SH. AJIT SINGH vs SMT.ADARSH KAUR GILL

2024-10-25 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02.08.2024
Pronounced on: 25.10.2024

+ CS(OS) 2167/1993
SH. AJIT SINGH ….. Plaintiff
Through: Mr.Manav Gupta, Ms.Gauri Rishi, Mr.Sahil Garg, Mr.Abhinav Jain, Mr.Ankit Gupta, Ms.Samiksha Jain, Ms.Srishti Juneja, Ms.Monika Madaan, Mr.Mithil Malhotra, Advs.
versus
SMT.ADARSH KAUR GILL & ORS ….. Defendants
Through: Mr.C.A.Sundaram, Sr. Adv. with Mr.Sumit Bansal, Mr.Ravi Kapoor, Mr.Udaibir Kochar, Mr.Zafar Inayat, Mr.Rishav, Ms.Aditi Singhal, Ms.Shreya Kunwar, Ms.Tulna Rampal, Mr.Aditya Bakshi, Mr.Arjun Bhatia, Advs. for D-1 & D-2.

CORAM:
HON’BLE MR. JUSTICE NAVIN CHAWLA
J U D G M E N T
1. The present Suit has been filed by the original plaintiff, late Sh. Ajit Singh (hereinafter referred to as the plaintiff), praying for the following reliefs:
(a) pass a preliminary decree of partition of the property bearing No.3, south end Road, New Delhi, more particularly shown ion the plan, and, thereafter, pass a final decree partitioning the said property by metes and bounds and put each of the parties to the suit in actual physical possession of the portion of the property allotted to him/her. If the partition of the property by metes and bounds is not feasible, then the property may ordered to be sold by public auction through Court and proceeds thereof be divided between the parties to the suit in accordance with their share and entitlement;
(b) Pass a preliminary decree for partition of the movable assets belonging to the estate of Smt. Abnash Kaur, as mentioned in the Schedule to the plaint and, thereafter, pass a final decree and give to each of the party to the suit his/her share of the said property. In case it is not feasible to distribute the movable assets belonging to the estate of Smt. Abnash Kaur in the hands of defendants Nos.1 & 2 to each of the beneficiaries, as per the share and entitlement, then the said movable assets may be ordered to be sold by public auction through this Honble Court and the proceeds thereto may be divided amongst the parties, as per their share and entitlement;
(c) Pass a decree for rendition of accounts and enquiry into the same with respect to the rental income of the property received by defendant No.1 from the tenant of property bearing No.3, south End Road, New Delhi, w.e.f. 1.1.1980 to 30.11.1990;
(d) Pass a decree for rendition of accounts and enquiry into the same with respect to the profits made by defendant Nos.1 and 2 from the business which they have been carrying on by investing the funds from the estate of Smt. Abnash Kaur;
(e) Pass a decree for declaration that there has been no lease deed executed by Smt. Abnash Kaur in favour of Defendant No.1 and that defendant No.1 is not a lessee in the property, 3, South End Road, New Delhi, and she is not entitled to give the said property to any person on sub-lease basis;
(f) Pass a decree of declaration to the effect that defendant No.1 is not a subrogatee of the mortgage deeds executed by late Smt. Abnash Kaur with respect to the property in favour of Smt. Sushila Daphtary and her son Mr. Anil Daphtary said mortgage deeds have been redeemed out of the estate left by Smt. Abnash Kaur
(g) Pass a decree of declaration to the effect that defendants Nos. 1 and 2 have dis-entitled themselves from getting any share in the estate left by Smt. Abnash Kaur and that the plaintiff and defendants Nos.3,4 and 5 are the only beneficiaries under the Will of Smt. Abnash Kaur and are entitled to get the entire estate left by Smt. Abnash Kaur divided and partitioned in four equal shares;
(h) Pass a decree for permanent injunction against Defendant No.1 restraining her permanently from transferring, alienating, letting out or parting with the possession of the property, 3 South End Road, New Delhi, or any part thereof and from making any additions and alterations in the same in any manner whatsoever.
(i) Any relief which this Honble Court may deem fit and proper in the circumstances of the case may also be granted to the plaintiff and other beneficiaries under the Will of smt.Abnush Kaur, and
(j) Cost of the Suit may also be awarded against defendants Nos.1 and 2.

2. Once the final hearing of the Suit began and the counsel for the plaintiff had made his submissions, the learned senior counsel for the defendant nos. 1 and 2 pointed out that no submissions had been made by the learned counsel for the plaintiff on some of the prayers, while for some of the prayers, there had been a shift in the stand of the plaintiff.
3. On the objection being raised, the learned counsel for the plaintiff clarified the plaintiffs stand on the prayers being pressed in the Suit, as is recorded in the Order dated 09.05.2023, which is reproduced herein below:
1. The learned counsel appearing for the plaintiff submits that the plaintiff has not pressed and is not pressing prayer (b) and (d)
made in the Suit.
2. As far as prayer (f) is concerned, the estate left by Smt.AbnashKaur’ mentioned in the prayer is restricted to the rental received by the defendant no.1 for the property bearing no.3, South End Road, New Delhi (hereinafter referred to as the ‘Suit Property’) after the death of Smt. Abnash Kaur in 1976 and till the date of redemption of the mortgage in May 1981, and no other estate.
3. The above statement of the learned counsel for the plaintiff was necessary to be recorded as in the plaint, various prayers and averments have been made, on which no submissions were made in the opening by the learned counsel for the plaintiff. While the learned senior counsel for the defendant no.1 was making submissions, it was noticed that the submissions were being made on pleas that had not been pressed by the learned counsel for the plaintiff. It is only to clarify the position, that this statement of the learned counsel for the plaintiff has been recorded and, therefore, the plaintiff shall be bound by this order and the statement of the learned counsel for the plaintiff.
4. Needless to state that the above statements by the learned counsel for the plaintiff are without prejudice to the rights and contentions of the defendants.
5. The learned senior counsel for the defendant no.1 points out that there is a Schedule attached to the plaint, which mentions other properties purportedly as ‘estate left behind by the deceased late Smt. Abnash Kaur’. In relation to this Schedule also, no submission was made by the learned counsel for the plaintiff in the opening.
6. The learned counsel for the plaintiff prays for time to seek instructions if the plaintiff is still pressing the reliefs sought in respect of the other properties, movable and immovable, apart from the suit property. He also prays for time to seek instructions on prayer (g) made in the plaint.

4. By a subsequent Order dated 19.07.2023, the statement of the learned counsel for the plaintiff was recorded as under:
1. Pursuant to the order dated 09.05.2023, the learned counsel for the plaintiff, on instructions, submits that the plaintiff, in the present suit, is pressing only prayer (a), (c), (e), (f) (as restricted in terms of paragraph 2 of the order dated 09.05.2023), (h), (i) and (j), and would not press prayer (b), (d) and (g) made in the plaint.
2. He further submits that as far as the schedule of properties attached to the plaint is concerned, the plaintiff restricts the claim only
to the property bearing no. 3, South End Road, New Delhi, and gives up all claims against the other moveable and immoveable properties mentioned in the Schedule, and does not seek partition of these properties.
3. The plaintiff shall file an affidavit in the above respect, within a week.

