Saichanakya vs Priti Tandon & Anr.
2014 Latest Caselaw 1842 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       Date of Decision : April 04, 2014
+                         RFA (OS) 44/2014

      SAICHANAKYA                                       .....Appellant
              Represented by:          Mr.Siddharth Yadav, Advocate
                                       with Mr.Wasim Ashraf and
                                       Mr.K.B.Thakur, Advocates

                                  versus

      PRITI TANDON & ANR.                             ..... Respondents
               Represented by:         Mr.Arvind Nigam, Sr.Advocate
                                       with Mr.Samrat Nigam, Ms.Ankita
                                       Mahajan and Ms.Ayshwarya
                                       Chandar, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE JAYANT NATH
PRADEEP NANDRAJOG, J.

1. Priti, Premlata and Snehlata are the three daughters of Late Col.R.K.Tandon who died on December 08, 1986. Their brother Balram died issueless on October 18, 1996. He died intestate. Their mother Dhaniyawati died intestate on November 06, 2005. So pleading, Preeti and Premlata instituted a suit seeking partition of property bearing Municipal No.C-31, Westend Colony, New Delhi - 110021 pleading that the same belonged to their father. The two claimed 1/3 rd share each in the said property and stated that the remaining 1/3rd was that of Snehlata.

2. Snehlata died during the pendency of the suit before she could file a written statement. Her son Saichanakya being her sole class I heir was substituted as a defendant. He filed a written statement admitting that the property partition whereof was prayed for i.e. C-31, Westend Colony,

New Delhi belonged to his maternal grandfather Late Col.R.K.Tandon. He claimed that property bearing Municipal No.B-9, Westend Colony in the name of Premlata was financed by his maternal grandfather and thus as per him Premlata was a mere benamidar. He pleaded that both properties i.e. C-31, Westend Colony as also B-9, Westend Colony have to be partitioned with share of Preeti and Premlata being 1/3 rd each in both properties and his share being 1/3rd in both properties. So pleading, he filed a counter claim in which we find he did not pray that property No.B-9, Westend Colony, New Delhi should also be partitioned. He simply sought a declaration that even said property be declared as belonging to Late Col.R.K.Tandon. He prayed for a declaration that the perpetual sub lease-deed dated February 09, 1972 in the name of Premlata be declared null and void. He prayed that Premlata should be restrained in perpetuity from dealing with the property B-9, Westend Colony, New Delhi.

3. It so happened that the suit which was listed before the learned Single Judge on August 14, 2013 was directed to be listed for settlement of issues on December 05, 2013. A schedule by which parties had to complete their pleadings; file the respective documents on which they relied and the date by which admission/denial of documents had to be done before the learned Joint Registrar was fixed. The date before the learned Joint Registrar for admission/denial was fixed as September 11, 2013.

4. Before the learned Joint Registrar parties did not comply with the time schedule and as a result the learned Joint Registrar listed the suit for admission/denial on February 06, 2014. An application under Order XII Rule 6 of the Code of Civil Procedure registered as IA No.16802/2013 filed by Preeti and Premlata praying for a decree on admission was filed

in the interregnum which application was also directed to be listed on February 06, 2014 and in the interregnum pleadings in said application were directed to be completed.

5. But since vide order dated August 14, 2013, the suit had been directed to be listed before the Court for settlement of issues on December 05, 2013, the Registry listed the suit before the Court. On said date the learned Single Judge allowed IA No.16802/2013, passing a preliminary decree declaring the 3 litigating parties to be having 1/3 rd share each in property No.C-31, Westend Colony, New Delhi and directed that parties shall file their respective proposals for division of the said property by metes and bounds. As regards property No.B-9, Westend Colony, New Delhi the learned Single Judge directed that the counter claim filed by Saichanakya shall be registered as a separate suit, meaning thereby issues pertaining to said property got segregated; to be decided in the counter claim.

