Delhi District Court
Rohtash Kumar vs Ramesh Kumar on 17 January, 2013
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IN THE COURT OF SH. DIG VINAY SINGH
ADDL. DISTRICT JUDGE-04 : CENTRAL : DELHI
Date of institution : 06.11.2003
Arguments heard on : 17.01.2013
Announced on : 17.01.2013
In re :
Suit no. 119/10
1. Rohtash Kumar
S/o Sh. Raghunath
2. Dharam Pal
S/o Sh. Raghunath
Both R/o 16/3691, Rehgarpura,
Hardhian Singh Road, Karol Bagh,
New Delhi. ... Plaintiffs
Versus
Ramesh Kumar
S/o Sh. Raghunath
Working in Shop no. 16/3691
Hardhian Singh Road, Rehgarpura,
Karol Bagh, New Delhi. ... Defendant
JUDGMENT
1. This is a suit for partition and consequential relief of possession and injunction. The two plaintiffs and the sole defendant are real brothers. Their father died sometime in 1964 and their mother also expired sometime in 1977.
2.1 Plaintiffs claim that the property no. 16/3691, Ragharpura, Hardhyan Road, Suit no. 119/10 Pg... 1 of 22 r -2- Karol Bagh, Delhi is a joint family property. After death of father, the property was mutated in the Revenue Records in the name of Smt. Rampyari (mother) as also in the name of the three brothers. It is claimed by the plaintiffs that after death of mother, the three brothers became entitled to 1/3rd share each in the suit property.
2.2 It is claimed in the plaint that in the front side of this property, there is a ground floor, mezzanine floor and first to fourth floor, but the back side of this property towards Gali no. 16 consists of only ground to third floor. There was a shop in the suit property in possession of a tenant namely Sedu Ram. The rent of the said shop was shared by all the three brothers equally. However, on 10.2.1989, the defendant told the two plaintiffs that he wanted to file an eviction petition against the tenant and therefore signatures of the plaintiffs were required on a document as 'No Objection'. Allegedly, plaintiffs agreed to the said proposal and executed a document in the name of partition agreement/family settlement which was prepared by the defendant for the sole purpose of filing eviction petition against the tenant. Plaintiffs claim that the said document was a sham document and no property was partitioned under the said document. It was only meant to facilitate filing of eviction petition against the tenant and, it was agreed between the parties that when the tenant evicts the shop, all the three brothers will equally partition the property.
2.3 Plaintiffs also aver that the rear portion of the property in possession of the plaintiffs is almost valueless whereas the front portion of the suit property which is in possession of the defendant has a greater value. The eviction petition against the tenant Sedu Ram was ultimately decided by the Ld. Additional Rent Controller, but during pendency of the said eviction petition, Suit no. 119/10 Pg... 2 of 22 r -3- the defendant started claiming exclusive ownership of the shops located on Hardhyan Singh Road, out of which one was in possession of Sedu Ram and other was in the possession of the defendant. As a result, the plaintiff no.1 appeared as a witness in the eviction petition in favour of the tenant and against his own brother i.e. the defendant on 17.5.2000 and 29.9.2000. It is also claimed that before filing the eviction petition, a legal notice dated 19.2.1990 was issued by the plaintiff no.1 to the tenant Sedu Ram through his advocate and thereafter the tenant Sedu Ram stopped making payment of rent exclusively to the defendant. In the eviction petition, the tenant was granted benefit U/s 14(2) of Delhi Rent Control Act, as the petition was for non-payment of rent. The said eviction petition was decided on 3.11.2000.
2.4 Subsequently, in October 2003, the said tenant Sedu Ram was interested in evicting the shop and he was paid a sum of Rs. 1 Lakh towards evicting the shop which was contributed equally by the three brothers. Plaintiffs claim that the tenant handed over vacant possession of the shop to all the three brothers on 18.10.2003. Subsequently, however, the defendant became dishonest and started claiming exclusive ownership of this shop.
2.5 Plaintiffs claim that there was no valid partition of the suit property between the three brothers and the defendant was contemplating to create third party interest in the suit property, accordingly, the present suit for partition has been filed claiming three equal shares in the property no. 16/3691, Hardhyan Singh Road, Karol Bagh, Delhi. Plaintiffs also pray a decree of permanent injunction against creation of third party interest in the suit property by the defendant.
