Sangeeta Bhambani vs Jatinder Sardana & Ors.
2015 Latest Caselaw 6343 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Decision : August 27, 2015

+                         RFA(OS) 88/2014

      SANGEETA BHAMBANI                                 ..... Appellant
              Represented by:          Mr.Uttam Datt, Advocate

                                       versus

      JATINDER SARDANA & ORS                    ..... Respondents
               Represented by: Mr.Praveen Chauhan, Advocate with
                               Mr.Dhruv Dwivedi and Mr.Vijay
                               Chauhan, Advocates for R-1

CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA

PRADEEP NANDRAJOG, J. (Oral)

CM No.15246/2015 & CM No.15347/2015

1. Respondent No.4 is dead and her legal heirs are proposed to be brought on record as prayed for in CM No.15246/2015. Vide CM No.15247/2015 delay in filing CM No.15246/2015 is prayed to be condoned.

2. The record of the suit would evince that respondent No.4 chose not to contest the suit, and appears to be a happy bystander.

3. The record of the suit would show that the contest was between the appellant and respondent No.1.

4. Accordingly we declare that there is no need to bring on record the

legal heirs of deceased respondent No.4 and thus would dismiss both applications.

5. We note that the two applications are listed before the learned Joint Registrar on October 30, 2015, which date is cancelled. RFA (OS) No.88/2014

1. After being made to understand the law and how pleadings must be made in a suit, learned counsel for the appellant concedes that he has ill- drafted the suit and prays to the Court that the plaintiff/appellant be permitted to withdraw the suit with liberty to institute a fresh suit in respect of the subject matter of the suit, a request which is opposed by learned counsel for respondent No.1 who was the contesting party in the suit.

2. Since we are inclined to grant permission to the appellant to withdraw the suit, we record our reasons for so doing, and from what we have noted in paragraph 1 above, it would be apparent that the reasons would relate to the pleadings in the plaint filed by the appellant followed by bringing out the sufficient grounds to allow the plaintiff to withdraw the suit with liberty to institute a fresh suit in respect of the subject matter of the suit.

3. But before that we note that as per the impugned order dated March 26, 2014 the learned Single Judge has held the suit not to be maintainable because it was argued before the learned Single Judge that the suit property was ancestral and that the mother of the plaintiff would be a member of the coparcener because of the amendment to the Hindu Succession Act in the year 2005. The learned Single Judge has noted that the mother of the plaintiff died on November 09, 1993 and could not therefore be a coparcener and could not claim any share in the property as a coparcener and therefore the plaintiff could not claim on said basis under her mother. The learned

Single Judge has noted that as per the plaint 1/7th share in the suit property was claimed on the mumbled jumbled pleadings that Surender Sardana had agreed for the same and that the common ancestor of the parties, Sh.Charanjiv Lal Sardana acquired the property in the name of his son Surender Sardana by using ancestral funds. The learned Single Judge has noted that the plaintiff is the daughter of the daughter of the Late Sh.Charanjiv Lal. The learned Single Judge has noted that as per the defence, Charanjiv Lal Sardana had executed a will on December 17, 1958, probate whereof was obtained on July 24, 1967 in which he had detailed all the properties which were owned by him and there was no mention in the will of the suit property.

4. The learned Single Judge has held that there are no pleadings in the plaint that Surender Sardana held the property for the benefit of the joint family comprising Charanjiv Lal Sardana, his sons and his daughters; the coparceners being Charanjiv Lal Sardana and his sons. The learned Single Judge has held that vague pleas of property being ancestral are immaterial.

5. In a nut shell, since in the plaint it was admitted that Surender Sardana was the registered owner of the property, the learned Single Judge has held that the Benami Transactions (Prohibition) Act, 1988 would render the suit not maintainable.

6. In the ill-drafted plaint it is stated by Sangeeta Bhambani that Charanjiv Lal was blessed with five daughters named : (i) Sushila, (ii) Rajni,

(iii) Pushpa, (iv) Sushma, and (v) Nirmal. He was blessed with two sons named : (i) Jitender, and (ii) Surender. It was pleaded that Charanjiv Lal was the only son of Late Uttam Sardana who was a doctor and owned vast agricultural lands, shops and houses in Pakistan which were inherited by

Charanjiv Lal on the death of Uttam Sardana. Though Charanjiv Lal was an Advocate, but he never practiced because his time was spent in managing the vast estate left behind by his father. Migrating to India on partition, it is pleaded that Charanjiv Lal was allotted lands in India to satisfy the claim for the ancestral properties left behind in Pakistan and that from the said funds he purchased a property in Karol Bagh and the suit property bearing Plot No.94, Block No.51, Panchsheel Cooperation Housing Society, though applied in the name of Jitender Sardana was funded by Charanjiv Lal from the ancestral funds. To raise the construction the property at Karol Bagh was sold. It was pleaded that Charanjiv Lal died on October 30, 1963. His daughter Rajni i.e. the mother of the plaintiff died, on November 09, 1993. It was pleaded that Surender Sardana died on April 05, 2011.

