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2008 DIGILAW 978 (DEL)

Dewan Kaur v. Savitri Devi

2008-10-20

A.K.SIKRI, MANMOHAN SINGH

body2008
MANMOHAN SINGH, J. 1. This Regular First Appeal has been filed by Smt. Dewan Kaur and her son Sh. Om Prakash, the Appellants ( who were defendants No.2 and 4 in the trial court) against the judgment and preliminary decree dated 12th September 2001 in Suit No. 351/90 passed by the Additional District Judge, Delhi, in a suit for partition and possession of the suit property bearing No. 29, Chirag Delhi, New Delhi, (hereinafter referred to as the “suit property”) filed against the Appellants impleading her mother Smt. Parwati Devi (defendant no. 1 in the suit) and her other sister Smt. Bharpai who is respondent No.2 (defendant No.3 in the suit). .2. The learned trial court by the said judgment and decree has held that the Appellant No.1 and Respondents No.1 and 2 have each 1/3rd undivided share in the suit property and passed a preliminary decree appointing a Local commissioner for suggesting the ways and means of partitioning the property by metes and bounds. 3. The brief facts are that the Appellant No.1 and Respondents are real sisters who were all daughters of Late Sh. Shiv Chand. The suit property in dispute belonged to great grand father of the parties Sh. Raj Mal. 4. After his death the suit property devolved upon his two sons. Sh. Ram Singh inherited “ share and after his death to his 5 sons including Sh. Shiv chand, who inherited 1/10th share each in the said property and after the death of Sh. Shiv Chand his three daughters and widow Smt. Parwati Devi inherited 1/4th share each in the suit property. 5. During the pendency of the suit, Smt. Parvati Devi who was defendant no. 1 in the suit died on 1st August, 1996. 6. In the written statement filed by the Appellant No.1 before the trial court she mainly raised the defence that the suit property was a trust property and Sh. Raj Mal had only the right of residence and he was not the owner thereof and further that the sons of Appellant No.1 with the help of their father raised the construction of 6 rooms on the vacant land i.e. two rooms on the ground floor and two rooms on the first floor and two rooms over the three rooms existing on the ground floor owned by Sh. Shiv Chand and they spent Rs. 2 lakhs on the construction. 7. Shiv Chand and they spent Rs. 2 lakhs on the construction. 7. In other words, they claimed that Sh. Shiv chand had only 3 rooms which could be partitioned between the parties and other rooms had been built by them to which other daughters had no right to claim partition. 8. In the replication it was stated that whatever construction was done by them the same was done by the three sisters and no construction had been raised in the property by the sons of Appellant No.1. The respondent No.2 Smt. Bharpai, the other sister of Appellant No.1 and Respondent No.1, has supported the claim of Respondent No.1 in the written statement and claimed her share in the property. .9. On the pleadings of the parties, the following issues were framed on 22nd February 1991:- 1. Whether the suit property is an ancestral property of the parties and the plaintiff is entitled to partition therein as alleged, if so, to .what extent ? OPP 2. Whether the plaintiff is entitled to a decree for partition as claimed ? OPP 3. Whether the suit has been properly valued for the purposes of court fees and jurisdiction, if not, what is the proper valuation and for what purposes ? Onus on the parties. 4. Whether there is no cause of action for the suit as alleged, if so, to what effect ? OPD. 5. Relief. 10. The plaintiff/Respondent No.1 examined her husband/attorney Sh. Ishwar Singh as PW-1 and her son Sh. B.S.Sherawat, as PW-2 who is the cousin brother of the parties. 11. On the other hand the Appellant No.1/Defendant No.2 examined herself as DW-1, her son Sh. Om Prakash as DW-3, her husband Sh. Ishwar Singh as DW-4 and one Sh. Baldev Singh, as DW-2. Sh. Baldev Singh, DW-2 could not be tendered for cross-examination and, therefore, his statement was not taken into consideration by the learned trial court. 12. That during the pendency of the suit Smt. Parwati Devi, the mother of the parties who was defendant No.1 in the trial court, died on 1st August 1996 and on an application for substitution her entire share in the property devolved upon all the three daughters who were already parties to the present suit but Sh. Om Prakash, appellant no. That during the pendency of the suit Smt. Parwati Devi, the mother of the parties who was defendant No.1 in the trial court, died on 1st August 1996 and on an application for substitution her entire share in the property devolved upon all the three daughters who were already parties to the present suit but Sh. Om Prakash, appellant no. 2 and son of the Appellant No.1 filed an application under Order 22 and Order 1 Rule 10 CPC alleging therein that the Will dated 20th March 1986 has been executed by Smt. Parwati Devi in his favour bequeathing her property in his name. 13. It is pertinent to mention here that as per the pleadings, the suit was filed on 22nd March 1990. The written