Hari Ram v. Lala Om Prakash

J.D Kupoor, J.:— Parties are real brothers. Plaintiff has through this suit sought partition of their father's property no. 1775, Kucha Lattu Shah, Dariba Kalan, Chandani Chowk, Delhi. Case of the plaintiff in brief is that the plaintiff after the death of his father who was absolute owner of the suit property, became the owner of the one half share along with the defendant who has also one half share in undivided property. Admittedly portion shown in mark yellow is in occupation of the defendant whereas the portion shown in green is in occupation of the plaintiff. Portion mark red is in common possession. According to the plaintiff the portion in his occupation does not comprise one half of the area in the said undivided property and since both of them are real brothers, he has requested the defendant to partition the said property by metes and bounds according to their respective shares but the defendant has not bothered to give heed to his requests. Rather the defendant is trying to sell his portion of the undivided share in the said property. The cause of action arose on 3.1.91 when the defendant refused to partition the suit property.

2. On the other hand defendant has pleaded that there had been an oral family settlement amongst the parties to the suit by virtue of which the plan Mark A is said to be the share of the defendant whereas plan Mark B fell the share of the plaintiff. This family partition is stated to have taken place about 35 years back. According to the defendant the said partition has already been implemented in as much as both the parties are residing separately in their respective portion with separate water and electric connections and have been paying house tax separately by way of cheques to Municipal Corporation of Delhi. Both the parties have been carrying out minor and major construction and renovation in their respective portion from time to time it is further averred that in view of the said implementation of the oral family settlement, the plaintiff is estopped from filing the present suit. Apart from this the suit is also barred by limitation as the defendant has been in exclusive possession of his one half share for the last 35 years and has been witnessing without objection the alteration, addition, construction and renovation in the portion in his possession. Besides this the defendant has taken objection that the suit is barred Under Order 2 Rule 2 CPC on account of failure of the plaintiff to seek similar relief in earlier suit which gave rise to the decision by way of Arbitrator. However, in the replication the plaintiff reiterated his averments and denied the oral family partition as alleged by the defendant. Admittedly, the earlier suit alleged by the defendant was with regard to the joint business of the parties and not regarding the suit property. The aforesaid pleadings gave rise to the following issues:—

1. Whether there has been an oral partition of the suit property pursuant to family settlement which was acted upon? OPD

2. Whether the suit is barred by limitation in view of the averments made in para 1 of the preliminary objections and para 5 and 6 of the written statement? OPD

3. Whether the suit is not barred under Order 2 Rule 2 CPC on account of failure of the plaintiff to seek relief in the earlier litigation? OPP

4. Whether the plaintiff is estopped from filing the present suit when separate residence for each party had been allocated and there was allegedly division of the property during the lifetime of the mother and thereafter of the assets belonging to the mother? OPD

5. Whether the suit is barred by the provisions of the partition Act? OPD

6. Whether plaintiff and defendants have in their occupation having repaired and renovated the said portions and continued with their uninterrupted occupation over a long period? OPD

7. Relief

3. In support of their respective claims, the plaintiff alone has examined him self as PW 1 whereas the defendant besides himself examined Raj Singh Bhola as DW 2. As is apparent the substantial issue that calls for determination is issue No. 1 i.e whether there was the oral partition of the suit property and the same has been acted upon or not. The remaining issues are legal issues and can be taken up at the outset.

ISSUE NO. 2

4. Admittedly, the father of the parties died intestate and, therefore, the suit property is a joint property. It is well settled that whenever the partition of the property by way of inheritance is sought, the provisions of limitation act do not apply. Even if it is assumed for the sake of arguments that both the parties have been living in the same house in different portions together, does not foreclose the right of the parties to seek partition of a joint property by metes and bounds. So far as the plea that there has been oral family settlement is concerned, the same cannot come in the way of seeking partition by way of a suit by metes and bounds.

5. This court has taken the view in Daya Devi.Plaintiff; v. Angoori Devi & Ors.Defendants., 2002 (63) DRJ 68 that the relief of possession by way of partition on the basis of inheritance is of such a nature that cannot be taken away by inaction or incapacity of a person in taking step well in time and, therefore, law of limitation providing the period of 3 years to 12 years for such a civil suit is of no relevance. As such the issue is decided in favour of the plaintiff and against the defendant.

ISSUE NO. 3 & 5

6. Both the issues are inter connected and are being taken up together. As regards the contention that the instant suit is barred by the provisions of Order 2 Rule 2 CPC. Admittedly, the prior litigation alleged by the defendant was in respect of the joint business of the parties and not in respect of partition of the suit property. Order 2 R 2 CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of the suit and in case he omits to sue in respect of or intentionally relinquishes, any portion of his claim, he shall not after wards sue in respect of the portion so omitted or relinquished. Sub Rule (3) further provides that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits except with the leave of the court to sue for all such reliefs he shall not after wards sue for any relief so omitted.

