PRADEEP NANDRAJOG, J, J. ( 1 ) SUIT seeks partition of property bearing Municipal No. 16/273, Gali No. 9, Joshi Road, Karol Bagh, New Delhi. ( 2 ) FAMILY tree of the parties is as under:jagan Nath Shastri uma Wati (wife) (Six Sons)1. K. K. Nath (plaintiff)2. Mohinder Nath (Died issueless)3. Satish Kumar Nath (Died. Represented by wife ? Defendant No. 3)4. Ganesh K. Nath (Defendant No. 1)5. Surinder K. Nath (Defendant No. 4)6. Sohan K. Nath (Defendant No. 2) ( 3 ) JAGAN Nath Shastri died on 12th September, 1958. Uma Wati died on 14th march, 2001. Both had died intestate. Mohinder Nath, one out of six sons died issueless. His estate was inherited by his mother. ( 4 ) FAMILY had migrated to India pursuant to the partition which took place in 1947. The ancestral properties left behind in Pakistan formed the basis for adjudication of a claim by Jagan Nath Shastri under the Displaced Persons (Compensation and Rehabilitation) Act,1954. ( 5 ) BEFORE the suit property could be formally allotted pursuant to verification of the claims, Jagan Nath Shastri died. Names of legal heirs had to be brought on record and thereafter a conveyance deed had to to be executed in their names. ( 6 ) DEFENDANTS 1, 2 and 4 were minor when their father died. Plaintiff, late Mohinder Nath and late Satish Kumar Nath were major. The three major sons made statements before the Settlement Officer relinquishing their shares in favour of their mother resulting in order dated 27th January, 1959, Ex. P-4, being passed by the Settlement Officer, recording that in view of the relinquishment by the three major sons of the deceased in favour of their mother, claim adjudicated in favour of Jagan Nath Shastri be recorded as devolving 4/7 on his wife Uma Wati and 1/7 each on the three minor sons. ( 7 ) THEREAFTER, vide order dated 23rd July,1959 (Ex. P-5), the Regional settlement Commissioner allotted the suit property which was already in occupation of the family in name of Uma Wati and defendant Nos. 1, 2 and 4. ( 8 ) ALLOTMENT was followed by the execution of a conveyance deed in favour of Uma Wati and the three minor sons. ( 9 ) THE family lived happily. Plaintiff appears to have prospered the most. He migrated to the United Kingdom. 1, 2 and 4. ( 8 ) ALLOTMENT was followed by the execution of a conveyance deed in favour of Uma Wati and the three minor sons. ( 9 ) THE family lived happily. Plaintiff appears to have prospered the most. He migrated to the United Kingdom. As and when he would visit India, he would stay in the suit property till disputes surfaced when mother died. ( 10 ) PLAINTIFF claims that from time to time he had been sending money to his brothers to help them in their business. In 1988, he constructed the first and second floor on the suit property. Second floor was earmarked for his use as and when he came to India. This was violated when he was denied access to the second floor on 24th October, 2001. ( 11 ) AS per defendant No. 1, plaintiff did not finance construction of the first floor and second floor. These floors were constructed by money contributed by the brothers which included the plaintiff. Loans given by the plaintiff to his brothers were admitted but it was stated that the same were repaid. As per defendant No. 1, share of the parties in the suit property was as under: Plaintiff 11. 43% Defendant No. 3 11. 43% Defendant Nos. 1,2 and 4 25. 718% each ( 12 ) THIS share is on the basis that plaintiff, Mohinder Nath and Satish kumar Nath by relinquishing their share in favour of their mother had no share in the property. On death of the mother, the five surviving sons inherited her 4/7th share in five equal portions. ( 13 ) ONLY issue of substance is what is the effect of the relinquishment by the three major sons of late Shri Jagan Nath Shastri when he died, relinquishment being in favour of their mother. ( 14 ) ON 13th May, 2003, following four issues were framed:i)Whether the parties are equal share in the demise premises as averred in the plaint? ii)Whether the plaintiff is inclusive possession of the second floor of the demise property? iii)Whether defendant No. 1 obstructed plaintiff's occupation on the second floor of the property? iv)Whether the plaintiff paid requisite Court fee as alleged by defendant No. 1 in para No. 2 of the preliminary objections of the written statement? ( 15 ) UNFORTUNATELY, issues framed are full of grammatical errors. iii)Whether defendant No. 1 obstructed plaintiff's occupation on the second floor of the property? iv)Whether the plaintiff paid requisite Court fee as alleged by defendant No. 1 in para No. 2 of the preliminary objections of the written statement? ( 15 ) UNFORTUNATELY, issues framed are full of grammatical errors. Learned counsel for the parties stated that parties understand the issues to mean what is the share of the parties in the suit premises and whether plaintiff is in exclusive possession of the second floor of