Delhi District Court
Sh. Suraj vs Sh. Laxman on 31 May, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE-05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
Civ/DJ No. 10840/16
CNR No. DLWT01-002213-2015
In the matter of :
Sh. Suraj
S/o Late Jagram Malporiya,
R/o E-235, Madipur Colony,
New Delhi-110063.
.......... Plaintiff
Vs.
1. Sh. Laxman
S/o Late Jagram Malporiya
(since deceased), through his LRs.
o. Ramesh (Son)
p. Shyam (Son)
q. Rajesh (Son)
r. Devender (Son)
s. Kiran (Daughter)
All R/o
B-493, Madipur Colony,
New Delhi-110063.
t. Tara (Daughter)
u. Geeta (Daughter)
Both R/o Kuteer Mandal,
Thakkar Bapa Colony,
Chembur, Mumbai-400071.
2. Hansraj
S/o Late Jagram Malporiya
R/o A-646, Madipur J. J. Colony,
New Delhi-110063.
Suraj Vs Laxman & Ors Page No. 1 / 27
3. Ramdhan
S/o Late Sh. Jagram Malporiya
R/o A-646, Madipur J. J. Colony,
New Delhi-110063.
4. Nema
W/o Late Sh. Chhotu Ram,
(Since deceased, Through LRs)
Ms. Santosh (Daughter)
Ms. Bhanwari (daughter)
Ms. Sampatti (daughter)
Sh. Chunni Lal (Son)
Sh. Nand Kishore (Son)
Sh. Om Prakash (Son)
Sh. Kishan Gopal (Son)
All R/o of:-
Village Dayalpura,
PO and Tehsil Didwana,
District Nagpur, Rajasthan-341303.
5. Bidami,
W/o Sh. Bhawar Lal,
R/o Kuteer Mandal
Thakkar Bapa Colony,
Chembur, Mumbai-400071.
6. Bhagwati,
W/o Madan Lal chaloramji Gsailal,
R/o Village Ramsiya, P.O. Gacchipura,
Tehsil Makrana, Distt. Nagaur,
Rajasthan-341504
.......... Defendants
SUIT FOR PARTITION, SEPARATE POSESSION AND
PERMANENT INJUNCTION
Suraj Vs Laxman & Ors Page No. 2 / 27
Date of institution : 04.09.2015
Judgement Reserved on : 27.05.2022
Date of Decision : 31.05.2022
JUDGEMENT
1. Plaintiff namely Suraj filed the present suit for partition, separate Possession and permanent injunction against defendants alleging following facts :-
"That late Sh. Jagram, father of the plaintiff and defendants no.1 (deceased) to 6, migrated from Prasad Nagar, Delhi to Madipur JJ colony in the year 1968 and under the re-settlement scheme of the Government, he was allotted a jhuggi at A-646, Madipur JJ Colony, New Delhi-110063 (hereinafter referred to as "suit property in question"). Sh. Jagram, died intestate on 01.09.1970 leaving behind 3 sons and 4 daughters. It is further averred that at the time of death of Late Sh.Jagram, his eldest son namely Sh. Laxman and daughter Nema were married. The entire family was dependent upon plaintiff and defendant no.1 as all other family members were minor at that time. Plaintiff and defendant no.1 with their joint funds and contribution raised pucca construction in suit property and got constructed two rooms at the ground floor and one room at the first floor, in or around the year 1976. It is further averred that the plaintiff got married on 12.12.1977 and after his marriage, he started residing on the first floor of the suit property and other family members started residing at the ground floor of the property. As the family grew, the family members found Suraj Vs Laxman & Ors Page No. 3 / 27 acute paucity of space in the said house, which is ad- measuring 25 sq. yards only and the plaintiff with the consent of other family members purchased property bearing no. E- 235, Madipur Colony and shifted there with his family members. It is further averred that in the later years, the younger brothers of the plaintiff got married and as a consequence, defendant no.1 i.e. Laxman shifted to his in laws house due to paucity of space, where he died in the year 1998. In the year 2003, defendant no. 2 & 3 approached the plaintiff and requested him to contribute in construction of the suit property as after construction it will be easy to partition the suit property by metes and bounds. The plaintiff gave Rs.1 lacs as his contribution towards it. After construction in the suit property, plaintiff approached the defendant no. 2 & 3 and requested them to partition the suit property but defendant no. 2 & 3 avoid the same on one pretext or other. Hence, plaintiff filed the present suit seeking following prayers from the Court :-
(i) Pass a preliminary decree of partition of the suit property bearing no. 646, Madi Pur JJ Colony, New Delhi-110063, as clearly shown in the site plan, in favour of the plaintiff thereby partitioning the suit property by metes and bounds to the extent of 1/7th share of the plaintiff and the separate possession of the said share of the plaintiff be also directed to be delivered to him and in case, the partition of the suit property is not possible by metes and bounds, the same may be ordered to be sold/auction in the open market and the proceeds Suraj Vs Laxman & Ors Page No. 4 / 27 of the same, to the extent of 1/7th share of the plaintiff, may be granted to him.
