Delhi High Court
Lala Om Prakash Son Of Late Lala Mithan ... vs Hari Ram Son Of Late Lala Mithan Lal on 29 November, 2004
Equivalent citations: AIR2005DELHI190, 116(2005)DLT71, 2005(79)DRJ453, AIR 2005 DELHI 190, 2006 (1) AKAR (NOC) 133 (DEL), (2005) 79 DRJ 453, (2005) 116 DLT 71
Author: Anil Kumar
Bench: Anil Kumar
JUDGMENT Vijender Jain, J.
1. Aggrieved by the order passed by the learned single Judge dated 25th April, 2003, inter alia, holding that there was no oral partition of the suit property and the respondent was not estopped from filing the suit because parties were living in the suit property for more than 30 years, a preliminary decree for partition of the suit property was passed. A local commissioner was appointed to suggest the mode of partition in equal shares.
2. Mr.Pramod Aggarwala, learned counsel appearing for the appellant, has contended that the impugned judgment is based on conjunctures and surmises and the observation in the impugned judgment is beyond the pleadings and the evidence on record. It as contended before us that when pursuant to the oral agreement between the parties, parties have acted upon the said oral agreement and living separately in specific portions in the said property for more than 30 years, the property stands partitioned and nothing more was required to be done. It was contended that the oral partition has to be given effect to partition of the property and the same was legally enforceable. It was contended that for such a long period, both the parties were living in their respective portions as independent owners. It was contended by the learned counsel for the appellant that the finding of the learned single Judge that in view of the common staircase and common entrance, no oral agreement had arrived at, is based on surmises and conjunctures. What was contended before us is that in a property even if there is a common entrance and staircase, yet it is feasible and possible to have separate partitioned portions. It was further argued that law does not require than property has to be divided in one single unit each. It was further contended that construction, renovation and alteration carried out by both the parties in the property was in their respective independent partitioned portions. On the basis of said pleadings and the evidence led by the parties, it could not have been inferred that there was no oral partition between the parties and the same was not given effect to. It was vehemently contended by Mr. Pramod Aggarwala before us that the finding of the learned Single Judge suffers from infirmity in so far as it has been held in the impugned order that the arrangement was on account of love and affection between the parties. Learned counsel for the appellant took pain in inviting our attention to the testimony of respondent, Om Prakash, DW1 and DW-2, Raj Singh Bhalla. Mr. Pramod Aggarwala, relying on Black's Law Dictionary, says that the definition of 'metes and bounds' is:-
''The boundary lines of land, with their terminal points and angles. A way of describing land by listing the compass directions and distances of the boundaries. It is often used in connection with the Government Survey System.''
3. On the basis of the aforesaid definition, it was contended that when pursuant to the oral agreement the parties have been living in their respective portion, no further partition is necessary. Reliance was also placed by the learned counsel for the appellant on Kale and Ors. v. Deputy Director of Consolidation and Ors.; and it was contended that both the parties who have been living together in a specific portion and have been benefited under the oral agreement are precluded from a sailing it. Reliance was placed by the learned counsel for the appellant on the observation of the said judgment which is reproduced as under:
''9. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made. ....''
10. In other words too put the binding effect and the essentials of a family settlement in a concretized forom, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2) The said settlement must be voluntary and should not be induced by fraud, co-ercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary.
(4) It is well-settled that registration would be necessary only if the terms of the family settlement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immoveable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favor of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same.
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which his fair and equitable the family arrangement is final and binding on the parties to the settlement.
4. Lastly, it was contended that the finding of the learned single Judge on issue No.2 regarding limitation was also illegal. It was contended that pursuant to Article 113 of the Limitation Act and as defined under Section 2(j) of the Limitation Act, limitation would be applicable in such kind of suits. On the aforesaid basis, the impugned judgment was assailed by the learned counsel for the appellant.
