Savita Anand v. Krishna Sain & Ors

ASHA MENON, J.

RAJIV SAHAI ENDLAW, J. NOVEMBER 03, 2020 S*

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 03rd November, 2020 + SAVITA ANAND .....Appellant Through: Mr. Gaurav Puri and Ms. Gayatri Puri, Advocates versus KRISHNA SAIN & ORS. ....Respondents Through: Mr. Arun Mohan, Senior Advocate with Mr. Akshay Makhija & Ms. Mahima Malhotra, Advocates CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW HON'BLE MS. JUSTICE ASHA MENON [VIA VIDEO CONFERENCING] JUSTICE ASHA MENON 1. The present appeal has been filed by the plaintiff before the learned Single Judge, being aggrieved by the dismissal of her suit vide the impugned judgement dated 18th July, 2018. 2. The suit was filed by Smt. Savita Anand, (hereinafter referred to as the "appellant") for partition and permanent injunction against three defendants, namely, her mother Smt.Krishna Sain (who has since expired during the pendency of the appeal and will be referred to for convenience as 'D1'), her sister Smt.Sarita Mullick (hereinafter referred to as 'D2') and her brother Sh.Sanjeev Sain (hereinafter referred to as 'D3'). Partition was sought of property bearing number E-27, Block No. B-1 Extension, Mohan Co-operative Industrial Estate, New Delhi, ad measuring 1422.81 sq. yds (for short, "suit property"). BACKGROUND FACTS 3. Briefly stated the case of the appellant was that the suit property belonged to her father late Yashpal Sain and as one of his legal heirs, she was entitled to 1/4th share in the said property, upon the demise of her father. The case set out in the plaint was that late Yashpal Sain had come to India from Lahore, Pakistan on Partition of the country and had set up a business called M/s. Asiatic Syndicate from which he had made his living. At the same time, he had received some compensation for property left in Pakistan with which he, along with one Sh. Luthra, purchased a plot of land bearing Khasra No.33/16/1, measuring 5 Bighas 10 Biswas situated in village Sahibabad, Mathura Road, Delhi, thus "restoring" part of the ancestral property left in Pakistan. This land was part of the Mohan Small Industrialists Co-operative Society ("Society", for short) of which Sh.Yashpal Sain was a founder-member. However, the land purchased by Sh. Yashpal Sain, as also the lands of other members, was acquired by the Government of Delhi on 10th November, 1960. As per the policy of the Government, Sh.Yashpal Sain received compensation for his land that was acquired. He also applied for the allotment of an alternate plot. The Government suggested that he becomes a member of an industrial cooperative society and if he was already a member of one such society, to apply to it directly for allotment. Since he was a founder member of the Society, Sh. Yashpal sought allotment of the very plot of land that had been acquired for the purposes of the industrial estate. Sh. Yashpal was allotted a plot of land measuring 5494 sq. yards in Block 'A' of Mohan Co-operative Society in 1963, but subject to payment and completion of some formalities. Unfortunately, before the money could be paid and the formalities concluded, Sh. Yashpal Sain died on 17th October 1963. 4. After Shri Yashpal Sain died, his wife (D1) applied for the allotment of a plot to the Society and a plot was allotted to her, which is the suit property. The appellant claimed in the plaint that though this allotment was made in her individual name, D1 received the suit property for the rehabilitation of her family and to take care of the appellant and the other minor children as the Karta of the family as it was paid for out of joint family funds in which all legal heirs of late Yashpal Sain had equal shares. Therefore, she had taken the plot ad measuring 1422.81 sq. yds, being the suit property, in trust on behalf of all the legal heirs of late Yashpal Sain, two of whom were minors, and including D1 and the appellant who had 1/4th share each in his assets including the suit property. It was pleaded further that in recognition of the use of the property for the joint bene