Delhi High Court
Smt. Asha Gupta vs Shri Mahender Kumar & Ors. on 10 March, 2016
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 2753/2012, I.A.Nos. 16692/2012, 19829/2014 &
23378/2014
% 10th March, 2016
SMT. ASHA GUPTA ..... Plaintiff
Through: Mr. P.D. Gupta and Mr. Abhishek
Gupta, Advocates.
versus
SHRI MAHENDER KUMAR & ORS. ..... Defendants
Through: Ms. Rachna Aggarwal, Adv. for D-1
with D-1 in person.
Mr. Hemand Chaudhri and Mr. Arjun
Bhaskar, Advs. For D-2.
Mr. Shalabh Gupta, Adv. for D-3,4
and 5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This suit for partition is filed by one plaintiff Smt. Asha Gupta.
Smt. Asha Gupta is the daughter of late Sh. Siri Kishan Dass Mittal and Smt.
Basanti Devi. There are five defendants in the suit. Defendant nos.1 and 2
CS(OS) No.2753/2012 Page 1 of 19
are the brothers of the plaintiff and sons of Sh. Siri Kishan Dass Mittal and
Smt. Basanti Devi. Defendants no. 3 to 5 are the legal heirs of the branch of
Sh. Rajender Kumar and which Sh. Rajender Kumar is the deceased brother
of defendant nos.1 and 2 and the plaintiff and the son of Sh. Siri Kishan Dass
Mittal and Smt. Basanti Devi.
2. As per the plaint, plaintiff claims that the father Sh. Siri Kishan
Dass Mittal was the sole owner of the suit property bearing no. M-291,
Greater Kailash-II, New Delhi-110048 and since the father Sh. Siri Kishan
Dass Mittal died intestate at Delhi on 18.11.2004 with the mother Smt.
Basanti Devi having already expired, plaintiff has a 1/4th share in the suit
property with 1/4th share falling to defendant no.1, 1/4th share falling to
defendant no.2 and 1/4th share falling to Sh. Rajender Kumar who is
represented by his legal heirs being the defendants nos. 3 to 5.
3. Defendant nos. 3 to 5 in their written statement have relied upon
a judgment and decree passed as per a compromise in suit no.11/1976 titled
as Smt. Basanti Devi Vs. Shri Siri Kishan Dass and others and which
Judgment and Decree dated 30.1.1976 decrees the suit by a compromise
affirming the oral partition entered into between the members of HUF of Sh.
Siri Kishan Dass Mittal and Smt. Basanti Devi being the husband and wife
CS(OS) No.2753/2012 Page 2 of 19
and their three sons being defendants nos. 2 to 4 in that suit namely Sh.
Rajinder Kumar, Sh. Mahender Kumar and Sh. Narender Kumar. As per the
compromise decree, the earlier oral partition which took place between the
five parties to the said suit dated 29.12.1975 was affirmed and as a
consequence thereto plaintiff in suit no.11/1976 was given the half share of
house bearing Municipal No.2678 Ward No.5, situated at Roshanpura, Nai
Sarak (Ami Chand Marg), Delhi.
4. The present suit is at the stage of framing of issues and
therefore, the question arises whether at all the issues have to be framed or
that the suit can be decided at this stage itself in view of the pleadings and
the documents on record by applying the principle of Order XII Rule 6 of the
Code of Civil Procedure, 1908.
5. At the outset, I must note that this Court is entitled to take note
and consider the Judgment and Decree dated 30.1.1976 passed by the court
of Additional District Judge as a public document in terms of Section 74 of
the Indian Evidence Act, 1872. The certified copy of the judgment and
decree therefore does not have to be proved and the Court can straightway
take notice of the same. Accordingly, I am considering the Judgment and
CS(OS) No.2753/2012 Page 3 of 19
Decree dated 30.1.1976 passed in suit no. 11/1976 titled as Smt. Basanti
Devi Vs. Shri Siri Kishan Dass and others.
