Delhi District Court
Krishana Kumar Sehgal vs Renu on 18 August, 2025
IN THE COURT OF DISTRICT JUDGE-05,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Presided by:-
Sh. Abhishek Srivastava, DHJS
CS DJ No. 584/2017
CNR No:- DLCT01-001822-2017
Sh. Krishan Kumar Sehgal (deceased),
Now represented through
(i) Mrs. Meena Sehgal,
W/o Late Sh. Krishan Kumar Sehgal,
(ii) Shri Varun Sehgal,
S/o Late Sh. Krishan Kumar Sehgal,
(iii) Ms. Srishti Malik,
Daughter of late Sh. Krishan Kumar Sehgal .......Plaintiff
All R/o 79, Suvidha Kunj,Parwana Road,
Pitampura, New Delhi-110034
Vs.
1. Smt. Renu
Presently at
R/o 100-C, AD Pocket,
Pitampura, New Delhi.
2. Master Vipul Sehgal,
Through her mother and natural guardian Ms. Renu
Presently R/o 100-C, AD Pocket,
Pitampura, New Delhi.
CS DJ No. 584/2017
Krishan Kumar Vs. Renu
Judgment dated 18.08.2025 Page No. 1 of 33
3. Ms. Shikha
D/o Sh. Arun Kumar Sehgal and Ms. Sunita,
B-91, Shardapuri, Ramesh Nagar,
New Delhi.
4. Sh. R.K. Sehgal,
B-91, Shardapuri, Ramesh Nagar,
New Delhi.
5. Sh. Tarun Sehgal,
B-91, Shardapuri, Ramesh Nagar,
New Delhi. ......Defendants
JUDGMENT
Date of institution:- 02.11.2007
Date of Judgment:- 18.08.2025
1. The present suit is one for partition of a property purported to be the self-
acquired property of one Late Sh. Mukand Lal Sehgal i.e. property No. 100C,
AD Pocket, Pitampura, New Delhi (hereinafter referred to as ‘Suit property’).
2. Plaintiff and the defendants No. 4 & 5 are sons of Late Sh. Mukand Lal
Sehgal. Defendants No. 1, 2 and 3 are related to Sh. Arun Kumar Sehgal,
deceased son of Late Sh. Mukand Lal Sehgal. As per the plaintiff, the defendant
No. 1 is not a legally wedded wife of Sh. Arun Kumar Sehgal. Sh. Arun Kumar
Sehgal was in a live-in relationship with the defendant No. 1. Legally wedded
wife of Late Sh. Arun Kumar Sehgal is Smt. Sunita (who is not a party to the
Suit). Defendant No. 2 is son of Late Sh. Arun Kumar Sehgal and the defendant
No. 1. Defendant No. 3 is daughter of Sh. Arun Kumar Sehgal and Smt. Sunita.
3. At the outset, it may be noted that during the pendency of the suit, the
plaintiff has expired and his LRs are brought on record vide order dated
29.08.2022.
A BRIEF BACKGROUND OF THE PRESENT SUIT
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Judgment dated 18.08.2025 Page No. 2 of 33
4. Earlier, a Suit for permanent injunction titled as ‘Renu Sehgal V/s
Krishan Kumar Sehgal & Ors.’ was filed by the defendant No. 1 herein against
the plaintiff and the defendants No. 4 & 5 in the Court of Ld. Civil Judge, Delhi.
In the said Suit, the plaintiff herein filed a Counter Suit for partition, permanent
injunction, mandatory injunction and for mesne profits (the present Suit). The
Suit of the defendant No. 1 for permanent injunction was disposed of as the
defendants therein made a statement that they will not dispossess the defendants
No. 1 and 2 herein from the Suit property except by due process of law.
5. Subsequently, the present Suit of the plaintiff was dismissed in default for
non prosecution as well as for non appearance vide Order dated 01.12.2011. The
Suit of the plaintiff was restored to its original number and position vide Order
dated 07.11.2013.
6. Issues were framed by the Ld. Civil Judge vide Order dated 11.02.2015.
Plaintiff No. 1 was examined as PW1 and cross-examined, and plaintiff’s
evidence was closed vide Order dated 07.12.2015.
7. Perusal of Order dated 02.09.2016 reveals that the then Ld. Civil Judge
observed that the Suit is for partition and the plaintiff has valued the Suit only
for his share at Rs. 2,50,000/- for the purpose of Court fees and jurisdiction and
adjourned the matter for consideration. In the meantime, the plaintiff moved an
application under Order VII Rule 10A CPC for return of the plaint. The
application of the plaintiff was allowed vide Order dated 22.12.2016. Suit as
such was transferred, in terms of Order dated 31.01.2017 passed by Ld. District
& Sessions Judge (HQs), from the Court of Ld. Civil Judge to the Court of
Additional District Judge.
8. Ld. ADJ-13 (Central) vide Order dated 04.09.2017 allowed an application
of the plaintiff under Order VI Rule 17 CPC seeking amendment of para of
plaint regarding valuation of the Suit for the purpose of jurisdiction. An
amended plaint was taken on record. A written statement to the amended plaint
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was filed on behalf of the defendants No. 1 and 2. Plaintiff filed replication to
the written statement.
9. An additional issue was framed vide Order dated 17.01.2018.
10. The suit was then posted for Defendant’s evidence. On behalf of the
defendants, the defendant No. 1 was examined as DW1 and was cross-examined
on behalf of the plaintiff. No other witness was examined on behalf of the
defendants.
PLAINTIFF’S CASE AS PER AMENDED PLAINT
11. The facts of the case, as pleaded by the plaintiff in the amended plaint, in
brief, are as under:-
(a) That Late Sh. Mukand Lal Sehgal is the recorded owner of the Suit
property. Wife of Late Sh. Mukand Lal Sehgal pre-deceased him,
died in 1972. Late Sh. Mukand Lal Sehgal expired on 17.07.2003
leaving behind the plaintiff (son), the defendant No. 4 (son),
defendant No. 5 (son) and one Sh. Arun Kumar Sehgal (son) as his
legal heirs upon whom the Suit property devolved.
(b) That Late Sh. Arun Kumar Sehgal expired on 30.05.2007. Sh. Arun
Kumar Sehgal is survived by Smt. Sunita, a legally wedded wife,
Ms. Shikha/defendant no. 3 (daughter of Sh. Arun Kumar Sehgal
and Smt. Sunita) and Master Vipul Sehgal/defendant no. 2 (son of
Sh. Arun Kumar Sehgal, begotten out of live-in relationship with
the defendant No. 1).
(c) That the defendant No. 1 was not having good relations with Sh.
Arun Kumar Sehgal and for about four years before his death, the
defendant No. 1 used to reside at 32/11, Punjabi Bagh Extension,
New Delhi.
(d) That the Suit property continued to be in the joint ownership and
possession of the family of Late Sh. Mukand Lal Sehgal until the
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defendant No. 1 unlawfully entered it by breaking open the lock in
the first week of September 2007.
(e) That the defendant No. 1 has been merely a licensee till Sh. Arun
Kumar Sehgal was alive and has no right or authority to enjoy the
Suit property and is liable for Mesne profits @ Rs. 5,000/- against
the share of the plaintiff as the Suit property can easily fetch Rs.
20,000/- as monthly rent (from filing of Suit till the plaintiff gets his
share in the Suit property).
