Smt. Swaran Lata And Ors. Vs Shri Kulbhushan Lal And Ors.

IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SUIT FOR PARTITION

Reserved on: 18.12.2013

Pronounced on: 31.01.2014

RFA (OS) 11/2010, C.M. NO. 1950/2010

SMT. SWARAN LATA AND ORS.           ..... Appellants

Through: Sh. Suresh Singh and Sh. Rajneesh Chaudhry, Advocates.

versus

SHRI KULBHUSHAN LAL AND ORS.    .... Respondents

Through: Nemo.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT

C.M. NO. 1950/2010 (for condonation of delay)

For the reasons mentioned in the application, C.M. No. 1950/2010 is allowed.

RFA (OS) 11/2010

1.                 This is an appeal from an order of the learned Single Judge, whereby a suit for partition filed by sisters was dismissed. The orders of 19.04.2012 and 11.01.2013 reveal that the first three respondents (contesting parties in the suit) were served, despite which appearance had not been entered by them. The order of 11.01.2013 accordingly recorded that service was complete. It was in these circumstances that the appeal was heard finally and reserved for judgment. Before addressing the specifics of the properties involved in this partition suit, it is useful to record the family structure involved in this case.

2.                 The plaintiffs, three sisters filed the suit in 1990 [CS (OS) 2400/1990] against two brothers (the first two defendants/respondents) and two sisters (third and fourth defendants). A third brother, Sudarshan Lal, had died on 1st February, 1978, before the institution of the suit, as a bachelor. The family thus had consisted of five sisters and three brothers. Their father was Bakshi Ram, who died on 10th February, 1960, and their mother was Smt. Chanan Devi, who died on 3rd August, 1978. As regards Sudarshan Lal, the son of Madan Mohan Sharma, the second defendant, one Prem Prakash Sharma claimed that Lal had left a will in his favour, and that under the will so set up, any share in the property Lal had stood bequeathed to him. For this, he relied on Probate Case No. 34/1988, which he had filed before the institution of the present suit in respect of Lal’s will. Although the probate case was decided in Prem Prakash Sharma’s favour by an order dated 19th August, 2005 (the appeal against which, filed by Swaran Lata, as FAO(OS) 103/2005 was dismissed), the learned Single Judge by order dated 25th April, 2008 did not allow him (Prem Prakash Sharma) to be impleaded in the suit. However, the senior counsel for Prem Prakash Sharma was also heard by the Single Judge.

3.                 The case of the plaintiffs was that prior to the partition, the late Bakshi Ram and his family were settled in a part of Punjab that is now in Pakistan. At the time, the family was a HUF and Bakshi Ram, as karta, was running various businesses (as a contractor, and running a petrol pump) at the time. These businesses, it is claimed, were being run under the name and style of “Bakshi Ram & Sons”. It is alleged that after partition, Bakshi Ram alongwith his family shifted from Pakistan to India, and submitted his claims with the Ministry of Rehabilitation (in India) with regard to various assets and properties concerning his businesses and also houses and other property left behind by him in Pakistan. The name of the applicant was “Bakshi Ram & Sons”, through Bakshi Ram as the karta, and the address mentioned was 16/229, Joshi Road, Karol Bagh, New Delhi. Thus, the plaintiff urged that the claim was made by the late Bakshi Ram as the karta on behalf of a HUF.

4.                 As regards the properties left behind in Pakistan, the plaintiffs claimed that Bakshi Ram had purchased a factory site in the name of the firm “Bakshi Ram & Sons” sometime in the year 1930. Further, the plaintiffs state that he was the sole proprietor of a rice flour mill. The plaintiffs also claim that Bakshi Ram owned a petrol pump of the Burmah Shell Company, which he was running in Sheikhpura (which is now in Pakistan). Finally, the plaintiffs state that various business assets as well as various residential properties were acquired/built by Bakshi Ram “whether in his personal name or in the name of Bakshi Ram & Sons, a Joint Hindu Family firm …”

5.                 The suit alleged that post partition Bakshi Ram was allotted various properties in lieu of those left behind in Pakistan. First, the Burmah Shell Company allotted a petrol pump in Badarpur, Tehsil Mehrauli, Delhi to M/s. Bakshi Ram & Sons, a HUF firm, of which Bakshi Ram was karta. In addition, the plaintiffs allege that some compensation amount was also paid to Bakshi Ram, which was used by him to carry various businesses in Delhi and in connection with the improvement of properties in question. These were Plot No. 43 at Badarpur, Tehsil Mehrauli, Delhi (for a consideration of Rs. 950/-), one ‘Kutti Machine’ at Village Azadpur, Delhi, belonging to the Custodian of Evacuee Property (on a rental basis), and finally Bakshi Ram was also acting as a contractor of “rehra” stand at Farash Khana, GB Road, Delhi. Further, the plaintiffs allege that as against the amounts that Bakshi Ram was entitled to against his assessed claims, by way of compensation, a property – House No. XVI/318-323, Joshi Road, Karol Bagh, New Delhi was acquired by Bakshi Ram by adjusting a part of the compensation amount against the price of the said property. Crucially, the plaintiffs claim that the businesses etc. were run in the name of the HUF firm of Bakshi Ram & Sons, as it was being carried out earlier in Pakistan, till Bakshi Ram died on 10th February, 1960. It is claimed that Sudharshan Lal acted as the karta till his death in 1987.

6.                 The plaintiffs claim that after the purchase of these various properties (i.e. after migration from Pakistan), the family business (i.e. the Hindu Joint Family as it existed then) gradually prospered, and various other properties were acquired by the family from the funds generated. These were:

(a)              a plot bearing Khasra No. 2609/727-728, situated in Tughlakabad, Tehsil Mehrauli, Delhi, measuring 5 bighas, 1 biswa, was obtained by the family, and is being used to run a petrol pump. This plot, “as far as the plaintiffs know has been obtained by M/s. Bakshi Ram & Sons, a Joint Hindu Family firm and the Petrol Pump that is being run on the said plot also belongs to M/s. Bakshi Ram & Sons.”

