Vipula Chandhok & Ors. v. Kulbir Singh Chandhok & Ors.

1. The present Application has been filed on behalf of the applicants/plaintiffs, u/O XII Rule 6 r/w Section 151 of Code of Civil Procedure, 1908, (hereinafter to referred to as “CPC, 1908”) seeking judgment on admission against the defendants of their Suit for Partition, Declaration and Cancellation of Sale Deeds dated 10.04.2015.

2. Admittedly, predecessor-in-interest of the parties, Late Shri Man Singh Chandhok was the sole and absolute owner of the entire Property bearing B-39, Greater Kailash Part-I, New Delhi admeasuring 836.12 sq. meters (which is 1000 sq. yards approximately) (hereinafter referred to as the “suit property”).

3. Late Shri Man Singh Chandhok, though had four sons and one daughter, but during his lifetime, executed a registered Gift Deed dated 27.10.2008, gifting and absolutely bequeathing the undivided and unpartitioned suit property equally to his three sons namely, Late Shri. Daljit Singh Chandhok, Shri Gurcharan Singh Chandhok and Shri Kulbir Singh Chandhok and their respective branches who collectively became the owners of 1/3rd undivided rights in the land and building of the suit property. The plaintiff Nos. 1 to 4 became the joint occupants of the first floor of the suit property; the plaintiff Nos. 5, plaintiff no. 6 and defendant no. 5 jointly occupied the second floor of the suit property while the defendant Nos. 1 to 4 jointly occupied the ground floor of the suit property.

4. The Pedigree of the family representing the relationship is as under: -

5. The shares gifted to the members of the family by virtue of the Gift Deed dated 27.11.2008 are as under:- Name of family member/ party Undivided share Rights of User Branch of Late Sh. Daljit Singh Chandhok ( 1/4th of 1/3th each) P-1 Vipula Chandhok 1/12th or 8.33% First Floor P-2 Gundeep Singh Chandhok 1/12th P-3 Paramdeep Singh Chandhok 1/12th P-4 Tanveerdeep Singh Chandhok 1/12th Branch of Sh. Gurcharan Singh Chandhok (1/3rd of 1/3rd each) P-5 Gurcharan Singh Chandhok 1/9th or 11.11% Second Floor P-6 Ravinder Singh Chandhok 1/9th D-5 Jasmit Singh Chandhok 1/9th Branch of Sh. Kulbir Singh Chandhok (1/4th D-1 Kulbir Singh Chndhok 1/12th or 8.33% Ground Floor D-2 Amardeep Singh Chandhok 1/12th D-3 Karandeep Singh Chandhok 1/12th D-4 Armaan Singh Chandhok 1/12th

6. Thus, as per the said Gift Deed, in no uncertain terms, it was unequivocally stated by Late Mr. Man Singh Chandhok that undivided rights in the proportions stated therein were gifted while they were put in possession of the specific portions and also indicated the common areas as marked in the map annexed to the said Gift Deed.

7. Admittedly, Late Shri Man Singh Chandhok also executed a registered Will dated 16.11.2008, wherein the earlier executed Gift Deed dated 27.10.2008 was also mentioned and acknowledged.

8. Sardarni Devinder Kaur Sabarwal, daughter of Late Shri Man Singh Chandhok, during the life time of her father, filed the Civil Suit bearing No. CS(OS) 2484/2007 claiming the partition in the suit property. The Suit was contested by Late Shri Man Singh Chandhok as well as plaintiff Nos. 2 to 5 and defendant No. 1 who filed a joint Written Statement, wherein it was reaffirmed that the suit property was the individual property of Late Shri Man Singh Chandhok. The said suit was dismissed as withdrawn by Sardarni Devinder Kaur Sabarwal on 11.07.2008.

9. After the execution of the Gift Deed dated 27.10.2008, a Memorandum of Family Settlement dated 16.11.2008 was also executed to which Late Shri Man Singh Chandhok was also a party along with all the family members/parties to the Suit and they all unequivocally and specifically accepted that the suit property was the self-acquired exclusive property of Late Shri Man Singh Chandhok. Even Sardarni Devinder Kaur Sabarwal acknowledged the Gift Deed dated 27.10.2008 executed by Late Shri Man Singh Chandhok in respect of the Suit Property in this Memorandum of Family Settlement dated 16.11.2008.

10. Shri Man Singh Chandhok died on 30.01.2009, after which another Civil Suit bearing No. CS(OS) 1033/2009 was filed by Sardarni Devinder Kaur Sabarwal and her husband and their daughter against all the parties herein, except defendant No.4, in which the implementation of the Memorandum of Family Settlement dated 16.11.2008 was sought. All the parties arrived at an Agreement and filed the joint Application wherein the Gift Deed dated 27.10.2008 was again reaffirmed and acknowledged by all the parties, and the suit was disposed off.

11. Thus, it is claimed that the Gift Deed is an accepted, acknowledged, admitted and acted upon document by all parties concerned.

12. After the demise of Late Shri Man Singh Chandhok, the documents for Mutation were filed jointly by the parties herein before the Assistant Assessor and Collector, Municipal Corporation of Delhi, Lajpat Nagar, which reflects that the property remained undivided.

