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IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATHIBA M. SINGH, J.
Vineeta Sharma – Appellant
Versus
Rakesh Sharma & Ors. – Respondents
RFA 301 of 2017
Decided On : 15-05-2018
HINDU SUCCESSION ACT - PROPERTY RIGHTS - 1. Income Tax and Wealth Tax returns were used to establish the property as part of the Hindu Undivided Family (HUF). 2. The plaintiff's claim for a share in the property was dismissed based on Section 23 of the Hindu Succession Act, as she was not a coparcener at the time of her father's death. 3. The plaintiff was entitled to a share in the property as per Section 8 of the Hindu Succession Act, but the decree of partition would not be enforceable until the defendants chose to divide their shares. 4. The plaintiff was issued a certificate of fitness to appeal to the Supreme Court.
Fact of the Case:
The plaintiff filed a suit claiming a share in the property left by her father. The defendants argued that the property was part of the Hindu Undivided Family (HUF) and the plaintiff was not entitled to a share as she was not a coparcener at the time of her father's death.
Finding of the Court:
The Trial Court dismissed the suit on the ground that the plaintiff was not a coparcener under Section 6 of the Hindu Succession Act, as the amendment came into effect only in 2005. The Appellate Court upheld the Trial Court's decision, stating that the plaintiff's rights would be governed by the un-amended Section 6 of the HSA. The plaintiff was entitled to a share in the property as per Section 8 of the HSA, but the decree of partition would not be enforceable until the defendants chose to divide their shares.
Issues: The main issue was whether the plaintiff was entitled to a share in the property left by her father, and whether the amendments to the Hindu Succession Act applied to her case.
Ratio Decidendi: The court held that the plaintiff was not a coparcener at the time of her father's death and her rights would be governed by the un-amended Section 6 of the Hindu Succession Act. The plaintiff was entitled to a share in the property as per Section 8 of the HSA, but the decree of partition would not be enforceable until the defendants chose to divide their shares.
Final Decision: The appeal was dismissed, but the plaintiff was issued a certificate of fitness to appeal to the Supreme Court.
Prathiba M. Singh, J.
1. The suit from which the present Appeal arises, was filed by Smt. Vineeta Sharma-Plaintiff/Appellant (hereinafter ‘Plaintiff’) against her two brothers Mr. Rakesh Sharma-Defendant No.1 and Mr. Satyendra Sharma-Defendant No.2 and Mrs. Rameshwari Sharma – Defendant No.3 (hereinafter, ‘Defendants’). Defendant No.3 is the mother of the Plaintiff and Defendants Nos.1 and 2.
2. Sh. Dev Dutt Sharma, had purchased a plot of land admeasuring 250 sq. yards bearing No. A-53, South Extension, Part-II, New Delhi from DLF Housing and Construction Ltd (hereinafter, ‘suit property’). The property has 2½ floors, which were constructed by Sh. Dev Dutt Sharma. He was residing in a government accommodation and in 1974, after he retired, he shifted to the suit property with his family and occupied the First Floor. The Ground Floor and Barsati were rented out to various tenants. One of the tenants was Bank of Baroda. An eviction petition was filed against the said bank by Shri Dev Dutt Sharma and during the pendency of the suit, he expired on 11th December, 1999. He expired intestate.
3. Sh. Dev Dutt Sharma had three sons, one daughter and a wife. One son, Dr. Shailendra Sharma expired on 1st July, 2001 and he was unmarried. At the time of the death of Dr. Shailendra Sharma, the Plaintiff claimed that being the daughter, she was entitled for ¼ share in the property. It was her case, that she used to frequently visit her parental home and she also had some movable items lying there. After the death of her father, vide legal notice dated 17th October, 2001, she sought partition of the property and upon refusal by the Defendants, the suit came to be filed.
4. The case of the Defendants was that after her marriage, she ceased to be a member of the Joint family. It was further claimed that Sh. Dev Dutt Sharma had created a Hindu Undivided Family (HUF) during his lifetime. Upon retirement of Sh. Dev Dutt Sharma, the family had shifted to the First Floor of the property in 1974 but in 1980, they had moved to the Ground Floor. The remaining floors had been rented out. The Plaintiff’s marriage had taken place on 18th January, 1981 and it was pleaded that the father and brothers had contributed Rs.3,50,000/- for her marriage. The following issues were framed in the matter:
“1. Whether the suit is properly valued for the purposes of Court Fee and whether proper court fee has been affixed on the plaint in light of the plaintiffs claim that she is in constructive possession of the suit property?
2. Whether the suit property is self-acquired/HUF property of the father?
3. Whether the property was settled by way of oral partition dated 21st July, 2001 and whether the same was acted upon by the parties?
4. Whether the suit is maintainable in view of Section 23 of the Hindu Succession Act?
5. To what shares are the parties entitled to?
6. Relief.”
5. The Plaintiff appeared as PW-1 and summoned four witnesses including the Manager (Marketing) - Bank of Baroda (PW-2), official from the MCD (PW-3), an official from the Tis Hazari record room (PW-4) and an officer from Sub-Registrar’s Office (PW-5). The Defendants i.e. the two brothers were examined as DW-1 and DW-2.
6. After recordal of evidence, a Ld. Single Judge of this Court had rendered a final judgement that the property was a part of HUF property based on Income Tax and Wealth Tax returns vide decision dated 29th October, 2013. This judgment was set aside by the Ld. Division Bench of Delhi High Court vide order dated 29th April, 2014 on the ground that the documents which were not exhibited i.e. the Wealth Tax and Income Tax returns could not have been considered to hold that the property was an HUF property. However, the Ld. Division Bench recorded in paragraph 12 as under:
“We have not expressed any opinion on the merits of the controversy between the parties. At the remanded stage the learned Single Judge would decide the suit uninfluenced by any observation made by us as also uninfluenc
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