Delhi District Court
Ashok Kumar Aggarwal vs Arun Kumar Aggarwal And Anr on 11 November, 2024
THE COURT OF MS NEHA PALIWAL SHARMA
DISTRICT JUDGE-03, CENTRAL DISTRICT,
TIS HAZARI COURTS, NEW DELHI
CNR No. DLCT01-012099-2019
CS DJ No: 904/2019
In the matter of :-
Sh. Ashok Kumar Aggarwal
S/o Late Sh. Laxmi Narain Aggarwal
R/o 1/1167, Sat Nagar,
Karol Bagh,
New Delhi-110005
......Plaintiff
Versus
1. Sh. Arun Kumar Aggarwal
S/o Late Sh. Laxmi Narain Aggarwal
R/o 9774, Thakur Ahata Dass,
Near Durga Mata Mandir,
1C Block, New Rohtak Road,
New Delhi-110005
2. Sh. Atul Kumar Aggarwal
S/o Late Sh. Laxmi Narain Aggarwal
R/o 63/4201, Regarpura,
Karol Bagh,
New Delhi-110005
......Defendants
Date of institution : 05.09.2019
Reserved for Judgment : 28.10.2024
Date of decision : 11.11.2024
CS DJ No: 904/2019 Page No. 1 of 26
Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2024.11.11 17:28:58
+0530
SUIT FOR PARTITION AND PERPETUAL INJUNCTION
JUDGMENT
1) This is a suit for partition and permanent injunction in respect of immovable property bearing No. 63/4201, Regarpura, Karol Bagh, New Delhi-110005 (hereinafter referred to as suit property) measuring 50 square yards in terms of family settlement dated 03.06.2004, filed by the plaintiff against the defendants.
2) Succinctly put, the case of the plaintiff, as per the plaint, is that the plaintiff and defendants no.1 and 2 are the legal heirs of late Sh. Laxmi Narain Aggarwal and late Smt. Prem Lata Aggarwal (their father and mother respectively). Their family and parents owned and possessed the following properties:
a) Property bearing Municipal no. 4195, measuring 50 square yards, street no. 63, Khasra No. 1624, Block E, situated at Basti Rehgar, Karol Bagh, New Delhi-110005 which was owned in the name of Sh. Laxmi Narain Aggarwal by virtue of lease deed duly registered as document no. 1897, in Addl. Book No.I, Volume No. 3099, on pages 62 to 67 dated 17.03.1973 with the office of Sub-
Registrar, New Delhi read with Intkal No. 23227/1.
b) Property comprising of 3-1/2 storeyed built up property bearing Municipal No. XVI/11677, constructed upon leasehold plot of land measuring 75 square yards, in Block U, Khasra No. 3566/640/2 situated at Basti Rehgarpura, Karol Bagh, New Delhi- 110005 owned by Arun Kumar Aggarwal (defendant no.1), Ashok Kumar Aggarwal (plaintiff) and Atul Kumar Aggarwal (defendant CS DJ No: 904/2019 Page No. 2 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:29:09 +0530 no.2) by virtue of sale deed duly registered as document no. 1241 in Addl. Book No.I, Volume No. 5200, on pages 5 to 9, on 27.02.1985 with the office of Sub-Registrar, Delhi.
c) Property bearing Municipal No. 4201, measuring 50 square yards, street no. 63, Block-E, situated at Basti Rehgarpura, Karol Bagh, New Delhi-110005 owned by Smt. Prem Lata Aggarwal by virtue of sale deed duly registered as document no.10788, in Addl. Book No.I, Volume No. 8992, on pages 155 to 163 on 11.12.1995 in the office of Sub-Registrar, Delhi.
d) Property bearing No. F-8, measuring 25 square yards, situated at JJ Colony, Inderpuri, New Delhi-110012 owned by Prem Lata Aggarwal by virtue of General Power of Attorney etc. duly notarized.
e) Property bearing no. B-14,15, measuring about 50 square yards situated at JJ Colony, Inderpuri, New Delhi-110012 by virtue of General Power of Attorney.