13. Thereafter, the defendant No. 2-Amardeep Singh Chandhok and defendant No.3-Karandeep Singh Chandhok filed a Civil Suit bearing No. CS(OS) 2672/2013 titled Amardeep Singh Chandhok and Another vs. Kulbir Singh Chandhok and Others somewhere around 16.12.2013 which was collusive Suit, wherein it was claimed that partition of the ground floor of the suit property has been effected. The plaintiffs relied on the Gift Deed dated 27.10.2008 and sought partition of the suit property in unequivocal terms. However, there was no mention that the suit property stood partitioned and it was admitted that they were merely occupants of the ground floor and the defendant No. 2 and 3 therein accepted that they had undivided rights along with defendant Nos. 1 and 2 in the suit property. Despite admitting the Gift Deed dated 27.10.2008, the defendants wrongly sought partition of ground floor of the suit property in collusion with the defendant Nos. 1 and 4 in order to subvert the Gift Deed and the Will of Late Shri Man Singh Chandhok.

14. During the pendency of this Civil Suit Amardeep Singh Chandhok and Karandeep Singh Chandhok, the defendant Nos. 2 and 3 in the present Suit, sold their entire share in the suit property vide two registered Sale Deeds both dated 09.04.2015 and registered on 10.04.2015, for a consideration of Rs. 1,82.50.000/- executed in favour of the defendant NO. 1-Kulbir Singh Chandhok and defendant No.4-Armaan Singh Chandhok respectively.

15. The plaintiffs have claimed that the alleged sale so made by the defendant Nos. 2 and 3 was contrary to the conditions imposed in the Gift Deed dated 27.10.2008 and no Sale Deeds could have been executed by the defendant Nos. 2 and 3 respectively in respect of their respective undivided shares to the defendant Nos. 1 and 4, especially as the property till date is undivided and unpartitioned.

16. Thereafter, an Application bearing I.A.7225/2015 seeking Decree of Compromise under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 on the basis of the two Sale Deeds dated 09.04.2015 was filed but the Application never got allowed and remained pending while the case got transferred to the District Court, Saket.

17. This Court vide its Order dated 27.04.2015 in CS(OS) No. 2672/2013 directed that the status quo be maintained. Thereafter, Application bearing Nos. I.A. 13197/2015 and I.A. 13253/2015 were filed in CS(OS) 2672/2013 in regard to the access to the common areas which got allowed vide Order dated 15.07.2015 directing removal of the locks to permit free access of the garden to the children who may desire to play there.

18. The defendant Nos. 1 and 4 aggrieved by the Order dated 15.07.2015 filed the First Appeal bearing No. FAO(OS) bearing No. 402/2015 before the Division Bench of this Court. While hearing arguments in the said FAO, the Division Bench of this Court vide its Order dated 25.08.2015 observed that the parties were bound by the Gift Deed dated 27.10.2008 and that Kulbir Singh Chandhok and his minor son, Armaan Singh Chandhok together held 1/3rd undivided share in land and building of this suit property.

19. Again, the Division Bench in its Order dated 10.05.2016, unequivocally held that the property was undivided and all the parties had undivided rights as per the shares specified in the Gift Deed dated 27.10.2008. It was also observed that the two Sale Deeds cannot confer any right on defendant Nos. 1 and 4 over and above what has been given to them under the Gift Deed dated 27.10.2008. It was also observed that the Sale Deeds were not binding on the other brothers and their family members who were neither signatory to the Sale Deeds nor the conforming parties.

20. The plaintiffs have claimed that these two Sale Deeds are void/voidable and deserve to be cancelled. The plaintiffs and the defendant No. 5 have valuable rights in the suit property. The defendant Nos. 1 to 4 have perpetuated fraudulent conduct to usurp the entire ground floor of the suit property, including the lawn thereon and, therefore, are attempting to illegally derive a significant advantage over other owners and occupants, both financially and in terms of physical areas.

21. Another Civil Suit bearing No. 308/2015 titled Kulbir Singh Chandhok vs. Vipula Chandhok was filed in the District Court, Saket on 05.08.2015 by defendant Nos. 1 and 4 against plaintiff Nos. 1 to 4 claiming themselves to be the owners of Ground Floor of the suit property.

22. Thus, it is contended that from the various litigations mentioned above, it is established that the admissions of the parties which are binding in nature, establish that the two Sale Deeds dated 09.04.2015 are void/voidable in law.

23. Hence, it is submitted that since there is no dispute in regard to the enforceability of the Gift Deed dated 27.10.2008 and in the light of admissions, the Suit of the plaintiffs for partition and Cancellation of Sale Deeds be decreed.

24. The defendant No. 1 and defendant No. 4 in their respective Reply have contended that there are no unequivocal, clear and unambiguous admissions entitling the plaintiffs a Decree on Admissions. There are fundamental issues of limitation and pecuniary jurisdiction which needs to be adjudicated before any Decree is passed.

