Kanwal Arora vs Prem Chand Khaneja
2013 Latest Caselaw 2446 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 23rd May, 2013

+                                 CS(OS) 2788/2011

       KANWAL ARORA                                            ..... Plaintiff
                  Through:               Mr. Suman Kapoor, Advocate.

                                  Versus

       PREM CHAND KHANEJA                         ..... Defendant
                    Through: Mr. M.L. Pahuja, Advocate.
       CORAM :-
       HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

       RAJIV SAHAI ENDLAW, J

1.

On the previous date of 22nd April, 2013, the following order was made in the suit:-

"1. The suit is ripe for framing of issues.

2. Neither counsels have submitted proposed issues.

3. However, the counsel for the plaintiff states that no issue arises. He states that the present suit is for partition of an immovable property admittedly in the name of the plaintiff and the defendant, and the only defense of the defendant is that the entire purchase consideration had flown from the defendant and the plaintiff has not contributed any part of the sale consideration inspite of promise to do so and upon the plaintiff having failed to pay the purchase consideration, had agreed to the defendant alone being the owner of the property.

4. It has been enquired from the counsel for the defendant whether the aforesaid amounts to a defense in law. He has not been able to argue.

5. It has next been enquired from the counsel for the plaintiff as to on what basis it is argued that the plea aforesaid does not raise any defense.

6. Again, nothing has been forthcoming.

7. Upon going through the Transfer of Property Act, 1882, Section 45 is found to be suggestive of proportion of sale consideration paid having relevance.

8. It is deemed expedient to grant an opportunity to the counsels to study on the said aspect and address arguments thereon.

9. List on 23rd May, 2013".

2. The counsel for the defendant, answering the queries raised, contends that neither the plaintiff nor the defendant is the owner of the property and thus the suit for partition is not maintainable. It is contended that there is no proper conveyance of title in favour of the plaintiff and the defendant and the Agreement to Sell, Receipt and Power of Attorney, jointly in favour of the plaintiff and defendant, are defective.

3. It has been enquired from the counsel for the defendant, whether the defendant is willing to vacate the property for possession thereof to be

restored to the rightful owner.

4. The counsel for the defendant states that the defendant has paid the full consideration and therefore cannot be asked to leave.

5. The counsel for the defendant has contended that an issue be framed as to whether the plaintiff and the defendant have acquired any title to the property. Reference is made to Arumugha Chettiar Vs. Rahmanbee AIR

1994 SC 651 but which is found of no application to the matter in controversy.

6. The aforesaid shows the desperate nature of the argument raised. The defendant , to defeat the claim of the plaintiff for partition of the property, has gone to the extent of challenging the joint title in favour of the plaintiff and the defendant, but is not willing to give up the rights claimed in the property. Whatsoever may be the rights under the documents (with respect to the property) in the joint name of the plaintiff and defendant, can always be partitioned and the suit for partition cannot be said to be not maintainable for this reason. Further, the title under the documents in joint name being not in dispute, whatsoever the said title may be, whether as absolute owner or as agreement purchaser in possession, need is not felt to frame issues.

7. Faced therewith, the counsel for the defendant seeks adjournment to further study the matter.

8. This Court having spent time on the suit on 22nd April, 2013 as well as today, adjournment is refused.

9. The plaintiff has instituted this suit for partition pleading:-

(i). that the plaintiff and the defendant being brothers had for a total sale consideration of Rs.18,60,000/- jointly purchased property No.90, Block-B, Pkt. 02, Sector-16, Rohini, Delhi measuring 60 sq. mtrs. vide receipt dated 21st July, 2000, Agreement to Sell dated 5th September, 2000 and registered Will, General Power

of Attorney, final receipt and letter of possession, all dated 22nd November, 2000;

(ii). that the father of the parties owned agricultural land and house in Rohtak (Haryana) and died in the year 1988 leaving behind a Will bequeathing his entire property in favour of the plaintiff and the defendant equally;

10. The defendant has contested the suit by filing a written statement pleading:-

(a). that the plaintiff in the year 1975-76 got a job in Norway, but due to financial constraints was unable to go;

(c). that the plaintiff requested the defendant to sell agricultural land measuring 5 acres in Rohtak (Haryana) jointly owned by the plaintiff and the defendant and in the year 1976 having value of Rs.50,000/-;

(d). that the defendant even though not in need of money, agreed to sell the same jointly with the plaintiff and allowed the entire sale consideration of Rs.50,000/- to remain with the plaintiff on the assurance of the plaintiff that he will from his earnings in Norway purchase 2 ½ acres of land in the name of defendant;

(e). that the plaintiff however did not fulfil his assurance aforesaid;

