Delhi High Court
Pragun Buildtech (P) Ltd. vs Smt. Sarla Aggarwal & Ors on 30 March, 2012
Author: Manmohan Singh
* HIGH COURT OF DELHI: NEW DELHI
% Judgment decided on: 30.03.2012
+ I.A. No.10564/2011 (u/o XII, R.6 CPC) in CS(OS) No.2243/2010
PRAGUN BUILDTECH (P) LTD ..... Plaintiff
Through: Mr. Maninder Singh, Sr. Adv. with
Ms. Vibha Mahajan, Adv.
Versus
SMT. SARLA AGGARWAL & ORS ..... Defendants
Through: Mr. Gaurav Duggal, Adv. for D-1.
Mr. Sidharth Joshi, Adv. for D-2 & 3.
Mr. Mohit Madan, Adv. for D-4.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. The plaintiff has filed the present suit for partition and
possession against nine defendants.
2. The defendants claim that defendant Nos.1 to 4 were the
members/co-parceners of the HUF, Gajanand & Sons with Late
Shri Gajanand being karta while defendant Nos.5 to 9 were the
members/co-parceners of the HUF, Aggarwal & Sons with Arjun
Prakash Aggarwal being the karta.
3. On 30.01.1967, a registered deed was prepared between the
respective Kartas of both the families and a property being No.2, East
Park Road, Karol Bagh, New Delhi-110005 admeasuring 2400 sq.
yards (hereinafter referred to as the suit property) was jointly
purchased through Mrs. Rosy Gloria, the erstwhile owner of the said
property. The said property was held by both the HUF‟s in equal
proportions to the extent of 1200 sq yards each. The two HUF‟s were
entitled to deal with their respective undivided shares.
4. Case of the Plaintiff
a) That on 08.04.1984, Gajanand & Sons got dissolved. The
share of each member on the 1200 sq. yards was divided and defined
amongst the members/co-parceners. A Family Memorandum dated
16.04.1984 was executed. A suit of declaration was filed on
06.08.1984 being Suit No. 151/1984 by Ashwani Kumar Aggarwal, S/o
Gajanand against the others members of the HUF and a decree dated
31.10.1984 was passed whereby Akshay Kumar Aggarwal and Ravi
Kumar Aggarwal were given 300 sq. yards each in the total 1200 sq.
yards and Sh. Gajanand and Smt. Sarla Aggarwal got 150 sq yards
each.
b) That on 16.12.1993, Shri Gajanand executed a Will
whereby his share of 150 sq. yards had been given to his 3 sons in 3
equal shares. Shri Gajanand died on 08.02.1996 and as per his Will,
the shares devolved upon his sons. Thus, Shri Ashwani Kumar
Aggarwal who, in his own rights had got 300 sq. yards, got 50 sq.
yards more from the 1/3rd share and hence, he became entitled to 350
sq yards.
c) That Ashwani Kumar Aggarwal, got separated from other
family members of Gajanand & Sons and moved out of the main block
and developed the property out of his own funds. Ashwani Kumar
Aggarwal, vide Agreement to Sell dated 12.07.2007 sold his undivided
share (350 sq. yards) to the plaintiff company and handed over
possession to the plaintiff. A registered Sale Deed dated 24.12.2007
was executed between the parties, copy of the same has been filed by
the plaintiff.
d) Later on, defendants Nos.1 to 3 also entered into a receipt
cum Agreement to Sell dated 06.12.2008 with the plaintiff in respect to
their respective shares totaling to 850 sq. yards in the suit property for
a consideration of Rs. 9 crores and also received a sum of Rs. 91 lac as
part consideration. But, the said members resiled from the agreement.
The plaintiff company filed a suit, being CS (OS) NO. 902 of 2009, for
specific performance of the agreement and the same is still pending
before this Court. The balance amount of Rs. 8.09 crores was deposited
by the plaintiff in this Court pursuant to order passed on 25.05.2009. A
further amount of Rs.1,44,87,844/- was deposited by plaintiff with
DDA for conversion from leasehold to freehold.
e) The said HUF of Arjun Prakash Aggarwal was dissolved on
28.12.1992, the shares/interests of all the members/co-parceners were
separated by means of a Memorandum of Family Arrangement dated
28.12.1992. After the dissolution of the HUF, the respective shares of
the members (defendant Nos. 5 to 9 herein), were sold to the plaintiff
company vide registered sale deed dated 07.04.2008. Thus, as per the
case of the plaintiff company, it stepped into the shoes of the co-
parceners of HUF Arjun Prakash Aggarwal & Sons.
5. The suit and the interim application were, first time, listed
before Court on 02.11.2010 when the summons and notice were issued
to the defendants. In the interim application, an order was passed
restraining defendants No.1 to 3 from dispossessing the plaintiff from
portion which is shown in „red‟ in the attached site plan. The interim
application was disposed of by order dated 16.05.2011 directing the
parties to maintain the status quo with respect to the title and
possession of the suit property till the disposal of the suit. The
defendants No.5 to 9 did not appear in the matter. They have also not
filed the written statement.
6. Defendant No.4 who is the son of defendant No.1 and
brother of defendant Nos.2 and 3 has filed the separate written
statement and has admitted that possession in respect of 31/48th share
in the suit property. He has sold his share to plaintiff by virtue of
registered sale deed dated 24.12.2007 and has handed over the
possession to the plaintiff. The said defendant also admitted in his
written statement that the HUF of Arjun Prakash Aggarwal & Sons
shifted their base out of India and left the suit property. It has also been
admitted that after dissolution, defendants No.5 to 9 sold their
respective shares/interests to the plaintiff vide registered sale deed
07.04.2008.
7. After filing of written statement by defendant Nos.1 to 3,
the plaintiff moved an application under Order XII Rule 6 CPC being
I.A. No.10564/2011 seeking the following prayer:-
"a) pass a Judgment/preliminary partial decree in favour of
Plaintiff Company and against the Defendants for the partition of
1200 sq. yards in the Suit property, i.e. 2, East Park Road, Karol
Bagh, New Delhi-110 005, admeasuring 2400 sq. yards, more
specifically shown in the site plan annexed, which is the share of
the erstwhile HUF of Arjun Prakash Aggarwal & Sons in the
Suit property, and which was purchased by the Plaintiff
Company from the members of the said HUF vide registered
Sale Deed of 07.04.2008;
b) appoint a receiver/local commissioner with instructions
directing the partition of the said 1200 sq. yards in the Suit
property by metes and bounds or to suggest the mode of
partition in terms of preliminary decree passed by this Hon‟ble
Court;
c) pass a final decree of partition in respect to the said Suit
property in terms of the report of the Local Commissioner
appointed by this Hon‟ble Court or otherwise deem fit and
proper in the facts & circumstances of the case by this Hon‟ble
Court;
d) pass a decree of possession in favour of the Plaintiff and
against the Defendants in respect of the said 1200 sq. yards in
the Suit property as determined by the Local Commissioner
herein above and direct the Defendants No.1 to 3 to deliver the
possession of such share/ portion thereof to the Plaintiff
Company."
