Rattan Chand Mehta vs Shri Jaswant Ram & Ors
2008 Latest Caselaw 1540 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CS(OS) 2702/1997


%                               Date of decision :.04.09.2008

RATTAN CHAND MEHTA                                 .......Plaintiff
                   Through:   Mr Rohit Kumar, Advocate.


                                 Versus

SHRI JASWANT RAM & ORS                             ....... Defendants
                   Through: Mr S.L. Chowdhary and Mr Padam Chowdhary,
                            Advocates for the Defendant No.1.
                            Ms Shashi Saxena, Advocates for Defendant
                            No.2.
                            Mr S.D. Lal, Advocate for Defendant No.3.


CORAM :-
     HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW


     1.

Whether reporters of Local papers may be allowed to see the judgment? Yes

2. To be referred to the reporter or not? Not Necessary

3. Whether the judgment should be reported Not Necessary in the Digest?

RAJIV SAHAI ENDLAW, J

1. Partition of House No. II-O/15, Lajpat Nagar-II, New Delhi

comprising of lease hold land admeasuring 200 sq yds and a single

storied structure existing thereon is claimed in the present suit. The

parties, particularly, the plaintiff and the defendant No.1 were found

to be at issues as to the share of the respective parties in the said

property. Objection was also raised that the land underneath the

property being lease hold the property could not be partitioned.

Issues were framed on the pleas raised. However, during the hearing

on the said issues on 20th August, 2008 the counsel for all the parties

CS(OS) 2702/1997 Page no. 1 of 14 submitted that subject to the decision on the shares, considering the

nature of the property, instead of a preliminary decree, a final decree

of partition by sale of the property with right to all the parties to bid

for the property be passed.

2. It is the admitted position that the house belonged to Shri

Mangu Ram Mehta. The plaintiff, the defendant No.1 and the

defendant No.3 are the sons of Shri Mangu Ram Mehta. The

defendant No.2 is the son of yet another son of Shri Mangu Ram

Mehta. The defendant No.1 also died during the pendency of the suit

and his legal heirs were substituted and amended memo of parties

dated 7th April, 2005 filed. To avoid any further inconvenience to the

parties, it is also recorded that though the defendant No.1 was named

as Jaswant Ram and continues to be named so in the suit but he, in his

written statement, stated that his name was Jaswant Rai Mehta and

not Jaswant Ram. The plaintiff in replication thereto stated that in the

lease deed issued by the L&DO the name of the defendant No.1 was

mentioned as Jaswant Ram though in the mutation letter his name

was mentioned as Jaswant Rai Mehta. This fact is being mentioned so

that in sale or in execution or working of the decree, no difficulties

are encountered for this reason.

3. It is also not in dispute that Shri Mangu Ram Mehta, owner

of the house, died on 24th December, 1959 leaving the plaintiff,

defendant No.1, defendant No.3 and the father of the defendant No.2

as his four sons, a widow and two daughters and the son of a

predeceased daughter as his only legal heirs. None has claimed that

CS(OS) 2702/1997 Page no. 2 of 14 Shri Mangu Ram Mehta left any Will. As such, in accordance with the

Hindu Succession Act, on his demise the house aforesaid devolved on

his widow, his four sons and his two daughters and the son of the

predeceased daughter in equal shares.

4. It is in evidence of the plaintiff and has not been

controverted by any of the defendants that the two daughters of Shri

Mangu Ram Mehta and the son of the pre-deceased third daughter of

Shri Mangu Ram Mehta abandoned and surrendered their share in

the said house which had devolved on them, in favour of the widow

and four sons of Shri Mangu Ram Mehta. Thus, the widow and four

sons of Shri Mangu Ram Mehta came to hold 1/5 undivided share

each in the said house.

5. It is further in evidence of the plaintiff and again has not

been controverted by any of the defendants that the widow of Shri

Mangu Ram Mehta relinquished her 1/5th share in the said house in

favour of the plaintiff. The plaintiff has proved as exhibit PW1/1 the

letter dated 19th August, 1979 of the office of the Deputy Chief

Settlement Commissioner, Delhi mutating the house from the name of

Shri Mangu Ram Mehta to the name of the plaintiff having 2/5th share

and the defendant No.1, father of the defendant No.2 and the

defendant No.3 each having 1/5th share. The plaintiff has further

proved as Exhibit PW1/2 a lease deed dated 12th May, 1983 executed

on behalf of the President of India with respect to land underneath the

said house in favour of the plaintiff, defendant No.1, father of

defendant No.2 and the defendant No.3, having the shares as

CS(OS) 2702/1997 Page no. 3 of 14 aforesaid. A conveyance deed dated 12th May, 1983 of the

superstructure existing on the land was also executed in favour of the

said persons and showing them to be having the shares as aforesaid

and has been proved as Exhibit PW1/3.

