Delhi High Court

Sh. Ajit Singh vs Smt.Adarsh Kaur Gill on 25 October, 2024

Author:
Navin Chawla

Bench:
Navin Chawla

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 02.08.2024
Pronounced on: 25.10.2024
+ CS(OS) 2167/1993
SH. AJIT SINGH ..... Plaintiff
Through: Mr.Manav Gupta, Ms.Gauri Rishi,
Mr.Sahil Garg, Mr.Abhinav Jain,
Mr.Ankit Gupta, Ms.Samiksha Jain,
Ms.Srishti Juneja, Ms.Monika
Madaan, Mr.Mithil Malhotra, Advs.
versus
SMT.ADARSH KAUR GILL & ORS ..... Defendants
Through: Mr.C.A.Sundaram, Sr. Adv. with
Mr.Sumit Bansal, Mr.Ravi Kapoor,
Mr.Udaibir Kochar, Mr.Zafar
Inayat, Mr.Rishav, Ms.Aditi
Singhal, Ms.Shreya Kunwar,
Ms.Tulna Rampal, Mr.Aditya
Bakshi, Mr.Arjun Bhatia, Advs. for
D-1 & D-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
JUDGMENT

1. The present Suit has been filed by the original plaintiff, late Sh.
Ajit Singh (hereinafter referred to as the 'plaintiff'), praying for the
following reliefs:

"(a) pass a preliminary decree of partition of
the property bearing No.3, south end Road,
New Delhi, more particularly shown ion the
plan, and, thereafter, pass a final decree
partitioning the said property by metes and
bounds and put each of the parties to the suit
in actual physical possession of the portion of
the property allotted to him/her. If the
partition of the property by metes and bounds
is not feasible, then the property may ordered
to be sold by public auction through Court and
proceeds thereof be divided between the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 1 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

parties to the suit in accordance with their
share and entitlement;

(b) Pass a preliminary decree for partition of
the movable assets belonging to the estate of
Smt. Abnash Kaur, as mentioned in the
Schedule to the plaint and, thereafter, pass a
final decree and give to each of the party to
the suit his/her share of the said property. In
case it is not feasible to distribute the movable
assets belonging to the estate of Smt. Abnash
Kaur in the hands of defendants Nos.1 & 2 to
each of the beneficiaries, as per the share and
entitlement, then the said movable assets may
be ordered to be sold by public auction
through this Hon‟ble Court and the proceeds
thereto may be divided amongst the parties, as
per their share and entitlement;

(c) Pass a decree for rendition of accounts and
enquiry into the same with respect to the rental
income of the property received by defendant
No.1 from the tenant of property bearing No.3,
south End Road, New Delhi, w.e.f. 1.1.1980 to
30.11.1990;

(d) Pass a decree for rendition of accounts and
enquiry into the same with respect to the
profits made by defendant Nos.1 and 2 from
the business which they have been carrying on
by investing the funds from the estate of Smt.
Abnash Kaur;

(e) Pass a decree for declaration that there
has been no lease deed executed by Smt.
Abnash Kaur in favour of Defendant No.1 and
that defendant No.1 is not a lessee in the
property, 3, South End Road, New Delhi, and
she is not entitled to give the said property to
any person on sub-lease basis;

(f) Pass a decree of declaration to the effect
that defendant No.1 is not a subrogatee of the
mortgage deeds executed by late Smt. Abnash
Kaur with respect to the property in favour of
Smt. Sushila Daphtary and her son Mr. Anil
Daphtary said mortgage deeds have been
redeemed out of the estate left by Smt. Abnash
Kaur

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 2 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

(g) Pass a decree of declaration to the effect
that defendants Nos. 1 and 2 have dis-entitled
themselves from getting any share in the estate
left by Smt. Abnash Kaur and that the plaintiff
and defendants Nos.3,4 and 5 are the only
beneficiaries under the Will of Smt. Abnash
Kaur and are entitled to get the entire estate
left by Smt. Abnash Kaur divided and
partitioned in four equal shares;

(h) Pass a decree for permanent injunction
against Defendant No.1 restraining her
permanently from transferring, alienating,
letting out or parting with the possession of the
property, 3 South End Road, New Delhi, or
any part thereof and from making any
additions and alterations in the same in any
manner whatsoever.

(i) Any relief which this Hon‟ble Court may
deem fit and proper in the circumstances of the
case may also be granted to the plaintiff and
other beneficiaries under the Will of
smt.Abnush Kaur, and

(j) Cost of the Suit may also be awarded
against defendants Nos.1 and 2."

2. Once the final hearing of the Suit began and the counsel for the
plaintiff had made his submissions, the learned senior counsel for the
defendant nos. 1 and 2 pointed out that no submissions had been made
by the learned counsel for the plaintiff on some of the prayers, while
for some of the prayers, there had been a shift in the stand of the
plaintiff.

3. On the objection being raised, the learned counsel for the
plaintiff clarified the plaintiff's stand on the prayers being pressed in
the Suit, as is recorded in the Order dated 09.05.2023, which is
reproduced herein below:

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 3 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

"1. The learned counsel appearing for the
plaintiff submits that the plaintiff has not
pressed and is not pressing prayer (b) and (d)
made in the Suit.

2. As far as prayer (f) is concerned, the „estate
left by Smt.AbnashKaur' mentioned in the
prayer is restricted to the rental received by
the defendant no.1 for the property bearing
no.3, South End Road, New Delhi (hereinafter
referred to as the 'Suit Property') after the
death of Smt. Abnash Kaur in 1976 and till the
date of redemption of the mortgage in May
1981, and no other estate.

3. The above statement of the learned counsel
for the plaintiff was necessary to be recorded
as in the plaint, various prayers and averments
have been made, on which no submissions
were made in the opening by the learned
counsel for the plaintiff. While the learned
senior counsel for the defendant no.1 was
making submissions, it was noticed that the
submissions were being made on pleas that
had not been pressed by the learned counsel
for the plaintiff. It is only to clarify the
position, that this statement of the learned
counsel for the plaintiff has been recorded
and, therefore, the plaintiff shall be bound by
this order and the statement of the learned
counsel for the plaintiff.

4. Needless to state that the above statements
by the learned counsel for the plaintiff are
without prejudice to the rights and contentions
of the defendants.

5. The learned senior counsel for the
defendant no.1 points out that there is a
Schedule attached to the plaint, which
mentions other properties purportedly as
'estate left behind by the deceased late Smt.
Abnash Kaur'. In relation to this Schedule
also, no submission was made by the learned
counsel for the plaintiff in the opening.

6. The learned counsel for the plaintiff prays
for time to seek instructions if the plaintiff is
still pressing the reliefs sought in respect of
the other properties, movable and immovable,

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 4 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

apart from the suit property. He also prays for
time to seek instructions on prayer (g) made in
the plaint."

4. By a subsequent Order dated 19.07.2023, the statement of the
learned counsel for the plaintiff was recorded as under:

"1. Pursuant to the order dated 09.05.2023,
the learned counsel for the plaintiff, on
instructions, submits that the plaintiff, in the
present suit, is pressing only prayer (a), (c),

(e), (f) (as restricted in terms of paragraph 2
of the order dated 09.05.2023), (h), (i) and (j),
and would not press prayer (b), (d) and (g)
made in the plaint.

2. He further submits that as far as the
schedule of properties attached to the plaint is
concerned, the plaintiff restricts the claim only
to the property bearing no. 3, South End Road,
New Delhi, and gives up all claims against the
other moveable and immoveable properties
mentioned in the Schedule, and does not seek
partition of these properties.

3. The plaintiff shall file an affidavit in the
above respect, within a week."

5. The present plaintiff, Mr.Gurnir Singh Gill, filed an affidavit
dated 26.07.2023, clarifying his restricted claim in the Suit. The
relevant portions of the same are reproduced as under:

"7. That accordingly, I state that the
Deponent/Plaintiff shall be only pressing
prayer (a), (c), (e), (f), (h), (i) and (j), and
would not be pressing prayer (b), (d) and (g)
made in the plaint.

8. I further state that as far as the Schedule of
Properties attached to the Plaint is concerned,
the Deponent/Plaintiff restricts the claim only
to the property bearing no. 3, South End Road,
New Delhi and rental/profits earned
therefrom, and is therefore, relinquishing all
the claims against the other moveable and

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 5 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

immoveable properties mentioned in the
Schedule and does not seek partition of these
properties.

9. I further state that as far as prayer (f) is
concerned, the 'estate left behind by Smt.
Abnash Kaur" mentioned in the prayer is
restricted to rent received / profits earned by
the Defendant No.1. for the Property bearing
No. 3, South End Road, New Delhi [hereinafter
referred to as the Suit property] after the death
of Smt. Abnash Kaur in 1976 and till the date of
redemption of mortgage in May 1981, and no
other estate."

6. This Court, therefore, proceeded to hear the submissions of the
parties on these modified prayers and restricted claims of the plaintiff.

Case of the plaintiff:

7. It is the case of the plaintiff that late Smt.Abnash Kaur was the
elder sister of the plaintiff, the defendant no.1, and the defendant no.3;
mother of the defendant no.5; and aunt of the defendant no.2 and the
defendant no.4. She was married to late Seth Shiv Prasad on
27.06.1953, and the defendant no.5 was born out of the said wedlock
on 11.05.1955. This was the second marriage of late Seth Shiv Prasad,
who had been blessed with seven sons from his first wife.

8. The plaintiff asserts that out of the amounts gifted by late Seth
Shiv Prasad to late Smt. Abnash Kaur, she purchased a property
bearing No.3, South End Road, New Delhi (hereinafter referred to as
the 'Suit Property') for a total sale consideration of Rs.2,50,000/- vide
Sale Deed dated 18.01.1956 registered as Document No.215 in
Additional Book No.1, Volume No.354 on Pages 117 to 138 on

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 6 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

30.01.1957 in the Office of the Sub-Registrar, New Delhi (Ex. PW-
4/1), thereby becoming the absolute owner of the Suit Property.

9. The plaintiff asserts that by her last Will dated 06.02.1973 (in
short, 'Will') (Ex. PW-4/2), late Smt. Abnash Kaur bequeathed the
Suit Property and all other movable and immovable assets in favour of
the plaintiff and the defendants, with each having 1/6th share in the
same. The original plaintiff, Sh.Ajit Singh, was appointed as the
Executor of the said Will by late Smt. Abnash Kaur.

10. The plaintiff further asserted that on the death of late Seth Shiv
Prasad, who passed away on 24.05.1957, disputes arose between late
Smt. Abnash Kaur and her step-sons (sons from the first marriage of
late Seth Shiv Prasad). There was also an Order of Attachment dated
07.07.1960 of the Suit Property passed by the Collector, Delhi (Ex.
PW-4/7) for recovering the tax payable by 'Seth Shiv Prasad HUF'. In
order to save her property from her step-sons and also from
attachment, late Smt. Abnash Kaur entered into a fictitious lease of the
Suit Property with the defendant no.1 vide Lease Agreement dated
18.11.1958. The plaintiff asserts that this Lease Agreement was
fictitious and was never acted upon; the possession of the Suit
Property was never delivered to the defendant no.1, and late Smt.
Abnash Kaur remained in possession thereof.

11. The plaintiff asserts that in February 1961, late Smt. Abnash
Kaur let out the Suit Property to the Vietnam Embassy, though in the
name of the defendant no.1, on leave and license basis, and late Smt.
Abnash Kaur was receiving the rent for the same from the said
Embassy. Later, she let out the Suit Property on leave and licence

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 7 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

basis with effect from 01.01.1964 to the trade representative of the
German Democratic Republic (hereinafter referred to as 'G.D.R.
Embassy'), though again in the name of defendant no.1. The plaintiff
asserts that the last leave and licence agreement with the G.D.R.
Embassy, entered in November, 1974 for the period from 01.01.1975
to 31.12.1979 at Rs.11,000/- per month was executed by him as the
General Attorney of the defendant no.1, on instructions from late Smt.
Abnash Kaur. The plaintiff asserts that the G.D.R. Embassy made the
full and final payment of the rentals for the said period of 5 years, in
advance, in the name of defendant no.1 to the plaintiff, as was desired
by late Smt. Abnash Kaur, and the said amount was later paid by the
plaintiff to late Smt. Abnash Kaur.

12. The plaintiff further asserts that late Smt. Abnash Kaur had also
taken a loan of an amount of Rs.1,98,000/- against the Suit Property
by mortgaging the same in favour of Smt. Sushila Daphtary and
Mr.Anil Daphtary (in short, 'Daphtarys') vide Mortgage Deeds dated
19.01.1959 (Ex. DW-1/42) and 24.01.1959 (Ex. DW-1/43). As late
Smt. Abnash Kaur was unable to repay the said loan and interest
accrued thereon, the Daphtarys filed a Suit, being Suit No. 282/1967,
titled 'Shrimati Sushila Daphtary & Anr. v. Shrimati Abnash Kaur
& Ors.', seeking recovery of the said loan amount and foreclosure of
the mortgage. A Preliminary Decree dated 29.01.1971 was passed in
favour of Daphtarys and against late Smt. Abnash Kaur, thereby
directing late Smt.Abnash Kaur to pay a sum of Rs.1,98,000/- as
principal amount and interest @ 7.5% per annum thereon from the
date of the mortgage till the date of its realisation. The same was

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 8 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

challenged in an appeal, being RFA(OS) 11/1971, titled Smt. Abnash
Kaur through LRs. v. Smt. Sushila Daphtary and Anr. During the
pendency of the said appeal, late Smt. Abnash Kaur passed away on
10.06.1976. On the basis of her Will, the parties to the present Suit
were substituted against her in the appeal.

13. During the pendency of the said appeal, the parties entered into
a compromise on 20.02.1978, and a Compromise Decree dated
20.02.1978 (Ex. PW-4/DX8) was passed. Based on the said
Compromise Decree, vide Order dated 08.05.1981 (Ex. DW-1/45), an
application, being C.M. No. 323/1981 (Ex. PW-4/DX9), filed by the
parties under
Order XXI Rule 2 of the Code of Civil Procedure
, 1908
(in short, '
CPC
') was allowed; the satisfaction of the decree was
recorded; and the mortgage deeds and other title documents were
released in favour of the defendant no.1. It was also recorded that the
applicant therein, that is, the defendant no.1, will be subrogated to the
rights of the mortgagees in accordance with the terms of the said
Compromise Decree.

14. The plaintiff asserts that on 04.05.1983, he addressed a notice to
Sh. G.C. Mittal, Advocate, who, he claims, was advising and looking
after the interest of late Smt. Abnash Kaur, thereby calling upon him
to disclose the documents of settlement/lease that had been executed
by the defendant no.1 with the G.D.R. Embassy with respect to the
Suit Property. The plaintiff claims that the defendant no.1, however,
refused to render the account of the rent received from the G.D.R.
Embassy, and started claiming that she alone was entitled to receive
the rent.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 9 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

15. The plaintiff claims to have issued a notice even to the G.D.R.
Embassy, asking the Embassy to pay the rent to him instead of to the
defendant no.1. He, however, claims that the Embassy refused to
comply with the same. The G.D.R. Embassy is claimed to have
vacated the Suit Property on 01.11.1990.

16. The plaintiff asserts that, in fact, after discussions and meetings
between the plaintiff and the defendant no.1, the parties to the present
Suit arrived at a settlement, the terms whereof were circulated by the
defendant no.1 to the plaintiff vide Letter dated 12.02.1991 (Ex. PW-
4/27). However, soon thereafter, the defendant no.1 herself refused to
adhere to the terms of the said settlement.

17. The plaintiff claims that the defendant no.1 had invested the
rental income from the Suit Property in other businesses and,
therefore, is liable to account for the same.

Case of the defendant nos.1 and 2:

18. The defendant no.1 filed her written statement wherein she
denied the contents of the plaint, and claimed that the Suit is barred by
limitation.

19. The defendant no.1 further claimed that by redeeming the
mortgage, she had become the subrogate mortgagee in possession of
the Suit Property and was entitled to keep the possession thereof. She
further claimed her rights as a lessee.

20. The defendant no.1 also denied sending the Letter dated
12.02.1991 (Ex. PW-4/27), which, according to the plaintiff, recorded
the terms of the settlement arrived at between the parties.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 10 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

21. The defendant no.2 has adopted the written statement filed by
the defendant no.1.

Proceedings in the Suit:

22. The original plaintiff, late Sh. Ajit Singh, passed away on
12.10.2000. Thereafter, the defendant no.3, late Smt. Surjit Kaur Gill,
filed an application, being I.A. No.12533/2000, praying for her to be
transposed as a plaintiff on the basis of an alleged Will dated
21.07.1997 of late Sh. Ajit Singh (Ex. PW-2/1), wherein she was
appointed as an Administrator and Executor of his Will.

23. This Court, vide Order dated 04.12.2000, allowed the defendant
no.3, late Smt. Surjit Kaur Gill, to be transposed as a plaintiff. This
Court further recorded as under:

".....Learned counsel for Defendants No.1 and
2 has no objection if this application is
allowed. In case the Will is found to be not a
genuine one, Defendants No.1 and 2 are at
liberty to agitate the matter before this Court."

24. The original defendant no.5, Mr.Kamal Kishore Bindal, passed
away on or about 15.12.1995. This Court, vide Order dated
25.07.2000 passed in I.A. No.2816/1996, deleted the defendant no. 5
from the array of the parties recording that the LRs of Mr.Kamal
Kishore Bindal are already on record.

25. The issues framed by this Court vide Order dated 01.02.2005
are as under:

"1. Whether the suit is barred by limitation?
OPD-1

2. Whether the plaint has been valued
correctly for purposes of court fee and
Jurisdiction. If not, to what effect? OPD

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 11 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

3. Whether redemption of the mortgage by
defendant no. 1 entitles defendant no.1 to
retain possession of property bearing No.3,
South End Road, New Delhi? OPD-1

4. Whether the lease deed dated 18.11.1958 is
a sham document as alleged by the plaintiff in
paras 20 to 23 of the plaint and as explained
in subsequent paragraphs thereof? OPP
(It Is clarified that issue No.3 above would
take care of the pleadings of the plaintiff in the
plaint where it is pleaded that the lessee under
the lease deed afore-noted was acting as a
benamidar of the lessor).

5. If issue no.4 is held in favour of the plaintiff,
what would be the legal consequences thereof?

6. Whether late Smt.Abnash Kaur left behind
any moveable properties as asserted by the
plaintiff? OPP

7. What is the share of the plaintiffs and the
defendants in the estate left behind by late
Smt.Abnash Kaur?

8. Whether the plaintiff is entitled to a
preliminary decree of partition in respect of
property bearing No.3, South End Road, New
Delhi? OPP

9. Whether the plaintiff is entitled to a decree
for rendition of accounts against defendant
No. 1? OPP

10. Whether the plaintiff is entitled to a decree
of declaration as prayed in clauses (e), (f),

(g)? OPP

11. Whether the plaintiff is entitled to a decree
of permanent injunction as per clause (h) of
the prayer clause? OPP

12. Relief."

26. Late Smt. Surjit Kaur Gill also unfortunately passed away on
03.01.2020, and the present plaintiff, namely, Shri Gurnir Singh Gill,
claimed that Smt. Surjit Kaur Gill had left behind a Will dated
20.02.2003. He was accordingly substituted as her legal heir, vide
Order dated 12.02.2020.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 12 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Submissions of the learned counsel for the plaintiff:

27. Mr. Manav Gupta, the learned counsel for the plaintiff, submits
that the purported Lease Deed dated 18.11.1958 was a sham document
executed by late Smt. Abnash Kaur only to protect the Suit Property
from any claim raised by her step-sons and also to avoid the
attachment of the same towards the recovery of the Income Tax dues
and the Order of Attachment dated 07.07.1960 (Ex.PW4/7) passed by
the Income Tax Authorities. He submits that in the year 1958, the
defendant no.1 was a minor, aged only 16 years.

