Point of Law: Partition suit - Amendment of the plaint - Shares - In a partition suit court has [the] jurisdiction to amend shares suitably, even if preliminary decree has been passed, if some member of family to whom an allotment was made in preliminary decree dies thereafter.

JUDGMENT :

JAYANT NATH, J.

IA No.10164/2020

1. This application is filed on behalf of the plaintiff under Order VI Rule 17 CPC for amendment of the plaint.

2. The case of the plaintiff in the original plaint is that the property bearing no. 5, Jantar Mantar Road, New Delhi – 110001 (hereinafter referred to as “the suit property”) was originally owned by the grandfather of the plaintiff, namely, late Sahib Basakha Singh vide a perpetual lease deed dated 18.08.1920 executed in his favour by the Secretary of State for India. During his life time, Late Sahib Basakha Singh gifted the suit property to his son Sardar Daya Singh (father of the plaintiff and defendant No.1) vide a Gift Deed dated 07.03.1956. Sardar Daya Singh then placed the suit property into a Hindu Undivided Family of which he was the Karta, namely S. Daya Singh and Sons (HUF) (hereinafter referred to as “the HUF”). At the time of placing of the suit property in the said HUF, the HUF was said to consist of the following members:

i) Sardar Daya Singh,

ii) Sardarani Amarjit Kaur (W/o Sardar Daya Singh),

iii) Sardar Hari Simran Singh (S/o Sardar Daya Singh),

iv) Sardar Amolak Singh (S/o Sardar Daya Singh).

3. Sardar Amolak Singh passed away in 1998, leaving behind a Will dated 30.04.1998 by virtue of which he bequeathed 80% of his share in the HUF (i.e. 20% share in the suit property) in favour of his sister, the plaintiff herein. Remaining 20% of his share in the HUF (i.e. 5% share in the suit property) was bequeathed for charitable purposes. Thereafter, in 2010, the plaintiff being a co-owner of the suit property filed a suit for partition before this court, which was registered as CS(OS) 738/2010. During the pendency of the said suit, a Memorandum of Agreement/Settlement dated 10.12.2011 was executed between the parties wherein it was agreed that the plaintiff has 20% undivided interest in the suit property and that an area equal to 20% of the overall area of the plot was agreed to be allocated to the plaintiff. The suit was decreed and disposed of on 23.11.2011 in terms of the aforesaid Memorandum of Agreement/Settlement dated 10.12.2011. It is stated that on an application filed by the parties, the court on 22.05.2012 clarified that the decree in the suit was not a partition decree and was merely a decree of declaration of the shares of the parties.

4. Thereafter, in terms of the judgment and decree dated 23.12.2011, the plaintiff was substituted as holder of 20% undivided share in the suit property in the records of the Land and Development Office, Ministry of Urban Development, Government of India. A conveyance deed was also registered in favour of the parties on 28.03.2014 wherein it was recorded that the plaintiff is the owner of 20% undivided share in the suit property.

5. The plaintiff, thereafter on account of certain impediments by the defendants, decided that she was not interested to continue to own and enjoy the suit property in co-ownership with the defendants and requested for partition of the suit property. Hence, the present suit was filed by the plaintiff seeking a final decree of partition of the suit property by metes and bounds in respect of her 20% undivided share in the suit property as stated by the decree dated 23.12.2011.

6. It is stated that now in view of the judgment of the Supreme Court dated 11.08.2020 in the case of Vineeta Sharma v. Rakesh Sharma & Ors., (2020) 9 SCC 1 the Supreme Court while interpreting section 6 of the Hindu Succession Act, 1956 held that the said provision confers the status of a coparcener on the daughter born before or after the amendment in the same manner as that of a son. It is stated that the right as a coparcener is by birth and it is not necessary that the father as a coparcener should be alive as on 09.09.2005. It is pleaded that when the suit was filed, the plaintiff claimed 20% undivided share in the suit property by virtue of the Will of Sardar Amolak Singh. It is also pointed out that Sardar Daya Singh who passe