5. The present plaintiff, Mr.Gurnir Singh Gill, filed an affidavit dated 26.07.2023, clarifying his restricted claim in the Suit. The relevant portions of the same are reproduced as under:
7. That accordingly, I state that the Deponent/Plaintiff shall be only pressing prayer (a), (c), (e), (f), (h), (i) and (j), and would not be pressing prayer (b), (d) and (g) made in the plaint.
8. I further state that as far as the Schedule of Properties attached to the Plaint is concerned, the Deponent/Plaintiff restricts the claim only to the property bearing no. 3, South End Road, New Delhi and rental/profits earned therefrom, and is therefore, relinquishing all the claims against the other moveable and immoveable properties mentioned in the Schedule and does not seek partition of these properties.
9. I further state that as far as prayer (f) is concerned, the ‘estate left behind by Smt. Abnash Kaur” mentioned in the prayer is restricted to rent received / profits earned by the Defendant No.1. for the Property bearing No. 3, South End Road, New Delhi [hereinafter referred to as the Suit property] after the death of Smt. Abnash Kaur in 1976 and till the date of redemption of mortgage in May 1981, and no other estate.

6. This Court, therefore, proceeded to hear the submissions of the parties on these modified prayers and restricted claims of the plaintiff.

Case of the plaintiff:
7. It is the case of the plaintiff that late Smt.Abnash Kaur was the elder sister of the plaintiff, the defendant no.1, and the defendant no.3; mother of the defendant no.5; and aunt of the defendant no.2 and the defendant no.4. She was married to late Seth Shiv Prasad on 27.06.1953, and the defendant no.5 was born out of the said wedlock on 11.05.1955. This was the second marriage of late Seth Shiv Prasad, who had been blessed with seven sons from his first wife.
8. The plaintiff asserts that out of the amounts gifted by late Seth Shiv Prasad to late Smt. Abnash Kaur, she purchased a property bearing No.3, South End Road, New Delhi (hereinafter referred to as the Suit Property) for a total sale consideration of Rs.2,50,000/- vide Sale Deed dated 18.01.1956 registered as Document No.215 in Additional Book No.1, Volume No.354 on Pages 117 to 138 on 30.01.1957 in the Office of the Sub-Registrar, New Delhi (Ex. PW-4/1), thereby becoming the absolute owner of the Suit Property.
9. The plaintiff asserts that by her last Will dated 06.02.1973 (in short, Will) (Ex. PW-4/2), late Smt. Abnash Kaur bequeathed the Suit Property and all other movable and immovable assets in favour of the plaintiff and the defendants, with each having 1/6th share in the same. The original plaintiff, Sh.Ajit Singh, was appointed as the Executor of the said Will by late Smt. Abnash Kaur.
10. The plaintiff further asserted that on the death of late Seth Shiv Prasad, who passed away on 24.05.1957, disputes arose between late Smt. Abnash Kaur and her step-sons (sons from the first marriage of late Seth Shiv Prasad). There was also an Order of Attachment dated 07.07.1960 of the Suit Property passed by the Collector, Delhi (Ex. PW-4/7) for recovering the tax payable by Seth Shiv Prasad HUF. In order to save her property from her step-sons and also from attachment, late Smt. Abnash Kaur entered into a fictitious lease of the Suit Property with the defendant no.1 vide Lease Agreement dated 18.11.1958. The plaintiff asserts that this Lease Agreement was fictitious and was never acted upon; the possession of the Suit Property was never delivered to the defendant no.1, and late Smt. Abnash Kaur remained in possession thereof.
11. The plaintiff asserts that in February 1961, late Smt. Abnash Kaur let out the Suit Property to the Vietnam Embassy, though in the name of the defendant no.1, on leave and license basis, and late Smt. Abnash Kaur was receiving the rent for the same from the said Embassy. Later, she let out the Suit Property on leave and licence basis with effect from 01.01.1964 to the trade representative of the German Democratic Republic (hereinafter referred to as G.D.R. Embassy), though again in the name of defendant no.1. The plaintiff asserts that the last leave and licence agreement with the G.D.R. Embassy, entered in November, 1974 for the period from 01.01.1975 to 31.12.1979 at Rs.11,000/- per month was executed by him as the General Attorney of the defendant no.1, on instructions from late Smt. Abnash Kaur. The plaintiff asserts that the G.D.R. Embassy made the full and final payment of the rentals for the said period of 5 years, in advance, in the name of defendant no.1 to the plaintiff, as was desired by late Smt. Abnash Kaur, and the said amount was later paid by the plaintiff to late Smt. Abnash Kaur.
12. The plaintiff further asserts that late Smt. Abnash Kaur had also taken a loan of an amount of Rs.1,98,000/- against the Suit Property by mortgaging the same in favour of Smt. Sushila Daphtary and Mr.Anil Daphtary (in short, Daphtarys) vide Mortgage Deeds dated 19.01.1959 (Ex. DW-1/42) and 24.01.1959 (Ex. DW-1/43). As late Smt. Abnash Kaur was unable to repay the said loan and interest accrued thereon, the Daphtarys filed a Suit, being Suit No. 282/1967, titled Shrimati Sushila Daphtary & Anr. v. Shrimati Abnash Kaur & Ors., seeking recovery of the said loan amount and foreclosure of the mortgage. A Preliminary Decree dated 29.01.1971 was passed in favour of Daphtarys and against late Smt. Abnash Kaur, thereby directing late Smt.Abnash Kaur to pay a sum of Rs.1,98,000/- as principal amount and interest @ 7.5% per annum thereon from the date of the mortgage till the date of its realisation. The same was challenged in an appeal, being RFA(OS) 11/1971, titled Smt. Abnash Kaur through LRs. v. Smt. Sushila Daphtary and Anr. During the pendency of the said appeal, late Smt. Abnash Kaur passed away on 10.06.1976. On the basis of her Will, the parties to the present Suit were substituted against her in the appeal.
13. During the pendency of the said appeal, the parties entered into a compromise on 20.02.1978, and a Compromise Decree dated 20.02.1978 (Ex. PW-4/DX8) was passed. Based on the said Compromise Decree, vide Order dated 08.05.1981 (Ex. DW-1/45), an application, being C.M. No. 323/1981 (Ex. PW-4/DX9), filed by the parties under Order XXI Rule 2 of the Code of Civil Procedure, 1908 (in short, CPC) was allowed; the satisfaction of the decree was recorded; and the mortgage deeds and other title documents were released in favour of the defendant no.1. It was also recorded that the applicant therein, that is, the defendant no.1, will be subrogated to the rights of the mortgagees in accordance with the terms of the said Compromise Decree.
14. The plaintiff asserts that on 04.05.1983, he addressed a notice to Sh. G.C. Mittal, Advocate, who, he claims, was advising and looking after the interest of late Smt. Abnash Kaur, thereby calling upon him to disclose the documents of settlement/lease that had been executed by the defendant no.1 with the G.D.R. Embassy with respect to the Suit Property. The plaintiff claims that the defendant no.1, however, refused to render the account of the rent received from the G.D.R. Embassy, and started claiming that she alone was entitled to receive the rent.
15. The plaintiff claims to have issued a notice even to the G.D.R. Embassy, asking the Embassy to pay the rent to him instead of to the defendant no.1. He, however, claims that the Embassy refused to comply with the same. The G.D.R. Embassy is claimed to have vacated the Suit Property on 01.11.1990.
16. The plaintiff asserts that, in fact, after discussions and meetings between the plaintiff and the defendant no.1, the parties to the present Suit arrived at a settlement, the terms whereof were circulated by the defendant no.1 to the plaintiff vide Letter dated 12.02.1991 (Ex. PW-4/27). However, soon thereafter, the defendant no.1 herself refused to adhere to the terms of the said settlement.
17. The plaintiff claims that the defendant no.1 had invested the rental income from the Suit Property in other businesses and, therefore, is liable to account for the same.

