Delhi High Court

Krishan Sharma vs Raj Rani Bhardwaj & Ors on 1 March, 2013

Author: V.K.Shali

*                   HIGH COURT OF DELHI AT NEW DELHI

+          R.S.A. No.19 of 2010 & C.M. No.2146 of 2010 (for stay)

                                         Decided on : 1st March, 2013

KRISHAN SHARMA                                       ..... Appellant
            Through:              Appellant in person.

                        Versus

RAJ RANI BHARDWAJ & ORS                 ..... Respondents
             Through: Mr. V.B. Andley, Senior Advocate with
                      Mr. Priyank Sharma & Mr. K.C. Baliar
                      Singh, Advocates for R-1 & 2.
                      Mr. Rajan Tyagi, Advocate for R-3.
                      Mr. Balvinder Ralhan, Advocate for
                      R-4 (a) & (b).
                      Ms. Kusum Lata Sharma & Mr. Karan
                      Sharma, Advocates for R-9.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

1. This is a regular second appeal under Section 100 CPC against the

judgment/decree dated 12.10.2009 passed by the learned Additional

District Judge in R.C.A. No.19/2003 dismissing the first appeal of the

appellant.

2. Briefly stated the facts of the case are that the plaintiffs/respondent

Nos.1 and 2 herein had filed a suit bearing No.399/2001 for declaration,

injunction, partition and possession in respect of House No.118, Gali

No.6, Kishan Nagar, Safdarjung Enclave, New Delhi, which was decided

by the Civil Judge in favour of the plaintiffs/respondent Nos.1 and 2 on

11.3.2003.

3. The case setup in the plaint was that the aforesaid property

belonged to Gopal Devi and her husband, Baboo Ram Sharma (parents of

the parties). On account of death of Gopal Devi and Baboo Ram, it is

stated that the four sons and two daughters, who were left behind by

them, were legally entitled to 1/6th share each in the said property. The

respondent Nos.1 and 2 (herein) are the two daughters while as the

present appellant Krishan Sharma is the grandson of Gopal Devi. So far

as the other sons and daughters are concerned, they are respondents in the

present appeal and are represented by their legal heirs. The appellant,

who was the defendant No.7 in the suit, filed his written statement

admitting that the suit property belonged to Gopal Devi and that she was

survived by four sons and two daughters; however, he resisted the prayer

of the respondent Nos.1 and 2 for partition of the suit property on the

ground that the suit property was the only dwelling unit available to the

appellant and the other respondents and, therefore, by virtue of Section 23

of the Hindu Succession Act, the respondent Nos.1 and 2, being the

daughters, could not claim partition and would only have a right of

residence. The learned trial court framed following four issues :-

"1. Whether the plaintiff is entitled for the decree of declaration? OPP

2. Whether the plaintiff is entitled for the partition and possession, as claimed? OPP

3. Whether the property is wholly or partly occupied by the tenants at that time of institution of the suit? OPD

4. Relief."

4. The learned Civil Judge decided all the issues against the

Defendant No.7/appellant and in favour of the Plaintiffs/Respondents 1

and 2 and returned a finding that the property was partly occupied by the

tenants.

5. The trial court, accordingly, passed a preliminary decree on

11.3.2003 in favour of Plaintiffs/respondent Nos.1 and 2 and the

remaining co-sharers in the property as the legal heirs of Gopal Devi.

6. Feeling aggrieved by the said order of passing preliminary decree

dated 11.3.2003 the appellant (herein) along with respondent Nos.10 and

11 (herein) preferred an appeal bearing No.19/2003 titled Sanjeev Sharma

& Ors. vs. Raj Rani Bhardwaj & Ors. The learned Additional District

Judge upheld the judgment and the preliminary decree passed by the trial

court holding that the plaintiffs/respondent Nos.1 and 2 were entitled to

1/6th share each in the suit property and directed appointment of a Local

Commissioner for the purpose of exploring the modalities of partition by

metes and bounds.

