Jagdish Rai vs Tek Chand And Ors.
2001 Latest Caselaw 1269 Del

JUDGMENT

V.S. Aggarwal, J.

1. Jagdish Rai (plaintiff) seeks partition of the property in dispute. The present suit has been filed against Tek Chand who is the brother of the plaintiff besides other defendants 2 to 6 who are not contesting the civil suit.

2. It has been alleged that in a civil suit for partition between late Ram Prasad (father of the plaintiff) and his brother Deep Chand have one of the property no. 7/5285-86, Krishan Nagar, Karol Bagh, New Delhi, fell to the share of Ram Prasad and other to the share of Deep Chand. Ram Prasad Had executed a will dated 24th September, 1982 whereby he bequeathed his share in the said house to the plaintiff and defendant no.1 in equal share. It was also provided in the will that his other heirs, namely defendants 2 to 6 shall have no concern whatsoever with the said house. Ram Prasad died in Delhi on 4th October, 1982. Thereafter the said suit for partition between Ram Prasad and Deep Chand was settled between the parties. One half portion of the house adjacent to house no. 5287 belonging to Kanwar Sain Maurya fell to the share of Ram Prasad. Plaintiff and defendant no.1 being the exclusive owners of the said house took possession of the said house and are stated to be in joint possession.

3. Plaintiff asserts that he does not want to keep the share of the said house joint with defendant no.1 Defendants 2 to 6 have no right, title or interest in the property and therefore seeks partition of the said house.

4. In the written statement filed defendant no.1 has contested the suit. preliminary objections have been taken that suit is not maintainable. It is not properly valued for purposes of court fees and jurisdiction. However, it has been asserted that property in question already partitioned by means of family settlement dated 5.9.1986. It was agreed that defendant no.1 would be the sole and exclusive owner of the half share of the property of the ground floor shown in blue colour in the plan attached with the will and plaintiff would be the sole and absolute owner of the first floor of the house. The plaintiff and defendant no.1 came in possession of their respective portions. This fact was evidenced by family settlement arrived at between the parties on 5.9.86. Thereafter parties have been in continuous and uninterrupted exclusive possession of their respective portions. Thus, it is denied that the said house is joint or there can be a partition.

5. In the replication that has been filed the plaintiff re-asserts his pleas.

6. From these pleadings of the parties on 5.4.1989 following issues were framed.

1. Whether the suit is not maintainable in the present form.

2. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?

3. Whether the property in question already stands partitioned by means of family settlement dated 5.9.86? If so, its effect?

4. To what relief is the plaintiff entitled?

7. Issues 1 and 2: Both theses issues had not been pressed during the course of arguments and therefore are decided in favor of the plaintiff.

8. Issue no.3: With respect to this controversy as is apparent from the pleadings of the parties the sole question that comes up for consideration and requires adjudication is as to whether on 5.9.86 the property in question was already partitioned between the parties i.e. the plaintiff and defendant no.1 by means of a family settlement.

9. Defendant no.1 appeared as DW1. He stated that he is in possession of two rooms, kitchen bath and latrine on the ground floor. The accommodation on the first floor is identical. Plaintiff is in possession of the same. On 3rd June, 1986 it had been decided between the parties, namely plaintiff and defendant no.1, that ground floor would remain in occupation of defendant no.1. Plaintiff would construct a separate staircase. A statement to that effect was made even before the police on that date. On 5.9.86 the oral partition was effected and terms were reduced into writing. The said document was proved as mark X. During cross-examination the witness stated that he is not aware as to in whom the ownership of the land underneath the suit property vests.

