Delhi District Court
Roop Chand Jayant vs Ram Chand on 19 July, 2025
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
IN THE COURT OF SH. JITEN MEHRA:
DISTRICT JUDGE 10:TIS HAZARI COURTS: DELHI.
CS DJ NO. 610058/2016
CNR NO. DLCT01-000004-1991
In the matter of:
1. SH. ROOP CHAND JAYANT
S/o Late Sh. Ram Chander
(Since deceased, Through Legal Representatives)
a. Smt. Kela Devi (Wife)
b. Ms. Rinku (Daughter)
Both R/o A-1/413, Nand Nagri,
Mandoli Saboli, Delhi-110093
c. Shri Rakesh Kumar (son)
R/o 231 A, Humayun Pur,
Safdarjung Enclave, Delhi-110029.
......Plaintiff
Versus
1. SH. RAM CHANDER
S/o Late Sh. Shri Shiv Lal,
(since deceased, through legal representatives)
1 a. Mrs. Narayan Devi (daughter)
W/o Shri Dina Nath,
R/o 111/4, Judges Compound, Agra, U.P.
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
1 b. Mr. Parmeshwari Devi,
W/o Mr. Gopal Singh,
R/o 56-C, Phase II, Masjid Moth, New Delhi
1 c. Mrs. Raj,
W/o Shri Sajan Kumar (Dr.),
Medical Officer, Muskara, Hamidpur, U.P.
1 d. Mrs. Kamla
W/o Shri R.K. Gupta,
R/o House no. E-1170,
Netaji Nagar, New Delhi.
1 e. Miss Sunita (daughter)
55, Humayunpur, New Delhi
1 f. Vinod Kumar,
R/o B-7/68-1,
Safdarjung Enclave, New Delhi.
1 g. Mohan Kumar (minor)
Through his guardian
Smt. Mallo Devi (defendant no.3)
R/o B-7/68-1, Safdarjung Enclave,
New Delhi.
1-h. Om Vati,
R/o R-68-A/1,
Safdarjung Enclave,
New Delhi.
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
2. SMT. CHAMELI DEVI
(since deceased, suit abated vide order dated 13.05.2008)
W/o Late Shri Ram Chander.
R/o 55, Humayunpur.
New Delhi.
3. SMT. MALLO DEVI
W/o Shri Nanak Chand,
R/o B-7/68-1, Safdarjung Enclave,
New Delhi.
.....Defendants
Date of institution: 25.07.1991
Date on which reserved for judgment: 29.04.2025
Date of decision : 19.07.2025
SUIT FOR PARTITION
JUDGMENT:
1. The present suit was originally instituted before the
Hon’ble High Court of Delhi on 25.07.1991. However, owing to
the enlargement of the pecuniary jurisdiction of the District
Courts in Delhi, as per section 5 (2) of the Delhi High Court Act,
1966 as amended by the Delhi High Court (Amendment) Act,
2003 and in terms of office order No.37/DHC/ORGL. dated
22.08.2003, it was transferred to the District Courts (Central
District) for further trial.
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
Plaintiff’s version as per the plaint
2. The plaintiff Sh. Roop Chand Jayant, who expired during
the pendency of the suit on 05.10.2021, had filed the present suit
for partition against the defendants no.1-3.
3. The defendant no.1, Sh. Ram Chander, who expired on
13.01.1993 after filing his written statement in the suit, was the
father of the plaintiff.
4. The defendant no.2, Smt. Chameli Devi, who also expired
during the pendency of the suit on 07.01.2008, was the mother of
the plaintiff and wife of the defendant no.1. The suit against her
was abated vide order dated 13.05.2008.
5. The defendant no.3, Smt. Mallo Devi, is stated to have
been the paramour of the defendant no.1.
6. The plaintiff’s grandfather Late Sh. Shiv Lal/Dayal
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
(hereinafter refer to as Shiv Lal) is stated to have expired in the
year 1956 (exact date/month of death not mentioned in the
plaint), leaving behind his widow Smt. Hukmo Devi and four
sons and one daughter, namely Sh. Ram Chander/defendant no.1,
Sh. Hari Chand, Sh. Daulat Ram, Sh. Chandu Lal and Smt.
Kalawati.
7. Late Sh. Shiv Lal is stated to have ‘left behind’ large
number of jewellery and other movable properties (details not
mentioned in the plaint) and also several house/properties and
lands in the Village Humayunpur and Arjun Nagar, New Delhi
namely:
a) Municipal Nos. 53, 53-A, 54 and 55, Humayunpur, New
Delhi.
b) Municipal No. 13-G and 13-GA, Humayunpur, New
Delhi.
c) Municipal No. 261-A and 261-B, Arjun Nagar, New
Delhi.
8. The plaintiff claims that the sons of Late Sh. Shiv Lal
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
partitioned the aforementioned properties in the year 1958 by
way of mutual family settlement, as per which the House no. 55,
Humayunpur, New Delhi and House no. 261-A and 261-B, Arjun
Nagar, New Delhi came to the share of the defendant no.1 and
his family (Ram Chander’s branch) as ‘ancestral properties’, in
which the plaintiff had one half share (1/2 share) in the ‘entire
Joint Hindu Family Properties being the co-parcener’.
9. The House no. 55 (as mentioned in the plaint) and 13G
Humayunpur came to the share of Sh. Hari Chand and his family
(Hari Chand’s branch). The House no. 53A and 13G-II came to
the share of Sh. Daulat Ram and his family (Daulat Ram’s
branch). The House no. 53, Humayunpur, New Delhi came to the
share of Sh. Chandu Lal and his family (Chandu Lal’s branch).
10. The plaintiff states that the defendants no.1 and 2 were
carrying on the business of selling building materials from a part
of the land at the property no. 261-B, Arjun Nagar, New Delhi,
where the defendant no.3 was working as a Beldar (labourer). In
the year 1969-1970, the defendant no.1 is stated to have
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established romantic and sexual relations with the defendant
no.3, outside of his marriage with the defendant no.2. At this
time, the defendant no.3 is also stated to have been already
married to one Sh. Nanak Chand, out of which marriage she also
had one son and a daughter. The defendant no.1 is stated to have
started spending time in the company of the defendant no.3 in a
room adjacent to the shop, at property no. 261-A, Arjun Nagar,
New Delhi and neglecting his family.
11. In the early party of the year 1978, the defendant no.1
suffered from paralytic attack and was hospitalized and the
defendant no.2 and the plaintiff took him to house no.55,
Humayunpur, New Delhi and took care of him. The defendant
no.1 is stated to have lived with them up-til November, 1989
when he was again taken back by the defendant no.3.
12. In the year 1975-1976, during the imposition of
Emergency, the construction on Plot no. 261-A, Arjun Nagar,
New Delhi was demolished and the same was taken over by the
Delhi Development Authority (DDA). Against the said plot,
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
initially one Janta Flat at Kalkaji was allotted in the name of the
defendant no.1. However, since he was suffering from paralysis
and was unable to climb up the stairs and the said flat was also
too small in comparison to the land acquired by the DDA, it
agreed to allot a bigger flat on proper equitable basis vide Order
No. F.13 (15) / 77/ CRC/ DIA dated 13.10.1977 and accordingly
allotted MIG Flat bearing No. B-7/68-I, Safdarjung Development
Area, New Delhi (SDA flat) vide order No. 7(a)/77/HB (M) – I
dated 29.11.1977.
13. As per the plaintiff, the total cost of the aforementioned
SDA flat was Rs. 60,300/-, and was allotted on installment basis.
Initially a sum of Rs.7,000/- towards cost of land and
Rs.1,110.75/- as installment money was to be deposited in DDA.
14. The defendant no.1 sold the jewellery of the defendant
no.2 and also used income from the joint Hindu family business
to make the payment of a sum of approximately Rs.10,000/- to
the DDA.
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15. After the DDA allotted the aforementioned SDA Flat, the
defendant no.3 was illegally put in possession of the same by the
defendant no.1, even though the said flat was allotted in lieu of
acquisition of ancestral land/property of the plaintiff and the
defendant no.1. Further, the cost of land and installments were
also paid out of the sale proceeds of the jewellery of the
defendant no.2 and from the income of joint hindu family
business.
16. It is stated that the defendant no.3 filed a false application
before the DDA, alleging herself to be the wife of the defendant
no.1 and both have fraudulently got the said flat ‘transferred
allotted in the name of the defendant no.3, which fact has
recently come into the knowledge of the plaintiff.
17. As per the plaintiff, the defendant no.3 is the wife of Sh.
Nanak Chand, who was alive at the time of filing of the suit and
residing at Village Kalera Khimanti, PS Murad Nagar, Ghaziabad
Uttar Pradesh (UP), and their marriage was never dissolved.
Further, the marriage between the defendant no.1 and 2 also
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subsists.
18. The plaintiff alleges that he was expending his earnings
and savings in the upkeep of his mother/defendant no.2 and
sisters along with his own wife and children. Further, the plaintiff
and the defendant no.2 had also borne the entire marriage
expenses of three daughters of the defendants no.1 and 2, while
two daughters were unmarried.
19. Accordingly, the plaintiff and the defendant no.2
demanded partition of the undivided joint hindu family properties
namely 55, Humayunpur; 261B Arjun Nagar, New Delhi and
B-7/68-I, SDA, New Delhi from the defendant no.1, who avoided
the same.
20. The plaintiff claims that he is the owner of one half share
in the ‘undivided HUF properties’ and the defendant no.2, being
the lawfully wedded wife of the defendant no.1, has first charge
for her maintenance and for meeting the expenses of her daughter
on the undivided HUF properties of the plaintiff.
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
21. In the first week of January, 1990 the plaintiff learnt that
the defendant no.1 was threatening to dispose off the property
no.261B, Arjun Nagar, New Delhi and he accordingly filed a suit
for permanent injunction in the Court of Smt. Bimla Makin, the
then Ld. SJIC, Delhi which was pending adjudication at the time
of institution of the present suit.
22. The plaintiff sought a decree of partition may kindly be
passed by partitioning the properties: (a) No. 55, Humayunpur,
New Delhi; (b) 261-B, Arjun Nagar, New Delhi and (c) B-7/68-I
SDA, New Delhi between the plaintiff and the defendants no.1
and 2 as per metes and bounds.
Written statement of the defendant no.1
23. The defendant no.1 Sh. Ram Chander filed his written
statement in which he raised the preliminary objections that the
present suit was not maintainable as the property bearing
No.261-B, Arjun Nagar, New Delhi was the ‘self acquired
property of the defendant no.1 by way of adverse possession’ and
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
he was ‘in possession of the suit property since 1963 in his own
right’. He further asserted that the defendant no.3 was the
exclusive owner of the property no. B-7/68-I, SDA, New Delhi in
her own right.
24. He further raised the preliminary objection that the
plaintiff had concealed the fact with respect to pendency of the
suit filed in the Court of the Sub-Judge, Delhi on the same cause
of action, where the relief of injunction was refused to the
plaintiff and hence the present suit was barred by res judicata.
The plaintiff had also concealed the fact that another property
bearing no.231-A, Humayunpur, New Delhi was in his
possession, which was the self acquired property of the defendant
no.1.
25. It was further submitted that the present suit was bad on
account of non-joinder of necessary parties as the other legal
heirs of Late Sh. Shiv Lal had not been made parties.
26. Further, it was objected that the plaintiff had no right to
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
seek partition of the properties within the lifetime of the father
under Hindu Law.
27. In the reply on merits, the defendant no.1 admitted that the
plaintiff was his son and also the grandson of Late Sh. Shiv Lal.
He also admitted that late Sh. Shiv Lal expired in 1956 leaving
behind his widow, four sons and one daughter.
28. However, the defendant no.1 denied that Late Sh. Shiv Lal
left behind the properties as stated in para no.3 of the plaint. He
submitted that properties no. 261-A and 261B Arjun Nagar, New
Delhi and 231-A, Humayunpur, New Delhi were his self-
acquired properties by way of adverse possession. He denied that
late Sh. Shiv Lal left behind jewellery and other movable
properties. He also denied that the sons of late Sh. Shiv Lal
partitioned the properties in the year 1958 by way of mutual
family settlement. He stated that properties no. 261A and 261B
Humayunpur were not ancestral properties and were his self-
acquired properties by way of adverse possession. He denied that
the defendant no.2 was ever in possession of the properties
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
no.261A and 261B, Humayunpur, New Delhi. He stated that with
respect to the other properties, his brothers were already in
possession of the same. He stated that he had given the property
no.55, Humayunpur, New Delhi to the plaintiff out of his own
free will. He stated that the plaintiff was also in possession of
property no.231-A Humayunpur, New Delhi which belonged to
him, being his self acquired property. He asserted that he
reserved the right to take back the possession of property no.231-
A, Humayunpur, New Delhi along with the share in property
no.55, Humayunpur, New Delhi. He further denied that the
plaintiff had any right to a share in property no.261A and 261B
Arjun Nagar, New Delhi as it was his self acquired property and
was not joint family property. The defendant no.1 admitted that
the property no. 55, Humayunpur, New Delhi was an ‘ancestral
property’ in which he along with the plaintiff had a share.
29. He further submitted that the plaintiff and his
mother/defendant no.2 had ceased to have any relationship with
him for the last almost 30 years. The defendant no.2 had in-fact
deserted him and married one Sh. Pat Ram, s/o Himat Ram, r/o
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Lado Sarai, New Delhi and was living with him along with the
plaintiff. Further, a female child named Sunita [defendant
no.1(e)] was also born out of the said wedlock about 27 years
ago.
30. In reply to para no.5 of the plaint, the defendant no.1 did
not deny that he was selling building materials from property
no.261B, Arjun Nagar, New Delhi, however stated that the
defendant no.2 never participated in the same. He reiterated that
the defendant no.2 had deserted him 30 years ago and since then
he had been living separately from her. He stated that he had
acquired the property no.261B, Arjun Nagar, New Delhi by way
of adverse possession in the year 1963. He stated that the
defendant no.3 was his wife, but did not provide any date of
marriage. He stated that the present litigation had been instituted
by the plaintiff out of greed, inspite of the fact that he had given
house no. 55 Humayunpur, New Delhi to the plaintiff and the
plaintiff was also in possession of house no. 231-A,
Humayunpur, New Delhi which was the self acquired property of
the defendant no.1. He further submitted that he had given
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money for two busses, which were being plied by the plaintiff in
the name of his wife and the defendant no.2. He stated that the
plaintiff, being a government servant, was therefore in violation
of the statutory service rules by actively engaging in the said
business. Further, the plaintiff had also filed false criminal
complaints against the answering defendant no.1 in collusion
with the officials of PS Sarojini Nagar, New Delhi implicating
him in a theft case, due to which he was arrested as well despite
being paralytic. He further denied that the defendant no.2 was his
wife. He also denied that he was resident at the address given by
the plaintiff in the array of parties.
31. In reply to para no.6 of the plaint pertaining to allotment of
the SDA property in lieu of 261-A, Arjun Nagar, New Delhi, the
defendant no.1 denied the same stating that he had file a suit for
permanent injunction against the DDA before the Sub-Judge,
Delhi, when the DDA threatened to demolish the premises, and
the Court was pleased to permanently restrain the DDA from
demolishing the structure vide judgment dated 11.08.1981 in Suit
no. 458/1978. He denied that property no. B-7, 68-I, SDA, New
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
Delhi was allotted in lieu of the demolition of the property no.
261-A, Arjun Nagar, New Delhi. He submitted that the defendant
no.3 was the owner of the said property.
32. The defendant no.1 denied that he sold the jewellery of the
defendant no.2 and made a payment of approximately
Rs.10,000/- to the DDA as against the SDA property.
33. In reply to para no.8 of the plaint, the defendant no.1 stated
that the allegations of having him having developed illicit
relations with the defendant no.3 were malicious and malafide.
He stated that the defendant no.3 was his wife, who had looked
after him and taken care of him. He denied that the defendant
no.3 was ever married to Sh. Nanak Chand. He further stated that
the defendant no.2 “was once upon a time the wife of the
answering defendant”.
34. The defendant no.1 denied that after 1978 he ever lived in
house no.55, Humayunpur, New Delhi or that he was taken care
of by the defendant no.2. He submitted that ‘ The plaintiff and the
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
defendant no.2 ceased to have any relations with the answering
defendant for the last more than 30 years and have been living
separately since then’. He again reiterated that the SDA flat was
not allotted in lieu of any acquisition of property no. 261A, Arjun
Nagar, New Delhi. He further denied that any jewellery of the
defendant no.2 was sold by him for the purpose of acquisition of
the flat at SDA, New Delhi or that funds of the joint Hindu
family business were utilized. He submitted that he had been
running the business of building materials from his property
bearing no. 261A and 261B Arjun Nagar, New Delhi. He denied
that any fraud had been played by him or the defendant no.3 on
the DDA or that the defendant no.3 got the said flat at SDA, New
Delhi registered in her name illegally. He again denied that the
defendant no.3 could not be his wife and stated that ” After
desertion of the defendant no.2 about 30 years ago and her
marrying Pat Ram, defendant no.1 rightly contracted the
customary marriage with the defendant no.3. It is denied that the
defendant no.3 was ever married to alleged Nanak Chand. … It is
denied that the alleged marriage between the answering
defendant and defendant no.2 subsists. The answering defendant
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
ceased to have any right with the defendant No.2 when she
remarried.”
35. In reply to para no.10 of the plaint, the defendant no.1
denied that the plaintiff spent his earnings and savings to upkeep
his mother and sisters in addition to his own wife and children or
that the plaintiff bore the marriage expenses of his sisters. He
stated that despite the defendant no.2 having deserted him and
remarried, he has provided for the plaintiff and the defendant
no.2 by giving them house no.55, Humayunpur, New Delhi, in
which the defendant no.1 had a share, and allowed the plaintiff to
occupy house no.231A, Humayunpur, New Delhi, as well as
financing two buses from which the plaintiff and the defendant
no.2 derived their source of income. He stated that the plaintiff
and the defendant no.2 also owned a petrol pump in Haryana.
36. In reply to para no.11 of the plaint, the defendant no.1
denied that he lived with the plaintiff and the defendant no.2 until
middle of November, 1989 and was then taken back by the
defendant no.3 under her influence. He submitted that he had not
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lived with the defendant no.2 for the last more than 30 years.
