Delhi High Court
Shri Naval Thapar & Ors. vs Shri Naveen Thapar & Ors. on 14 February, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 14th February, 2020.
+ CS(OS) 29/2020 & I.A. Nos.1230/2020 (u/O XXXIX R-1 & 2
CPC), 1231/2020 (u/O XI R 12 & 14 CPC) & 1232/2020 (for
condonation of 3 days delay in re-filing)
NAVAL THAPAR & ORS. ..... Plaintiffs
Through: Mr.T.S. Ahuja, Adv. with Mr.Varun
S. Ahuja, Adv.
Versus
NAVEEN THAPAR & ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. On 29th January, 2020, when the suit came up first before this Court,
the following order was passed: -
"1. The plaintiffs have sued for partition of immoveable
properties and dissolution of partnership firms in terms of
the Agreement/Family Settlement dated 11th March, 2014
between the plaintiffs and the defendants.
2. As per the averments in the plaint, all the parties
were not partners in the partnership firms and/or owners
of the properties of which dissolution and/or partition has
been sought. Merely because the parties signed an
Agreement/Family Settlement agreeing to the properties
being joint and further agreeing to partition thereof,
irrespective of the title to the properties, would not, in my
opinion, make the properties joint in law, in the light of
particularly the Prohibition of Benami Property
Transactions Act, 1988 which bars the Court from
CS(OS) 29/2020 Page 1 of 4
recognising any such Agreement/Family Settlement not in
accordance with law of transfer of property and seeking
the property to be of other than the person in whose name
the title thereto is held.
3. Moreover, once according to the plaintiffs, the
properties have already been partitioned in the mode
provided for in the Agreement/Family Settlement dated
11th March, 2014, the plaintiffs cannot again seek partition
and the remedy of the plaintiffs is only to seek specific
performance of the unfulfilled part of the
Agreement/Family Settlement dated 11th March, 2014.
For instance, the plaintiffs are seeking recovery of
possession of one of the properties; the plaintiffs have to
sue for recovery of possession and not for partition.
4. The same is the position with respect to partnership
firms. If the partnership firms have already been
dissolved, the reliefs which the plaintiffs would be entitled
to, if are able to make out a case of having a right to do
so, would be to seek a decree for accounts and/or for
recovery of whatever is due on such dissolution and relief
of dissolution cannot be sought all over again.
5. The counsel for the plaintiffs states that the
plaintiffs, in alternative to the relief of partition and
dissolution, have also claimed the relief of rendition of
accounts of the partnership firm and recovery of the
plaintiffs' share therefrom.
6. In my view, the plaintiffs are required to take a
categorical stand, whether are bound by the partition
affected vide the Agreement/Family Settlement dated 11 th
March, 2014 or are proceeding on the premise that there
has been no partition and if are proceeding on the latter
premise, to satisfy that they have a share in accordance
CS(OS) 29/2020 Page 2 of 4
with law in the properties, title to which is held by others
and/or right in the partnership firms, notwithstanding
being not a partner thereof.
7. I may record that the law recognises jointness only
in the event of existence of a coparcenary and no
coparcenary is pleaded. In relation to partnership also,
the law distinguishes between partnership firm under the
Partnership Act, 1932 and a Joint Hindu Family Business
Firm to which the Partnership Act is not applicable.
8. I may further record that though the Benami Law
also admits of exceptions but no case of the title holders or
the partners being trustees or having held property for the
benefit of others, has been pleaded.
9. The counsel for the plaintiffs seeks time to consider.
10. List on 14th February, 2020."
2. The counsel for the plaintiffs today states that the plaintiffs will seek
the reliefs to which they may be entitled to under the Agreement/Family
Settlement dated 11th March, 2014 only and do not rely on the Partnership
Deeds. It is further stated that since under the Agreement/Family Settlement
dated 11th March, 2014, all the assets have already been partitioned/divided,
the plaintiffs shall sue, either for specific performance of what the
defendants had agreed/undertaken under the Agreement/Family Settlement
dated 11th March, 2014 and have not been carried out or fulfilled or for
recovery of possession of or monies as may be due to plaintiffs from
defendants.
3. The counsel for the plaintiffs seeks adjournment to amend the plaint.
CS(OS) 29/2020 Page 3 of 4
4. As would be obvious from the aforesaid, what the plaintiffs are
required to do is a complete overhauling of the plaint and not merely
amendment of the plaint. It is thus not deemed appropriate to adjourn the
case.
5. The counsel for the plaintiffs however states that the plaintiffs have
paid court fees on the plaint and though the plaintiffs on amendment/filing
fresh suit, would be required to pay additional court fees but if this suit is
disposed of, the court fees paid shall be wasted.
6. The suit and pending applications are dismissed as withdrawn with
liberty to sue for enforcement of obligations of the defendants under the
Agreement/Family Settlement dated 11th March, 2014 but on the condition
that the plaintiffs, along with the fresh proceedings if any file copies of the
plaint in the present suit as well as this order and in the fresh plaint/suit so
filed, prominently plead the said aspect.
7. A certificate entitling the plaintiffs to refund of court fees paid less
Rs.20,000/-, be issued and handed over to the counsel for the plaintiffs.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 14, 2020
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