6. In order to consider the effect of the Judgment and Decree dated
30.1.1976 in suit no.11/1976, it will be necessary at this stage to reproduce
the plaint, the written statement in the said suit, the statement of parties and
the decree in the said suit. These are reproduced as under:-
Plaint
" The plaintiff named above begs to submit as under:-
1. That the plaintiff and the defendants constituted a Joint Hindu
Family of which Shri Siri Kishan Dass defendant No.1 was the Karta and
Manager.
2. That the said Joint Hindu Family owned and possessed the
following Joint Hindu Family immoveable properties:-
(i) Double storeyed house with a Barsati on the second floor
bearing municipal No.2678, Ward No.5, situate at Nai Sarak,
(Ami Chand Marg) Delhi,
(ii) Plot of land No.291, Block No.M, measuring 400 square
yards in the residential colony known as Greater Kailash-II,
situate at Village Bahapur in the Union Territory of Delhi.
(iii) House bearing Municipal No.261, Ward No.6, situate at
Beri, Tehsil Jhajhar, District Rohtak in the State of Haryana.
(iv) House bearing Municipal No.76, Ward No.5, situate at Beri,
Tehsil Jhajhar, District Rohtak in the State of Haryana.
(v) House bearing Municipal No.105, Ward No.5, situate at
Beri, Tehsil Jhajhar, District Rohtak in the State of Haryana.
(vi) Shop bearing Municipal No.213, Ward No.6, situate at Beri,
Tehsil Jhajhar, District Rohtak in the State of Haryana.
3. That out of the said immoveable properties mentioned in para 2 of
this plaint the said house No.2678 and the said plot No.291 were purchased
CS(OS) No.2753/2012 Page 4 of 19
by the said Joint Hindu Family in the name of Shri Siri Kishan Dass
defendant No.1 with the Joint Hindu Family funds. The other said
immoveable properties situate at Beri were ancestral.
4. That on 29.12.1975 through the intervention of near relations a
partition of the said immoveable properties took place between the plaintiff
and the defendants.
5. That the partition of the said immoveable properties took place in
the manner mentioned below:-
(i) Plaintiff was allotted half portion of the said house bearing
Municipal No.2678 Ward No.5, situate at Roshanpura, Nai Sarak
(Ami Chand Marg), Delhi.
(ii) Shri Siri Kishan Dass defendant No.1 was allotted half of
the said house bearing Municipal No.2678, Ward No.5, situate at
Roshanpura, Nai Sarak (Ami Chand Marg), Delhi, the said house
bearing Municipal No.261, Ward No.6, situate at Beri, Tehsil
Jhajhar, District Rohtak in the State of Haryana.
(iii) Shri Rajender Kumar defendant No.2 was allotted one third
portion of the said plot No.291 Block No.M in the residential
Colony known as greater Kailash-II, situate at Village Bahapur in
the Union Territory of Delhi and house bearing Municipal No.76,
Ward No.5, situate at Beri Tehsil, Jhajhar District Rohtak.
(iv) Shri Mahender Kumar defendant No.3 was allotted one
third portion of the said Plot No.291 Block No.M in the residential
Colony known as Greater Kailash-II, situate at Village Bahapur in
the Union Territory of Delhi, the said house bearing Municipal
No.105, Ward No.5, situate at Beri, Tehsil Jhajhar, District
Rohtak in the State of Haryana.
(v) Shri Narender Kumar defendant No.4 was allotted one third
portion of the said plot No.291 Block No.M in the residential
Colony known as Greater Kailash-II, situate at Village Bahapur in
the Union Territory of Delhi, the said shop bearing Municipal
No.213, Ward No.6, situate at Beri, Tehsil Jhajhar, District
Rohtak in the State of Haryana.
6. That on the said oral partition the plaintiff and the defendants took
possession of the share of the respective immoveable properties allotted to
them.
7. That at the time of the said oral partition it was further agreed
between the plaintiff and the defendants that a partition deed would be duly
CS(OS) No.2753/2012 Page 5 of 19
executed between them in respect of the said partition though the same was
not necessary in law.
8. That after the said partition the defendants began to challenge the
factum and validity of the said partition and hence clouds have been cast
on the title of the property allotted to the plaintiff in the said oral partition
which necessitated the plaintiff to file the present suit for declaration for
getting her title cleared in respect to the said property allotted to her.