2.6 It would be important to mention here that initially in the original plaint, plaintiffs sought partition of only ground floor of this property, but Suit no. 119/10 Pg... 3 of 22 r -4- subsequently, vide an amendment allowed in their favour; the plaint was amended to include entire property no. 16/3691.
3.1 The sole defendant contested the suit on the ground that the property in question has already been partitioned by meets & bounds way back on 10.2.1989, by mutual consent and free will of the parties. The same was also reduced to writing in the form of a Family Settlement. Thereafter, the parties acquired equal shares in the property and they started dealing with their share of the property, independently and exclusively. There remained no commonality or joint ness qua the property between the parties after the said date and even construction in the property was raised separately by the parties after that day. The portion of the parties was well defined by constructing separation walls.
3.2 Defendant also claims that the suit of the plaintiffs is barred by limitation as the cause of action arose in favour of plaintiffs in April 1990, when the eviction petition against the tenant Sedu Ram was filed in which the defendant claimed himself to be sole landlord/owner of the shop under the tenancy of Sedu Ram. Admittedly, plaintiff no.1 appeared against the defendant and in favour of the tenant as a witness on 17.5.2000, and the present suit filed on 5.11.2003 is clearly barred by limitation. The defendant, however, erroneously claim the period of limitation to be three years, whereas, for the reasons to follow in this judgment, it would be seen that the period of limitation in seeking partition of immovable properties is twelve years and not three years. Defendant also claims that the present suit is barred U/s 11 of CPC as in the eviction petition, the plea of plaintiff no.1 as to joint ownership of the shop was not accepted by the Ld. ARC in its judgment dated 3.11.2000 and also the plaintiffs are Suit no. 119/10 Pg... 4 of 22 r -5- estopped from claiming this fact. Suit was claimed to be not properly valued for the purposes of jurisdiction & Court Fee. As per the defendant, the value of property is more than Rs.40 Lakhs. It is also claimed that no relief of declaration for cancelling the document dated 10.2.1989 is sought and the suit is in fact in the nature of possession cannot be filed without payment of requisite Court Fee.
3.3 The defendant claims that a portion measuring 15 feet X 10 feet facing towards main Hardhyan Singh Road from Ground floor to fourth floor is exclusively and independently owned by the defendant. Similarly, the portion measuring 15 feet X 20 Feet from ground floor to fourth floor in the property is owned exclusively by the plaintiffs. After partition, the parties reconstructed and renovated their portions independently, even partition walls were raised, and the stairs of the portions are also separate and independent which were raised by the parties themselves. Even, the parties have been letting out their portions and using the same independently and separately since 10.2.1989. Defendant claims that this property no. 16/3691 is not a joint property and at the time of partition, the portion falling to the share of the defendant was occupied by a tenant, therefore the plaintiffs thought it beneficial to take the other portion as their share but now when the defendant has managed to get the shop vacated by paying Rs.1 Lakh individually, the plaintiffs have become greedy & dishonest. Defendant denies that out of the amount of Rs.1 Lakh paid to Sedu Ram, any amount was contributed by the two plaintiffs. Defendant also claims that he instituted the eviction petition against the tenant in his individual name as the land lord which goes to prove that partition had taken place long ago and in that eviction petition, the plaintiff no.1 malafidely supported the tenant.
Suit no. 119/10 Pg... 5 of 22 r -6-
4. In replication, the plaintiffs reiterated the averments of the plaint and denied the averments of the defendant in its WS.
5. Following eight issues were framed in the suit on 28.09.2005 :-
"1. Whether the suit is liable to be dismissed for want of cause of cause as the property in question has already been partitioned by meets and bounds on 10.02.1989? OPD.
2. Whether the suit of the plaintiff is liable to be dismissed, being time barred? OPD.
3. Whether the suit of the plaintiff is barred by the principle of res judicata in view of the judgment of learned ARC Delhi dt. 3.11.2000?
OPD.
4. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD.