37. In reply to para no.12 of the plaint, the defendant no.1
further denied that the plaintiff and the defendant no.2 were
entitled to seek partition of the property 55, Humayunpur, New
Delhi; 261B Arjun Nagar, New Delhi and B-7/68-I, SDA, New
Delhi. He reiterated that the property no.261B Arjun Nagar, New
Delhi was his self acquired property by way of adverse
possession and that the property no.B-7/68-I, SDA, New Delhi
was the property of the defendant no.3. He further stated that the
property no.55, Humayunpur, New Delhi was ancestral property
in which the defendant no.1 had an equal share and right.
38. In reply to para no.13 of the plaint, the defendant no.1
denied that the plaintiff was entitled to half undivided share in
the properties. He denied that the plaintiff had any right in the
properties, other than property no.55, Humayunpur, New Delhi,
during his own lifetime. He also denied that the defendant no.2
had any charge on account of her maintenance or those of the
expenses of her daughter. He reiterated that he had provided for
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her sufficiently and that she had deserted him.
39. In reply to para no.14 of the plaint, the defendant no.1
admitted that a suit for injunction had been filed before the Court
of Ms. Bimla Makin, the then Ld. Sub-Judge, Delhi but stated
that the plaintiff had concealed the fact that injunction had been
refused as sought by the plaintiff. Further, the plaintiff had also
instituted an appeal against the said order, which was pending
before the Court of the Senior Sub-Judge, Delhi.
40. In reply to para no.15 of the plaint, the defendant no.1
denied that the property of 261B, Arjun Nagar, New Delhi and
B-7/68-I SDA, New Delhi were liable to be partitioned by way of
metes and bounds. He stated that “However the answering
defendant has a right and share in the property No.55,
Humayunpur, N Delhi and reserves his right to take appropriate
steps in respect of the said property and property No.231-A,
Humayunpur, N Delhi which is self acquired property of
answering defendant”.
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41. In reply to para no.16 of the plaint, the defendant no.1
reiterated that the defendant no.3 was the rightful owner of the
property no. B-7/68-I, SDA, New Delhi in her own right. He
stated that no marriage ever took place between the defendant
no.3 and Sh. Nanak Chand. He further stated that no marriage
subsisted between himself and the defendant no.2, who had
deserted him 30 years ago and had married one Pat Ram and was
living with him along with the plaintiff and other children.
42. The defendant no.1 denied that any cause of action as
stated by the plaintiff had arisen in his favour to file the present
suit and stated that the plaintiff and the defendant no.2 were not
entitled to seek any partition. The defendant no.1 did not deny
the territorial jurisdiction of the Court to entertain the present
suit, however objected to the valuation and court fees paid. He
prayed for the suit to be dismissed, while admitting that ‘ Only
property no. 55 Humayunpur, N Delhi can be partitioned being
the ancestral property & no other property’.
RELEVANT PROCEEDINGS IN THE SUIT
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43. As already mentioned, the defendant no.1 Sh. Ram
Chander expired during the pendency of the present suit on
13.1.1993 after filing his written statement. The plaintiff filed an
application under Order 22 rule 4 CPC seeking impleadment of
the legal representatives (LRs) of Sh. Ram Chander. The
defendant no.3 Smt. Mallo Devi also moved an application under
Order 1 rule 10 CPC seeking the impleadment of her three
children, alleged to have been born out of wedlock with Sh. Ram
Chander as well. Vide order dated 22.04.1994, the LRs sought to
be impleaded by the plaintiff, i.e the children of the defendant
no.1 out of his marriage with the defendant no.2, were impleaded
as defendants no. 1(a) – 1(e). Further, the LRs sought to be
impleaded by the defendant no.3 Smt. Mallo Devi, i.e. the
children born out of her alleged marriage with the defendant
no.1, were also impleaded as defendant no. 1(f) – 1(h). It was
further ordered that “The question as to whether these children
will have any right to the property left behind by the deceased
who already had a spouse living at the time of the alleged second
marriage is a matter to be decided on merits.”
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44. Vide order dated 23.05.1995, the plaintiff was permitted to
amend his plaint by adding paragraph no.15A, explaining the
circumstances of the impleadment of the LRs of the defendant
no.1.
AMENDED PLAINT OF THE PLAINTIFF
45. In the amended plaint, only paragraph no.15A was added,
in which the impleadment of the LRs of the defendant no.1 were
explained. Further, the plaintiff sought partition of the properties
between the plaintiff, defendants no.1(a)-(e) and the defendant
no.2 by way of metes and bounds.
WRITTEN STATEMENT OF THE DEFENDANTS NO. 1(A) –
1 (E) AND THE DEFENDANT NO.2:
46. As already mentioned earlier, vide order dated 22.04.1994
the children of the defendant no.2 born out of her marriage with
the defendant no.1 were impleaded as defendants no. 1(a) – (e),
namely Mrs. Narayani Devi, Mrs. Parmeshwari Devi, Mrs. Raj,
Mrs. Kamla and Mrs. Sunita.
47. In the combined written statement filed by the defendants
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no.1 (a) – (e) and the defendant no.2, they admitted the contents
of the plaint.
48. In reply to para no.5 of the plaint, they added that Sh.
Nanak Chand was working as a beldar in the business of building
materials, which was being run by the defendant no.1 with the
assistance of the defendant no.2. Sh. Nanak Chand and the
defendant no.3/Mallo Devi got married in the year 1963, about
four years after the marriage of the defendant no.1 (a) Mrs.
Narayani Devi, who is the eldest daughter of the defendant no.1.
Smt. Mallo Devi gave birth to a male child i.e. Sh. Vinod Kumar
[defendant no.1(f)] out of her wedlock with Sh. Nanak Chand.
After the birth of Sh. Vinod Kumar, intimacy is stated to have
been developed between the defendant no.3 and the defendant
no.1, which resulted into illicit relations. After some time, Sh.
Nanak Chand was forcibly turned out from the shop by the
defendant no.1, however the defendant no.3 used to come and
stay with the defendant no.1. The defendant no.3 also filed a
petition under the Guardianship Act for obtaining the
guardianship of her aforementioned son Sh. Vinod Kumar against
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
her husband Sh. Nanak Chand @ Nanva on 15.03.1968 in the
Court of the District Judge, Delhi. However, the said matter was
compromised and the defendant no.3 got the custody of her son
Sh. Vinod Kumar [defendant no. 1(f)]. The said guardianship
petition was dismissed as satisfied on 01.04.1968. After some
time, the said Sh. Nanak Chand again started living with the
defendant no.3 and a daughter and son were born out of the said
union namely Smt. Omvati [defendant no.1(h)] and Master
Mohan Kumar [defendant no.1(g)]. Later, the defendant no.3 was
again taken by the defendant no.1 as his paramour, despite strong
resistance by the plaintiff and the answering defendants and also
started neglecting them. However, in the year 1978 when the
defendant no.1 suffered a paralytic attack and was hospitalized,
the defendants no. 1(a) – (e) along with the plaintiff and the
defendant no.2 took care of him.
49. The answering defendants also supported the plaintiff’s
claim that the property of B-7/68-1, Safdarjung Enclave, New
Delhi was allotted to the defendant no.1 in lieu of the demolition
of plot no.261A, Arjun Nagar, New Delhi, which had been
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fraudulently allotted in the name of the defendant no.3, showing
her to be the wife of the defendant no.1. The answering
defendants also denied that the defendant no.2 ever contracted
any other marriage with any person apart from the defendant no.1
or had ever deserted him.
50. The answering defendants no. 1(a) – (e) thus also sought
for partition of the properties and claimed their share in the same
along with the plaintiff and the defendant no.2.
WRITTEN STATEMENT OF THE DEFENDANT NO.3, SMT.
MALLO DEVI
51. The defendant no.3, Smt. Mallo Devi raised the
preliminary objection that the suit of the plaintiff was not
maintainable as he had concealed material facts and approached
with unclean hands, without any locus standi.
52. In the reply on merits, the defendant no.3 did not deny that
the plaintiff was the grandson of late Sh. Shiv Lal, who expired
in 1956 and the son of Sh. Ram Chander/defendant no.1. She
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also did not deny that Late Sh. Shiv Lal expired in 1956, leaving
behind the persons as mentioned in para no.2 of the plaint.
53. In reply to para no.3 of the plaint, the defendant no.3
denied only to the extent that properties no.261-A and 261-B,
Arjun Nagar, New Delhi were left behind by Late Sh. Shiv Lal.
She denied that the same were ancestral properties and stated that
the same were self-acquired properties of the defendant no.1 by
way of adverse possession. However, she denied that he left
behind any jewellery.
54. In reply to para no.4 of the plaint, she denied that
properties no.261-A and 261-B, Arjun Nagar, New Delhi were
partitioned in the year 1958 by way of mutual family settlement
by the sons of Late Sh. Shiv Lal or that the said properties were
ancestral properties.
55. In reply to para no.5 of the plaint, she denied that the
defendant no.2 carried on any business of building materials
from a part of the land at property no. 261-B, Arjun Nagar, New
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Delhi. She asserted herself to be the legally wedded wife of the
defendant no.1, but did not provide any date or year of marriage
in the entire written statement. She stated that the defendant no.2
had deserted the defendant no.1 about 30 years ago and married
on Sh. Pat Ram, s/o Himmat Ram, r/o Laddo Sarai New Delhi
and had started living with him along-with children and ceased to
have any relations with the defendant no.1. She stated that
defendant no.2 was no longer the wife of the defendant no.1,
after having married Par Ram.
56. In reply to para no.6 of the plaint, the defendant no.3
denied that the flat no. B-7/68-I, SDA, New Delhi was allotted in
lieu of Plot No. 261-A, Arjun Nagar, New Delhi and stated that
the same was her self-acquired property.
57. In reply to para no.7 of the plaint, the defendant no.3
denied that the defendant no.1 ever sold the jewellery of the
defendant no.2 towards the acquisition of the SDA flat and
further stated that the defendant no.2 had herself taken away all
her jewellery at the time of deserting the defendant no.1. She
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reiterated herself to be the owner of the SDA flat, being her self
acquired property.
58. In reply to para no.8 of the plaint, the defendant no.3
denied that she had developed illicit relations with the defendant
no.1 and stated that she was his wife. She stated that she had
three children from the wedlock with the defendant no.1.
59. In reply to para no.9 of the plaint, the defendant no.3
denied that the defendant no.1 ever stayed with the plaintiff and
the defendant no.2 after his paralytic attack in 1978. She denied
that that the SDA flat was allotted in lieu of any alleged ancestral
property or by sale of any jewelery of the defendant no.2. She
stated that she was the owner of the SDA flat, which she had
purchased from the DDA on hire-purchase basis. She denied that
she ever married Nanak Chand.
60. In reply to para no.10 of the plaint, the defendant no.3
stated that the plaintiff and his mother/defendant no.2 were fully
provided for by Late Sh. Ram Chander and the plaintiff also gave
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the house at Humayunpur, New Delhi and also financed two
busses, out of the earnings from which the plaintiff and the
defendant no.2 also acquired a Petrol Pump at Haryana.
61. In reply to para no.9 of the plaint, the defendant no.3
denied that the defendant no.1 lived with the plaintiff and the
defendant no.2 after his paralytic attack in 1978.
62. The defendant no.3 denied that the plaintiff and the
defendant no.2 were entitled to seek any partition of the
properties mentioned. She denied that the defendant no.2 was the
legally wedded wife of the defendant no.1 or that she had any
charge of maintenance for herself and her daughter.
63. The defendant no.3 did not deny the fact of filing of the
suit by the plaintiff before the Court of Ms. Bimla Makin, Sub-
Judge, Delhi.
64. The defendant no.3 denied that the properties 261-B, Arjun
Nagar or B-7,68-I, SDA, New Delhi were liable to be partitioned
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and stated nothing explicitly with respect to the property no. 55,
Humayunpur, New Delhi.
Written statement of the defendants no. 1(f) – 1 (h)
65. As already mentioned earlier, vide order dated 22.04.1994
the children of the defendant no.3 were also impleaded as the
legal representatives of the defendants no. 1 as defendants no.
1(f) – (h), namely Sh. Vinod Kumar, Master Mohan Kumar and
Ms. Omwati.
66. The answering defendants no. 1(f) – (h) also raised the
preliminary objections that the present suit was not maintainable
as the property bearing no. 261-B, Arjun Nagar, New Delhi was
the self-acquired property of the defendant no.1 by way of
adverse possession and the answering defendants had been in
possession of the same since 1963. Further, the defendant no.3
was the exclusive owner of the property no. B-7/68-I, SDA, New
Delhi. It was further stated that the plaintiff had concealed
property no. 231-A, Humayunpur, New Delhi which was the self
acquired property of the defendant no.1, which was in the
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possession of the plaintiff. Further, the plaintiff had also
concealed the fact of the pendency of a suit on the same cause of
action pending before the Court of the Sub-Judge, Delhi, where
the relief of injunction was refused to him. The suit was also
stated to be bad for non-joinder of the other legal heirs of Late
Sh. Shiv Lal. Further, the plaintiff had no right to file a suit for
partition within the lifetime of the defendant no.1.
67. In the reply on merits, the defendants no. 1(f) – (h), they
raised the similar contentions as raised by the defendant nos. 1
and 3 in their written statement.
Replication by the Plaintiff
68. In the replication by the plaintiff to the written statement
of the defendant no.1, the plaintiff denied the averments of the
same and reiterated the facts in the plaint as true and correct. He
added that property no. 261-B, Arjun Nagar, New Delhi was
ancestral property in which the fore-fathers of the plaintiff had
been in possession and relied on the statement dated 07.04.1980
of the defendant no.1, recorded in the Suit no. 458/1978, filed by
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
the defendant no.1 against the DDA in which the defendant
admitted that he had been residing in property no. 261-B, Arjun
Nagar, New Delhi since childhood and hence, the same was
ancestral property. The plaintiff also added he was in possession
of one room of the property no. 261-B, Arjun Nagar, Delhi,
through his driver, for which the court of the Ld. Sub-Judge had
granted injunction in his favour vide order dated 17.12.1990. He
denied concealing the property no. 231-A, Humayunpur, New
Delhi and stated that the defendant no.2 had constructed the same
in 1982 from her own funds. He further stated that the properties
no.261-A and 261-B, Arjun Nagar, New Delhi, apart from the
other properties stated in the plaint were given to Sh. Shiv Lal by
the Zamindars (landlords) of the village about 80 years back and
hence were ancestral properties. It was also denied that the
defendant no.2 ever married any Pat Ram or that she deserted the
defendant no.1.
69. The plaintiff denied that the defendant no.1 had purchased
busses for him and deposed that the defendant no.2 and his wife
had purchased the same from their own savings along with bank
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loan.
70. In the replication to the written statement of the defendants
no.1 (f)-(h), the contents of the written statement were denied as
being incorrect and the facts as stated in the plaint were reiterated
to be true and correct.
ISSUES FRAMED
71. Vide order dated 01.12.1999, the following issues were
framed for consideration in the present suit:
1. Whether the properties bearing Nos. 261-A & 261-B,
Arjun Nagar, New Delhi and 53, 53-A, 54 and 55
Humayunpur, New Delhi are the self acquired properties
of deceased defendant no.1, Shri Ram Chander? If so, its
effect?
2. Whether defendant no.3 is the widow of late Shri Ram
Chander, defendant no.1?
3 a. Whether defendant no.2 ceased to be the wife of
defendant no.1 during the life time of defendant No.1? If
so, its effect?
3 b. Whether defendant no.2 ever married a person known
as Shri Pat Ram as alleged in para 5 of the Written
Statement (Reply on Merits) filed by defendant no.3?
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4. Whether the plaintiff and defendants Nos. 1(a) to 1(e)
are the legal heirs of deceased defendant No.1 and
defendant No.2?
5. Whether the property bearing No. B-7/68-I, Safdarjung
Development Area, is the self acquired property of
defendant No. 3?
6. Whether the properties in suit are ancestral Joint Hindu
Family properties and the plaintiff is co-parcenor therein?
If so, its effect?
7. Whether defendants Nos. 1(f) to 1(h) are the sons of
deceased defendant No.1 & defendant No. 3?
8. Whether the plaintiff is entitled to partition of the
properties in suit?
9. Whether defendant No.1 became the owner of suit
properties by adverse possession?
10. Relief, if any
Evidence adduced by the Plaintiff
72. The plaintiff Sh. Roop Chand Jayant examined himself as
PW-1 and tendered his evidence by way of affidavit on
13.07.2006 (perusal of the judicial file reveals that inadvertently
no exhibit number was ascribed to the evidence by way of
affidavit of PW-1 at the time of its tendering. Hence, for the sake
of convenience it shall be referred to as Ex. PW-1/A in the
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present judgment).
73. The plaintiff reiterated his contentions with respect to his
grandfather Late Sh. Shiv Lal having expired in the year 1956
and leaving behind the properties as mentioned in the plaint
along with movable properties and large number of jewellery.
However, the details of the movable properties and jewellery
were not mentioned by him. He reiterated that the sons of Late
Sh. Shiv Lal partitioned the properties in the year 1958 by way of
mutual family settlement and House no. 55, Humayunpur, New
Delhi and property no. 261-A and 261-B, Arjun Nagar, New
Delhi came to the share of Late Sh. Ram Chander/defendant
no.1. He deposed that defendant no.2/Chameli Devi was the wife
of the defendant no.1 and both were carrying on the business of
selling building materials from part of the land at 261-B, Arjun
Nagar, New Delhi. He further deposed that the defendant no.1
developed illicit relations with the defendant no.3, despite his
marriage with the defendant no.2 being in subsistence.
74. In para no.5 of Ex. PW-1/A, the plaintiff deposed that the
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defendant no.1 filed a suit for injunction against the DDA bearing
Suit no.458 of 1978, pertaining to property No.261-B, Arjun
Nagar, New Delhi which was decreed in favour of the Late Sh.