25. Furthermore, the Application is predicated on the Orders passed in an Appeal against the interim order. The Civil Suit from where the Orders and Appeal emanated, has already been dismissed. Thus, all the Orders passed either in the Suits or in the proceedings in Appeal have merged into the dismissal Order. Moreover, no findings on facts were returned in any of the proceedings.

26. Furthermore, the Written Statement has been filed by the defendants, but no original documents have been placed on record by the plaintiffs of which admission/denial could be done. There is a serious dispute qua enforceability of Gift Deed dated 27.10.2008 as the parties are at variance about the contents of the Gift Deed and the Will, which cannot be read in isolation. The act of partition followed by transfer of possession of respective portions, has to be considered alongside the circumstances that have been in existence since 1997. After the execution of the Gift Deed dated 27.10.2008, the parties confirmed their status as owners of their respective partitioned portions. The principle of estoppel comes into play and the plaintiffs are now stopped from pleading or agitating anything else.

27. Therefore, it is submitted that the present application is without merit and is liable to be rejected.

28. The defendant Nos. 2 and 3 have not contested the Suit and were proceeded ex parte vide Order dated 29.10.2018.

29. Learned counsel for the plaintiffs has addressed the oral arguments as well as filed the Written Submissions re-emphasising that the execution of the registered Gift Deed dated 27.10.2008 by Late Man Singh Chandhok, is not in dispute and is admitted in unequivocal terms.

30. The parties to the Suit became the owners of undivided share in proportions as was detailed in the Gift Deed dated 27.10.2008.

31. The defendant Nos. 1 and 4, therefore, jointly inherited only 1/3rd share in the suit property and their share was defined as 1/12th each. The impugned Sale Deeds dated 10.04.2015 are self-serving documents which cannot affect the rights of other family members.

32. Even the orders of the Division Bench of this Court in FAO(OS) 402/2015 are re judicata and any attempt by the defendants is nothing but an abuse of the process of the Court.

33. The defendant Nos. 2 and 3 have already been proceeded ex parte. The defence taken by the defendant Nos. 1 and 4 is fictitious and seeks to invite the findings already given by the Division Bench of this Court which has attained finality and requires no trial. This is more so since the Order dated 25.08.2015 was a Consent Order which got confirmed in Order dated 10.05.2016.

34. The plaintiffs have placed reliance on the decisions in Raj Gopal (HUF) vs. State Bank of India, 79 (1999) DLT 229, Raveesh Chand Jain vs. Raj Rani Jain, (2015) 8 SCC 428, Vinay Kuar Aggarwal vs. Radha Aggarwal, 227 (2018) DLT 45, Guddi Devi & Ors. vs. Neelam Devi, 239 (2017) DLT 593, Uttam Singh Dugal and Co. Ltd. vs. Union of India, AIR 2000 SC 2740 and Nagindas Ramdas vs. Dalpatram Ichhram and Ors., AIR 1974 SC 471.

35. The learned counsel for defendant no. 5 (proforma defendant) in his Written Submissions has supported the Application under O XII Rule 6 of the plaintiffs. He has highlighted that there were three rounds of litigation undertaken by the parties which are as under: -

(i) CS(OS) 2484/2007 filed by Sardarni Devinder Kaur Sabarwal, daughter of Late Shri Man Singh Chandhok claiming partition which was subsequently withdrawn on 11.07.2018,

(ii) CS(OS) 1033/2009 filed by Sardarni Devinder Kaur Sabarwal in respect of the estate of Late Shri Man Singh Chandhok seeking enforcement of the Memorandum of Family Settlement dated 16.11.2008 which was settled in terms of the joint application, especially recording that the suit property has been given by way of registered Gift Deed dated 27.10.2008,

(iii) CS(OS) 2672/2013 filed by the defendant Nos. 2 and 3 against the other co-owners which also eventually got dismissed.

36. It is argued that despite this clear position of there being no partition by metes and bounds, the family of Kulbir Singh Chandhok behind the back of other co-owners have executed the two Sale Deeds which are in respect of the specific portion of the suit property which is beyond their entitlement.

37. Defendant no. 1 and 4 had taken a plea that the superstructure of the building on the land already stood partitioned by metes and bounds in the year 1998 on the death of Daljit Singh Chandhok (one of the sons of Late Shri Man Singh Chandhok) amongst co-owners and is incapable of any other partition.

38. The claim is untenable in light of the admitted position that the suit property was the self-acquired property of late Sh. Man Singh Chandhok who gifted the same to the parties in 2008, thus, there is no question of any partition in 1998 and no contention to the contrary can be made.

39. It is submitted that there are no admissions made by the defendants entitling the plaintiffs to a Decree on Admissions.

40. Submissions heard and the record perused.

41. The factual matrix in the present case is not in dispute. Late Shri Man Singh Chandhok admittedly was the exclusive and individual owner of the suit property. He had four sons namely, Swinder Singh Chandhok, Daljit Singh Chandhok, Gurcharan Singh Chandhok and Kulbir Singh Chandhok and one daughter Devender Kaur Sabharwal.