5. On the other hand, Mr. S.P. Aggarwal, learned senior counsel appearing for the respondent, has contended that appellant has taken shifting stands with regard to execution of oral agreement which shows that there was no oral agreement to partition the property. It was contended that in the written statement at page 37 of the paper book in paragraph 1, the stand taken by the appellant was that the oral agreement took place on or about 35 years back. That written statement was filed on 3rd January, 1994. Therefore, it was contended before us that if that date is taken to be correct, then the oral agreement must have been executed somewhere between 1959 to 1960 or in 1961. Further it was contended by Mr. S.P. Aggarwal that the appellant who appeare in the witness box as DW-1 had stated that the oral agreement was executed between the parties from 1944 to 1956. It was further contended that the witness produced by the appellant, Raj Singh Bhalla, who appeared as DW-2, had stated in his deposition hat the oral agreement was executed in 1954 prior to death of Mr.Mithan Lal father of the parties. However DW2 in his cross examination, on the other hand, had stated that both the parties used to live separately since 1940 at the time when Mr. Mithan Lal, the father of the parties, was alive. Both the brothers used to live in separate portions but they had same kitchen. On the basis of the aforesaid evidence, it was contended that no definite stand was taken by the appellant with regard to the execution of the oral agreement nor it has been proved as to when the alleged oral settlement had taken place. Neither the date, nor the time, nor the month was either mentioned in the pleadings or in the testimony of the parties and the year in which the alleged oral settlement/agreement had taken place is so much at variance. The stand is not at all consistent. Rather different stands have been taken by the appellant in the pleadings and inconsistent evidence has been led which demonstrates that there was n oral agreement partitioning the property between the parties and, therefore, it was contended that the learned Single Judge has rightly arrived at the finding that there was no oral agreement as pleaded by the appellant. It was further contended that o the basis of the site plan of the premises in question, which is Exhibit PW-1/1, it can not be inferred that there was oral agreement or settlement for the partition of the property between the parties. In the plan portion shown in yellow is in the occupation of the appellant and the green portion is in the occupation of the respondent and the red portion is common area. On the ground floor, the portion which is in the occupation of the appellant, over the said portion on the first floor, the portion is in possession of the respondent. This does not reflect that there was any rational partition between the parties. The plan and different portion in it just show the way the parties are living in the property and cannot be termed as partition where definite areas and boundaries have been specified. It was further contended by the respondent that in the event of anybody desiring to sell the property, the same was incapable of being alienated nor the construction can be carried out by any of the partie in their respective portions as it is incapable of being reconstructed so as to make one unit of different portions of the parties in their respective possession. Therefore, it was contended that once the alleged oral agreement has not defined, the are s in possession of the parties is merely the areas which are in their occupation without partition of the property. The finding of the learned Single Judge that there was no oral agreement are the natural corollary and is more probable in the entire gamut of facts and circumstances. The findings of the learned Single Judge can not be faulted on the grounds as alleged by the appellant.
6. It was contended by the respondent that for a suit for partition limitation does not apply. The parties are co-owners of the property they have got a right to sue for partition, In absence of oral agreement having been proved, the suit filed by the respondent was one for partition and the same was rightly so decided by the learned Single Judge and the suit is not barred by limitation as has been contended by the appellant. Article 113 of the Limitation Act will not be applicable nor on the basis of Section 2(j) of the Limitation Act, it can be held that the suit for partition is barred under the provision of limitation Act.
7. We have given our careful consideration to the arguments advanced by the learned counsel appearing for both the parties. The learned Single Judge from the pleadings of the parties framed the following issues :-
1. Whether there has been an oral partition of the suit property pursuant to family settlement which was acted upon? OPD
2. Whether the suit is barred by limitation in view of the averments made in para 1 of the preliminary objections and para 5 and 6 of the written statement? OPD
3. Whether the suit is not barred under Order 2 Rule 2 CPC on account of failure of the plaintiff to seek relief in the earlier litigation? OPP
4.Whether the plaintiff is estopped from filing the present suit when separate residence for each party had been allocated and there was allegedly division of the property during the lifetime of the mother and thereafter of the assets belonging to the mother? OPD
5. Whether the suit is barred by the provisions of the partition Act?OPD
6. Whether plaintiff and defendants have in their occupation having repaired and renovated the said portions and continued with their uninterrupted occupation over a long period? OPD