5. Whether the suit of the plaintiff is not maintainable in the present form? OPD.
6. Whether the plaintiff is entitled to the relief of decree of partition with consequential relief of possession of property in dispute? OPP.
7. Whether the plaintiff is entitled to the relief of permanent injunction, as prayed? OPP.
8. Relief."
6. In support of its case, the plaintiff no.1 examined himself as PW1; Sh. Madan Suit no. 119/10 Pg... 6 of 22 r -7- Lal, a signatory to the partition agreement as PW2 and; the said tenant Sedu Ram as PW3.
6.1 The plaintiff no.1 reiterated the averments of plaint in his affidavit in evidence and he proved a memo of mutation of property as Ex.PW1/1; the site plan as Ex.PW1/2 and; 51 Rent Receipts, purportedly pertaining to the tenant Sedu Ram, were exhibited as Ex.PW1/3 to 1/53.
6.2 PW2 Madan Lal deposed that he knew both the parties since childhood and in February 1989, he was called upon to witness a document, which as per him was executed for filing eviction petition against PW3 Sedu Ram from one shop in the suit property by showing the defendant as a landlord. He claimed that the suit property was not partitioned under the said document.
6.3 PW3 Sedu Ram, the tenant deposed that he was a tenant under all the three brothers and that one or the other out of three brothers, used to collect rent from him. He deposed that he never heard about any partition of the property between the brothers and even possession of the shop was taken from him by all the three brothers.
7. On the other hand, the defendant examined himself as the sole witness as DW1. The defendant as DW1 reiterated the averments of his written statement.
8. Issue wise findings are as follows;
9. Issue no.3 is whether the present suit is barred by the principles of res judicata in view of the judgment of Ld. ARC dated 3.11.2000. This issue ought to be decided in favour of the plaintiffs and against the defendants for the Suit no. 119/10 Pg... 7 of 22 r -8- simple reason that the matter in issue in the present suit and the matter in issue before the Ld. Additional Rent Controller in the earlier eviction petition are absolutely different and distinct. In the eviction petition, all that was in issue was whether the tenant defaulted the payment of rent to the land lord and whether he was liable to be evicted from the suit premises on that account. Partition of the property was not an issue in the said eviction petition. Thus, the matter in issue in this suit was not in issue in the earlier petition and it was not heard and finally decided by a court of competent jurisdiction. This issue is accordingly decided in favour of the plaintiffs and against the defendant.
10.1 Issue no.4, is whether the suit has not been properly valued for the purposes of jurisdiction and Court Fee. Onus to prove this issue was also on the defendant who had claimed that the suit property was valued at more than Rs.40 Lakhs, whereas the plaintiffs had valued the suit property at Rs. 18 Lakh. Neither of the sides led any evidence to show as to what was the actual market value of the suit property as on the date when the suit was filed. It is settled law that in a suit for partition of an immovable property, the entire immovable property has to be valued for the purposes of jurisdiction, and if a party is not in possession of its share that party has to pay Court Fee on his share.
10.2 In the present case, the suit was filed on 5.11.2003. Earlier, partition of the ground floor only was sought, for which the suit was valued at Rs.10 Lakh. Upon amendment of the suit, entire suit property was included and the property was revalued at Rs.18 Lakh. Though, in the cross examination of PW1, it has come that the entire suit property was worth more than Rs.50 Suit no. 119/10 Pg... 8 of 22 r -9- Lakh but this admission of plaintiff no.1 came in his cross examination on 15.09.2007. The defendant did not choose to suggest or ask the plaintiff no.1 as to what was the approximate market value of the property at the time when the suit was originally filed on 5.11.2003. Thus, even this admission by the plaintiff no.1 on 15.09.2007 i.e. almost after three years of filing of suit does not go in favour of the defendant to show that the property was not properly valued at the time when the suit was filed. Needless to mention that, there has been a sharp escalation of prices in immovable property between the years 2003 to 2007. It is admitted case of the defendant that the plaintiffs were in possession of their 2/3rd share and, therefore, it has to be held in favour of the plaintiffs that they valued the suit for the purposes of payment of Court Fees at fixed value. Accordingly, this issue no.4 has to be decided in favour of the two plaintiffs and against the defendant.
