Delhi District Court
Harish Kumar vs Anil Kumar And Ors on 7 May, 2026
DLST010001772009
IN THE COURT OF SH. ARUL VARMA,
DISTRICT JUDGE-02, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
CS DJ. 8461/2016
Filing No. 37753/2009
CNR No. DLST010001772009
In the matter of
Sh Harish Kumar
R/o L-1A/498, Sangam Vihar
Near Sainik Farm,
New Delhi-110062
......Plaintiff
VERSUS
Anil Kumar
S/o. Late Sawroop Singh
R/o Village Mandi,
Mehrauli New Delhi
Dinesh
S/o. Late Sawroop Singh
R/o Village Mandi,
Mehrauli New Delhi
CS DJ 9274/2016 Page. 1 of 26
Harish Kumar Vs Anil Kumar & Ors
Digitally signed
Arul by Arul Varma
Date:
Varma 2026.05.07
18:57:24 +0530
Vipin
S/o. Late Sawroop Singh
R/o Village Mandi,
Mehrauli New Delhi
Babita
D/o. Late Sawroop Singh
R/o Village Mandi,
Mehrauli New Delhi .......Defendants
Date of Institution : 10.03.2015
Date of reserving the judgment : 07.05.2026
Date of Pronouncement : 07.05.2026
Decision Suit Decreed
JUDGMENT/ORDER
Index to the Judgment
I. BRIEF FACTS/CASE OF THE PLAINTIFF..................................................4
II. WRITTEN STATEMENT OF DEFENDANT...............................................6
III. ISSUES FRAMED........................................................................................ 9
IV. EVIDENCE LED BY PLAINTIFF.............................................................10
V. EVIDENCE LED BY DEFENDANT...........................................................11
VI. ARGUMENTS OF COUNSELS FOR THE PARTIES..............................13
VII. ISSUE WISE ANALYSIS & FINDINGS THERETO...............................15
i. Issue no 1: Whether the plaintiff is entitled to seek partition of
properties, as mentioned in para 1 of the plaint?.....................................15
ii. Issue no 2: Whether the partition of the properties has already taken
place in the year 2006 leaving no right to plaintiff to seek any further
partition?.................................................................................................. 19
CS DJ 9274/2016 Page. 2 of 26
Harish Kumar Vs Anil Kumar & Ors Digitally signed
Arul by Arul Varma
Date:
Varma 2026.05.07
18:57:29 +0530
iii. Issue no 3: Whether the suit has not been filed within the period of
limitation ?................................................................................................ 23
VIII. RELIEF.....................................................................................................25
CS DJ 9274/2016 Page. 3 of 26
Harish Kumar Vs Anil Kumar & Ors Digitally signed
Arul byDate:Arul Varma
Varma 2026.05.07
18:57:32 +0530
I. BRIEF FACTS/CASE OF THE PLAINTIFF
1.The facts as asseverated by the Plaintiff are hereby succinctly recapitulated:
(a) It was asserted by the plaintiff that the late Sh. Swroop Singh was the original owner of three specific properties located in Village Mandi, Mehrauli, New Delhi, totaling approximately 800 sq. Yards. It was stated that Sh. Swroop Singh passed away intestate in 2003, leaving behind the plaintiff and the defendants as his legal heirs. It was further maintained that since no formal partition was executed after his death, the properties remained joint, though the plaintiff continued to reside therein. The properties in question were described as follows:
1. Plot A: 112 sq. Yards (Old Lal Dora).
2. Plot B: 200 sq. Yards (purchased by the deceased from Late Sh. Khajjan Singh).
3. Plot C: 500 sq. Yards
(b) It was alleged that the cause of action first arose in 2006 when the plaintiff's wife approached Sh. Pyare Lal (the eldest family member and brother of the deceased owner) to demand the plaintiff's share. It was claimed that the plaintiff's wife was mercilessly beaten by Sh. Pyare Lal and his sons, leading to the registration of an FIR (No. 573/06) and that the said criminal matter was later CS DJ 9274/2016 Page. 4 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed Arul by Arul Varma Date: 2026.05.07 Varma 18:57:36 +0530 reported to have been compromised before the Mediation Cell in Saket on November 20, 2013.
