Veeru Parshad Gupta v. Jogeshwari Devi

1. Exemptions allowed, subject to just exceptions. C.Ms. stand disposed of. RFA No.586/2018 and C.M. Appl. Nos. 29352/2018 (for additional evidence) & 29350/2018 (for stay)

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the Judgment of the Trial Court dated 18.4.2018 by which the trial 2018:DHC:4502 court has decreed the suit for partition filed by the sister against the appellant/defendant/brother. Partition has been granted giving each of the parties 50% ownership interest in the property bearing no. 219, Block D-71, Foota Road, Prem Nagar II, Opposite Krishna Public School, Kirari, Suleman Nagar, Nangloi, Delhi

3. I need not narrate the facts in detail because it is an undisputed position that the suit property was owned by the father of the parties Sh. Rama Shanker. It is also not disputed that the father Sh. Rama Shanker died intestate on 13.1.1998. The mother of the parties and the wife of Sh. Rama Shanker also has died intestate and consequently the appellant/defendant and the respondent/plaintiff being the Class-I legal heirs under the Hindu Succession Act, 1956, would each be half owner of the property inherited from their father Sh.Rama Shanker. Appellant/defendant however pleaded that between the parties there was an oral partition in the year 2002-03. Trial court has on this defence held that self-serving averments/depositions of oral partition cannot be believed, and with which I completely agree because valuable immovable property cannot be held by Courts to have been lost to a party simply because there is a case set up of an oral partition and supported only by oral averments/depositions.

4. Oral averments in deposition of partition having taken place is not discharge of onus of proof in the facts of the present case because it is not disputed on behalf of the appellant/defendant before this Court that after the alleged oral partition of the year 2002-03 appellant/defendant had not applied for and got mutated the suit property in his sole/individual name and has paid property tax on his own with respect to the suit property.

5. On behalf of the appellant/defendant it was also contended that the suit property fell to the share of the appellant/defendant as per the oral partition because with respect to other property of the father bearing no. 52/16-B[4], Nai Basti, Anand Parbat, New Delhi, the same was sold and substantial price of this property was received by the respondent/plaintiff, however, it is noted that the trial court in this regard has rightly arrived at a finding that once again except making self-serving statements in depositions and pleadings, no documentary evidence has been led by the appellant/defendant with respect to the fact that the respondent/plaintiff got more than her share when the property at Anand Parbat was sold and hence it cannot be belived or held that the respondent/plaintiff had no rights in the subject property with respect to which partition has been pleaded.

6. In view of the aforesaid, I do not find any merit in the appeal and the same is hereby dismissed. JULY 25, 2018 VALMIKI J. MEHTA, J AK