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161 (2009) DELHI LAW TIMES 321
DELHI HIGH COURT
S. Ravindra Bhat, J.
KANAN BAKSHI - PLAINTIFF
Versus
ATUL BALI & ORS. - DEFENDANTS
CS (OS) 2076 of 2007
Decided on : 4.4.2008
Partition - Property Dispute - Hindu Succession Act, 1956 - Section 8, 10 - Relinquishment deed executed by late Shiv Kumari Datta in favor of the plaintiff - Plaintiff's claim for 2/3rd share in the property - Defendants' claim for 1/2 share each - Court held that upon the death of Nand Kishore Datta, the estate devolved in three parts; one part each falling to the share of the plaintiff and Shiv Kumari Datta and the other, in two equal shares devolving on the defendants. Shiv Kumari Datta could not have dealt with the defendants' property; the property was undivided and, therefore, they had equal rights over the whole plot. The relinquishment deed however purported to transfer part of their share, which was clearly impermissible. The intention of the releaser was premised on her understanding that the defendants were not heirs, which was mistaken; they had a share equal to hers. Whether she would have acted otherwise if the true state of affairs were known to her is a matter of speculation, but for purposes of this suit it is sufficient to note that such a possibility existed. In any case, she could not have dealt with their share; the relinquishment deed therefore could not operate to convey any title to the plaintiff. Consequently upon her death, the plaintiff and the defendants became entitled to her 1/3rd share equally; the result is that both are entitled to a half (1/2) share each in the property.
Fact of the Case:
The plaintiff seeks a decree for partition for dividing the suit property in which she claims a 2/3rd shares and states that the balance 1/3rd share belong to defendants 1 and 2. The plaintiff's father had purchased the property through perpetual lease deed. After his death, the plaintiff claimed that her mother relinquished her share in the property in the plaintiff's favor. The defendants disputed the plaintiff's entitlement to 2/3rd share and alleged that the suit was an abuse of law.
Finding of the Court:
The Court found that the late Shiv Kumari Datta could not have dealt with the defendants' property as the property was undivided and the defendants had equal rights over the whole plot. The relinquishment deed executed by Shiv Kumari Datta in favor of the plaintiff was impermissible and could not convey any title to the plaintiff. Consequently, upon her death, the plaintiff and the defendants became entitled to her 1/3rd share equally, resulting in both parties being entitled to a half (1/2) share each in the property.
Issues: The issues were whether the suit was maintainable and whether the plaintiff was entitled to a decree of partition and, if so, to what share.
Ratio Decidendi: The Court held that the late Shiv Kumari Datta could not have dealt with the defendants' property as the property was undivided and the defendants had equal rights over the whole plot. The relinquishment deed executed by Shiv Kumari Datta in favor of the plaintiff was impermissible and could not convey any title to the plaintiff. Consequently, upon her death, the plaintiff and the defendants became entitled to her 1/3rd share equally, resulting in both parties being entitled to a half (1/2) share each in the property.
Final Decision: The Court issued a preliminary decree whereby the plaintiff was entitled to one half share in the suit property and the defendants were entitled to the other half, in equal proportion. A Local Commissioner was appointed to conduct an inquiry and report to the Court as to the feasibility of partitioning the property.
S. Ravindra Bhat, J.- The plaintiff seeks a decree for partition for dividing the suit property in which she claims a 2/3rd shares and states that the balance 1/3rd share belong to defendants 1 and 2.
2. The facts as set out in the plaint are that one Nand Kishore Datta, the Plaintiffs father had purchased Plot No. 104, Block B-1, Janak Puri, New Delhi, measuring 126 sq. mtrs., through perpetual lease deed dated 5.6.1969, through the Delhi Development Authority(DDA). During his lifetime Shri Datta constructed a three storeyed structure on the plot. The said Sh. Datta was married to Ms. Shiv Kumari Datta. They had two children namely, the Plaintiff and one Ms. Kamini Bali.
3. Sh. Nand Kishore Datta died on 28.4.2004. Ms. Kamini Bali, one of his two daughters, had pre-deceased him having expired on 12.8.2002. Said Nand Kishore Datta died intestate. The Plaintiff claims in Paragraph 4, inter alia, as follows:
"That, after the death of late Sh. Nand Kishore Datta the mother of plaintiff i.e., Smt. Shiv Kumari Datta relinquished her share in the aforesaid property in the favour of the plaintiff vide her registered relinquishment deed dated 28th May, 2004, which was duly registered with the Registrar of Assurances, Sub-Division II, West District, Delhi, vide registered No. 9825, in additional Book No. 1, Vol. No. 11591, pages from 70 to 71 on 28th May, 2004. On the basis of said relinquishment deed and the affidavit and other documents filed by plaintiff and her mother, the aforesaid property mutated by the defendant No.3 in the name of plaintiff. It is relevant to mention here that along with her application for mutation, the Plaintiff also filed an affidavit dated 10th June, 2004 and Indemnity Bond dated 28.5.2004. Wherein, she declared that late Sh. Nand Kishore Datta is survived by only two legal heir i.e. the plaintiff and her mother. The said affidavit was sworn by the plaintiff under the mistaken advice that since her sister died during the lifetime of her father, therefore, the plaintiff and her mother are the only legal heirs with respect to the immovable assets of late Sh. Nand Kishore Datta. The plaintiff thereafter avers that her assumption was wrong since she became aware that by Section 10 of the Hindu Succession Act, the late Shiv Kumari Datta could have only 1/3rd right on the death of Nand Kishore Datta. It is, therefore, claimed that the Defendants being the sons of pre-deceased defendants are entitled to II 6th share. The Plaintiff further avers as follows-
However, under the mistaken advice the plaintiff applied for mutation of this property in her name with the DDA under the presumption that except the plaintiff and her mother there is no other legal heir survive on the date of mutation in her favour. In fact, throughout this, the plaintiff was under the constant belief that in case of demise of her father only the plaintiff, her sister and mother are the only legal heirs. Since, plaintiff sister was pre-deceased by the time her father expired on 28th March, 2004. Therefore, on the date of filing of mutation application on 22nd June, 2004, there was no other legal heirs of the deceased late Sh. Nand Kishore Datta, except, the plaintiff and her mother Smt. Shiv Kumari Datta, who also expired after the mutation of this property in favour of plaintiff on 6th February, 2005.
4. On the basis of the above affidavit it is averred that the Plaintiff applied for conversation of the property into free-hold which was permitted by the DDA and the Conveyance Deed was executed on 31.5.2007. The Plaintiff also alleges that during the lifetime of Smt. Shiv Kumar Datta the Defendants had not raised any disputes concerning mutation of the property in her name and that they started objecting to the mutation after death on of Shiv Kumari Datta, 6.2.2005. It is alleged that the Defendants complained to the DDA, about legality of the mutation and the latter caused a notice to be issued on 19.7.2007 for determining the lease deed
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