SMT. MADHU PAPREJA vs ANIL KUMAR CHADDHA AND ORS

$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 6th February, 2024
+ CS(OS) 179/2018
SMT. MADHU PAPREJA ….. Plaintiff
Through: Mr. Dhananjai Rana and Ms.Geetanjali, Advocates

versus

ANIL KUMAR CHADDHA AND ORS ….. Defendants
Through: Mr. Vikrant Goyal and Mr. Nitin Chandra, Advocates for D-2, 3, 4, 23
Ms. Chandrika Gupta, Advocate for D-6
Mr. Vipin Yadav, Advocate for D-12
Ms. Manju Mehta & Mr. Anil Mishra, Advocates for Defendant Nos.15 to 21
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
1. The present suit had been filed on behalf of the plaintiff seeking a decree of Partition, Separate Possession and Permanent Injunction in respect of the property bearing No 46/17, East Patel Nagar. New Delhi comprising of 200 square yards built up property up to Ground Floor, and properties beating No B-57, 58, 59, and 60 situated at Ramesh Nagar new delhi-110015.
2. Briefly stated that Late Sh. Dasmal Chaddha, grandfather of the plaintiff and the defendants owned two properties, namely property bearing No. 46/17, East Patel Nagar, New Delhi, vide lease deed dated 22.05.1957 and property bearing No. B-57, 58, 59 and 60, Ramesh Nagar, New Delhi-110015, vide lease deed dated 30.12.1963.
3. Sh. Dasmal Chaddha on his demise, was survived by his five sons, namely Mr. Narain Chaddha, Mr. Dharamapal Chaddha, Mr. Satyapal Chaddha, Mr. Sarve Mittar Chaddha and Mr. Rajinder Kumar Chaddha and three daughters, namely, Late Ms. Sashi Anand, Late Smt. Santosh Bhagat and Late Smt. Savitri Sethi. The wife of Late Sh. Dasmal Chaddha had died during his lifetime. The plaintiff has further stated that all the five sons and three daughters of Late Sh. Dasmal Chaddha, have died. One daughter Late Smt. Santosh Bhagat had died without any legal heir. The respective sons and daughters of all other seven brothers and sisters, have been arrayed as a party to the present suit.
4. No effective decision in regard to the partition of the properties ever happened between the legal heirs of Late Sh. Dasmal Chaddha. However, by mutual understanding, Late Sh. Ram Narain Chaddha, father of the plaintiff and Defendnat No.1, got the possession of property bearing No. 57 and 58, Ramesh Nagar, New Delhi and after his demise, plaintiff and defendant No. 1 started residing separately in the property bearing No. B-58, First Floor and defendant No. 1 in property No. B-57, Ramesh Nagar, New Delhi.
5. The plaintiff has asserted that the properties are liable to be distributed equally amongst the legal heirs of each of the seven brothers and sisters. She has asserted that her share in the suit property is 1/21 and has sought partition of the two suit properties which were originally owned by Sh. Dasmal Chaddha, grandfather of the plaintiff.
6. The defendant No. 1 in his Written Statement has asserted that he, Mr. Anil Kumar Chaddha s/o Late Sh. Ram Narain Chaddha, is in possession of the suit property bearing No. B-57 and B-58, Ramesh Nagar, New Delhi, since last 30 years. Moreover, Sh. Ram Narain Chaddha, father of the plaintiff and defendant No. 1, had died way back in the year 1965, when plaintiff was barely 8 years old and defendant No. 1 was five years old. Smt. Sushila Devi Chaddha, mother of plaintiff and the answering defendant No. 1, Mr. Anil Chaddha, has already given the shares in the property to the plaintiff by way of gold and cash, at the time of her marriage and even thereafter, a sum of Rs.25,00,000/-. Even the Mausi of the plaintiff had given her gold ornaments and therefore, she is not entitled to 1/21st share in the suit property, as claimed by her.
7. It is further submitted that the property at Ramesh Nagar, New Delhi, is not partitionable as it cannot be sub-divided as is evident from the Lease deed. The plaintiff, therefore, is not entitled to seek partition of the same.
8. The suit needs to be dismissed also on account of being barred by limitation as her right in the suit property was denied by way of a Reply to the Legal Notice in 2015 itself.