28. He submits that the purported Lease Deed dated 18.11.1958 has
not been filed on record by the defendant no.1.

29. He submits that the defendant no.1 had also issued a Certificate
dated 27.09.1963 (Ex.PW4/10), admitting that she has no right, title
or interest in the Suit Property either as a tenant or as a lessee. He
submits that it was also admitted by the defendant no.1 that the Suit
Property had been leased out to the Vietnam Embassy by late
Smt.Abnash Kaur to protect the same from attachment by the Income
Tax Department and the false claim of her step-sons.

30. On the denial by defendant no.1 of the Certificate dated
27.09.1963 (Ex.PW4/10) and the Letter dated 12.02.1991 (Ex.PW-

4/27), the learned counsel submits that the only evidence led by the
defendant no.1 in this regard was in the form of a private handwriting
expert, Mr.Deepak Jain (DW-3), whose evidence cannot be relied
upon. He submits that Mr.Deepak Jain is not an expert in the field of

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 13 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

comparison of signatures and has also been commented against
adversely by this Court in its Judgment in M/s. Amir Chand Jagdish
Kumar (Exports) Ltd. v. M/s. Hindustan Hing Supplying Co., (2010)
SCC OnLine Del 4146. He submits that the report being relied upon
was a procured report and, therefore, no credence can be given to it.

31. He submits that late Smt.Abnash Kaur had also entered into an
Agreement to Sell dated 02.10.1963 (Ex.PW4/11) for the Suit
Property with one Sh. Jaswant Rai, wherein again, there was no
mention of any lease deed having been executed by late Smt.Abnash
Kaur in favour of the defendant no.1.

32. He submits that the defendant no.1 had executed a General
Power of Attorney dated 27.06.1966 (Ex.PW4/12), appointing the
original plaintiff, late Sh.Ajit Singh, as an Attorney inter alia to look
after the interest of the Suit Property. In discharge of the same, late
Sh. Ajit Singh had been entering into the lease documents with the
Embassy, though in the name of the defendant no.1.

33. Drawing reference of this Court to an Affidavit dated
12.02.1982 (Ex.PW4/13) executed by the defendant no.1, he submits
that in the said affidavit, the defendant no.1 had admitted that she had
no income between the Assessment Years 1966-1967 to 1978-1979.
He submits that, therefore, the redemption of the Suit Property under
the Compromise Decree dated 20.02.1978 (Ex. PW-4/DX8) was from
the funds generated by the defendant no.1 from the Suit Property and
not from her own funds. He submits that since the property was
redeemed from the estate of late Smt. Abnash Kaur, therefore, it was
for the benefit of all her legal heirs.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 14 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

34. He submits that, in any case, the defendant no.1 is only entitled
to receive, from the other five family members, their proportionate
share, based on each family member's ownership share in the Suit
Property, of the money which she paid to redeem the mortgage from
the original mortgagees, that is, the Daphtarys; she cannot claim any
exclusive right in the said property.

35. Further, on the claim of the defendant no.1 that she is the
subrogate mortgagee of the Suit Property, the learned counsel for the
plaintiff, by placing reliance on the Judgment of the Supreme Court in
Krishna Pillai Rajasekharan Nair (dead) by LRs. v. Padmanabha
Pillai (dead) by LRs. & Ors., (2004) 12 SCC 754, submits that the
mortgage was redeemed by defendant no.1 for and on behalf of, and
for the benefit of, the other legal heirs of late Smt. Abnash Kaur,
including the plaintiff. The only right of the redeeming family member
is to seek contribution from the other family members and, at best, to
hold possession of the property until the said contribution is made. He
submits that the same is also recorded in the Compromise Decree
dated 20.02.1978 (Ex.PW-4/DX8) and also in the Order dated
08.05.1981 (Ex.DW-1/45) passed by this Court.

36. He submits that though it is the case of the plaintiff that the
defendant no.1 had redeemed the Suit Property from the estate of late
Smt. Abnash Kaur, through the rentals received by the defendant no.1,
without prejudice, the plaintiff is willing to contribute towards the
redemption amount in terms of the Judgment and Compromise Decree
dated 20.02.1978 (Ex. PW-4/DX8) for its proportionate share of
61.11% in the Suit Property.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 15 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

37. He submits that the defendant no.1, by way of an application
filed under
Order VI Rule 17 of the CPC
, being I.A. 8144/2008, also
sought to take a plea of adverse possession of the Suit Property. The
said application was, however, dismissed by this Court, vide Order
dated 03.11.2009; the appeal thereagainst was dismissed by a Division
Bench of this Court, vide Order dated 15.01.2010; and the Special
Leave Petition filed by the defendant no.1 against the order of
Division Bench was also dismissed by the Supreme Court, vide Order
dated 26.03.2010. He submits that the defendant no.1 also filed an
application under
Order VII Rule 11 of the CPC
, being I.A.
1604/1999, seeking rejection of the plaint on the ground of it being
barred by limitation, which was dismissed by this Court, vide Order
dated 07.04.2008. The Division Bench of this Court, by its Judgment
dated 27.01.2009 passed in FAO(OS) 290/2008, partially set aside the
order of the learned Single Judge of this Court, however, the appeal
against the order of the Division Bench, being Civil Appeal
No.8221/2011, was allowed by the Supreme Court vide Judgment and
Order dated 30.01.2014. The learned counsel for the plaintiff submits
that, therefore, the plea of the defendant no.1 that this Suit is barred by
limitation, cannot be accepted.

38. He further submits that the limitation for the present Suit shall
be governed by
Article 65
of the
Schedule to the Limitation Act, 1963

(in short, '
Limitation Act
'). He submits that since the Suit seeks
partition and has been filed by one of the co-sharers, the possession of
the defendant no.1 shall be deemed to be a constructive possession of
the plaintiff. He submits that the cause of action for seeking partition

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 16 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

is a recurring cause of action, therefore, the Suit has been filed within
the period of limitation.
In support, he places reliance on the Judgment
of the Supreme Court in Vidya Devi alias
Vidya Vati (dead) by LRs v.
Prem Prakash & Ors.
, (1995) 4 SCC 496; and of this Court in

Aishani Chandna Mehra v. Rajesh Chandna & Ors.
, 2019 SCC
OnLine Del 6718.

39. The learned counsel for the plaintiff further submits that the
claim of the defendant no.1 that the defendant no.5 sold his interest in
the Suit Property to the defendant no.1 vide three Agreements to Sell
dated 08.04.1993 (Ex.DW-1/33-35), also cannot be accepted as the
factum of such sale was not pleaded by the defendant no.1 in her
written statement. He submits that there is also no proof of any
payment being made against the alleged Agreements to Sell.

40. In response to the submission of the learned senior counsel for
the defendant no.1 that the Suit is liable to be dismissed as it claims
partial partition, the learned counsel for the plaintiff submits that this
plea has been raised by the defendant no.1 only in the oral
submissions and does not form a part of the pleaded case of the
defendant no.1. He submits that the defendant no.1 cannot be allowed
to agitate a plea beyond the pleadings.

41. He submits that, in any case, the principle of bar against partial
partition is applicable only to Joint Hindu Family/coparcenary
properties and not to the properties which are co-owned by two or
more persons.

42. He submits that even otherwise, there is no complete bar on
seeking partial partition as the same would depend on the facts of each

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 17 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

case and whether or not the other properties are, in fact, capable of
being partitioned. He submits that in the present case, the right of late
Smt. Abnash Kaur in the other properties is being denied by her step-
sons. In fact, even the defendant no.1 in her written statement has
contended that late Smt. Abnash Kaur had not left behind any other
asset/estate. He submits that, therefore, the bar against partial partition
would not be applicable to the facts of the present case.

43.
In support of his above submission, he places reliance on the
Judgments of the Supreme Court in
B.R. Patil v. Tulsa Y. Sawkar &
Ors.
, 2022 SCC OnLine SC 240 and Radhey Shyam Bagla (Since
Deceased) thr.

LRs v. Smt. Ratni Devi Kahnani (Since Deceased
)
through Legal Representatives, 2014 SCC OnLine Del 7103; and of
this Court in
Harish Chander Sharma & Ors. v. Deep Chand Ram
Dass and Sons & Ors.
, 2008 SCC OnLine Del 1253;
Sardar Jarnail
Singh & Anr. v. Sardar Amarjit Singh & Ors.
, 2016 SCC OnLine
Del 6666;
Adarsh Pal Singh Randhawa & Anr. v. Amrit Bolaria &
Anr.
, 2020 SCC OnLine Del 2223;
Tarun K. Vohra v. Pravir K.
Vohra & Ors.
, 2023 SCC OnLine Del 5662; and, Sh. Ved Parkash v.
Sh. Naresh Kumar & Ors., NC 2023:DHC:327.

44. In answer to the submission of the learned senior counsel for
the defendant no.1 that the defendant no.1 is also a protected tenant
under the
Delhi Rent Control Act, 1958
(in short, '
DRC Act
'), the
learned counsel for the plaintiff submits that admittedly the Suit
Property was sub-leased for a rent of more than Rs.3,500/- per month
and, therefore, in terms of
Section 3(1)(c)
of the DRC Act, it would
not be a protected tenancy. He further submits that this Suit itself will

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 18 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

act as an adequate notice for eviction, and that the defendant no.1 is
not entitled to any protection from eviction.
In support, he places
reliance on the Judgments of this Court in
P.S. Jain Co. Ltd. v. Atma
Ram Properties (P) Ltd.
, 1996
SCC OnLine Del 875 and Mir Abdul
Hai & Anr. v. Sanjeev Verma & Ors.
, 2017 SCC OnLine Del 11488.

45. He submits that even otherwise, since the defendant no.1 is
claiming title to the Suit Property, in terms of
Section 116
of the
Indian Evidence Act, 1872 (in short, '
Evidence Act
') read with

Section 111(g)
of the Transfer of Property Act, 1882 (in short, '
TP
Act
'), the defendant no.1 is liable to be evicted from the Suit Property
and she can no longer claim tenancy rights.
In support, he places
reliance on the Judgments of this Court in S. Makhan Singh v. Smt.
Amarjeet Bali, 2008 SCC OnLine Del 1188;
Naeem Ahmed v. Yash
Pal Malhotra
(deceased) Through Lr's &Anr., 2012 SCC OnLine
Del 1189; and, Swarn Lata Agarwal & Anr. v. M/s. Narang
Medicine Co., 2015 SCC OnLine Del 13575.

46. In counter to the submission of the learned senior counsel for
the defendant no.1 that the Suit has abated as the plaintiff has not
proved the Will dated 21.07.1997 (Ex. PW-2/1) of late Sh. Ajit Singh,
the original plaintiff, the learned counsel for the plaintiff submits that
this plea is again beyond the pleadings of the defendant no.1. He
submits that late Sh. Ajit Singh had passed away on or before
12.10.2000. Thereafter, the plaintiff filed an amended plaint, to which
the written statement was filed by the defendant no.1, however, no
such plea or objection was taken by the defendant no.1 in the said
written statement. He submits that the defendant no. 1, therefore,

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 19 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

cannot be permitted to raise a defence not pleaded in the written
statement.

47. He further submits that in any case, the present plaintiff,
admittedly, has 1/6th share in the Suit Property in his own independent
right. In a Suit for partition, the defendants and the plaintiffs are all
considered to be plaintiffs. In terms of Order XXII Rule 2 read with

Order XXII Rule 4 of the CPC
, as the right to sue survives in the
present plaintiff, the Suit cannot abate.

48. He submits that even otherwise, till date, there has been no
objection filed against the genuineness of the Will dated 21.07.1997
left behind by late Sh. Ajit Singh (Ex. PW-2/1). In Delhi, since it is
not mandatory to obtain probate of a Will, therefore, in absence of any
challenge to the said Will, it was not necessary for the plaintiff to lead
further evidence on the genuineness of the Will. He submits that even
the sons of late Sh. Ajit Singh have not challenged the Will and one of
them has, in fact, appeared as a witness in the Suit in support of the
plaintiff.
In support, he places reliance on the Judgment of Supreme
Court in
Kanta Yadav v. Om Prakash Yadav & Ors.
, (2020) 14 SCC
102, and of this Court in
Kamla Nijhawan v. Sushil Kumar Nijhawan
& Ors.
, 2014 SCC OnLine Del 2667 and, Sh. Harminder Khullar v.
Mrs. Swaran Kanta Juneja & Ors., 2013 SCC OnLine Del 2676.

49. In response to the submission of the learned senior counsel for
the defendant no.1 that the plaintiff has failed to bring on record the
legal heirs of the defendant no.5, Mr.Kamal Kishore Bindal, the
learned counsel for the plaintiff reiterates that no such plea was taken
by the defendant no.1 in her written statement. He submits that even

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 20 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

otherwise, the step-sons of late Smt. Abnash Kaur have not claimed
any rights in the Suit Property. He submits that the Suit cannot be
dismissed on this ground at this belated stage, and in case this Court
deems it necessary for the Legal Representatives of the defendant
no.5, Mr.Kamal Kishore Bindal, to be impleaded, it can direct the
same or allow the plaintiff to implead them as parties.
In support, he
places reliance on the Judgments of the Supreme Court in
Daya Ram
& Ors. v. Shyam Sundari & Ors.
, (1965) 1 SCR 231; Dolai Maliko
(Dead) Represented by his Legal Representatives & Ors. v. Krushna
Chandra Patnaik & Ors., (1966) Supp SCR 22;
Harihar Prasad
Singh & Ors. v. Balmiki Prasad Singh & Ors.
, (1975) 1 SCC 212;
Sardar Amarjit Singh Kalra (dead) by LRs.

&
Ors. v. Pramod Gupta
(Smt) (Dead) by LRs
.

& Ors., (2003) 3 SCC 272; and
Delhi
Development Authority v. Diwan Chand Anand & Ors.
, (2022) 10
SCC 428.

Submissions of the learned senior counsel for the defendant nos.1
and 2:

50. Mr.Sundaram, the learned senior counsel for the defendant
nos.1 and 2, submits that the present Suit is liable to be dismissed for
non-joinder of the necessary and proper parties to the Suit. He submits
that the original defendant no.5, Mr.Kamal Kishore Bindal, who
unfortunately passed away on or about 15.12.1995, was unmarried. He
submits that in terms of
Section 9
of the Hindu Succession Act, 1956
(in short, 'HSA'), his half-brothers, falling under Serial No. II of Class
II Legal heirs in the Schedule to the HSA, would have precedence in

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 21 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

succession over the brothers and sisters of his mother, late Smt.
Abnash Kaur, who would fall under Serial No. IX of Class II Legal
heirs in the Schedule to the HSA. He submits that despite the same, in
I.A. 2816/1996, which was filed for the impleadment of the legal heirs
of the late Sh.Kamal Kishore Bindal, the plaintiff represented to the
Court that all the legal heirs of late Sh.Kamal Kishore Bindal are
already on record, and based on this assertion, late Sh.Kamal Kishore
Bindal was deleted from the array of the parties to the Suit. He
submits that in absence of all the legal heirs of late Sh.Kamal Kishore
Bindal, the Suit cannot proceed and is liable to be dismissed.

51. He submits that even on the death of Sh. Ajit Singh, the original
plaintiff, who unfortunately passed away on 12.10.2000, an
application, being I.A.12533/2000, was filed by Smt.Surjeet Kaur
Gill, the then defendant no.3, seeking her transposition as the plaintiff.
In the said application, she herself disclosed that late Sh.Ajit Singh
had left behind two adopted sons namely, Sh.Sanjay Singh and
Sh.Jasjeet Singh, as his legal heirs. However, she claimed her rights
under the purported Will dated 21.07.1997 of Sh. Ajit Singh (Ex. PW-
2/1). This Court, vide its Order dated 04.12.2000, while allowing the
said application, also observed that in case the said Will of Sh.Ajit
Singh is found to be not genuine, the defendant nos.1 and 2 shall be at
liberty to agitate the matter before the Court. He submits that though
the present plaintiff named the attesting witnesses to the alleged Will
dated 21.07.1997 of late Sh. Ajit Singh (Ex. PW-2/1) in his list of
witnesses, however, he did not produce them in evidence. He submits
that, therefore, the plaintiff has failed to prove the said Will in terms

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 22 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

of
Section 63
of the Indian Succession Act, 1925 (in short, 'ISA'), and

Section 68
of the Evidence Act, and, therefore, in absence of the sons
of late Shri Ajit Singh being impleaded, the Suit must fail. He places
reliance on the Judgments of the Supreme Court in

H.VenktachalaAyengar v. B.T. Thimmajamma
, (1958) SCC OnLine
SC 31;
Janki Narayan Bhoir v. Narayan Namdeo Kadam
, (2003) 2
SCC 91, and, Murthy v. C.Saradambal, (2022) 3 SCC 209.

52. He submits that even otherwise, by way of the said Will of late
Sh. Ajit Singh, Sh. Ajit Singh has bequeathed his estate to other
persons as well, and these persons were also necessary parties to the
Suit but have not been impleaded. Placing reliance on the Judgment of
the Supreme Court in
Kenchegowda v. Siddegowda
, (1994) 4 SCC
294 and of this Court in
Hari Om Sharma v. Ghan Shyam Dass
Sharma
, 2018 SCC OnLine Del 7239, he submits that in absence of
all the co-sharers, a decree of partition cannot be passed.

53. The learned senior counsel for the defendant nos.1 and 2 also
submits that it was the own case of the plaintiff that late Smt. Abnash
Kaur had left behind several properties, which are mentioned in the
schedule attached to the plaint. The plaintiff, however, has confined
his claim of partition only to the Suit Property, as is recorded in the
orders dated 09.05.2023 and 19.07.2023 of this Court read with the
affidavit dated 26.07.2023 of the present plaintiff. Placing reliance on
the Judgment of the Supreme Court in
Kenchegowda
(supra), he
submits that a Suit for partial partition is not maintainable in law and
is liable to be dismissed.

He submits that the
Judgment of B.R. Patil

(supra), has carved out an exception to the above rule, however, the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 23 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

same is not applicable to the facts of the present case as the plaintiff
has not referred to the said exception while deleting his claim of
partition for the other properties.

54. He further submits that the distinction being drawn by the
plaintiff that the above rules are applicable only to Joint Hindu
Family/coparcenary properties, is also incorrect. He submits that
where the succession is testamentary,
Section 19
of the HSA shall not
apply, as it applies to a case where two or more heirs succeed together
to the property of an intestate, and in which case alone, they take the
said property as tenants-in-common and not as joint tenants. He
submits that the plaint is based on the averment that the plaintiff has a
unity of title, unity of commencement of title, unity of interest, unity
of equal share, and unity of possession and right of survivorship with
the defendants. Therefore, based on this averment of the plaintiff, this
would be a case of joint tenancy and not tenancy-in-common.
In
support, he places reliance on the Judgment of the Supreme Court in

Suresh Kumar Kohli v. Rakesh Jain & Anr.
, (2018) 6 SCC 708.