11 Issue no. 5, is whether the suit of the plaintiffs was not maintainable in the present form. This issue was framed upon an objection of the defendant that the suit is in the nature of suit for possession and cannot be filed without payment of requisite court fee. The said plea of the defendant is fallacious for the reason that in case of joint ownership of the property which is sought to be partitioned by meets & bounds, all the parties in the suit for partition act in dual capacity of plaintiffs and defendants. In a suit for partition, as a consequential relief, possession is implied and in case the court comes to a conclusion that the property is incapable of division by meets & bounds, the property is then offered for purchase by any of the parties and in case that also does not succeed, the property is put to sale and the sale proceeds divided equally. In such suits for partition, the possession of a particular portion of property need not be prayed by either of the sides. This issue is Suit no. 119/10 Pg... 9 of 22 r
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also accordingly decided in favour of the plaintiffs and against the defendant.
12 Issue no.2, is whether the suit is barred by time. Onus to prove this issue was also on the defendant. It is an admitted case of both the sides that their father died in the year 1964, and thereafter, their mother also expired in the year 1977. In the entire plaint, the plaintiffs have not mentioned as to when for the first time they sought partition of the said property. The present suit is not based on any documentary proof between the parties to show as to when the property was sought to be partitioned and when it was declined by the other side. From year 1977 till the year 1989, whether any effort or request was made for partition of the property is not clear in the plaint.
13 Perusal of the plaint and evidence led by the parties would reveal that it was in the year 1989 when the cause of action to file suit for partition arose in favour of the brothers. It was in February 1989, when the disputed document Ex.PW1/DA was executed, i.e. a partition agreement cum family settlement. As per plaintiffs, this document was a sham document not intended to be acted upon, whereas as per the defendant, this document recorded mutual partition between the brothers. Whether this document can be read in evidence or not, is being dealt with under the following issues, but the fact is that the pleadings of the parties would clearly show that cause of action for partition of the property arose in favour of the brothers, sometime in February 1989.
13.2 Under the Limitation Act, time to file such suit for partition is 12 years from the date when cause of action accrues. Article 110 of the Schedule to the Act provides that a suit by a person excluded from a joint family property, to Suit no. 119/10 Pg... 10 of 22 r
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enforce a right to share therein is twelve years. The starting point is when the exclusion becomes known to the plaintiff.
13.3 In the case of Amrit Kaur v. Sarabjeet Singh, (2008) 153 DLT 392 it was held as follows;
"9. It has been held that the object underlying this Article is to afford protection to a member of a joint Hindu family against prejudicial action by the other members of the family behind his back with respect to his interest in the family property. It has been held that this provision, prescribing the period of limitation, and the conditions of its applicability also apply to suits for partition (Radhoba v. Aburao, AIR 1929 PC 231). It has also been held that 'exclusion' is a fact specific circumstance, to be seen in the light of materials on record in every case. However, what should be seen by the Court is the intention of the persons so seeking to exclude the plaintiff, from the enjoyment of his (or her) share (Haresh v. Hardevi, 1927 (1) ILR 49 All 763; Velayudhan v. Velumpi Kunji, ILR 1958 Ker. 389 (FB) and Marudhanayagam Pillai v. Sola Pillai, 77 Mad LW 697). This Court too, had applied a similar criteria, when considering whether the suit was time-barred, and in the judgment Ramesh Chand v. Tek Chand, 111 (2004) DLT 193."
13.4 The present suit filed on 5.11.2003 is clearly beyond 12 years from February 1989. Even otherwise, it is an admitted case of the plaintiffs that the defendant filed an eviction petition against the tenant in the property claiming himself to be exclusive owner of the shop under tenancy. The said eviction petition was filed sometime in the year 1990. Thus, counting the Suit no. 119/10 Pg... 11 of 22 r
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period of limitation even from that day makes the present suit clearly barred by limitation. Accordingly, this issue is decided in favour of the defendant and against the two plaintiffs.
