Virender & Ors. vs Krishna & Ors.
2017 Latest Caselaw 5589 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 856/2017

%                                                   11th October, 2017

VIRENDER & ORS.                                        ..... Appellants
                          Through:       Mr. Puneet Jaiswal, Mr.
                                         Bhuvan Chand and Mr. Nakul
                                         Chaudhary, Advocates.
                          versus

KRISHNA & ORS.                                        ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the contesting defendants in

the suit, impugning the judgment of the trial court dated 21.3.2017 by

which the trial court has decreed the suit of the respondents/plaintiffs

and directed partition of the suit properties which belonged to the

father of the parties late Sh. Jugti Ram. Respondents/plaintiffs have

been granted 1/8th share each in the suit properties inasmuch as the

deceased Sh. Jugti Ram and his widow Smt. Murti Devi died leaving

behind eight children i.e four daughters and four sons. Three plaintiffs

in the suit and the defendant no.5 Smt. Rajwati were the four

daughters and the four sons were the defendant nos. 1 to 4 in the suit.

Appellants are defendant nos. 1 to 3 in the suit. Reference to these

defendants would include reference to their legal heirs inasmuch as the

defendant nos. 2 and 3 had died pendente lite and are thus now

represented by their legal heirs.

2. The facts of the case are that the father of the parties Sh.

Jugti Ram was the owner of the three suit properties. These properties

were X-83 and property no. 1375 situated in the Revenue Estate of

Village Chhawla, Delhi and another property being land admeasuring

2416.5 sq. yds. in Khasra No. 273 of Village Chhawla, Delhi. The

suit properties existed in the name of Sh. Jugti Ram in the revenue

record and who died intestate in the year 1991. His widow Smt. Murti

Devi, i.e mother of the parties also died intestate in the year 1991. All

the aforesaid facts are undisputed facts. In view of the aforesaid

factual position once a Hindu dies intestate, his property will equally

devolve amongst his children, and therefore, the suit for partition has

rightly been decreed in favour of the three daughters by the trial court.

3. Before the trial court the appellants had contended that

the property situated in Khasra No. 273 was sold out, and in this

regard the trial court has found that it was only a portion of Khasra

No. 273 which was sold out, but the balance area of 900 sq. yds.

remained. Trial court for this purpose relies upon the report produced

by the revenue official being the Patwari Ex.CW1/A and also the

relevant extract of the Khatoni Ex.CW1/B and both of which

documents showed that the suit property has continued to be shown in

the name of, and hence ownership of, Sh. Jugti Ram and was hence

available to the children of Sh. Jugti Ram and Smt. Murti Devi for

partition in terms of the rights inherited as per the Hindu Succession

Act.

4. Trial court has also disbelieved the case of the appellants

that there was an oral partition as regards property X-83 because no

evidence whatsoever was led of partition that the property bearing no.

X-83 on partition had fallen to the share of Sh. Dilbagh/defendant

no.2/appellant no.2.

5. Trial court also notes that one legal heir of the original

defendant no.3/appellant no.3/Sh. Pritam took a plea that the Will was

executed by his father Sh. Pritam in favour of appellant no.2/defendant

no.2 but no such Will was filed and accordingly such plea was

rejected.

6. The relevant observations of the trial court decreeing the

suit for partition are contained in paras 8, 9, 15 to 18 of the impugned

judgment and these paras read as under:-

"8. I have heard detailed arguments and gone through the record of the case. The Plaintiff/PW1 Smt. Krishna is examined as only witness on behalf of Plaintiff and deposed by way of PW1 by way of her affidavit Ex.PW1/A. In the said affidavit, she more or less reiterated the contentions of the plaint and exhibited the site plan of the suit property as Ex.PW1/1 to Ex.PW1/3.

9. Defendant Virender, on the other hand deposed as DW1 by way of his affidavit Ex.DW1/A. In the course of proceedings, the court also summoned Tehsildar in whose place CW1 Sh. Bijender Singh, Patwari from the office SDM, Kapashera, Delhi who appeared and submitted his report in terms of order dated 22.08.2016. He deposed that as per revenue record Khasra No.273 of village Chhawla, New Delhi is in the name of Jugti S/o Bhuru R/o village Chhawla, New Delhi. He also deposed that suit land has not been acquired so far and that the suit properties are existing in village Chhawla, which is rural village and there is no question of any notification of authorizing/urbanization of the area of the suit properties. The report produced by him is Ex.CW1/A and bears signatures of concerned Tehsildar, Kapashera. The copy of relevant extract of the Khatoni produced by him is exhibited as Ex.CW1/B.

xxxxx xxxxx xxxxx

15. The Plaintiffs have claimed partition of the suit properties has also been opposed by Defendant No.1 to 4 on the ground that land measuring 120 sq. yards in possession of Defendant No.2 and 4 has already been sold and transferred to other persons and the suit property is not in their possession. It is also stated that after the demise of Sh. Jugti Ram ½ share of land following in Khasra No.273, Village Chhawla, Delhi was sold to Master Khazan Singh and thus Plaintiffs have not right, title or interest in the said land partitioned.