7. It is not understandable as to how a joint business of the parties being con ducted in tenanted premises and the suit for partition of property on the basis of inheritance involve the same cause of action. Both the suits are independent in na ture and no relief or cause of action sought in any of the suit is interdependent or inter-connected or part of the whole. The same is the position with regard to the objection that the suit is barred by provisions of the Partition Act. There is no such provision which bars the suit for partition of the suit property being sought on the strength of inheritance. Both the issues stand decided against the defendant and in favour of the plaintiff.

ISSUES NO. 1,4 & 6

8. The decision of Issues no. 4 & 6 rests upon the decision of Issue No. 1. Issue No. 1 is question of fact whether there had been an oral family partition of the suit property by virtue of which the parties were given portions which are being occupied by them respectively and whether such partition is deemed to have been implemented by virtue of possession of the respective portion by parties for more than 30 years from the date of institution of suit coupled with the factum of having carried out with repairs renovations and addition made by both the said portion by the parties in their respective possession.

9. Admittedly, the plaintiff is in occupation of a part of portion on the ground floor and pSrt on first floor and similarly the defendant is also in part possession of some portion on ground floor and some on the first floor. It is contended by learned counsel for the plaintiff that had there been any oral family partition, the question of such an arrangement would not have arisen as the partition of the property by way of oral family settlement by metes and bounds has to be in such a rational manner that there will be no scope for interference by any of the parties in possession of the respective portions and would entitle them to dispose of their portion as one unit. It was merely an arrangement that both the parties were keeping some portion on the ground floor and some on the and first floor and not by way of oral family partition.

10. However, the defendant has apart from examining himself on the point of oral family partition has examined Raj Singh Bhalla who is known to the family for last 50 years. In his testimony he has stated that the suit property was purchased by the grand father of the parties and after his death it came to be owned by their father Sh. Mithan Lal who died in the year 1954. Both the parties were having great love and affection with each other and they had been living in their respective portions of the said house prior to the death of their father. However, after the death of Mithan Lai his wife was also given a portion in the said house for independent living. According to this witness the oral family settlement was arrived at some time in 1954 when Mithan Lal was alive and in his presence both the parties agreed that they would live in separate portions. So much so after the death of their mother, the room in which she was living was taken by the defendant and the store room was taken by the plaintiff. Following such an agreement separate electricity bills and water connections were obtained though the house tax was being assessed in joint name of the parties and it continues to be assessed as such till date. The witness admitted that he had never met Bhikhu Mal. He also admitted that during the life time of their father both the parties use to live in separate portions but were having one kitchen.

11. It is contended by learned counsel for the plaintiff that had there been any oral family partition, the question of assessment of house tax in joint names would not have arisen and the respective portion of the suit property would have been mutated in the name of the parties. Merely because the parties were paying electricity bills separately does not mean that the property was partitioned orally. The partition even if by way of inheritance or even if oral, unless is given effect to has no value either factual or legal. The moment the partition is made, the parties are accepted to approach the house tax authorities for independent house tax bills for their respective portions as well as the revenue authorities for mutation of their names.

12. In an identical case titled as Daya Devi v. Angoori Devi, 2002 (63) DRJ 68 it was held that unless such partition is given effect to for all practical purposes, it cannot be accepted as a valid and legal mode of partition of the property.

13. There is a English case which has dealt with this aspect in pragmatic way. In Williams v. Williams, (1867) 2 Chancellory A 294 one John Williams died leaving behind a will whereby after making certain provisions for his wife, he gave all his property to his two sons in equal shares but the will was not admitted to probate as it was incomplete and after probate was refused, the elder brother declared that the invalidity of the will should make no difference and that the property should be “not mine not thine but ours”. No agreement in writing was made but for the twenty years after the death of their father, the two brothers treated the property as their common property and their widowed mother lived with them until her death without insisting on her rights in her husbands’ property and after the said period of twenty years, some differences arose between the two brothers and the younger brother brought a suit for division of the property claiming half share therein and relied upon the arrangement which had continued all these years as a family arrangement. In defence the elder brother disputed that it was a family arrangement on the ground that there were neither disputed rights or compromise of family differences nor any mutuality in the arrangement. It was held that for the validity of a family arrangement of such a category, it is also essential that there must be mutuality in the agreement arrived at between the parties that is to say, some consideration, however small, must pass from the side of the person upon whom a right in property is sought to be conferred and mere love or affection between the members of the family is not enough.