3) It is further the case of the plaintiff that the father of parties namely Sh. Laxmi Narain Aggarwal expired on 21.10.2009 and their mother Smt. Prem Lata Aggarwal had expired on 05.03.2019. During the lifetime, the father of the parties divided and distributed the properties so owned and possessed and an oral settlement was entered into between the parties. The said oral settlement was even reduced into writing vide Family Settlement Deed duly notarized on 03.06.2004. As per the said family settlement deed, it was amicably settled and decided that Sh. Arun Kumar Aggarwal (defendant no.1) will become the sole and absolute owner of property CS DJ No: 904/2019 Page No. 3 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:29:22 +0530 bearing Municipal no. 4195, measuring 50 square yards, street no. 63, Khasra No. 1624, Block E, situated at Basti Rehgar, Karol Bagh, New Delhi-110005. Sh. Ashok Kumar Aggarwal (plaintiff) will become the sole and absolute owner of property bearing Municipal No. XVI/11677, constructed upon leasehold plot of land measuring 75 square yards, in Block U, Khasra No. 3566/640/2 situated at Basti Rehgarpura, Karol Bagh, New Delhi-110005. Sh. Atul Kumar Aggarwal (defendant no.2) will become owner of half share out of total property no.4201, measuring 50 square yards, street no. 63, Block-E, situated at Basti Rehgarpura, Karol Bagh, New Delhi-110005 with peaceful physical and vacant possession of first floor, second floor and above; entire property bearing no. F-8, J.J. Colony, Inderpuri, New Delhi-110012 and entire property bearing B-14,15, JJ Colony, Inderpuri, New Delhi-110012. The possession of ground floor along with the ownership of half undivided share in property bearing no. 4201, measuring 50 square yards, street no. 63, Block-E, situated at Basti Rehgarpura, Karol Bagh, New Delhi-110005 was retained by Sh. Laxmi Aggarwal and Smt. Prem Lata Aggarwal (parents of the parties). The original notarized copy of the said family settlement deed was retained by each of the parties and the parties to the said family settlement deed had honoured the oral partition/ family settlement so agreed between the parties with their free will, consent and after the satisfaction with respect to their respective shares in the property from all and every kind of parental and family property. It was also agreed that the plaintiff and the defendants will not claim anything from their parents except that which had been given and distributed by them as penned down in the family settlement deed.
CS DJ No: 904/2019 Page No. 4 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:29:29 +0530 4) It is further the case of the plaintiff that it was further agreed that
family settlement will come into force on or before 15.12.2004, as per the mutual agreement amongst all the family members and all kinds of documents, as required will be executed and registered and peaceful vacant possession of the properties will be handed over to the respective parties on or before 15.12.2004. The said family settlement/ partition was acted upon by the parties with respect to their respective shares. Pursuant to the said family settlement, both the defendants through their general attorney Smt. Prem Lata Aggarwal/ late mother, released their respective shares in the property bearing Municipal No.XVI/11677, constructed upon leasehold plot of land measuring 75 square yards, in Block U, Khasra No. 3566/640/2 situated at Basti Rehgarpura, Karol Bagh, New Delhi-110005 in favour of plaintiff by virtue of Release Deed duly registered as document no. 827 in Additional Book No. I, Volume No. 11345 on pages 64 to 69 dated 03.02.20005 with the Sub-Registrar, Delhi and the plaintiff is in possession of the said property and the property is further mutated in his name and all the connections of electricity and water etc. are in his name. Similarly, the defendants are also occupying and enjoying their respective shares in the properties as agreed and necessary documents were executed in their favour.
5) It is further the case of the plaintiff that on 05.03.2019 when Smt. Prem Lata Aggarwal (mother) expired, defendant no.2 took control of the entire ground floor portion along with ownership of half undivided share in property no. 63/4201, Regarpura, Karol Bagh, New Delhi-110005 which was with the parents of the parties and even the constructive possession of plaintiff and defendant no.1 in the said property was also taken over by CS DJ No: 904/2019 Page No. 5 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:29:36 +0530 defendant no.2. Defendant no.2 was using the ground floor of the property after the demise of their father late Sh. Laxmi Narain Aggarwal in the year 2009 though the said ground floor was also succeeded by the plaintiff and defendant no.1 and therefore, as defendant no.2 is only using the said ground floor portion, he is liable to pay the user charges/ rental charges for the same to the plaintiff and defendant no.1 as per their share from 2009 onwards. The plaintiff has inquired that the similar portion in the same area could fetch Rs.20,000/- per month and hence, if the said user charges are claimed from defendant no.2, the same would arrive to an aggregate of Rs.24 lacs.
6) It is further the case of the plaintiff that after the demise of Smt. Prem Lata Aggarwal on 05.03.2019, the plaintiff had claimed division/ partition of the property by metes and bounds but despite repeated requests defendant no.2 is not ready to partition the property nor is permitting the plaintiff and defendant no.1 to use their respective shares in the said property. Further, in order to frustrate the rights of the plaintiff and defendant no.1 in the above property, defendant no.2 is trying to create 3 rd party encumbrances by way of sale, renting out etc. of the said property and by parting with the possession of the same. In August 2019 and on 01.09.2019 the plaintiff had come to know that several people are visiting the said property for its purchase or for rent and defendant no.2 had even refused to partition the same with metes and bounds and to handover the share of the plaintiff. The plaintiff is legally entitled to 1/3 rd share in the half undivided share in the property bearing No. 63/4201, Regarpura, Karol Bagh, New Delhi-110005 and similarly defendants no.1 and 2 are also entitled to similar shares in the said property as left by the deceased CS DJ No: 904/2019 Page No. 6 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:29:44 +0530 parents of the parties. The parents of the parties had died intestate without executing any testamentary document and defendant no.2 is threatening to completely dispossess the plaintiff from his rights in the said property.
