Ramji Dass Narang Through Lrs vs Jagdish Chander Narang Through ...
2013 Latest Caselaw 4399 Del

          .*IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of decision: 25th September, 2013

+                               RFA 610/2004

    RAMJI DASS NARANG THROUGH LR'S           ..... Appellant
                  Through: Mr. R.K. Kashyap & Mr. Rajeev
                             Nanda, Advs.
                       Versus
    JAGDISH CHANDER NARANG THROUGH LR'S... Respondent

Through: Mr. Pramod K. Sharma, Adv.

CORAM :-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The appeal impugns the preliminary decree, dated 14.09.2004 of

the Court of the Additional District Judge, Delhi in suit No.22/2003 filed

by the deceased respondent against the deceased appellant, of partition of

property No.B-5/3, Lal Quarter, Krishna Nagar, Delhi and declaring the

deceased respondent / plaintiff and the deceased appellant /defendant to

be having one half equal share each therein.

2. Notice of the appeal was issued. During the pendency of the

appeal, the appellant/defendant as well as the respondent / plaintiff died

and their legal heirs were substituted. The appeal was on 20.03.2006

admitted for hearing. The appeal was on 05.03.2013 dismissed in default

of appearance of the appellant but was on subsequent application, vide

order dated 16.07.2013 restored to its original position. The counsels

have been heard.

3. Though there is no interim order of stay of further proceedings

pursuant to the preliminary decree for partition impugned in this appeal

but on enquiry counsels inform that the proceeding thereof are lying

adjourned sine die, perhaps for the reason of the Trial Court record

having been requisitioned to this Court.

4. Considering the nature of the controversy, need is not felt to give

the details of the pleadings and the issues framed and / or the findings

returned thereon.

5. Suffice it is to state that it is not in dispute that the Sale Deed of the

said property bearing No.B-5/3, Lal Quarter, Krishna Nagar, Delhi is in

the joint names of the deceased appellant / defendant and the deceased

respondent / plaintiff and without mentioning the share of each one of

them. Thus the presumption is of each having an equal share in the

property (see Nanak Vs. Ahmad Ali AIR 1946 Lah. 399 (FB)).

6. Of the two grounds on which the appellant / defendant contested

the claim of the respondent / plaintiff for partition, one was that the entire

sale consideration for the purchase of the property had flown from the

appellant / defendant only as the respondent / plaintiff was not earning at

that time. The learned Additional District Judge has in the impugned

judgment held the said plea of the appellant / defendant to be barred by

the provisions of the Benami Transactions (Prohibition) Act 1988 and has

also held that no evidence had been led by the appellant / defendant to

show that the entire sale consideration was paid by the appellant /

defendant.

7. The counsel for the appellant / defendant has fairly conceded that

in fact there is no evidence of the entire sale consideration for purchase of

the property having been paid by the deceased appellant / defendant. No

grievance can thus in any case be raised with respect to the negation by

the learned Additional District Judge of the said objection of the appellant

/ defendant. Even otherwise, I am of the view that the claim of the

appellant / defendant, of 50% share in the property having been

transferred in the name of the respondent / plaintiff for a consideration

paid or provided by the appellant / plaintiff and the defence on the said

basis of the respondent / plaintiff being the benami owner of the said 50%

share in the property and the appellant / defendant being the actual owner

thereof is clearly within the teeth of Section 4(2) of the Benami Act. I

have recently in the judgment dated 23rd May, 2013 in CS(OS)

No.2788/2011 titled Kanwal Arora Vs. Prem Chand Khaneja dealt with

this aspect in detail and need is thus not felt to burden this judgment

therewith.

8. The only other objection by the appellant / defendant to the claim

for partition was, of the suit being bad for partial partition. It was the

case of the appellant / defendant that besides the property No.B-5/3, Lal

Quarter, Krishna Nagar, Delhi, the appellant / defendant and the

respondent /plaintiff along with the sons of the appellant / defendant were

also the joint owners of property No.505, Lajpat Rai Market, Chandni

Chowk, Delhi in which the respondent / plaintiff had 1/6th share and the

appellant / defendant and his sons had 5/6th share and the suit filed by the

respondent / plaintiff without claiming partition of the said property was

not maintainable.