(b)             a plot, No. B-43, Friends Colony, New Delhi, which was allotted by the DDA in lieu of the DDA having acquired a part of the family land. Thus, the plaintiffs allege that “this plot was allotted by the DDA in lieu of acquisition of the Joint Hindu Family land …” 

(c) a plot bearing Khasra No. 32/28/1 and 32/28/2 measuring 2 bighas, 5 biswas as also a plot No. 32/28/3 were “acquired by the Joint Hindu Family in the name of M/s Bakshi Ram & Sons” in village Badarpur, Tehsil Mehrauli, Distt. Delhi. This plot too, the plaintiffs allege, “belongs to M/s. Bakshi Ram & Sons, the Joint Hindu Family firm.” 

(d) a plot bearing Khasra No. 231, measuring 2 bighas, 13 biswas, in village Tajpaul, Tehsil Mehrauli, Distt. Delhi, “in the name of M/s. Bakshi Ram & Sons and thus this was also a Joint Hindu Family Property”, in the plaintiff’s averments. 

(e) a plot bearing Khasra No. 36/28/2 and 36/29/2 measuring 15 biswas, which the plaintiffs allege, “was also acquired by the family out of the Joint Hindu family funds in Village Badarpur, Tehsil Mehrauli, Delhi.” However, the plaintiffs further aver that out of love and affection, this plot was purchased in the name of Smt. Chanan Devi, the widow of Bakshi Ram, i.e. the mother of the parties before the Court today. 

(f) Residential house II-K/44, Lajpat Nagar, New Delhi, was again, the plaintiffs claim, “acquired out of the Joint Hindu Family Funds.”

7.                 Further, the plaintiffs claimed that apart from the family business and income (i.e. the rental income from the above properties, and the income from businesses run), the brothers of the plaintiffs, i.e. the first two defendants, “had not carried on any other business nor they had any other source of income whatsoever.” After Bakshi Ram’s death, the plaintiffs claim that Sudarshan Lal carried on various businesses, held numerous bank accounts, fixed deposits and shares of various companies, all of which, though in the name of Sudarshan Lal, actually belonged to the HUF. However, the plaintiffs stated as follows:

“10...................The plaintiffs at the moment are not aware of the entire details of the various Bank Accounts/Fixed Deposits etc. standing in the name of late Sudarshan Lal as also the various Bank Accounts and Fixed Deposits etc. in the name of Joint Hindu Family firm M/s. Bakshi Ram & Sons and other firms stated in the suit. The details in this behalf are within the special knowledge of defendants No. 1 and 2. The plaintiffs are trying to ascertain the details in his behalf and shall furnish the same as soon as the same are known to the plaintiffs or are otherwise disclosed by the defendant Nos. 1 and 2................................”

8.                 Based upon these facts alleged in the suit, the plaintiffs claimed that  as Class I heirs of Bakshi Ram and Smt. Chanan Devi, under the Hindu Succession Act, 1956 (hereafter “the HSA”), they were entitled to one- seventh equal shares (i.e. sharing between the five sisters, and two brothers, except for Sudarshan Lal, who died as a bachelor), in the HUF properties and in the properties left behind by their mother. Further, as regards Sudarshan Lal’s properties, it was argued that the plaintiffs alongwith the defendants, are his Class II legal heirs under the HSA, and thus entitled to a 1/7th share in all properties that stood in his name as well. As an alternative plea, it was argued that the properties of Sudarshan Lal were actually properties belonging to the HUF, and thus, the 1/7th share stood established on that count.

9.                 Furthermore, the plaintiffs claim that till the death of Bakshi Ram or till the death of Smt. Chanan Devi, or even till the death of Sudarshan Lal, no partition of the family properties had taken place and the properties as such continue to be joint with all the parties having their respective undivided share in the same.

10.            The first two defendants (i.e. the two brothers) filed a common written statement; the third and fourth defendants did not appear and were set down ex parte. The two brothers pleaded that: (1) the first two plaintiffs, and non- contesting appellants in the present appeal, were married in 1944 and 1951, i.e. before the HSA in 1956, and thus, as such they were not members of the HUF; (2) that when Bakshi Ram died on 10th February, 1960, subsequently, on 21st February, 1960 all the members of the HUF assembled at the Kriya ceremony and agreed to severe the HUF, and apportion the property. In this connection they made an unambiguous and definite declaration of their intention to separate. Accordingly, it was argued that the plaintiffs, being party to such agreement, were estopped from questioning the validity of the partition; (3) that the suit was time barred under Article 113, Limitation Act, 1963; (4) as regards the plaintiff’s claim over the house No. XVI/318-323, Joshi Road, Karol Bagh, New Delhi, the brothers claimed that in terms of a settlement made between the members of the family (including the plaintiffs), the plaintiffs had relinquished their right/claim over the plot under a registered document in favour of Sudarshan Lal; (5) that the petrol pump in Pakistan belonged not to the HUF but to the partnership firm comprising Bakshi Ram,Sudarshan Lal and Kulbhushan Lal; (6) similarly, that the petrol pump allotted in 1947 by M/s. Burmah Shell in Badarpur by an agreement dated 01.12.1948 was to the partnership firm (and not the HUF); (7) the existence of the kutti machine and the rehra stand was denied; (8) that at the time of the demise of Sh. Bakshi Ram, the joint family properties comprised only of the abovementioned house at Joshi Road, Karol Bagh;  plot  number  43  of  khasra  number  36/28/2  and  36/29/2  in village Badarpur, and land bearing khasra numbers 32/28/1 and 32/28/2 in village Badarpur; (9) that the Karol Bagh house was acquired as against the compensation amount payable to Bakshi Ram and his three sons (as the partnership firm) in his name, and after his death, all parties to the present case relinquished their rights in the property in favour of Sudarshan Lal by a registered deed, and further, that the property was thus mutated in favour of Sudarshan Lal in the records of the MCD and the DDA; (9) Plot No.43 (bearing Khasra No.36/28/2 & 36/29/2) at Badarpur was acquired by Bakshi Ram from Ministry of Rehabilitation against the claims. On his demise and dissolution of the HUF the said plot vested in the mother of the parties Smt. Chanan Devi. She had in or about the year 1960 filed a suit in the court of Senior Sub-Judge, Delhi with respect to the plot No.43 seeking declaration of her rights as owner and Bhumidar thereof on the statement of her three sons. A decree for declaration was granted declaring her to be the owner and Bhumidar of the said lands; the said lands were also mutated in her name in the revenue records; (10) the plot in Khasra No.32/28/1 & 32/28/2 vested in terms of the family settlement in the three sons of Bakshi Ram and also mutated in their names; (11) that on the dissolution of HUF, three brothers had agreed to pay `10,000/- to each of the sisters and which stood paid; (12) that since September, 1958 all the brothers had been residing separately; it was denied that any of the businesses were of the HUF; (13) with respect to land admeasuring 5 bighas and 1 biswas in Tuglakabad it was stated that the same had been acquired by Sudarshan Lal out of his own personal fund and by registered sale deed dated 11th June, 1960 and Bakshi Ram and Sons had nothing to do with the said land. He had leased out a part of the plot to Burmah Shell for the petrol pump and the petrol pump in the name and style of BE-AR Sales (Auto Grit) was functioning there since 1961 in partnership, between Sudarshan Lal and the Defendant No.1; subsequently Prem Prakash Sharma joined the said firm. It was denied that the petrol pump (Auto Grit) belonged to Bakshi Ram and Sons; it was further averred that the land underneath this was acquired and Sudarshan Lal had filed a writ petition in this Court challenging the said acquisition; during the pendency of the writ petition Sudarshan Lal expired and Prem Prakash Sharma was substituted in his place; (14) Sudarshan Lal had with his own monies in the year 1968 acquired the land measuring 2 bighas and 10 biswas at village Tehkhand and the sale deed thereof was in his name only and was his exclusive property; the same was acquired and in lieu thereof plot No. B-43 Friends Colony, New Delhi was allotted to Sudarshan Lal; (15) with respect to the land in Khasra No.32/28/1 & 32/28/2 in village Badarpur it was stated that though it belonged to Bakshi Ram but on his demise the lands were mutated in favour of his three sons under provisions of the Delhi Land Reforms Act; the said lands were acquired; the acquisition was also challenged by the three sons only of Bakshi Ram; (16) that there was no land bearing Khasra No.32/28/3 described by the plaintiffs; (17) land measuring 2 bighas 16 biswas in Khasra No.231, Village Tajpaul, Tehsil Mehrauli was the exclusive property of Sudarshan Lal acquired in 1957 and that in 1968 Sudarshan Lal had formed HUF in the name and style of Bakshi Ram and Sons and was its karta. (18) the house at Lajpat Nagar was in the tenancy of the second defendant since 1958; it was averred that the said house was purchased by Prem Prakash Sharma by sale deed dated 10th August, 1989; the house has since been sold; (18) BE-AR Sales was a partnership of Sudarshan Lal and the first defendant and it was carrying on business in the name and style of Auto Rest, Auto Rink and Auto Grit;  subsequently Prem Prakash Sharma too joined the said firm. The petrol pump Auto Yard was the sole proprietary concern of the second defendant since April, 1966 and it had been converted into a partnership firm of the defendant No.2 and his wife since February 1987. The existence of any firm in the name and style of Sharma and Company was denied.