14.1 Issue no. 1 & 6, are taken up together being inter connected. The cross examination of PW1, who is none other than plaintiff no.1, clinches these two issues. As mentioned above, the plaintiffs claim is that the suit property was never partitioned, whereas, the defendant claimed that the suit property stood partitioned in February 1989. The two plaintiffs admitted their signatures on Ex.PW1/DA. PW1 also admitted that this document was signed by Madan Lal, his friend and one Hemchand also signed this document. This document was notarised before a Notary Public.
14.2 I will advert to the question whether this document can be read in evidence or not herein below, but let it be mentioned here that in the cross examination the plaintiff no.1 admitted that he did not read the affidavit in evidence filed in this court, nor it was read over and explained to him before filing in the court. In view of the admission of PW1 that he neither read the contents his affidavit in evidence, nor were they read over to him by anybody else, what weight is to be attached to his deposition is anybody's guess.
14.3 Anyhow, he clearly admitted that in the suit property no. 16/3691, an area measuring 15 X 10 feet on the ground floor is in possession of the defendant and the remaining area of 15 X 20 feet is in possession of the two plaintiffs. He admitted that in the site plan filed by none other than the plaintiffs, the portion shown in P & Q is in possession of the defendant and the portion shown at point R & S is in possession of the two plaintiffs. He specifically admitted that even upper floors of these portions are in possession of the Suit no. 119/10 Pg... 12 of 22 r
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defendant and the plaintiffs, respectively. He admitted that at the time of death of his mother, there was only ground floor constructed in the suit property and upper floors were constructed later on. He admitted that upper floors were constructed about 15 to 16 years prior to the date of deposition. He admitted that there are separate passages of entries for the portion in possession of the defendant and for the portion in possession of the plaintiffs. He also admitted that the four walls of the portions in possession of three brothers are separate. He also admitted that the construction of the upper floors was carried out separately by the plaintiffs and the defendants. Thereby meaning that the plaintiff no.1 admits that the portions above the shops P & Q were constructed by the defendant and the portions above the shops R & S as mentioned in the site plan Ex.PW1/2 were constructed by the plaintiffs separately. He admitted that these separate portions are in possession of the brothers for last 15-16 years i.e. from the date when construction was raised in the property. He also admitted that the plaintiffs were taking rent from their tenants separately for the portions and the plaintiffs had also let out mezzanine portions above the shops shown at R & S in the site plan to another tenant who was making payment of rent directly to the plaintiffs.
14.4 This witness was specifically questioned by the defendant in his cross examination on 9.1.2007 as to whether partition by meets & bounds took place on 10.2.1989. The witness admitted that the partition took place on 10.2.1989. However, he claimed that the said partition was not proper.
14.5These admissions of facts by the plaintiff no.1 goes to prove conclusively that in February 1989, there was a mutual partition of the property between the Suit no. 119/10 Pg... 13 of 22 r
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brothers. In such circumstances, once the property was partitioned by the brothers, there is no question of the property being again partitioned by this court. More particularly, when the suit was filed after the period of 12 years.
14.6 Ld. Counsel for the plaintiffs argued that Ex.PW1/DA is not a registered document and therefore, it cannot be looked into. This argument of the plaintiffs has to be accepted, since, perusal of Ex/PW1/DA would reveal that it is not a mere memorandum recording factum of past partition or family settlement already having taken place. Instead contents of this document would reveal clearly that it is vide this document that the property was partitioned. On the first page of this document, it is specifically recorded by the parties that to avoid any sort of litigation, the parties have mutually agreed upon and decided to partition the said property. Even otherwise, reading this document as a whole would show that this document is in fact in the nature of a deed of partition creating rights in favour of the three brothers and it is not a document which records a mere memorandum of something which has already taken place. In such circumstances, this document ought to have been registered under the Indian Registration Act. Admittedly, this document is not registered, and therefore, it cannot be received in evidence u/s 17 & 49 of the said Act.
14.7 But the question is that even if we ignore this document, whether the suit of the plaintiffs is maintainable. Even if we do not look at Ex.PW1/DA, still factual position in this case is that the property stood partitioned way back in 1989. There are clear cut admissions by the plaintiff no.1 in his cross examination as mentioned above. Law nowhere says that a partition has to be only vide a written document. All that Section 49 of the Registration Act Suit no. 119/10 Pg... 14 of 22 r
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provides is that, in case a property is partitioned vide a written document, the said document has to be registered compulsorily, if the immovable property which is partitioned under the document is valued at more than Rs.100/-. Law does not say that there cannot be an oral partition.