8. It is stated in the application that on the basis of the
admissions made by the defendant Nos.1 to 4 in their written statement,
other pleadings and documents, a preliminary decree be passed. The
details thereof are given as under:-
a. Plaintiff states that defendant Nos. 1 to 3 have no where averred
in the written statement that the two HUF‟s comprised of any
joint Undivided Family.
b. Defendant Nos. 1 to 3 have merely stated in their written
statement that defendant No.4 Ashwani Aggarwal being one of
the members of the HUF of Gajanand & Sons was/is not entitled
to sell his share of 350 sq. yards in the suit property, but, the
plea of defendant No.3 cannot be applied with regard to the sale
of the share of the HUF of Arjun Prakash Aggarwal & Sons. The
relevant portion of the written statement referred by the plaintiff
in para 1 to 3, reads as under :
"that in reply to paragraph 4 of the plaint, the
answering defendant states that none of the members
of Arjun Prakash Aggarwal, HUF have raised in the
said premises no. 2, East Road, Karol Bagh, New
Delhi, after the purchase of the said property from
Ms. Rosy Gloria. It is correct that the members of the
said HUF have settled aboard. The said Arjun
Prakash Aggarwal & Sons were never in physical
possession of the said property."
c. It is specifically stated by defendant Nos. 1 to 3 in the written
statement that the members of Arjun Prakash Aggarwal & Sons
never resided in the suit property after the purchase since 1967,
as they were already settled aboard.
d. The plaintiff states that in the absence of a specific
averment/defence on the part of the defendants that both the
HUF‟s comprised of a Joint Undivided Family, it has to be
treated as constructive admission on the part of the defendants
that the two HUF‟s never comprised any such Joint Undivided
Family at the time of respective transactions with the plaintiff.
Thus, Section 44 of the Transfer of Property Act, 1882 as well
as Partition Act will not be applicable to the sale of the 1200 sq
ft. of the suit property. It is stated by the plaintiff that there is
no denial on the part of defendants No.1 to 3 that after
dissolution of HUF, the respective shares of members i.e.
defendant Nos. 5 to 9 were sold to the plaintiff company vide
registered sale deed. Further, in the absence of defence of the
defendants No.5 to 9, the averments made in the plaint against
them are to be taken as correct. Therefore, the plaintiff is
entitled to a preliminary decree and appointment of a local
commissioner to suggest partition in metes and bounds.
9. In reply, defendant No.1 states that the admissions made in
the written statement have to be unequivocal, clear and without any
conditions to come within the ambit of Order XII, Rule 6 CPC. Since
the admissions as alleged by the plaintiff are implied admissions, the
same cannot be treated as part and parcel of the admitted facts.
10. By means of the present suit, the plaintiff company is trying
to create divisions in the family by first alleging to have purchased a
small portion of the property from the defendant No.4 and by another
suit for specific performance, the plaintiff is seeking the prayer for
selling the rest of portions also.
11. The defendant No.1 in the written statement has also alleged
that the plaintiff is guilty of suppression of material fact about the filing
of the suit by the defendant No.1 for declaration, being CS(OS) No.
1548/2007. The plaintiff company was impleaded as a party in the said
suit. However, the said factum has not been disclosed by the plaintiff
in the present suit and therefore, the plaintiff is guilty of suppression of
material fact and non-disclosure of material fact.
12. As regards the suit being CS(OS) No. 902/2009 filed by the
plaintiff for specific performance for enforcement of agreement/written
receipt dated 06.12.2008 it is stated that the same is thus, liable to be
dismissed as the same cannot be construed to be an agreement as there
is no valid agreement, the said receipt is forged and fabricated and
there is also an interpolation in the said documents.
13. Defendant No. 1 has stated that the partition by metes and
bounds of the suit property has not taken place till date. The said
HUFs were/are still in joint possession of the suit property. Therefore,
the prayer made in the application by the plaintiff is misconceived
against the defendants No.1 to 4. As regards other prayer of 1200 sq.
yards of the members of the Arjun Prakash Aggarwal, the defendants
No. 5 to 9 who had settled abroad, the answering defendants retained
the entire joint possession of the property. Therefore, the question of
passing the decree against the defendant Nos. 5 to 9 does not arise
even if the suit is not contested by the said defendants.
14. Defendant No. 1 has denied the Family Arrangement dated
08.12.1992. Defendant has also denied the registered sale deed dated
07.04.2008 between the plaintiff and defendants No. 5 to 9 where the
plaintiff states that the company became the owner of 1200 sq yards It
is also denied that the share of 350 sq. yards of defendant No.4, was
purchased by the plaintiff vide sale deed dated 24.12.2007. Defendant
No. 1 states that, defendant No. 4 and the plaintiff are in collusion.
15. Further, defendant No. 1 states that plaintiff is a complete
stranger to the members/ Co-parceners of the HUF, hence, cannot step
into the shoes of the co-parceners/members of the family and become
entitled to the rights and interests of the suit property. The plaintiff has
merely picked and chosen few of the portions of paragraphs from the
written statement and tried to make out a fragile case under Order XII
Rule 6, therefore, the application is liable to be dismissed.
Reply by Plaintiff
16. The plaintiff in the replication has alleged that even though
not admitting, if the HUF of defendants No.1 to 4 is still undivided,
there is no law which forbids a member of the HUF to sell his
undivided share in the property to a stranger and the remedy available
to the stranger is to enforce its rights in the said suit property by way of
partition. In the Agreement to Sell dated 06.12.2008, the defendant
No.4 had agreed to sell share of the suit property to the plaintiff
company.
17. The plaintiff in the replication has denied the averment
made in the written statement and has specifically denied any
interpolation in the handwritten receipt dated 06.12.2008. It is stated in
the replication that the correction was done after the mutual
agreement/consent between the parties, including defendant No.1. It is
not denied that the original receipt was kept by the plaintiff. It is stated
that the plaintiff has filed the suit being CS(OS) No.902/2009 for
specific performance in respect of the receipt-cum-Agreement to Sell
dated 06.12.2008 against the defendants No.1 to 3 with regard to their
shares totaling of remaining 850 sq. yards which is pending in this
Court wherein the defendants No.1 to 3 have admitted the execution of
the said agreement. The defendant Nos.1 to 3 have received the part
consideration amount of Rs.91 lac from plaintiff. It is admitted by the
plaintiff that the defendant No.1 has filed the suit for declaration, being
CS(OS) No. 1548/2007 however, it is alleged that the said suit is not
maintainable in view of the filing of the subsequent two suits filed by
the plaintiff. It is stated that the said suit has become infructuous, as
after filing her suit for declaration by the defendant No.1, she entered
into an agreement to sell dated 06.12.2008, with the plaintiff whereby
she agreed to sell her share in the suit property to the plaintiff company.