11.            On 8th September, 1994, and later, on 11th December, 2001, the following issues were framed by the Court:

“1. Whether plaintiffs 1 and 2 have any subsisting right and interest in the Joint Family Property despite their marriages in 1994 (1944) and 1951 respectively? OPP

2.     Whether plaintiffs have a right to sue for partition of Joint Family Property?

3.   Whether the suit is barred by time under Article 113 of the Limitation Act? OPD1D2

4.   Whether there was severance of status of Joint Hindu Family of Bakshi Ram & Sons on 21.2.60? OPD1D2

5.   What properties were held by Bakshi Ram & Sons at the time of death of Sh. Bakshi Ram on 10.2.60 OPP

6.   What was the share of Bakshi Ram in the Joint Family Property at the time of his death? OPP

7.     To what share of the share of late Bakshi Ram in the Joint Family Property is each plaintiff entitled? OPP

8.   Whether the plaintiffs who alongwith defendant No.4 relinquished their right/claim over house No.XVI/318 and 323, Joshi Road, Karol Bagh, New Delhi, in favour of their brother Sudarshan Lal under registered documents can still lay claim over that house? OPP

9.     Whether the plaintiffs can claim any share in lands bearing khasra Nos.32/28/1 and 32/28/2 which were mutated on the death of Bakshi Ram in the name of his three sons under the Delhi Land Reforms Act? OPP

10.  Whether the plaintiffs can claim any share in plot No.43 bearing khasra No.36/28/2 and 36/29/2 situated in village Badarpur, Delhi, which was mutated in the name of their mother Chanan Devi on 18.2.63, after she had been declared as Bhumidar? OPP

11.  Whether the plaintiffs can claim a share in any other property which was purchased or acquired by defendants 1 and 2 out of their own funds after the death of their father Bakshi Ram? OPP
11A. Whether the suit is properly valued for the purpose of court fee and jurisdiction? If not its effect?
12.  Relief.”
12.            It would be useful, at this juncture to tabulate the various properties that are sought to be partitioned by the appellant.

Property 
Details 
Petrol Pump

Badarpur, Tehsil Mehrauli
One Kutti Machine
Azadpur

Rehra Stand

FarashKhana, GB Road, Delhi
Plot measuring 5 bigha, 1 biswas

Village Tughlakabad, Tehsil Mehrauli
Plot No. B-43
Friends Colony, New Delhi

Plots of land bearing khasra numbers 36/28/1-3 
Village Badarpur, Tehsil Mehrauli
Plot measuring 15 bighas, bearing khasra number 6/28/2and 29/2 
Village Badarpur, Tehsil Mehrauli

House No. II-K/44 Lajpat Nagar, New Delhi

Businesses in the name of a) Auto Grit in Tughlakabad, Tehsil Mehrauli; b) Auto Rink at Badarpur, Tehsil Mehrauli, c) Auto Rest at Badarpur, d) Auto Yard on Mathura Road, e) BE AR Sales at Badarpur, f) a business in the name of Sharma and Company in Badarpur.

Various other bank accounts, fixed deposits and jewellery, though details of these items have not been provided in the plaint, or the appeal memorandum.