42. By virtue of a Registered Gift Deed dated 27.11.2008, late Sh. Man Singh Chandhok, gifted the undivided/un-partitioned suit property to the branches and legal heirs of Late Sh. Man Singh Chandhok’s three sons, namely, Daljit Singh Chandhok, Gurcharan Singh Chandhok and Kulbir Singh Chandhok in equal 1/3rd share to each branch.

43. Shri Daljit Singh Chandhok pre-deceased Late Shri Man Singh Chandhok and was survived by Smt. Vipula Chandhok, Gundeep Singh Chandhok, Paramdeep Singh Chandhok and Tanveerdeep Singh Chandhok, who are the four plaintiffs.

44. The second son, Sh. Gurcharan Singh Chandhok, has two sons, namely, Ravinder Singh Chandhok (plaintiff No. 6) and Jasmit Singh Chandhok (defendant No. 5 herein).

45. The third son, Kulbir Singh Chandhok, has two sons from his first wife i.e., Amardeep Singh Chandhok and Karandeep Singh Chandhok and they are defendant Nos. 2 and 3. The defendant No. 4-Armaan Singh Chandhok, the son, of Kulbir Singh Chandhok, from the second marriage.

46. The Gift Deed dated 27.10.2008 determined the undivided share of each of the parties in the manner and proportion as reflected in Clause 1 of the Gift Deed which reads as under: -

Part-I, New Delhi, absolutely to the said donees to have and hold the same as beneficial owners thereof in the manner and to the extent and subject to the conditions stated hereunder: - (a) My son Shri Gurcharan Singh Chandhok and his two sons (my grandsons) namely Shri Jasmit Singh Chandhok and Shri Ravinder Singh Chandhok, so that the share of each of the forenamed shall be 1/9th (one-ninth) of the undivided plot and building and the aggregate of the 3 (three) forenamed shares shall be 1/3rd (one-third) of the undivided plot and building. (b) My three grandsons (sons of my Late S.Daljit Singh Chandhok) Shri Gundeep Singh Chandhok, Shri Paramdeep Singh Chandhok, Shri Tanveerdeep Singh Chandhok and my daughter-in-law (wife of my son late S.Daljit Singh Chandhok) Smt Vipula Chandhok so that the share of each of the forenamed shall be 1/12th (one twelveth) of the undivided plot and building and the aggregate of the 4 (four) forenamed shares shall be 1/3rd (one-third) out of the undivided plot and building.

(c) My son Shri Kulbir Singh Chandhok and his three sons (my grandsons) namely Shri Amardeep Singh Chandhok, Shri Karandeep Singh Chandhok and Shri Armaan Chandhok so that the share of each of the aforenamed shall be 1/12th (one twelveth) of the undivided plot and building and the aggregate of the 4 (four) forenamed shares shall be 1/3rd (one-third) out of the undivided plot and building.”

47. It is discernible that the branch of Late sh. Daljit Singh Chandhok, together got 1/3rd undivided share which got equally divided between his four legal heirs, who got 1/4th of 1/3rd share i.e. 1/12th each in the share of Daljit Singh Chandhok.

48. Likewise, second son Gurcharan Singh Chandhok and his two sons together got 1/3rd undivided share i.e.1/3rd of this 1/3rd share making them entitled to 1/9th share each.

49. The third son, Kulbir Singh Chandhok and his two sons together got 1/3rd undivided share i.e. each got 1/4th of the 1/3rd share which comes to 1/12th share each in the suit property.

50. Evidently, by virtue of the Gift Deed dated 27.10.2008, each of the parties got a defined undivided share in the undivided plot and building as detailed above.

51. The second aspect which needs determination is whether the property was partitioned by metes and bounds or was there merely a demarcation only for purposes of use and occupation of portions of the property for the convenience of all the members of the family. For this, reference is made to Clause 3 of the Gift Deed dated 27.10.2008 reads as under: - “3. The possession of the said property has been handed over to the Donees are occupying and using the same as follows:

(i) Shri Gurcharan Singh Chandhok and his two sons

Shri Jasmit Singh Chandhok and Shri Ravinder Singh Chandhok are in occupation and use of the second floor of the main building, one third of the basement area and two servant quarters on the second floor of the garage block and its terrace as marked in yellow in the plan attached. They are also permitted to use the entrance from the main road on the south side gate upto the access of basement for parking their cars.

(ii) Shri Gundeep Singh Chandhok, Shri Paramdeep

Singh Chandhok, Shri Tanveerdeep Singh Chandhok and Smt. Vipula Chandhok are in occupation and use of the first floor of the main building, one third of the basement area and garage no. 1 (on the south side) on the ground floor of the garage block as marked in green in the plan attached.

(iii) Shri Kulbir Singh Chandhok, Shri Amardeep Singh

Armaan Chandhok are in occupation and use of the ground floor of the main building, front lawn, rear terrace over basement, one third of the basement area and two servant quarters on the first floor of the garage block as marked in red in the plan attached.

