Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : August 27, 2015
+ RFA(OS) 88/2014
SANGEETA BHAMBANI ..... Appellant
Represented by: Mr.Uttam Datt, Advocate
versus
JATINDER SARDANA & ORS ..... Respondents
Represented by: Mr.Praveen Chauhan, Advocate with
Mr.Dhruv Dwivedi and Mr.Vijay
Chauhan, Advocates for R-1
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J. (Oral)
CM No.15246/2015 & CM No.15347/2015
1. Respondent No.4 is dead and her legal heirs are proposed to be
brought on record as prayed for in CM No.15246/2015. Vide CM
No.15247/2015 delay in filing CM No.15246/2015 is prayed to be
condoned.
2. The record of the suit would evince that respondent No.4 chose not to
contest the suit, and appears to be a happy bystander.
3. The record of the suit would show that the contest was between the
appellant and respondent No.1.
4. Accordingly we declare that there is no need to bring on record the
RFA (OS) No.88/2014 Page 1 of 7
legal heirs of deceased respondent No.4 and thus would dismiss both
applications.
5. We note that the two applications are listed before the learned Joint
Registrar on October 30, 2015, which date is cancelled.
RFA (OS) No.88/2014
1. After being made to understand the law and how pleadings must be
made in a suit, learned counsel for the appellant concedes that he has ill-
drafted the suit and prays to the Court that the plaintiff/appellant be
permitted to withdraw the suit with liberty to institute a fresh suit in respect
of the subject matter of the suit, a request which is opposed by learned
counsel for respondent No.1 who was the contesting party in the suit.
2. Since we are inclined to grant permission to the appellant to withdraw
the suit, we record our reasons for so doing, and from what we have noted in
paragraph 1 above, it would be apparent that the reasons would relate to the
pleadings in the plaint filed by the appellant followed by bringing out the
sufficient grounds to allow the plaintiff to withdraw the suit with liberty to
institute a fresh suit in respect of the subject matter of the suit.
3. But before that we note that as per the impugned order dated March
26, 2014 the learned Single Judge has held the suit not to be maintainable
because it was argued before the learned Single Judge that the suit property
was ancestral and that the mother of the plaintiff would be a member of the
coparcener because of the amendment to the Hindu Succession Act in the
year 2005. The learned Single Judge has noted that the mother of the
plaintiff died on November 09, 1993 and could not therefore be a coparcener
and could not claim any share in the property as a coparcener and therefore
the plaintiff could not claim on said basis under her mother. The learned
RFA (OS) No.88/2014 Page 2 of 7
th
Single Judge has noted that as per the plaint 1/7 share in the suit property
was claimed on the mumbled jumbled pleadings that Surender Sardana had
agreed for the same and that the common ancestor of the parties,
Sh.Charanjiv Lal Sardana acquired the property in the name of his son
Surender Sardana by using ancestral funds. The learned Single Judge has
noted that the plaintiff is the daughter of the daughter of the Late
Sh.Charanjiv Lal. The learned Single Judge has noted that as per the
defence, Charanjiv Lal Sardana had executed a will on December 17, 1958,
probate whereof was obtained on July 24, 1967 in which he had detailed all
the properties which were owned by him and there was no mention in the
will of the suit property.
4. The learned Single Judge has held that there are no pleadings in the
plaint that Surender Sardana held the property for the benefit of the joint
family comprising Charanjiv Lal Sardana, his sons and his daughters; the
coparceners being Charanjiv Lal Sardana and his sons. The learned Single
Judge has held that vague pleas of property being ancestral are immaterial.
5. In a nut shell, since in the plaint it was admitted that Surender Sardana
was the registered owner of the property, the learned Single Judge has held
that the Benami Transactions (Prohibition) Act, 1988 would render the suit
not maintainable.
6. In the ill-drafted plaint it is stated by Sangeeta Bhambani that
Charanjiv Lal was blessed with five daughters named : (i) Sushila, (ii) Rajni,
(iii) Pushpa, (iv) Sushma, and (v) Nirmal. He was blessed with two sons
named : (i) Jitender, and (ii) Surender. It was pleaded that Charanjiv Lal
was the only son of Late Uttam Sardana who was a doctor and owned vast
agricultural lands, shops and houses in Pakistan which were inherited by
RFA (OS) No.88/2014 Page 3 of 7
Charanjiv Lal on the death of Uttam Sardana. Though Charanjiv Lal was an
Advocate, but he never practiced because his time was spent in managing
the vast estate left behind by his father. Migrating to India on partition, it is
pleaded that Charanjiv Lal was allotted lands in India to satisfy the claim for
the ancestral properties left behind in Pakistan and that from the said funds
he purchased a property in Karol Bagh and the suit property bearing Plot
No.94, Block No.51, Panchsheel Cooperation Housing Society, though
applied in the name of Jitender Sardana was funded by Charanjiv Lal from
the ancestral funds. To raise the construction the property at Karol Bagh
was sold. It was pleaded that Charanjiv Lal died on October 30, 1963. His
daughter Rajni i.e. the mother of the plaintiff died, on November 09, 1993.
