SMT. NIRMAL BANSAL & ANR. vs SH. SHYAM LAL BANSAL & ANR.

2024-05-01 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 9th January, 2024
Pronounced on: 1st May, 2024

+ CS(OS) 462/2019

SMT. NIRMAL BANSAL & ANR. ….. Plaintiffs
Through: Ms. Smita Maan and Mr. Aditya Singh, Advocates.

versus

SH. SHYAM LAL BANSAL & ANR. ….. Defendants
Through: Mr. S.C. Singhal and Mr. Amir Rabbani, Advocates for D1.
Ms. Beenashaw N. Soni, ASC along
with Ms. Ann Joseph and Ms. Mansi Jain, Advocates for DDA.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The Suit for Partition and Permanent Injunction has been filed on behalf of the plaintiffs.
2. Briefly stated, Late Sh. Krishan Kumar Bansal and defendant No. 1, Mr. Shyam Lal Bansal, were the brothers, who jointly purchased the Suit property bearing Plot No. B-3/9, Janak Puri, New Delhi, admeasuring 367.20 sq. mtrs. situated in Pankha Road Residential Scheme, Janak Puri, New Delhi (hereinafter referred to as the Suit Property) in an auction conducted by the Delhi Administration (Land & Housing Department) in the year 1974 and the Registered Perpetual Lease Deed dated 03.09.1974, was executed in the joint name of the defendant No. 1 and Late Mr. Krishan Kumar Bansal. They both held equal share in the Suit Property.
3. It is submitted that somewhere in the year 1977, Late Mr. Krishan Kumar Bansal and his brother, Sh. Shyam Lal Bansal, defendant No. 1, had entered into an Oral Arrangement whereby the front portion of the Suit Property, as shown in blue colour in the Site Plan, came into the exclusive possession of Late Mr. Krishan Kumar Bansal while the rear portion shown in red colour in the Site Plan, came into the exclusive possession of the defendant, both admeasuring 183.60 sq. mtrs. each. Pursuant to this Oral Partition, the defendant and Mr. Krishan Kumar Bansal, constructed their respective portions out of their own funds. However, the Western Side of the Suit Property, which consists of a Gallery and Garage is in the common and joint ownership of the defendant and Late Mr. Krishan Kumar Bansal.
4. The plaintiff has further asserted that Late Mr. Krishan Kumar Bansal and the defendant No. 1, were working jointly under the name and style of M/s Krishan Kumar Shyam Lal Bansal but due to some differences between the two brothers, they stopped the business of the Firm and started their own respective businesses.
5. The plaintiffs, who are the daughter-in-law and grandson of Late Mr. Krishan Kumar Bansal, claim to have inherited the property by virtue of a Will dated 19.01.2006, executed by Late Mr. Krishan Kumar Bansal in their favour. They have submitted that sometime in the year 1994-95, because of routine fights between the plaintiffs and the defendant No. 1, the plaintiffs shifted out of their portion in the Suit Property to a rented accommodation.
6. Late Mr. Krishan Kumar Bansal entered into an Agreement to Sell to sell his half undivided share in the Suit Property to Mr. Jai Prakash but it was subsequently cancelled.
7. The plaintiffs have further alleged that the defendant No. 1 finding their portion of the Suit Property vacant, attempted to steal electricity from their electricity meter. Late Mr. Krishan Kumar Bansal, who was facing financial crunch got the electricity connection disconnected in August, 2002 but subsequently, got the same restored in the year 2004.
8. The plaintiffs have further asserted that in order to escape the daily harassment by defendant No. 1, they kept a guard, Mr. Rajender to take care of the property but he was forced out of his job by first disconnecting his water supply and thereafter, by implicating him in a false case.
9. On 08.05.1995, defendant No. 1 filed a Suit bearing new Suit No. 601414/2016 for Permanent and Prohibitory Injunction against Mr. Krishan Kumar Bansal in the Court of Civil Judge, Central District, Tis Hazari Court, Delhi. The defendants also filed a Suit bearing new Suit No. 594005/2016 for Mandatory and Permanent Injunction and Declaration against Mr. Jai Prakash and Mr. Krishan Kumar Bansal before the Court of Civil Judge, Central District, Tis Hazari Courts, Delhi, on 22.07.1996. Both the Suits were decided vide Judgment dated 19.12.2018 wherein it was held that the property belonged to both the parties i.e. Mr. Shyam Lal Bansal and Mr. Krishan Kumar Bansal in equal share and that partition of Suit Property was the appropriate remedy for the two parties.
10. It is further stated that Mr. Krishan Kumar Bansal died on 05.10.2006 and during his lifetime, he had executed a Will dated 19.01.2006, whereby he bequeathed his half share in the Suit Property in favour of his daughter-in-law, namely, Ms. Nirmal Bansal and her son, Mr. Gaurav Bansal, the two plaintiffs. Subsequently, the Suit Property was mutated in the name of plaintiffs by the DDA vide its Letter dated 10.10.2011.