9. That the plaintiff asked the defendants to respect the said oral
partition and admit its factum and validity but they paid no heed hence this
suit.
10. That the cause of action arose on 7.1.1976 when the defendants
challenged the factum and validity of the said partition and the above
request was made by the plaintiff to the defendants to admit the factum and
validity of the said partition but the same remained unheeded. Since the
property allotted to the plaintiff situates in the Union Territory of Delhi and
the said partition took place at Delhi, this Hon'ble Court has jurisdiction to
try the suit.
10. That the value of the suit for jurisdiction is Rs.35,000/- which is the
market value of the share of the property of the plaintiff allotted to her on
which a fixed court fee stamp of Rs.19.50 paise has been paid.
11. The plaintiff prays that a decree for a declaration to the effect that
the said oral partition took place on 29.12.1975 in the manner mentioned
above and in pursuance thereof the plaintiff was allotted half portion of the
said house No.2678 and that the plaintiff is the owner and in possession of,
the said half portion of the said house No.2678 be passed in favour of the
plaintiff against the defendants, costs of the suit be allowed or any other
relief which this Hon'ble Court deems fit and proper be granted.
Delhi. Plaintiff
Dated:12.1.1976 Through:
Shri Daya Krishna,
Advocate.
Verification:
Verified that the contents of paras 1 to 9 of this plaint are true to my
knowledge. Para 10 is leggal and para 11 contains submissions to the
Court.
Verification made at Delhi on this 12th day of January, 1976,"
CS(OS) No.2753/2012 Page 6 of 19
Written Statement in suit no. 11/1976
Written Statement on behalf of defendant Nos. 1 to 4.
-------------
The answering defendants No. 1 to 4 beg to submit as under :-
1. That paras 1 to 11 of the plaint are not disputed. An oral partition
did take place between the plaintiff and the defendants in respect of
properties detailed in the plaint and the parties took possession of
respective shares of the property allotted to them. After the oral partition
there arose some misunderstandings between the parties which has now
been removed through the intervention of near relatives. These defendants
have no objection in passing the decree. The parties be left to bear their
own costs.
Defendant s No. 1 to 4.
through:
Delhi,
Dated 30.1.1976. SH. SUBODH KUMAR GUPTA,
and SH. DINESH BHARGAWA,
Advocates.
Verification:
Verified that the contents of this written statement are true to our
knowledge.
Verification made at Delhi on this 30.1.76.
Defendants No. 1 to 4.
Statement and order
PRESENT: Counsel for parties.
The parties have arrived at a compromise. It be recorded. W.S. filed.
30.1.1976
A.D.J.
Statement of counsel for parties and parties.
The defendants have admitted the claim of the plaintiff. The suit be decreed
as prayed for and the parties be left to bear their own costs.
ROAC
30.1.1976 A.D.J.
Decree in suit no.11/1976
" DECREE IN SUITS FOR POSSESSION, & c
(Order XX Rule 7 of the Code of Civil Procedure)
IN THE COURT OF SH. H.K.S.MALIK ADDL. DISTRICT JUDGE,
DELHI
AT
SUIT NO.11/76
XXXXXXXXXX
Plaint presented on the 19.1.76
This suit coming on this day for final disposal before me.
in the presence of Sh. M.P.Bansal Advocate and Sh. Dinesh Bhargava
Advocate
It is ordered that in view of the statements of the parties, the suit is decreed
as prayed for.
And it is further ordered that the plaintiff is the owner and in possession of
the said half portion of the said House No. 2678 Roshanpura, Nai Sarak,
Delhi. Parties are left to bear their own costs."
COSTS OF SUITS
Plaintiff Defendant
Rs. P. Rs. P.
for plaint and
exhibit
2. Do. 1 25 Do.
for petition
power
3. Do. - - Pleader's - -
for fees on Rs.
exhibits
4. - - Substance - -
Pleader' for witness
s fee on
Rs.
