Delhi High Court
Rattan Chand Mehta vs Shri Jaswant Ram & Ors on 4 September, 2008
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2702/1997
% Date of decision :.04.09.2008
RATTAN CHAND MEHTA .......Plaintiff
Through: Mr Rohit Kumar, Advocate.
Versus
SHRI JASWANT RAM & ORS ....... Defendants
Through: Mr S.L. Chowdhary and Mr Padam Chowdhary,
Advocates for the Defendant No.1.
Ms Shashi Saxena, Advocates for Defendant
No.2.
Mr S.D. Lal, Advocate for Defendant No.3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.Whether reporters of Local papers may be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Not Necessary
3. Whether the judgment should be reported Not Necessary in the Digest?
RAJIV SAHAI ENDLAW, J
1. Partition of House No. II-O/15, Lajpat Nagar-II, New Delhi comprising of lease hold land admeasuring 200 sq yds and a single storied structure existing thereon is claimed in the present suit. The parties, particularly, the plaintiff and the defendant No.1 were found to be at issues as to the share of the respective parties in the said property. Objection was also raised that the land underneath the property being lease hold the property could not be partitioned. Issues were framed on the pleas raised. However, during the hearing on the said issues on 20th August, 2008 the counsel for all the parties CS(OS) 2702/1997 Page no. 1 of 14 submitted that subject to the decision on the shares, considering the nature of the property, instead of a preliminary decree, a final decree of partition by sale of the property with right to all the parties to bid for the property be passed.
2. It is the admitted position that the house belonged to Shri Mangu Ram Mehta. The plaintiff, the defendant No.1 and the defendant No.3 are the sons of Shri Mangu Ram Mehta. The defendant No.2 is the son of yet another son of Shri Mangu Ram Mehta. The defendant No.1 also died during the pendency of the suit and his legal heirs were substituted and amended memo of parties dated 7th April, 2005 filed. To avoid any further inconvenience to the parties, it is also recorded that though the defendant No.1 was named as Jaswant Ram and continues to be named so in the suit but he, in his written statement, stated that his name was Jaswant Rai Mehta and not Jaswant Ram. The plaintiff in replication thereto stated that in the lease deed issued by the L&DO the name of the defendant No.1 was mentioned as Jaswant Ram though in the mutation letter his name was mentioned as Jaswant Rai Mehta. This fact is being mentioned so that in sale or in execution or working of the decree, no difficulties are encountered for this reason.
3. It is also not in dispute that Shri Mangu Ram Mehta, owner of the house, died on 24th December, 1959 leaving the plaintiff, defendant No.1, defendant No.3 and the father of the defendant No.2 as his four sons, a widow and two daughters and the son of a predeceased daughter as his only legal heirs. None has claimed that CS(OS) 2702/1997 Page no. 2 of 14 Shri Mangu Ram Mehta left any Will. As such, in accordance with the Hindu Succession Act, on his demise the house aforesaid devolved on his widow, his four sons and his two daughters and the son of the predeceased daughter in equal shares.
4. It is in evidence of the plaintiff and has not been controverted by any of the defendants that the two daughters of Shri Mangu Ram Mehta and the son of the pre-deceased third daughter of Shri Mangu Ram Mehta abandoned and surrendered their share in the said house which had devolved on them, in favour of the widow and four sons of Shri Mangu Ram Mehta. Thus, the widow and four sons of Shri Mangu Ram Mehta came to hold 1/5 undivided share each in the said house.
5. It is further in evidence of the plaintiff and again has not been controverted by any of the defendants that the widow of Shri Mangu Ram Mehta relinquished her 1/5th share in the said house in favour of the plaintiff. The plaintiff has proved as exhibit PW1/1 the letter dated 19th August, 1979 of the office of the Deputy Chief Settlement Commissioner, Delhi mutating the house from the name of Shri Mangu Ram Mehta to the name of the plaintiff having 2/5th share and the defendant No.1, father of the defendant No.2 and the defendant No.3 each having 1/5th share. The plaintiff has further proved as Exhibit PW1/2 a lease deed dated 12th May, 1983 executed on behalf of the President of India with respect to land underneath the said house in favour of the plaintiff, defendant No.1, father of defendant No.2 and the defendant No.3, having the shares as CS(OS) 2702/1997 Page no. 3 of 14 aforesaid. A conveyance deed dated 12th May, 1983 of the superstructure existing on the land was also executed in favour of the said persons and showing them to be having the shares as aforesaid and has been proved as Exhibit PW1/3.
