Delhi High Court
Narinder Nath Seth & Ors. vs Mrs. Lata And Ors. on 8 February, 2012
Author: Reva Khetrapal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2658/1999
NARINDER NATH SETH & ORS. ..... Plaintiffs
Through: Mr. Gaurav Puri, Mr. Dilip Gupta and
Mr. Anil Punj, Advocates.
versus
MRS. LATA AND ORS. .... Defendants
Through: Mr. Ankit Agarwal and Mr. Sanjay
Abbot, Advocates for the defendants
No.1 to 5.
Mr. Siddharth Yadav, Advocate for
the defendant No.6.
% Date of Decision : February 08, 2012
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
JUDGMENT
: REVA KHETRAPAL, J.
1. The above-mentioned suit is filed by the plaintiffs for partition
of the properties left by late Shri Lachmi Narain Seth, who died
intestate on 24.02.1967.
2. The facts averred in the suit are that the predecessor-in-interest
of the plaintiffs and the defendants, late Shri Lachmi Narain Seth was
the owner of property bearing No. 33/5, East Punjabi Bagh, New
Delhi-110006 and he was also the owner of Shop No.48, Khursheed
Market, Sadar Bazar, Delhi. He died leaving behind him three sons
and one daughter, namely, Shri Kedar Nath Seth who died on
23.05.1989, Shri Manmohan Seth who died on 21st June, 1990, Shri
Krishan Lal Seth and Mrs. Kamla Chopra also died during the
pendency of the present proceedings.
3. Shri Kedar Nath Seth died intestate and left behind him the
plaintiffs as his legal representatives, being his widow, two sons and
one daughter.
4. The defendant Nos.1 to 5 are the sons and daughter of late Shri
Manmohan Seth. The defendant Nos.6(a) to (d) represent the branch
of Shri Krishan Lal Seth and the defendant Nos.7(a) to (f) are the
legal representatives of late Smt. Kamla Chopra, daughter of late Shri
Lachmi Narain Seth.
5. It is the case of the plaintiffs that the defendant No.7 and after
her demise her legal representatives have no claim to any right, title
or interest of any nature in the suit properties and thus the suit
properties shall be divided in the ratio of one-third to each son
represented by his respective branch of family.
6. The plaintiffs have filed a site plan of the property bearing No.
33/5, East Punjabi Bagh, New Delhi with the plaint wherein the
portion in the exclusive possession of the plaintiffs is shown in red
colour and is marked „A‟, whereas the portion shown in black colour
and marked „B‟ is in the exclusive possession of the legal heirs of late
Shri Krishan Lal Seth, with certain portion as common passage with
plaintiffs and the portion marked blue comprising first floor of the
said building is in the possession of the defendant Nos.1 to 5 as legal
heirs of late Shri Manmohan Seth.
7. It is averred in the plaint that Shop No. 48 was being run by
late Shri Lachmi Narain Seth in the name of M/s. S.L. Narain & Sons
and his two sons, namely, Shri Krishan Narain Seth and Shri
Manmohan Seth were also working in the said shop and, after the
death of the father late Shri Lachmi Narain Seth, the said Shri
Manmohan Seth forcibly turned out his elder brother Shri Krishan
Narain Seth, and thereafter there was litigation between the two
brothers wherein it was subsequently agreed that the shop belongs to
all the co-owners.
8. The plaintiffs allege that the defendants have refused to carry
out the partition of the suit properties which are liable to be
partitioned and for which a legal notice dated 09.07.1996 was given
to them. However, the defendant Nos.1 to 5 particularly are adamant
because they are in illegal possession of the first floor of the house
and also of Shop No. 48, Khursheed Market, Sadar Bazar, Delhi.
9. It is alleged in the plaint that the plaintiffs again requested the
defendants on 01.10.1996 by sending notices by registered A.D. post,
which the defendants refused to accept and which were subsequently
served by U.P.C.
10. In reply to the averments made in the plaint, a written statement
was filed by the defendant Nos.1 to 5 wherein the specific case of the
said defendants was that the present suit is an abuse of the process of
law being for re-partition of the properties left by the deceased
Lachmi Narain Seth, and filed in collusion with the defendant Nos.6
and 7, which properties were partitioned by Shri Lachmi Narain Seth
during his lifetime about 32 years back amongst his legal heirs by
way of a family settlement.
11. So far as Shop No.48, Khursheed Market, Sadar Bazar, Delhi is
concerned, it is the case of the defendant Nos.1 to 5 in their written
statement that the said shop had fallen to the share of their
predecessor-in-interest - late Shri Manmohan Seth.