9. It was the response of the respondent / plaintiff that the property

No. 505, Lajpat Rai Market, Chandni Chowk, Delhi already stood

partitioned between the appellant / defendant and the respondent /

plaintiff on the terms contained in the deed dated 30.07.1988 executed by

the appellant / defendant and the respondent / plaintiff of dissolution of

the business earlier being carried on by them in partnership the name and

style of M/s Gram Sewa Book Depot. As per the said Dissolution Deed,

though the rent receipt of the said property was issued by the

Rehabilitation Department, Government of India in the name of the

appellant / defendant only but the tenancy rights in the property vested

jointly in the appellant / defendant and the respondent / plaintiff and who

divided the said shop by metes and bounds half and half between them.

10. The learned Additional District Judge accordingly held that the

said property having been partitioned, the suit for partition of property

No. B-5/3, Lal Quarter, Krishna Nagar, Delhi could not be bad for non

inclusion of the property No.505, Lajpat Rai Market, Chandni Chowk,

Delhi.

11. The counsel for the appellant / defendant has argued that at the

time of execution of the Dissolution Deed supra, the parties were only

tenants in the property; that subsequently in accordance with the policy

introduced by the Rehabilitation Department of the Government of India

for conferment of ownership rights in such properties, letter offering the

ownership rights in the said property was issued, besides in the names of

the appellant / defendant and the respondent / plaintiff also in the names

of the four sons of the appellant / defendant. It is thus contended that the

partition vide the Dissolution Deed is not proper and / or binding and the

said property remains un-partitioned and has to be partitioned between

the appellant / defendant and the respondent / plaintiff and the four sons

of the appellant / defendant.

12. It has been enquired from the counsel for the appellant / defendant

as to how the ownership rights of property No.505, Lajpat Rai Market,

Chandni Chowk, Delhi were offered in the names of the four sons of the

appellant / defendant also when the tenancy rights were in the name of

the appellant / defendant and respondent / plaintiff only.

13. The counsel for the appellant / defendant has fairly stated that

though there is no evidence before the Trial Court in this regard but the

appellant / defendant after the Dissolution Deed of the year 1988 had

written to the Rehabilitation Department of the Government of India to

include the name of his four sons also with respect to the said shop.

14. I am of the view that since the four sons of the appellant /

defendant who are also claimed to be having share in the Lajpat Rai

Market property were not parties to the suit from which this appeal arises,

the said suit for partition of the Krishna Nagar property which was the

only property in the joint names of the appellant / defendant and the

respondent / plaintiff could not be said to be bad for non-joinder therein

of the relief of partition of the Lajpat Rai Market property also in which

according to the appellant / defendant besides the respondent / plaintiff,

his four sons were also the owners. Though in the light of the aforesaid,

no binding observations with respect to the said property can be given but

since the Dissolution Deed of the year 1988 is not disputed, it prima facie

appears that the share which the four sons of the appellant / defendant

could have in the said property in pursuance of the request of the

appellant / defendant of a date after the Dissolution Deed for addition of

their names can only be out of 50% share as per the Dissolution Deed of

the appellant / defendant in the property and cannot be out of the

remaining half of the property which under the Dissolution Deed had

fallen to the share of the respondent / plaintiff.

15. The aforesaid objection also is thus not found to be coming in the

way of a preliminary decree for partition, as has been passed.

16. No other argument has been urged.

17. There is thus no merit in the appeal which is dismissed. However I

refrain from imposing any costs on the appellant / defendant in the hope

that the appellant / defendant would not put any further unnecessary

impediments in the way of the final decree proceedings.

Decree sheet be drawn up.

18. Trial Court file be returned to enable the final decree proceedings

to be undertaken forthwith.

RAJIV SAHAI ENDLAW, J SEPTEMBER 25, 2013 'gsr'