Full Text
HIGH COURT OF DELHI
Date of Decision: 20th May, 2024
SH SANJEEV SONI AND ANR. ..... Plaintiffs
Through: Mr Sanjeev Soni and Mr. Mandeep Singh, Advocates
9873811588)
Through: Mr. Shiven Khurana, Mr. Manjit Singh and Ms. Arshia Dhingra, Advocates for D-2A and 2B. (M:
9958981505)
Ms. Nivedita Grover, Adv. for D-3.
(M: 9810531567)
Ms. Mercy Hussain, Mr. Siddharath Sikri, Ms. Kirti Singh, Mr. Ishan Semwal & Mr. Prakash Chand Tamta, Advs. for D-6
JUDGMENT
1. This hearing has been done through hybrid mode. I.A.13140/2023 (u/O XII Rule 6 CPC)
2. This is a suit for partition filed by the Plaintiffs - Mr. Sanjeev Soni and Mr. Sandeep Soni, both sons of Late Naval Kishore Soni seeking partition of the property bearing No. 33, also known as No.6911, known as Bungalow Road, Kamla Nagar, Northern City, Extension Scheme No.1, Delhi-110007. The property was originally belonging to Smt. Phool Wanti Soni, who is the grandmother of the Plaintiffs. She and her husband-Late Dewan Permanand Soni had three sons and three daughters. The property was purchased on 13th March, 1950 from the then municipal committee in the name of Smt. Phool Wanti Soni. A double storey house has been constructed on the said property and the house tax etc. have been assessed on the said property as well.
3. The names of the three sons and three daughters are as under:
1. Late Mr. Raj Kumar Soni,
2. Late Mr. Narinder Kumar Soni and
3. Late Mr. Nawal Kishore Soni,
4. Late Smt. Santosh Palta,
5. Smt. Kamla Kapur and
6. Smt. Rama Kohli.
4. Various parties, who belong to the different branches of the family are as under:
1. Late Mr. Nawal Kishore Soni - Mr. Sanjay Soni – son – Defendant No.15 - Mr. Sanjeev Soni – son – Plaintiff No.1 - Mr. Sandeep Soni – son – Plaintiff No.2
2. Smt. Kamla Kapur – Defendant No.1
3. Late Smt. Rama Kohli – Defendant No.2 - Mr. Neeraj Kohli – son – Defendant No. 2a - Smt. Arti Vinu Paul – daughter –Defendant No. 2b
4. Late Smt. Santosh Palta - Smt. Anita Mehta – daughter – Defendant No.3 - Smt. Meera Dhingra – daughter – Defendant No.4 -Mr. Deepak Palta – son – Defendant No.5
5. Late Mr. Raj Kumar Soni - Mr. Raman Kumar Soni -son – Defendant No. 6
6. Late Mr. Narinder Kumar Soni - Smt. Sushma Dham – daughter – Defendant No.7 - Smt. Roopa Chawla – daughter – Defendant No.8 - Mr. Prem Kumar Soni – son – Defendant No. 12 - Smt. Usha Kumar – daughter – Defendant No. 13 - Smt. Vandana – daughter – Defendant No. 14
7. - Mr. Daman Kumar Soni - son (deceased) -Smt. Indu Soni – Wife - Defendant No.9 -Ms. Neha Soni - Daughter -Defendant No.10 -Sh. Nitin Soni – son - Defendant No.11
5. In the suit, most of the aspects are admitted and hence a preliminary decree is sought. There are only a couple of issues to be resolved. One of the issues is that Defendant No.1- Smt. Kamla Kapoor and Defendant No.2- Smt. Rama Kohli are stated to have executed a relinquishment deed dated 24th October, 2017 registered on 1st November, 2017 giving up 1/3rd of 1/6th share, to the Plaintiffs-Sh. Sanjeev Soni and Sh. Sandeep Soni, and Defendant No.15-Sh. Sanjay Soni who are the sons of Late Naval Kishore Soni as also in favour of Defendant No. 6- Mr. Raman Kumar Soni. However, Smt. Rama Kohli filed a petition under the Senior Citizens Act trying to raise a challenge to the relinquishment deed itself qua relinquishment made towards Defendant No.6 only. In this suit her written statement herein has been taken off the record as being belated, vide order dated 25th April, 2023, passed by the Joint Registrar. In the meantime, she has also passed away and she is currently survived by her son Mr. Neeraj Kohli and the daughter Mrs. Arti Vinu Paul. There is a challenge to the order dated 25th April, 2023 of the Joint Registrar by which the written statement was taken off the record. Defendant No.1 - Smt. Kamla Kapoor does not challenge the relinquishment deed. This Court is therefore of the opinion that the relinquishment deed would have to be taken as correct and even an oblique challenge to the same cannot be permitted as it is a registered relinquishment deed which is admitted by the other sister.