Ram Chander and against the DDA. In the said suit, the
defendant no.1 was examined as a witness/PW-1 on 07.04.1980,
who deposed that he had been living in the said house since his
childhood. A certified copy of the statement of the defendant no.1
was relied upon as Ex. PW-1/1. The copy of the judgment dated
11.08.1986 passed in the said suit was relied upon as Ex. PW-1/2,
in which it was observed that the said land was owned by the
ancestors of the defendant no.1. He deposed that property
no.261-A, Arjun Nagar, New Delhi was also ancestral property,
which was utilized for keeping cows. The plaintiff further
deposed that the aforementioned plot was always in the joint
possession of the plaintiff and the defendant no.1, being its co-
owners, and hence the plaintiff never became its owner by way of
adverse possession.
75. The plaintiff further deposed that he filed a suit for
injunction bearing no. 13/1990 against the defendant no.3 and
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others in which a local commissioner Ms. Neena Bansal was
appointed who submitted her report dated 10.02.1990, which was
relied upon as Ex. PW-1/3, which bore the signatures of the
plaintiff, defendant no.1 and other persons including the
advocates of the parties.
76. The plaintiff reiterated that in the year 1975-1976 during
the period of emergency, the construction on plot No. 261-A,
Arjun Nagar, New Delhi was demolished and the said plot was
taken over by the DDA. The said plot was also stated to be an
ancestral property. Further, vide Order No. F-13
(15)/77/CRC/DIA dated 13.10.1977 and Order No. 7(a)/77/HB
(M) – I dated 29.11.1977, the DDA allotted an MIG Flat bearing
No. B-7/68-I, SDA, New Delhi in the name of the defendant
no.1. He further deposed that the defendant no.1 sold the
jewellery of the defendant no.2 to make a payment of Rs.
10,000/- approximately to the DDA for acquiring the said flat
from DDA. Further the entire cost of land and installment was
paid out of the sale proceeds of the jewellery of the defendant
no.2 and from income of the joint hindu family business.
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77. He further deposed that the defendant no.1 got the above
said flat illegally transferred in the name of the defendant no.3 by
playing fraud upon the DDA by showing her as his wife, when
his marriage to the defendant no.2 was still subsisting and further
the defendant no.3 was still married to Sh. Nanak Chand.
78. He also reiterated that the defendant no.3 filed a petition
for guardianship of her minor son Sh. Vinod Kumar in the Court
of the District Judge, Delhi and relied upon entry no.31 dated
18.03.1968 as Ex. PW-1/4. He further deposed that the
defendants no. 1(f) – (h) had no right or title in the suit
properties.
79. The plaintiff/PW-1 was cross-examined by the ld. Counsel
for the defendant no.1(f) – (h) and the defendant no.3 on
13.07.2006, during which he stated that he was aged about 63
years old and had served in the MCD from 1966 to 1993. He
stated that the defendant no.1 used to subscribe to a Hindi
language newspaper, however he did not know whether he was
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educated or not. He denied the suggestion that the defendant no.1
was totally illiterate and could not write, except for appending his
signatures. He stated that his grandfather Sh. Shiv Lal expired in
1956 and the properties were divided in the year 1958. He denied
the suggestion that the defendant no.1 only got property no. 55,
Humayunpur, New Delhi in the said partition and volunteered to
state that the defendant no.1 also got property no. 261A and 261B
Arjun Nagar, New Delhi as well. He also denied the suggestion
that properties no. no. 261A and 261B Arjun Nagar, New Delhi
belonged to the DDA and that property no. 261B still belonged to
the DDA. He deposed that he did not know whether DDA was
recovering damages in respect of property no. 261B, Arjun
Nagar, New Delhi. He stated that he did not know whether the
property no. 261B, Arjun Nagar, New Delhi had been mutated in
the name of defendant no.3. He deposed that it was a matter of
record that the defendant no.3 paid damages to DDA as per Mark
A (collectively consisting of 30 pages). He deposed that the said
land had already been held as belonging to his father/defendant
no.1 by the Court of Sh. P.D. Jarwal, the then Sub-Judge in the
case filed by his father/defendant no.1. He denied the suggestion
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that the suit was decided simply on the possession of the
defendant no.1 and no issue of ownership was decided. He
admitted that the said suit was one for permanent injunction. He
also admitted that he had also filed a suit for permanent
injunction against his father/defendant no.1 and the defendant
no.3, which was dismissed on 17.02.1990. He deposed that he
did not remember whether he had filed an appeal against the said
decision or not before the Court of the Sr. Sub-Judge. He
volunteered to state that the case filed by him was dismissed on
the ground that a suit for injunction was not maintainable and he
was required to file a suit for partition. He also admitted that the
partition suit was filed prior to the dismissal of his suit for
permanent injunction. He deposed that the defendant no.1
suffered a paralytic attack after the imposition of emergency, in
the year 1978. He also admitted that the flat no. B-7,68-I, SDA,
New Delhi was allotted in the year 1977, however volunteered to
state that it was not allotted in the name of the defendant no.3. He
deposed that the property no. 261A, Arjun Nagar, New Delhi,
which was in the name of his father, was demolished along with
number of other properties during emergency. After the
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emergency, the residents met the Vice Chairman, DDA and he
allotted number of plots and flats to those persons, whose
properties were demolished. He stated that his father/defendant
no.1 was allotted one flat in Kalkaji on the second floor, however
as he was paralytic, he made a representation to the DDA for
allotment of a flat near to his residence, as well as a bigger house.
Accordingly the said flat at SDA, New Delhi was allotted to him
in the year 1977/1978, however the defendant no.3 played a
fraud and got the allotment done in her own name. He stated that
he could not comment on the documents Mark B and Mark C as
the same had been procured through fraud. He denied the
suggestion that the allegations regarding fraud were incorrect. He
deposed that he did not know whether all the installment of
damages in respect of the SDA property were paid by the
defendant no.3 and volunteered to state that they were paid for by
the defendant no.1. He also denied the suggestion that the
defendant no.3 was doing business of building materials in the
property no. 261A and 261B, Arjun Nagar, New Delhi. He also
denied the suggestion that the SDA flat in question was allotted
to the defendant no.3 on the basis of her possession of the
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property no. 261A Arjun Nagar, New Delhi. He deposed that he
did not know that the mutation of property no. 261B, Arjun
Nagar, New Delhi was in the name of the defendant no.3. He
denied the suggestion that his father/defendant no.1 wrongfully
possessed the property no. 261B, Arjun Nagar, New Delhi and he
continued to be in its possession till his death along with the
defendant no.3. He further deposed that he did not know whether
his father had executed a registered will dated 04.06.1990 in
favour of the defendant no.3. He denied the suggestion that his
mother/defendant no.2 had left the defendant no.1 and married
one Ram Path, s/o Himmat Ram, r/o Lado Sarai in the year 1962-
63.
80. He denied the suggestion that the defendant no.1 had no
concern with the defendant no.2 after she deserted him. He
denied the suggestion that he did not look after his father in 1978,
after his paralytic attack till 1989. He denied the suggestion that
he used to beat his father and got him arrested. He stated that he
did not own any bus and denied the suggestion that while being
employed with the MCD he purchased two busses in the name of
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his mother. He also denied the suggestion that he also owned a
petrol pump located at Daru Heda and one MIG Flat at Dilshad
Garden. He admitted the property no. 231 A, Humayunpur, New
Delhi was in the name of his mother/defendant no.2. He deposed
that he did not know whether this property was the self acquired
property of the defendant no.1 and he gave the same to the
defendant no.3 to construct on. He also denied the suggestion
that the defendant no.1 married the defendant no.3 in the year
1965 out which marriage three children were born. He deposed
that since no marriage took place between the defendant no.1 and
3, no complaint to any authority was filed. He also denied the
suggestion that the defendant no.3 was not married to Nanak
Chand. He also denied the suggestion that no jewellery was sold
to make any payment to DDA. He denied the suggestion that the
first demand/installment was of Rs. 1100/- only and volunteered
to state that his father collected Rs. 10,000/- and paid the same to
the DDA. He denied the suggestion that the defendant no.3 paid
all the demands/installments raised by the DDA. He stated that
he was not in possession of any proof that jewellery of the
defendant no.2 was sold to collect the amount of Rs. 10,000/-. He
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also denied the suggestion that he had illegally retained the
property no. 231A, Humayunpur, New Delhi and volunteered to
state that it was in the name of his mother. He denied the
suggestion that no HUF was in existence at the relevant time. He
admitted that he filed the present suit for partition, while his
father/defendant no.1 was still alive and denied the suggestion
that he had no right to file the same. He also denied the
suggestion that he had filed a false suit only when the defendant
no.1 asked him to return flat no. 231A, Arjun Nagar, New Delhi.
He denied the suggestion that property no. 261B, Arjun Nagar,
New Delhi was always in the possession of the defendants no.1
and 3. He also denied the suggestion that the defendant no.1 was
in adverse possession of property no. 261B, Arjun Nagar, New
Delhi. Thereafter, the plaintiff/PW-1 was discharged.
81. The plaintiff next examined PW-2, Sh. S. N. Vats,
Assistant Director, LAB(H), INA, Vikas Sadan, DDA, New
Delhi as a summoned witness on 05.04.2011, who deposed that
he had brought the summoned record, i.e. the disposal register
with respect to the property in question. He stated that at Sl No.5,
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
on page no. 145 of the said register, the name of Smt. Mallo
Devi, wife of Sh. Ram Charan had been mentioned. The copy of
the said document was taken on record Ex. PW-2/1 (OSR). He
stated that he did not bring the summoned file no. 7(9) 77/HB
(M) as the same was not traceable.
Evidence adduced by the Defendants
Evidence led by the defendant no.3
82. It is pertinent to mention that the defendant no.3 was first
examined as DW-1 and she tendered her evidence by way of
affidavit, Ex. DW-1/A on 07.05.2015. However, none of the
documents relied upon in the said affidavit were tendered in
evidence, as the defendant took no steps to summon the said
documents.
83. The defendant no.3 stated in Ex. DW-1/A that she was
married to the defendant no.1 in 1965, out of which wedlock two
sons and one daughter were born. She stated that she lived with
and took care of the defendant no.1 till his death, along with her
three children. She stated that the plaintiff had filed the present
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suit for partition of the properties bearing No. 261-B, Arjun
Nagar, New Delhi and B-7/68-I, SDA, New Delhi. She stated
that the property bearing no. 261-B, Arjun Nagar, New Delhi was
the self-acquired property of the defendant no.1 by way of
adverse possession and the SDA property was her own self
acquired property, which she had purchased from the SDA and
paid all the installments. She deposed that the plaintiff was the
son of the defendant no.1 from his first wife/defendant no.2, who
had deserted him in 1963 and married another man. After some
time, the defendant no.2 also deserted her second husband and
asked for ‘protection’ from the defendant no.1, who gave
‘protection’ to the defendant no.2 and her children on
humanitarian grounds. She deposed that the plaintiff had no
relations with his father and always abused him and also got him
arrested when he was suffering from paralysis and harassed him
for money during his lifetime and also violently attacked him.
She deposed that her husband, defendant no.1 had made a will
dated 08.06.1990 and made arrangement for the devolution of his
property. As per the said will, House no. 55, Humayunpur, New
Delhi is to be equally divided amongst Smt. Chameli Devi, Roop
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Chand, Rupo, Parmeshwari, Raj, Kamla and Sunita and the plot
no.261-B, Arjun Nagar New Delhi would go to the defendant
no.3. She further stated that as per the said will, she was the
absolute owner of House No. 231A, Humayunpur, New Delhi.
Which was under the illegal occupation of the plaintiff.
84. On 07.05.2015, none appeared on behalf of the plaintiff to
cross-examine the defendant no.3. Accordingly, the right of the
plaintiff to cross-examine her was closed and she was discharged
un-examined. Further the right of all the defendants to lead
further evidence was also closed and the matter was listed for
final arguments.
85. This led to the defendant no.3 impugning the order dated
07.05.2015 before the Hon’ble High Court of Delhi in CM(M)
No.748/2015. Vide order dated 02.09.2015, the defendant no.3
was granted an opportunity to lead further evidence.
86. On 27.04.2019, the defendant no.3 again tendered her
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
evidence by way of affidavit as Ex. D3/W3/A. She relied on the
following documents in support of her case:
(a) Receipt issued by DDA dated 21.11.2003 as Ex.
D3/W3/1 (OSR).
(b) Receipt issued by DDA dated 23.09.2003 as Mark A.
(c) Receipt issued by DDA dated 09.01.2004 as Ex.
D3/W3/2 (OSR).
(d) Receipt issued by DDA dated 07.07.2003 as Ex.
D3/W3/3 (OSR).
(e) Receipt issued by DDA dated 09.07.2004 as Ex.
D3/W3/4(OSR).
(f) Receipt issued by DDA dated 30.11.2004 as Ex.
D3/W3/5 (OSR).
(g) Receipt issued by DDA dated 17.09.2004 as Ex.
DW/W3/6 (OSR).
(h) Receipt issued by DDA dated 18.05.2004 as Ex.
DW/W3/7 (OSR).
(i) Receipt issued by DDA dated 18.10.2005 as Ex.
DW/W3/8 (OSR).
CS DJ No. 610058/16 Page No.50/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
(j) Receipt issued by DDA dated 09.08.2005 as Ex.
DW/W3/9 (OSR).
(k) Receipt issued by DDA dated 17.05.2005 as Ex.
DW/W3/10 (OSR).
(l) Receipt issued by DDA dated 13.05.2005 as Ex.
DW/W3/11 (OSR).
(m) Letter of 29.11.1977 as Ex. DW/W3/12 (OSR).
(n) Letter of 09.01.1978 as Ex. DW/W3/13 (OSR).
(o) Allotment letter dated 03.10.1977 as Ex. DW/W3/13A
(OSR).
(p) Possession letter dated 15.01.1978 as Ex. DW/W3/14
(OSR).
(q) Original will of Sh. Ram Chander dated 08.06.1990 as
Ex. DW/W3/15.
(r) Property tax receipt dated 17.06.1994 issued by MCD
as Ex. DW/W3/16.
(s) Bill dated 20.07.1994 issued by MCD as Ex.
DW/W3/17.
(t) Notice dated 28.03.1995 as Ex. DW/W3/18.
CS DJ No. 610058/16 Page No.51/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
(u) Receipt dated 29.11.19777 as Mark B.
(v) Receipt dated 10.11.1993 and 10.01.1998 as Ex.
DW/W3/19 (OSR) and Ex. DW/W3/20 (OSR).
87. The defendant No. 3 was cross-examined by the learned
counsel for the Plaintiff on 24.05.2019, during which she
deposed that he was an illiterate lady and could not read the
English-language. The defendant No. 3 was shown her evidence
by way of affidavit however he could not identify the same or its
contents. She deposed that she was born in the year 1950,
however could not tell the exact date and time and at present she
was 70 years old. She stated that she did not know Nanak Chand
alias Nanva son of Jas Ram and was not married to him. She
admitted that there was litigation between herself and Nanak
Chand alias Nanva at Tis Hazari court. She denied the suggestion
that the said case was with respect to guardianship of her son and
was titled as ‘Mallo Devi vs Nanva’ under sections 7, 10, 15 of
the Guardianship Act, which was dismissed as satisfied on
01.04.1968. She stated that she was never married to Nanak
Chand @ Nanva and was married to the defendant no.1 Ram
Chander. She deposed that in the year 1967 – 1968 she was
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
residing at 261-B, Arjun Nagar, Delhi. She denied the suggestion
that at that time she was residing at 118-A, Arjun Nagar, Delhi.
She denied the suggestion that she lived for some time at village
Punanagli, PS Alipur, Delhi after her marriage with Nanak
Chand. She deposed that her marriage with the defendant no.1
was solemnized at Green Park at the house of her brother Dharm
Singh in the year 1965. She deposed that she could not tell the
date and month of her marriage, and denied the suggestion that
no such marriage with the defendant no. 1. She deposed that she
had worked as a beldar in the shop of the defendant no.1 and
volunteered to state that she had worked as beldar in the shop
after marriage and again said that the said shop was run by her.
She stated that her elder son was born in the year 1966 at home.
The further cross-examination of the defendant no.3 was then
deferred on account of paucity of time.
88. The defendant no.3 was then re-called for her further
cross-examination on 05.07.2017, during which she stated that
she did not remember what was her age at the time of her
marriage with the defendant no.1. She stated that before her
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
marriage, she was residing at Deer Park, Green Park, New Delhi.
In contradiction to her earlier statement, she stated that her
marriage was solemnized in the year 1964. She stated that she
did not know the age of the defendant no.1 at the time of her
marriage. She admitted that at the time of her marriage with the
defendant no.1, he had his family, but did not know the name of
the family members, and again stated that he had four brothers
and three were younger to him. She stated that the father of the
defendant no.1 was also resident of Humayunpur, but had passed
away long back. She deposed that the property at Humayunpur
was partitioned between all the four brothers, who were
occupying their respective shares. She deposed that the defendant
no.1 was a pahalwan (wrestler) and did no other work. She
denied the suggestion that the defendant no.2 used to sell stone
and sand (rodi and badarpur) and volunteered to state that she
used to sell the same. She denied the suggestion that the
defendant no.1 was having ancestral property bearing no. 261A
and 261B, Arjun Nagar, Delhi. She deposed that the defendant
no.2/Chameli Devi was the wife of Ram Chander, however she
came to know about the same later on. She volunteered to state
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
that the defendant no.2/Chameli Devi had again married with one
Pyare Lal, after divorcing the defendant no.1, and a daughter
Sunita was also born out of her wedlock with him. She admitted
that she did not have any document regarding the aforesaid
divorce of the defendant no.2/Chameli Devi and the defendant
no.1/Ram Chander and volunteered to state that she came to
know about the same from the defendant no.1 after her marriage
to him. She also admitted that she had not filed any document
regarding the alleged divorce or paternity of Sunita. She denied
the suggestion that the defendant no.2 had remained married to
the defendant no.1 through her lifetime and had never deserted
him. She also denied the suggestion that she was lying with
respect to the marriage of Chameli Devi with Pyare Lal. She
deposed that her marriage with the defendant no.1 took place in
the presence of her brother, ‘brother of Ram Chander’ and other
family members of the defendant no.1/Ram Chander. She then
deposed that she had correctly mentioned the year of her
marriage with the defendant no.1/Ram Chander as 1965 in the
evidence by way of affidavit and had incorrectly mentioned the
same as 1964 in confusion during her cross-examination. She
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
stated that she had three children namely Mr. Vinod Kumar, Mr.
