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High Court Of Delhi
CHIRANJI LAL - Appellant
Versus
BHAGWAN DAS - Respondent
Suit 1185 of 1983
Decided On : 05/30/1991
HELD:
It is true that the income-tax and wealth-tax assessment orders are not admissible in evidence under Sections 40 to 42 of the Indian Evidence Act but they are definitely admissible in evidence under Section 43 as they contain the admissions of defendants 1 to 3 with regard 10 shares which they were having in the property in question. Counsel for the plaintiff has referred to The Coca-Cola Company of Canada Ltd. v. Pepsi-Cola Company of Canada Ltd., AIR 1942 PC 40, wherein it
has been held that the Court is not entitled to refer to or rely upon a judgment given in proceedings to which neither the plaintiff nor the defendant was a party, as proving the facts stated therein. This judgment is not applicable to the facts of the present case because admittedly the defendants have filed the Income-tax and wealth-tax returns which contain the admission regarding their shares and the contribution made by them towards requiring of the property in question. Judgments which are not inter parties could be relevant and admissible under various provisions of the Indian Evidence Act.
TRANSFER OF PROPERTY ACT, 1882 - Partition by mates and bounds — Plot in joint Lease from Government — Cannot be divided in terms of Lease deed — Super — Structure built on a plot can be partitioned by metes and bounds according to respective shares of parties while keeping the plot under Death the Structure as joint — No permission of Lesser needed for effecting partition of building by metes and bounds (Inderjit Singh & Tarlochan Singh 1991 Rajdhani LR 239 relied upon)
A contention was raised that as there exists a joint lease in respect of the plot in question from the Government and the plot cannot be divided in view of the terms of the lease deed, thus, the property in question cannot be partitioned by metes and bounds. Similar question arose for decision in Inderjit Singh v. Tarlochan Singh, 1991 Rajdhani LR 239 and it was held that the super structure built on a plot can be partitioned by metes and bounds according to the respective shares of the parties while keeping the plot underneath the structure as joint and no permission of the Lesser is needed for effecting the partition of the building by metes and bounds. I respectively agree with the ratio expressed in this judgment and hold that no permission is liable to be obtained from the Delhi Development Authority for partitioning the building in question according to the shares of the parties. Now the question whether physically the building could be partitioned by mates and bounds according to the shares of the parties mentioned above, could be decided only by the Local Commissioner who is to be appointed for suggesting mode of partition.
( 2 ) PLAINTIFF No. I is the father of defendants 1 and 3 while plaintiff No. 2 is the second wife of plaintiff No: I while defendants 1 and 3 were born from the first wife of plaintiff No. 1. Defendant No 2 is the wife of defendant No. I Plot No. 72 Block No. B-4 of Safdarjung Residential Scheme measuring 397. 7 Sq. Yards was acquired by way of perpetual lease from the President of India in the names of plaintiff No. 2, defendant No. 2 and defendant No. 3. The possession was obtained in the year 1968. Lease deed was executed on February 21, 1971. The plot was acquired for a consideration of Rs. 54,200. 00. It is the case of the plaintiffs that the plaintiff No 1 is the real owner of half share in the said lease hold rights of the plot and he has acquired that share Bunami in the name of his wife plaintiff No. 2 and plaintiff No. 1, in fact, is assessed with regard to his income on the value of the abovesaid plot and the building constructed over there in the income tax and wealth tax department. It is pleaded that plaintiff No. I has contributed a sum of Rs. 40,660. 00 in the payment of the premium of the said plot including the expenses incurred on the stamp and the registration charges of the lease deed. It is averred that defendant No. I has contributed Rs. 7,550. 00 in the payment of the premium of the said plot and he is owner of one-fourth share in the said plot which he acquired Benami in the name of his wile defendant No. 2 and defendant No. 1 as similarly assessed to the income-lax and wealth tax with respect to the said one-fourth share. Defendant No. 3 is stated to be owner of one-fourth share and he having contributed Rs. 10,000. 00 in the premium pertaining to the said plot and is also assessed similarly in the income- tax and wealth tax department. The one and a half storey building is stated to have been constructed on the said plot in the year 1972-74 According to the plaintiffs, plaintiff No, 1 had contributed a sum of Rs 60,000 in the construction of the building whereas defendant No. 1 contributed a sum of Rs. 15,600. 00 and defendant No. 3 bad contributed a sum of Rs. 11,970. 00. It is mentioned that in the income-tax and wealth-tax department plaintiff No. l is assessed on one-half share of the said building where defendants l and 3 are assessed to the tune of ore fourth share each in the said building. Plaintiffs and defendants are stated to be in possession of ihe abovesaid properly and have been paying lease money and house-tax according to their respectivs shares.
( 3 ) DEFENDANTS 1 and 2. in their joint written statement pleaded that defendant No. I had worked with plaintiff No. 1, his father, since the year 1948 and was actively involved in running a Kiryana shop of his father and defendant No. I used to live and sleep at the shop itself and this shop was originally located in Khanna Market and there has been no accounting between plaintiff No. 1 and defendant No. I regarding the earnings from the said shop even after defendant No. I had attained the age of majority. It is pleaded that the entire earnings from the Kiryana shop were due to the result of joint efforts and plaintiff No. I being the father had kept the accounts in the manner as it pleased him. It was controverted that the plaintiff had contributed a sum of Rs. 40,660. 00 towards the premium of the plot. It is pleaded that in fact, the premium of the plot was paid from the joint income of plaintiff No. I and defendant No. I from the Kiryana shopv and some money had been contributed by defendant No. 2 from her own savings derived from her own income as a teacher. It was controverted that defendant No. 2 is a Benami and it is pleaded that she had contributed some money from her own savings towards the premium of the plot. It is then pleaded that the joint accounts were kept by pl
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