Anamica Dayal vs Heera Devi (Deceased) Thr Lrs & Ors
2020 Latest Caselaw 584 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      RFA(OS) 12/2020
       ANAMICA DAYAL                                          ..... Appellant
                   Through:               Ms. Deepali Gupta, Advocate with
                                          appellant in person

                    versus

       HEERA DEVI (DECEASED) THR LRS & ORS ..... Respondents
                     Through: None

       CORAM:
       HON'BLE MS. JUSTICE HIMA KOHLI
       HON'BLE MS. JUSTICE ASHA MENON
                             ORDER

       %                     29.01.2020

       HIMA KOHLI, J. (ORAL)

C.M. Appln. No. 3679/2020 (Exemption from filing certified copies), C.M. Appln. No. 3680/2020 (Exemption from filing complete trial court record), C.M. Appln. No. 3682/2020 (Exemption from filing decree sheet dated 25.07.2019)

1. Exemption allowed subject to all just exemptions.

2. Application stands disposed of.

RFA(OS) 12/2020 & C.M. Appln. No. 3677/2020 (filed by appellant U/O 41 Rule 5 CPC for stay of impugned order and Judgement dated 25.07.2019), C.M. Appln. No. 3678/2020 (Filed by appellant under Section 5 of Limitation Act for condonation of 120 days delay in filing the appeal), C.M. Appln. No. 3681/2020 (filed by appellant under Section 151 CPC to take on record additional facts and documents)

1. The appellant/plaintiff is aggrieved by the judgment dated

25.07.2019, passed by the learned Single Judge whereunder a final decree has been passed in a suit for partition, originally instituted by her father, Shri Prabhu Dayal, S/o Shri Ganga Ram, against his mother (widow of late Ganga Ram) and the remaining siblings.

2. At the time of passing the final judgment and decree, the learned Single Judge noted that during the lifetime of Sh. Prabhu Dayal a preliminary decree for partition had already been passed in respect of four properties, subject matter of the suit and referred to in para Nos.5, 7, 9 and 10 of the plaint, declaring him and the remaining defendants entitled to 1/7th undivided share each therein. It was also observed that as regards the prayer made for partitioning the remaining three properties, mentioned in para 6, 8 and 11 of the plaint, the suit had already been dismissed on 10.03.2014.

3. At that stage, learned counsel for the appellant/plaintiff had submitted for the first time that while passing the preliminary decree for partition on 10.03.2014, one of the properties, in respect whereof there was no dispute, had been wrongly excluded. Learned counsel sought an adjournment to file an application with regard to the said property. Noting that the preliminary decree for partition had been passed over five years ago and the same had attained finality, the learned Single Judge opined that the request for an adjournment was unjustified. Regarding the submission made by learned counsel for the appellant/plaintiff that her client had also filed a separate suit for partition in respect of the property that had been left out, registered as CS(OS) 363/2019, pending on the Original Side of this Court, the court

held that it was not as if the appellant/plaintiff was left remediless. Consequently, the request that the left out property can also be partitioned in the present suit itself by amending the preliminary decree passed on 10.03.2014, was turned down by the learned Single Judge who observed that it was too late in the day to stall passing of a final decree for partition in the suit. As a result, a final decree for partition was directed to be drawn up. Aggrieved by the aforesaid order, the present appeal has been filed.

4. Ms. Deepali Gupta, learned counsel for the appellant/plaintiff states that the learned Single Judge has failed to appreciate that the respondents/ defendants had suppressed the fact that the property in question mentioned in para 6 of the plaint, i.e., parcel of land measuring 125 sq. yds., situated within Lal Dora, Dr. Ambedkar Colony, V.P.O. Khera Khurd, Delhi was owned by late Ganga Ram whereas Prabhu Dayal was given the impression that the same was owned by his mother, late Smt. Heera Devi, impleaded as defendant no.1 in the suit. It is stated that the true facts came to the knowledge of the legal heir of the deceased appellant/plaintiff two days before the impugned judgment was passed, i.e., on 23.07.2019 when the respondent No.3 gave a copy of the allotment letter issued in the name of Sh. Ganga Ram to the sister of the appellant/ plaintiff, who is stated to be a co-plaintiff in the subsequently instituted suit [CS(OS) 363/2019].

5. Learned counsel for the appellant states that besides the appellant/plaintiff and her two siblings, there are three other co-plaintiffs who have jointly filed the subsequent suit for partition

against the respondents No.3 and 4 and Smt. Sheela, wife of the respondent No.4. Claiming that immediately thereafter, when a request was made to the learned Single Judge on 25.07.2019, for grant of time to move an appropriate application, the said request was turned down.

6. We may note that a preliminary decree was passed in CS(OS) 333/2009 on 10.03.2014. On the said date, learned counsel for the original plaintiff Prabhu Dayal had requested that a preliminary decree for partition may be passed in respect of four immovable properties, referred to in paras No.5, 7, 9 and 10 of the plaint to which the contesting respondents/defendants, i.e., defendants No. 1, 3 and 4 were agreeable. On the same date, the contention of learned counsel for the appellant/plaintiff that though the immovable properties mentioned in paras No.6, 8 and 11 stood in the name of the defendant no.1 (wife of late Sh. Ganga Ram), the said properties had been acquired from the funds of Sh.Ganga Ram, was turned down by the learned Single Judge in the following words:-

"9. The defendant No.1, 3 & 4 who, claim the properties mentioned in paras No.6, 8 & 11 of the plaint to be in the name of defendant No.1, have not filed any document to show the said properties to be in the name of the defendant No.1. The counsel for the plaintiff however today admits that the said properties are in the name of the defendant No.1 but states that the same were acquired from the service benefits/funds of Sh. Ganga Ram.