(c) The plaintiff contended that in October 2013, it was discovered that the defendants were attempting to sell the properties and dispose of the plaintiff's share. Despite filing police complaints at PS Fatehpur Beri in 2013, it was stated that no significant action was taken. Consequently, a civil suit for permanent injunction was previously filed, however, it was noted that Sh. Pyare Lal passed away before an appearance could be made. That suit was subsequently withdrawn on November 24, 2014, with the court's liberty to file a fresh suit.
(d) The plaintiff valued the suit for the purposes of jurisdiction at ₹34,09,000, calculating his 1/5th share to be approximately 160 sq. Yards (146.304 sq. Meters). It was further asserted that since all parties reside in and the property is situated within New Delhi, this court has the territorial jurisdiction to adjudicate the matter. Hence, plaintiff filed the present suit with the following prayers:
1. A decree of preliminary partition to ascertain the specific shares of the parties.
2. A final decree of partition in favor of the plaintiff.
3. The award of costs of the suit and any other relief the Court deems fit.
Digitally CS DJ 9274/2016 Page. 5 of 26 signed by Harish Kumar Vs Anil Kumar & Ors Arul Arul Varma Date:
Varma 2026.05.07
18:57:40
+0530
II. WRITTEN STATEMENT OF DEFENDANT
2. In the Written Statement filed on behalf of the Defendants, all allegations leveled in the plaint were categorically denied. It was vehemently contended by the defendants that the plaintiff's suit was misconceived, mala fide, and not maintainable in the eyes of the law. It was further asserted that the suit was barred by the principle of estoppel and acquiescence and that the claims were barred by the Law of Limitation, specifically noting that even if the plaintiff's alleged demand of partition in the year 2000 were accepted, the suit filed in 2015 would be hopelessly out of time.
3. It was also contended that the suit was liable to be rejected for want of any cause of action, as a formal partition of the suit properties had already been concluded in the year 2006.
4. It was maintained by the defendants that a family partition had already taken place in 2006, during which the plaintiff had received a monetary settlement in lieu of his share in the Mandi Village properties. It was argued that following this settlement, the plaintiff had permanently shifted his residence to Sangam Vihar, New Delhi, and had effectively severed his interest in the ancestral village property. Consequently, it was stated that there remained no joint property left to be partitioned.
5. The defendants alleged that the plaintiff had suppressed vital facts and had not approached the court with "clean hands." It CS DJ 9274/2016 Page. 6 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed by Arul Arul Varma Date:
Varma 2026.05.07
18:57:42
+0530
was contended that the plaintiff was influenced and pressured by his wife, Ms. Geeta, and one Mahesh (the son of a maternal relative, Maya) to file the present suit. It was claimed that the plaintiff himself had previously lodged a police complaint with the SHO, Neb Sarai, expressing apprehension and threats from his own wife and Mahesh, indicating that the suit was filed under duress rather than a genuine legal grievance.
6. The defendants placed on record additional facts regarding the family's history, asserting that after the death of the parties' mother in 1990, one Ms. Maya (the father's sister's daughter) took Defendant No. 1 (then an infant) to her village with mala fide intentions to grab property.
7. It was further alleged that in February 2006, Ms. Geeta (plaintiff's wife) and Mahesh conspired to compel the plaintiff to sell landed property situated in Village Behrampur, Gurgaon.
8. It was claimed that the sale consideration of ₹28 Lakhs from the plaintiff's land, and a further ₹28 Lakhs from the fraudulent sale of the minor Defendant No. 1's land, was misappropriated by the plaintiff's wife and Mahesh.
9. It was thus submitted that the plaintiff possessed no right, title, or interest in the suit properties as of the date of filing. The defendants concluded that the entire narrative regarding the 2013 cause of action was fabricated to bypass the fact of CS DJ 9274/2016 Page. 7 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed Arul by Arul Varma Date: Varma 2026.05.07 19:02:30 +0530 the 2006 partition. Therefore, it was prayed that the suit be dismissed with costs.
10.Rejoinder to the written statement filed on behalf of defendant no 2 and 4, was filed by the plaintiff. It was vehemently denied and controverted by the plaintiff that any partition of the suit properties had taken place in the year 2006. It was maintained that the defendants' assertion regarding an oral partition and a monetary settlement was a concocted story designed to deprive the plaintiff of his legitimate ancestral share. It was further asserted that the suit properties remained joint and unpartitioned since the death of Sh. Swroop Singh in 2003. It was stated that no documentary evidence or "Memorandum of Partition" was ever produced by the defendants to substantiate their claim of a 2006 settlement.