6. Insofar as Defendant Nos.1, 7, 8, 13, 14 & 15 i.e. Smt. Kamla Kapoor, Smt. Sushma Dham, Smt. Roopa Chawla, Smt. Usha Kumar, Smt. Vandana Mahrwa and Mr. Sanjay Soni respectively are concerned, all of them have no objection to the preliminary decree of partition being passed.
7. Defendant Nos.[9] to 12 namely Smt. Indu Soni, Ms. Neha Soni, Mr. Nitin Soni and Mr. Prem Kumar Soni have not filed their written statements, though the Defendant Nos.[9] & 10 is stated to have joined the mediation proceedings. However their rights as also Defendant No.11’s right to file the written statement were closed on 12th September, 2022 and 27th January,
2023.
8. Thus, the only issue that remains outstanding is in respect of the family and legal heirs of Late Smt. Santosh Palta. Late Smt. Santosh Palta have three children i.e., Defendant No.3- Smt. Anita Mehta, Defendant No.4- Smt. Meera Dhingra and Defendant No.5- Shri Deepak Palta, the son. Between the three legal heirs, there is a dispute, inasmuch as it is the case of Shri Deepak Palta that Smt. Santosh Palta, his mother had executed a Will dated 23rd June, 2011 as per which the entire share has now been vested with son Mr. Deepak Palta. However, this position is disputed by one of the sisters i.e., Defendant No.3-Smt. Anita Mehta. The other sister i.e., Defendant No.4- Smt. Meera Dhingra, supports her brother.
9. The question therefore is whether the inter se dispute between the family members/legal heirs of Smt. Santosh Palta i.e., Defendant Nos.3, 4 & 5, should hold up the passing of the preliminary decree in this matter. As can be seen from the memo of parties, there are a total number of 17 parties in this matter. They are all the legal heirs of the original owner namely Smt. Phool Wanti Soni. In such matters, delay in passing of the preliminary decree could also result in more members of the family being involved in the dispute leading to complications. Moreover, so many families cannot be left to live in a state of uncertainty because of disputes within only one branch of the family.
10. The only outstanding dispute being between the legal heirs of Late Smt. Santosh Palta, this Court is of the view that a preliminary decree deserves to be passed in the present suit, keeping the share of Late Smt. Santosh Palta and her children aside till the resolution of disputes amongst themselves. This course of action is objected to by Ms. Nivedita Grover, ld. Counsel for the Defendant No.3, who relies upon two decisions of the Supreme Court in 2022 SSC OnLine 737 titled Kattukandi Edathil Krishnan and Anr. v. Kattukandi Edathil Valsan and Others to argue that the Plaintiff has already determined the share of the Defendant No.3 and the decree, if any, should be passed in terms of thereof. The relevant portion of the said decision has been extracted below:
11. According to ld. Counsel an enquiry ought to be held so that there is a final adjudication and the parties, who are in dispute, are not left to deal with their own disputes independently, which may result in further delay for them. She also relies upon the decision in (2009) 9 SCC 689 titled Shub Karan Bubna v. Sita Saran Bubna to emphasise the purpose of preliminary and final decrees. The relevant portion of the said decision has been extracted below: “18.2. In regard to immovable properties (other than agricultural lands paying land revenue), that is, buildings, plots, etc. or movable properties:
(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds. ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an engineer, draughtsman, architect, or lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds. The function of making a partition or separation according to the rights declared by the preliminary decree (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.