5. It is further the admitted position that the defendant No.1 vide release deed dated 30th July, 1991 registered on 21st August, 1991, out of his 1/5th undivided share in the house, for consideration released 1/10th share in favour of the plaintiff. The said release deed has been proved as Exhibit PW1/4.
6. The plaintiff thus instituted the suit claiming to be the owner of 2/5th plus 1/10th i.e., one half share in the house and claimed that the defendant No.1 was the owner of 1/10th and defendants No. 2 and 3 each were the owner of 1/5th share each in the house and claimed partition.
7. Each of the defendants filed their separate written statement. All the defendants took a plea that the property being lease hold could not be partitioned. The defendant No.1 while admitting execution of the release deed Exhibit PW1/4 with respect to 1/10th share in favour of the plaintiff took a plea as under:
"It is admitted that the defendant No.1 sold 1/10th share to the plaintiff but the same was sold on the condition laid down in the agreement. The plaintiff has not complied with the condition of agreement, therefore, the sale has become null and void."
8. In the aforesaid state of pleadings, the following issues were struck on 23rd May, 2001:
CS(OS) 2702/1997 Page no. 4 of 14 "1. Whether at the time Deed dated 30th July, 1991(registered on 21st August, 1991) was executed by defendant No.1 in favour of the plaintiff, later was in possession of entire land of the share of defendant No.1? If so, its effect?
2. Whether plaintiff has not complied with the conditions of deed dated 30th July, 1991 as alleged? If so, to what effect?
3. Whether restriction on sub-division of land contained in the lease deed dated 12th May, 1983 disentitles the plaintiff to seek separation of his share in suit property as alleged?
4. Whether suit has not been properly valued for the purposes of court fee and jurisdiction?
5. What are the respective shares of the parties in suit property?
6. Relief."
9. The counsel for the defendants No 2 and 3, at the time of hearing, did not oppose the partition or the shares of the parties as set out in the plaint. The counsel for the defendant No.1, however, argued that the share of the defendant No.1 was 1/5th and not by 1/10th as claimed by the plaintiff and consequently the plaintiff's share was 2/5th and not half as claimed by the plaintiff.
Re: Issue No.1
10. The plaintiff has in the plaint itself in para 11 stated that the plaintiff and the defendants No 2 and 3 are in possession of the whole of the suit property while the defendant No.1 resides at F-1/76, Lajpat Nagar-I, New Delhi. The plaintiff in his affidavit by way of examination in chief stated that since there was no division of land, nobody could say that anybody is in possession of any particular portion of the undivided land and CS(OS) 2702/1997 Page no. 5 of 14 claimed to be in possession of two rooms, one store, one kitchen, bath cum WC. The release deed executed by the defendant No.1 and which is also signed by the plaintiff (Exhibit PW1/4) also records that the physical possession of the defendant No.1's share in the property is with the plaintiff. The defendant No.1 also produced before the court an agreement dated 21st August, 1991 on which the plaintiff in his cross examination by the counsel for the defendant No.1 admitted the signatures. The said agreement has been proved as Exhibit PW1/D1. The said agreement also records that the plaintiff will hand over to the defendant No.1 the peaceful vacant possession of the defendant No.1's remaining 20 sq yds in the property by 28th February, 1993. The counsel for the defendant No.1, during cross examination of the plaintiff, had put to the plaintiff if the plaintiff had so put the defendant No.1 into possession of the defendant No.1's remaining 1/10th equal to 20 sq yds share in the property and the plaintiff answered that because the suit property was undivided, hence the possession of 1/10th share of defendant No.1 could not be given to him.
11. Thus, I find that the plaintiff was in possession alongwith the defendants No 2 and 3 of the property at the time of execution of the release deed dated 30th July, 1991 (registered on 21st August, 1991) proved as Exhibit PW1/4. However, neither has the counsel for the defendant No.1 argued the effect, if any, of the said fact on the outcome of the present suit nor do I find the said fact to be having any effect.
CS(OS) 2702/1997 Page no. 6 of 14
Issue is answered accordingly.
Re: Issue No.2.
12. This is the main issue on which arguments have been addressed. Though the issue has been framed with reference to the deed dated 30th July, 1991 Exhibit PW1/4 but I do not find any term to be complied with by the plaintiff qua the defendant No.1 in the said deed. The arguments were addressed by the counsel for the defendant No.1 in relation to the agreement dated 21st August, 1991 Exhibit PW1/D1 (supra). It is the said agreement which provides that while the defendant No.1 is releasing half of his 1/5th share i.e., 1/10th share in the house in favour of the plaintiff by a separate deed, the remaining 20 sq yds belonging to the defendant No.1 is in possession of the plaintiff and the plaintiff will hand over the peaceful and vacant possession of the said 20 sq yds to the defendant No.1 by 28 th February, 1993. It has been argued by the counsel for the defendant No.1 that the plaintiff having not so handed over 20 sq yds out of the house to the defendant by 28th February, 1993, the release by the defendant No.1 of his 1/10th share in the house in favour of the plaintiff had become null and void. As far as the issue as framed is concerned, I find that there was no such condition contained in the deed dated 30th July, 1991 requiring the plaintiff to put the defendant No.1 into possession of 20 sq yds out of the property. The issue as framed is thus liable to be decided against the defendant No.1 and in favour of the plaintiff.