11.It was contended by the plaintiff that the allegation of receiving money in lieu of his share was false and baseless. While it was admitted that the plaintiff shifted to Sangam Vihar, it was clarified that this shift did not constitute a waiver of his rights over the ancestral properties in Village Mandi. It was asserted that residing elsewhere for work or personal reasons does not extinguish an heir's right to joint family property.
12.The plaintiff strongly refuted the defendants' claim that he was acting under the pressure or threat of his wife, Ms. Geeta, CS DJ 9274/2016 Page. 8 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed Arul by Arul Varma Date:
2026.05.07 Varma 19:02:34 +0530 or Mahesh. It was maintained that the suit was filed by the plaintiff of his own free will to secure his legal rights. It was asserted that any previous police complaints mentioned by the defendants were either misinterpreted or taken out of context to create a false narrative of family discord.
13.It was argued by the plaintiff that the suit was well within the period of limitation. It was contended that since the property is joint, the cause of action is continuous in nature. The plaintiff reiterated that the specific threat to alienate the property in 2013 and the subsequent failure of the defendants to settle the matter amicably necessitated the present litigation.
14.It was submitted by the plaintiff that the preliminary objections raised by the defendants were frivolous and legally untenable. It was maintained that the plaintiff is a co-owner by birth and succession, and his right to seek partition is absolute. Consequently, it was prayed that the contentions of the defendants be rejected and the suit be decreed in favor of the plaintiff as originally prayed.
III. ISSUES FRAMED
15.Vide order dated 26.10.2017 following issues were framed:-
"1. Whether the plaintiff is entitled to seek partition of properties, as mentioned in para 1 of the plaint? OPP
2. Whether the partition of the properties has already taken place in the year 2006 leaving no right to plaintiff to seek CS DJ 9274/2016 Page. 9 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed by Arul Varma Arul Date:
Varma 2026.05.07 19:02:38 any further partition? OPP 2& 4
3. Whether the suit has not been filed within the period of limitation? OPD
4. Relief."
IV. EVIDENCE LED BY PLAINTIFF
16.In the proceeding only two witnesses were examined by plaintiff, succinct testimonies whereof are as follows:
17.PW-1 Harish Kumar: He filed his evidence by way of affidavit. But the same was not tendered before this Court by the plaintiff/PW-1.
18. PW-2 Smt Geeta W/o Sh Harish Kumar - She tendered her evidence by way of affidavit as PW2/A. She relied upon following documents:
(a) Settlement dated 20.11.2012 before the Mediation Centre, Saket as Mark A
(b) Complaint to SHO PS Fatehpur Beri dated 24.10.2016 as Mark B
(c) Complaint dated 02.12.2013 to SHO, PS Fatehpur Beri as Mark C.
19. She deposed in her evidence by way of affidavit that her father in law died intestate in 2003 leaving behind the properties mentioned in plaint without any partition. It was deposed that in 2006 PW-2 asked to Pyare Lal, brother of Late Sh Swaroop Singh, being the elder person in the family and demanded the share of plaintiff in the suit properties, on which a quarrel took place between Sh CS DJ 9274/2016 Page. 10 of 26 Digitally signed by Harish Kumar Vs Anil Kumar & Ors Arul Arul Varma Date:
Varma 2026.05.07 19:02:41 +0530 Pyare Lal and his sons with PW-2 qua which an FIR No 573/2006 u/s 323/341/34 IPC, PS Mehrauli was registered against Pyare Lal and his sons on the complaint of PW-2, which was later on compromised before the Mediation Centre, Saket on 20.11.2013.
20. It was deposed that in the month of October, 2012, PW-2 got to know through some sources that defendants are going to sale out the properties of Late Sh Swaroop Singh including the share of the husband of PW-2 for which a complaint dated 24.10.2013 was filed in PS Fatehpur Beri, however, no action was taken by the police. She was cross-examined by Ld Counsel for defendants.
V. EVIDENCE LED BY DEFENDANT
21.In the proceeding only two witnesses were examined by defendants, succinct testimonies whereof are as follows:
22.DW-1 Dinesh Kumar: He tendered his evidence by way of affidavit as Ex. DW/1A. He deposed in his evidence by way of affidavit that the plaintiff and defendants no 1 to 3 are sons and defendant no 4 is the daughter of Late Shri Swaroop Singh.