CASE OF THE DEFENDANTS NO. 1 & 2 AS PER WRITTEN STATEMENT
TO THE AMENDED PLAINT
12. The defendants No. 1 and 2 in their joint written statement inter alia
pleaded that;
(a) That the Suit has not been properly valued for the purpose of Court
fees. The value of the Suit property at the time of filing of Suit was
more than Rs. 50,00,000/- (Fifty Lakhs) and the plaintiff has never
been in possession of the Suit property.
(b) That Sh. Arun Kumar Sehgal during his lieftime had already given
the shares of Suit property to the other legal heirs in cash/ cheques
and the other legal heirs have no right, title or interest in the Suit
property. The Suit property could not be transferred in the sole
name of Late Sh. Arun Kumar Sehgal because of his untimely
death.
(c) That the defendant No. 1 and Late Sh. Arun Kumar Sehgal married
on 05.04.1998. This was the second marriage of both the parties.
Out of wedlock of defendant No. 1 with Late Sh. Arun Kumar
Sehgal, the defendant No. 2 was born. As Late Sh. Arun Kumar
Sehgal was a drug addict, he died untimely. The defendant No. 1 is
the widow of Late Sh. Arun Kumar Sehgal.
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(d) That Late Sh. Arun Kumar Sehgal was earlier married to Smt.
Sunita with whom he had a daughter arrayed as defendant No. 3.
Late Sh. Arun Kumar Sehgal divorced the Smt. Sunita, and at the
time of divorce, Late Sh. Arun Kumar Sehgal settled everything
and it was decided that neither Smt. Sunita nor the defendant No. 3
would have any right in the property of Late Sh. Arun Kumar
Sehgal. As such, neither Smt. Sunita nor the defendant No. 3 is the
legal heir of Late Sh. Arun Kumar Sehgal.
(e) That the defendants No. 1 is staying in the Suit property since her
marriage but for a short period, and since 26.08.2003, she is
continuously staying there. The defendants No. 1 and 2 are residing
in the Suit property as legal heirs of Late Sh. Arun Kumar Sehgal.
(f) That Late Sh. Arun Kumar Sehgal used to torture the defendant No.
1, the defendant No. 1 as such filed a complaint in CAW Cell and
also filed a divorce petition. However, on an assurance of Late Sh.
Arun Kumar Sehgal that he would not beat and torture the
defendant No. 1 and also for sake of future of the defendant No. 2,
the defendant No. 1 returned to her matrimonial home. Behaviour
of the Late Sh. Arun Kumar Sehgal however did not change. When
the defendant No. 1 along with the defendant No. 2 had gone to her
parent’s house, she got the news of the death of Late Sh. Arun
Kumar Sehgal.
(g) After the death of Late Sh. Arun Kumar Sehgal, the other family
members of Late Sh. Arun Kumar Sehgal started harassing the
defendant No. 1 and threatened that they will throw the defendants
No. 1 and 2 out of the Suit property. The defendant No. 1
accordingly filed a Suit for permanent injunction against the
plaintiff and the defendants No. 4 and 5 which was decreed by Ld.
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Civil Judge on the basis of statements of the plaintiff and
defendants No. 4 & 5. Plaintiff, after receiving summons of the Suit
of the defendant No. 1 filed the present false case which is liable to
be dismissed with heavy costs.
13. Plaintiff thereupon filed the replication to the written statement of the
defendants No. 1 and 2 wherein he denied the case of the defendants and
reaffirmed the contents of the plaint. Other defendants have not filed written
statements.
ISSUES
14. On the basis of pleadings of the parties, following issues were framed
vide Order dated 11.02.2015 read with Order dated 17.01.2018:-
1. Whether the Suit has not been properly valued for the purpose of
Court fee and jurisdiction ? OPD.
2. Whether the plaintiff is entitled for decree of permanent
injunction thereby restraining the defendants, their servants,
contractors, agents, representatives or associates from creating any
third party interest in the Suit property ? OPP
3. Whether the plaintiff is entitled for decree of mandatory
injunction thereby directing the defendants to hand over the vacant
possession of the portions of the Suit property on the basis which is
to be determined by the Court ? OPP
4. Whether the Suit property is subject to be partitioned and
whether the plaintiff is entitled 1/4th share in the Suit property ?
OPP
5. Whether the plaintiff is entitled for a sum of Rs. 5000/- as
mentioned in the prayer D in the plaint ? OPP
6. Whether the plaintiff namely Sh. K. K. Sehgal and defendant No.
3, 4 & 5 have taken their shares from Late Sh. Arun Kumar SehgalCS DJ No. 584/2017
Krishan Kumar Vs. Renu
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and are residing in their own house and they are not entitled for
partition in the Suit property? OPD 1 & 2
7. Relief.
PLAINTIFF’S EVIDENCE
15. During the trial of this Suit, one witness viz; PW1 Sh. Krishan Kumar
Sehgal (plaintiff) has been examined in support of the case of the plaintiff.
16. Sh. Krishan Kumar Sehgal (plaintiff) has been examined by the plaintiff
as PW1, who has tendered his evidence by way of affidavit Ex.PW1/A
alongwith following documents:-
(i) Ex.PW1/1 (OSR): Allotment letter dated 11.06.1989
(ii) Ex.PW1/2 (OSR): House Tax Receipt dated 23.06.2006
(iii) Ex.PW1/3 (OSR): Assessment Order dated 20.12.1993
(iv) Ex.PW1/4 (OSR): Electricity bills of the Suit property.
17. PW1 has been cross-examined by the Ld. counsel for the defendants No. 1
and 2. No other PW has been examined. PE was accordingly closed vide order
dated 07.12.2015 and thereafter the suit was posted for DE.
DEFENDANT’S EVIDENCE
18. On behalf of defendants No. 1 & 2, one witness viz; DW1 Smt. Renu
Sehgal (defendant No. 1) has been examined.
19. Smt. Renu Sehgal has been examined by the defendants No. 1 & 2 as
DW1, who has tendered her evidence by way of affidavit Ex.DW1/A alongwith
following documents:-
(i) Ex.D1W1/1: Photocopy of marriage certificate dated 05.04.1998
(ii) Ex.D1W2/2 (Colly): Photographs of marriage
(iii) Ex.D1W1/3: Photocopy of passport of Late Sh. Arun Kumar Sehgal
(iv) Ex.D1W1/4: Photocopy of letter dated 28.06.2006 issued by LIC of
India in the name of defendant No. 1
(v) Ex.D1W1/6: Photocopy of partnership deed
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(vi) Ex.D1W1/7: Photocopy of death certificate of Sh. Arun Kumar
Sehgal
(vii) Ex.D1W1/8: Photocopy of statement of account issued by Allahabad
Bank
(viii) Ex.D1W1/11: Photocopy of statement recorded before police
(ix) Ex.D1W1/12: Photocopy of complaint filed before police.
20. DW1 has been cross-examined by Ld. Counsel for the plaintiff. It may be
noted that subsequently, in terms of Order dated 08.01.2019 of the Hon’ble High
Court of Delhi, DW1 was re-examined. In re-examination DW1 produced the
originals of Ex.D1W1/1, Ex.D1W1/3, Ex.D1W1/4 and Ex.D1W1/7. Further,
plaintiff admitted the document Ex.D1W1/6.
21. No other DW has been examined. DE was accordingly closed vide order
dated 22.02.2019 and thereafter the suit was posted for final arguments.
