6 were directed to be personally present before the Court for the purposes of their examination on the next date i.e. 11th May, 2009.

6. On the next date of hearing, i.e. 11th May, 2009, the parties directed to be present appeared in court. The statement of Defendant No. 2 - who had alleged that the plaintiff was not the son of Suman Magoo - was recorded, on oath, by this court. The court's order of that day reads as follows:

―CS(OS) No. 234/2008

In pursuance to the order dated 16th February, 2009 the defendant No.2 and defendants No.5 and 6 are present in person. The statement of defendant No.2 has been recorded. After the recording of the said statement, the defence of the defendants No.2 to 4 of the plaintiff and the defendant No.1 being not the son and husband of Ms. Suman Magoo, disappears. The defendant No.2 has in the Court identified the plaintiff and the defendant No.1 present in person.

The defendant No.2 has also admitted her signatures on the photocopy of an affidavit submitted to the Municipal Corporation of Delhi inter alia to the effect that Dr. Dharam Pal Puri and Mrs. Roop Lata Puri died intestate. The defendant No.2 in her statement has also stated that she is not in possession of any Will of Dr. Dharam Pal Puri and Mrs. Roop Lata Puri. In any case neither of the defendants has in their written statement set up any Will of Dr. Dharm Pal Puri or Mrs. Roop Lata Puri. In view of the defence of defendants No.5 and 6 as noted in the order dated 16th February, 2009, recording of their statement is not deemed necessary.

The counsel for the defendants No.5 and 6 seeks time to address on the effect of repeal of Section 23 of the Hindu Succession Act. The proxy counsel for the defendants No.2 to 4 also seeks adjournment due to non-availability of the main counsel. List for hearing on 22nd July, 2009 as to why the suit be not decreed forthwith.

       RAJIV SAHAI ENDLAW, J

       May 11, 2009‖


CS(OS) 234/2008                                                                     Page 3

7. The statement of the second defendant, recorded on 11th May, 2009, reads as follows:

―CS(OS) No. 234/2008

Statement of Mrs. Kiran Puri, aged 57 years w/o Late Sh. Anil Kumar Puri, R/O E- 613, Greater Kailash-II, New Delhi ON S.A.

I am the mother of defendant No.3 Mr. Aman Puri and defendant No.4 Mrs.Bhavna Kapoor. My son Mr. Aman Puri is abroad and I am his attorney for the purposes of present case and the attorney in my favour is already on record. My daughter Mrs. Bhavna Kapoor is unwell today and has authorized me to make statement on her behalf also. The authority letter signed by my daughter Bhavna Kapoor handed over by me in Court is Exhibit P1.

Mrs. Suman Magoo was the sister of my husband. Mrs. Suman Magoo was married to Mr. Vijay K. Magoo. Mrs. Suman Magoo and Vijay K. Magoo had only one child namely Sameer Magoo. I identify Mr. Sameer Magoo and Mr. Vijay K. Magoo present in Court today (they are identified by the counsel for plaintiff as the plaintiff and defendant No.1 respectively).

My father-in-law Dr. Dharam Pal Puri was the owner of ground floor of E- 613, Greater Kailash-II, New Delhi. He died in 1994. He left my husband Mr. Anil Kumar Puri and another son Mr. Deepak Puri as his sons and Mrs. Suman Magoo as his daughter. My mother-in-law Mrs. Roop Lata Puri died in 1999, five days before the demise of my husband Mr. Anil Kumar Puri.

I am not in possession of any Will of Dr. Dharam Pal Puri or of Mrs. Roop Lata Puri. However, my husband and myself had come to the aforesaid ground floor to look after my aged and ailing in-laws and besides the ground floor there is accommodation in the room above garage as well as the store room on the first floor of the main house and which I and my husband had renovated with our own money at the asking of my father-in-law. Only myself, widow and children of my brother-in-law Deepak Puri have been residing in the aforesaid accommodation.

I have seen the photocopy of the affidavit for renunciation dated 3rd January, 2002. The same bears my signatures at point A and is Exhibit P2. However, the

CS(OS) 234/2008 Page 4 document is very unclear to me and as such I cannot say whether the original of the said document was signed by me or not.

R.O.and.A.C.

RAJIV SAHAI ENDLAW,J

May 11, 2009 ‖

8. Thus, when the suit was listed for hearing on 22nd July, 2009, it was contended by the plaintiff, being the son of a predeceased daughter, could not claim partition of the suit property, an undivided residential house. The Defendant Nos. 5 and 6 contend that the said deceased daughter, (Suman Magoo) during her lifetime, did not have any right to claim partition, by virtue of Section 23 of the Hindu Succession Act. As she died before the repeal of that provision, the right to claim partition could not be claimed by her heirs, i.e the plaintiff or the first defendant.

9. Learned counsel for the Defendant Nos. 5 and 6 submitted that the bar enacted by Section 23 operated, and its repeal by the 2005 amendment did not affect the position, since the repealing enactment did not operate retrospectively. Such being the position, if the court were to accept the plaintiff's position, it would be giving retrospective effect to the amendment Act, which would be contrary to the plain intendment of the statute.