House No. 16/229

Joshi Road, Karol Bagh, New Delhi Plot of land bearing number 231 Village Tejpaul, Tehsil Mehrauli, Delhi

13.            The learned Single Judge considered the evidence on record, and held that the amendment to Section 6 of the Hindu Succession Act, 1956 in 2005 (that made female members of the HUF members of the coparcenary as well) would not be applicable as the amendment was, in view of the dictum in Mukesh v. Bharat Singh, 149 (2008) DLT 114, not retrospective. The learned Single Judge consequently held that as the suit was instituted before the amendment, and further, as the demise of Bakshi Ram was 35 years prior to the amendment, the plaintiffs – as female members of the HUF – would have no right as co-parcenors. Furthermore, the learned Single Judge held that there was a deemed partition on the date of the death of Bakshi Ram, and the shares in the coparcenary property would be decided according to that event. However, the plaintiffs would, the learned Single Judge held, be entitled to a share by way of succession as Class I heirs under Section 8 of the HSA of late Bakshi Ram’s share in the coparcenary property. Thus, on this latter ground, it was held that the plaintiffs did have the right to sue, but not as coparcenors. On the question of limitation, the learned Single Judge held the first two defendants’ plea –that the suit was time-barred because partition took place on the demise of Bakshi Ram in 1960 – was incorrect. It was held that this partition was not proved. On the contrary, the first and second defendants admitted existence of the HUF in the partnership deed of 1st April, 1968 and in WP(C) No. 1921/1986. With regard to the various business allegedly run by the HUF, the learned Single Judge noted that it was proved, by way of the partnership deed produced as Ex.P-20, that they were taken out of the HUF with effect from 01.04.1968, nearly 22 years prior to institution of the suit, and carried on in partnership between the male members of the family. With respect to claim to partition and rendition of accounts of these businesses were held to be time-barred.

14.            On the question of which properties were part of the HUF at the time of the death of Bakshi Ram, i.e. on 10.02.1960, the learned Single Judge, based on admissions of the first and second defendants in the form of the partnership deed dated 1st April, 1968, held that the following properties were held jointly: a) the house at Joshi Road, Karol Bagh, b) Plot No. 43 comprising khasra number 36/28/2 and 36/29/2 at Village Badarpur, Delhi, c)  plot  of  land  bearing  khasra  number  32/28/1  and  32/28/2  at  village Badarpur, Delhi, d) plot of land bearing number 231, village Tejpaul, Tehsil Mehrauli, Delhi and finally, e) a plot of land in Tughlakabad. Of these properties, Bakshi Ram’s 1/5th share (the entire share being divided between the five members of the family who would share in the coparcenary, i.e. him, his wife, and three sons) would devolve upon the eight children and late Bakshi Ram’s widow. Thus, the learned Single Judge held that each of the plaintiffs would be entitled to a 1/8th share of the 1/5th share of late Bakshi Ram. However, with respect to the house at Joshi Road, Karol Bagh, the Single Judge held that the plaintiffs had, by way of a registered relinquishment deed (which was admitted by the plaintiffs), surrendered any claim over that property to Sudarshan Lal. Further, with respect to Plot No. 43 comprising khasra number 36/28/2 and 36/29/2 at Village Badarpur, Delhi, the Single Judge held that it was admitted and established that the property stand mutated in the name of the mother, Smt. Chanan Devi, as the bhumidar and thus, the provisions of Section 51 of the Delhi Land Reforms Act, 1954 would apply, despite the fact that the land may have been urbanized. Accordingly, the learned Single Judge held that under Section 51, only male members of the family would be entitled to the land, and the plaintiffs would be excluded from any share. Thus, in conclusion, the learned Single Judge held that the only properties in which the plaintiffs could have a share are those which were admitted in the partnership deed dated 1st April, 1968 minus those over which the claim was relinquished, or that were regulated by the Delhi Land Reforms Act. This, the learned Single Judge noted, left three properties in which the plaintiffs had a share, i.e. a) plot of land bearing khasra number 32/28/1 and 32/28/2 at village Badarpur, Delhi, b) plot of land bearing number 231, village Tejpaul, Tehsil Mehrauli, Delhi and finally, c) a plot of land in Tughlakabad. However, the learned Single Judge held that Section 185 of the Land Reform Act bars the jurisdiction of civil courts with respect to properties governed by the Act, irrespective of whether the lands were mutated in favour of the HUF or any individual family member. Accordingly, the learned Single Judge held that none of the three properties could be partitioned in this suit, given the bar under Section 185.

15.            Impugning this order and judgment of the learned Single Judge as erroneous, counsel for the third plaintiff, urged that the finding that the properties in question were coparcenary properties, and not self-acquired properties and regulated by Section 8, HSA was incorrect. Learned counsel argued that there is no basis for holding that the properties are coparcenary, since no proof of their ancestral nature was on record. Further, learned counsel questioned the validity of the relinquishment deed in favour of Sudarshan Lal, urging that there is no citation that the executant signed in the presence of the attesting witnesses and the attesting witnesses signed in the presence of the executant, which is a requirement under law. Next, learned counsel argued that the learned Single Judge did not partition the 1/5th share of the mother, Chanan Devi, without providing any reasoning in the judgment, despite admitting that share. Finally, learned counsel argued that the learned Single Judge fell into error in holding that Section 6, HSA as amended in 2005 was inapplicable, as no partition took place before the institution of the suit, or till the date of the amendment. Counsel relied on proviso to Section 6(1) as well as Section 6(5) and argued that once the statute spelt out the conditions when the legislature had specifically provided as to what class of cases were excluded from the amendment, there was no question of the Single Judge holding that the appellant and other daughter’s share in the property was confined to the father’s 1/5th share, either on the basis of notional partition, or on the understanding that a division took place upon the filing of the suit. In other words, as to what categories of partition are deemed to have concluded and become final having been expressly provided, the Court could not have denied the share of the daughters, which fell to them upon the enactment and coming into force of the 2005 amendment. Accordingly, learned counsel argued that since the HUF was intact as on the date of coming in force of the amendment- since no partition, much less a partition arising out of a final decree had been made, the finding of the learned Single Judge that a notional partition took place on the demise of Bakshi Ram and that it crystallized the rights of the first two defendants was contrary to the HSA.