7) It is, thus, prayed that a decree for partition of property bearing no. 63/4201, Regarpura, Karol Bagh, New Delhi-110005, measuring 50 square yards by metes and bounds, be passed with 1/ 3 rd share in half share in the land beneath the building and handover to the plaintiff his share of the 1/3 rd share in the half share in the said property left by the deceased parents of the parties. It is also prayed that a decree of perpetual injunction be passed thereby restraining the defendants from selling, transferring, alienating, parting with possession or creating third party interest or in any manner encumbering the above property. The plaintiff also prayed that any other direction be passed to suggest a mode of partition to effect the partition of suit property by metes and bounds and handover the partitioned shares of the suit property to the parties or in the alternative to auction the property and order the payment of the said proceeds in proportionate shares to the parties to the present suit and a final decree for partition in favour of the plaintiff and against the defendants be passed.
8) Pursuant to the filing of the suit, summonses for settlement of issues were issued to the defendants. Written statement was filed on behalf of defendant no.1 Arun Kumar Aggarwal wherein he had supported the case of the plaintiff. It is the case of defendant no.1 that Late Sh. Laxmi Narain Aggarwal had distributed the properties amongst the plaintiff and the defendants by way of family settlement deed executed and notarized on 03.06.2004 as per which it was mutually agreed between all the parties in the said settlement that all kinds of documents, as required, shall be CS DJ No: 904/2019 Page No. 7 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:29:52 +0530 executed to implement the settlement agreement dated 03.06.2004 in favour of respective parties and accordingly, the documents were executed and registered in favour of the respective parties.
9) Written statement was also filed by defendant no.2 wherein he had taken preliminary objections that the suit of the plaintiff is not maintainable in law as there is no joint family property for partition. It is the case of the defendant that as per own case of the plaintiff, by virtue of a written family settlement dated 03.06.2004, all properties owned by the family, either in the name of individuals or joint, were partitioned and as per clause 2 of the agreement, it was agreed and undertaken by the plaintiff as well as the defendants that neither plaintiff nor defendants nor any of their successors shall claim anything from Sh. L.N. Aggarwal and Smt. Prem Lata Aggarwal, in respect of movable or immovable properties. Plaintiff is stopped from claiming any right in respect of the property exclusively owned by Smt. Prem Lata Aggarwal or Sh. L.N. Aggarwal. The plaintiff and defendant no.1 have no right, title or interest in the suit property bearing no. 63/4201, E-Block, Regarpura, Karol Bagh, New Delhi admeasuring 50 square yards, constructed on ground floor, first floor, second floor, third floor and above in the said property. Defendant no.2 had become absolute owner of 50% share of the ground floor, first floor, second floor, third floor and above with proportionate rights in land by virtue of family settlement deed 03.06.2004. Smt. Prem Lata, who had retained 50% share in the said property, had executed a registered gift deed dated 03.02.2005, which was witnessed by the plaintiff as well as defendant no.1, whereby she had gifted the remaining 50% share in the ground floor, first floor, second floor and third floor and above along with CS DJ No: 904/2019 Page No. 8 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:29:59 +0530 proportionate share in land underneath the property to defendant no.2. Defendant no.2, thus, became absolute owner of first floor, second floor, third floor and above along with proportionate share in the land underneath property bearing no. 63/4201, E-Block, Regar Pura, Karol Bagh, New Delhi and 50% share in the ground floor also.
10) It is further the case of defendant no.2 that the suit of the plaintiff is not maintainable as plaintiff and defendants have released their rights in respect of the suit property vide registered release deed dated 03.02.2005. Once the plaintiff had taken benefit of the family settlement duly registered, plaintiff is estopped from claiming any right in the property which has been gifted to defendant no.2 by the registered owner of the property. The suit is without any cause of action and there is no joint property which can be partitioned by metes and bounds or otherwise. The plaintiff is not in possession of any part of the property as entire property no. 63/4201, Regar Pura, Karol Bagh is in exclusive possession of defendant no.2 and the plaintiff has valued the said property at Rs.29 lacs on which the plaintiff has to pay Court Fee to the extent of the share claimed and the suit cannot be proceeded without payment of court fee. The plaintiff has admitted in para 13 of the plaint that the property is in exclusive possession of defendant no.2.
