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Smt. Rajni Sharma vs Sh. Ajay Sharma on 5 September, 2018

IN THE COURT OF SH. JOGINDER PRAKASH NAHAR, ADDITIONAL
DISTRICT JUDGE-04, CENTRAL, TIS HAZARI COURTS, DELHI

CS No. 616356/16

SMT. RAJNI SHARMA
W/O SH. K. SHARMA
D/O LATE SH. HARI SINGH SHARMA
R/O H.NO. WZ-209, GALI NO. 6
LAJWANTI GARDEN
NEW DELHI-110046 ……Plaintiff

Versus

1. SH. AJAY SHARMA
S/O LATE SH. HARI SINGH SHARMA
R/O H. NO. 2106, CHAH-INDARA KUAN
NEAR JUBLEE CINEMA
BHAGIRATH PALACE, CHANDNI CHOWK
DELHI-110006

2. SMT. RENU TULI
W/O SH. VIMAL TULI
R/O H.NO. 2106, CHAH-INDARA KUAN
NEAR JUBLEE CINEMA
BHAGIRATH PALACE, CHANDNI CHOWK
DELHI-110006 ……Defendants

Date of Institution : 11.10.2013
Date of judgment reserved on : 05.09.2018
Date of judgment : 05.09.2018

JUDGMENT

SUIT FOR PARTITION, RENDITION OF ACCOUNTS OF RENTAL
INCOME AND PERMANENT INJUNCTION

1. The present suit was filed by the plaintiff for partition, rendition of
accounts of rental income and permanent injunction. Plaintiff is sister of
defendant no. 1 and 2. Late Sh. Megha Singh had adopted late Sh. Hari
Singh Sharma as son. Late Sh. Megha Singh did not have children with his
late wife Smt. Kalawati. The plaintiff and defendants are children of late Sh.
Hari Singh Sharma who had expired in the year 1972. Sh. Megha Singh had
expired on 09.04.1977, Ms. Sheela Sharma had expired on 02.03.2006.
Hence the ancestral property which is house no. 2106, Chah-Indara Kaun,
near Jubilee Cinema, Bhagirath Palace, Chandni Chowk, Delhi-110006
(hereinafter to referred as suit property) is to be divided in 1/3rd equal share
among plaintiff and defendants. The suit property was owned and possessed
initially by late Sh. Megha Singh who had built it by his own funds prior to the
year 1947 on land measuring 230 sq. yds. The land was taken on perpetual
lease from late Sh. Channamal by late Sh. Megha Singh. After death of late
Sh. Megha Singh the premises was used for commercial purpose and the
bigger front part was used for residential purpose both by plaintiff and
defendants in joint possession. Defendant no. 1 has constructed the second
floor consisting of one hall and had obtained rental income of ground and first
floors during the lifetime of the mother of the parties. The site plan of the
plaintiff may not be correct as defendant did not allow the plaintiff to prepare
the correct site plan by blocking assess to whole of the suit property. The
defendants have failed to render accounts to the plaintiff. There are 6 tenants
on the ground floor and 3 tenants at the rear of the first floor and rental
income would be Rs.10,000/- per month. A legal notice dated 08.12.2007
was also issued to the defendants despite which defendants did not accept
request of the plaintiff. Accordingly, plaintiff has prayed for decree of her suit
by way of partition of the suit property against the defendants by metes and
bounds to the extent of her 1/3rd share and that floor wise partition may be
made. Rendition of accounts is prayed w.e.f. 02.03.2006 till the disposal of
the suit with declaring right of 1/3rd share in the rental income received by
defendant no. 1. Permanent injunction is also prayed against defendant no.
1, his LRs, his agents from creating third party interest in the suit property.

2. It is submitted by the defendant that plaintiff has no right in the suit
property firstly due to the reason that she is a female legal heir and cannot
claim right in ancestral property by way of partition. In the dwelling house the
plaintiff being daughter has right to reside only. Defendant no. 1 is also
residing in the suit property.

3. It is submitted that late Sh. Megha Singh had disowned late Sh. Hari
Singh the adopted son during his lifetime from all his movable and immovable
property including the suit property. Late Sh. Hari Singh Sharma was infact
son of late Sh. Ram Singh and late Smt. Gulab Dai.

4. It is further submitted that the suit property was purchased by defendant
no.1 in his own name and from his own funds. In the same para no. 3 of the
WS it is submitted by the defendants that the property was transferred in his
name as tenant from the previous owner.