7. Without specifying as to how does the plaintiff claimed 1/7 th share in the suit property, the pleadings abruptly end making a statement that the plaintiff claims 1/7th share in the property.

8. Concededly Surender Sardana died issueless.

9. The ill-drafted plaint, though makes a reference to suit property being purchased in the name of Surender Sardana with further pleading that Charanjiv Lal made payment of the premium for the plot of land and that Charanjiv Lal in turn acquired properties from his father in Pakistan and in lieu thereof he was allotted land in Hisar, which he sold and used part funds to pay the premium for the plot of land in question and purchased a house in Karol Bagh which was later on sold and funds generated used to construct the building on the plot of land in question, but leaves the pleadings at that.

10. Reading between the lines, the pleadings would be that since Charanjiv Lal inherited properties left behind in Pakistan from his father,

they would be ancestral properties in his hands and that he and his sons would be coparceners. The plot of land was financed by ancestral funds and since Surender Sardana was a coparcener the bar under the Benami Transactions (Prohibition) Act, 1988 would not apply because of Section 4(3)(a) thereof. Concededly the legal effect of the factual pleadings has not been stated.

11. The proper pleadings should have stated as above i.e. that Charanjiv Lal and his family were a joint Hindu family of which he and his two sons were coparceners. It should have been pleaded that on the death of Charanjiv Lal on October 30, 1963, a deemed partition took place, and since Charanjiv Lal's wife had pre-deceased him, the joint Hindu Family properties were deemed partitioned with Charanjiv Lal having 1/3 rd share therein and his two sons having 1/3rd share each therein and that Charanjiv Lal's 1/3rd share, being treated as his personal share would be divided between his five daughters and two sons i.e. the mother of the plaintiff would have 1/21st share therein. The pleadings ought to be that on the death of Surender Sardana his share which would be 8/21 would devolve by succession. There is another problem in the pleadings in the plaint Nirmala, the daughter of Charanjiv Lal, who on the pleadings that the suit property was that of the Joint Hindu Family would be entitled to 1/21 st share: There is no reference as to when did she die i.e. before or after Surender Sardana died. Said pleadings would have resulted in Nirmala's share being distributed amongst her siblings. To wit : if Nirmala pre-deceased Surender Sardana, Surender Sardana's share in the suit property would be 8/21 + 1/6 th of Nirmala's 1/21st share.

12. The ill-drafted suit, with traces of pleadings of suit property being

ancestral, and percentage of share in the property based on said pleadings not having been properly set forth, in our opinion requires it to be held that this is a fit case where the appellant should be permitted to withdraw the suit because litigants can only tell the facts to their lawyers and we expect the lawyers to keep in view the law while drafting the pleadings. Regretfully, in the instant case the lawyer has just not given a thought to the law. As argued before the learned Single Judge, the impugned decision is sound. But if we look at the pleadings keeping in view the law it dawns that the plaint is most ill-drafted.

13. The Founding Fathers of the Constitution devised a justice-delivery system in the country on the belief that lawyers would assist the Judges in holding the scales of justice. Advocates own a two-fold duty towards Courts, and one of which would be to be clear and scholarly in their pleadings. The other to show reverence to the Court. If a lawyer fails in the pleadings, but a client has a cause which emerges from the pleadings, liberty needs to be granted to the client to withdraw the existing pleadings which ill brings out the cause, simultaneous granting liberty to institute a fresh suit on the same subject matter.

14. We dispose of the appeal and set aside the impugned order dated March 26, 2014. Restoring CS (OS) No.350/2012, we permit the appellant to withdraw the suit and grant liberty to the appellant to file a fresh suit for partition on the same subject matter and to recompense respondent No.1 the inconvenience caused we further direct that the pre-condition to file the fresh suit would be the payment of cost in sum of `50,000/- (Rupees Fifty Thousand only) to the respondent No.1 by the appellant within one month from today. If the appellant were to file a fresh suit on the same subject

matter the appellant would first pay `50,000/- (Rupees Fifty Thousand only) as costs to respondent No.1 and in the plaint would make a reference to the cost being paid giving particulars of the day on which the cost was paid and the mode by which it was paid.

CM No.9156/2014 Dismissed as infructuous.

(PRADEEP NANDRAJOG) JUDGE

(MUKTA GUPTA) JUDGE AUGUST 27, 2015 mamta