23.It was deposed that after the death of mother of plaintiff and defendants, one Ms Maya, the daughter of sister of Sh Swaroop Singh (the father of plaintiff and defendants) with malafide intention and in order to grab some property took with her the defendant no 1 ( who was infant at that time) to her village Shakalpura. It was also contended that Maya's second son namely Mahesh, who was almost of the same as to Digitally signed by CS DJ 9274/2016 Page. 11 of 26 Arul Arul Varma Harish Kumar Vs Anil Kumar & Ors Date:
Varma 2026.05.07 19:02:44 +0530 that of plaintiff, and being very clever had much influence over the plaintiff. It was also stated that the plaintiff being the eldest among his brothers was married to Ms Geeta in the year 1998, who was very dominating over her husband and was gradually attracted towards the said Mahesh. It was deposed that when Swaroop Singh became bed-ridden, Geeta (the wife of plaintiff) along with the said Mahesh started taking charge of entire affairs of the house of the plaintiff and defendants.
24.It was also deposed that after the death of Swaroop Singh in the year 2003, both Geeta and Mahesh became all in all and even grabbed the gold and silver jewellaries and the defendants, out of the name Vipin was minor at that point of time. It was deposed by DW-1 that in February, 2006, the maya and Mahesh conspired to sale out the share of the landed property of the plaintiff and the defendant no 1 situated at Village-Behrampur, Tehsil-Sohna, Distt Gurgaon, and that the said Geeta compelled the plaintiff to sale the said land appropriated the sale consideration amount of Rs 28 Lakhs. It was further stated that the said Maya in connivance with Geeta and Mahesh fraudulently sold out the said land of the defendant no 1 who was minor at that time, and appropriated the sale consideration amount of Rs 28 Lakhs.
25.It was also deposed that the plaintiff has no share in the said properties as the plaintiff has already taken money in lieu of Digitally signed by CS DJ 9274/2016 Page. 12 of 26 Harish Kumar Vs Anil Kumar & Ors Arul Arul Varma Date:
Varma 2026.05.07 19:02:47 +0530 his share in the said property at the time of partition and thereafter got settled at the place where he is residing at present. DW-1 was cross examined by Ld Counsel for plaintiff at length.
26. DW-2 Ms Babita: She tendered her evidence by way of affidavit as Ex. DW2/2. This witness also deposed in a similar vein as was deposed by DW-1 Dinesh. She was cross examined by Ld Counsel for plaintiff.
VI. ARGUMENTS OF COUNSELS FOR THE PARTIES
27. Ld Counsel for plaintiff Ld Counsel for plaintiff submitted that in the present matter, the plaintiff and the defendants are the legal heirs of Late Sh Ram Swaroop. It was submitted that there is no dispute amongst plaintiff and defendants qua the title of Late Ram Swaroop over the suit property. It was further submitted that although the defendant had argued that an oral partition had taken place in the year 2006, however, they could not adduce any documents on record to substantiate the same.
28.It was submitted that to prove the factum of oral partition, defendant examined DW-2 Babita. However, this witness categorically affirmed in her cross-examination that her father had two to three plots in Mandi. However, the same were never partitioned between legal heirs during the lifetime of the father. Ld Counsel further contended that the sale of one CS DJ 9274/2016 Page. 13 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed Arul by Arul Varma Date:
2026.05.07 Varma 19:02:50 +0530 of the joint properties of Late Sh Ram Swaroop amongst legal heirs would not disentitle the plaintiff to file the suit for partition qua the remaining properties of late Sh Ram Swaroop. Ld Counsel further submitted that the defendants never took the plea of oral partition at the time of filing response to the complaint filed in the year 2013, or in the suit filed for injunction in the year 2014 titled Harish Kumar Vs Pyare Lal & Ors. Lastly, it was contended that the right to claim partition is a continuing right and still vests in plaintiff. It was also contended that the plaintiff is in constructive possession of the suit property and even though the plaintiff was not physically present in the suit property that would not tantamount to an ouster in the absence of specific assertion /proof filed by the defendant.
29. Per contra, Ld Counsel for defendants submitted that the plaintiff never entered into the witness box despite several opportunities granted. This was a deliberate tactic adopted by the plaintiff in order to avoid his cross-examination. Moreover, no Special Power Of Attorney was conferred upon the wife of plaintiff, to depose on behalf of the plaintiff. In this context, Ld Counsel placed reliance on Vidhyadhar Vs Manik Rao AIR 1999 SC 1441.