22. In order to adjudicate upon this suit, this court had heard the counsel for
the parties. I have heard the contentions of both sides and also gone through the
record carefully. My issue-wise findings are as under:-
ISSUE NO. 1
1. Whether the Suit has not been properly valued for the purpose of
Court fee and jurisdiction ? OPD.
23. Onus to prove issue No. 1 was on the defendants No. 1 and 2.
24. In a suit for partition the jurisdictional value is the value of the suit
property and court fee is payable on the share claimed. If the plaintiff is not in
possession of the property (suit property), court fee on the share claimed has to
be paid. The present Suit has been filed in the year 2007. Plaintiff has pleaded
the market value of the Suit property in the amended plaint as Rs. 10,00,000/-
and has paid a Court fee on Rs. 2,50,000/- (value of 1/4th share of the Suit
property).
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25. The case of the defendants No. 1 and 2 is that at the time of filing of the
Suit, the market value of the Suit property was more than 50 Lakhs, and as such
the plaintiff has not valued the Suit properly for the purpose of Court fee and
jurisdiction. It was submitted by the Ld. counsel for the defendants No. 1 & 2
that the PW1 has admitted in her cross-examination that the market value of the
Suit property is around 80 Lakhs.
26. PW1 in her cross-examination has deposed to the effect that [T]he market
value of the Suit property at present would be Rs. 80 lacs approx. It is a matter
of record that PW1 was cross-examined on 11.09.2015. The defendants No. 1 &
2 have not led any evidence to prove the market value of the Suit property at the
time of filing of the Suit i.e. in the year 2007. There is nothing on record
showing the market value of the Suit property in the year 2007.
27. Issue No. 1 is accordingly decided against the defendants No. 1 and 2 and
in favour of the plaintiff.
ISSUES NO. 4 AND 6
4. Whether the Suit property is subject to be partitioned and
whether the plaintiff is entitled 1/4th share in the Suit property ?
OPP
6. Whether the plaintiff namely Sh. K. K. Sehgal and defendant No.
3, 4 & 5 have taken their shares from Late Sh. Arun Kumar Sehgal
and are residing in their own house and they are not entitled for
partition in the Suit property? OPD 1 & 2
28. Onus to prove issue No. 4 was on the plaintiff whereas to prove issue No.
6 was on the defendants No. 1 & 2.
29. The plaintiff’s case is that the Suit property is a self acquired property of
Sh. Mukand Lal Sehgal who died intestate on 17.07.2003. The wife of Late Sh.
Mukand Lal Sehgal pre-deceased him, died in 1972. Upon his death the Suit
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property devolved upon his Class I legal heirs under Section 8 of the Hindu
Succession Act, 1956 i.e. the plaintiff, the defendant No. 4, defendant No. 5 and
one Sh. Arun Kumar Sehgal (who happened to be sons of Late Sh. Mukand Lal
Sehgal).
30. One of the sons of Late Sh. Mukand Lal Sehgal namely Sh. Arun Kumar
Sehgal expired on 30.05.2007. Sh. Arun Kumar Sehgal is survived by Smt.
Sunita, a legally wedded wife, Ms. Shikha (daughter of Sh. Arun Kumar Sehgal
and Smt. Sunita/ arrayed as defendant No. 3) and Master Vipul Sehgal (son of
Sh. Arun Kumar Sehgal, begotten out of live-in relationship with the defendant
No. 1/ arrayed as defendant No. 2).
31. Family Tree of late Sh. Mukand Lal Sehgal & Mrs. Usha Rani Sehgal
would be like this;-
Family Tree of late Sh. Mukand Lal Sehgal & Mrs. Usha Rani Sehgal
K.K. Sehgal R.K. Sehgal Tarun Kumar Sehgal Arun Kumar Sehgal
(Plaintiff) (Def No. 4) (Def no. 5) (Deceased son)
Mrs. Sunita Ms. Renu
(legally wedded wife) (Second wife)
(Def. No. 1)
Ms. Shikha Vipul Sehgal
(Daughter of Sunita & Arun) (son of Renu & Arun)
(Def. No. 3) (Def. No. 2)
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32. So, as per the plaintiff, the co-ownership qua the Suit property arises by
operation of law after father’s death. The right of partition is an incident of co-
ownership, and as such the plaintiff by way of present Suit is exercising his such
right.
33. The defendants No. 1 & 2 are not disputing that the suit property belongs
to Sh. Mukand Lal Sehgal. However, their case is that the defendant No. 1 is a
legally wedded wife of Sh. Arun Kumar Sehgal with whom she had a son i.e. the
defendant No. 2. Late Sh. Arun Kumar Sehgal divorced the first wife namely
Smt. Sunita, and at the time of divorce, Late Sh. Arun Kumar Sehgal settled
everything and it was decided that neither Smt. Sunita nor the defendant No. 3
would have any right in the property of Late Sh. Arun Kumar Sehgal.
34. Their further case is that Sh. Arun Kumar Sehgal had made the payments
to the other legal heirs in lieu of their share in the Suit property and the other
legal heirs have no right, title or interest in the Suit property. The Suit property
however could not be transferred in the sole name of Late Sh. Arun Kumar
Sehgal because of his untimely death.
35. The plaintiff (PW1) has filed an allotment letter (Ex.PW1/1) as per which
the Suit property was allotted to Sh. Mukand Lal Sehgal by the DDA. Plaintiff
has filed certain other documents viz. House Tax Receipt dated 23.06.2006
(Ex.PW1/2), Assessment Order dated 20.12.1993 (Ex.PW1/3), Electricity bill of
the Suit property (Ex.PW1/4) showing that the the Suit property belongs to Sh.
Mukand Lal Sehgal.
36. Section 8 of HSA, 1956 lays down certain rules of succession to the
property of a male Hindu who dies intestate. The rules have to be read along
with the Schedule. Section 8 groups the heirs of a male intestate into four
categories and lays down that his heritable property devolves firstly upon the
heirs specified in Class I of the Schedule (for convenience, may be described as
the preferential heirs of the intestate). Section 9 talks about order of succession
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among heirs in the Schedule. The heirs specified in Class I of the schedule
succeed simultaneously and there is, therefore, no question of any precedence or
priority among them. Sections 8 and 9, so far as they relate to heirs specified in
Class I of the Schedule, contain the explicit declaration of law that the
preferential heirs enumerated there take simultaneously, and to the exclusion of
all other heirs. There is no precedence or priority among them, but it does not
follow that every individual who succeeds as an heir listed in Class I of the
Schedule is entitled to an equal share of the property along with every other
individual heir in that class. The computation of the shares or portions of the
heirs so listed is to be in accordance with the rules laid down in Section 10
which may be said to constitute the statute of distribution applicable to heirs in
Class I.
37. As per the plaintiff, upon the death of Sh. Mukand Lal Sehgal, the Suit
property must have devolved upon his four sons who happen to be Class I legal
heirs i.e. plaintiff, defendant No. 4, defendant No. 5 and Sh. Arun Kumar
Sehgal. All the Class I legal heirs of the propositus would take one share i.e.
1/4th each.
38. Further, as per the plaintiff, one of the sons of Late Sh. Mukand Lal
Sehgal namely Sh. Arun Kumar Sehgal expired on 30.05.2007 intestate, leaving
behind his widow Smt. Sunita and a daughter Ms. Shikha (defendant No. 3). Sh.