9. The suit is also bad on the ground of mis-joinder of parties as the plaintiff herself has stated in paragraph 15 of the plaint that an oral family settlement took place between other legal heirs of Late Sh. Dasmal Chaddha; therefore, impleading them as party to the suit amounts to mis-joinder.
10. On merits, all the averments made in the plaint, were denied. It is denied that on demise of Late Sh. Dasmal Chaddha in the year 1962, all the Class-I legal heirs are entitled to their respective shares in his properties according to the Hindu Succession Act, 1956 (hereinafter referred to as “HSA, 1956”). The entitlement of the plaintiff, specifically, is denied.
11. The defendant No. 6, Mr. Shrishti Chaddha, in his Written Statement had asserted that the deceased Sh. Dasmal Chaddha, during his lifetime, in terms of the family settlement, had given the property bearing No. B-59, 60, Ramesh Nagar, New Delhi, to his son Mr. Shrishti Chaddha, who along with his family, has been living in the suit property and paying Property and Municipal taxes thereof. He is the absolute owner and in possession of the suit property bearing Nos. B-59, 60, Ramesh Nagar, New Delhi and the plaintiff has no right, title and interest in the suit property.
12. It is further claimed that the property bearing No. B-57 and 58, Ramesh Nagar, New Delhi, was given to Sh. Ram Narain Chaddha, father of the plaintiff, who along with his family members, has been residing and is in possession of the property. After the demise of Sh. Ram Narain Chaddha, the property is in possession of his son Mr. Anil Kumar Chaddha/defendant No. 1 and he is the absolute owner of the said property.
13. It is further asserted that the property bearing No. 46-E/17, East Patel Nagar, devolved on his two sons namely, Mr. Rajinder Kumar Chaddha and Sarve Mittar Chaddha, who have been residing in the said property for last more than 15 years. It is claimed that the plaintiff has no cause of action and the suit is liable to be dismissed.
14. Defendant No. 12, Jagat Mohan Chaddha in the Written Statement has stated that his father Sh. Satyapal Chaddha had executed a Will dated 12.02.1993, bequeathing his share in the above properties to him. Further, the daughters of Mr. Satya Pal Chaddha i.e. his sisters had given a no objection by way of an affidavit in the Court of District Judge in the Miscellaneous Suit No. 63/1995. Therefore, the share of the defendant comes to 1/8th in the properties of Late Sh. Dasmal Chaddha.
15. No Written Statement has been filed on behalf of the remaining defendants.
16. The parties submitted that since there is no dispute on the facts, a preliminary decree of partition may be passed.
17. Submissions heard.
18. It is an admitted fact that Late Sh. Dasmal Chaddha, grandfather of the parties to the suit, was the owner of the properties bearing Nos. B-57, 58, 59 and 60, Ramesh Nagar, New Delhi-110015 and 46/17, East Patel Nagar, New Delhi. It is further not challenged that on his demise in the year 1962, he was survived by five sons and three daughters.
19. The defendant No. 1 Mr. Anil Kumar Chaddha s/o Sh. Ram Narain Chaddha, had taken a plea in the Written Statement that the sisters are not entitled to any share in the suit properties as their share had been given away in the form of cash and jewellery at the time of their respective marriage. The cash and jewellery even if given at the time of marriage to the daughters, does not amount to giving a share in the suit property as per their entitlement. There is no document or any other evidence presented by the defendant No. 1, in support of his assertion of his two sisters i.e. the plaintiff, Smt. Madhu Papreja and Late. Smt. Indubala Ghai had received their share in the suit properties. Section 8 of the HSA, 1956, clearly stipulates that in case of intestate death of a Hindu, the property would be divided amongst the Class-I legal heirs. The daughters being included in Class-I heirs, are equally entitled to share in the undivided property.