5. It is submitted that late Sh. Megha Singh had expired on 09.04.1977
and mother of parties have expired on 02.03.2006. Late Sh. Hari Singh had
expired in the year 1970 and not in the year 1972. Late Sh. Megha Singh
had disowned late Sh. Hari Singh in the year 1967 whose original name was
Sh. Hari Singh before adoption.

6. It is submitted by the defendant that late Sh. Megha Singh had taken
the suit property on rent in which he was tenant. Thereafter he raised
temporary super structure over that land and after his death the tenancy
rights goes back to original owner of the land due to the fact that after death
of late Sh. Megha Singh and his wife no legal heir was left. Wife of late Sh.
Megha Singh had predeceased him. Hence the suit property was taken on
rent by defendant no. 1 on his own name and raised super structure out of his
own funds. The water connection is still in the name of late Sh. Megha Singh
and the electricity was disconnected due to non payment. It is denied that
plaintiff is in joint possession of the suit property. It is denied that plaintiff’s
belonging are lying in one room of the suit property under her lock and key.
Defendant no. 1 has erected all the construction out of his own funds.

7. It is submitted that defendant no. 1 is collecting rent in his own name
and capacity being owner having raised the entire super structure. It is
submitted that the suit of the plaintiff is false and may be dismissed with
costs.

8. In the written statement filed by defendant no. 2 she had admitted the
right of plaintiff being co-sharer to the extent of 1/3rd share and that
defendant no. 2 is also entitled to same share alongwith plaintiff. Accordingly
defendant no. 2 admitted the claim of the plaintiff.

9. Replication is filed by the plaintiff in which plaintiff has reaffirmed the
averments made in the plaint and denied the averments of the defendants.

10. On the pleadings of the parties and averments made following issues
were framed on 11.02.2010:

1. Whether the plaintiff is entitled for the relief of partition in
the suit property comprising of house no. 2106, Chah-
Indara Kuan, near Jublee Cinema, Bhagirath Palace,
Chandni Chowk, Delhi as prayed for ? OPP

2. Whether the defendant no. 1 is the exclusive owner of the
aforesaid property? OPD

3. Whether the plaintiff is entitled for the relief claimed?
OPP

11. On the application of defendant no. 1, following additional issues were
also framed in the matter on 27.10.2010 and the issues are numbered
chronologically:

4. Whether the plaintiff has not valued the suit property for
the purpose of court fees and jurisdiction and has not
affixed the proper court fees? OPD

5. Whether the value of the suit property is more than Rs.35
lakhs? OPD

6. Whether this court has no territorial jurisdiction to
entertain, try and decide the present suit? OPD

7. Relief.

12. Plaintiff herself had deposed as PW-1. PW-2 is Sh. Vijay Gaur who is
staying nearby. He has deposed about his knowing the parties in the present
case since childhood and that Late Sh. Hari Singh Sharma was adopted son
of Late Sh. Megha Singh. PW-3 is Sh. Chander Singh is also a neighbour and
deposed in same terms of PW-2. Plaintiff’s evidence was closed on
19.03.2010. The defendant no. 1 himself has deposed as DW-1. DW-2 is Sh.
S.M Dhir who has tendered valuation report of the suit property vide
Ex.DW2/A. The evidence in defence was closed on 05.05.2011.

13. Parties heard and record perused. The issuewise findings as follows:-

14. ISSUE NO. 1

Whether the plaintiff is entitled for the relief of partition in the
suit property comprising of house no. 2106, Chah-Indara Kuan,
near Jublee Cinema, Bhagirath Palace, Chandni Chowk, Delhi as
prayed for ? OPP

14.1 It is admitted case between plaintiff and both the defendants that they
are children of late Sh. Hari Singh Sharma. It is admitted case between the
parties that late Sh. Megha Singh had adopted late Sh. Hari Singh Sharma as
son. The adoption is not disputed between the parties howerver defendant
no. 1 has relied on adoption on the basis of document of cancellation of
adoption in Urdu language, Hindi translation of which is annexed as
Ex.DW1/7. According to defendant no. 1 such adoption of late Sh. Hari Singh
Sharma was so cancelled by late Sh. Megha Singh vide Ex.DW1/7 dated
24.08.1967.