14. Admittedly partition of the property particularly amongst the brothers has to be rational, practical” and enforceable. By way of oral agreement, the parties may decide to live in such partitions which are not worthy of partition by metes and bounds but such oral arrangement for that purpose, the agreement between the parties is nothing more than an arrangement of convenience and not an agreement of partition of property. The partition of the property particularly where there is a plea of oral family agreement should be workable and each portion should be identifiable in such a manner that may entitle either of the parties to sell or dispose of the same in case any of the parties either out of any need or financial crunch decides to sell.

15. In the instant case the plaintiff is in occupation of certain portion on the ground floor and some portion on the first floor and same is the situation of the premises with the defendant. More so, the portion which was in occupation of the mother have also fallen for being divided between the parties. Over and above, the implication of an agreement by living in their respective portion for more than 30 years does not mean that the oral agreement has been implemented particularly when the property continues to be in joint name and has not been mutated till date in their respective names. Inaction on the part of the parties for getting the portion in their occupation mutated in their own names for the purpose of paying house tax shows that it is nothing but an arrangement between the two brothers that they should continue living in the portion which they have occupied when their father was alive. This nature of arrangement of living in convenient portion of the suit property at relevant time is borne out from the fact that they had one common kitchen for a long period.

16. On the contrary learned counsel for the defendant has admitted the aforesaid contentions of the counsel for the plaintiff in as much as that both the parties had agreed that they are co-owners of the suit property in equal shares and have been in possession of one half share each and the only grievance of the plaintiff is that the defendant has more than one half of the portion in his possession and, therefore he has sought the partition of the property by metes and bounds.

17. Merely because some repair, renovation, alterations have been carried out in their respective portion does not prevent the plaintiff from seeking partition of the suit property. More so some additional construction has been made by both the parties in the portion in their occupation.

18. Contention of the counsel for the defendant that oral partition has been acted upon inasmuch as portions in the suit property are in separate occupation and the parties have carried out additions, alterations, renovations in their respective portions without any objection and interference by other party and that he along with the plaintiff has been ooling equal share towards payment of house tax and further he had also made addition, alterations or renovations in their portions almost at the same time when the defendant has done it some 20 years back has no significance so far as suit for partition is concerned as there is common entrance and staircase in the property. The parties are in possession of portions on ground floor, first floor, second floor and terrace and suit property cannot be partitioned as these are not vertically or otherwise single unit. All these facts when taken in totality make out a case of two brothers living peacefully in their respective portions but not a case of oral family agreement of partition of the property. Had there been any intention on the part of father of the parties to give equal shares in the property, there was no difficulty in executing the Will. Merely be cause parties have been living for more than 30-40 years in different portions of the house separately does not mean that such an agreement tantamount to agreement for partition of property.

19. Similarly the circumstance that after the death of mother of the party, one room occupied by her was occupied by the defendant while store was given to the plaintiff does not tantamount to partition of the property. Again it was a mutual agreement between the parties suiting to their convenience. Again oral partition of construction, renovation, alterations carried out by the parties in their respective partition without any one of them raising objection is of no relevance as whatever they have done, they have done through love and affection as they have been living together in the same house in their respective portions for long.

20. The instance of two brothers living in the two portions of a house they co-owned by way of inheritance does not mean that oral partition had taken place. It was just a mutual arrangement between the parties and inasmuch who had more need, he was allowed to occupy some extra portion but such an arrangement does not amount to oral agreement of partition of the suit property in equal shares.

21. Again contention of the counsel for the defendant that plaintiff had shifted temporarily to Hauz Khan as parties were carrying on some alterations, additions in their respective portions whereby some of the portions in occupation of the plaintiff was going to be demolished does not mean that they were carrying out additions or alterations in a partitioned property. It was again an act of accommodation with each other.

22. Both the parties have admitted that whatever they have spent in their respective portions it was borne by them individually.

23. The contention of the counsel for the defendant that plaintiff is estopped from challenging the oral family settlement has lost its sting and rendered redundant as the defendant has failed to establish the oral family arrangement. Mere plea that plaintiff had allowed defendant to carry out alterations or additions by incurring huge expenses at the relevant time is of no relevance and significance because both the parties carried out renovation, addition in the portion in their occupation.

24. In view of the foregoing reasons it is to be held that there was no oral partition of the suit property pursuant to family agreement and plaintiff is not estopped from filing the instant suit merely because he has been living in portion of the suit property for more than 30 years or so followed by addition and alternations made by them in their respective portions amounting to implied implementation.

25. In view of the above, preliminary decree of partition is passed in respect of the suit property. Mr. Manish Vashist, Advocate is appointed as Local Commissioner for suggesting mode of partition by metes and bounds in equal share. The fees of the Local Commissioner is fixed at Rs. 15,000/-.

List on 28th August, 2003 for final decree.