10. As against this evidence Jagdish Rai, plaintiff appeared as PW1. He insisted during the course of his testimony that there was no partition effected between the parties. No partition deed or memorandum of partition was drawn. However, during cross-examination he admitted that defendant no.1 is residing on the ground floor since 1982 and he is in occupation of the first floor. He denied it was said in the police station that defendant no.1 would remain in occupation of the first floor. The settlement that was arrived at the police station which is Exhibit D2 was not controverter. DK Jain, DW 2 was the only witness examined who stated that on 5.9.86 he had gone to the house of defendant no.1 for settlement of the plot. The plaintiff had also come. He was told that they had reached an agreement that first floor would belong to the plaintiff and ground floor would to defendant no.1. He stated that the document mark X was drawn.

11. On basis of this evidence learned counsel no.1 asserts that there has been an oral partition between the parties and in this connection relied upon the statement that had been made at the police station, which has been proved as D2. Perusal of the same reveals that the plaintiff had made a complaint to the Assistant Commissioner of Police, Karol Bagh. The said complaint reads:-

"Sir,

I beg to bring to your kind notice that I have in my possession t he 1st flor of the property no. 7/5286 and my real younger brother Mr. Tek Chand has the ground floor in his possession of this property.

Mr father at the time of death has willed in writing duly written by an Advocate and signed by the Registered Medical Doctor that my two sons (Jagdish Rai- now applicant) and Tek Chand will be equal owner of this property after my death.

I have been residing in my another house at Shakurbasti, House No. WZ-93 (Sri Nagar), Delhi-324. Now my younger brother, Mr. Tek Chand does not open the door of the house ( No.7/5286) and allow me to go up at the first floor. Last week, I went to get my house first floor repaired but he did not allow me to enter the house. He stated abusing me and threatened me to get the leg court if I enter in the house.

I would request you to kindly intervene in the matter and he may be forced to get my my house repaired and I may be allowed to get into my house as and when I need without any hindrance and inter ference since I am the owner of that property.

Thanking you,

Yours faithfully

(JAGDISH RAI)

House No.WZ-93

Sri Nagar

Shakurbasti,

Delhi-34

12. This is dated 18th July, 1986. It was followed by the statement made by Jagdish Rai plaintiff dated 8th August, 1986 and English translation of the same reads:

"I am in occupation of the upper floor of the house. In the lower portion my brother Tek Chand is in possession. Presently the entire house has only one passage. Within three months I will set up the other passage. Thereafter I will have no connection with the gate of my brother. We will not quarrel with each other..."

13. On basis of this statement dated 3rd August, 1986, indeed in cannot be termed that it was recited or admitted that there has been an oral partition. It only refers to the occupation of the property and their respective portions. The tenor of the complaint and the statement only reveal that the brothers who were quarrelling in order to avoid a dispute had permitted the plaintiff to set up an independent passage to go up on the first floor. Otherwise also there is precious little on the record for this court to conclude that in fact there was such a settlement that was arrived at. This is for the reason that there is no mention as to who would be occupying and using the open space on the ground floor and the terrace on the second floor. Merely using for few years by a person or between the co-owner does not tantamount to stating that there has been an oral partition between the parties. The self-serving statements therefore of the parties in this regard are of little consequence.

14. Confronted with that position, learned counsel urged that a document mark X had been executed and this shows that there was a partition between the parties. Bare reading of the document indeed would reveal that it cannot be termed that there was an oral partition or this was memorandum of what had been settled earlier. The relevant portion of the same reads:

COMPROMISE DEED/FAMILY SETTLEMENT DEED

This deed of Compromise is being made on this 5th day of September, 1986 between Shri Jagdish Rai son of Shri (late) Ram Prashad r/o 7/5286, Krishan Nagar, Karol Bagh, New Delhi-5 (hereinafter called the First Party) AND Shri Tek Chand s/o late Shri Ram Prashad, r/o 7/5286, Krishan Nagar, Karol Bagh, New Delhi (hereinafter called as Second Party) regarding our ancestral property bearing no.7/5286, Krishan Nagar, Karol Bagh, New Delhi.

WHEREAS Shri Jagdish Rai and Shri Tek Chand are two real brother sand have equal shares in the ancestral/paternal property bering no. 7/5286, Krishan Nagar, Karol Bagh, New Delhi having their common ancester/father late Shri Ram Parshad.

