Harish Malhotra, Sr. Adv. with Mr. Rajender Agarwal and Mr. Anoop Kumar, Advs.) v. DALJIT SINGH PAL S/O LATE GURBUX SINGH

The case of the plaintiffs is that the suit property originally consisted Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 4 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV of five flats constructed in the year 1966, funded through equal contributions by all the brothers. Subsequently, in the year 1999-2000, two additional flats were constructed on the second and third floors with joint contributions from all the brothers. It was agreed among the brothers that the newly constructed flats would be rented out, and the rental income would be shared equally. As a result, there are currently seven flats spread across three floors on the suit property.

8. The plaintiffs further contend that plaintiff no. 1 is occupying one flat, while plaintiff no. 2 is occupying two flats. On the other hand, defendant nos. 2 to 4 collectively occupy one flat, whereas defendant no.1 is in possession of three flats. The plaintiffs argue that this distribution is inequitable and does not reflect an equal division of the estate of late Mr. Gurbux Singh.

9. Upon summons being issued, the defendants filed their written statement. Defendant no.1 contends that following the demise of late Mr. Gurbax Singh, the property initially comprised only a single-family, three- bedroom flat on the ground floor. Defendant no.1 claims that he independently financed the construction of three additional flats, i.e., two single-bedroom flats on the first floor and one single-bedroom flat at the rear side of the second floor.

10. With the subsequent increase in the Floor Area Ratio [FAR], defendant no.1 states that further construction was undertaken, converting all three additional flats into double-bedroom flats. Defendant no.1 asserts that the entire cost of this construction was borne exclusively by him. Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 5 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

11. In the written statement, defendant no.1 claims that the discussions regarding the division of the property were held among the brothers and their families, resulting in a mutual agreement, the details of which are as follows:- “(i) the flat at the rear portion on the second floor along with terrace right with the right to construction and ownership, came to the share of Plaintiff no.1. (ii) the flat at the rear portion on the ground floor went to the Plaintiff no, 2. (iii) the flat at the front portion of the ground floor came to Shri Balbir Singh(represented by D2 to D4). (iv) the flat at the front portion on the first floor along with the terrace right to construct and own came to the defendant no.1. (v) the flat at the rear portion of the first floor came to the share of Sh. Surinder Pal Singh (since deceased).”

12. It is the case of the defendants that the terms of the oral partition arrived at between them were as per the desire of their mother and as per their own free will.

13. They further contend that the fact of oral partition and the subsequent taking possession of their respective shares by the brothers is corroborated by the following facts:- “(a) Each of the brothers came into possession of their respective flats and started enjoying the same; (b) The house tax is being paid separately and individually by the brothers for their respective portions; (c) Electricity meters were also separately installed. (d) Vide letter dated 05.03.1999, the Plaintiff no. 1 along with Smt. Ishar Kaur had written to the Executive Engineer, Delhi Vidyut Board for transfer of the electricity meter in his name in respect of the flat at the rear side of the second floor. (e) The Plaintiff no. 1 had written a letter dated 27.07.2009. From the perusal of the said letterit is clear that Plaintiff no. 1 was the owner of the Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 6 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV rear portion of the second floor along with roof rights and he wanted to build the flat upon the said roof for himself. It is also admitted by the Plaintiff no. 1 in the said letter that defendant no.1 had built the flat for himself at his own cost in his portion of the said property. (f) Another letter dated 16.08.2009 written by Plaintiff no. 1 is also demonstrative of the fact that the said property had been divided by metes and bounds and there were certain common areas which were to be maintained and maintenance charges paid by all the parties concerned. (g) Plaintiff no. 1 had let out his flat at the rear portion of the Second Floor and the rent for the same was being regularly deposited in his account, being his income. The Plaintiff no. 1 has not only been treating this as his own income, but has been filling Income Tax Return of the same.”

14. The defendants allege that the plaintiffs, driven by greed and with an ulterior motive to harass the defendants, have instituted this false, frivolous, and baseless suit with an intent to unjustly grab the suit property. The defendants have raised several additional objections in their written statement.

15. Upon completion of the pleadings, this Court, by order dated

21.07.2017, framed the following issues:- “(1) Whether the suit does not disclose cause of action? OPD (2)Whether the suit is not properly valued for the purposes of court fee? OPD. (3)Whether this suit of partition is not maintainable on the ground that the property has already been partitioned allegedly in the year 1998 and the parties are allegedly in possession of their respective portions? OPD. (4) Whether the plaintiff is entitled to a decree of partition of the subject property, as prayed? OPP. (5) Whether the plaintiff is entitled to a decree of permanent injunction as prayed in prayer clause (b)? OPP (6) Whether the plaintiff is entitled to a decree of rendition of accounts against defendant No.l? OPP. (7) Relief.”

