1221

-IN THE-

HIGH COURT OF DELHI

AT NEW DELHI

CIVIL PETITION NO. 1221/2017

UNDER SECTION 6, 9, 17 OF THE CODE OF CIVIL PROCEDURE, 1908

-In the matter of-

ADITI & ANURADHA……………………….………………………PLAINTIFF

V.

SANJEEV & OTRS.……………………………………………..….DEFENDANT

MEMORANDUM ON BEHALF OF THE DEFENDANTS

 STATEMENT OF FACTS

Ved Rajan, who died in 2007, left behind two sons, Sanjeev and Viraaj wlong with

their families comprised of the wife of each and four and three chidren respectively,

widow of a predeceased son, Arunima, having two sons Akshay and Aditya, two

married daughters Aditi and Anuradha, with three and two children respectively.

The deceased left behind the following properties:

1. A bungalow in North Delhi, which was an ancestral property, in which all the

three families of the sons resided.

2. Two shops in South Delhi which were his self acquired properties in

possession of the two living sons, each having one to his use and using them

as shops for over 25 years.

3. One plot of land in Central Delhi which was also self-acquired and was held in

joint ownership with the two surviving sons having 1/3rd share each (wherein

the sons also held their 1/3rd share each as their self acquired properties). It

comprised of three minor plots of lands, each bought by each of them in

individual capacity, but physically forming a single piece of land due to their

adjacent location. No one was in possession of this said plot of land.

The daughters claim that they have a share in 1/5th of all the property,which is being

opposed to by the defendants.

Hence the present matter.

 STATEMENT OF JURISDITCION

The Appellant most humbly submits that this High Court of Delhi has requisite

jurisdiction to hear and adjudicate upon the matter and hence submits to the

jurisdiction of this Hon’ble Court under Section 6, 9, 17 of The Code of Civil

Procedure, 1908.
 ISSUES UNDER CONSIDERATION

1. Whether the plaintiffs are entitled to claim partition of the ancenstrol

bunglow?

2. Whether the plaitiffs are entitled to 1/5th share from each shop?

3. Whether the plaitiffs are entitled to 1/5th share of the entire plot of land?
 SUMMARY OF ARGUMENTS

1. The plaintiffs are not entitled to claim partition of the ancenstrol bunglow.

The plaintiffs are not entitled to claim partition of the ancenstrol bunglow as women

are not empowered to seek partition of a dwelling house. Also, doctrine of ouster and

doctrine of adverse possession apply.

2. The plaintiffs are not entitled to 1/5th share from each shop.

The plaintiffs are not entitled to 1/5 th of the share from each shop due to the doctrine

of ouster and the doctrine of adeverse possession.

3. The plaintiffs are not entitled to 1/5th share of the entire plot of land.

The property containing self acquired property of the defendants, the plaintiff are not

entitled to 1/5th share of the entire plot of the land.

 ARGUMENTS ADVANCED

1. The plaintiffs are not entitled to claim partition of the ancenstrol bunglow.

i. The plantiffs are not empowered to seek partition of a dwelling house.

Female heirs are disentitled from seeking a partition of the dwelling hose wholly

occupied by jiont heirs untill the male heirrs choose to divide the property 1. The

object behind the legislation is to not render the male heirs and widows of male heirs

and their minor children homeless in the context of a married daughter claiming

partition from the comforts of the husband’s house2.

In the current case, the joint family in its entireity lives in the house and hence the

women are barred from claiming a partition of the bunglow.

ii. The defendant is the rightful owner of the property due to the doctrine of

adverse possession

The common law principle3 of adverse possession entails that a person in possession

of land of another has valid title to it if there has been adequate period of possession

for a continuous period of time, such that the rights of the owner are being infringed

for this period4 and when it is actual, exlsuive possession and it must be in publicity5.