5. It is further the admitted position that the defendant No.1

vide release deed dated 30th July, 1991 registered on 21st August,

1991, out of his 1/5th undivided share in the house, for consideration

released 1/10th share in favour of the plaintiff. The said release deed

has been proved as Exhibit PW1/4.

6. The plaintiff thus instituted the suit claiming to be the

owner of 2/5th plus 1/10th i.e., one half share in the house and claimed

that the defendant No.1 was the owner of 1/10th and defendants No. 2

and 3 each were the owner of 1/5th share each in the house and

claimed partition.

7. Each of the defendants filed their separate written

statement. All the defendants took a plea that the property being

lease hold could not be partitioned. The defendant No.1 while

admitting execution of the release deed Exhibit PW1/4 with respect to

1/10th share in favour of the plaintiff took a plea as under:

"It is admitted that the defendant No.1 sold 1/10th share to the plaintiff but the same was sold on the condition laid down in the agreement. The plaintiff has not complied with the condition of agreement, therefore, the sale has become null and void."

8. In the aforesaid state of pleadings, the following issues

were struck on 23rd May, 2001:

CS(OS) 2702/1997 Page no. 4 of 14 "1. Whether at the time Deed dated 30th July, 1991(registered on 21st August, 1991) was executed by defendant No.1 in favour of the plaintiff, later was in possession of entire land of the share of defendant No.1? If so, its effect?

2. Whether plaintiff has not complied with the conditions of deed dated 30th July, 1991 as alleged? If so, to what effect?

3. Whether restriction on sub-division of land contained in the lease deed dated 12th May, 1983 disentitles the plaintiff to seek separation of his share in suit property as alleged?

4. Whether suit has not been properly valued for the purposes of court fee and jurisdiction?

5. What are the respective shares of the parties in suit property?

6. Relief."

9. The counsel for the defendants No 2 and 3, at the time

of hearing, did not oppose the partition or the shares of the

parties as set out in the plaint. The counsel for the defendant

No.1, however, argued that the share of the defendant No.1 was

1/5th and not by 1/10th as claimed by the plaintiff and

consequently the plaintiff's share was 2/5th and not half as

claimed by the plaintiff.

Re: Issue No.1

10. The plaintiff has in the plaint itself in para 11 stated

that the plaintiff and the defendants No 2 and 3 are in possession

of the whole of the suit property while the defendant No.1

resides at F-1/76, Lajpat Nagar-I, New Delhi. The plaintiff in his

affidavit by way of examination in chief stated that since there

was no division of land, nobody could say that anybody is in

possession of any particular portion of the undivided land and

CS(OS) 2702/1997 Page no. 5 of 14 claimed to be in possession of two rooms, one store, one kitchen,

bath cum WC. The release deed executed by the defendant No.1

and which is also signed by the plaintiff (Exhibit PW1/4) also

records that the physical possession of the defendant No.1's

share in the property is with the plaintiff. The defendant No.1

also produced before the court an agreement dated 21st August,

1991 on which the plaintiff in his cross examination by the

counsel for the defendant No.1 admitted the signatures. The

said agreement has been proved as Exhibit PW1/D1. The said

agreement also records that the plaintiff will hand over to the

defendant No.1 the peaceful vacant possession of the defendant

No.1's remaining 20 sq yds in the property by 28th February,

1993. The counsel for the defendant No.1, during cross

examination of the plaintiff, had put to the plaintiff if the plaintiff

had so put the defendant No.1 into possession of the defendant

No.1's remaining 1/10th equal to 20 sq yds share in the property

and the plaintiff answered that because the suit property was

undivided, hence the possession of 1/10th share of defendant

No.1 could not be given to him.

11. Thus, I find that the plaintiff was in possession

alongwith the defendants No 2 and 3 of the property at the time

of execution of the release deed dated 30th July, 1991 (registered

on 21st August, 1991) proved as Exhibit PW1/4. However,

neither has the counsel for the defendant No.1 argued the effect,

if any, of the said fact on the outcome of the present suit nor do I

find the said fact to be having any effect.

CS(OS) 2702/1997                                           Page no. 6 of 14
             Issue is answered accordingly.



Re: Issue No.2.