55. On the merits of the case, the learned senior counsel for the
defendant nos.1 and 2 submits that in terms of the Compromise
Decree dated 20.02.1978 (Ex. PW-4/DX8), the defendant no.1 was
subrogated to the rights of the original mortgagees, that is, the
Daphtary's, hence, the defendant no.1 was entitled to the delivery of
the mortgage deed and other title documents and was also entitled to
recover the decreetal amount from the other legal heirs of late Smt.
Abnash Kaur. He submits that the said Decree has now attained
finality and cannot be challenged. He submits that, therefore, the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 24 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

submission of the plaintiff that no mortgage is created in favour of the
defendant no.1, is contrary to the said Decree. He submits that, that
Decree cannot be challenged in this Suit. He places reliance on the
Judgments of the Supreme Court in
Mohanlal Goenka v. Benoy
Kishna Mukherjee
, (1952) 2 SCC 648;
Narayana Prabhu
Venkateswara Praphu v. Narayana Prabhu Krishana Prabhu
(Dead) by Lrs.
, (1977) 2 SCC 181; and,
Kalinga Mining Corpn. v.
UOI & Ors.
, (2013) 5 SCC 252, and on
Order XXIII Rule 3A of the
CPC
.

56. The learned senior counsel for the defendant nos.1 and 2 further
submits that the claim of the plaintiff that the mortgage was redeemed
by the defendant no.1 from the rent received from the Suit Property
from 1976 till the date of the redemption in 1981, is also false. Apart
from there being no pleadings in this respect, it is the own case of the
plaintiff in the plaint that the rent from 1975 to 1979 was received by
late Sh.Ajit Singh (the original plaintiff) and was handed over to late
Smt.Abnash Kaur. He submits that the original plaintiff had also
asserted that till the death of late Smt. Abnash Kaur on 10.06.1976,
the entire rental from the Suit Property was being received by late
Smt. Abnash Kaur herself. He submits that as the mortgage was
redeemed in 1981, as recorded in the order dated 08.05.1981 passed
by this Court (Ex. DW-1/45), it could not have been redeemed from
the rentals of the Suit Property and, therefore, the plea taken by the
plaintiff is false and liable to be rejected.

57. He submits that the original plaint had stated that the mortgage
was redeemed from the income derived from the estate of late

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 25 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Smt.Abnash Kaur, which is contradictory to the case that has now
been contended by the plaintiff that the mortgage was redeemed from
the rent received from the Suit Property.

58. The learned senior counsel for the defendant nos.1 and 2
submits that in his cross-examination, the present plaintiff (PW-4) has
admitted that neither he nor Sh. Ajit Singh took any steps to redeem
the mortgage or to pay the sum due to the defendant no.1. The only
remedy now available to them is to file a suit for redemption of the
mortgage along with the consequential relief of possession. However,
since the same has not been filed till date, it is now barred by the law
of limitation.

59. He further submits that under
Article 58
of the
Limitation Act
,
the right to obtain the declaration begins when the right to sue first
accrues, which, in this case, was when the order dated 08.05.1981 was
passed by the Division Bench of this Court in RFA(OS) No. 11/1971,
titled Smt. Abnash Kaur through LRs. v. Smt. Sushila Daphtary and
Anr., (Ex. DW-1/45). He submits that this is not a case of
usufructuary mortgages and the period of limitation as provided under

Article 61
of the
Limitation Act
has, therefore, expired.
In support, he
places reliance on the Judgment of the Supreme Court in
Singh Ram
v. Sheo Ram
, (2014) 9 SCC 185.

60. The learned senior counsel for the defendant nos.1 and 2 further
submits that the plaintiff has also sought to impugn the status of the
defendant no.1 as a lessee of the Suit Property. He submits that the
Will dated 06.02.1973 (Ex. PW-4/2) left behind by late Smt. Abnash
Kaur, which is the basis of the claim and the locus of the plaintiff to

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 26 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

sue, itself admits to the tenancy in favour of the defendant no.1. He
submits that the plaintiff, while attempting to derive benefit from the
said Will, cannot assert that the lease, which has been acknowledged
therein, was a sham.

61. He submits that even otherwise, there have been several
proceedings in which not only late Smt. Abnash Kaur, but also Sh.
Ajit Singh, the original plaintiff, had admitted to the lease in favour of
the defendant no.1.

62. He submits that even though the lease was admittedly in the
knowledge of the original plaintiff, he did not file a Suit within the
period of limitation to challenge the same. The Suit is, therefore,
barred by limitation.

63. The learned senior counsel further submits that in terms of the
Lease Deed dated 18.11.1958, the defendant no.1 is a statutory tenant
under the
DRC Act
. He submits that since the present Suit is not based
on the termination of the said Lease Deed, therefore, the case of
eviction, which is now being setup by the plaintiff only during the
arguments, cannot be accepted.

64. The learned senior counsel for the defendant nos.1 and 2 further
submits that the reliance of the plaintiff on the alleged Certificate
dated 27.09.1963 (Ex.PW4/10), to contend that the defendant no.1
had admitted that the said Lease Deed was a sham document, cannot
be accepted. He submits that the defendant no.1 had denied executing
the same and had even produced a Handwriting Expert, Sh. Deepak
Jain (DW-3), who had opined that the said document does not bear the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 27 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

signatures of the defendant no.1, whereas the plaintiff did not produce
any evidence to prove the said document.

65. He submits that similarly, reliance cannot be placed on the
terms and conditions of the alleged settlement dated 12.02.1991 (Ex.
PW-4/27), alleged to have been addressed by the defendant no.1 to the
original plaintiff, Sh.Ajit Singh. He submits that as Smt. Surjeet Kaur
Gill did not enter the witness box despite repeated opportunities and
her evidence was finally closed vide Order dated 20.08.2014, the said
document, therefore, remained unproved by the plaintiff. On the other
hand, the defendant no.1, through the evidence of Sh. Deepak Jain
(DW-3), who opined that the signatures were not written by the
defendant no.1, has proved that the said document was not executed
by the defendant no.1.

66. The learned senior counsel also submits that the only evidence
led by the plaintiff is that of the present plaintiff, Sh.Gurnir Singh Gill
(PW-2), whose testimony is only hearsay.

67. He further submits that the plaintiff has not affixed proper court
fee on the Suit. He submits that while the plaintiff has valued the
movable and immovable assets of late Smt. Abnash Kaur at Rs.75
crores, he has affixed the Court Fee of only Rs.19.50. He submits that
the claim of the plaintiff to be in constructive possession of the Suit
Property, also cannot be accepted.

Analysis and findings:

68. I have considered the submissions made by the learned counsels
for the parties.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 28 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

69. As the Suit is based on the registered Will dated 06.02.1973 of
late Smt. Abnash Kaur (Ex. PW-4/2), and since the said Will is not in
dispute in the present Suit, at the outset, the contents thereof deserve
to be noticed.

70. In the said Will, late Smt. Abnash Kaur states that she owns in
her name, and in the name of her benamidars, several movable and
immovable properties. Then, she goes on to refer to her shares in the
Lord Krishna Sugar Mills Limited and also mentions the dispute with
respect to the said shares. She also mentions inheriting 1/9th share of
the estate of her late husband, Seth Shiv Prasad, and the dispute that
she has with her step-sons regarding the same.

71. She then mentions the Suit Property, and states that the
possession thereof is with the defendant no.1, who is her tenant under
the Agreement/Lease Deed dated 18.11.1958 and is paying a rent of
Rs.1,500/- per month vide the Amended Agreement dated 12.01.1964.
She also mentions a charge created in favour of the defendant no.1
under the Agreement dated 18.11.1958, whereby she is liable to pay
50% of the amount spent by the defendant no.1 on the renovation of
the said Suit Property, as and when the defendant no.1 vacates the
premises.

72. She also mentions about her jewellery and also about a loan
extended by her to M/s Srichand Vishandass.

73. She then bequeaths all her properties in favour of her son,
Mr.Kamal Kishore; her brother, who was the original plaintiff, Sh.Ajit
Singh; her two sisters, Smt.Adarsh Kaur Gill, the defendant no.1, and
Smt.Surjit Kaur Gill, (the original defendant no.3 who was transposed

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 29 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

as a plaintiff vide Order dated 04.12.2000); her niece, the defendant
no.2, Ms.Noorien Kaur Gill; and her nephew, who is the present
plaintiff, Sh.Gurnir Singh Gill, in equal shares, with each having a
1/6th share in her estate.

74. She appointed the original plaintiff- Sh.Ajit Singh as the sole
Executor and Administrator of her Will.

75. At this point, it is apposite to note that she had expressly stated
that the Executor will first divide the properties that are not in
litigation and thereafter, shall divide the properties against which
litigation is pending, on the conclusion of such litigations.

76. As noted hereinabove, the original plaintiff- Sh.Ajit Singh had
filed the present Suit as the Executor of the said Will of Smt.Abnash
Kaur, and also in his position as a beneficiary thereunder, inter alia
claiming a decree of partition of the estate of late Smt. Abnash Kaur.

77. In the present Suit, Sh.Ajit Singh has inter alia pleaded that the
defendant no.1 had invested huge amounts, which came in her hands
from the estate of late Smt. Abnash Kaur, in the business started by
her. He has further pleaded that the defendant no.1 also invested the
rental income from the Suit Property in the said business. He has
claimed that one of the companies which had been started by the
defendant no.1 in Delhi in or about 1985 is known as M/s Nina
Garments (Pvt.) Ltd. He has claimed that the defendant no.1 has
floated other companies as well by using the income from the estate of
late Smt. Abnash Kaur. He has given the details of such estate in the
form of a schedule annexed to the plaint by making following
averments:

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 30 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

"63. That the entire estate of Smt. Abnash
Kaur, which is in the hands of defendant Nos.1
and 2, or in the name of their nominees, is
liable for partition as per the Will of Smt.
Abnash Kaur. A Schedule of such properties in
India (movable and immovable), as per the
knowledge of the plaintiff is being fil the
plaint.

*******
SCHEDULE

DETAILS 0F IMMOVABLE AND MOVABLE
PROPERTIES BELONGING TO THE
ESTATE OF SMT ABNASH KAUR OF
WHICH THE PLAINTIFF IS PRESENTLY
AWARE OF

(1) Bungalow No. 3, South End Road, New
Delhi measuring 1.336 acresincluding all
movable items fixed in the premises or lying
therein;

(2) Private Limited Company known as "Nina
Garments Pvt.Ltd. 194-A, Ramesh Market,
Garhi, Amar Colony, New Delhi-110065" with
all its immovable andmovable assets and the
amounts lying in the banks, including the
amounts lying in deposit in the said company
in the names of defendants Nos 1 &2;
(3) Cash amounts lying in Saving Bank
Account No.85057, Current Account (Number
not known) and in N.R.I. Account in the name
of defendant No.1 with Grindlays Bank, New
Delhi and the amounts lying in deposit in the
name of Nina Garments Pvt. Ltd. and of
defendants Nos 1 & 2, including the amounts
lying in Saving or Current Account of
defendant No.1 (Account number not known)
with Corporation Bank (Regional Branch),
Connaught Place, New Delhi, including the
amounts lying in accounts in the Saving and
Current account of defendants Nos 1 & 2
(Accounts Numbers not known) in the United

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 31 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Commercial Bank, Parliament Street, New
Delhi;

(4) All jewellery lying in 3, South End Road,
New Delhi, and in Lockers Nos 32-A, 99-A and
924-A in the name of defendant No.1 in United
Commercial Bank, Parliament Street, New
Delhi and in Lockers in other Banks hired by
defendants Nos 1 & 2 (Lockers Numbers not
known), including the precious jewellery lying
in the said lockers;

(5) Apartment No. D-27, Green Park, New
Delhi;

(6) Other movable and immovable properties
purchased by defendants Nos 1 & 2 in India
(particulars presently not known);
(7) All amounts lying in credit in the name of
defendant No.1 in the account books of the
Company "Sss International Pvt Ltd, Masjid
Road, Bhogal, New Delhi", including shares
standing in the name of defendantsNos 1 & 2,
if any;

(8) Precious jewellery and other valuable
items belonging to the estate of SmtAbnash
Kaur, including the precious jewellery
declared by defendant No.1 in her Wealth-Tax
Returns under Amnesty Scheme in the asst
years 1982-83 to 1986-87, and in her Wealth-

Tax Returns in subsequent years."

Partial Partition:

78. Based on the contents of the Will dated 06.02.1973 of late Smt.
Abnash Kaur, the pleadings in the plaint, the subsequent stand of the
plaintiff as recorded in the Orders dated 09.05.2023 and 19.07.2023 of
this Court and the Affidavit of the plaintiff dated 26.07.2023, the
learned senior counsel for the defendant nos.1 and 2 has contended
that by giving up the claims on the other properties left behind by late
Smt. Abnash Kaur, which were forming part of her estate, as is
claimed by the plaintiff, the present Suit now seeks only a partial

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 32 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

partition of the estate of late Smt.Abnash Kaur and, therefore, is not
maintainable. As noted hereinabove, he has placed reliance on the
Judgment of the Supreme Court in
Kenchegowda
(supra).

79.
In
Kenchegowda
(supra), the Supreme Court has held that a
Suit for partial partition, in absence of the inclusion of other joint
family properties and impleadment of the other co-sharers, was not
warranted in law.

While reiterating the said principle, in
B.R. Patil

(supra), the Supreme Court has held that though the law looks with
disfavour upon properties being partitioned partially, the principle that
there cannot be a partial partition at all is not an absolute one. Placing
reliance on Mayne‟s „Treatise on Hindu Law & Usage‟ 17th Edition,
paragraph 487, the Supreme Court has held that the rule against
partial partition is not an inelastic rule, and a suit for partition may be
confined to division of property which is available at the time for
actual division and not merely for division of status. The exception to
the rule would be where the property that has been omitted is not in
possession of the coparceners and may consequently be deemed to be
not really available for partition, or where a property is not admitted to
be a joint property by all the parties to the Suit, and it is contended by
some of them that the property belongs to an outsider. I may quote
from the Judgment as under:

"10. This is the state of the pleading and
evidence in support of the existence of the
property other than what has been scheduled
by the plaintiffs and for which partition is
sought. It is true that the law looks with
disfavor upon properties being partitioned
partially. The principle that there cannot be a
partial partition is not an absolute one. It

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 33 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

admits of exceptions. In Mayne‟s „Treatise on
Hindu Law & Usage‟ 17th Edition, Paragraph
487, reads as follows:

"487. Partition suit should embrace all
property - Every suit for a partition
should ordinarily embrace all joint
properties. But this is not an inelastic
rule which admits circumstances of a
particular case or the interests of justice
so require. Such a suit, however, may be
confined to a division of property which
is available at the time for an actual
division and not merely for a division of
status. Ordinarily a suit for partial
partition does not lie. But, a suit for
partial partition will lie when the portion
omitted is not in the possession of
coparceners and may consequently be
deemed not to be really available for
partition, as for instance, where part of
the family property is in in the
possession of a mortgagee or lessee, or
is an impartible Zamindari, or held
jointly with strangers to the family who
have no interest in the family partition.
So also, partial partition by suit is
allowed where different portions of
property lie in different jurisdictions, or
are out of British India. When an item of
property is not admitted by all the
parties to the suit to be their joint
property and it is contended by some of
them that it belongs to an outsider, then
a suit for partition of joint property
excluding such item does not become
legally incompetent of any rule against
partial partition."

11. In the facts of this case having noticed the
state of the pleadings and the evidence, we are
of the view that the interest of justice lies in
rejecting the appellant‟s contention. The
appellant has not been able to clearly
establish the exact extent or identity of the
property available by way of ancestral
property. Despite claiming to having

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 34 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

documents relating to the properties and
admitting to having no difficulty to produce
them, he does not produce them. He is unable
to even give the boundaries. It is obvious that
he does not claim to be in possession of the
said properties even if it be as a co-owner on
the basis that it is ancestral property. His
evidence discloses that in reality and on the
ground these properties could not be said to be
actually available for the parties to the present
suit to lay claims over them. Properties not in
the possession of co-sharers/coparceners
being omitted cannot result in a suit for the
partition of the properties which are in their
possession being rejected."

80. The above exception was also noticed by a Division Bench of
this Court in Radhey Shyam Bagla (Since Deceased) thr.
LRs

(supra), wherein it was further held that the bar against partial
partition would not apply where the properties are not established to
be joint in nature, that is, HUF or coparcenary assets, but are disputed
or otherwise held commonly, and the exclusion of such properties
would not be fatal to the maintainability of the proceedings.

81. A learned Single Judge of this Court applied the ratio of the
above Judgment in
Sardar Jarnail Singh & Anr.
(supra), by holding
as under:

"7. A Division Bench of this Court recently in

Radhey Shyam Bagla v. Ratni Devi Kahnan
,
also faced with a plea of the suit for partition
being bad for the reason of being for partial
partition, held (i) that subject to exceptional
circumstances, a suit instituted for partition
should include all the joint family properties;

(ii) the general principle is that a cosharer
filing a suit for partition against the other co-

sharers has to bring all the joint properties
into the hotchpot, failing which a suit may be

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 35 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

dismissed on the ground of partial partition as
the proper equity in a suit for partition will not
be possible if all joint properties are not
brought into the hotchpot; (iii) the normal rule
governing suits for partition is that it has to
incorporate all partible coparcenary property
and should implead all those entitled to a
share; (iv) however this rule is not a rigid and
an inflexible one; reliance was placed on Mst.
HatesharKuer v. Sakaldeo Singh laying down
that the rule aims for preventing multiplicity of
legal proceedings which results if separate
suits were to be instituted in respect of
fragments of joint estates and that normally it
is more convenient to institute one suit for
partition of all the joint properties for
equitable distribution and adjustment of
accounts-however this being a rule dictated by
consideration of practical convenience and
equity, may justifiably be ignored when in a
given case there are cogent grounds for
departing from it; (v) however the said rule
applies primarily to coparcenary property -

where the parties are not coparceners but
tenants in common, it makes a substantial
difference in the applicability of the rule as no
coparcener has a share in any particular
property but there is no such basis for
application of the rule to property which is
held in common; (vi) a distinction has to be
made between jointly or commonly held
property and coparcenary property; and, vii) a
suit for partition of a common property as
distinct from joint property is not liable to
dismissal on the ground that all the joint
property in respect of which partition may
have been sought have not been included.

8. Applying the aforesaid law, I am of the
opinion that the present suit for partition of
property acquired by the parties hereto vide
sale- deeds, in their own name is not bad for
being for partial partition as the other
properties which have not been included have
been acquired by the parties to this suit, not by

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 36 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

acquisition directly in their name, but by
inheritance, jointly with others and which
others have nothing to do with the property to
which this suit pertains."

82. From the above, it is evident that the rule against
maintainability of a suit for partial partition applies only when
partition is sought for HUF or coparcenary properties, and not where
the parties claim their right as tenants-in-common, because while all
coparcenary properties form a part of the common hotchpot and no
coparcener has a share in any particular joint family property,
however, for commonly held properties there is no such basis of
application of the rule barring partial partition. At this point, it would
be apposite to ascertain the status of parties to the present Suit. The
learned senior counsel for the defendant nos. 1 and 2 has contended
that the parties to the present Suit have acquired the interest in the Suit
Property as joint tenants and not tenants-in-common.