Case of the defendant nos.1 and 2:
18. The defendant no.1 filed her written statement wherein she denied the contents of the plaint, and claimed that the Suit is barred by limitation.
19. The defendant no.1 further claimed that by redeeming the mortgage, she had become the subrogate mortgagee in possession of the Suit Property and was entitled to keep the possession thereof. She further claimed her rights as a lessee.
20. The defendant no.1 also denied sending the Letter dated 12.02.1991 (Ex. PW-4/27), which, according to the plaintiff, recorded the terms of the settlement arrived at between the parties.
21. The defendant no.2 has adopted the written statement filed by the defendant no.1.
Proceedings in the Suit:
22. The original plaintiff, late Sh. Ajit Singh, passed away on 12.10.2000. Thereafter, the defendant no.3, late Smt. Surjit Kaur Gill, filed an application, being I.A. No.12533/2000, praying for her to be transposed as a plaintiff on the basis of an alleged Will dated 21.07.1997 of late Sh. Ajit Singh (Ex. PW-2/1), wherein she was appointed as an Administrator and Executor of his Will.
23. This Court, vide Order dated 04.12.2000, allowed the defendant no.3, late Smt. Surjit Kaur Gill, to be transposed as a plaintiff. This Court further recorded as under:
…..Learned counsel for Defendants No.1 and 2 has no objection if this application is allowed. In case the Will is found to be not a genuine one, Defendants No.1 and 2 are at liberty to agitate the matter before this Court.

24. The original defendant no.5, Mr.Kamal Kishore Bindal, passed away on or about 15.12.1995. This Court, vide Order dated 25.07.2000 passed in I.A. No.2816/1996, deleted the defendant no. 5 from the array of the parties recording that the LRs of Mr.Kamal Kishore Bindal are already on record.
25. The issues framed by this Court vide Order dated 01.02.2005 are as under:
1. Whether the suit is barred by limitation? OPD-1
2. Whether the plaint has been valued correctly for purposes of court fee and Jurisdiction. If not, to what effect? OPD
3. Whether redemption of the mortgage by defendant no. 1 entitles defendant no.1 to retain possession of property bearing No.3, South End Road, New Delhi? OPD-1
4. Whether the lease deed dated 18.11.1958 is a sham document as alleged by the plaintiff in paras 20 to 23 of the plaint and as explained in subsequent paragraphs thereof? OPP
(It Is clarified that issue No.3 above would take care of the pleadings of the plaintiff in the plaint where it is pleaded that the lessee under the lease deed afore-noted was acting as a benamidar of the lessor).
5. If issue no.4 is held in favour of the plaintiff, what would be the legal consequences thereof?
6. Whether late Smt.Abnash Kaur left behind any moveable properties as asserted by the plaintiff? OPP
7. What is the share of the plaintiffs and the defendants in the estate left behind by late Smt.Abnash Kaur?
8. Whether the plaintiff is entitled to a preliminary decree of partition in respect of property bearing No.3, South End Road, New Delhi? OPP
9. Whether the plaintiff is entitled to a decree for rendition of accounts against defendant No. 1? OPP
10. Whether the plaintiff is entitled to a decree of declaration as prayed in clauses (e), (f), (g)? OPP
11. Whether the plaintiff is entitled to a decree of permanent injunction as per clause (h) of the prayer clause? OPP
12. Relief.

26. Late Smt. Surjit Kaur Gill also unfortunately passed away on 03.01.2020, and the present plaintiff, namely, Shri Gurnir Singh Gill, claimed that Smt. Surjit Kaur Gill had left behind a Will dated 20.02.2003. He was accordingly substituted as her legal heir, vide Order dated 12.02.2020.