statement on behalf of defendant No.1 and 2 i.e. Smt. Parwati Devi and the present Appellant no. 1 was filed on 6th November 1990. The alleged Will of Sh. Om Prakash, son of Appellant No.1 is dated 20th March 1986 and it is also not in dispute that the said Will was not pleaded in the written statement filed by the Appellant No.1. Further in the examination-in-chief of the Appellant No.1 there is no whisper about the said Will nor her husband Ishwar Singh who was examined as DW-4 before the trial court mentioned about the same. .14. Other fact of the matter is that when the application under Order 22 Rule 1 and section 10 CPC was allowed and Sh. Om Prakash was impleaded as defendant No.4 in the matter, he was directed to file the written statement to the suit vide order dated 19th November 1997. However, Sh. Om Prakash, defendant No.4/Appellant No.2 in this appeal instead of filing the fresh .written statement adopted the written statement filed by Appellant No.1, i.e. his mother. The statement in this respect was recorded by the trial court vide order dated 4th August 1999. 15. In view of the above, since the said Will does not find mention anywhere in the pleadings and Sh. Om Prakash himself has relied upon the written statement filed by Appellant No.1, his mother, no issue was framed regarding that will, which is not pleaded or proved and cannot be considered or looked into in the present appeal. 16. While dealing with issue no. Om Prakash himself has relied upon the written statement filed by Appellant No.1, his mother, no issue was framed regarding that will, which is not pleaded or proved and cannot be considered or looked into in the present appeal. 16. While dealing with issue no. 3, the learned trial court held that when the suit was filed, the plaintiff claimed 1/4th share of the suit property and valued the suit at Rs. 50,000/-. PW-1 and PW-2 have stated on oath in this regard and there is no cross examination on this aspect by the Appellant and even no evidence has been allowed on this issue by the Appellants. While deciding the said issue the learned trial court has held that the value of the suit property was Rs. 2 lakhs on the date of filing of the suit and the value of the 1/3rd share claimed comes to Rs.66,670/- and the plaintiff was directed to furnish court fee on the said amount when the actual partition is effected, if any, by metes and bounds. 17. The said issue was also argued in this appeal before the Division Bench by the learned counsel for the parties and by order dated 14th August 2007 the said issue was decided in favour of the respondent. The operative portion of the said order is reproduced herein below: “Learned counsel for the appellant submits that prior to judgment being given on 12.09.2001, the appellant did not have any opportunity for raising this issue for the reason that the change in pecuniary jurisdiction of the Court below came about after framing of issues. Mr. Chadha, learned senior counsel appearing on behalf of the respondent has drawn our attention to sub-section (1) of Section 21 of CPC which enjoins that objections as to the place of suing should be taken in the court of first instance at the earliest possible opportunity. Sub-section (2) prohibits raising of a jurisdiction with reference to pecuniary limits before the appellant or revisional court unless such objections had been taken in the court of first instance at the earliest opportunity. This has not been observed by the appellant. It was open to the appellant to raise this objection regarding pecuniary jurisdiction even after the framing of issues, but he chose not to do so. This has not been observed by the appellant. It was open to the appellant to raise this objection regarding pecuniary jurisdiction even after the framing of issues, but he chose not to do so. Rather the objection raised by the appellant in his written statement could not have pertained to the objection to pecuniary jurisdiction of the Court which is now being pressed for the reason that the change in the Court’s pecuniary jurisdiction upon which this objection is based, came about only after the issues had been framed. We find merit in this plea of the respondent. In our view it is not open to the appellant to raise this objection as the same is belated. Reference may also be made to the judgment of the Supreme Court in 2005 Vol (7) SCC 791 and 2007 (2) SCC page 355 and AIR 1986 Delhi 293. Even though it may be said in the defence of the appellant that at the stage of filing of the written statement there had been no change in the pecuniary jurisdiction, however, it was open to the appellant to take that objection from 1993 onwards till the date of judgment before the court by seeking framing of additional issues and drawing attention of the court that it has ceased to have jurisdiction, and the case ought to be transferred to the court of civil judge. We, therefore, find no merit in this objection.? 