Vikramajit Sen, J.:— So far as the present dispute is concerned, differences have erupted not between the Vendor of the suit property on the one side and the Vendee on the other; the lis is between the Vendee and other persons who are not parties to the Sale Deed. On a plain reading of Section 92 of the Evidence Act, its prohibition does not have any applicability to the present circumstances. I am also supported in taking this view by the opinion in Jhajhan Singh v. Ram Singh and others, 1982 Allahabad Law Journal 264 which was surprisingly decided without adverting to Bai Hira Devi's case(supra). (Para 20)
‘Estoppel by deed’ is defined in Black's Law Dictionary to be a “bar which precludes one party to a deed and his privies from assenting against the other party and his privies any right or title in derogation of the deed or from denying the truth of any material facts assented in it”. The precedents as well as this definition clearly indicate that persons who are not parties are not bound by the contents of the documents. Since Defendant Nos. 2 to 4 are not parties to either of the Sale Deeds neither Section 92 nor ‘estoppel’ can prohibit them from adducing evidence to prove their case. Accordingly, even if the Agreement is not perused, the Lease Deed also sufficiently outlines the family arrangements arrived at between all the brothers on the prompting and pursuation of their mother. (Para 23)
It has been seen that the suit property was purchased in equal shares by two Sale Deeds in the name of the Plaintiff and in the name of Defendant No. 1. At that time a ‘dilapidated’ construction was in existence. It is the common case of the parties that this structure was pulled down and thereafter a new building was constructed as per sanctioned plan. Indubitably, title to the property, at the commencement, vested in half shares between the Plaintiff and Defendant No. 1. It has already been discussed that family arrangements should be assiduously given effect to, even if it requires some jural engineering. Is it possible to detect arrarrangement between the brothers whereby the title to the suit property was agreed to be novated? Keeping the close relationship between the parties in mind, it is the duty of the Court to consider all attending circumstances before arriving at a conclusion.
There can be no two opinions that when the property was purchased the documentation contemplated only the Plaintiff and Defendant No. 1. This documentation includes Agreement to Sell, two Sale Deeds, Affidavit of Defendant No. 1, division of the property between them in the specified shares viz. 153 yards land+ground floor and 153 yards+first floor to these parties; Mutation is also in their names only. The unquestionable fact, however, is that the Plaintiff did not pay fifty per cent of the cost of construction, and it is his say that it was agreed that he would pay this at the end. A perusal of Ex. Dl/1 dated 9.8.1979 discloses that all the parties had agreed that the suit property would be divided in the ratio of sixty-five per cent to the Defendants and thirty-five per cent to the Plaintiff. This position is reiterated in Ex. D1W1/1 dated 30.9.1981 which also records an agreement between the parties that a sum of Rs. 4,10,000/- has been invested by the Defendants over and above their sixty-five per cent. Obviously, accounts have had been gone into between the brothers at that stage. It should not be forgotten that the property which had been purchased in equal shares by the Plaintiff and Defendant No. 1 had undergone a complete transformation in which all the brothers had participated. A family arrangement, as envisaged by the Hon'ble Supreme Court in its numerous decisions, can be gathered from these documents. They do not bring about change in presenti but witness that some change had already occurred. I hold that Ex. D1W1/1 is admissible in evidence. It, no doubt, varies the terms of the two Sale Deeds but since Defendants No. 2 to 4 were not parties to the Deed, the Agreement does not violate Section 92 of the Evidence Act.