In the current case, assuming but not conceeding that the plaintif are the owners of the

property, due to the principle of adverse possession, the defendants have come to hold
1
Section 23, Hindu Succession Act.
2
Narasimha Murthy v. Susheelabhai (1996) 3 SCC 644.
3
Secretary of State for India v. Debendra Lal Khan [ (1933) LR 61 IA 78, 82]
4
Ram Kisto Madal v. Dhankisto Mandal (1969) 1 SCR 342 “In case of partition, each co-sharer has an
antecedant title and is no new conferment of title”
5
Saroop Singh v. Banto (2005) 8 SCC 330.
a valid title in the property. The defendants conjointly have been living in the property

for several years and the plaitinffs have not asserted their right, which leads to adverse

possession and vesting of ownership of property on the defendants.

iii. The defendant is the rightful owner of the property due to the doctrine

of adverse possession

There is an ouster of the share of proeprty on a coparcenor if there is declaration of

hostile animus, (ii) long and uninterrupted possession of the person pleading ouster,

and (iii) exercise of right of exclusive ownership openly and to the knowledge of

other co-owner6. Ouster’ does not mean actual driving out of the co-sharer from the

property7. For hostile animus to be proven there is no requirement of express demand

by one and denial by the other8.

In the current case, there has been long uninterrupted possession of the brothers in the

ancestral house, further, the daughters are aware of the same and despite the

daughter’s conduct involving knowledge of infringement, the brothers have continued

to live in the house proving hostile animus, nor did the daughters assert their rights.

Hence, the interest of the sisters are ousted.

2. The plaintiffs are not entitled to 1/5th share from each shop.

There is an ouster of the interest in proeprty one owns r if there is declaration of

hostile animus, (ii) long and uninterrupted possession of the person pleading ouster,

and (iii) exercise of right of exclusive ownership openly and to the knowledge of

6
Pangu Alias Apputty (Dead) through LRS. & Ors. Vs. Narayani & Ors., [Civil Appeal No.352 of
2009] Supreme Court.
7
Vidya Devi v. Prem Prakash (1995) 4 SCC 496
8
Nagabhushanammal v. Chandikeswaralingam; (2016) 4 SCC 434
other co-owner9. The common law principle10 of adverse possession entails that a

person in possession of land of another has valid title to it if there has been adequate

period of possession for a continuous period of time, such that the rights of the owner

are being infringed for this period11 and when it is actual, exclusive possession and it

must be in publicity12.

In the current case the defendants have been running the shops and generating profits,

to the knowledge of the public, despite the knowledge of ownership of a part of the

land vesting with the daughters and acknowledgement of the same by her and yet not

asserting her right leads to an ouster of their interest in the shop by adverse

possession.

3. The plaintiffs are not entitled to 1/5th share of the entire plot of land.

Children are entitled to father’s property as Class 1 heir, brothers and sisters are Class

II heirs to whom if the property should vest, the property holding brother should die

and there should be no lineal descendants or mother13.

In the current case, only 1/3rd of the property is self - acquired property owned by the

father, and the rest 2/3rd are owned by the brothers, jiontly. Each 1/3rd is self acquired

property of the father and the sons. Sisters being class II heirs are not entitled to seek

inheritance of the 2/3rd of the said land as primarily the brothers in whose joint owners

are still alive and even when dead would vest on their lineal descendants.

9
Pangu Alias Apputty (Dead) through LRS. & Ors. Vs. Narayani & Ors., [Civil Appeal No.352 of
2009] Supreme Court.
10
Secretary of State for India v. Debendra Lal Khan [ (1933) LR 61 IA 78, 82]
11
Ram Kisto Madal v. Dhankisto Mandal (1969) 1 SCR 342 “In case of partition, each co-sharer has an
antecedant title and is no new conferment of title”
12
Saroop Singh v. Banto (2005) 8 SCC 330.
13
Section 32, 33 Indian Succession Act 1925.
Consequentially, the daughters are not entitled to a 1/5th share in the entire plot of

land.
 PRAYER

Wherefore in the light of facts stated, issues raised, authorities cited and arguments

advanced, it is most humbly and respectfully prayed before this Hon’ble Court that it

may:

1) Dismiss Civil Petition 1221/2017;

2) Hold that the plaintiffs are not entitled to claim partition of the ancenstrol

bunglow, are not entitled to 1/5th share from each shop and to 1/5th share of

the entire plot of land. .

All of which is most humbly submitted.

Date: 25-10-2017 S/d______________

Counsel Code: 1221D

(Counsel for the Defendants)