(ii) Confirm the said preliminary decree after ascertaining the shares of the parties and passing the preliminary decree.
(iii) Pass a decree of permanent injunction in favour of the plaintiff and against the defendants, their assigns, agents, attorneys, representatives etc. restraining them from selling, parting with, alienating, disposing off, leasing out or creating any third party encumbrance over the suit property and further from raising any construction over the suit property.
(iv) Any other or further relief, which this Hon'ble Court deem fit and proper be also granted in favour of the plaintiff and against the defendant."
2. LRs of Defendant no.1 namely Sh. Ramesh and Shyam had filed joint written statement in which they took the preliminary objection that the present suit is not properly valued for the purpose of court fees and jurisdiction. They submitted that they are co-sharer of the property and fully entitled to take their respective share and ready and willing to pay court fees as per direction of the Court. On merits, they admitted the case of plaintiff except that the defendant no.1 has assured for partition of the suit property but defendant no.1 also claimed for his share to the remaining defendants.
3. Defendant no. 2, 4, 5 & 6 ie. Sh. Hans Raj, Smt. Nema, Smt Badami and Smt. Bhagwati filed joint written statement. They denied Suraj Vs Laxman & Ors Page No. 5 / 27 that Sh. Jagram left behind three sons and four daughters but infact, he left behind four sons and three daughters. It is denied that the entire family was dependent upon plaintiff and defendant no.1. They submitted that plaintiff has left the suit property after his marriage i.e. in the year 1976 after taking his share and since then he is living separately having no concern with any of the defendant. It is denied by them that the plaintiff and defendant no.1 with their joint funds and contribution raised pakka construction in the suit property and got constructed two rooms at the ground floor and one room at the first floor in and around the year 1976. They further submitted that Laxman was living with his family on ground floor in the year 1976 and the remaining family were living on the first floor which was covered with cemented sheet. They submitted that plaintiff left the family in troubles after his marriage in the year 1976 and there is no contribution in the family of the plaintiff of any type. It is denied that defendant's brother approached the plaintiff seeking his consent and contribution in construction of the plaintiff and he gave Rs.one lac as his contribution for constructing the suit property. It is further submitted that plaintiff had taken his share in the year 1976 and defendant no.1 i.e. Laxman had taken his share in the year 1991 and all sisters were married there after,since 1991, the defendant no.2 and defendant no.3 were living in the said property and constructed the said property and the same was got constructed in the year 2003 that is why the property is exclusively occupied by the defendant no. 2 & 3. In the end, it is prayed that suit may be dismissed with heavy cost.