30. Ld Counsel for defendant submitted that the dispute is over plots as measured 100 sq yard, 200 sq yard and 500 sq yard ( total 800 sq yards) . It was also submitted that the plaintiff CS DJ 9274/2016 Page. 14 of 26 Digitally Harish Kumar Vs Anil Kumar & Ors signed by Arul Arul Varma Date:
Varma 2026.05.07 19:03:02 +0530 and defendant no 1 sold their share to defendant no 2 and 3 for consideration of Rs 10,00,000/- each. It was submitted that wife of the plaintiff herein grab the entire jewelry which was around Rs 8,00,000/- and out of which Rs 2,00,000/- were given in cash to plaintiff and further defendant no 1 was minor but was in custody of Maya, hence Rs 10,00,000/- were given to Maya by the defendant no 2 and 3 in 2006. Ld Counsel also contended that the defendant no 4 did not ask any share, the share of defendant no 4 was divided within plaintiff and defendant no 1, 2 and 3. Ld Counsel stated that it was an oral family settlement no document was prepared at the time of settlement. However, the plaintiff gave an affidavit to defendant nos 2 and 3 with regard to the family settlement, he expressed that the plaintiff and defendant no 1 have sold the entire property situated at village Mandi, New Delhi.
31. In rebuttal, Ld Counsel for plaintiff submitted that it is the plaintiff who had initiated the suit and had filed his evidence by way of affidavit. However, Ld Counsel conceded that the evidence by way of affidavit was not tendered.
VII. ISSUE WISE ANALYSIS & FINDINGS THERETO i. Issue no 1: Whether the plaintiff is entitled to seek partition of properties, as mentioned in para 1 of the plaint?
32. At the very outset, it was contended by the defendants that the plaintiff never entered into witness box despite Grant of CS DJ 9274/2016 Page. 15 of 26 Digitally signed Harish Kumar Vs Anil Kumar & Ors Arul by Arul Varma Date:
Varma 2026.05.07
19:03:34
+0530
several opportunities. It was contended that the plaintiff wanted to avoid his cross examination. It was further contended that the wife of plaintiff namely PW-2 Greta could not depose on behalf of plaintiff as no special power of attorney was conferred upon her. Ld counsel placed reliance on Vidhyadhar (supra) to contend that where a party to the suit does not appear in the witness box, does not state his case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.
33.However, the above judgment would not come to the aid of the defendants in view of the verdict Sashikala w/o Narayan Kadam @ Dhor Vs Laxman Yadu Kadam @ Dhor RSA 1832 of 2005, wherein it was observed as thus:
"10. However in the case on hand, PW-1 is none other than the wife of the plaintiff. Whether at all the wife of the plaintiff would be competent witness de-hors the power of attorney executed in her favor, is the question that has to be gone into by this Court in order to appreciate the substantial question of law. When such an exercise is carried out, in view of Section 120 of the Indian Evidence Act, even in the absence of power of attorney or its validity PW-1 being the wife of the plaintiff, was competent enough to depose on behalf of the original plaintiff.
11. In order to appreciate the same, it is just and necessary for this Court to culled out Section 120 of the Evidence Act , which reads as under:
- 11 -
"120. Parties to civil suit, and their wives or husbands, Husband or wife of person under CS DJ 9274/2016 Page. 16 of 26 Digitally Harish Kumar Vs Anil Kumar & Ors signed by Arul Varma Arul Date:
Varma 2026.05.07 19:03:38 +0530 criminal trial. In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be competent witness."
12. On careful reading of the above provision of law it is crystal clear that a spouse is a competent witness even in the absence of any written authority or power of attorney.
13. When such in the factual aspect, even assuming that the power of attorney executed in favor of the wife of the original plaintiff is held to be incorrect and PW-1 is held to be incompetent to speak on behalf of the principal namely her husband, by virtue of the operation of law as is found in Section 120 of the Indian Evidence Act , 12 -
PW-1 is competent enough to depose for and on behalf of the plaintiff ."
34. In Smitha Vs Anil Kumar OP© No 154 of 2024 passed by Hon'ble High Court of Kerala, it was held as thus:
"7. Sec.118 of the Evidence Act declares that all persons are competent witnesses, while Sec.120 deals with the spousal competency of one spouse to testify for a litigant spouse in civil and criminal proceedings. Section 120 reads thus:
"120. Parties to civil suit, and their wives or husbands - husband or wife of person under criminal trial In all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. In criminal proceedings against any person, the husband or wife of such person, respectively, shall be a competent witness."