6. Up has jumped Saichanakya from the ground floor where the original side courts sit in the Delhi High Court to the second floor where the Division Benches sit, and his grievance in the appeal is that the learned Single Judge decided IA No.16802/2013 post haste overlooking the fact that on December 05, 2013 the application was not even listed before the Court; having been adjourned on November 22, 2013 by the learned Joint Registrar to February 06, 2014. The grievance of Saichanakya is that he was thereby caught unaware and was deprived the opportunity to cite the case law.

7. As regards the journey travelled by the suit filed by Preeti and Premlata as also the interim applications filed therein, there is merit in the contention urged by Saichanakya that the learned Single Judge ought not to have taken him by surprise. Though the suit may have been listed

before the Court on said date but the application was not. The listing of the suit before the Court was the consequence of the order dated August 14, 2013; schedule set whereunder had been breached by the parties and vide order dated November 22, 2013 the learned Joint Registrar had listed the suit before the learned Joint Registrar on February 06, 2014.

8. In said circumstance if a prayer was made on December 05, 2013 that the matter be adjourned by a few days, the request ought to have been granted more so because IA No.16802/2013 was not listed before the learned Single Judge on December 05, 2013. It was not directed to be listed before the Court by any order. As we have noted above the application was listed for the first time before the learned Joint Registrar on October 22, 2013. Notice was issued returnable for November 22, 2013 on which date Saichanakya appeared through counsel and was granted time to file a reply. The application was adjourned to February 06, 2014.

9. Sh.Arvind Nigam learned senior counsel for Preeti and Premlata, the plaintiffs of the suit and respondents before us, urged vehemently that it hardly mattered whether the application was scheduled to be listed before the Court or not. Learned senior counsel urged that so apparent is the admission made by Saichanakya that there is no scope for any argument and passing of the decree would be a mechanical exercise for the reason no application of mind was warranted.

10. The argument of learned senior counsel if accepted by us would violate the maxim 'equi aliquid statuerit parte inaudita altera, aequum, licet dixerit, haud aequum fecerit' - He who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right.

11. But, since learned counsel for the parties agree that we could decide the issue on merits in appeal rather than remand the matter on technical grounds, we had heard Sh.Siddharth Yadav learned counsel for Saichanakya and Sh.Arvind Nigam learned senior counsel for Preeti and Premlata.

12. Learned counsel for Saichanakya urged that a suit for partial partition is not maintainable and thus urged that the learned Single Judge could not have passed a decree on admission qua property No.C-31, Westend Colony, New Delhi. Unless the counter claim was decided and status of property B-9 Westend Colony, New Delhi was adjudicated upon, decree could not have been passed. Learned counsel relied upon the decision reported as AIR 2003 Andhra Pradesh 300 Rapolu Yadagiri Vs. Smt.Rapolu Lakshmamma & Ors., 2004 (4) MhLJ 653 Govindrao S/o Gangaramji Ajmire Vs. Dadarao @ Shrawan S/o Gangaramji and (2009) 2 SCC 562 S.Satnam Singh & Ors. Vs. Surender Kaur & Anr.

13. Referring to an entry made in the register of members pertaining to plot No.C-31, Westend Colony, New Delhi (the colony was developed by Diplomatic Enclave Extension Co-operative House Building Society Ltd. and Residential Plots were demised in favour of the members as per tripartite perpetual lease-deeds executed by the society, the Delhi Development Authority and the Members) wherein it is recorded that Late Col.R.K.Tandon had nominated his wife Dhaniyawati, his son Balram and daughters Preeti and Snehlata as nominees; further recording that the nomination was as per Will, learned counsel urged that it is apparent that Late Col.R.K.Tandon had executed a Will and in any case the nominees excluded Premlata. Thus learned counsel said that even otherwise it is not a case of any admission based whereon a decree could be passed.

