Sonu Hamade vs Kuldeep Singh & Ors
2018 Latest Caselaw 6751 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                      Date of decision: 14th November, 2018
+                         CS(OS) 1209/2014
       SONU HAMADE                                               ..... Plaintiff
                          Through:     Ms. Aastha Dhawan, Ms. Diksha
                                       Mathur & Ms. Shaini Bhardwaj,
                                       Advocates (M-9711436642).

                          versus

       KULDEEP SINGH & ORS                                ..... Defendant
                    Through:           Mr. Atul Bhuchar & Ms. Jyotsna
                                       Bhuchar, Advocates for D-1&2 (M-
                                       9599217417).

       CORAM:
       JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This is a suit filed by Ms. Sonu Hamade for partition and rendition of accounts. The suit has been filed against her father Mr. Kuldip Singh and brother Mr. Prabjot Singh, who are resident of K-14, Hauz Khas, New Delhi as also of USA. The Plaintiff is also a resident of USA. It is the Plaintiff's case that she is the daughter of Mrs. Aneel Kaur and Mr. Kuldeep Singh. Her mother - Mrs. Aneel Kaur was the owner of three immovable properties as mentioned in Schedule I to the amended plaint which reads as under:

"a) Two apartments being Apartment No. G-1501 and G-1502, developed by Sun City in Sector-54, Gurgaon by the name of "LA Lagoon Complex" purchased by Mr. Kuldip Singh and Mrs. Aneel Kaur.

b) Apartment No. A-501, admeasuring 1656 sq.ft., booked in Dalmia Vihar, Bijwasan, New Delhi-61 in the year 1985

c) 1-701, Caitriona Apartment, Ambience Island, Gurgaon, Haryana having super built up area of 7672.14 sq. ft. (712.76 sq. mt.) which is in the joint names of Defendant no. 1,2 and Late Mrs. Aneel Kaur Natt."

2. As can be seen from the above listing of properties, two properties are located in Gurgaon and one property is located in New Delhi. It is the case of the Defendants that the Bijwasan property at item no. (b) above was merely a booking which was made, but the amounts in respect of the said booking have already been returned by the builder. So the property no longer exists for being partitioned. The further submission of the Defendants is that this Court lacks the territorial jurisdiction to entertain the present suit inasmuch as the two remaining immovable properties are located in Gurgaon and hence under Section 16 CPC, the location of the immovable property being outside Delhi, the suit is not maintainable. In view of this stand of the Defendants, on 6th December, 2016, this Court had framed the following preliminary issue:

"Whether this court has territorial jurisdiction to grant the relief claimed in the suit? OPP"

3. The counsel for the Defendants relies upon Shiv Bhagwan Moti Ram Saraoji v. Onkarmal Ishar Dass and Ors AIR 1952 Bom 365 to argue that insofar as the Delhi property is concerned, the same can no longer be treated as immovable property as the amount in respect of the same having been

returned, it is only a money related issue. Thus, the only immovable properties are items no. (a) and (c), both of which are not located in Delhi. Thus, this Court has no jurisdiction

4. On the other hand, counsel for the Plaintiff submits that the ancestral property of the family is located in Hauz Khas. One of the properties of the mother is located in Delhi. Insofar as the stand of the Defendants that the booking amount has been returned, Ld. counsel submit that this pertains to documents which have been filed by Defendants subsequent to the filing of the suit, and in any case these documents would have to be proved at the stage of trial. She submits that even if one of the immovable properties is located in Delhi, this Court would have territorial jurisdiction. She relies upon the judgment of this Court in Ritu Sharma & Anr. v. Shri Sandeep Sharma & Ors, CS(OS) No. 1226/1999( Decided on 30th August, 2011).

5. This Court heard the parties and counsels. A perusal of the list of properties as mentioned in Schedule I and II shows that the family is closely connected with Delhi. Most of the bank accounts mentioned in Schedule II are in Delhi. The family home located in Hauz Khas. Out of three properties, stated to be belonging to the mother, one property was located in Delhi. It is possible that the booking of the said property may have been cancelled and amount may have been returned to Mrs. Aneel Kaur. However, the documents in respect thereof have to be proved in trial by the Defendants. At this stage, the Court cannot reject the plaint presuming that the said property is no longer in existence. If, after trial, this Court finds that the said property is not in existence or that the booking has been cancelled or moneys have to be adjusted, the Court would pass appropriate orders determining the shares of the respective parties at that stage.

6. The money which was supposedly returned in respect of Bijwasan property does not convert the said property which is an immovable property into a movable property unless it is established that the booking was cancelled. This fact being not admitted by the Plaintiff, it cannot be removed from the list of the properties as contained in Schedule I. The judgment cited by the Plaintiff is clear that even if one property is located in Delhi, this Court would have the jurisdiction.

7. Para 8 of the Ritu Sharma (Supra) reads as under:

"8. A conjoint reading of Sections 16 and 17 of the CPC makes it abundantly clear that a suit for partition, in respect of immovable properties situated within the jurisdiction of different Courts, can be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situated. In this case, one of the immovable properties is situated in Delhi and one in Noida. If the plaintiff had to file separate suit seeking similar relief, reason being that one of the property to be partitioned lies outside the territorial jurisdiction of this Court, than it would be encouraging multiplicity of litigation. Furthermore, there may be conflict of opinion between two courts if such separate suits are filed. That apart, Section 17 CPC in no uncertain terms envisages that where immovable properties situate within the jurisdiction of different courts, suit can be instituted in any court within the local limits of whose jurisdiction any one property is situated. Thus, in my view, Delhi Courts have jurisdiction to entertain and try the present suit."

8. The jurisdiction in the present case cannot be determined without evidence and trial and without the Defendants establishes that the New Delhi property no longer exists. Another submission of learned counsel for the Defendants is that a probate petition has been filed in the Gurgaon courts

and therefore the suit for partition ought to be also tried in Gurgaon. On a specific query as to what are the details of such a petition, it is informed that the petition has been lodged only yesterday. The present suit being prior in point of time is not to be governed by the filing of the probate petition. Accordingly, at this stage, the plaint is not liable to be returned.

9. The preliminary issue is decided accordingly.

I.A. 7894/2014 (for stay)

10. Counsel for the Defendants submits that both the Defendants are in USA. They would like to liquidate the property and are willing to deposit the share of the Plaintiff in this Court. Counsel for the Plaintiff wishes to seek instructions.

11. The Defendants are permitted to use and occupy the properties mentioned in Schedule 1. However, no third party interest shall be created.

12. List on 10th December, 2018.

PRATHIBA M. SINGH JUDGE

NOVEMBER 14, 2018 Rahul