(f). that during the visit of the plaintiff to India in July, 2000, the defendant informed the plaintiff of his intent to purchase the suit property;

(g). the plaintiff suggested to become 50% owner thereof and to pay 50% of the purchase price of the said property and to which the

defendant agreed;

(h). accordingly Agreement to Sell and other documents aforesaid with respect to the said property were got prepared in the name of both plaintiff and the defendant;

(i). however the plaintiff did not pay 50% of the sale consideration and the entire sale consideration was paid by the defendant;

(j). that the plaintiff inspite of repeated requests of the defendant and the assurance of the plaintiff did not pay the plaintiff's 50% share of the sale consideration;

(k). that the plaintiff in his visit to India in the year 2002 stated that since he had not been able to pay his 50% share of the sale consideration, he will transfer his 50% share in the property in favour of the defendant but did not fulfill the said assurance also;

(l). that the defendant in June, 2005 was in need of Rs.1 lac and the plaintiff asked the defendant to take the same from his father-

in-law as loan and the father-in-law of the plaintiff asked the defendant to deposit the original documents of the suit property

as security and which the defendant did;

(m). that though the defendant has re-paid the loan but the father-in-

law of the plaintiff did not return the original documents stating that the same had been taken away by the plaintiff;

(n). that the plaintiff also did not return the original documents of the suit property on some pretext or the other;

(o). it is not disputed that the father of the parties died in the year 1988 leaving a Will as pleaded by the plaintiff but it is stated that the said Will is only with respect to land measuring 17 kanals and not in respect of any other property;

(p). though it is admitted that the suit property was purchased in the name of both plaintiff and defendant but it is further pleaded that since the plaintiff has not paid his share of consideration, therefore the plaintiff is not the owner;

(q). it is pleaded that the plaintiff was not even in India when the documents with respect to the property were got executed and registered in favour of both the plaintiff and the defendant.

11. The plaintiff has filed a replication to the aforesaid written statement

denying the transaction of loan and further pleading:-

(A). that after the death of the father in the year 1988 the plaintiff had executed and registered a General Power of Attorney dated 14th September, 1989 in favour of the defendant authorizing the defendant to dispose of the properties/assets left by the father;

(B). that the defendant acting on the said attorney disposed of agricultural land on 16th June, 2000 so left by the father for a sum of Rs.22,64,125/- and from the said sale proceeds, the suit property was purchased soon thereafter in July, 2000;

(C). the plaintiff has also falsified the plea of the defendant of the plaintiff being in need of money to go to Norway; it is pleaded that the plaintiff was employed and earning for three years prior to leaving for Norway; the plea of the defendant of sale of land measuring 5 acres at Rohtak (Haryana) is also denied.

12. It is in the aforesaid state of pleadings that it was on 22 nd April, 2013 enquired from the counsel for the defendant whether the pleas in the written statement constituted a defence in law required to be put to trial and attention of the counsels was also drawn to Section 45 of the Transfer of Property Act, 1882 in this regard and both counsels had sought time to

argue.

13. The defendant as aforesaid does not deny the documents of purchase of the property being in the joint name of the parties and the property having been intended to be purchased in the joint name of the parties but pleads that since the entire sale consideration has been paid by the defendant on the

assurance of the plaintiff to reimburse to the defendant his half share of the sale consideration, and which the plaintiff has failed to do, the plaintiff is not the owner of half share in the property to be entitled to partition.

14. To me it appears that in the aforesaid scenario and registered documents of purchase in the joint name of plaintiff and the defendant, the defendant cannot deny the title of the plaintiff to the property and the remedy if any of the defendant for non-fulfilment by the plaintiff of the promise to pay his half share of the sale consideration is to recover the same. The reason for my said opinion is the principle enshrined in Section 55(4) of the Transfer of Property Act that where the ownership of the property has passed to the buyer before the payment of whole of the purchase money, the only right of the seller is to the purchase money remaining unpaid and to a charge on the property to the said extent and not to rescind the sale. In the present case also, the only defence of the defendant to the claim of the plaintiff for partition is non-payment by the plaintiff of his share of the sale consideration which he had agreed to pay at the time when ownership of the property was acquired in the joint name of the plaintiff and the defendant and thereafter. Applying the principle of Section 55(4) supra, the only right of the defendant against the plaintiff can be for recovery of the said price and not to deny the title of the plaintiff to the property under the documents in joint name of the plaintiff and defendant. I cannot fathom any provision or principle of law whereunder a title in a property created under a document, particularly registered document, can be annulled for non-payment of price. Though on the basis of the aforesaid principle in law alone the plaintiff is forthwith entitled to a preliminary decree for partition but I may mention