Mohan Kumar and Ms. Omwati. The date of birth of Mr. Vinod
Kumar was stated to be 27.03.1966, that of Omwati as
05.02.1970 and Mr. Mohan Kumar as 1979. The defendant no.3
stated that she did not know any property dealer by the name of
R. K. Arora and also did not member whether any complaint was
registered in PS Sarojini Nagar with respect to forgery, cheating
etc. in respect of selling a plot in Krishna Nagar, Delhi. She
stated that she did not remember whether she was released on
bail from the Court of Ms. Anu Malhotra, Ld. MM, Delhi. The
said question was objected to by the counsel for the defendant
no.3 on the ground of relevancy, which was to be decided at the
final stage. The defendant no.3 was the read over a newspaper
cutting of Navbharat Times newspaper dated 08.01.1993, Hindi
edition (Ex. DW3/PX) wherein the news regarding her
involvement in a case of cheating in respect of a plot in Krishna
Nagar was mentioned. She was then asked if she was involved in
the said case and was released on bail, which fact she was hiding,
to which she only replied that the plot ‘pertained’ to her.
Thereafter, the further cross-examination was deferred.
CS DJ No. 610058/16 Page No.56/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
89. The defendant no.3 was recalled for her further cross-
examination on 21.09.2019, in which she deposed that she was
never married to Nanak Chand @ Nanua or resided with him at
the house of one Bhule and Gokal. She denied ever having
residing at 306-307, Humayunpur, Delhi or at any other place in
Humayunpur. She admitted that she had not filed any document
to prove that she was running the business of rodi and badarpur.
She denied the suggestion that land i.e. 261A and 261B, Arjun
Nagar, Delhi, which was demolished by DDA was the ancestral
property of defendant no.1/ Ram Chander. She deposed that the
land bearing no. 261B, Arjun Nagar, Delhi was won by him in
wrestling and had not been purchased by the defendant no.1. She
stated that she could not remember who had told her about the
said fact of winning the land in wrestling. She stated that she had
applied for the DDA Flat in the year 1976 and whether her
counsel had filed the application form or receipt thereof in
relation to the SDA property. When asked to identify the
application form/receipt from the Court file, she expressed her
inability to do so, claiming to be illiterate. She denied the
suggestion that she had never applied to DDA for allotment of
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
the SDA flat and denied the suggestion that the receipts and other
documents with respect to the flat had been procured fraudulently
and malafidely to grab the SDA flat on the basis of forged, false
and concocted documents. She denied the suggestion that DDA
had given the aforesaid flat in lieu of the property no. 261A and
B Arjun Nagar, which was demolished by the DDA in the year
1975-1976, during emergency. She deposed that she was paying
the house tax of property no. 261B, Arjun Nagar, Delhi since the
execution of the will in her favour. She stated that she did not
know who was paying the house tax of the property no. 261A,
Arjun Nagar, Delhi as there was no such property in existence
since the same had already been demolished by the DDA. She
denied the suggestion that no such will had been executed in her
favour in respect to property no. 261B, Arjun Nagar, Delhi. She
denied the suggestion that in collusion with MCD officials, she
had managed to mutate the property in her name. She denied the
suggestion that on 29.11.1977, the SDA flat was given/allotted in
lieu of the house demolished by the DDA under clearance
program on 26.09.1975. She deposed that the defendant no.1
suffered a paralytic attack in the year 1975 – 1976 and she took
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
care of him till his death. She denied the suggestion that the
plaintiff had got the defendant no.1 admitted to Hindu Rao
Hospital and looked after him till his death. The further cross-
examination of the defendant no.3 was deferred on account of
paucity of time.
90. She was recalled for her further cross-examination on
20.01.2020 she denied the suggestion that the will dated
08.06.1990 of the defendant no.1 was prepared fraudulently as he
was not mentally fit at the relevant time. She denied the
suggestion that she had prepared the alleged receipts of payment,
allotment letter, possession letter (Ex. D3W31 to Ex. D3W310)
of the SDA flat in collusion with the officials of the DDA and
MCD to grab the properties. She also denied the suggestion that
she was neither an allottee nor an owner of the aforesaid SDA
flat, as the same had been allotted in lieu of compensation qua
the demolition of the property No. 261-B, Arjun Nagar, Delhi
which was demolished by the government on 26.09.1975.She
also denied the suggestion that property no. 261B, Arjun Nagar,
New Delhi was ancestral property and the defendant no.1 had no
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
right to execute a will in its regards. She deposed that she never
resided at the address no. 118A, Arjun Nagar, Delhi and did not
know the owner of the property. She denied the suggestion that
she had been residing at the said property with her husband
Nanak Chand @ Nanva. She denied the suggestion that property
no. 231A, Humayunpur, New Delhi was owned and possessed by
the defendant no.2 and the defendant no.1 had no right in the
same.
91. The defendant no.3 further stated that Narayan Devi,
Parmeshwari Devi, Raj Devi and Kamla were the daughters of
the defendant no.1, except Sunita. She deposed that Vinod was
her son. She denied the suggestion that on 15.03.1968, she had
filed a guardianship petition against her husband Nanak Chand
@ Nanva before the District Judge, Delhi and volunteered to
state that she did not know anyone by the name of Nanva and
denied the suggestion that she was denying the fact of having
filed the guardianship petition. She also denied the suggestion
that after the compromise, she obtained the custody of her son
Vinod from Nanak Chand before the Court and the petition was
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
dismissed as withdrawn. She also denied the suggestion that after
1968, she again started living with her husband Nanak Chand
Nanva, from which union her son Mohan Kumar and daughter
Omvati were born. She volunteered to state that all her three
children were born from the defendant no.1. She also denied the
suggestion that due to her illicit relation with the defendant no.1,
her husband Nank Chand @ Nanva kicked her out of the
matrimonial home. Thereafter, the further cross-examination of
the defendant no.3 was deferred for cross-examination by the
counsel for the defendants no. 1(a) – (e).
92. On 10.09.2021, the defendant no.3 was cross-examined by
the ld. counsel for the defendants no. 1(a) – (e), during which she
stated that Shiv Lal’s father’s name was Mansukh. Further that
Shiv Lal was having only one property bearing no. 55
Humayunpur, Delhi which was divided by all the legal heirs by
occupying one room each. She denied the suggestion that Shiv
Lal was also owner of property bearing no. 53, 53A, 54
Humayunpur, Delhi and 13G, 13GA Humayunpur, Delhi and
261A and 261B Arjun Nagar, Delhi. She deposed that Shiv Lal
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
had four sons and one daughter namely Ram Chander, Hari
Chand, Daulat Ram, Chunni Lal and daughter Kalawati. She
denied the suggestion that only the plaintiff and the defendant
no.1(a) – (e) had the right to partition and get the share of the
property no. B-7/ 68-I, SDA, Delhi and 261B, Arjun Nagar, New
Delhi and volunteered to state that she had purchased the
property at SDA. Thereafter the cross-examination of the
defendant no.3 was concluded and the evidence on her behalf
was also closed vide statement of the ld. Counsel recorded on
10.09.2021
93. The defendant no.3 then examined Sh. Jagbir Singh,
Record Keeper, South Zone, Property Tax Department, SDMC,
R.K. Puram, New Delhi, as a summoned witness D3W1 on
08.12.2016. He deposed that he had brought the summoned
record, i.e. record of property bearing No. 261-B, Arjun Nagar,
New Delhi as per page no. 29 of which, the recorded owner of
the property was Sh. Ram Chander/defendant no.1. He further
deposed that he had placed on record page no.30, whereby the
said property was mutated in the name of Smt. Mallo Devi vide
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
letter No. Tax/SZ/94/9018 dated 29.12.1994. He placed on record
photocopies of the said pages as Ex. D3W1/1 and Ex. D3W1/2.
Thereafter, he was cross-examined by the ld. counsel for the
plaintiff, during which he deposed that there was nothing on
record to show as to who was the owner of the property no. 261-
B, Arjun Nagar, New Delhi prior to the defendant no.1. He
deposed that the defendant no.1 was the owner of the properties
bearing No. 261-A and 261-B Arjun Nagar, New Delhi. He stated
that the name of the defendant no.1 came into their records for
the first time in 1966. He stated that he could not state in whose
name the said property stood prior to the defendant no.1. Further,
as per the record, no notice was sent to any other person at the
time of the mutation in the name of Smt. Mallo Devi after the
death of the defendant no.1. He admitted that mutation of a
property is done subject to any objections. He deposed that as per
the records, there was no order received from the Hon’ble High
Court of Delhi regarding status quo, prior to the mutation in the
name of Smt. Mallo Devi. He denied the suggestion that the said
order was received and was deliberately not placed on the record.
He denied the suggestion that he had not brought the previous
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
record pertaining to this property. The witness was then directed
to produce the previous record pertaining to the property on the
next date of hearing and his further cross-examination was
deferred.
94. The witness Sh. Jagbir Singh, D3W1 was recalled for his
further cross-examination on 11.08.2017 during which he
deposed that he had brought the summoned record pertaining to
the property no. 261B, Arjun Nagar, New Delhi. The Form A
dated 24.01.1971 regarding the property tax in respect of the
property in the name of the defendant no.1 was produced as Ex.
DW3/W1/3 (OSR). He stated that the details of the
accommodation/construction had been mentioned on the back
side at point A. He deposed that he had also brought the Tax
Upgrade Notice dated 24.01.1971 regarding the property tax as
Ex. DW3/W1/4 (OSR) and application dated 18.03.1971
regarding the assessment of the property in the name of the
defendant no.1 as Ex. DW3/W1/5 (OSR). The Form-A dated
01.11.1966 regarding the property tax in respect of the said
property in the name of the defendant no.1 was produced as Ex.
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
DW3/W1/6 (OSR). He deposed that on the back side of the form
the details of the accommodation/construction had been
mentioned at point B. The Tax Upgrade Notice dated 24.03.1967
regarding the property in the name of the defendant no.1 was
produced as Ex. DW3/W1/7 (OSR). The Notice u/s 124 (v) DMC
Act, 1957 dated 18.02.1978 in respect of the property was
produced as Ex. DW3/W1/8 (OSR). The ex-parte decision dated
24.01.1971 in respect of the said property was produced as Ex.
DW3/W1/9 (OSR). The notice of increase/decrease of property
tax dated 26.04.1978 was produced as Ex. DW3/W1/10 (OSR).
The copy of the order dated 27.07.1991 passed by the Hon’ble
High Court of Delhi in suit no. 2452/1991 was produced as Ex.
DW3/W1/11 (OSR). The application dated 26.03.1996 moved by
the plaintiff/Roop Chand along-with the copy of the plaint and
order dated 27.07.1991, received by the MCD vide diary no.
10603 dated 27.03.1996 for cancellation of the mutation in the
name of the defendant no.3 in respect of property no. 261-B,
Arjun Nagar, New Delhi was produced as Ex. DW3/W1/12
(OSR). The witness again reiterated that he did not have the old
record which could show in whose name the property was
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
recorded prior to the defendant no.1. He further stated that with
respect to the application dated 26.03.1996 filed by the plaintiff,
a notice had been issued by the then AA & C, South Zone, Green
Park, New Delhi to Smt. Mallo Devi to produce the documents,
however he could not state as to what order had been passed, as
no such order was available in the file. He further deposed that he
could not say how the mutation of the property bearing No.
261/B, Arjun Nagar, New Delhi had been done in the name of
Smt. Mallo Devi. He denied the suggestion that some officials of
the MCD had colluded with the defendant no.3 for the said
mutation and further no action had been taken on the complaint
dated 26.03.1996 on the basis of the said collusion. He denied the
suggestion that he had intentionally not brought the old record
the property.
95. The defendant no.3 next examined Sh. Naveen Gandas,
Record keeper, Department of Delhi Archives, New Delhi as
summoned witness D3W2 on 08.12.2016. He deposed that he
had brought the summoned record, i.e. Will of the defendant
no.1, which was registered with the SR-111, Asaf Ali Road, New
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
Delhi as Ex. DW3/W2/1. During his cross-examination by the ld.
Counsel for the plaintiff, he deposed that he had not brought the
Index Register pertaining to 08.06.1990 and if available would
produce the same. He stated that he did not have any personal
knowledge regarding the registration of the will. He deposed that
he could not say whether the record pertaining to Ex. DW3/W2/1
had been tampered with and the will had been registered ante-
dated, as the record had been received by him only in the year
2016. He deposed that he could not say anything about the
cuttings shown on pages no.1 and 2 at points A and B, as he was
only the custodian of the record. Thereafter the further cross-
examination of the witness was deferred for production of the
index register.
96. On 20.01.2017, the witness D3W2 was re-called and he
deposed that the index register with respect to the will dated
08.06.1990 of the defendant no.1 was not available. He was then
discharged.
97. The defendant no.3 examined D3W3 Sh. Braham Prakash,
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
Assistant, LAB (Housing) DDA, New Delhi as a summoned
witness on 08.12.2016, who produced the summoned record of
Flat No. B-7/68-I, SDA, New Delhi. He deposed that the original
file was not traceable and he had brought the legal file
maintained by the Department. He stated that as per the said file
at page no.145, which was a photocopy of the draw of lots held
on 06.10.1977 on “cash down”, the name of Smt. Mallo Devi,
wife of Sh. Ram Chander was shown at Sl. No. 5. The photocopy
of the same was taken on record as Ex. D3W3-1 (OSR). At page
no.42, the document pertaining to the amount recovered towards
each flat was shown, wherein the name of Mallo Devi appeared
against the said flat and the amount recovered from her was
Rs.1,110.95/- on 10.12.1977, which was taken on record as Ex.
D3W3-2 (OSR). Ld. Counsel for the plaintiff raised an objection
that the records produced by the witness were photocopies
themselves and there was also extra writing on Ex. D3W3-1.
The further examination in chief of the witness was deferred to
produce the original records and file, if available.
98. The witness, D3W3 Sh. Braham Prakash, was then re-
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
called for his further examination in chief on 20.01.2017, during
which he produced the electricity bill generated by BSES for the
month of December, 2008 for the SDA flat in the name of Mallo
Devi as Ex. D3W3-3 (OSR). The installment record of the
payment by Mallo Devi towards the purchase of the SDA flat
was taken on record as Ex. D3W3-4 (Colly) (OSR). The office
note of the dealing assistant dated 31.03.2009, which recorded
that the SDA flat was allotted to Smt. Mallo Devi and the same
had been converted into free-hold about 10 years back was taken
on record as Ex. D3W3-5 (Colly) (OSR).
99. During his cross-examination by the ld. Counsel for the
plaintiff he deposed that the original file of the property in
question had been misplaced.
Arguments of the parties
100. Ld. Counsel for the plaintiff Sh. Bhupesh Saini has argued
that the plaintiff (since deceased) has duly proved his case for
partition, whereas the pleadings and evidence of the contesting
defendants was contradictory.
CS DJ No. 610058/16 Page No.69/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
101. He has argued that property no 55, Humayunpur, New
Delhi is admitted by the defendant no.1 to be ancestral property
in his written statement and hence, no evidence with respect to
the same was required to be led by the parties.
102. As regards the property no. 261-B, Arjun Nagar, Delhi he
has argued that the defendant no.1, 1(f)-(h) and the defendant
no.3 have contended the property to be the self-acquired property
of the defendant no.1 by way of adverse possession, however,
during the cross-examination of the plaintiff by the ld. Counsel
for the defendants no.3 and defendants no. 1(f) – (h) a suggestion
was put to the witness that the property no. 261-B, Arjun Nagar,
Delhi belonged to DDA. He also relied on the statement of the
defendant no.1 in the civil suit no. 458/1978 titled as ‘Ram
Chander vs DDA‘ decided by the Court of Sh. P. D. Jarwal, Sub-
Judge, Delhi to argue that it was admitted by the defendant no.1
that the property was an ancestral property. Further, the
defendant no.3 in her cross-examination has stated a completely
contrary fact that the property no. 261-B, Arjun Nagar, Delhi was
won by the defendant no.1 in wrestling. Whereas in the cross-
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
examination of the plaintiff, the counsel for the defendants no.3,
defendants no/ 1(f) – (h) have put to the plaintiff that the property
no. 261-A and 261-B, Arjun Nagar were DDA land and the
property no. 261-B still belonged to the DDA.
103. With respect to property no. B-7/68-I, SDA, New Delhi, he
has argued that although the defendants no.1 and 3 denied that
the property was allotted by the DDA in lieu of demolition of the
property of 261-A, Arjun Nagar; the DDA on a number of
occasions clarified its stance that the SDA property was allotted
to the defendant no.3 as evictee of Arjun Nagar. Further, Sh.
Jagbir Singh, Record Keeper, SDMC has deposed in his cross-
examination dated 11.08.2017 that he had brought the application
dated 26.03.1996 moved by the plaintiff for cancellation of the
mutation in the name of the defendant no.3, in which notice was
issued, however he could not say what order had been passed as
the same was not on the file. He also stated that he could not say
as to how the mutation of the property no. 261-B, Arjun Nagar,
Delhi had been done in the name of Mallo Devi. He also stated
that the DDA filed an application dated 24.09.2009 wherein it
CS DJ No. 610058/16 Page No.71/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
was specifically stated that as per the records available in the
Housing Department, Smt. Mallo Devi, W/o Ram Chander was
allotted alternative flat no. B-7/68-I, SDA, New Delhi against the
demolished property in Arjun Nagar.
104. Sh. Bhupesh Saini further argued that the plaintiff took the
required steps for calling the witnesses from DDA, however
despite repeated opportunities, the witnesses did not bring the
relevant records. He referred to various orders of the Court in this
regards.
105. Ld. Counsel for the plaintiff further argued that the
defendant no.3 during her cross-examination dated 21.09.2019
stated that she had applied to the DDA for the SDA flat in the
year 1976, however no such application form or receipt was
placed on record by her. Further, during her cross-examination
dated 10.09.2021, the defendant no.3 contradicted her own stand
by denying the suggestion that the property bearing no. 53, 53-A,
54 Humayunpur, Delhi and 13G, 13GA Humayunpur and 261A
and 261B, Arjun Nagar, Delhi belonged to Shiv Lal. She further
CS DJ No. 610058/16 Page No.72/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
stated that Shiv Lal only had one property bearing no. 55,
Humayunpur, Delhi which had been partitioned between the
parties.
