Sangeeta Bhambani vs Jatinder Sardana & Ors
2014 Latest Caselaw 1612 Del

               *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 26th March, 2014.

+                                  CS(OS) No.350/2012

         SANGEETA BHAMBANI                                   ..... Plaintiff
                     Through:            Mr. Uttam Datt, Mr. Nawab Singh
                                         Jaglan & Mr. Shubham Aggarwal,
                                         Advs.

                                     Versus

    JATINDER SARDANA & ORS.                   ..... Defendants
                 Through: Mr. Praveen Chauhan, Mr. Vijay
                           Kumar & Mr. Kailash Chand, Advs.
                           for D-1.
                           Mr. P. Choudhary & Mr. P.C.
                           Dhingra, Advs. for Applicant in IA
                           No.538/2014.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J
1.

The plaintiff has instituted this suit for partition of property

constructed on plot No.94, Block-51, Panchsheel Co-operative Housing

Society, Panchsheel Park, New Delhi, pleading:-

(i) that the mother of the plaintiff and the defendant no.5 Shri

Sandeep Bhambani was the daughter of late Shri Chiranjiv Lal

Sardana and Smt. Leelawati Sardana;

(ii) Shri Shri Chiranjiv Lal Sardana was the only son of Shri Uttam

Sardana who was a resident of Pakistan; Shri Uttam Sardana

was a doctor by profession and owned vast ancestral

agricultural lands, shops and houses in Pakistan;

(iii) that upon the demise of Shri Uttam Sardana all his aforesaid

properties were inherited by Shri Chiranjiv Lal Sardana as his

only legal heir.

(iv) that Shri Chiranjiv Lal Sardana though an Advocate by

profession, only managed the aforesaid properties;

(v) upon partition in the year 1947, Shri Chiranjiv Lal Sardana

migrated to Gwalior leaving behind the properties aforesaid in

Pakistan;

(vi) that in lieu of properties left in Pakistan, Shri Chiranjiv Lal

Sardana was allotted agricultural lands in Hisar, Haryana;

(vii) that Shri Chiranjiv Lal Sardana was working with the

Rehabilitation Department, Govt. of India for a brief time and

his wife Smt. Leelawati Sardana was employed with the Home

Department, Government of India;

(viii) Shri Chiranjiv Lal Sardana, from the joint family funds, in or

about the year 1959 purchased a house in Karol Bagh;

(ix) that in or about the year 1961-62 Shri Chiranjiv Lal Sardana

applied for plot of land in Panchsheel Co-operative Housing

Society in the name of his younger son Shri Surender Sardana;

(x) that Shri Chiranjiv Lal Sardana died on 30th October, 1963;

(xi) that Shri Surender Sardana sold the lands in Hisar for the family

needs, including for payment of installments of the plot

aforesaid in Panchsheel Park;

(xii) that a perpetual Sub Lease of the plot aforesaid in Panchsheel

Park was executed in favour of Shri Surender Sardana on 13 th

April, 1969;

(xiii) Shri Surender Sardana in or about the year 1985 sold the Karol

Bagh house and invested the sale proceeds thereof in raising the

construction over the plot in Panchsheel Park;

(xiv) that Shri Surender Sardana started living alone in the

Panchsheel Park house in the year 1999;

(xv) that sale proceeds of the jewelry of Smt. Leelawati Sardana

were also used in construction of the house at Panchsheel Park;

(xvi) that Shri Chiranjiv Lal Sardana and Smt. Leelawati Sardana,

besides the mother of the plaintiff and the defendant no.5 and

Shri Surender Sardana aforesaid, also had another son namely

Shri Jatinder Sardana (defendant no.1 herein) and three other

daughters namely Smt. Sushma Dewan (defendant no.2), Smt.