She also received part payment in lieu thereof, which is not denied by
defendant Nos. 1 to 3. The remaining consideration sum of
Rs.8,09,00,000/- has been deposited by the plaintiff with the Registrar
General of this Court as per the order passed in CS(OS) No. 902/2009.
18. It is stated by the plaintiff that on one hand defendant No.1
has filed the suit, being CS(OS) No. 1548/2007, for declaration on the
ground that she had some apprehension about her son (defendant
No.4 Sh. Ashwani Kumar Aggarwal) who was at advance stage of
negotiations for creating third party interests in a part of the suit
property and on the other hand, the defendant No.1 later on herself
entered into an agreement to sell dated 06.12.2008 with the plaintiff
company and even received part consideration in respect thereof.
Therefore, the question of concealment of material fact, as alleged by
the defendants No.1 to 3, does not arise.
19. It is reiterated in the replication that the said suit filed for
specific performance by the plaintiff has no bearing as far as the relief
sought by the plaintiff in the present suit for partition based on the
registered sale deed dated 07.04.2008 executed in favour of the
plaintiff company on behalf of defendants No. 5 to 9, the members of
the erstwhile HUF of Arjun Prakash Aggarwal & Sons as well as by
virtue of sale deed dated 24.12.2007 executed in favour of the plaintiff
company by defendant No.4, one of the members of the erstwhile joint
HUF of Gajanand & Sons. The main contention of the plaintiff is that
since, defendants No.1 to 3 have nowhere denied the said registered
sale deeds.
Arguments of the Defendants
20. Mr. Gaurav Duggal, the learned counsel appearing on behalf
of the defendant No.1, in support of his submissions argued that the
suit of the plaintiff is not maintainable under Section 44 of the Transfer
of Property Act, therefore, the application is liable to be dismissed.
His submission is that the suit property belongs to undivided family.
The defendants No.4 and 5 to 9 could not have sold their shares of
joint family. Such two transactions of the plaintiff with defendant
No.4 and with defendant No.5 to 9 by means of two sale deeds are
contrary to Section 4 of the Partition Act. Mr. Duggal has referred the
case of Supreme Court wherein the similar point has been dealt with
in the case of Dorab Cawasji Warden v. Coomi Sorab Warden and
Others; AIR 1990 SC 867. In para 20, the Apex Court held as under:
"20. The first point that has to be considered, therefore,
is whether one can have a reasonably certain view at this
stage before the actual trial that the suit property is a
'dwell- ing house belonging to an undivided family' within
the meaning of section 44 of the Act. As to what is the
meaning of these words in the section, the leading case is
the one decided by the Full Bench of the Allahabad High
Court in Sultan Begam and Ors. v. Debi Prasad, [1908]
ILR 30 All 324. That was concerned with the meaning of
the phrase "dwelling house belonging to an undivided
family" in section 4 of the Partnership Act, 1893. That
section provides that where a share of a dwelling-house
belonging to an undivided family has been transferred to a
person who is not a member of such family and such
transferee sues for partition, the Court shall, if any
member of the family, being a share- holder shall
undertake to buy the share of such transferee make a
valuation of such share in such manner as it thinks fit and
direct the' sale of such share to such shareholder. The
argument was that the words 'undivided family' as used in
the section mean a joint family and are confined to Hindus
or to Muhammadans, who have adopted the Hindu rule as
to joint family property. The counter argument was that
the expression is of general application and means a
family whether Hindu, Muhammadan, Christian etc.
possessed of a dwelling house which has not been divided
or partitioned among the members of the family. The case
itself related to a Muslim family to whom the house
belonged. The full Bench observed:
"... in it (section 4 of the Partition Act) we find
nothing to indicate that it was intended to apply to
any limited class of the community. The words
'undivided family' as used in this section appear to
be borrowed from section 44 of the Transfer of
Property Act. The last clause of that section
prescribes that where the transferee of a share of a
dwelling house belonging to an undivided family is
not a member of the family, nothing in this section
shall be deemed to entitle him to joint possession or
other common or part enjoyment of the dwelling
house. This provision of the Statute is clearly of
general application, and the effect of it is to compel
the transferee of a dwelling house belonging to an
undivided family, who is a stranger to the family, to
enforce his rights in regard to such share by
partition. There appears to me to be no reason why
the words 'undivided family' as used in section 4 of
the Partition Act, should have a narrator meaning
than they have in section 44 of the Transfer of
Property Act. If the Legislature intended that
section 4 should have limited operation, we should
expect to find some indication of this in the
language of the section. For example, instead of the
words 'undivided family' the expression 'undivided
Hindu family' or 'joint family' might have been
used."
With reference to the object and purpose of such a
provision the Full Bench further observed:
"as was pointed out by Mr. Wells, Judicial
Commissioner, in the case of Kalka Parshad v.
Bankey Lall, [1906] 9 Oudh Cases, 158 is to
prevent a transferee of a member of a family who is
an outsider from forcing his way into a dwell- ing
house in which other members of his transferor's
family have a right to live, and that the words
'undivided family' must be taken to mean 'undivided
qua the dwelling house in question, and to be a
family which owns the house but has not divided
it'."
21. (a) The other two decisions referred by Mr. Duggal in
support of his submissions one is in the case of Raj Khurana v.
Amrawati Madan & Others (supra). Paras 10 to 11 of the judgment
reproduced herein :
"10. No doubt, the defendants have placed the copy of
the sale deed on record. That says that the vendors' rights
are to the extent of three fourths undivided share in the
house property. There is no allusion to the total built area
of the house, and no attempt made to address the issue
about the un-conveyed one fourth rights of the plaintiff to
the property. In this context, Section 44 of TPA, relied on
by the plaintiff, pertinently says that:
"44. Where one of two or more co-owners of
immovable property legally competent in that
behalf transfers his share of such property or any
interest therein, the transferee acquires, as to such
share or interest, and so far as is necessary to give
effect to the transfer, the transferor's right to joint
possession or other common or part enjoyment of
the property, and to enforce a partition of the same,
but subject to the conditions and liability affecting,
at the date of the transfer, the share or interest so
transferred. Where the transferee of a share of a
dwelling house belonging to an undivided family is
not a member of the family, nothing in this section
shall be deemed to entitle him to joint possession or
other common or part enjoyment of the house."
11. The Orissa High Court, speaking of Section 44, said,
in Bhim Singh v. Ratnakar Singh, AIR 1971 Orissa 198 -
where the undivided family consisted of the plaintiff and
the defendants 1 and 2 therein; the first defendant having
alienated his share to third parties- that:
"If in this state of things, a member of the family
transfers his share in the dwelling house to a
stranger paragraph 2 of Section 44 of the Transfer
of Property Act comes into play and the transferee
does not become entitled to joint possession or any
joint enjoyment of the dwelling house although he
would have the right to enforce a partition of his
share. The object of the provision in Section 44 is
to prevent the intrusion of the strangers into the
family residence which is allowed in spite of the
transfer of a share therein in favour of a stranger.