WHEREAS presently the property above mentioned/is consists of Ground floor and first floor.

AND WHEREAS the first floor is occupied by the First Party and the ground floor is occupied by the second party.

AND WHEREAS other brothers and sister First Party and Second Party have been given their shares in ancestral property by their late father Shri Ram Prashad by way of WILL dated 24.9.1982 and as such except First and Second Party, no other person has any interest in the property mentioned above."

15. The extract that has been reproduced above certainly does not show that an oral partition having been effected between the parties. It negatives the belief that in fact the partition had already been effected.

16. Otherwise also if any attempt is made to state that there was partition by virtue of this document even the same has to be stated to be rejected. The original of the document is not forthcoming. It was pointed that the original is in occupation of the plaintiff and he is not producing the same. But even this plea cuts little ice because on 30th January, 1989 the counsel of defendant no.1 made a statement that he would be filing the original documents. If the original was already available, there was no statement made at that time that original document is in occupation of the plaintiff. Before a photocopy of a particular document can be taken into consideration the loss of failure to produce the original must be established, otherwise secondary evidence would not be permissible. To the same effect is the decision of the Privy Council in the case of Basant Singh & Ors. vs. Brij Raj Saran Singh & Ors. It was held that though loss can never be proved absolutely but it must be established that original document did exist. It is this later fact which is not at all established in the facts of the present case.

17. Learned counsel for the plaintiff had drawn the attention of the court to the fact which has been noted above that even the document does not refer to an oral partition. Therefore it must be taken that in fact there was no partition and once the original is not produced necessary consequence would be that it cannot be termed that there has been a partition between the parties.

18. We know form the decision in the case of Bhaggal & Ors. Rangi Lal & Ors. that test to determine whether the document relying to a partition is a partition deed or a memorandum of an oral partition is whether it was included by the parties that the document was to serve as a depository of arrangement arrived at or not. In paragraph 33 it was held:

"33. The test to determine whether the document relating to a partition is a partition deed or merely a memorandum of an oral partition is whether it was intended by the parties that the document was to serve as the depository of the arrangement arrived at by them. If the document was intended to be evidence of the partition effected between the parties thereto, it is a partition and requires registration, vide Bal Kishan v. Saliq Ram reported in AIR 1947 All. 476. The mere use of the word 'Taqsim Kiya' does not necessarily indicate that the transaction had taken place some time before : Bal Kishan v. Saliq Ram (supra)"

19. In the present case as noted above it is not even shown that there was any oral partition and the document does not refer to the same Necessary corollary would follow that it cannot be termed that there was an oral partition followed by memorandum of the same to be so recorded.

20. Even if for sake argument the document mark X is taken into consideration objection has rightly been taken taken that this document if it effects the partition cannot be read in evidence because it is not a registered document. Under Section of the Registration Act the document which creates rights in the immovable property would required registration. It was so recorded almost eight decades ago in Chandu Lal vs. Dault Ram & Ors. 1924 Lahore 286 and again by this court in the case of Smt. Chanderwati vs. Lakhmi Chand & Ors. it was held that when the document is effecting the partition then it requires registration. It has already been noted above that the document does not acknowledge a prior partition. At best it can be termed that it was a partition deed. Necessary conclusion therefore would be that it required registration. In other words, it could not be read in evidence and in any case the original as alleged by defendant no.1 is not proved.

21. Admittedly, plaintiff and defendant no.1 has one half share in the property. Therefore the plaintiff is entitled to a preliminary decree for partition. Issue is decided against defendant no.1.

22. Relief: For these reasons recorded above, a preliminary decree for partition is passed. I appoint Shri Munish Kochar, Advocate to suggest the made of partition with respect to the said property. The report should be submitted by 24th January, 2002. His fee is fixed at Rs.5000/-, initially to be paid by the plaintiff.