S. PRITPAL SINGH v. KULDEEP KAUR — 1996 DIGILAW 30 (DEL)

N. G. Nandi, J. ( 1 ) IN the suit for partition of the immoveable property bearing H. No. V/7479, Tel Mill Lane, Ram Nagar, Delhi, the say of the plaintiff is that late S. Charan Singh, the father of the plaintiffs (through 1stwife) and defendants No. 2 to 7 (through defendant No. l, the second wife), and husband of defendant No. 1 died intestate on 16. 5. 1977 leaving behind plaintiffs and defendant No. l to 7 as his heirs; that deceased late S. Charan Singh left the suit property; that the property is at present in possession of defendants 1 to 4; that plaintiff No. 2 shifted from the suit property as also defendants 4 and 5 and defendant No. 6 and 7 to their respective matrimonial homes; that defendants 3 and 4 who are in actual control of the suit house along with defendant No. l have refused to partition the suit property and give the share to the co-owners including the plaintiffs and that defendants 3 and 4 are planning to dispose of their undivided share and hand over the built up portion of the suit property to the buyer. ( 2 ) THE say of the defendant is that defendant No. l, the mother, defendant No. 6; and 7 out of love and affection relinquished their l/9th share each in favour of defendant No. 3 vide registered relinquishment deed dated 19. 9. 88 and therefore defendant No. 3 became the owner of 4/9th share in the suit property; that defendant No. 5 vide registered relinquishment deed dated 19. 9. 88, relinquished her l/9th share in favour of defendant No. 4 who became the owner of 2/9th share in the suit property; that in the year 1990, the suit property left by deceased late S. Charan Singh was duly partitioned between the parties, i. e. the plaintiffs and the defendants with the consent of the plaintiffs; that after the said partition defendant, defendant No. 4sold his 2/9tli share to one Shri Mohinder Singh on or about 11. 8. 90 within the knowledge of the plaintiff; that in the month of May 1990, the plaintiffs have also been given their share of 13. 5 sq. yds. each in the suit property; that the plaintiffs also relinquished their share in favour of defendant No. 3 in consideration whereof plaintiff No. 2 received Rs. 43,600. 8. 90 within the knowledge of the plaintiff; that in the month of May 1990, the plaintiffs have also been given their share of 13. 5 sq. yds. each in the suit property; that the plaintiffs also relinquished their share in favour of defendant No. 3 in consideration whereof plaintiff No. 2 received Rs. 43,600. 00 spreading over various dates between 22. 5. 90 to 1. 6. 90; that both the plaintiffs also relinquished their respective share in favour of defendant No. 3 on 17. 5. 90 and the plaintiffs also executed a Special Power of attorney in favour of defendant No. 3 on 16. 5. 90 and therefore the plaintiffs, after receiving the full consideration amount from defendant -No. 3 have no right, title or interest in the suit propertyand the property has also been given possession to defendant No. 3 and he is the owner of the suit property. ( 3 ) IT will be seen from the pleadings that it is not in dispute that late S. Charan Singh, father of plaintiffs 1 and 2 and defendants 2 to 7 and husband of defendant No. 1 died intestate on 16. 5. 77 leaving the suit property. It is also not in dispute that plaintiffs and the defendants, as heirs of deceased late S. Charan Singh, inherritted the disputed property. According to the plaintiff, the suit property is not partitioned and that each plaintiff has undivided share therein whereas according to the defendants, Dependant No. 1, 5, 6 and 7 respectively relinquished their share in favour of defendant No. 4 and 3 respectively and defendant No. 4, thereafter, sold his 2/9th share and that the suit property is partitioned with the consent of the plaintiff in May 1990 and that after partition, the plaintiffs relinquished their shares, in favour of defendant No. 3 and received the consideration for the relinquishing their l/9th each share. ( 4 ) IN a Hindu Undivided Family, governed by the Mitakshara law, no individual member of that family, while it remains undivided, can predicate that he has a certain definite share in the property of the family. The rights of the co-parceners are defined where there is partition. The partition consists in defining the shares of the co-parceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. The rights of the co-parceners are defined where there is partition. The partition consists in defining the shares of the co-parceners in the joint property, actual division of the property by metes and bounds is not necessary to constitute partition. Once the shares are defined, whether by agreement between the parties or otherwise, the partition is complete. The parties may thereafter, choose to divide the property by metes and bound or may continue to live together and enjoy the property in common as before. If they live together, the mode of enjoyment alone remains joint, but not the tenure of the property. ( 5 ) ACCORDING to defendants 3, the plaintiffs relinquished their share and in consideration thereof plaintiffs are paid Rs. 43,600. 