Delhi High Court
Indira Sharma vs Kusum Shukla & Ors. on 11 November, 2010
Author: Indermeet Kaur
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 11.11.2010
+ R.S.A.No.247/2008 & C.M.17418/2008
INDIRA SHARMA ...........Appellant
Through: Mr.Kuldip Singh, Advocate.
Versus
KUSUM SHUKLA & ORS. ..........Respondents
Through: Mr.R.K.Bedi, Advocate for R-2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has impugned the judgment and decree dated
2.7.2008 which had endorsed the finding of the trial judge dated
29.3.2007. The dispute is a family dispute. The appellant is the
daughter of late Sh.Bala Parshad Sharma and sister of respondent
no.2 i.e. Gopal Parshad.
2. The appellant/plaintiff had filed a suit for partition, rendition
of accounts and injunction. Averment was that her father late
Sh.Bala Parshad Sharma who died on 17.4.1987 had left a will
dated 4.4.87 by virtue of which certain part of the estate had fallen
to the share of the appellant/plaintiff.
3. The trial judge had framed 14 issues. After examination of
the oral and documentary evidence, the purported will dated
4.4.1987 was disbelieved. The court had also drawn a conclusion
that the tenanted premises where late Sh.Bala Parshad Sharma
and his sons were residing in part and carrying on business is a
tenancy not exclusively in the name of late Sh.Bala Parshad
Sharma. It was in the name of M/s Bala Parshad Sharma and Sons.
Trial judge had held that there was no estate of late Sh.Bala
Parshad Sharma capable of partition; the tenancy rights were not
in the personal name of late Sh.Bala Parshad Sharma. Suit of the
plaintiff was dismissed.
4. In the appeal this finding of the trial judge was endorsed by
the Additional District Judge. The relevant finding in this regard in
the impugned judgment inter alia read as follows:
"5. In view of the evidence on record, the ld.trial
court came to the conclusion that tenancy was in the
name of M/s Bala Pd.Sharma and Sons. The defendants
had stated that there was no business conducted in the
ground floor shop. The shop on the first floor, was being
used by M/s Vandana Textiles and M/s Super Cloth House
from which commission was given to late Sh.Bala Parsad
Sharma. The ld.trial court came to the conclusion that as
the tenancy was in the name of Sh.Bala Parsad Sharma
and Sons no partition of the tenancy rights could be made
in respect of tenancy rights. The citations relied upon by
the Ld.counsel for the appellant are of little help and are
not applicable to this facts of this case. The premises
under tenancy of late Bala Pd. is not such that it could be
divided by metes and bounds to be enjoyed by the co-
sharers/co-lesses. The appellant may or may not inherit
the tenancy rights, which is not being adjudicated in the
present case, but this tenanted portion cannot be
partitioned.
6. The Will has not been proved in accordance with law.
No details of any other tangible assets were provided by
the plaintiff for which division could be ordered. In view
of the same, the Ld.trial court dismissed the suit of the
plaintiff.
7. I, therefore find no reason to interfere with the
impugned order. Appeal is therefore dismissed."
5. The counsel for the appellant has urged that this finding is
incorrect and the courts below had not correctly appreciated the
evidence; the application of the plaintiff under Order 6 Rule 17 of
the Code of Civil Procedure (hereinafter referred to as „the Code‟)
had been dismissed summarily on 17.2.1996 which was a incorrect
and illegal order. Admittedly, this order dated 17.2.1996 was
never challenged by the plaintiff; he had appropriate remedy but
he chose not to resort to the same. As such this order dated
17.2.1996 dismissing his application Under Order 6 Rule 17 of the
Code has since attained a finality.
6. In the body of the appeal five substantial questions of law
have been formulated; they inter alia read as under:
(i) Whether the application filed by the appellant U/o 1 R
10 r/w 6 R.17 CPC was rightly dismissed by the Trial
Court on 17.2.1996, on the ground that it is belated,
though even issues in the said civil suit has not been
framed by then and the suit was still at the initial stage?
Issues of the suit were framed on 13.8.1998.
(ii) Whether the order dismissing the said
application could be challenged in appeal filed against
the final judgment?
(iii) Whether the first appellant court was bound to
decide the validity of the order dated 17.2.1996 in the
appeal filed against the final judgment on 29.3.2007?
(iv) Whether the first appellate court has not
appreciated the evidence properly while holding that the
only asset to be divided amongst the brothers and sisters
was tenancy rights and it has led to the miscarriage of
justice as it was available on record that there were other
additional assets in the form of Fixed Deposit Receipts of
the deceased of Rs.20,000/- as well as the business of the
deceased and the goodwill for which the evidence was
also available on record?
(v) Whether the commercial rights of the tenanted
premises at Chandni Chowk, Near Central Bank, Delhi-
110006 of the deceased Sh.Bala Parsad Sharma can be
partitioned amongst brothers and sisters?
7. They are all fact based. In no manner it can be said that they
raise any substantial question of law which is the only ground on
which a second appeal can be entertained by this court. Hands of
this court are otherwise tied. No such substantial question of law
having been arisen, this appeal as also the pending application is
dismissed in limine.
INDERMEET KAUR, J.
NOVEMBER 11, 2010
rb