4. Plaintiff filed replications to written statements of defendant no. 3 and defendant no.2, 4, 5 & 6 wherein contents of plaint were reiterated Suraj Vs Laxman & Ors Page No. 6 / 27 and version of defendants was denied. However, it is explained by defendant no.2, 4, 5 & 6 that the plaintiff was born in 1956 and as such, at the time of death of his father (in 1970), his age was 14 years only and his elder brother Laxman, defendant no.1 herein was aged 16 years and the plaintiff got married on 12.12.1997 and he lived in the suit property on first floor. It is further explained by them while residing in the suit property, he got allotment of DDA Flat at Nand Nagari, Delhi, in the year 1983 and the possession of the same was delivered to him on 12.12.1983 and plaintiff's passport was also issued in the year 1982 in the suit property only, after due verification of the address of the plaintiff i.e. suit property. It is further explained that in the year 1976, Sh. Laxman was 22 years old and the plaintiff was 20 years old and both were major and earning and both of them had jointly constructed the suit property and plaintiff got married on 12.12.1997 and not on 12.12.1971. It is denied by defendant no. 2, 4, 5 & 6 that the plaintiff purchased another property no. E-235 after adding some amount to the amount towards his share, as alleged and any amount or a sum of Rs.4,000/- was given by defendant no.2 to the plaintiff towards plaintiff's share in the property, as alleged and the plaintiff purchased the property at Nand Nagri and after selling the jewellery of his wife. It is further submitted that at the time of marriage of the plaintiff in the year 1977, he had been working as Thekedaar in Bag Factory and some workers were also working under him and the plaintiff was earning Rs.2600 (approx) per month at that point of time. It is further submitted that not claiming the share does not legally debar any person from his/her share and as per law, the sisters have equal share in the suit property.
Suraj Vs Laxman & Ors Page No. 7 / 275. Vide order dated 17.01.2020, all the defendants except defendant no. 2, 4 to 6 were proceeded exparte at the stage of defendant's evidence.
6. After completion of pleadings, following issues were settled on 07.09.2016:-
(i) Whether the plaintiff is entitled for a decree of partition in respect of suit property as prayed?OPP
(ii) Whether the plaintiff is entitled for a decree of possession as prayed? OPP
(iii) Whether the plaintiff is entitled for a decree of permanent injunction in respect of suit property as prayed? OPP
(iv) Relief.
7. Plaintiff examined himself as PW1 and tendered his evidence by way of affidavit as Ex.PW-1/A in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
Exhibits Nature of documents Ex. PW1/1 (OSR) copy of death certificate of Sh. Jagram. Ex PW1/2 copy of site plan which is mentioned as Ex PW1/5 in the affidavit.
8. Plaintiff has examined summoned witness Sh. Ravinder, JSA, DDA, Vikas Sadan, New Delhi as PW2. He placed on record copy of allotment letter of Janta Flat bearing no. 829, Nand Nagari, Delhi, Suraj Vs Laxman & Ors Page No. 8 / 27 possession slip and NOC for electricity and water connection collectively as Ex PW2/1 (colly) (OSR).
9. After examining said witnesses, plaintiff closed his evidence on 28.04.2017 and the matter was fixed for defendant's evidence.
10. In his defence, defendants have examined three witnesses.
11. Defendant no.6 i.e. Smt. Bhagwati has examined herself as DW2 and tendered his evidence by way of affidavit as Ex.DW2/A in which he reiterated the contents of written statement which are not repeated here for the sake of brevity. She did not rely upon any document in her evidence.
12. Defendant no.3 i.e. Sh. Ramdhan examined himself as D3W1 and tendered his evidence by way of affidavit as Ex.D3W1/A in which he reiterated the contents of written statement which are not repeated here for the sake of brevity. D3W1 relied upon following documents:-
Exhibits Nature of documents Ex DW3/1 (OSR) the settlement deed dated 11.06.1991 executed between late Laxman and other parties to the suit.
13. Defendant no.2 i.e. Sh. Hansraj examined himself as DW3 and tendered his evidence by way of affidavit as Ex.DW1/A in which he reiterated the contents of written statement which are not repeated here Suraj Vs Laxman & Ors Page No. 9 / 27 for the sake of brevity. D3W1 relied upon following documents:-
Exhibits Nature of documents
Mark A settlement dated 11.06.1991 (already exhibited as
Ex DW3/1)
Ex DW3/2 (OSR) the agreement dated 09.07.2003
14. Inadvertently, defendants did not examine any witness as DW1.
15. Vide order dated 17.01.2020, all the defendants except defendant no. 2, 4 to 6 were proceeded exparte at the stage of defendant's evidence. On 07.03.2020, defendant no. 2, 4 and 6 closed their DE and matter was fixed for final arguments.
16. Final arguments were heard on behalf of plaintiff and Ld. counsel for defendant no. 2, 4 to 6 submits that he does not want to address oral arguments and submits that his written submissions may be considered as his final arguments.