The factual position as has been determined is that
the property is still an undivided dwelling house,
possession and enjoyment whereof are confined to
the members of the family. The stranger-transferees
being debarred by law from exercising right of joint
possession which is one of the main incidences of
co- ownership of the property should be kept out."
b) In the second case of Ghanteshwar Ghosh Vs. Madan
Mohan Ghosh; AIR 1997 SC 471, as referred by Mr. Duggal, the
Supreme Court held that:
"It is obvious that by the time the Act came to be enacted,
the legislature had in view the aforesaid parent provision
engrafted in Section 44 of the T.P. Act to the effect that a
stranger to the family who becomes the transferee of an
undivided share of one of the co-owners in a dwelling
house belonging to undivided family share of one of the
co- owners in a dwelling house belonging to undivided
family could not claim a right of joint possession or
common or part enjoyment of the house with other co-
owners of the dwelling house. Implicit in the provision
was the legislative intent that such stranger should be kept
away from the common dwelling house occupied by other
co-sharers. It was enacted with the avowed object of
ensuring peaceful enjoyment of the common dwelling
house by the remaining co-owners being members of the
same family sharing a common hearth and a home."
22. In view of decisions referred, Mr. Duggal argued that the
plaintiff is a third party/stranger hence, cannot be granted possession of
undivided shares in a joint family property, by virtue of Section 44,
Transfer of Property Act. As in the present case, neither there is
physical partition of the suit property nor the shares of the respective
parties are identified, the same are still undivided shares. In case,
defendant No.4 has sold his shares and given possession, if any, to the
plaintiff company as alleged, is contrary to the provisions of Section
44 of the Act.
23. The last submission of Mr. Duggal in support of his case is
that the application of the plaintiff under Order XII Rule 6 CPC is not
maintainable in the absence of clear and unambiguous admission on
the part of the defendants No.1 to 3 in their written statement as well as
the averments made in the suit, being CS(OS) No. 1548/2007, for
declaration filed by the defendant No.1 against Sh. Ashwani Kumar
Aggarwal who is the defendant No.4 in the present suit, the application
under Order XII Rule 6 CPC is not maintainable. He referred para 12
to 19 of the decision of the Apex Court in the case of Jeeva Diesels
and Electricals Limited v. Jasbir Singh Chandra (HUF) &
Another, (2010) 6 SCC 601, the same read as under:
"12. It may be noted here that in this case parties have
confined their case of admission to their pleading only.
The learned counsel for the respondents- plaintiffs fairly
stated before this Court that he is not invoking the case of
admission `otherwise than on pleading'. That being the
position this Court finds that in the pleadings of the
appellant there is no clear admission of the case of
respondents-plaintiffs.
13. In this connection reference may be made to an old
decision of the Court of Appeal between Gilbert vs. Smith
reported in (1876) 2 Ch D 686 (CA). Dealing with the
principles of Order 40, Rule 11, which was a similar
provision in English Law, James, L.J. held:
"if there was anything clearly admitted upon which
something ought to be done, the plaintiff might come
to the Court at once to have that thing done, without
any further delay or expense." (emphasis supplied)
14. Mellish, L.J. expressing the same opinion in Gilbert
case made the position further clear by saying:
"it must, however, be such an admission of facts as
would show that the plaintiff is clearly entitled to the
order asked for"
The learned Judge made it further clear by holding:
(Gilber case, Ch D p. 689)
"...The rule was not meant to apply when there is any
serious question of law to be argued. But if there is an
admission on the pleading which clearly entitles the
plaintiff to an order, then the intention was that he should
not have to wait but might at once obtain any order...."
15. In another old decision of the Court of Appeal in the
case of Hughes vs. London, Edinburgh, and Glasgow
Assurance Company, (1891) 8 TLR 81 (CA), similar
principles were laid down by Lopes, L.J. wherein His
Lordship held:
"judgment ought not to be signed upon admissions in a
pleading or an affidavit, unless the admissions were
clear and unequivocal".
Both Esher and Fry, L.JJ. concurred with the opinion of
Lopes, L.J.
16. In yet another decision of the Court of Appeal in
Landergan vs. Feast, (1886) 55 LT 42 (CA), in an appeal
from Chancery Division, Lindley and Lopes, L.JJ. held
that party is not entitled to apply under the aforesaid rule
unless there is a clear admission that the money is due and
recoverable in the action in which the admission is made.
17. The decision in Landergan was followed by the
Division Bench of Calcutta High Court in Koramall
Ramballav vs. Mongilal Dalimchand, (1918-190 23 CWN
1017. C.J. speaking for the Bench, accepted the
formulation of Lopes, L.J. and held that admission in
Order 12 Rule 6 must be a "clear admission".
18. In the case of J.C. Galstaun vs. E.D. Sassoon &
Co., Ltd., reported in 27 Calcutta Weekly Notes (1922-
23) 783, a Bench of Calcutta High Court presided over by
Hon'ble Sir Asutosh Mookerjee, J. sitting with Rankin, J.
while construing the provisions of Order 12, Rule 6 of the
Code followed the aforesaid decision in Hughes (supra)
and also the view of Lopes, L.J. in Landergan (supra) and
held that these provisions are attracted
"where the other party has made a plain admission
entitling the former to succeed. This rule applies where
there is a clear admission of the facts on the face of
which it is impossible for the party making it to succeed."
In saying so His Lordship quoted the observation of
Sargent, J. in Ellis vs. Allen, (1914) 1 Ch. D. 904.
19. Similar view has been expressed by Chief Justice
Broadway in the case of Abdul Rahman and Brothers vs.
Parbati Devi, AIR 1933 Lahore 403. The learned Chief
Justice held that before a Court can act under order 12,
Rule 6, the admission must be clear and unambiguous.
20. For the reasons discussed above and in view of the
facts of this case this Court cannot uphold the judgment of
the High Court as well as of the Additional District Judge.
Both the judgments of the High Court and of the
Additional District Judge are set aside. The matter is
remanded to the trial court for expeditious disposal of the
suit as early as possible, preferably within a period of six
months from the date of service of this order on the
learned trial court. It is made clear that this Court has not
made any observation on the merits of the case."
Arguments of the Plaintiff
24. As far as decisions as referred by Mr. Duggal are
concerned, Mr. Maninder Singh learned Senior counsel appearing on
behalf of plaintiff has not disputed the proposition of law laid down in
the decisions. His simple submission is that the facts and
circumstances in the present case are materially different, therefore,
none of the decisions will help the case of the present defendants.
