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2016 Supreme(Del) 1288
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
Smt. Asha Gupta - Plaintiff
Versus
Shri Mahender Kumar & Ors. - Defendants
CS(OS) No. 2753/2012, I.A. Nos. 16692/2012, 19829/2014 & 23378/2014
Decided On : 10-03-2016
Mr. P.D. Gupta and Mr. Abhishek Gupta, Advocates
Ms. Rachna Aggarwal, Adv. for D-1 with D-1 in person. Mr. Hemand Chaudhri and Mr. Arjun Bhaskar, Advs. For D-2. Mr. Shalabh Gupta, Adv. for D-3,4 and 5
The Judgment and Decree dated 30.1.1976 in suit no.11/1976 was binding on the plaintiff, and the plaintiff was not entitled to any share in the suit property based on the legal provisions and the rights of coparceners in the HUF properties.
Headnote:
Partition - Judgment and Decree - Indian Evidence Act, 1872, Code of Civil Procedure, 1908 - Suit no.11/1976 - Summary of the acts and sections referenced and discussed by the court: Section 74 of the Indian Evidence Act, 1872, Order XII Rule 6 of the Code of Civil Procedure, 1908, Section 17(1)(b) of the Registration Act, 1908 - The court considered the Judgment and Decree dated 30.1.1976 passed in suit no. 11/1976 titled as Smt. Basanti Devi Vs. Shri Siri Kishan Dass and others. The court also discussed the legal provisions related to the binding nature of the Judgment and Decree, the requirement of registration, and the rights of coparceners in the HUF properties.
Fact of the Case:
The suit for partition was filed by Smt. Asha Gupta, claiming a 1/4th share in the suit property. The suit property was subject to a Judgment and Decree dated 30.1.1976 passed in suit no.11/1976 titled as Smt. Basanti Devi Vs. Shri Siri Kishan Dass and others, affirming an oral partition entered into between the members of HUF of Sh. Siri Kishan Dass Mittal and Smt. Basanti Devi.
Finding of the Court:
The court found that the Judgment and Decree dated 30.1.1976 in suit no.11/1976 was binding on the plaintiff and dismissed the present suit, as the plaintiff was not entitled to any share in the suit property based on the legal provisions and the rights of coparceners in the HUF properties.
Issues: The issues included the binding nature of the Judgment and Decree dated 30.1.1976 on the plaintiff, the requirement of registration of the decree, and the rights of coparceners in the HUF properties.
Ratio Decidendi: The court held that the Judgment and Decree dated 30.1.1976 in suit no.11/1976 was binding on the plaintiff, and the plaintiff was not entitled to any relief of partition as claimed in the present suit.
Final Decision: The present suit was dismissed, and the judgment will not prejudice the rights of the defendant nos. 1 and 2 in claiming their 1/3rd rights in the suit property in terms of the Judgment and Decree dated 30.1.1976 in suit no.11/1976 or any defence of the defendants no. 3 to 5. Parties were left to bear their own costs.
Valmiki J. Mehta, J.
1. This suit for partition is filed by one plaintiff Smt. Asha Gupta. Smt. Asha Gupta is the daughter of late Sh. Siri Kishan Dass Mittal and Smt. Basanti Devi. There are five defendants in the suit. Defendant nos.1 and 2 are the brothers of the plaintiff and sons of Sh. Siri Kishan Dass Mittal and Smt. Basanti Devi. Defendants no. 3 to 5 are the legal heirs of the branch of Sh. Rajender Kumar and which Sh. Rajender Kumar is the deceased brother of defendant nos.1 and 2 and the plaintiff and the son of Sh. Siri Kishan Dass Mittal and Smt. Basanti Devi.
2. As per the plaint, plaintiff claims that the father Sh. Siri Kishan Dass Mittal was the sole owner of the suit property bearing no. M-291, Greater Kailash-II, New Delhi-110048 and since the father Sh. Siri Kishan Dass Mittal died intestate at Delhi on 18.11.2004 with the mother Smt. Basanti Devi having already expired, plaintiff has a 1/4th share in the suit property with 1/4th share falling to defendant no.1, 1/4th share falling to defendant no.2 and 1/4th share falling to Sh. Rajender Kumar who is represented by his legal heirs being the defendants nos. 3 to 5.
3. Defendant nos. 3 to 5 in their written statement have relied upon a judgment and decree passed as per a compromise in suit no.11/1976 titled as Smt. Basanti Devi Vs. Shri Siri Kishan Dass and others and which Judgment and Decree dated 30.1.1976 decrees the suit by a compromise affirming the oral partition entered into between the members of HUF of Sh. Siri Kishan Dass Mittal and Smt. Basanti Devi being the husband and wife and their three sons being defendants nos. 2 to 4 in that suit namely Sh. Rajinder Kumar, Sh. Mahender Kumar and Sh. Narender Kumar. As per the compromise decree, the earlier oral partition which took place between the five parties to the said suit dated 29.12.1975 was affirmed and as a consequence thereto plaintiff in suit no.11/1976 was given the half share of house bearing Municipal No.2678 Ward No.5, situated at Roshanpura, Nai Sarak (Ami Chand Marg), Delhi.
4. The present suit is at the stage of framing of issues and therefore, the question arises whether at all the issues have to be framed or that the suit can be decided at this stage itself in view of the pleadings and the documents on record by applying the principle of Order XII Rule 6 of the Code of Civil Procedure, 1908.
5. At the outset, I must note that this Court is entitled to take note and consider the Judgment and Decree dated 30.1.1976 passed by the court of Additional District Judge as a public document in terms of Section 74 of the Indian Evidence Act, 1872. The certified copy of the judgment and decree therefore does not have to be proved and the Court can straightway take notice of the same. Accordingly, I am considering the Judgment and Decree dated 30.1.1976 passed in suit no. 11/1976 titled as Smt. Basanti Devi Vs. Shri Siri Kishan Dass and others.
6. In order to consider the effect of the Judgment and Decree dated 30.1.1976 in suit no.11/1976, it will be necessary at this stage to reproduce the plaint, the written statement in the said suit, the statement of parties and the decree in the said suit. These are reproduced as under:-
Plaint
“The plaintiff named above begs to submit as under:-
1. That the plaintiff and the defendants constituted a Joint Hindu Family of which Shri Siri Kishan Dass defendant No.1 was the Karta and Manager.
2. That the said Joint Hindu Family owned and possessed the following Joint Hindu Family immoveable properties:-
(i) Double storeyed house with a Barsati on the second floor bearing municipal No.2678, Ward No.5, situate at Nai Sarak, (Ami Chand Marg) Delhi,
(ii) Plot of land No.291, Block No.M, measuring 400 square yards in the residential colony known as Greater Kailash-II, situate at Village Bahapur in the Union Territory of Delhi.
(iii) House bearing Municipal No.2