14.2 According to ld. Counsel for plaintiff the adoption was made before
coming into force of Hindu Adoption and Maintenance Act, 1956. It is
submitted further that in the adoption deed Ex.DW1/7 it is mentioned
specifically that at the time of adoption late Sh. Hari Singh (as written in
Ex.DW1/7) was aged about 2 years. At the time of such alleged cancellation
of adoption of late Sh. Hari Singh his age is mentioned in Ex.DW1/7 as 27
years. The cancellation of adoption vide Ex.DW1/7 is dated 24.06.1967. By
necessary inference the adoption was allegedly executed in the year 1940.
Hence the requirement for registration of adoption under Hindu Adoption and
Maintenance Act, 1956 is not applicable in the present case and it is
submitted that statutory law as such were not existing prior thereto. Ld.
Counsel for the plaintiff has referred to Section 30 of Hindu Adoption and
Maintenance Act, 1956 which is savings clause specifically laying down that
this Act shall not effect any adoption made before commencement of this Act
and validity of such adoption can only be determined if the Act had not been
passed. Once the adoption is admitted between the parties in the year 1940
thereby any act further thereto after enactment of Hindu Adoption and
Maintenance Act, 1956 would be subject to statutory law thereunder. Ld.
Counsel for plaintiff has referred to Section 15 of Hindu Adoption and
Maintenance Act, 1956 that no adoption which has been validily made can be
cancelled nor adopted child can renounce his or her status. The relevant
Section 15 of Hindu Adoption and Maintenance Act, 1956 is reproduced
as under:

“15. Valid adoption not to be cancelled.- No adoption which has
been validly made can be cancelled by the adoptive father or
mother or any other person, nor can the adopted child renounce
his or her status as such and return to the family of his or her
birth.”

14.3 Once the validity of adoption is not challenged and when the Hindu
Adoption and Maintenance Act, 1956 has come into operation and such
further acts of the parties are subject to the prospective law as laid down
thereby on the face of it, the cancellation of adoption vide Ex.DW1/7 does not
survive and therefore no reliance can be placed upon on Ex.DW1/7. The
document be treated as non-est. Hence plaintiff and both the defendants are
held children of late Sh. Hari Singh Sharma.

14.4 It is admitted as correct by DW-1 in cross-examination dated
14.05.2010 that the land under the suit property was taken on rent by late
Sh. Megha Singh from late Sh. Channamal. It is suggested by plaintiff to DW-
1 that the suit property was taken on rent prior to the year 1947. It is admitted
as correct by DW-1 that the suit property stands in the name of late Sh.
Megha Singh in municipal record even after his death and electricity and
water connection also stands in his name. It is further admitted by DW-1 that
he has not purchased the suit property at any point of time and it is so
wrongly mentioned at para no. 4 of his evidence by way of affidavit that he
has purchased the suit property. It is deposed by DW-1 that he has got the
tenancy transferred in his name in the year 1982. It is deposed by PW-1 that
the suit property was taken on perpetual lease by late Sh. Megha Singh from
late Sh. Channamal. The site plan is Ex.PW1/1. It is admitted by PW-1 that
landlord of the suit premises is issuing rent receipt in the name of defendant
no. 1 after death of her father. It is suggested by defendant to PW-1 that the
suit property exclusively belongs to defendant no. 1. The defendant no. 2 has
supported the case of the plaintiff and asked for her 1/3rd share under the
pleadings in her written statement. Suggestion is given to PW-2 by defendant
no. 1 that he is living in the suit property in his own rights.

14.5 The right claim by the defendant no. 1 in the suit property is that the
land was transferred in the name of defendant no. 1 as tenant from the owner
of the property and therefore the property in question belongs to defendant
no. 1 and no one else. However defendant no. 1 has not stated the name of
owners and date, month and year of such transfer in the name of defendant
no. 1 from such owner. According to defendant no. 1 late sh. Megha Singh
has no legal heir and therefore the rights go back to the owner of the land.
The house tax is paid by defendant no. 1 and the entire existing construction
was raised by defendant no. 1 from his own funds and therefore he is owner
of super structure over the land. Joint possession with plaintiff and defendant
no. 1 is denied. Defendant no. 1/DW-1 has filed rent receipt as Ex.DW1/5 to
Ex.DW1/6 one of which is dated 18.12.1982. Details of payment made to
labourers in doing construction is Ex.DW1/8 and receipt of building materials
are Ex.DW1/9. It is already held that the adoption of late Sh. Hari Singh
Sharma is valid and on that basis the plea of defendant that the property
reverted back to the original owner from whom the defendant no. 1 has taken
the suit property on rent therefore cannot be sustained. Late Sh. Megha
Singh has legal heirs qua plaintiff and defendants herein and therefore the
perpetual lease has to devolve accordingly. Therefore the plea of reversion of
suit property made by defendant no. 1 is rejected.