(iv) The area which is in common use is shaded in brown in the plan attached and no one shall have right to place separate locks, over whole or part of the said common area and deny use of the space to others. My son Gurcharan Singh Chandhok and his family members and sons of my son Late Daljit Singh Chandhok namely Gundeep Singh Chandhok, Paramdeep Singh Chandhok and Taranveerdeep Singh Chandhok can use the lawn at ground floor only if they have any function in their house provided they should leave the lawn clean and in good order and condition.”

52. Evidently the rights to use/reside and occupy certain portions were defined of each member along with the common areas, which is depicted in the table below for the sake of clarity:- Name of family member/ party Rights of User/Occupation C O M M O N A R E A Branch of Late Sh. Daljit Singh Chandhok ( undivided share 1/12th each) P-1 Vipula Chandhok First floor + 1/3rd of basement area + Garage no. 1 (ground floor) P-2 Gundeep Singh Chandhok P-3 Paramdeep Singh Chandhok P-4 Tanveerdeep Singh Chandhok Branch of Sh. Gurcharan Singh Chandhok ( undivided share 1/9th each) P-5 Gurcharan Singh Chandhok Second floor + 1/3rd + 2 servant quarters (second floor of the garage block) + its terrace. + permission to use the entrance from the main road on the south side gate up to the access of basement for parking their cars P-6 Ravinder Singh Chandhok D-5 Jasmit Singh Chandhok Branch of Sh. Kulbir Singh Chandhok ( undivided share 1/12th each) D-1 Kulbir Singh Chandhok Ground floor + 1/3rd + 2 servant quarters (first floor of the garage block) + rear terrace over basement + front lawn (can be used by others for functions) D-2 Amardeep Singh Chandhok D-3 Karandeep Singh Chandhok D-4 Armaan Singh Chandhok

53. The Clause 3 of the Gift Deed begins with “The possession of the said property has been handed over to the Donees, who are occupying and using the same as follows:” It is clear from this opening sentence itself that the property always remained in joint possession of the parties and they had merely been in “possession” of the respective portions in the suit property which was not adverse or hostile to the rights of each other. Mere occupation/ possession of certain portions of the suit property, cannot be termed as partition by metes and bounds. The terms of the Gift Deed do not suffer from any ambiguity in so much as while defining the undivided shares in the suit property, in order to avoid any disputes in future, the portions in which the sons were in possession were defined, but that was only the possession and not the partition by metes and bounds.

54. Though assumption of exclusive portions is a significant factor to prove the factum of partition, but in the present case there is no demarcation that there was not even a clear floor-wise division. Evidently, though Plaintiff no.1-4 were permitted to use and occupy the first floor, they were also permitted to use the garage on the ground floor. The ground floor though was permitted to be occupied by the Defendant no. 1-4, they were also permitted to use the 2 servant quarters on the first floor. All the members were permitted to use the front lawn for functions which the Defendant no. 1-4 were occupying. This, is further supported by Clause 3(iv) which provides that common areas could have been accessed by all the members and no party had any exclusive right to put locks or gates over the same. All these circumstances, when viewed in toto, reflect that there was unity of possession and the Gift Deed only provided an occupational arrangement of the portions which cannot be termed as a partition. The parties occupied different portions of the property but neither was the status severed nor were the parties dealing with their portions separately or exclusively and there always remained unity of possession.

55. The defendants have on the site plan annexed to the Gift Deed dated 27.10.2008 which was prepared in distinct colours and was signed and accepted by all wherein each portion of the superstructure to be in possession of the parties was shown distinctly, to contend that the partition took place by metes and bounds. It is further argued that not only was the partition accepted by all of them but they all acted accordingly and represented themselves to be the owners of their respective partitioned portions.

56. However, this contention is completely belied by the clear terms of the Gift Deed dated 27.10.2008. Had there been an intention of giving the respective floors as detailed in Clause 3 of the Gift Deed dated 27.10.2008 to the three sons/their families and then there would not have been two separate clauses viz., Clauses 1 and 3 but it could have been simply mentioned that the three respective floors go to the three sons and or their family members.

57. In this regard, it would be pertinent to refer to Clause 2 of the Gift Deed which reads as under: -

Paramdeep Singh Chandhok and Tanveerdeep Singh Chandhok and my daughter-in-law (wife of my son late S.Daljit Singh Chandhok) namely Mrs. Vipula Chandhok so that the share of each of the forenamed is 1/12th (onetwelveth) of the sale proceeds and the aggregate of 4 (four) forenamed shares is 1/3rd (one-third) out of the total amount of sale proceeds.

(c) My son Shri Kulbir Singh Chandhok and his three sons (my grandsons) namely Shri Amardeep Singh Armaan Chandhok so that the share of each of the aforenamed is 1/12th (one-twelveth) of the sale proceeds and the aggregate of the (four) forenamed shares is 1/3rd (one-third) out of the total amount of sale proceeds.”

