Delhi District Court
Smt. Manju Jain vs Sh. Sushil Kumar Jain (Now Deceased) on 26 May, 2011
Raj Kumar Jain through LR's v. Sushil Kumar Jain
through LR's
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 136/08
Unique Case ID No.___________________
Sh. Raj Kumar Jain (now deceased)
Through his Legal Heirs
1. Smt. Manju Jain
W/o Late Raj Kumar Jain
2. Sh. Vipul Jain
S/o Late Raj Kumar Jain
3. Sh. Sachin Jain
S/o Late Raj Kumar Jain
R/o House No. 9/25, First Floor,
East Patel Nagar,
New Delhi-110 008. ......Plaintiffs
Versus
Sh. Sushil Kumar Jain (now deceased)
Through his Legal Heirs
1. Smt. Kanta Jain
W/o Late Sushil Kumar Jain
2. Sh. Arun Jain
S/o Late Sushil Kumar Jain
Both R/o 33/22, East Patel Nagar,
New Delhi.
3. Smt. Renu Jain
W/o Sh. Kimti Lal Jain
R/o 549-D, Adarsh Nagar,
Jallandhar, Punjab.
4. Shaily Jain
W/o Sh. Rajiv Jain
R/o 51, Jain Colony,
Gurmandi, Delhi.
5. Smt. Anju Jain
W/o Sh. Rajesh Jain,
R/o Sunder Nagar, Ludhiana,
Suit no.136/08
1 of 11
Raj Kumar Jain through LR's v. Sushil Kumar Jain
through LR's
Punjab. .....Defendants
Date of filing of the suit : 03.03.1994
Date of reserving order : 13.05.2011
Date of pronouncement of order : 26.05.2011
JUDGMENT
1. The plaintiff had filed the suit for a decree of declaration that the plaintiff is the owner and in possession of the first and second floor of the House No.9/25, East Patel Nagar, New Delhi-110008 (Hereinafter referred as "suit property") and a decree of permanent injunction restraining the defendant from interfering in the repair work in the suit property.
2. Briefly stated, the plaintiff and the defendants were real brothers. They had purchased a built up house bearing municipal number 9/25, East Patel Nagar, New Delhi-110008 (the suit property) from its erstwhile owner Sh. Attar Singh Pahwa S/o Sh. Bhagwan Singh vide registered sale deed dated 17.12.1975. They had been living along with their families in their respective portions in the suit property since the day it was purchased from its earlier owner.
3. The case set out in the plaint is that the plaintiff and the defendant had entered into an agreement on 27.03.1979 and partitioned the property whereunder the ownership and possession of the entire ground floor had vested in the defendant and the ownership and possession of the first floor and the barsati floor had vested in the plaintiff. The plaintiff and the defendant were entitled to use their respective portions under the terms of the said agreement. The plaintiff and the defendant had been living Suit no.136/08 2 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's in their respective portions in terms of the said agreement. They had carried out renovation, white wash and other repair work in their respective portions.
4. According to the plaintiff, their relations had become strained to and they were not on visiting terms. The defendant had carried out some changes in his portion on the ground floor of the suit property at the time of marriage of his son and the plaintiff had not interfered in the said repair work. The plaintiff had intended to carry out repair- work, renovation, sanitation work and electrical work in the room on the second floor of the suit property. The defendant had threatened the plaintiff and his family members that he would not allow him to carry out any repair. The defendant had also claimed share in the second floor of the suit property. The defendant had no right to interfere in the repair work in the portion of the plaintiff. The two stair-cases leading from the rear side of the suit property are in exclusive use and enjoyment of the plaintiff.
5. The case of the plaintiff is on 26.02.1994, the plaintiff had started repair work but the defendant had again caused interference in the repair work and claimed ownership in respect of half portion of the second floor of the suit property. It is stated that the plaintiff is the owner and in possession of first floor and second floor of the suit property under the agreement dated 27.03.1999 and the defendant had no right to cause obstruction in the repair work. It is stated that the suit property was partitioned on 27.03.1979 and the plaintiff had become the owner of the first and second floor of the suit property. The defendant has caused Suit no.136/08 3 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's clout on the title of the plaintiff and therefore, the plaintiff had filed the present suit for declaration and permanent injunction against the defendant.
6. In the written statement, the defendant contended that the document dated 27.03.1979 was not admissible in evidence as it was neither stamped and nor registered. The defendant contended that the plaintiff had obtained the said document by misrepresentation, fraud, coercion, duress, force and undue influence. The suit was barred under Section 41 (h) of the Specific Relief Act. The suit property was not properly valued for the purpose of court fee and jurisdiction.
