South East, Saket Courts, New Delhi: Naresh Kumar Laka, Additional District Judge, decided a suit with respect to partition and permanent injunction.
Instant suit was filed for partition and other reliefs by claiming that the plaintiff was a joint owner of 1/3rd share of the suit property and Defendants 1 to 5 were the joint shareholders of another 1/3rd share and Defendant 6 for remaining 1/3rd share. According to the plaintiff, the suit property was purchased by the plaintiff along with his two brothers. Defendants 1 to 5 were legal heirs of one of the brothers, and Defendant 6 was widow of the other brother. Defendants 1 to 5 contested the suit, while Defendant 6 supported the case of the plaintiff.
Preliminary Objections/Arguments
Objection 1: Defendants 1 to 5 argued that the sale deed in question (as per which the suit property was purchased by the plaintiff and his two brothers) had not been proved by the plaintiff since PW 4 (Record Keeper, Department of Delhi Archives) had failed to identify the sale deed.
Court’s Opinion: PW 4 duly proved the factum of registration of the sale deed on the basis of official record and, as such, as per proviso to Section 68 of the Indian Evidence Act, 1872, the said sale deed stood proved and there was no other requirement under law to prove the said document.
Objection 2: It was argued by Defendants 1 to 5 that the parentage of the vendee/buyer have not been mentioned in the sale deed and, therefore, the said sale deed was not valid.
Court’s Opinion: Information mentioned on the reverse side of the sale deed was sufficient to identity the parties.
Moreover, there is no requirement under law to compulsorily mention the parentage name of transferor or transferee.
Objection 3: Defendants 1 to 5 argued that the suit property was constructed out of the funds of Raj Rani Sharma or her husband (one of the brothers, through whom Defendants 1 to 5 laid claim to the suit property as legal heirs) and plaintiff did not contribute anything and he had no source of income at that time being minor.
Court’s Opinion: As per law, the right, title and interest on immovable property are required to be decided on the basis of the title documents and even if it is presumed that the plaintiff did not contribute anything, it cannot be said that the said transaction was invalid.
Out of love and affection, a person can also contribute in the sale amount on behalf of other person and unless said fact is challenged by the former, the other persons have no right to question it. The mentioning of names as vendees in the registered sale deed clearly demonstrates the intention of the persons at the time of execution of the said document to create a right in favour of such persons. Had there been any contrary intention, names of such persons would not have been mentioned in the said sale deed.
The Court also observed it to be settled law that amount spent in raising construction of a house cannot disentitle the title holder of the said property and instead thereof such person who raised construction can claim recovery of the said amount, if desired, as per law by filing separate suit.
Objection 4: It was argued by Defendants 1 to 5 that the plaintiff was minor at the time of registration of sale deed and, therefore, the said document was invalid.
Court’s Opinion: The Court found no provision under the Transfer of Property Act, 1882 which provided that any sale transaction in favour of a minor was invalid rather there are other various provisions in the Act which provide that an interest can be transferred in favour of an unborn child in womb.
Noting that the rule that a minor’s agreement is void ab initio which was laid down in the famous case of Mohiri Bibi v. Dharmodass Ghose, (1903) 30 Cal. 539, was propounded in minors’ favour for their protection, the Court observed that the law does not regard a minor as incapable for accepting a benefit.
Further, the Court stated that even if it is presumed that the plaintiff was minor at the time of registration of sale deed, it does not make the said sale deed invalid. At the most it could have been challenged by the vendor or the person claiming through said vendor and not by the other joint shareholders/transferee or the person claiming through them, which is not permissible under the law.
Objection 5: There was assertion by Defendants 1 to 5 that the instant suit was barred by limitation and the plaintiff did not claim any share for the last more than 40 years.
Court’s Opinion: A cause of action for a suit for partition accrues only when partition is claimed and it is denied or when the plaintiff is ousted from the property and the defendant starts claiming his own exclusive ownership adversely to the plaintiff. In the plaint, it was claimed by plaintiff that his claim for partition was denied in September, 2013 and the present suit was filed in November 2014. No contrary evidence was led by the defendants to prove that the plaintiff ever demanded partition earlier which was denied.
Issues in Detail
- Whether the suit property against which partition has been claimed and the property in occupation of defendant are same or different? Onus on both parties.
Physical Identification
In the present matter, plaintiff as well as Defendants 1 to 5 have placed on record the site plan of the suit property and from comparison of both, it was clear that both represent to the same physical structure of the property. Defendants 1 to 5 had also admitted that the site plan on record by the plaintiff was correct. Hence, there was no dispute on the physical identification of the said property.
Identification of the suit property vis-a-vis sale deed
The Court stated that it is well settled that the standard of proof in civil cases and criminal cases is quite different. Plaintiff in civil suit had to merely establish his case on the touchstone of preponderance of probabilities and the defendant is not necessarily entitled to the benefit of every reasonable doubt. In the Court’s opinion, plaintiff duly proved on record the sale deed and identification of the suit property.
Therefore, the Court held that the plaintiff duly proved on record the identification of the suit property as well as the fact that it was purchased on the basis of sale deed in question only and that its subsequent municipal no. T-823A belongs to the same property i.e. plot no. 100 which has been mentioned in sale deed in question and is presently in possession of the defendants.
- Whether plaintiff is entitled for partition of the suit property as claimed?
The Court decided in view of Issue 1 that the plaintiff was the joint owner of 1/3rd share in the suit property besides shares of Defendants 1 to 5 as 1/3rd and Defendant 6 as 1/3rd. Hence this issue was decided in favour of plaintiff and against Defendants 1 to 5.
- Whether the plaintiff has no right, title or interest in the suit property or that the defendants are the exclusive or absolute owners of the suit property?
In view of the findings on Issue 1, the Court decided this issue in favour of plaintiff by holding that plaintiff was the joint owner of 1/3rd share in the suit property besides shares of Defendants 1 to 5 as 1/3rd and defendant 6 as 1/3rd. Defendants 1 to 5 also failed to prove the absolute ownership of Raj Rani Sharma.
- Whether the plaintiff is entitled to a decree of perpetual injunction?
In view of the findings on Issue 1, this issue was decided in favour of the plaintiff and against the defendants and all the defendants were restrained to create any third party interest in the suit property against the interest of plaintiff or without due process of law.
Conclusion
(i) A preliminary decree was passed by holding that the plaintiff is the joint owner of 1/3rd share in the suit property and Defendants 1 to 5 are joint owners collectively of 1/3rd share and Defendant 6 joint owner of 1/3rd share in the said property.
(ii) The parties were given an opportunity to suggest ways and means for partition of the suit property by metes and bounds (physically) or by inter se sale of the respective shares amongst themselves before passing a final decree.
(iii) A decree of permanent injunction was also passed against the defendants and they were restrained to create any third party interest in the suit property against the interest of the plaintiff or without due process of law.
(iv) Cost of the suit was also awarded to the plaintiff against Defendants 1 to 5, which will be shown in the decree-sheet.
(v) An exemplary cost was also awarded against Defendants 1 to 5 for unnecessarily contesting the instant suit without any plausible basis, which was quantified at Rs 1,00,000, out of which Rs 80,000 to be paid to the plaintiff and Rs 20,000 to the Saket Bar Association Welfare Fund within 30 days.
[Ved Prakash Sharma v. Hunny Sharma, CS No. 11084 of 2016, decided on 1-10-2021]
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