Sawan Mal v. Bhawani Dass — 1975 DIGILAW 294 (ALL)

ORDER : P.N. Bakshi, J. This is the Defendant's first appeal. The Plaintiff filed a suit for partition of half share in house No. 119/84 A Bamba Road Kanpur and for recovery of Rs. 810/- as damages for use and occupation and future damages at the rate of Rs. 22-50 p. per month. 2. Admittedly, the aforesaid house comprises of two shops in the ground floor and residential accommodation on the first floor. The Plaintiff is in occupation of one shop on the ground floor while the Defendant is in occupation of another shop on the ground floor and residential accommodation on the first floor. The Development Board, Kanpur had constructed this premises in 1950 and had thereafter let out the same to the parties. The Plaintiff paid Rs. 45/- as rent for the shop occupied by him, while the Defendant paid Rs. 40/- per month as rent for the shop and Rs. 50/- per month as rent for the residential accommodation. 3. It appears that on 19-5-1955 the Plaintiff and the Defendant decided to purchase the house in suit from the Development Board. As such, an agreement was executed between the parties Ex. A-9 in respect of the suit property. The terms of this agreement disclose that the Plaintiff and the Defendant were to divide the property in equal shares and each of them was to pay half purchase price. The parties were to remain in possession of the shares which were already occupied by them, till such time as the Development Board decided to transfer the said proper y to the parties. It was also agreed that the Defendant would in the meantime continue to pay Rs. 22.50 P. per month as compensation to the Plaintiff. The further case of the Plaintiff is that in or about 1959 the Development Board decided to transfer the property in question in favour of the parties to the suit, and delivered possession to them as joint owners. Since that day, the parties continue to occupy the accommodation as co-owners in equal shares. It was alleged in the plaint that the Development Board, Kanpur and its successor, the Nagar Mahapalika, Kanpur has not yet executed the sale deed in favour of the parties inspite of the fact that the entire sale consideration has been paid up and they are in possession of the property as co owners. It was alleged in the plaint that the Development Board, Kanpur and its successor, the Nagar Mahapalika, Kanpur has not yet executed the sale deed in favour of the parties inspite of the fact that the entire sale consideration has been paid up and they are in possession of the property as co owners. The Plaintiff does not desire to continue as joint owner of the premises in question along with the Defendant. A notice dated 15-4-1965 was served on the Defendant calling upon him to partition the property and to give exclusive possession to the Plaintiff of his half share. The Defendant having refused to comply, the present suit was filed for partition of half share of the property in suit and separate possession. Rs. 810/- as damages for use and occupation were claimed. Pendentelite and future damages were also claimed at the rate of Rs. 22.50 P. per month. 4. The Defendant admitted in paragraph 27 of the written statement that after the execution of the sale deed the share of the Plaintiff and the Defendant would be half each in the property in suit. It is also admitted that the Plaintiff and the Defendant were in possession of one shop each in the ground floor and that the Defendant also occupied the first floor of the house. The amount of rent paid by the parties as alleged in the plaint was also admitted though it was asserted that the shop of the Plaintiff was bigger than the shop of the Defendant. It was further asserted that the parties are already in possession of the house in suit as tenants and that no question of delivery of possession arises after the decision of the Development Board. The Defendant further admits that he agreed to pay Rs. 22.50 P. per month to the Plaintiff as rent for the excess portion of the house in his possession. It was pleaded that extensive repairs and constructions had been carried out and that the amount of compensation of Rs. 22.50 P. was liable to be adjusted thereunder. It is said that in view of the agreement dated 19-5-l955 all taxes levied and amount spent in repairs and renovation and for the upkeep of the house would be brone by the parties in equal shares. 22.50 P. was liable to be adjusted thereunder. It is said that in view of the agreement dated 19-5-l955 all taxes levied and amount spent in repairs and renovation and for the upkeep of the house would be brone by the parties in equal shares. It was pleaded that the suit for partition was not maintainable as the sale deed had not yet been executed in favour of the parties by the Nagar Mahapalika Kanpur. 