14. Pertaining to the second contention urged it would be sufficient for us to note that no plea has been raised in the written statement or the counter claim filed by Saichanakya that his maternal grandfather has executed a Will or alternatively that he had made a nomination in favour of his mother, maternal grandmother, Preeti and deceased uncle Balram. It is settled law that no evidence can be led on a matter of fact not pleaded in the pleadings. It is settled law that no argument can be advanced based upon facts which are not pleaded. As noted above, Saichanakya's pleadings admit that property No.C-31, Westend Colony, New Delhi has devolved upon the three daughters because Late Col.R.K.Tandon died intestate. Saichanakya has not denied that the said property, devolving by succession, is owned equally by Preeti, Premlata and himself. He has not denied the claim in the plaint by Preeti and Premlata that they are 1/3rd co-owner each of property No.C-31, Westend Colony, New Delhi.

15. Pertaining to the first contention advanced, it may no doubt be true that a suit for partial partition of joint property is not maintainable. But this would be when either joint title to the property has not to be established by any litigating party and flows from the document of title, or where the plea is that the family constituted a joint family with further claim that the properties in the names of individual members were purchased from out of the joint funds. In a case of the instant kind, where there are no allegations by either side that a particular property is a joint property, the claim being that a particular property is held benami, would not attract the principle of law that a suit for partial partition would not lie. The reason being that the suit filed would not be one seeking partial partition. The defence that some other property is also liable to be partitioned because the registered owner thereof is a

benamidar would require first a title to be proved and thereafter if the title is proved a partition to be effected.

16. The decisions cited are clearly distinguishable. In Govind Rao's case (supra) the fact that there were other properties jointly held was undisputed. The decision in Rapolu's case (supra) does not deal with the subject matter of partial partition at all. It deals with different aspects concerning joint family properties and what kind of evidence would sustain a plea of benami. The decision in Satnam Singh's case (supra) is on the subject that after a preliminary decree is passed in a suit for partition whether another property can be added to the list of properties for which a preliminary decree was passed and holds that it can be so done.

17. In the decision reported as (1995) 5 SCC 631 Phool Chand Vs. Gopi Lal the Supreme Court opined that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same.

18. In our opinion where a suit is filed claiming testamentary or intestate succession on the death of the recorded owner of a property, and said fact is admitted as also the share of the parties in the property is admitted, a preliminary decree must follow qua said property. Any counter claim by a defendant to attack the title of a plaintiff of which the plaintiff is admittedly the recorded owner on the plea that the purchase of the property was financed by the common ancestor and the holder of the property is a benamidar, would require an issue to be settled in a counter claim. The hurdle of title would have to be cleared first before share can be claimed in the property. As the adage goes 'commonsense which is a cluster of life's experience is often more dependable than rival facts presented by warring litigants' also compels us to hold that not only

equity but even commonsense warrants such a view to be taken because more often than not a party in possession of a property raises all and sundry pleas to somehow or the other delay the disposal of the suit. As in the instant case, Saichanakya being in possession of the property bearing C-31, Westend Colony, New Delhi. It is very easy to lay a challenge to the title of his aunt. In this connection we may only note a fact that Premlata was married in the year 1955 and the perpetual lease-hold rights in her favour of plot No.B-9, Westend Colony, New Delhi were conferred much after 1958 when the Diplomatic Enclave Extension Co- operative House Building Society Ltd. was formed. It is her case that the lease-hold rights were acquired by her from the funds made available by her husband who even financed the construction. Married in Calcutta she has been letting out the property for more than 40 years and has been enjoying the rent. It assumes importance that Late Col.R.K.Tandon died on December 08, 1986 and nobody claimed a share in the rent received by her. The mother of the parties Dhaniyawati died on November 06, 2005.

19. We have noted the facts in the last part of paragraph 18 above simply to highlight the importance of being required to be practical in suits for partition where a claim is opposed by attacking the title of the plaintiff to a property while admitting that the property in respect whereof the suit has been filed is liable to be partitioned.

20. The appeal is dismissed but without any orders as to costs.

(PRADEEP NANDRAJOG) JUDGE

(JAYANT NATH) JUDGE APRIL 04, 2014/mamta