Anu vs Suresh Verma & Ors
2015 Latest Caselaw 9384 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             CS(OS) No.2546/2010

%                                                         17th December, 2015

ANU                                                           ..... Plaintiff
                              Through       Mr. Ravi Dev Sharma, Advocate

                              versus

SURESH VERMA & ORS                                             ..... Defendants
                  Through                   Mr. M.A. Niyazi and Ms.Anamika
                                            Niyazi, Adv. for D-1 & D-2
                                            Mr. Sanjay Sood, Adv. for D-3 & D-4


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)


1.

On 16.04.2015 issues were framed in this suit for partition. Issue

nos.4 and 5 which were framed on 16.04.2015 read as under:-

"(4) Whether the properties bearing Nos.(i) G-20, South Extension Market, Part-I, New Delhi (ii) X-62-69, Raghubarpura, Gandhi Nagar, Delhi and (iii) J- 6, Ground Floor, Jyoti Nagar (West) Delhi-110094 cannot be the subject matter of a partition suit since it is barred by Section 4 of the Benami Transaction (Prohibition) Act, 1988? OPD-1 & OPD-2 (5) Whether the properties mentioned in para 5 of the amended written statements of defendant Nos.1 & 2 be also partitioned between the parties to the present suit? If yes, in what share(s) to each of the parties to the present suit? OPD-1 & OPD-2"

2. These two issues were to be treated as preliminary issues as per

the order dated 16.04.2015.

3. Actually the issues in question may not strictly be preliminary

issues in terms of Order XIV Rule 2 of the Code of Civil Procedure, 1908

(CPC) and the relevant question which arises is that as per the facts arising

from the pleadings on record and documents filed by the parties, whether at all

these issues would arise or need not be framed.

4. At the outset it is to be noted that the suit plaint in essence is a

simple suit plaint that the plaintiff is a legal heir of her parents, Sh. Om Prakash

Verma and Smt. Chandra Wati, and partition is claimed of the suit properties

on the ground that the properties belonged to Sh. Om Prakash Verma and/or

Smt. Chandra Wati. Parents are alleged to have died intestate in the years 1979

and 1997, respectively.

5. In a suit claiming partition on the ground that the plaintiff is a

legal heir of the parents and that either of the parents owned a property of

which partition is claimed, it is also necessary to state as to how and by which

title deed the parent(s) became owner(s) of the suit properties for the plaintiff to

be a legal heir to inherit such properties on the parents dying intestate. The

plaint is silent as to how the parents of the plaintiff became/were the owners of

the properties mentioned in issue no.4.

6. In law there is a difference between making of the material

averments of a cause of action and making some of the averments. A plaint

merely stating that one of the parents is the owner of the properties of which

partition is sought, is not enough, once there are no averments made in the

plaint as to by which title deed the properties were in the name of either of the

parents and how the parents continued to be the owners till his/her death. The

ownership of the property will necessarily be only of the title holder in whose

name originally the title deeds of the property or properties exist. It is for this

purpose that the Benami Transactions (Prohibition) Act, 1988 (hereinafter

referred to as 'the Benami Act') was passed by the legislature and any right to a

property which is claimed by a person is barred unless the case falls within the

exceptions of the property being either an HUF property or the property being

purchased in trust, and none of which two aspects are averred by the plaintiff in

the present suit plaint.

7. Really, therefore, the suit with respect to the three properties

mentioned in issue no.4 would be barred by the Benami Act inasmuch as not

only plaintiff has made no averments with respect to under which title deed

either of the parents owned the properties stated in issue no.4 and also the

plaintiff has not filed the documents to show that the title deeds of the

properties mentioned in issue no.4 were of either of the parents of the plaintiff.

On the contrary and in fact the defendants have filed copies of the title deeds of

the properties that the properties referred to in issue no.4 are either in the name

of the defendants or in the name of persons who are in fact not even parties to

the suit viz qua the property no.J-6, Jyoti Nagar (West), Delhi-110 094.

8. Issue no.5 was framed as counter blast to issue no.4 and counsels

for the defendants concede that if issue no.4 is deleted as not being required to

be framed in view of the pleadings and documents of the parties, issue no.5

which has been framed, and which is for the benefit of the defendants, will also

go.

9. Accordingly, since there are no material averments of a cause of

action in the plaint as to by which title document the parents of the plaintiff

being Sh. Om Prakash Verma and Smt. Chandra Wati became and continued to

be the owners of the three properties mentioned in issue no.4, and the fact that

the defendants have filed the documents to show that the properties were not in

the names of parents of the plaintiff i.e owned by the parents of the plaintiff,

accordingly, issue no.4 is directed to be deleted and the suit with respect to the

suit properties mentioned in para 4 of the plaint will be liable to be dismissed as

per Section 4 of the Benami Act. Ordered accordingly.

10. At this stage, counsel for the plaintiff states that the first property

mentioned in issue no.4 i.e G-20, South Ext. Market, Part-I, New Delhi-110049

was on tenancy under the Delhi Rent Control Act, 1958 of the father Sh.Om

Prakash Verma, and this property has been subsequently purchased by the

defendant nos.1 and 2, and which position is disputed by defendant nos.1 and 2.

Since, claiming of the tenancy rights as a co-tenant of the tenancy rights on the

ground of devolvement of the tenancy rights of the property no.G-20, South

Ext. Market, Part-I, New Delhi-110049 on the death of Sh. Om Prakash Verma

who as alleged was the tenant under the Delhi Rent Control Act of this

property, this suit is permitted to be withdrawn with liberty to the plaintiff to

file a suit in accordance with law for claiming rights accordingly in the property

no. G-20, South Ext. Market, Part-I, New Delhi-110049 on the basis that the father

of the parties was a tenant of this property under the Delhi Rent Control Act.

11. In view of the aforesaid discussion, issue nos.4 and 5 will both

stand deleted, with a liberty granted to the plaintiff to file a suit in accordance

with law with respect to the property no. G-20, South Ext. Market, Part-I, New

Delhi-110049.

12. Once the suit properties as mentioned in issue nos.4 and 5 are no

longer within the purview of the present suit, interim orders passed with respect

to these properties will stand vacated.

13. Order dated 16.04.2015 of framing of preliminary issue nos.4 and

5 would be decided accordingly.

14. List before the Joint Registrar for fixing dates of trial on 18 th

February, 2016. Parties will file their list of witnesses positively within a period

of six weeks from today.

I.A. No.17977/2011 (by plaintiff u/O XII R 6 CPC)

15. This application is disposed of as not pressed with liberty to the

plaintiff to urge all issues, including as stated in this application, at the stage of

final arguments.

I.A. stands disposed of accordingly.

I.A. No.17049/2010 (Stay)

16. This application is disposed of by confirming the interim order

dated 12.07.2011 except the properties which are subject matter of issue nos.4

and 5 which have been deleted.

17. With respect to 1/6th share of the income being received by the

defendants of the properties, which at any stage were owned by the parents of

the plaintiff, the defendants besides keeping 1/6th share of the rent received

separately subject to the final decision of the suit, the concerned

defendants will also file every year a statement of account in Court with respect

to the amounts which are and have been kept separately by the defendants. The

amounts when kept separately obviously would mean the amounts will be kept

separately in a specific bank account or with any other financial institution. It

is also agreed between the respective counsels that the 1/6th share of the rent

amount which is being received by either of the defendants will be kept in a

fixed deposit.

18. Nothing contained in this order is a reflection on the merits of the

cases of either of the parties.

I.A. stands disposed of.

VALMIKI J. MEHTA, J

DECEMBER 17, 2015 nn