16.            Learned counsel also argued that the impugned judgment is unsustainable because several properties had been urbanized on account of notifications issued under Section 507(a) of the Delhi Municipal Corporation Act, 1957. It was submitted that on account of this development, the provisions of Delhi Reforms Act would not apply. Counsel relied on the decision of a Division Bench of this Court, in Smt. Indu Khorana v. Gram Sabha and Ors.,MANU/DE/0969/2010.Analysis and Findings

17.            Four questions arise for the consideration of the Court in this case: first, whether the various properties in question were coparcenary properties to begin with, or self-acquired properties of Bakshi Ram; secondly, whether the properties in question are to be deemed to be partitioned as on the date of the death of Bakshi Ram, or whether they are to be partitioned as on a later date; thirdly, whether the 2005 amendment to Section 6 is operative in this case; consequently, what are the shares of the parties; fourthly, whether any of the properties are governed by the succession rules under the Delhi Land Reforms Act, and thus, beyond the subject-matter jurisdiction of this Court.

18.            On the first question, the learned Single Judge proceeded on the finding that the properties were coparcenary properties. The plaintiff’s case itself is that Bakshi Ram alongwith his family shifted from Pakistan to India, and submitted his claims with the Ministry of Rehabilitation in India with regard to various assets and properties concerning his businesses, houses and other property left behind by him in Pakistan. In this application, the name of the applicant was “Bakshi Ram & Sons”, through Bakshi Ram as the karta, and the address mentioned was 16/229 Joshi Road, Karol Bagh, New Delhi. Indeed, after migration, the plaint alleges that Bakshi Ram was allotted various properties in lieu of those left behind in Pakistan, thus also constituting joint family property. Indeed, it is undisputed that after the purchase of these various properties (i.e. after migration from Pakistan, and compensation paid by the government), the family business (i.e. the Hindu Joint Family as it existed then) gradually prospered, and various other properties were acquired by the family from the funds generated. These were: (a) a plot bearing Khasra No. 2609/727-728, situated in Tughlakabad, Tehsil Mehrauli, Delhi, measuring 5 bighas, 1 biswa, was obtained by the family, and is being used to run a petrol pump. This plot, “as far as the plaintiffs know has been obtained by M/s. Bakshi Ram & Sons, a Joint Hindu Family firm and the Petrol Pump that is being run on the said plot also belongs to M/s. Bakshi Ram & Sons.” (b) a plot, No. B-43, Friends Colony, New Delhi, which was allotted by the DDA in lieu of the DDA having acquired a part of the family land. Thus, the plaintiffs allege that “this plot was allotted by the DDA in lieu of acquisition of the Joint Hindu Family land …” (c) a plot bearing Khasra No. 32/28/1 and 32/28/2 measuring 2 bighas, 5 biswas as also a plot No. 32/28/3 were “acquired by the Joint Hindu Family in the name of M/s Bakshi Ram & Sons” in village Badarpur, Tehsil Mehrauli, Distt. Delhi. This plot too, the plaintiffs allege, “belongs to M/s. Bakshi Ram & Sons, the Joint Hindu Family firm.” (d) a plot bearing Khasra No. 231, measuring 2 bighas, 13 biswas, in village Tajpul, Tehsil Mehrauli, Distt. Delhi, “in the name of M/s. Bakshi Ram & Sons and thus this was also a Joint Hindu Family Property”, in the plaintiff’s averments. (e) a plot bearing Khasra No. 36/28/2 and 36/29/2 measuring 15 biswas, which the plaintiffs allege, “was also acquired by the family out of the Joint Hindu family funds in Village Badarpur, Tehrul Mehrauli, Delhi.”

(f) Residential house II-K/44, Lajpat Nagar, New Delhi, was again, the plaintiff’s claim, “acquired out of the Joint Hindu Family Funds.” Given these averments in the plaint, the Court does not find any reason to interfere with the finding of the learned Single Judge that the properties were not self- acquired properties of Bakshi Ram, but rather, joint family properties at the time.

19.            On the second question, the learned Single Judge held that “there is deemed to be a partition of the said HUF at the moment of the demise of Bakshi Ram…” and thus, the shares are divided at that time itself. Under the HSA, on the death of a member of coparcenary, neither the coparcenary nor the HUF is broken. Prior to the 2005 amendment, the coparcenary property continued to remain vested in the remaining coparceners by survivorship, i.e. the remaining surviving coparceners (i.e. male members of the family) hold the property jointly. As Mayne’s Hindu Law and Usage records:

“The right of male members, which arise by birth are only ascertained on partition; for, no individual member of a family, whist it remains undivided, can predicate of the joint undivided property that he has any definite share. The interest of the member in the undivided property is not individual property but is a fluctuating interest liable to be diminished by births or increased by deaths in the family.” (p. 667, 16thedn., Bharat Law House, 2003) (emphasis supplied)

20.            Accordingly, the mere death of a family member does not lead to a division of the coparcenary interest, but rather, a revision of it amongst the remaining coparcenors. This revision of the coparcenary interest was, in 1960, when Bakshi Ram died, regulated by the un-amended Section 6 of the HSA, which read as follows:

“When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: PROVIDED that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I: For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

21.            Therefore, in the case of the death of a male relative, without a female Class I heir, no question of a deemed partition arises, and the rule of survivorship was to operate unhindered. However, as in this case, since Bakshi Ram died leaving behind his wife and five daughters, all Class I heirs, the proviso would be applicable, and the Court must conduct a deemed partition to ascertain the interest of the deceased, Bakshi Ram, in the coparcenary property. This exercise does not, however, translate into an actual partition between the family, nor does it affect the continuity of the coparcenary amongst the remaining male members of the family. Rather, in terms of the proviso, the share of the deceased, had a partition taken place, is to be divided as per Section 8 of the HSA, i.e. by succession. The effect of the deemed partition, thus, is limited to ascertaining the share of the deceased, which is then claimed by his Class I heirs, rather than to claim that a partition with respect to the entire coparcenary occurs, which is the import of the order and judgment of the learned Single Judge. While traditional Hindu law did not require such a deemed partition, and the coparcenary property would remain, as Mayne explains above, fluctuating within the remaining coparceners, there is by way of the proviso to the unamended Section 6, a clear statutory departure from this method of division of the property. However, the proviso is limited, in that although the share of the deceased is removed from the coparcenary and vested as an absolute share in the female relatives by way of Section 14 of the HSA, the remaining share of the coparcenary property remains intact, in the same state of jointness as it existed before and subject to the same rules of fluctuating interest. Accordingly, the finding of the learned Single Judge that there was a deemed partition at the time of the death of Bakshi Ram is undoubtedly correct, this does not mean that the shares in the coparcenary property for this suit would be decided according to that event or that the shares would have crystallized and become unalterable. Rather, the coparcenary continued, and the extent of shares would be decided at the time of the actual partition, either through a registered deed of partition or a decree of this Court, as explained below.