Arun Kumar Sehgal married Smt. Renu (defendant No. 1) while his first
marriage was subsisting and a son Master Vipul Sehgal (defendant No. 2) was
born to him from Smt. Renu.
39. Here, the marriage of Sh. Arun Kumar Sehgal with Smt. Renu would be
void (Section 11 of Hindu Marriage Act, 1955) and she is not entitled to inherit
his property, but the son Master Vipul Sehgal (defendant No. 2) who is born of
this marriage is a legitimate child (Section 16 of HMA, 1955) and succeeds with
his other descendents i.e. widow Smt. Sunita and daughter Ms. Sikha (defendant
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No. 3). His 1/4th share will be divided into three equal parts, one each going to
Smt. Sunita (1/12th), Master Vipul Sehgal (1/12th) and Ms. Sikha (1/12th).
40. Now, at this stage, I shall examine the following points/ aspects;
(a) Whether Sh. Arun Kumar Sehgal had made the payments to the
other legal heirs in lieu of their share in the Suit property and the
other legal heirs have no right, title or interest in the Suit property ?
(b) Whether the defendant No. 1 is a legally wedded wife of Sh. Arun
Kumar Sehgal ?
(c) If the answer to the point/aspect (b) is in the negative, is the
defendant No. 2 entitled to a share in the partition ?
(d) Whether Late Sh. Arun Kumar Sehgal divorced the first wife
namely Smt. Sunita, and at the time of divorce, Late Sh. Arun
Kumar Sehgal settled everything and it was decided that neither
Smt. Sunita nor the defendant No. 3 would have any right in the
property of Late Sh. Arun Kumar Sehgal ?
(e) Whether in the absence of Smt. Sunita (legally wedded wife of Sh.
Arun Kumar Sehgal), can this Suit be decreed for the relief of
partition ?
POINT/ ASPECT (a)
41. Here, I am reproducing the relevant paras of evidence affidavit
Ex.DW1/A of DW1;
4. I say that the plaintiff and defendant Nos. 4 and 5 are real brothers of
my husband and they are having their own houses and I am staying in
the suit property which has fallen in the share of my husband after
partition between the brothers. Although, my father-in-law Late Sh.
Mukund Lal Sehgal, is recorded owner of the suit property, however, the
suit property is absolute property of my husband Late Arun Sehgal and I
along with the defendant no. 2 only being the legal heirs are entitled for
the suit property and no one else has any claim towards the same. I say
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that all the brothers including my husband were doing joint business in
the name of a partnership firm M/s Usha Mode International having its
office at GA/2 Shivaji Enclave Rajouri Garden New Delhi…
5. I say that my husband expired on 30.05.2007 and when my husband
was alive nobody ever created any problem but soon after the death of
my husband, all the three defendants with their family members started
threatening me for forcible dispossession from the suit property and also
pressurized me to vacate the suit property…
6. I say that although the suit property is in the name of my father-in-
law. However, my husband had spent substantial money for renovation
and my father-in-law was also staying with us when my husband was
alive.
7. I say that the partition / family settlement of the suit property has
already taken place in my presence in 2005-06 and plaintiff and
defendant Nos. 4 and 5 have already taken their share in the form of cash
and cheques from late Arun Kumar Sehgal as they were partners in M/s
Usha Mode International and according the funds were transferred to the
brothers through partnership firm. I further say that during life time of
late Sh. Mukund Lal Sehgal, all the co-shares had taken their share in
cash/cheques from late Sh. Arun Kumar Sehgal and had left their claim
in the suit property and the property could not be transferred in the name
of my husband, Late Arun Kumar Sehgal due to his untimely death. I say
that since my husband was leading my family and was taking decision
and doing the needful in the interest of the family therefore I was not
aware of exact transfer of funds or business affairs. However, transfer of
funds which was given towards the settlement of suit property is evident
from the statement of Saving Bank Account bearing No. 103753 which
was in our joint name maintained at Allahabad Bank, Rajouri Garden,
New Delhi…
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42. It may be noted that the DW1 has taken contrary stands. On the one hand
she is saying that a partition had already taken place in the year 2005-2006
between the brothers (after the death of Sh. Mukand Lal Sehgal on 17.07.2003),
and Sh. Arun Kumar Sehgal had made the payments to the other legal heirs in
lieu of their share in the Suit property. On the other hand she is stating that
during the lifetime of Late Sh. Mukand Lal Sehgal, all the co-sharers had taken
their share in cash/cheques from late Sh. Arun Kumar Sehgal, and had left their
claim in the suit property.
43. Relevant cross-examination of DW1 in this regard has been reproduced
herein below;
“…Suit property is owned by Sh. Mukand Lal Sehgal. He had four sons
namely Sh. Krishan Kumar Sehgal, R.K.Sehgal, Tarun Sehgal and
deceased Arun Sehgal. It is correct that all the four sons had equal share
in the said property. Vol. My husband had an FD of Rs. 35 lakhs which
was given to all the three brothers by my husband against their
respective share however, I do not know in what way the said amount of
Rs. 35 lakhs was given to all the three brothers. I do not have any details
of aforesaid FDR. Vol. My husband had told me over telephone
regarding this. It is wrong to suggest that there was no such FDR nor any
payment was made to the plaintiff and other brothers of the plaintiff,
who are defendant no. 4 and 5 in the present suit. I do not know the date,
month and year of such FDR nor the name of the Bank or the branch of
the bank…”
44. So, the DW1 has failed to prove the payment of Rs. 35 Lakhs to the
plaintiff and the defendants No. 4 and 5 through FDRs. There is nothing on
record about the FDRs.
45. It is further the case of the defendants No. 1 and 2 that an amount of Rs.
45 Lakhs was transferred to the account of M/s Usha Mode International (a
partnership firm of brothers) from the joint account of defendant No. 1 and Sh.
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Judgment dated 18.08.2025 Page No. 16 of 33
Arun Kumar Sehgal in lieu of their shares in the Suit property. Defendants No. 1
and 2 relied on a document i.e. statement of account issued by Allahabad Bank
D1W1/8.
46. Relevant cross-examination of PW1 by the defendants No. 1 & 2 has been
reproduced herein below;
“…I am a businessman of readymade garments from the year 2000 in the
name of M/s Usha Mode International having its office at GA/2 Shivaji
Enclave, Rajouri Garden, New Delhi. The above said firm is a
partnership firm. The above said firm, is a partnership firm of me and
Smt. Vanita Sehgal and Late Arun Sehgal. We have equal share holdings
in above said firm…The partnership firm Usha Mode International
continued till 2007. The firm was dissolved in the year 2007-2008…
…It is correct that Late Sh. Arun Sehgal had transfered a sum of Rs. 45
Lacs to M/s Usha Mode during the financial year 2005-2006…
…It is wrong to suggest that the amount of Rs. 45,00,000/- which was
transferred by the defendant no.1 with her husband was towards the
share of the suit property…
Q. I put to you that apart from Rs. 45,00,000/- which you have already
taken, you have also taken cash from Late Arun Kumar Sehgal. What
you have to say?
A. It is wrong to suggest that apart from Rs. 45,00,000/- which you have
already taken, you have also taken cash from Late Arun Kumar Sehgal.