00. Defendants rely on the copies of the documents viz. affidavit purported to have been testified by plaintiff No. 2, the receipt by her dated 1. 6. 90 and the writng of mutual consent by plaintiff No. 2 dated 1. 9. 1990. Photocopies of these documents have been produced at pages 14,16 and 17 respectively and the copy of the affidavit by plaintiff No. 1 at page 19, Special Power of Attorney at page 23 and the copy of the map/sketch at page 27. ( 6 ) THE plaintiff has produced the original affidavit dated 17. 5. 1990, receipt dated 1. 6. 1990 and the writing of mutual consent dated 1. 9. 1990 all purported to have been executed by plaintiff No. 2 and that all these original documents suggest cross "x" over the writing on all the pages and the signatures on the receipt at page 3 cancelled with the cross "x" over it. It is pertinent to note that the copies produced by the defendants above do not contain any such cross indicating cancellation of these documents. ( 7 ) IT is pertinent to note that for the purpose of relinquishment of shares by the plaintiffs, the defendants have been relying on the photocopies, original of which have been produced by the plaintiff, as aforestated. Taking these original documents at pages 1 to 5 produced by the plaintiff, at their best, it prima-facie appears that plaintiffs must have entered into understanding with defendant No. 3 relinquishing their shares but the same for some reason or the other, does not seem to have materialised taking prima-facie the cancellation of the documents. Taking these original documents at pages 1 to 5 produced by the plaintiff, at their best, it prima-facie appears that plaintiffs must have entered into understanding with defendant No. 3 relinquishing their shares but the same for some reason or the other, does not seem to have materialised taking prima-facie the cancellation of the documents. There is no explanation coming forth from the defendants, firstly as to how these original documents come from the custody of the plaintiffs and secondly when and why they came to be cancelled when the photocopies do not indicate any such cancellation. The cancellation of the documents would, at the most, suggest that plaintiffs did not relinquish their shares which is said to be 13. 5 sq. yds each. According to the counsel for the plaintiff, the writings referred to above, were cancelled as defendant No. 3 did not pay the consideration to the plaintiffs. Even accepting that all that it would suggest is that there was no relinquishment of their share by the plaintiffs and nothing further which can have no bearing on the partition of the suit property. On the contrary, the non-payment of consideration for relinquishment of their shares by the plaintiffs would, prima-facie, suggest that property was partitioned and shares of each of the sharer were specified/defined and then only the question of relinishing the shares by plaintiff No. 1 and 2 would arise. Thus, even taking the say of the plaintiffs at the best and even accepting the original documents suggesting cancellation by putting the cross "x" over the same, it would show that there is no relinquishment and nothing further but that would not prima-facie be helpful in suggesting that the property was not partitioned amongst the heirs of deceased S. Charan Singh. On the contrary, writings of relinquishment whether acted upon or not, whether subsequently cancelled or not, and defendant No. 4 having sold his 2/9th share which include l/9th share relinquished by defendant No. 5, would prima-facie dispel the say of the plaintiffs that the suit property is not partitioned. ( 8 ) IN the above prima-facie view of the matter, plaintiffs have not been able to suggest the question involved in the suit requiring further scrutiny and for that matter prima-facie case, on the basis that the suit property is joint property and the plaintiffs have undivided shares therein. ( 8 ) IN the above prima-facie view of the matter, plaintiffs have not been able to suggest the question involved in the suit requiring further scrutiny and for that matter prima-facie case, on the basis that the suit property is joint property and the plaintiffs have undivided shares therein. ( 9 ) IN the result, the IA being devoid of merits fails and the order dated 22. 4. 1994 vacated.