83. The Supreme Court in
Suresh Kumar Kohli
(supra), while
explaining the distinction between joint tenancy and tenancy-in-
common, has held as under:

"14. The issue at hand is what would be the
status of the succeeding legal representatives
after the death of the statutory tenant. In this
regard, it would be worthy to discuss the two
capacities, viz. tenancy-in-common and joint
tenancy, and the rights that one holds in these
two different capacities. Fundamentally, the
concepts of joint tenancy and tenancy-in-
common are different and distinct in form and
substance. The incidents regarding the
cotenancy and joint tenancy are different :

joint tenants have unity of title, unity of
commencement of title, unity of interest, unity

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 37 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

of equal shares in the joint estate, unity of
possession and right of survivorship.

15. Tenancy-in-common is a different concept.

There is unity of possession but no unity of
title, i.e. the interests are differently held and
each co-tenant has different shares over the
estate. Thus, the tenancy rights, being
proprietary rights, by applying the principle of
inheritance, the shares of heirs are different
and ownership of leasehold rights would be
confined to the respective shares of each heir
and none will have title to the entire leasehold
property. Therefore, the estate shall be divided
among the co-tenants and each tenant in
common has an estate in the whole of single
tenancy. Consequently, the privity exists
between the landlord and the tenant in
common in respect of such estate."

84. This distinction was recently highlighted by the Division Bench
of this Court in
Tarun K. Vohra
(supra), wherein the Division Bench
considered the effect of
Section 19
and
Section 30
of the HSA and
held that the property devolving on the heirs of a Hindu, whether or
not he/she dies intestate, devolves on the heirs as tenants-in-common
and not as joint tenants. The Division Bench also opined that the
question as to whether the property devolved on the parties in equal
shares by virtue of a Will or on account of the deceased dying intestate
is inconsequential to determine the nature of the properties in the
hands of the parties. It was held that the rule against partial partition is
applicable in respect of joint family properties or coparcenary
properties and not where the properties are held by the parties as
tenants-in-common. I may quote from the Judgment as under:

"18. In the present case, there is no dispute
that the Suit Property is a self-acquired
property of the parents of the parties. The

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 38 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

question whether it devolved on the parties in
equal shares by virtue of the Will or on
account of Late Smt. Primla Vohra dying
intestate is inconsequential to determine the
nature of the properties in the hands of the
parties.

19. It is relevant to refer to
Section 19
and

Section 30
of the Hindu Succession Act, 1956
(hereafter „the Act‟). The same are set out
below:

"19. Mode of succession of two or
more heirs.- If two or more heirs
succeed together to the property of an
intestate, they shall take the property,-

(a) save as otherwise expressly
provided in this Act, per capita and
not per stirpes; and

(b) as tenants-in-common and not as
joint tenants.

30. Testamentary succession.- Any
Hindu may dispose of by will or other
testamentary disposition any property,
which is capable of being so
[disposed of by him or by her], in
accordance with the provisions of the

Indian Succession Act, 1925
(39 of
1925), or any other law for the time
being in force and applicable to
Hindus."

20. A conjoint reading of
Sections 19
and
of
the Act makes it amply clear that the property
devolving on the heirs of a Hindu whether he/
she dies intestate, devolves on them as tenants-
in-common and not as joint tenants.

21. The question whether the heirs of a
deceased tenant inherit the statutory tenancy
as tenants-in-common or as joint tenants has
been a subject matter of much debate.
In
H.C.
Pandey v. G.C. Paul
, the Supreme Court held
as under:

"4. It is now well settled that on the
death of the original tenant, subject to
any provision to the contrary either
negativing or limiting the succession,

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 39 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

the tenancy rights devolve on the heirs
of the deceased tenant. The incidence
of the tenancy are the same as those
enjoyed by the original tenant. It is a
single tenancy which devolves on the
heirs. There is no division of the
premises or of the rent payable
thereof. That is the position as
between the landlord and the heirs of
the deceased tenant. In other words,
the heirs succeed to the tenancy as
joint tenants...."

22. In a later decision in Mst.
Surayya Begum
v. Mohd. Usman
, the Supreme Court clarified
as under:

"8. So far as
Section 19
of the Hindu
Succession Act, 1956, is concerned,
when it directs that the heirs of a
Hindu dying intestate shall take his
property as tenants-in-common, it is
dealing with the rights of the heirs
inter se amongst them, and not with
their relationship with a stranger
having a superior or distinctly
separate right therein. The
relationship between the stranger and
the heirs of a deceased tenant is not
the subject matter of the section...."

23. In case of a statutory tenancy, the same
devolves on the heirs as a joint tenancy vis-à-
vis the landlord. However, as explained by the
Supreme Court in Mst. Surayya Begum v.

Mohd. Usman inter se the heirs, inherit the
property of the predecessor as tenants-in-

common. In the present case, since there is no
dispute that the Suit Property is a self-

acquired property and had devolved on the
parties in equal shares, the decision of the
learned Single Judge to pass a preliminary
decree and set down the matter for passing a
final decree on the aforesaid basis cannot be
faulted.

24.
In
Kenchegowda (Since Deceased) by LRs
v. Siddegowda Alias Motegowda
, the Supreme

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 40 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Court had set out the rule in respect of
maintainability of suits for partial partition as
under:

"16....Even otherwise, a suit for
partial partition in the absence of the
inclusion of other joint family
properties and the impleadment of the
other co-sharers was not warranted in
law."

25. The aforesaid decision was noted by the
Division Bench of this Court in Radhey Shyam
Bagla (Since Deceased) through
LRs v. Smt.
Ratni Devi Kahnani (Since Deceased
) through
Lrs.

In the said case, this Court also noticed
the decisions of the Karnataka High Court in

Sri Tukaram v. Sri Sambhaji
as well as the
decision of the Calcutta High Court in

Satchidananda Samanta v. Ranjan Kumar
Basu
wherein, the principle was accepted that,
in a suit for partition of shares of members of
a joint family, it is necessary to bring all the
joint properties into the hotchpot failing
which, the suit would be for a partial partition,
which is not maintainable. However, it is
necessary to note that in Mst.
Hateshar Kuer
v. Sakaldeo Singh, the Supreme Court had
observed as under:

"The rule requiring inclusion of the
entire joint estate in a suit for
partition is not a rigid and in elastic
rule which can admit of no exception.
This rule aims at preventing
multiplicity of legal proceedings
which must result if separate suits
were to be instituted in respect of
fragments of joint estates. Normally
speaking, it is more convenient to
institute one suit for partition of all
the joint properties and implead all
the interested co-sharers so that all
questions relating to the share of the
various co-owners and the equitable
distribution and adjustment of
accounts can be finally determined.

But, this being a rule dictated by
consideration of practical

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 41 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

convenience and equity may
justifiably be ignored when, in a given
case there are cogent grounds for
departing from it."

26. Thus, the suit for partial partition would
not be proceeded with unless and until all
other joint properties are brought into the
hotchpot and all co-sharers are impleaded as
parties. However, the said rule is applicable in
respect of joint family properties or
coparcenary properties and not where the
properties are held by the parties as tenants-
in-common. This principle was noticed by the
Bombay High Court in
Sitaram Vinayak
Hasabnis v. Narayan ShankarraoHasabnis
,
where it was held as under:

"3. The rule is subject to exceptions
arising out of convenience and from
other causes. But it applies primarily
to coparcenary property. The parties
in this case are not coparceners but
tenants-in-common; and in our view
that may well make a substantial
difference in the applicability of the
rule.

*** *** ***
.....We have not been shown any direct
authority, that a suit for partition of
common property, not joint property,
is liable to dismissal on the ground
that all the joint property in respect of
which might have been brought, has
not been included. Shortly, we have
not been shown that the objection,
founded on what is usually described
as the plea of partial partition is
available when a suit for division of
common property, not joint property
is in question."

85. Applying the above principles to the facts of the present case, I
find no merit in the objection raised by the learned senior counsel for
the defendant nos.1 and 2. In the present case, the Suit prays for
partition of the Suit Property, which is not HUF or coparcenary in

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 42 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

nature, but rather, is in the nature of separate/self-acquired property of
Smt. Abnash Kaur and has been bequeathed by her in favour of the six
beneficiaries under her Will dated 06.02.1973 (Ex. PW-4/2). The
nature of the Suit Property being the separate/self-acquired property of
Smt. Abnash Kaur is not disputed by any of the parties to the Suit.
Therefore, the rule of bar against partial partition would not be
applicable to the facts of this case.

86. As far as the other properties, which have been bequeathed to
the parties under the said Will are concerned, the Will itself records
that the same are in dispute, particularly with the step-sons of late
Smt. Abnash Kaur. Since it is not the case of the defendant nos.1 and
2 that the other properties, apart from the Suit Property, are available
for partition, therefore, they cannot claim the rigid application of the
rule against partial partition. In the facts of the present case, clearly
these other assets are not available to the parties for partition and,
therefore, it cannot be said that the present Suit is not maintainable on
the ground that it seeks partial partition of the estate of late Smt.
Abnash Kaur or that it excludes from actual partition the other assets
of late Smt. Abnash Kaur.

87. That apart, the original plaintiff had filed the present Suit
claiming therein that the defendant no.1 had started a business from
the estate of late Smt. Abnash Kaur, and had also acquired several
assets by investing the income from the estate of late Smt. Abnash
Kaur. In her written statement, the defendant no.1 denied these
assertions of the plaintiff, and contended as under:

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 43 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

"38. Contents of Paragraph 38 of the plaint
are wrong and are denied. Abnash Kaur left
no estate except the suit property. All her
jewellery and cash had been misappropriated
by the Plaintiff who, having become insolvent
in 1958-59, basically spent his time frittering
away the assets of Abnash Kaur and thereby
reducing her to a state of penury. As stated
above Abnash Kaur could not pay the agreed
rent of 1400/- p.m. and it was got reduced to
Rs. 1000/- p.m. from the Court of Rent
Controller, Delhi.

Abnash Kaur eventually became
dependent upon answering defendant whose
businesses alongwith her sister defendant no.3
herein were flourishing by the this time.

******

61. Contents of Paragraph 61 of the plaint are
wrong and are denied. There were no positive
assets of Abnash Kaur. She died in debt. There
were several decrees against her when she
died. The Plaintiff had misappropriated all her
jewellery, and assets including cash. The
assets that the answering defendant holds at
present are what she has earned from her
businesses. In fact it was she who maintained
Abnash Kaur during the latter‟s life time. This
the answering defendant did out of love and
affection for her sister.

61A. Contents of Paragraph 61A of the plaint
are wrong and are denied. The allegations are
vague and incorrect and the legal propositions
are unsound and deserve immediate dismissal.

*** *** ***

63. Contents of Paragraph 63 of the Plaint are
wrong and are denied. There is no positive
estate left by Abnash Kaur as falsely alleged
by the Plaintiff. The Estate Duty Return of
Abnash Kaur is clear on this point."

88. It is, therefore, the own case of the defendant no.1 that apart
from the Suit Property, there is no other asset of late Smt. Abnash

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 44 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Kaur which is available to be partitioned. She has also denied the
schedule attached to the plaint, which contains the list of properties
allegedly forming the estate of late Smt. Abnash Kaur. She is now,
therefore, estopped from contending that there were other assets left
behind by late Smt. Abnash Kaur which deserve to be partitioned, and
that in absence of the relief whereof, the present Suit is not
maintainable.

The Will of late Sh.Ajit Singh:

89. The learned senior counsel for the defendant nos.1 and 2 has
contended that by the Order dated 04.12.2000, Smt.Surjit Kaur Gill
was transposed as a plaintiff in place of the original plaintiff- Sh. Ajit
Singh, based on a purported Will dated 21.07.1997 (Ex.PW-2/1)
executed by him, whereunder she had been appointed as an
Executor/Administrator. This Court, however, also clarified that if the
said Will is found to be not genuine, then the defendant nos.1 and 2
would be at liberty to agitate the matter before this Court. The learned
senior counsel for the defendant nos.1 and 2 has, therefore, submitted
that as Smt.Surjit Kaur Gill and the present plaintiff- Sh.Gurnir Singh
Gill, have not led any evidence to prove the said Will, in terms of
Section 63 of the ISA and
Section 68
of the Evidence Act, therefore,
the Will remains unproved and the Suit is liable to be dismissed.

90. While there is no doubt on the proposition that a Will must be
proved in accordance with the above provisions of the ISA and the
Evidence Act, and by adducing in evidence at least one attesting
witness to the Will, who would not only testify to the valid execution

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 45 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

of the Will but also to the sound and disposing state of mind of the
testator, and that the propounder of a Will must also remove any
suspicion on the due execution of the Will, however, at the same time,
it must also be kept in mind that in Delhi there is no requirement for
mandatorily obtaining a Probate/Letter of Administration of a Will.
Reference in this regard may be made to the Judgment of the Supreme
Court in
Kanta Yadav
(supra).

91. In the present case, there is no issue framed by this Court on the
genuineness of the Will dated 21.07.1997 (Ex.PW-2/1) of late Sh. Ajit
Singh. In fact, the learned senior counsel for the defendant nos.1 and 2
has been unable to show to this Court if the Will of late Sh. Ajit Singh
was ever disputed by the said defendants.

92. Once there is no dispute raised to the said Will, it cannot be
said, at this stage, that the Suit is not maintainable only because the
plaintiff failed to lead any evidence to prove the Will dated
21.07.1997 (Ex.PW-2/1) of late Sh. Ajit Singh. There was, in fact, no
necessity for the plaintiff to have led any such evidence in the facts of
the present case.

Non-impleadment of necessary parties:

93. The learned senior counsel for the defendant nos.1 and 2 has
further contended that there were other beneficiaries, namely,
Sh.Kuldip Singh, Sh.Sanjay Singh, and Sh.Jasjeet Singh under the
Will of late Sh.Ajit Singh. He has also contended that Smt.Surjit Kaur
Gill, in her application seeking transposition as a plaintiff, being I.A.
No.12533/2000, had herself disclosed that Sh.Ajit Singh had left

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 46 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

behind two legal heirs, namely, Sh.Sanjay Singh and Sh.Jasjeet Singh,
who were his adopted sons. He also submits that as on the death of
late Smt.Surjit Kaur Gill, the present plaintiff, Sh.Gurnir Singh Gill,
did not seek his substitution as an Executor of the alleged Will of
Sh.Ajit Singh, therefore, on both counts the necessary parties are not
on record of the Suit.

94. I again find no merit in the said contention. The Supreme Court
in the case of
Shivshankara & Anr. v. H.P. Vedavyasa Char
, 2023
SCC OnLine SC 358, while considering similar facts, has held that the
non-impleadment of all legal representatives would not result in the
abatement of the Suit if the estate of the deceased is substantially
represented by other parties to the Suit. I may quote from the said
Judgment as under:

"35. As noticed earlier, the appellants have
also contended that the suit ought to have been
held as abated against all the defendants
owing to non-substitution of all the legal
representatives of the deceased defendant No.
3 upon his death. This contention is bereft of
any basis and merits and was rightly repelled
by the courts below. In that regard it is to be
noted that the first appellant and deceased
second appellant as also their father
Hanumaiah were all arrayed in the suit as
defendants and they were jointly defending the
suit. Upon the death of original third
defendant viz., Hanumaiah the original
defendants No. 1 and 2, who are sons of the
original defendant No. 3 fully and
substantially representing the joint interest
contested the suit and, thereafter, after
suffering an adverse judgment and decree in
the suit diligently preferred the appeal before
the High Court which ultimately culminated in
the impugned judgment and decree. Even

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 47 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

thereafter, obviously they are diligently
prosecuting the joint interest, even if the
contention of joint interest is taken as correct,
by filing the captioned appeal.

36. In the contextual situation the following
decisions assumes relevance. The decision
in Bhurey Khan v. Yaseen Khan (Dead) By
LRs.9 was referred to in the impugned
judgment by the High Court to reject the
aforesaid contention of the appellants therein
viz. original defendant Nos. 1 and 2. In
paragraph 4 of the decision in Bhurey Khan's
case, this Court held thus:--

"......the estate of the deceased was thus
sufficiently represented. If the appellant
would not have filed any application to
bring on record the daughters and the
widow of the deceased the appeal would
not have abated under
Order 22 Rule
4 of the Code of Civil Procedure
as held
by this Court in
Mahabir Prasad v. Jage
Ram
[(1971) 1 SCC 265 : AIR 1971 SC
742]. The position, in our opinion, would
not be worse where an application was
made for bringing on record other legal
representatives but that was dismissed
for one or the other reason. Since the
estate of the deceased was represented
the appeal could not have been abated."

37.
In the decision in State of Andhra Pradesh
through
Principal Secretary v. Pratap
Karan10
, this Court held:--

"40. In the instant case, the plaintiffs
joined together and filed the suit for
rectification of the revenue record by
incorporating their names as the owners
and possessors in respect of the suit land
on the ground inter alia that after the
death of their predecessor-in-title, who
was admittedly the pattadar and
khatadar, the plaintiffs succeeded the
estate as sharers being the sons of
khatadar. Indisputably, therefore, all the
plaintiffs had equal shares in the suit
property left by their predecessors.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 48 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Hence, in the event of death of any of the
plaintiffs, the estate is fully and
substantially represented by the other
sharers as owners of the suit property.
Therefore, by reason of non-substitution
of the legal representative(s) of the
deceased plaintiffs, who died during the
pendency of the appeal in the High
Court, entire appeal shall not stand
abated. Remaining sharers, having
definite shares in the estate of the
deceased, shall be entitled to proceed
with the appeal without the appeal
having been abated. We, therefore, do
not find any reason to agree with the
submission made by the learned counsel
appearing for the appellants."

38. We are of the considered view that the
same analogy is applicable in a case where
even in the event of death of one of the
defendants, when the estate/interest was
being fully and substantially represented in
the suit jointly by the other defendants along
with deceased defendant and when they are
also his legal representatives. In such cases,
by reason of non-impleadment of all other
legal heirs consequential to the death of the
said defendant, the defendants could not be
heard to contend that the suit should stand
abated on account of non-substitution of all
the other legal representatives of the deceased
defendant. In this case, it is to be noted that
along with the deceased 3rd defendant the
original defendant Nos. 1 and 2 were jointly
defending their joint interest. Hence, applying
the ratio of the aforesaid decision and taking
into account the fact that the appellants/the
original defendants No. 1 and 2 despite the
death of original defendant No. 3 defended the
suit and preferred and prosecuted the first
appeal. Upon the death of the second
appellant the joint interest is being fully and
substantially taken forward in this proceeding
as well by the first appellant along with the
substituted legal representatives of the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 49 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

deceased second appellant, we do not find any
reason to disagree with the conclusions and
findings of the courts below for rejecting the
contention that suit ought to have held abated
owing to the non-substitution of all the legal
heirs of deceased third defendant against all
defendants. For the same reason, the
contention that the suit was bad for non-

joinder of necessary parties of all his legal
heirs/representatives also has to fail."