Submissions of the learned counsel for the plaintiff:
27. Mr. Manav Gupta, the learned counsel for the plaintiff, submits that the purported Lease Deed dated 18.11.1958 was a sham document executed by late Smt. Abnash Kaur only to protect the Suit Property from any claim raised by her step-sons and also to avoid the attachment of the same towards the recovery of the Income Tax dues and the Order of Attachment dated 07.07.1960 (Ex.PW4/7) passed by the Income Tax Authorities. He submits that in the year 1958, the defendant no.1 was a minor, aged only 16 years.
28. He submits that the purported Lease Deed dated 18.11.1958 has not been filed on record by the defendant no.1.
29. He submits that the defendant no.1 had also issued a Certificate dated 27.09.1963 (Ex.PW4/10), admitting that she has no right, title or interest in the Suit Property either as a tenant or as a lessee. He submits that it was also admitted by the defendant no.1 that the Suit Property had been leased out to the Vietnam Embassy by late Smt.Abnash Kaur to protect the same from attachment by the Income Tax Department and the false claim of her step-sons.
30. On the denial by defendant no.1 of the Certificate dated 27.09.1963 (Ex.PW4/10) and the Letter dated 12.02.1991 (Ex.PW-4/27), the learned counsel submits that the only evidence led by the defendant no.1 in this regard was in the form of a private handwriting expert, Mr.Deepak Jain (DW-3), whose evidence cannot be relied upon. He submits that Mr.Deepak Jain is not an expert in the field of comparison of signatures and has also been commented against adversely by this Court in its Judgment in M/s. Amir Chand Jagdish Kumar (Exports) Ltd. v. M/s. Hindustan Hing Supplying Co., (2010) SCC OnLine Del 4146. He submits that the report being relied upon was a procured report and, therefore, no credence can be given to it.
31. He submits that late Smt.Abnash Kaur had also entered into an Agreement to Sell dated 02.10.1963 (Ex.PW4/11) for the Suit Property with one Sh. Jaswant Rai, wherein again, there was no mention of any lease deed having been executed by late Smt.Abnash Kaur in favour of the defendant no.1.
32. He submits that the defendant no.1 had executed a General Power of Attorney dated 27.06.1966 (Ex.PW4/12), appointing the original plaintiff, late Sh.Ajit Singh, as an Attorney inter alia to look after the interest of the Suit Property. In discharge of the same, late Sh. Ajit Singh had been entering into the lease documents with the Embassy, though in the name of the defendant no.1.
33. Drawing reference of this Court to an Affidavit dated 12.02.1982 (Ex.PW4/13) executed by the defendant no.1, he submits that in the said affidavit, the defendant no.1 had admitted that she had no income between the Assessment Years 1966-1967 to 1978-1979. He submits that, therefore, the redemption of the Suit Property under the Compromise Decree dated 20.02.1978 (Ex. PW-4/DX8) was from the funds generated by the defendant no.1 from the Suit Property and not from her own funds. He submits that since the property was redeemed from the estate of late Smt. Abnash Kaur, therefore, it was for the benefit of all her legal heirs.
34. He submits that, in any case, the defendant no.1 is only entitled to receive, from the other five family members, their proportionate share, based on each family members ownership share in the Suit Property, of the money which she paid to redeem the mortgage from the original mortgagees, that is, the Daphtarys; she cannot claim any exclusive right in the said property.
35. Further, on the claim of the defendant no.1 that she is the subrogate mortgagee of the Suit Property, the learned counsel for the plaintiff, by placing reliance on the Judgment of the Supreme Court in Krishna Pillai Rajasekharan Nair (dead) by LRs. v. Padmanabha Pillai (dead) by LRs. & Ors., (2004) 12 SCC 754, submits that the mortgage was redeemed by defendant no.1 for and on behalf of, and for the benefit of, the other legal heirs of late Smt. Abnash Kaur, including the plaintiff. The only right of the redeeming family member is to seek contribution from the other family members and, at best, to hold possession of the property until the said contribution is made. He submits that the same is also recorded in the Compromise Decree dated 20.02.1978 (Ex.PW-4/DX8) and also in the Order dated 08.05.1981 (Ex.DW-1/45) passed by this Court.
36. He submits that though it is the case of the plaintiff that the defendant no.1 had redeemed the Suit Property from the estate of late Smt. Abnash Kaur, through the rentals received by the defendant no.1, without prejudice, the plaintiff is willing to contribute towards the redemption amount in terms of the Judgment and Compromise Decree dated 20.02.1978 (Ex. PW-4/DX8) for its proportionate share of 61.11% in the Suit Property.
37. He submits that the defendant no.1, by way of an application filed under Order VI Rule 17 of the CPC, being I.A. 8144/2008, also sought to take a plea of adverse possession of the Suit Property. The said application was, however, dismissed by this Court, vide Order dated 03.11.2009; the appeal thereagainst was dismissed by a Division Bench of this Court, vide Order dated 15.01.2010; and the Special Leave Petition filed by the defendant no.1 against the order of Division Bench was also dismissed by the Supreme Court, vide Order dated 26.03.2010. He submits that the defendant no.1 also filed an application under Order VII Rule 11 of the CPC, being I.A. 1604/1999, seeking rejection of the plaint on the ground of it being barred by limitation, which was dismissed by this Court, vide Order dated 07.04.2008. The Division Bench of this Court, by its Judgment dated 27.01.2009 passed in FAO(OS) 290/2008, partially set aside the order of the learned Single Judge of this Court, however, the appeal against the order of the Division Bench, being Civil Appeal No.8221/2011, was allowed by the Supreme Court vide Judgment and Order dated 30.01.2014. The learned counsel for the plaintiff submits that, therefore, the plea of the defendant no.1 that this Suit is barred by limitation, cannot be accepted.
38. He further submits that the limitation for the present Suit shall be governed by Article 65 of the Schedule to the Limitation Act, 1963 (in short, Limitation Act). He submits that since the Suit seeks partition and has been filed by one of the co-sharers, the possession of the defendant no.1 shall be deemed to be a constructive possession of the plaintiff. He submits that the cause of action for seeking partition is a recurring cause of action, therefore, the Suit has been filed within the period of limitation. In support, he places reliance on the Judgment of the Supreme Court in Vidya Devi alias Vidya Vati (dead) by LRs v. Prem Prakash & Ors., (1995) 4 SCC 496; and of this Court in Aishani Chandna Mehra v. Rajesh Chandna & Ors., 2019 SCC OnLine Del 6718.