58. The bare reading of the Clause 2 also reflects that Late Shri Man Singh Chandhok had clearly stipulated that there was no distinction made in respect of any specific portion of any specific sale proceeds inter se the three brothers and the family, except defining their shares to the extent of 1/3rd undivided share in the land and building. The sale proceeds were also equated to be 1/3rd share in respect of each son to be then distributed equally amongst the family members of three sons in the ratio defined therein. No special equities or rights created in favour of any of the three brothers in the Gift Deed dated 27.10.2008; mere possession of respective portions as detailed in the Gift Deed dated 27.10.2008 was given which did not amount to partition by metes and bounds.

59. Thus, from the comprehensive reading of Clauses 1, 2 and 3 of the Gift Deed dated 27.10.2008 that firstly, while the undivided shares in the suit property were defined but there was no inter-se partition which took place. The undivided shares of each of the parties to the Suit were defined specifically in the Gift Deed dated 27.10.2008 only to ascertain who will get how much share if the property is sold. Secondly, there was no partition by metes and bounds as the Gift Deed clearly, categorically and in unequivocal terms mentioned each of the beneficiaries and only the possession and rights of user of the portions was specified under the Gift Deed dated 27.10.2008.

60. That the parties also had no confusion that there was no partition of the property which continued to be joint, is also evident from their subsequent conduct.

61. The reference may be made is the undertakings given by Karandeep Singh Chandhok (defendant No. 2 herein) and Armaandeep Singh Chandhok (defendant No. 3 herein) annexed in the Civil Suit No. CS(OS) 2672/2007 filed by Karandeep Singh Chandhok (defendant No. 2 herein) and Armaandeep Singh Chandhok (defendant No. 3 herein) for Partition of the suit property, Declaration and Rendition of Accounts. They, in their respective undertakings clearly stated that “I undertake that I am not the owner of any specific/undivided portion of the property and only have living rights in the property. Only on sale of the property, my share has been defined as 8.33% in terms of the Gift Deed. I further undertake that I will not create any third party interest or enter into any arrangement of sale, mortgage etc., creating any right in favour of any party in any manner in respect of the property”.

62. These undertakings further reinforces that even as per the defendant Nos. 2 and 3, no partition by metes and bounds ever took place and they only were the owners of undivided share to the extent of their respective shares as provided in the Gift Deed.

63. Another admitted document to which a reference may be made is CS(OS) 2484/2007 filed by Sardarni Devinder Kaur Sabarwal against her father and three brothers. All the parties in the present Suit who were arrayed as defendants in the said Suit filed a joint Written Statement dated 14.03.2008 which was supported by the affidavit of Kulbir Singh Chandhok. In their Written Statement they had clearly acknowledged that the said suit property was self-earned property of Late. Sh. Man Singh Chandhok exclusively owned by him and there was no plea of either partition or exclusive rights being created in favour of any party taken by them.

64. This suit was dismissed as withdrawn and all the issues in the suit was were put to rest by way of an accepted and acted upon Memorandum of Family Settlement dated 16.11.2008, which is another admitted document, signed by all the parties and also by some confirming parties.

65. The said admitted Family Settlement had Annexure 1 which gave the list of properties owned and possessed by Late Shri Man Sing Chandhok i.e., Property No. E-132, Kamala Nagar, New Delhi and Flat No. 101 at Vikram Tower, First Floor, Rajindra Place. The Annexure II is a significant document which gave the list of the properties owned and possessed by Gurcharan Singh Chandhok (the plaintiff No. 5), Kulbir Singh Chandhok (defendant No. 1), Gundeep Singh ChandhoK (plaintiff No. 2), Paramdeep Singh Chandhok (plaintiff No. 3) and Tanveerdeep Singh Chandhok (plaintiff No. 4). Pertinently, there was no mention of the suit property and thus, the natural corollary would be that had they become exclusive owners of specific portions of which they were in possession by virtue of any partition, they would have mentioned it in the Annexure II against the names of the parties.

66. The very fact that Annexure II of Memorandum of Family Settlement which clearly delineates the properties owned and possessed by the parties to the Suit, does not find the mention of suit property leads to an irresistible conclusion that, in fact, no partition by metes and bounds as claimed by the defendant Nos. 1 and 4, ever took place in regard to the suit property.

67. The next document which is not again in dispute and is of significance is the Judgment dated 10.05.2016 passed in FAO(OS) 402/2015 titled Kulbir Singh Chandhok & Anr. vs. Amardeep Singh Chandhok & Ors., emanating from an interim Order made in the Civil Suit bearing No. CS(OS) 2672/2013 filed by Karandeep Singh Chandhok (defendant No. 2 herein) and Armaandeep Singh Chandhok (defendant No. 3 herein).

68. While it has been contended that the main Suit got withdrawn and the interim Orders and any judgment made in the context of any interim orders would not be of any consequence, however, there were certain statements made in the Court by the parties which cannot be discarded or discounted as the parties who make any statement in any proceedings before the Court are bound by them on the principle of estoppel. On the merits, the Suit may have been allowed or disallowed, but that is irrespective of the statements which admittedly got made in the proceedings.

