Sushila & Ors. vs Vijay Kumar Bhardwaj & Ors.
2014 Latest Caselaw 5055 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                              Order delivered on: 10th October, 2014

+             CS(OS) No.2478/2012, I.A. No. 14830/2012 &
              I.A. No.3578/2013

       SUSHILA & ORS                                    ..... Plaintiffs
                        Through     Mr.Fanish K. Jain, Adv.
                        versus

       VIJAY KUMAR BHARDWAJ & ORS                ....Defendants
                    Through Mr. S.Sethi, proxy counsel for D-1
                            Mr.Vikas B.Pakhiddey, Adv for D-2.
                            Mr.Vinod Wadhwa, Adv. for D-3 to
                            D-5

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.

1. The plaintiffs have filed a suit for partition in respect of suit property bearing No.3-A, situated in Gali No.5 and 6, area measuring 100 sq.yds, falling under Khasra No.43/1, in the area of Village Khuraji Khas- III, Abadi known as Kundan Nagar Shahdara, Delhi - 110051 (hereinafter referred to as the "suit property").

2. Brief facts of the case are that the defendant No.1, Surinder Kumar (deceased) and the plaintiffs, defendant No. 2 are sons and daughters of Late Shri Jagdish Prasad respectively. The defendant No.3 is the widow of Shri Surinder Kumar. Defendant Nos.4 and 5 are the minor children of deceased Shri Surinder Kumar and defendant No.3. The defendants Nos.3 to 5 are surviving legal heirs of Late Shri Surinder Kumar. Shri Jagdish Prasad was the owner of constructed

immoveable suit property which was self acquired property and was purchased vide registered sale deed dated 18th July, 1972.

3. Shri Jagdish Prasad died intestate on 24th December, 1991 leaving behind the plaintiffs and defendant Nos. 1 and 2 and Shri Surinder Kumar as his surviving legal heirs. The mother of the plaintiffs and defendant Nos. 1 and 2 and Shri Surinder Kumar died on 24th May, 1979 much prior to the death of Shri Jagdish Prasad. Upon the death of Shri Jagdish Prasad, each of the plaintiffs, defendant Nos. 1 and 2 and Shri Surinder Kumar became the owners of the suit property in equal share i.e. each became owner of 1/6 th undivided share in the suit property.

4. Thereafter, Shri Surinder Kumar died on 28th February, 2010 leaving behind defendant Nos. 3 to 5 as his surviving legal heirs. Upon the death of Shri Surinder Kumar, his 1/6th undivided share in the suit property was devolved upon the defendant Nos. 3 to 5 i.e. owner of 1/18th undivided share in the suit property.

5. It is the case of the plaintiff that the plaintiff on various occasions requested the defendants to partition the suit property in metes and bounds and hand over due share of the plaintiffs however, the defendants avoided the same. At present, the suit property is in occupation and possession of the defendant No.1 and some of the portion of the suit property on first floor is in occupation and possession of defendant Nos.3 to 5 who are not residing in the suit property. Thereafter, the plaintiffs served legal notice dated 20th July, 2012 to the defendants for partition of the suit property but despite the service of the said notice neither the defendants replied to the

said notice nor came forward to partition the suit property in metes and bounds.

6. It came to the knowledge of the plaintiffs that the defendant No.1 is trying to create third party interest in the suit property in order to deprive the plaintiffs of their legitimate share in the suit property. Aggrieved of the same, the plaintiffs have filed a suit for partition in metes and bounds.

