Delhi High Court
Hari Chand vs Nagender Singh Panesar & Ors. on 10 February, 2014
Author: Valmiki J. Mehta
$~16-17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% 10th February, 2014
+ RSA 203/2010
HARI CHAND ..... Appellant
Through Mr. Rajesh Kumar, Advocate
versus
NAGENDER SINGH PANESAR & ORS. ..... Respondents
Through Mr. T.C. Sharma, Advocate for
respondent Nos. 2, 4 to 7.
+ RSA 205/2010
HARI CHAND ..... Appellant
Through Mr. Rajesh Kumar, Advocate
versus
KAMAL KISHORE & ORS. .... Respondents
Through Mr. T.C. Sharma, Advocate for
respondent Nos. 1 to 3, 5 & 6.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
CM Nos. 5661/2011, 5287-88/2012, 16241-16244/2012 in RSA 203/2010
CM Nos. 5165/2011, 5329-30/2012, 16245-46/2012, 16235-36/2012 in
RSA 205/2010
There is no opposition to any of the applications and the same are,
therefore, allowed, without prejudice to the merits of the matter.
CMs stand disposed of.
RSA 203/2010 & RSA 205/2010
1. These appeals arise from the impugned judgment of the first appellate
court dated 30.1.2010. By the impugned judgment, the first appellate court
dismissed the appeals which were filed by the appellant, who was a
purchaser from only one of the co-owners. The concurrent judgments of the
court below have held that appellant does not get complete title to the suit
property bearing no. WZ-491, Sham Singh Building, Nangal Raya, New
Delhi inasmuch as the sale documents executed in favour of the appellant by
the defendant no.1/respondent no.1 in RSA 203/2010 (respondent no.7 in
RSA 205/2010). Agreement to sell(Ex.PW1/2), General Power of Attorney
(Ex.PW1/3) and Will (Ex.PW1/6) dated 29.8.1995 cannot confer absolute
ownership because respondent no.1-defendant no.1 was only one of the co-
owners of the suit property and that the co-owners and the appellant/plaintiff
failed to prove that any partition of the suit property had taken place and the
suit property fell to the share of the respondent no.1/defendant no.1.
2. The appellate court in this regard has held as under:-
" The respondent No. 1 in his cross examination has
admitted that no written partition had taken place regarding the
suit property between thelegal heirs of late Sh. Sham Singh. He
has also admitted that all his brothers and sisters are co owner
of the property left behind by late Sh. Sham Singh. Ld.
Counsel for the appellant has failed to point out any material on
record to substantiate his arguments that oral settlement had
taken place between the legal representatives of late Sh. Sham
Singh whereby the suit property had come to the share of
respondent No. 1.
It is a trite law that a joint family property cannot be sold
by one one of the co-owner and no title can be transferred when
such a transfer is made without the consent of other co sharers.
The reliance of the Ld. Trial Court on Lachhman
Prasad Vs. Satname Singh, AIR 1917 PC 41 and Baldev
Singh Vs. Smt. Darshani Devi reported in AIR 193 HP 141
is well placed in this regard."
3. I time and again put it to counsel for the appellant to show me as to
how the respondent no.1-defendant no.1 proved any partition for the suit
property to be exclusively owned by him so that the same could be
transferred to the appellant-plaintiff, however, admittedly there is no
document of partition and a mere oral partition without the same having
been acted upon is no proof of any oral partition having taken place. In fact,
if I accept the stand of the appellant/subsequent purchaser then effectively
fraud will be permitted upon the other co-owners of the property. It may be
that respondent no.1 played a fraud upon the appellant by claiming that he
was the sole owner of the suit property in view of the oral partition, but it
was for the appellant to ensure the validity of title of the respondent no.1 for
purchasing the suit property from him. In case appellant feels that he has
been defrauded by the respondent no.1-defendant no.1 it will always be open
to the appellant to initiate against the respondent no.1, all proceedings as
available in law, both criminal and civil.
4. In view of the above, I do not find any substantial question of law
arising once the factum of partition is not established on record for the
respondent no.1 to have become the exclusive owner of the suit property and
accordingly being sold to the appellant for him to become exclusive/sole
owner of the suit property. Therefore, appellant/plaintiff cannot claim
exclusive ownership of the suit property inasmuch as even the respondent
no.1-defendant no.1 was not the exclusive owner of the suit property.
5. The appeals are therefore dismissed, leaving the parties to bear their
own costs.
VALMIKI J. MEHTA, J
FEBRUARY 10, 2014
godara