39. The learned counsel for the plaintiff further submits that the claim of the defendant no.1 that the defendant no.5 sold his interest in the Suit Property to the defendant no.1 vide three Agreements to Sell dated 08.04.1993 (Ex.DW-1/33-35), also cannot be accepted as the factum of such sale was not pleaded by the defendant no.1 in her written statement. He submits that there is also no proof of any payment being made against the alleged Agreements to Sell.
40. In response to the submission of the learned senior counsel for the defendant no.1 that the Suit is liable to be dismissed as it claims partial partition, the learned counsel for the plaintiff submits that this plea has been raised by the defendant no.1 only in the oral submissions and does not form a part of the pleaded case of the defendant no.1. He submits that the defendant no.1 cannot be allowed to agitate a plea beyond the pleadings.
41. He submits that, in any case, the principle of bar against partial partition is applicable only to Joint Hindu Family/coparcenary properties and not to the properties which are co-owned by two or more persons.
42. He submits that even otherwise, there is no complete bar on seeking partial partition as the same would depend on the facts of each case and whether or not the other properties are, in fact, capable of being partitioned. He submits that in the present case, the right of late Smt. Abnash Kaur in the other properties is being denied by her step-sons. In fact, even the defendant no.1 in her written statement has contended that late Smt. Abnash Kaur had not left behind any other asset/estate. He submits that, therefore, the bar against partial partition would not be applicable to the facts of the present case.
43. In support of his above submission, he places reliance on the Judgments of the Supreme Court in B.R. Patil v. Tulsa Y. Sawkar & Ors., 2022 SCC OnLine SC 240 and Radhey Shyam Bagla (Since Deceased) thr. LRs v. Smt. Ratni Devi Kahnani (Since Deceased) through Legal Representatives, 2014 SCC OnLine Del 7103; and of this Court in Harish Chander Sharma & Ors. v. Deep Chand Ram Dass and Sons & Ors., 2008 SCC OnLine Del 1253; Sardar Jarnail Singh & Anr. v. Sardar Amarjit Singh & Ors., 2016 SCC OnLine Del 6666; Adarsh Pal Singh Randhawa & Anr. v. Amrit Bolaria & Anr., 2020 SCC OnLine Del 2223; Tarun K. Vohra v. Pravir K. Vohra & Ors., 2023 SCC OnLine Del 5662; and, Sh. Ved Parkash v. Sh. Naresh Kumar & Ors., NC 2023:DHC:327.
44. In answer to the submission of the learned senior counsel for the defendant no.1 that the defendant no.1 is also a protected tenant under the Delhi Rent Control Act, 1958 (in short, DRC Act), the learned counsel for the plaintiff submits that admittedly the Suit Property was sub-leased for a rent of more than Rs.3,500/- per month and, therefore, in terms of Section 3(1)(c) of the DRC Act, it would not be a protected tenancy. He further submits that this Suit itself will act as an adequate notice for eviction, and that the defendant no.1 is not entitled to any protection from eviction. In support, he places reliance on the Judgments of this Court in P.S. Jain Co. Ltd. v. Atma Ram Properties (P) Ltd., 1996 SCC OnLine Del 875 and Mir Abdul Hai & Anr. v. Sanjeev Verma & Ors., 2017 SCC OnLine Del 11488.
45. He submits that even otherwise, since the defendant no.1 is claiming title to the Suit Property, in terms of Section 116 of the Indian Evidence Act, 1872 (in short, Evidence Act) read with Section 111(g) of the Transfer of Property Act, 1882 (in short, TP Act), the defendant no.1 is liable to be evicted from the Suit Property and she can no longer claim tenancy rights. In support, he places reliance on the Judgments of this Court in S. Makhan Singh v. Smt. Amarjeet Bali, 2008 SCC OnLine Del 1188; Naeem Ahmed v. Yash Pal Malhotra (deceased) Through Lrs &Anr., 2012 SCC OnLine Del 1189; and, Swarn Lata Agarwal & Anr. v. M/s. Narang Medicine Co., 2015 SCC OnLine Del 13575.
46. In counter to the submission of the learned senior counsel for the defendant no.1 that the Suit has abated as the plaintiff has not proved the Will dated 21.07.1997 (Ex. PW-2/1) of late Sh. Ajit Singh, the original plaintiff, the learned counsel for the plaintiff submits that this plea is again beyond the pleadings of the defendant no.1. He submits that late Sh. Ajit Singh had passed away on or before 12.10.2000. Thereafter, the plaintiff filed an amended plaint, to which the written statement was filed by the defendant no.1, however, no such plea or objection was taken by the defendant no.1 in the said written statement. He submits that the defendant no. 1, therefore, cannot be permitted to raise a defence not pleaded in the written statement.
47. He further submits that in any case, the present plaintiff, admittedly, has 1/6th share in the Suit Property in his own independent right. In a Suit for partition, the defendants and the plaintiffs are all considered to be plaintiffs. In terms of Order XXII Rule 2 read with Order XXII Rule 4 of the CPC, as the right to sue survives in the present plaintiff, the Suit cannot abate.
48. He submits that even otherwise, till date, there has been no objection filed against the genuineness of the Will dated 21.07.1997 left behind by late Sh. Ajit Singh (Ex. PW-2/1). In Delhi, since it is not mandatory to obtain probate of a Will, therefore, in absence of any challenge to the said Will, it was not necessary for the plaintiff to lead further evidence on the genuineness of the Will. He submits that even the sons of late Sh. Ajit Singh have not challenged the Will and one of them has, in fact, appeared as a witness in the Suit in support of the plaintiff. In support, he places reliance on the Judgment of Supreme Court in Kanta Yadav v. Om Prakash Yadav & Ors., (2020) 14 SCC 102, and of this Court in Kamla Nijhawan v. Sushil Kumar Nijhawan & Ors., 2014 SCC OnLine Del 2667 and, Sh. Harminder Khullar v. Mrs. Swaran Kanta Juneja & Ors., 2013 SCC OnLine Del 2676.
49. In response to the submission of the learned senior counsel for the defendant no.1 that the plaintiff has failed to bring on record the legal heirs of the defendant no.5, Mr.Kamal Kishore Bindal, the learned counsel for the plaintiff reiterates that no such plea was taken by the defendant no.1 in her written statement. He submits that even otherwise, the step-sons of late Smt. Abnash Kaur have not claimed any rights in the Suit Property. He submits that the Suit cannot be dismissed on this ground at this belated stage, and in case this Court deems it necessary for the Legal Representatives of the defendant no.5, Mr.Kamal Kishore Bindal, to be impleaded, it can direct the same or allow the plaintiff to implead them as parties. In support, he places reliance on the Judgments of the Supreme Court in Daya Ram & Ors. v. Shyam Sundari & Ors., (1965) 1 SCR 231; Dolai Maliko (Dead) Represented by his Legal Representatives & Ors. v. Krushna Chandra Patnaik & Ors., (1966) Supp SCR 22; Harihar Prasad Singh & Ors. v. Balmiki Prasad Singh & Ors., (1975) 1 SCC 212; Sardar Amarjit Singh Kalra (dead) by LRs. & Ors. v. Pramod Gupta (Smt) (Dead) by LRs. & Ors., (2003) 3 SCC 272; and Delhi Development Authority v. Diwan Chand Anand & Ors., (2022) 10 SCC 428.