25. He submits that the defendants Nos. 5 to 9 never resided in
the property. They are settled abroad. No written statement has been
filed by them, even no one appeared on their behalf to argue the
matter. Further, at the time of three respective transactions for the
entire suit property both HUF i.e. Gajanand and sons and HUF Anand
Aggrawal and sons dissolved in the year 1984 and 1992 itself, the
cogent and clear evidence is available on record. He further argues that
after division of their respective shares which are ascertainable in view
of their conduct subsequent to dissolution of HUF. They were only
interested to sell their shares, their interest in any manner to retain the
dwelling portion/small build portion of the suit property. So, as per
their own conduct, no case of Section 44 of the Transfer of Property
Act and under Section 4 of the Partition Act is made out.
26. It is argued by him that after executing the valid documents
in favour of the plaintiff are now trying to take the legal shelter by
taking false pleas and relying upon the decisions which are entirely on
different facts thus, the legal shelter is not available to them and thus,
known to them.
27. The following decisions have been cited by Mr. Maninder
Singh, learned Senior counsel appearing on behalf of plaintiff in
support of his submissions :
(a) Hardeo Rai Vs. Shakuntala Devi & Ors., reported in
(2008) 7 SCC 46, wherein it has been held that :
"For the purpose of assigning one‟s interest in the
property, it was not necessary that partition by metes
and bounds amongst the coparceners must take
place. When an intention is expressed to partition
the coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. When
a coparcener takes a definite share in the property, he
is the owner of that share and as such he can alienate
the same by sale or mortgage in the same manner as
he can dispose of his separate property.
The relevant paras read as under:-
21. For the purpose of assigning one's interest
in the property, it was not necessary that partition by
metes and bounds amongst the coparceners must take
place. When an intention is expressed to partition the
coparcenary property, the share of each of the
coparceners becomes clear and ascertainable. Once
the share of a co-parcener is determined, it ceases to
be a coparcenary property. The parties in such an
event would not possess the property as "joint
tenants" but as "tenants in common". The decision of
this Court in State Bank of India (supra), therefore is
not applicable to the present case.
22. Where a coparcener takes definite share
in the property, he is owner of that share and as such
he can alienate the same by sale or mortgage in the
same manner as he can dispose of his separate
property.
26. However, in view of the admission made
by the appellant himself that the parties had been in
separate possession, for the purpose of grant of a
decree of specific performance of an agreement, a
presumption of partition can be drawn."
(B) Sushil Kumar Gupta Vs. Anil Kumar Gupta & Ors.,
reported in 143 (2007) DLT 587,
Held: Object of Section 44 of Transfer of Property
Act read with Section 4 of the Partition Act is to
preserve the dwelling house. Since the intention of
the parties was to sell the property in public auction,
the object was not to preserve the dwelling house and
therefore, the respective provisions of Transfer of
Property Act and the Partition Act not applicable.
The relevant paras read as under:-
18. On consideration of the aforesaid legal
provisions and judgments and hearing the learned
Counsels for the parties, I am of the considered view
that the joint character of a dwelling house no more
remained intact so as to invite the provisions of
Section 44 of the T.P. Act read with Section 4 of the
Partition Act. It cannot be lost sight of that the object
of these provisions is to protect a house from being
invaded by outsiders. In the present case, though
there was no division by metes and bounds, the
parties were in possession of respective portions of
the house and were enjoying the same. In view of the
above, the factual aspect is similar to the judgment
in Harinder Pal Singh Chawla v. Nirmal Daniere and
Ors. (supra).
19. An important aspect which arises in the
present case is that the intent of the parties was also
to sell the property in a public auction. The object
was not to preserve the dwelling house. The learned
Arbitrator found that it was not possible to divide the
house by metes and bounds. A direction was, thus,
made for sale of the property by auction. This award
was made rule of the Court and sustained by the
Division Bench insofar as this direction is concerned.
Since the parties have not been able to put the
property to sell by public auction, that aspect will
have to be considered in the execution proceedings.
In such case, in my considered view, the provisions
of Section 44 of the T.P. Act and Section 4 of the
Partition Act would have no application.
(c) Harinder Pal Singh Chawla Vs. Nirmal Daniers & Ors.,
reported in 51 (1993) DLT 191
Held : The nature of construction of the building as
one unit and the land underneath remaining undivided
cannot lead to the conclusion that it is an undivided
family dwelling house. The much needed jointness,
commonness or family never came about between
the parties.
The relevant paras read as under:-
21. Land is common. House is built in a
manner that it is one bungalow. The ground floor
foundation and walls support the first floor and
likewise the First floor supports the second floor.
Thus from the construction point of view the building
may be one unit. But the bequests in favor of
defendant No.1 of the ground floor confers exclusive
and independent right on the legatee. Similarly, the
upper portion goes exclusively and independently to
the other legatee. The nature of construction of the
building as one unit and the land underneath
remaining undivided, cannot lead to the conclusion
that it is an undivided family dwelling house. If this is
accepted for purpose of attracting Section 4 of the
Partition Act, there will be hardly any case where this
provision will not apply. What is to be seen is that
the house never became an undivided family house.
From day one, it was a divided house. Therefore,
these things cannot confer the status of a family
dwelling house on the property. So far as the land is
concerned, the Will does not speak anything about it.
Whatever may be the interpretation of the Will in this
behalf is yet to be seen.
23. We have to see the object of the
provision. The object of the provision is laudable.
The idea is to advance the social desire of
maintaining family unity. In a house in which
members of a family are residing, one co-sharer may
not introduce a stranger who may make the life of
other members of the family who may be continuing
to reside in the house, miserable so as to drive them
out of the house. The concept of purdah was very
much in vogue at the time these statutory provisions
were enacted. Now after a hundred years have
passed since the Partition Act, 1893, the concept of
purdah has become almost extinct. People have
started living in flats in multi-storeyed buildings
having common walls, ceilings and sharing various
common facilities. Such restrictions cannot be
applied on transfer of such flats. The whole concept
has undergone a sea-change. In the present day social
set up this concept ought to be confined to cases
where there has been no partition of the family
dwelling house. From a strictly legal point of view till
there is partition of a property each co-sharer has
interest in the entire property which ought to be
protected. So where parties have specific shares in a
I family dwelling house which is yet to be
partitioned, these provisions can be pressed into
service.
(d) Janakiammal & Ors. vs. P.A.K. Natarajan &
Ors., reported in AIR 1989 Madras 88
Held : The test is whether the members of the family
have all abandoned the idea of occupying the house.
Since the members had entered had engaged the
services of the brokers for selling their shares
separately, the court came to the conclusion that the
members of the family had abandoned the idea of
living in the house and it had ceased to be a dwelling
house within the meaning of Section 4 of the
Partition Act.