5. The II Additional Civil Judge, Kanpur decreed the Plaintiff's suit for partition of his half share of the house with costs. Rs. 810/- were also decreed as damages. Pendentelite and future damages were allowed at the rate of Rs. 22.50 P. per month. 6. Aggrieved thereby, the present first appeal has been filed in this Court by the Defendant Sawan Mal. 7. The sole point which has been argued before me by the counsel for the Defendant Appellant is that the suit of partition is not maintainable. A two fold submission has been made in this connection. It is urged that in view of the agreement between the parties dated 19-5-1955 the Plaintiff has no right to sue for partition on the property thereby disturbing the possession of the Defendant over the portion of the house in his occupation. Secondly, it is urged that as the Nagar Mahapalika, Kanpur has not yet executed a sale deed nor has a sale certificate been issued, so in the absence of any conveyance the Plaintiffs suit for partition is not maintainable. 8. The first point can be disposed of very briefly. This depends upon an interpretation of the agreement dated 19-5-55. I have carefully examined this agreement. It recites that the parties are already in possession of the premises in suit as indicated in the statement of the case narrated above. The agreement mentions that the Plaintiff as well as the Defendant have decided to purchase the property in suit from the Development Board jointly to the extent of half share each and that each of them shall pay half the price for the property. Paragraph 3 of this agreement runs as follows: Yah Ki Jaidad mazkoor ke jis hisse men jo fariq abad hai woh bad kharidari bhi usi kadar hisse men abad rahega aur hissa jat jaidaa mazkoor ki jo tashkhis kiraya is waqt hai wahi ayanda bhi rahegi. 9. Paragraph 3 of this agreement runs as follows: Yah Ki Jaidad mazkoor ke jis hisse men jo fariq abad hai woh bad kharidari bhi usi kadar hisse men abad rahega aur hissa jat jaidaa mazkoor ki jo tashkhis kiraya is waqt hai wahi ayanda bhi rahegi. 9. In paragraph 6 of this agreement it was mentioned that the Defendant would pay a sum of Rs. 22.50 P. as compensation for the excess share occupied by him. The next paragraph of the agreement which is relevant for purposes of the decision of the point raised on behalf of the Appellant is paragraph 11 which runs as follows: Yeh ki jab tak Board mazkoor se jaidad mazkoor hasil karne ka faisla hota hai tab tak har do fariqain sharait dastawez haza ke paband honge. 10. Paragraph 14 of the agreement contains an arbitration clause. It is to the effect that if any dispute arises between the parties then the same shall be referred to arbitration and the decision of the arbitrator shall be binding upon the parties. 11. Having carefully considered paragraph 3 of this agreement quoted above, it appears to me that it merely permits the parties to continue in possession of the portions occupied by them. From a perusal of the various terms of the deed mentioned above, there can be no doubt that the rights of the parties in the disputed property was to the extent of half share. Each of the parties had paid half of the total consideration for sale. There can be no doubt that in these circumstances both the Plaintiff as well as the Defendant would be legally entitled to half share in the property. 12. Paragraph 3 of the agreement referred to above could not be read as creating a lease in perpetuity. It could not take away the right of the Plaintiff to claim partition of his legitimate share. It merely preserves the possession of the Defendant to the extent of the accommodation occupied by him even after the purchase had been effected, but that could only be so long as the Plaintiff did not insist upon enforcement of his legal rights to get the property partitioned. In my view therefore, this clause does not deprive the Plaintiff of his rights to sue for partition of half share in the property. 13. In my view therefore, this clause does not deprive the Plaintiff of his rights to sue for partition of half share in the property. 13. The Appellants counsel has urged that paragraph 11 of the agreement should be construed to mean that the parties would be bound by the terms of the agreement till such day as the sale deed is executed, by the Development Board. I do not think such a construction could reasonably be put to paragraph 11. In my view this paragraph indicates that the agreement in question would be binding on the parties till the Development Board has decided to transfer the property in dispute to the parties. There is nothing in this agreement to indicate, that apart from the decision of the Board to transfer the property, it would extend to the actual registration of a sale deed in favour of the parties. It is not denied by the counsel for the parties that the Development Board has decided to transfer the property in question to the parties to the suit. The only submission in this connection which has been made by the Appellant's counsel is that the sale deed has not yet been executed. I am of the opinion that the agreement dated 19-5-1955 relied upon by the Defendant-Appellant has come to an end on the date when the decision was taken by the Development Board to transfer the property. As such, it is no longer binding upon the parties. 