(Emphasis Supplied)

95. In the present case, in his Will dated 21.07.1997 (Ex.PW-2/1),
late Sh.Ajit Singh had appointed Smt.Surjit Kaur Gill, and in the event
of her demise, Sh.Gurnir Singh Gill, as the Executor and
Administrator of his Will. Though, there were other beneficiaries
under the said Will, late Smt.Surjit Kaur Gill and Sh.Gurnir Singh Gill
were to act as the Executor of the said Will. Furthermore, the interests
of Smt.Surjit Kaur Gill and Sh.Gurnir Singh Gill were not adverse to
that of late Sh.Ajit Singh, and the estate of late Sh.Ajit Singh was
adequately represented by Smt.Surjit Kaur Gill and Sh.Gurnir Singh
Gill, being the executors of his Will. Therefore, the Suit cannot abate
merely for non-impleadment of all legal heirs of late Sh.Ajit Singh.

96. Therefore, I find no merit in the objection raised by the learned
senior counsel for the defendant nos.1 and 2 based on the non-
impleadment of all the legal heirs of late Sh.Ajit Singh on his demise.

Non-impleadment of the legal heirs of late Sh.Kamal Kishore Bindal
(original defendant no.5):

97. The learned senior counsel for the defendant nos.1 and 2
submits that, admittedly, as per the Will dated 06.02.1973 (Ex.PW-

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 50 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

4/2), Sh.Kamal Kishore Bindal had 1/6th share in the Suit Property.
Sh.Kamal Kishore Bindal passed away intestate on 15.12.1995.
Placing reliance on
Section 8(b)
read with
Section 9
read with Class II
of the Schedule to the HSA, he states that Sh.Kamal Kishore Bindal
did not have any Class I legal heirs, and as his half-brothers would fall
under Serial II of the Class II heirs, therefore, they will inheret his
estate in precedence over the brothers and sisters of his mother, who
are the parties in the present Suit, and who fall under Serial IX of the
Class II heirs in the Schedule to the HSA. Relying on
Section
3(1)(e)(ii)
, he submits that the half-brothers would not be related to
Sh.Kamal Kishore Bindal by uterine blood as they are not related to
each other through a common ancestress. He submits that in spite of
the same, upon the death of Sh.Kamal Kishore Bindal, an application,
being I.A. No.2816/1996, was filed by the original plaintiff, stating
that as all the legal representatives of late Sh.Kamal Kishore Bindal
are on record and are already impleaded as parties to the Suit,
therefore, there is no necessity to bring his legal representatives on
record. Based on such assertion, vide Order dated 25.07.2000, the
defendant no.5 was deleted from the array of parties by stating that all
his legal representatives are on record. The learned senior counsel for
the defendant nos. 1 and 2 claims that the said assertion was
deliberately made by the plaintiff and that the step-sons of late Smt.
Abnash Kaur should have been impleaded as legal representatives of
the estate of late Sh.Kamal Kishore Bindal.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 51 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

98. Placing reliance on the Judgments in
Kenchegowda
(supra) and

Hari Om Sharma
(supra), he submits that a decree of partition in
absence of all coparceners/co-sharers cannot be passed.

99. I have considered the submission made.

100. While there cannot be any dispute with the legal proposition
urged by the learned senior counsel for the defendant nos.1 and 2,
however, at the same time, based on the said submission, the Suit
cannot be held to be not maintainable. It is not the case of the
defendant nos.1 and 2 that the defendant nos.1 and 2 had ever opposed
the application filed by the plaintiff wherein it had been claimed that
Sh.Kamal Kishore Bindal had left behind only the parties to the Suit
as his legal heirs, and it was based on such assertion, in fact, that this
Court disposed of the said application vide Order dated 25.07.2000.
The objection has been raised for the first time only during the oral
submissions of the learned senior counsel for the defendant nos.1 and

2. There is no pleading to the said effect in the written statement or
even thereafter. There is also no issue framed in that regard.

101. The Supreme Court in Dolai Maliko (supra), while observing
that the respondents therein had not objected to the fact that certain
legal representatives of the deceased had not been impleaded and that
such objection was only raised at a belated stage, as is the case herein,
has held that the mere fact that the legal representatives of a party to
the Suit are not impleaded because of some over-sight or doubt itself
will not lead to the abatement of the Suit. I may reproduce the relevant
paragraphs of the said Judgment herein-below:

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 52 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

"5.In the present case there is no question of
any fraud or collusion; nor is there anything
to show that there had not been a fair or real
trial, nor can it be said that against the absent
heir there was a special case which was not
and could not be tried in the proceeding in
his absence. It may also be noticed that the
respondents themselves did not object in the
Court of the Subordinate Judge that some of
the heirs of deceased Dolai had been left out
and the case proceeded there as if the estate
of Dolai deceased was represented in full by
the heirs brought on record. It was only in the
High Court that it was discovered that Dolai
had left three other heirs who had not been
brought on the record. In the circumstances
we are of opinion that the estate of Dolai was
fully represented by the heirs who had been
brought on the record in the Subordinate
Judge's court and that these heirs represented
the absent heirs also who would be equally
bound by the result, and there is no reason to
hold that the appeal before the Subordinate
Judge had abated on that ground.

6. We may in this connection refer to certain
cases where a similar view has been taken. In
Abdul Rahman v. Shahab-ud-Din [ILR (1920)
1 Lah 481] the appellant had died and only his
sons were brought on the record and not his
widow and daughters, though the appellant
was a Mohammadan. It was held that as the
heirs who had applied for being brought on
record as heirs and legal representatives of
the deceased appellant bona fide believed that
they were the sole heirs and legal
representatives of the deceased, the appeal did
not abate notwithstanding that in
Mohammadan law other persons would be co-
heirs of the deceased.

7.
In
Mohd. Zafaryab Khan v. Abdul Razzaq
[ILR
(1928) L All 857] it was held that "when
by an order which has become final, a certain
person's name has been brought on to the
record of an appeal as the legal representative
of the deceased appellant, it is not open to the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 53 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

respondent to urge that the appeal has abated
because some other heirs have been left out".

8. In Ram Charan v. Bansidhar [ILR (1942)
All 671] the sole appellant had died leaving
two daughters. One of his daughters was
brought on record as his legal representative
but not the other. It was held that the
substitution of one of the daughters as legal
representative of the deceased must be deemed
to have been for the benefit of the entire
inheritance which came into being on his
death, and the entire estate was represented by
her and there was no abatement of any part of
it.

9. In Babuie Shanti Devi v. Khodai Prasad
Singh [AIR (1942) Patna 340] on the death of
the plaintiff in a suit to enforce a mortgage his
sons were brought on record but not his widow
who had herself filed a petition stating that she
was not in possession of the properties of the
deceased plaintiff nor did she desire any
interest in the family properties, it was held
that the failure to bring the widow on the
record was a mere technical defect and the
suit did not abate.

10.
In
IshwarlalLaxmichand Patel v. Kuber
Mohan Lawar
[AIR (1943) Bom 457] on the
death of the appellant, his son was brought on
record as heir on his application and the
widow who also was an heir was left out, it
was held that it was proper that both the son
and the widow should have applied for being
brought on the record but that the appeal did
not abate merely because the widow had not
applied as the estate was fully represented by
the son.

11. We are of opinion that these cases have
been correctly decided and even where the
plaintiff or the appellant has died and all his
heirs have not been brought on the record
because of oversight or because of some
doubt as to who are his heirs, the suit or the
appeal, as the case may be, does not abate
and the heirs brought on the record fully
represent the estate unless there are

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 54 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

circumstances like fraud or collusion to
which we have already
referred above
."

(Emphasis Supplied)

102. In the present case, there is no dispute that the step-sons of late
Smt. Abnash Kaur were claiming a right in the Suit Property adverse
to that of late Smt. Abnash Kaur. They had filed a Civil Suit against
late Smt. Abnash Kaur, which was ultimately dismissed by this Court.
From the Will dated 21.07.1997 of late Sh.Ajit Singh (Ex.PW-2/1), it
appears that the step-sons of late Smt. Abnash Kaur had, in fact, also
started claiming that late Smt. Abnash Kaur was not legally wedded to
late Seth Shiv Prasad. Therefore, in absence of any objection from the
defendant nos.1 and 2 at the relevant time, and in view of the above
peculiar facts wherein the step-sons are, in fact, claiming an interest in
the Suit Property which is adverse not only to the plaintiff but also to
the defendant nos.1 and 2 and to Sh.Kamal Kishore Bindal, it cannot
be said that the plaintiff wanted to steal a march over the alleged legal
heirs of Sh.Kamal Kishore Bindal or on the defendant nos. 1 and 2 by
not impleading them in the Suit. If at all, the lapse to not implead them
at the death of Sh.Kamal Kishore Bindal appears to be genuine, bona
fide, and not lacking any due diligence.

103. In view of the above, on the death of Sh.Kamal Kishore Bindal,
his share in the Suit Property would devolve upon his half-brothers as
they fall under Serial II of the Class 2 legal heirs in the Schedule of
the HSA. However, the Suit cannot fail due to non-impleadment of the
half-brothers of Sh.Kamal Kishore Bindal as his legal heirs.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 55 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

104. At this stage, it may also be relevant to note that the defendant
no.1 has placed on record two Agreements to Sell dated 08.04.1993
(Ex.DW1/33 and Ex.DW1/35) purpotedly executed by late Sh.Kamal
Kishore Bindal transferring his rights in the Suit Property in favour of
defendant nos.1 and 2. As noted hereinabove, the learned counsel for
the plaintiff has submitted that not only are there no pleadings in the
written statement filed by the defendant nos.1 and 2 regarding any
such Agreements to Sell, but also the defendant nos.1 and 2 have not
proved the said documents or any consideration passing to late Shri
Kamal Kishore Bindal under the same.

105. This Court need not adjudicate on the above issues as no right is
being claimed by the defendant no.1 or defendant no.2 in the present
Suit based on these Agreements and they are not the subject matter of
the present Suit. No issue in this regard was framed or pressed by the
defendant no.1 and/or the defendant no.2. In fact, the learned counsel
for the defendant nos.1 and 2 did not make any submissions relying
upon the said Agreements.

Whether the Suit seeking partition of the Suit Property without
praying for a decree of redemption of the mortgage is
maintainable?:

106. As noted hereinabove, it is the case of the defendant no.1 that in
terms of the Judgment and Compromise Decree dated 20.02.1978
(Ex.PW-4/DX8) passed by a Division Bench of this Court in
RFA(OS) No. 11/1971, titled Smt. Abnash Kaur through LRs. v.
Smt. Sushila Daphtary and Anr., the defendant no.1 was subrogated

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 56 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

to the rights of the original mortgagee, that is, the Daphtarys. On the
other hand, it is the case of the plaintiff that in terms of the above-
mentioned Decree, the defendant no.1 was only given the right to
recover the full decretal amount from the other legal heirs of late Smt.
Abnash Kaur and, in law, the defendant no.1 cannot claim her rights
as a subrogatee as understood under
Section 92
of the TP Act.

107. To appreciate the above contentions, a brief recapitulation of
the facts leading to the Compromise Decree dated 20.02.1978 passed
in RFA(OS)11/1971, titled Smt. Abnash Kaur through LRs. v. Smt.
Sushila Daphtary and Anr.(Ex. PW-4/DX8) by a Division Bench of
this Court in the above referred appeal, would need to be made.

108. It is not disputed that late Smt. Abnash Kaur had created a
mortgage in favour of the Daphtarys against a loan of Rs.1,98,000/-,
vide Mortgage Deeds dated 19.01.1959 (Ex. DW-1/42) and
24.01.1959 (Ex. DW-1/43), and the Daphtarys had obtained a
preliminary Decree dated 29.01.1971, passed by a learned Single
Judge of this Court in Suit No. 282/1967, titled Shrimati Sushila
Daphtary & Anr. v. Shrimati Abnash Kaur & Ors. (Ex. PW-4/16),
whereby late Smt. Abnash Kaur was directed to pay the Daphtarys a
sum of Rs.1,98,000/- as principal amount along with interest thereon
at the rate of 7.5% per annum from the date of the mortgage till the
date of its realization. Late Smt. Abnash Kaur was allowed three
months' time to redeem the said mortgage and in the event of default,
the Daphtarys were held entitled to apply to the Court for a final
Decree for the sale of the mortgaged property, that is, the Suit
Property.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 57 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

109. In an appeal filed by the legal heirs of late Smt. Abnash Kaur,
that is, the parties herein, being RFA(OS) 11/1971, titled Smt.
Abnash Kaur through LRs. v. Smt. Sushila Daphtary and Anr, a
Division Bench of this Court, while confirming the Decree passed by
the learned Single Judge, further by a Decree dated 20.02.1978, held
that the same will be deemed to be satisfied, if the appellants therein,
that is, the legal heirs of late Smt. Abnash Kaur under the Will dated
06.02.1973, pay a sum of Rs.3,60,000/- to the Daphtarys in
accordance with the schedule mentioned therein. In the said Decree, it
was further recorded as under:-

"3. In order to avoid any possible disputes
amongst the appellants themselves, it is
recorded that all the other appellants will be
bound to contribute to any sums that may be
paid by Mrs. Adarsh Kaur Gill pursuant to this
compromise, and that after payment she will
be entitled to recover their proportionate
share from the other appellants.

4. If the compromise is carried out, then on
payment of the amounts hereby agreed to be
paid, the mortgage deeds and title deeds shall
be returned to Mrs. Adarsh Kaur Gill, and the
mortgaged property shall be deemed to have
been redeemed by her and she will be
subrogated to the rights of the mortgagees,
and shall be entitled to recover the full
decretal amount from the other appellants as if
this compromise had not been made and the
appeal had been dismissed, with interest
accrued due till the date of payment by them.

5. Nothing in paragraphs 3 and 4 above
shall in any manner affect the rights of
respondents Nos.1 and 2 under this
compromise, or otherwise prejudice them in
any manner whatsoever, and the said two
paragraphs had been inserted herein solely for
the purpose of the appellants.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 58 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

6. It is hereby recorded that the appellants
other than Mrs. Adarsh Kaur Gill have also
agreed to be bound by all the terms and
conditions of the compromise herein
recorded."

110. It is not disputed that the defendant no.1 paid the entire amount
in terms of the above Decree to the Daphtarys, and based on the same,
a Division Bench of this Court passed an Order dated 08.05.1981 (Ex.
DW-1/45) in the above appeal, which reads as under:-

"This application is not opposed. Mr. Chawla
says that the decretal amount has been paid to
his clients.

Accordingly, satisfaction of the decree is
recorded.

The two mortgage deeds and the other title
deeds mentioned in paragraph 11(11) of this
application will now be delivered to the
applicant by the Deputy Registrar on 20th
May 1981, on which date this matter will be
listed before him.

The applicant will be subrogated to the rights
of the mortgagees in accordance with the
terms of the compromise decree dated 20th
February 1978.

This application is disposed of accordingly.
There will be no order as to costs."

111. It is on the basis of the above orders, that the defendant no.1
claims her rights as a subrogatee, while the plaintiff claims that she is
only entitled to recover the amount paid by her to the Daphtarys from
the other legal heirs of late Smt. Abnash Kaur in proportion to their
shares in the Suit Property.

112. At this point, I find it necessary to refer to
Section 92
of the TP
Act, which defines the rights of a subrogatee of a mortgage. It reads as
under:-

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 59 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

"92. Subrogation.--Any of the persons
referred to in section 91 (other than the
mortgagor) and any co-mortgagor shall, on
redeeming property subject to the mortgage,
have, so far as regards redemption,
foreclosure or sale of such property, the same
rights as the mortgagee whose mortgage he
redeems may have against the mortgagor or
any other mortgagee.

The right conferred by this section is called the
right of subrogation, and a person acquiring
the same is said to be subrogated to the rights
of the mortgagee whose mortgage he redeems.
A person who has advanced to a mortgagor
money with which the mortgage has been
redeemed shall be subrogated to the rights of
the mortgagee whose mortgage has been
redeemed, if the mortgagor has by a registered
instrument agreed that such persons shall be
so subrogated.

Nothing in this section shall be deemed to
confer a right of subrogation on any person
unless the mortgage in respect of which the
right is claimed has been redeemed in full."

113. In Krishna Pillai Rajasekharan Nair (dead) by LRs. (supra),
the Supreme Court, while considering an almost similar factual
situation, framed the question of law as under:-

"5. At the very outset, it may be stated that the
learned counsel for Defendant 1 submitted that
the parties in this case were of
Sripandarachetti Cult of Kerala, governed by
Hindu Mitakshara law and as there had been a
partition in family before 1941, the year in
which the suit for redemption was filed, it
cannot be said that Defendant 1 while
redeeming the property alone was acting on
behalf of the family or the joint family funds
were utilised for payment of mortgage money.
In our opinion, this controversy is wholly
besides the point. Whether there was a
partition in the family and whether Schedule

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 60 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

„C‟ property was also partitioned is not of any
consequence for the present controversy
inasmuch as we find that so far as the
Schedule „C‟ property is concerned it was
subject to mortgage and the plaintiff and
Defendant 1 both had shares therein. They
may be co-tenants or tenants-in-common but
that would not make any difference so far as
the status of the plaintiff and Defendant 1
being co-mortgagors qua the suit property is
concerned. We proceed on this factual premise
that out of the co-mortgagors, more than one,
and all having entitlement to a share each in
the suit property, one of them had redeemed
the property by paying the entire mortgaged
money and had singularly entered into
possession over the entire mortgaged property.
Consequent upon redemption, it is the other
co-owner of the property i.e. the plaintiff, who
is now asking for the partition of the property
commensurate with his share. We have to see
what are the rights and obligations of the
parties qua each other and whether a suit for
partition filed by the plaintiff was
maintainable. That would determine the
question of limitation as well."

(Emphasis Supplied)

114. The Supreme Court held that such a situation would be covered
by the first part of
Section 92
of the TP Act. It held as under:-

"9. A bare reading of the provision shows that
the first para of this section deals with
subrogation by operation of law. Subrogation
by agreement is dealt with in the third para.
The present one is not a case of subrogation
by agreement. The relevant provision
applicable would, therefore, be as contained in
first para of
Section 92
. The provision
statutorily incorporates the long-standing and
settled rule of equity which has been held to be
applicable even in such territories where the

Transfer of Property Act
does not apply."

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 61 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

115. The Supreme Court also relied upon its earlier Judgment in

Ganeshi Lal v. Joti Pershad
, (1952) 2 SCC 373, which had repelled
the contention of the defendant no.1 therein that a Suit for partition
and possession was not maintainable without bringing a suit for
redemption. The Supreme Court discussed the said Judgment in the
following words:-

"10. In the early case
of Hodgson v. Shaw [Hodgson v. Shaw, (1834)
3 My & K 183 : 40 ER 70] Lord Brougham
said : (ER p. 73)
"... The rule here is undoubted, and it is
one founded on the plainest principles of
natural reason and justice, that the
surety paying off a debt shall stand in
the place of the creditor, and have all the
rights which he has, for the purpose of
obtaining his reimbursement."

(emphasis supplied)
I have italicised the word "reimbursement".

Sheldon in his well-known treatise
on Subrogation has got the following passage
in
Section 13
of the 2nd Edn.:

"13. Subrogation will be made to serve
the purposes of Justice and the intent of
the parties.--There is another class of
cases in which he who has paid money
due upon a mortgage of land to which he
had some title which might be affected or
defeated by the mortgage, and who was
thus entitled to redeem, has the right to
consider the mortgage as subsisting in
himself, and to hold the land as if it
subsisted, until others interested in the
redemption, or who held also the right to
redeem, have paid a contribution."

