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2018 Supreme(Del) 2913
IN THE HIGH COURT OF DELHI AT NEW DELHI
MANMOHAN, J.
Shri Rakesh Malhotra - Plaintiff
Versus
Shri Vikas Malhotra & Anr. - Defendants
CS(OS) No. 2177 of 2015
Decided On : 22-10-2018
For the Plaintiff :Mr. Naresh Thanai, Advocate.
For the Defendant :Mr. Rahul Shukla, Advocate with Mr. Bhuvan Ravindran, Advocate.
Once partition has taken place, it cannot be re-opened unless obtained by fraud, coercion, misrepresentation, or undue influence.
Headnote:
partition - suit property - 20, 25, 26, 27, 28, 33, 34
Fact of the Case:
The plaintiff filed a suit for partition of a property jointly acquired with his deceased brother. The defendants claimed that an oral partition had taken place in 1988, dividing the property between them.
Finding of the Court:
The court found that the plaintiff failed to prove that the property was liable to be partitioned despite his affidavit dated 23rd September, 1993. The court confirmed the fact of oral partition based on the plaintiff's admission and valuation report. The court also held that the partition need not be equal and that a leasehold property can be partitioned for use and occupation. It further ruled that once partition has taken place, it cannot be re-opened unless obtained by fraud, coercion, misrepresentation, or undue influence. The court decreed the suit to declare the plaintiff and defendant as joint and co-owners of the land underneath the property.
Issues: The issues included whether the property was liable to be partitioned, the effect of the partition, and the effect of the lease deed and conveyance deed on the partition.
Ratio Decidendi: The court found that the plaintiff failed to prove the property was liable to be partitioned despite his affidavit. It also established that a leasehold property can be partitioned for use and occupation and cannot be re-opened unless obtained by fraud, coercion, misrepresentation, or undue influence. The court further ruled that in case of partial partition, the excluded portion of the property would be liable to be partitioned alone.
Final Decision: The court decreed the suit to declare the plaintiff and defendant as joint and co-owners of the land underneath the property.
MANMOHAN, J.
1. Present suit has been filed for partition by the plaintiff against the children of his deceased brother. The prayer clause in the plaint is reproduced herein below:
“In the facts and circumstances as stated above, it is most respectfully prayed that this Hon’ble Court may be pleased to:-
(a). partition the suit property bearing no.10, Block No.BM admeasuring 324 sq.mtrs. in Shalilmar Bagh Residential Scheme (BM-10, West Shalimar Bagh, New Delhi-110088) and ½ share of plaintiff be separated.
(b). award cost in favour of plaintiff; and
(c). any other or further order which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”
2. The learned predecessor of this Court had directed the parties to maintain status quo with regard to title and possession of the suit premises vide order dated 27th July, 2015. The said order was confirmed till the disposal of the suit on 23rd February, 2016.
RELEVANT FACTS
3. The relevant facts of the present case are that the plaintiff and his elder brother, Shri Ravindra Kumar Malhotra (father of the defendant no.1), jointly acquired plot No.BM-10, West Shalimar Bagh, Delhi 110088 (hereinafter the suit property) vide a perpetual lease deed dated 28th December, 1981.
4. The superstructure on the plot comprises the ground and first floor with an open terrace encompassing a small store and toilet. The construction was jointly raised by the plaintiff and father of the defendant no.1 and was completed in September 1988.
5. It is the case of the defendant no. 1 that in September, 1988, the plaintiff and father of the defendant no.1 orally partitioned the suit property, wherein the first floor with the rear half of the terrace went to the share of the plaintiff and ground floor and front half of the terrace went to share of the father of the defendant no.1.
6. Admittedly, the plaintiff and father of the defendant no.1 executed separate affidavits accepting division of the suit property on 23rd September, 1993. While it is the case of the defendants that the division of the suit property was for all times to come, the case of the plaintiff is that the division was for the purpose of house tax assessment.
7. On 25th April, 1996 the suit property was converted from leasehold to freehold and conveyance deed was executed by DDA in the names of the plaintiff and father of the defendant no.1.
8. While, father of the defendant no.1 died on 27th October, 2009, mother of the defendants died on 19th April, 2011.
9. The plaintiff filed the present suit for partition on 23rd July, 2015.
10. Vide order dated 16th May, 2016 the following issues were framed:
“(i) Whether the suit property is liable to be partitioned, even in the face of the affidavit of the plaintiff dated 23.09.1993? OPP
(ii) If yes, its effect? OPP
(iii) What is the effect of the execution of the lease deed and conveyance deed in respect of the suit property on the aspect of partition? Onus upon parties.
(iv) Relief.”
ARGUMENTS ON BEHALF OF THE PLAINTIFF
11. Mr. Naresh Thanai, learned counsel for plaintiff contended that no partition of the suit property had ever taken place between the plaintiff and Shri Ravinder Kumar Malhotra–father of defendants. He stated that for the sake of convenience only, the plaintiff and the father of the defendants had occupied the first and the ground floor respectively. He contended that the alleged partition, if any, was unfair and inequitable as the front and back lawn on ground floor had been appropriated by the defendants. He also pointed out that terrace and other common areas like store and washroom had been left undivided.
12. Learned counsel for plaintiff emphasised that in 1993, the father of the defendants had got the affidavit signed from the plaintiff on the pretext that it was required for the purpose of House Tax Assessment by Municipal Corporation of Delhi (for short ‘MCD’). He contended that the plaintiff later on learnt that the said affidavit had not even been submitte
