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High Court of Delhi
THE HONOURABLE MR. JUSTICE V.K. SHALI
Master Gautam Yadav & Others
Versus
Jagdish Yadav & Another
C.S. (OS) No. 1321 of 2010
Decided On : 06-02-2014
Partition - Cause of Action - CPC Order 7 Rule 11(a) - Kalyani v. Narayanan; AIR 1980 SC 1173
Fact of the Case:
The plaintiffs filed a suit for partition and mandatory injunction claiming that an oral partition had taken place, and they were entitled to a share of the properties. The defendants contended that a partition had already taken place, and the suit was without cause of action.
Finding of the Court:
The court found that the plaintiffs' own averments in the plaint indicated that an oral partition had taken place, shares were determined, and the properties were being enjoyed by the plaintiffs. As a result, the court held that the suit was without cause of action and liable to be rejected under Order 7 Rule 11(a) of the CPC.
Issues: The main issue was whether the suit for partition was maintainable, considering the alleged oral partition and the enjoyment of properties by the plaintiffs.
Ratio Decidendi: The court relied on the legal principle that a disruption of joint family status by a definite and unequivocal indication to separate implies separation in interest and right, even without an immediate de facto division of the properties. The court emphasized that actual physical division or partition by metes and bounds is not essential for severance of status.
Final Decision: The court held that the suit filed by the plaintiffs was without cause of action and therefore liable to be rejected. The application for amendment in the plaint was dismissed as infructuous.
V.K. Shali, J.
1. The question which arises in the instant case is as to whether the suit as framed is liable to be rejected under Order 7 Rule 11(a) CPC as being without any cause of action. The contention of the learned counsel for the plaintiff is that the suit as framed is maintainable while as this aspect has been contested by the learned counsel for the defendants. Before dealing with the submissions made by the learned counsel for the plaintiff, it may be pertinent here to give a brief background of the case.
2. The plaintiffs/Master Gautam Yadav and his mother Smt.Mamta Yadav have filed a suit against the defendants for partition and mandatory injunction. It has been alleged in the plaint that the plaintiffs are the son and the widow of late Sh.Rakesh Yadav, who was the son of Sh.Jagdish Yadav and Smt.Shanti Devi, defendant Nos.1 & 2 herein respectively. It is alleged that Sh.Jagdish Yadav/Defendant No.1, the grandfather of plaintiff No.1 had inherited the following properties from his father late Sh.Mohan Singh:
“a. 1126 square yards of land, bearing No.23/23, Gali No.7, Village Samaypur, Delhi.
b. Share in 4 bighas 15 biswas of land situated at Khasra No.8/18, situated at Village Libaspur, Delhi.
c. Share in 3 bighas 10 biswas of land situated at Khasra No.8/19, situated at Village Libaspur, Delhi.
d. 214 square yards of land situated at Khasra No.214, Gali No.7, Village Samaypur, Delhi.
e. 350 square yards of land wherein house is constructed bearing House No.109 at Khasra
No.80, situated at Lal Dora, Abadi Deh, at Vilalge Samaypur, Delhi.
f. 200 square yards of land situated at Narela.
g. 200 square yards of land situated at Gali No.7, Village Samaypur, Delhi.”
3. In para 6 of the plaint, it has been averred that after the death of the husband of the plaintiff No.2, the entire family sat together and an oral partition amongst the family members took place whereby the property of the husband of the plaintiff No.2 was apportioned and was earmarked to be given to plaintiff No.1. That on 22.11.2006, the factum of the oral partition of the properties came to be recorded in the form of a registered Will executed by defendant No.1 whereby the ancestral property was divided amongst plaintiff No.1 and defendant No.4 in proportion.
4. In para 8 & 9 of the plaint, it has been averred as under:
“8. That out of the properties mentioned herein above in para No.4, the parties are getting regular rental incomes as most of the properties are in industrial area where factories are paying good rentals. Apart from the rentals received from the factories, families have constructed small rooms which are let out to staff working in the factories. This adds to the generation of rental income.
That the plaintiff No.1 is getting rental income to the following extent:
Rs.14,400/- from Mr.Jitendra Mohan Dhall.
Rs.4,000/ from Mr.Rajiv Bajaj.
Rs.6,000/ from Mr.Deepak.
Rs.1,800/ from Mr.Makhan Lal.
Rs.2,500/ from Mr.Shekhar.
Rs.1,800/ from the labour room.
Rs.1,600/ from Mr.Umesh.
Rs.1,600/ from husband of Mrs.Sanjana.
Rs.1,200/ from Mrs.Shanti.
Rs.1,000/ from Mr.Avdesh
Rs.26,000/ from Father in law i.e. Defendant No.1 (Rs.8,500/- from A-809 + 3,000/- from basement of A-809 and Rs.14,500/- from A-2548)
Total of Rs.61,900/-
(Rent Agreement dated 14.05.2008 with Mr.Jitendra Mohan Dhall is filed with the list of documents)
(Rent Agreement dated 03.07.2008 with Mr.Rajiv Bajaj is filed with the list of documents)
9. That from the income generated by collecting rent the plaintiff No.2 got constructed 3 storey building at A-1034.5 square feet where she has got the electricity meter fixed further she is getting the rental income from this area as well.”
5. After making these averments, it has been alleged that defendant Nos.1 and 3 have started playing dirty tricks to oust the plaintiffs from the accommodation which is under his occupation and to stop the rental income being received by the plaintiffs. It has been further stated that the defendants are threatening the pl
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