Delhi High Court
Nilima Sinha vs Shri Dilip Kumar Shrivastava & ... on 31 January, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 31st January, 2020.
+ CS(OS) 37/2020
NILIMA SINHA ..... Plaintiff
Through: Mr. Divjyot Singh and Ms. Avsi M.
Sharma, Advs.
Versus
DILIP KUMAR SHRIVASTAVA & ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.1375/2020 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CS(OS) 37/2020 & IA No.1373/2020 (u/O XXXIX R-1&2 CPC) &
1374/2020 (u/S 151 CPC)
3. The plaintiff has sued her two brothers and a sister and the heirs of
another brother since deceased, for partition of property No.14, Palam Marg,
Vasant Vihar, New Delhi.
4. It is the case of the plaintiff, (i) that the property was owned by the
parents of the plaintiff; (ii) that the father of the plaintiff died on 21 st
January, 1992, leaving a Will whereunder his share in the property was
bequeathed in favour of the mother of the plaintiff; (iii) that on demise of the
father of the plaintiff, the mother of the plaintiff became the sole owner of
CS(OS) 37/2020 Page 1 of 5
the entire property and the leasehold rights in the land underneath the
property were mutated in favour of the mother of the plaintiff alone; (iv) that
the mother of the plaintiff died on 6th January, 2017, leaving a Will dated
31st May, 1994 and four Codicils dated 25th August, 2002, 29th May, 2007,
20th March, 2008 and 14th October, 2008, bequeathing separate portions of
the property to her two daughters and three sons, for their lifetime, and
ultimately to their children; (v) that for this reason, the children of all the
siblings have also been impleaded as defendants to the suit; (vi) that
however the brothers of the plaintiff are denying the entitlement of the
plaintiff to the ground floor of the rear wing of the property, which has been
bequeathed exclusively to the plaintiff for her life and after the plaintiff to
her children and the second floor of the rear wing, which has been
bequeathed to the plaintiff and her sister defendant No.3 jointly, for their life
and after them to their children; (vii) that in fact, the brothers of the plaintiff
have set up a document dated 19th July, 2014 as the last Will of the mother
of the plaintiff; and, (viii) that the mother of the plaintiff, on 19th July, 2014
when the said document is stated to have been executed, was not in a sound
disposing mind.
5. On the aforesaid pleas, the suit for partition and for injunction
restraining the defendants from dealing with the property and for rendition
of accounts is filed.
6. The plaintiff, in paragraph 36 of the plaint, without giving any
particulars, has vaguely pleaded that the mother of the plaintiff has also left
behind movable properties including jewellery, bank balance, cash etc. and
CS(OS) 37/2020 Page 2 of 5
which also, according to the Will of the mother relied upon by the plaintiff,
are to be divided equally between the parties.
7. The suit is valued for the purposes of jurisdiction at Rs.25 crores and
court fees of Rs.20/- for the relief of partition has been affixed thereon.
8. The case with which the plaintiff has approached this Court being of
the plaintiff, under the Will of her mother having become the sole absolute
owner of ground floor of the rear wing of property No.14, Palam Marg,
Vasant Vihar, New Delhi and joint owner along with defendant No.3 of the
second floor of the rear wing of the said property, I have enquired from the
counsel for the plaintiff, how a claim for partition is maintainable, when
according to the plaintiff, the property has already been partitioned under the
Will and whether not the relief which the plaintiff as per the averments in
the plaint is entitled to, is of recovery of possession of the ground floor from
whosoever it is in possession of. The claim for partition can at best only be
with respect to movables, against all the defendants, and with respect to the
second floor of the rear wing of the property, but only against the defendant
No.3 Arti Shrivastava with whom according to the plaintiff, the plaintiff has
become the joint owner of the said second floor under the Will and Codicils
of her mother.
9. The counsel for the plaintiff states that the plaintiff has also sought
the relief of possession.
10. The plaintiff, in prayer paragraph (a) has sought the relief of
preliminary decree for partition in terms of the Will dated 31 st May, 1994
and the Codicils dated 25th August, 2002, 29th May, 2007, 20th March, 2008
and 14th October, 2008 and in prayer paragraph (b) sought the relief of final
CS(OS) 37/2020 Page 3 of 5
decree for partition, again in terms of the Will and Codicils aforesaid and of
putting the plaintiff in possession of her share in terms of the Will and
Codicils.
11. There is a distinction in law, in claiming possession on the basis of
exclusive title and in claiming separate possession pursuant to a decree for partition.
12. The question of partitioning the property as sought would arise, if
according to the plaintiff, the plaintiff were to have an undivided share in the
property and of which partition was required vis-à-vis others having the
remaining share in the property. Here, as per the averments in the plaint, the
plaintiff is the exclusive owner of the ground floor of the rear wing and the
joint owner along with the defendant No.3 of the second floor of the rear
wing of the property and the case for partition can only be against defendant
No.3 and with respect to the second floor of the rear wing of the property
only, and not against the others. The plaintiff having accepted the Will and
Codicils under which according to the plaintiff separate portions of the
property having been bequeathed to plaintiff and defendants, according to
plaintiff there is no joint property. Only if it were the plea of plaintiff that
her mother died intestate, would there have been a joint property, of which
partition could have been sought.
13. The question is no longer res integra. Attention of the counsel for the
plaintiff is invited to Prem Mehta Vs. Raj Kumar Mehta 2016 SCC OnLine
Del 1756, Uma Shankar Vs. Anand Prakash 2018 SCC OnLine Del 12867,
order dated 7th January, 2019 and 16th January, 2019 in CS(OS) 566/2016
titled Sukh Sagar Sahni Vs. Salil Sagar Sahni and order dated 1st February,
2019 in CS(OS) 63/2019 titled Uma Gupta Vs. Indu Gupta.
CS(OS) 37/2020 Page 4 of 5
14. As far as the relief of partition of movables is concerned, as aforesaid,
no particulars thereof have been pleaded and no separate valuation thereof
disclosed and the suit as aforesaid, is not maintainable for the relief of
partition of movables.
15. The suit as filed is thus misconceived.
16. The counsel for the plaintiff, at this stage states that the plaintiff, if
required to pay court fees, will pay court fees.
17. The plaintiff is required not only to pay court fees but also to frame
the plaint in an appropriate manner and to confine the relief in the suit to
that of recovery of possession as aforesaid, against whosoever may be in
possession of the portion of the property exclusively bequeathed to the
plaintiff i.e. the ground floor of rear wing of the property and of partition
with respect to movable properties against her brothers/heirs of the deceased
brother and with respect to the second floor, against her sister alone.
18. The plaint, on the averments contained therein does not disclose a
cause of action for the reliefs claimed and is accordingly rejected.
RAJIV SAHAI ENDLAW, J.
JANUARY 31, 2020
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