16. It is however, noteworthy that in entire cross-examination of PW1, not even a single suggestion was put to the Plaintiff by the Defendant with

regard to alleged sale of the aforesaid properties, as claimed by then in the written statement. Even when Defendant No.1 stepped into the witness box as DW1, he merely deposed by way of his affidavit that land measuring 120 sq. yards which was in possession of Defendant No.2 and 4 has already been sold to Defendant No.6 and hence, no question arise of the partition of the said land. However, neither Defendant No.1/DW1 brought on record any documentary evidence with regard to alleged sale of the said land nor Defendant No.2 and 4 stepped into the witness box in the entire course of trial to prove that land in question has been sold. This contention thus remains unsubstantiated for want of necessary documents in this regard and must, therefore, be rejected outrightly. It is also noteworthy that in his cross- examination, DW1 categorically deposed that he has not sold this property to anybody. He further deposed that his father had sold portion out of the land falling in Khasra No.273, Village Chhawla, Delhi. However, the remaining land measuring 900 sq. yards still remains.

17. Though DW1 further deposed that suit property has already been partitioned, however, in the name breath, he also deposed that it was verbal partition. He further deposed that property bearing No.X-83, Village Chhawla, Delhi has already been partitioned and fallen in the share of Sh. Dilbagh Singh during the lifetime of his father. However, no evidence with regard to any such partition was led and the remaining Defendants even did not step into the witness box to prove this plea of any alleged partition of the suit property by the parents of the parties. Accordingly, this plea being devoid of merits and apparently being an afterthought must also be rejected.

18. It may also be mentioned at this juncture that by way of his written statement, Defendant No.7, Sh. Jitender Kumar, has raised a new plea of there being a Will executed by his father late Sh. Pritam Singh in favour of Defendant No.2. However, no evidence whatsoever was led in this regard and even the said alleged Will did not see the light of the day during the entire course of trial." (underlining added)

7. In my opinion, therefore, the trial court has committed no

error in decreeing the suit for partition and ordering that the three

plaintiffs will have 1/8th share each in the suit properties which

belonged to their father Sh. Jugti Ram who had died intestate.

8.(i) Learned counsel for the appellants argued that the suit for

partition was not maintainable because daughters did not have a right

to seek partition in view of Section 23 of the Hindu Succession Act

inasmuch as the father died in the year 1991 and Section 23 was

existing then and was only repealed w.e.f 9.9.2005 by amendment to

the Hindu Succession Act by Act 39 of 2005.

(ii) This argument of bar of the suit on account of then existing

Section 23 of the Hindu Succession Act is a misconceived argument

for various reasons. Firstly, the appellants raised no such plea in the

written statement and no such issue was got framed. Therefore, once

an issue is not pleaded and asserted before the trial court, such issue is

to be taken to have been waived. Appellants therefore cannot argue

this issue before this Court. Secondly, the argument that the father

died in the year 1991 when Section 23 of the Hindu Succession Act

was operative, and which therefore bars the subject suit, is a

misconceived argument because the suit was filed in the year 2007.

Once the suit is filed in the year 2007 and after repeal of Section 23 of

the Hindu Succession Act when the bar of Section 23 of the Hindu

Succession Act stood already removed, and therefore I fail to

understand as to how the suit for partition is not maintainable because

at one point of time there existed a bar on the daughters to seek

partition of the family residential house. Bar is a bar only till the bar

exists and once the bar is removed the fact that there was such a bar at

one point of time earlier would not mean that bar still exists, and the

suit filed after removing of the bar can be said to be barred by law.

Another reason for rejecting the argument is that the bar under Section

23 of the Hindu Succession Act only applies to dwelling house

occupied by the family members. This is a factual plea. This factual

plea admittedly has not been raised that the properties in question are

dwelling houses where the family members are residing, and

therefore, such a plea is again not available to the appellants.

9. In view of the above, there is no merit in the appeal, and

the same is therefore dismissed.

OCTOBER 11, 2017/ib                          VALMIKI J. MEHTA, J