Uma Sharma vs Yashpal Bhanot & Ors
2012 Latest Caselaw 4430 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment delivered on: 26.07.2012

+      CS(OS) 1840/2011 and IAs No. 12017/2011 (O. 39 R. 1&2 CPC), IA No.
       20698/2011 (O. 7 R. 11 CPC)


       UMA SHARMA                                                    ..... Plaintiff
                             Through: Mr K.P.S. Dalal, Adv.

                    versus

       YASHPAL BHANOT & ORS                           ..... Defendants
                   Through: Mr B.K. Sood, Adv for D-1

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J. (ORAL)

1. This is a suit for declaration, partition and permanent injunction. The

plaintiff is the daughter of defendant No. 1 and sister of defendants 2 and 3. In the

plaint, she had sought partition of property bearing Municipal No. M-63, Vikas

Puri, New Delhi-110018, admeasuring 153.40 sq/mt. and ancestral property at

village Dhihana, PO Baddon, District Hoshiarpur, Punjab, measuring 2 kila, 12

kanal, 16 marlas. It has been alleged in para 2 of the plaint that the properties set

out above are either ancestral property or the properties purchased from the sale

proceeds of ancestral properties. In para 9 of the plaint, it has been alleged that late

Shri Walaiti Ram Bhanot, grandfather of the plaintiff, owned property No. A-4,

Lajpat Nagar-III, which he has purchased at the time he was working with LIC. It

has also been alleged that Shri Walaiti Ram Bhanot also owned ancestral properties

mentioned in this paragraph. In para 10, it is alleged that the defendants, in order

to deprive the plaintiffs of her share, sold the property No. A-4, Lajpat Nagar-III

and property No. M-63, Vikaspuri, New Delhi was purchased in the name of Shri

Walaiti Ram Bhanot and defendant No. 1.

2. IA No. 20698/2011 has been filed by the defendants, seeking rejection of the

plaint primarily on the ground that the plaint does not disclose any cause of action

and the suit is not properly valued for the purpose of Court fee and jurisdiction.

Another plea taken in the application is that this Court has no jurisdiction qua the

properties situated in Punjab.

3. The learned counsel for the plaintiff states that he has already filed an

application in the Registry, seeking deletion of the relief with respect to properties

situated in Punjab and, therefore, he is not pressing the suit to the extent it pertains

to partition of the properties situated in Punjab. According to him, another suit has

already been filed by the plaintiff in Hoshiarpur for partition of those properties.

4. The Court while considering an application for rejection of the plaint can

look into only the averments made in the plaint and the documents filed by the

plaintiff. The defence taken by the defendant is not to be considered while

examining such an application and validity of the documents filed by the plaintiff

also cannot be examined at this stage.

5. As regards property No. M-63, Vikas Puri, New Delhi, the learned counsel

for the plaintiff states that the case of the plaintiff is that this property was

purchased from the funds generated by sale of property No. A-4, Lajpat Nagar-III,

which in turn was purchased from the sale of ancestral property in Punjab.

6. However, a perusal of the plaint would show that there is not an iota of

allegation that property No. A-4, Lajpat Nagar-III, New Delhi was purchased by

late Shri Walaiti Ram Bhanot, grandfather of the plaintiff, from sale of some

ancestral properties in Punjab. The averment in para 9 of the plaint, on the other

hand, is that he purchased the said property when he was working with LIC. It is

not in dispute that the property was purchased by Shri Walaiti Ram Bhanot in his

own name. In the absence of any averment to this effect, I cannot take note of the

contention that property No. A-4, Lajpat Nagar-III was purchased by sale of some

ancestral property is in Punjab.

7. As far as sale proceeds of property No. A-4 Lajpat Nagar-III are concerned,

the same, according to the plaintiff herself, were used for purchase of property No.

M-63, Vikas Puri, in joint name of defendant No. 1 and late Shri Walaiti Ram

Bhanot. The plaintiff had absolutely no right in the sale proceeds of property No.

A-4, Lajpat Nagar, since it was not an ancestral property and was the self-acquired

property of Shri Walaiti Ram Bhanot. Consequently, she has no right or share in

property No. M-3, Vikas Puri, New Delhi which stood in the joint name of

defendant No. 1 and late Shri Walaiti Ram and under the law of succession, the

share of late Shri Walaiti Ram devolved on his class-I legal heirs. She has no right

in the property of his father in his life time. The plaintiff being granddaughter and

her father being alive, is not one of the class-I legal heirs of late Shri Walaiti Ram.

Therefore, she has no right, title or interest in property No. M-63, Vikas Puri, New

Delhi.

8. Since the plaintiff, taking averments made in the plaint to be correct, has no

right, title or interest in Property No. M-63, Vikas Puri, New Delhi, the plaint

discloses no cause of action for granting partition of the aforesaid property and

giving a share in that property to the plaintiff. The plaint is accordingly rejected.

All interim orders stand vacated and all pending applications stand disposed of.

V.K.JAIN, J JULY 26, 2012 bg