Submissions of the learned senior counsel for the defendant nos.1 and 2:

50. Mr.Sundaram, the learned senior counsel for the defendant nos.1 and 2, submits that the present Suit is liable to be dismissed for non-joinder of the necessary and proper parties to the Suit. He submits that the original defendant no.5, Mr.Kamal Kishore Bindal, who unfortunately passed away on or about 15.12.1995, was unmarried. He submits that in terms of Section 9 of the Hindu Succession Act, 1956 (in short, HSA), his half-brothers, falling under Serial No. II of Class II Legal heirs in the Schedule to the HSA, would have precedence in succession over the brothers and sisters of his mother, late Smt. Abnash Kaur, who would fall under Serial No. IX of Class II Legal heirs in the Schedule to the HSA. He submits that despite the same, in I.A. 2816/1996, which was filed for the impleadment of the legal heirs of the late Sh.Kamal Kishore Bindal, the plaintiff represented to the Court that all the legal heirs of late Sh.Kamal Kishore Bindal are already on record, and based on this assertion, late Sh.Kamal Kishore Bindal was deleted from the array of the parties to the Suit. He submits that in absence of all the legal heirs of late Sh.Kamal Kishore Bindal, the Suit cannot proceed and is liable to be dismissed.
51. He submits that even on the death of Sh. Ajit Singh, the original plaintiff, who unfortunately passed away on 12.10.2000, an application, being I.A.12533/2000, was filed by Smt.Surjeet Kaur Gill, the then defendant no.3, seeking her transposition as the plaintiff. In the said application, she herself disclosed that late Sh.Ajit Singh had left behind two adopted sons namely, Sh.Sanjay Singh and Sh.Jasjeet Singh, as his legal heirs. However, she claimed her rights under the purported Will dated 21.07.1997 of Sh. Ajit Singh (Ex. PW-2/1). This Court, vide its Order dated 04.12.2000, while allowing the said application, also observed that in case the said Will of Sh.Ajit Singh is found to be not genuine, the defendant nos.1 and 2 shall be at liberty to agitate the matter before the Court. He submits that though the present plaintiff named the attesting witnesses to the alleged Will dated 21.07.1997 of late Sh. Ajit Singh (Ex. PW-2/1) in his list of witnesses, however, he did not produce them in evidence. He submits that, therefore, the plaintiff has failed to prove the said Will in terms of Section 63 of the Indian Succession Act, 1925 (in short, ISA), and Section 68 of the Evidence Act, and, therefore, in absence of the sons of late Shri Ajit Singh being impleaded, the Suit must fail. He places reliance on the Judgments of the Supreme Court in H.VenktachalaAyengar v. B.T. Thimmajamma, (1958) SCC OnLine SC 31; Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91, and, Murthy v. C.Saradambal, (2022) 3 SCC 209.
52. He submits that even otherwise, by way of the said Will of late Sh. Ajit Singh, Sh. Ajit Singh has bequeathed his estate to other persons as well, and these persons were also necessary parties to the Suit but have not been impleaded. Placing reliance on the Judgment of the Supreme Court in Kenchegowda v. Siddegowda, (1994) 4 SCC 294 and of this Court in Hari Om Sharma v. Ghan Shyam Dass Sharma, 2018 SCC OnLine Del 7239, he submits that in absence of all the co-sharers, a decree of partition cannot be passed.
53. The learned senior counsel for the defendant nos.1 and 2 also submits that it was the own case of the plaintiff that late Smt. Abnash Kaur had left behind several properties, which are mentioned in the schedule attached to the plaint. The plaintiff, however, has confined his claim of partition only to the Suit Property, as is recorded in the orders dated 09.05.2023 and 19.07.2023 of this Court read with the affidavit dated 26.07.2023 of the present plaintiff. Placing reliance on the Judgment of the Supreme Court in Kenchegowda (supra), he submits that a Suit for partial partition is not maintainable in law and is liable to be dismissed. He submits that the Judgment of B.R. Patil (supra), has carved out an exception to the above rule, however, the same is not applicable to the facts of the present case as the plaintiff has not referred to the said exception while deleting his claim of partition for the other properties.
54. He further submits that the distinction being drawn by the plaintiff that the above rules are applicable only to Joint Hindu Family/coparcenary properties, is also incorrect. He submits that where the succession is testamentary, Section 19 of the HSA shall not apply, as it applies to a case where two or more heirs succeed together to the property of an intestate, and in which case alone, they take the said property as tenants-in-common and not as joint tenants. He submits that the plaint is based on the averment that the plaintiff has a unity of title, unity of commencement of title, unity of interest, unity of equal share, and unity of possession and right of survivorship with the defendants. Therefore, based on this averment of the plaintiff, this would be a case of joint tenancy and not tenancy-in-common. In support, he places reliance on the Judgment of the Supreme Court in Suresh Kumar Kohli v. Rakesh Jain & Anr., (2018) 6 SCC 708.
55. On the merits of the case, the learned senior counsel for the defendant nos.1 and 2 submits that in terms of the Compromise Decree dated 20.02.1978 (Ex. PW-4/DX8), the defendant no.1 was subrogated to the rights of the original mortgagees, that is, the Daphtarys, hence, the defendant no.1 was entitled to the delivery of the mortgage deed and other title documents and was also entitled to recover the decreetal amount from the other legal heirs of late Smt. Abnash Kaur. He submits that the said Decree has now attained finality and cannot be challenged. He submits that, therefore, the submission of the plaintiff that no mortgage is created in favour of the defendant no.1, is contrary to the said Decree. He submits that, that Decree cannot be challenged in this Suit. He places reliance on the Judgments of the Supreme Court in Mohanlal Goenka v. Benoy Kishna Mukherjee, (1952) 2 SCC 648; Narayana Prabhu Venkateswara Praphu v. Narayana Prabhu Krishana Prabhu (Dead) by Lrs., (1977) 2 SCC 181; and, Kalinga Mining Corpn. v. UOI & Ors., (2013) 5 SCC 252, and on Order XXIII Rule 3A of the CPC.
56. The learned senior counsel for the defendant nos.1 and 2 further submits that the claim of the plaintiff that the mortgage was redeemed by the defendant no.1 from the rent received from the Suit Property from 1976 till the date of the redemption in 1981, is also false. Apart from there being no pleadings in this respect, it is the own case of the plaintiff in the plaint that the rent from 1975 to 1979 was received by late Sh.Ajit Singh (the original plaintiff) and was handed over to late Smt.Abnash Kaur. He submits that the original plaintiff had also asserted that till the death of late Smt. Abnash Kaur on 10.06.1976, the entire rental from the Suit Property was being received by late Smt. Abnash Kaur herself. He submits that as the mortgage was redeemed in 1981, as recorded in the order dated 08.05.1981 passed by this Court (Ex. DW-1/45), it could not have been redeemed from the rentals of the Suit Property and, therefore, the plea taken by the plaintiff is false and liable to be rejected.
57. He submits that the original plaint had stated that the mortgage was redeemed from the income derived from the estate of late Smt.Abnash Kaur, which is contradictory to the case that has now been contended by the plaintiff that the mortgage was redeemed from the rent received from the Suit Property.
58. The learned senior counsel for the defendant nos.1 and 2 submits that in his cross-examination, the present plaintiff (PW-4) has admitted that neither he nor Sh. Ajit Singh took any steps to redeem the mortgage or to pay the sum due to the defendant no.1. The only remedy now available to them is to file a suit for redemption of the mortgage along with the consequential relief of possession. However, since the same has not been filed till date, it is now barred by the law of limitation.
59. He further submits that under Article 58 of the Limitation Act, the right to obtain the declaration begins when the right to sue first accrues, which, in this case, was when the order dated 08.05.1981 was passed by the Division Bench of this Court in RFA(OS) No. 11/1971, titled Smt. Abnash Kaur through LRs. v. Smt. Sushila Daphtary and Anr., (Ex. DW-1/45). He submits that this is not a case of usufructuary mortgages and the period of limitation as provided under Article 61 of the Limitation Act has, therefore, expired. In support, he places reliance on the Judgment of the Supreme Court in Singh Ram v. Sheo Ram, (2014) 9 SCC 185.
60. The learned senior counsel for the defendant nos.1 and 2 further submits that the plaintiff has also sought to impugn the status of the defendant no.1 as a lessee of the Suit Property. He submits that the Will dated 06.02.1973 (Ex. PW-4/2) left behind by late Smt. Abnash Kaur, which is the basis of the claim and the locus of the plaintiff to sue, itself admits to the tenancy in favour of the defendant no.1. He submits that the plaintiff, while attempting to derive benefit from the said Will, cannot assert that the lease, which has been acknowledged therein, was a sham.
61. He submits that even otherwise, there have been several proceedings in which not only late Smt. Abnash Kaur, but also Sh. Ajit Singh, the original plaintiff, had admitted to the lease in favour of the defendant no.1.
62. He submits that even though the lease was admittedly in the knowledge of the original plaintiff, he did not file a Suit within the period of limitation to challenge the same. The Suit is, therefore, barred by limitation.
63. The learned senior counsel further submits that in terms of the Lease Deed dated 18.11.1958, the defendant no.1 is a statutory tenant under the DRC Act. He submits that since the present Suit is not based on the termination of the said Lease Deed, therefore, the case of eviction, which is now being setup by the plaintiff only during the arguments, cannot be accepted.
64. The learned senior counsel for the defendant nos.1 and 2 further submits that the reliance of the plaintiff on the alleged Certificate dated 27.09.1963 (Ex.PW4/10), to contend that the defendant no.1 had admitted that the said Lease Deed was a sham document, cannot be accepted. He submits that the defendant no.1 had denied executing the same and had even produced a Handwriting Expert, Sh. Deepak Jain (DW-3), who had opined that the said document does not bear the signatures of the defendant no.1, whereas the plaintiff did not produce any evidence to prove the said document.
65. He submits that similarly, reliance cannot be placed on the terms and conditions of the alleged settlement dated 12.02.1991 (Ex. PW-4/27), alleged to have been addressed by the defendant no.1 to the original plaintiff, Sh.Ajit Singh. He submits that as Smt. Surjeet Kaur Gill did not enter the witness box despite repeated opportunities and her evidence was finally closed vide Order dated 20.08.2014, the said document, therefore, remained unproved by the plaintiff. On the other hand, the defendant no.1, through the evidence of Sh. Deepak Jain (DW-3), who opined that the signatures were not written by the defendant no.1, has proved that the said document was not executed by the defendant no.1.
66. The learned senior counsel also submits that the only evidence led by the plaintiff is that of the present plaintiff, Sh.Gurnir Singh Gill (PW-2), whose testimony is only hearsay.
67. He further submits that the plaintiff has not affixed proper court fee on the Suit. He submits that while the plaintiff has valued the movable and immovable assets of late Smt. Abnash Kaur at Rs.75 crores, he has affixed the Court Fee of only Rs.19.50. He submits that the claim of the plaintiff to be in constructive possession of the Suit Property, also cannot be accepted.