12. Besides the aforesaid pleas raised in the written statement, it is
also the case of the defendant Nos.1 to 5 that another property being
No.123, Khursheed Market, Sadar Bazar, Delhi is also liable to be
partitioned between the parties, but has deliberately not been
mentioned and included by the plaintiffs in the present suit. It is
stated that the said shop was owned by late Shri Lachmi Narain Seth
and registered in his name in the record of L&DO till his death and
was in physical possession of Shri Manmohan Seth, who was
carrying on independent business therein in the name and style of
"M/s. Angura Industrial Corporation", which he continued to carry on
even after the death of Shri Lachmi Narain Seth. The said property
came to the share of late Shri Kedar Nath Seth through the family
settlement and was got transferred in his name by the „No Objection
Certificates‟ dated 24.02.1967 of the legal heirs of late Shri Lachmi
Narain Seth after his death, to give effect to the family settlement
entered into during the lifetime of Shri Lachmi Narain Seth, and the
possession handed over to the predecessor-in-interest of the plaintiffs,
Shri Kedar Nath Seth after taking the same from Shri Manmohan
Seth. By virtue of the family settlement, the material documents and
original papers thereof are also in the possession of the plaintiffs
through their father late Shri Kedar Nath Seth.
13. The further case of the defendants No.1 to 5 is that the
commercial property No.48, Khursheet Market came to the share of
Shri Manmohan Seth just as commercial property No.123, Khursheed
Market came to the share of Shri Kedar Nath Seth. However, at the
instance of Shri Kedar Nath Seth, the legal heirs of late Shri Lachmi
Narain Seth did not give „NOC‟ for transfer of shop No.48 in favour
of Shri Manmohan Seth, and the said shop till date stands in the name
of late Shri Lachmi Narain Seth. As far the third son is concerned
Shri Krishal Lal Seth, the defendant No.6, who all along was working
with M/s. Rallis India Limited, and had no interest in business
activities was sufficiently compensated with cash and jewellery
during the lifetime of Shri Lachmi Narain Seth, to keep a balance
with the other sons Shri Kedar Nath Seth and Manmohan Seth.
Further, as sufficient amount was spent by Shri Lachmi Narain Seth
in the marriage of his only daughter Smt. Kamla, she too was not
given any share in the family properties.
14. Significantly, it is asserted by the defendants No. 1 to 5 in the
written statement filed by them that the said family settlement was
signed by all the parties and the original documents were in
possession of late Shri Kedar Nath Seth and, as such, the plaintiffs are
taking undue advantage of the said documents being in their
possession and power and seeking re-partition of the properties to
claim more share in the same. It is further asserted that the defendant
No.6, Shri Krishan Lal Seth is hand and glove with the plaintiffs.
15. It is, however, admitted in the written statement by the
defendants No. 1 to 5 that the entire first floor portion comprising of
three rooms set with open terrace is in their possession through Shri
Manmohan Seth, exclusively, for more than 32 years.
16. The first and amended site plans filed by the plaintiffs are
denied by the defendant Nos.1 to 5 as false and incorrect. It is
averred that the plaintiffs‟ father Shri Kedar Nath Seth and the
defendant No.6, Shri Krishan Lal Seth were given accommodation of
three rooms set each on the ground floor, with common front and rear
setbacks and courtyard. However, the plaintiffs after the said family
settlement constructed unauthorized portion by covering courtyard,
etc., that is, in all three rooms and a temple room, totalling seven
rooms accommodation is in their possession. Site plan has been filed
by the defendant Nos.1 to 5 in support of the aforesaid averments.
17. In the written statement filed on behalf of the defendant No.6,
the defendant No.6 has expressed his readiness and willingness to
partition of the properties mentioned by the plaintiff and stated that he
is also entitled to share in the other properties left behind by the
deceased, being Shop No.17, Shop No.123 and 123A, Khursheed
Market, Sadar Bazar.
18. On the aforesaid pleadings of the parties, the following issues
were framed for consideration on 25.05.2007:-
"1. Whether there was a family partition and
settlement between the parties about 32
years before or not? OPD (1 TO 5).
2. Whether late Sh. Lakshmi Narain Seth
left behind other properties than those
mentioned in the plaint, if so, whether
they are liable to be partitioned or not?
OPD (1 TO 6).
3. Whether the plaintiff is entitled to
partition of the properties mentioned in
the suit? OPP.
4. Whether the parties had acted upon the
family settlement, if any, and whether the
parties are in possession of their
respective shares? OPD (1 TO 5)."
19. On the aforesaid issues, the parties went to trial by adducing
evidence by way of affidavits of Mr. Narender Seth as PW1, Mr.
Rajeev Seth as DW1 and Mr. Sandeep Seth as DW2. In order to
avoid prolixity, it is proposed to deal with the evidence of the
aforesaid three witnesses while dealing with the issues.
20. My findings on the issues are given below.
"1. Whether there was a family partition and
settlement between the parties about 32 years before
or not? OPD (1 TO 5)."
"3. Whether the plaintiff is entitled to partition of
the properties mentioned in the suit? OPP."