11) In the reply on merits, in the written statement, it is the case of the defendant that the plaintiff had undertaken not to claim any right, title or interest in respect of the suit property by virtue of written family settlement deed dated 03.06.2004 and registered declaration/ release deed dated 02.03.2005 duly signed by plaintiff and defendants. The properties mentioned in para 4 of the plaint were not joint family properties and were CS DJ No: 904/2019 Page No. 9 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:30:07 +0530 purchased in the name of individuals. The property at item no. (e) in para 4 was exclusively owned by defendant no.2. The plaintiff has intentionally concealed the registered declaration/ release deed dated 03.02.2005 and gift deed dated 03.02.2005 with an intention to harass defendant no.2. In the family settlement as well as in the registered declaration deed dated 03.02.2005, the plaintiff had himself undertaken not to claim any right in respect of the property in the hands of the parents and it was also agreed that neither any son nor their successors of legal heir shall claim any rights in respect of the property in question. In view of the undertaking of the plaintiff and defendants, coupled with the gift deed, the plaintiff and defendant no.1 are left with no right, title or interest in the suit property. Defendant no.2 is in exclusive possession of the suit property and electricity connection in the property is in the name of the defendant no.2 only and the plaintiff has intentionally concealed declaration deed and gift deed dated 03.02.2005 despite being a signatory to the said documents. The question of payment of rent to the plaintiff or any other person or the question of share of the plaintiff does not arise.
12) Replication was filed by the plaintiff to the written statement of defendant no.2 wherein the plaintiff had reiterated his stand as stated in the plaint and denied the contention of the defendant as stated in the written statement. It is the case of the plaintiff that the property owned by Smt. Prem Lata Aggarwal and Sh. L.N. Aggarwal, after their demise, shall go by virtue of law of succession in favour of all their legal heirs. The portion of the suit property exclusively owned by Smt. Prem Lata Aggarwal cannot be conveyed in favour of defendant no.2 by virtue of the alleged gift deed as the same was never the intention of the said family settlement so CS DJ No: 904/2019 Page No. 10 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:30:14 +0530 executed between the parties and it seems that the gift deed was got executed by defendant no.2 without any knowledge of deceased Smt. Prem Lata which is being challenged by the plaintiff. Even the witness so taken in the said document is without the knowledge of the plaintiff since on the said day several documents were executed by either of the parties and it seems that under the garb of the said documents, the witness of the plaintiff was also taken on the said Gift Deed. Defendant no.2 took undue advantage so reposed upon him for getting executed the Gift Deed without any knowledge and consent of the executants thereof. The intention of the family settlement is very much clear and hence, it cannot be expected that Smt. Prem Lata will ever gift her absolute ownership in the property in favour of the defendant no.2.
13) Perusal of the record reveals that an application under Order VI Rule 17 CPC was filed by the plaintiff seeking amendment of plaint whereby the plaintiff sought the relief of declaration that the Gift Deed dated 03.02.2005 be declared as null and void. Vide order dated 18.02.2022, the learned Predecessor of this Court dismissed the said application holding that amendment sought was barred by limitation. The plaintiff challenged the said order before the Hon'ble Delhi High Court vide CM(M) 1459/2022, CM APPL. 56036/2022, CM APPL. 56037/2022 & CM APPL. 56038/2022 titled as Shri Ashok Kumar Aggarwal vs. Shri Arun Kumar Aggarwal & Anr. However, the said petition was dismissed as withdrawn by the Hon'ble Delhi High Court vide order dated 23.12.2022.
14) After perusal of the pleadings of all the parties, following issues were framed on 17.10.2022 by the learned Predecessor of this Court for trial, namely:
CS DJ No: 904/2019 Page No. 11 of 26 Digitally signed by NEHANEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:30:22 +0530
1. Whether plaintiff is entitled to a decree of partition of the property bearing no. 63/4201, Regarpura, Karol Bagh, New Delhi-110005 measuring 50 sq. yds. as shown in site plan as prayed in para A of the prayer clause? OPP
2. Whether plaintiff is entitled to a decree of perpetual injunction restraining the defendants from selling, transferring, alienating, parting with possession or creating third party in the suit property? OPP
3. Whether suit of the plaintiff is not maintainable in law as there is no joint family property? OPD-2
4. Whether the plaintiff has no cause of action to file the present suit? OPD-2
5. Whether the suit is not properly valued for the purpose of court fee? OPD-2
6. Relief.
15) Thereafter the matter was fixed for plaintiff's evidence.
