Adarsh Pal Singh Randhawa & Anr. vs Amrit Bolaria & Anr.
2020 Latest Caselaw 628 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Decided on: 30th January, 2020

+      CS(OS) 370/2019

       ADARSH PAL SINGH RANDHAWA & ANR. ..... Plaintiffs
                    Through: Mr.Ashish Mohan and
                             Mr.Akshit Mago, Advocates
                                  versus
       AMRIT BOLARIA & ANR.                             ..... Defendants
                    Through:            Mr.Aditya Jain and Mr.Molvi
                                        Aijaz Hussain, Advocates

CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN

PRATEEK JALAN, J. (ORAL)

% I.A.1311/2020 (by defendants under Order VII Rule 11 of the CPC)

1. This is an application filed by the defendants under Order VII Rule 11 of the Code of Civil Procedure, 1908 ["CPC"] for rejection of the plaint. The contention of the defendants is that the partition suit instituted by the plaintiffs is barred by law, and it does not include all the properties jointly held by the parties.

2. I have heard Mr.Aditya Jain, learned counsel for the defendants/applicants and Mr.Ashish Mohan, learned counsel for the plaintiffs.

3. The contention of the defendants in this application is that the partition suit has been filed for partial partition of the joint property inasmuch as the reliefs claimed are only in respect of property bearing

No.S-366, Panchsheel Park, New Delhi-110017 [hereinafter, "Panchsheel property"]. According to the defendants, the parties are also joint owners of agricultural land at Dera Mor, Village Bhatti on Chattarpur-Bhatti Mines Road, New Delhi [hereinafter, "agricultural land"], and a flat bearing No.303-B, Hemkunt Chambers, 89, Nehru Place, New Delhi [hereinafter, "Nehru Place property"].

4. The suit has been instituted by the wife and son of late Dr.Gurdip Singh Randhawa, and the defendants are his daughters. The claim in the suit is based on a registered will dated 07.10.2014, executed by the deceased. The said will enumerates the immovable properties of the deceased as the Panchsheel property and the agricultural land. The relevant averments in this regard are contained in paragraphs 3, 4 and 5 of the plaint. The will has been adverted to in paragraph 11.

5. In paragraph 16 of the plaint, the plaintiffs have also referred to another will dated 23.12.2014, which the defendants claim was subsequently executed by the deceased, and contains a somewhat different bequest with respect to both the properties. In the will dated 23.12.2014 also, no other immovable property of the deceased is mentioned. In paragraph 28 of the plaint, the plaintiffs have explained that partition of the agricultural land is not sought in the present suit, as the jurisdiction of the civil court in respect thereof is barred by Section 185 of the Delhi Land Reforms Act, 1954 [hereinafter, "the Act"]. The plaintiffs have stated that they are seeking partition of the agricultural land before the competent revenue authorities.

6. On these pleadings, the plaintiffs have sought the following reliefs in the suit:

"In the facts and circumstances explained above, it is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to:

a) Pass a decree of partition by metes and bounds directing the division of the property bearing no. S-366, Panchsheel Park, New Delhi - 110017 i.e. Suit property no.1 in such a manner that the first floor and second floor of the said property vest exclusively in the Plaintiff no. 2 and the Ground floor and third floor along with exclusive terrace rights as well as all rights of ownership in the entire underlying plot/ land and any plot ownership rights in the Panchshila Co-operative House Building Society in respect of the Suit property no. 1 vest exclusively in Plaintiff no. 1;

b) Pass a decree of permanent injunction against the Defendants restraining them from transferring, alienating, dealing with or in any manner creating any third party interests in respect of the Plaintiffs' share in the Suit properties;

c) Grant cost of the suit in favour of the plaintiff and against the defendants; and

d) Pass any other of further order which this Hon'ble Court may deem fit and proper."

7. In the application, the only ground urged is that the suit claims a partial partition of joint properties. Mr.Jain has argued that the agricultural land and the Nehru Place property also ought to have been included in the ambit of the present suit. He has cited the judgment of the Supreme Court in Kenchegowda (Since Deceased) By Legal Representatives vs. Siddegowda Alias Motegowda (1994) 4 SCC 294 [paragraph 16], and of a Coordinate Bench of this Court in Sunil Mohan Buckshee vs. M.M.Buckshee & Ors., 2016 (159) DRJ 685

[paragraph 77] in support of his contentions.

8. In considering an application under Order VII Rule 11 of the CPC, the Court is bound to accept the averments contained in the plaint as correct. It is settled law, as held inter alia in the judgment of the Supreme Court in Ramesh B. Desai & Ors. vs. Bipin Vadilal Mehta & Ors. (2006) 5 SCC 638 [paragraph 16], that an application under Order VII Rule 11 of the CPC proceeds on a demurrer. The defences taken by the defendants in the written statement are of no relevance at this stage. The plaint in the present case pleads the existence of two properties - and documents produced by the plaintiffs are not inconsistent with this position.