It was pleaded that Surender Sardana died on April 05, 2011.
th
7. Without specifying as to how does the plaintiff claimed 1/7 share in
the suit property, the pleadings abruptly end making a statement that the
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plaintiff claims 1/7 share in the property.
8. Concededly Surender Sardana died issueless.
9. The ill-drafted plaint, though makes a reference to suit property being
purchased in the name of Surender Sardana with further pleading that
Charanjiv Lal made payment of the premium for the plot of land and that
Charanjiv Lal in turn acquired properties from his father in Pakistan and in
lieu thereof he was allotted land in Hisar, which he sold and used part funds
to pay the premium for the plot of land in question and purchased a house in
Karol Bagh which was later on sold and funds generated used to construct
the building on the plot of land in question, but leaves the pleadings at that.
10. Reading between the lines, the pleadings would be that since
Charanjiv Lal inherited properties left behind in Pakistan from his father,
RFA (OS) No.88/2014 Page 4 of 7
they would be ancestral properties in his hands and that he and his sons
would be coparceners. The plot of land was financed by ancestral funds and
since Surender Sardana was a coparcener the bar under the Benami
Transactions (Prohibition) Act, 1988 would not apply because of Section
4(3)(a) thereof. Concededly the legal effect of the factual pleadings has not
been stated.
11. The proper pleadings should have stated as above i.e. that Charanjiv
Lal and his family were a joint Hindu family of which he and his two sons
were coparceners. It should have been pleaded that on the death of
Charanjiv Lal on October 30, 1963, a deemed partition took place, and since
Charanjiv Lal’s wife had pre-deceased him, the joint Hindu Family
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properties were deemed partitioned with Charanjiv Lal having 1/3 share
rd
therein and his two sons having 1/3 share each therein and that Charanjiv
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Lal’s 1/3 share, being treated as his personal share would be divided
between his five daughters and two sons i.e. the mother of the plaintiff
st
would have 1/21 share therein. The pleadings ought to be that on the death
of Surender Sardana his share which would be 8/21 would devolve by
succession. There is another problem in the pleadings in the plaint Nirmala,
the daughter of Charanjiv Lal, who on the pleadings that the suit property
st
was that of the Joint Hindu Family would be entitled to 1/21 share: There is
no reference as to when did she die i.e. before or after Surender Sardana
died. Said pleadings would have resulted in Nirmala’s share being
distributed amongst her siblings. To wit : if Nirmala pre-deceased Surender
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Sardana, Surender Sardana’s share in the suit property would be 8/21 + 1/6
st
of Nirmala’s 1/21 share.
12. The ill-drafted suit, with traces of pleadings of suit property being
RFA (OS) No.88/2014 Page 5 of 7
ancestral, and percentage of share in the property based on said pleadings
not having been properly set forth, in our opinion requires it to be held that
this is a fit case where the appellant should be permitted to withdraw the suit
because litigants can only tell the facts to their lawyers and we expect the
lawyers to keep in view the law while drafting the pleadings. Regretfully, in
the instant case the lawyer has just not given a thought to the law. As
argued before the learned Single Judge, the impugned decision is sound.
But if we look at the pleadings keeping in view the law it dawns that the
plaint is most ill-drafted.
13. The Founding Fathers of the Constitution devised a justice-delivery
system in the country on the belief that lawyers would assist the Judges in
holding the scales of justice. Advocates own a two-fold duty towards
Courts, and one of which would be to be clear and scholarly in their
pleadings. The other to show reverence to the Court. If a lawyer fails in the
pleadings, but a client has a cause which emerges from the pleadings, liberty
needs to be granted to the client to withdraw the existing pleadings which ill
brings out the cause, simultaneous granting liberty to institute a fresh suit on
the same subject matter.
14. We dispose of the appeal and set aside the impugned order dated
March 26, 2014. Restoring CS (OS) No.350/2012, we permit the appellant
to withdraw the suit and grant liberty to the appellant to file a fresh suit for
partition on the same subject matter and to recompense respondent No.1 the
inconvenience caused we further direct that the pre-condition to file the
fresh suit would be the payment of cost in sum of ` 50,000/- (Rupees Fifty
Thousand only) to the respondent No.1 by the appellant within one month
from today. If the appellant were to file a fresh suit on the same subject
RFA (OS) No.88/2014 Page 6 of 7
matter the appellant would first pay ` 50,000/- (Rupees Fifty Thousand only)
as costs to respondent No.1 and in the plaint would make a reference to the
cost being paid giving particulars of the day on which the cost was paid and
the mode by which it was paid.
CM No.9156/2014
Dismissed as infructuous.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
AUGUST 27, 2015
mamta
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