"4. Whether the parties had acted upon the family
settlement, if any, and whether the parties are in possession of
their respective shares? OPD (1 TO 5)."
22. In view of the fact that Issue Nos.1, 3 and 4 are interlinked and
interconnected, it is proposed to deal with the evidence relating to
these three issues together.
23. In the affidavit by way of evidence filed by PW-1, Mr.
Narender Seth on behalf of the plaintiffs (Exhibit PW1/A), PW1 has
reiterated and re-affirmed the averments made by him in the plaint
and proved on record the three Special Power of Attorneys in his
favour given by the co-plaintiffs as Exhibits P1/1, P1/2 and P1/3
respectively, the amended suit as Exhibit PW1/4, the certified copies
of the Lease Deed of property No. 33/5, East Punjabi Bagh, New
Delhi and shop No.48, Khursheed Market, Sadar Bazar, Delhi as
Exhibits P1 and PW1/D5 and the site plan of the Punjabi Bagh
property as Exhibit P1/7. He states that the two properties which are
the subject matter of the present suit were the exclusive properties of
late Shri Lachmi Narain Seth, viz., the property bearing No. 33/5,
East Punjabi Bagh, New Delhi approximately admeasuring 272.7 sq.
yards, purchased on 18.12.1961 and shop No.48, Khursheed Market,
Sadar Bazar, Delhi purchased in the year 1964.
24. He further states that shop No.123, Khursheed Market was
purchased from the funds of Shri Kedar Nath Seth though in the name
of late Shri Lachmi Narain Seth and accordingly after the death of
Shri Lachmi Narain Seth, all his legal heirs agreed and consented to
transfer of property No.123, Khursheed Market in favour of the father
of the plaintiffs, namely, late Shri Kedar Nath Seth and for the
aforesaid purpose late Smt. Dhanwanti Seth (wife), late Smt. Kamla
Chopra (daughter), late Shri Krishan Lal Seth (son) and late Shri
Manmohan Seth (son) executed relinquishment documents in favour
of the plaintiffs‟ father and upon their filing of affidavits and „No
Objections‟, Shop No. 123, Khursheed Market, Sadar Bazar, Delhi
was transferred in the name of late Shri Kedar Nath Seth vide letter
dated 13.12.1967 from the Government of India, Ministry of Labour,
Employment and Rehabilitation, Office of Regional Settlement
Commissioner.
25. Copies of the aforesaid four affidavits have been placed on
record as Ex.PW1/D1, Ex.PW1/D2, Ex.PW1/D3 and Ex.PW1/D4 and
the letter dated 13.12.1967 is marked as Mark „E‟. It may be noted at
this juncture that the aforesaid documents are not denied by the
defendant Nos.1 to 5. The certified copy of the lease and conveyance
deed dated 29.10.1969 in favour of Shri Kedar Nath Seth is exhibited
as Ex.P1/8.
26. PW1 further states that property No. 123, Khursheed Market,
Sadar Bazar, Delhi was further transferred by an Agreement to Sell
dated 11.08.2003 and also a Power of Attorney was executed (Mark
„F‟ and Mark „G‟), whereunder the said property was sold by the
plaintiffs.
27. PW-1 proved on record the notice dated 09.07.1996 exhibited
as Ex.P1/9, the receipts of issuance of the said notice as Ex.P1/10
collectively, the notice dated 27.09.1996 as Ex.P1/11 and the UPCs as
Ex.P1/12 collectively.
28. He asserts that upon the death of late Shri Lachmi Narain Seth,
the plaintiffs have become entitled to one-third share from the afore-
mentioned two properties of late Shri Lachmi Narain Seth, which are
joint family properties of the plaintiffs and the defendants. It is
alleged by him that the defendant Nos.1 to 5 have further constructed
some rooms on the first floor which are being unauthorisedly
occupied by them. In relation to property No.48, Khursheed Market,
he asserts that this shop is being used exclusively by the defendants
No.1 to 5 for profit. A partition by metes and bounds and the passing
of a decree of possession is prayed for and in the alternative that the
properties be ordered to be auctioned and the sale proceeds divided as
per law.
29. In the course of his cross-examination, PW1 Mr. Narender
Nath categorically denied the suggestion that any family partition had
taken place of the house in the year 1966, during the lifetime of his
grandfather, or that he had any documents to show that such partition
had taken place. He denied the suggestion that the plaintiffs had
constructed three more rooms on the ground floor and stated that the
family of the plaintiffs was residing at the ground floor in three rooms
only, and the family of the defendant No.6 was residing at the ground
floor in the remaining three rooms. As regards Shop No.48, he
reiterated that the said shop was in the possession of defendant Nos.1
to 5 and that earlier the partnership firm in the name of M/s. M/s. S.L.
