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IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on :1^st February, 2018

Date of decision :15^th May, 2018

+

RFA 301/2017

VINEETA SHARMA

..... Appellant

Through:

Mr.

Chandrachur

Bhattacharyya,

Advocate. (M-9810878919).

versus

RAKESH SHARMA & ORS.

..... Respondents

Through:

Mr. Subhasish Mohanty, Advocate

for R-1 & 2 (M-9810751634).

Mr.

Sanjeev

Singh

&

Mr.

Raghuvendra

Singh

Parihar,

Advocates for R-3 (M-9818925400).

CORAM:

JUSTICE PRATHIBA M. SINGH

JUDGMENT

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 11^th 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 1^st 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 17^th 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 18^th 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:

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 29^th

October, 2013. This judgment was set aside by the Ld. Division Bench of

Delhi High Court vide order dated 29^th 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:

impugned decision.”

7. After the Division Bench order, fresh arguments were heard in the

matter by the Trial court and vide the impugned judgment dated 24^th

November, 2016, the suit was dismissed on t