Master Gautam Yadav & Ors vs Jagdish Yadav & Anr
2014 Latest Caselaw 717 Del

*          HIGH COURT OF DELHI AT NEW DELHI

+                       C.S. (OS) No.1321/2010

                                            Decided on : 06.02.2014

    MASTER GAUTAM YADAV & ORS                          ..... Plaintiff

                      Through:     Mr.Mohit     Chaudhary                and
                                   Ms.Damini Chawla, Advs.
                      versus

    JAGDISH YADAV & ANR                                ..... Defendant

                      Through:     Mr.Ashok Chhabra, Adv. for
                                   Defendant Nos.1 & 2.
                                   Mr.Kapil       Sankhla    and
                                   Mrs.Meghna Sankhla, Advs. for
                                   Defendant Nos.3 & 4.

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

    V.K. SHALI, J.

1. The question which arises in the instant case is as to whether

the suit as framed is liable to be rejected under Order 7 Rule

11(a) CPC as being without any cause of action. The

contention of the learned counsel for the plaintiff is that the

suit as framed is maintainable while as this aspect has been

contested by the learned counsel for the defendants. Before

dealing with the submissions made by the learned counsel for the plaintiff, it may be pertinent here to give a brief

background of the case.

2. The plaintiffs/Master Gautam Yadav and his mother

Smt.Mamta Yadav have filed a suit against the defendants

for partition and mandatory injunction. It has been alleged in

the plaint that the plaintiffs are the son and the widow of late

Sh.Rakesh Yadav, who was the son of Sh.Jagdish Yadav and

Smt.Shanti Devi, defendant Nos.1 & 2 herein respectively.

It is alleged that Sh.Jagdish Yadav/Defendant No.1, the

grandfather of plaintiff No.1 had inherited the following

properties from his father late Sh.Mohan Singh:

"a. 1126 square yards of land, bearing No.23/23, Gali No.7, Village Samaypur, Delhi.

b. Share in 4 bighas 15 biswas of land situated at Khasra No.8/18, situated at Village Libaspur, Delhi.

c. Share in 3 bighas 10 biswas of land situated at Khasra No.8/19, situated at Village Libaspur, Delhi.

d. 214 square yards of land situated at Khasra No.214, Gali No.7, Village Samaypur, Delhi.

e. 350 square yards of land wherein house is constructed bearing House No.109 at Khasra No.80, situated at Lal Dora, Abadi Deh, at Vilalge Samaypur, Delhi.

              f.    200 square yards of land situated at
              Narela.

g. 200 square yards of land situated at Gali No.7, Village Samaypur, Delhi."

3. In para 6 of the plaint, it has been averred that after the

death of the husband of the plaintiff No.2, the entire family

sat together and an oral partition amongst the family

members took place whereby the property of the husband

of the plaintiff No.2 was apportioned and was earmarked

to be given to plaintiff No.1. That on 22.11.2006, the

factum of the oral partition of the properties came to be

recorded in the form of a registered Will executed by

defendant No.1 whereby the ancestral property was

divided amongst plaintiff No.1 and defendant No.4 in

proportion.

4. In para 8 & 9 of the plaint, it has been averred as under:

"8. That out of the properties mentioned herein above in para No.4, the parties are getting regular rental incomes as most of the properties are in industrial area where factories are paying good rentals. Apart from the rentals received from the factories, families have constructed small rooms which are let out to staff working in the factories. This adds to the generation of rental income.

That the plaintiff No.1 is getting rental income to the following extent:

Rs.14,400/- from Mr.Jitendra Mohan Dhall.

         Rs.4,000/           from Mr.Rajiv Bajaj.
         Rs.6,000/           from Mr.Deepak.
         Rs.1,800/           from Mr.Makhan Lal.
         Rs.2,500/           from Mr.Shekhar.
         Rs.1,800/           from the labour room.
         Rs.1,600/           from Mr.Umesh.
         Rs.1,600/           from husband of Mrs.Sanjana.
         Rs.1,200/           from Mrs.Shanti.
         Rs.1,000/           from Mr.Avdesh
         Rs.26,000/          from Father in law i.e. Defendant No.1
                             (Rs.8,500/- from A-809 + 3,000/- from
                             basement of A-809 and Rs.14,500/- from
                             A-2548)
         Total    of
         Rs.61,900/-

(Rent Agreement dated 14.05.2008 with Mr.Jitendra Mohan Dhall is filed with the list of documents) (Rent Agreement dated 03.07.2008 with Mr.Rajiv Bajaj is filed with the list of documents)

9. That from the income generated by collecting rent the plaintiff No.2 got constructed 3 storey building at A-1034.5 square feet where she has got the electricity meter fixed further she is getting the rental income from this area as well."

5. After making these averments, it has been alleged that defendant

Nos.1 and 3 have started playing dirty tricks to oust the plaintiffs

from the accommodation which is under his occupation and to stop

the rental income being received by the plaintiffs. It has been

further stated that the defendants are threatening the plaintiffs as they have got a certificate of marriage prepared by virtue of which

they seek to prove to the society that plaintiff No.2 is a person of

weak moral fibre for having contracted a second marriage and they

would throw her out along with plaintiff No.1. It has also been

alleged that at the behest of defendant Nos.1 and 3, some property

brokers are visiting the property and they are intending to dispose

of the same. The para 15 of the plaint states about the cause of

action which has accrued to the plaintiffs and the same is as under:

" Cause of Action

That the cause of action arose in favour of the plaintiffs to ask for partition, when on 28.08.2006 father of plaintiff No.1 expired. Further, it arose when on 22.11.2006, the factum of the oral partition of the properties came to be recorded in the form of a registered Will executed by defendant No.1 whereby the ancestral property was divided amongst plaintiff No.1 and defendant No.4 in proportion.