Narain and Sons had been functioning in the said shop till 1978-79
under the partnership of his father and uncle. He stated that the said
shop was purchased in the year 1964. He admitted that the original
papers of shop No.48, Khursheed Market were in his possession. As
regards Shop No.123, Khursheed Market, he stated that it was
purchased in the early 1960s and was transferred to his father‟s name
in the year 1967.
30. The aforesaid evidence adduced by the plaintiffs is sought to be
rebutted by the defendant Nos.1 to 5 through DW1 Mr. Rajeev Seth,
who asserted in his affidavit by way of evidence (Ex.DW1/A) that the
suit properties had already been partitioned by Shri Lachmi Narain
Seth during his lifetime, about 32 years back, amongst his legal heirs
by way of a family settlement in the year 1966. As per the family
partition, commercial property No.48, Khursheed Market had come to
the share of Shri Manmohan Seth, whereas commercial property
No.123, Khursheed Market had gone to the share of late Shri Kedar
Nath Seth. The deceased Lachmi Narain Seth did not give anything to
Shri Krishan Lal Seth in the aforesaid commercial properties and
instead compensated him with sufficient amount of cash and
jewellery during his lifetime. He asserted that the parties were in
settled possession of their respective portions of the residential house
without any interference since the year 1966. In paragraphs 11 to 13
of his affidavit by way of evidence, he made the following significant
assertions:-
"11. I state that the said Family Settlement
was signed by all the parties and the original
documents in relation to the said family
settlement were in possession of Late Sh.
Kedar Nath Seth, the predecessor-in-interest
of plaintiffs.
12. I state that the plaintiffs have concealed
the material documents of Family Settlement
and other original papers in their power and
possession. Late Shri Kidar Nath Seth, being
the eldest son of the deceased Laxmi Narain
and was controlling the entire affairs of the
properties left by Sh. Laxmi Narain Seth and
was given all the said documents of family
settlement.
13. I state that the defendants no.1 to 5,
have repeatedly requested the plaintiffs to
supply copy of the said Family Settlement time
and again, but the plaintiffs flatly refused to
oblige the said defendants."
31. As regards the commercial properties, DW1 Rajeev Seth
elaborated that after the death of Shri Lachmi Narain Seth, in order to
give effect to the family settlement, the legal heirs of late Shri Lachmi
Narain Seth on 24.02.1967, gave their respective „No Objection
Certificates‟ by means of affidavits for transfer of property No.123
Khursheed Market in the name of Shri Kedar Nath Seth and physical
possession of the said property was delivered to Shri Kedar Nath
Seth, thereafter in or around 1972 or 1973. Simultaneous to the
vacation of the said property by Shri Manmohan Seth, Mr.
Manmohan Seth was given possession of shop No.48, Khursheed
Market for his business activities as per the family settlement,
however, at the instance of Mr. Kedar Nath Seth, the legal heirs of
late Shri Lachmi Narain Seth did not give „NOC‟ for transfer of shop
No.48 in favour of Shri Manmohan Seth. The said shop after his
death has devolved upon the defendant Nos.1 to 5. He proved on
record the notices of the Sales Tax Officer for the period 1978-79
showing Shri Manmohan Seth conducting business at 48 Khursheed
Market as Ex.D-1 and Ex.D-2, telephone bill dated 01.07.1985 as
Ex.DW1/1 and the sales tax assessment order dated 14.03.1988 as
Ex.DW1/2, the registration certificate dated 19.01.1980 and the
demand letter issued by MTNL as Ex.DW1/3 and Ex.DW1/4
respectively, the property tax receipt in the name of the defendant
No.1 as Ex.DW1/5 and the receipt issued by the MCD as Ex.D-5.
Certain other documents, being Ex.DW1/7 and Ex.DW1/8, were filed
by him to show that Shri Manmohan Seth had paid a sum of `
1,25,000/- to Grindlays Bank on account of the dues of M/s. S.L.
Narain and Sons, which the plaintiffs did not discharge; and a few
documents showing the defendant Nos.1 to 5 as occupiers of their
portions of 33/5, East Punjabi Bagh, New Delhi were also filed, being
a letter by Sanitary Engineers and Contractors dated 17.12.1982 and a
DVB bill of December, 1997 in the name of the defendant No.1. It
may be noted at this juncture that the evidence of this witness is
entirely based on hearsay evidence as he has given his date of birth to
be 30th April, 1967, whereas his grandfather late Shri Lachmi Narain
Seth admittedly breathed his last on 24.02.1967.