Vol Sh, Arun Kumar Sehgal transferred the sum of Rs. 45,00,000/- in
company account (Usha Mode International)…”
47. M/s Usha Mode International was a partnership firm of plaintiff, Smt.
Vanita (wife of defendant No. 4) and Sh. Arun Kumar Sehgal (husband of
defendant No. 1). As per ExD1W1/8, an amount of Rs. 10 Lakh was transferred
to the account of M/s Usha Mode on 03.08.2006 and Rs. 35 Lakh was
transferred to the account of M/s Usha Mode on 28.10.2006. The amount was
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Judgment dated 18.08.2025 Page No. 17 of 33
transferred from the joint account of defendant No. 1 and Sh. Arun Kumar
Sehgal. PW1 in his cross-examination has conceded this fact. However, he
volunteered that the amount was transferred to the firm’s account.
48. At the time of transfer of the amount, the firm M/s Usha Mode was in
existence and Sh. Arun Kumar Sehgal was one of the partners in the firm having
equal shares. So, most probably, the transfer of the amount must have been done
in relation to the firm’s business. Defendants No. 1 & 2 have failed to bring on
record anything showing that the said amount was transferred in lieu of shares of
other co-owners in the Suit property. It is relevant to note that the defendant No.
5 was not a partner to the firm. Even defendant No. 4 was not a partner in the
firm. It was the wife of defendant No. 4 who was a partner in the firm.
49. This Court accordingly concludes that Sh. Arun Kumar Sehgal had not
made any payment to the other legal heirs of Sh. Mukand Lal Sehgal in lieu of
their share in the Suit property.
POINT/ ASPECT (b)
50. I am reproducing the relevant paras of evidence affidavit Ex.DW1/A of
DW1;
“3. I say that I got married to Late Arun Kumar Sehgal on 05.04.1998 in
the presence of all the relatives and friends including plaintiff and other
defendants. After marriage with Sh. Arun Kumar Sehgal, I came to
matrimonial home at AD-100C, MIG Flats, Pitampura, New Delhi-
110034 and since I am staying in the said house which is suit property. I
further say that from the abovesaid wedlock a son Vipul Sehgal was born
on 15.02.1999. I say that at the time of my marriage with Late Sh. Arun
Sehgal, all the brothers and relatives of Late Sh. Arun Sehgal
represented that Late Sh. Arun Sehgal had already taken valid divorce
from his first wife and has settled all the claims of his first wife, Ms.
Sunita and daughter Sikha and there is nothing remains to be claimed
either by wife or daughter in any manner whatsoever from Late ArunCS DJ No. 584/2017
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Sehgal or from his assets. Copy of the marriage certificate dated
05.04.1998 issued by the Sanatan Dharam Mandir, Narayan Vihar, New
Delhi is EXHIBIT D1W1/1. Copies of photographs showing marriage
of the defendant No. 1 with Late Arun Sehgal is EXHIBIT D1W2/2
(Colly). Copy of the Passport of Late Arun Kumar Sehgal is Exhibit
D1W3/3…”
51. Relevant cross-examination of DW1 in this regard has been reproduced
herein below;
This is my second marriage with Sh. Arun Sengal. I do not remember the
name of my first husband. My first marriage was solemnized in the year
1988 but I do not remember as to till what time the said marriage lasted.
I got divorced but I do not remember the name of the court. I also do not
remember the case number or the date of order. I had taken the copy of
decree of divorce. I can make my effort to place on record the decree of
divorce of my first marriage. It is wrong to suggest that there was no
valid and legal marriage between my self and Sh. Arun Sehgal as I had
not obtained decree of divorce from my first husband. Me and my family
was represented that Arun Sehgal had taken divorce from his first wife.
Vol. Me and my family member proceeded with the marriage with Sh.
Arun Sehgal in good faith. I never came to know that Arun Sehgal has
not taken legal divorce from his first wife. Arun Sehgal never disclosed
me that he had one girl child Ms. Shikha from his first wife. It is correct
that Ms. Shikha is party to the present suit.
52. So, as per the defendant No. 1, it was her second marriage with Sh. Arun
Kumar Sehgal. It was also the second marriage of the Sh. Arun Kumar Sehgal.
As is apparent from cross-examination of defendant No. 1 that she failed to
produce any document showing her divorce with her first husband. Likewise,
there is nothing on record proving divorce of Sh. Arun Kumar Sehgal with his
first wife Smt. Sunita.
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53. As per Section 5 (i) of the Hindu Marriage Act, 1955, before a valid
marriage can be solemnised, both parties to such marriage must be either single
or divorced or a widow or a widower and only then they are competent to enter
into a valid marriage. If at the time of performance of the marriage rites and
ceremonies, one or other of the parties had a spouse living and the earlier
marriage had not already been set aside, the latter marriage is no marriage at all.
Being in contravention of provisions of Section 5 (i), the marriage, as per
Section 11 of HMA, 1955, is void ab initio.
54. Ld. Counsel for the defendant No. 1 and 2 relied on a decision of Hon’ble
Supreme Court passed in Tulsa & Ors. V/s Durghatiya & Ors.; (2008) 4 SCC
520 in order to contend that the defendant No. 1 is a legally wedded wife of Sh.
Arun Kumar Sehgal.
55. There is no dispute with the proposition of law as held by Hon’ble
Supreme Court of India in a number of cases that the existence of marriage may
be presumed due to long cohabitation between the parties. However, in the
considered view of this Court, such presumption, cannot be raised in
contravention of the codified law. As per HMA, 1955, a person cannot re-marry
with someone else during the lifetime of his/ her spouse without taking divorce
from the first spouse. In the present case, as already noted, the defendant No. 1
has failed to produce any document showing her divorce with her first husband.
There is nothing on record to prove even the divorce of Sh. Arun Kumar Sehgal
with his first wife Smt. Sunita.
56. It is as such held that the defendant No. 1 is not a legally wedded wife of
Sh. Arun Kumar Sehgal (relied on a decision of Hon’ble Supreme Court
rendered in case titled Vidhyadhari and others vs. Sukhrana Bai and Ors.; (2008)
2 SCC 238).
POINT/ ASPECT (c)
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57. Next point for consideration is since the defendantant No. 1 has been held
not a legally wedded wife of Sh. Arun Kumar Sehgal, whether the defendant No.
2 would not be entitled to any share in the partition ?
58. To answer this point, I would like to refer to a decision of Hon’ble
Madras High Court rendered in S. Veeraswamy Chettiar (died) through LRs V/s
Union of India & Ors in A.S.No.428 of 2012 (decided on 09.04.2019);
“9. Section 5 of the Act speaks about the conditions which are required
for a valid marriage. Sections 11 and 12 of the Act deal with void and
voidable marriages. Under Section 11 of the Act, when a man and wife
marry each other, notwithstanding the fact that he/she or both of them
were married earlier, the same would be termed void marriage. When we
speak about a void marriage it gives the status of a nullity. Such a nullity
would start from the date on which the marriage was conducted.
Therefore, there is a marked difference between the marriage which is
void and voidable. However, when we come to Section 16, a child born
from such a void or voidable marriage are given the same status. The
object and rationale behind Section 16 is to give an element of
respectability to the child born from such a relationship. After all, the
aforesaid Section has got a laudable object behind. Inasmuch as the same
has been introduced by way of social reform, such a relationship shall
not affect a child who has got nothing to do with the conduct of the
father or mother, as the case may be.