Be it noted that what is spoken of here is a
contribution.

11. Dealing with the subject of subrogation of
a surety by payment of a promissory note and
citing the observations of the Alabama Court,

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 62 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Harris says in his work on Subrogation (1889
Edn.) at p. 125:

"The rule is, that a surety paying a debt,
shall stand in the place of the creditor;
and is entitled to the benefit of all the
securities which the creditor had for the
payment of the debt, from the principal
debtors; in a word, he is subrogated to
all the rights of the creditor; the surety,
however, cannot avail himself of the
instrument on which he is surety, by its
payment. By payment it is discharged
and ceases to exist, and the payment will
not, even in equity, be considered an
assignment; the surety merely becomes
the creditor of the principal to the
amount paid for him."

12. To compel the co-debtors or co-

mortgagors to pay more than their share of
what was paid to the creditor or mortgagee
would be to perpetrate an inequity or injustice,
as it would mean that the debtor who is in a
position to pay and pays up can obtain an
advantage for himself over the other joint
debtors. Such a result will not be
countenanced by equity; the favouritism shown
by law to a surety, high as it is, does not
extend so far. The surety can ask to be
indemnified for his loss : he can invoke the
doctrine of subrogation as an aid to his right
of contribution. Sheldon says in
Section 105
of
his book:

"The subrogation of a surety will not be
carried further than is necessary for his
indemnity; if he buys up the security at a
discount, or makes his payment in a
depreciated currency, he can enforce it
only for what it cost him. He cannot
speculate at the expense of his principal;
his only right is to be repaid."

116. The Supreme Court also distinguished its earlier Judgment in

Valliamma Champaka Pillai v. Sivathanu Pillai and Others
, (1979)

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 63 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

4 SCC 429, which had dismissed an appeal filed by the plaintiff
therein against a Judgment of the Full Bench of the High Court of
Madras, which had held that a non-redeeming co-mortgagor has two
periods of limitation within which he may file his suit against the
redeeming co-mortgagor for redemption of his share, namely, within
50 years provided for by the Travancore Limitation Act, starting from
the date of the mortgage, or, if that period has already expired, then
within 12 years from the date of redemption by the redeeming co-
mortgagor, under
Article 132
of the Travancore Limitation Act. The
Supreme Court in Krishna Pillai Rajasekharan Nair (dead) by LRs.

(supra) held that the elevation of the status of the redeeming co-
mortgagor to that of the original mortgagee, although there was no
assignment of the mortgaged debt in his favour, was beyond the law
enunciated by the Supreme Court in
Ganeshi Lal
(supra). The Court
observed as under:-

"15. Whatever the difference might be
between the English law and the Indian law as
regards the right to enforce decrees and
securities for the due payment of a debt in the
case of a surety who discharges a simple
money debt and a surety who pays up a
mortgage, it is still noteworthy that Section V
of the Mercantile Law Amendment Act, 1856
(England) provided for indemnification by the
principal debtor for the advances made and
loss sustained by the surety.

16. There is a distinction in this respect
between a third party who claims subrogation
and a co-mortgagor who claims the right, and
this is brought out by Sir Rashbehary Ghose in
his Law of Mortgage in India, Vol. I, 5th Edn.
He says at p. 354, pointingout that co-
mortgagors stand in a fiduciary relation:

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 64 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

"I should add that an assignee of a
mortgage is entitled, as a rule, to
recover whatever may be due on the
security. But if he stands in a fiduciary
relation, he can only claim the price
which he has actually paid together with
incidental expenses."

117. The Court also approved its earlier Judgment in
Variavan
Saraswathi & Anr. v. Eachampi Thevi & Ors.
, 1993 Supp (2) SCC
201, by observing as under:-

"17.
In
Variavan Saraswathi
case [1993 Supp
(2) SCC 201] the law has been set out with
precision and clarity and both the earlier
decisions dealt with hereinabove have been
referred to. Their Lordships (vide para 6) have
dealt with the contrast between two situations:

(i) where a mortgagee assigns his interest in
favour of another person (i.e. a stranger); and,

(ii) where a co-mortgagor or any one on
behalf of the mortgagor and authorised under
law pays the amount and brings to an end the
interest which the mortgagee had. It has been
held that in the first case the assignee becomes
holder of the same interest which the
mortgagee had i.e. he steps into the shoes of
the mortgagee. In the latter case, once the
mortgage debt is discharged by a person
beneficially interested in the equity of
redemption, the mortgage comes to an end by
operation of law. Consequently, the
relationship of mortgagor and mortgagee
cannot subsist. A person paying off a debt to
secure the property either with the consent of
others or on his own volition becomes, in law,
the owner entitled to hold and possess the
property. But in equity the right is to hold the
property till he is reimbursed. Such right in
equity either in favour of the person who
discharges the debt or the person whose debt
has been discharged, does not result in
resumption of relationship of mortgagor and

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 65 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

mortgagee.

18. Dealing with
Section 92
of the Transfer of
Property Act it has been held in
Variavan
Saraswathi
case [1993 Supp (2) SCC 201] that
the rights created in favour of a redeeming co-
mortgagor as a result of discharge of debt are
"so far as regards redemption, foreclosure or
sale of such property, the same rights as the
mortgagee whose mortgage he redeems".

Posing a question -- does a person who, in
equity, gets subrogated become a mortgagee?

Their Lordships have held: (SCC p. 207, para

7)
"A plain reading of the section does not
warrant a construction that the
substitutee becomes a mortgagee. The
expression is, „right(s) as the mortgagee‟
and not right(s) of mortgagee. The
legislative purpose was statutory
recognition of the equitable right to hold
the property till the co-mortgagor was
reimbursed. And not to create
relationship of mortgagor and
mortgagee. The section confers certain
rights on co-mortgagor and provides for
the manner of its exercise as well. The
rights are of redemption, foreclosure
and sale. And the manner of exercise is
as mortgagee. The word „as‟, according
to Black's Law Dictionary, means „in the
manner prescribed‟. Thus a co-

mortgagor in possession, of excess share
redeemed by him, can enforce his claim
against non-redeeming mortgagor by
exercising rights of foreclosure or sale
as is exercised by mortgagee under

Section 67
of the Transfer of Property
Act. But that does not make him
mortgagee."

It was further observed that the abovesaid
legal position does not alter either because
during partition the equity of redemption in
respect of property redeemed was transferred
or because in the plaint it was claimed that
mortgage subsisted.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 66 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

19.
In our opinion, the law as stated
in
Variavan Saraswathi
case [1993 Supp (2)
SCC 201] where
Section 92
of the Transfer of
Property Act has been specifically dealt with
and which, as admitted at the Bar, applies to
the mortgage in question, clinches the issue
arising for decision in the present case."

118. The Supreme Court has held that the doctrine of subrogation is
based on the doctrine of equity and the principles of natural justice
and not on the doctrine of privity of contract. One of such principles
of equity is that a person paying money on someone else's behalf,
which another is bound by law to pay, is entitled to be reimbursed by
the other. The Court has further held that a case, similar to the one in
the present, would be governed by the first paragraph of
Section 92
of
the TP Act, which recognizes the same equity of reimbursement as is
provided under
Section 69
of the Indian Contract Act, 1872.

119. The Supreme Court held that
Section 92
of the TP Act does not
have the effect of the substitutee becoming a mortgagee. It only
confers certain rights on the redeeming co-mortgagors and also
provides for certain remedies like the remedy of redemption,
foreclosure and sale being available to the substitutee just as they were
available to the person substituted, that is, the mortgagee. These
rights, which the subrogatee exercises are, therefore, not as a
mortgagee, but are akin to those vested in a mortgagor. Therefore, one
of the co-mortgagors, by redeeming the mortgage in its entirety,
cannot claim a right higher than what he otherwise had, nor can he
defeat a legal claim for partition. The right created in his favour is the
right to claim contribution from the other co-mortgagors. He can resist

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 67 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

the claim of the non-redeeming co-mortgagors to the partition of the
property by pleading his right of contribution and by not parting with
the property unless the non-redeeming co-mortgagor discharges his
duty to make the contribution. However, this would not make the Suit
seeking partition of property as one seeking redemption. I may quote
from the Judgmentin as under:-

"21. The present one is a case of subrogation
by the operation of law and hence governed by
the first para of
Section 92
of the Transfer of
Property Act. The provision recognises the
same equity of reimbursement as underlies

Section 69
of the Indian Contract Act that "a
person who is interested in the payment of
money which another is bound by law to pay,
and who therefore pays it is entitled to be
reimbursed by the other". Such a payment
made, carries with it, at times, an equitable
charge.
Section 92
of the Transfer of Property
Act does not have the effect of a substitutee
becoming a mortgagee. The provision confers
certain rights on the redeeming co-mortgagor
and also provides for the remedy of
redemption; foreclosure and sale being
available to the substitutee as they were
available to the person substituted. These
rights the subrogee exercises not as a
mortgagee reincarnate but by way of rights
akin to those vesting in the mortgagee. The co-
mortgagor can be a co-owner too. A property
subject to mortgage is available, as between
co-mortgagors, for partition, of course, subject
to adjustment for the burden on the property.
One of the co-mortgagors, by redeeming the
mortgage in its entirety, cannot claim a right
higher than what he otherwise had, faced with
a claim for partition by the other co-owner. He
cannot defeat the legal claim for partition
though he can insist on the exercise of such
legal right claimed by the other co-owner-
cum-co-mortgagor being made subject to the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 68 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

exercise of the equitable right to claim
contribution vesting in him by subrogation.

22. In our opinion, the suit filed in the present
case being a suit for partition primarily and
predominantly and the relief of redemption
having been sought for only pursuant to the
direction made by the High Court in its order
of remand, the limitation for the suit would be
governed by
Article 120
of the Limitation Act,
1908. For a suit for partition the starting point
of limitation is -- when the right to sue
accrues, that is, when the plaintiff has notice
of his entitlement to partition being denied. In
such a suit, the right of the redeeming co-
mortgagor would be to resist the claim of non-
redeeming co-mortgagor by pleading his right
of contribution and not to part with the
property unless the non-redeeming co-
mortgagor had discharged his duty to make
contribution. This equitable defence taken by
the redeeming co-mortgagor in the written
statement would not convert the suit into a suit
for redemption filed by the non-redeeming co-
mortgagor."

120. The Court also clarified that it would make no difference in the
above position of law where such co-mortgagors are joint tenants or
tenants-in-common. While clarifying the same, the Supreme Court has
held as under:-

"25. It was also submitted by the learned
counsel for the respondent that it would make
a difference if the family to which the parties
belong was joint at the time of mortgage and
at the time of redemption. The learned counsel
submitted that on account of partition in the
family the parties had ceased to be co-tenants
and were tenants-in-common qua each other
and therefore the redemption by the
respondent was not and cannot be deemed to
be on behalf of the family. In our opinion, it is
not necessary to deal with this submission at

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 69 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

all. Whether joint-tenants or tenants-in-
common, the fact remains that the status of the
plaintiff and defendant was that of co-
mortgagors, one being a non-redeeming co-
mortgagor and the other being a redeeming
co-mortgagor. The law would remain the same
and its applicability would not change whether
the parties are treated as co-tenants or
tenants-in-common."

121. Applying the above principles to the facts of the present case,
the Compromise Decree dated 20.02.1978 passed in
RFA(OS)11/1971, titled Smt. Abnash Kaur through LRs. v. Smt.
Sushila Daphtary and Anr.(Ex. PW-4/DX8) by the Division Bench
of this Court had stated that the defendant no.1 was subrogated to the
rights of the original mortgagees, that is, the Daphtarys. It also
clarified that the defendant no.1 was entitled to recover the full
decretal amount with interest accrued till the date of payment from the
appellants therein, that is, the parties to the present Suit, as if the
compromise had not been made and the appeal had been dismissed. It
also clarified that the other appellants in the said appeal were bound to
contribute to the sums that were being paid by the defendant no.1 in
pursuance of the compromise and after the payment, the defendant
no.1 herein was entitled to recover the proportionate share of the
amount paid by her for redemption of the mortgage, as contribution
from the other appellants in the appeal. The order dated
08.05.1981(Ex. DW-1/45) also stated that the defendant no.1 would
be subrogated to the rights of the mortgagees in accordance with the
terms of the Compromise Decree dated 20.02.1978.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 70 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

122. In terms of the above Decree and Order, the right vested in the
defendant no.1 was to recover the full decretal amount, along with
interest accrued thereon till the date of the payment from the other
legal heirs of late Smt. Abnash Kaur who had a share in the Suit
Property. In view of the Judgment of the Supreme Court in Krishna
Pillai Rajasekharan Nair (dead) by LRs. (supra), therefore, the only
right vested in the defendant no.1 is to claim a contribution of the
amount paid by her, along with interest, from the other legal heirs of
late Smt. Abnash Kaur, and to resist a claim for partition and
possession of the property made by the other co-owners unless such
amount is first paid by the other legal heirs to the defendant no.1. The
other legal heirs, however, do not have to specifically pray for
redemption of the mortgage.

Claim of the plaintiff that the mortgage was redeemed from the
estate of late Smt. Abnash Kaur:

123. The learned counsel for the plaintiff, as recorded in the Order
dated 09.05.2023, has restricted prayer (f) of the Suit by claiming that
the mortgage had been redeemed by the defendant no.1 from the rental
income received by the defendant no.1 from the Suit Property after the
death of Smt. Abnash Kaur in 1976 and till the date of redemption of
the mortgage in May, 1981, and not from any other part of the estate
of late Smt. Abnash Kaur.

124. I must herein itself note that the original plaint had claimed that
the mortgage had been redeemed by the defendant no.1 in her name
from the estate of late Smt. Abnash Kaur, based on legal advice. As

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 71 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

the estate was not defined, the learned counsel for the plaintiff, during
the course of submissions, as noted hereinabove, has confined the
same to be from the rental income from the Suit Property received by
the defendant no.1 between the period of 1976 till 1981. The learned
counsel for the plaintiff further submits that the rent between the
period of 1978 and 1979 was Rs.6,000/- per month; and between the
period of January, 1980 till May, 1981 was Rs.12,500/- per month.

125. I do not find any merit in the above contention of the learned
counsel for the plaintiff.

126. The settlement agreement as recorded in the Decree dated
20.02.1978 passed in RFA(OS)11/1971, titled Smt. Abnash Kaur
through LRs. v. Smt. Sushila Daphtary and Anr.(Ex. PW-4/DX8) by
the Division Bench of this Court, and the Order dated 08.05.1981
passed by the Division Bench of this Court (Ex. DW-1/45), all clearly
record that the defendant no.1 is the person who had redeemed the
mortgage, and that she would be entitled to claim the amount paid by
her for the redemption of the mortgage from the other co-sharers. This
itself belies the claim of the plaintiff that the mortgage had been
redeemed by the defendant no.1 from the estate of late Smt. Abnash
Kaur. There is no challenge to the decree or the order passed in the
above appeal, before this Court.

127. Even otherwise, in terms of the Lease Deed dated 18.11.1958
executed between late Smt. Abnash Kaur and the defendant no.1, the
defendant no.1 was entitled to sub-lease the property. The rent
received from such sub-lease, therefore, cannot be said to be the estate
of late Smt. Abnash Kaur.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 72 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

128. The learned senior counsel for the defendant nos.1 and 2 has
also drawn my attention to the averment made in the original plaint
itself wherein it has been claimed as under:

"32. The plaintiff submits that the last leave
and licence agreement was executed by him
(he being the General Attorney of Defendant
No.1) on the instructions of Smt. Abnash Kaur
with the G.D.R.Embassy in November, 1974
for the period from 1.1.1975 to 31.12.1979 at
Rs.11,000/- per month. G.D.R. Embassy made
the full payment of the said five years in
advance in the name of defendant No.1 to the
plaintiff, that is Rs.6,60,000/- (Rs.3,60,000/- by
cheque of their BankersUnited commercial
Bank, Parliament Street, New Delhi, in favouir
of the plaintiff, and Rs.3,00,000/- in cash
against receipt), as desired by Smt. Abnash
Kaur. The said amount of Rs.6,60,000/- was
paid by the plaintiff to Smt. Abnash Kaur. The
plaintiff submits that even while filing the
income tax returns for the assessment year
1975-76 in the name of the defendant No.1,
Smt. Abnash Kaur had shown only Rs.5,000/-
per month instead of Rs. 11,000/- per month,
for the months of January, February and
March, 1975."

129. It was the own case of the plaintiff that the rent for the period
till 31.12.1979 had been paid by the G.D.R. Embassy in advance to
the plaintiff/late Smt. Abnash Kaur. The said money was, therefore,
not in the hands of the defendant no.1 for her to redeem the mortgage.
The plaintiff is clearly building a new case in the course of his
submissions and the same is liable to be rejected.

130. In view of the above, I find no merit in the claim of the plaintiff
that the mortgage over the Suit Property was redeemed by the
defendant no.1 from the estate of late Smt. Abnash Kaur.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 73 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Submission of the learned counsel for the plaintiff that the plaintiff
is deemed to have contributed his share of the redemption amount to
defendant no.1 from the rent received by defendant no.1:

131. The learned counsel for the plaintiff has submitted that the
defendant no.1, admittedly, has received a rent of Rs.6,000/- per
month from 20.02.1978 (date of redemption of mortgage) to
31.12.1979, and thereafter, Rs.12,500/- per month from January 1980
to March 1985, and Rs.17,500/- per month from January 1986 to
December 1990 from the G.D.R. Embassy. He submits that, therefore,
the defendant no.1 has received a total of Rs.17,35,500/- as rent for
the above period. He submits that as against this, the plaintiff, in terms
of the Decree dated 20.02.1978 passed in RFA(OS)11/1971, titled
Smt. Abnash Kaur through LRs. v. Smt. Sushila Daphtary and
Anr.(Ex. PW-4/DX8) by the Division Bench of this Court, is liable to
contribute 61.11% as his share in the redemption amount, which
would be Rs.10,58,685/-. He submits that, therefore, the plaintiff is
deemed to have paid his share of the redemption amount to defendant
no.1.

132. I do not find any merit in the above contention of the learned
counsel for the plaintiff.

133. Apart from the fact that it was the own case of the plaintiff that
the rent from G.D.R. Embassy for the period 01.01.1975 to
31.12.1979 had been received in advance by the plaintiff and was
given to late Smt. Abnash Kaur, even otherwise, not only under the
Lease Deed but also as a subrogate mortgagee, it has not been shown

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 74 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

by the plaintiff how the plaintiff can claim any right in the rent being
received by the defendant no.1.

134. In the Decree dated 20.02.1978 passed in RFA(OS)11/1971,
titled Smt. Abnash Kaur through LRs. v. Smt. Sushila Daphtary and
Anr.(Ex. PW-4/DX8) by the Division Bench of this Court, it has not
been provided that any rent or income received by the defendant no.1
as a subrogatee mortgagee of the Suit Property would have to be
adjusted against her claim for payment of the principal amount or the
interest of the redemption amount. In the absence of any such
stipulation, the plaintiff cannot claim that any rent received by the
defendant no.1 post the redemption of the mortgage would ensure to
the benefit of the plaintiff or the other co-sharer.

