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The Delhi High Court dismissed the present appeal filed against the judgment dated February 1, 2022 whereby a preliminary decree assessing the respective shares of the parties in the joint properties was made under Order XLIII Rule 1 of CPC on account of it being barred by time under the Limitation Act , 1963.
A Division Bench of Justice Mukta Gupta and Justice Neena Bansal Krishna dismissed the present appeal instituted by the appellant assailing the judgment dated February 1, 2022 whereby a preliminary decree assessing the respective shares of the parties in the joint properties was made under Order XLIII Rule 1 of CPC, by observing that Section 45 of the TPA , stipulates that contributions towards consideration made from joint funds may be ascertained in the ratio in which the two persons have their interest in the fund. In the absence of any evidence of their respective shares, it shall be presumed to be equal interest.
The present appeal was filed under Section 96 read with order XLIII Rule 1 of CPC, 1908 read with Section 10 of the Delhi High Court Act, 1966 against the judgment dated February 1, 2022, whereby a preliminary decree of partition determining the respective shares of the parties in the joint properties, has been made under Order XII Rule 6 of the CPC.
It was the case of the plaintiff/ appellant that he filed a suit for partition, declaration, mesne profits, mandatory & permanent injunction against the respondents in respect of the properties mentioned in the suit. It was further claimed by the appellant that he took a plea in his petition that he had paid 80.55% of the sale consideration and was entitled to a share to the said extent in the suit property. Moreover, there was an oral agreement by virtue of which the first respondent had agreed to execute a Relinquishment Deed in his favor making him an absolute owner of the suit property.
To affirm the consideration amount, the appellant wanted to append the relevant documents on the record in order to support his assertion during trial.
Facts background of the case was such that an appeal under Section 96 read with order XLIII Rule 1 of CPC, 1908 read with Section 10 of the Delhi High Court Act, 1966 has been filed by the plaintiff/appellant against the judgment dated 01 st February, 2022, whereby a preliminary decree of partition determining the respective shares of the parties in the joint properties, has been made under Order XII Rule 6 of the CPC.
The appellant made averments in his plaint with respect to the suit property that the same was in the joint name of the appellant and the first respondent; however the appellant stated that the sale consideration in respect of the said property was paid in the ratio of 80.55percent by the appellant and the rest by the first respondent. It was also claimed by the appellant that a partial oral settlement took place between the parties in respect of the suit property, in pursuance of which the share property came to the share of the appellant.
Thereafter, the shares of plaintiff/appellant and respondent no. 1 in the suit property was declared as 50% each on the basis of sale deed which was in the joint name of appellant and respondent no.1 by the Single Judge Bench.
Aggrieved by the same, the present appeal was preferred by the appellant.
This Court while taking the consideration of the appellant with respect to the fact that he 80 % of his contribution of the sale consideration and was thus entitled to 80 % of the share in the suit property and not 50% has declared by the impugned judgment, observed that the sale deed was silent about the extent of the shares of the appellant and the first respondent respectively, however the share must be in the ratio of 80 % of the appellant and 20% of the first respondent in view of Section 45 of the Transfers Property Act.
The Court further observed that the basic premise of the appellant to claim a share to the extent of 80% is without any foundation.
Additionally, the Court observed that the appellant attempted to confound the entire facts " the payment of sale consideration with the contribution of the money being put by either party in the joint account from which the EMI repayment of loan was made
With respect to Section 45 of the TPA , the Court opined that the said Section stipulates that contributions towards consideration made from joint funds may be ascertained in the ratio in which the two persons have their interest in the fund. In the absence of any evidence of their respective shares, it shall be presumed to be equal interest.
It was further submitted by the Court that Section 45 of the TPA would not be attracted in the instant case as the same would not be attracted in a situation where in the loan is being repaid. The parties may repay the loan in any manner or in any ration as per their mutual agreement, the Court noted. Thus, the remedy under Section 45 sought by the appellant was not available in the present case, the Court remarked.
Further with reference to the oral agreement as claimed by the petitioner, the Court referred to Sections 91 and 92 of the Indian Evidence Act stating that the said sections nullifies any oral evidence in regard to covenants of a written document.
Reliance was placed on the Apex Court judgment in the case of Placido Francisco Pinto (D) By Lrs & Anr. v. Jose Francisco Pinto & Anr, wherein it was observed no evidence of any oral agreement or statement shall be admitted for the purpose of contradicting, varying, adding or subtracting from its terms.
Additionally, the Court was of the opinion that the averments made in the plaint also need to be considered in the light of the Limitation Act, 1963. In respect of the same, the Court noted that the sale deed was executed on October 12, 2011 mentioning the appellant and the first respondent as the joint owners of the property. If the appellant was aggrieved of the same, he should have assailed the same within the period of three years from the date of registration of sale deed, the Court submitted. Since the appellant failed to conted the same, thus the appeal was barred by time, the Court noted.
The Court further analyzed the scope and concept of the oral family agreement. In view of the same the Court stated that there was no dispute about the proposition that an oral agreement may be acted upon by the parties without its formal registration provided it is established by some cogent evidence. However, in the present case what has been raised by the appellant is merely a vague plea of oral agreement, the Court remarked.
Reliance was placed in the Supreme Court judgment in the case of Vineeta Sharma vs. Rakesh Sharma & Ors, wherein it was observed that a plea of oral partition cannot be accepted as the statutory recognized mode of partition because a deed of partition must be registered under the provisions of the Registration Act, 1908 or affected by a decree of a Court.
Lastly, the Court concluded that the appellant claimed that as per the oral agreement, the first respondent was suppose to execute the relinquishment deed in the favor of the appellant, however, this Court could not find any trace of such relinquishment deed being executed by the first respondent in the favor of the appellant.
In light of the aforesaid observations, the present appeal was dismissed on account of being meritless.
Case name: DR. SURAJ MUNJAL Vs. CHANDAN MUNJAL
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