The main legal point established is that a minor can be conferred benefits of a contract, and the entitlement of parties in a partition suit is determined based on the evidence presented.

VALMIKI J. MEHTA, J.

C.M. No.33661/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.33660/2017 (condonation of delay)

2. This application is allowed and the delay of 582 days is condoned.

C.M. stands disposed of.

RFA No. 788/2017 & C.M. No. 33659/2017 (stay)

3. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the preliminary decree dated 26.10.2015 and the final decree dated 28.9.2016 passed by the trial court. The effect of the two decrees is that the respondent no.1/plaintiff has been declared to be 1/4th owner of the suit property bearing No.F-2, Mansarovar Garden, New Delhi and the appellants have been declared as 3/4th owners of the suit property. By the final decree dated 28.9.2016 it has been held that the property is incapable of partition, and therefore the same has to be sold and the monetary value of the share of each party as available from the net auction sale proceeds have to be given to the parties.

4. At the outset I put it to counsel for the appellants that one appeal does not lie against the preliminary decree as also the final decree, as these are separate decrees, and to which counsel for the appellants states that this appeal be considered as a challenge only to the preliminary decree dated 26.10.2015. Statement of the counsel for the appellants accordingly is taken on record and this appeal is taken as an appeal against the judgment dated 26.10.2015 passing a preliminary decree.

5. The facts of the case are that the respondent no.1/plaintiff filed the subject suit for partition and injunction with respect to the suit property. Original defendant in the suit was Smt. Inderjeet Kaur, mother-in-law of the respondent no.1/plaintiff. Appellants are now the legal heirs of the original defendant Smt. Inderjeet Kaur. The suit property admittedly was purchased as per a registered sale deed dated 3.7.1971. This sale deed is an admitted document between the parties. As per this sale deed, husband of the respondent no.1/plaintiff i.e the son of the original defendant Smt. Inderjeet Kaur was the half owner of the suit property and the other half owner of the suit property was the defendant Smt. Inderjeet Kaur. The husband of the respondent no.1/plaintiff, i.e son of the original defendant Smt. Inderjeet Kaur, expired on 15.5.2006 leaving behind his widow/respondent no.1/plaintiff as the only legal heir, and who therefore filed the subject suit for partition claiming that she was 50% owner of the suit property and which 50% had belonged to her husband late Sh. Parvinder Singh, the joint vendee in the sale deed dated 3.7.1971.

6. The suit was contested by the appellants/defendants and it was pleaded that the suit property was purchased out of the stridhan of the original defendant. It was also pleaded that the husband of the respondent no.1/plaintiff was only 7 years when the contract of the sale deed dated 3.7.1971 was entered into, and therefore, no title passed to Sh. Parvinder Singh, the husband of the respondent no.1/plaintiff. Since the original defendant died during the pendency of the suit on 22.9.2008, the present appellants being her three daughters were impleaded as defendants.

7. After pleadings were complete, the trial court framed the issues and parties led evidence and which aspects are referred to in paras 6 to 8 of the judgment of the trial court and which paras read as under:-

“6. On dated 01.08.2013 following issues were framed by the Ld. Predecessor of this court:-

(1) Whether the suit is liable to be dismissed on the ground that contract by minor is void? OPD

(2) Whether the husband of the plaintiff was minor at the time of execution of the sale deed of the suit property? If so, its effect? OPD

(3) Whether the plaintiff is entitled for 50% of the share in the suit property and hence for a preliminary decree? OPP

(4) Whether the property in partition can be partitioned by mets and bound? OPP

(5) Whether the plaintiff is en