Delhi High Court
Sardar Jarnail Singh & Anr vs Sardar Amarjit Singh & Ors on 20 July, 2016
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th July, 2016
+ CS(OS) 1689/2015 & IA No.12050/2015 (u/O 39 R-1&2 CPC)
SARDAR JARNAIL SINGH & ANR ..... Plaintiffs
Through: Mr. Rajinder Pal Singh, Adv.
Versus
SARDAR AMARJIT SINGH & ORS ..... Defendants
Through: Mr. M.P.S. Kasana and Ms. Reena
Sharma, Advs.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.
The two plaintiffs have sued the two defendants for partition of
property No.J-6/35 admeasuring 160 sq. yards, Village-Tatarpur presently
known as Rajouri Garden, New Delhi pleading that the said property was
acquired vide two Sale Deeds both dated 21st March, 1997 of 50% undivided
share each in the property and one of which Sale Deeds is in favour of the
plaintiff No.2 Sh. Sardar Gurcharan Singh and defendant No.2 Sh. S.
Bakshish Singh (erroneously written in the memorandum of parties as Sh.
Sardar Bakshi Singh) and other in favour of defendant No.1 Sh. Amarjit
Singh and plaintiff No.1 Sh. Sardar Jarnail Singh. A perusal of the Sale
Deeds shows that the share of the two purchasers in each is not defined.
2. The suit was entertained and a joint written statement has been filed
by the two defendants and to which a replication has been filed by the
plaintiffs.
3. The suit is ripe for framing of issues.
4. After hearing the counsels for the parties, it transpires that the only
defence of the defendants to the claim for partition is that the suit is for
partial partition and is thus not maintainable. The defendants in this regard,
in their written statement have mentioned three other properties jointly
owned by the parties, namely:
(ii) Property No.C-213/4, Phase-II, Mayapuri, New Delhi;
(iii) Property No.5/73, Subhash Nagar, New Delhi;
(iv) Property No.A-112, "Jabbal Motors", S.P. Mukherjee Market,
Jhandewalan, Delhi.
5. On further hearing it transpires, that the said three properties have
been inherited by the parties from their grandfather Sh. Sardar Kartar Singh
who was the owner thereof; Sh. Sardar Kartar Singh however, besides Sh.
Pyara Singh being the father of the two plaintiffs and Sh. Sardar Malkiat
Singh being the father of the two defendants also left two other sons, who
would also have a share in the above three properties. As per para 1 of the
plaint, the plaintiffs also have another brother namely Sh. Sardar Harbhans
Singh who would also have a share in the properties inherited from the
grandfather.
6. It would thus be seen that while the property of which partition is
sought in this suit has been acquired by the parties to the suit vide sale deed
in their own favour, the properties on the ground of non inclusion of which
the suit is contended to be bad have been inherited by the parties along with
others from a common ancestor. In my opinion, the difference in the mode
of acquisition of the suit property and the other properties and the fact that
while the parties to the suit only are the owners of the property for partition
of which this suit is filed and the parties to the suit are not the only owners
of the other properties aforesaid, becomes a relevant factor for considering
whether the said plea of the defendants raises substantial issue of fact or law
which needs to be put to trial.
7. A Division Bench of the High Court of Bombay as far back as in
Purshottam @ Anna Vs. Atmaram Janardhan (1899) I Bombay Law
Reporter 76, referring to a yet earlier judgment in Hari Vs. Ganpatrav ILR
1883 (7) Bom. 272 held i) that the rule that every partition suit shall embrace
all the joint family property is subject to certain exceptions such as where
different portitions of it are situated in different territories or where a portion
of the property is not immediately available for partition by reason of its
being in the possession of mortgagees or otherwise; ii) similarly a property
which is held by the joint family in partnership along with strangers, who
have no interest in the family partition amongst the sharers and who cannot
therefore be made parties in the family partition suit, also forms an
exception from the rule. It was also held that property which is held jointly
by several families is not joint family property of each of those families so
that it would be compulsory upon each of them in suing its own members
for a partition of their family property to include in that suit property owned
by the family along with other families.
