Anjana Kumar v. Vivek Goel & Anr.

Delhi High Court · 17 May 2024 · 2024:DHC:4525

Jasmeet Singh

CS(OS) 290/2022

2024:DHC:4525

civil appeal_allowed Significant

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The Delhi High Court granted a preliminary decree of partition to the plaintiff for her 1/3rd share in ancestral property, rejecting the defendants' plea of oral partition due to lack of registered documents.

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CS(OS) 290/2022
HIGH COURT OF DELHI
Date of Decision: 17.05.2024

CS(OS) 290/2022
ANJANA KUMAR ..... Plaintiff
Through: Mr Rajan Chaudhary, Adv.

VERSUS

VIVEK GOEL & ANR. ..... Defendants
Through: Mr Aditya Ganju and Ms Shambhavi Mishra, Advs. for D-1.
Mr Anuj Jain, Adv. for D-2.

CORAM:

HON'BLE MR. JUSTICE JASMEET SINGH : JASMEET SINGH, J (ORAL)

I.A. 15965/2023

JUDGMENT

1. This is an application under Order XII Rule 6 of CPC seeking preliminary decree of partition of the estate of Late Sh. Devender Swarup Goel.

2. The plaintiff has filed the present suit seeking the following reliefs: a) Grant a preliminary decree of partition in favour of the plaintiff with regard to her 1/3rd undivided share in the estate of Late Sh. Devender Swarup Goel more specifically ground, first and second floor built up on 122.66 sq. yds. Approximately land out of total land measuring 368 sq. yards in Property bearing No.53, BD Estate, Timarpur, Delhi and proportionately share in common areas as shown in annexed site plan. b) Grant ex parte ad interim directions thereby handing over the possession of ground floor of the suit property to the plaintiff pending final disposal of the present proceedings; c) Grant a final decree of partition by metes and bound of the 1/3 share of the plaintiff in the suit property; d) Put the parties to the suit in possession of their respective shares, as per the decree of partition granted by this Hon’ble Court.

3. Brief facts: The property bearing No.53, BD Estate, Timarpur, Delhi originally belonged to three brothers namely Shri Devender Swarup Goel, Virender Swarup Goel and Rajender Swarup Goel. By virtue of duly registered partition deed dated 19.12.1986, the above mentioned property was duly partitioned amongst the three brothers.

4. As per the said partition deed, Sh. Devender Swarup Goel received 1/3rd share (i.e. 122.66 Sq. yds. approximately) out of total land measuring 368 Sq. Yards in Property bearing No.53, B D Estate, Timarpur, Delhi. After the partition, all 3 brothers constructed building up to 2 floor into their respective shares and as on date, there are 3 floors (Ground, First and Second floor) into the share of Sh. Devender Swarup Goel along with share in common areas as well as proportionate land share in Property bearing No.53, BD Estate, Timarpur Delhi (“Suit Property”).

5. Sh. Devender Swarup Goel died intestate on 01.02.2020 leaving behind his wife Smt. Saroj Goel as well as plaintiff (daughter), defendant Nos. 1 and 2 (sons) as their Class I legal heir. On 14.03.2020, Smt. Saroj Goel also passed away intestate. Hence, the present suit is filed by the plaintiff seeking 1/3rd of her share from the suit property.

6. Pursuant to the issuance of summons, the defendants have filed their written statements.

7. The objection taken by the defendants is that the plaintiff is seeking partition of her undivided 1/3rd share, she must pay the balance Court Fee of Rs. 1,31,804/-.

8. Another objection of the defendant No.1 is contained in para 7 of the written statement which reads as under:

“7. Denied. That the contents of para 7 of the plaint are wrong and denied in view of the detailed submissions made herein above in preliminary objections except that the mother of the parties was not keeping well, which is subject matter of record. It is submitted that since Late Sh Devender Swarup Goel had given the share of the plaintiff during his life time and thereafter accordingly he also partition the present property between the defendant no.1 and 2 during his life time. It is further submitted that all these thing had happen in front of the plaintiff, near relatives and it is clear from the fact that the property in question already partitioned way back during the life time of the father late Sh Devender Swarup Goel and since then and till the filing of the case the plaintiff never asked for the partition which clearly establishes and corroborate the fact that the plaintiff had taken her share from her father during his life time in cash from which the property in which the plaintiff is residing was purchased.”

