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IN THE HIGH COURT OF DELHI AT NEW DELHI
Neena Bansal Krishna, J.
Sunder Lal Jain S/o Late Shri Baru Mal Jain – Appellant
Versus
Prem Chand Jain S/o Late Shri Baru Mal Jain – Respondent
CS(OS) No.3137 of 2011
Decided On : 13-03-2023
Partition - Property Dispute - Urban Land Ceiling and Regulation Act, 1976 - Family Settlement - Gift Deed - Court Fee Act, 1870 - Joint Ownership - Preliminary Objections - Necessary Parties - Preliminary Decree of Partition
Fact of the Case:
The plaintiff filed two suits for partition of the suit property, claiming 1/3rd share in one suit and 1/4th undivided share in the other suit. The defendant raised preliminary objections including res judicata, lack of permission from the lessor, non-joinder of necessary parties, and payment of deficient court fees.
Finding of the Court:
The court rejected all preliminary objections raised by the defendant and held that the plaintiff and defendants are entitled to their respective shares in the suit property. A preliminary decree of partition was passed in favor of the plaintiff and defendants.
Issues: Preliminary objections, entitlement to partition, and relief sought by the plaintiff
Ratio Decidendi: The court held that the suits were maintainable, rejected objections related to res judicata, lack of permission from the lessor, non-joinder of necessary parties, and payment of deficient court fees. The court also determined the entitlement of the parties to their respective shares in the suit property.
Final Decision: A preliminary decree of partition was passed in favor of the plaintiff and defendants, and the case was listed for further proceedings in respect of the final decree.
JUDGMENT
CS(OS) 3137/2011 & CS(OS) 2038/2011 The two suits shall be decided together as they pertain to the same property, and the Civil Suit bearing number CS(OS) 3137/2011 shall be considered as the lead suit.
2. Civil Suit bearing number CS(OS) 3137/2011 has been filed by the plaintiff Sunder Lal Jain against his two brothers/defendant nos.1 and 2 Prem Chand Jain and Late Sh. Harish Jain (through his legal heirs), for partition of their 1/3rd share in property bearing Plot No.11 situated at Sarai Julaina, Co-operative Housing Building Society Ltd. presently known as Sukhdev Vihar, New Delhi (hereinafter referred to as `the suit property').
3. Sh. Sunder Lal Jain has also filed Civil Suit bearing number CS(OS) 2038/2011 against all the legal heirs of their deceased father Late Shri Baru Mal Jain, for partition of his 1/4th undivided share in the suit property.
4. Facts in brief are that Late Shri Baru Mal Jain was the owner of the suit property by virtue of perpetual sub lease dated 31.10.1974. Shri Baru Mal Jain executed a registered Gift Deed dated 06.07.1984 by virtue of which 3/4th of the undivided share was gifted to the plaintiff and defendant nos. 1 & 2 namely Prem Chand Jain and Sh. Harish Jain respectively, while Shri Baru Mal Jain remained the owner of 1/4th share in the suit property. The requisite permission was taken under Section 26 of Urban Land Ceiling and Regulation Act, 1976. The mutation was thereafter carried out in the record of Delhi Development Authority of their 3/4th share in favour of the three sons who became the owner along with their father Baru Mal Jain in equal share in the suit property. The building thereafter was constructed over the suit property from the joint funds of Shri Baru Mal Jain and the plaintiff and the defendants; however this fact has been contested by Defendant No.1 and no evidence to that effect has been presented before this court.
5. In light of the Gift Deed, the family settlement was arrived at between the parties, pursuant thereto Shri Sunder Lal Jain, was given possession of the rear potion of the first floor with roof rights. Defendant No.2 Harish Jain was given possession of front portion of the first floor with roof rights. Defendant No.1 Prem Chand Jain was given possession of the front portion of the ground floor while Sh. Baru Mal Jain retained the possession of open space in front portion and rear portion of the ground floor for his personal use and occupation.
6. Defendant No.2 Sh. Harish Chand Jain died on 30.04.1987 and is survived by his wife and two sons who are now impleaded as defendant Nos. 2(a), 2(b) and 2(c).
7. Plaintiff prior to these suits, filed a Civil suit CS (OS) No.926/2007 for possession and permanent injunction for the portion of Sh. Baru Mal Jain titled as Sunder Lal Jain vs. Prem Chand Jain & Ors. wherein defendant No.1 filed his Written Statement acknowledging the possession and right of the plaintiff to the first floor with roof rights.
8. The plaintiff in the present suit has claimed that due to the joint nature of the suit property, he is unable to expand the property or put it to better use. The plaintiff has requested many a times to the defendants to partition the property in terms of the said Family Settlement. While Legal heirs of defendant No.2 are willing, defendant No.1 for the reasons best known, has not shown any inclination for the partition. Hence, the present suit has been filed by plaintiff for division of their respective 1/3rd share in the suit property by metes and bounds.
9. The plaintiff, Sh. Sunder Lal Jain, has explained that after the demise of his father Sh. Baru Mal Jain, his 1/4th share was first enjoyed by his wife Smt. Chameli Devi, and after her demise, their four sons and five daughters have inherited 1/9th share each in the 1/4th share of Late Shri Baru Mal Jain. Hence, the suit has been filed for partition by metes and bounds of the rear portion and the front lawn of the ground floor of property in P
The main legal point established in the judgment is the entitlement of the parties to partition of the suit property, rejection of preliminary objections raised by the defendant, and the passing of a....
The main legal point established in the judgment is the recognition of an oral partition in 1995, dividing the property between the parties, and the determination that the suit was not barred by limi....
In a partition suit, registered documents act as constructive notice, initiating the limitation period. Prolonged exclusive possession of ancestral property by a co-owner establishes ouster. Addition....
An oral partition under Hindu law is valid if acted upon, thus denying claims to share post-partition by siblings who were not involved in the original arrangement.
Joint family property is presumed until proven otherwise; prior partition must be established by metes and bounds to be valid.
Amendments to the Hindu Succession Act do not apply retroactively to previously partitioned properties, confirming the validity of prior partitions.
The court affirmed the joint family status and the trial court's ruling on partition, rejecting claims of prior oral partition due to insufficient evidence.
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