32. Certain significant statements were made by DW1 in the course
of his cross-examination deserve to be dwelt upon. On a query put to
him in cross-examination as to who had informed him about the
family settlement of the year 1966, he stated that it was his father and
his uncles, Shri Krishan Lal Seth and Shri Kedar Nath Seth, who had
informed him about the family settlement. On another query put to
him as to whether the family settlement was in writing or oral, he
stated that it was oral, thereby altogether falsifying the case of the
defendant Nos.1 to 5 that a family settlement duly signed by all the
progeny of late Shri Lachmi Narain Seth had been entered into and
the documents in relation thereto were in the possession of the
plaintiffs. In the course of further cross-examination, he admitted that
he did not know if Shri Manmohan Seth had disclosed that the
properties were partitioned before the income-tax and wealth tax
authorities. The following queries and their answers extracted from
different portions of his cross-examination are also significant:-
"Q. Is it correct that the property no.48,
Khursheed Market and property no.33/5, East
Punjabi Bagh should have been devolved upon
the legal heirs of Sh. Laxmi Narain Seth after
his death?
A. Yes. Vol. He distributed the properties
before his death including property no.123,
Khursheed Market, Delhi.
Q. In which firm Sh. Laxmi Narain Seth was
a partner?
A. What I know is that M/s. S.L. Narain &
Sons was of Sh. Laxmi Narain Seth.
Q. Can you tell the status of your father and
of Sh. Kedar Nath Seth in M/s. S.L. Narain &
Sons?
A. I do not know.
Q. Is it correct that since you were not born
in the year 1966 so whatever you say is
hearsay?
A. The facts were told to me by my father
and my uncle verbally.
Q. Whether you were informed as to in
whose presence, the family settlement was
arrived?
A. I was told that Sh. Laxmi Narain Seth
had decided so and all were bound with the
same.
Q. I suggest it to you that no portion of the
property no.33/5, East Punjabi Bagh, New
Delhi was marked and given to the parties to
the family settlement. What have you to say?
A. I do not know.
Q. I suggest it to you that your portion was
also not marked and given to you by way of
alleged family settlement. What have you to
say?
A. I do not know.
Q. Is it correct that your father relinquished
his rights in the property no.123, Khursheed
Market, Sadar Bazar, Delhi?
A. It is correct."
33. The legal representatives of the defendant No.6 to prove their
case led the evidence of DW2 Mr. Sandeep Seth, who filed affidavit
by way of evidence Ex.DW2/A and proved documents Ex.DW6/1 to
Ex.DW6/8. In paragraph 4 of his affidavit by way of evidence, the
witness stated that late Shri Lachmi Narain Seth had died leaving
behind the following immovable properties:-
(i) 33/5, East Punjabi Bagh, New Delhi;
(ii) Shop No.48, Khurshid Market, Sadar Bazar, Delhi;
(iii) Shop No.17, Khurshid Market, Sadar Bazar, Delhi;
(iv) Shop No.123, Khurshid Market, Sadar Bazar, Delhi;
(v) Godown rented by M/s. S.L. Narain & Sons HUF at Gali
Barna, Delhi.
34. DW2 Sandeep Seth further stated in his affidavit that the
disputes had been referred to a sole arbitrator by mutual consent of all
the three sons vide Deed dated 17/27.07.1978 (Ex.DW6/1). He relied
upon a declaration made by late Shri Kedar Nath Seth to the effect
that he did not desire any other property except property bearing No.
123, Khursheed Market (Ex.DW6/2), the copy of the award rendered
by the sole arbitrator (Ex.DW6/3), the Re-Conveyance Deed of
property No.33/5, Punjabi Bagh (Ex.DW6/4), copy of the legal notice
dated 08.04.1986 issued by Shri Manmohan Seth to Shri Kedar Nath
Seth and Shri Krishan Lal Seth (Ex.DW6/5), letter dated 12.09.1988
of Shri Krishan Lal Seth to the sole arbitrator for implementation of
the award (Ex.DW6/6) and Deed of Agreement between the parties to
the arbitration (Ex.DW6/7). He stated that as of today, the properties
available for partition are as follows:-
(i) 33/5, East Punjabi Bagh, New Delhi;
(ii) Shop No.48, Khurshid Market, Sadar Bazar, Delhi;
(iii) Shop No.17, Khurshid Market, Sadar Bazar, Delhi;
35. Significantly, the witness prayed that a decree be passed for
partitioning the aforesaid properties in three equal shares thereby
dividing them in the ratio of 1:3 each, whereby the plaintiffs should
become owners of their one-third share, the defendant Nos.1 to 5
owners of their one-third share and defendant Nos.6(a) to (d) owners
of their one-third share. Significantly also, in paragraph 10 of his
affidavit, the witness made the following assertion:-
"10. I state that a perusal of the
Reconveyance Deed dated 16.6.1984 will
demonstrate that property no.33/5, Punjabi
Bagh, New Delhi was never partitioned or
divided, amongst the sons of Late Laxmi Narain
Seth. The Reconveyance Deed clearly states
that the same is executed in favour of Sh. Kedar
Nath Seth in his capacity as having become
KARTA of the HUF. The same is marked as
Exhibit DW6/4."
