Delhi District Court
Shri Ramesh Kumar Madan vs Shri Subhash Madan on 8 May, 2007
-:1:- Suit No. 4/2005
IN THE COURT OF DR. T. R. NAVAL ADDL. DISTRICT JUDGE
DELHI
Suit No. 04/2005
In the matter of:
Shri Ramesh Kumar Madan, son of late shri Amar Nath Madan, R/o F 38, Bali
Nagar, New Delhi. ...Plaintiff
Versus
Shri Subhash Madan, son of late Shri Amar Nath Madan, R/o F 38, First Floor,
Bali Nagar, New Delhi. ...Defendant
JUDGMENT
This judgment will dispose of a suit for partition and permanent injunction by the plaintiff on 4.6.2005.
2. The facts of the present case which are not in dispute are that plaintiff and defendant are real brothers. On 8.5.1985 both the brothers purchased a plot of land measuring 100 sq. yards each out of a single plot of land measuring 200 square yards from previous owner Smt. Gurmeet Kaur. Both of them got a home constructed thereon and that home is presently known as F-38 Bali Nagar, New Delhi, here in after referred to as the suit property. It was decided that plaintiff would live with his family at ground floor and defendant at first floor and the second floor portion will remain common. The portion in possession of the plaintiff has been shown in red ( Page No. 1 of 13 ) -:2:- Suit No. 4/2005 colour and the portion of the defendant has been shown in green colour and remaining portion is the common portion.
3. The case of the plaintiff is that there were good relations between the plaintiff and the defendant at the time of purchase and construction of suit property. Both the them spent equal fund for purchase and construction of suit property. However, each of them is owner of their respective portions as shown in the sale deed. In the year 2000, the defendant filed a suit against the plaintiff for specific performance and in the alternative for recovery of a sum of Rs.10,85,000/-. However, that suit was dismissed by Shri N. K. Kaushik, Ld. ADJ, Delhi. After dismissal of that suit plaintiff requested the defendant to partition the home as the disputes and differences between them have been raised and children of the parties have grown up. The defendant did not accede to his request. As he has declined his request on 28.5.2005 and 2.6.2005, therefore, he filed a suit for partition with the prayer that a decree of partition of suit property may be passed so as to separate ½ share of the plaintiff from the suit property as per the location and description shown in sale deed in his favour. It was also prayed that a decree for permanent injunction may be passed in favour of the plaintiff restraining the defendant from creating any third party interest or incumberances in the suit property.
4. The case of the defendant is that at the time of purchase of the suit property their father was alive. He was running his business. Father of the plaintiff and defendant contributed some amount in the construction of the suit property. At the time of construction, plaintiff and defendant had actually ( Page No. 2 of 13 ) -:3:- Suit No. 4/2005 constructed their respective portions on the ground, first and second floor. Parties have been living and occupying their respective portions for the last more than 15 years. They have become exclusive owners of the portion which is in their occupation. The defendant admitted that a suit against the plaintiff was filed by him. It was pleaded that plaintiff was misusing the suit property. He filed the suit for stopping the misuse and when the plaintiff stopped the misuse, he withdrew his suit. It has been pleaded that suit of the plaintiff is not maintainable for the reason that suit property is a joint property. The suit is barred by limitation and plaintiff has not valued the suit correctly for the purpose of payment of court fees, etc. It was also pleaded that suit of the plaintiff is bad for non-joinder of the parties.
5. In replication, the plaintiff controverted the allegations made by the defendant in the written statement and reiterated the averments made in the plaint.
6. On the pleadings of the parties following issues were framed:
1. Whether the suit is not maintainable for want of cause of action?
2. Whether the suit is bad for non-joinder of the parties? OPD
3. Whether the suit property can not be partitioned in view of the fact that both the parties have agreed to live on ground floor and first floor for the last more than 15 years? OPP
4. Whether the plaintiff is entitled for relief of partition of suit property ? OPP
5. Whether the plaintiff is entitled for relief of permanent injunction ?
( Page No. 3 of 13 ) -:4:- Suit No. 4/2005
7. In support of his case, plaintiff examined himself as PW-1. In support of his case, the defendant examined himself as DW-1.