the suit premises. Counsel agree that the words ? demised premises? means the premises in respect whereof an interest stands conveyed. ( 16 ) SINCE defendants have not pleaded any ouster and have admitted share of the plaintiff in the suit property, learned counsel for defendant No. 1 conceded that requisite court fee had been paid and, therefore, on issue No. 4, it may be held that the requisite court fee has been paid. ( 17 ) I accordingly hold on issue No. 4 that requisite court fee has been paid. Issue Nos. 2 and 3 are irrelevant as nothing turns on the said issues. Suit claims partition. Neither party has pleaded that a partition has already taken place. ( 18 ) THAT for purposes of convenience and mutual enjoyment of the property, different portions were occupied by different family members is irrelevant in a suit for partition when parties admit that partition has not taken place and ouster is not pleaded. I accordingly hold that issue Nos. 2 and 3 are surplus and need not be decided. ( 19 ) ISSUE No. 1 is the only issue which requires adjudication. What is the effect of the act of relinquishment by the plaintiff, mohinder Nath and Satish Kumar Nath in favour of their mother when father died on 12th September, 1958. For, if effect of relinquishment is that the three brothers gave up their rights in the property in favour of their mother, share of the parties to the suit would be as pleaded by defendant No. 1. If not, share would be equal i. e. each party to the suit would have 1/5th share each. ( 20 ) THE relinquishment in question appears to be on the basis of statements made by the three major sons in favour of their mother before the settlement Commissioner. If not, share would be equal i. e. each party to the suit would have 1/5th share each. ( 20 ) THE relinquishment in question appears to be on the basis of statements made by the three major sons in favour of their mother before the settlement Commissioner. In any case, defendants have not proved that the three major sons executed relinquishment deeds and post registration submitted the same to the Settlement Commissioner when claim of Jagan Nath Shastri stood adjudicated and to satisfy the claim the suit property was being allotted. ( 21 ) IN the report published as Ahsan Dar and Ors Vs. Mohd. Dar AIR 1963 jandk 15, it was held that title to immovable property cannot be transferred by mere admission. Title passes by effecting a transfer in any one of the modes recognised by law. That, in mutation proceedings, before Revenue Officers, a gratuitous admission by a party does not convey title. Said decision followed the decision of the Privy Council reported as Nirman Singh Vs. Rudra Partab narain Singh AIR 1926 PC 100. ( 22 ) THE decision noted that section 17 (2) (vi) of the Registration Act, 1908 related to judicial proceedings and to no other proceedings. In the report published as Lakshmibai and Ors. Vs. Bhoja and Ors. AIR 1953 Hyderabad 114, a similar view was taken. ( 23 ) VIEW was reiterated in the report published as Mt. Haliman and Ors. Vs. Md. Manir and Ors. AIR 1971 Patna 385. ( 24 ) IN the report published as Bhoop Singh Vs. Ram Singh Major and Ors. (1995) 5 SCC 709 , it was held that right in immovable property could neither be extinguished nor transferred if value of interest transferred was of the value of Rs. 100/- or upwards save and except by a registered instrument and if it was a result of a court decree, the same required registration. Exception being section 17 (2) (vi) of the Registration Act, 1908 for the reason decrees covered by said provision were the ones which did not create a new right, title or interest in immovable property but declared that a pre-existing right existed in immovable property. ( 25 ) TO convey property means transfer of an estate as in land. This is the narrow meaning. In a wider sense, it would include any form of a transfer inter vivos. ( 25 ) TO convey property means transfer of an estate as in land. This is the narrow meaning. In a wider sense, it would include any form of a transfer inter vivos. Thus, a relinquishment is a transfer. There is merit in the submission of Shri Sandeep Sethi, learned senior counsel for the plaintiff that intention was to facilitate execution of conveyance deed in name of mother, but since three sons were minor, they could not do so. Three major sons did so. That intention was not to relinquish share in the property is evidenced by non-execution of relinquishment deeds. On oral statements made by the three brothers or consent given in writing under an unregistered document, name of mother and three minor sons was mutated in place of the father. This was only to facilitate mutation. ( 26 ) THE fact that the three major sons never intended to relinquish their share in the property and neither family member understood that they would have no interest in the property is evident from the fact that even the major sons occupied different portions of the property. Further assertion of the plaintiff that he contributed money when the first and second floor were built is replied by the defendant with the averments:"11. That the contents of para 11 are vague misleading and incorrect. The ground floor repairs were carried out in 1976 and the petitioner contributed his share to the pooled money as did the defendant No. 1. 