The property at New Friends Colony was held to be the personal property of the mother and not joint family property, and the civil court did not have jurisdiction to hear a suit for partition of agricultural land.

Jayant Nath, J.

1. The present Regular First Appeal under Section 96 CPC is filed against order and decree dated October 15, 2012 passed in CS(OS) No.2515/1991 by the learned Single Judge.

2. The appellant No.1 filed the present suit seeking a preliminary decree of partition declaring the plaintiffs share as 1/2 in the property (a) B-39, West Nizamuddin, New Delhi and 1/5th in the properties (b) A-82, New Friends Colony, New Delhi and (c) agricultural land situated at village Nangal, Tehsil Fatehbad, District Hissar, Haryana and for appointment of a Local Commissioner to suggest mode of partition and for a final decree thereof.

3. It is averred in the plaint that respondent No.1 is the brother, and appellant No.2 (who was impleaded as defendant No.4 in the suit) and respondent No.2 are the sisters of the appellant and respondent No.1. The mother late Smt.Dropadi Devi was impleaded as defendant No.1 in the suit but died on July 05, 2009 leaving behind the parties to the present appeal as the legal representatives.

4. It is further averred that the father of the parties Late Dr.R.N.Sardana was a medical practitioner and migrated after partition from Karachi. He died on November 11, 1965. Before his death he filed claims with the Ministry of Rehabilitation and was allotted agricultural land at District Hissar, Haryana which is also the subject matter of the present partition suit and parties claim equal undivided share in this property. The father was also allotted land at West Nizamuddin measuring 200sq.yards against the rest of the claims as a migrant after partition and he is stated to have constructed a two and a half storied residential house on the said land. It is stated that appellant No.1 and respondent No.1 are joint owners in equal share of this property at Nizammudin as other legal heirs relinquished their shares.

5. It is further averred that in 1972, a residential plot measuring 486sq.meter bearing No.A-82, New Friends Colony, New Delhi was acquired in the name of the mother of the parties, namely, Late Smt.Dropadi Devi being the head of the family. Smt.Dropadi Devi did not have funds to make payment for the said plot. The same was paid for by the amounts belonging jointly to the parties and inherited by them through their predecessor-in-interest, namely, their father-Dr.R.N.Sardana. The entire payment of Rs.25,000/-(Rupees twenty five thousand only) for the plot was made by cheques from the account of Smt.Dropadi Devi which money was credited after realizing proceeds from the FDRs, rent, agricultural land income as well as gratuity of Late Dr.R.N.Sardana. The construction is also stated to have been raised from the sale of shares, realization of amounts of FDRs, sale of agricultural land and other resources available with the family members jointly inherited from Dr.R.N.Sardana. The appellant also claims to have contributed to the cost of construction of the house. It is stated that the parties had a common mess till 1980. On the basis of above, it is averred that Late Smt.Dropadi Devi was acting jointly on behalf of the family members of the parties being the eldest member. She had also been granted a succession certificate without any objection from the parties though it is claimed that this was on the understanding that the entire family members shall have equal shares in all the movable and immovable properties. Hence, it is stated that the parties to the suit have equal shares in the New Friends Colony property. Hence, the present suit is filed seeking partition and also claiming share of the rental income.

6. Defendants No.1 and 2 in their written statement have denied the contention of the plaintiff(appellant No.1) pertaining to the property at New Friends Colony(defendant No.1 was late Smt.Dropadi Devi and defendant No.2 is respondent No.1). It is further averred that the said plot was acquired by Sh.Bulaqui Dass the father of Smt.Dropadi Devi who was a member of New Friends Co-operative House Building