22.            The third question that arises before this Court is whether the 2005 amendment to Section 6 of the HSA is operative in this case. Before entering this discussion, it is useful to quote the amendment Section 6 in its relevant part:

“6. Devolution of interest in coparcenary property

(1)   On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2)   Any property to which a female Hindu becomes entitled by virtue of sub- section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3)    Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and (c) the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.”

23.            The present suit was instituted before the 2005 amendment to Section 6, and the death of Bakshi Ram was even before. The learned Single Judge concluded that the 2005 amendment was not retrospective, relying of the decision of this Court in Bharat Singh (supra). In Bharat Singh, a Single Judge of this Court held that:
“the Amending Act of 2005 cannot be read retrospectively as the Amending Act has not been given a retrospective operation. Meaning thereby, successions which had taken place prior to the promulgation of the Amendment Act of 2005 cannot be disturbed.”

24.            This position, however, it has to be considered as qualified in view of the proviso to Section 6(1) and Section 6(5). The proviso to Section 6(1) records:

“that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.”

25.            Equally, Section 6(5) notes that “Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.”

The 2005 amending act, thus, is unambiguous, that no past partition or testamentary disposition of property is to be affected or reopened, in order to include the newly created shares of female members of the HUF in the coparcenary. The intention of Parliament was not to create chaos by reopening previous family settlement, but rather, to indicate that for all future actions, the rules of succession, and not survivorship, would operate in default, and further, that female members would be entitled to share just as their male counterparts. Equally, however, the amending act clarifies what is meant by ‘partition’ in terms of Section 6, i.e. “any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.” Accordingly, only those partitions made by the execution of a duly registered partition deed or a partition effected by a decree of a Court, i.e. partitions recognized by Section 6 as valid, which have occurred before the cut-off date identified, are saved from the operation of the amended Section 6, which would, if operative, require a redistribution of shares within the HUF. Having defined the expression ‘partition’ in Section 6, Parliament clarified which partitions are left unaffected by the amendment, and those that are susceptible to this change in the statute, giving the Courts clear and unambiguous direction in this regard. Thus, if a partition, as envisaged under the explanation to Section 6(5) occurred before 20.12.2004, then only may the Courts ignore the amended Section 6.

26.            Crucially, since the rights and shares of the parties are decided as on the date of partition, it is important to determine the date of partition. First, as discussed above, the notion that a partition occurs as on the date of the death of a male member, and shares crystallize into vested rights at  that point in time, as held by the learned Single Judge, is not the correct approach. That event (i.e. the death) only determines how that person’s share will be divided amongst the family members (either by survivorship or by succession), rather than effecting any broad-based changes in the family holdings or effecting a partition inter se that would hold against subsequent changes in the family composition or changes in the law. Secondly, neither is the proposition that the shares are defined at the time of filing of the suit for partition correct. Rather, the HUF, and specifically, the coparcenary, continues even after the filing of the suit. The filing of a suit by itself does not mean that a partition has taken place, until a decree of Court effects partition, or a registered deed of partition is signed inter se the parties. Accordingly, the death or birth of family members during the pendency of a suit quite obviously will affect the shares in partition. Similarly, any change in law during the pendency of the suit, as for example is the case with Section 6 of the HSA, would affect the ultimate shares of the parties. A contrary conclusion would not only fly in the face of the definition of ‘partition’ in Section 6(5), but would also mean, for example, that no partition suit can be withdrawn after it is filed, a proposition which has been rejected on various occasions.

27.            Indeed, this question has been considered by the Supreme Court in Ganduri Koteshwaramma and Anr. v. Chakiri Yanadi and Anr., 2011 (12) SCR 968. There, a suit for family partition was filed prior to the 2005 amendment, and moreover, two preliminary decrees were passed by the  Trial Court on 19.03.1999 and 27.09.2003, indicating the shares of the parties. Accordingly, the question before the Supreme Court was:

“In light of a clear provision contained in the Explanation appended to Sub- section (5) of Section 6, for determining the non-applicability of the Section, what is relevant is to find out whether the partition has been effected before December 20, 2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19, 1999 and amended on September 27, 2003 deprives the Appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed.”

28.            In answering that question, Court held that neither the filing of the suit nor a preliminary decree constitutes a partition within the meaning of the amended Section 6. Thus, the newly created rights would be available to the parties. Specifically, the Court noted:

“16. The legal position is settled that partition of a Joint Hindu family can  be effected by various modes, inter-alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the court. In the present case, admittedly, the partition has not been effected before  December 20, 2004 either by a registered instrument of partition or by a decree of the court. The only stage that has reached in the suit for partition filed by the Respondent No. 1 is the determination of shares vide preliminary decree dated March 19, 1999 which came to be amended on September 27, 2003 and the receipt of the report of the Commissioner. 17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation.”

29.            Earlier, in S. Sai Reddy v. S. Narayana Reddy and Ors., (1991) 3 SCC 647, the question before the Supreme Court was whether the insertion of Section 29A (by a State amendment to the HSA) meant that the unmarried daughters in the HUF would be entitled to equal shares vis-à-vis their brothers, after the preliminary decree of the Trial Court had been made, and the appeal against it had been dismissed by the High Court. The Trial Court rejected the claim by observing that with the dismissal of the appeal by the High Court, the preliminary decree had become final and the sisters was not entitled to indirectly challenge the same. The High Court reversed this decision, and in concurring, the Supreme Court held as follows:

“... The crucial question, however, is as to when a partition can be said to have been effectedfor the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its strata's, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act.”

30.            The Supreme Court therefore, held that rights created in favour of daughters by the 1956 Act would be operative, even though the Trial Court had made a preliminary decree before the passage of the Act, as the final rights are determined, and the partition effected, only through a final decree. The rationale behind the specific definition of ‘partition’ – as is clear from the above quote – is that only such partition that results in an irreversible situation should be considered as such. In all other cases, given the beneficial purpose of Section 29A – and in this, of the amended Section 6 – rights created in favour of Hindu women ought to be given effect to. Neither the filing of a partition suit, nor an oral statement by a member of the HUF, and certainly not a deemed partition (created only for a limited effect to determine the rights of the deceased only) create any such irreversible situation.