20. Defendant No. 1 had taken a plea that the suit is barred by limitation as the right of the plaintiff in the suit properties was denied vide Reply to a Legal Notice in 2015. However, the undivided property are held jointly by all the legal heirs and their right to claim partition is a continuing cause of action which continues till the properties are partitioned. Therefore, this plea of suit being barred by limitation is without any merit.
21. The defendant No.1 in his Written Statement has taken a plea that as per the submissions of the plaintiff herself, an oral family settlement was made between the legal heirs of Late Sh. Dasmal Chaddha and as such impleading them, is a mis-joinder of the parties. However, it is pertinent to note that nowhere has the plaintiff or any of the defendants claimed that there was any oral partition which ever took place between the legal heirs of Late Sh. Dasmal Chaddha. What has been asserted in the plaint is that pursuant to mutual understanding, some of the plaintiffs/defendants occupied different portions of the suit properties and have been residing in those portions since last more than 30 years. Merely because the parties inter se mutually decided to occupy certain portions of the property cannot be deemed to be a partition. So much so, none of the parties to the suit have claimed that any partition ever took place in respect of the suit properties; the suit properties have remained undivided amongst the legal heirs and therefore, is liable to be partitioned in accordance with their shares.
22. The defendant No. 1 has also claimed that he being in possession of property Nos. B-57 and B-58, Ramesh Nagar, for last more than 30 years, his possession has ripened into a title of ownership. However, mere long possession is not sufficient to create a title in favour of the occupant of the property when admittedly he was occupying the property as one of the co-owners and all other co-owners, whether in or out of the possession, are deemed to have a constructive possession of the suit property. This argument of his possession having ripened into exclusive ownership, is also is not tenable as his possession was also on behalf of other co-owners as well.
23. Thus, the property is to be divided between the heirs of Sh. Dasmal Chaddha. Pertinently, the daughter, Late Smt. Santosh Bhagat had died without any Class-I legal heir, her share in the suit properties would devolve upon her Class-II heirs, which are her other seven siblings i.e. the five sons and two daughters of Late Sh. Dasmal Chaddha, as per Section 15 of the HSA, 1956. Accordingly, the final division would be between the five sons and two daughters who would became entitled to 1/7th share each, in the suit properties.
24. Section 10(2) of the HSA, 1956 provides for distribution of property amongst the heirs in the Class-I of the Schedule. Accordingly, all the seven sons and daughters of Late Sh. Dasmal Chaddha became entitled to i.e. 1/7th share each which may be defined as under:-
Five sons
i) Late Shri Ram Narain (1/7th share)
ii) Late Sh. Dharampal Chaddha (1/7th share)
iii) Late Sh. Satya Pal Chaddha (1/7th share)
iv) Late Sh. Sarve Mittar Chaddha (1/7th share)
v) Late Mr. Rajinder Kumar (1/7th share)
Three daughters
i) Late Smt. Sashi Anand (1/7th share)
ii) Late Smt. Santosh Bhagat (died without any children)
iii) Late Smt. Savitri Sethi (1/7th share)
25. The share of the five sons and two daughters, who have died, further devolves upon their legal heirs in accordance with Rule 2 of Section 10 of the HSA, 1956 which provides for distribution of property amongst the heir in the Class-I of the Schedule read with Section 19 of the HSA, 1956, as under:-
Legal heirs
Particulars
Division of Share
Son 1
Late Shri Ram Narain
(1/7)
a. Mr.Anil Kumar Chaddha
1/21