18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.
20. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.
21. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds.”
12. On the other hand, ld. Counsel for the Plaintiffs relies upon the order dated 11th September, 2023 of the Supreme Court in A. Krishna Shenoy v. Ganga Devi G. & Ors. where the Supreme Court clearly observed that there can be multiple preliminary decrees that can be passed in a suit. The relevant portion of the said order has been extracted below:
dismissal of the application during the final hearing proceeding has got no bearing on the application filed seeking yet another preliminary decree. Both the Courts had rightly disbelieved the unregistered wills executed in favour of the petitioner ignoring the two daughters.”
13. On an overall conspectus of the matter, this Court is of the opinion that the property itself is quite valuable. There are clearly six branches in the family and their respective shares are almost admitted except the shares of Defendant Nos. 3 to 5 which is also in dispute only amongst them and not by the other Defendants. The share of each of the branches of the family would be broadly 1/6th. Thus, the share of the respective parties is now set out herein below: Parties Share Plaintiff No.1 - Mr. Sanjeev Soni 9.258% each 18.516% Plaintiff No.2 - Mr. Sandeep Soni Defendant No.1 - Smt. Kamla Kapoor 5.555% Defendant Nos. 2(a) - Mr. Neeraj Kohli 5.555% Defendant No.2(b) – Smt. Arti Vinu Paul Defendant No.3 - Smt. Anita Mehta 16.666% [each of the Defendant Nos. 3, 4 and 5 would thus be entitled to 5.55%. This shall Defendant No.4 - Smt. Meera Dhingra Defendant No.5 - Mr. Deepak Palta however be subject to the legality and validity of Will dated 23rd June,
2011. As per Defendant No.5, Defendant No.4 is agreed for the Will being recognized in his favour. Defendant No.6 - Mr. Raman Kumar Soni 27.76% Defendant No.7 - Smt.. Sushma Dham 2.77% Defendant No.8 - Smt. Roopa Chawla 2.77% Defendant No.9 - Smt. Indu Soni 0.925% 2.77% (together) Defendant No.10 - Smt. Neha Soni 0.925% Defendant No.11 - Mr. Nitin Soni 0.925% Defendant No.12 - Mr. Prem Kumar Soni 2.77% 16.666% (together for Defendant Nos. 7,8,12,13,&14) Defendant No.13 - Smt. Usha Kumar 2.77% Defendant No.14 - Smt. Vandana Mahrwa 2.77% Defendant No.15 - Mr. Sanjay Soni 9.258%
14. Except Defendant No.3 to 5, there is no dispute between any of the other parties. The nature of the property is such that, all parties are unanimous that the physical partition by metes and bounds would not be possible. It is also a 74 years old property. Accordingly, parties to appear before the Delhi High Court Mediation and Conciliation Centre. The Mediator shall explore inter se purchase by the parties and if the same is not possible and a Local Commissioner is to be appointed, then a report to that effect be put up.
15. Insofar as Defendant Nos.[3] to 5 are concerned, if the property is being sold, the entire share proceeds qua the shares of Defendant Nos. 3 to 5 i.e., 16.666% shall be deposited with the Registrar General of this Court. Preliminary decree be drawn up in the above terms.
16. Application is disposed of. CS(OS) 606/2021, I.As.15229/2021 (for stay), O.A.53/2023
17. In view of the preliminary decree passed above, the application for stay i.e., I.A.15229/2021 has also been disposed of. Written statement of Defendant No.2 is struck off.
18. List before the Delhi High Court Mediation and Conciliation Centre on 15th July, 2024, at 3:00 p.m.
19. List before the Court on 27th September, 2024.
20. In view of the preliminary decree which has been passed today, the original appeal i.e. O.A. 53/2023 is no longer of any consequence and is accordingly disposed of.
PRATHIBA M. SINGH JUDGE MAY 20, 2024/dk/ks