17. After hearing final arguments, matter was fixed for judgement. Written arguments/submissions filed on behalf of plaintiff and defendants no. 2, 4, 5 & 6. Ld. counsel for plaintiff argued that Sh. Jagram father of the parties was absolute owner of the suit property in question and late Sh. Jagram died intestate leaving behind the parties as his legal heirs. Ld. counsel for plaintiff further submits that no Will was ever executed or left behind by Late Sh. Jagram and defendant no.1 has supported the version of plaintiff and has given his no objection for Suraj Vs Laxman & Ors Page No. 10 / 27 partition of the suit property. Per contra, Ld. counsel for defendants no.2, 4 (now expired), 5 & 6 ,as per written submission, Stated that plaintiff has not disclosed in the suit what was his earning at the relevant time and suit property was constructed exclusively from their own funds by defendant no. 2 & 3 and Sh. Laxman has taken his share in the suit property in a family settlement on 11.06.1991. He further argued that plaintiff never gave a sum of Rs.one lakh as his contribution for constructing the suit property and the suit property was constructed in 2003 by defendant no.2 & 3 and the same was occupied by them only. There is undue delay in seeking partition as the suit was filed after 40 years of the death of plaintiff's and defendants' father Sh. Jagram. Even if, it is believed that the plaintiff has left the suit property in the year 1984, then also there is undue delay in seeking partition as the present suit was filed after a period of 32 years and same same is barred by law of limitation.
18. Ld. counsel for plaintiff relied upon the judgement of Hon'ble High Court of Delhi titled as Urmila Sharma Vs Jai Bhagwan & Ors date of decision - 22.09.2021.
19. Ld. counsel for defendant no. 2, 4, 5 & 6 relied judgement titled as Amrit Kaur v. Sarabjeet Singh, 2008 SCC OnLine Del 998 : (2008) 153 DLT 392 : (2008) 4 Civ LT 320. The applicability of the same is discussed in the later paras of the judgement.
20. In subsequent paragraphs, the Court shall decide issues.
Suraj Vs Laxman & Ors Page No. 11 / 27 21. ISSUE NO.1, 2 & 3(i) Whether the plaintiff is entitled for a decree of partition in respect of suit property as prayed?OPP
(ii) Whether the plaintiff is entitled for a decree of possession as prayed?OPP
(iii) Whether the plaintiff is entitled for a decree of permanent injunction in respect of suit property as prayed? OPP
22. Onus of proving these issues is rested upon plaintiff. The issues were interrelated and therefore, they are decided by the Court by common appreciation of evidence and record of this case.
23. To bring home his case, Ld. counsel for plaintiff submits that defendant no.1 has supported the case of plaintiff and has given his no objection in written statement for partition of the suit property.
24. On careful examination of the written statement filed by LRs of the defendant no.1 it is clear beyond any doubt that the case of the plaintiff is supported by defendant no.1 as well as defendant no.1 claiming share for himself.
25. The question of court fees is concerned, plaintiff Sh. Suraj has examined himself as PW1 and reiterated the contents of the plaint which are not repeated here for the sake of brevity and in cross-examination he has specifically denied that the property is dispute is amounting to Rs.80 lacs and no evidence is led by Defendants to show that the plaint/ Suit Suraj Vs Laxman & Ors Page No. 12 / 27 was not properly valued. Thus, in absence of any evidence on the part of the defendants, the valuation done by plaintiff seems to be correct and the same is not undervalued.
26. Before proceeding further, it is necessary for this Court to consider whether late Sh. Jagram, father of plaintiff and defendants was allottee/owner of the suit property.
27. It is admitted case that suit property in question was alloted to Late Sh. Jagram. The said allotment of suit property in favour of Sh.
Jagram was not disputed by any of the litigating parties in question. As per Section 58 of Indian Evidence Act, a fact which parties agree need not to be proved. Since, parties have agreed regarding said allotment in favour of Sh. Jagram, so, this court has no reason to doubt the said fact, regarding ownership of suit plot in question with late Sh. Jagram.