106. Ld. Counsel for the plaintiff also submitted that the
defendant no.3 had failed to prove that she was the legally
wedded wife of the defendant no.1. It was the admitted case of
the defendants no.1 and 3 that the defendant no.1 married the
defendant no.2 and no decree of divorce had been passed
dissolving their marriage and in such case, the marriage still
subsisted. Further, no proof of marriage had been led by the
defendants no.1 and 3 of their marriage. The defendant no.3 also
failed to prove that the defendants no. 1(f) – (h) were the children
of the defendant no.1.
107. He therefore submitted that the plaintiff had duly proved
his case and was entitled for partition as sought in the plaint.
108. Sh. Anil Chauhan, ld. Counsel for the defendants no. 1(f) –
(h) and the defendant no.3 has argued that a son cannot file a suit
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
for partition during the lifetime of his father and that the plaintiff
has failed to prove that the suit properties were ancestral in
nature or joint hindu family property. He has argued that only the
property bearing no. 55, Humayunpur, New Delhi was liable to
be partitioned between the plaintiff and the defendant no.1 and
further that the plaintiff also failed to prove that the SDA
property was allotted in lieu of any ancestral property
109. Hence, it was argued, the plaintiff had miserably failed to
prove that he was entitled to partition of any of the properties
sought by him and even otherwise, the properties have not been
properly described in the plaint as per Order .
110. Ld. Counsel for the defendant relied on the following
judgments in support of his case:
111. Mahanth Ram Das vs Ganga Das, AIR 1961 SC 882; M/s
Heavy Light Industrial Corporation vs The State of Maharashtra ,
1999 SCC OnLine Bom 100; Uttam vs Saubagh Singh and Ors,
(2016) 4 SCC 68; A. N. Kaul vs Neerja Kaul, (2018) 3 RCR
CS DJ No. 610058/16 Page No.74/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
(Civil) 501; Pratap vs Shiv Shanker, 2009 (113) DRJ 811; Bharat
Bhushan Maggon vs Joginder Lal and Ors, 2012 IX AD (Delhi)
241; Sushant vs Sunder Shyam Singh, 2014 DLT 418; Amit Johri
vs Deepak Johri, 2013 IV AD (Delhi) 838; Saroj Salkan vs Huma
Singh, MANU/DE/1074/2016; Surender Kumar vs Dhani Ram,
2016 (154) DRJ 616; Chutahru Bhagat vs Hialal Sah and Ors,
AIR (37) Patna 306.
Issue-wise finding and reasons
Issue no.6
112. I shall first decide issue no.6, which is reproduced below
for the sake of convenience:
6. Whether the properties in suit are ancestral Joint Hindu
Family properties and the plaintiff is co-parcenor therein?
If so, its effect?
113. The issue in the present matter was framed vide order
dated 01.12.1999 in which the onus of proof of the issues framed
was not indicated. There is no dispute that it is the plaintiff and
the defendants no.1(a)-(e) who have asserted the said fact and
hence, the onus of proving the issue no.6 also falls on their
shoulders.
CS DJ No. 610058/16 Page No.75/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
114. The plaintiff has stated that his grandfather Late Sh. Shiv
Lal expired in the year 1956. However, the plaintiff has neither
pleaded nor proved his exact date of demise, i.e. whether Sh.
Shiv Lal expired before or after 16.07.1956, which is the date
when the Hindu Succession Act, 1956 came into force.
115. Further, the plaintiff has stated in para no.3 of the plaint
that Sh. Shiv Lal expired ‘leaving behind’ several movable
properties and jewelleries and immovable properties. The
plaintiff has not given any details of the alleged movable
properties and jewelleries in the entire plaint. The plaintiff also
has not sought any partition of the alleged movable properties
and jewelleries. Even in the evidence led by the plaintiff, no
details of any movable property or jewellery has been provided.
Hence, the plaintiff has failed to prove that any such movable
properties, including jewellery were in existence.
116. The plaintiff has averred in para no. 3 of the plaint that
Sh.Shiv Lal “left behind several house/properties and lands in
village Humayunpur, New Delhi and Arjun Nagar, New Delhi
CS DJ No. 610058/16 Page No.76/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
bearing Municipal Nos.53, 53-A, 54 and 55 Humayunpur, New
Delhi and 13G, 13GA, Humayunpur, New Delhi and 261-A and
261-B Arjun Nagar, New Delhi”.
117. Further in para no.4 of the plaint, the plaintiff states that
the sons of Sh. Shiv Lal partitioned the aforementioned
properties by way of mutual family settlement in the year 1958,
as per which House no.55, Humayunpur, New Delhi and 261-A
and 261-B Arjun Nagar, New Delhi “came to the share of Shri
Ram Chander and his family. The plaintiff further states that
“Thus in the above manner properties number 55 Humayunpur
and 261A & B Arjun Nagar came in the hands of defendant no.1
and 2 and the plaintiff as ancestral properties. The plaintiff being
a member of Hindu Undivided Family (of Mitakshara School of
Hindu Law) has become entitled to inherit one-half (½) share in
the entire ancestral Joint Hindu Family properties being the co-
parcener”.
118. In paras no. 12, 13 and 17 of the plaint, the properties have
been described as “undivided Joint Hindu Family properties” and
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Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
“undivided HUF properties”.
119. In the replication filed by the plaintiff to the written
statement of the defendant no.1, in reply to para no.4 of the
written statement, the plaintiff has stated that ” It is asserted that
properties no.261-A &B Arjun Nagar, New Delhi are the
ancestral properties apart from other properties owned and
occupied by late Shiv Lal during his lifetime. The same was
given to late Sh. Shiv Lal by the Jamindars of the Village about
80 years back.” However, at other places in the replication such
as para no.1 the plaintiff has stated “The property no. 261-B
Arjun Nagar, New Delhi is not the self acquired property of deft.
No.1. it is wrong that deft. No.1 became owner of the said
property by way of adverse possession. The said property is an
ancestral property in which the forefathers of the plaintiff had
been in possession”.
120. In the evidence by way of affidavit of the plaintiff/PW-1,
Ex. PW-1/A tendered in evidence on 13.07.2006, it is stated in
para no.1 that the properties in question were ‘left behind’ by
CS DJ No. 610058/16 Page No.78/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
Late Sh. Shiv Lal in the year 1956. The plaintiff did not state
anything with respect to the nature of the properties in the hands
of Sh. Shiv Lal, except to state in para no.5 of Ex. PW-1/A that in
a suit for injunction bearing suit No. 458/1978 filed by Sh. Ram
Chander/defendant no.1 against DDA with respect to property
No.261-B, Arjun Nagar, New Delhi, the defendant no.1 was
examined as a witness on 07.04.1980 in which he deposed that he
had been living in the said property since childhood. The plaintiff
relied on the statement of defendant no.1 dated 07.04.1980
recorded in the suit No. 458/1978 as Ex. PW-1/1 and the
judgment dated 11.08.1986 as Ex. PW-1/2. The plaintiff asserted
that “The said land was owned by the ancestors of the Plaintiff
and so the Defendant no.1 was living since his childhood and
was being cultivated by fore fathers of the Plaintiff”.
121. The plaintiff’s stance with respect to the nature of the suit
properties in the hands of Late Sh. Shiv Lal is shifting, vague and
opaque. At one place, the plaintiff is setting up a case that the suit
properties were ancestral properties in the hands of Late Sh. Shiv
Lal and also ‘joint family properties’ and ‘ancestral joint family
CS DJ No. 610058/16 Page No.79/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
properties’, whereas in the replication to the written statement of
the defendant no.1, the plaintiff states that the suit properties
were given to the Sh. Lal by the landlords of the village about 80
years back.
122. As per Order VI rule 4 CPC, a plaintiff seeking partition of
any property is required to plead his case with clarity and
exactness as to the nature of the suit properties and how the
plaintiff is claiming partition thereof. However, the plaintiff has
taken shifting stands with respect to the same and has proved
none in the suit.
123. I will first examine the claim of the plaintiff for partition
on the ground that the suit properties in question were ancestral
joint family properties in the hands of Late Sh. Shiv Lal and the
plaintiff being a coparcenary at that time, was entitled to a share
therein.
124. At this stage it would be appropriate to discuss the terms of
(i) ‘joint property’, (ii) ‘joint family property’ and (iii) ‘joint
CS DJ No. 610058/16 Page No.80/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
ancestral property’. They may sound similar, however in law
there is a vast difference between all three.
125. The Hon’ble High Court in the decision of Amit Johri vs
Deepak Johri and Ors, 2014 SCC OnLine Del 822, has explained
the difference between ‘joint property’, ‘joint family property’
and ‘joint ancestral property’ and the meaning of ‘coparcenary
property’.
“13. It may be true that property under Hindu Law can be classified
under two heads : – (i) coparcenary property; and (ii) separate
property. Coparcenary property is again divisible into (i) ancestral
property and (ii) joint family property which is not ancestral. This
latter kind of property consists of property acquired with the aid of
ancestral property and property acquired by the individual
coparcener without such aid but treated by them as property of the
whole family.
14. It may also be true that the three notions : (i) joint property, (ii)
joint family property, and (iii) joint ancestral family property are not
the same. In all the three things there is no doubt a common subject,
property, but this is qualified in three different ways. The joint
property of the English law is property held by two or more person
jointly, it characteristic is survivor-ship. Analogies drawn from it to
joint family property are false or likely to be false for various
reasons. The essential qualification of the second class mentioned
above is not joints merely, but a good deal more. Two complete
strangers may be joint tenants according to English law; but in no
conceivable circumstances except by adoption could they constitute
a joint Hindu family, or in that capacity, hold property. In the third
case, property is qualified in a two-fold manner, that it must be a
joint family property and it must also be ancestral. It is obvious that
there must have been a nucleus of joint family property before an
ancestral joint family property can come into existence, because theCS DJ No. 610058/16 Page No.81/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
word ancestral connotes descent and hence preexistence. But
because it is true that there can be no joint ancestral family property
without pre-existing nucleus of joint family property, it is not correct
to say that these cannot be joint family property without a
preexisting nucleus, for, that would be identifying joint family
property with ancestral joint family property. Where there is
ancestral joint family property, every members of the family acquires
in it a right by birth which cannot be defeated by individual
alienation or disposition of any kind except under certain peculiar
circumstances. This is equally true of joint family property. Where a
sufficient nucleus in the possession of the members joint family has
come to them from a paternal ancestor, the presumption is that the
whole property is ancestral and any members alleging that it is not,
will have to prove his self-acquisition. Where property is admitted or
proved to have been joint family property, it is subject to exactly the
same legal incidents as the ancestral joint family property, but
differed radically in original and essential characteristics from the
joint family is the tie of sapindaship without which it is impossible
to have a joint Hindu family, which such a relationship is
unnecessary in the case of a joint tenancy in English laws.
15. It may further be true that coparcenary property means and
includes : (1) ancestral property, (2) acquisitions made by the
coparceners with the help of ancestral property, (3) joint acquisition
of the coparceners even without such help provided there was no
proof of intention on their part that the property should not be treated
as joint family property, and (4) separate property of the coparceners
thrown into the common stock.
16. But, there has to be a properly constituted pleading before
principles of law can be attracted. It is trite that depending upon a
fact stated a principle of law would be attracted. Issues of law and
fact have to be settled with reference to the pleadings of the parties.
17. In the decision reported as AIR 1998 SC 628 Heeralal v. Kalyan
Mal it was held that with respect to the character and ownership of a
property an admission made in the pleading conferred a valuable
right on the opposite party and that said admission could not be
permitted to be withdrawn. The logical extension of the same
principle would be that a case pleaded by the party would require to
be established as pleaded and not with respect to something else.”
CS DJ No. 610058/16 Page No.82/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
126. In the recent decision of Angadi Chandranna vs Shankar
and Ors, 2025 SCC Online SC 877, the Hon’ble Apex Court has
clarified the concepts of ‘joint family’, ‘ancestral property’ and
coparcenary property’. It has been held as follows:
13. Further, it is a settled principle of law that there is no presumption of a
property being joint family property only on account of existence of a joint
Hindu family. The one who asserts has to prove that the property is a joint
family property. If, however, the person so asserting proves that there was
nucleus with which the joint family property could be acquired, then there
would be presumption of the property being joint and the onus would shift
on the person who claims it to be self-acquired property to prove that he
purchased the property with his own funds and not out of joint family
nucleus that was available. That apart, while considering the term ‘nucleus’
it should always be borne in mind that such nucleus has to be established as
a matter of fact and the existence of such nucleus cannot normally be
presumed or assumed on probabilities. This Court in R. Deivanai Ammal
(Died) v. G. Meenakshi Ammal12, dealt with the concept of Hindu Law,
ancestral property and the nucleus existing therein. The relevant paragraphs
are extracted below for ready reference:
“13. First let us consider the nature of the suit properties, namely, self-
acquired properties of late Ganapathy Moopanar or ancestral properties
and whether any nucleus was available to purchase the properties. Under
the Hindu Law it is only when a person alleging that the property is
ancestral property proves that there was a nucleus by means of which
other property may have been acquired, that the burden is shifted on the
party alleging self-acquisitions to prove that the property was acquired
without any aid from the family estate. In other words the mere
existence of a nucleus however small or insignificant is not enough. It
should be shown to be of such a character as could reasonably be
expected to lead to the acquisition of the property alleged to be part of
the joint family property. Where the doctrine of blending is invoked
against a person having income at his disposal and acquiring property,
the reasonable presumption to make is that he had the income at his
absolute disposal unless there is evidence to the contrary. If a coparcener
desires to establish that a property in the name of a female member of
the family or in the name of the manager himself has to be accepted andCS DJ No. 610058/16 Page No.83/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
treated as property acquired from the joint family nucleus, it is
absolutely essential that such a coparcener should not only barely plead
the same, but also establish the existence of such a joint family fund or
nucleus. Even if the joint family nucleus is so established, the
prescription that the accretions made by the manager or the purchases
made by him should be deemed to be from and out of such a nucleus
does not arise, if there is no proof that such nucleus of the joint family is
not an income-yielding apparatus. The proof required is very strict and
the burden is on the person who sets up a case that the property in the
name of a female member of the family or in the name of the manager or
any other coparcener is to be treated as joint family property. There
should be proof of the availability of such surplus income or joint family
nucleus on the date of such acquisitions or purchases. The same is the
principle even in the cases where moneys were advanced on mortgages
over immoveable properties. The onus is not on the acquirer to prove
that the property standing in his name was purchased from joint family
funds. That may be so, in the case of a manager of a joint family, but not
so in the case of all coparceners. For a greater reason it is not so in the
case of female members.
14. The doctrine of blending of self-acquired property with joint family
has to be carefully applied with reference to the facts of each case. No
doubt it is settled that when members of a joint family by their joint
labour or in their joint business acquired property, that property, in the
absence of a clear indication of a contrary intention, would be owned by
them as joint family property and their male issues would necessarily
acquire a right by birth in such property. But the essential sine qua non is
the absence of a contrary intention. If there is satisfactory evidence of an
intention on the part of the acquirer such property to treat it as his own,
but not as joint family property, the presumption which ordinarily arises,
according to the personal law of Hindus that such property would be
regarded as joint family property, will not arise.
15. It is a well-established principle of law that where a party claims that
any particular item of property is joint family property, the burden of
proving that it is so rests on the party asserting it. Where it is established
or admitted that the family possessed some joint property which from its
nature and relative value may have formed the nucleus from which the
property in question may have been acquired, the presumption arises
that it was joint property and the burden shifts to the party alleging self-
acquisition to establish affirmatively that the property was acquired
without the aid of the joint family. But no such presumption would ariseCS DJ No. 610058/16 Page No.84/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
if the nucleus is such that with its help the property claimed to be joint
could not have been acquired. In order to give rise to the presumption,
the nucleus should be such that with its help the property claimed to be
joint could have been acquired. A family house in the occupation of the
members and yielding no income could not be nucleus out of which
acquisitions could be made even though it might be of considerable
value.
16. In a Hindu joint family, if one member sues for partition on the foot
that the properties claimed by him are joint family properties then three
circumstances ordinarily arise. The first is an admitted case when there
is no dispute about the existence of the joint family properties at all. The
second is a case where certain properties are admitted to the joint family
properties and the other properties in which a share is claimed are
alleged to be the accretions or acquisitions from the income available
from joint family properties or in the alternative have been acquired by a
sale or conversion of such available properties. The third head is that the
properties standing in the names of female members of the family are
benami and that such a state of affairs has been deliberately created by
the manager or the head of the family and that really the properties or
the amounts standing in the names of female members are properties of
the joint family. While considering the term ‘nucleus’ it should always
be borne in mind that such nucleus has to be established as a matter of
fact and the existence of such nucleus cannot normally be presumed or
assumed on probabilities. The extent of the property, the income from
the property, the normal liability with which such income would be
charged and the net available surplus of such joint family property do all
enter into computation for the purpose of assessing the content of the
reservoir of such a nucleus from which alone it could, with reasonable
certainty, be said that the other joint family properties have been
purchased unless a strong link or nexus is established between the
available surplus income and the alleged joint family properties. The
person who comes to Court with such bare allegations without any
substantial proof to back it up should fail.
17. It is also a well-established doctrine of Hindu Law that property
which was originally self-acquired may become joint property if it has
been voluntarily thrown by the coparcener into the joint stock with the
intention of abandoning all separate claims upto it. But the question
whether the coparcener has done so or not is entirely a question of fact
to be decided in the light of all the circumstances of the case. It must be
established that there was a clear intention on the part of the coparcenerCS DJ No. 610058/16 Page No.85/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
to waive his separate rights and such an intention will not be inferred
from acts which may have been done from kindness or affection. The
important point to keep in mind is that the separate property of a Hindu
coparcener ceases to be his separate property and acquires the
characteristics of his joint family or ancestral property, not by mere act
of physical mixing with his joint family or ancestral property, but by his
own volition and intention by his waiving or surrendering his special
right in it as separate property. Such intention can be discovered only
from his words or from his acts and conduct.”