5. - - Commissi - -
Substanc oner's fee
e for
witness
6. - - Miscellane - -
Commis ous
sioner's
fee
7. - -
Service
of
process
Miscella
neouseo
us
GIVEN under my hand and the seal of the Court this 30th day of January,
(Seal) Judge
MGIPK-11SJD/73(578)-13-5-74-25,000 Addl. District Judge
Delhi "
7. A reading of the aforesaid judgment and decree with the
statements of the parties affirming the contents of the plaint and the written
statement, it is seen that the suit no.11/1976 which was filed by Smt. Basanti
Devi against her husband Sh. Siri Kishan Dass Mittal/defendant no.1 and her
three sons Sh. Rajender Kumar, Sh. Mahender Kumar and Sh. Narender
Kumar as defendant nos. 2 to 4, on the basis that there existed an HUF of the
parties to that suit and the HUF owned various properties as stated in para 2
of the plaint. Thereafter, the plaint in paras 4 and 5 talked of an oral
partition which took place on 29.12.1975 and how the properties of the HUF
including the suit property were divided. Accordingly, the relief clause in
para 11 of the plaint as a whole sought for a declaration with respect to
affirmation of the oral partition taking place on 29.12.1975 and as detailed in
paras 4 and 5 of the plaint and also for the additional/further and
consequential relief of half ownership of the plaintiff in the property no.2678
i.e prayer in the said suit of plaintiff being declared the half owner of the
property no.2678 at Nai Sarak and an affirmation of the oral partition dated
29.12.1975 as detailed in paras 4 and 5 of the plaint.
8. On 30.1.1976, the statements of the parties was recorded and
which was in terms of the written statement filed by the defendants (which
has been reproduced above) and which statements of the defendants affirm
the contents of the plaint. The Decree accordingly passed on 30.1.1976 (and
which has also been reproduced above) and which clearly states that in view
of the statement of the parties, the suit is decreed "as prayed" i.e as per the
prayer clause in para 11 of the plaint and which has already been reproduced
above being in two parts of affirmation and confirmation of the oral family
settlement of HUF on 29.12.1975 bringing about the division of the
properties of HUF as detailed in paras 4 and 5 of the plaint with the plaintiff
accordingly being the half owner of the property no.2678.
9. Paras 5(iii) to (v) of the plaint in suit no. 11/1976 deal with the
suit property bearing no. M-291 and they talk of giving 1/3rd share in the suit
property to the three sons Sh. Rajender Kumar, Sh. Mahender Kumar and
Sh. Narender Kumar, and who are defendants no.3 to 5, defendant no.1 and 2
in the present suit in terms of the oral partition dated 29.12.1975. Therefore,
in terms of the Judgment and Decree dated 30.1.1976, and which had as
parties all the necessary parties and coparceners to the HUF being the father,
the mother and the three sons as per the law prevalent in 1976, and these
parties to the suit being the coparceners in the HUF agreed and it was
compromised by accepting the contents of the plaint and the factum of oral
partitioning of the properties taking place on 29.12.1975 and as detailed in
paras 4 and 5 of the plaint.
10. The issue is that whether the Judgment and Decree dated
30.1.1976 is binding on the plaintiff, inasmuch as, counsel for the plaintiff
contends that it is not so as the plaintiff was not a party to the said suit. In
my opinion, plaintiff need not have been a party to the suit no.11/1976,
inasmuch as, all the parties to the suit as regards existence of an HUF and
who had rights in the HUF properties were parties to the suit. The suit
property which is the subject matter of the present suit no doubt stood in the
name of the father Sh. Siri Kishan Dass Mittal, and who would be the karta
of the HUF, however, it is settled law that the property in the name of any of
the coparcener of the family is also a property of the HUF, inasmuch as,
HUF purchases properties in the names of the different members/coparceners
of the HUF as per the convenience of the HUF. Plaintiff in the present suit
being the daughter of Sh. Siri Kishan Dass Mittal and Smt. Basanti Devi in
1976 was not a coparcener and therefore, not entitled to any share in the
HUF properties and hence she was not a necessary party to the suit
no.11/1976 which was decreed by a compromise by the Judgment and
Decree dated 30.1.1976. The only person who had locus to question the
Judgment and Decree dated 30.1.1976 in suit no.11/1976 was late Sh. Siri
Kishan Dass Mittal, inasmuch as, the suit property as per the title deeds was
in his name, however, the father Sh. Siri Kishan Dass Mittal not only did
object but conceded to the suit property not being his self-owned property
and that the property was the property of the coparceners of the HUF of the
parties and all of whom were the parties to the suit no.11/1976. The
argument of the counsel for the plaintiff is therefore rejected that the
Judgment and Decree dated 30.1.1976 does not bind the plaintiff on the
ground that the plaintiff was not a party to the suit. For completion of
narration, I must state that the mother being a family member though was not
a coparcener, but being the wife of Sh. Siri Kishan Dass Mittal and the
mother of the children, she got a share equal to the coparceners in the HUF
property as per the judgment of the Supreme Court in the case of Gurupad
Khandappa Magdum Vs. Hirabai Khandappa Magdum and Others (1978)