7. On merits, it is admitted that the plaintiff and the defendant were real brothers. It is admitted that they had purchased the built up house vide registered sale deed dated 17.12.11975. It is admitted that the plaintiff and the defendant along with their families had been residing in the suit property as owners since the date of its purchase.
8. The case of the defendant is that the document dated 27.03.1979 is inadmissible in evidence. It does not operate as a partition deed. It did not partition the suit property. The suit property was never partitioned. The suit property is still a joint property. They being joint owners of the suit property had mutually agreed to use, occupy and enjoy various portions of the suit property. The agreement dated 27.03.1979 defined the mode of use of the joint property by the parties. It was not binding upon the defendant. It is stated that the plaintiff had been using the first floor while Suit no.136/08 4 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's the defendant had been using the entire ground floor. It is stated that the barsati floor had been in use and occupation of both the parties. It is stated that the plaintiff and the defendant were using one barsati each as well as the roof in common. It is stated that the plaintiff had taken illegal possession of the barsati which was in occupation of the defendant.
9. According to the defendant, the defendant and his family members are using the roof of the suit property. It is stated that the suit property is still joint and in the alternative, the partition being unequal is liable to be reopened. The plaintiff is not entitled to relief of declaration and permanent injunction, as prayed for.
10. On the pleadings of the parties, the following issues were framed on 21.11.2000:
1) Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD
2) Whether the plaintiff is entitled for the declaration as prayed in the suit? OPP
3) Whether the plaintiff is entitled for permanent injunction as prayed in the suit?
OPP
4) Relief
11. During the pendency of the suit, the plaintiff and the defendant had expired and their Legal Representatives were brought on record.
12. The defendants stopped appearing the suit since Suit no.136/08 5 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's 12.08.2008 and were proceeded ex-parte vide order dated 05.08.2010.
13. In the evidence, Sh. Sachin Jain, LR of the plaintiff (PW-1) filed his evidence by way of affidavit. He proved the agreement dated 27.03.1979 Ex. PW 1/1 and sale deed dated 17.12.1975 Ex. PW 1 /2.
14. I have heard the arguments of Sh. Anand Maheshwari, Advocate for the plaintiff and perused the evidence on record.
15. Ld. Counsel for the plaintiff argued that the agreement dated 27.03.1979 is a family arrangement. He relied upon K.G. Shivalingappa v/s G.S. Ishwarappa 2005 (1) RCR (Civil) 371 in support of his argument that unregistered partition deed can be relied upon to establish severance of the status in the join family. He argued that the agreement dated 27.03.1979 was compulsory registrable. He argued that the agreement Ex.PW-1/1 did not effect partition of the suit property by metes and bounds. He argued that the agreement Ex.PW-1/1 did not require registration as parties were already in possession of their respective portions and by way of the said documents, the parties had acknowledged the rights already in existence in the suit property. He argued that the agreement Ex.PW-1/1 had not created right, title or interest in favour of the parties for the first time in the suit property. He argued that the parties had entered into a bona-fide family arrangement and this Court can pass a decree on the basis of family arrangement Ex. PW 1/1. He relied upon A mteshwar Anand v. Virender Mohan Singh 2005 (4) RCR (Civil) 487 in support Suit no.136/08 6 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's of his argument that family arrangement is exempted from registration and the Courts lean in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. He argued that the suit was not required to be valued on the basis of market value of the suit property. He argued that the plaintiff has a discretion to value the suit for declaration U/s 7 (iv)(c) of the Court Fees Act. He argued that this is a simple suit for declaration and the plaintiff is not required to pay court fees on the market value of the suit property. He argued that the defendant had no right to cause any interference in the repair and renovation of the suit property permissible under Building Bye-laws.