8. I heard arguments of Ld. Counsels for the parties and perused file.
9. On perusal of pleadings of the parties; examination of evidence of the parties on record; and considering the evidence adduced by parties and arguments addressed by counsels of the parties, I formed my views on the issue and that are being discussed herein below issuewise.
FINDINGS ON ISSUE NO. 110. The burden to prove this issue was on the plaintiff. It has been argued on behalf of the defendant that there was no occasion for the plaintiff to demand the partition because plaintiff and defendant had exchanged their properties by family settlement and there was no justification for the plaintiff to demand partition. The counsel for the defendant rely on a case Mohar Singh, (dead by LRs), Vs. Devi Charan and others,1 and argued that even their self acquired properties can be disposed of by way of settlement. It was held therein that:
"It is true that a partition is not actual transfer of property but would only signify the surrender of a portion of a joint right in exchange for a similar right from the other co sharer or co sharers."
1 AIR 1988 SC 1365.
( Page No. 4 of 13 ) -:5:- Suit No. 4/2005
11. Counsel for the defendant further relied on a case Boop Singh Vs. Ram Singh Major & others,2. It was held therein that:
In Tek Bahadur Bhuji V. Debi Sing Bhujil, the constitution Bench of this court considered the validity of the family arrangement and the question was whether it requires to be compulsorily registered under Section 17. This court, while upholding oral family arrangement, held that registration would be necessary only if the terms of the family arrangements are reduced into writing."
12 In the present case, the parties have admitted that an oral arrangement / family settlement was made. PW 1, in his statement, admitted that the suit property was a single plot. They got single plan sanctioned from the MCD. At the time of construction, in the year 1985, it was agreed between them that ground floor portion of the suit property will in the occupation of the plaintiff and first floor portion would be in the possession of the defendant and ground floor courtyard and second floor as well as passage and staircase will be common. He further admitted that plaintiff and defendant have been residing and utilising the property in that manner since 1985 till date. This arrangement was oral one. Therefore, its registration under the Indian Registration Act was not compulsory. There is no evidence to show that parties had reserved their rights to partition the suit property or to claim their respective portion of 100 square yards. In these circumstances, and in view of the evidence on record and the reason and discussion made herein above and herein below, I am of the view that there was no cause of action for the plaintiff to seek partition. Therefore, this issue is decided in favour of the defendant and against the plaintiff.
2 1995-(SC2)-GJX-0806 SC ( Page No. 5 of 13 ) -:6:- Suit No. 4/2005 FINDINGS ON ISSUE NO. 2
13. Although, it was pleaded by the plaintiff that suit is bad for non- joinder of the parties, yet on perusal of evidence particularly, affidavit Ex. PW 1/A and DW 1/A, I find that neither of the parties adduced any evidence on this aspect. The burden to prove this issue was on the defendant. Therefore, this issue is decided in favour of the plaintiff and against the defendant and it is held that defendant has failed to prove that suit of the plaintiff is bad for non-joinder of parties.
FINDINGS ON ISSUE NO. 314. It has been argued on behalf of the defendant that in view of the family settlement and further that both the parties have been acting upon said family arrangement / settlement for the last more than 15 years, therefore, the principles of estoppel is applicable in the present case and the plaintiff can neither claimed partition nor suit property is partitionable.
15. It would be appropriate to reproduce the provision of Section 115 of Indian Evidence Act. These are as under:
"115. Estoppel.- When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act up such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
( Page No. 6 of 13 ) -:7:- Suit No. 4/2005
16. In case of Gyarsi Bai & Others Vs. Dhansukh Lal & others,3 it was held therein that:
"To invoke the doctrine of estopple embodied in S. 115, Evidence Act,1872, three conditions must be satisfied: (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom the representations has been made.***
17. In case of Mahindra and Mahindra Ltd. V. The Union of India and another,4 it was held that Estoppel can arise only if a party to a proceedings has altered his position on the faith of a representation or promise made by another.