12. That the contents of para 12 are wrong and denied as misleading and incorrect. The money for construction of first floor and second floor was partly paid by the respondent No. 1 and partly contributed by the petitioner. This loan was subsequently liquidated. Since the matter at issue is over 12 years old and no records were maintained it is difficult at this stage to identify each family member's share for construction. It is however pertinent to bring out that no issue was raised for 12 years and to raise it at such a belated stage and that too in court defies logic. ? ( 27 ) MOTHER died on 14. 3. 2001. The repairs and additional constructions were effected when the mother was alive. If plaintiff had no share in the property, where was the question of his contributing money when additions were effected in the property. ? ( 27 ) MOTHER died on 14. 3. 2001. The repairs and additional constructions were effected when the mother was alive. If plaintiff had no share in the property, where was the question of his contributing money when additions were effected in the property. Defendant No. 1 has himself stated that plaintiff contributed his share to the pooled money. ( 28 ) THESE admissions of defendant No. 1 as contained in para 11 and 12 of the written statement clinches the issue that there was neither any relinquishment nor family members ever treated that the three major sons of late shri Jagan Nath Shastri had relinquished their share in the suit property. ( 29 ) SUBMISSIONS of learned counsel for defendant No. 1 Shri Satish Bakshi and reliance upon a decision of the Bombay High Court in Income Tax Reference no. 43/1952 decided on 12. 3. 1953 Provident Investment Company Ltd. Vs. Commissioner of Income Tax, Bombay, have therefore no relevance inasmuch as each case has to be decided on its own facts. Submission of learned counsel that there is no concept of temporary relinquishment is neither here nor there for the reason a party may wrongly plead a legal consequence of his act and if it is held that legal consequences pleaded is not what law presumes or requires, would not mean that the court would be precluded from determining the correct legal position on the basis of facts proved on record. I may note that said submission of counsel for defendant No. 1 was predicated in relation to the answer given by the plaintiff in cross-examination when he was questioned on his stand recorded by the Settlement Commissioner that plaintiff had relinquished his share in favour of his mother to which the answer given is that the relinquishment was only on a temporary basis. ( 30 ) I need not deal with the oral evidence for the reason both the parties have relied on the same set of documents obtained from the office of the settlement Commissioner, existence whereof and their contents were not in dispute. Only issue was whether plaintiff and his two other brothers relinquished their share in the suit property and whether the family members treated the property as that of the mother and three minor sons. ( 31 ) I accordingly decide issue no. 1 by holding that the plaintiff and defendant Nos. Only issue was whether plaintiff and his two other brothers relinquished their share in the suit property and whether the family members treated the property as that of the mother and three minor sons. ( 31 ) I accordingly decide issue no. 1 by holding that the plaintiff and defendant Nos. 1 to 4 each have 1/5th share in the suit property. I accordingly pass a preliminary decree to this effect. ( 32 ) SINCE partition has now to be effected, a local commissioner has to be appointed to record evidence and suggest whether property is capable of being partitioned by metes and bounds. If not, further course of action would have to be chartered, depending on the stand taken by the parties under the Partition act. ( 33 ) I appoint Ms. R. Veena, Advocate, 261, Lawyers Chambers, Delhi High court (mobile No. 98114 64269) as the Local Commissioner. After hearing the parties and visiting the site, learned local commissioner would submit a report whether property is capable of being partitioned by metes and bounds. ( 34 ) FEE of the local commissioner is fixed at Rs. 30,000/- to be paid equally by the plaintiff and defendant No. 1. Report would be submitted within three months from the date of receipt of this order. ( 35 ) REGISTRY is directed to issue a copy of this order to the learned local commissioner within three days from today. Post the matter for directions on 7th of December, 2006.