8. On a careful reading of the above provision, it is clear that a non-litigating spouse is a competent witness for the other spouse who litigates. The expression competency of witness refers to the capacity, ability or qualification to give evidence in the Court of Law. Section 120 permits the CS DJ 9274/2016 Page. 17 of 26 Digitally signed by Harish Kumar Vs Anil Kumar & Ors Arul Arul Varma Date:
Varma 2026.05.07 19:03:41 +0530 husband to give evidence in place and instead of his wife and vice versa even in the absence of a written authority or power of attorney. Such a witness is entitled to depose not only the facts within his/her knowledge but also within the knowledge of his/her spouse."
35.Further, a perusal of cross examination dated 01.03.2018 of PW-2 would reveal that she had categorically averred that her husband was suffering from mental disability since the time of her marriage and she was looking after the prosecution of the present suit. Thus, it cannot be gainsaid that PW-2 Geeta was competent to depose on behalf of her husband and non examination of plaintiff would not affect the case of the plaintiff.
36.In the present case, it is not disputed that the plaintiff and the defendants are the legal heirs of late Sh Ram Swaroop Singh.
Further, there is no dispute amongst plaintiff and defendants qua title of Late Sh Ram Swaroop over the suit property.
37.The plaintiff is in possession of the suit property and his ouster has not been pleaded nor proved. The factum of oral partition as pleaded by the defendants , has not been proved, as would be explicit upon a perusal of the discussion under the head issue no 2.
38. This court also concurs with the submissions of Ld Counsel for plaintiff that the sale of one of the properties of Late Sh Ram Swaroop amongst the legal heirs would not disentitle the plaintiff, to file the suit for partition qua the remaining CS DJ 9274/2016 Page. 18 of 26 Digitally Harish Kumar Vs Anil Kumar & Ors signed by Arul Arul Varma Date:
Varma 2026.05.07 19:03:45 +0530 properties of Late Sh Ram Swaroop. In view of above, issues no 1is decided in favour plaintiff, and against defendant.
ii. Issue no 2: Whether the partition of the properties has already taken place in the year 2006 leaving no right to plaintiff to seek any further partition?
39. It was contended by defendants in their written statement that the partition of the suit properties had already taken place in the year 2006 and there was nothing left to be partitioned between the plaintiff and the defendants.
40. Ld Counsel for defendant submitted that the dispute is over plots as measured 100 sq yard, 200 sq yard and 500 sq yard ( total 800 sq yards) . It was also submitted that the plaintiff and defendant no 1 sold their share to defendant no 2 and 3 for consideration of Rs 10,00,000/- each. It was submitted that wife of the plaintiff herein grabbed the entire jewelry which was around Rs 8,00,000/- and out of which Rs 2,00,000/- were given in cash to plaintiff and further defendant no 1 was minor but was in custody of Maya, hence Rs 10,00,000/- were given to Maya by the defendant no 2 and 3 in 2006. Ld Counsel also contended that the defendant no 4 did not ask any share, the share of defendant no 4 was divided within plaintiff and defendant no 1, 2 and 3. Ld Counsel stated that it was an oral family settlement no document was prepared at the time of settlement. However, the plaintiff gave CS DJ 9274/2016 Page. 19 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed by Arul Arul Varma Date:
Varma 2026.05.07
19:03:48
+0530
an affidavit to defendant nos 2 and 3 with regard to the family settlement, he expressed that the plaintiff and defendant no 1 have sold the entire property situated at village Mandi, New Delhi.
41. It is settled position of law that the oral partition / settlement has to be proved like any other fact. The Hon'ble High Court of Delhi in Dr Suraj Munjal vs Chandan Munjal & Ors. in RFA(OS) 5/2022, decided on 3 June, 2022 has discussed the law related to the plea of oral settlement. It has held as under:
"39. The family settlement or arrangements between the members of a family have been recognized as a mechanism to settle their differences and disputes, conflicted claims or disputed titles once for all in order to bring peace, complete harmony and goodwill in the family. "40. The Supreme Court in Kale and Others Vs. Deputy Director of Consolidation and Ors. (1976) 3 SCC 119 observed that the object of such an arrangement is to protect the family from long drawn litigation and perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between various members of the family. However, the bonafide and propriety of a family arrangement has to be judged by the circumstances prevailing at the time when such settlement was made. The onus of proving the family settlement lies solely on the person claiming that a family Agreement existed. "41. This Court in Prem Prakash vs. Champa Devi (2012) SCC OnLine 3899 relied on Section 9 of the Transfer of Property Act which provides that transfer of property may be made without writing in every case when not expressly required by law to conclude that the law does not require a written relinquishment deed to be made without consideration.