18. In case of Dr. Ashok Kumar Maheshwari V State of U.P. & another,5 it was held that Doctrine of Promissory estoppel cannot be invoked for enforcement of 'promise' made contrary to law.
19. I have analyzed the evidence on record. I find that the family arrangement referred to here in above, was not contrary to law. Not only the defendant but also the plaintiff alter their respective possession on the representation / promise made by each other. Both the plaintiff and the defendant had surrendered their right of possession of 100 square yards of land in favour of other. They obtained single site plan. They constructed the suit property jointly with clear understanding that ground floor portion will be 3 AIR 1965 SC 1055 4 AIR 1979 SC 798 5 AIR 1998 SC 966 ( Page No. 7 of 13 ) -:8:- Suit No. 4/2005 occupied by the plaintiff and first floor portion will be occupied by the defendant and remaining portion will be common. They have also acted upon by following that arrangement for the last more than 15 years. Thus, all the three conditions for application of doctrine of estoppel are fulfilled in the present case.
20 In case of B. L. Sreedhar & others Vs. K. M. Munireddy,6 it was held that:
"Though estoppel is described as a mere rule of evidence, it may have the effect of creating substantive rights as against the person estopped. An estoppel, which enables a party as against another party to claim a right of property which in fact he does not possess is described as estoppel by negligence or by conduct or by representation or by holding out ostensible authority. Estoppel, then may itself be the foundation of a right as against the person estopped, and indeed, if it were not so, it is difficult to see what protection the principle of estoppel can afford to the person by whom it may be invoked or what disability it can create in the person against whom it operates in cases affecting rights. Where rights are involved estoppel may with equal justification be described both as a rule of evidence and as a rule creating of defeating rights. Of course, an estoppel cannot have the effect of conferring upon a person a legal status expressly denied to him by a statute. But where such is not the case a right may be claimed as having come into existence on the basis of estoppel and it is capable of being enforced or defended as against the person precluded from denying it."
21. The principle of law laid down in this case, is squarely applicable on the facts of the present case. On application of Doctrine of estoppel a valuable right in favour of the defendant has arisen the suit property.
6 AIR 2003 SC 578 ( Page No. 8 of 13 ) -:9:- Suit No. 4/2005
22. Let us now examine whether suit property is partionable? On perusal of cross-examination of PW1, I find that a single plot was purchased by them. A single construction plan was got sanctioned by them. He also admitted that as on this date, he was owner of the ground floor and the defendant was the owner of the first floor and ground floor courtyard and second floor as well as passage and staircase were common. It was stated that three electricity meter at the suit property were obtained. The connection at the ground floor was taken in his name. The connection at the first floor was taken in the name of defendant and connection at the second floor was in the name of his father. He continued to admit that if suit property is partitioned then there would not be any staircase in the right site and in the same way there would not be any toilet on the right side and kitchen will have to be divided. If new construction as comparable to the construction already exist at the suit property, is made either on a new plot or at the suit property after its demolition, then the amount of expenses comes to Rs.8 lakhs to 10 lakhs. He further stated that he could not take responsibility for getting the construction plan sanctioned for himself and the defendant and he would not bear the expenses of reconstruction or the cost of obtaining the sanctioned plan. He also stated that he was not ready to indemnify the losses if any suffered by the defendant due to cancellation of registry by the Government or building was damaged as a result from modification or reconstruction.
23. In view of the above reasons and discussion and I am of the view that principle of estoppel is applicable in the present case and the suit property ( Page No. 9 of 13 ) -:10:- Suit No. 4/2005 is not partitionable. Thus, this issue is decided in favour of the defendant and against the plaintiff.