69. In the Order dated 10.05.2016, it was observed as under: -

the land and building comprised therein. An admission was made that the appellants together were owners of 1/3rd undivided share in the land and building in property No. B-39, Greater Kailash, Part-I, New Delhi. Proposals were exchanged for inter se sale of the respective shares. The following statement was recorded and order was passed on 25.08.2015:- “The learned counsel for the appellants states that as of now the appellants together are owners of 1/3rd undivided share in the land and building comprised in property No. B-39, Greater Kailash, Part - I, New Delhi. Similarly Sh. Gundeep Singh Chandhok, Sh.Paramdeep Singh Chandhok, Sh. Tanveerdeep Singh Chandhok and Smt. Vipula Chandhok together are owners of 1/3rd undivided share in the said land and building. Furthermore, Sh. Gurcharan Singh Chandhok and his two sons Sh. Jasmeet Singh Chandhok and Sh. Ravinder Singh Chandhok are together owners of 1/3rd undivided share in the land and building of the said property. Insofar as Sh. Kulbir Singh Chandhok and his minor son (Arman Chandhok) [the appellants herein] are concerned, they have the exclusive right of occupation and use of the ground floor of the main building, front lawn, rear terrace over the basement, 1/3rd of the basement area and two servant quarters on the first floor of the garage block as marked in red in the plan attached to the Gift Deed dated 27.10.2008[5], a copy of which is annexed as Annexure A-1. The use and occupation rights of the other 2/3rd share owners are also as per the said Gift Deed. We may also point out that all the parties in the present proceeding are agreed that they are bound by the Gift Deed dated 27.10.2008. We may point out that Sh. Kulbir Singh Chandhok has purchased the shares of Sh. Amandeep Singh Chandhok and Sh. Karandeep Singh Chandhok who are his sons and thereby the said sons have no right, title or interest left in the said property. It is also clearly understood that whatever the sale deeds with regard to the purchase of the shares of Sh. Amandeep Singh Chandhok and Sh. Karandeep Singh Chandhok may state, the position as it obtains today is that Sh. Kulbir Singh Chandhok and Sh. Arman Chandhok (the minor son of Sh. Kulbir Singh Chandhok) together hold an undivided 1/3rd share in the land and building of the said property. The learned counsel appearing for the other 2/3rd shareholders in the said property submit that they are agreeable to sell their shares to the appellants subject to them getting a reasonable offer from the appellants. The learned counsel for the appellants seeks some time to consider this proposal. All the above statements have been made and recorded in the presence of the parties. Renotify on 13.10.2015. On that date also all the concerned parties shall be present in court.”

70. Though on the subsequent date, the counsel for Kulbir Singh Chandhok, son of defendant No. 1 sought to resile from the statements made on the earlier date by claiming that there was a typographical error as no such statement admitting the shares to be undivided in the suit property was sought to be made. The Division Bench observed that not only were the statements recorded correctly on 25.08.2015, but the statements were admittedly made in the presence of the parties. A reference was also made to the Affidavit of the appellant/defendant No. 1 herein which was strangely drafted and did not support the contentions made in the Application under Section 152 of CPC, 1908 for seeking rectification of the statements recorded in the Court on 25.08.2015. It was thus, held that the parties clearly admitted that no physical partition of the suit property had ever taken place.

71. Another set of important documents is the Mutation Application dated 27.02.2009 submitted before the Municipal Corporation of Delhi, Lajpat Nagar, Delhi. This Mutation Application is also signed by all the co-owners i.e., the plaintiffs and the defendants and they jointly requested for the property to be mutated in their name.

72. The very fact that the Mutation Application was filed jointly and not by the parties in respect of their respective shares, confirms that, in fact, there was no partition which ever took place by metes and bounds nor did the Gift Deed divided the property by metes and bounds as is sought to be alleged by the defendants.

73. The discussions and the documents referred above leads to a clear and unequivocal situation indicating not only from the explicit terms of the Gift Deed but also other documents, that no partition of the suit property ever took place by metes and bounds and each of the parties to the suit are entitled to the undivided shares in the entire property as indicated therein.

74. The defendants have taken a plea that the suit property got partitioned in the year 1998 but this cannot be accepted because if the property had got partitioned in the year 1998, the Gift Deed dated 27.10.2008 could not have possibly been executed. The genuineness of the Gift Deed has been admitted by all the parties and its contents are admitted and not disputed by any of the parties. This Gift Deed itself bellies the plea of there ever having a partition of the suit property.

75. Thus, it is concluded that there was no partition of the suit property. Cancellation of Sale Deeds:

76. The other challenge is to the two Sale Deeds dated 10.04.2015 that the defendant Nos. 2 and 3 have executed selling their respective share of 1/12th i.e., 8.33% in the suit property in favour of the defendant Nos. 1 and 4 respectively.

77. A perusal of the Deeds show that it is erroneously mentioned therein that Kulbir Singh Chandhok and his family members were put into the possession of the partitioned portion to the exclusion of all others. This assertion contained in the Sale Deeds is patently incorrect and contrary to the factual situation which is admitted by the parties, as discussed above.

78. The question which now arises is whether the two Sale Deeds selling 1/12th share each of defendant Nos. 2 and 3 in favour of the defendant Nos. 1 and 4 respectively, are null and void as is asserted by the plaintiffs.