16) At the stage of plaintiff's evidence, plaintiff Ashok Kumar Aggarwal had examined himself as PW1. PW1 had tendered his evidence by way of affidavit Ex.PW1/A and had relied upon following documents in his evidence by way of affidavit:
1. Family settlement notarized on 03.06.2004, Ex.PW1/1.
2. Release Deed, Ex.PW1/2.
3. Property tax receipts, Ex.PW1/3 (colly).CS DJ No: 904/2019 Page No. 12 of 26 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2024.11.11 17:30:32
+0530
4. Electricity bill, Ex.PW1/4.
5. Water bills, Ex.PW1/5 (colly).
6. Mutation, Ex.PW1/6.
7. Inteqal, Ex.PW1/7.
8. Site plan of the suit property, Ex.PW1/8.
17) PW1 was cross-examined by the Ld. Counsel for defendant no.2 at length. He, in his cross-examination, had deposed that in the year 2005, when various documents in respect of the properties were executed between the family members, he was in the business of export job work whereas his brothers were in the business of document writing. He admitted that the document Ex.PW1/DX1 (which is a registered declaration deed executed by defendant no.1, plaintiff and defendant no.2) bear his signatures at point A on each page and his photograph is affixed at point A1. He further deposed that the documents executed on 03.02.2005, in respect of the family properties, were executed in terms of family settlement Ex.PW1/1 and he had signed the said family settlement on each page. He further deposed that since the document Ex.PW1/1 was not drafted in his presence, hence he was not aware as to who had drafted the said document. Defendants no.1 and 2 were in the profession of document writing and the same might have been drafted by them. He had signed the family settlement at their residence in the presence of all the family members. He is a Graduate and had signed the document Ex.PW1/1 after reading the contents of the same.
18) PW1 further deposed that the release deed Ex.PW1/2 was got signed by all the family members including him on 03.02.2005 and the same was CS DJ No: 904/2019 Page No. 13 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:30:39 +0530 executed and registered on 03.02.2005. The document Ex.PW1/DX2 (Gift Deed executed by Smt. Prem Lata in favour of defendant no.1) bear his signatures at point B and the said document was also got registered on the same day, that is, 03.02.2005. He admitted that the property bearing no. 63/4201, Rehgar Pura, Karol Bagh, New Delhi-05 was originally in the name of his mother. PW1 further deposed that his father had expired on 21.10.2009 and his mother expired on 05.03.2019. He admitted that he never challenged the document Ex.PW1/DX-2 from 03.02.2005 till filing of the present suit and had volunteered that he was never given copy of the said document and he had no knowledge about the said document before filing of the written statement. He admitted that Ex.PW1/DX-2 is a registered document and he is a witness to the said document. He further admitted that he never paid/ deposited any house tax, water bill or electricity bill in respect of property no. 63/4201, Rehgar Pura, Karol Bagh, Delhi-05 and had volunteered that his father and mother were depositing the same. He deposed that he had not filed any such document to show that his father and mother were depositing the above-said bills in respect of the said property. He admitted that he had never been in physical possession of any portion of the said property. PW1 further deposed that first and second floor of the said property was in exclusive physical possession of defendant no.2 and third floor was not in existence. He admitted that it was agreed between him and his brothers that none of them would claim any right in respect of the said property 50% of which was owned by their mother Smt. Prem Lata and remaining 50% was owned by defendant no.2 Atul Kumar Aggarwal, however, stated that the said agreement was till the time their mother was alive. He further admitted that the share of his father devolved into his mother's share after CS DJ No: 904/2019 Page No. 14 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:30:48 +0530 the death of his father in the year 2009.
19) Vide separate statement of Ld. Counsel for the plaintiff, the plaintiff's evidence was closed on 11.09.2023 and the matter was fixed for defendants evidence.
20) At the stage of defendants evidence, defendant no.1 chose not to lead evidence and his counsel closed his evidence vide statement dated 09.10.2023.
21) Defendant no.2 Atul Kumar Aggarwal had examined himself as D2W1. D2W1 had tendered his evidence by way of affidavit Ex.D2W1/A and had relied upon following documents in his evidence by way of affidavit:
1. Family settlement notarized on 03.06.2024, already Ex.PW1/1.
2. Release Deed, already Ex.PW1/2.
3. Gift deed, already Ex.PW1/DX-2 (wrongly mentioned as Ex.PW1/D1 in examination-in-chief).
22) This witness was cross-examined by the Ld. Counsel for the plaintiff at length. D2W1, in his cross-examination, had deposed that his elder brother Sh. Arun Kumar Aggarwal was in the profession of deed writing/ document writing and he (witness) used to help him in the said profession. He deposed that the family settlement was prepared and drafted by his father who was in the said profession of deed writing and was holding the license for the same which license was later on transferred in the name of defendant no.1 Sh. Arun Kumar Aggarwal. He admitted that in the CS DJ No: 904/2019 Page No. 15 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:30:58 +0530 declaration deed Ex.PW1/DX1 it was written that the plaintiff and the defendants will not claim any right in respect of property which was fallen into the share of Late Sh. L.N. Aggarwal and Smt. Prem Lata Aggarwal. He had deposed that all documents, that is, family settlement deed, gift deed, release deed, declaration deed were all executed and registered on 03.02.2005. He admitted that there is no reference of execution of any gift deed in his favour in the document Ex.PW1/DX1.