7. Relief.
8. As issue Nos.1, 4 and 6 had bearing on each other, they were disposed off together by the learned single Judge. When an oral agreement is pleaded, the parties must plead so precisely in the pleadings with regard to the year, month and date of such an oral agreement, at least year and month ought to have been pleaded with exactitude in the peculiar facts and circumstances. In the instant case, except a bald and vague pleading, nowhere in the written statement or in the testimony of the appellant or he witness of the appellant, it has been stated as to when oral agreement was entered into between the parties. The learned Single Judge after taking into consideration inconsistent stand of the appellant has rightly decided the said issue against the appellant. It was contended before us that the fact that the electricity bills were paid by the parties independently and the house tax was in the joint name of the parties, therefore, this Court and the Court below ought to have inferred that there was an oral agreement. There is no presumption that if two co-owners have separate electricity connection, then the portions in their possession will be pursuant to the partition. The burden of proving the existence of oral family settlement was on the appellant. The appellant failed to prove the circumstances in which the separate electricity connections were taken by two co-owners. Similarly the appellant failed to show that the alleged oral settlement resolved the disputes between the parties and divided the property equally among the co-owners. As the plea of oral agreement was taken by the appellant, it was for the appellant to lead the evidence by filing an application to the Municipal Corporation at the time of getting mutation in joint names or for obtaining electricity connection in different names. No material was filed before the Trial Court so as to ascertain the factum of the execution of oral agreement for partition of the property. The appellant failed to aver and prove the details of persons i whose presence the alleged oral settlement was arrived at and what was the necessity of oral partition at the time when ever it took place. The appellant has failed to aver and prove as to why the terms of oral settlement were not reduced into writing for the purposes of record. If we take the written statement, the plea advanced by the appellant was that oral agreement pursuant to the pleadings in paragraph 1 at page 37 has used the phrase 'a family settlement' this is how the paragraph 1 of the preliminary objections reads :-
''That there has already been a family settlement resulting in oral partition amongst the two brothers - parties to the suit by which the property as per the plan attached and marked 'A' fell to share of the answering Defendant and the property as per marked 'B' fell to the share of Plaintiff some 35 years back. The present suit for partition is not competent.''
9. At page 45 of the paper book, appellant who entered into the witness box deposed as under :-
''Satement of Shri Om Prakash S/o. Late Lala Mithan Lal aged 83 years, R/o, 1775, Kucha Latushah, Dariba Kalan, Chandni Chowk, Delhi on S.A. Examination in Chief by Sh.Sanjeev Kumar (Advocate) The property in question was purchased by my grand father Late Sh.Bhikhimal. He had two sons, namely Lala Mithan Lal and Lal Kuramal. Lala Kuramal died unmarried. My father thus inherited the property in question after the death of my grandfather. I and the Plaintiff are the two legal heirs of late Lala Mithan Lal. After the death of my father, I was living in my portion and the Plaintiff was living in the portion in his occupation. After the death of my father in the year 1944 and before the death of my mother in the year 1956 there was a family settlement orally. My mother had retained one room and one Kotha (store) for herself and the respective portions in occupation of the Plaintiff and myself were retained as it is. It was only an oral partition and it was not reduced in writing. After the of my mother the room and the Kotha were also partitioned. Kotha was taken over by the Plaintiff and the room was taken over by me. Since then I consider the portion in my occupation in my ownership and the portion in occupation of the plaintiff as his ownership. As per requirement of my family I made addition and alternation in the portion in my occupation without any objection and hindrance from the Plaintiff. I met the expenses for the said addition and alternation. The room situated on the ground floor is under renovation even today. The oral partition was not done by measurement. The portion in occupation of the Plaintiff might be bigger by 2/3 sq.yards. The respective portions in our occupation are such that it makes the property un-partitionable in my opinion. The site plan filed by the Plaintiff Ex.PW1/1 is not the correct site plan. I had filed the site plan along with my written statement showing the correct measurement and portions in the respective possession of the parties. The same is marked 'A' (to be exhibited by the Hon'ble Court). The present suit has been filed by the plaintiff to take revenge because of losing a case which he filed against me.''