Sushila Arora (defendant no.3) and Smt. Pushpa Mediratta

(defendant No.4);

(xvii) that the mother of the plaintiff and the defendant no.5 expired

on 9th November, 1993;

(xviii) that Shri Surender Sardana was allowed to stay in the

Panchsheel Park house as a he did not have a source of income

and was unmarried;

(xix) that the Panchsheel Park house was "a joint family property, it

was always subject to partition amongst the children of Shri

Chiranjiv Lal Sardana";

(xx) that Shri Surender Sardana always assured the plaintiff that the

Panchsheel Park house would be partitioned and the plaintiff

would be given her share therein;

(xxi) that the plaintiff continued under the belief that her mother's

share in the Panchsheel Park house was secured;

(xxii) Shri Surender Sardana died intestate on 5th April, 2011, without

leaving any Class-I heir within the meaning of Hindu

Succession Act, 1956;

(xxiii) after the death of Shri Surender Sardana, the defendant no.1

took over the property;

(xxiv) that the defendant no.1 inspite of demand of the plaintiff and

other family members refused to partition the Panchsheel Park

property;

(xxv) that the defendant no.1 on the contrary applied to the DDA for

mutation of the Panchsheel Park property in his own name; and,

(xxvi) that the plaintiff filed objections to the said mutation.

accordingly, claiming to be one of the heirs of her mother, this suit

has been filed stating that the plaintiff and her brother defendant no.5 are

entitled to succeed to 1/7th share which their mother had in the Panchsheel

Park property.

2. The defendant no.1 has contested the suit by filing the written

statement, on the grounds:-

(a) that the defendants no.1 to 4 had entered into a Memorandum

of Understanding dated 18th January, 2012 for sale of the

Panchsheel Park property to one Mr. Murari Mirchandani;

(b) that one Mr. Raj Narain Singh had also objected to the mutation

of the property in the name of the defendant no.1 on the ground

that he had purchased the same from late Shri Surender

Sardana;

(c) that the plaintiff and the defendant no.5 being the children of

pre-deceased sister of Shri Surender Sardana have no right, title

or interest in the Panchsheel Park property as they fall under

Entry-IV of Class-II of Legal Heirs of the Schedule to the

Hindu Succession Act whereas the defendants no.1 to 4 fall

under Entry-II of Class-II of the said Schedule and therefore

only the defendants no.1 to 4 have succeeded to the estate of

late Shri Surender Sardana;

(d) that Shri Chiranjiv Lal Sardana had left Will dated 17th

December, 1958 which was duly probated on 24th July, 1967;

(e) that the lands at Hisar were allotted to Shri Chiranjiv Lal

Sardana in lieu of his self acquired properties left behind in

Pakistan and not in lieu of any properties inherited by him from

his father Shri Uttam Sardana;

(f) denying that the Karol Bagh house was purchased from any

joint family funds and contending that the same was acquired

by Shri Chiranjiv Lal Sardana from his own funds;

(g) Shri Chiranjiv Lal Sardana in his Will which was probated had

clearly mentioned that he was the exclusive owner of the lands /

property in Hisar, Haryana and of the Karol Bagh house besides

other movable properties and had bequeathed the lands at Hisar

to the defendant no.1 and Shri Surender Sardana in equal shares

and the house at Karol Bagh to his two sons i.e. Sh. Surender

Sardana & defendant No.1 and to his wife Smt. Leelawati

Sardana and after her death to his sons defendant no.1 and Shri

Surender Sardana;

(h) that the address given by the plaintiff of the Panchsheel Park

house was wrong; its correct address is S-94, Panchsheel Park;

(i) that the Panchsheel Park house was acquired by Shri Surender

Sardana from his own funds;

(j) denying that the Panchsheel Park house was acquired by Shri

Surender Sardana from any joint family or ancestral funds;

(k) that the father of the plaintiff had let out his house at Gulmohar

Enclave to Shri Surender Sardana and had instituted a petition

for eviction of Shri Surender Sardana therefrom and Shri

Surender Sardana was evicted from the said house in execution;

the relationship of Shri Surender Sardana with the plaintiff's

parents was thus strained;

(l) that Shri Surender Sardana did not require any permission from

his siblings to reside in the Panchsheel Park house which

belonged to him exclusively;

(m) denying that any assurances were ever meted out by Shri

Surender Sardana to the plaintiff;

(n) denying that the mother of the plaintiff had any share in the

Panchsheel Park house; and,

(o) denying that the plaintiff has any share in the Panchsheel Park

house.