The relevant paras read as under:-
6. Before considering the authorities cited by
learned counsel on both sides, it is necessary to refer
to the reasoning of the Courts below for holding that
the suit first item is not a dwelling house within the
meaning of Section 4 of the Partition Act and that the
second item is not part and parcel of the first item. It
is admitted that all the members of the family, viz.,
defendants 1 to 18 have been permanently residing in
places outside Arupukottai, where the suit properties
are situated. It is admitted that they are living
separately in different places and carrying on
different occupations. The wife of Peria Karuppa
Nadar was the only person living in the suit first item
till her death in 1981. Soon after her death, the
members of the family did not only attempt to effect
a division of all the properties by metes and bounds
but also tried to sell their shares. The Courts below
had referred to a letter written by the first defendant
and marked as Ex.P. 11 offering purchase the entire
house for herself. The plaintiff has given evidence as
P.W. 1 that the members of the family had engaged
the services of brokers for selling their shares
separately. The comment made by the learned
counsel for the appellants is that the evidence of
P.W. 1 is only hearsay as he got know ledge only
from the brokers. P.W. 1 undoubtedly entitled to
speak about the fact that brokers made an attempt to
procure purchasers for the house and that would not
be hearsay in any sense of the term. In fact, he had
himself purchased the shares of the three sons of
Peria Karuppa Nadar. D.W. 1 is the 14th defendant
and he has given evidence in support of the plaintiff.
He has spoken about Ex. B.11, the letter written by
the first defendant. He has also deposed that the first
defendant was trying to sell the share of her husband
through a broker named Rathnam. The only witness
examined in support of the appellants is the second
defendant. There is no explanation as to why the first
defendant did not go into the box. The circumstances
under which Ex. B.11 was written have not been
explained. The second defendant admits that he has
settled in Madras from 1969 though as claimed to
have been in Aruppukottai in 1974. He admits that
there is no record whatever to show that he was
living in the suit first item after 1963. From the
aforesaid circumstances the Courts below drew an
inference that the members of the family had
abandoned the idea of living in the house and it had
ceased to be a dwelling house. It cannot be said that
the reasoning of the Courts below is perverse or that
no reasonable person could have come to such a
conclusion. Where two inferences are possible and
one such inference has been drawn by the Courts of
fact, that cannot be interfered with by this Court
sitting in second appeal. I am unable to persuade
myself to hold that the Courts below have made
entirely a wrong approach to the issue on hand and
that the conclusion arrived at by them is wholly
unsustainable or that there is absolutely no evidence
in support of that conclusion. When there is
acceptable evidence on record to sustain the finding
of fact arrived at by the Courts below, it is not
possible for this Court to disturb the said finding.
Hence, the finding that item No. 1 of the suit
properties is not a dwelling house within the meaning
of Section 4 of the Partition Act has to be confirmed.
19. Learned counsel for the appellants invited my
attention to the decision of a single Judge of Patna
High Court in Kaliapada v. Tagar Bala, AIR 1969
Patna 270 in which it was held that the inference of
abandonment of intention to use the disputed house
as a dwelling house is not a pure question of fact and
it can be interfered with in second appeal if found
unsupported by any evidence. It was also held that a
mere non-occupation of the house for some time by
the members of the family will not be sufficient
indication of their abandoning the intention of
keeping the house as a dwelling house, more
particularly where such house is admittedly an
ancestral dwelling house. I have already referred to
the facts of this case where from it can be seen that
the inference of abandonment is not drawn from mere
non-occupation of the house by the members of the
family. There are other circumstances in this case
which have been relied upon by the Courts below and
it cannot be said that such inference is unsupported
by any evidence.
25. Thus, the test is whether the members of the
family have abandoned all idea of occupying the
house. On the facts of this case, it has been found on
evidence concurrently by both the courts below that
the members of the family had abandoned the idea of
residing in the suit property and it ceased to be a
dwelling house within the meaning of Section 4 of the
Partition Act. As stated earlier, I do not find any
reason to interfere with the said findings of fact.
28. As far as proposition of law of the provision of Order XII
Rule 6 CPC is concerned, there is no dispute between the parties.
Similar aspect has also been discussed and decided by the Apex Court
in the case of Uttam Singh Duggal & Co. Ltd. v. United Bank of
India: (2000) 7 SCC 120, wherein it has been held that wherever there
is a clear admission of the facts in the face of which, it is impossible for
the party making such admission to succeed, the principle will apply.
29. From the pleadings of the parties, the following facts are
the admitted facts which cannot be denied by defendants No.1 to 3 :
a) By virtue of sale deed dated 24.12.2007 of 350 sq.
yards executed in favour of plaintiff company by the
defendant No.4 (One of the members of the
erstwhile joint HUF of Gajanand and Sons).
b) By virtue of sale deed dated 07.04.2008 of 1200 sq.
yards in favour of plaintiff on behalf of defendants
No. 5 to 9 (The members of erstwhile HUF of Arjun
Prakash Aggarwal and Sons.
c) Admittedly, no one has represented the defendants
No.5 to 9, i.e., the group of erstwhile HUF of Arjun
Prakash Aggarwal and Sons. No written statement
has been filed by them.
d) Defendant No.4, Sh. Ashwani Kuamr Aggarwal,
has admitted the present suit for partition and
possession of 31/48th share in the property;
e) Defendants No.2 and 3 have nowhere pleaded in
the written statements that 2 HUFs i.e. Gajanand
and sons HUF and Arjun Prakash Aggarwal and
sons HUF had comprised a joint family.
f) The members of the HUF Prakash Aggarwal and
Sons have settled abroad. It stood dissolved in the
year 1992. The suit property had two distinct
owners i.e. Arjun Prakash Aggarwal and Sons HUF
and Gajanand and Sons HUF. As far as Arjun
Prakash Aggarwal and Sons is concerned, they
admittedly sold their part of 1200 sq. yards with
the constructed portion of 139.35 sq. mtrs. to the
plaintiff.
g) Similarly, Gajanand and Sons, HUF stood
disrupted/dissolved way back on 08.04.1984.
Family settlement had taken place on 16.04.1984
and a decree was passed on 31.10.1984 and the
shares of each of the member in the suit property
had become definite and ascertainable. Further,
even Sh. Ashwani Kumar Aggawal, defendant No.4
separated his living from the other members of the
family of Gajanand and Sons.
30. The plaintiff has filed various documents, the extract of
certain documents do help the case of the plaintiff and against the
submissions of the defendant Nos. 1 to 3, the details of such documents
are given as under :
a) Copy of the Sale Deed dated 30.01.1967 in favour of Gaja
Nand, Advocate, son of Chaudhri Ranjit Singh, resident of 2-
East Park Road, New Delhi, in the capacity of Karta of Joint
Hindu Family, Gaja Nand & Sons, constituted of himself, his
sons and his wife and (2) Shri Arjun Prakash Aggarwal, son
of Choudhri Ranjit Singh, resident of 8/11 Roop Nagar, Subzi
Mandi, Delhi-6 in the capacity of Joint Hindu Family,
constituted of himself, his sons and his wife.
b) Copy of the Sale Deed dated 07.04.2008 in favour of plaintiff
by defendants No. 5 to 9. Relevant clauses reads as under:
"And whereas there had been some disputes and
differences between the members of Arjun Prakash
Aggarwal & Sons (HUF), and therefore, all the
members/co-parceners of the said HUF dissolved the
HUF and separated their respective shares/interests by
means of a Memorandum of Family Arrangement dated
28.12.1992, whereby the said Shri Arjun Prakash
Aggarwal and the remaining members namely, Mrs.