79. It is significant to observe that there is no denying that the defendant Nos. 2 and 3 got 1/12th undivided share respectively in the suit property. There may be an erroneous recitation in the Sale Deeds that it is in respect of the partitioned ground floor but in the light of the discussion as held above, it is evident that 1/12th share was in the entire suit property and not in any specific portion or ground floor as is claimed by the defendants.

80. Having found the recitation in the Sale Deeds as incorrect, what now needs to be considered the consequence of such erroneous recitation.

81. It quite evident from the entire conspectus of facts and in light of the events as happened over a period, that the defendant no. 2 and 3, bonafide executed the sale deeds, though under the wrong assumption that they are exclusive owners of their 1/12th share in respect of defined portion as mentioned in the Sale Deed. Be that as it may, the defendant Nos. 2 and 3 had a clear intention to sell their shares whatever they may be, to defendant Nos. 1 and 4 and having done so, they have made an exit from the suit property. This is further strengthened by the fact that the defendant Nos. 2 and 3 have not contested the present Suit.

82. In such circumstances, the doctrine of Feeding the Grant by Estoppel, assumes significance. The legal principle is primarily related to transfer of property in cases where the transferor does not have title to the property at the time of transfer but acquires it subsequently.

83. This doctrine is codified in Section 43 of the Transfer of Property Act, 1882 provides for “Transfer by unauthorised person who subsequently acquires interest in property transferred” and states that Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

84. By virtue of section 43, operating as the principle of equitable estoppel, a transferee is allowed to claim the benefit of the transfer once the transferor subsequently acquires title to the property, provided the transferee was acting in good faith and for a valid consideration.

85. Jumma Masjid v. Kodimaniandra Deviah 1962 SCC OnLine SC 157 is a landmark judgment that elucidates the application of Section 43 TPA, wherein the court safeguarded the rights of good faith purchasers by observing that the section clearly applies whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting. There is an exception in favour of transferees for consideration in good faith and without notice of the rights under the prior transfer. But apart from that, the section is absolute and unqualified in its operation. It applies to all transfers which fulfil the conditions prescribed therein, and it makes no difference in its application, irrespective of how the defect of title in the transferor arises.

86. Thus, for the purpose of Section 43 it matters not whether the transferor acted fraudulently or innocently in making the representation, rather the only material aspect is that he did make a representation and the transferee has acted on it. Where the transferee knew as a fact that the transferor did not possess the title which he represents he has, then be cannot be said to have acted on it when taking a transfer. But where the transferee does act on the representation, there is no reason why he should not have the benefit of the equitable doctrine embodied in Section 43 TPA.

87. Applying the above principles in the present case and considering that the Defendant No. 2 and 3 had executed the two Sale deeds dated 10.04.2015, on the premise that they were absolute owners of the 1/4th share of 1/3rd share, each, and the defendant no. 1 and 4 also paid the consideration under the belief the title is absolute, this court finds no reason to not grant the benefit of section 43 TPA to the defendants, when admittedly, defendant No.2 &3 has undivided share though not in the specific portion stated in the Sale Deeds. Merely because of wrong recitation of one Clause in the Sale Deeds, would not make them liable to be declared as null & void except that it would pertain to undivided share and not in respect to the specific portion as stated therein.

88. Thus, in view of the two Sale Deeds Defendant no. 1 and Defendant no. 4 would be entitled to 1/6th share each of the suit property (i.e. 1/12th his share + 1/12th sold by Defendant no. 2 & 3 respectively). Conclusion:-

89. In view of the foregoing discussions, it is held that the Application under OXII Rule 6 CPC of the Plaintiffs is allowed in the light of the admissions and the Preliminary Decree of partition is hereby passed and shares are defined in the suit property as under: - Name of family member/ party Undivided share Branch of Late Sh. Daljit Singh Chandhok ( 1/4th P-1 Vipula Chandhok 1/12th P-2 Gundeep Singh Chandhok 1/12th P-3 Paramdeep Singh Chandhok 1/12th P-4 Tanveerdeep Singh Chandhok 1/12th Branch of Sh. Gurcharan Singh Chandhok (1/3rd of 1/3rd each) P-5 Gurcharan Singh Chandhok 1/9th P-6 Ravinder Singh Chandhok 1/9th D-5 Jasmit Singh Chandhok 1/9th Branch of Sh. Kulbir Singh Chandhok (1/4th D-1 Kulbir Singh Chndhok 1/6th (1/12th + 1/12th ) D-2 Amardeep Singh Chandhok Share sold to Kulbir Singh Chandhok D-3 Karandeep Singh Chandhok Share sold to Armaan Singh Chandhok D-4 Armaan Singh Chandhok 1/6th (1/12th + 1/12th )

90. It is also held that Sale Deeds are not null and Void but shall operate as defined above, to be valid for transfer of the undivided share and not any specific portion of the Suit property.

91. List before the Roster Bench for further proceedings/Final Decree on 07.10.2024, subject to orders of Hon’ble the Chief Justice.

JUDGE SEPTEMBER 30, 2024 S.Sharma