Analysis and findings:
68. I have considered the submissions made by the learned counsels for the parties.
69. As the Suit is based on the registered Will dated 06.02.1973 of late Smt. Abnash Kaur (Ex. PW-4/2), and since the said Will is not in dispute in the present Suit, at the outset, the contents thereof deserve to be noticed.
70. In the said Will, late Smt. Abnash Kaur states that she owns in her name, and in the name of her benamidars, several movable and immovable properties. Then, she goes on to refer to her shares in the Lord Krishna Sugar Mills Limited and also mentions the dispute with respect to the said shares. She also mentions inheriting 1/9th share of the estate of her late husband, Seth Shiv Prasad, and the dispute that she has with her step-sons regarding the same.
71. She then mentions the Suit Property, and states that the possession thereof is with the defendant no.1, who is her tenant under the Agreement/Lease Deed dated 18.11.1958 and is paying a rent of Rs.1,500/- per month vide the Amended Agreement dated 12.01.1964. She also mentions a charge created in favour of the defendant no.1 under the Agreement dated 18.11.1958, whereby she is liable to pay 50% of the amount spent by the defendant no.1 on the renovation of the said Suit Property, as and when the defendant no.1 vacates the premises.
72. She also mentions about her jewellery and also about a loan extended by her to M/s Srichand Vishandass.
73. She then bequeaths all her properties in favour of her son, Mr.Kamal Kishore; her brother, who was the original plaintiff, Sh.Ajit Singh; her two sisters, Smt.Adarsh Kaur Gill, the defendant no.1, and Smt.Surjit Kaur Gill, (the original defendant no.3 who was transposed as a plaintiff vide Order dated 04.12.2000); her niece, the defendant no.2, Ms.Noorien Kaur Gill; and her nephew, who is the present plaintiff, Sh.Gurnir Singh Gill, in equal shares, with each having a 1/6th share in her estate.
74. She appointed the original plaintiff- Sh.Ajit Singh as the sole Executor and Administrator of her Will.
75. At this point, it is apposite to note that she had expressly stated that the Executor will first divide the properties that are not in litigation and thereafter, shall divide the properties against which litigation is pending, on the conclusion of such litigations.
76. As noted hereinabove, the original plaintiff- Sh.Ajit Singh had filed the present Suit as the Executor of the said Will of Smt.Abnash Kaur, and also in his position as a beneficiary thereunder, inter alia claiming a decree of partition of the estate of late Smt. Abnash Kaur.
77. In the present Suit, Sh.Ajit Singh has inter alia pleaded that the defendant no.1 had invested huge amounts, which came in her hands from the estate of late Smt. Abnash Kaur, in the business started by her. He has further pleaded that the defendant no.1 also invested the rental income from the Suit Property in the said business. He has claimed that one of the companies which had been started by the defendant no.1 in Delhi in or about 1985 is known as M/s Nina Garments (Pvt.) Ltd. He has claimed that the defendant no.1 has floated other companies as well by using the income from the estate of late Smt. Abnash Kaur. He has given the details of such estate in the form of a schedule annexed to the plaint by making following averments:

63. That the entire estate of Smt. Abnash Kaur, which is in the hands of defendant Nos.1 and 2, or in the name of their nominees, is liable for partition as per the Will of Smt. Abnash Kaur. A Schedule of such properties in India (movable and immovable), as per the knowledge of the plaintiff is being fil the plaint.

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SCHEDULE

DETAILS 0F IMMOVABLE AND MOVABLE PROPERTIES BELONGING TO THE ESTATE OF SMT ABNASH KAUR OF WHICH THE PLAINTIFF IS PRESENTLY AWARE OF

(1) Bungalow No. 3, South End Road, New Delhi measuring 1.336 acresincluding all movable items fixed in the premises or lying therein;
(2) Private Limited Company known as Nina Garments Pvt.Ltd. 194-A, Ramesh Market, Garhi, Amar Colony, New Delhi-110065 with all its immovable andmovable assets and the amounts lying in the banks, including the amounts lying in deposit in the said company in the names of defendants Nos 1 &2;
(3) Cash amounts lying in Saving Bank Account No.85057, Current Account (Number not known) and in N.R.I. Account in the name of defendant No.1 with Grindlays Bank, New Delhi and the amounts lying in deposit in the name of Nina Garments Pvt. Ltd. and of defendants Nos 1 & 2, including the amounts lying in Saving or Current Account of defendant No.1 (Account number not known) with Corporation Bank (Regional Branch), Connaught Place, New Delhi, including the amounts lying in accounts in the Saving and Current account of defendants Nos 1 & 2 (Accounts Numbers not known) in the United Commercial Bank, Parliament Street, New Delhi;
(4) All jewellery lying in 3, South End Road, New Delhi, and in Lockers Nos 32-A, 99-A and 924-A in the name of defendant No.1 in United Commercial Bank, Parliament Street, New Delhi and in Lockers in other Banks hired by defendants Nos 1 & 2 (Lockers Numbers not known), including the precious jewellery lying in the said lockers;
(5) Apartment No. D-27, Green Park, New Delhi;
(6) Other movable and immovable properties purchased by defendants Nos 1 & 2 in India (particulars presently not known);
(7) All amounts lying in credit in the name of defendant No.1 in the account books of the Company Sss International Pvt Ltd, Masjid Road, Bhogal, New Delhi, including shares standing in the name of defendantsNos 1 & 2, if any;
(8) Precious jewellery and other valuable items belonging to the estate of SmtAbnash Kaur, including the precious jewellery declared by defendant No.1 in her Wealth-Tax Returns under Amnesty Scheme in the asst years 1982-83 to 1986-87, and in her Wealth-Tax Returns in subsequent years.

Partial Partition:
78. Based on the contents of the Will dated 06.02.1973 of late Smt. Abnash Kaur, the pleadings in the plaint, the subsequent stand of the plaintiff as recorded in the Orders dated 09.05.2023 and 19.07.2023 of this Court and the Affidavit of the plaintiff dated 26.07.2023, the learned senior counsel for the defendant nos.1 and 2 has contended that by giving up the claims on the other properties left behind by late Smt. Abnash Kaur, which were forming part of her estate, as is claimed by the plaintiff, the present Suit now seeks only a partial partition of the estate of late Smt.Abnash Kaur and, therefore, is not maintainable. As noted hereinabove, he has placed reliance on the Judgment of the Supreme Court in Kenchegowda (supra).
79. In Kenchegowda (supra), the Supreme Court has held that a Suit for partial partition, in absence of the inclusion of other joint family properties and impleadment of the other co-sharers, was not warranted in law. While reiterating the said principle, in B.R. Patil (supra), the Supreme Court has held that though the law looks with disfavour upon properties being partitioned partially, the principle that there cannot be a partial partition at all is not an absolute one. Placing reliance on Maynes Treatise on Hindu Law & Usage 17th Edition, paragraph 487, the Supreme Court has held that the rule against partial partition is not an inelastic rule, and a suit for partition may be confined to division of property which is available at the time for actual division and not merely for division of status. The exception to the rule would be where the property that has been omitted is not in possession of the coparceners and may consequently be deemed to be not really available for partition, or where a property is not admitted to be a joint property by all the parties to the Suit, and it is contended by some of them that the property belongs to an outsider. I may quote from the Judgment as under:
10. This is the state of the pleading and evidence in support of the existence of the property other than what has been scheduled by the plaintiffs and for which partition is sought. It is true that the law looks with disfavor upon properties being partitioned partially. The principle that there cannot be a partial partition is not an absolute one. It admits of exceptions. In Maynes Treatise on Hindu Law & Usage 17th Edition, Paragraph 487, reads as follows:
487. Partition suit should embrace all property – Every suit for a partition should ordinarily embrace all joint properties. But this is not an inelastic rule which admits circumstances of a particular case or the interests of justice so require. Such a suit, however, may be confined to a division of property which is available at the time for an actual division and not merely for a division of status. Ordinarily a suit for partial partition does not lie. But, a suit for partial partition will lie when the portion omitted is not in the possession of coparceners and may consequently be deemed not to be really available for partition, as for instance, where part of the family property is in in the possession of a mortgagee or lessee, or is an impartible Zamindari, or held jointly with strangers to the family who have no interest in the family partition. So also, partial partition by suit is allowed where different portions of property lie in different jurisdictions, or are out of British India. When an item of property is not admitted by all the parties to the suit to be their joint property and it is contended by some of them that it belongs to an outsider, then a suit for partition of joint property excluding such item does not become legally incompetent of any rule against partial partition.
11. In the facts of this case having noticed the state of the pleadings and the evidence, we are of the view that the interest of justice lies in rejecting the appellants contention. The appellant has not been able to clearly establish the exact extent or identity of the property available by way of ancestral property. Despite claiming to having documents relating to the properties and admitting to having no difficulty to produce them, he does not produce them. He is unable to even give the boundaries. It is obvious that he does not claim to be in possession of the said properties even if it be as a co-owner on the basis that it is ancestral property. His evidence discloses that in reality and on the ground these properties could not be said to be actually available for the parties to the present suit to lay claims over them. Properties not in the possession of co-sharers/coparceners being omitted cannot result in a suit for the partition of the properties which are in their possession being rejected.

