Sh Saurabh Sharma v. Smt Om Wati and Others

RAJIV SAHAI ENDLAW, J. MAY 25, 2018 "bs"/pp..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 25th May, 2018 [ + CS(OS) 430/2016 & IAs No.10391/2016 & 11079/2016 (both u/O XXXIX R-1&2 CPC) SAURABH SHARMA .... Plaintiff Through: Ms. Neha Garg, Adv. Versus OM WATI & ORS. …...Defendants Through: Mr. N.K. Goyal, Adv. for D-1 to 4. Mr. Amit Gupta, Adv. for D-5&6. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit for partition of property No.500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi, claiming 1/16th share therein, pleading (i) that the paternal grandfather of the plaintiff namely Sunder Lal Sharma was taken in adoption by his aunt (chachi) namely Basanti Devi as she had no issue from her marriage; Basanti Devi thus became the adoptive mother of Sunder Lal Sharma; (ii) that Basanti Devi in the year 1966 executed a General Power of Attorney (GPA) in favour of Sunder Lal Sharma in respect of all her properties; (iii) that Basanti Devi died in the year 1985-1986 and Sunder Lal Sharma, paternal grandfather of the plaintiff, became the owner of all the properties of his adoptive mother Basanti Devi; (iv) that Sunder Lal Sharma, paternal grandfather of the plaintiff, died on 20th December, 1998, leaving his widow defendant No.1 Om Wati, defendants No.2&3 Ashok Sharma and Gopal Sharma as his sons, defendant No.4 Prem Lata as his daughter, plaintiff Saurabh Sharma as his grandson and the defendants No.5&6 Deepa Sharma and Roma Sharma as his granddaughters; (v) that the plaintiff was born to defendant No.2 Ashok Sharma on 7th April, 1990 i.e. prior to the demise on 20th December, 1998 of Sunder Lal Sharma; (vi) that the aforesaid heirs of Sunder Lal Sharma constituted a Hindu Undivided Family (HUF) which was residing together at 3/156, Gali Ganga Ram, Teliwara, Shahdara, Delhi; (vii) that Sunder Lal Sharma was carrying on business in the name of M/s. Gopal Lime (Ashok Chuna Bhandar) at 500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi; the business of lime stone was in fact commenced by Musaddi Lal, husband of Basanti Devi adoptive mother of Sunder Lal Sharma; (viii) that Sunder Lal Sharma, in the year 1984, changed the name of his business to M/s. Shakti Chuna Bhandar; (ix) that Sunder Lal Sharma along with his wife defendant No.1, his sons defendants No.2&3 and his daughter defendant No.4 constituted a HUF under one roof and sharing one kitchen and of which Sunder Lal Sharma was the Karta and Sunder Lal Sharma as Karta inherited the entire property and business which is still being carried on by defendant No.1 Om Wati as Karta of Hindu Joint Family; (x) that property No.500/5, Pandav Road, Vishwas Nagar, Shahdara initially was a land measuring 370 sq. yds. where the business of Bhatti of making lime stone was being carried on; however, after the order of the Supreme Court in M.C. Mehta Vs. Union of India (1996) 4 SCC 750 whereby industries were ordered to be shifted outside Delhi, this Bhatti was shifted to 460A/4, Mahavir Block, Pandav Road, Vishwas Nagar, Shahdara, Delhi and shops were constructed on this land bearing 500/5, Pandav Road, Vishwas Nagar, Shahdara, Delhi and were rented out in the year 1990; out of the total area of 370 sq. yds., 150 sq. yds. was already sold by the defendant No.1 in the year 2012, without any legal necessity and/or for benefit of the estate; (xi) that the plaintiff and the defendants No.4&5 have been requesting the defendant No.1 to give their legal share from the sale amount of Rs.3.5 crores but the same has not been given inspite of promise; (xii) that the defendant No.1 is now again trying to sell out the remaining portion of the property measuring 220 sq. yds.; (xiii) that there is no legal necessity for or benefit to the estate from the sale of the property; (xiv) that the plaintiff is in possession of three shops in the property and the defendant No.1 is threatening the plaintiff to hand over possession of the said shops; (xv) that the entire family expenditure from the very beginning