SMT. PHOOLWATI & ORS vs SHRI DEVINDER SINGH & ORS

$~17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th December, 2023
+ CS(OS) 657/2017 & I.A. 14547/2017
SMT. PHOOLWATI & ORS ….. Plaintiffs
Through: Appearance not given.
versus
SHRI DEVINDER SINGH & ORS ….. Defendants
Through: Mr. Pradeep Sehrawat & Mr. Umang Sharma, Advocates for D-1 to D-3 & D-6 to D-9.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)

I.A. 8954/2023 (u/S 151 of CPC)
1. The present Application under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) has been filed on behalf of the applicants/plaintiffs seeking direction that no further evidence is required to be adduced by the parties and the judgment may be pronounced in view of the Chapter IX Rule 6 of the Delhi High Court (Original Side) Rules, 2018 read with Section 151 of the CPC, 1908.
2. It is submitted in the present application that the applicants/plaintiffs have filed the Suit for Partition and Declaration against the non-applicants/defendants who are the legal heirs/legal representatives of Late Shri Lo Ram in respect of the suit properties owned by him during his lifetime and left behind on his demise.
3. The defendants in the Written Statement had denied the rights of the applicants/plaintiffs as Coparceners in the suit property on a plea of Oral Partition that had taken place in the year 1980, consequent to which, the Tehsildar (Vasant Vihar) vide order dated 18.02.2002 mutated the land bearing Khasra Nos. 509 and 462 situated in the Revenue Estate of Village Mahipalpur, National Capital Territory of Delhi in the name of the non-applicants/defendants. The applicants/plaintiffs filed an Appeal against the said order before the District Magistrate (New Delhi) who dismissed the same vide order dated 14.08.2017 on the ground that the applicants/plaintiffs (appellants therein) failed to establish their legal claim qua the land in question under Hindu Succession Act, 2005 and further held that the mutation order dated 18.02.2002 was passed in accordance with the law by the Tehsildar (Vasant Vihar). Aggrieved by the order dated 14.08.2017, applicants/plaintiffs filed an Appeal before the Financial Commissioner challenging the Order of Mutation which has been decided vide Order dated 06.04.2023, whereby the mutation made in the name of the non-applicant/defendants has been declared non-est.
4. An earlier Application bearing No. I.A. 8118/2020 was filed by the applicants/plaintiffs seeking similar reliefs as have been sought in the present application. However, the said application was dismissed vide Order dated 27.07.2022, essentially on the ground that the Appeal was pending before the Financial Commissioner and the evidence would have to be led by the parties on the issues framed by this Court on 25.11.2019. FAO (OS) 109/2022 was preferred by the applicants/plaintiffs against this Order dated 27.07.2022 before the Division Bench, but the same was also dismissed vide Order dated 31.03.2023. The matter is now pending at the stage of Plaintiff’s evidence.
5. It is submitted that since the mutation that was effected in the revenue records, has now been set aside by the Financial Commissioner vide Order dated 06.04.2023, the entire basis of declining the earlier application has ceased to exist. Now that the mutation has been set aside, no further evidence is required to be led and the matter be decided on the basis of the pleadings and the documents relied upon by the parties.
6. The reliance has been placed by the learned counsel for the applicants/plaintiffs on the decision in the case of Vineeta Sharma vs. Rakesh Shamra (2020) 9 SCC 1 to submit that a plea of oral partition based on oral evidence alone is not to be accepted and liable to be rejected outrightly. Oral partition can be proved in exceptional circumstances only if it has supporting evidence/documentary evidence.
7. The non-applicants/defendants are, therefore, not entitled to lead evidence on this aspect.
8. Non-applicant/defendant No. 6 has contested the the present application who has submitted that an oral partition had taken place in the year 1980 which had been acted upon by the parties and pursuant thereto, they are in possession of their respective portions as evidenced by the mutation which has been carried out in favour of the non-applicants/defendants. As the partition of the property has already taken place, this issue can be decided only after adducing evidence. Similar observations have already been made while decided the earlier application filed on behalf of the applicants/plaintiffs. The defendants are, therefore, entitled to lead evidence on this aspect. Further, there are other issues which have been raised by the defendants on which the evidence is required to be led.