14.6 Another plea taken by defendant no. 1 is that plaintiff and defendant no.
2 being female legal heir has no right to claim to partition the suit property as
the suit property is dwelling house in which the defendant no. 1 is residing
and plaintiff is not in possession there. It is admitted case of plaintiff and
defendant no. 2 that they are not in possession of suit property.

14.7 The Section 9 of Hindu Succession Act has laid down Order of
successions among heirs in the Schedule. Under Rule 1 the intestate’s
widow shall take one share. Late Sh. Megha Singh has expired on
09.04.1977 and the widow of late Sh. Hari Singh Sharma has expired on
02.03.2006 as submitted during course of arguments by the ld. Counsel for
plaintiff. Section 8 of Hindu Succession Act, 1956 has laid down general rule
of succession in case of males dying intestate. Under Schedule 1 of Section 8
both son and daughter comes under legal heir of class-I. Now, after
amendment under Hindu Succession Act, 1956 on 09.09.2005 Section 23 of
Hindu Succession Act, 1956 was deleted and therefore the embargo of
claiming partition in dwelling house in favour of daughters has been revoked.
Now daughters can also claim partition under Hindu Succession Act, 1956 in
the dwelling house. The rights between the parties had been so crystalized
on death of late Sh. Megha Singh on 09.04.1977 as late Hari Singh Sharma
has predeceased late Sh. Megha Singh.

14.8 However the wife of late Sh. Hari Singh Sharma had expired on
02.03.2006 and by that time by way of amendment under Hindu Succession
Act, 1956 and by deletion of Section 23 the right of partition even in dwelling
house was acquired by the plaintiff and defendant no. 2. Since the share of
all the parties in the present suit in the dwelling house has remained joint till
the year 2006 on such death of their mother on 02.03.2006 thereby the right
of partition in the dwelling house is available with the plaintiff on the date of
death of their mother on 02.03.2006 when the suit property was not already
partitioned by metes and bounds. However plaintiff is required to satisfy the
other condition of The Partition Act, 1893 vide which it must be shown that
the person claiming partition must have share one moiety and upwards which
means they must have more than 50% share in such property.

14.9 The defendant no. 2 is also claiming partition of the suit property and
her 1/3rd share and so pleaded in the written statement at para no. 1 in
additional plea. Hence both the plaintiff and defendant no. 2 has jointly
claimed partition of the suit property which comes to 2/3rd share of the total
property and therefore it is more than one moiety and upwards. Hence it is
held that the plaintiff and both the defendants are entitled to share in the suit
property. Since on death of their mother in the year 2006 the plaintiff and
defendant no. 2 has acquired right of partition even in the dwelling house and
at that stage when it cannot be said that which particular portion belongs to
any of the party then the said right has percolated down on the death of their
mother in the year 2006. Hence right of partition in dwelling house is acquired
by the plaintiff and defendant no. 2. Thereby the plea of defendant no. 1 as to
non existence of such right with plaintiff and defendant no. 2 is rejected.

14.10In view of the above, it is held that plaintiff and defendant no. 2 are
entitled to share in the suit property which is perpetual lease with right to
partition in the same only when their share comes to one moiety and
upwards. Accordingly present issue is decided in favour of plaintiff and
defendant no. 2 and against the defendant no. 1.

15. ISSUE NO. 2

Whether the defendant no. 1 is the exclusive owner of the
aforesaid property? OPD

15.1 The findings arrived under issue no. 1 above are equally applicable to
the present issue which are not repeated herein for the sake of brevity and be
read as part and parcel of present issue.

