SAURABH SHARMA Vs. OM WATI & ORS

JUDGEMENT

(1.) The plaintiff has instituted this suit for partition of property No.500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi, claiming 1/16th share therein, pleading (i) that the paternal grandfather of the plaintiff namely Sunder Lal Sharma was taken in adoption by his aunt (chachi) namely Basanti Devi as she had no issue from her marriage; Basanti Devi thus became the adoptive mother of Sunder Lal Sharma; (ii) that Basanti Devi in the year 1966 executed a General Power of Attorney (GPA) in favour of Sunder Lal Sharma in respect of all her properties; (iii) that Basanti Devi died in the year 1985-1986 and Sunder Lal Sharma, paternal grandfather of the plaintiff, became the owner of all the properties of his adoptive mother Basanti Devi; (iv) that Sunder Lal Sharma, paternal grandfather of the plaintiff, died on 20th December, 1998, leaving his widow defendant No.1 Om Wati, defendants No.2 & 3 Ashok Sharma and Gopal Sharma as his sons, defendant No.4 Prem Lata as his daughter, plaintiff Saurabh Sharma as his grandson and the defendants No.5 & 6 Deepa Sharma and Roma Sharma as his granddaughters; (v) that the plaintiff was born to defendant No.2 Ashok Sharma on 7th April, 1990 i.e. prior to the demise on 20th December, 1998 of Sunder Lal Sharma; (vi) that the aforesaid heirs of Sunder Lal Sharma constituted a Hindu Undivided Family (HUF) which was residing together at 3/156, Gali Ganga Ram, Teliwara, Shahdara, Delhi; (vii) that Sunder Lal Sharma was carrying on business in the name of M/s. Gopal Lime (Ashok Chuna Bhandar) at 500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi; the business of lime stone was in fact commenced by Musaddi Lal, husband of Basanti Devi adoptive mother of Sunder Lal Sharma; (viii) that Sunder Lal Sharma, in the year 1984, changed the name of his business to M/s. Shakti Chuna Bhandar; (ix) that Sunder Lal Sharma along with his wife defendant No.1, his sons defendants No.2 & 3 and his daughter defendant No.4 constituted a HUF under one roof and sharing one kitchen and of which Sunder Lal Sharma was the Karta and Sunder Lal Sharma as Karta inherited the entire property and business which is still being carried on by defendant No.1 Om Wati as Karta of Hindu Joint Family; (x) that property No.500/5, Pandav Road, Vishwas Nagar, Shahdara initially was a land measuring 370 sq. yds. where the business of Bhatti of making lime stone was being carried on; however, after the order of the Supreme Court in M.C. Mehta Vs. Union of India, (1996) 4 SCC 750, whereby industries were ordered to be shifted outside Delhi, this Bhatti was shifted to 460A/4, Mahavir Block, Pandav Road, Vishwas Nagar, Shahdara, Delhi and shops were constructed on this land bearing 500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi and were rented out in the year 1990; out of the total area of 370 sq. yds., 150 sq. yds. was already sold by the defendant No.1 in the year 2012, without any legal necessity and/or for benefit of the estate; (xi) that the plaintiff and the defendants No.4 & 5 have been requesting the defendant No.1 to give their legal share from the sale amount of Rs.3.5 crores but the same has not been given inspite of promise; (xii) that the defendant No.1 is now again trying to sell out the remaining portion of the property measuring 220 sq. yds.; (xiii) that there is no legal necessity for or benefit to the estate from the sale of the property; (xiv) that the plaintiff is in possession of three shops in the property and the defendant No.1 is threatening the plaintiff to hand over possession of the said shops; (xv) that the entire family expenditure from the very beginning till today is being meted out from the business of lime stone and from rent received from the property; (xvi) that the property is a Joint Hindu Family property/HUF; (xvii) that in the Ration Card of Sunder Lal Sharma, the name of all the family members were shown; (xviii) that the plaintiff, along with his mother, has on 19th September, 2015 filed a suit for permanent injunction and declaration against defendants No.1 to 4 but the plaint in the suit was rejected, being without consequential relief; the plaintiff preferred RCA No.133/2016 against the rejection of the plaint but which was withdrawn; (xix) that the plaintiff has filed a suit for partition of property No.3/156, Gali Ganga Ram, Teliwara, Shahdara, Delhi and House No.460A/4, Mahavir Block, Pandav Road, Vishwas Nagar, Shahdara, Delhi and which is now pending for final arguments.

(2.) The suit was entertained, though no ex-parte injunction sought, granted.

(3.) The defendants no.1 to 4 have defended by the suit filing a written statement pleading (i) that the suit property was the self acquired property of Sunder Lal Sharma and the plaintiff, who is the grandson of Sunder Lal Sharma, has no right over the same being not a Class 1 heir of Sunder Lal Sharma; (ii) there was no family business in the name and style of M/s. Shakti Chuna Bhandar or any earlier business as alleged; (iii) that as per the documents filed by the plaintiff also, the business was started by the defendant no.3 Gopal Sharma and is the proprietorship of defendant no.3 Gopal Sharma; (iv) property No.500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi has already been sold by the defendant no.1 and there is no business of any type in the said property; (v) Musaddi Lal was not engaged in the business of lime stone and thus the question of Sunder Lal Sharma continuing the said business as Karta of the HUF or otherwise did not arise; (vi) there was / is no HUF and the defendant no.1 is not a Karta of any HUF; (vii) Musaddi Lal used to run a printing press in Chawri Bazar in a rented premises; (viii) the kitchen of the defendant no.3 Gopal Sharma is separate since his marriage and the defendant no.2 and the defendant no.3 reside separately; (ix) Sunder Lal Sharma was not residing in any Joint Hindu Family and there was no common kitchen as alleged; (x) the shops on property No.500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi were not constructed with any joint funds; the said property has already been sold by the defendant no.1 after getting the Relinquishment Deed in her favour; (xi) the defendants no.1 to 4, being the Class I heirs of Sunder Lal Sharma, alone were / are entitled to inherit the estate of Sunder Lal Sharma; the sale was not for Rs.5 crores; (xii) the occasion for the plaintiff and the defendants no.5 & 6, who are the daughters of the defendant no.2, for demanding any share of the sale consideration never arose and no such demand was ever made; (xiii) the plaintiff and the defendants no.5 & 6 have no rights over any property of Sunder Lal Sharma and property with respect to which suit has been filed has already been sold; (xiv) defendant no.4 though as daughter is a Class I heir of Sunder Lal Sharma, has never demanded any share in the estate of Sunder Lal Sharma; (xv) the entire property No.500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi having already been sold prior to the institution of the suit, the question of the defendants no.1 to 4 or the defendant no.1 threatening to sell the remaining portion ad measuring 220 sq. yds. of the same does not arise; (xvi) the plaintiff is not in possession of three shops or any other part of property No.500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi and thus the question of the defendants no.1 to 4 or the defendant no.1 threatening to dispossess the plaintiff therefrom does not arise; (xvii) the defendants no.2,3 & 4 are residing separately and have separate kitchens in property no.3/156, Gali Ganga Ram, Teliwara, Shahdara, Delhi 110 032; and, (xviii) there is no coparcenary or HUF and the question of the plaintiff and the defendants being members thereof does not arise.