It is now commonplace that although the land may vest exclusively in one party alone, title to the construction carried out thereon can legally vest in other parties. The delhi apartments ownership act has been passed keeping this development and reality in view. In respect of the new construction, therefore, a totally new arrangement has come into effect de hors Ex. Dl/1 and Ex. D1W1/1. A reading of the Lease Deed also leads to the conclusion that the property which was in existence in September, 1981 was agreed to be owned in the ratio of thirty-five per cent with the Plaintiff and sixty-five per cent with the Defendants. The said Lease Deed dated 30.9.1981 between the parties and suit property and inasmuch as it indicates the terms of a family arrangement which has already taken place, it can be read in evidence. It has certainly more evidentiary value in respect of the disputes inter se parties than the Sale Deeds to which Defendants No. 2 to 4 were not signatories. The possession letter as well as the receipt of rent in the ratio of thirty-five per cent and sixty-five per cent is clearly indicative of the fact that the parties had agreed to share any usufruct or income from the suit property in accordance with the common ownership of the construction by all the brothers. Principles of Estoppel come into play and overwhelmingly lead to the conclusion that the property had come to be owned in the aforementioned ratio. (Para 30)
At the time when the property was purchased in 1981, benami transactions were not prohibited. The burden of proving that the suit property was benami in the hands of the Plaintiff and Defendant No. 1 has been duly discharged by the Defendants. (Para 31)
I hold that the Plaintiff and Defendant No. 1 are not the only owners of the property R-565, New Rajinder Nagar, New Delhi and that they do not own it in equal shares. I hold that Defendants No. 2 to 4 are entitled to raise the plea that the property was benami. I hold that Defendants No. 2 to 4 are joint owners with Defendant No. 1 of sixty-five per cent of the suit property. (Para 32)
Issue No. 4
4. If Issues No. 2 & 3 are decided in favour of defendants 2 to 4, whether the suit property was orally partitioned by the parties to the suit in the ratio of 35% for the plaintiff and 65% for the defendants jointly, as stated in the Preliminary Objection No. 1? OPD (Para 33)
I hold that the suit property was orally partitioned by the parties to the suit in the ratio of thirty-five per cent for the Plaintiff and sixty-five per cent for the Defendants jointly. (Para 34)
Issue No. 5
5. If issues No. 4 is decided in favour of the defendants, whether the said partition has been acted upon by the parties and they are conse quently estopped from challenging the same? OPD (Para 35)
I hold that the parties have acted on the said partition from the date of the execution of the Lease Deed dated 30.9.1981 and are also estopped from challenging the partition. (Para 36)
A holistic reading of the Agreement and from the language and tenor of the above extracted Clause, it is palpably evident that the parties had drawn up accounts and at the end of this exercise had agreed that a sum of Rs. 4,10,000/- had been invested by the Defendants in excess of their sixty-five per cent liability for making contributions. Keeping in view the relationship between them, and the emergence of a family settlement, it is not necessary for this Court to give a definitive answer of how much investments the Defendants had made. Suffice it to state that pursuant to accounts having been struck between the parties, an excess of Rs. 4,10,000/- have been made by the Defendants. The Issue is decided accordingly. (Para 43)
Issue No. 8
8. Whether the agreement dated 30.9.81 is a building contract? If so what is its effect? (This issue will also include the question of its admissibility in evidence)? OPP (Para 44)
It has already been noticed that the Plaintiff's assertion is that the said Agreement dated 30.9 1981 is a building contract. It has also been discussed that a family settlement can be oral or in the form of a memorandum, or by a actual partition deed. In the third event it can by registered document alone A memorandum is one which witnesses the terms and details of a family arrangement which has already taken place in the past. If a document styled as a memorandum carries out division of family property in presenti, it would cease to be a memorandum. If a family settlement can be effected orally, there ought to be no difficulty or impediment in gathering the terms of the family settlement or a reading of any other document executed between the members of a family. This would apply regardless of whether it is joint family property or self acquired property. The advocated latitude and the degree of informality which is extended towards family settlement need not distinguish between such holdings, since the objective sought to be achieved is to give effect to family arrangement arrived at between family members. It is not the property which is the focal point, but the close relationship between the owners. Once the emphasis shifts from the property to the owners thereof, the position that I have favoured becomes inevitable. I have already held that the Agreement is admissible in evidence. I have held that it is in the nature of a building contract. But having arrived at this conclusion I do not find it incongruent or impermissible to also hold that on a reading of its contents details of a prior family arrangement or settlement can be gathered. (Para 45)