10. At this stage, it would be necessary to extract the relevant provisions of the Hindu Succession Act, as they stood, before the 2005 Amendment:

Section 8 of the Act reads as follows:

―8. General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--

(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;

(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.‖

CS(OS) 234/2008 Page 5 The Schedule to the Act enumerates who are the relations of Class I :

―Class I Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son....‖

11. By Section 14 of the Act, a woman who had limited interest in the property but was possessed of the same was to become absolute owner. Section 6 of the Act, however, makes an exception to that rule by providing the manner in which the interest in the coparcenary property devolved upon the heirs stating that the rule of survivorship would operate in respect of it (such property). The right, title and interest of an heir, whether male or female, thus, are governed by the provisions of the Act.

12. It is undisputed that the suit property was self-acquired property of late Dharam Pal Puri. His heirs, therefore, obtained equal shares being the relatives specified in Class I of the Schedule. They - including the widow and sister Suman Magoo, therefore, became owners to the extent of 1/4th share of the said property. The title to the aforementioned extent of each co-sharer, having devolved upon them by reason of operation of statute, was absolute. This position only changed marginally, with the death of Shri Puri's widow; his children became 1/3rd owners of the suit property.

13. Section 23 of the Act, which existed when Dharam Pal Puri died, curtailed the rights of the daughters to obtain a decree for partition in respect of dwelling houses. It stated, that:

―23. Special provision respecting dwelling houses.--Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:

Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.‖

CS(OS) 234/2008 Page 6 The above provision was omitted by Hindu Succession (Amendment) Act, 2005. The said amendment also added Section 6(5) to the Hindu Succession Act, which reads as follows:

―6. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.--For the purposes of this section ‗partition' means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.‖

14. The objection of Defendant Nos. 5 and 6 would have been substantial, but for the repeal of Section 23 and amendment to Section 6. That amendment, with the omission of Section 23, however shed a different light to the entire controversy. Moreover, the issue is no longer -fortunately for this court, without precedent. The Supreme Court, in G.Sekar -vs-Geetha 2009 (6) SCC 99, had occasion to deal with the same question, i.e. the claim of a daughter to partition and share in a residential property. The court held as follows:

―22. Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparacenary property is concerned has been sought to be removed, we fail to understand as to how such a disability could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restriction was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5th share therein in terms of the provisions contained in Section 8 of the Act. 1/5th share in each co-sharer upon death of the predecessor-in-interest of the parties is absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. We may notice Sub-section (5) of the 2005 Act, which reads as under:

‗(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004 CS(OS) 234/2008 Page 7 Explanation- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court.' Thus, where a partition has not taken place, the said provision shall apply.

............... ........... .........

..indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring in nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause.

............... ........... .........

28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. Indisputably, when there are two male heirs, at the option of one, partition of a dwelling house is also permissible.‖

15. This court is of opinion that the above judgment is binding, and applicable to the facts of this case. Though the contesting defendants urge that the repeal cannot confer retrospective rights, since Suman Magoo had died before omission of Section 23, the court is of the view that the argument is insubstantial. There are two reasons for holding so. If, as held by the Supreme Court, the right to a share - implying ownership of the property - always existed, Section 23 was only a bar to the claim by one class of heirs, i.e. females. Upon partition, that bar dissolved, even before the amendment, and the female heir had to be given the share. The bar, only operated to suspend the right to claim partition, not the right to a share due. Such being the position, the court would, if the defendant's position is accepted, create an artificial division between those entitled to claim the share. If the share always vested in the female heir, the suspension was removed after repeal of Section 23. That some female heirs were not living at the time of

CS(OS) 234/2008 Page 8 repeal, would be immaterial; if the court were to deny the legal heirs (of that female heir) any share, it would do violence to other substantive provisions, and adopt a discriminatory interpretation. The second reason is that even before repeal, the heirs of a female heir could claim shares in respect of all classes of property of such deceased heir subject to the suspended right under Section 23. Therefore, to hold that heirs of deceased female heirs (who died before the amendment of 2005) are disentitled to claim partition on the ground of denying retrospective application to the said amendment would be contrary to the statute itself.

16. In view of the above discussion, it is held that the plaintiff, and Defendant Nos. 2- 4 and 5-6 are entitled to 1/3rd share in the suit property. A preliminary decree to that effect shall, therefore be drawn. Shri Prakash Gautam, Advocate, (9811697059) is hereby appointed as Local Commissioner to visit the suit property to ascertain whether it can be partitioned, and if so, indicate the mode. His fee is fixed at Rs.50,000/- and shall be borne in equal proportion by the plaintiff, and Defendants 2 to 4 as well as Defendants 5 and 6. The said Commissioner shall file his report within 8 weeks.

17. List on 20-1-2010 for considering the commissioner's report.

November 20, 2009                                               (S.RAVINDRA BHAT)
                                                                      JUDGE




CS(OS) 234/2008                                                                       Page 9