Period of limitation for filing of the Suit:

135. The learned senior counsel for defendant nos.1 and 2, based on
the plea that the defendant no.1 had been subrogated to the right of the
mortgagee/Daphtarys, and as the Suit does not pray for the redemption
of mortgage, contended that the Suit would now be barred under

Article 61
of the
Limitation Act
.

136. I do not find any merit in this submission.

137. As held in Krishna Pillai Rajasekharan Nair (dead) by LRs,
the plaintiff is not to sue for redemption of the mortgage and a suit for
partition would be maintainable, though the defendant no.1 would be
entitled to resist the claim of partition unless the plaintiff contributes
his share of money paid for the redemption of the mortgage by
defendant no.1 and the incidental expenses thereto.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 75 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

138. As far as the Suit for partition is concerned, it would be
governed by
Article 65
of the
Limitation Act
.

139.
In Devi alias Vidya Vati (dead) by
LRs
(supra), the Supreme
Court has reiterated that the legislature has not prescribed any period
of limitation for filing a Suit for partition because partition is an
incident attached to the property and there is always a running cause
of action for seeking partition by one of the co-sharers. Where the
property is joint, co-sharers are the representatives of each other, and a
co-sharer who is in possession of the joint property shall be deemed to
be in possession on behalf of all the co-sharers. It is only if the co-
sharer or joint owner in possession of the property, professes a hostile
title as against the other co-sharers openly and to the knowledge of the
other co-owners, that he can be provided the hostile title where the
possession has continued uninterruptedly for the whole period
prescribed for recovery of possession, that is, 12 years. I may quote
from the Judgment as under:

"20. The legislature has not prescribed any
period of limitation for filing a suit for
partition because partition is an incident
attached to the property and there is always a
running cause of action for seeking partition
by one of the co-sharers if and when he
decides not to keep his share joint with other
to co-sharers. Since the filing of the suit is
wholly dependent upon the will of the co-
sharer, the period of limitation, specially the
date or time from which such period would
commence, could not have been possibly
provided for by the legislature and, therefore,
in this Act also a period of limitation, so far as
suits for partition are concerned, has not been
prescribed. This, however does not mean that
a co-sharer who is arrayed as a defendant in

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 76 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

the suit cannot raise the plea of adverse
possession against the co-sharer who has
come before the court as a plaintiff seeking
partition of his share in the joint property.

21. Normally, where the property is joint, co-
sharers are the representatives of each other.
The co-sharer who might be in possession of
the joint property shall be deemed to be in
possession on behalf of all the co-sharers. As
such, it would be difficult to raise the plea of
adverse possession by one co-sharer against
the other. But if the co-sharer or the joint
owner had been professing hostile title as
against other co-sharers openly and to the
knowledge of other joint owners, he can,
provided the hostile title or possession has
continued uninterruptedly for the whole period
prescribed for recovery of possession,
legitimately acquire title by adverse
possession and can plead such title in defence
to the claim for partition."

140. A learned Single Judge of this Court, has explained the above
concept for its relevance to the period of limitation, in
Ashok Kumar
v. Mohd. Rustam& Anr.
, 2016 SCC OnLine Del 466, by observing as
under:

"16.
Article 58
of the
Schedule to the
Limitation Act
, for the relief of declaration,
undoubtedly provides limitation of three years
from the date when the cause of action
accrues. However I am of the opinion that
once the plaintiff, besides suing for
declaration of title also sues for recovery of
possession of immovable property on the basis
of title, the limitation for such a suit would be
governed by the limitation provided for the
relief of possession and not by limitation
provided for the relief of declaration. To hold
otherwise would tantamount to providing two
different periods of limitation for a suit for
recovery of possession of immovable property
based on title i.e. of three years if the suit

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 77 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

besides for the said relief is also for the relief
of declaration of title and of twelve years as
aforesaid if no relief of declaration is claimed.
A relief of declaration of title to immovable
property is implicit in a suit for recovery of
possession of immovable property based on
title inasmuch as without establishing title to
property, if disputed, no decree for the relief of
possession also can be passed. Thus, merely
because a plaintiff in such a suit also
specifically claims the relief of declaration of
title, cannot be a ground to treat him
differently and reduce the period of limitation
available to him from that provided of twelve
years, to three years. Supreme Court in

Anathula Sudhakar v. P. Buchi Reddy
(2008) 4
SCC 594 held (i) where a cloud is raised over
plaintiff's title and he does not have
possession, a suit for declaration and
possession is the remedy; (ii) where the
plaintiff's title is not in dispute or under a
cloud, but he is out of possession, he has to sue
for possession; (iii) a cloud is said to arise
over a person's title, when some apparent
defect in his title to a property, or when some
prima facie right of a third party over it, is
made out or shown.

17. I am supported in my aforesaid view by:

A. GhanshyamdasVallabhadasGujrathi
v. BrijramanRasiklal where a Division
Bench of the High Court of Bombay
negatived the contention as found favour
with the learned Additional District
Judge in the impugned order and held
that the main relief being of possession,
and declaration being an ancillary
relief, the proper Article of the
Limitation Act would be
Article 65
and
not
Article 58
of the First Schedule;

B. State of Maharashtra v. Pravin
JethalalKamdar
(2000) 3 SCC 460
where it was held that the factum of the
plaintiff besides the relief of possession
having sought declaration also is of no

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 78 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

consequence and in such a case the
governing article of the
Schedule to the
Limitation Act
is
Article 65;

C. MechineniChokka Rao v.

SattuSattamma where the High Court of
Andhra Pradesh reiterated that to a suit
based on title but claiming declaration
of title to the suit property with
consequential relief of possession,

Article 65
would apply and
Article 58

would have no application;
Article 58

applies only to a case where declaration
simpliciter is sought i.e. without any
further relief; the 89th Report of the Law
Commission recommending for
amendment of
Article 58
by adding the
words "without seeking further relief"

after the word "declaration" in the first
column of
Article 58
, so as to avoid any
confusion was also noticed;

D. Ashok Kumar v. Gangadhar
AIR
2007 AP 145 where the High Court of
Andhra Pradesh again held that a suit
for declaration of title and consequential
relief of possession filed within twelve
years from the date when the defendant
dispossessed the plaintiff cannot be held
to be barred by limitation;

E. C. Natrajan v. Ashim Bai
(2007) 14
SCC 183 where it was held that if the
suit has been filed for possession as a
consequence of declaration of the
plaintiff's title,
Article 58
will have no
limitation;

F. Boya Pareshappa v. G. Raghavendra
Nine where the High Court of Andhra
Pradesh while reiterating the earlier
view further reasoned that Part V of the
Schedule to the Limitation Act
specifically deals with category of suits
relating to immovable property and
having regard to the categorisation
made in the Schedule, the limitation
provided in
Article 65
in Part V is to
prevail over
Article 58
contained in Part

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 79 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

III; it was further reasoned that under

Section 27
of the Limitation Act, the
right in immovable property stands
extinguished after the expiry of the
period prescribed for filing of suit for
possession thereof; therefore, if the
period falls short of the requisite period
of 12 years, the right over an immovable
property will not get extinguished; thus
when a person has a right over an
immovable property which right is not
extinguished, he can lay the suit in
respect of immovable property, even
praying for the relief of declaration, at
any time within the period of 12 years at
the end of which only his right would get
extinguished; therefore declaratory suits
pertaining to immovable property are
governed by
Articles 64
and
and not
by
Article 58
of the Act;

G. Seetharaman v. Jayaraman
(2014) 2
MWN (Civil) 643 where also it was held
that a title over immovable property
cannot extinguish unless the defendant
remains in adverse possession thereof
for a continuous period of 12 years or
more and therefore
Article 65
of the

Schedule to the Limitation Act
applies to
a suit for declaration of title and for
recovery of possession of immovable
property."

141. Applying the above principles to the facts of the present case, it
is the own case of the defendant no.1 that in terms of the Decree dated
20.02.1978 passed in RFA(OS)11/1971, titled Smt. Abnash Kaur
through LRs. v. Smt. Sushila Daphtary and Anr.(Ex. PW-4/DX8) by
the Division Bench of this Court, the right of the plaintiff as a co-
sharer in the Suit Property had been recognised. It had also been
provided that all the other co-sharers, including the plaintiff, shall be

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 80 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

bound to contribute to the sums paid by the defendant no.1 for
redemption of the mortgage. She would, therefore, be entitled to seek
protection of her possession till the time the other co-sharers
contribute their shares in the redemption amount paid by her. Her
possession over the suit property would, therefore, not be adverse to
that of the plaintiff but would be permissive, as has been held by the
Supreme Court in Krishna Pillai Rajasekharan Nair (dead) by LRs.
(supra).

142. It is also important to note here that the defendant no.1 is also
claiming her possession as a lessee of the property. Though, the
plaintiff denies such lease and claims that the lease was a sham
document, at the same time, where the defendant no.1 herself claims
her right to the possession of the Suit Property as a lessee, she cannot,
at the same time, claim adverse possession over the Suit Property. The
two pleas would be contradictory to each other and cannot stand
together. Reliance in this regard is placed on the Judgment of Supreme
Court in
Mohan Lal & Ors. v. Mirza Abdul Gaffar & Anr.
, (1996) 1
SCC 639, wherein the Supreme Court, while delving into the question
of mutually destructive pleas, held as under:

"3. The only question is whether the appellant
is entitled to retain possession of the suit
property. Two pleas have been raised by the
appellant in defence. One is that having
remained in possession from 8-3-1956, he has
perfected his title by prescription. Secondly, he
pleaded that he is entitled to retain his
possession by operation of
Section 53-A
of the
Transfer of Property Act, 1882 (for short „the
Act‟).

4. As regards the first plea, it is inconsistent
with the second plea. Having come into

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 81 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

possession under the agreement, he must
disclaim his right thereunder and plead and
prove assertion of his independent hostile
adverse possession to the knowledge of the
transferor or his successor in title or interest
and that the latter had acquiesced to his
illegal possession during the entire period of
12 years, i.e., up to completing the period of
his title by prescription nec vi, nec clam, nec
precario. Since the appellant's claim is
founded on
Section 53-A
, it goes without
saying that he admits by implication that he
came into possession of the land lawfully
under the agreement and continued to remain
in possession till date of the suit. Thereby the
plea of adverse possession is not available to
the appellant."

(Emphasis Supplied)

143. In view of the above, I do not find any merit in the plea raised
by the learned senior counsel for the defendant nos.1 and 2 that the
present suit would be barred by limitation as far as the prayer for
partition is concerned.

Whether the Lease Deed dated 18.11.1958 is a sham transaction:

144. As is noted hereinabove, it is the case of the plaintiff that the
Lease Deed dated 18.11.1958 is a sham transaction and was entered
into by late Smt. Abnash Kaur with the defendant no.1 only for the
purposes of saving the Suit Property from the claims of her step-sons,
and also from the attachment pursuant to the orders passed by the
Income Tax Authorities. The learned counsel for the plaintiff has
submitted that the alleged Lease Deed dated 18.11.1958 has not been
filed, leave alone, proved on record of the Suit. He has stated that the
defendant no.1 was a minor as on the date of the said lease. He has

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 82 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

also placed reliance on the Agreement to Sell dated 02.10.1963
executed between late Smt. Abnash Kaur and Sh.Jaswant Rai
(Ex.PW4/11), contending that there was no mention of any lease in
the said document and it acknowledges that the possession of the Suit
Property was with late Smt. Abnash Kaur. He also places reliance on a
Certificate dated 27.09.1963 (Ex.PW4/10) executed by the defendant
no.1, wherein the defendant no.1 has acknowledged that the lease had
been entered into only to show her charge on the Suit Property so as to
save it from the claims of the step-sons of late Smt. Abnash Kaur and
the Income Tax Department. He states that in the said document, the
defendant no.1 has also acknowledged that late Smt. Abnash Kaur has
full right as an owner to sell the Suit Property or give it on rent.

145. I, however, find no merit in the said claim of the plaintiff.

146. In the present Suit, the plaintiff claims his share in the Suit
Property under the Will dated 06.02.1973 (Ex. PW-4/2) of late Smt.
Abnash Kaur. The said Will itself acknowledges the said Lease Deed
executed in favour of the defendant no.1. Since the plaintiff has filed
the present Suit relying on the Will of late Smt. Abnash Kaur, he
cannot disown the said document in parts. Once the testator, through
whom the plaintiff derives his title, has herself acknowledged the
existence of the said Lease in favour of the defendant no.1, it is not for
the plaintiff to deny the same.

147. The learned senior counsel for the defendant nos.1 and 2 has
also relied upon various documents wherein not only late Smt. Abnash
Kaur but also the original plaintiff himself has admitted to the
existence of the said Lease Deed in favour of the defendant no.1. As I

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 83 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

have already held, the plaintiff, who is claiming his right under the
Will of late Smt. Abnash Kaur, is bound by the terms thereof,
including the acknowledgment of the Lease by late Smt. Abnash Kaur.
The said documents are being referred to hereinunder merely for the
sake of convenience:

EXHIBIT DESCRIPTION
NO.
DW 1/2 Letter Dated 10.10.1959 from Smt. Abnash Kaur to the

Defendant No. 1 to continue as tenant on account of
Smt. Abnash Kaur being unable to repay the cost of
renovation.

DW 1/3 Letter Dated 03.01.1968 from Shri. Ajit Singh, Original
Plaintiff to the Income Tax Officer, on behalf of the
Defendant No.1.

DW 1/4 Letter dated 15.01.1968 from Shri. Ajit Singh, Original
Plaintiff writing on behalf of the Defendant No. 1 to the
Income Tax Officer.

DW 1/5 Affidavit Dated 15.01.1968 of Shri. Ajit Singh, Original
Plaintiff, in Income Tax proceedings against the
Defendant No. 1.

DW 1/6 Letter Dated 14.03.1968 from Shri. Ajit Singh, Original
Plaintiff, writing on behalf of the Defendant No. 1 to the
Income Tax Officer.

DW 1/7 Letter Dated 30.06.1969 from Smt. Abnash to the
Income Tax Officer.

DW 1/8 Notice Dated 06.12.1969 from Income Tax Officer to
Smt. Abnash Kaur.

DW 1/9 Letter Dated 27.12.1969 from Smt. Abnash Kaur to the
Income Tax Officer.

DW 1/10 Reply to the questionnaire dated 27.12.1969 of the
Income Tax Officer.

DW 1/11 Order dated 28.07.1971 of the Income Tax Appellate
Tribunal
DW 1/12 Letter Dated 26.11.1971 from Shri. Ajit Singh on behalf
of the Defendant No. 1 to the Embassy of the German
Democratic Republic.

DW 1/13 Letter Dated 15.12.1971 from Shri. Ajit Singh, Original
Plaintiff on behalf of the Defendant No. 1 to the
Appellate Assistant Commissioner Income Tax.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 84 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

DW 1/14 Letter Dated 29.12.1971 from Shri. Ajit Singh Original
Plaintiff, to Appellate Assistant Commissioner Income
Tax.

DW 1/16 Letter Dated 25.05.1972 from Smt. Abnash Kaur to the
Land and Development Officer.

DW 1/17 Letter Dated 17.02.1973 from Shri. Ajit Singh, Original
Plaintiff to Smt. Abnash Kaur recording arrears of rent
paid by the Defendant No. 1.

DW 1/18 Letter Dated 20.02.1973 from Smt. Abnash Kaur to the
Income Tax Officer.

DW 1/19 Letter Dated 23.09.1973 from Shri. Ajit Singh, Original
Plaintiff, on behalf of the Defendant No. 1 to the Income
Tax Officer.

DW 1/20 Receipt from the Smt. Abnash Kaur for the year 1973
for 18,000 from the Defendant No.1 dated 15.12.1973
DW 1/21 Receipt from the Smt. Abnash Kaur for the year 1974
for 18,000 from the Defendant No. 1 dated 28.12.1974.
DW 1/22 Revised returns dated 29.10.1974 of the Defendant No. 1
filed by Shri. Ajit Singh, Original Plaintiff.
DW 1/23 Statement of Defendant No. 1 filed by Shri. Ajit Singh,
original Plaintiff dated 27.10.1975.

DW 1/25 Letter dated 30.10.1975 from Shri. Ajit Singh original
Plaintiff to the Income Tax Officer, recognizing the rent
was paid by the Defendant No. 1 from her own funds.
DW 1/26 Order Dated Nov 1975 of the Income Tax Appellate
Tribunal, in proceedings against Smt. Abnash Kaur.
DW 1/28 Order of the Appellate Assistant Commissioner Income
Tax, in proceedings against Smt. Abnash Kaur, dated
18.06.1977.

DW 1/29 Order dated 10.08.1977 of the Income Tax Appellate
Tribunal in proceedings against Smt. Abnash Kaur.
DW 1/30 Order dated 13.03.1979 of the Income Tax Appellate
Tribunal.

DW 1/32 A Affidavit dated 29.01.1981 of Ms. Surjit Kaur Gill in
reply to K.K. Bindal in Notice of Motion No. 1603 of
1980 in S.C. Suit No. 2084 of 1980 before the Ld.
Bombay City Civil Court at Bombay titled 'Smt. Surjit
Kaur Gill versus Shri. Ajit Singh Bahadur Singh and
others' [Para 10. The lease deed is a perfectly genuine
document]
DW 1/32 B Affidavit dated 29.01.1981 of Smt. Surjit Kaur Gill in
reply to Shri. Kuldip Singh.

PW 4/DX 5 Letter from Shri. Gurnir Singh to Commercial and
Taxation Officer dated 23.07.1977

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 85 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

PW 4/DX 6 Plaint dated 31.08.1976 in Civil Suit No. 236 of 1976
filed by the Legal heirs of Smt. Abnash Kaur against the
NDMC, signed by Smt. Surjit Kaur Gill, now Plaintiff
No. 1 and Shri. Gurnir Gill, Plaintiff No. 2.

Para 5-As per Clause 11 of the agreement dated:

18.11.1958- if lessee remains in possession after the
expiry of the lease, the lessee shall be entitled to sub-let
the premises or to give the same on leave and license
basis.

PW 4/DX 2 Application dated 24.02.1987 filed by Shri. K. K Bindal,
seeking leave to defend in eviction case no. E-367-86
filed by Shri. Gurnir Singh, the Plaintiff No. 2, against
the Embassy of German Democratic Republic and
others.

DW 1/33 Agreement to Sell 08.04.1993 executed between Kamal
Kishore Bindal (vendor) and Noorien Kaur (purchaser)
registration No. 2568.

DW 1/34 Agreement to Sell 08.04.1993 executed between Kamal
Kishore Bindal (vendor) and Nidas Estate Pvt. Ltd.
(purchaser) registration No. 2952.

DW 1/35 Agreement to Sell 08.04.1993 executed between Kamal
Kishore Bindal (vendor) and Smt. Adarsh Kaur Gill
(purchaser) registration No. 2951.

DW 1/36 Power of Attorney dated 21.04.1993 given by Kamal
Kishore Bindal in favour of Smt. Adarsh Kaur Gill and
Noorien Kaur Gill registration No. 2004 and a notarised
version.