15.2 The right claimed by the defendant no. 1 in the suit property is that the
land was transferred in the name of defendant no. 1 as tenant from the owner
of the property and therefore the property in question belongs to defendant
no. 1 and no one else. However defendant no. 1 has not stated the date,
month and year of such transfer in the name of defendant no. 1 from such
owner. According to defendant no. 1 late Sh. Megha Singh has no legal heir
and therefore the rights go back to the owner of the land. The house tax is
paid by defendant no. 1 and the entire existing construction was raised by
defendant no. 1 from his own funds and therefore he is owner of super
structure over the land. Joint possession with plaintiff and defendant no. 1 is
denied. Defendant no. 1/DW-1 has filed rent receipt as Ex.DW1/5 to
Ex.DW1/6 one of which is dated 18.12.1982. Details of payment made to
labourers in doing construction is Ex.DW1/8 and receipt of building materials
are Ex.DW1/9. It is already held that the adoption of late Sh. Hari Singh
Sharma is valid and on that basis the plea of defendant that the property
reverted back to the original owner from whom the defendant no. 1 has taken
the suit property on rent therefore cannot be sustained. Late Sh. Megha
Singh has legal heirs qua plaintiff and defendants herein and therefore the
perpetual lease has to devolve accordingly. Therefore, the plea of reversion of
suit property made by defendant no. 1 is rejected.

15.3 In view of above finding it is held that defendant no. 1 is not owner of
the suit property and present issue is decided against the defendant no. 1
and in favour plaintiff and defendant no. 2.

16. ISSUE NO. 3

Whether the plaintiff is entitled for the relief claimed? OPP

16.1 The findings arrived under issue no. 1 above which are equally
applicable to the present issue and which are not repeated herein for the
sake of brevity and be read as part and parcel of present issue.

16.2 Since it is already held that plaintiff and defendant no. 2 are entitled to
share in the suit property which is perpetual lease with right to partition in the
same if their joint share comes to 2/3rd of the total property which comes to
more than one moiety and upwards. Accordingly present issue is decided in
favour of plaintiff and against the defendants.

17. ISSUE NO. 4, 5 AND 6

4. Whether the plaintiff has not valued the suit property for the
purpose of court fees and jurisdiction and has not affixed the
proper court fees? OPD

5. Whether the value of the suit property is more than Rs.35
lakhs? OPD

AND

6. Whether this court has no territorial jurisdiction to entertain,
try and decide the present suit? OPD
17.1 The defendant has submitted that the court fees has not been paid by
the plaintiff as per market value of the suit property. The defendant no. 1 has
stated that the market value of suit property is more than Rs.35 lakhs. Ld.
Counsel for plaintiff has submitted that he has already submitted vide
amended plaint valuation more than Rs.48 lakhs and he has already
deposited the required court fees as to his 1/3rd share. It is submitted by ld.
Counsel for plaintiff that the total court fees paid by him is Rs.17,960/- on his
1/3rd share which comes to Rs.16 lakhs on such valuation under Rs.48 lakhs.
To such aspect there is no contrary deposition by the defendant no. 1.
However, since defendant no. 2 has also claimed partition in the suit property
thereby she is also liable to pay necessary court fees as to her share which
be deposited by her.

17.2 Accordingly present issue is decided in favour of defendant no. 1 and
against plaintiff and defendant no. 2. Accordingly defendant no. 1 is also
liable to pay court fees as to his share in singular liability of defendant no. 2
in the suit property.

17.3 In the similar finding the value of suit property is found more than Rs.35
lakhs and the issue of valuation is decided in favour of defendant no. 1 and
agianst the plaintiff and defendant no. 2. similarly the issue of pecuniary
jurisdiction is decided in favour of defendant no. 1 and agianst the plaintiff
and defendant no. 2.

RELIEF

18. The suit of the plaintiff is decreed in that she is held entitled to share in
the suit property being legal heir of late Sh. Megha Singh and late Sh. Hari
Singh Sharma. Plaintiff is entitled to partition only if share of plaintiff and
defendant no. 2 is one moiety and upwards in the suit property.

19. Preliminary decree is passed accordingly under Rule 18 of Order XX
CPC. Let matter be listed for arguments on share of each of the party in the
suit property for further consideration of partition of suit property by metes
and bounds. Put up for further hearing on 29.09.2018. Preliminary decree
sheet be prepared accordingly.

Digitally signed
JOGINDER by JOGINDER
PRAKASH
PRAKASH NAHAR
Announced in the open Court
NAHAR Date: 2018.09.06
on 5th September 2018 09:51:58 +0530
(JOGINDER PRAKASH NAHAR)
ADDL. DISTRICT JUDGE-04
CENTRAL/TIS HAZARI COURT/DELHI

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