Ramji Dass through LR''s Narang vs Jagdish Chander Narang through LR''s

Rajiv Sahai Endlaw, J.—The appeal impugns the preliminary decree, dated 14.09.2004 of the Court of the Additional District Judge, Delhi in suit No. 22/2003 filed by the deceased respondent against the deceased appellant, of partition of property No. B-5/3, Lal Quarter, Krishna Nagar, Delhi and declaring the deceased respondent/plaintiff and the deceased appellant/defendant to be having one half equal share each therein. Notice of the appeal was issued. During the pendency of the appeal, the appellant/defendant as well as the respondent/plaintiff died and their legal heirs were substituted. The appeal was on 20.03.2006 admitted for hearing. The appeal was on 05.03.2013 dismissed in default of appearance of the appellant but was on subsequent application, vide order dated 16.07.2013 restored to its original position. The counsels have been heard.

Though there is no interim order of stay of further proceedings pursuant to the preliminary decree for partition impugned in this appeal but on enquiry counsels inform that the proceeding thereof are lying adjourned sine die, perhaps for the reason of the Trial Court record having been requisitioned to this Court.

Considering the nature of the controversy, need is not felt to give the details of the pleadings and the issues framed and/or the findings returned thereon.

Suffice it is to state that it is not in dispute that the Sale Deed of the said property bearing No. B-5/3, Lal Quarter, Krishna Nagar, Delhi is in the joint names of the deceased appellant/defendant and the deceased respondent/plaintiff and without mentioning the share of each one of them. Thus the presumption is of each having an equal share in the property (see AIR 1946 399 (Lahore)

Of the two grounds on which the appellant/defendant contested the claim of the respondent/plaintiff for partition, one was that the entire sale consideration for the purchase of the property had flown from the appellant/defendant only as the respondent/plaintiff was not earning at that time. The learned Additional District Judge has in the impugned judgment held the said plea of the appellant/defendant to be barred by the provisions of the Benami Transactions (Prohibition) Act 1988 and has also held that no evidence had been led by the appellant/defendant to show that the entire sale consideration was paid by the appellant/defendant.

The counsel for the appellant/defendant has fairly conceded that in fact there is no evidence of the entire sale consideration for purchase of the property having been paid by the deceased appellant/defendant. No grievance can thus in any case be raised with respect to the negation by the learned Additional District Judge of the said objection of the appellant/defendant. Even otherwise, I am of the view that the claim of the appellant/defendant, of 50% share in the property having been transferred in the name of the respondent/plaintiff for a consideration paid or provided by the appellant/plaintiff and the defence on the said basis of the respondent/plaintiff being the benami owner of the said 50% share in the property and the appellant/defendant being the actual owner thereof is clearly within the teeth of Section 4(2) of the Benami Act. I have recently in the judgment dated 23 May, 2013 in CS(OS) No. 2788/2011 titled Kanwal Arora Vs. Prem Chand Khaneja dealt with this aspect in detail and need is thus not felt to burden this judgment therewith.

The only other objection by the appellant/defendant to the claim for partition was, of the suit being bad for partial partition. It was the case of the appellant/defendant that besides the property No. B-5/3, Lal Quarter, Krishna Nagar, Delhi, the appellant/defendant and the respondent/plaintiff along with the sons of the appellant/defendant were also the joint owners of property No. 505, Lajpat Rai Market, Chandni Chowk, Delhi in which the respondent/plaintiff had 1/6th share and the appellant/defendant and his sons had 5/6th share and the suit filed by the respondent/plaintiff without claiming partition of the said property was not maintainable.

It was the response of the respondent/plaintiff that the property No. 505, Lajpat Rai Market, Chandni Chowk, Delhi already stood partitioned between the appellant/defendant and the respondent/plaintiff on the terms contained in the deed dated 30.07.1988 executed by the appellant/defendant and the respondent/plaintiff of dissolution of the business earlier being carried on by them in partnership the name and style of M/s. Gram Sewa Book Depot. As per the said Dissolution Deed, though the rent receipt of the said property was issued by the Rehabilitation Department, Government of India in the name of the appellant/defendant only but the tenancy rights in the property vested jointly in the appellant/defendant and the respondent/plaintiff and who divided the said shop by metes and bounds half and half between them.

The learned Additional District Judge accordingly held that the said property having been partitioned, the suit for partition of property No. B-5/3, Lal Quarter, Krishna Nagar, Delhi could not be bad for non inclusion of the property No. 505, Lajpat Rai Market, Chandni Chowk, Delhi.

The counsel for the appellant/defendant has argued that at the time of execution of the Dissolution Deed supra, the parties were only tenants in the property; that subsequently in accordance with the policy introduced by the Rehabilitation Department of the Government of India for conferment of ownership rights in such properties, letter offering the ownership rights in the said property was issued, besides in the names of the appellant/defendant and the respondent/plaintiff also in the names of the four sons of the appellant/defendant. It is thus contended that the partition vide the Dissolution Deed is not proper and/or binding and the said property remains un-partitioned and has to be partitioned between the appellant/defendant and the respondent/plaintiff and the four sons of the appellant/defendant.

It has been enquired from the counsel for the appellant/defendant as to how the ownership rights of property No. 505, Lajpat Rai Market, Chandni Chowk, Delhi were offered in the names of the four sons of the appellant/defendant also when the tenancy rights were in the name of the appellant/defendant and respondent/plaintiff only.

The counsel for the appellant/defendant has fairly stated that though there is no evidence before the Trial Court in this regard but the appellant/defendant after the Dissolution Deed of the year 1988 had written to the Rehabilitation Department of the Government of India to include the name of his four sons also with respect to the said shop.

I am of the view that since the four sons of the appellant/defendant who are also claimed to be having share in the Lajpat Rai Market property were not parties to the suit from which this appeal arises, the said suit for partition of the Krishna Nagar property which was the only property in the joint names of the appellant/defendant and the respondent/plaintiff could not be said to be bad for non-joinder therein of the relief of partition of the Lajpat Rai Market property also in which according to the appellant/defendant besides the respondent/plaintiff, his four sons were also the owners. Though in the light of the aforesaid, no binding observations with respect to the said property can be given but since the Dissolution Deed of the year 1988 is not disputed, it prima facie appears that the share which the four sons of the appellant/defendant could have in the said property in pursuance of the request of the appellant/defendant of a date after the Dissolution Deed for addition of their names can only be out of 50% share as per the Dissolution Deed of the appellant/defendant in the property and cannot be out of the remaining half of the property which under the Dissolution Deed had fallen to the share of the respondent/plaintiff.

The aforesaid objection also is thus not found to be coming in the way of a preliminary decree for partition, as has been passed.

No other argument has been urged.

There is thus no merit in the appeal which is dismissed. However I refrain from imposing any costs on the appellant/defendant in the hope that the appellant/defendant would not put any further unnecessary impediments in the way of the final decree proceedings.

Decree sheet be drawn up.

Trial Court file be returned to enable the final decree proceedings to be undertaken forthwith.