9. Moreover, it is asserted that as the oral partition had taken place in the year 1980 i.e. before 20.12.2004, the property has ceased to be a coparcenary property and the applicants/plaintiffs cannot file the suit for partition of the property of which they have become absolute owner after the partition. The present application is without merit and is liable to be dismissed.
10. Submissions heard.
11. The plaintiffs have filed the present Suit for Partition and Declaration of being the co-owners along with the defendant Nos. 1 to 9 in respect of the suit properties.
12. As per the pleadings, Late Shri Lo Ram and Late Shri Manphool had inherited the properties from their father, Late Shri Nahar Singh. Late Shri Lo Ram died on 15.05.2001 and he was survived by his five sons, one of them being Shri Ram Chander who has also expired and the plaintiffs are the legal heirs/legal representatives of Late Shri Ram Chander.
13. The defendants are the legal heirs/legal representatives or the other siblings of Late Shri Ram Chander.
14. The applicants/plaintiffs have sought a Declaration of being the coparceners on the basis of the judgment passed in Vineeta Sharma (supra), wherein it is asserted that the daughters automatically become the coparceners in respect of the property inherited from their father after the amendment in Section 6 the Hindu Succession Act, 2005. However, the daughter would become coparceners and shall be entitled to succession in the properties of her father provided no partition by a registered document has taken place prior to the introduction of the amendment in the Hindu Succession Act, 2005.
15. Firstly, Section 6 of the Hindu Succession Act talks about the rights of devolution of interest in coparcenary property. There is not a single averment in the entire Plaint about the property being a coparcenary property. It may be inherited property from a common ancestor which may make it a joint property, but not coparcenary in nature.
16. Secondly, the non-applicants/defendants have taken a specific plea of their being an oral partition that had taken place in the year 1980, pursuant to which the shares were divided and all the parties are in possession of their respective shares.
17. To corroborate the factum of oral partition, a reference has been made to the mutation which has already been carried out in the revenue records. The Financial Commissioner, vide Order dated 06.04.2023 in the Appeal preferred by the applicants/plaintiffs, has set aside the mutation, but it is purely on the technical ground of Tehsildar not having the powers to do the mutation due to lack of jurisdiction after the urbanization of Village Mahipalpur, New Delhi vide Notification No. TCO/82/47/District South West, dated 23.04.1982 under Section 507(a) of the Act, 1957 whereby the provisions of Delhi Land Reforms Act, 1954 had ceased to apply to the subject property.
18. The mutation may have been set aside, but the mutation was relied upon by the applicants/plaintiffs only as a public document in support of the oral partition. The validity of the oral partition is not dependent on the mutation record, but the mutation record is a public document recording the factum of oral partition which is relevant evidence of the oral partition having been carried out way back in the year 1980. The objective of insistence of the oral partition being supported by a Document was to ensure that the bonafide right of girls is not defeated on the specious plea of oral partition being raised in every case.
19. In the earlier similar application of the defendants with similar prayer, it had been observed that mutation does not confer any legal right or title on the immovable property but it is a valid document which would have to be considered to arrive at a decision in regard to the plea of oral partition.
20. Though the mutation may have been declared non-est, but the factum of oral partition being effected way back in the year 1980 as reflected in the revenue records which are public documents, would not be wiped off. This Court in its detailed Order dated 27.07.2022 had categorically observed that the plea of oral partition which the non-applicants/defendants intend to substantiate through revenue records, cannot be adjudicated without leading of the evidence. The non-applicants/defendants by way of present application cannot be non-suited and prevented from adducing the evidence.
21. Similar grounds taken in the present application, have already been considered in detail in the earlier application and it has been observed that the defendants are entitled to a right to adduce evidence to prove their plea of oral partition and which order was upheld by the Division Bench of this Court vide Order dated 31.01.2023.
22. In view of above, there is no merit in the present application and the same is hereby dismissed.
CS(OS) 657/2017
23. List before the Joint Registrar for recording of evidence of the parties on 15.01.2024.
NEENA BANSAL KRISHNA
(JUDGE)
DECEMBER 18, 2023/S.Sharma

CS(OS) 657/2017 Page 6 of 6