14. It is also to be noted that in Hindu law, for a property to be
considered as an ancestral property, it has to be inherited from any of the
paternal ancestors up to three generations. In this regard, it would be
appropriate to refer to the judgment of this Court in Govindbhai Chhotabhai
Patel v. Patel Ramanbhai Mathurbhai13, wherein it has been held as under:
“18. The learned counsel for the appellants has referred to Shyam
Narayan Prasad [Shyam Narayan Prasad v. Krishna Prasad, (2018) 7
SCC 646 : (2018) 3 SCC (Civ) 702]. That is a case in which the property
in question was held to be ancestral property by the trial court. The
plaintiffs therein being sons and grandson of one of the sons of Gopal
Prasad, the last male holder was found to have equal share in the
property. The question examined was whether the property allotted to
one of the sons of Gopal Prasad in partition retains the character of
coparcenary property. It was the said finding which was affirmed by this
Court. This Court held as under : (SCC p. 651, para 12)
“12. It is settled that the property inherited by a male Hindu from his
father, father’s father or father’s father’s father is an ancestral
property. The essential feature of ancestral property, according to
Mitakshara law, is that the sons, grandsons, and great grandsons of
the person who inherits it, acquire an interest and the rights attached
to such property at the moment of their birth. The share which a
coparcener obtains on partition of ancestral property is ancestral
property as regards his male issue. After partition, the property in the
hands of the son will continue to be the ancestral property and the
natural or adopted son of that son will take interest in it and is
entitled to it by survivorship.”
…………
20. In view of the undisputed fact, that Ashabhai Patel purchased the
property, therefore, he was competent to execute the will in favour of
any person. Since the beneficiary of the will was his son and in the
CS DJ No. 610058/16 Page No.86/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
absence of any intention in the will, beneficiary would acquire the
property as self-acquired property in terms of C.N. Arunachala Mudaliar
case [C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar, (1953)
2 SCC 362 : 1954 SCR 243 : AIR 1953 SC 495]. The burden of proof
that the property was ancestral was on the plaintiffs alone. It was for
them to prove that the will of Ashabhai intended to convey the property
for the benefit of the family so as to be treated as ancestral property. In
the absence of any such averment or proof, the property in the hands of
donor has to be treated as self-acquired property. Once the property in
the hands of donor is held to be self-acquired property, he was
competent to deal with his property in such a manner he considers as
proper including by executing a gift deed in favour of a stranger to the
family.”
15. With regard to coparcenary property, the principle laid down by this
Court in Rohit Chauhan v. Surinder Singh14 would be relevant as follows:
“11. ….In our opinion coparcenary property means the property which
consists of ancestral property and a coparcener would mean a person
who shares equally with others in inheritance in the estate of common
ancestor. Coparcenary is a narrower body than the joint Hindu family
and before the commencement of the Hindu Succession (Amendment)
Act, 2005, only male members of the family used to acquire by birth an
interest in the coparcenary property. A coparcener has no definite share
in the coparcenary property but he has an undivided interest in it and one
has to bear in mind that it enlarges by deaths and diminishes by births in
the family. It is not static. We are further of the opinion that so long, on
partition an ancestral property remains in the hand of a single person, it
has to be treated as a separate property and such a person shall be
entitled to dispose of the coparcenary property treating it to be his
separate property but if a son is subsequently born, the alienation made
before the birth cannot be questioned. But, the moment a son is born, the
property becomes a coparcenary property and the son would acquire
interest in that and become a coparcener.
12. The view which we have taken finds support from a judgment of this
Court in M. Yogendra v. Leelamma N. [(2009) 15 SCC 184 : (2009) 5
SCC (Civ) 602] in which it has been held as follows : (SCC p. 192, para
29)
“29. It is now well settled in view of several decisions of this Court
that the property in the hands of a sole coparcener allotted to him in
partition shall be his separate property for the same shall revive onlyCS DJ No. 610058/16 Page No.87/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
when a son is born to him. It is one thing to say that the property
remains a coparcenary property but it is another thing to say that it
revives. The distinction between the two is absolutely clear and
unambiguous. In the case of former any sale or alienation which has
been done by the sole survivor coparcener shall be valid whereas in
the case of a coparcener any alienation made by the karta would be
valid.”
……………
14. A person, who for the time being is the sole surviving coparcener as
in the present case Gulab Singh was, before the birth of the plaintiff, was
entitled to dispose of the coparcenary property as if it were his separate
property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was
competent to sell, mortgage and deal with the property as his property in
the manner he liked. Had he done so before the birth of plaintiff, Rohit
Chauhan, he was not competent to object to the alienation made by his
father before he was born or begotten. But, in the present case, it is an
admitted position that the property which Defendant 2 got on partition
was an ancestral property and till the birth of the plaintiff he was the sole
surviving coparcener but the moment plaintiff was born, he got a share
in the father’s property and became a coparcener. As observed earlier, in
view of the settled legal position, the property in the hands of Defendant
2 allotted to him in partition was a separate property till the birth of the
plaintiff and, therefore, after his birth Defendant 2 could have alienated
the property only as karta for legal necessity. It is nobody’s case that
Defendant 2 executed the sale deeds and release deed as karta for any
legal necessity. Hence, the sale deeds and the release deed executed by
Gulab Singh to the extent of entire coparcenary property are illegal, null
and void. However, in respect of the property which would have fallen
in the share of Gulab Singh at the time of execution of sale deeds and
release deed, the parties can work out their remedies in appropriate
proceeding.”
127. It is settled law that the burden to plead and prove the
foundational facts as to whether a property is ancestral, joint
family property etc. is on the plaintiff.
CS DJ No. 610058/16 Page No.88/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
128. In the present case, the plaintiff has not placed the title
documents of any of the properties on record. No documentary
evidence has been led to prove that the ownership of the
properties in question, i.e. (i) 55, Humayunpur, New Delhi, (ii)
261-A Arjun Nagar, New Delhi and (iii) 261-B Arjun Nagar, New
Delhi was with Shiv Lal or any of the plaintiff’s ancestors.
129. Further, the plaintiff has not proved that Shiv Lal acquired
the property from his father, grandfather or great-grandfather so
as to constitute as ancestral property in his hands in which the
plaintiff and the defendant no.1 would acquire a share as
coparcenary. The plaintiff has also not pleaded or proved that an
HUF existed and Shiv Lal acquired the property from the joint
family funds or any nucleus. The plaintiff has also not pleaded or
proved that any ancestral property was utilized by Shiv Lal to
acquire the said properties. The plaintiff has also not pleaded or
proved that Sh. Shiv Lal acquired the property himself and
expired prior to 17.06.1956, whereby his properties would have
devolved by way of mitakshara hindu law.
CS DJ No. 610058/16 Page No.89/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
130. However, as mentioned above the plaintiff has filed a
single documentary evidence to even show the ownership of any
of the properties allegedly left behind by Sh. Shiv Lal Gupta as
ancestral properties.
131. The only evidence led by the plaintiff is the statement of
the defendant no.1 dated 07.04.1980 in Suit No.458/1978 as
Ex.PW-1/1 and the judgment dated 11.08.1981as Ex. PW-1/2 to
show that the suit properties were ancestral in nature.
132. However, the said evidence does not prove the fact that the
suit properties were ancestral properties. Firstly, the said suit is a
suit for injunction filed by the defendant no.1 against the DDA,
only with respect to property no.261-B, Arjun Nagar, New Delhi
and not the other properties. A bare perusal of the statement Ex.
PW-1/1 of the defendant no.1, nowhere supports the claim of the
plaintiff that the said property was ancestral in nature. The
defendant no.1 only states that he was living in the property since
childhood and in the past it was land of zamindars, which was
CS DJ No. 610058/16 Page No.90/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
cultivated by his family. Further, he was paying the house tax and
apart from the house tax receipt, he had no proof of ownership of
the same. The statement of defendant no.1, Ex. PW-1/1 is
reproduced below:
“In the Court of Sh. P. D. Jarwal: S. J. Delhi
Ram Chander vs, D.D.A
Suit No. 458/79
7.4.80
PW 1 on S.A.
Statement of Shri Ram Chander s/o Shiv Lal aged 55 years,
occupation building material, r/o 261B Arjun Nagar,
I am the owner of house No.261-B, Arjun Nagar, New Delhi
which is in the area of 500 Yds. Consisting of three rooms. I am
living in the said house since my childhood. In the past it was a land
of the Zamindar which we used to cultivate being schedule caste. I
was paying tax of this land and still paying the tax of the same. The
house bill of the same is Ex. PW1/1. The another copy of the house-
tax bill is Ex. PW1/2. DDA has no right on this land. DDA official
came to demolish the said house about 2 years back. I requested
them not to demolish and they went away. They have given me a
notice. I received a demolition notice from DDA of this house.
XXXXX, by the defendant counsel
I do not know the Khasra No. of the land in dispute. There is
only one Khasra No. of the land. I have no zamabandi of the Khasra.
I have no proof except the house tax bill of the land. We are paying
house-tax for the year 1965 also. Before 1965 it was katcha zopri.
After the pucca construction of the house of the corporation was
charging house tax from me. I have not obtained any map of the
house. It is an unauthorized construction and the other house of the
village are also unauthorized. I am having the receipt of the house
tax from 1965 on-wards. The DDA gave notice and I filed the
present suit against DDA. I do not know ehther the land in issue has
been acquired by the Government. I do now know whether it falls in
Khasra No. 88 Min, 89 Min, and 306 Min.
Re-examination Nil
RO&ACCS DJ No. 610058/16 Page No.91/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
SD/-
SJIC/Delhi
7/4/80″
(Sic.)
133. A bare reading of the statement of the defendant no.1, Ex.
PW-1/1 reveals that it does not support the contention of the
plaintiff . The defendant no.1 does not claim in the said statement
that the said land was ancestral property. The defendant no.1
rather admits that the land in question belonged to the
landlords/zamindars, which was only cultivated upon by them.
Further, the defendant no.1 admitted that he had no documents of
ownership of property no. 261-B, Arjun Nagar, New Delhi.
134. Even the judgment dated 11.08.1981, Ex. PW-1/2 passed
in the said suit does not hold the property no. 261-B, Arjun
Nagar, New Delhi as ancestral property, and instead records that
the plaintiff is in possession of the same since his childhood and
was himself not having any proof of ownership, except receipts
evidencing payment of house tax since 1965 on-wards.
135. The Hon’ble High Court of Delhi has held in Sunny
(Minor) v. Sh. Raj Singh, CS(OS) No. 431/2006 decided on
CS DJ No. 610058/16 Page No.92/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
17.11.2015 as follows:
(i) If a person dies after passing of the Hindu Succession Act, 1956 and
there is no HUF existing at the time of the death of such a person,
inheritance of an immovable property of such a person by his successors-in-
interest is no doubt inheritance of an ‘ancestral’ property but the inheritance
is as a self-acquired property in the hands of the successor and not as an
HUF property although the successor(s) indeed inherits ‘ancestral’ property
i.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family
can come into existence after 1956 (and when a joint Hindu family did not
exist prior to 1956) is if an individual’s property is thrown into a common
hotchpotch. Also, once a property is thrown into a common hotchpotch, it is
necessary that the exact details of the specific date/month/year etc. of
creation of an HUF for the first time by throwing a property into a common
hotchpotch have to be clearly pleaded and mentioned and which
requirement is a legal requirement because of Order VI Rule 4 CPC which
provides that all necessary factual details of the cause of action must be
clearly stated. Thus, if an HUF property exists because of its such creation
by throwing of self-acquired property by a person in the common
hotchpotch, consequently there is entitlement in coparceners etc. to a share
in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior
to 1956, and such status of parties qua the properties has continued after
1956 with respect to properties. inherited prior to 1956 from paternal
ancestors. Once that status and position continues even after 1956; of the
HUF and of its properties existing; a coparcener etc. will have a right to
seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without
inheritance of ancestral property from paternal ancestors, as HUF could
have been created prior to 1956 by throwing of individual property into a
common hotchpotch. If such an HUF continues even after 1956, then in
such a case a coparcener etc. of an HUF was entitled to partition of the HUF
property.
9. I would like to further note that it is not enough to aver a mantra, so to
say, in the plaint simply that a joint Hindu family or HUF exists. Detailed
facts as required by Order VI Rule 4 CPC as to when and how the HUF
properties have become HUF properties must be clearly and categorically
averred. Such averments have to be made by factual references qua each
property claimed to be an HUF property as to how the same is an HUF
CS DJ No. 610058/16 Page No.93/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
property, and, in law generally bringing in any and every property as HUF
property is incorrect as there is known tendency of litigants to include
unnecessarily many properties as HUF properties, and which is done for less
than honest motives. Whereas prior to passing of the Hindu Succession Act,
1956 there was a presumption as to the existence of an HUF and its
properties, but after passing of the Hindu Succession Act, 1956 in view of
the ratios of the judgments of the Supreme Court in the cases of Chander
Sen (supra) and Yudhishter (supra) there is no such presumption that
inheritance of ancestral property creates an HUF, and therefore, in such a
post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and
its properties exist is not a sufficient compliance of the legal requirement of
creation or existence of HUF properties inasmuch as it is necessary for
existence of an HUF and its properties that it must be specifically stated that
as to whether the HUF came into existence before 1956 or after 1956 and if
so how and in what manner giving all requisite factual details. It is only in
such circumstances where specific facts are mentioned to clearly plead a
cause of action of existence of an HUF and its properties, can a suit then be
filed and maintained by a person claiming to be a coparcener for partition of
the HUF properties.
11. I may note that the requirement of pleading in a clear cut manner as to
how the HUF and its properties exist i.e whether because of pre 1956
position or because of the post 1956 position on account of throwing of
properties into a common hotchpotch, needs to be now mentioned especially
after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter
referred to as ‘the Benami Act‘) and which Act states that property in the
name of an individual has to be taken as owned by that individual and no
claim to such property is maintainable as per Section 4(1) of the Benami Act
on the ground that monies have come from the person who claims right in
the property though title deeds of the property are not in the name of such
person. An exception is created with respect to provision of Section 4 of the
Benami Act by its sub-Section (3) which allows existence of the concept of
HUF. Once existence of the concept of HUF is an exception to the main
provision contained in sub-Sections (1) and (2) of Section 4 of the Benami
Act, then, to take the case outside sub-Sections (1) and (2) of Section 4 of
the Benami Act it has to be specifically pleaded as to how and in what
manner an HUF and each specific property claimed as being an HUF
property has come into existence as an HUF property. If such specific facts
are not pleaded, this Court in fact would be negating the mandate of the
language contained in sub-Sections (1) and (2) of Section 4 of the Benami
Act.
CS DJ No. 610058/16 Page No.94/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
12. This Court is flooded with litigations where only self-serving averments
are made in the plaint of existence of HUF and a person being a coparcener
without in any manner pleading therein the requisite legally required factual
details as to how HUF came into existence. It is a sine qua non that
pleadings must contain all the requisite factual ingredients of a cause of
action, and once the ratios of the judgments of the Supreme Court in the
cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956
position and the post 1956 position has to be made clear, and also as to how
HUF and its properties came into existence whether before 1956 or after
1956. It is no longer enough to simply state in the plaint after passing of the
Hindu Succession Act 1956, that there is a joint Hindu family or an HUF
and a person is a coparcener in such an HUF/joint Hindu family for such
person to claim rights in the properties as a coparcener unless the entire
factual details of the cause of action of an HUF and each property as an
HUF is pleaded.
(Emphasis supplied)
136. With respect to the alleged admission of the defendant no.1
that the property no.55, Humayunpur, New Delhi was an
ancestral property. It is settled law that an admission must be
clear and unequivocal and a fact admitted need not be proved by
the opposite party, however as per section 53 of the Bhartiya
Sakshya Adhiniyam, 2023 (section 58 of the erstwhile Indian
Evidence Act, 1872) the Court may in its discretion still call upon
the opposite party to prove the said fact. Order 8 rule 5 CPC is
also to the same effect.
137. In the present case, no documentary proof with respect to
ownership of the property no.55, Humayunpur, New Delhi has
CS DJ No. 610058/16 Page No.95/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
been placed on record by the plaintiff. Further, the admission of
the defendant no.1 cannot be said to be clear and unequivocal as
the plaintiff himself has not clearly pleaded as to how the
properties in question are ancestral properties or joint family
properties or ancestral joint family properties. The defendant no.1
has not elaborated on what basis he is admitting that the plaintiff
had a share in the same. Hence, in my considered opinion I find
the said admission of the defendant no.1 to be unclear and
unequivocal, leaving the plaintiff to still prove the fact that
property no.55, Humayunpur, New Delhi was liable to be
partitioned.
138. The Hon’ble Apex Court has held in the decision of Razia
Begum v. Sahebzadi Anwar Begum, 1958 SCC OnLine SC 77 :
1959 SCR 1111 : AIR 1958 SC 886:
10. It is also clear on the words of the statute, quoted above, that the
grant of a declaration such as is contemplated by Section 42, is
entirely in the discretion of the court. At this stage, it is convenient to
deal with the other contention raised on behalf of the appellant,
namely, that in view of the unequivocal admission of the plaintiff’s
claim by the Prince, in his written statement, and repeated as
aforesaid in his counter to the application for intervention by the
Respondents 1 and 2, no serious controversy now survives. It is
suggested that the declarations sought in this case, would be granted
as a matter of course. In this connection, our attention was called toCS DJ No. 610058/16 Page No.96/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
the provisions of Rule 6 of Order 12 of the Code of Civil Procedure,
which lays down that, upon such admissions as have been made by
the Prince in this case, the court would give judgment for the
plaintiff. These provisions have got to be read along with Rule 5 of
Order 8 of the Code, with particular reference to the proviso which is
in these terms:–
“Provided that the court may in its discretion require any fact so
admitted to be proved otherwise than by such admission.”