12. This is the main issue on which arguments have been

addressed. Though the issue has been framed with reference to

the deed dated 30th July, 1991 Exhibit PW1/4 but I do not find

any term to be complied with by the plaintiff qua the defendant

No.1 in the said deed. The arguments were addressed by the

counsel for the defendant No.1 in relation to the agreement

dated 21st August, 1991 Exhibit PW1/D1 (supra). It is the said

agreement which provides that while the defendant No.1 is

releasing half of his 1/5th share i.e., 1/10th share in the house in

favour of the plaintiff by a separate deed, the remaining 20 sq

yds belonging to the defendant No.1 is in possession of the

plaintiff and the plaintiff will hand over the peaceful and vacant

possession of the said 20 sq yds to the defendant No.1 by 28 th

February, 1993. It has been argued by the counsel for the

defendant No.1 that the plaintiff having not so handed over 20 sq

yds out of the house to the defendant by 28th February, 1993, the

release by the defendant No.1 of his 1/10th share in the house in

favour of the plaintiff had become null and void. As far as the

issue as framed is concerned, I find that there was no such

condition contained in the deed dated 30th July, 1991 requiring

the plaintiff to put the defendant No.1 into possession of 20 sq

yds out of the property. The issue as framed is thus liable to be

decided against the defendant No.1 and in favour of the plaintiff.

CS(OS) 2702/1997 Page no. 7 of 14

13. However, even if the issue is to be decided with

reference to the agreement dated 21st August, 1991 as argued by

the counsel for the defendant No.1, instead of with reference to a

deed dated 30th July, 1991, I still am unable to reach a conclusion

that the plaintiff has not complied with the condition imposed on

him.

14. It was in the knowledge of the plaintiff and the

defendant No.1 at the time of making the release deed dated 30th

July, 1991 and the agreement dated 21st August, 1991 that the

share of the plaintiff as well as the defendant No.1 in the house

was an undivided share. The release deed dated 30th July, 1991

Exhibit PW1/4 is of an undivided share. It was further in the

knowledge of the plaintiff and the defendant No.1 that the

defendant No.2 (or his predecessor) and defendant No.3 also had

a share in the said house. Without all the parties' consenting to

partition, it was not possible for the plaintiff to partition/carve

out 20 sq yds out of the entire property and to put the defendant

No.1 into possession thereof.

15. It cannot also be said that such handing over by the

plaintiff to the defendant No.1 of 20 sq yds out of the property

was consideration for the release deed. The release deed Exhibit

PW1/4 was for consideration mentioned therein that is Rs

80900/- and not in consideration of the promise, if any, contained

in the agreement dated 21st August, 1991. The deed dated 30th

July, 1991 is a registered document and any plea that the

CS(OS) 2702/1997 Page no. 8 of 14 consideration for the defendant No.1 to release his 1/10th

undivided share in the house in favour of the plaintiff was the

promise of the plaintiff to put the defendant No.1 into vacant

possession and 20 sq yds of the property by 28th February, 1993

would be in contradiction of the terms of the registered

document and such plea/evidence is not entertainable under

Section 92 of the Indian Evidence Act. It is also significant that

neither the agreement dated 21st August, 1991 nor the registered

deed dated 30th July, 1991 makes the release by the defendant

No.1 of 1/10th undivided share in favour of the plaintiff

conditional upon the plaintiff handing over vacant possession of

20 sq yds of the property to the defendant No.1 and does not

even provide that upon the failure of the plaintiff to do so the

said 1/10th share would revert back to the defendant No.1. The

agreement dated 21st August, 1991, besides handing over of the

said 20 sq yds also refers to the plaintiff cooperating with the

defendant No.1 in other legal proceedings.

16. The defendant No.1 also at the contemporaneous time

did not aver that because of the plaintiff's failure to put him into

possession of 20 sq yds of the property, release by him of his

1/10th undivided share in the property was null and void. A

notice dated 1st October, 1996 i.e., shortly before the institution

of the present suit, got issued by the defendant No.1 to the

plaintiff through the same advocate representing the defendant

No.1 in the present suit claims that upon the failure of the

plaintiff to put the defendant No.1 into vacant possession of 20

CS(OS) 2702/1997 Page no. 9 of 14 sq yds of the property, the plaintiff had become liable to pay

damages @ Rs 2000 per month to the defendant No.1. However,

in the written statement, instead of claiming the said damages, a

case was made of the release of 1/10th share having become null

and void.

17. I do not find the plaintiff to be in breach of the

condition of agreement dated 21st August, 1991 also. The

plaintiff could have handed over possession of 20 sq yds

equivalent of 1/10th share of the defendant No.1 in the house,

only on partition of the house and for which purpose the present

suit has been filed.

18. The agreement dated 21st August, 1991 whereunder

the plaintiff had agreed to put the defendant No.1 into vacant

possession of 20 sq yds of the property, even if breached by the

plaintiff, cannot dent the release by the defendant No.1 of his

1/10th undivided share in favour of the plaintiff vide the

registered deed dated 30th July, 1991. The defendant No.1, if

aggrieved by any breach by the plaintiff of the agreement dated

21st August, 1991 had/has his remedies in law but the same

cannot come in the way of the plaintiff being found to be having

one half undivided share in the house pursuant to the release by

the defendant No.1 of his 1/10th undivided share in favour of the

plaintiff.

The issue is decided accordingly.

CS(OS) 2702/1997                                        Page no. 10 of 14
 Re: Issue No.3.

