Delhi High Court
Uma Shankar & Anr vs Anand Prakash on 11 December, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th December, 2018
+ CS(OS) 634/2018 & IA No.16956/2018 (u/O XXXIX R-1&2 CPC).
UMA SHANKAR & ANR. .... Plaintiffs
Through: Mr. K. Sunil, Adv.
versus
ANAND PRAKASH ..... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.16957/2018 (for exemption).
1.
Allowed, subject to just exceptions.
2. The application stands disposed of.
CS(OS) 634/2018 & IA No.16956/2018 (u/O XXXIX R-1&2 CPC).
3. The two plaintiffs, namely (i) Uma Shankar; and, (ii) Ved Prakash,
have sued for (i) partition of half ad measuring 162.5 sq. yds. of property
no.2902, Bazar Sirki Walan, Hauz Quazi, Delhi - 110 006 in terms of Will
dated 26th June, 2008 executed by the father of the two plaintiffs and the sole
defendant; and, (ii) for declaration restraining the sole defendant from
dealing with the plaintiffs' portion of the property.
4. It is the case of the two plaintiffs, that the subject property belonged to
the paternal grandfather of the plaintiffs and the defendant, who gifted one
portion of the same to another son and executed a Will with respect to the
portion, for which this suit has been filed, in favour of the father of the
parties and on the basis of the said Will, the father of the parties got the
property mutated in his name. It is further the case of the plaintiffs, that the
father of the parties has left behind a validly executed last Will bequeathing
different portions of the property as shown in the site plan stated to be
annexed to the Will, in favour of each of the two plaintiffs and the defendant.
The plaintiffs, though have filed a copy of the Will before this Court, but
have not filed the site plan stated to be annexed to the Will.
5. Finding, that as per the claim of the plaintiffs, the property already
stands partitioned by metes and bounds vide the Will of the father of the
parties, in terms of which the plaintiffs claim the plaintiffs and the defendant
to be having title to the property, I have enquired from the counsel for the
plaintiffs, how does a suit for partition lie.
6. A suit for partition lies only when the parties have undivided share in
the property and in such a suit, first a preliminary decree for partition is
passed determining the shares of each of the parties, followed by a final
decree for partition, either of division of the property by metes and bounds as
per the shares of the parties, and if the property is not capable of being
divided by metes and bounds, by sale of the property and distribution of sale
proceeds as per share declared in the preliminary decree for partition. At
times, under Section 4 of the Partition Act, 1893, if any of the shareholder
shows desire to purchase the share of the others, a final decree for partition
in terms thereof also is passed.
7. On the contrary here, the property already stands divided by metes and
bounds under the Will of the father under which, according to the plaintiffs,
the plaintiffs and the defendant have title to the property. Once it is so, the
plaintiffs cannot seek partition inasmuch as, as per the case of the plaintiffs
themselves, the property stands partitioned.
8. The only grievance of the plaintiffs is that the defendant is in
possession of the entire property and inspite of demand by the plaintiffs, is
not delivering the possession of the portion of the plaintiffs.
9. However at the time of hearing the counsel for the plaintiffs states that
the plaintiffs are also in possession but the defendant besides in possession
of his portion, is also occupying part of the portions of the property which
under the Will have been bequeathed to the parties.
10. Though the counsel for the plaintiffs has contended so but is unable to
show the paragraph in the plaint where the plaintiffs have claimed to be in
possession of any part of the property.
11. What emerges is, that the grievance of the plaintiffs is of being ousted
of possession of their property. However the plaintiffs, instead of suing for
recovery of possession of their part of the property under the Will aforesaid
of the father, have sued for partition.
12. It is not as if the plaintiffs are not aware of the said fact. The plaintiffs,
in the Legal Notice dated 29th May, 2018 stated to have been issued
preceding the suit, have infact demanded possession from the defendant of
their portions of the property. However the plaintiffs, when suing, instead of
suing for possession have sued for partition and which relief as per
admissions of the plaintiffs themselves, is misconceived and has obviously
been made, to avoid payment of court fees inasmuch as the suit for partition
is filed paying fixed court fees provided therefor.
13. The counsel for the plaintiffs states that the plaintiffs have sued for
partition because the defendant is refusing to admit the document claimed by
the plaintiffs to be the last Will of the father, to be the last Will of the father.
14. I have enquired from the counsel for the plaintiffs, where the plaintiffs
have pleaded so and whether the plaintiffs are willing to make a statement
giving a go bye to the Will and claiming partition on the basis of intestacy of
the father and in which case the sister of the parties will also get a share.
15. The counsel for the plaintiffs is neither able to show any such plea nor
is willing to make a statement electing to ignore the Will.
16. The counsel for the plaintiffs then states that the suit be entertained for
declaration of the document being the Will. However the plaintiffs have not
claimed any such relief and have not valued the suit for the purposes of court
fees and jurisdiction for the relief of declaration. Valuation of a suit for the
purpose of court fees and jurisdiction for the relief of declaration has to be
the same. Moreover, in my opinion no suit for declaration of the document
being the validly executed last Will lies and the remedy is of seeking
probate.
17. The suit as filed is thus misconceived and is dismissed.
18. Though the plaintiffs shall have liberty to sue for appropriate remedy
but on the condition that the plaintiffs, along with the plaint, file a copy of
this order and disclose the same in the plaint.
No costs.
Dasti.
RAJIV SAHAI ENDLAW, J
DECEMBER 11, 2018
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