36. In the course of his cross-examination by the learned counsel
for the plaintiffs, the witness candidly admitted that no execution
petition had been filed after the award of the arbitrator nor any
objections were filed by any of the parties. He affirmed his father‟s
signatures on Ex.PW1/D4, being the affidavit given by his father
relinquishing his share in property No.123, Khursheed Market. In
further cross-examination, he admitted that his family including his
mother and two sisters had given up their share in property No.123
and 123A, Khursheed Market, Sadar Bazar, but stated that he did not
think any consideration was received for giving up their share in the
said properties by his family.
37. The aforesaid evidence, in my opinion, clearly establishes that
there was no partition of the properties during the lifetime of late Shri
Lachmi Narain Seth, thirty two years before the filing of the present
suit for partition as alleged or at all. The whole story concocted by
the defendant Nos.1 to 5 that a family settlement was entered into
between the sons of late Shri Lachmi Narain Seth during the latter‟s
lifetime and the said family settlement has been acted upon is not
supported by a single document. The further story that the original
papers/documents relating to the family settlement including site plan
were with Shri Kedar Nath Seth is also not worthy of credence. DW1
Shri Rajeev Seth in the course of his cross-examination has stated that
the family settlement was "oral", thereby falsifying the written
statement filed by the defendant Nos.1 to 5 wherein time and again it
has been stated that the said family settlement was signed by all the
parties and the original documents were in possession of late Shri
Kedar Nath Seth - the predecessor-in-interest of the plaintiffs. Then
again, there is not a word in the written statement filed by the
defendant Nos.1 to 5 or in the evidence adduced by them with regard
to property No.17, Khursheed Market or any other property. The
defendant No.6 in his written statement, however, has staked a claim
to one-third share of shop No.17, Khursheed Market. Though DW2
Sandeep Seth has reiterated the claim, in the course of his evidence
there is nothing to suggest that property No.17, Khursheed Market
was one of the properties left behind by late Shri Lachmi Narain Seth.
Not even a suggestion to this effect has been given by the defendant
Nos.6(a) to (d) either to PW1 Narender Seth or to DW1 Rajeev Seth,
i.e., the witnesses representing the other scions of the family.
38. In view of the above evidence adduced by the parties on record,
I have no hesitation in holding that the defendant Nos.1 to 5 have
failed to prove that there was a family partition and settlement
between the parties about 32 years before the filing of the instant suit.
I have also no difficulty in holding that there is nothing on record to
suggest that the parties had acted upon any family settlement and
were in possession of their respective shares in pursuance thereto. As
a matter of fact, PW1 categorically stated in the witness box that
parties to the suit residing at 33/5, Punjabi Bagh, Delhi were not
possessing independent portions and the arrangement was haphazard.
He stated that no arrangement has been made between the parties to
occupy their separate portions in 33/5, Punjabi Bagh, Delhi. Even
otherwise, to my mind, had any family settlement been entered into
during the lifetime of late Shri Lachmi Narain Seth, there would have
been no occasion for the parties to issue relinquishment deeds with
regard to property No.123, Khursheed Market in favour of Shri Kedar
Nath after the demise of Shri Lachmi Narain. The admitted position
as it emerges from the evidence of the parties is that it was after the
demise of Shri Lachmi Narain Seth, relinquishment deeds were issued
by Smt. Dhanwanti Seth, Smt. Kamla Chopra, Shri Manmohan Seth
and Shri Krishan Lal Seth (Ex.PW1/D1 to Ex.PW1/D4) relinquishing
their respective shares in the Shop No. 123, Khursheed Market in
favour of Shri Kedar Nath Seth. Further, letter dated 13.12.1967,
which though not formally exhibited in evidence, is not in dispute
reads as follows:-
"No.RSCD/GBP/MO(MG)/7041
Government of India
Ministry of Labour, Employment &
Rehabilitation
Office to the Regional Settlement Commissioner
Jamnagar House, New Delhi.
Dated the 13.12.1967
To
Shri/Smt. Kidar Nath
Shop No.123, Khurshid Market,
Delhi.
Subject: Transfer of allotment of
Quarter/shop/shed No.123, Block
No._____ in Khurshid Mkt.,
Delhi/New Delhi.
MEMORANDUM.