10. The plaintiff has however not set up any such case in the plaint. The Benami Transactions (Prohibition) Act, 1988 in Section 2(a) thereof describes "Benami

transaction" as a transaction in which property is transferred to one person for consideration paid or provided by another person. Section 4 thereof prohibits a suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held. Though sub-section (3) of Section 4 makes the said prohibition applicable to a situation where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family or where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity, but no such case has been pleaded in the plaint.

11. In view of the admission of the plaintiff of properties mentioned in paras No.6, 8 & 11 of the plaint being in the name of the defendant No.1 and in the fact of the Benami Act supra, the plaintiff cannot be entitled to partition thereof as an estate of late Sh. Ganga Ram."

(Emphasis added)

7. Having regard to the admission of the appellant/plaintiff himself that the properties mentioned in paras 6, 8 and 11 of the plaint, stood in the name of the defendant No.1 and the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988, prohibits any suit, claim or action for enforcing a right in respect of any property held benami against a person in whose name the property is held, the learned Single Judge opined that appellant/plaintiff is not entitled to seek partition of the said properties by describing them to be a part of the estate of late Ganga Ram. Resultantly, a preliminary decree for partition in respect

of four immovable properties mentioned in paras No.5, 7, 9 and 10 of the plaint was passed by declaring Shri Prabhu Dayal and the six defendants as shareholders to the extent of 1/7th undivided share each in respect of the said properties and the suit in respect of the other properties mentioned in para nos.6, 8 and 11 was dismissed.

8. It is pertinent to note that Sh. Prabhu Dayal, the predecessor-in-title of the appellant/plaintiff expired on 03.07.2017. During his life time, he did not take any steps to challenge the preliminary decree. After his demise, the appellant herein was impleaded as his legal heir, sometime in the beginning of the year 2019. Though she stepped into the shoes of Sh. Prabhu Dayal, she too did not take any steps to challenge the preliminary decree. The records reveal that after the preliminary decree was passed on 10.03.2014, the suit remained pending for the next five years for several reasons including the fact that the parties were referred to mediation, though ultimately, the negotiations did not result in any settlement.

9. It was only when the suit was listed before the learned Single Judge on 25.7.2019, that learned counsel for the appellant/plaintiff for the first time sought to urge that the preliminary decree passed on 10.03.2014, whereunder the suit in respect of the properties mentioned in para 6, 8 and 11 of the plaint, was dismissed, ought to be reconsidered in so far as the immovable property mentioned in para 6 of the plaint was concerned, by claiming that the said property had been wrongly left out.

10. We may note that this is not a case where an immovable property has been inadvertently left out from the suit originally instituted by the predecessor-in-title of the appellant/plaintiff. In fact, the said property finds mention in para 6 of the plaint and was a part of the schedule of properties enclosed with the plaint. However, it was admitted by late Prabhu Dayal on 10.03.2014, that the said property stood in the name of the defendant no.1 and he had sought to assert that the same was acquired from the funds provided by his father, which submission was categorically turned down by the learned Single Judge, as noted in paras 9 to 11 of the order passed on 10.03.2014 and reproduced hereinabove.

11. Although the original plaintiff had a legal remedy of preferring an appeal against the preliminary decree, no appeal was filed. Nor did the appellant exercise the said option on stepping into the shoes of her late father. Learned counsel for the appellant/ plaintiff states that her client came to know about the exact status of the captioned property only two days before the date of hearing fixed in the suit and she refers to an order dated 23.07.2019, passed in CS(OS) 363/2019. But that cannot be of any assistance to her, particularly when the said order does not record any such submission made on behalf of the plaintiffs or the defendants in the captioned suit.

12. It is the version of the learned counsel for the appellant/plaintiff that only after the proceedings were over on 23.07.2019, did the respondent No.3 furnish a copy of the title documents of the property mentioned in para 6 of the plaint, to the appellant's sister and it was

then that it came to her knowledge that the said property was owned by late Ganga Ram. Learned counsel for the appellant/plaintiff cites the decision of the Supreme Court in 'Ganduri Koteshwaramma & Anr. Vs. Chakiri Yanadi & Anr.' reported as (2011) 9 SCC 788 to argue that after passing of a preliminary decree but before passing of a final decree, the supervening circumstances necessitating change in the shares can be taken into consideration for amending the preliminary decree. She submits that this is a fit case where the learned Single Judge ought to have exercised its power of modifying / altering/ amending the preliminary decree passed on 10.03.2014.

13. We are afraid the aforesaid decision does not take the appellant's case further when no explanation has been offered by her to explain what were the changed circumstances that necessitated modification of a preliminary decree passed over five years ago, except for making a bald statement that she came to know about the title of the property in question only two days before the date of hearing fixed in CS (OS) 333/2009. Conscious of the bar placed under Section 97 of the CPC that prescribes that if a party aggrieved by a preliminary decree, does not file an appeal against the same, he shall be precluded from disputing its correctness in any appeal preferred against the final decree, the appellant has adopted this circuitous route which is impermissible.

14. We are in agreement with the observations made in the impugned judgment that the appellant/plaintiff having failed to take any steps for five long years to seek amendment of the preliminary

decree, ought not to be indulged at this late stage. In any event, she is not remediless. The appellant/ plaintiff and her siblings along with some other family members have already instituted an independent suit for partition in respect of the property in question which it is claimed, had got 'left out'. That being the position, we see no reason to interfere with the impugned judgment dated 25.07.2019, which is upheld.

15. The present appeal is accordingly dismissed in limine as meritless along with the pending applications.

HIMA KOHLI, J

ASHA MENON, J JANUARY 29, 2020 sm/s/pkb