3. The plaintiff has not filed any replication to the written statement

aforesaid of the defendant no.1 despite opportunity.

4. The defendants no.2&3 have adopted the written statement of the

defendant no.1 and the right of the defendant no.4 to file the written

statement stands closed.

5. The defendant no.3 died during the pendency of the suit and the

defendants no.1,2 &4 were substituted as her legal heirs.

6. The defendant no.5 being the brother of the plaintiff has failed to

appear despite service and is proceeded against ex parte.

7. The defendant no.1 has filed IA No.16449/2012 under Order 7 Rule

11 of the CPC on the grounds, (i) that the plaintiff is not an heir of Shri

Surender Sardana; and, (ii) that the plaintiff is not in possession of the

property, and has not appropriately valued the suit for the purposes of Court

Fees and jurisdiction and not paid appropriate Court Fees thereon.

8. One Shri Raj Narain Singh has filed IA No.538/2014 for impleadment

in the present suit pleading that Shri Surender Sardana had vide Agreement

to Sell dated 24th February, 1986, General Power of Attorney, Will, affidavit

etc. agreed to sell the said property to him and had against receipt of entire

sale consideration handed over all title documents with respect to the said

property to him and he is in power and possession and enjoyment of the said

property since 24th February, 1986 and a Conveyance Deed of freehold

rights in the property has also been executed in his favour by the DDA. The

counsel for the applicant during the hearing today has further informed that

the defendant no.1 had filed a writ petition in this Court for cancellation of

the mutation of the property in favour of the applicant Shri Raj Narain Singh

but the said writ petition was dismissed and the appeal filed by the defendant

no.1 thereagainst is pending consideration. It is also informed that a suit has

also been filed in this regard.

9. Arguments have been heard from the counsel for the plaintiff and the

counsel for the defendant no.1 on the application aforesaid of the defendant

no.1 for rejection of the plaint.

10. The counsel for the plaintiff has argued that the application under

Order 7 Rule 11 of the CPC is misconceived and has been filed on the

assumption that the plaintiff is claiming a share in the said house as an heir

of Shri Surender Sardana. It is argued that the plaintiff is not claiming a

share as an heir of Shri Surender Sardna but on the basis of the said

Panchsheel Park property belonging to the maternal grandfather of the

plaintiff Shri Chiranjiv Lal Sardana and as heir of one of the daughters of

Shri Chiranjiv Lal Sardana. It is further argued that no ground for rejection

of the plaint on the basis of valuation or on the ground of payment of

deficient Court Fees is also made out as at this stage, for the purposes of

Court Fees, only the averments in the plaint are to be seen and as per which

averments the suit has been appropriately valued and appropriate Court Fees

been paid thereon. It is further argued that if at all after evidence and

adjudication it is held that the Court Fees paid by the plaintiff is deficient

that deficiency shall be made up.

11. Merit is found in the aforesaid contention of the counsel for the

plaintiff.

12. No case for rejection of the plaint on the two grounds urged by the

counsel for the defendant no.1 is made out.

13. It has however been enquired from the counsel for the plaintiff as to

how the plaintiff can claim the property to be of her maternal grandfather

Shri Chiranjiv Lal Sardana when it was admittedly in the name of Shri

Surender Sardana and whether not the argument of the plaintiff, of Shri

Chiranjiv Lal Sardana being the owner of the property though in the name of

Shri Surender Sardana, for the reason of Shri Chiranjiv Lal Sardana having

contributed to the purchase price thereof, is barred by the The Benami

Transactions (Prohibition) Act, 1988.

14. The counsel for the plaintiff then changes his stand and states that the

plea of the plaintiff is, of the Panchsheel Park property being the ancestral

property / joint Hindu property of Shri Surender Sardana and Shri Surender

Sardana holding the same for the benefit of the family.

15. The counsel for the plaintiff is however unable to show from the

plaint, any pleading to the effect that Shri Surender Sardana was holding the

property for the benefit of the family.