The proviso quoted above, is identical with the proviso to Section 58
of the Evidence Act, which lays down that facts admitted need not be
proved. Reading all these provisions together, it is manifest that the
court is not bound to grant the declarations prayed for, even though
the facts alleged in the plaint, may have been admitted. In this
connection, the following passage in Anderson’s Actions for
Declaratory Judgments, Vol. 1, p. 340, under Article 177, is relevant:
“A claim of legal or equitable rights and denial thereof on behalf of
an adverse interest or party constitutes a ripe cause for a proceeding,
seeking declaratory relief. A declaration of rights is not proper where
the defendant seeks to uphold the plaintiffs in such an action. The
required element of adverse parties is absent.”
“In other words the controversy must be between the plaintiff and
the respondent who asserts an interest adverse to the plaintiff. In the
absence of such a situation there is no justiciable controversy and the
case must be characterized as one asking for an advisory opinion,
and as being academic rather than justiciable i.e. there must be an
actual controversy of justiciable character between parties having
adverse interest.”
Hence, if the court, in all the circumstances of a particular case,
takes the view that it would insist upon the burden of the issue being
fully discharged, and if the court, in pursuance of the terms of
Section 42 of the Specific Relief Act, decides, in a given case, to
insist upon clear proof of even admitted facts, the court could not be
said to have exceeded its judicial powers.
CS DJ No. 610058/16 Page No.97/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
139. Hence, the plaintiff has failed to discharge the onus cast on
him to prove that the suit properties were ancestral joint family
properties. Accordingly, the issue no. 6 is decided against the
plaintiff.
Issues no.1 and 9
140. I shall next decide the issues no.1, and 9 together, being
connected issues, which are reproduced below for the sake of
convenience:
1. Whether the properties bearing Nos. 261-A & 261-B, Arjun
Nagar, New Delhi and 53, 53-A, 54 and 55 Humayunpur, New Delhi
are the self acquired properties of deceased defendant no.1, Shri
Ram Chander? If so, its effect?
9. Whether defendant No.1 became the owner of suit properties by
adverse possession?
141. The above issues have been framed in the suit vide order
dated 91.12.1999. However, after going through the pleadings of
the parties, the issue no.1 framed in the suit required to be
amended for the reasons stated below.
142. The plaintiff in paras no.3 and 4 of the suit has stated that
CS DJ No. 610058/16 Page No.98/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
his grandfather, Late Sh. Shiv Lal left behind several
house/properties and lands in the village Humayunpur, New
Delhi and Arjun Nagar, New Delhi namely (a) Municipal nos. 53,
53-A, 54 and 55 Humayunpur, New Delhi; (b) 13-G and 13-GA,
Humayunpur, New Delhi and (c) 261-A and 261-B, Arjun Nagar,
New Delhi. Further, in the year 1958 the sons of Sh. Shiv Lal
partitioned the aforementioned properties by way of mutual
family settlement, in which (a) House no.55, Humayunpur, New
Delhi and (b) 261-A and 261-B, Arjun Nagar, New Delhi came to
the share of Ram Chander/ defendant no.1 and his family.
143. The defendant no.1, in his written statement has cryptically
denied the above assertion by the plaintiff. The defendant no.1
has stated that in reply to para no.3 and 4 of the plaint that the
properties no. 261-A and 261-B, Arjun Nagar, New Delhi were
the self acquired properties of the plaintiff and denied that they
were ancestral properties. He did not state anything specifically
with respect to the ownership of the property no. 55,
Humayunpur, New Delhi and stated that he gave the property to
the plaintiff of his own free will. The defendant no.1 also asserted
CS DJ No. 610058/16 Page No.99/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
that the plaintiff was in possession of a property no. 231-A,
Humayunpur, New Delhi which was the self acquired property of
the defendant.1. He further stated that the other properties of Sh.
Shiv Lal were in possession of his brothers. In paras no 15 and
19 of the written statement, the defendant no.1 stated that the
plaintiff along with him had a right only in 55, Humayunpur,
New Delhi. The defendants no.1(f) – (h), defendant no.3 also
made similar claims in their written statements.
144. Hence, the defendant no.1 made the claim that he was the
owner of only properties no. 261-A & 261-B Arjun Nagar, New
Delhi by way of adverse possession. Accordingly, the issue no.1
is hereby amended as follows:
1. Whether the properties bearing Nos. 261-A & 261-B, Arjun
Nagar, New Delhi are the self acquired properties of deceased
defendant no.1, Shri Ram Chander? If so, its effect? OPD1, D1(f) –
(h) and D3.
145. At the outset I must point out that although the defendants
no.1, 1(f)-(h) and the defendant no.3 though have raised a
defense that the defendant no.1 was the owner of properties
CS DJ No. 610058/16 Page No.100/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
no.261-A and 261-B Arjun Nagar, New Delhi as well as property
no.231-A, Humayunpur, New Delhi by way of adverse
possession. No details as to who was the actual owner of the
property, or the manner and date from which, the defendant no.1
perfected his title by way of adverse possession have been
pleaded in the written statement.
146. Order VI rule 4 CPC requires a party to provide all
necessary particulars with dates and items in the pleadings itself
when pleading a particular fact. The Hon’ble Apex Court has
held in V Rajeshwari vs T.C. Saravanabava, (2004) 1 SCC 551
that a plea of adverse possession must be pleaded with proper
particulars such as when the possession became adverse and who
was the real owner of the property.
147. The Hon’ble Apex Court in the decision of M Siddiq (D)
through LRs v. Mahant Suresh Das & Ors, (2020) 1 SCC 1
reiterated this principle as under –
“748. A person who sets up a plea of adverse possession must
establish both possession which is peaceful, open and continuous –
possession which meets the requirement of being ‘nec vi nec claim
and nec precario’. To substantiate a plea of adverse possession, theCS DJ No. 610058/16 Page No.101/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
character of the possession must be adequate in continuity and in the
public because the possession has to be to the knowledge of the true
owner in order for it to be adverse. These requirements have to be
duly established first by adequate pleadings and second by leading
sufficient evidence.”
148. Hence a person claiming adverse possession must plead
and then prove through clear and cogent evidence the claim of
adverse possession with all its relevant requirements and the
burden of proof of proving adverse possession always rests on
the person claiming the same.
149. However, in the present case, the defendant no.1 expired
after filing his written statement and hence could not step into the
witness box to prove his plea of adverse possession. The
defendant no.3 examined herself as a witness and orally
reiterated that the defendant no.1 was the owner of the suit
properties by way of adverse possession, without providing any
details.
150. Further, the defendant no.3 during her cross-examination
dated 05.07.2019 took a complete divergent turn from her stand
in the pleadings and stated that ” Ram Chander was pahalwan and
CS DJ No. 610058/16 Page No.102/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
used to wrestle and did not other work “. During her cross-
examination dated 21.09.2019 she deposed that ” The land
bearing No. 261B Arjun Nagar Delhi was not purchase by Late
Sh. Ram Chander (Vol. it was acquired by him in Wrestling). I do
not know who told me about the fact that the aforesaid land at
Arjun Nagar was given to Late Ram Chander in wrestling”.
151. Hence, the defendant no.1, defendant no.1(f)-(h) and the
defendant no.3 have failed to prove the that the defendant no.1
was the owner of the properties no. 261A & 261B Arjun Nagar,
New Delhi by way of adverse possession. Hence, the issues no. 1
and 9 are decided against the defendant no.1, defendant no.1(f)-
(h) and the defendant no.3.
Issues no.2 and 3a.
152. I shall decide issues no.2 and 3a together, being connected
issues, which are reproduced below for the sake of convenience:
2. Whether defendant no.3 is the widow of late Shri Ram Chander,
defendant no.1?
3a. Whether defendant no.2 ceased to be the wife of defendant no.1
during the life time of defendant No.1? If so, its effect?
CS DJ No. 610058/16 Page No.103/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
153. The aforesaid issues were framed vide order dated
01.12.1999, which did not indicate, on which party the onus of
proof of the issues was placed. However, a perusal of the
pleadings of the parties reveals that the factum of marriage
between the defendants no.1 and 3 has been asserted by the
defendant no.1 (since deceased) and the defendants no. 1 (f) – (h)
and the defendant no.3 in the pleadings. Further, they have also
asserted that the defendant no.2 ceased to be the wife of the
defendant no.1 as she had deserted him. Hence, the onus of the
said issue also falls on the said parties.
154. The plaintiff as well as the defendants no.2 and 1(a) – (e)
have asserted that the defendant no.1/ Ram Chander was married
to the defendant no.2/Smt. Chameli Devi, out of which wedlock
the plaintiff and the defendants no. 1(a) – (e) were born. The said
marriage between the defendant no.1 and 2 was never dissolved.
However, in the year 1969-1970, the defendant no.1 developed
illegitimate relations with the defendant no.2, who was already
having a son and a daughter and was married to one Nanak
Chand, r/o Village Kalera Khimanti, P.S. Murad Nagar, District
CS DJ No. 610058/16 Page No.104/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
Ghaziabad, UP, which marriage was also never dissolved. In the
written statement filed by the defendant no.1, he did not deny
that he was married with the defendant no.2 and admitted that he
was the father of the plaintiff and the defendants no.1(a) – (d),
except defendant no.1(e) Sunita. However, he stated that the
defendant no.2 had deserted him 30 years ago (suit was filed in
the year 1991, hence around the year1961) and married one Pat
Ram, s/o Himmat Ram, r/o Lado Sarai, New Delhi and had
started residing with him along with the plaintiff and a female
child, i.e. the defendant no.1 (e) Sunita was also born to her out
of the said wedlock with Pat Ram. On that account, he denied
that the he was still married to the defendant no.2 and asserted
that the defendant no.3 was his wife as he had contracted a
‘customary marriage’ with her and denied that she was ever
married to one Nanak Ram. The defendants no. 1 (f) – (h) as well
as the defendant no.3 raised the same contentions and added that
the defendants no.1(a) – (e) were not the daughters of the
defendant no.1 and the defendant no.2.
155. As mentioned above, the defendant no.1, defendants no. 1
CS DJ No. 610058/16 Page No.105/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
(f) – (h) as well as the defendant no.3 admit that the defendant
no.1 was married to the defendant no.2 first. There is no
averment in the written statement of the above-mentioned
defendants or even any evidence led, to suggest that the said
marriage between the defendants no.1 and 2 was ever dissolved
by a decree of dissolution passed by any competent Court of law.
A valid Hindu marriage contracted under the provisions of the
Hindu Marriage Act, 1955 (HMA) continues to subsist between
the parties till such time that it is either declared as voidable
under section 12 HMA, or dissolved under the grounds
mentioned under section 13 HMA or dissolved by way of mutual
consent under section 13-B (2) HMA. The persons so divorced,
may only then marry again, subject to the provisions of section
15 HMA. Any alleged desertion by a spouse only confers a right
on the deserted spouse to seek the appropriate relief of divorce
under section 13 (i-b) of the HMA (which was introduced by way
of amendment to the HMA, with effect from 27.05.1976. Prior to
which desertion was only a ground for judicial separation under
section 10 (1) (a) of the HMA as it stood before the amendment
of 1976.). Desertion by one spouse of the other spouse, by itself,
CS DJ No. 610058/16 Page No.106/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
no matter of what length, will not result in the marriage between
the parties being dissolved, without an appropriate decree of
dissolution of the marriage passed by a competent Court of law
on a petition presented by one of the parties to the marriage
under section 13 of the HMA. Hence, I find that the defendant
no.1 was first married to the defendant no.2 and the said marriage
was never dissolved by any competent Court of law and
subsisted till their respective demise. Therefore, the alleged
subsequent marriage contracted by the defendant no.1 with the
defendant no.3 is void as per section 5(i) of the HMA as the
defendant no.1 had a spouse living at the time of the said
marriage, i.e. the defendant no.2.
156. Further, as held by the Hon’ble Apex Court in Yamunabai
Anantrao Adhav vs. Anatrao Shivram Adhav, AIR 1988 SC 644 a
void marriage is a nullity ipso facto and although section 11
HMA permits a formal declaration to be made on a petition, it is
not incumbent on the party to seek such a declaration from the
Court.
CS DJ No. 610058/16 Page No.107/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
157. Hence, in light of the above discussion, I find that the
marriage between the defendant no.1 and 2 subsisted till their
respective demise and the marriage between the defendant no.1
and 3 is void under section 5 (i) HMA. Therefore, the defendant
no.3 cannot be regarded as the widow of the defendant no.1 and
the defendant no.2 continued to be the legally wedded wife of the
defendant no.1 till his demise on 13.01.1993. Accordingly, the
issues no. 2 and 3a are decided against the defendants no.1,
defendants no.1 (f)-(h) and the defendants no.3.
Issue no. 3b
158. I shall next decide issue no. 3b, which is reproduced below
for the sake of convenience:
3 b. Whether defendant no.2 ever married a person known as Shri
Pat Ram as alleged in para 5 of the Written Statement (Reply on
Merits) filed by defendant no.3?
159. The onus of the above issue would also necessarily fall on
the defendant no.1, defendants no.1(f) – h) and the defendant
no.3, who have alleged the same in their respective written
statements. In view of the finding and decision under issues no.2
CS DJ No. 610058/16 Page No.108/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
and 3b, with respect to the marriage between the defendants no.1
and 2 subsisting till their respective deaths, the defendant no.2
could not have contracted a legally valid marriage with one Pat
Ram under the HMA. Even otherwise, the defendants have failed
to prove the factum of ceremony of marriage between the
defendant no.2 and the said Pat Ram.
160. The defendants no.1, 1(f) – (h) and the defendant no.3 in
their written statements did not mention any date, year or place
of the alleged marriage between the defendant no.2 and the said
Pat Ram. Further, no documentary proof of such marriage was
also led in evidence by the above-mentioned defendants in the
form of any marriage certificate, photograph, or any other
document in which they were referred to as husband and wife.
The defendant no.3 in her evidence by way of affidavit, Ex.
DW-1/A even omitted to mention the name of the said Pat Ram
and simply stated in para no.5 that the defendant no.2 had
deserted the defendant no.1 and got married “to another man”.
The defendant no.3 in her cross-examination dated 05.07.2019,
then completely contradicted herself and deposed that the
CS DJ No. 610058/16 Page No.109/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
defendant no.2 was married to one ‘Pyare Lal after divorcing the
defendant no.1:
“Chameli Devi was the wife of Ram Chander, however, I came to
know about it later on. (Vol.) Smt. Chameli Devi had again married
to Pyare Lal after divorcing Ram Chander and she is having a
daughter from Pyare Lal namely Ms. Sunita. I do no have any
document regarding the aforesaid divorce of Smt. Chameli Devi and
Sh. Ram Chander. (Vol.) I came to know about the divorce after my
marriage with Ram Chander and it was disclosed by Ram Chander. I
have not filed any document with regard to the alleged divorce or
paternity of Ms. Sunita.”
161. The defendant no.3 also admitted that she had no
documentary proof of any decree of divorce dissolving the
marriage of the defendants no.1 and 2. No proof of any ceremony
of marriage/solemnization having taken place between the
defendants no.1 and 3 has also been led by the defendant no.3.
162. The burden of proof to prove that a valid marriage exists is
on the person who claims the said fact [ Rathnamma and Ors vs
Sujathamma and Ors, (2019) 19 SCC 714].
CS DJ No. 610058/16 Page No.110/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
163. Therefore, I find that the defendants no.1, 1(f) – (h) and
the defendant no.3 have failed to prove that the defendant no.2
ever married a person known as Sh. Pat Ram. Further, as per
section 5(i) of the HMA, 1955 the defendant no.2 could not have
contracted another valid marriage during the subsistence of her
marriage with the defendant no.1. The defendant no.3 has also
failed to prove any ceremony of marriage conducted between the
defendant no.2 and the said Pat Ram. Accordingly, the issue no.
3b is decided against the defendants no.1, 1(f) – (h) and the
defendant no.3.
Issue no.4
164. I shall next decide issue no.4, which is reproduced below
for the sake of convenience:
4. Whether the plaintiff and defendants Nos. 1(a) to 1(e)
are the legal heirs of deceased defendant No.1 and
defendant No.2?
165. It has already been proved under issue no.3a and 3b, that
the defendant no.2 was married to the defendant no.1 and the said
CS DJ No. 610058/16 Page No.111/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
marriage subsisted between the parties till their death.
166. Further, as per section 116 of the Bhartiya Sakshya
Adhiniyam, 2023 (BSA) (section 112 of the erstwhile Indian
Evidence Act, 1872) the fact that any person was born during the
continuance of a valid marriage between his mother and any
man, or within two hundred and eighty days after its dissolution,
the mother remaining unmarried, shall be conclusive proof that
he is the legitimate child of that man, unless it can be shown that
the parties to the marriage had no access to each other at any time
when he could have been begotten.
167. Under section section 2(1)(b) of the BSA ‘conclusive
proof’ means when one fact is declared by this Adhiniyam to be
conclusive proof of another, the Court shall, on proof of the one
fact, regard the other as proved, and shall not allow evidence to
be given for the purpose of disproving it.
168. The above presumption of legitimacy of a child born out of
a valid marriage as per section 116 read with section 2(1)(b) of
CS DJ No. 610058/16 Page No.112/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
the BSA is mandatory presumption which has to be raised in
favour of any child who is born during the subsistence of a valid
marriage and shall not even allow evidence to be given, unless it
can be proved that the parties had no access during the period
when the child could have been begotten.
169. The defendants no. 1(f)-(h) and the defendant no.3 have
neither pleaded such non-access, nor proved the same. Hence, no
evidence led by them can be even looked into for disproving the
fact that the plaintiff and the defendants no.1(a)-(e) were the
legitimate children of the defendant no.1.
170. The Hon’ble Apex Court has held in the decision of Ivan
Rathinam vs Milan Joseph, 2025 SCC Online SC 175, that the
presumption of legitimacy under section 112 of the Indian
Evidence Act can be rebutted by pleading non access. The
relevant portion is quoted below:
D.1.1.4 Position in India
25. The above analysis makes it clear that courts around the globe
have recognized the theoretical difference in ‘paternity’ and
‘legitimacy’ to the extent that in the Venn diagram of paternity and
legitimacy, legitimacy is not an independent circle, but is entombed
within paternity. After adverting to the position of ‘paternity’ andCS DJ No. 610058/16 Page No.113/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
‘legitimacy’ in various foreign jurisdictions, it is imperative to
evaluate the position in India in light of the unique factual matrix of
the instant appeal.