DW 1/37 Affidavit dated 21.04.1993 of Kamal Kishore Bindal.
DW 1/38 Letter dated 19.02.1994 by Shri. G. C. Mittal, Advocate
of Late Smt. Abnash Kaur to Ms. Malvika Rajkotia,
counsel for Defendant No 1.

DW 1/39 First Schedule (Form-I) annexure to the Return
(submitted to the competent Authority, Delhi Urban
Land Ceiling Authority) signed by Surjit Kaur Gill, Shri.
Gurnir Gill and K.K. Bindal.

DW1/51 Will of Smt. Abnash Kaur dated 06.02.1973
DW1/59 Certificate dated 01.11.1990 by GDR- Embassy whereby
they handed over the premises 3, South End Road, New
Delhi to the owner and tenant - Smt. Adarsh Kaur Gill

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 86 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

DW1/61 Written Statement dated 01.06.1970 of Smt. Adarsh
Kaur Gill-defendant No. 11 in CS No. 207 of 1967-
'Nirmal Kumar & Others v. Smt. Abnash Kaur'
PW3/2 Assessment Order dated 28.02.1970 for Smt. Adarsh
(Colly) Kaur Gill for the year 1959-1960 470-485
Vide Agreement dated 18.11.1958 3, South End Road,
was leased out to Smt. Adarsh Kaur Gill

148. The learned senior counsel for the defendant nos.1 and 2 has
also relied upon the cross-examination of the present plaintiff-
Sh.Gurnir Singh Gill. The relevant extracts of which are as under:

"Q What do you mean by the word „fake lease
deed‟ as mentioned in your affidavit?
A I say that the lease deed is fake as firstly it
was not made in the year 1958, it was made in
the year 1961. Secondly, it is not properly
stamped and registered. I also say that this
lease deed is fake as its original is not in
existence. Again said, original has been
destroyed.

My statement that the lease deed is fake is not
based on my personal knowledge rather it is
based on the information received by me from
Sh. Ajit Singh. Sh. Ajit Singh told me about this
before filing of the present suit, i.e. somewhere
in the year 1987 or in 1988 or may be in the
year 1989. I have not filed any proceedings in
any court of law thereby challenging that the
said lease deed dated 15/11/1958, is a fake
lease deed.

It is correct that from the year 1973 when I
came to know with respect to contents of Will
of Smt. Abnash Kaur, upto year 1987/1988 or
1989 when Ajit Singh told me that this lease
deed is fake, I had been treating the lease deed
as genuine one.

At this stage witness states that the fact that
lease deed is a fake lease deed was told to him
by Ajit Singh in the year 1983.

Court ObservationDemeanour of the witness
is observed in his

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 87 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

testimony where he is
giving contradictory
replies. Law shall take its
own course.

Witness is warned to reply
after having understood the
question properly.

The fact that the fake lease deed had been
prepared for protecting the suit property and
its rental income from the hands of step sons
of Smt. Abnash Kaur, was told to me by Sh.
Ajit Singh after the death of Smt. Abnash Kaur
who died in the year 1976. From the word
'after' I mean that this fact was told to me
either in the year 1976 itself or in the year
1977.

*******
Q I put it to you that Mr. Ajit Singh did not
take stand qua Ms. Adarsh Kaur Gill in the
Eviction Petition No. 367/1986 that the lease
deed in favour of Ms. Adarsh Kaur Gill by Ms.
Abnash Kaur was a fake lease deed.
A The eviction petition has been filed by me
and my mother. I do not remember what stand
had been taken by Mr. Ajit Singh in the said
eviction petition qua Ms. Adarsh Kaur Gill
and I will be able to answer this question, if I
am shown a copy of the record of the eviction
petition.

Q Please see copy of memorandum of appeal
in SAO No. 55/1988 titled Shri Gurnir Singh
Gill Vs. Embassy of German Democratic
Republic &Ors. In your cross examination
dated 06.02.2016 you stated that you did not
file appeal against the order of dismissal
passed by the court of learned ARC in your
eviction petition. Was the SAO filed without
your instructions?

A I did not remember about the appeal when I
answered the question on 06.02.2016. After
seeing the document, I say that the appeal
might have been filed. To answer these
questions, I need to see the entire record of the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 88 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

proceedings emanating; from the eviction
petition filed by me before the court of learned
ARC. Due to lapse of time, I do not remember
all facts related to those proceedings."

149. I, therefore, find no merit in the submission of the learned
counsel for the plaintiff that the Lease Deed dated 18.11.1958
executed by late Smt. Abnash Kaur in favour of the defendant no.1
was a sham document and that the defendant no.1 cannot be said to be
the lessee in the Suit Property.

Plaintiff's claim of termination of the lease:

150. The learned counsel for the plaintiff has submitted that even
assuming that the lease in favour of the defendant no.1 was valid, the
same now stands terminated. He submits that admittedly, the rent
received by the defendant no.1 from the G.D.R. Embassy was more
than Rs.3,500/- per month. He submits that in terms of
Section 3(1)(c)

of the DRC Act, where the rent received from the sub-lessee is more
than Rs.3,500/-, the lease could no longer be protected under the
DRC
Act
. He has further submitted that the defendant no.1, having set up a
claim of title to the Suit Property, in terms of
Section 111(g)
of the TP
Act, is liable to be evicted and the lease comes to an end. He further
submits that the defendant no.1 has also claimed ownership right over
the Suit Property and, therefore, the lease would come to an end as the
defendant no.1 cannot approbate and reprobate.

151. On the other hand, the learned senior counsel for the defendant
nos.1 and 2 has submitted that the present Suit is premised on the

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 89 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

basis that the Lease Deed in favour of defendant no.1 is a sham. He
submits that the plaintiff cannot set up a new case in the course of oral
arguments and relief cannot be granted on such new case being set up
by the plaintiff.

152. I find merit in the objection of the learned senior counsel for
defendant nos.1 and 2. A bare reading of the plaint would show that
the entire basis of claim of the plaintiff in the present suit is that the
Lease Deed dated 18.11.1958 executed by late Smt. Abnash Kaur in
favour of the defendant no.1 was sham and, therefore, the defendant
no.1 is not entitled to retain the possession of the Suit Property. It is
only in the course of oral submissions that the plaintiff has now
changed his stand and, in the alternate, has submitted that in case this
Court finds the said Lease to be a genuine transaction, the defendant
no.1 is, even otherwise, liable to be evicted from the Suit Property. In
the absence of any pleadings to this effect, however, and based only
on the oral submissions of the learned counsel for the plaintiff, the
nature of the Suit cannot be allowed to be changed.
In fact, for some
other submissions, the learned counsel for the plaintiff has himself
relied upon the Judgment of the Supreme Court in
Bachhhaj Nahar v.
Nilima Mandal and Anr.
, (2008) 17 SCC 491, wherein the Supreme
Court has cautioned and held as under:-

"23. It is fundamental that in a civil suit,
relief to be granted can be only with reference
to the prayers made in the pleadings. That
apart, in civil suits, grant of relief is
circumscribed by various factors like court
fee, limitation, parties to the suits, as also
grounds barring relief, like res Judicata,
estoppel, acquiescence, non-joinder of causes

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 90 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

of action or parties, etc., which require
pleading and proof. Therefore, it would be
hazardous to hold that in a civil suit whatever
be the relief that is prayed, the court can on
examination of facts grant any relief as it
thinks fit. In a suit for recovery of rupees one
lakh, the court cannot grant a decree for
rupees ten lakhs. In a suit for recovery
possession of property 'A', court cannot grant
possession of property "B'. In a suit praying
for permanent injunction, court cannot grant a
relief of declaration or possession. The
jurisdiction to grant relief in a civil suit
necessarily depends on the pleadings, prayer,
court fee paid, evidence let in, etc.

24. In the absence of a claim by the plaintiffs
based on an easementary right, the first
defendant did not have an opportunity to
demonstrate that the plaintiffs had no
easementary right. In the absence of pleadings
and an opportunity to the first defendant to
deny such claim, the High Court could not
have converted a suit for title into a suit for
enforcement of an easementary right. The first
appellate court had recorded a finding of fact
that the plaintiffs had not made out title. The
High Court in second appeal did not disturb
the said finding. As no question of law arose
for consideration, the High Court ought to
have dismissed the second appeal. Even if i the
High Court felt t that a case for easement was
made out, at best liberty could have been
reserved to the plaintiffs to file a separate suit
for easement. But the High Court could not, in
a second appeal, while rejecting the plea of
the plaintiffs that they were owners of the suit
property, grant the relief of injunction in
regard to an easementary right by assuming
that they had an easementary right to use the
schedule property as a passage."

153. Keeping in view the above, the plea of the learned counsel for
the plaintiff that even otherwise, the lease should be treated to have

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 91 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

been terminated and an order of eviction be passed against the
defendant no.1, cannot be accepted.

154. Even on facts, I do not find much merit in the submission of the
learned counsel for the plaintiff. It was for the plaintiff to have shown
the amount of rent being received by the defendant no.1 from the sub-
lessee, in order to bring the lease out of the purview of the
DRC Act
.
The learned counsel for the plaintiff has been unable to show any
document, which would satisfy this Court on the amount of rent being
received for the Suit Property by the defendant no.1, if any, as on the
date of filing of the Suit or even thereafter. Mere assertion that at one
point of time the licence fee being received by the defendant no.1 was
more than Rs.3,500/-, in my view, may not be sufficient to bring the
tenancy of the defendant no.1 out of the protection granted under the

DRC Act
.

155. In addition, the defendant no.1 has pleaded a right in the
property as a subrogatee mortgagee. She has not claimed that she has
an exclusive title to the same. Therefore,
Section 111(g)
of the TP Act
would also not come to the aid of the plaintiff in the present case.

156. As far as the claim of the plaintiff that the lease has been
forfeited under
Section 111(d)
of the TP Act, is concerned, the same
also does not hold much water. In terms of the Will dated 06.02.1973
(Ex. PW-4/2) of late Smt. Abnash Kaur, the defendant no.1 received
only 1/6th share in the Suit Property. For the application of
Section
111(d)
of the TP Act, the whole of the property has to be vested in the
lessee for the termination of the lease to take place.

Settlement Agreement dated 12.02.1991

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 92 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

157. It was the case of the plaintiff that the defendant no.1 had
proposed the terms of the Settlement, by a document dated 12.02.1991
(Ex. PW-4/27), acknowledging the rights of the plaintiff in the Suit
Property. The said document was denied by defendant no.1. The
learned counsel for the plaintiff, in the course of his submissions,
submitted that the defendant no.1 had produced one Shri Deepak Jain
(DW-3) as a handwriting expert, whose testimony is totally unreliable
not only because he is not an expert, but also because he has not stated
to have used the scientific techniques for comparison of the signatures
and, even otherwise, his report is totally doubtful. He submitted that,
therefore, the document dated 12.02.1991 (Ex. PW-4/27) should be
considered by this Court as proved.

158. While I find merit in the submission of the learned counsel for
the plaintiff that the evidence of Shri Deepak Jain is not worthy of
reliance for the reasons that the learned counsel for the plaintiff has
contended, at the same time, once the document is denied by the
person, who is alleged to have executed it, the onus of proving the
document lies on the plaintiff, who is the propounder thereof. The
learned counsel for the plaintiff has not drawn my attention to any
evidence by which the plaintiff has proved the said document. Merely
because the defendant no.1 may have failed to disprove the same, does
not mean that automatically the document shall stand proved in
evidence.

159. In the absence of any such evidence proving the document
12.02.1991 (Ex. PW-4/27), the claim of the plaintiff cannot be
accepted.

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 93 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Whether the plaintiff is entitled to a decree of partition?:

160. In view of the above, it has to be held that the status of the
parties to the Suit as co-owner of the Suit Property has not undergone
a change. As a co-owner, the plaintiff is entitled to seek partition of
the Suit Property, and the same can be resisted by the defendant no.1
only so long as the plaintiff and the other co-owners do not contribute
their share of the redemption amount, along with interest as stipulated
in the original Mortgage Deeds dated 19.01.1959 (Ex. DW-1/42) and
24.01.1959 (Ex. DW-1/43), to the defendant no.1. Once the share is
paid by them, the right of the defendant no. 1 as a subrogatee
mortgagee shall come to an end.

Share of the parties in the Suit Property:

161. Due to the death of the original plaintiff- late Shri Ajit Singh,
the original defendant no. 3, late Smt. Surjit Kaur Gill, and the
original defendant no. 5, Late Shri Kamal Kishore Bindal, the rights of
the parties are determined as under:-

(a) Plaintiff: 33.34% (as for himself
and as LR of late Smt.
Surjit Kaur Gill)
(b) Defendant no.1: 16.67%
(c) Defendant no.2: 16.67%
(d) legatees under the Will dated
21.07.1997 (Ex.PW-2/1)
of late Sh.Ajit Singh, with the

present plaintiff as executor of the Will: 16.67%

(e) Half-brothers of

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 94 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

late Shri Kamal Kishore Bindal: 16.67%

162. However, as far as the share in the Suit Property devolving on
the death of Shri Ajit Singh, is concerned, the same shall devolve on
his legatees in accordance with his Will dated 21.07.1997 (Ex. PW-

2/1). The plaintiff-Shri Gurnir Singh Gill shall hold his share for the
legatees of late Shri Ajit Singh in trust and in a fiduciary capacity.

Findings on the Issues:

163. In view of the above discussion, I render the following findings
on the issues that were framed by this Court vide its Order dated
01.02.2005.

Issue 1 - Whether the suit is barred by limitation? OPD-1

164. The Suit cannot be said to be barred by limitation. The issue is
decided accordingly.

Issue 2 - Whether the plaint has been valued correctly for purposes
of Court Fee and Jurisdiction. If not, to what effect? OPD

165. As held hereinabove, the possession of the defendant no.1 to the
Suit Property was as a lessee or a co-owner or as a permissive user as
a subrogatee mortgagee. Once the relief of possession is granted to the
plaintiff, the plaintiff would, even otherwise, have to pay the Court
Fee in accordance with his share of the Suit Property. The issue is
answered accordingly.

Issue 3 - Whether redemption of the mortgage by the defendant no.
1 entitles the defendant no.1 to retain possession of property bearing
No.3, South End Road, New Delhi? OPD-1

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 95 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

166. In terms of the Compromise Decree dated 20.02.1978 passed in
RFA(OS)11/1971, titled Smt. Abnash Kaur through LRs. v. Smt.
Sushila Daphtary and Anr.(Ex. PW-4/DX8), the defendant no.1 is
entitled to retain the possession of the property bearing No.3, South
End Road, New Delhi, till such time the plaintiff and the other co-
sharer contribute and pay their contribution of the redemption amount
along with interest to the defendant no.1. The learned counsel for the
plaintiff, in the course of his submissions, has submitted that the
plaintiff is ready and willing to pay the said amount to the defendant
no.1. On the plaintiff paying the said amount to the defendant no.1,
the defendant no.1 would not be entitled to retain the possession of the
Suit Property in her capacity as a subrogate mortgagee. The issue is
decided accordingly.

Issue 4 - Whether the lease deed dated 18.11.1958 is a sham
document as alleged by the plaintiff in paras 20 to 23 of the plaint
and as explained in subsequent paragraphs thereof? OPP

167. As held hereinabove, the plaintiff has failed to prove that the
Lease Deed dated 18.11.1958 is a sham document or that the
defendant no.1 was acting only as a benamidar of the owner, that is,
late Smt. Abnash Kaur. The issue is decided accordingly.
Issue 5 - If issue no.4 is held in favour of the plaintiff, what would
be the legal consequences thereof?

168. In view of the finding on issue no.4, this issue does not survive.
Issue 6 - Whether late Smt.Abnash Kaur left behind any moveable
properties as asserted by the plaintiff? OPP

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 96 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

169. In view of the statement of the learned counsel for the plaintiff
recorded on 19.05.2023 and 19.07.2023, and the affidavit of the
plaintiff dated 26.07.2023, this issue no longer survives.
Issue 7 - What is the share of the plaintiffs and the defendants in the
estate left behind by late Smt.Abnash Kaur?

170. In view of the findings hereinabove, the shares of the parties
have been stated in paragraph 161 hereinabove. The issue is answered
accordingly.

Issue 8 - Whether the plaintiff is entitled to a preliminary decree of
partition in respect of property bearing No.3, South End Road, New
Delhi? OPP

171. The plaintiff is held entitled to a preliminary decree of partition
in respect of the Suit Property, however, subject to the plaintiff
contributing his share of the redemption amount along with interest in
terms of the Mortgage Deeds dated 19.01.1959 (Ex. DW-1/42) and
24.01.1959 (Ex. DW-1/43) to defendant no.1. The issue is answered
accordingly.

Issue 9 - Whether the plaintiff is entitled to a decree for rendition of
accounts against defendant No. 1? OPP

172. The plaintiff is not held entitled to a decree of rendition of
accounts against the defendant no.1 inasmuch as the defendant no.1
continues to be entitled to the possession of the Suit Property not only
as a lessee thereof but also in terms of the Compromise Decree dated
20.02.1978 passed in RFA(OS)11/1971, titled Smt. Abnash Kaur
through LRs. v. Smt. Sushila Daphtary and Anr.(Ex. PW-4/DX8),
which recognizes her right as a subrogate mortgagee of the Suit

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 97 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

Property as long as the other co-sharers have not contributed their
shares of the redemption amount to her. The issue is answered
accordingly.

Issue 10 - Whether the plaintiff is entitled to a decree of declaration
as prayed in clauses (e), (f), (g)? OPP

173. In view of the above, this issue is answered by holding that the
plaintiff is not entitled to the declaration as prayed for in Clauses (e),

(f) and (g) of the plaint.

Issue 11 - Whether the plaintiff is entitled to a decree of permanent
injunction as per clause (h) of the prayer clause? OPP

174. The plaintiff is held entitled to a Decree of permanent
injunction as prayed for in Clause (h), being a co-sharer in the Suit
Property.

Relief:

175. In view of the findings hereinabove, a Decree is passed
declaring the share of the plaintiff, the defendant no.1, and the
defendant no.2 as 33.34%, 16.67%, and 16.67% respectively in the
Suit Property. The share of late Shri Ajit Singh being 16.67% in the
Suit Property, shall be held by the plaintiff as the executor under the
Will dated 21.07.1997 (Ex.PW-2/1) of late Sh.Ajit Singh for the
benefit of the legatees under the said Will, while the share of late Shri
Kamal Kishore Bindal being 16.67% in the Suit Property shall
devolve upon the half-brothers of Sh.Kamal Kishore Bindal.

176. As the decree of final partition cannot be passed at this stage,
with the plaintiff and the other legal heirs yet to contribute their
respective share of the redemption amount alongwith the interest to

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 98 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42

the defendant no.1, and the defendant no.1 being in possession of the
Suit Property, the Suit is being disposed of with the above
determination of the shares of the parties, leaving it open to any of the
parties to pray for a final division of the Suit Property by metes and
bounds, or by way of sale in an appropriate proceeding, at a later
stage.

177. The parties shall bear their own costs.

178. Let a decree sheet be drawn accordingly.

179. The Suit is, accordingly, disposed of in the above terms.

NAVIN CHAWLA, J.

OCTOBER 25, 2024/ns/Arya/rv/VS/SJ

Signature Not Verified

Digitally Signed CS(OS) 2167/1993 Page 99 of 99

By:SUNIL

Signing Date:25.10.2024

17:32:42