CS DJ 9274/2016 Page. 20 of 26 Digitally Harish Kumar Vs Anil Kumar & Ors signed by Arul Arul Varma Date:
Varma 2026.05.07 19:03:51 +0530
"42. In Prem Prakash (supra) reliance was placed on the decision of this Court in Lieutenant Col. Gaj Singh Yadav vs. Satish Chander Yadav, 1999 (51) DRJ 240 wherein it was explained that if a party had a share in the property, enlargement of such share by relinquishment or gift by the other defendant would not require registration. It is only when a right in the property is created for the first time by a particular document that it would require registration. Therefore, mischief of Section 49 of the Registration Act would not fall on an oral settlement.
43. The Supreme Court in Subraya M.N. vs. Vittala M.N. (2016) 8 SCC 705 held that there is no provision of law requiring family settlements to be reduced to writing, though, if so done, they would require registration or else would be inadmissible in view of Section 49 of the Registration Act.
"44. Similarly, the Supreme Court in a recent judgment of Vineeta Sharma vs. Rakesh Sharma & Ors. (2020) 9 SCC 1, while answering the reference to the interpretation of section 6 of the Hindu Succession Act, 1956, held that a plea of oral partition cannot be accepted as the statutory recognized mode of partition because a deed of partition must be registered under the provisions of the Registration Act, 1908 or affected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally advanced in the same manner as if it had been affected via decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and has to be rejected outrightly.
"45. There is no dispute about the proposition that an oral agreement may be acted upon by the parties without its formal registration provided it is established by some cogent evidence. However, what has been raised by the appellant is merely a vague plea of oral agreement. He claims, "That as regard the shareholding in the Defendant No 6 Company and the joint properties, the same was matter between the Plaintiff and the Defendant CS DJ 9274/2016 Page. 21 of 26 Digitally Harish Kumar Vs Anil Kumar & Ors signed by Arul Arul Varma Date:
Varma 2026.05.07 19:03:54 +0530 No. 1, both in fact stood settled long ago but made effective w.e.f. January, 2017". No date of alleged Oral settlement is pleaded by the appellant except claiming it be have been done "long ago" but interestingly, the same is claimed to have been made effective from January, 2017. Once a fact itself is not pleaded and is absolutely vague it cannot be considered by the court and merits rejection."
42.At the juncture, it would also be apt to reproduce the following extracts of DW-1 Sh Dinesh Kumar 20.09.2019, wherein it was avowed as thus:
"There is no partition on record for our ancestral land situated at Village Jaunapur, New Delhi. Vol. the partition had already taken place at the time of my father. I cannot tell the date month and year when the partition was done by my father. It is correct that today my brother i.e. defendant No 3 Vipin has also come with me who is present in the court. I have no documentary proof to confirm that the plaintiff has already received his share. Even I cannot tell the date, month and year of taking the share by the plaintiff.
I have no documentary proof for taking the share by the plaintiff in life time of my father. I was 18-19 year old at the time of death of my father. I know to read and write Hindi only. I cannot read or write English. I do not know the contents of the Affidavit Ex DW1/A. At present, I do not remember the date, month and year when Ex DW1/A was prepared. I cannot say when Ex DW1/A was stamped for attestation. I went to the person where Ex DW1/A was attested but I cannot tell the name and chamber of Oath Commissioner."
43. The above testimonies of the defendant's witness makes it explicit that the factum of oral partition could not be cogently established by the defendant's witness. Taking of jewellery CS DJ 9274/2016 Page. 22 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed by Arul Arul Varma Date:
Varma 2026.05.07 19:03:57 +0530 items by the sisters also could not be established, nor was it established that the sisters had taken the jewelleries in lieu of their share in the immovable properties of late Sh Ram Swaroop. Thus, no proof has been adduced that partition already took place on the year 2006. Therefore, this issue also is decided in favour of plaintiff and against the defendants.
iii. Issue no 3: Whether the suit has not been filed within the period of limitation ?