With reference to his/her application on
the subject noted above, Shri/Shrimati Kidar
Nath is hereby informed that allotment of the
above mentioned property has been transferred
in his/her name from the name of Shri/Shrimati
Laxmi Narain on the same terms and conditions
guaranteed to the ex-allottee. A copy of the
order can be had after payment of usual fee.
sd/-
(D.D. Purie)
Managing Officer (MG)
Copy to
1. Accounts Section (M) for necessary
amendment in the ledger.
sd/-
Managing Officer (MG)"
39. Further, had the family settlement been acted upon, shop
No.48, Khursheed Market would also have been transferred to the
name of Shri Manmohan Seth by Smt. Dhanwanti Seth and the
remaining legal heirs of late Shri Lachmi Narain Seth by executing
relinquishment deeds in favour of Shri Manmohan Seth and no
objection certificates. Admittedly, this was not done and the shop
No.48, Khursheed Market is not in the name of Shri Manmohan Seth
as on date, though admittedly he is running his business from the said
premises for the last several years. The title deeds of 48, Khursheed
Market were also admittedly in the possession of Shri Kedar Nath
Seth and are now in the possession and control of the plaintiffs.
40. As regards the residential house of the parties, it has emerged
in the evidence of DW2 Sandeep Seth that the Re-Conveyance Deed
relating to the aforesaid property demonstrates that property No. 33/5,
East Punjabi Bagh, New Delhi was never partitioned or divided
amongst the sons of late Shri Lachmi Narain Seth. The said Re-
Conveyance Deed which is dated 16-06-1984 clearly states that the
same is executed in favour of Shri Kedar Nath Seth in his capacity as
Karta of the HUF (Ex.DW6/4). Thus, the whole yarn of the story that
the plaintiffs are seeking re-partition of property which was
partitioned by a family settlement before the demise of late Lachmi
Narain Seth falls to the ground.
41. In the case of Jagdish Rai vs. Tek Chand & Ors., 2002 (61)
DRJ 821, the facts were somewhat identical as in the present case, in
that an issue arose as to whether the property in question already
stood partitioned by means of a family settlement dated 05.09.1986.
Reliance was placed on a document marked „X‟ titled "Compromise
Deed-Family Settlement Deed". The said document, however, did
not refer to any oral partition. A learned Single Judge of this Court
held that the necessary corollary would follow that it cannot be that
there was an oral partition followed by recording of memorandum of
the same. The original of the document was also not forthcoming. It
was pointed out that the original was in possession of the plaintiff and
he was not producing the same. The Court held that before a copy of
the document could be taken into consideration, the loss or failure to
produce the original must be established and even if for the sake of
argument the document marked „X‟ is taken into consideration, this
document could not be read in evidence because it was not a
registered document.
42. In the present suit, the case set up by the defendant Nos.1 to 5
in the written statement was that the original document of family
settlement was in the possession of the plaintiffs. No copy of the
same was produced. Subsequently in the course of cross-
examination, DW1 was compelled to admit that there was no
document in existence and it was an oral partition. This kind of
somersault demonstrates the complete falsity in the earlier stand of
the defendant Nos.1 to 5 that a written family settlement signed by the
parties was in the possession of the plaintiffs.
43. In Hari Ram vs. Lala Om Prakash, 2003 IV AD (DELHI)
124, the following pertinent observations were made in a case where
the parties were living together in demarcated portions of the same
property:-
"14. Admittedly partition of the property
particularly amongst the brothers has to be
rational, practical and enforceable. By way of
oral agreement, the parties may decide to live
in such portions which are not worthy of
partition by metes and bounds but such oral
arrangement for that purpose, the agreement
between the parties is nothing more than an
arrangement of convenience and not an
agreement of partition of property. The
partition of the property particularly where
there is a plea of oral family agreement should
be workable and each portion should be
identifiable in such a manner that may entitle
either of the parties to sell or dispose of the
same in case any of the parties either out of any
need or financial crunch decides to sell.
15. In the instant case the plaintiff is in
occupation of certain portion on the ground
floor and some portion on the first floor and
same is the situation of the premises with the
defendant. More so, the portion which was in
occupation of the mother have also fallen for
being divided between the parties. Over and
above, the implication of an agreement by
living in their respective portion for more than
30 years does not mean that the oral agreement
has been implemented particularly when the
property continues to be in joint name and has
not been mutated till date in their respective
names. Inaction on the part of the parties for
getting the portion in their occupation mutated
in their own names for the purpose of paying
house tax shows that it is nothing but an
arrangement between the two brothers that they
should continue living in the portion which they
have occupied when their father was alive. This
nature of arrangement of living in convenient
portions of the suit property at relevant time is
borne out from the fact that they had one
common kitchen for a long period.
18. ........................................The parties
are in possession of portions on ground floor,
first floor, second floor and terrace and suit
property cannot be partitioned as these are not
vertically or otherwise single unit. All these
facts when taken in totality make out a case of
two brothers living peacefully in their
respective portions but not a case of oral family
agreement of partition of the property. Had
there been any intention on the part of father of
the parties to give equal shares in the property,
there was no difficulty in executing the Will.
Merely because parties have been living for
more than 30-40 years in different portions of
the house separately does not mean that such
an agreement tantamounts to agreement for
partition of property."