8. Similarly, the High Court of Allahabad, in Janki Das Vs. Lachmi
Narain MANU/UP/0051/1901, quoting from Mayne's Treatise on Hindu
Law held that one of the exceptions to the general rule that every suit for
partition should embrace all the joint family property is stated to be where a
portion is held jointly with strangers who have no interest in the family
partition.
9. A Full Bench of the High Court of Patna in Ramdayal Mahto Vs.
Uttim Mahto AIR 1918 Pat. 281 held that the plaintiff was not bound to
include in a suit for partition the properties held jointly by the parties with
others.
10. A Division Bench of the High Court of Calcutta, in Kasiswar Basu
Vs. Nakuleswar Bose AIR 1952 Cal. 738, held i) that the rule that a partition
suit should embrace all the joint properties is applicable only to properties
held in co-tenancy; and, ii) this principle has no application where one of the
members of a joint family transfers his interest either in the entire joint
property or in any particular property in favour of a stranger. Accordingly,
the suit as framed by excluding properties in which the parties to the suit
along with their mother and another brother were interested was held to be
not bad in law.
11. A Division Bench of this Court recently in Radhey Shyam Bagla Vs.
Ratni Devi Kahnani MANU/DE/3331/2014, also faced with a plea of the
suit for partition being bad for the reason of being for partial partition, held
i) that subject to exceptional circumstances, a suit instituted for partition
should include all the joint family properties; ii) the general principle is that
a co-sharer filing a suit for partition against the other co-sharers has to bring
all the joint properties into the hotchpot, failing which a suit may be
dismissed on the ground of partial partition as the proper equity in a suit for
partition will not be possible if all joint properties are not brought into the
hotchpot; iii) the normal rule governing suits for partition is that it has to
incorporate all partible coparcenary property and should implead all those
entitled to a share; iv) however this rule is not a rigid and an inflexible one;
reliance was placed on Mst. Hateshar Kuer v. Sakaldeo Singh 1969 (2)
SCWR 414 laying down that the rule aims for preventing multiplicity of
legal proceedings which results if separate suits were to be instituted in
respect of fragments of joint estates and that normally it is more convenient
to institute one suit for partition of all the joint properties for equitable
distribution and adjustment of accounts - however this being a rule dictated
by consideration of practical convenience and equity, may justifiably be
ignored when in a given case there are cogent grounds for departing from it;
v) however the said rule applies primarily to coparcenary property - where
the parties are not coparceners but tenants in common, it makes a substantial
difference in the applicability of the rule as no coparcener has a share in any
particular property but there is no such basis for application of the rule to
property which is held in common; vi) a distinction has to be made between
jointly or commonly held property and coparcenary property; and, vii) a suit
for partition of a common property as distinct from joint property is not
liable to dismissal on the ground that all the joint property in respect of
which partition may have been sought have not been included.
12. Applying the aforesaid law, I am of the opinion that the present suit
for partition of property acquired by the parties hereto vide sale deeds, in
their own name is not bad for being for partial partition as the other
properties which have not been included have been acquired by the parties
to this suit, not by acquisition directly in their name, but by inheritance,
jointly with others and which others have nothing to do with the property to
which this suit pertains.
13. Thus, the sole defence of the defendants to the claim for partition is
not required to be put to trial and has no merit.
14. The counsel for the plaintiffs and the counsel for the defendants state
that otherwise there is no dispute that the two plaintiffs and the two
defendants have 1/4th undivided share each in the property. They further on
enquiry, inform that the subject property comprises of four floors and the
entire property is lying locked under the lock and key of the parties and
nobody is in use and occupation thereof.
15. Accordingly, the suit is allowed; a preliminary decree for partition is
passed, declaring the two plaintiffs and the two defendants to be having 1/4 th
share each in property No.J-6/35, Village Tatarpur.
16. The parties to bear their own costs.
17. Decree sheet be drawn up.
18. I have enquired from the counsels whether they desire to explore the
possibility of division of the property by metes and bounds and in which
case a Court Commissioner will have to be appointed and the parties will
have to bear the expenses thereof or if they desire sale of the property to the
highest bidder with the parties being entitled to also bid.
19. The counsels seek time to obtain instructions.
20. List on 24th August, 2016.
RAJIV SAHAI ENDLAW, J.
JULY 20, 2016
bs/gsr