11. The plaintiffs have asserted that they had sought partition of the Suit Property but when the defendant No. 1 was not forthcoming, they served a Legal Notice dated 10.11.2017 and requested him to pay the requisite amount for conversion of the Suit Property to Freehold. However, defendant No.1 vide his Reply dated 20.11.2017, asserted that the plaintiffs have no right to seek Partition or to get the Suit Property converted into freehold as they have no right in the Suit Property. Hence, the present Suit has been filed for claiming the Partition and a Decree of Permanent Injunction against the defendants.
12. The defendant No. 1 in his Written Statement, took a preliminary objection that the plaintiffs have no locus standi to file the present Suit. The plaintiff No. 1, who is the daughter-in-law and plaintiff No. 2, the grandson of Mr. Krishan Kumar Bansal, are not the only legal heirs of Late Mr. Krishan Kumar Bansal. He had left behind two sons, namely, Mr. Sunil and Sushil Kumar and one daughter, Ms. Usha Gupta but Mr. Sushil Kumar and Ms. Usha Gupta, have not been made a party to the present Suit. Though, plaintiffs have relied upon Will dated 19.01.2006 to have been executed in their favour by Late Mr. Krishan Kumar Bansal, but the Will has not been probated nor any Letter of Administration issued by the competent Court and thus, the plaintiffs cannot maintain the present Suit, in the absence of other legal heirs of Late Mr. Krishan Kumar Bansal. It is asserted that the present Suit is not maintainable for non-joinder of the other legal heirs of Late Mr. Krishan Kumar Bansal, i.e. his son, namely, Mr. Sushil Kumar Bansal and one daughter, Ms. Usha Gupta, who are the necessary and proper party to the present Suit.
13. It is further claimed that the Suit is barred by Limitation. The parties have been in litigation since 1995. Late Mr. Krishan Kumar Bansal always maintained that the Suit Property stood partitioned since beginning as the front portion came to the share of Late Mr. Krishan Kumar Bansal while the rear portion came to the share of the defendants, a fact which has also been mentioned by Mr. Krishan Kumar Bansal in his Will dated 19.01.2006.
14. Furthermore, after the property was jointly purchased by the two brothers, the ground floor was built jointly and the expenditure of construction has been reflected in the books of accounts of the partnership firm. The amounts spent by the defendant No. 1, was Rs.44,182.95/-, while Late Mr. Krishan Kumar Bansal had spent Rs.35,714.86/-, as has been reflected in the Balance Sheet for the year 1978-1979. Therefore, the defendant No. 1 is entitled to 60% of the share while Late Mr. Krishan Kumar Bansal was entitled to 40% of share in the Suit Property, which is proportionate to the expenditure incurred by them, in raising the construction of the Suit plot. It is further asserted that there are two Gates in the property from the main road, one which leads to the portion in possession of the defendant No. 1, through which he has access to his portion, while the other Gate leads to the portion in possession of Late Mr. Krishan Kumar Bansal and now the plaintiffs.
15. The defendant No. 1 has further asserted that he has constructed the two floors above his portion on account of his family requirement while the front portion in possession of the plaintiffs, is lying vacant for the last 20 years.
16. The defendant No. 1 has asserted that Mr. Krishan Kumar Bansal and his family members always created trouble with an intent to grab the property. Initially they contacted one Mr. Mohinder Kapoor, to sell the Suit Property, for which Notice was issued by defendant No. 1. Thereafter, Mr. Krishan Kumar Bansal entered into the Suit Property against whom defendant No. 1 filed a Suit No. 594005/2016 titled as Shyam Lal Bansal vs. Jai Prakash & Ors. and eventually, the deal between Mr. Krishan Kumar Bansal and Mr. Jai Prakash, for sale of the portion of suit property by Mr. Krishan Kumar Bansal, was cancelled. Mr. Jai Prakash made the statement to this effect in the said Suit. It is further asserted that the documents executed in favour of Mr. Jai Prakash, were forged and fabricated.
17. The defendant has denied all the other averments in the plaint. It is denied that the plaintiffs have become the owners in respect of the portion of suit property which is in their possession, by virtue of the Will dated 19.01.2006 of Late Mr. Krishan Kumar Bansal. It is further asserted that the defendant No. 1 has never tried to deprive the plaintiffs of their ownership right in the Suit Property and that the Suit of the plaintiffs, is liable to be dismissed.
18. The plaintiff in his replication has re-affirmed their assertions as made in the plaint.
19. The issues on the pleadings were framed on 14.01.2020, which are as under: –
1. Whether the plaintiffs have no locus standi to file the present suit for decree of partition and permanent injunction as mentioned in para 1 of the preliminary objections? OPD-1