10. The third stand about the year in which the oral settlement was arrived at is totally inconsistent of the aforesaid two pleas, which is conspicuously discernible from the testimony of DW-2. While the said witness in cross-examination has stated '' they used to live separately since 1940. At the time when Mithan Lal was alive, both the brothers used to live in separate portions but they have same kitchen.''
11. From the aforesaid testimony of Raj Singh Bhalla, the appellant's case of oral agreement as well as living together in the demarcated portions after that oral agreement stands totally demolished. DW-2 stated that he was present in 1954 prior to death of Mr.Mithan Lal when the parties agreed that they will live in different portions separately. Mithan Lal admittedly died in 1944. Even if we assume that this was the statement of this witness in relation to Ms.Mithan Lal who died in 1956, still the statement of the said witness that the parties, appellant as well as the respondent, used to live separately since 1940 when Mr.Mithan Lal was alive in separate portions assumes significance and negates the contention of the appellant regarding oral partition between the parties. From these pleadings and the evidence on record, the learned single Judge rightly came to the finding that it was on the basis of adjustment for living together, both the brothers were living in their respective portions, but they are living together in respective portion in the absence of any agreement to the contrary. To hold that there was a partition would be a case of non-application of mind in the facts and circumstances and finding would be without any basis.
12. It was contended before us by learned counsel appearing for the appellant that there was no love and affection between the two brothers. As a matter of fact, it was the defendant in the suit who is appellant before us who has taken the stand in the written statement in paragraph 6 at page 41. It is how it has been stated, ''so far as the defendant is concerned, he being elder brother has all love for younger brother but if the plaintiff is bent upon creating bad blood, the same cannot be helped and is unfortunate and is a misfortune. Defendant had continued very cordial elation for last about 35/40 years and it is Plaintiff's self created situation which has given him an occasion to state that the Plaintiff and the Defendant are not on good terms. The entire para is wrong and denied.''
13. Similar is the stand taken by the witness of appellant DW-2 when in the examination-in-chief he deposed that the plaintiff and defendant have got great love and affection. Therefore, the contention of learned counsel for the appellant that the finding of the learned single Judge with regard to the arrangement/adjustment of living together out of love and affection was neither contrary to the pleadings nor the evidence on record. During the course of hearing, we had asked learned counsel for the parties before us as to what is the size of their family. We were told that although the appellant who had died during the pendency of the appeal lived for about 88 years, the respondent is also about 80 years old. Both the brothers have got their families. The appellant has died with two sons who are residing in the premises with their children. The respondent has got two sons and five grandchildren and all are adult. Property in question is a house built on a 100 sq.yds. Therefore, the finding of the earned single Judge that it was only in the nature of arrangement of living in respective portion of the suit property and living without disputes earlier cannot construed too mean and reach the conclusion that there was an oral agreement. Once they live in their respective portions and the property being so owned and the same has been constructed, renovated or altered in respective of their respective portions, will not lead to a conclusion that there had been an oral agreement or any independent right emerged in relation to the said property. In the absence of any actual partition having taken place and for the aforesaid reasons, we do not see any infirmity with the impugned order by which a preliminary decree for partition was passed and a local comissioner was appointed for suggesting ways of partition of the property meets and bounds.
14. As we have held that there was no oral partition and the portion of the property were not partitioned and the parties are co-owners, the plea of the limitation raised by the appellant also fails. The co-owners have unity of possession and in the circumstances on partition of the property by meets and bounds or in any other manner the appellant will not be entitled to say that the respondent will not be entitled to his share of property. We also hold that the suit of the respondent was not barred by imitation as has been unsuccessfully raised by the appellant.
15. The preliminary decree for partition has not been assailed by the appellant on any other grounds except those which have been dealt with by us earlier. There is thus no merit in the appeal and the same is liable to be dismissed and the preliminary decree passed is hereby affirmed.
16. We have been told that the local commissioner has submitted its report to which objections have also been filed by the appellant. That will be decided expeditiously by the trial Court. Before hearing of this appeal, we had issued notices to the legal representatives of the appellant. All the legal heirs of the appellant served as per affidavit filed on 23rd November, 2004
17. Therefore, there is no merit in this appeal and the same is, accordingly, dismissed leaving the parties to bear their own costs.