16. Section 4(1) of the Benami Transactions (Prohibition) Act bars any

suit or claim or action by any person claiming to be the real owner of the

property, to enforce any right in respect of the said property against the

person in whose name the property is claimed to be held benami. Though

Section 4(3) makes the provisions of Section 4(1) inapplicable, where the

person in whose name the property is held is a coparcener in a Hindu

undivided family and the property is held for the benefit of the coparceners

in the family or where the person in whose name the property is held is a

trustee or other person standing in a fiduciary capacity, and the property is

held for the benefit of another person for whom he is a trustee or towards

whom he stands in such capacity, but no such case has been pleaded. The

plaintiff has not filed a single document to show the existence of any

coparcenary or Hindu undivided family of Shri Chiranjiv Lal Sardana and

his sons. Upon being quizzed, the counsel for the plaintiff states that he will

examine witnesses who will depose about the existence of a coparcenary.

However the question of the plaintiff or the other witnesses so deposing

arises only when there is any plea to the said effect. As a reading of the

plaint and as set out hereinabove would show, there is no such plea. So

much so, that the plaintiff has not even given the date of demise of Shri

Uttam Sardana being the father of Shri Chiranjiv Lal Sardana. If Shri Uttam

Sardana died after the coming into force of the Hindu Succession Act, 1956,

any properties even if inherited by Shri Chiranjiv Lal Sardana from his

father Shri Uttam Sardana would be held by Shri Chiranjiv Lal Sardana as

his individual properties and not for the benefit of his sons. On the contrary,

the defendant no.1 has filed a copy of the probated Will supra of Shri

Chiranjiv Lal Sardana and which negates the plea of the plaintiff of

existence of any HUF. The probate of the said Will is a judgment in rem,

and the mother of the plaintiff who was the daughter of Shri Chiranjiv Lal

Sardana and who was alive at that time is not stated to have filed any

objection thereto and / or contended otherwise and the said probate was

binding on her and binding on the plaintiff as well as her heir. The plaintiff

cannot have a better right than her mother, through whom she claims. The

said Will also clearly negates the case set up by the plaintiff of the

Panchsheel Park house being the joint family property for the reason of

having been acquired from the sale proceeds of the lands at Hisar and the

Karol Bagh property which are claimed to be ancestral properties. The lands

at Hisar and the Karol Bagh property, as per the said probated Will, were the

self acquired exclusive properties of Shri Chiranjiv Lal Sardana and which

were bequeathed to the defendant no.1 and Shri Surender Sardana and the

plaintiff after nearly half a century cannot be heard to contend otherwise,

especially when the mother of the plaintiff in her lifetime did not make any

such claim.

17. It is clearly evident that the present suit is speculative in nature and is

intended to be used as a tool of oppression on the defendants no.1,2&4.

18. It is also not as if the plaintiff or her father have had a cordial

relationship with Shri Surender Sardana. The defendant no.1 in his written

statement and to which no replication has been filed despite opportunity, has

pleaded of the father of the plaintiff having forcibly evicted Shri Surender

Sardana from the Gulmohar Enclave house of the father of the plaintiff.

19. I have already in Ramesh Advani Vs. Hiro Advani

MANU/DE/2025/2013 held that such vague pleas of joint Hindu family

cannot be permitted to defeat the legislative intent in enacting the Benami

Act. The plaint in present case is yet another instance of the same. The

Division Bench of this Court also, in Smt. Santosh Malik Vs. Maharaj

Krishan MANU/DE/0448/2012 has held that vagueness of pleadings and

non-pleading of material facts can constitute a ground for rejection of plaint.

20. Be that as it may, even if it were to be believed that there was a

coparcenary / HUF of Shri Chiranjiv Lal Sardana, though not pleaded by the

plaintiff, the mother of the plaintiff, through whom the plaintiff claims,

being a married daughter of Shri Chiranjiv Lal Sardana was not a member or

coparcener thereof. The Hindu Succession (Amendment) Act, 2005 which

came into force w.e.f. 9th September, 2005, for the first time made a

daughter a coparcener in the same manner as the son and vested in the said

daughter the same rights in the copercenary property as she would have had

if she had been a son. However the proviso to Section 6 of the Hindu

Succession Act as amended provides that nothing therein affect or invalidate

any disposition or alienation including any partition or testamentary

disposition of property which had taken place prior to 20th December, 2004.