2. Whether the suit of the plaintiffs is not maintainable on account of misjoinder and non-joinder of proper and necessary parties? OPD-1

3. Whether the plaintiffs are the owners of 1/2 share of the suit property by virtue of the registered Will dated 19.01.2006 executed by Late Sh. K.K. Bansal? OPP

4. Whether the plaintiffs are entitled for a decree of partition as prayed for? OPP

5. Whether the plaintiffs are entitled for a decree of permanent injunction as prayed for? OPP

6. Relief.”

20. PW-1 Ms. Nirmal Bansal,(plaintiff No. 1) tendered her evidence by way of affidavit Ex.PW-1/A and deposed about the facts as narrated by her in the plaint. PW-2, Smt. Sunita Gupta @ Usha Gupta is the attesting witness to the Will, dated 19.01.2006 and has proved the Will exhibited as Ex.PW-2/1 and also identified the signatures of herself and of Sh. Suresh Kumar Garg, the other attesting witness, as well as, of Late Mr. Krishan Kumar Bansal. PW-3, Ms. Kanta Bansal, wife of Late Mr. Krishan Kumar Bansal, has corroborated the execution of the Will, Ex.PW-2/1. PW-4 Mr. Bhagwan Singh, Record Keeper, Sub-Registrar-II, Basai Darapur, produced the record pertaining to Will, Ex.PW-2/1 and deposed that it was registered in their office. PW-5, Mr. Vinod Singh from DDA, New Delhi, produced the summoned record in regard to the original Perpetual Lease Deed and proved the Letter dated 10.10.2011, Ex.PW-5/1, by virtue of which the undivided share of the plaintiffs, in the Suit Property, was mutated in their name. He admitted in his cross-examination that as per the record, no No Objection of Mr. Shyam Lal Bansal for mutation was submitted by the plaintiffs, though the same was filed on behalf of Smt. Kanta Bansal w/o Mr. Krishan Kumar Bansal, Ms. Sunita Gupta, daughter of Mr. Krishan Kumar Bansal and Mr. Sunil Kumar s/o Mr. Krishan Kumar Bansal (also husband of plaintiff No. 1).
21. The defendant No. 1, Mr. Shyam Lal Bansal appeared in support of his case and tendered his affidavit Ex. DW-1/A.
22. Arguments were addressed on behalf of the parties and the written submissions have also been filed on their behalf.
23. Submissions heard and the record perused. The issue wise findings, are as under: –

Issue No. 1
1. Whether the plaintiffs have no locus standi to file the present suit for decree of partition and permanent injunction as mentioned in para 1 of the preliminary objections? OPD-1

24. It is an admitted case that Late Mr. Krishan Kumar Bansal and defendant No. 1, had jointly purchased the Suit property vide Perpetual Lease Deed dated 03.09.1974, Ex.PW-1 and they both became the joint owners of the Suit land. According to the testimony of PW-1 Smt. Nirmal Bansal, plaintiff No.1, Late Mr. Krishan Kumar Bansal died on 05.10.2006 and was survived by his wife, Smt. Kanta Bansal and two sons namely, Mr. Sushil Kumar Bansal, Mr. Sunil Kumar Bansal and one daughter, Ms. Sunita Gupta @ Usha Gupta. Mr. Krishan Kumar Bansal during his lifetime, had executed the Will dated 19.01.2006, Ex.PW-2/1 vide which he bequeathed the Suit property to Smt. Nirmal Bansal (plaintiff No. 1), wife of his younger son Mr. Sunil Kumar Bansal and Mr. Gaurav Bansal (plaintiff No. 2) son of Sunil Kumar Bansal.
25. PW-2, Ms. Sunita Gupta @ Usha Gupta, the attesting witness to the Will has deposed that the registered Will dated 19.01.2006, was executed by her father, Late Mr. Krishan Kumar Bansal in favour of the plaintiffs, namely, Ms. Nirmal Bansal and Mr. Gaurav Bansal, wife and son respectively of her brother, Mr. Sunil Kumar Bansal. She had further deposed that on 19.01.2006, her father had brought a typed Will, read it over and explained its contents to her as well as to Mr. Suresh Kumar Garg, the other attesting witness that the Suit Property would devolve upon the plaintiffs upon his demise. She as well as Mr. Suresh Kumar Garg, had signed this Will as attesting witnesses, in the presence of her father, Late Mr. Krishan Kumar Bansal. She has further deposed that he executed this Will of his free mind and sound health by putting his signatures on the Will, in her presence and of Mr. Suresh Kumar Garg. Furthermore, they had appeared before the Sub-Registrar, Jagatpuri on 19.01.2006, for getting the Will registered. She has also deposed that all the natural heirs have accepted the registered Will dated 19.01.2006 and have never challenged the same.
26. The Will dated 19.01.2006, Ex.PW-2/1 has been duly proved by PW-2, Mrs. Usha Garg@Sunita Gupta and there is no significant challenge to the Will of Late Mr. Krishan Kumar Bansal in favour of the plaintiffs.
27. By virtue of the Will, the Suit Property has devolved on the plaintiffs and they have a locus standi to file the present Suit.
The Issue No. 1 is decided in favour of the plaintiffs.