14.8 Thus, even if we do not look at this document at all, the fact of mutual oral partition between the parties stands established in this case.
14.9 Reliance of the plaintiffs on the rent receipts Ex.PW1/3 to 1/53 does not help the case of the plaintiffs as, admittedly, it does not bear the signatures of tenant. Collusion between the plaintiffs and the tenant PW3 cannot be ruled out. Plaintiff no.1 admitted that these receipts were not with the tenant and they were with him. The plaintiff no. 1, in the cross examination, also admitted that after the tenant vacated the property, possession of shop was given to the defendant and at that time, documents Ex.PW3/D4 to 6 were executed by the tenant PW3 in favour of the defendant.
14.10 PW3 also admitted that the eviction petition filed by the defendant was decided against him and in the said eviction petition, there was an order directing him to deposit rent in court and he kept on depositing rent in court till final disposal. Till final disposal, he did not pay rent to anyone else. He also admitted in his cross examination that he does not have any receipt to show payment of rent qua the shop to the plaintiffs after the decision of the eviction petition. He admitted that after 15.12.2000, he deposited rent in the court only and did not pay it to either of the plaintiffs. He also admitted his signatures on Ex.PW3/D4 to D6 which he had signed at the time of handing over the possession of the shop to the defendant. He also admitted that he had taken Rs.1 Lakh from the defendant only, when he vacated the shop and Suit no. 119/10 Pg... 15 of 22 r
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the possession was handed over by him to the defendant only. Perusal of the petitions filed by the tenant PW3 for depositing of rent such as Ex.PW3/D1 and other similar petitions would reveal that even he himself claimed that he was a tenant under the defendant only. Therefore, his testimony that he was a tenant of all the three brothers falls to the ground. Not only this, even in his notice Ex.PW3/D2 sent by him to the defendant, he admitted that he was tenant of defendant only.
14.11 No reliance can be placed on the testimony of Madan Lal who admitted in his cross examination that he does not even know since when the brothers are having separate kitchens.
14.12 Plaintiffs argued that document Ex.PW-1/DA creates interest in the property and it is not a registered document therefore, it cannot be looked into at all. In this regard reliance is placed upon the cases of; Ram Lal Vs. Delhi Municipal Corporation, AIR 1973 Delhi 212; Mangal Prasad Vs. Fifth Additional District Judge, AIR 1992 Allahabad 235; Smt. Kalimoyee Ghosh and others vs. Narender Nath Ghosh and Ors., AIR 1979 Calcutta 222; Raj Kali Vs. Jitender, 2010 (5) RCR (Civil) 790; Viswalingam Vs. Seshadiri, 1997 Civil Court Rulings 258 (Madras); Ganduri Koteshwaramma and Anr. Vs. Chakiri Yanadi and Anr., 2011 (4) CCC 125 (SC) and; Narinder Nath Seth and others vs. Mrs. Lata & others 2012 (128) DRJ 507.
14.13 There is no dispute as to the law laid down in these cases but as mentioned above, in the facts and circumstances of the present case, it is proved that the partition was physically done by meets and bounds and it was also acted upon by the three brothers.
Suit no. 119/10 Pg... 16 of 22 r
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14.14 Ld. Counsel for the plaintiffs also argued that admittedly copy of this family settlement Ex.PW-1/DA, was not submitted to the DDA and that the property is still in the joint name of mother and brothers. This fact is inconsequential in view of the circumstances of this case, wherein not only the property was physically partitioned by meets and bounds, but all the brothers also acted upon the said partition. After partition even the construction was raised separately.
14.15 Ld. Counsel for the plaintiffs next argued that Ex.PW-1/DA is in violation of provisions of Indian Stamp Act as it is not having sufficient stamp affixed thereon.
14.16 I have already mentioned above that this document is not being looked into since it required registration. But the factum of partition is proved in this case from admission of PW-1 himself. A fact which is admitted need not be proved in terms of Section 58 of Indian Evidence Act.