10. A marriage can be void or voidable, but the status of father and
mother can never change. That is the import of Section 16 of the Act.
Resultantly, this provision also gives social status and rights to the child
born from such a relationship. Therefore, such a welfare legislation will
have to give benefit to the child born even before or after the
commencement of the Marriage Laws (Amendment) Act, 1976. In such
view of the matter, the word ‘marriage’ is to be given a wider import. AsCS DJ No. 584/2017
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Judgment dated 18.08.2025 Page No. 21 of 33
we discussed earlier, the legislation is to give a benefit to the child born
from such a relationship. In the case on hand, the documents produced
by the contesting respondents, especially Exs.R15 to R18, would clearly
show that the deceased Veerasamy Chettiar has himself acknowledged
the parentage of the children, which in turn would amount to
acknowledgment of the relationship between him and the deceased
second wife. That itself would be sufficient enough to bring the case of
the respondents within the rigor of Section 16 of the Act. Hence, the
contentions raised by the learned counsel by placing reliance on Sections
5, 11 and 12 of the Act, in our considered view, cannot be countenanced.
A technical interpretation given would have the effect of defeating the
laudable object under Section 16 of the Act.”
(Underlined by me)
59. In the present Suit, the defendant Nos. 1 and 2 have filed several
documents viz. photocopy of passport of Late Sh. Arun Kumar Sehgal
(Ex.D1W1/3), photocopy of letter dated 28.06.2006 issued by LIC of India in
the name of defendant No. 1 (Ex.D1W1/4), photocopy of death certificate of Sh.
Arun Kumar Sehgal (Ex.D1W1/7) and photocopy of statement of account issued
by Allahabad Bank (Ex.D1W1/8) which would show that the deceased Sh. Arun
Kumar Sehgal himself had acknowledged the relationship between him and the
defendant No. 1.
60. As per Section 16(1) of the Hindu Marriage Act, any child born of a
marriage, who would have been legitimate if the marriage had been valid, shall
be legitimate irrespective of the fact that that marriage is null and void under
Section 11 and whether or not a decree of nullity is granted in respect of that
marriage under the Hindu Marriage Act and whether the marriage is held to be
void otherwise than on a petition under that Act. This would mean that even if a
marriage had been contracted at the time when there was a legislative bar to
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Judgment dated 18.08.2025 Page No. 22 of 33
such a marriage, the offspring of such a marriage would be treated as legitimate.
Such a child would be entitled to succeed to property of his or her parents (relied
on a decision of Hon’ble Supreme Court in Rameshwaridevi V/s State of Bihar;
AIR 2000 SC 735).
61. This Court accordingly holds that the defendant No. 2 is entitled to inherit
the share of his father Sh. Arun Kumar Sehgal.
POINT/ ASPECT (d)
62. As already noted, there is nothing on record to show that Late Sh. Arun
Kumar Sehgal divorced the first wife namely Smt. Sunita. So, there is no
question of Sh. Arun Kumar Sehgal settling anything with his first wife Smt.
Sunita or his daughter Ms. Sikha (defendant No. 3) at the time of divorce. Even
otherwise, the defendants No. 1 and 2 have failed to bring on record anything
showing that Smt. Sunita or Ms. Sikha (defendant No. 3) received anything from
Sh. Arun Kumar Sehgal.
POINT/ ASPECT (e)
63. By now this Court has concluded that the marriage between Sh. Arun
Kumar Sehgal and Smt Renu (defendant No. 1) was in contravention of clause
(i) of Section 5 of the Hindu Marriage Act, 1955 and was a void marriage.
Under Section 16 of this Act, children of void marriage are legitimate. As such,
son of Sh. Arun Kumar Sehgal and Smt. Renu Sehgal namely Master Vipul
Sehgal (defendant No. 2) is a legitimate child. Under the Hindu Succession Act,
1956, property of a male Hindu dying intestate would devolve firstly on heirs in
clause (1) which include widow and son. Among the widow and son, they all get
shares (see Sections 8, 10 and the Schedule to the Hindu Succession Act, 1956).
Smt. Renu cannot be described as a widow of Sh. Arun Kumar Sehgal, her
marriage with Sh. Arun Kumar Sehgal being void. Son of the marriage between
Sh. Arun Kumar Sehgal and Smt. Renu being the legitimate son of Sh. Arun
Kumar Sehgal would be entitled to the property of Sh. Arun Kumar Sehgal in
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equal shares along with that of Smt. Sunit (legally wedded wife of Sh. Arun
Kumar Sehgal) and Ms. Sikha (the daughter born from the marriage of Smt.
Sunita with Sh. Arun Kumar Sehgal/ defendant No. 3).
64. However, Smt. Sunita (legally wedded wife of Sh. Arun Kumar Sehgal)
has not been made a party to the Suit. So, the question is whether in her absence
a decree can be passed in the present Suit.
65. It was submitted by the Ld. Counsel for the defendants No. 1 and 2 that
earlier when the matter was reserved for the judgment by the Ld. predecessor of
this Court, Ld. predecessor vide Order dated 06.06.2019 had asked for a
clarification from the Ld. Counsel for the plaintiff as to whether in the absence
of Smt. Sunita, can this Suit be decreed for the relief of partition. Consequent
thereupon, the plaintiff while stating that Smt. Sunita is a necessary party,
moved an application under Order I Rule 10 read with Section 151 CPC for
impleadment of said Smt. Sunita. However, such application was dismissed by
another Ld. predecessor of this Court vide Order dated 06.07.2023 holding the
same barred by limitation. He accordingly had submitted that the present Suit is
liable to be dismissed because of non-impleadment of a necessary party Smt.
Sunita, a legally wedded wife of Sh. Arun Kumar Sehgal. Ld. Counsel for the
defendants No. 1 and 2 had relied on a decision of Hon’ble Supreme Court in
Moreshar Yadaorao Mahajan V/s. Vyankatesh Sitaram Bhedi (D) through LRs.
and others; AIR 2022 SC 4710.
66. Hon’ble Supreme Court in Kanakarathanammal V/s V.S.Loganatha
Mudaliar and another; AIR 1965 SC 271, held;
“14. We do not think there is any justification for allowing the appellant
to amend her plaint by adding her brothers at this late stage. We have
already noticed that the plea of non-joinder had been expressly taken by
Respondents 1 and 2 in the trial court and a clear and specific issue had
been framed in respect of this contention. While the suit was being tried,CS DJ No. 584/2017
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the appellant might have applied to the trial court to add her brothers, but
no such application was made. Even after the suit was dismissed by the
trial court on this ground it does not appear that the appellant moved the
High Court and prayed that she should be allowed to join her brothers
even at the appellate stage, and so, the High Court had no occasion to
consider the said point. The fact that the High Court came to the contrary
conclusion on the question of title does not matter, because if the
appellant wanted to cure the infirmity in her plaint, she should have
presented an application in that behalf at the hearing of the appeal itself.
In fact, no such application was made even to this Court until the appeal
was allowed to stand over after it was heard. Under the circumstances,
we do not think it would be possible for us to entertain the said
application. In the result, the application for amendment is rejected.
15. It is unfortunate that the appellants claim has to be rejected on the
ground that she failed to implead her two brothers to her suit, though on
the merits we have found that the property claimed by her in her present
suit belonged to her mother and she is one of the three heirs on whom
the said property devolves by succession under Section 12 of the Act.