31.            This question also came before the Supreme Court recently in Prema v. Nanje Gowda and Ors., 2011 (6) SCALE 28. In that case, a male member of the family had instituted a suit for partition in 1989, which was decreed in 1992. The female heir’s appeal against the preliminary decree to the High Court was dismissed in 1999. Meanwhile, the plaintiff had instituted final decree proceedings in 1999, in which the defendant (female heir) filed an application seeking for an increased share in the property given the amendment to Section 6A, HSA in Karnataka in 1994, i.e. after the institution of the suit and preliminary decree. The Trial Court rejected the application on the ground that the effect of Section 6A was not retrospective. The High Court agreed with the Trial Court, but the decision was overturned by the Supreme Court. Placing reliance on the decision in Sai Reddy (supra), the Court overturned the concurrent findings in the following terms: “Therefore, the proceedings of the suit instituted by Respondent No. 1 cannot be treated to have become final so far as the actual partition of the joint family properties is concerned and in view of the law laid down in Phoolchand v. GopalLal (supra) and S. Sai Reddy v. S. Narayana Reddy (supra), it was open to the Appellant to claim enhancement of her share in the joint family properties because she had not married till the enforcement of the Karnataka Act No. 23 of 1994. Section 6A of the Karnataka Act No. 23 of 1994 is identical to Section 29A of the Andhra Pradesh Act. Therefore, there is no reason why ratio of the judgment in S. Sai Reddy v. S. Narayana Reddy (supra) should not be applied for deciding the Appellant's claim for grant of share at par with male members of the joint family …

14. We may add that by virtue of the preliminary decree passed by the trial Court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court ceased with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order.” (emphasis supplied)

32.            It is clear from the decisions in Sai Reddy (supra), Ganduri Koteshwaramma (supra) and Prema (supra) that a partition of the Hindu Joint Family – that crystallizes each member’s interest, and thus makes the interests immune to further changes in the law – can only take place in the manner prescribed by the HSA. A deemed partition under the proviso to Section 6, HSA is not an actual partition that crystallizes the interest of all members of the HUF, but only a legal construction introduced by the legislature to determine how the interests of the deceased would devolve upon his heirs if a Class I female relative is alive. The purpose of this fiction of deemed partition (as opposed to following the simple rule of survivorship otherwise) is that Class I female heirs also receive a share in the coparcenary property of the deceased male, as they would otherwise be excluded (not being coparcenors themselves, pre the 2005 Amendment). To argue that such deemed partition crystallizes the interest of the daughters finally, and that any rights accruing to them at a later stage which grant an interest in the coparcenary property are unenforceable, is contrary to the terms and the spirit of the proviso to Section 6 as it existed before the 2005 Amendment and the letter of the amendment itself. Sai Reddy (supra), Prema (supra) and Ganduri Koteshwaramma (supra) have all consistently held that the mere severance in status, sought to be brought about by the institution of a partition suit, does not result in immutable shares. These decisions also took note of Phoolchand & Anr v. Gopal Lal AIR 1967 SC 1470 and even an older decision (of the Privy Council) in Jadunath Roy and Ors. v. Parameswar Mullick and Ors., AIR 1940 PC 11, where it was held that even after a preliminary decree in a partition suit is made, the Court is not only powerless, but has the duty to reflect later developments, which could necessitate re-adjustment of shares (of the parties) on account of fluctuation in the coparcenary or the joint family.

33.            From another and more fundamental perspective, if the fluctuation of interests continued between the male coparcenors (the brothers) – after the death of Bakshi Ram in 1960, and a division of his interest to his sons and daughters – there appears no reason why the daughter’s interest should be foreclosed. They continued to remain members of the HUF (though not coparcenars), and thus entitled to avail of any rights that accrued in their favour as female members of the family, specifically the 2005 amendment in this case. In this case, till date no final decree has been passed, and neither has any registered partition deed been placed on record or relied upon by any of the parties. Accordingly, the amended Section 6 of the HSA is applicable. The reasoning and findings of the learned Single Judge on this aspect, therefore, cannot be sustained. Similarly, the reasoning and judgment in Bharat Singh (of a learned Single Judge) is held to be no longer good law, in view of Prema (supr) and Ganduri Koteshwaramma (supra). The said judgment is accordingly overruled.

34.            In view of the above discussion, the Court must now determine the shares of the parties to the various properties in question. Before the addressing the sequence of events beginning from the death of Bakshi Ram, it is essential to recollect that Sudarshan Lal died issueless, without any female Class I heirs, and thus, on his demise, the rule of survivorship under the unamended Section 6 applied, and the coparcenary property was redistributed between the remaining coparcenors, his father Bakshi Ram and two brothers. Subsequently, on the death of Bakshi Ram in 1960, as he was survived by his widow, and five daughters (Class I heirs under the Schedule to the HSA), the proviso to the unamended Section 6, as it was in force at  the time, applied. Accordingly, if a deemed partition were to take place, Bakshi Ram, his two living sons, Kulbhushan Lal, and Madan Mohan Sharma would each get a 1/3rd share in the coparcenary property. Given the death of Bakshi Ram, and the operation of Section 3 of the Hindu Women’s Right to Property Act, 1937 (read along with Section 14, HSA, which makes the life estate granted by the 1937 Act an absolute interest), Bakshi Ram, the two sons and Chanan Devi would have each acquired a 1/4th share. Bakshi Ram’s 1/4th share, then, in terms of the proviso, read with Section 8, devolve upon to his class I heirs equally in 8 parts, i.e. his wife, and 7 living children. Thus, the 7 living children received a 1/32 share, and Chaman Devi received a 9/32 share (i.e. 1/4 plus 1/32). Of the remaining 1/2 of the coparcenary share left undivided after Bakshi Ram’s death, the 2 living male members shared it equally, i.e. 1/4. Subsequently, as per Section 15(1), HSA, on Chanan Devi’s death, her 9/32 share devolved upon her 7 living children in equal proportions, i.e. each held a 9/224 share. Then, with the passage of the 2005 amendment, the 5 daughters each acquired a share in the coparcenary, along with the 2 male members. As noted above, the remaining share in the coparcenary was 1/2, and thus, each of the 7 members hold 1/14 as coparcenors, which by virtue of this suit, is now sought to be divided. In sum, the shares of the parties are as follows: 1/32 share each as succession from the death of Bakshi Ram, 9/224 share each as succession from Chanan Devi, and 1/14 each as coparcenors. Thus, the share of each of the 7 children is 1/32 plus 9/224 plus 1/14, which equals 1/7. In other words, each of the 7 persons has an equal share in the coparcenary properties.

