Delhi High Court
Harish Chander Sharma & Ors. vs Deep Chand Ram Dass & Sons & Ors. on 24 November, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
% Date of Decision: November 24, 2008
+ RFA 321/1991
HARISH CHANDER SHARMA & ORS. .....Appellants
Through: Mr.Ravi Gupta, Advocate
VERSUS
DEEP CHAND RAM DASS & SONS & ORS. .....Respondents
Through: Nemo
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.(Oral)
1. Vide impugned Judgment and decree dated 16.03.1991,
suit filed by the appellant seeking partition of property bearing
Municipal No. 147-148, Chandni Chowk, Delhi has been
dismissed, being held as not maintainable, in as much as the
Learned Trial Judge has held that the suit sought partial
partition of a joint property.
2. The case of the appellants was that Hadi Ali Khan,
defendant No. 2, was the owner of the 11.68% share in
property bearing Municipal No. 135 to 148, Chandni Chowk,
Delhi and that vide sale deed dated 18.10.1995, Ex-P-1, he
sold 8.76% share in said properties to the appellants, thus,
appellants became the joint owners of the property bearing
Municipal No. 135 to 148, Chandni Chowk, Delhi with their
undivided share being 8.76%.
3. It was pleaded that later on, the other co-owners sold
their 82.84% undivided share in property No. 147-148 to
defendant No. 1, vide a sale deed dated 20.03.1979.
Defendant No. 1 was already a tenant in the said premises No.
147-148.
4. That on the aforesaid facts, the plaintiff filed the suit for
partition claiming partition of property bearing No. 147-148,
Chandni Chowk, Delhi.
5. During the pendency of the suit, the defendant No. 1 sold
its share in the property No. 147-148 to the defendant Nos. 5
& 6 vide the registered sale deed dated 12.08.1980, leading to
their impleadment.
6. The facts as disclosed above would show that the
appellants along with defendant Nos. 2 to 4 and defendant
Nos. 5 & 6 became the co-owners of the property No. 147-148,
Chandni Chowk in the following ratio;
Appellants 8.76%
Defendant Nos. 2 to 4 8.40%
Defendant Nos. 5 & 6 82.84%
7. It may be noted here that as per the averments in the
plaint, defendant Nos. 5 & 6 have 82.84% share only in the
property Municipal bearing No. 147-148, Chandni Chowk, New
Delhi and none in any other property.
8. Holding that a suit for partial partition was not
maintainable and that the appellants were obliged to sue for
partition of all properties i.e. 135 to 148, Chandni Chowk,
Delhi, the suit has been dismissed.
9. Learned Counsel for the appellant has urged before us
that the Learned Trial Judge has erred in ignoring Ex-PX-1 i.e.
the sale deed dated 12.08.1980 under which defendant No. 1
sold its 82.84% share only in property No. 147-148, Chandni
Chowk to defendant Nos. 5 & 6 and the law that as an
exception to the normal rule that a suit for partition must
embrace the entire properties held jointly, a suit for partial
partition lies when strangers need to be joined in a suit for
partition or to put a differently, when the property is held
jointly with strangers who cannot be joined as a party in the
suit seeking partition.
10. We need not note the plethora of authorities as to when
can a suit be filed for partial partition save and except the
latest pronouncement being the decision of a Learned Single
Judge of the Calcutta High Court dated 24.2.2006 disposing of
Civil Suit No. 45/1986 Sunil Baran Chowdhury Vs. Anath
Bandhu Chowdhury & Ors. which authority has been reported
as 2006 (2) CHN 294 as also in Manupatra, citation being
MANU/WB/0022/2006 which lists 5 exceptions to the General
Rule of a suit seeking partition requiring to embrace all the
properties. The same are as under:-
"...............(1) When different portions of family
property are situated in different districts, separate
suits for partition for lands of each district may be
brought; (2) it may be allowed when portion of
joint property at the time of the suit for partition is
incapable of partition; (3) when the property left
out from its very nature impartible; (4) when the
property is held jointly with strangers who cannot
be joined as parties to a general suit for partition
the same may be left out; or (5) when the co-
owners by mutual agreement decide to make
partition of the joint family property leaving some
portion in common."
11. Unfortunately, in the instant case, the Ld. Trial Judge had
failed to appreciate the aforesaid exception to the General
Rule relating to partition of immovable property; has failed to
consider Ex-PX-1, also exhibited as AW-1/1. The net result is
the non appreciation of a very vital fact being that defendant
Nos. 5 & 6 had no concern with properties bearing Municipal
No.135 to 146.
12. Noting that no other issue which was settled has
been decided by the Learned Trial Judge, we allow the appeal
and set aside the impugned Judgment and decree dated
16.03.1991. The issue framed and decided vide the impugned
Judgment and decree is held in favour of the plaintiffs. We hold
that the suit seeking partition was maintainable.
13. Since other issues need to be decided by the
Learned Trial Judge we restore the suit with a direction that
the Learned Trial Judge would decide the remaining issue as
per law.
14. No costs.
15. TCR be returned forthwith.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
November 24, 2008
rs