The Supreme Court in Ganduri Koteshwaramma Vs. Chakiri Yanadi

(2011) 9 SCC 788 has held that the right accrued to a daughter in the

property of the joint Hindu family governed by the mitakshara law, only by

virtue of the 2005 Amendment Act. This Court also in Rakhi Gupta Vs.

Zahoor Ahmad 197 (2013) DLT 154, following the said dicta has reiterated

that the right accrues to the daughter, only "on and from" the

commencement of the Amendment Act.

21. The mother of the plaintiff through whom the plaintiff claims,

however died well before the coming into force of the Hindu Succession

(Amendment) Act, 2005, on 9th November, 1993. Having so died, she could

not have become a coparcener in the Hindu undivided family even if any,

upon coming into force of the Hindu Succession (Amendment) Act, 2005.

The plaintiff thus cannot claim any right on this basis also. When the

mother of the plaintiff on the date of her demise on 9th November, 1993 had

no right in the Panchsheel Park property, the plaintiff, on the death of her

mother on 9th November, 1993 did not inherit any share in the said property,

on the basis of which the plaintiff can claim partition thereof. The question

of the plaintiff acquiring any share in the property on the coming into force

of the Amendment Act on 9th September, 2005 does not arise; the plaintiff

also has neither pleaded nor argued so.

22. The Supreme Court in Sheela Devi Vs. Lal Chand (2006) 8 SCC 581

held that the succession, in that case, having opened in the year 1989, the

provisions of the Amendment Act, 2005 would have no application.

Similarly, in G. Sekar Vs. Geetha (2009) 6 SCC 99, it was held that the

provisions of the Amendment Act, 2005 do not seek to re-open vesting of a

right where succession has already taken place. Mention may also be made

of Sadashiv Sakharam Patil Vs. Chandrakant Gopal Desale

MANU/MH/1094/2011 where the daughter had expired prior to the coming

into force of the Amendment Act of 2005; in fact she had pre-deceased the

father. It was held that there is nothing to show that the Amendment Act of

2005 would apply to all females retrospectively and if such a daughter were

to be included, the entire population would come to be included and the

children and the grandchildren of all deceased females would claim their

share in the estate of their grandparents and great grandparents through their

mother and the legislature cannot be held to have intended such absurd

interpretation. This judgment of a Single Judge, was referred to with

approval by the Division Bench in Vaishali Satish Ganorkar Vs. Satish

Keshaorao Ganorkar AIR 2012 Bom. 101.

23. The counsel for the plaintiff in this regard invited attention to Sameer

Magoo Vs. Vijay Kr. Magoo MANU/DE/2994/2009 and argues that since

the mother of the plaintiff could not have claimed partition by virtue of

Section 23 of the Hindu Succession Act and which also has been deleted by

the Amendment of the year 2005, she could not have claimed partition.

24. However the said judgment is of no assistance to the plaintiff. In that

case, partition was sought by the plaintiff of the property of his maternal

grandfather. The said suit was defended by pleading that since the mother of

the plaintiff in her lifetime could not have claimed partition owing to the bar

of Section 23 supra, the plaintiff also, notwithstanding the repeal of Section

23, could not claim partition. This Court held that the mother of the plaintiff

having inherited a share in the property from her father and though being

under a disability in her lifetime to claim partition, the plaintiff as her heir

and upon removal of disability, was entitled to claim partition.

25. The plaintiff has not pleaded any such case. Even otherwise, the

question here is not whether the mother of the plaintiff could claim partition

or not but whether she at all had any right.

26. In the above view of the matter, no need for putting the suit to trial

arises. In fact the suit, on the averments made, does not disclose any cause of

action.

27. Once the suit itself is found to be not maintainable, the question of

impleading Shri Raj Narain Singh as party thereto does not arise.

28. The suit is accordingly dismissed with costs to the defendant no.1.

Counsel's fee assessed at Rs.20,000/-.

Decree sheet be prepared.

RAJIV SAHAI ENDLAW, J

MARCH 26, 2014 pp..