23) D2W1 had further admitted that the gift deed Ex.PW1/DX2 only mentions about the first floor and above of the property no. 4201, Ward No. 16, Plot No. 1269, Block-E, Gali No. 63-64, Regarpura, Karol Bagh, Delhi. He also admitted that the said property was in the name of his mother Smt. Prem Lata Aggarwal. He deposed that on the basis of family settlement, the plaintiff and defendant no.1 had relinquished their rights in the suit property. He admitted that he had also relinquished his rights in terms of the said family settlement. He deposed that he did not know about mutation, but he is paying house tax of the suit property.
24) Vide separate statement of defendant no.2, the defendants evidence was closed on 08.04.2024 and the matter was fixed for final arguments.
25) Final arguments heard as advanced by Ld. Counsels for the parties and material available on record perused.
Issue wise findings are as follows:
Issues No. 1 and 2:
● Whether plaintiff is entitled to a decree of partition of the property bearing no. 63/4201, Regarpura, Karol Bagh, New Delhi-110005 CS DJ No: 904/2019 Page No. 16 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:31:38 +0530 measuring 50 sq. yds. as shown in site plan as prayed in para A of the prayer clause? OPP ● Whether plaintiff is entitled to a decree of perpetual injunction restraining the defendants from selling, transferring, alienating, parting with possession or creating third party in the suit property? OPP
26) Both the above issues are taken up together being interconnected and as onus of proving both the issues was on the plaintiff. It is the case of the plaintiff that gift deed Ex.PW1/DX-2 was never communicated to him and he in his affidavit of admission-denial of documents, had also denied the said gift deed. However, Ex.PW1/DX-2 is a registered gift deed executed on 03.02.2005 by the mother in favour of defendant no.2 with respect to the first floor and above of the suit property along with its proportionate undivided share in the land and the said document is witnessed by the plaintiff himself. PW1 had also admitted in his cross-examination that the said document bears his signatures at point B. He had further admitted that the suit property was in the name of his mother and that till the filing of the present matter, he had not challenged the registered gift deed Ex.PW1/DX-2. His application for amendment seeking the relief of declaration that the gift deed Ex.PW1/DX-2 be declared as null and void, was dismissed on the ground that the said relief was barred by the law of limitation. The plaintiff had challenged the said order before the Hon'ble High Court of Delhi but had later on withdrawn the same, therefore, the said order dated 18.02.2022 had attained finality and thus the plaintiff cannot assail the validity of gift deed Ex.PW1/DX-2.
27) Gift Deed Ex.PW1/DX-2 is a registered document executed by mother in favour of defendant no.2 with respect to first floor and above of CS DJ No: 904/2019 Page No. 17 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:31:51 +0530 the suit property and it is further admitted that mother was the owner of the entire suit property prior to execution of the documents. In view of the same, it is held that defendant no.2 by virtue of gift deed Ex.PW1/DX-2, which is a registered document, is the sole and absolute owner of first floor and above of the suit property and the plaintiff and defendant no.1 are not entitled to any share therein. The said gift deed is further fortified by the declaration deed Ex.PW1/DX-1 dated 03.02.2005 executed inter-se between plaintiff and both the defendants, wherein the plaintiff and defendant no.1 had admitted that defendant no.2 will have first floor and above of property no.2 (suit property) [in clause 1(c) of the declaration deed]. The said declaration deed was also duly registered and therefore, the intention of the parties is clear that it was agreed that defendant no.2 will have first floor and above of the suit property.
28) The only dispute which remains is with respect to the ground floor of the suit property. It is the case of defendant no.2 that he is absolute owner of first floor and above of the suit property and is also owner of 50% undivided share in the ground floor of the suit property. The 50% undivided share in the ground floor of the suit property is claimed by defendant no.2 on the basis of family settlement Ex.PW1/1.
29) Family settlement Ex.PW1/1 is admitted by all the parties. However, the said document is a mere notarized document and is not a registered document. As per Section 17 (1) (b) of the Registration Act, non-
testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property shall be registered. As CS DJ No: 904/2019 Page No. 18 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:31:58 +0530 per Section 49 of the Act, if such documents are not registered, then they will not affect any immovable property comprised therein nor will be received as evidence of any transaction affecting such property or conferring such power.
30) It is well settled that an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causing a change of legal relation to the property divided amongst the parties to it, requires registration under Section 17 (1)(b) of the Act. However, a writing which merely recites that in past there has been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction.
31) It was held in the case titled as Sakharam Krishanji Vs. Madan Krishanaji, I.L.R. 5 Bom. 232 that a writing which merely recites that there has been, in past a family partition is not declaration of will. A document which acknowledge the past partition is not compulsory register-able. It has to be seen whether the document in itself creates title or it only acknowledges antecedent title to the property (reliance is placed on Qabool Singh Vs. Board of Revenue, AIR 1973 All. 158).