44. It is trite that the right to enfore partition is a legal incident of co-ownership and as long as such co-ownership subsists, the right to seek partition continues. It has been held in catena of cases that the cause of action in a suit for partition is a recurring one and as long as the cause of action subsists, a suit for partition can be filed. In a suit for partition, a cause of action only arises when the right is denied. In the present case, the plaintiff had averred that in 2006, the plaintiff's wife went to the brother of the plaintiff's father namely Sh Pyare Lal to demand the share of the plaintiff, but did not receive any share, rather late Sh Pyare Lal and his sons started beating the wife of the plaintiff, due to which a case was registered against Pyare Lal and his sons.
45. At this juncture, it would be apt to reproduce the relevant extracts of Samir Sharma Vs Sterre Sharma & Ors CS(OS) 677 /2024 wherein it was observed as thus:
Digitally signed by CS DJ 9274/2016 Page. 23 of 26 Harish Kumar Vs Anil Kumar & Ors Arul Arul Varma Date:
Varma 2026.05.07 19:04:01 +0530 "37. In so far as limitation period for a suit for partition is concerned, it is trite that no period of limitation has been prescribed therefor and there is always a running cause of action for seeking partition by one of the cosharers. However, the limitation for suit for partition would be governed by Article 65 of the Limitation Act only when a co-sharer or joint owner in possession of the property, professes a hostile title as against the other cosharers openly and to the knowledge of the other co-owners, in which case the limitation period will be 12 years from the date when possession of a cosharer becomes adverse to that of other co-sharers. The reference in this regard may be had to the decision of the Hon'ble Supreme Court in Vidya Devi (supra), wherein it was observed thus: "20. The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other to co-sharers. Since the filing of the suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the court as a plaintiff seeking partition of his share in the joint property.
21. Normally, where the property is joint, co-
sharers are the representatives of each other. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the cosharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co- sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of other joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period CS DJ 9274/2016 Page. 24 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed by Arul Arul Varma Date:
Varma 2026.05.07 19:04:04 +0530 prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to the claim for partition."
(emphasis supplied)
46. The above verdict makes it clear that the part of litigation starts from the time when a co-sharer or joint owner professes a hostile title against the plaintiff which in this case arose in the year 2006, and also in 2013 when the defendants were attempting to sell out the suit properties including the share of the plaintiff. The present suit has been filed on 10.03.2015 i.e. well within the period of 12 years prescribed by law.
Therefore, the suit has been filed within the period of limitation and hence this issue is decided in favour of plaintiff and against the defendants.
VIII. RELIEF.
47. Ergo, in view of the above in extenso discussion, the suit of the plaintiff stands decreed.
48. Accordingly, a preliminary decree qua partition be passed qua properties (a) Plot 112 sq. Yards (Old Lal Dora), situated at Village Mandi, Mehrauli, New Delhi, (b) Plot 200 sq. Yards, situated at Village Mandi, Mehrauli, New Delhi, and (c) Plot 500 sq yards, situated at Village Mandi, Mehrauli, New Delhi in following manner, with right to possession in their respective shares, as determined by the report of LC.
1. Plaintiff Harish Kumar - 1/5th share of the suit properties CS DJ 9274/2016 Page. 25 of 26 Harish Kumar Vs Anil Kumar & Ors Digitally signed Arul by Arul Varma Date:
Varma 2026.05.07 19:04:09 +0530
2. Defendants no 1 to 4 - 4/5th share of the suit properties.
49. Preliminary Decree sheet be prepared accordingly.
50. To ascertain the shares of the parties, this Court hereby appoints a Local Commissioner in terms of ordersheet of even date, to inspect the suit property for the purpose of measurement, and to explore the possibility of division and separation of the same by way of metes and bounds, and or other means as permitted under the law and to submit a report before this Court thereby declaring the share of the Plaintiff in the same.
51. Reader is directed to prepare final decree upon filing of report of LC.
52. No order as to costs.
53. File be consigned to record room after necessary compliance.
Digitally signedPronounced in the open Court on this 07th May, 2026 Arul byDate:Arul Varma Varma 2026.05.07 19:04:14 +0530 (ARUL VARMA) DISTRICT JUDGE-02/SOUTH, SAKET COURTS/NEW DELHI CS DJ 9274/2016 Page. 26 of 26 Harish Kumar Vs Anil Kumar & Ors