Issue No. 2:
2. Whether the suit of the plaintiffs is not maintainable on account of misjoinder and non-joinder of proper and necessary parties? OPD-1

28. The defendants had taken an objection that the Suit is bad for mis-joinder and non-joinder of Ms. Usha Garg and Mr. Sushil Kumar Garg and Mr. Sunil Kumar Garg, the two sons and daughter as a party to the present Suit. However, as already held in Issue No. 1, the plaintiffs have inherited the Suit Property by virtue of Will dated 19.01.2006 and thus, the two sons and the daughter of deceased, Late Mr. Krishan Kumar Bansal, are neither necessary nor a proper party to the present Suit. The Suit is not bad for mis-joinder or non-joinder of the proper parties.
The Issue No. 2 is decided in favour of the plaintiffs.

Issue No.3:
3. Whether the plaintiffs are the owners of 1/2 share of the suit property by virtue of the registered Will dated 19.01.2006 executed by Late Sh. K.K. Bansal? OPP

29. Admittedly, the Suit Property had been purchased jointly by Late Mr. Krishan Kumar Bansal, predecessor in interest of the plaintiffs and the defendant No. 1. It is not in dispute that as per the mutual Oral Agreement in the year 1977, Late Mr. Krishan Kumar Bansal and the defendant No. 1 agreed to be in possession of equal portions of the Suit Property. While Krishan Kumar Bansal occupied the front southern portion, the defendant No. 1 came in occupation of the rear northern portion of the plot. Admittedly, there are two gates, one leading to the portion in possession of the plaintiffs while the other gate leading to the portion of the defendants. The defendant No. 1 has also asserted that the ground floor was constructed from the joint funds of the Partnership Firm run by Mr. Krishan Kumar Bansal and the defendant No. 1. It is, therefore, evident that the Suit Property never got partitioned by metes and bounds but the two owners mutually agreed to be in possession of the half portion each of the Suit Property and also raised construction from the joint funds of their Partnership Firm. There may have mutually agreed in regard to the possession but the property never got partitioned, as is evident from their testimony.
30. The defendant No. 1 has asserted that the money that was contributed from his share in the partnership business was Rs. 44,182.95/- while that of Krishan Kumar Bansal was Rs. 35,714.86/-, which is in the ratio of 60% : 40%. He has acquired the ownership in the ratio of 60% while the plaintiffs are entitled to 40%. This is, however, not tenable for the simple reason that the construction may have been carried out from whatever funds but the property land never got partitioned and both the parties have equal half share by virtue of the Perpetual Lease Deed, Ex.PW-1. The plaintiffs by virtue of the Will dated 19.01.2006, Ex.PW-2/1, have inherited the half share of Late Mr. Krishan Kumar Bansal.
Issue No.3 is decided, accordingly.

Issue No. 4:
4. Whether the plaintiffs are entitled for a decree of partition as prayed for? OPP

31. Once, it has been held that the plaintiffs and the defendant No. 1 are entitled to equal half share in the Suit Property and that the Suit Property has never been partitioned, it is hereby held that the Suit Property is liable to be partitioned and the plaintiffs together would be entitled to 50% while the defendant No. 1 is entitled to 50% in the Suit Property.
The Issue No. 4 is accordingly decided.

Issue No. 5:
5. Whether the plaintiffs are entitled for a decree of permanent injunction as prayed for? OPP
32. Having concluded that the plaintiffs are the owners of half undivided share in the Suit Property, the defendant No. 1 is hereby restrained from creating third party rights in respect of the half undivided share of the plaintiffs in the Suit Property. The Issue No. 5 is decided in favour of the plaintiffs.

Relief
33. In view of the findings on the aforesaid issues, it is hereby held that the plaintiffs together and the defendant No. 1, are entitled to 50% share in the Suit Property.
34. A preliminary decree of Partition is accordingly, passed.
35. Be now listed for passing of final decree on 31.07.2024.

(NEENA BANSAL KRISHNA)
JUDGE

MAY 01, 2024/RS

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