2003 Supreme(Del) 386

High Court Of Delhi
HARI RAM - Appellant
Versus
LALA OM PRAKASH - Respondent
Suit 1653 of 1991
Decided On : 04/25/2003

Headnote:Transfer of Property - Partition — Maintainability of suit for — Bar of Order 2, Rule 2 of Civil Procedure Code, 1908 — Earlier suit alleged to be in relation to joint business of parties to the present suit — Both suits independent and not inter-dependent or inter-connected — Suit for partition on the strength of inheritance not barred by Order 2, Rule 2, CPC.

       Held :

       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 properly. Order 2 Rule 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.

       It is not understandable as to how a joint business of the parties being conducted 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 nature and no relief or cause of action sought in any of the suit is interdependent or inter-connected or pan 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 favor of the plaintiff.

       Partition — Preliminary decree — Two brothers occupying property inherited from ancestor — Repairs or renovations by both parties of the premises occupied by them, of no consequence — Plea of oral partition of no avail — Suit for partition maintainable — Preliminary decree of partition passed.

       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.

       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 yrs. 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 gelling 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 home out from the fact that they had one common kitchen for a long period.

       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.

       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 because 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.

       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.

       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.

       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 inplant 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.

       In view of the above, preliminary decree of partition is passed in respect of the suit property.