14.17 On the other hand the defendant has relied upon the case of Kale and others Vs. Deputy Director of Consolidation and others, 1976 (3) SCR 202 and the case of Gauri Bhai Soma Bhai Amin Vs. State of Gujarat, 1996 (1) Recent Revenue Reports 206. In the case of Gauri Bhai, the facts are distinguishable since in that case the property was purchased in the name of three brothers in January, 1972 and subsequently the agreement in question was executed in December, 1974 and it was held in that case the family arrangement executed in writing did not require to be registered.
14.18 Hon'ble Supreme Court in the case of Narendra Kante Vs. Anuradha Kante (2010) 2 SCC 77 has held as follows:
Suit no. 119/10 Pg... 17 of 22 r
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"21. In support of his aforesaid submission, Mr. Ranjit Kumar firstly relied on the decision of the thee-Judge Bench in Kale Vs. Dy. Director of Consolidation, (1976) 3 SCC 199, in which the question of registration of a family arrangement had fallen for consideration. Their Lordships held that a family arrangement may be even oral in which case no registration is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing but there 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 recording or for information of the court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any right in the immovable properties and therefore, neither does it fall within the mischief of Section 17 (2) of the Registration Act, 1908 nor is it compulsorily registrable."
" 22. Their Lordships in Kale case went on further to conclude that a document, which was no more than a memorandum of what had been agreed to, did not require registration. While holding as above, their Lordships also indicated that even if a family arrangement, which required registration was not registered, it would operate as a complete estoppel against the parties, which had taken advantage thereof."
14.19 In the case of Hansa Industries (P) Ltd. and Others Vs. Kidarsons Industries (P) Ltd., (2006) 8 SCC 531, it is held as follows:
"11. Learned counsel for the respondents has brought to our notice a decision of the this Court in Kale and others vs. Deputy Director of Suit no. 119/10 Pg... 18 of 22 r
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Consolidation and others : (1976) 3 SCC 119 laying down the approach of the Court in giving effect to a bona fide family arrangement entered into between the parties with a view to resolving disputes once for all. This Court held that the family arrangements are governed by special equity peculiar to themselves and would be enforced if honestly made. Reference was made with approval to a passage appearing in Kerr on Fraud wherein the following pertinent observations appear:-
"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."
12. Reference was also made to the observations regarding the essentials of the family settlement and the principles governing the existence of the same in Halsbury's Laws of England, Volume 17, Third Edition at pp. 215-216 which are as follows :-
"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.
Suit no. 119/10 Pg... 19 of 22 r
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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."
13. This Court held that courts have 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 principles were concretized and succinctly reduced to the following propositions :- (SCC pp.126-27, para
10) "10. (1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
Suit no. 119/10 Pg... 20 of 22 r
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(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 immoveable properties and therefore does not fall within the mischief of Section 17(2) (sic) (Section 17(1)(b)?) 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 Suit no. 119/10 Pg... 21 of 22 r
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equitable the family arrangement is final and binding on the parties to the settlement."
14.20 In such circumstances, even if we exclude the document Ex.PW1/DA, one fact is clear that the brothers have mutually partitioned the property. It is so clear from the cross examination of PW1 & 3.
14.21 Thus, there is no cause of action in favour of the plaintiffs to have filed the present suit for partition, that too after the period of limitation. Both these issues are decided against the plaintiffs and in favour of the defendant.
14.22 Turning to the issue no.7, whether the plaintiffs is entitled to relief of permanent injunction, when the suit of the plaintiffs for partition is itself not maintainable, there is no question of grant of permanent injunction in their favour and against the defendant after the property was partitioned. The defendant is at liberty to deal with the property which has fallen to his share, in any manner in which he likes. This issue also goes against the plaintiffs.
14.23 Relief In view of the above discussion, plaintiffs are not entitled to any relief whatsoever. Suit of the plaintiffs is dismissed. Decree sheet be prepared. Parties to bear their own costs.
Announced in the open court Dig Vinay Singh
on 17th day of January, 2013. ADJ-04 (Central)
Delhi
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