3 SCC 383.
11. On behalf of the plaintiff and arguing for the plaintiff, the
counsel for the defendant no.2 argued that the Judgment and Decree dated
30.1.1976 was not a final and a binding decree because it was not registered
though it required registration under Section 17(1)(b) of the Registration Act,
1908. Reliance in this regard was placed on the judgment of the Supreme
Court in the case of Bhoop Singh Vs. Ram Singh Major and others (1995)
5 SCC 709.
12. The arguments urged on behalf of the defendant no.2 and
consequently the plaintiff with respect to non-bindingness of the Judgment
and Decree dated 30.1.1976 on the ground that the Decree dated 30.1.1976
was not registered is a misconceived argument, inasmuch as, in para 17 of
Bhoop Singh's case (supra), it is specifically observed that the court has to
examine the facts of each case as to whether the parties to the suit have any
pre-existing rights to the immovable property in the suit or the right is
created for the first time by the compromise decree. As per the plaint in suit
no.11/1976, it is seen that the parties had pre-existing rights in the suit
properties, including the property which is the subject matter of the present
suit, as all the properties were HUF properties, and therefore, when
compromise took place and Judgment and Decree was passed on 30.1.1976,
it was with respect to pre-existing rights of the coparceners of the HUF in the
HUF properties which were the subject matter of the suit no.11/1976.
Therefore, it was not required that the Judgment and Decree dated 30.1.1976
had to be registered for it to be binding, as is now argued on behalf of the
defendant no.2 and the plaintiff by placing reliance on the judgment in the
case of Bhoop Singh (supra). This argument urged on behalf of the
defendant no.2 and the plaintiff is therefore rejected.
13. Finally, counsel for the plaintiff sought to place reliance upon
the two Orders passed by a learned Single Judge of this Court dated
27.8.2014 and 9.9.2014, and accordingly it is argued that the defendants no.
1 and 2 have conceded to the right of the plaintiff in the suit property and
thus plaintiff is entitled to a decree for partition. Counsel for the defendant
no.1 per contra argues that the reading of the aforesaid two orders shows that
the said concession was made on the ground that first of all there had to exist
a right of each of the sons and daughter of Sh. Siri Kishan Dass Mittal and
Smt. Basanti Devi of 1/4th share each in the suit property ie of defendant no.1
conceding he had only 1/4th right, and not 1/3rd right, and once the defendant
no.1 himself does not get 1/4th share in the suit property or he is bound by
and relies upon the Judgment and Decree dated 30.1.1976 alongwith
defendant no.2, thus the question of giving 1/4th share to the plaintiff in the
suit property would not arise.
14. Let me at this stage reproduce the said Orders dated 27.8.2014
and 9.9.2014 and these orders read as under:-
ORDER DATED 27.8.2014
" Defendant No.1 is present in person. Defendants No.1 and 2
principally agree to give 1/4th share to their sister. Counsel for defendants
No.3 to 5 submits that defendants No.3 and 4 who are the legal heirs of
deceased brother are not available despite the matter passed over once and
called for second time. Adjournment is sought.
Subject to cost of Rs.7,500/- to be shared between the plaintiff and
defendants No.1 and 2, adjourned to 9.9.2014 when all parties are directed to
remain present in Court.
Complete set of paper book be supplied to the defendant/Mr.Mahinder
Kumar during the course of the day."