14. In this very connection it may also be mentioned that an application was made by the Defendant u/s 34 of the Arbitration Act to which a reply was filed by the Plaintiff-vide 13-C & 17-C. The Civil Judge Kanpur passed an order on this application on 1-4-1965. The Defendant by this application objected to the institution of the suit on the ground that it should be referred to arbitration in view of paragraph 14 of the agreement referred to above. I have perused the order of the Civil Judge pass d on this application on 1-11-1965. He has also held in this order that as the Development Board has already decided to transfer this property to the parties and in pursuance of their previous decision delivered possession to them, as such the agreement dated 19-5-1955 would no longer be binding upon the parties. He has also held in this order that as the Development Board has already decided to transfer this property to the parties and in pursuance of their previous decision delivered possession to them, as such the agreement dated 19-5-1955 would no longer be binding upon the parties. In that view of the matter the Civil Judge has decided that the application filed by the Defendant for staying the proceedings u/s 34 of the Arbitration Act was liable to be rejected. This order passed by the Civil Judge was an appealable order, but no appeal has been filed by the Defendant. This order therefore, has become final between the parties. On this ground also, the objection of the Appellant's counsel must be repelled. 15. I shall now deal with the second submission made by the Appellant's counsel to the effect that the suit for partition was not maintainable because the sale deed of the property in question has not yet been executed by the Nagar Mahapalika, Kanpur, the successor of the Development Board. Reliance for this submission is placed upon Section 54 of the Transfer of Property Act: Section 54 defines sale as a transfer of ownership in exchange for the price unpaid or promised or part paid and part promised. Such a transfer in the case of tangible immovable property of the value of Rs. 100/- and upwards...can be made only by a registered instrument. 16. It is submitted that since the ownership in the property has not yet been transferred by the Nagar Mahapalika, Kanpur, the Plaintiff cannot claim any right or interest therein. The Appellant's counsel has supported his submission by the decision of the Supreme Court reported in Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Others, AIR 1960 SC 1368 . This was a suit for pre-emption in which a mere agreement to sell had been executed between the parties. Prior to the execution of the sale deed, the Plaintiff had filed a suit for pre-emption of the property sought to be transferred. It was held as follows: Under Section 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property. Prior to the execution of the sale deed, the Plaintiff had filed a suit for pre-emption of the property sought to be transferred. It was held as follows: Under Section 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property. Where therefore, the parties enter into a mere agreement to sell, it creates no interest in favour of the vendee and the proprietory title does not validly pass from the vendors to the vendee and until that is completed no right to enforce preemption arises. A suit for pre-emption brought on the basis of such an agreement is without any cause of action as there is no right of pre-emption in the Plaintiff which could be enforced under the Code. 17. If the Nagar Mahapalika, Kanpur had changed its mind and had brought a suit for dispossession of the Defendant on the ground that the property in dispute has not been transferred because no sale deed has been registered, perhaps Section 54 of the Transfer of Property Act might have come into play. But the facts and circumstances established in this case, in my opinion, are sufficient to entitle the Plaintiff to sue for partition. The parties to the suit admittedly have equal share in the shops and the house in question. The entire consideration with respect to the disputed property has been paid in equal shares by the parties sometime in 1959. The taxes of the property have also been paid by the parties to the Nagar Mahapalika, Kanpur in equal shares. The parties are in joint possession of the suit property. In the face of these admitted facts, it cannot be said that the Plaintiff has no interest in the property which he is not entitled to protect by the institution of a suit for partition to the extent of his legitimate share. A right to partition is no doubt an incident of ownership but such a right is not always co-extensive with ownership. 