CS(OS) 2702/1997 Page no. 7 of 14
13. However, even if the issue is to be decided with reference to the agreement dated 21st August, 1991 as argued by the counsel for the defendant No.1, instead of with reference to a deed dated 30th July, 1991, I still am unable to reach a conclusion that the plaintiff has not complied with the condition imposed on him.
14. It was in the knowledge of the plaintiff and the defendant No.1 at the time of making the release deed dated 30th July, 1991 and the agreement dated 21st August, 1991 that the share of the plaintiff as well as the defendant No.1 in the house was an undivided share. The release deed dated 30th July, 1991 Exhibit PW1/4 is of an undivided share. It was further in the knowledge of the plaintiff and the defendant No.1 that the defendant No.2 (or his predecessor) and defendant No.3 also had a share in the said house. Without all the parties' consenting to partition, it was not possible for the plaintiff to partition/carve out 20 sq yds out of the entire property and to put the defendant No.1 into possession thereof.
15. It cannot also be said that such handing over by the plaintiff to the defendant No.1 of 20 sq yds out of the property was consideration for the release deed. The release deed Exhibit PW1/4 was for consideration mentioned therein that is Rs 80900/- and not in consideration of the promise, if any, contained in the agreement dated 21st August, 1991. The deed dated 30th July, 1991 is a registered document and any plea that the CS(OS) 2702/1997 Page no. 8 of 14 consideration for the defendant No.1 to release his 1/10th undivided share in the house in favour of the plaintiff was the promise of the plaintiff to put the defendant No.1 into vacant possession and 20 sq yds of the property by 28th February, 1993 would be in contradiction of the terms of the registered document and such plea/evidence is not entertainable under Section 92 of the Indian Evidence Act. It is also significant that neither the agreement dated 21st August, 1991 nor the registered deed dated 30th July, 1991 makes the release by the defendant No.1 of 1/10th undivided share in favour of the plaintiff conditional upon the plaintiff handing over vacant possession of 20 sq yds of the property to the defendant No.1 and does not even provide that upon the failure of the plaintiff to do so the said 1/10th share would revert back to the defendant No.1. The agreement dated 21st August, 1991, besides handing over of the said 20 sq yds also refers to the plaintiff cooperating with the defendant No.1 in other legal proceedings.
16. The defendant No.1 also at the contemporaneous time did not aver that because of the plaintiff's failure to put him into possession of 20 sq yds of the property, release by him of his 1/10th undivided share in the property was null and void. A notice dated 1st October, 1996 i.e., shortly before the institution of the present suit, got issued by the defendant No.1 to the plaintiff through the same advocate representing the defendant No.1 in the present suit claims that upon the failure of the plaintiff to put the defendant No.1 into vacant possession of 20 CS(OS) 2702/1997 Page no. 9 of 14 sq yds of the property, the plaintiff had become liable to pay damages @ Rs 2000 per month to the defendant No.1. However, in the written statement, instead of claiming the said damages, a case was made of the release of 1/10th share having become null and void.
17. I do not find the plaintiff to be in breach of the condition of agreement dated 21st August, 1991 also. The plaintiff could have handed over possession of 20 sq yds equivalent of 1/10th share of the defendant No.1 in the house, only on partition of the house and for which purpose the present suit has been filed.
18. The agreement dated 21st August, 1991 whereunder the plaintiff had agreed to put the defendant No.1 into vacant possession of 20 sq yds of the property, even if breached by the plaintiff, cannot dent the release by the defendant No.1 of his 1/10th undivided share in favour of the plaintiff vide the registered deed dated 30th July, 1991. The defendant No.1, if aggrieved by any breach by the plaintiff of the agreement dated 21st August, 1991 had/has his remedies in law but the same cannot come in the way of the plaintiff being found to be having one half undivided share in the house pursuant to the release by the defendant No.1 of his 1/10th undivided share in favour of the plaintiff.
The issue is decided accordingly.
CS(OS) 2702/1997 Page no. 10 of 14 Re: Issue No.3.