19. It is urged that, as per the terms of the lease of the

land underneath of the house, the same is indivisible and thus

the suit for partition is liable to be dismissed. Clause E(vii) of

the lease of the land proved as Exhibit PW1/2 "not to sub-divide

the said land or building erected thereon or any part thereof

without the prior permission of the Lessor in written."

Simultaneously, with the execution of the lease of the land

Exhibit PW1/2, deed of conveyance of building constructed

thereon was also executed and it has been proved as Exhibit

PW1/3 (supra). Thus, the position is while the land is lease hold

the structure thereon is free hold. It has been held by this court

in Chiranjilal & Anr v Bhagwan Dass & Ors 1991(3) Delhi

Lawyer 350; Shri Mohinder Singh v Shri Kartar Lal 1997 III

AD (Delhi) 626 and Ram Lal Sachdev v Smt Sneh Sinha 83

(2000) DLT 141 that such terms in the lease of the land

underneath of the house cannot come in the way of a decree for

partition being passed. It cannot also be lost sight of that the

Government of India has in or about the year 1995 come out with

a scheme for conversion of leasehold rights in the land

underneath such houses into freehold. It is perhaps owning to

the inter se disputes between the parties that such conversion

could not happen. As noted by me at the outset, the parties have

already consented to sale of the property. The parties are, thus,

now required to only sell their undivided share in the property

and for this reason also this issue has become otiose and is

answered accordingly.

CS(OS) 2702/1997                                       Page no. 11 of 14
 Re: Issue No.4.

20. The plaintiff is admittedly in possession of the property.

As per the provisions of the Court Fees Act (Article 17(vi) of

Schedule II) a fixed court fee of Rs 19.50 is payable on a suit for

partition if the plaintiff has not been ousted from the property of

which the partition is claimed. Even otherwise no evidence has

been led and no argument has been addressed on the said issue

and the said issue is decided in favour of the plaintiff and against

the defendants.

Re: Issue No.5.

21. The plaintiff had examined as PW2 the witness from the

L&DO who has proved as Exhibit PW2/1 the letter dated 24th

June, 1997 of the Land and Development Office as the lessor of

the land underneath the house of mutation pursuant to the

demise of the father of the defendant No.2. As per the said

letter, the parties have the following share in the house: plaintiff

1/2, defendant No.1 - 1/10, defendant No.2 - 1/5 and defendant

no.3 - 1/5.

22. As observed by me also hereinabove, there was really

no dispute about the share except for the transfer of 1/10th

undivided share by the defendant No.1 in favour of the plaintiff.

The said transfer has been found to be valid and subsisting.

Thus, I hold that the parties have the shares as aforesaid in the

house.

CS(OS) 2702/1997                                          Page no. 12 of 14
 Issue No.6.

23. The parties, at the time of hearing, submitted that the

property, subject to the decision on the shares, is incapable of

being partitioned by metes and bounds and had submitted that

no purpose would be served in first passing a preliminary decree

and further prayed that upon a finding with respect to the shares

of the parties being given, a final decree for partition by sale be

passed and the parties be permitted to bid in the said sale and a

Local Commissioner for the said purpose be appointed.

24. I pass a final decree for partition of the property by

sale of the property with the parties being entitled to the

following share in the sale proceeds: plaintiff - 1/2, Legal

representatives of the defendant No.1 - 1/10, defendant No.2 -

1/5 and defendant No.3 - 1/5.

25. I appoint Mr B.S. Banerjee, Advocate as the Court

Commissioner to sell the property. The fee of the Court

Commissioner besides other expenses is tentatively fixed at Rs

50,000/- to be borne initially by the plaintiff and to be ultimately

borne from the sale proceeds, as per the share aforesaid of the

parties. The Local Commissioner shall within eight weeks from

the parties approaching him first in this regard give opportunity

to the parties to bid, inter se, and the party offering the highest

bid shall be liable to, within the time to be fixed in advance by

the Local commissioner, pay the consideration of the shares of

CS(OS) 2702/1997 Page no. 13 of 14 the other parties, unless the parties jointly agree in writing to

extend the said time of eight weeks. Upon the parties failing to

so bid or arriving at any conclusion, the court Commissioner

shall proceed to sell the property to outsiders by publication or

otherwise, however, in consultation with the parties and with the

aim of getting the best possible price of the property. The Court

Commissioner while formulating terms of sale shall be entitled to

provide for payment of earnest deposit forfeitable on the failure

of the party/purchaser to pay the balance consideration within

the time to be fixed by the Court Commissioner. Let a decree

sheet be drawn up accordingly and a copy of this judgment be

forwarded to the Court Commissioner.

                                       RAJIV SAHAI ENDLAW
                                            (JUDGE)

September 04, 2008
M




CS(OS) 2702/1997                                      Page no. 14 of 14