9. So far as the agricultural land is concerned, the plaintiffs have explained why it cannot be included in this suit. Mr.Mohan has also cited the judgments of this Court in Sri Kishan vs. Ram Kishan 2009 (159) DLT 470 [paragraphs 7 to 9] and Kavita and Ors. vs. Samunder Singh and Ors. 2013 (203) DLT 621 [paragraph 20] in support of his contention that partition of the said property could not have been sought in a civil suit. That position is in fact not disputed by Mr.Jain. In such a situation, it is incomprehensible that the suit would be liable to be rejected because the plaintiffs have not sought a relief which is beyond the competence of the court to grant.

10. Mr.Jain, however, submitted that as the plaint discloses a controversy about the validity of two competing wills, the plaintiffs ought to have sought a declaration regarding the validity of the will propounded by them, consequent upon which the partition of the agricultural land could have been sought before the revenue authorities. I do not consider this to be a defect, and certainly not one

which renders the suit incompetent. The relief sought by the plaintiffs is of partition of the property which is within the scope of a civil suit. If the validity of contesting wills has to be adjudicated in the course of the suit, that does not necessarily require the plaintiffs to seek a declaration in this regard.

11. As far as the Nehru Place property is concerned, it is the admitted position [and so stated in paragraph 3 of the application], that property is in the joint ownership of plaintiff No.2 and defendant No.1 in the suit. The other two parties to the suit have no right, title or interest in this property. The present suit, as stated above, is for partition of the estate of late Dr.Gurdip Singh Randhawa amongst his heirs. The Nehru Place property is not part of the estate of the deceased, and any proceeding with respect thereto would involve only two of his heirs who are independently the owners of that property. The cause of action for partition of the Nehru Place property between plaintiff No.2 and defendant No.1 is wholly different from the cause of action on which this suit has been filed.

12. The judgment of the Supreme Court in Kenchegowda (supra), cited by Mr.Jain, was rendered in the context of an order of the High Court by which a suit for declaration and injunction had been converted into one for partition. While reversing the order of the High Court, the Supreme Court observed that a suit for partial partition in the absence of inclusion of other joint family properties and impleadment of other co-sharers was not warranted in law. I do not read the judgment of the Supreme Court to mandate that a suit for partition of a particular property amongst its co-owners must also include partition of other properties only because some of the co- owners are common.

13. Similar is the position in the judgment in Sunil Mohan Buckshee (supra). Paragaraph 77 of that judgment reads as follows:

"77. There are other legal hurdles that the plaintiff has not been able to cross. Firstly, in paragraph 9 of the plaint, the plaintiff has enumerated various properties besides the suit property stated to be the properties of the HUF as well. However, the present suit has been filed for partition of only one property leaving remaining properties out of the purview of the present suit. It is settled law that a suit for partition must include all the properties claimed to be owned by the joint Hindu family and piecemeal partition is not permissible. Reference may be made to the decision in U.N. Bharadwaj v. Y.N. Bharadwaj and Ors., CS(OS) 641/2015 decided by this Court on 05.10.15 and; Kenchegowda v. Siddegowda (1994) 4 SCC 294."

The observations that a suit for partition must include all properties claimed to be owned by the joint Hindu family, and regarding the impermissibility of piecemeal partition are not applicable to the present case. That was a case where the suit was for partition of a joint Hindu family property, but other properties of the joint Hindu family had not been included, i.e. the cause of action and parties involved in respect of all the properties were the same.

14. In contrast, the necessary parties in a suit for the partition of the Nehru Place property would be different from the frame of the present suit. The cause of action for partition of that property would, for the reasons aforesaid, also be different. Mr. Jain sought to argue in this context that the only proper course in these circumstances would have been for plaintiff No.2 [who is a co-owner in the Nehru Place

property] to have been arrayed as defendant in this suit. For the reasons aforesaid, I do not agree with this submission and it is rejected.

15. The application is dismissed with costs of ₹15,000/- payable to the plaintiffs through counsel, within two weeks. CS(OS) 370/2019 & CC No.___________ [to be numbered] [diary No.1391541/2019]

1. Pursuant to the order dated 16.12.2019, learned counsel for the defendants states that he has taken instructions, and the defendants are not agreeable to disposal of the suit on the terms contained therein. In view of the above, the suit must proceed in accordance with law.

2. The defendants have filed a counter claim in which summons has not yet been issued. The counter claim be registered. Mr.Jain states that prayer (c) of the counter claim, which seeks partition of agricultural land, contrary to Section 185 of the Delhi Land Reforms Act, 1954, is not pressed.

3. Mr.Mohan waives formal issuance of summons in the counter claim. Written statements to the counter claim be filed within thirty days. Replication thereto, if any, be filed within two weeks thereafter. The pleadings shall be accompanied by affidavits of admission/denial of the documents filed by the other side.

4. List before the Joint Registrar on 12.03.2020, for completion of pleadings, admission/denial of the documents and marking of exhibits.

5. List before Court on 18.05.2020.

PRATEEK JALAN, J JANUARY 30, 2020/„hkaur‟/s