Mithilesh Kumari Aggarwal, Shri Vipin Behari
Aggarwal, Shri Vivek Anand Aggarwal and Mrs. Madhu
Mitta Gupta became entitled to 1/5th share/interest each
out of the 1/2 share/interest of Arjun Prakash Aggarwal
& Sons (HUF) in the said property.
Thus Arjun Prakash Aggarwal & Sons (HUF) stood
disrupted.
And whereas 1/2 undivided share/interest of the said
property also stands mutated in the name of Shri Arjun
Prakash Aggarwal, Mrs. Mithilesh Kumari Aggarwal,
Shri Vipin Behari Aggarwal, Shri Vivek Anand
Aggarwal and Mrs. Madhu Mitta Gupta, in the records
of D.D.A.
And whereas in the manner aforesaid the Vendors herein
became the joint and absolute owners/lessees of 1/2
undivided share of the said property.
And whereas the Vendors have represented that the
Vendors have full and absolute right and authority to sell
and transfer the 1/2 undivided share/interest of the said
property in any manner the Vendors like, as absolute
owners/lessees thereof.
c) Copy of the Sale Deed dated 24.12.2007 by defendant No.4
Sh Ashwani Kumar in favour of plaintiff. The relevant
clauses read as under:
"And whereas Shri Ashwani Kumar Aggarwal S/o Shri
Gaja Nand (Advocate), one of the co-parcener of M/s.
Gaja Nand & Sons (HUF) filed a suit No.151 of 1984
for Declaration in the Hon‟ble Court of Shri R.K. Sain,
Additional District Judge, Delhi, against the other co-
parceners and members of M/s. Gaja Nand & Sons
(HUF).
AND WHEREAS the said Gaja Nand & Sons (HUF)
was dissolved on 08.04.1984 and a Memorandum of
Family Arrangement was recorded in writing on
16.04.1984 amongst all its co-parceners and members
whereby all the disputes were finally/settled. The
Hon‟ble Court of Additional District Judge, Delhi, also
passed a Decree in terms of the said Memorandum of
Family Arrangement on 31.10.1984 and by virtue
thereof, the ½ undivided share of the said HUF was
divided/distributed amongst its co-parceners/members
as under :
Name Share Out of ½ Equivalent
(In Sq. Yards)
Sh. Gaja Nand 1/8th 150
Smt. Sarla Aggarwal 1/8th 150
Sh. Ashwani Kumar Aggarwal 1/4th 300
Sh. Akshay Kumar Aggarwal 1/4th 300
Sh. Ravi Kumar Aggarwal 1/4th 300
AND WHEREAS the said Shri Gaja Nand died on
08.02.1996, leaving behind his last and final Will dated
16.12.1995, whereby and whereunder he devised and
bequeathed his entire share in the said property in
favour of his three sons namely S/Shri Ashwani Kumar,
Akshay Kumar, Ravi Kumar, absolutely and forever.
Thus, Gaja Nand and Sons (HUF) stood disrupted.
AND WHEREAS in the manner aforesaid the Vendor
herein became the sole and absolute owner of 7/48
share of the said property admeasuring 2400 sq. yards
(7/48 Share being equivalent to 350 sq. yards), which
was mutually settled between the co-parceners of the
said M/s. Gaja Nand and Sons (HUF) after the Decree
passed by the court in Suit No.151 of 1994 whereby the
Vendor leaving the main building had shifted to the out
house situated on the back side of the property which
outhouse was rebuilt and modified by the Vendor at his
own cost together with the property share of land
admeasuring 350 sq. yards
AND WHEREAS the Vendor has represented that the
Vendor has full right and absolute authority to sell and
transfer the 7/48th share of the said property in any
manner the Vendor likes, as absolute owner/lessee
thereof.
d) Copy of the order/decree dated 31.10.1984. The relevant
extract of the same is given as under:
In the light of statement of Ashwani-plaintiff, Ravi
Kumar and Sh. Gaja Nand, Smt. Sarla Aggarwal and
Miss Manjuli defendants No.2 to 5 and Ex. P-1, the
memorandum of family arrangement, defendant No.1 and
2 got 300 sq. yards each while defendant No.3 and 4 get
150 sq. yards each. Plaintiff also gets 300 sq. yards
They all being jointly in possession, decree sheet in
terms of statement of parties and memorandum Ex. P1, is
passed. Decree sheet be drawn.
e) Copy of the memorandum of family arrangement filed in
CS(OS) No. 151/1984. The relevant extract of the family
settlement is given as under:
"The Hindu undivided family under the name and style
of M/s. Gaja nand & Sons H.U.F. was disrupted by
mutual arrangement when the above-mentioned members
sat together and resolved their disputes on the 8th day of
April 1984. The family arrangement was brought about
to settle the existing disputes and to put an end to any
further controversy and for peace and harmony in the
family. The H.U.F. owned leasehold rights in the only
immovable property, namely half share in property 2,
East Park Road constructed on Block No.C, Khasra
No.84/31, Shidipura, Karol Bagh, New Delhi. The other
half of the leasehold rights in this property are owned by
Arjun Parkash & Sons, H.U.F. The H.U.F. named and
styled as M/s Gaja Nand & sons owned no other assets
except half share in immovable property, 2 East Park
Road, New Delhi which was divided as under.
Out of the half share in the said property, Shri Gaja
Nand and Shrimati Sarla Aggarwal were allotted one-
eighth share each. Shri Ashwani kumar Aggarwal, Shri
Akashy Kumar Aggarwal and Shri Ravi Kumar
Aggarwal allotted one-fourth share each.
f) Copy of Will of Sh. Gajanand dated 16.12.1993. Relevant
extract of the same is under:
"4. We had purchased property known as 2 East park
Road, New Delhi admeasuring about 2400 sq. yards In
all the share of my HUF was 1200 sq. yards in the name
of Gaja nand (HUF) & Shir Arjun Prakash Aggarwal
vide Sale Deed dated 30th January, 1967 the aforesaid
lease hold property known as 2 East Park Road, New
Delhi situated in Shidipura, Block „C‟, Khasra No.84/31,
(Plot No.2) with buildings and boundary walls and other
fixtures for a consideration of Rs.1,40,000/- duly
registered with the Sub-Registrar, Sub-Division No.1,
Kashmere Gate, Delhi as document No.1065 in
Additional Book No.1, volume No.1778 on pages 169 to
180 on 31st January, 1967 and the property was only
mutated in favour of Shri Gaja Nand & Sons (HUF) &
Shri Arjun Prakash Aggarwal in the revenue records.
