Delhi High Court
Shantanu Mukherjee vs Bhaktipad Mukherjee & Ors on 18 December, 2018
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 502/2016
SHANTANU MUKHERJEE ..... Plaintiff
Through: Mr. Sushant Mukund, Advs.
Versus
BHAKTIPAD MUKHERJEE & ORS ..... Defendants
Through: Ms. Sonia A. Menon and Mr. S.
Krishna Murthy, Advs. for D-1&2.
Mr. Indranil Ghosh and Mr. Kunal
Singh, Advs. for D-3 to 5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 18.12.2018
IA No.6195/2018 (of plaintiff u/O XV R-3 CPC)
1. The plaintiff seeks decree for partition of H.No.194, Kailash Hills,
East of Kailash, New Delhi on admissions.
2. The counsel for the plaintiff/applicant has been heard.
3. The plaintiff has instituted this suit for partition of H.No.194, Kailash
Hills, East of Kailash, New Delhi claiming that the paternal grandfather of
the plaintiff Hari Mohan Mukherjee was the owner of the said property and
on his demise the plaintiff and the five defendants being his natural heirs
have inherited the property and the plaintiff, defendant No.1 and defendant
No.2 each, have 1/4th undivided share in the property and the defendants
No.3 to 5 together have the remaining 1/4th undivided share in the property.
4. The defendant No.1 has contested the suit inter alia pleading (i) that
after the demise of Hari Mohan Mukherjee, his widow Renukana Mukherjee
applied for membership of Sarva Hitkari Co-operative Housing Building
Society and nominated the defendant No.1 as her successor to the
membership of the said Society; (ii) that the land underneath the property
was allotted to Renukana Mukherjee by virtue of such membership but she
died even before the perpetual lease deed of the said plot of land could be
executed in her favour; (iii) that the perpetual lease deed was executed in
favour of the defendant No.1 as the nominee of Renukana Mukherjee; (iv) that the
father of the plaintiff was separated from the mother of the plaintiff and was
residing with the defendant No.1 and never claimed any right in the property
and was fully aware of the nomination by the mother in favour of the defendant No.1
and of execution of the perpetual lease deed in favour of the defendant No.1
and did not raise any objection thereto; and, (v) that the plaintiff was residing
with his mother and after the death of his father has filed this suit.
5. The defendant No.2 and the defendant No.4 who also have filed
written statements support the defendant No.1. The defendant No.3 is stated
to have adopted the written statement of defendant No.4.
6. I fail to see, as to how in the aforesaid state of pleadings, it can be said
that no issue arises.
7. The counsel for the plaintiff has contended that since the defendant
No.1 has admitted ownership of the mother and has not pleaded any Will of
the mother and/or any relinquishment deed by the father of the plaintiff of
the share inherited from the mother, the plaintiff has a share. With respect to
nomination in favour of the defendant No.1, it is argued that it is settled
position in law that the nomination does not confer an absolute right on the
nominee.
8. The counsel for the defendants No.3&4 have contended that the
plaintiff has not been in possession and it is the defendant No.1 who has
raised construction with his own monies of the house on the plot of land
allotted by virtue of membership aforesaid and the issue of court fees was
kept open vide earlier order dated 18th October, 2016.
9. Though undoubtedly it has been held by the Supreme Court in Sarbati
Devi Vs. Usha Devi (1984) 1 SCC 424, Vishin N. Khanchandani Vs. Vidya
Lachmandas Khanchandani (2000) 6 SCC 742, Shipra Sengupta Vs.
Mridul Sengupta (2009) 10 SCC 68 and in Ram Chander Talwar Vs.
Devender Kumar Talwar (2010) 10 SCC 671 that nomination does not make
the nominee the exclusive heir of the deceased but at the same time it cannot
be said that the other pleas taken by the defendant No.1 in his written
statement do not raise any issue.
10. It is not deemed appropriate to make any further observations at this stage.
11. There is no merit in the application, the same is dismissed.
CS(OS) 502/2016
12. The counsel for the plaintiff, during the course of hearing has stated
that his father, besides him has also left his mother and who is still alive and
admits that she would also have a share.
13. Without all the parties who according to the plaintiff have a share being
parties to the suit, the suit is not maintainable and the plaint is liable to be rejected.
14. The counsel for the plaintiff now states that Hari Mohan Mukherjee
and Renukana Mukherjee also left behind a daughter.
15. On the said plea of the plaintiff, the said daughter of Hari Mohan
Mukherjee and Renukana Mukherjee would also be a necessary party.
16. The counsel for the plaintiff also states that he wants to file
replications to the written statements filed by the defendants.
17. Replications, if any be filed within thirty days.
18. The parties to file their affidavits of admission/denial of each other's
documents before the next date of hearing.
19. List for framing of issues, if any on 5th April, 2019.
RAJIV SAHAI ENDLAW, J.
DECEMBER 18, 2018
'bs'
(Corrected & released on 7th January, 2019)