19. It is urged that, as per the terms of the lease of the land underneath of the house, the same is indivisible and thus the suit for partition is liable to be dismissed. Clause E(vii) of the lease of the land proved as Exhibit PW1/2 "not to sub-divide the said land or building erected thereon or any part thereof without the prior permission of the Lessor in written." Simultaneously, with the execution of the lease of the land Exhibit PW1/2, deed of conveyance of building constructed thereon was also executed and it has been proved as Exhibit PW1/3 (supra). Thus, the position is while the land is lease hold the structure thereon is free hold. It has been held by this court in Chiranjilal & Anr v Bhagwan Dass & Ors 1991(3) Delhi Lawyer 350; Shri Mohinder Singh v Shri Kartar Lal 1997 III AD (Delhi) 626 and Ram Lal Sachdev v Smt Sneh Sinha 83 (2000) DLT 141 that such terms in the lease of the land underneath of the house cannot come in the way of a decree for partition being passed. It cannot also be lost sight of that the Government of India has in or about the year 1995 come out with a scheme for conversion of leasehold rights in the land underneath such houses into freehold. It is perhaps owning to the inter se disputes between the parties that such conversion could not happen. As noted by me at the outset, the parties have already consented to sale of the property. The parties are, thus, now required to only sell their undivided share in the property and for this reason also this issue has become otiose and is answered accordingly.
CS(OS) 2702/1997 Page no. 11 of 14 Re: Issue No.4.
20. The plaintiff is admittedly in possession of the property. As per the provisions of the Court Fees Act (Article 17(vi) of Schedule II) a fixed court fee of Rs 19.50 is payable on a suit for partition if the plaintiff has not been ousted from the property of which the partition is claimed. Even otherwise no evidence has been led and no argument has been addressed on the said issue and the said issue is decided in favour of the plaintiff and against the defendants.
Re: Issue No.5.
21. The plaintiff had examined as PW2 the witness from the L&DO who has proved as Exhibit PW2/1 the letter dated 24th June, 1997 of the Land and Development Office as the lessor of the land underneath the house of mutation pursuant to the demise of the father of the defendant No.2. As per the said letter, the parties have the following share in the house: plaintiff 1/2, defendant No.1 - 1/10, defendant No.2 - 1/5 and defendant no.3 - 1/5.
22. As observed by me also hereinabove, there was really no dispute about the share except for the transfer of 1/10th undivided share by the defendant No.1 in favour of the plaintiff. The said transfer has been found to be valid and subsisting. Thus, I hold that the parties have the shares as aforesaid in the house.
CS(OS) 2702/1997 Page no. 12 of 14 Issue No.6.
23. The parties, at the time of hearing, submitted that the property, subject to the decision on the shares, is incapable of being partitioned by metes and bounds and had submitted that no purpose would be served in first passing a preliminary decree and further prayed that upon a finding with respect to the shares of the parties being given, a final decree for partition by sale be passed and the parties be permitted to bid in the said sale and a Local Commissioner for the said purpose be appointed.
24. I pass a final decree for partition of the property by sale of the property with the parties being entitled to the following share in the sale proceeds: plaintiff - 1/2, Legal representatives of the defendant No.1 - 1/10, defendant No.2 - 1/5 and defendant No.3 - 1/5.
25. I appoint Mr B.S. Banerjee, Advocate as the Court Commissioner to sell the property. The fee of the Court Commissioner besides other expenses is tentatively fixed at Rs 50,000/- to be borne initially by the plaintiff and to be ultimately borne from the sale proceeds, as per the share aforesaid of the parties. The Local Commissioner shall within eight weeks from the parties approaching him first in this regard give opportunity to the parties to bid, inter se, and the party offering the highest bid shall be liable to, within the time to be fixed in advance by the Local commissioner, pay the consideration of the shares of CS(OS) 2702/1997 Page no. 13 of 14 the other parties, unless the parties jointly agree in writing to extend the said time of eight weeks. Upon the parties failing to so bid or arriving at any conclusion, the court Commissioner shall proceed to sell the property to outsiders by publication or otherwise, however, in consultation with the parties and with the aim of getting the best possible price of the property. The Court Commissioner while formulating terms of sale shall be entitled to provide for payment of earnest deposit forfeitable on the failure of the party/purchaser to pay the balance consideration within the time to be fixed by the Court Commissioner. Let a decree sheet be drawn up accordingly and a copy of this judgment be forwarded to the Court Commissioner.
RAJIV SAHAI ENDLAW
(JUDGE)
September 04, 2008
M
CS(OS) 2702/1997 Page no. 14 of 14