44. In Lala Om Prakash vs. Hari Ram, AIR 2005 DELHI 190, a
Division Bench of this Court affirmed the findings of the learned
Single Judge in the aforesaid case and held:-
"Therefore, the finding of the learned single
Judge that it was only in the nature of
arrangement of living in respective portion of
the suit property and living without disputes
earlier cannot be construed too mean and
reach the conclusion that there was an oral
agreement. Once they live in their respective
portions and the property being so owned and
the same has been constructed, renovated or
altered in respect of their respective portions,
will not lead to a conclusion that there had
been an oral agreement or any independent
right emerged in relation to the said property.
In the absence of any actual partition having
taken place and for the aforesaid reasons, we
do not see any infirmity with the impugned
order by which a preliminary decree for
partition was passed and a local commissioner
was appointed for suggesting ways of partition
of the property by metes and bounds."
45. In the aforesaid legal and factual scenario, the contention of the
defendant Nos.1 to 5 that there was a family settlement which had
been acted upon by the parties which was evidenced from the fact that
they were living in their demarcated portions of the property is devoid
of merit. Merely because the parties have lived together in their
individual portions of the property for the last several decades does
not mean that a partition of the property has been effected and has no
significance so far as the suit for partition is concerned. More so,
when the so-called division is wholly inequitable as two branches of
the family are living on the ground floor and the entire first floor and
the portion above it is in the sole occupation of the third branch of the
family, who is also in occupation of the shop owned by the family,
being shop No.48, Khursheed Market.
46. Issue Nos.1 and 4 are accordingly decided against the
defendant Nos.1 to 5 and Issue No.3 is decided in favour of the
plaintiffs by holding that the plaintiffs are entitled to partition of the
properties mentioned in the suit.
47. ISSUE NO.2
"2. Whether late Sh. Lakshmi Narain Seth left
behind other properties than those mentioned in
the plaint, if so, whether they are liable to be
partitioned or not? OPD (1 TO 6)."
48. The onus of proving this issue was upon the defendant Nos.1 to
6, who have miserably failed to discharge the same. The case of the
defendant Nos.1 to 5 was that apart from property No.33/5, Punjabi
Bagh and shop No.48, Khursheed Market, shop No.123 was also
liable to be partitioned. The entire case of the defendant Nos.1 to 5,
however, falls to the ground on account of the admission made by
DW1 Mr. Rajeev Seth that his father had relinquished his rights in
property No.123, Khursheed Market, Sadar Bazar, Delhi. This is
reflected in the following question and answer, which is being
reproduced verbatim:-
"Q. Is it correct that your father relinquished
his rights in the property no.123, Khursheed
Market, Sadar Bazar, Delhi?
A. It is correct."
49. Likewise, DW2 Shri Sandeep Seth in the course of his cross-
examination admitted that his family including his mother and two
sisters had given up their share in 123 and 123A, Khursheed Market,
Sadar Bazar. The relinquishment deeds, as stated above, have been
proved on record which were executed by Smt. Dhanwanti Seth, Smt.
Kamla Chopra, Shri Manmohan Seth and Shri Krishan Lal Seth
(Ex.PW1/D1 to Ex.PW1/D4).
50. Adverting now to the claim of the defendant No.6 that shop
No.17, Khursheed Market, Sadar Bazar, Delhi is also liable to be
partitioned, there is not an iota of evidence in this regard.
51. In view of the aforesaid, I have no hesitation in holding that
Issue No.2 must be decided in favour of the plaintiffs and against the
defendant Nos.1 to 6. As a necessary corollary, it is held that the only
two properties which are liable to be partitioned between the parties
are House No. 33/5, East Punjabi Bagh, New Delhi and Shop No.48,
Khursheed Market, Sadar Bazar, Delhi.
52. Resultantly, a preliminary decree of partition is passed holding
that one-third share of the aforesaid properties is liable to devolve
upon the plaintiff Nos.1 to 4, one-third share upon the defendant
Nos.1 to 5 and one-third share to the defendant Nos.6(a) to (d).
Mr. Janardan Tripathi, Deputy Registrar of this Court (Mobile
No.9717394839) is appointed as Local Commissioner to explore the
possibility of the partition being effected by metes and bounds or by
any other legally permissible mode. The Local Commissioner shall
be entitled to take assistance of a draftsman for the purpose of taking
the measurement and dimensions of the suit property, if required.
The expenses of the draftsman shall be borne by the plaintiffs. The
Local Commissioner shall be paid a fees of ` 1 Lac in the first
instance, which shall be paid by the plaintiffs.
53. A decree sheet shall be drawn up by the Registry on the stamp
paper to be furnished by the plaintiffs herein.
54. CS(OS) 2658/1999 and IA Nos.12214/1999, 6640/2001 and
2233/2006 stand disposed of accordingly.
REVA KHETRAPAL
(JUDGE)
February 08, 2012
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