Dharam Pal Dixit & Ors vs Daulat Ram Dixit & Ors
2011 Latest Caselaw 6157 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA 126/2011

%                                                       15th December, 2011

DHARAM PAL DIXIT & ORS                                       ..... Appellants
                  Through :              Mr. Rishi Kumar Awasthi, Advocate.

                   versus

DAULAT RAM DIXIT & ORS                                       ..... Respondents
                  Through :              None.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.    The challenge by means of this Regular First Appeal (RFA) filed under

Section 96 Code of Civil Procedure, 1908 (CPC) is to the impugned judgment

of the trial Court dated 21.9.2010. By the impugned judgment, the trial Court

decreed the suit of the respondent/plaintiff for partition by holding that

plaintiff as well as seven defendants are entitled to 1/8th share each over the

said suit property bearing no. I-77, Garwali Mohalla, Lalita Park, Laxmi

Nagar, Delhi-110 092 which is a three storyed structure built on a plot

admeasuring 175 sq. yds.

2.    The brief facts of the case are that the suit property admittedly

belonged to the father of the parties Sh. Ratan Lal Dixit, who expired on

RFA No. 126/2011                                                     Page 1 of 5
 9.10.2002 leaving behind him the plaintiff and defendants as his Class-I legal

heirs. The father was said to have died intestate. The suit was filed as it was

stated that the defendant Nos. 1, 2 and 5 declined the request of the plaintiff to

partition the suit property.

3.    Before the trial Court, defendant Nos. 1, 2 and 5, who are the appellants

herein, contested the suit by stating that the father of the parties had

partitioned the property during his life time and that the suit property was

given to defendant Nos. 1, 2 and 5 whereas the plaintiff was given property at

their native place situated at village Haler, District Kangra, Himachal

Pradesh.

4.    There are only two issues which were framed by the trial Court, and the

same read as under:-

             "1. Whether during the life time of Sh. Ratan Lal Dixit,
             plaintiff has been given his share and therefore, has no
             right in the suit property and nor any share therein? OPD
             1, 2 and 3
             2.     Whether plaintiff is entitled to claim partition of the
             suit property? OPP
             3.     Relief."


5.    The trial Court had arrived at the necessary finding of the absence of

any family settlement in para 13 of the impugned judgment and which reads

as under:-

             "13. The factum regarding the ownership of the suit
             property by late Sh.Ratan Lal Dixit and his dying intestate
RFA No. 126/2011                                                       Page 2 of 5
             on 9.10.2002 leaving behind him the plaintiff and all the
            seven defendants as his ClassI legal heirs is not found
            disputed by any of the parties. However, the stand of the
            plaintiff to the effect that as said Sh.Ratan Lal Dixit who
            was the father of the parties was the original owner of the
            suit property and have died intestate and had not
            partitioned the suit property during his life time, therefore,
            the plaintiff and all the defendants are entitled for 1/8th
            share each on the said suit property, is disputed by
            defendants no.1, 2 and 5 on the count that in the year
            1990 said Sh.Ratan Lal Dixit during his life time had
            orally partitioned his property whereby giving the suit
            property to the defendants no.1,2 and 5 and the plaintiff
            was given his share on the property of native village Haler,
            District Kangra, Himachal Pradesh and therefore, the
            plaintiff or any other defendants are having no right over
            the suit property. Though said defendants no.1,2 and 5
            have got examined defendant no.1 as DW1, Smt. Lalita
            Awasthi, cousin sister of the parties as DW2, Smt. Sushma
            Dixit who is wife of defendant no.5 as DW3 and
            Mohammad Yusuf who is neighbour/friend of the
            defendants as DW4 but none of them specifically deposed
            as regards the month and year as to when oral family
            settlement was conducted by said Sh.Ratan Lal Dixit nor
            could they state specifically as regards the particulars of
            the property which was given to the plaintiff in his share
            by the father of the parties. Furthermore, none of the said
            DWs could state about the age of the plaintiff at the time
            of said oral family settlement. Besides that from the
            perusal of the copy of the Ration Card as placed on record
            by the plaintiff which is Ex.PW1/2, it is clearly reflected
            that the plaintiff Sh.Daulat Ram Dixit was born in the year
            1980 and therefore, he happens to be aged about 10 years
            in the year 1990 as to when the alleged family settlement
            is claimed to have taken place by the defendants no.1,2
            and 5. In view of the same, I found force in the
            submission of Ld. Counsel for the plaintiff that the stand
            of said defendants no.1, 2 and 5 to the effect that in the
            family settlement which took place in the year 1990 the
            plaintiff was given his share in the property of native
            village by his father Sh.Ratan Lal Dixit is false and
RFA No. 126/2011                                                     Page 3 of 5
             fabricated, in view of the fact that the plaintiff was merely
            10 years old by that time and there was no occasion for
            any such family partition and giving share of the property
            to the plaintiff by their father. Furthermore, there are
            several discrepancies found in the deposition of the DWs
            regarding various aspects as regards the said family
            settlement. Besides that hough DW2 Smt. Lalita Awasthi
            and DW4 Mohammad Yusuf in their deposition are found
            to have claimed to be present at the time of oral family
            settlement by late Sh.Ratan Lal Dixit but DW1 Sh.Lekh
            Raj Dixit and DW3 Smt. Sushma Dixit have not deposed
            regarding the presence of said DW2 Smt. Lalita Awasthi
            and DW4 Mohammad Yusuf at the time of the alleged
            family settlement. Besides that though all the DWs have
            stated that the alleged family settlement has taken place in
            their presence and presence of the plaintiff and the
            defendants but the plaintiff as well as
            defendant no.3, 4 and 7 have clearly denied regarding any
            such family settlement by their father Sh.Ratan Lal Dixit
            during his life time in this respect. Defendants no.3, 4 and
            7 have appeared in person before this court on the date of
            final argument i.e. 15.9.10 and submitted that they
            support the stand of the plaintiff and as no family
            settlement has taken place during life time of their father,
            they urged for partition of the suit property to the extent of
            1/8th share each."
                                                       (Underlining added)

6.    A reading of the aforesaid para shows that the trial Court has correctly

arrived at the finding that there is no oral family settlement which was proved

by the appellants. One of the reasons for disbelieving the alleged oral family

settlement was that the plaintiff was only ten years old in the year 1990 when

the alleged family settlement was stated to have taken place.        Obviously,

valuable rights in properties cannot be lost by means of oral deposition of an

oral family settlement, when such a family settlement has been denied by the
RFA No. 126/2011                                                     Page 4 of 5
 other party.    The onus of proof in such a case, which was upon the

appellants/defendant Nos. 1, 2 and 5, cannot be said to have been discharged

because the stand of the appellants was denied on oath by the

plaintiff/respondent No.1.

7.    In view of the fact that the property belonged to the father who died

intestate, and the parties to the suit were legal heirs falling in Class-I as per

Hindu Succession Act, 1956, the trial Court has rightly decreed the suit giving

each of the parties 1/8th share in the suit property.

8.    In view of the above, there is no merit in the appeal and the same is

accordingly dismissed, leaving the parties to bear their own costs.




                                              VALMIKI J. MEHTA, J.

DECEMBER 15, 2011 AK