18. In order to prove issue nos. 1, 2 and 4, the parties have examined various witnesses. PW-1 and PW-2 have admitted on oath that the property No. 29, Chirag Delhi, New Delhi, was owned by Sh.Raj Mal and is an ancestral property which was inherited by Sh. Shiv Chand to the extent of 1/10th share and both of them have stated that the property belongs to Sh. Shiv Chand and has been shown in red colour in the site plan Ex. PW-1/2. There is no cross examination on the correctness of the said site plan coupled with the fact that no cross examination was conducted of PW-2 Sh. B.S.Sherawat that six rooms were constructed by the sons of Appellant No.1. 19. On the other hand the Appellant No.1 and 2 as DW-1 and DW-3 and the husband of Appellant No.1 as DW-4 admitted in their evidence that the property was owned by Sh. Raj Mal and inherited by Sh. B.S.Sherawat that six rooms were constructed by the sons of Appellant No.1. 19. On the other hand the Appellant No.1 and 2 as DW-1 and DW-3 and the husband of Appellant No.1 as DW-4 admitted in their evidence that the property was owned by Sh. Raj Mal and inherited by Sh. Shiv Chand from him. The statement of PW-2 Sh.B.S.Sherawat, the real cousin brother of the parties has gone unchallenged on the aspect of ownership as well as the extent of property i.e. consisting of 9 rooms as shown in the site plan Ex. PW-1/2 who was disinterested and impartial witness. 20. While considering the evidence of the appellants, the trial court did not accept the version of the appellants and rather observed that the statements of DW-1 to DW-4 are full of contradictions and the entire evidence so produced was beyond the pleadings. The husband and son of Appellant No.1 even have not supported the case of Appellant No.1 as per their statement and, therefore, their testimony has been rightly discarded by the learned trial court in its judgment. .21. The learned trial court has observed that the appellant No.1 pleaded that six rooms were constructed by her sons and have spent a sum of Rs. 2 lakhs as financial assistance from their father as pleaded in Para 5 of the written statement but in her evidence she stated contrary to the abovesaid defence. She deposed that she and her husband constructed two rooms on the vacant land. Sh. Om Prakash, husband of the Appellant No.1 has admitted that Sh. Raj Mal was the owner of the property and that the said property was partitioned between Ram Singh and Nihal Singh. He has further stated in his evidence that the two rooms were constructed in the year 1985 and other two rooms on the first floor were constructed in the year 1986 by husband of appellant No.1 from his own funds. Sh. Ishwar Singh deposing as DW-4 has stated that the two rooms out of 4 rooms were constructed in 1986 and he spent Rs.1,25,000/- and other two rooms were constructed in the year 1988 and Rs. 1,25,000/- were spent on the construction. 22. Sh. Ishwar Singh deposing as DW-4 has stated that the two rooms out of 4 rooms were constructed in 1986 and he spent Rs.1,25,000/- and other two rooms were constructed in the year 1988 and Rs. 1,25,000/- were spent on the construction. 22. Learned senior counsel for the respondents has argued that as per well settled law, if a co-sharer makes any improvement or addition to the property in dispute he cannot claim the same belonging exclusively to him or claim any compensation from the other co-sharer. In this regard, the learned senior counsel has cited AIR 1957 Madras Page 86 and AIR 1983 Karnataka Page 14 which has also been discussed by the learned trial court in the impugned judgment. In view of the above, we consider that the appellants cannot claim any benefit of the same and the entire property is to be partitioned between the appellant no. 1 and the respondents. 23. The other aspect of the matter is that during the pendency of the suit Smt. Parwati Devi, mother of the parties died on 1st August 1996 although, when the suit was filed 1/4th share each was claimed. After the death of Smt. Parwati Devi her share devolved upon her three daughters. The claim of Sh. Om Parkash, Appellant No.2 in the present appeal on the basis of alleged Will was neither pleaded nor proved by him and once the said claim from Sh. Om Prakash failed then there was no dispute left that after the death of Smt. Parwati Devi, mother of the parties, her three daughters inherited 1/3rd share each in the suit property. .24. Learned Senior counsel for the respondents has argued that as per well settled law, the court has ample power to mould the relief while passing the preliminary decree as argued by learned counsel for the respondent. Learned counsel for the respondent has relied upon the decisions reported in AIR 1967 SC 1470 para 7 page 1473 and AIR 1989 Calcutta 159 in this regard where the courts have held that the court during the pendency of the suit and before passing the final decree, if there is any variation or addition in the .shares of the parties on account of death or otherwise, has ample power under the law to modify the share in the property and there is no bar in doing so. 25. 25. In view of the abovesaid discussion and facts and circumstances of the present matter, we are of the opinion that there is no force in the appeal filed by the appellants and the judgment and decree passed by the learned trial court is correct in law and the present appeal is, therefore, dismissed with costs.