28. PW1 Sh. Suraj in evidence by way of affidavit has stated that on 12.12.1977 he used to live in the suit property on first floor and while residing in the suit property he got allotment of DDA flat at Nand Nagri, Delhi, in the year 1983 and the possession of the same was delivered to him on 12.12.1983 and it is also stated by him that the plaintiff purchased the property bearing no. E-235, Madi Pur Colony, New Delhi from the funds which he got from sale of his property at Nand Nagri and the jewellery of his wife and he shifted there with his family members. He deposed in his cross-examination that he has not placed any document to show that the above property was purchased in the year Suraj Vs Laxman & Ors Page No. 13 / 27 1984 (E-235, Madi Pur Colony, New Delhi). He further deposed in his cross-examination that he has not filed any document showing the consideration for purchase of the said property. It is apparent that neither in plaint nor in chief-examination PW1 Sh. Suraj disclosed or stated any specific date of vacating the suit property but in the cross-examination it has been specifically deposed that the suit property is in exclusive possession of defendant no.2 & 3. The defendant no.2 & 3 have been residing and in possession of the suit property since the year 1984 when I left the suit property. Therefore, from careful perusal and examination of the evidence of PW1 it can be seen that no specific date was mentioned when he got evicted or left the suit property.
29. Thus, plaintiff has failed to prove that when and how he got ousted left or evicted from the suit property.
30. It is also deposed by PW1 in his evidence by way of affidavit that he paid a sum of Rs. one lac as his contribution for further construction in the suit property on the request of defendants no.2 & 3. In the cross- examination, he has admitted that he has not placed any document to show that he has spent Rs. One lac for construction of the suit property. It is also deposed that he has not filed any income tax return from the year 2000 till date. On the other hand, defendants no. 2, 4, 5 & 6 and defendant no.3 in their written statement has specifically denied that plaintiff had paid a sum of Rs. one lac as his contribution for constructing the suit property. On the other hand, defendant no.2 & 3 it is deposed that the suit property was constructed by the defendant no.2 & 3 Suraj Vs Laxman & Ors Page No. 14 / 27 exclusively out of their own funds and the plaintiff has not contributed even a single penny. In the evidence by way of affidavit of DW3 Hansraj i.e. Defendant no.2 (inadvertently, his evidence by way of affidavit is marked as Ex DW1/A). He has produced original agreement dated 09.07.2003, same is exhibited as Ex DW3/2 (OSR) and on perusal of the document Ex DW3/2, it is apparent that the agreement was entered by Hansraj and Ramdhan only( i.e. defendant no.2 & 3) with the contractor for the construction of suit property for lawful consideration of three storey house and it is specifically mentioned in the contract that is was given by Hansraj and Ramdhan and as there is no mention of any other brother or sister in that agreement and the same was entered by them with an independent person i.e. Abdul Thekedar on 09.07.2003 and there has not been any cross-examination on that document on behalf of plaintiff. Thus, it can be concluded that plaintiff has not contributed Rs.one lac as his contribution for constructing the suit property as no prudent man will act in such a way that after contributing amount in the construction of property, he does not participate in the contracts with regard to the construction of the same property. Thus, the plaintiff failed to discharge his onus that he has contributed Rs.one lac for constructing the suit property.
31. To further substantiate his cause, plaintiff has examined summoned witness Sh. Ravinder, JSA, DDA, Vikas Sadan, New Delhi as PW2. He placed on record copy of allotment letter of Janta Flat bearing no. 829, Nand Nagari, Delhi, possession slip and NOC for electricity and water connection collectively as Ex PW2/1 (colly) (OSR). He deposed Suraj Vs Laxman & Ors Page No. 15 / 27 that as per the record bought by him this letter was addressed to Mr. Suraj A-646, Madhi Pur, JJ Colony on 10.01.1983. He further deposed that possession slip in respect of aforesaid flat was issued in favour of Sh. Suraj on 22.12.1983 and NOC for electricity and water connection as well as possession letter was issued on 12.12.1983. On persual of the evidence by way of affidavit of the plaintiff/PW1 Sh. Suraj, he has stated the fact of allotment of DDA Flat at Nand Nagri in the year 1983 and the possession of the same was delivered to him on 12.12.1983. But no document is brought on record by the plaintiff to show that when the plaintiff has applied for the allotment of said flat. Further, the defendants who are family members of the plaintiff being brothers are in exclusive possession of the suit property as per the plaint. Thus, the possibility of not changing address by plaintiff of his earlier residence cannot be ruled out. Further, the documents Ex PW2/1 (colly) are not relevant to establish the fact that when the possession of the suit property was left by the plaintiff as they are in the nature of allotment of Janta Flat bearing no. 829, Nand Nagari, Delhi and not establishing the fact that when the plaintiff has left, evicted or ousted from the suit property.
