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2003 Supreme(Del) 636
High Court Of Delhi
MADAN LAL KAPUR - Appellant
Versus
SUBHASH LAL KAPUR - Respondent
Suit 719 of 1982
Decided On : 07/23/2003
ANIL PAVAR, Charu Verma, Rajender Mathur, V.B.ANDLEY, Y.P.NARULLA
Headnote:Evidence Act, 1872 - Section 92 — Exclusion of evidence of oral agreement — Suit for partition of property — Differences erupted not between the Vendor of the suit property on the one side and the Vendee on the other — Lis is between the Vendee and other persons who are not parties to the Sale Deed — Prohibition under Section 92 not applicable.
Evidence Estoppel by deed - Manifestation — Principles of estoppel apply only between parties to a document — Parties not privies to the document not bound by the contents thereof.
Partition - Suit property — 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.
Family settlement - 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 — Agreement is admissible in evidence — Building contract natured.
Benami Transaction - Prohibition — Partition suit — At the time when the property was purchased, benami transactions were not prohibited — 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 — Plaintiff and Defendant No. 1 are not the only owners and that they do not own it in equal shares — Defendants No. 2 to 4 are entitled to raise the plea that the property was benami — Defendants No. 2 to 4 are joint owners with Defendant No. 1 of sixty-five per cent of the suit property.
( 1 ) THE Plaintiff has prayed for the partition of property bearing No. R-565, New Rajinder Nagar, New Delhi (hereafter referred to as the `suit property ) on the grounds that he along with Defendant No. 1 are the joint and equal owners thereof. It has been averred that the Plaintiff and Defendant No. 1 had purchased the undivided half-share each in the said property vide two Sale Deeds dated 21. 11. 1977. All the parties hereto are brothers. The plaint discloses that Defendant Nos. 1 to 4 are working in partnership in the name and style of Messrs. Nawab Packers, New Delhi. Defendant No. 1 is stated to have invested the funds of the firm for purchasing the half-share in the suit property and that Defendant Nos. 2 to 4 are claiming interest in the said property on the premise of the said investment having been made from the funds of the firm. It is further averred in the plaint that the Plaintiff and Defendant No. 1 got the Plans sanctioned from the MCD on 27. 7. 1978 and started rebuilding the property immediately, after demolishing the existing structure. These two parties had agreed to share the cost of construction in equal proportion. The structure of the building was almost complete by July, 1979. Defendant No. 1 had incurred the initial cost of construction and it was agreed between him and the Plaintiff that the latter will pay his fifty per cent share of the cost of construction after the completion of the entire building. However, in July, 1979, after the structure had nearly been completed, Defendant No. 1 stopped further construction and started demanding from the Plaintiff his share of the cost of construction. Defendant Nos. 2 to 4, being partners of the firm also started intervening and claiming interest in the property. The Plaintiff was forced to enter into an unreasonable Agreement of Construction by Defendants on 9. 8. 1979. However, despite this Agreement the Defendants failed to complete the building and abandoned the project. The Plaintiff thereupon moved into fifty per cent of the first floor portion in the incomplete building and is in possession till date. Thereafter (as pleaded in the plaint) in March, 1981 the Plaintiff and the Defendants raised a loan from the New Bank of India towards the cost of construction of the entire building. It is averred that the "plaintiff agreed to that effect with a view to resolve all disputes with the Defendants. ". The said Bank advanced a loan of Rs. 6 lakhs and also agreed to take part of the premises on loan for five years on a monthly rent of Rs. 19,950. 00. It is pleaded that before signing the loan documents with the Bank on 30. 9. 1981 the parties entered into an Agreement, the salient feature of which are that the Defendants will complete the construction in all respects and that the rent proceeds will be distributed in the ratio of thirty-five per cent for the Plaintiff and sixty-five per cent for the Defendants; and that the Plaintiff will pay thirty-five per cent of the cost of construction upon completion. The Agreement states that it supersedes all the previous agreements. From the loan of Rs. 6 lakhs, Rs. 2,08,588. 50 was received by the Plaintiff and the remainder by the Defendants. Out of said amount of Rs. 2,08,588. 50 the Plaintiff paid to the Defendants a sum of Rs. 1,60,000. 00 towards the cost of construction, even though this amount was payable only on the completion of the construction. Despite this, the Defendants have not completed the construction till date. It is further pleaded that the Defendants had received a sum of Rs. 5,51,411. 50 which is much more than the amounts invested by them in the building. In the plaint it is further averred that the Agreement dated 30. 9. 1981 is a building contract, and is not a registered instrument. Since the construction was not completed, the Plaintiff had terminated the contract on 14. 5. 1981. The Plaintiff has claimed for a decree of rendition of account pertaining to the cost of const