Issue no.1 to 3:
16. Issue no.1 to 3 are inter-connected and therefore, they have taken together for determination.
17. In the present case, it is the admitted case of the parties they had jointly purchased the suit property vide sale deed 17.12.1975, Ex. PW 1 /2. It is the admitted case of the parties that they had entered into an agreement on 27.03.1979 with regard to the enjoyment of the suit property. It is the admitted case of the defendant that the plaintiff and the defendant had been living in their respective portions since the date of the purchase of the suit property. The defendant was in possession of the ground floor of the suit property and the plaintiff was in possession of the first floor and barsati floor of the suit property since the date of its purchase from the previous owner. It is therefore, apparent that the parties were in use Suit no.136/08
7 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's and enjoyment of their respective portions atleast since the date of the purchase of the suit property on 19.12.1975 till the date of execution of the agreement dated 27.03.1979, Ex. PW 1/1. It is therefore, evident that the agreement Ex.PW-1/1 had not divided the property by metes and bounds for the first time. Ex.PW-1/1 did not evidence any partition by meters and bounds and it would be beyond the purview of Section 17(1)(b) of the Registration Act. The parties had separate possession of their respective portions in the suit property even before the execution of the agreement dated 27.03.1979. It is therefore, evident that vide the said agreement Ex.PW-1/1 enjoyment of the respective portions had fallen to the share of the plaintiff and the defendant.
18. In so far as the case of the defendant that the plaintiff had obtained the said agreement by misrepresentation, force, duress, fraud and undue influence is concerned, it can be stated that the defendant has neither pleaded material particulars with regard to the misrepresentation, fraud, duress, undue influence and coercion nor led any evidence in that respect.
19. In so far as the admissibility of the agreement dated 27.03.1979 Ex.PW-1/1 is concerned, it can be stated that it was a bonafide family arrangement whereby the parties had mutually acknowledged the rights which were already in existence in respect of the use and enjoyment of the suit property. Family Arrangement Ex.PW-1/1 did not require registration and therefore, it is not hit by Section 17 of the Indian Registration Act. Ex.PW-1/1 is admissible in evidence.
Suit no.136/088 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's
20. The agreement Ex.PW-1/1 was executed between the plaintiff and the defendant for the benefit of the family. The intention behind the said agreement Ex.PW-1/1 was bring hormony in the family and to put an end to the dispute between them. In Amteshwar Anand v. Virender Mohan Singh (supra); Hon'ble Supreme Court held that 'the composite deed in this case was a transaction between the members of the same family for the mutual benefit of such members. There is the principle that Courts lean in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds particularly when the parties have mutually received benefits under the arrangement.' The court must lean in favour of the interpretation giving sanctity to mutual arrangement between the parties rather creating another round of litigation between them.
21. In the opinion of this court, the agreement dated 27.03.1979 Ex.PW-1/1 was a family arrangement and not a partition deed. The parties were in possession of their respective portions even before the execution of the agreement dated 27.03.1979. The said document had not created the rights in favour of the parties for the first time. The agreement dated 27.03.1979 did not require registeration.
22. Vide the said agreement, the ground floor had fallen to the share of the defendant and the first floor and the barsati floor with two rooms had fallen to the share of the plaintiff. The parties had also agreed that they will be entitled to use Suit no.136/08 9 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's their respective portions in any manner and further, they would not have any claim, title or interest therein.
23. In view of agreement dated 27.03.1979 Ex.PW-1/1, there can be no hesitation in reaching to the conclusion that the parties had recognized their rights in respect of the suit property and the plaintiff and the defendant had become owner of their respective portions in the suit property. The defendant had no right to cause any interference in the repair work, renovation and furnishing of the first floor and the basement floor of the suit property. The suit is a simple suit for declaration and permanent injunction. The suit was not required to be valued on the basis of the market value of the suit property. The plaintiff rightly valued the suit for the relief of declaration and permanent injunction and affixed fixed court fees thereupon. The plaintiff is entitled to a decree of declaration and permanent injunction, as prayed in the suit.
24. Accordingly, the issue no.1 to 3 are decided in favour of the plaintiffs and against the defendants.
Relief:
25. In view of the finding on the issue no.2 and 3, the suit for declaration and injunction filed by the plaintiffs is hereby decreed and a decree for declaration that the plaintiffs are the owner of first floor and second floor of the house no. 9/25, East Patel Nagar, New Delhi-110008 is passed in favour of the plaintiffs and against the defendants. The defendants are hereby restrained from causing any Suit no.136/08 10 of 11 Raj Kumar Jain through LR's v. Sushil Kumar Jain through LR's interference in the repair work of the first and second floor of the house no.9/25, East Patel Nagar, New Delhi-110008, which is permissible under Building Bye laws.
26. In the facts and circumstances of the case, the parties shall bear their own costs.
27. Decree sheet be prepared accordingly.
Announced in the open court On 26.05.2011 (SANJAY SHARMA) JSCC-cum-ASCJ-cum Guardian Judge (West), Delhi 26.05.2011 Suit no.136/08 11 of 11