9. I have heard learned counsel for the parties.

10. The Hon’ble Supreme Court in Karan Kapoor v. Madhuri Kumar, (2022) 10 SCC 496 has observed as under:-

“24. Thus, legislative intent is clear by using the word “may” and “as it may think fit” to the nature of admission. The said power is discretionary which should be only exercised when specific, clear and categorical admission of facts and documents are on record, otherwise the court can refuse to invoke the power of Order 12 Rule 6. The said provision has been brought with intent that if admission of facts raised by one side is admitted by the other, and the court is satisfied to the nature of admission, then the parties are not compelled for full-fledged trial and the judgment and order can be directed without taking any evidence. Therefore, to save the time and money of the court and respective parties, the said provision has been brought in the statute. As per above discussion, it is clear that to pass a judgment on admission, the court if thinks fit may pass an order at any stage of the suit. In case the judgment is pronounced by the court a decree be drawn accordingly and parties to the case is not required to go for trial.”

11. There is no dispute to the fact that the suit property (122.66 Sq. yds. out of total land measuring 368 Sq. Yards in Property bearing No.53, B D Estate, Timarpur, Delhi) belongs to Late Sh Devender Swarup Goel who died intestate. Thereafter, his wife Smt. Saroj Goel also died intestate on 14.03.2020.

12. With regard to the deficient court fees is concerned, Mr Chaudhary, learned counsel for the plaintiff on instructions of the plaintiff states that the deficient court fees shall be paid within two weeks from today.

13. With regard to the family settlement in the year 2002 wherein the plaintiff had been given money of her share from which the plaintiff had purchased other immovable property, the same is contrary to law. Admittedly, the plaintiff has a legitimate share in the suit property and the plaintiff could only give up her share in the suit property by virtue of a registered document i.e. either by a gift deed, relinquishment deed or sale deed. In the absence of any such registered document, oral partition cannot deprive the plaintiff of her legitimate 1/3rd share in the suit property. Reliance is placed on Vineeta Sharma v. Rakesh Sharma, (2020) 9 SCC 1 and the relevant extract reads as under:-

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“135. A special definition of partition has been carved out in the Explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in Section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of Section 6, the intendment of the legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of Section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be

accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigour of very heavy burden of proof which meets the intendment of Explanation to Section 6(5). It has to be remembered that the courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place. ………….. …………….. ……………..

137. Resultantly, we answer the reference as under: 137.1…….. 137.2……. 137.3…….. 137.4……

137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

14. A perusal of the aforesaid judgment shows that the plea of oral partition is not to be generally accepted as a statutory recognised mode of partition. Only in the cases where oral partition is supported by public documents and partition is evinced as if it was a decree of a Court, the plea of oral partition can be accepted.

15. In the present case, except a bald plea as noted above, there is no document placed on record to show that the oral partition took place in the year 2002. I am of the view that the said plea is without any substance and is made only to delay the claims of the plaintiff.

16. Under Order XII Rule 6 of CPC, the Court is required to satisfy itself with regard to nature of admission, so that the parties are not compelled for full-fledged trial, reference is made to Karan Kapoor (supra).

17. For the said reasons, I am of the considered view that the plaintiff is entitled to a preliminary decree of partition on admissions.

18. A preliminary decree of partition is passed holding that the plaintiff, defendant Nos. 1 and 2 each have 1/3rd undivided share in ground, first and second floor of built up (122.66 Sq. yds. out of total land measuring 368 Sq. Yards) property bearing No. 53, BD Estate, Timarpur, Delhi along with proportionate share in common areas.

19. The application is allowed and disposed of in the aforesaid terms. CS(OS) 290/2022 and I.A. 7978/2022

20. List on 28.08.2024.

Anjana Kumar v. Vivek Goel & Anr.

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