That, in fact, is the conclusion which the trial Court had reached and yet
no action was taken by the appellant to bring the necessary parties on the
record. It is true that under Order 1 Rule 9 of the Code of Civil
Procedure no suit shall be defeated by reason of the mis-joinder or non-
joinder of the parties, but there can be no doubt that if the parties who
are not joined are not only proper but also necessary parties to it, the
infirmity in the suit is bound to be fatal. Even in such cases, the Court
can under Order 1 Rule 10, sub-rule 2 direct the necessary parties to be
joined, but all this can and should be done at the stage of trial and that
too without prejudice to the said parties plea of limitation. Once it is held
that the appellants two brothers are co-heirs with her in respect of the
properties left intestate by their mother, the present suit filed by theCS DJ No. 584/2017
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appellant partakes of the character of a suit for partition and in such a
suit clearly the appellant alone would not be entitled to claim any relief
against the respondents. The estate can be represented only when all the
three heirs are before the Court. If the appellant persisted in proceedings
with the suit on the basis that she was exclusively entitled to the suit
property, she took the risk and it is now too late to allow her to rectify
the mistake. In Naba Kumar Hazra v. Radheshyam Mahish AIR 1931 PC
229 the Privy Council had to deal with a similar situation. In the suit
from which that appeal arose, the plaintiff had failed to implead co-
mortgagors and persisted in not joining them despite the pleas taken by
the defendants that the co-mortgagors were necessary parties and in the
end, it was urged on his behalf that the said co-mortgagors should be
allowed to be impleaded before the Privy Council. In support of this
plea, reliance was placed on the provisions of Order l rule 9 of the Code.
In rejecting the said prayer, Sir George Lowndes who spoke for the
Board observed that they are unable to hold that the said Rule has any
application to an appeal before the Board in a case where the defect has
been brought to the notice of the party concerned from the very outset of
the proceedings and he has had ample opportunity of remedying it in
India.”
(Underlined by me)
67. A bare perusal of the above cited judgment would show and project that
necessary parties could be added at any stage of the proceedings. The Hon’ble
Supreme Court contemplated in the cited judgment Kanakarathanammal supra
that even at the appellate stage before the Hon’ble High Court, impleadment of
necessary parties is possible.
68. Hon’ble Madras High Court in Bandari Pushpamma V/s Bandari Krishna
and Ors.; 2004 (2) ALD 712, while relying on the decision of Hon’ble Supreme
Court in Kanakarathanammal supra allowed the Letters Patent Appeal and
restored the judgment and decree of trial Court wherein the Trial Court, while
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Judgment dated 18.08.2025 Page No. 26 of 33
decreeing the Suit of the plaintiff, had held that the plaintiff and three defendants
(defendants No. 1 and 2 were brothers and the defendant No. 3 was sister of the
plaintiff) are entitled to 1/5th share of their father’s self acquired property
despite the fact that the plaintiff failed to implead her mother who was alive at
the time of filing the Suit.
69. An excerpt from Bandari Pushpamma supra would run thus;
20. It is pertinent to mention here that when it was brought to the notice
of the learned Single Judge that the order was to be passed on the
interlocutory applications and not on the main appeal, the learned Judge
at the first instance should have confined his order in the review petition
on the CMPs and should have restored the appeal to the file. Instead of
doing so, without reviewing the earlier order passed by him, he has taken
up the appeal and disposed of the same by allowing it on the ground of
not impleading the mother as a defendant since, she is a necessary party
in the suit. In view of the same, instead of sending the matter back to the
learned Single Judge for decision again, we thought it appropriate to
dispose of the appeal in the light of the division Bench Judgment of this
Court in Srinivas Kumar Mowle v. Chandrasekhar Mowle and others
(supra) and heard the arguments on either side. In the above decision, a
Division Bench of this Court, considered the aspect of impleading of
necessary party and held that in a suit for partition, the daughter who was
admittedly a sharer was originally impleaded but subsequently she was
given up during trial and the Trial Court did not decide the question as to
the maintainability of the suit in her absence. But in appeal, subsequent
to her death, her legal representatives got themselves impleaded and the
matter was decided in their presence. In such circumstances the Court
held that non-joinder of daughter does not affect the maintainability of
the suit inasmuch as the defect of non-joinder of necessary party can be
cured even in the appellate stage.
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21. The above judgment was rendered by the Division Bench following
the judgment of the Supreme Court in Kanakarathanammal’s (supra),
which the respondents-defendants are relying, wherein the Apex Court
held that if there is a defect of non-joinder of necessary party in a suit it
can be corrected even in the appellate stage. In view of this judgment, we
thought it appropriate not to consider the various other judgments relied
on by the parties.
22. In the present case though the mother of the parties was not
impleaded as a party to the suit, her interest was protected and the Trial
Court held that she was entitled for equal share with the plaintiff and
defendants. Though there was ample opportunity to the respondents-
defendants, they did not take any steps to get an additional issue framed
with regard to the maintainability of the suit on the ground of non-
joinder of necessary parties i.e., the mother of the parties in the suit, but
the issue was raised in the appeal. Now as the matter is before the Bench,
after going through the merits and considering the submissions made by
the learned Counsel on either side and following the judgment of the
Division Bench of this Court in Srinivas Kumar Mowle‘s case (supra),
we are of the considered opinion that though the mother was not
impleaded as party in the suit filed for partition, the Trial Court has taken
a judicial notice that the mother of the parties was alive and accordingly
protected her interest and held that she was also entitled for equal share
with the plaintiff and defendants. Now since the mother of the parties
died during the pendency of appeal before this Court, defect of not
impleading the mother of the parties as a necessary party to the suit is
cured since all the legal representatives are before this Court. Therefore,
it cannot be said that the suit is liable to be dismissed for nonjoinder of
the necessary party now.
(Underlined by me)
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70. Here, in the present Suit as well, no issue about maintainability of the Suit
on the ground of non-joinder of necessary party i.e. legally wedded wife of Sh.
Arun Kumar Sehgal has been framed at the instance of the defendants No. 1 and
2. As noted hereinabove, it appears that this issue has been raised by the Ld.
predecessor of this Court and subsequent thereupon an application has also been
filed on behalf of the plaintiff for impleadment of Smt. Sunita which has been
dismissed. Judgment passed by Hon’ble Supreme Court in Moreshar Yadaorao
Mahajan supra and relied upon by the Ld. Counsel for the defendants No. 1 and
2 is distinguishable as in the case before the Hon’ble Supreme Court a specific
objection regarding non-joinder of parties were taken by the defendant and the
plaintiff had yet not impleaded them in the Suit as a party (a specific issue
regarding non-joinder too was framed there).
71. From above discussion this Court concludes that the Suit is not liable to
be dismissed because of non-impleadment of Smt. Sunita, a legally wedded wife
of Sh. Arun Kumar Sehgal. Considering the overall facts of the case and
considering that the Suit was instituted way back in the year 2007, interest of
justice would be served if 1/4th share of Sh. Arun Kumar Sehgal is divided in
three parts viz. (i) Master Vipul Sehgal (defendant No. 2) (1/12th); (ii) Ms.
Sikha (defendant No. 3) (1/12th); and (iii) Smt. Sunita (legally wedded wife of
Sh. Arun Kumar Sehgal) (1/12th).
