Hari Chand v. Nagender Singh Panesar

1. These appeals arise from the impugned judgment of the first appellate court dated 30.1.2010. By the impugned judgment, the first appellate court dismissed the appeals which were filed by the appellant, who was a purchaser from only one of the co-owners. The concurrent judgments of the court below have held that appellant does not get complete title to the suit property bearing no. WZ-491, Sham Singh Building, Nangal Raya, New Delhi inasmuch as the sale documents executed in favour of the appellant by the defendant no.1/respondent no.1 in RSA 203/2010 (respondent no.7 in RSA 205/2010). Agreement to sell(Ex.PW1/2), General Power of Attorney (Ex.PW1/3) and Will (Ex.PW1/6) dated 29.8.1995 cannot confer absolute ownership because respondent no.1-defendant no.1 was only one of the coowners of the suit property and that the co-owners and the appellant/plaintiff failed to prove that any partition of the suit property had taken place and the suit property fell to the share of the respondent no.1/defendant no.1.

2. The appellate court in this regard has held as under:- “ The respondent No. 1 in his cross examination has admitted that no written partition had taken place regarding the suit property between thelegal heirs of late Sh. Sham Singh. He has also admitted that all his brothers and sisters are co owner of the property left behind by late Sh. Sham Singh. Ld. Counsel for the appellant has failed to point out any material on record to substantiate his arguments that oral settlement had taken place between the legal representatives of late Sh. Sham Singh whereby the suit property had come to the share of respondent No. 1. It is a trite law that a joint family property cannot be sold by one one of the co-owner and no title can be transferred when such a transfer is made without the consent of other co sharers. The reliance of the Ld. Trial Court on Lachhman Prasad Vs. Satname Singh, AIR 1917 PC 41 and Baldev Singh Vs. Smt. Darshani Devi reported in AIR 193 HP 141 is well placed in this regard.”

3. I time and again put it to counsel for the appellant to show me as to how the respondent no.1-defendant no.1 proved any partition for the suit property to be exclusively owned by him so that the same could be transferred to the appellant-plaintiff, however, admittedly there is no document of partition and a mere oral partition without the same having been acted upon is no proof of any oral partition having taken place. In fact, if I accept the stand of the appellant/subsequent purchaser then effectively fraud will be permitted upon the other co-owners of the property. It may be that respondent no.1 played a fraud upon the appellant by claiming that he was the sole owner of the suit property in view of the oral partition, but it was for the appellant to ensure the validity of title of the respondent no.1 for purchasing the suit property from him. In case appellant feels that he has been defrauded by the respondent no.1-defendant no.1 it will always be open to the appellant to initiate against the respondent no.1, all proceedings as available in law, both criminal and civil.

4. In view of the above, I do not find any substantial question of law arising once the factum of partition is not established on record for the respondent no.1 to have become the exclusive owner of the suit property and accordingly being sold to the appellant for him to become exclusive/sole owner of the suit property. Therefore, appellant/plaintiff cannot claim exclusive ownership of the suit property inasmuch as even the respondent no.1-defendant no.1 was not the exclusive owner of the suit property.

5. The appeals are therefore dismissed, leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J FEBRUARY 10, 2014 godara