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2015 DIGILAW 2705 (DEL)

Anu v. Suresh Verma

2015-12-17

VALMIKI J.MEHTA

body2015
Judgment Valmiki J. Mehta, J. 1. On 16.04.2015 issues were framed in this suit for partition. Issue nos.4 and 5 which were framed on 16.04.2015 read as under:- “(4) Whether the properties bearing Nos.(i) G-20, South Extension Market, Part-I, New Delhi (ii) X-62-69, Raghubarpura, Gandhi Nagar, Delhi and (iii) J-6, Ground Floor, Jyoti Nagar (West) Delhi-110094 cannot be the subject matter of a partition suit since it is barred by Section 4 of the Benami Transaction (Prohibition) Act, 1988? OPD-1 & OPD-2 (5) Whether the properties mentioned in para 5 of the amended written statements of defendant Nos.1 & 2 be also partitioned between the parties to the present suit? If yes, in what share(s) to each of the parties to the present suit? OPD-1 & OPD-2” 2. These two issues were to be treated as preliminary issues as per the order dated 16.04.2015. 3. Actually the issues in question may not strictly be preliminary issues in terms of Order XIV Rule 2 of the Code of Civil Procedure, 1908 (CPC) and the relevant question which arises is that as per the facts arising from the pleadings on record and documents filed by the parties, whether at all these issues would arise or need not be framed. 4. At the outset it is to be noted that the suit plaint in essence is a simple suit plaint that the plaintiff is a legal heir of her parents, Sh. Om Prakash Verma and Smt. Chandra Wati, and partition is claimed of the suit properties on the ground that the properties belonged to Sh. Om Prakash Verma and/or Smt. Chandra Wati. Parents are alleged to have died intestate in the years 1979 and 1997, respectively. 5. In a suit claiming partition on the ground that the plaintiff is a legal heir of the parents and that either of the parents owned a property of which partition is claimed, it is also necessary to state as to how and by which title deed the parent(s) became owner(s) of the suit properties for the plaintiff to be a legal heir to inherit such properties on the parents dying intestate. The plaint is silent as to how the parents of the plaintiff became/were the owners of the properties mentioned in issue no.4. 6. The plaint is silent as to how the parents of the plaintiff became/were the owners of the properties mentioned in issue no.4. 6. In law there is a difference between making of the material averments of a cause of action and making some of the averments. A plaint merely stating that one of the parents is the owner of the properties of which partition is sought, is not enough, once there are no averments made in the plaint as to by which title deed the properties were in the name of either of the parents and how the parents continued to be the owners till his/her death. The ownership of the property will necessarily be only of the title holder in whose name originally the title deeds of the property or properties exist. It is for this purpose that the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as ‘the Benami Act’) was passed by the legislature and any right to a property which is claimed by a person is barred unless the case falls within the exceptions of the property being either an HUF property or the property being purchased in trust, and none of which two aspects are averred by the plaintiff in the present suit plaint. 7. Really, therefore, the suit with respect to the three properties mentioned in issue no.4 would be barred by the Benami Act inasmuch as not only plaintiff has made no averments with respect to under which title deed either of the parents owned the properties stated in issue no.4 and also the plaintiff has not filed the documents to show that the title deeds of the properties mentioned in issue no.4 were of either of the parents of the plaintiff. On the contrary and in fact the defendants have filed copies of the title deeds of the properties that the properties referred to in issue no.4 are either in the name of the defendants or in the name of persons who are in fact not even parties to the suit viz qua the property no.J-6, Jyoti Nagar (West), Delhi-110 094. 8. 8. Issue no.5 was framed as counter blast to issue no.4 and counsels for the defendants concede that if issue no.4 is deleted as not being required to be framed in view of the pleadings and documents of the parties, issue no.5 which has been framed, and which is for the benefit of the defendants, will also go. 9. Accordingly, since there are no material averments of a cause of action in the plaint as to by which title document the parents of the plaintiff being Sh. Om Prakash Verma and Smt. Chandra Wati became and continued to be the owners of the three properties mentioned in issue no.4, and the fact that the defendants have filed the documents to show that the properties were not in the names of parents of the plaintiff i.e. owned by the parents of the plaintiff, accordingly, issue no.4 is directed to be deleted and the suit with respect to the suit properties mentioned in para 4 of the plaint will be liable to be dismissed as per Section 4 of the Benami Act. Ordered accordingly. 10. At this stage, counsel for the plaintiff states that the first property mentioned in issue no.4 i.e G-20, South Ext. Market, Part-I, New Delhi-110049 was on tenancy under the Delhi Rent Control Act, 1958 of the father Sh.Om Prakash Verma, and this property has been subsequently purchased by the defendant nos.1 and 2, and which position is disputed by defendant nos.1 and 2. Since, claiming of the tenancy rights as a co-tenant of the tenancy rights on the ground of devolvement of the tenancy rights of the property no.G-20, South Ext. Market, Part-I, New Delhi-110049 on the death of Sh. Om Prakash Verma who as alleged was the tenant under the Delhi Rent Control Act of this property, this suit is permitted to be withdrawn with liberty to the plaintiff to file a suit in accordance with law for claiming rights accordingly in the property no. G-20, South Ext. Market, Part-I, New Delhi-110049 on the basis that the father of the parties was a tenant of this property under the Delhi Rent Control Act. 11. In view of the aforesaid discussion, issue nos.4 and 5 will both stand deleted, with a liberty granted to the plaintiff to file a suit in accordance with law with respect to the property no. G-20, South Ext. Market, Part-I, New Delhi-110049. 11. In view of the aforesaid discussion, issue nos.4 and 5 will both stand deleted, with a liberty granted to the plaintiff to file a suit in accordance with law with respect to the property no. G-20, South Ext. Market, Part-I, New Delhi-110049. 12. Once the suit properties as mentioned in issue nos.4 and 5 are no longer within the purview of the present suit, interim orders passed with respect to these properties will stand vacated. 13. Order dated 16.04.2015 of framing of preliminary issue nos.4 and 5 would be decided accordingly. 14. List before the Joint Registrar for fixing dates of trial on 18th February, 2016. Parties will file their list of witnesses positively within a period of six weeks from today. I.A. No.17977/2011 (by plaintiff u/O XII R 6 CPC) 15. This application is disposed of as not pressed with liberty to the plaintiff to urge all issues, including as stated in this application, at the stage of final arguments. I.A. stands disposed of accordingly. I.A. No.17049/2010 (Stay) 16. This application is disposed of by confirming the interim order dated 12.07.2011 except the properties which are subject matter of issue nos.4 and 5 which have been deleted. 17. With respect to 1/6th share of the income being received by the defendants of the properties, which at any stage were owned by the parents of the plaintiff, the defendants besides keeping 1/6th share of the rent received separately subject to the final decision of the suit, the concerned defendants will also file every year a statement of account in Court with respect to the amounts which are and have been kept separately by the defendants. The amounts when kept separately obviously would mean the amounts will be kept separately in a specific bank account or with any other financial institution. It is also agreed between the respective counsels that the 1/6th share of the rent amount which is being received by either of the defendants will be kept in a fixed deposit. 18. Nothing contained in this order is a reflection on the merits of the cases of either of the parties. I.A. stands disposed of.