Lastly the cause of action arose in favour of the plaintiff on 1st July, 2010 when plaintiff No.2 came to know that the defendant No.1 and 3 has got a fake marriage certificate of the plaintiff prepared. Further, it is continuing as the defendants are showing the properties to third parties for sale and also they are calling panchayat on 06.07.2010 so as to throw the plaintiffs out of the village."

6. In the light of the aforesaid averments, the plaintiffs have prayed

for a decree of partition in respect of the suit properties which are

mentioned in para 4 of the plaint and which is recorded in the

registered Will dated 22.11.2006. It is prayed that a preliminary

decree of partition apportioning the shares of the co-sharers be

passed and a local commissioner be appointed to suggest the ways

and means of partition and thereafter pass a final decree of

partition.

7. The contention which has been advanced by the learned counsel for

the defendants is that the suit filed by the plaintiffs is essentially

for partition of the properties as mentioned in the para 4 of the

plaint. He states that the pleadings made in para 6 of the plaint,

which are further fortified by the pleadings made in para nos. 8 &

9, the plaintiffs themselves are claiming that an oral partition has

taken place way back on 22.11.2006 and the properties apportioned

as a consequence of which not only the plaintiff No.1 is continuing

to enjoy the rentals from various tenants as detailed in para 8 of the

plaint, but he has also been living in one of the properties which

has been built by him on the plot of land which has fallen to his

share. This fact of partition is further fortified by the fact that it has been recorded in the Will of Sh.Jagdish Yadav, who is still

alive. It has been contended that though the Will of Sh.Jagdish

Yadav cannot be treated as Will because he is still alive,

nevertheless, the said document having recorded the factum of

partition amongst various members of the family clearly shows that

a second suit for partition would not lie as the partition has already

taken place.

8. The learned counsel for the plaintiffs on the contrary has contended

that the suit for partition is maintainable on account of the fact that

it was only an oral partition and nothing was reduced into writing

and the plaintiffs have not got their entire share.

9. I have considered the submissions made by the learned counsel for

the plaintiffs and gone through the plaint. In order to appreciate as

to whether the present suit for partition is maintainable or not, it is

essential to see what exactly is meant by partition. In Kalyani v.

Narayanan; AIR 1980 SC 1173, it has been observed as under:

"... a disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and in right although not immediately followed by a de facto actual division of the subject-matter. This may at any time be claimed by virtue of the separate right. From the time of such disruption, each member holds his aliquot share as tenant-in-common irrespective of whether there is actual division of the properties by metes and bounds. Such would be the position, unless there is proof or reunion as understood in law. It is established law that actual physical division or partition by metes and bounds is not an essential ingredient for the purpose of effecting severance of status. That is really a formality in the process of partition. When there is a severance of the joint family from a particular date, but the properties are not partitioned, the members of the family become tenants in common and would be liable to account for the incomings received by them till the time that a final partition takes place and the properties are in the respective possession of such members. Such coparcener are tenants in the common but cannot be characterized as trustees."

10. A perusal of the aforesaid observation of the Supreme Court would

show that the moment there is apportionment of shares amongst the

members of the coparcenary and there is actual division by metes

and bounds, the partition is complete. In the instant case, the

plaintiffs' own case is that an oral partition has taken place on

22.11.2006 between the plaintiffs and the other members of the

coparcenary. This factum has been fortified by reference to the

mention having been made in a document which is claimed by the

plaintiffs to be the Will of Sh.Jagdish Yadav, the grandfather of

plaintiff No.1. It has further been admitted by the plaintiffs in the

plaint that in pursuance to this partition, he is receiving a rent from a number of tenants amounting to Rs.80,000/- or so apart from the

fact that he has got a parcel of land on which construction was also

raised by him. Therefore, these averments made by the plaintiffs

themselves that an oral partition was effected, shares determined

and the property received by the plaintiffs and which was

continued to be enjoyed by them till the filing of the suit, the

partition was complete and the second suit for partition would not

be maintainable.

11. It is admittedly not the case of the plaintiffs that a partition has

taken place and he was entitled to a share higher than what has

been given to him. In that case, the appropriate remedy on the part

of the plaintiffs would have been to file a suit for possession or a

suit for giving complete effect to the partition by seeking

declaration or mandatory injunction. This is not a suit filed for

declaration, mandatory injunction or permanent injunction by the

plaintiffs. On the contrary, he is claiming partition of the

properties as detailed in para 4 of the plaint in respect of which his

own case is that a partition has already taken place orally on

22.11.2006 which was subsequently reduced into writing also. In

the cause of action clause also this fact is averred. That being the position, there was hardly any cause of action for the plaintiffs to

file a second suit for partition of the suit properties.

12. I accordingly feel that the suit as filed by the plaintiffs is without

any cause of action and the same is liable to be rejected.

13. Ordered accordingly.

IA No.1073/2014 (u/Order 6 Rule 17 CPC by the plaintiffs)

1. So far as the instant application to carry out clarificatory

amendment in the plaint is concerned, the same is dismissed as

having become infructuous inasmuch as the suit itself has been

rejected on account of lack of cause of action.

V.K. SHALI, J.

FEBRUARY 06, 2014 dm