Back
High Court of Delhi
BADAR DURREZ AHMED & VIBHU BAKHRU, JJ.
Baldev Raj Gadhok
Versus
Suman Kumar Gadhok & Others
FAO (OS) No. 493 of 2013
Decided On : 26-11-2013
Partition Deed - Property Dispute - Code of Civil Procedure, Order 39 Rule 1 & 2 - 19.08.1963, 18.05.1964 - The appellant sought a decree of declaration against defendant nos.1 to 8 declaring the Gift Deed dated 19.11.2001 in respect of the said property as being null and void. The appellant had also sought a decree of partition of the suit property and possession of 1/3rd share of the suit property. The controversy essentially relates to whether the appellant is the owner of 1/3rd undivided share of the suit property or not. The appellant has produced a certified copy of a registered deed dated 19.08.1963, wherein, the retirement of late Raj Rani from the firm M/s Ruby Cycle & Accessories Manufacturing Co. is recorded. The said deed, inter alia, records as under: The appellant has further produced a certified copy of the Partition Deed executed on 18.05.1964 wherein the property bearing no. 36A, DLF Industrial Area, measuring 1872 sq. yards was divided in two parts. Whilst the part measuring 910 sq. yards vested exclusively with Yashwant Kumar Sethi and Ram Chandra Sethi, the other part, which is the suit property, measuring 962 sq. yards (which included “two office rooms, three factory shades, one bank godown, one colouring Bhatti & room, two store rooms and latrine”) fell to the share of the appellant and late Pushpa Gadhok jointly in inter se the same proportion as their respective shares in the assets of the erstwhile firm. Thus, as per this deed, the appellant became the exclusive owner of 1/3rd undivided share in the suit property. The abovementioned Partition Deed dated 18.05.1964 is a registered document and, prima facie, establishes the appellant's title and interest in the suit property. Whereas, prima facie, the appellant has been able to establish that he is an owner of undivided 1/3rd share of the suit property, there is no document that has been produced by the respondents which would establish their title to the suit property. The respondent nos. 1 to 8 are also not disputing the Partition Deed dated 18.05.1964. According to respondent nos. 1 to 8, there was an oral family partition that took place in 1985 which was acted upon by all parties including the appellant. It is contended that in terms of the oral partition, 1/3rd undivided share of the appellant in the suit property was stood vested with late Pushpa Gadhok. The appellant disputes that there was any oral family settlement as claimed by the respondent nos. 1 to 8. The respondents have also not produced any document where the alleged family settlement is acknowledged by the appellant, on the contrary the appellant has produced correspondence which indicates there was no concluded settlement in 1985. The issue whether there was any oral family settlement or not is the subject matter of trial in the suit. We feel that the appellant, having prima facie established his title to 1/3rd share of the suit property, would be entitled to interim relief. The respondents cannot be permitted to appropriate the benefit of the suit property entirely unless they are able to establish their right, title and/or interest in the suit property. The fact that the respondents have been enjoying exclusive benefit from the suit property does not necessarily imply that they should be permitted to continue to do so without establishing their title. In our view, it would be appropriate if the respondents are directed to deposit 1/3rd of the lease rental from the suit property in this court pending the final determination in the suit. We, accordingly, direct the respondents to deposit 1/3rd of the lease rent received in respect of the suit property with the Registrar General of this court, who is directed to place the same in an interest bearing account.
Fact of the Case:
The appellant sought a decree of declaration against defendant nos.1 to 8 declaring the Gift Deed dated 19.11.2001 in respect of the said property as being null and void. The appellant had also sought a decree of partition of the suit property and possession of 1/3rd share of the suit property.
Finding of the Court:
The appellant, having prima facie established his title to 1/3rd share of the suit property, would be entitled to interim relief. The respondents cannot be permitted to appropriate the benefit of the suit property entirely unless they are able to establish their right, title and/or interest in the suit property.
Issues: Dispute over ownership and partition of the suit property, validity of the Gift Deed dated 19.11.2001, and the existence of an oral family settlement in 1985.
