Desh Raj v. Vidya Devi & Ors.

1. Shri Mohan Lal had purchased the property bearing no.16/493-H, Street No.15, Hardhyan Singh Road, Bapa Nagar, New Delhi in the year

1966. He left for his heavenly abode on 10th September, 1988. He died intestate. He had six legal heirs namely Smt. Vidya Devi, Shri Desh Raj, Smt. Kamla Devi, Smt. Bimla Devi, Smt. Nirmla Devi and Smt. Phool Wati. His other legal heirs including his widow and two sons, namely Shri Daya Kishan and Shri Bhaskar had passed away by the time of the filing of the suit.

2. A suit came to be filed being CS No.614375/2016 (old No.331/2015) was filed by one of the daughters namely Smt. Vidya Devi seeking her share in the suit property. This was the second suit in respect of the same property. An earlier suit bearing Suit No.285/2003 was filed by the 2018:DHC:252 Appellant/Defendant No.1 (hereinafter, ‘Defendant’) against two of his sisters, namely Smt. Nirmala and Smt. Kamla, seeking possession, damages, declaration and injunction, on the ground that as per an oral settlement between the family members he was the exclusive owner of the entire 50 sq. yds. of the suit property. This suit was dismissed on 1st July, 2005 wherein it was held that all the five sisters of the Defendant have 1/6th share in the suit property.

3. The allegations in the present suit were that out of the 50 sq. yds property, 25 sq. yds came to be sold away by the Defendant, in connivance with two sisters. The Defendant relied upon the General Power of Attorney and Special Power of Attorney in his favour executed on 9th November, 1998 which, however, was not accepted by the Trial court.

4. The learned Trial court relied on the order dated 1st July, 2005 passed in the earlier suit and held that since it was already decided that each of the parties had 1/6th share, the Plaintiff Smt. Vidya Devi is entitled to preliminary decree for her 1/6th share. The issues that were framed in the suit were as under: “1. Whether the plaint is liable to be rejected for want of cause of action? OPD

2. Whether the suit is barred in view of Section 115 of Evidence Act? OPD

3. Whether the suit is barred by limitation? OPD

4. Whether the plaintiff is entitled for preliminary decree for partition in respect of the suit property? OPP

5. Whether the plaintiff is entitled for decree for rendition of accounts? OPP

6. Relief. ”

5. On issue Nos.[1] & 4, the Trial court held that the Plaintiff is entitled to a preliminary decree of 1/6th share. On issue No. 2, the Trial Court held that the suit is not barred by Section 115 of the Indian Evidence Act, 1872. On issue No. 3, the Trial Court held that the suit is not bared by limitation. On issue no. 5, the Trial Court passed an order for rendition of accounts of all the profits earned by the Defendant i.e., the Appellant herein, in respect of the suit property. One of the fundamental grounds of challenge is that the decree has been passed by the Trial court without considering the evidence adduced in the suit. Appellant/Defendant’s case

6. It is the case of the Defendant that subsequent to the judgment passed in the earlier suit, the Defendant had settled the entire dispute with his sisters and had paid them monetary sums in order to buy peace in the family. This was sought to be proved by way of two affidavits filed by one sister Smt. Phool Wati (DW[3]) who stated in her cross-examination that she does not claim any share in the property and that the shares of her sisters were paid off by the Defendant during the Diwali festival in 2005 i.e. subsequent to 1st July, 2005, when the decree in the earlier suit was passed. The crossexamination of Smt. Phool Wati is extracted below: “I have only stated that I do not want any share in the property. It is wrong to suggest that the plaintiff have share in the suit property. Vol. She was given her share in my presence. I do not remember the date or month but it near Diwali in the year 2005. No writing had obtained from plaintiff. The plaintiff was alone when she was given her share. I do not remember whether the plaintiff was informed in advance that she will be paid her share on a particular date.”

7. The second evidence led by the Defendant is of Smt. Pushpa, who is a cousin sister of the Plaintiff and the Defendant. She submitted in her affidavit that in the last part of 2005, two floors constructed above the shops in half portion of the property, namely, 25 sq. yd. were sold away in order to settle the shares of all the sisters of the Appellant/Defendant. The averments in Smt. Pushpa’s affidavit are as under: “That I say that after that in last quarter months of 2005, on demand of plaintiff and one other LRs namely Kamla two floors of half portion was disposed off and shares of the plaintiff and Smt. Kamla was given to them that was Rs.[2] lacs after deduction of litigation charges. The plaintiff has received Rs.[2] lacs from the defendant no.1 against her share in the property left by her father, in presence of the deponent. The plaintiff had not acknowledged the said amount with pretext that she had already executed document in favour of the defendant no.1. ”

8. In her cross-examination, Smt. Pushpa states as under: “I am aware that all the three sisters have been given share as the same told to me by my parents. The defendant no.1 was giving money to the plaintiff when I reached the house of the defendant no.1. It was near Diwali. No writing was done in my presence. My mother and my Bhabhi was the only person present at that time when the money was given. (Again said) Phoowati was also present there. Phoolwati had refused to take any money. When money was given to Vidya Devi that time Kamala was not present but Phoolwati was present.”

9. It is the Defendant’s submission that the learned Trial court has solely relied on the earlier decree dated 1st July, 2005 and has completely ignored the evidence of events which transpired post the said judgment. The counsel for the Plaintiff submits that the Plaintiff did not have good relations with Smt. Phool Wati, which is evident from her affidavit where she categorically accepts that she had not even attended the wedding. Relevant part of the cross-examination of Smt. Phool Wati is set out below: “I am no speaking terms with the plaintiff for the last many years. It is correct that I attended the marriage of only one daughter of the plaintiff namely Anita and I did not attend the marriage of any of the children of the plaintiff. I had attended the cremation of the husband of the plaintiff but I do not remember when the husband of the plaintiff has died.” Respondents/Plaintiffs’ case