5. That a suit bearing No.151 of 1984 of the Court of
Shri R.K. Sain, then Additional District Judge, Delhi
with regard to 1200 sq. yds of the above entire property
owned by Shri Gaja Nand & Sons (HUF), a decree was
passed on 30th October, 1984 whereby the aforesaid
property known as 2 East Park Road, New Delhi was
allowed to be partitioned in accordance with the
memorandum of Family Arrangement by virtue of which
all the persons entitled to share the same as detailed
hereunder:
S. No. Name of the person Area in sq. yards
3. Ashwani Kumar Aggarwal 300
4. Akshay Kumar Aggarwal 300
6. Then Miss Manuli and now
Mrs. Manjuli Aggarwal Rs.50,000
in cash for her
marriage
7. Before my death I want to provide for my estate so
that there is no ambiguity in respect thereto as under:
(a) That I bequeath my share in 2 East Park Road, New
Delhi and lands at narwana to my three sons Shri
Ashwani Kumar Aggarwal, Shri Akshay Kumar
Aggarwal and Shri Ravi Kumar Aggarwal equally.
(b) That I bequeath my shares, debentures, bank
accounts and other assets to my wife Smt. Sarla
Aggarwal. She may dispose off the same and spend the
amount so received for the marriages of the children of
my daughters according to her wish.
(c) That I bequeath my books and other professional
assets, if I do not dispose of the same during my life
time, to my three daughters Smt. Archna Mittal, Smt.
Anjuli Kumar and Smt. Manjuli Aggarwal equally.
(d) The residue of my estate or anything whether
moveable or immovable owned by me at the time of my
death and not provided herein shall stand bequeathed to
my three sons Ashwani Kumar Aggarwal, Akshay
Kumar Aggarwal and Ravi Kumar Aggarwal equally."
g) Copy of Mutation letter dated 18.02.2010 in favour of the
plaintiff and original letter dated 31.07.2007 given by the
defendant No.4 in favour of plaintiff.
h) Smt. Sarla Aggarwal W/o Sh. Gajanand, Sh. Akshay Kumar
Aggarwal and Sh. Ravi Kumar Aggarwal having 150 sq.
yards 350 sq. yards and 350 sq. yards respectively had
entered into an agreement to sell dated 6.12.2008 with Pragun
for sale of the remaining 850 sq. yards of ½ of the share of
erstwhile Gajanand HUF in this property. The sale
consideration agreed between the parties was Rs.9 crores
and out of which, admittedly, 91 lac has been received by
these 3 persons and pursuant to order dated 25.5.2009 of the
Delhi High Court Rs.8.09 crores have been deposited with
the Registry of the High Court. Though the defendants No.1
to 3 have challenged the validity of receipt.
31. After having considered the pleadings and documents filed
by the parties as well as the decisions, it emerges that the object of the
provisions of Section 4 of Partition Act and Section 44 of the Transfer
of Property Act is to protect a house from being invaded by outsiders.
In the present case, though the suit property or shares of each party has
not been partitioned by metes and bounds but from the admitted facts
from the pleadings and documents of the parties, it indicates definitely
the defendants‟ intention expressly to partition the co-parcenery
property and as per material placed on record, it further appears clearly
the shares of each of the coparceners becomes clear, determined and
ascertainable.
32. Under these circumstances, the conduct of all the
defendants give an indication that all members of the family have an
intention to abandon the idea of occupying the suit property including
dwelling unit/house and they are only interested in selling their shares
separately. Thus, it had ceased to be a dwelling house within the
meaning of Section 4 of the Partition Act.
33. In view of the above, it is clear that defendants have also
agreed to sell their share in the suit property and thus, even assuming
that the joint status of this other HUF of Gajanand and Sons as far as
these three defendants i.e. defendants No.1 to 3 are concerned, they
have also abandoned their idea of preserving the said suit property as a
dwelling house as they had given up their idea of living in the house
by entering into Agreement to Sell dated 06.12.2008 and have also
enjoyed the part consideration of 91 lac. The suit property has ceased
to be a dwelling house and thus the provisions of Section 44 of the
Transfer of Property Act or Section 4 of the Partition Act are not
attracted and therefore, there is no force in the submission of Mr
Gaurav Duggal, learned counsel appearing on behalf of the defendant
No.1. The decisions referred are not applicable to the facts of the
present case as the conduct of the defendants show that they were not
interested to preserve the dwelling house and given up their idea of
living there, otherwise, why the defendant Nos.1 to 3 would have
entered into an agreement with the plaintiff for remaining portion, their
defence in the suit, no doubt, has to be considered as per its own merit.
34. It is pertinent to mention here that though Mr. Maninder
Singh, learned Senior counsel appearing on behalf of plaintiff has
argued that the plaintiff is entitled to decree for partition and
possession of 1550 sq. yards on the basis of admission made by
defendant No.4 in the written statement as his share of 350 sq. yards
and non-contest of case on behalf of defendants No.5 to 9 who had
sold their share of 1200 sq. yards but, there is no prayer in the
application as far as share of defendant No.4 is concerned. Hence, the
relief in this regard cannot be granted. The plaintiff may take
appropriate remedy in accordance with law.
35. For the aforesaid reasons, this Court is of the considered
view that the present case definitely falls within the four corner of the
case of Uttam Singh Duggal & Co. Ltd. (supra). Under these
circumstances the plaintiff‟s application under the Provision of Order
XII Rule 6 CPC is liable to be allowed. Consequently, a preliminary
decree is passed in favour of the plaintiff company against defendants
No.5 to 9 for partition of 1200 sq. yards in the suit property i.e, 2, East
Park Road, Karol Bagh, New Delhi - 110 005, admeasuring 2400 sq.
yards, the share of the erstwhile HUF of Arjun Prakash Aggarwal and
Sons in the suit property which was purchased by the plaintiff company
from the members of the said HUF vide registered sale deed dated
07.04.2008.
36. Mr. Sushil Dutt Salwan, Advocate (Mobile
No.9811044412) is appointed as a Local Commissioner to visit the suit
property and to suggest modes of partition in terms of the decree. He
will submit his report by the next date. He is also authorized to take
the assistance of Architect if necessary at the cost of the plaintiff who
will also bear all other expenses for the purpose of compliance of order.
The fee of the Local Commissioner is fixed at Rs.1 lac at the first
instance. Incase his visits are more than two, he will be paid further
fee of Rs.50,000/- per visit. The fee will be paid by the plaintiff.
37. The application is disposed of.
CS(OS) No.2243/2010
List on 10.09.2012 for further proceedings.
MANMOHAN SINGH, J.
MARCH 30, 2012