FINDINGS ON ISSUE NO. 424. In case of State of H. P. and others Vs. Ganesh Wood Products and others,7 it was held that doctrine of estoppel being equitable doctrine should be kept elastic enough in the hands of Court to do complete justice between the parties. The court observed:
"The rule of promissory estoppel being an equitable doctrine, has to be moulded to suit the particular situation. It is not a hard and fast rule but an elastic one, the objective of which is to do justice between the parties and to extend an equitable treatment to them. If it is more just from the point of view of both promisor and promisee that the latter is compensated appropriately and allow the promisor to go back on his promise, that should be done; but if the Court is of the opinion that the interests of justice and equity demand that the promisor should not be allowed to resile from his representation in the facts and circumstances of the case, it will do so. This is the proper way of understanding the words "promisee altering his position". Altering his position should mean such alteration in position of promisee as it makes it appear to the court that holding the promisor to his reprsentation is necessary to do justice between the parties. The doctrine should not be reduced to a rule of thumb. Being an equitable doctrine it should be kept elastic enough in the hands of the court to do complete justice between the parties.
Anything and everything done by the promisee of the faith of the representation does not necessary amount to altering his position so as to preclude the promisor from resiling representation. If the equity demands that the promisor is allowed to resile and the promisee is compensated appropriately, that ought to be done. If, however, equity demands, in the light of the things done by the 7 AIR 1996 SC 149 ( Page No. 10 of 13 ) -:11:- Suit No. 4/2005 promisee on the faith of the representation, that the promisor should be precluded from resiling and that he should be held fast to his representation, that should be done. It is a matter of holding the scales even between the parties to do justice between them. This is the equity implicit in the doctrine."
25. It has been argued on behalf of the plaintiff that relation between the brothers has become sour. The children of the parties have grown up. In this situation it would be better if the suit property is partitioned and plaintiff is allowed to occupy 100 square yards of land with construction thereon.
26. On the other hand, it has been argued that if partition is allowed that could deteriorate the value of the suit property. The defendant will suffer irreparable loss. Keeping in view the principles of law laid down in case of State of H.P. and others Vs. Ganesh Wood Products and others, supra, I considered if it would be better in the welfare of both the parties to order for partition the suit property?
27. Keeping in view the statement of the plaintiff and particularly wherein he deposed in his cross examination that he was not willing to bear the expenses of modification or reconstruction of suit property and further that he could not take responsibility of getting construction plan sanctioned form the MCD for himself and defendant, and that he would not bear the expenses even for sanctioned plan, and further that he would not indemnify the loss, if any, which is suffered by the defendant due to partition, I came to the conclusion that plaintiff is not entitled for the relief of partition because the principles of estoppel cannot be made elastic to suit the requirement of present day ( Page No. 11 of 13 ) -:12:- Suit No. 4/2005 because the petitioner declined to perform the duties and responsibilities that may be imposed upon him. It is, therefored, held that plaintiff is not entitled to get the relief of partition as claimed by him in the present suit. This issue is accordingly decided in favour of the defendant and against the plaintiff.
FINDINGS ON ISSUE NO. 528. It is an admitted case of the parties that ground floor portion is in possession of the plaintiff, first floor portion is in occupation of the defendant and courtyard and staircase and second floor are occupied by them jointly. Therefore, and in view of the continuous following the family settlement, the plaintiff has become the owner of the ground floor portion, the defendant has become the owner of the first floor portion and both have become the owners of the common portion, therefore, neither plaintiff nor defendant can create third party interest in the common portion of the suit property. However, as it has been held that the present case has been filed without any cause of action, therefore, it is held that plaintiff is not entitled for the relief of decree of permanent injunction. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
29. In his plaint, the plaintiff valued the suit for the purpose of court fee and jurisdiction for Rs. 18 lakhs but in the cross examination, he deposed that value of the property as on the date of recording the statement i.e. 11.09.2006, was more than one crore. Therefore, it is held that plaintiff did not value the present suit correctly.
( Page No. 12 of 13 ) -:13:- Suit No. 4/2005 RELIEF Consequent upon the decisions of Issue Nos. 1 and 3 to 5 in favour of the defendant and against the plaintiff, it is held that plaintiff is neither entitled to get the relief of decree of partition nor the relief of decree of permanent injunction. Therefore, the suit of the plaintiff is dismissed with cost.
Decree sheet be drawn accordingly and file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON (DR. T. R. NAVAL)
th
THIS 8 DAY OF MAY, 2007. ADDL. DISTRICT JUDGE.
DELHI.
( Page No. 13 of 13 )