72. Issue No. 4 is accordingly decided in favour of the plaintiff and against
the defendants No. 1 and 2. Issue No. 6 is decided against the defendants No. 1
and 2 and in favour of the plaintiff.
ISSUE NO. 2
2. Whether the plaintiff is entitled for decree of permanent
injunction thereby restraining the defendants, their servants,
contractors, agents, representatives or associates from creating any
third party interest in the Suit property ? OPP
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73. Onus to prove issue No. 2 was on the plaintiff.
74. As this Court has already held while deciding issue No. 4 that the plaintiff
alongwith defendants No. 4 and 5 are entitled to 1/4th share in the Suit property
and the defendant No. 2, defendant No. 3 and Smt. Sunita are entitled to 1/12th
share in the Suit property, the defendants have no right to sell, dispose of,
alienate or create third party rights or interest in the Suit property. In the view of
the facts and circumstance of the case, if the defendants are not restrained from
selling, disposing or creating any third party right or interest in the Suit property,
the same shall cause an irreparable loss and injury to the plaintiff. Therefore, a
decree of permanent injunction has been passed in favour of plaintiff; and
defendants, their servants, representatives, agents, nominees are restrained from
selling, creating any third party right and transferring the possession of the Suit
property i.e. property No. 100C, AD Pocket, Pitampura, New Delhi.
75. Issue No. 2 is accordingly decided in favour of the plaintiff and against
the defendants.
ISSUE NO. 3
3. Whether the plaintiff is entitled for decree of mandatory
injunction thereby directing the defendants to hand over the vacant
possession of the portions of the Suit property on the basis which is
to be determined by the Court ? OPP
76. Onus to prove issue No. 3 was on the plaintiff.
77. As this Court has already held that the defendant No. 1 is not a co-owner
of the Suit property and is not entitled to any share in the Suit property, a
mandatory injunction has been passed against the defendant No. 1 directing her
to vacate the Suit property.
78. Issue No. 3 is accordingly decided in favour of the plaintiff and against
the defendant No. 1.
ISSUE NO. 5
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5. Whether the plaintiff is entitled for a sum of Rs. 5000/- as
mentioned in the prayer D in the plaint ? OPP
79. Onus to prove issue No. 5 was on the plaintiff.
80. The plaintiff had claimed from the defendant No. 1 mesne profit at the
rate of Rs. 5,000/- per month on account of use and enjoyment of the plaintiff’s
share in the Suit property. The plaintiff while examined as PW1 deposed
through his evidence affidavit Ex.PW1/A that the defendant No. 1 & 2 are
enjoying the possession of the entire suit property and as such the defendant No.
1 & 2 are liable to pay mesne profit @ Rs. 5000/- per month against my share as
the suit property can easily fetch Rs. 20,000.00 per month as rent.
81. Case of the plaintiff is that at the time of death of Sh. Arun Kumar Sehgal
on 30.05.2007, the defendant No. 1 was residing with her parents along with the
defendant No. 2. The defendant No. 1 forcibly entered/ trespassed into the Suit
property in the first week of September, 2007. Plaintiff, however, has failed to
prove his case. In cross-examination PW1 deposed to the effect that I do not
remember if any complaint was filed by me at the time of trespass in the suit
property against Smt. Renu as alleged in the affidavit . On the contrary, the
defendants No. 1 and 2 have been able to prove on record that she has been
brought in the Suit property by Sh. Arun Kumar Sehgal after marrying her. It
has also come on record through cross-examination of PW1 that the father of the
plaintiff and the defendants No. 4 and 5 and of Sh. Arun Kumar Sehgal expired
in the year 2003 and no claim in the Suit property was made by the plaintiff
from 2003 till 2007, and issue was raised when Sh. Arun Kumar Sehgal expired
in the year 2007.
82. Hon’ble High Court of Delhi in Dr. P. K. Chawla and Ors. V/s Smt.
Sharda Rani Chawla and Ors. (CS (OS) No. 836/2008, decided on 23.05.2016),
held;
CS DJ No. 584/2017
Krishan Kumar Vs. Renu
Judgment dated 18.08.2025 Page No. 31 of 33
“11. Plaintiffs had claimed from the defendants damages at the rate of
Rs.30,000/- per month on account of the plaintiff’s share in the suit
property. No doubt, it is the law that if a co-owner holds portion in
excess of his share, such a co-owner would be liable to pay damages,
however, since the issue is of imposition of a huge monetary liability it
was necessary for the plaintiffs to lead evidence which this Court would
believe and Court’s judicial conscience is satisfied for passing of a
money decree for a specific amount. Plaintiffs therefore had to lead
evidence with respect to the rate of rent in the area with respect to per
square feet or any other unit area method. Plaintiffs had also to prove
that what is the constructed area of the suit property occupied by
defendants and what is the excess area with them. Plaintiffs had also to
lead documentary evidence to show the rate of rent of comparable
premises in the same area or adjoining areas. The plaintiffs have failed to
prove any of the above aspects. Plaintiff nos.1 to 3 who have deposed as
PW1, PW2 and PW3, have only given a self-serving assertion in para 9
of their affidavits that property can fetch Rs.10,000/- per month from
7.7.1979. In my opinion such type of flimsy evidence cannot be a
believable proof with respect to an important issue of rate of mesne
profits in the facts of this case even if there is no cross-examination on
the sketchy and limited evidence. In law, even if a defendant is ex parte,
yet plaintiff has to lead such evidence which will amount to discharge of
onus of proof. Self-serving averments without basis with respect to area
of the property, condition of the property, construction of the property,
comparable rent rates per square feet or any unit area method etc would
not amount to plaintiffs having proved the entitlement to claim damages
at the rate of Rs.30,000/- per month from the defendants.”
83. Issue No. 5 is therefore decided against the plaintiff and in favour of the
defendant No. 1.
CS DJ No. 584/2017
Krishan Kumar Vs. Renu
Judgment dated 18.08.2025 Page No. 32 of 33
84. As a net result of aforesaid, it is held that;
(i) The plaintiff, defendant No. 4 and the defendant No. 5 are 1/4th co-
owners of the Suit property. The defendant No. 2, defendant No. 3, and
Smt. Sunita (legally wedded wife of Late Sh. Arun Kumar Sehgal) are
1/12th co-owners of the Suit property. The defendant No. 1 is not entitled
to any share in the Suit property. Suit property is property No. 100C, AD
Pocket, Pitampura, New Delhi.
(ii) A decree of permanent injunction has been passed in favour of
plaintiff; and defendants, their servants, representatives, agents, nominees
are restrained from selling, creating any third party right and transferring
the possession of the Suit property i.e. property No. 100C, AD Pocket,
Pitampura, New Delhi.
(iii) A mandatory injunction has been passed against the defendant No. 1
directing her to vacate the Suit property.
(iv) The plaintiff is not entitled to damages/ mesne profits from the
defendants No. 1 and 2.
(v) Parties are left to bear their own costs.
85. A preliminary decree be accordingly drawn.
(Announced in the open court on this 18th day of August , 2025
This Judgment consists of Thirty Three of signed pages).
(Abhishek Srivastava)
District Judge-05,
Central, THC, Delhi
Digitally
signed by
ABHISHEK
ABHISHEK SRIVASTAVA
SRIVASTAVA Date:
2025.08.18
16:58:13
+0530CS DJ No. 584/2017
Krishan Kumar Vs. Renu
Judgment dated 18.08.2025 Page No. 33 of 33
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