80. The above exception was also noticed by a Division Bench of this Court in Radhey Shyam Bagla (Since Deceased) thr. LRs (supra), wherein it was further held that the bar against partial partition would not apply where the properties are not established to be joint in nature, that is, HUF or coparcenary assets, but are disputed or otherwise held commonly, and the exclusion of such properties would not be fatal to the maintainability of the proceedings.
81. A learned Single Judge of this Court applied the ratio of the above Judgment in Sardar Jarnail Singh & Anr. (supra), by holding as under:
7. A Division Bench of this Court recently in Radhey Shyam Bagla v. Ratni Devi Kahnan, also faced with a plea of the suit for partition being bad for the reason of being for partial partition, held (i) that subject to exceptional circumstances, a suit instituted for partition should include all the joint family properties; (ii) the general principle is that a cosharer filing a suit for partition against the other co-sharers has to bring all the joint properties into the hotchpot, failing which a suit may be dismissed on the ground of partial partition as the proper equity in a suit for partition will not be possible if all joint properties are not brought into the hotchpot; (iii) the normal rule governing suits for partition is that it has to incorporate all partible coparcenary property and should implead all those entitled to a share; (iv) however this rule is not a rigid and an inflexible one; reliance was placed on Mst. HatesharKuer v. Sakaldeo Singh laying down that the rule aims for preventing multiplicity of legal proceedings which results if separate suits were to be instituted in respect of fragments of joint estates and that normally it is more convenient to institute one suit for partition of all the joint properties for equitable distribution and adjustment of accounts-however this being a rule dictated by consideration of practical convenience and equity, may justifiably be ignored when in a given case there are cogent grounds for departing from it; (v) however the said rule applies primarily to coparcenary property -where the parties are not coparceners but tenants in common, it makes a substantial difference in the applicability of the rule as no coparcener has a share in any particular property but there is no such basis for application of the rule to property which is held in common; (vi) a distinction has to be made between jointly or commonly held property and coparcenary property; and, vii) a suit for partition of a common property as distinct from joint property is not liable to dismissal on the ground that all the joint property in respect of which partition may have been sought have not been included.

8. Applying the aforesaid law, I am of the opinion that the present suit for partition of property acquired by the parties hereto vide sale- deeds, in their own name is not bad for being for partial partition as the other properties which have not been included have been acquired by the parties to this suit, not by acquisition directly in their name, but by inheritance, jointly with others and which others have nothing to do with the property to which this suit pertains.

82. From the above, it is evident that the rule against maintainability of a suit for partial partition applies only when partition is sought for HUF or coparcenary properties, and not where the parties claim their right as tenants-in-common, because while all coparcenary properties form a part of the common hotchpot and no coparcener has a share in any particular joint family property, however, for commonly held properties there is no such basis of application of the rule barring partial partition. At this point, it would be apposite to ascertain the status of parties to the present Suit. The learned senior counsel for the defendant nos. 1 and 2 has contended that the parties to the present Suit have acquired the interest in the Suit Property as joint tenants and not tenants-in-common.
83. The Supreme Court in Suresh Kumar Kohli (supra), while explaining the distinction between joint tenancy and tenancy-in-common, has held as under:
14. The issue at hand is what would be the status of the succeeding legal representatives after the death of the statutory tenant. In this regard, it would be worthy to discuss the two capacities, viz. tenancy-in-common and joint tenancy, and the rights that one holds in these two different capacities. Fundamentally, the concepts of joint tenancy and tenancy-in-common are different and distinct in form and substance. The incidents regarding the cotenancy and joint tenancy are different : joint tenants have unity of title, unity of commencement of title, unity of interest, unity of equal shares in the joint estate, unity of possession and right of survivorship.
15. Tenancy-in-common is a different concept. There is unity of possession but no unity of title, i.e. the interests are differently held and each co-tenant has different shares over the estate. Thus, the tenancy rights, being proprietary rights, by applying the principle of inheritance, the shares of heirs are different and ownership of leasehold rights would be confined to the respective shares of each heir and none will have title to the entire leasehold property. Therefore, the estate shall be divided among the co-tenants and each tenant in common has an estate in the whole of single tenancy. Consequently, the privity exists between the landlord and the tenant in common in respect of such estate.

84. This distinction was recently highlighted by the Division Bench of this Court in Tarun K. Vohra (supra), wherein the Division Bench considered the effect of Section 19 and Section 30 of the HSA and held that the property devolving on the heirs of a Hindu, whether or not he/she dies intestate, devolves on the heirs as tenants-in-common and not as joint tenants. The Division Bench also opined that the question as to whether the property devolved on the parties in equal shares by virtue of a Will or on account of the deceased dying intestate is inconsequential to determine the nature of the properties in the hands of the parties. It was held that the rule against partial partition is applicable in respect of joint family properties or coparcenary properties and not where the properties are held by the parties as tenants-in-common. I may quote from the Judgment as under:
18. In the present case, there is no dispute that the Suit Property is a self-acquired property of the parents of the parties. The question whether it devolved on the parties in equal shares by virtue of the Will or on account of Late Smt. Primla Vohra dying intestate is inconsequential to determine the nature of the properties in the hands of the parties.

19. It is relevant to refer to Section 19 and Section 30 of the Hindu Succession Act, 1956 (hereafter the Act). The same are set out below:
19. Mode of succession of two or more heirs.- If two or more heirs succeed together to the property of an intestate, they shall take the property,-
(a) save as otherwise expressly provided in this Act, per capita and not per stirpes; and
(b) as tenants-in-common and not as joint tenants.
30. Testamentary succession.- Any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so [disposed of by him or by her], in accordance with the provisions of the Indian Succession Act, 1925 (39 of 1925), or any other law for the time being in force and applicable to Hindus.

20. A conjoint reading of Sections 19 and 30 of the Act makes it amply clear that the property devolving on the heirs of a Hindu whether he/ she dies intestate, devolves on them as tenants-in-common and not as joint tenants.

21. The question whether the heirs of a deceased tenant inherit the statutory tenancy as tenants-in-common or as joint tenants has been a subject matter of much debate. In H.C. Pandey v. G.C. Paul, the Supreme Court held as under:
4. It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the pr