b. Smt. Madhu Papreja/plaintiff

1/21

c. Late Indubala Ghai,
i) Ms. Pooja,
ii) Ms. Mamta and
iii)Mr. Sunil
1/21
(i.,ii., and iii. are entitled to 1/63rd share each)

Son 2
Late Sh. Dharampal Chaddha
(1/7)
1. Mr. Ashwani
1/49th

2. Mr. Shristhi
1/49th

3. Ms. Parveen
1/49th

4. Ms. Parvesh
1/49th

5. Ms. Neelam
1/49th

6. Ms. Krishna
1/49th

7. Ms. Samishtha
1/49th

Son 3
Late Sh. Satya Pal Chaddha
(1/7)
a. Mr. Jagat Mohan
1/21

b. Ms. Parwesh
1/21

c. Ms. Pooran
1/21

Son 4
Late Sh. Sarve Mittar Chaddha
(1/7)
1. Mr. Sunil Kumar Chaddha(son)
1/21

2. Ms. Sweety(daughter)
1/21

3. Ms. Kitty(daughter)
1/21

Son 5
Late Mr. Rajinder Kumar (1/7)
1. Sandeep @ Bunty (son)
1/28

2. Smt. Anita Arora (daughter)
1/28

3. Smt. Sunita Malhotra(daughter)
1/28

4. Ranjana(daughter)
1/28

Daughter 1
Late Smt. Sashi Anand
(1/7)
1. Ms. Anju Bohra (daughter)
1/14th

2. Mr. Sanjay Anand Bohra (son)
1/14th

Daughter 2
Late Smt. Savitri Sethi
(1/7)
1. Mr. Baldev Sethi (son)
1/21

2. Mr. Ashok Sethi (son)
1/21

3. Mr. Ashwani Kumar Sethi (son)
1/21

26. It is, therefore, held that all the legal heirs of Late Sh. Dasmal Chaddha would be entitled to the shares as under:-
S.No
Name
Share
1.
Mr.Anil Kumar Chaddha/ Defendant No.1
84/1764
2.
Smt. Madhu Papreja/plaintiff
84/1764
3.
Ms. Pooja/ defendant No.2

28/1764
4.
Ms. Mamta/ defendant No.3
28/1764
5.
Mr. Sunil/ defendant No.4

28/1764
6.
Mr. Ashwani/ defendant No.5
36/1764
7.
Mr. Shristhi/ defendant No.6
36/1764
8.
Ms. Parveen/ defendant No.9
36/1764
9.
Ms. Parvesh/ defendant No.7
36/1764
10.
Ms. Neelam/ defendant No.8
36/1764
11.
Ms. Krishna/ defendant No.10
36/1764
12.
Ms. Samishtha / defendant No.11
36/1764
13. *
Mr. Jagat Mohan / defendant No.12
84/1764
14.
Ms. Parwesh/ defendant No.14
84/1764
15.
Ms. Pooran/ defendant No.13
84/1764
16.
Mr. Sunil Kumar Chaddha/ defendant No.15
84/1764
17.
Ms. Sweety/ defendant No.16
84/1764
18.
Ms. Kitty/ defendant No.17
84/1764
19.
Sandeep @ Bunty / defendant No.18
63/1764
20.
Smt. Anita Arora/ defendant No.19
63/1764
21.
Smt. Sunita Malhotra/ defendant No.20
63/1764
22.
Ranjana / defendant No.21
63/1764
23.
Ms. Anju Bohra/ defendant No.23
126/1764
24.
Mr. Sanjay Anand Bohra/ defendant No.22
126/1764
25.
Mr. Baldev Sethi/ defendant No.24
84/1764
26.
Mr. Ashok Sethi/ defendant No.25
84/1764
27.
Mr. Ashwani Kumar Sethi/ defendant No.26
84/1764

27. * Defendant No. 12/Mr. Jagat Mohan s/o Sh. Satya Pal Chaddha has propagated a Will dated 12.12.1993 to which his sisters have given a No Objection in respect of the Will and he has become the sole owner of properties held by his father to which there is no contest by his sisters. Therefore, the share of Mr. Mohan is defined as 1/7th (252/1764).
Relief:-
28. In light of the above observations, the suit for Partition is allowed and the share of the parties are hereby determined as stated above.
29. The decree for Permanent Injunction in favour of the plaintiff and against the defendants, thereby restraining the defendants, their legal heirs, relatives, associates, agents, employees, friends or any other person at their instance from creating any kind of third party interest in respect of the suit property is allowed.
30. Parties to bear their own costs.
31. Be listed for exploring the mode of partition on 15.02.2024.

(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 6, 2024/RS

CS(OS)179/2018 Page 1 of 12