The main legal point established in the judgment is the significance of the conduct of the parties in proving the existence of an oral family settlement, along with the burden of proof on the appellant. The judgment also highlights the legal framework related to property ownership, partition, and the burden of proof in establishing oral family settlements.

Pradeep Nandrajog, J.

1. Late Sh.Hem Chandra Kaushik was admittedly the owner of property bearing Municipal No.L-19, Lajpat Nagar-III, Delhi-110024. Flat No.1402, Marathon Galaxy-I, IBS Marg, Mulund Mumbai. Agricultural land ad-measuring about 10 acres in V&PO Shedawa District, Bulandshahar, UP. Ownership was reflected in the title document and revenue as well as municipal record.

2. It is the common case of parties that Hem Chandra Kaushik died intestate on August 10, 2008. His wife Late Smt. Mahalakshmi had pre-deceased him on November 15, 1997. His two sons Vikram and Vivek and daughter Jyotsana were his successor-in-interest.

3. In the year 2009 Vikram and Jyotsana sought partition of the 3 properties owned by their father.

4. Impleaded as the sole defendant, Vivek pleaded that two properties; land ad-measuring 1069 square yards at Bareilly (U.P.) and a flat at Shivalik Co-operative Group Housing Society, Papankalan, Dwarka were also liable to be partitioned. He pleaded that these two properties were owned by the mother of the parties but entire consideration was paid by the father and therefore said two properties would comprise the estate of the father.

5. He pleaded an oral family settlement. As per him the house at Lajpat Nagar came to his share at the family settlement. The flat in Mumbai came to the share of his brother. As per him under the family settlement it was also agreed that the flat at Dwarka would remain with his brother. With respect to the property at Lajpat Nagar he pleaded that his brother was given an option to either take half share in the property at Bulandshahar or have right over the second floor of the property at Lajpat Nagar. He pleaded : ‘However, the plaintiff No.1 is yet to exercise the option and hence both the Lajpat Nagar property Bulandshahar property is currently under the possession of the defendant as defendant has been maintaining the properties on behalf of the deceased’. No share being given to the sister was pleaded on the strength of the fact that when the sister was married the father gifted money to the daughter, utilizing which, Flat No.351, SFS Flats, Mukherjee Apartments was purchased.

6. Pleadings being hazy regarding the property at Bareilly, in the deposition of the parties common case which has emerged is that the mother was the owner of 1069 square yards land in Bareilly out of which about 200 square yards was sold. As per Vikram and Jyotsana they did not sue for partition of the land at Bareilly because it was worthless to do so inasmuch as the entire land was under encroachment.

7. The hazy pleadings qua the flat at Dwarka and Mukherjee Nagar got cleared from the evidence which evinces that the flat at Dwarka is in a Co-operative group housing society. Initial membership whereof was in the name of Vivek, who transferred it to the mother and from the mother it got transferred to Vikram. There is no evidence how much money was paid to the society for construction of the flat. There is no evidence of any amount paid by the mother of the parties or Vivek to the society and thus the presumption would be in favour of Vikram to have paid money to the society for construction of the flat.

8. As regards the flat at Mukherjee Nagar, not only the pleadings but even the evidence continues to be vague, but learned counsel for the parties state at the Bar today that ownership of the flat is in the name of father-in-law of Jyotsana. To this extent there is an admission made by the appellant during his cross-examination conducted on May 08, 2012. On oath he has stated that the documents of Mukherjee Nagar property are in the name of Sukhdev Ranjan Luthra (father-in-law of Jyotsana) and that they are around the time of the marriage.

9. It is settled law that oral family settlements are accepted in equity as creating right, title and interest. It is equally settled law that conduct of the parties, in the absence of any written document, would guide the Court to determine whether oral f