32. Thus, the plaintiff on the basis of preponderance of probabilities is not able to prove through Ex PW2/1 (colly) as to when he has left the suit property in question. Even if it is believed that plaintiff has left the suit property in the year 1984 then also it will not help the cause of plaintiff as this fact does not prove the continuation of share or interest of the plaintiff in the suit property till 2003 or 2015 i.e. 19 years or 31 years of unexplained silence.
Suraj Vs Laxman & Ors Page No. 16 / 2733. To negate the plaintiff submissions, defendant no.3 i.e. Sh. Ramdhan examined himself as D3W1 and tendered his evidence by way of affidavit as Ex.D3W1/A in which he reiterated the contents of written statement which are not repeated here for the sake of brevity. The defendant no.3 has relied upon the settlement deed dated 11.06.1991 executed between late Laxman and defendant no.2 & 3 to the suit which is Ex DW3/1. On careful perusal and examination of document Ex DW3/1 dated 11.06.1991 which is drawn near about after 31 years of death of plaintiff's and defendant's father Sh. Jagram and in the said settlement with regard to the suit property reference is only of defendant no.2 namely Hansraj & defendant no.3 namely Ramdhan and of deceased defendant no.1 namely Laxman. Thus, the document Ex DW3/1 on probabilities indicates as well as corroborates the defence of the defendant that a partition has took place with the plaintiff after the death of their father and thereafter in the suit property share of defendant no.1, 2 & 3 was remained and vide settlement deed Ex DW3/1 dated 11.06.1991, defendant no.1 i.e. Laxman has taken his share in the suit property. In the opinion of this Court, the settlement deed Ex DW3/1 dated 11.06.1991 is explanatory of the fact that on 11.06.1991 there were only three owners/sharers i.e. defendant no.1, 2 & 3 were left for the suit property. Due to this reason, no other member of the family was made a party or referred in the settlement deed Ex DW3/1 dated 11.06.1991 and it also probabilises the defence that the plaintiff was given his share in the suit property by an amount of Rs.4000/-. On perusal of Ex PW2/1 (OSR) in first column of fourth row the premium of land is also Suraj Vs Laxman & Ors Page No. 17 / 27 mentioned as Rs.4000/- which again substantiate the defence of defendants no.2, 4, 5 & 6.
34. It is profitable to consider the principles of family arrangement and settlement as discussed by The Hon'ble Supreme Court in the judgement titled as Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 wherein Hon'ble Supreme Court has thrown light on the object of settlement from para no. 9 to 18 which is reproduced here as under:-
"...9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise Kerr on Fraud at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus:
"The principles which apply to the case of ordinary compromise between strangers do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honestly made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to what their rights actually are, or of the points on which their rights actually depend."
The object of the arrangement is to protect the family from long- drawn litigation or perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, to maintain .and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by Suraj Vs Laxman & Ors Page No. 18 / 27 which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administration of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successionis so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement" is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections to the binding effect of family arrangements."
10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
"(1) The family settlement must be a bona fide one so as to resolve Suraj Vs Laxman & Ors Page No. 19 / 27 family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family 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 therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement.
Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement."
11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently.
12. In Lala Khunni Lal v. Kunwar Gobind Krishna Narain [LR 38 IA 87, 102 : ILR 33 All 356 : 8 ALJ 552] the statement of law regarding the essentials of a valid settlement was fully approved of by their Lordships of the Privy Council. In this connection the High Court made the following observations which were adopted by the Privy Council:
The learned Judges say as follows:
"The true character of the transaction appears to us to have been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them Suraj Vs Laxman & Ors Page No. 20 / 27 respectively. It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the courts to uphold and give full effect to such an arrangement.