7. Still not feeling satisfied, the appellant has preferred the present

regular second appeal. The appeal though filed in the year 2010,

considerable time has been taken by the appellant to effect service on the

respondents on account of death of some of the co-sharers in the property.

Be that as it may. After service of all the respondents, on 5.7.2012, the

matter was adjourned to 18.7.2012 for the purpose of preliminary hearing

with regard to substantial question of law involved in the matter;

however, no submissions have been made and the matter has been

invariably adjourned at request of either the counsel for the appellant or

the appellant himself.

8. Today also, the matter was passed over once and it has been taken

up only at 3:45 p.m. The learned counsel for the appellant has still not

appeared and is stated to be on his legs in another court, a request for

adjournment of three days is made.

9. I have considered the submissions made by the appellant, who is

present in person; however, I find myself unable to agree to the request

for grant of any further date.

10. Mr. Andley, the learned senior counsel appearing for respondent

Nos.1 and 2 has been heard. So far as counsel representing rest of the

respondents are concerned, they have adopted the submissions made by

Mr. Andley, the learned senior counsel. The main contention urged by

the learned senior counsel is that neither the factum of death of Gopal

Devi is disputed nor the number of brothers and sisters is in dispute,

therefore, in the instant case, an admission in this regard has been made

by the appellant/defendant No.7 in the written statement. As a necessary

corollary, the respondent Nos.1 and 2 (herein), being the daughters, are

entitled to 1/6th share each. It was contended that the main contention of

the appellant for denial of this 1/6th share to the respondent Nos.1 and 2

was that the house in question was the only dwelling unit available to the

appellant and his brothers and according to Section 23 of the Hindu

Succession Act, as this was the only dwelling unit available at the time

when the suit was filed, a married daughter would only have a right of

residence in the property of her parents; she could not claim a right of

partition if the house was being used as a dwelling unit. It was further

urged since in the instant case the substantial portion of the property was

under tenancy, therefore, this embargo of the daughter not having a right

to claim partition was not applicable in such a contingency. Reliance in

this regard was placed on the following judgments :-

1. Narashimaha Murthy vs. Smt. Susheelabai & Ors.; AIR 1996 SC 1826.

2. Smt. Usha Majumdar & Ors. vs. Smt. Smriti Basu; AIR 1988 Calcutta 115.

11. I have gone through the above two judgments as well as the

provisions of law. I fully agree with the contention made by the learned

senior counsel that the embargo of the daughter not being able to claim

partition would be applicable only if the house in question was being used

as a dwelling unit by the brothers for their residence and not if any

portion of the house or substantial portion of the house has been let out to

the tenants, while as in the instant case, this was not in dispute that the

substantial portion of the suit property was under tenancy of third parties.

12. Apart from this, by the Act of 39 of 2005, Section 23 of the Hindu

Succession Act has been deleted with effect from 9.9.2005. The

necessary effect of this deletion is that any pending matter which involves

a question which was earlier covered by Section 23 of the Hindu

Succession Act would also not be taken as an embargo on the right of the

daughter to claim partition in respect of the dwelling unit, meaning

thereby that after the amendment, a daughter has been put at par with the

brother to claim partition in respect of a property inherited by the siblings

of a person.

13. Therefore, I feel that there was no infirmity in both, the judgment

and the decree dated 11.3.2003 passed by the trial court as well as the

order dated 12.10.2009 passed by the first appellate court.

14. The appeal shows that the learned counsel for the appellant, though

has chosen not to appear today despite second call, he has formulated two

substantial questions of law which are as under :-

"a) Whether the part let out by the owner of the only dwelling house during his/her life time and his/her legal heirs acquiring the only dwelling house in partly rented out status put with no further letting out of any portion by legal heirs after death of owner and getting even that portion let out by the owner also vacated after the death of owner, would bring the only

dwelling house out of purview of Section 23 of Hindu Succession Act?