that even otherwise on facts, the defence of the defendant, of the defendant having paid the entire sale consideration appears fantastic and improbable. Just like the Supreme Court in Liverpool & London S.P. & I Association Ltd. Vs. M.V. Sea Success I (2004) 9 SCC 512 and ITC Limited Vs. Debts Recovery Appellate Tribunal (1998) 2 SCC 70 has held that suits which have no chance of success should not be allowed to consume the time of the Court, similarly defences which from pleadings alone are found to have no chance of succeeding, cannot compel the Court to necessarily put the same to trial, as held in P.P.A. Impex Pvt. Ltd. Vs. Mangal Sain Mittal 166 (2010) DLT 84 (DB).

15. As aforesaid, the defendant does not deny the father of the parties having left immovable properties and Will with respect thereto. However he states that there were other properties also besides those mentioned in the Will. That would however be of no relevance since even in the absence of a Will, the plaintiff and the defendant under the law of inheritance would have equal share therein. The counsel for the defendant during the hearing did not deny execution of a General Power of Attorney by the plaintiff in favour of the defendant and sale of the property by the defendant in pursuance thereto just prior to the purchase of the suit property. He however sought to contend that the Power of Attorney from the plaintiff for execution of the said Sale Deed was taken only for the satisfaction of the buyer as otherwise the said properties belonged only to the defendant. The defendant however has not set up any Will of the father bequeathing the said property to him only. The said plea of the defendant thus has no merit.

16. Though I had during the earlier hearing invited attention of the parties to Section 45 of the Transfer of Property Act which provides that where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced, but in the state of pleadings aforesaid the same is found to be of no application. Need is thus not felt to put down the suit for trial to enable the defendant to lead evidence as to the flow of money. Section 45 is not found to have any application since the defendant admits the document to have been got executed to vest equal share in the plaintiff and the defendant in the property and the only plea of the defendant being of non-reimbursement by the plaintiff of his share of the sale consideration. Section 45 would have application only where the shares of the parties are undefined and the principle therein is to be applied to determine the share in such situation.

17. Another development in law since the Transfer of Property Act, by enactment in the year 1988 of the Benami Transaction Prohibition Act may also be noticed. The said Act bars pleas of transfer of property to one person for consideration provided by other. As far back as in Nanak Vs. Ahmad Ali AIR 1946 Lah 399 (FB) it was held that if two persons purchase

property and their shares are not specified in the Sale Deed, they are presumed to have purchased in equal shares. The purchase documents in the present case are also in the joint names of the plaintiff and the defendant without specifying their shares and as per the said principle the plaintiff and the defendant are presumed to have purchased in equal share and the plea of the defendant of his having contributed the sale consideration of the share of the plaintiff also is a plea in the nature of benami which is untenable in law. At least two High Courts, of Madras and Kerala in A. Thavammal Vs. Kaladevi AIR 1994 NOC 329 (DB) and George C.S. Vs. Mariamma Champakasseril AIR 1995 AIHC 3522 have taken the said view. This Court also in Dinesh Kumari Mishra Vs. Smt. Ranjana Mishra 177 (2011) DLT 577 has held that accepting an argument based on Section 45 of the Transfer of Property Act would undercut the object of Section 3 & 4 of the Benami Act and further held the defence as raised by the defendant in this case to be not tenable and passed a preliminary decree for partition.

18. I am therefore of the opinion that the defence of the defendant in the present suit is not a defence in law required to be put to trial.

19. The counsel for the defendant has referred to Chiranji Lal Vs. Bhagwan Das AIR 1991 Delhi 325 on Section 45 to the effect that admission of parties in Income Tax and Wealth Tax returns with regard to contribution made by each towards consideration of property can be made the basis of determination. The defendant in the present case has not however pleaded that he has in his Income Tax returns shown himself to have contributed the entire sale consideration with respect to the property.

20. The counsel for the defendant has not argued any other point.

21. Accordingly there is no impediment to pass a preliminary decree for partition.

22. A preliminary decree for partition declaring the plaintiff and the defendant to be having equal share / right in property No.90, Block-B, Pkt. 02, Sector-16, Rohini, Delhi, measuring 60 sq. mtrs. is accordingly passed.

23. It may be mentioned that though vide order dated 22 nd April, 2013 in CCP No.121/2012 it was observed that the contempt averred will have to be decided by recording evidence but a preliminary decree for partition having been passed, need is not felt to record evidence on the said aspect.

24. List for further consideration on 19th August, 2013.

RAJIV SAHAI ENDLAW, J

MAY 23, 2013 bs /pp..