32) It was held in the case of Tek Bahadur Bhujil Vs. Debi Singh Bhujil, AIR 1966 SC 292 that where a document is nothing but memorandum of what had taken place and therefore is not a document which would require CS DJ No: 904/2019 Page No. 19 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:32:06 +0530 compulsory registration under Section 17 of the Registration Act. In Kale v. Deputy Director of Consolidation, AIR 1976 SC 807 it was observed that the family arrangement may be even oral in which case no registration is necessary. The registration would be necessary only if the terms of the family arrangement 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 immovable properties and is, therefore, not compulsorily registrable.
33) In the case titled as Roshan Singh v. Zile Singh, AIR 1988 SC 881 it was held that a mere agreement to divide does not require registration but if the writing itself effects a division, it must be registered.
34) Thus, a partition may be effected orally but if it is subsequently reduced into a form of document and that document purports by itself to effect a division, it will be necessary to register it. If it will not be registered, Section 49 of the Act will prevent it from being admitted in evidence. However, partition lists which are mere records of a previously completed partition between the parties will be admitted in evidence even though they are unregistered, to prove the fact of partition in view of proviso to Section 49 of the Act.
35) In the present case in hand, perusal of Ex.PW1/1, family settlement deed, reveals that para 7 of the same clearly states that the settlement will CS DJ No: 904/2019 Page No. 20 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:32:15 +0530 come into force on or before 15.12.2004 as per the mutual agreement amongst all the members. The said family settlement was reduced into writing on 03.06.2004 and contained a specific provision that it will come into force on or before 15.12.2004 thereby providing a future date for its implementation and execution. Thus, it cannot be said that Ex.PW1/1 merely recorded a previously completed partition into writing but it by itself ought to create for the first time right, title or interest in the immovable properties described therein. Hence, it was required to be registered under Section 17 (1) (b) of the Registration Act. As the family settlement was not registered and is a mere notarized document, therefore, the same cannot be said to affect any immovable property comprised therein nor can be received as evidence of any transaction affecting such property in terms of Section 49 of the Registration Act.
36) In view of the above discussion, though the execution of Ex.PW1/1 is admitted by all the parties therein, yet the same cannot be received as evidence of any transaction affecting any immovable property nor can the same affect any immovable property comprised therein in terms of Section 49 of the Act as the same was required to be registered under Section 17 (1) (b) of the Act. Thus, Ex.PW1/1 cannot confer 50% undivided share in the ground floor of the suit property in favour of defendant no.2.
37) Besides the suit property, various other properties were also mentioned in the family settlement, however, admittedly parties had entered into registered release deed (Ex.PW1/2) with respect to property bearing Municipal No. XVI/11677, constructed upon leasehold plot of land measuring 75 square yards, in Block U, Khasra No. 3566/640/2 situated at Basti Rehgarpura, Karol Bagh, New Delhi-110005, parties had entered into CS DJ No: 904/2019 Page No. 21 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:32:24 +0530 registered declaration deed (Ex.PW1/DX-1) with respect to all the properties except the ground floor of the suit property, there is a registered gift deed (Ex.PW1/DX-2) in favour of defendant no.2 with respect to first floor and above of the suit property and there is also a registered gift deed in favour of defendant no.1 and his wife executed by the father of the parties with respect to property bearing Municipal no. 4195, measuring 50 square yards, street no. 63, Khasra No. 1624, Block E, situated at Basti Rehgar, Karol Bagh, New Delhi-110005. Thus all the other properties, except the ground floor of the suit property, as mentioned in the family settlement Ex.PW1/1, were further transferred, gifted, rights released or rights were declared, by way of registered documents.
38) Plaintiff, defendant no.1 and defendant no.2 are the only legal heirs of their late mother who was admittedly the owner of the ground floor of the suit property. As discussed above, family settlement Ex.PW1/1 cannot be looked into for the purpose of evidence nor the same can affect any immovable property comprised therein. Therefore, in the absence of any valid registered document creating any right in the ground floor of the suit property, the said property has to devolve upon the legal heirs by way of laws of intestate succession. The plaintiff and both the defendants being the only class-I legal heirs of deceased Smt. Prem Lata Aggarwal, are thereby entitled to 1/3rd share each in the ground floor of the suit property. As discussed above, defendant no.2 is the sole and exclusive owner with respect to the first floor and above of the suit property.
39) In view of the same, it is held that the plaintiff and both the defendants are entitled to 1/3rd share in the ground floor of the suit property, that is, property bearing no. 63/4201, Regarpura, Karol Bagh, CS DJ No: 904/2019 Page No. 22 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:32:32 +0530 New Delhi - 110005. They are further entitled for partition of the ground floor of the suit property by metes and bounds to the extent of their share, that is, 1/3rd share each in ground floor of the suit property.