18. The Plaintiff in the present case has asserted that both he and the Defendant came into possession of the property in dispute originally as tenants and that subsequently they decided to purchase the property from the Development Board, Kanpur and in pursuance thereof, they fulfilled the conditions which I have referred to above. 18. The Plaintiff in the present case has asserted that both he and the Defendant came into possession of the property in dispute originally as tenants and that subsequently they decided to purchase the property from the Development Board, Kanpur and in pursuance thereof, they fulfilled the conditions which I have referred to above. In this manner they became co-owners of the property in question. It would not be correct to say that co-tenancy has not been pleaded by the Plaintiff in his plaint. The Plaintiff has come forward with clean hands and has put up an honest case that both he and the Defendant were initially co-tenants of the premises in question and subsequently acquired rights of co-ownership in pursuance of the decision of the Development Board to transfer the property in question to them, in equal shares, for which equal consideration has already been paid. 19. A number of cases have been cited by the Respondents' counsel in support of his submission that the present suit filed by the Plaintiff is maintainable despite the fact that the sale deed has not yet been executed by the Nagar Mahapalika, Kanpur. Learned Counsel submits that the Plaintiff has still a right to sue for partition on the basis of his leasehold rights. An argument has also been advanced that delay in the execution of the sale deed is due to the dilatory tactics of the Defendant himself, who stands to gain an advantage by such delay, inasmuch as, he is in possession of a larger share of the property, though his rights are only to the extent of half share. 20. A number of cases have been cited by the Respondent's counsel of which I shall mention only a few. Counsel for the Plaintiff has relied upon Bisheshar Das v. Ram Prasad ILR All 627 a Division Bench case of our High Court. It has been held there in that: The right to enforce partition is a legal incident of a joint tenancy and as long as such tenancy subsists so long may any of the joint tenants apply to the Court for partition of the joint property. In another Division Bench of this Court reported in Mohd. Jafar Khan v. Mazharul Hasan (1906) 3 ALJ 474. In another Division Bench of this Court reported in Mohd. Jafar Khan v. Mazharul Hasan (1906) 3 ALJ 474. It has been held that: A lessee of an undivided portion of a house can maintain a suit for partition if partition is necessary to give effect to his transfer. A lessee of a house is a transferee within the meaning of Section 44 of the T.P. Act. 21. In Ramasami Chetti v. Alagirisami Chetti ILR 1904 Mad. 361 it was held that: Plaintiff was entitled to have partition though he was only lessee for a term of years and though that partition could only last for the period of his lease. 22. In Moti Meghaji Marwadi Vs. Amarchand Rajaram Marwadi, AIR 1933 Bom 121, it was held that: A mortgagee from a coparcener in a joint Hindu family who is entitled to claim possession of the mortgaged property under the mortgage deed can maintain a suit for partition of the joint family property. 23. In Laljit Kishore Mittra v. Girdhari Singh AIR 1916 Pat 259, it was held by a Division Bench that: as under English law so in India a person holding a limited interest as a lessee for years may maintain a claim for partition. The right is not restricted alone to persons having a permanent title. 24. In the instant case the share of the parties are undisputed. Their equal contribution towards the price of the property in dispute is admitted. The final decision of the Nagar Mahapalika, Kanpur to transfer the ownership of this property in favour of the parties is unchallenged. A mere formality remains for the execution of the sale deed. The Defendant is admittedly in possession of more share in the property than that to which he is entitled. Under these circumstances I am of the view that the Plaintiff is entitled to maintain his suit for partition - both in law and in equity. 25. No other point has been argued before me. 26. In my opinion there is no merit in this appeal which is accordingly dismissed with costs.