26. The advent of scientific testing has made it much easier to prove
that a child is not a particular person’s offspring. To this end, Indian
courts have sanctioned the use of DNA testing, but sparingly.
27. Before delving into the analysis, it is pertinent to elucidate
Section 112 of the Indian Evidence Act, 1872:
“112. Birth during marriage, conclusive proof of legitimacy. The fact
that any person was born during the continuance of a valid marriage
between his mother and any man, or within two hundred and eighty
days after its dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate son of that man, unless it
can be shown that the parties to the marriage had no access to each
other at any time when he could have been begotten.”
28. The language of the provision makes it abundantly clear that
there exists a strong presumption that the husband is the father of the
child borne by his wife during the subsistence of their marriage. This
section provides that conclusive proof of legitimacy is equivalent to
paternity.29 The object of this principle is to prevent any
unwarranted enquiry into the parentage of a child. Since the
presumption is in favour of legitimacy, the burden is cast upon the
person who asserts ‘illegitimacy’ to prove it only through ‘non-
access.’
29. It is well-established that access and non-access under Section
112 do not require a party to prove beyond reasonable doubt that
they had or did not have sexual intercourse at the time the child
could have been begotten. ‘Access’ merely refers to the possibility of
an opportunity for marital relations.30 To put it more simply, in such
a scenario, while parties may be on non-speaking terms, engaging in
extra-marital affairs, or residing in different houses in the same
village, it does not necessarily preclude the possibility of the spouses
having an opportunity to engage in marital relations.31 Non-access
means the impossibility, not merely inability, of the spouses to have
marital relations with each other.32 For a person to rebut the
CS DJ No. 610058/16 Page No.114/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
presumption of legitimacy, they must first assert non-access which,
in turn, must be substantiated by evidence.”
(Emphasis supplied)
171. The Hon’ble Apex Court has held in Aparna Ajinkya
Firodia v. Ajinkya Arun Firodia, (2024) 7 SCC 773 : (2024) 3
SCC (Cri) 387 : 2023 SCC OnLine SC 161 that in order to uproot
the presumption of legitimacy under section 116 of the Bhartiya
Sakshya Adhiniyam, 2023 non-access must be pleaded and
proved:
20. It is necessary in this context to note what is “conclusive proof”
with reference to the proof of the legitimacy of the child, as stated in
Section 112 of the Evidence Act. As to the meaning of “conclusive
proof” reference may be made to Section 4 of the Evidence Act,
which provides that when one fact is declared to be conclusive proof
of another, proof of one fact, would automatically render the other
fact as proved, unless contra evidence is led for the purpose of
disproving the fact so proved. A conjoint reading of Section 112 of
the Evidence Act, with the definition of “conclusive proof” under
Section 4 thereof, makes it amply clear that a child proved to be born
during a valid marriage should be deemed to be a legitimate child
except where it is shown that the parties to the marriage had no
access to each other at any time when the child could have been
begotten or within 280 days after the dissolution of the marriage and
the mother remains unmarried, that fact is the conclusive proof that
the child is the legitimate son of the man. Operation of the
conclusive presumption can be avoided by proving non-access at the
relevant time.
21. The latter part of Section 112 of the Evidence Act indicates that
if a person is able to establish that the parties to the marriage had no
access to each other at any time when the child could have been
begotten, the legitimacy of such child can be denied. That is, it must
be proved by strong and cogent evidence that access between themCS DJ No. 610058/16 Page No.115/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
was impossible on account of serious illness or impotency or that
there was no chance of sexual relationship between the parties
during the period when the child must have been begotten. Thus,
unless the absence of access is established, the presumption of
legitimacy cannot be displaced.
22. Thus, where the husband and wife have cohabited together, and
no impotency is proved, the child born from their wedlock is
conclusively presumed to be legitimate, even if the wife is shown to
have been, at the same time, guilty of infidelity. The fact that a
woman is living in adultery would not by itself be sufficient to repel
the conclusive presumption in favour of the legitimacy of a child.
Therefore, shreds of evidence to the effect that the husband did not
have intercourse with the wife at the period of conception, can only
point to the illegitimacy of a child born in wedlock, but it would not
uproot the presumption of legitimacy under Section 112 of the
Evidence Act.
23. The presumption under Section 112 can be drawn only if the
child is born during the continuance of a valid marriage and not
otherwise. “Access” or “non-access” must be in the context of sexual
intercourse, that is, in the sexual sense and therefore, in that narrow
sense. Access may for instance, be impossible not only when the
husband is away during the period when the child could have been
begotten or owing to impotency or incompetency due to various
reasons or the passage of time since the death of the husband. Thus,
even though the husband may be cohabiting, there may be non-
access between the husband and the wife. One of the instances of
non-access despite cohabitation is the impotency of the husband. If
the husband has had access, adultery on the wife’s part will not
justify a finding of illegitimacy.
24. Thus, “non-access” has to be proved as a fact in issue and the
same could be established by direct and circumstantial evidence of
an unambiguous character. Thus, there could be “non-access”
between the husband and wife despite cohabitation. Conversely,
even in the absence of actual cohabitation, there could be access.”
172. Accordingly, the plaintiff and the defendants no.1(a)-(e)
CS DJ No. 610058/16 Page No.116/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
are held to be the legal heirs of the deceased defendants no.1 and
2. The issue no.4 is accordingly answered in the above terms.
Issue no.7
173. I shall next decide issue no.7, which is reproduced below
for the sake of convenience:
7. Whether defendants Nos. 1(f) to 1(h) are the sons of
deceased defendant No.1 & defendant No. 3?
174. At the outset, I may point out that the issue no.7 requires to
be corrected since the defendants no.1(f) -(h) are alleged to be
the sons and daughter of the defendant no.1 and the defendant
no.3. Hence, the issue no.7 is amended and corrected as below:
7. Whether defendants Nos. 1(f) to 1(h) are the sons and
daughter of deceased defendant No.1 & defendant No. 3?
OP D1, D1(f)-(h), D3
175. In this regards I may refer to section 16 (1) of the Hindu
Marriage Act, 1955 which provides for legitimacy of the children
born out of a void or voidable marriage. The provision is
reproduced below:
CS DJ No. 610058/16 Page No.117/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
16. Legitimacy of children of void and voidable marriages.–
(1) Notwithstanding that a marriage marriage is null and void under
section 11, any child of such marriage who would have been
legitimate if the marriage had been valid, shall be legitimate,
whether such child is born before or after the commencement of the
Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether
or not a decree of nullity is granted in respect of that marriage under
this Act and whether or not the marriage is held to be void otherwise
than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable
marriage under section 12, any child begotten or conceived before
the decree is made, who would have been the legitimate child of the
parties to the marriage if at the date of the decree it had been
dissolved instead of being annulled, shall be deemed to be their
legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be
construed as conferring upon any child of a marriage which is null
and void or which is annulled by a decree of nullity under section
12, any rights in or to the property of any person, other than the
parents, in any case where, but for the passing of this Act, such child
would have been incapable of possessing or acquiring any such
rights by reason of his not being the legitimate child of his parents.
176. I may point out that for the presumption under section 16
HMA, 1955 to operate, the defendants no.1. 1(f)-(h) and the
defendant no.3 were required to prove that the defendant no.1
and the defendant no.3 solemnized their marriage, albeit void, as
per the customary rites and ceremonies of either party. The
defendants no.1. 1(f)-(h) and the defendant no.3 have not led any
evidence to prove the same. In fact in the entire written statement
of the defendant no.1 and the defendant no.3 no date of the
CS DJ No. 610058/16 Page No.118/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
marriage has been stated by them. No documentary proof of any
ceremony of marriage has also been led by the defendant no.3.
177. The defendant no.3 has stated in her evidence by way of
affidavit Ex. DW-1/A that she married the defendant no.1 in 1965
and out of the wedlock two sons and one daughter were born.
During her cross-examination dated 24.05.2019, the defendant
no.3 stated that her marriage with the defendant no.1 was
solemnized at Green Park at her brother’s house in 1965, but she
could not tell the date or month of the said marriage. In her cross-
examination dated 05.07.2019, she stated that she could not
remember what her age was at the time of her marriage with the
defendant no.1 and contradicted her earlier statement and
deposed that the marriage was solemnized in the year 1964.
Thereafter she again asserted that she was married in the year
1965. She further deposed that the marriage was attended by her
brother, brother of defendant no.1 and other family members.
However, no was was examined as a witness to prove the said
marriage ceremony.
CS DJ No. 610058/16 Page No.119/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
178. the Hon’ble High Court of Bombay in Indubai Jaydeo
Pawar and Another vs. Draupada @ Draupadi Jaydeo Pawar and
Others, 2017 SCC OnLine Bom 2413 has held that the parties
must have performed the customary ceremonies as per section 7
of the Hindu Marriage Act for the presumption under section 16
HMA, 1955 to operate.
179. Even otherwise, section 16 (3) HMA, 1955 limits the right
of such children, of void and voidable marriages, in the property
of only their parents or their parent’s share in the joint family
property and does not extend to any ancestral property.
180. The Hon’ble Apex Court has held in the decision of
Revanasidappa and Anr vs Mallikarjun, (2023) 10 SCC 1 that :
81.1. In terms of sub-section (1) of Section 16, a child of a
marriage which is null and void under Section 11 is statutorily
conferred with legitimacy irrespective of whether : (i) such a
child is born before or after the commencement of the amending
Act, 1976; (ii) a decree of nullity is granted in respect of that
marriage under the Act and the marriage is held to
be void otherwise than on a petition under the enactment;
81.2. In terms of sub-section (2) of Section 16 where a voidable
marriage has been annulled by a decree of nullity under Section
12, a child “begotten or conceived” before the decree has beenCS DJ No. 610058/16 Page No.120/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
made, is deemed to be their legitimate child notwithstanding the
decree, if the child would have been legitimate to the parties to
the marriage if a decree of dissolution had been passed instead of
a decree of nullity;
81.3. While conferring legitimacy in terms of sub-section (1) on
a child born from a void marriage and under sub-section (2) to a
child born from a voidable marriage which has been annulled, the
legislature has stipulated in sub-section (3) of Section 16 that
such a child will have rights to or in the property of the parents
and not in the property of any other person;
81.4. While construing the provisions of Section 3(j) of the HSA,
1956 including the proviso, the legitimacy which is conferred by
Section 16 of the HMA, 1955 on a child born from a void or, as
the case may be, voidable marriage has to be read into the
provisions of the HSA, 1956. In other words, a child who is
legitimate under sub-section (1) or sub-section (2) of Section 16
of the HMA would, for the purposes of Section 3(j) of the HSA,
1956, fall within the ambit of the explanation “related by
legitimate kinship” and cannot be regarded as an “illegitimate
child” for the purposes of the proviso;
81.5. Section 6 of the HSA, 1956 continues to recognise the
institution of a joint Hindu family governed by the Mitakshara
law and the concepts of a coparcener, the acquisition of an
interest as a coparcener by birth and rights in coparcenary
property. By the substitution of Section 6, equal rights have been
granted to daughters, in the same manner as sons as indicated by
sub-section (1) of Section 6;
81.6. Section 6 of the HSA, 1956 provides for the devolution of
interest in coparcenary property. Prior to the substitution of
Section 6 with effect from 9-9-2005 by the amending Act of
2005, Section 6 stipulated the devolution of interest in a
Mitakshara coparcenary property of a male Hindu by
survivorship on the surviving members of the coparcenary. The
exception to devolution by survivorship was where the deceased
CS DJ No. 610058/16 Page No.121/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
had left surviving a female relative specified in Class I of the
Schedule or a male relative in Class I claiming through a female
relative, in which event the interest of the deceased in a
Mitakshara coparcenary property would devolve by testamentary
or intestate succession and not by survivorship. In terms of sub-
section (3) of Section 6 as amended, on a Hindu dying after the
commencement of the amending Act of 2005 his interest in the
property of a joint Hindu family governed by the Mitakshara law
will devolve by testamentary or intestate succession, as the case
may be, under the enactment and not by survivorship. As a
consequence of the substitution of Section 6, the rule of
devolution by testamentary or intestate succession of the interest
of a deceased Hindu in the property of a joint Hindu family
governed by Mitakshara law has been made the norm;
81.7. Section 8 of the HSA, 1956 provides general rules of
succession for the devolution of the property of a male Hindu
dying intestate. Section 10 provides for the distribution of the
property among heirs of Class I of the Schedule. Section 15
stipulates the general rules of succession in the case of female
Hindus dying intestate. Section 16 provides for the order of
succession and the distribution among heirs of a female Hindu;
81.8. While providing for the devolution of the interest of a
Hindu in the property of a joint Hindu family governed by
Mitakshara law, dying after the commencement of the amending
Act of 2005 by testamentary or intestate succession, Section 6(3)
lays down a legal fiction, namely, that “the coparcenary property
shall be deemed to have been divided as if a partition had taken
place”. According to the Explanation, the interest of a Hindu
Mitakshara coparcener is deemed to be the share in the property
that would have been allotted to him if a partition of the property
has taken place immediately before his death irrespective of
whether or not he is entitled to claim partition;
81.9. For the purpose of ascertaining the interest of a deceased
Hindu Mitakshara coparcener, the law mandates the assumption
CS DJ No. 610058/16 Page No.122/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
of a state of affairs immediately prior to the death of the
coparcener, namely, a partition of the coparcenary property
between the deceased and other members of the coparcenary.
Once the share of the deceased in property that would have been
allotted to him if a partition had taken place immediately before
his death is ascertained, his heirs including the children who have
been conferred with legitimacy under Section 16 of the HMA,
1955, will be entitled to their share in the property which would
have been allotted to the deceased upon the notional partition, if
it had taken place; and
81.10. The provisions of the HSA, 1956 have to be harmonized
with the mandate in Section 16(3) of the HMA, 1955 which
indicates that a child who is conferred with legitimacy under sub-
sections (1) and (2) will not be entitled to rights in or to the
property of any person other than the parents. The property of the
parent, where the parent had an interest in the property of a joint
Hindu family governed under the Mitakshara law has to be
ascertained in terms of the Explanation to sub-section (3), as
interpreted above.
181. I find that the defendants no.1(f)-(h) and the defendant
no.3 have failed to prove that the defendants no.1(f)-(h) are the
sons and daughters of the deceased defendant no.1 and the
defendant no.3. Accordingly, the issue no 7 is decided against the
defendants no.1(f)-(h).
Issue no.5
182. I shall next decide issue no.5, which is reproduced below
CS DJ No. 610058/16 Page No.123/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
for the sake of convenience:
5. Whether the property bearing No. B-7/68-I, Safdarjung
Development Area, is the self acquired property of defendant No.
3?
183. The onus of the said issue was on the defendant no.3, who
has led in evidence Ex. D3/W3/13A (OSR), which is the
allotment letter dated 3.10.1977 issued by the DDA in the name
of the defendant no.3 as an evictee of Arjun Nagar. By the said
letter dated 13.10.1977, the defendant no.3 was allotted a MIG
flat in Safdarjung Residential Scheme noting her to be an evictee
of Arjun Nagar. It notes that the specific flat would be allotted
through draw of lots held on 06.10.1977.
184. The defendant no.3 has also led in evidence letter dated
09.1.1978, Ex. D3/W3/13 (OSR) issued by the DDA which notes
that she had been allotted flat no. B-7, 68-I, SDA, New Delhi and
possession of the same would be handed over to her on
26.12.1977.
185. Further, letter dated 29.11.1977, Ex. D3/W3/12 (OSR)
issued by the DDA also records that the defendant no.3 was
CS DJ No. 610058/16 Page No.124/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
being allotted the MIG flat in SDA in lieu of house demolished
by the DDA in Arjun Nagar on 26.09.1975.
186. Hence, it is clear that the said allotment of the SDA flat to
the defendant no.3 was in lieu of her possession of the earlier
property at Arjun Nagar and not as owner of the said property.
The plaintiff has himself admitted in para no.8 of the plaint that
in the year 1969-1970 the defendant no.3 was kept at property
no.261-A, Arjun Nagar, New Delhi.
187. The plaintiff on the other hand has failed to prove that the
allotment of the SDA flat was made in the name of the defendant
no.1 originally or that the defendant no.1 held the demolished
property no. 261-A, Arjun Nagar, New Delhi as ancestral
property. The plaintiff has also failed to prove that any jewellery
of the defendant no.2 or any income from joint hindu family was
utilized to pay for the installments of the said SDA flat.
188. The defendant no.3 has also placed on record the following
receipts of payment to the DDA in her name:
CS DJ No. 610058/16 Page No.125/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
a) Receipt dated 21.11.2003 as Ex. D3/W3/1 (OSR).
b) Receipt dated 23.09.2003 as Mark A.
c) Receipts dated 09.1.2004, 07.07.2003, 09.07.2004,
30.11.2004, 17.09.2004, 18.05.2004, 18.10.2005,
09.08.2005, 17.05.2005 and 13.05.2005 as Ex. D3/W3/2
(OSR) to Ex. D3/W3/11 (OSR), which record that the
payment for the said SDA flat have been made by the
defendant no.1.
189. Accordingly, the issue no. 5 is decided in favour of the
defendant no.3 and property bearing No. B-7/68-I, Safdarjung
Development Area, is held to be the self acquired property of
defendant No. 3.
Issue no.8
190. Lastly, I shall decide issue no.8, which is reproduced
below for the sake of convenience:
8. Whether the plaintiff is entitled to partition of the properties in
suit?
191. In view of the issue no. 6 having been decided to the effect
that the properties in question were not ancestral properties, the
CS DJ No. 610058/16 Page No.126/127
Roop Chand Jayant & Ors. Vs. Ram Chander & Ors.
issue no.8 is decided against the plaintiff.
Relief
192. In view of the foregoing reasons and conclusions, the suit
of the plaintiff is dismissed with no order as to costs. Decree
sheet be drawn up accordingly. File be consigned to the record
room after due compliance. Judgment be uploaded forthwith.
Digitally signed
by JITEN
JITEN MEHRA
MEHRA Date:
2025.07.19
17:54:26 +0530
Announced in the open court (JITEN MEHRA)
on 19.07.2025 DJ-10/Central/THC
CS DJ No. 610058/16 Page No.127/127