Sanjeet Taneja vs Ravinder Kumar Taneja And Anr.
2018 Latest Caselaw 822 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.107/2018

%                                                   5th February, 2018

SANJEET TANEJA                                     ..... Appellant
                          Through:       Mr. Pramod Kumar Ahuja,
                                         Advocate.
                          versus

RAVINDER KUMAR TANEJA AND ANR.    ..... Respondents

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.4236/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.4238/2018 (for condonation of delay)

2. For the reasons stated in the application, delay of 25 days

in re-filing the appeal is condoned.

C.M. stands disposed of.

RFA No.107/2018 and C.M. No.4237/2018 (stay)

3. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908(CPC) is filed by the plaintiff in the suit

impugning the judgment of the Trial Court dated 31.10.2017 whereby

trial court with respect to the subject suit for partition for two

properties situated at Mumbai and Delhi has decreed the suit only as

regards the Mumbai property by holding the appellant/plaintiff to be

the half owner thereof but has dismissed the suit qua the second

property by holding that the appellant/plaintiff has no co-ownership

right in the property situated at Delhi being B-7/54/1, DDA Flats,

Safdarjung Enclave, New Delhi.

4. The case set up by the appellant/plaintiff was that he was

the owner of the Delhi property because this Delhi property was

purchased by the respondent no.1/defendant no.1/father from the

property which was owned by the appellant's/plaintiff's grandfather at

Jangpura, New Delhi. It was also pleaded by the appellant/plaintiff

that the Delhi property was purchased in the name of both the

appellant/plaintiff and the respondent no.1/defendant no.1, and

therefore, appellant/plaintiff was co-owner by means of title

documents with respect to Delhi property. Hence the

appellant/plaintiff prayed for a decree for partition qua the Delhi

property.

5. I may note that in the suit there were two properties in

issue, with the first property being situated at I-9, Dattaguru Society,

Deonar, Mumbai and the second property at Delhi and with respect to

property at Mumbai, trial court has granted the decree for partition

holding the appellant/plaintiff to be a co-owner of the Mumbai

property. Thus the dispute to be decided in this appeal is only as to

whether the appellant/plaintiff is a co-owner of the Delhi property.

6. Before the trial court, the case of the appellant/plaintiff

was that the Delhi property was purchased by the respondent

no.1/defendant no./father from the sale proceeds of the property of the

grandfather at Jangpura, New Delhi, but except making self-serving

statements, nothing was filed on record which could be believed by

the Court that the suit property was purchased by the respondent

no.1/defendant no.1/father by selling the property of the grandfather

situated at Jangpura, New Delhi. Even if the case of the property at

Jangpura, New Delhi being of the grandfather of the appellant/plaintiff

and having been sold by the respondent no.1/defendant no.1/father for

purchase of the Safdarjung Enclave property at Delhi is correct yet the

appellant/plaintiff would not have any right in the Safdarjung Enclave

property at Delhi inasmuch as now it is settled law that by virtue of the

judgment of the Supreme Court in the cases of Commissioner of

Wealth Tax, Kanpur and Others Vs. Chander Sen and Others,

(1986) 3 SCC 567 and Yudhishter Vs. Ashok Kumar, (1987) 1 SCC

204 that after passing of the Hindu Succession Act, 1956 if a person

inherits property from his paternal ancestors then the inherited

property in the hands of the person who has inherited the same is not

an HUF property but is a self acquired property of the person who

inherits the same. Therefore, it would have made no difference even if

the respondent no. 1/defendant no. 1/father had purchased Safdarjung

Enclave property at Delhi from the funds of the property of the father

of respondent no.1/defendant no. 1 i.e grandfather of the

appellant/plaintiff situated at Jangpura , New Delhi.

7. Trial court has held that respondent no.1/defendant

no.1/father is the owner of the Safdarjung Enclave property in terms of

the documents Ex.DW1/1 and Ex.DW1/2 and which are registered

General Power of Attorney and an affidavit executed by the seller

Smt. Tara Bansal in favour of respondent no.1/defendant no. 1. It is

seen that these documents are of the year 1989. In the present case it

is seen that the rights which the defendant no.1/respondent no.1/father

claims are pursuant to an irrevocable General Power Of Attorney

which arise in terms of Section 202 of the Indian Contract Act, 1872.

In terms of Section 202 of the Contract Act, a General Power Of

Attorney given for consideration becomes irrevocable as regards the

immovable property for which it is executed. Even Supreme Court

has protected rights of an irrevocable General Power Of Attorney

holder in terms of the judgment in the case of Suraj Lamp Industries

Pvt. Ltd Vs. State of Haryana. (2012) 1 SCC 656 and which judgment

only holds rights cannot be created by virtue of documents executed

which under law require to be stamped and registered, and in the

present case it is seen that documents in question whereby rights are

claimed are on the basis of irrevocable power of attorney as provided

under Section 202 of the Indian Contract Act. I have also discussed

this aspect in detail in the judgment in the case of Shri Ramesh

Chand Vs. Suresh Chand and Anr., 188 (2012) DLT 538 by referring

to the judgment of the Supreme Court in the case of Suraj Lamp

(supra).

8. Therefore it is seen that appellant/plaintiff failed to prove

any right, title or interest in Safdarjung Enclave property and therefore

the trial court has rightly dismissed the suit with respect to the Delhi

property.

9. Counsel for the appellant/plaintiff argued before this

Court that this Court should protect the possession of the

appellant/plaintiff and as proved from the various documents filed on

record, however I cannot agree with this argument urged on behalf of

the appellant/plaintiff because the subject suit is not a suit for

protecting possession of the appellant/plaintiff on the ground of

appellant/plaintiff being in settled possession because the suit was

only for partition of the property, and therefore for determination of

the legal rights/title of the appellant/plaintiff in the suit property at

Delhi, and therefore this Court cannot decide cases with respect to

issues which were never in question and which have not been decided

by the trial court.

10. There is no merit in the appeal. Dismissed.

FEBRUARY 05, 2018                             VALMIKI J. MEHTA, J
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