40) Further, as it is held that the plaintiff is the co-owner of 1/3 rd undivided share in the ground floor of the suit property, the defendants are hereby restrained from selling, transferring, alienating, parting with possession or creating any third party interest in the ground floor of the suit property till actual partition takes place between the parties. The plaintiff is not entitled for any relief of injunction with respect to the first floor and above of the suit property as the said portions are in exclusive and absolute ownership of defendant no.2 by virtue of registered gift deed Ex.PW1/DX-2.
41) Both the issues are accordingly decided.
Issue No.3:
● Whether suit of the plaintiff is not maintainable in law as there is no joint family property? OPD-2
42) The onus of proving the above issue was upon defendant no.2. As is held in the preceding issues that the plaintiff is entitled for partition of the ground floor of the suit property, the same being the property in the name of the mother who had died intestate with respect to the ground floor, it is held that the suit of the plaintiff is maintainable and the ground floor of the suit property is a joint family property.CS DJ No: 904/2019 Page No. 23 of 26 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:32:40 +0530
43) This issue is accordingly decided in favour of the plaintiff and against defendant no.2.
Issue No.4:
● Whether the plaintiff has no cause of action to file the present suit? OPD-2
44) The onus of proving the above issue was also upon defendant no.2.
As discussed in the preceding issues, as the ground floor of the suit property was joint family property, therefore, the plaintiff had cause of action to file the present suit for partition and injunction.
45) Accordingly, this issue is decided in favour of the plaintiff and against defendant no.2.
Issue No.5:
● Whether the suit is not properly valued for the purpose of court fee? OPD-2
46) The onus of proving the above issue was upon defendant no.2. PW1 had admitted, in his cross-examination, that he had never been in physical possession of any portion of the suit property since beginning till the date of his deposition. In view of the categoric admission of the plaintiff that he was never in possession of the suit property, he was supposed to affix court fees with respect to his proportionate share in the suit property but he instead had affixed court fees of Rs.20/- along with the plaint for the relief of partition and therefore, proper court fees has not been filed for the relief CS DJ No: 904/2019 Page No. 24 of 26 Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:32:49 +0530 of partition.
47) This issue is accordingly decided in favour of defendant no.2 and against the plaintiff. However, as for the relief of partition the suit was valued for Rs.29 lacs, but court fees of Rs.20/- was affixed for the said relief on the ground that the plaintiff was in constructive possession, which claim has been refuted by evidence, an opportunity is given to the plaintiff to file deficient court fees by the next date of hearing.
Relief:
48) In view of above discussions and findings, it is held that the plaintiff and both the defendants are entitled to 1/3rd share each in the ground floor of the suit property, that is, property bearing no. 63/4201, Regarpura, Karol Bagh, New Delhi - 110005. They are further entitled for partition of the ground floor of the suit property by metes and bounds to the extent of their share, that is, 1/3rd share each in ground floor of the suit property.
49) Further, as it is held that the plaintiff is the co-owner of 1/3 rd undivided share in the ground floor of the suit property, the defendants are hereby restrained from selling, transferring, alienating, parting with possession or creating any third party interest in the ground floor of the suit property till actual partition takes place between the parties. The plaintiff is not entitled for any relief of partition or injunction with respect to the first floor and above of the suit property as the said portions are in exclusive and absolute ownership of defendant no.2 by virtue of registered gift deed Ex.PW1/DX-2.CS DJ No: 904/2019 Page No. 25 of 26 Digitally signed by NEHA
NEHA PALIWAL PALIWAL SHARMA SHARMA Date: 2024.11.11 17:33:13 +0530
50) An opportunity is given to the plaintiff to file deficient court fees with respect to the relief of partition by the next date of hearing.
51) Keeping in view the facts and circumstances of the case, parties are directed to bear their own costs. Let a Preliminary Decree be passed reflecting the shares of the parties in the suit property.
52) Parties shall suggest the mode of partition and thereafter the issue relating to appointment of Local Commissioner shall be considered on 23.12.2024.
53) Meanwhile, parties are also given an opportunity to sit together to work-out a settlement for partition of the suit property.
Digitally signed by NEHA NEHA PALIWAL PALIWAL SHARMA
SHARMA Date: 2024.11.11
17:33:22 +0530
Announced in the Open Court (Neha Paliwal Sharma)
on 11.11.2024 District Judge-03, Central District,
Tis Hazari Courts, Delhi
It is certified that this order contains 26 pages and each page bears my signatures.
NEHA Digitally signed by NEHA
PALIWAL SHARMA
PALIWAL Date: 2024.11.11
SHARMA 17:33:32 +0530
(Neha Paliwal Sharma)
District Judge-03, Central District,
Tis Hazari Courts, Delhi
CS DJ No: 904/2019 Page No. 26 of 26