Their Lordships have no hesitation in adopting that view."
13. In Sahu Madho Das v. Pandit Mukand Ram [(1955) 2 SCR 22, 42-43 : AIR 1955 SC 481] this Court appears to have amplified the doctrine of validity of the family arrangement to the farthest possible extent, where Bose, J., speaking for the Court, observed as follows:
"It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary. But, in our opinion, the principle can be carried further and so strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid in anticipation, future disputes which might ruin them all, and we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present."
14. In Ram Charan Das v. Girjanandini Devi [(1965) 3 SCR 841, 850-851 : AIR 1966 SC 323] this Court observed as follows:
"Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. The word 'family' in the context is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute .... The consideration for such a settlement, if one may put it that way, is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst persons bearing relationship with one another. That Suraj Vs Laxman & Ors Page No. 21 / 27 consideration having been passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be permitted to be impeached thereafter."
15. In Tek Bahadur Bhujil v. Debi Singh Bhujil [AIR 1966 SC 292, 295 : (1966) 2 SCJ 290] it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus:
16. Similarly in Maturi Pullaiah v. Maturi Narasimham [AIR 1966 SC 1836 : (1967) 1 SCJ 848] it was held that even if there was no conflict of legal claims but the settlement was a bona fide one it could be sustained by the Court. Similarly it was also held that even the disputes based upon ignorance of the parties as to their rights were sufficient to sustain the family arrangement. In this connection this Court observed as follows:
"It will be seen from the said passage that a family arrangement resolves family disputes, and that even disputes based upon ignorance of parties as to their rights may afford a sufficient ground to sustain it.
Briefly stated, though conflict of legal claims in praesenti or in future is generally a condition for the validity of a family arrangement, it is not necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims will suffice. Members of a joint Hindu family may, to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an arrangement is entered into bona fide and the terms thereof are fair in the circumstances of a particular case, courts will more readily give assent to such an arrangement than to avoid it."
17. In Krishna Beharilal v. Gulabchand [1971 Supp SCR 27, 34 :
(1971) 1 SCC 837] it was pointed out that the word "family" had a very wide connotation and could not be confined only to a group of persons who were recognised by law as having a right of succession or claiming to have a share. The Court then observed : [SCC p. 843, paras 7-8] "To consider a settlement as a family arrangement, it is not necessary that the parties to the compromise should all belong to one family. As observed by this Court in Ram Charan Das v. Girjanandini Devi the word "family" in the context of a family arrangement is not to be understood in a narrow sense of being a group of persons who are recognised in law as having a right of succession or having a claim to a share in the property in dispute. If the dispute which is settled is one between near relations then the settlement of such a dispute can be considered as a family arrangement -- see Ram Charan Das case [(1965) 3 SCR 841, 850-851 : AIR 1966 SC 323] .Suraj Vs Laxman & Ors Page No. 22 / 27
The courts lean strongly in favour of family arrangements to bring about harmony in a family and do justice to its various members and avoid in anticipation future disputes which might ruin them all."
18.Now turning to the plea of family arrangement, as observed by this Court in Sahu Madho Das v. Pandit Mukand Ram the courts lean strongly in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all. As observed in that case the family arrangement can as a matter of law be inferred from a long course of dealings between the parties.
In Maturi Pullaiah v. Maturi Narasimham this Court held that although conflict of legal claims in praesenti or in future is generally a condition for the validity of family arrangements, it is not necessarily so. Even bona fide disputes present or possible, which may not involve legal claims would be sufficient. Members of a joint Hindu family may to maintain peace or to bring about harmony in the family, enter into such a family arrangement. If such an agreement is entered into bona fide and the terms thereto are fair in the circumstances of a particular case, the courts would more readily give assent to such an agreement than to avoid it."
35. As per the plaintiff himself, the defendant no. 2 & 3 were in possession of the suit property. Thus, on the basis of preponderance of probabilities as well as the principles of Family arrangement/settlement as discussed in the foregoing paras of this judgement, it is established that, defendant no.1 was given his share on the basis of document Ex DW3/1 and it also probablises that on the said date, there was no share of plaintiff and other defendants left except defendant no. 1, 2 & 3 due to which plaintiff and other defendants were not made parties to the said family arrangement/settlement.