ORDER DATED 09.09.2014
"Parties are present in court today. Defendant Nos. 1 and 2 reiterated
the stand taken by them as noticed in order dated 27.08.2014. Mr. Bagai,
learned senior counsel appearing for defendant Nos. 3 to 5 submits that his
clients are not willing to give any share to the sister. He has placed reliance on
a decree and Will of the deceased father. On examining the decree it leaves no
room for doubt that the decree does not relate to the suit property at Greater
Kailash. With regard to Will relied upon by Mr. Bagai, the stand of the co-
defendants is that being an HUF property the father could not have made a
Will, whereas the stand of Mr. Bagai, Advocate is that the property was self-
acquired property of the father.
Pleadings are complete. At joint request, adjourned to 18.11.2014 for
framing of issues."
15. A reading of the aforesaid orders shows that defendant no.1 was
present in person and he alongwith the defendant no.2 made a statement
specifically with respect to giving of 1/4 th share to the sister i.e if the
property is held to be of Sh. Siri Kishan Dass Mittal and who died intestate
and consequently plaintiff as a daughter getting 1/4th share alongwith 1/4th
share of her three brothers. However, once it is held otherwise that the
property itself never belonged to Sh. Siri Kishan Dass Mittal in view of the
Judgment and Decree dated 30.1.1976 in suit no.11/1976, the entire
foundation of the Orders dated 27.8.2014 and 9.9.2014 for making of
statements of defendant nos. 1 and 2 goes, as defendant no.1 does not admit
to plaintiff being entitled to 1/4th share and the defendant no.1 being entitled
to only 1/4th share instead of 1/3rd share he has as per the Decree dated
30.1.1976, and consequently the said Orders dated 27.8.2014 and 9.9.2014
cannot be held to be binding for the plaintiff to get any share in the suit
property, inasmuch as, the issue of plaintiff getting 1/4 th share was on the
basis that the suit property bearing no.M-291 has to be divided in four parts
and once the suit property is not to be divided in four parts, and the parties
would be bound by the Judgment and Decree dated 30.1.1976 in suit
no.11/1976, there does not arise any issue of bindingness upon the defendant
nos.1 and 2 of the statements recorded on their behalf in terms of the Orders
dated 27.8.2014 and 9.9.2014.
16. From the aforesaid discussion, the following conclusions are
drawn:-
(i) The subject suit was a suit for partition by the plaintiff claiming 1/4 th
share in the suit property on the ground that she is one of the four legal heirs
of the father Sh. Siri Kishan Dass Mittal and who owned the suit property
and that the father Sh. Siri Kishan Dass Mittal had died intestate.
(ii) There is no foundation of the cause of action as pleaded in the plaint
because as on the date of the death of Sh. Siri Kishan Dass Mittal, Sh. Siri
Kishan Dass Mittal was not the owner of the suit property because the suit
property stood owned by the three sons of Sh. Siri Kishan Dass Mittal (and
who were defendant nos. 2 to 4 in suit no.11/1976) and who are the
defendant nos.1 to 5 in the present suit by virtue of the Decree dated
30.1.1976 in suit no. 11/1976.
(iii) The Judgment and Decree dated 30.1.1976 in suit no.11/1976 is
binding on the plaintiff and there was no need for the plaintiff as per law as
prevalent in the year 1976 to be a party to the suit no.11/1976 because
plaintiff was a female member ie she was not a coparcener of the HUF and
hence was not entitled to any share in the properties of the HUF.
(iv) Plaintiff therefore, is not entitled to any relief of partition as claimed
in the present suit as plaintiff cannot have 1/4th share of the father Sh. Siri
Kishan Dass Mittal as the father himself never had any share in the suit
property on the date of his death.
17. In view of the above, the present suit is dismissed. This
judgment will not prejudice the rights of the defendant nos. 1 and 2 in
claiming their 1/3rd rights in the suit property in terms of the Judgment and
Decree dated 30.1.1976 in suit no.11/1976 or any defence of the defendants
no. 3 to 5. Parties are left to bear their own costs.
MARCH 10, 2016 VALMIKI J. MEHTA, J.
ib
