SUNIL GUPTA Vs. NARGIS KHANNA

JUDGEMENT

(1.) The plaintiff, as per the amended plaint dated 20th February, 2013, has filed the present, suit for partition of property No.N-47, Panchsheel Park, New Delhi and for rendition of accounts and mesne profits thereof, pleading (i) that the plaintiff purchased 50% undivided unspecified share in the property from Prem Kumar Dewan, brother of the defendant, by way of a registered Agreement to Sell; though the said Agreement to Sell executed by Prem Kumar Dewan was in favour of the plaintiff and one Suneet Seth but the said Suneet Seth executed documents of transfer of his share in favour of the plaintiff, therefore the plaintiff has become the sole owner of undivided, unspecified 50% share in the said property; (ii) that the plaintiff is also in actual, physical, settled, peaceful possession of the entire second floor, entire terrace above the second floor, entire driveway adjoining property No.N-45 of the said property and is also in symbolic and proprietary possession of the remaining portions of the property to the extent of 50% share; (iii) that Jagan Gopal Dewan, father of Prem Kumar Dewan and the defendant, was the original owner of the property; he died on 27th April, 2001, leaving a validly executed last Will dated 9th December, 1972 whereunder he bequeathed the said property to his wife Amrit Kala Dewan; (iv) that Amrit Kala Dewan also died on 12th January, 2005 leaving a registered Will dated 6th October, 2004 bequeathing the property in favour of her son Prem Kumar Dewan and her daughter, the defendant herein; (v) that even otherwise, Prem Kumar Dewan and the defendant were the only Class I heirs under the Hindu Succession Act, 1956 of Amrit Kala Dewan; (vi) that by virtue of a Memorandum of Family Settlement dated 24th November, 2005, the said Prem Kumar Dewan and defendant agreed and settled that each of them would be the absolute owner of half undivided share in the property and decided to evict the tenants in the property and to jointly sell the property; (vii) that the defendant however did not cooperate with her brother Prem Kumar Dewan who got the tenant on the second floor vacated and took possession of the second floor and sold his 50% undivided share in the property as aforesaid to the plaintiff; (viii) that immediately after purchasing the 50% undivided share in the property, the plaintiff informed the defendant of the same and talks were being held between the plaintiff and the defendant for partition of the property, but the defendant suddenly instituted a suit under Section 44 of the Transfer of Property Act, 1882 against the plaintiff and which suit was being contested by the plaintiff contending that Section 44 of the Transfer of Property Act was not applicable since there was no joint family and the property was not a dwelling-house belonging to an undivided family; (ix) that the first floor of the property was under the tenancy of M/s WinMedicare Pvt. Ltd.; on expiry of the said tenancy, the plaintiff filed a suit for ejectment of the said tenant; the defendant also filed a suit for ejectment of the said tenant and in the suit filed by the defendant, a direction for payment of rent by the tenant to the defendant was made; that the plaintiff is also entitled to 50% of the amount paid by the tenant; (x) that the defendant was married long time back, during the lifetime of her father Jagan Gopal Dewan and was after her marriage no longer a part of the family of her father and was residing with her husband at various places in India and abroad and is not entitled to exercise any right under Section 44 of the Transfer of Property Act; (xi) that even otherwise, Prem Kumar Dewan and the defendant had acquired 50% undivided share each in the property, not as members of any joint family but under the Will of their mother; (xii) that after the demise of Jagan Gopal Dewan, his wife Amrit Kala Dewan alone was residing on the ground floor of the property and Prem Kumar Dewan was residing at Calcutta and the defendant was residing from time to time at Bombay/Calcutta/Madras; (xiii) that in the suit under Section 44 of the Transfer of Property Act filed by the defendant against the plaintiff, a decree on admissions was passed against the plaintiff; the plaintiff preferred RFA No.139/2011 against the said decree and which was allowed and SLP(C) No.26680/2011 preferred by the defendant was dismissed by the Supreme court on 16th October, 2012 and the suit remanded for trial.

(2.) The defendant contested the suit by filing a written statement, pleading (a) that the defendant and her brother Prem Kumar Dewan, under the Will of their mother Amrit Kala Dewan, have inherited 50% undivided share each in the property and became co-owners of the property and the property is indivisible, unspecified, undivided and jointly possessed by both of them; (b) that the plaintiff, though has no right to joint possession and enjoyment of the property with the defendant, claims to have been given possession of the second floor of the property in pursuance to the registered Agreement to Sell executed in his favour by Prem Kumar Dewan; (c) that the land underneath the property is leasehold and is governed by proviso to Sections 76(4) and 79(a) of the Delhi Cooperative Societies Act, 2003 and Section 3 of Government Grants Act, 1895 and a suit for partition thereof is not maintainable; (d) that moreover, the plaintiff has not acquired any ownership rights and has a mere Agreement to Sell in his favour and which does not constitute title to the property; (e) that Suneet Seth along with whom the plaintiff had entered into the Agreement to Sell with Prem Kumar Dewan is a necessary party to the present suit; (f) that the plaintiff is debarred by Section 44 of the Transfer of Property Act from joint possession and ownership of the property along with the defendant and is in illegal possession of the second floor of the property; (g) denying that there were any talks between the plaintiff and the defendant for partition of the property; (h) that the defendant, in this suit has filed an application under Section 4 of the Partition Act, 1893 and as such the plaintiff is not entitled to any decree for partition.

(3.) The defendant has filed IA No.17463/2013 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint on the grounds of (i) the suit being barred by proviso to Sections 76(4) and 79(a) of the Delhi Cooperative Societies Act and Section 3 of the Government Grants Act; (ii) the suit being bad for non-joinder of Suneet Seth; and, (iii) the plaintiff having only a registered Agreement to purchase 50% undivided share in the property in his favour and not having a Sale Deed in his favour.