36. It is also relevant to consider, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on Suraj Vs Laxman & Ors Page No. 23 / 27 preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
Suraj Vs Laxman & Ors Page No. 24 / 2737. Ld. counsel for plaintiff relied upon the judgement of Hon'ble High Court of Delhi titled as Urmila Sharma Vs Jai Bhagwan & Ors date of decision - 22.09.2021. On perusal of the same, in the light of facts and circumstances of present case, the facts and circumstances of this referred judgement is not applicable to the case at hand.
38. Now reverting back to the case at hand, on appreciation of the whole evidence in the foregoing paras of this judgement and on the basis of principles settled with regard to family arrangement in the case of Kale v. Dy. Director of Consolidation, (1976) 3 SCC 119 as well as the principles of onus of proof , this Court is of the view that plaintiff has failed to discharge its onus of proof on merits on the basis of preponderance of probabilities.
39. Although no issue has been framed with regard to the limitation but an objection is taken by defendant no.3 with regard to period of limitation and it is also duty of the Court to see that whether the suit is filed within the period of limitation of period or barred by law of limitation. Considering the facts of the present case, the relevant article of The Limitation Act,1963 is Article 110,which is hereby reproduced as follows:-
Description of suit Period of limitation Time from which period begins to run
110. By a person excluded from --do-- When the exclusion a joint family property to becomes known to the enforce a right to share therein. plaintiff.Suraj Vs Laxman & Ors Page No. 25 / 27
Description of suit Period of limitation Time from which period begins to run
40. The defendants have relied upon judgement titled as Amrit Kaur v. Sarabjeet Singh, 2008 SCC OnLine Del 998 : (2008) 153 DLT 392 :
(2008) 4 Civ LT 320, relevant para of said judgement is reproduced as under:-
"...14. The averments in the plaint are sufficient to deduce that the even according to the plaintiff, she was excluded from enjoyment of the joint family properties immediately after her father's death. The suit is, significantly enough, not accompanied by any document; it does not also rely on any document. No list of documents has been filed in the last two years. Further, the plaintiff does not advert to a single specific date when the defendants were asked to give her the share in properties, and when they refused. The entire case set up is on an oral demand. No notice, of lawyer, or even of the plaintiff, is relied upon. Thus, on a meaningful reading of the plaint, it has to be concluded that the allusion of demand in 2007, when other parts of the suit show that the grievance about the plaintiff's share having arisen in 1988, is an attempt to get over the question of limitation...."
41. Now, reverting back to the present case in hand, there is no specific date mentioned by the plaintiff when he left or ousted from the suit property. On the other hand, document Ex DW3/2 shows that in the year 2003 the contract for construction was handed over by defendant no.2 & 3 and it probablises the fact that defendant no.2 & 3 were in exclusive possession of suit property and except for oral demands, no notice of lawyer or even of the plaintiff is relied upon. It is also admitted fact that the father of plaintiff has died in the year 1970 and the present suit has been filed in the year 2015 i.e. almost 45 years after the death of plaintiff and defendants' father. Even if it be considered that plaintiff left Suraj Vs Laxman & Ors Page No. 26 / 27 the suit premises in the year 1984 then also the present suit is filed after 31 years. There is no explanation on the part of plaintiff part for keeping silence for such a long period. Further the plea of contribution is not substantiated by any evidence as well as cause of action plea seems to be an instance of clever drafting to cover up the delay. Thus, by virtue of article 110 of the Limitation Act, 1963, the suit of the plaintiff is clearly time barred.
42. Accordingly, issue no.1, 2 & 3 are decided in negative i.e. against the plaintiff and in favour of defendants.
ISSUE No. 4RELIEF
43. In the light of aforesaid discussion, the suit of the plaintiff stands dismissed.
44. No order as to cost.
45. Decree sheet be prepared accordingly.
46. File be consigned to the record room after due compliance.
Announced in the open Court
[SYED ZISHAN ALI WARSI]
Dated : 31.05.2022 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
Suraj Vs Laxman & Ors Page No. 27 / 27