Ratio Decidendi: The appellant, having prima facie established his title to 1/3rd share of the suit property, would be entitled to interim relief. The respondents cannot be permitted to appropriate the benefit of the suit property entirely unless they are able to establish their right, title and/or interest in the suit property.
Final Decision: The respondents are directed to deposit 1/3rd of the lease rent received in respect of the suit property with the Registrar General of this court, who is directed to place the same in an interest bearing account.
Based on the provided legal document, here are the key points:
Vibhu Bakhru, J.
1. The present appeal has been filed challenging the order dated 26.09.2013 (hereinafter referred to as ‘impugned order’) passed by a learned Single Judge in I.A. No.17029/2012 filed in CS(OS) No.1004/2012. By the impugned order, the learned Single Judge has dismissed I.A. No.17029/2012 filed by the appellant/plaintiff under Order 39 Rule 1 & 2 of the Code of Civil Procedure, inter alia, seeking payment of the 1/3rd share of the monthly rent of Rs.1,78,200/- and also the arrears of the monthly rent as received by the respondent nos.1 to 4, in respect of the property in question.
2. The appellant had filed the suit CS(OS) No.1004/2012, in respect of property bearing no. 36A, DLF Industrial Area, Najafgarh Road, Moti Nagar measuring 962 sq. yards (hereinafter referred to as the ‘suit Property'), whereby the appellant had sought a decree of declaration against defendant nos.1 to 8 declaring the Gift Deed dated 19.11.2001 in respect of the said property as being null and void. The appellant had also sought a decree of partition of the suit property and possession of 1/3rd share of the suit property. The reliefs sought by the appellant in the suit are premised upon the appellant being 1/3rd owner of the suit property which in turn is disputed by defendant nos. 1 to 8.
3. It is claimed by the appellant/plaintiff, in the suit CS(OS) No.1004/2012, that the suit property was a part of a larger plot measuring 1872 sq. yards which was purchased in the year 1959 and was owned by a partnership firm, which was carrying on business under the name and style of M/s Ruby Cycle & Accessories Manufacturing Co. At the material time, the said firm was constituted by 5 partners including the appellant and late Pushpa Gadhok. The other three partners were Raj Rani, Ram Chandra Sethi and one Yashwant Kumar Sethi.
4. It was stated by the appellant/plaintiff that on 19.08.1963, Raj Rani retired from the said partnership firm and transferred her share equally to the remaining four partners. On 20.08.1963, a Partnership Deed was executed between the remaining four partners and their shares in the assets of the partnership firm including the immovable property were agreed as under:-
5. The aforementioned four partners entered into a Partition Deed on 18.05.1964, whereby they agreed to divide the plot of land measuring 1872 sq. yards and the buildings constructed thereon, which belonged to the firm, into two parts. One part measuring 962 sq. yards, which is the suit property, fell to the joint share of late Pushpa Gadhok and the appellant in proportion to their inter se shares in the assets of the firm -M/s Ruby Cycle & Accessories Manufacturing Co. Since the share of late Pushpa Gadhok in the assets of the said firm was 1/3rd and that of the appellant was 1/6th, the appellant claims that 1/3rd undivided share in the suit property belongs to him and the balance 2/3rd undivided share in the suit property belonged to late Pushpa Gadhok.
6. The appellant has further stated that after the dissolution of the firm in 1964, the suit property was given on rent but subsequently, in 1979-80, the appellant got a part of the suit property vacated and established his own unit for production of cycle rims. The appellant shifted his activities to NOIDA, Uttar Pradesh in 1983-84 and asserts that the entire suit property has since been in the control of respondent nos. 1, 2 and 4 (defendant nos.1, 2 and 4 in the suit).
7. As per respondent nos. 1 to 4, the property in question belonged to the appellant and late Pushpa Gadhok, who was the sister-in-law of the appellant. Whereas, the share of the appellant in the suit property was 1/3rd, the balance 2/3rd share was owned by late Pushpa Gadhok. The respondent nos. 1, 2 and 5 to 8 (defendant nos.1, 2 and 5 to 8 in the suit) are stated to be the legal heirs of late Pushpa Gadhok and are claiming their right, title and interest in the suit property through Pushpa Gadhok as her legal heirs. Respondent
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