7. Written statement on behalf of defendant No.1 has been filed wherein it is stated that the father of the parties died on 24 th December, 1991 and at the time of death of the father, only the plaintiff no.2 and defendant No.2 were married and after the death of the father, an oral family settlement was arrived at between the brothers and sisters that defendant No.1 shall bear all expenses of the marriage of the remaining unmarried sisters and brothers i.e. plaintiff Nos. 1 and 3 and the deceased husband of defendant No.3 and in lieu thereof the plaintiffs and defendant No.2 had orally relinquished their shares in the suit property as the suit property was the only property left behind by the father of the parties. Accordingly, the defendant No.1 spent his entire earnings, savings and carried out the marriages of plaintiff No.1 and 3 and deceased husband of defendant No.3 without even saving a single penny for the marriage of his own two daughters. However, now the plaintiffs seem to have turned dishonest and at the stage when the defendant No.1 has been preparing for the marriage of his daughters.

It is further stated that in view of the oral family settlement, the plaintiffs are not entitled to any partition or share in the suit property.

8. Since during the lifetime of his father, defendant No.1 along with his family members had been living and occupying the entire first floor of the suit property till date whereas the entire ground floor of the suit property was in occupation of the defendant No.3 along with her family members but after few months of the death of her husband, the defendant No.3 along with defendant Nos. 4 and 5 left the ground floor of the suit property under her lock and key and had shifted to her parental home. It is stated that since the suit property cannot be partitioned by metes and bounds, the defendant No.1 be given the first and preferential right to buy out the other shares before putting the suit property to public auction.

9. The plaintiffs in the replication to the written statement have denied the contentions of the defendant No.1. The defendant Nos. 3 to 5 in his written statement has not denied the contents of the plaint. The defendant No.2 in his written statement has stated that defendant Nos. 3 to 5 are in possession of ground floor of the suit property and the defendant No.1 is in possession of first floor of the suit property. The defendant No.2 being co-sharer in the suit property is also in constructive possession of the same.

10. During the pendency of the suit the plaintiffs have filed an application being I.A. No. 3578/2013 under Order 12 Rule 6 read with Section 151 CPC for pronouncement of judgment on admissions.

11. By way of instant application filed by the plaintiffs it is stated that in order to create a false defense in the suit, the defendant No.1 has alleged in the written statement that after the death of father an oral family settlement was arrived at between the parties and the

plaintiffs and defendant No.2 had orally relinquished their share in the suit property.

12. It is stated that the defendant No.1 filed a civil suit bearing Suit No. 202/2010 against the defendant No.3 in respect of the properties and tenancy rights of the father which is pending in the District Courts. In the said civil suit, in para 13 of the plaint, the defendant No.1 has admitted that each of the plaintiffs and defendants (i.e. defendant No.3 to 5 collectively) are entitled to 1/6th share of the suit property.

13. The defense of alleged oral family settlement and oral relinquishment of shares taken by the defendant No.1 is totally in contradiction of his earlier admission in the abovementioned civil suit. The defendant No.1 cannot be permitted to take a false defense as an afterthought just to prolong the present suit and to delay the grant of legitimate rights of the plaintiffs. The alleged plea of the family settlement of the defendant No.1 is false as the defendant No.1 has not given any details or date of any alleged family settlement. Moreover, there cannot be any oral relinquishment of the share in an immoveable property as it requires compulsory registration.

14. The defendant No.1 during the hearing of the application has not denied the factum of his admission in civil suit No. 202/2010. Infact, Counsel has conceded the prayer of the suit. The other defendants are supporting the case of the plaintiff.

15. In view of admitted position, the prayer made in the application under Order 12 Rule 6 CPC is allowed. Consequently, a preliminary decree of partition is passed in respect of suit property bearing No.3- A, situated in Gali No.5 and 6, area measuring 100 sq.yds., falling

under Khasra No.43/1, in the area of Village Khuraji Khas-III, Abadi known as Kundan Nagar, Shahdara, Delhi-110051 and it is declared that the plaintiffs are entitled to the share to the extent of 1/6th share of each plaintiffs in the suit property.

CS(OS) No.2478/2012 & I.A. No. 14830/2012

16. List the matter before Court on 30th October, 2014 for further direction.

(MANMOHAN SINGH) JUDGE OCTOBER 10, 2014