35.           At this juncture, the Court must also consider which the properties alleged to be part of the HUF by the appellant herein are indeed so. The appellant has claimed properties to be part of the HUF, as shown in the table above. The documents concerning compensation paid by the Ministry of Rehabilitation after partition indicate that a HUF was in existence at that time. Further, the partnership deed dated 1st April, 1968 and the averments in WP(C) 1921/1986 both contradict the defendants’ claim that there was no HUF. Indeed, no evidence was produced to demonstrate a division of the HUF or a partition of the properties at any time subsequently either. However, as the Supreme Court noted in D.S. Lakshmaiah and Anr.v. L. Balasubramanyam and Anr., 2003 (7) SCALE 1:

“9.............................Proof of the existence of a joint family does not load to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact...............”

The plaintiffs in the suit, and the appellant herein, have not discharged this burden with regard to any of the properties, other than give properties which were, by admission of the defendants, considered to be part of the HUF: (a) a plot bearing Khasra No. 2609/727-728, situated in Tughlakabad, Tehsil Mehrauli, Delhi, measuring 5 bighas, 1 biswa, b) a plot bearing Khasra No. 32/28/1 and 32/28/2 measuring 2 bighas, 5 biswas, c) a plot bearing Khasra No. 231, measuring 2 bighas, 13 biswas, in village Tajpul, Tehsil Mehrauli, Distt. Delhi, d) a plot bearing Khasra No. 36/28/2 and 36/29/2 measuring 15 biswas; e) a house at Joshi Road, Karol Bagh. Accordingly, this Court finds no reason to interfere with this finding of the learned Single Judge. However, of these 5 properties, rights to the house at Joshi Road were held to have relinquished in favour of Sudarshan Lal, and plots bearing Khasra No. 32/28/1 and 32/28/2 were held to be governed by rules of succession under Section 51 of the Delhi Land Reforms Act, which provides only for succession to the male members of the family, thus excluding the appellant herein. Finally, as regards the remaining properties, the learned Single Judge held that since Section 185 of the Land Reforms Act bars the jurisdiction of civil courts in respect of properties regulated by that act, no decree could be granted.

36.        As regards the relinquishment of the Karol Bagh house, the appellant, during the course of trial, admitted the certified copy of the relinquishment deed executed by her and by the fourth defendant with respect to share in the house at Joshi Road in favour of Sudarshan Lal. Although it was stated that this document was supposed to be a power of attorney, and not a relinquishment deed, no plea of fraud or coercion so as to vitiate the registered document has been put forth, and thus, the Court finds no reason to interfere with this finding of the learned Single Judge.

37.            Finally, this Court must consider whether the properties noted above can be partitioned in light of the provisions of Section 185 of the Delhi Land Reforms Act, which bars the jurisdiction of civil courts in respect of matters pertaining to properties regulated by the Act:

“185. Cognizance of suits, etc, under this Act.- (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure,1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof”, Further, Section 51is relevant insofar as it provides a distinct line of succession for properties governed by the Act, as opposed to the rules specified in the HSA.

38.       With respect to the finding of issue of whether the plots bearing Khasra No. 32/28/1 and 32/28/2 are to be considered under Section 51 of the Land Reforms Act or under the HSA, and whether the remaining three properties are similarly to be dealt with under the Delhi Land Reforms Act, this Court notices that all four properties are located in Mehrauli, Tughlakabad and Badarpur. All these areas have been notified as “urbanized villages” that cease to be considered rural areas, by the Municipal Corporation of Delhi (“MCD”)under notification under Section 507 of the Delhi Municipal Corporation Act, 1957, by way of notifications F.9(2)/66/Law/Corpn dated 28.05.1966 (Badarpur and Tughlakabad) and 13.06.1962 (Mehrauli). The learned Single Judge held that even if this were the case, properties in these areas would continue to be regulated by the Delhi Land Reforms Act. The question that arises, thus, is whether a land, irrespective of the fact that is it in an urban or a rural area as determined by the MCD continues to be agricultural land and thus, subject to the provisions of the Delhi Land Reforms Act.

39.       This matter has been previously considered by this Court. A learned Single Judge in Trikha Ram v. Sahib Ram, 69 (1997) DLT 749, held that where an area is urbanized under a notification under Section 507 of the Delhi Municipal Corporation Act, 1957, the provisions of the Delhi Land Reforms Act would cease to apply. This decision was followed by another Single Judge in Madho Prasad v. Shri Ram Kishan and Ors.,2001 (7) AD (Delhi) 72. However, given a contrary opinion in WP(C) No. 4143/2003, dated 25.08.2004, the matter was referred to a Division Bench of this Court, in a decision reported as Smt. Indu Khorana v. Gram Sabha and Ors.,MANU/DE/0969/2010, where the reference was categorically answered in the following terms:

“11. We thus hold that once rural area is urbanized by issuance of notification under Section 507(a) of the Delhi Municipal Corporation Act, 1957, provisions of Delhi Reforms Act will cease to apply. The reference stands answered accordingly.”

40.          That decision was subsequently sought to be impugned and referred to a larger bench in Narain Singh and Anr. v. Financial Commissionerand Ors., in LPA No. 591/2008, decision dated 22.11.2012, where the Division Bench of this Court confirmed the view in Indu Khorana (supra), holding that “the very purport of a Notification under Section 507(a) of the DMC Act is to convert the land from agricultural to urban.” In view of these consistent findings, it is clear that the effect of the notification under Section 507 in this case were to remove the four properties from the purview of the Delhi Land Reforms Act as the subject-matter of the Act is rural agricultural properties, rather than urban lands. Accordingly, this finding of the learned Single Judge that the four properties in question were not to devolve upon the appellant here in the share ratio above specified is liable to be set aside.

41.        In view of the above discussion, the findings and judgment of the learned Single Judge are hereby set aside. The suit is remitted for further proceedings to carry out partition of the properties, through metes and bounds, in accordance with law. The suit shall be listed before the concerned Judge in accordance with roster allocation, who shall, after issuing notice to the parties, proceed further in the matter. The appeal is allowed in the above terms. There shall be no order as to costs.