16. The plaintiffs, in order to prove their case, have examined the Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 7 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV Facts and Documents Sought to be Proved by Way of Evidence a. To bring the original record/file in respect of property bearing no.F- 62, Green Park Main, New Delhi. a. To bring the original record/file in respect of CRN No.2550070699, New K. No.2551 0B23 0030 of Mr. Dalip Singh (Mr. Daijit Singh), Add.: F-62. F/F, F-47 to F-65, Green Park 16. b. To bring the original record/file in respect of CRN No.22550070459, New K. No.2551 L708 0009 of Mr. D. S. Pal, Add.: F-62. S/F, F/F, Green Park 16. c. To bring the original record/file in respect of CA No. 100137230, CRN No.2550070674 of Mr. Kanwar Surjeet Singh, Add.: F-62, S/F, Green Park, New Delhi 110016. To bring the complete file/account statement of account no. 007101076636 of Mr. Kanwar Surjeet Singh. following witnesses:- S.No Full Name Complete Address MCD-House Tax Department South Zone, Green Park, New Delhi BSES Rajdhani Power Limited ICIC Bank, Green Park (Branch), New Delhi 150, Kariappa Marg New Delhi 62 F-62, Green Park, New Delhi 16 USA USA

1. The Clerk Concerned, Office Assistant Assessor & Collector.

2. The Clerk Concerned.

7. The Clerk Concerned, Mr. D. S. Pal S/o Late Gurbaksh Singh Mr. Satinderjit Singh S/o Late Baibir Singh Mr. Charanjit Singh S/o Late BaibirSingh Mr. Harjeet Kaur D/o Late Baibir Singh

17. The plaintiffs have exhibited following documents:- No Name/Nature of Document. Exhibit Number

1. Certified copy of Sale Deed Executed by Urban Improvement Housing & Construction Co Pvt Ltd in favour of Sh Gurbux P1 Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 8 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV Singh duly executed on 18.04.1961.

2. Certified copy of Lease Deed dated 2.8.1966 between Smt Harbans Kaur and Others in favour of Shri Balbir Sineh and Others. Photo Copy of Sale Deed dated 08.06.1998 executed by Shri Surinder Pal Singh in favour of Wg Cdr Amolak Singh.

3. P2 PW 1/2

18. The defendants, on the other hand, have examined the following witnesses, and exhibited the following documents:- to Executive Engineer, Delhi Vidyut Board dated D39 S.no Name/Nature of Document.

2. Letter to Executive Engineer, Delhi Vidyut Board dated

05.03.1999 for transfer of electric meter by Smt. Lshar Kaur. 3. Letter dated 27.07.2009 issued by Mr. K. Singh and original envelop along with typed copy.

4. Letter dated 16.08.2009 written by Plaintiff no. 1 along with

5. Letter dated 12.07.2009 written by Plaintiff no. 1 along with original envelope. original envelope.

6. Letter

05.03.1999 for transfer of electric meter by Smt.Lshar Kaur. 7. Electricity bill dt.03.08.2009 issued by BSES in favour of Kanwar Surjeet Singh (Plaintiff no.1)

8. Electricity bill dt.27.09.2012 in the name of Kanwar Surjeet Singh

9. Electricity bill dt.29.11.2012 in the name of Kanwar Surjeet Singh (plaintiff no.1) (plaintiff no.1)

10. Receipt dt.31.03.2009 issued by MCD in favour of Kunwar Surjit Singh (Plaintiff no.1), copy of Self Assessment property tax form (2008-09) and copy of cheque along with typed copy.

11. Receipt dt.23.05.2009 issued by MCD in favour of plaintiff no.1 alongwith copy of property tax form (2009-10)

12. Receipt dt.28.10.2004 issued by MCD in favour of defendant No.1 13. Annexure I of Form C, issued by MCD in favour of defendant no.1 along with typed copy.

14. Receipt dated 26.07.2005 issued by MCD in favour of defendant no.1

15. Property information and self assessment form (2005-06) issued by MCD in favour of defendant no.1 along with typed copy. 16. Leave and Licence Agreement dated 15.10.2006 between Daljeet Singh & Sons (HUF) through its karta defendant no. 1 and Shri Exhibit Number D39 D19 D40 D41 D20 D28 D29 D16 D17 DW1/3 DW1/2 DW1/5 DW1/4 DW1/27 Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 9 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV Sung Rak Cho.

17. Leave and Licence Agreement dated 15.11.2006 between Daljeet Singh & Sons (HUF) through its karta defendant no.l and Shri Raaj Sah.

18. Leave and Licence Agreement dated 29.12.2006 Daljeet Singh & Sons (HUF) through its karta defendant no.1 and Shri Segna Livid. Inventory list dated 28.06.2009 along with typed copy.

19. 20. Deposit slip dated 04.08.2009 for Rs. 1 lac deposited in the account of Kanwar Surjeet Singh along with typed copy.

21. Deposit slip dated 18.08.2009 for Rs.50,000/- deposited in the account of Kanwar Surjeet Singh along with typed copy.

22. Deposit slip dated 17.01.2012 for Rs.120,000/- deposited in the account of Kanwar Surjeet Singh (plaintiff no.1) along with typed copy.

23. Letter dated 25.03.2012 written by plaintiff no.1. 24. Letter dated 01.07.2012 along with typed copy. 25. Original letter dated 05.07.2012 issued to defendant no.1 by plaintiff no.1 along with typed copy.

26. Deposit slip dated 14.06.2012 for Rs.50,000/- deposited in the account of Kanwar Surjeet Singh (plaintiff no.1) along with typed copy.

27. Leave and Licence Agreement dt. 28.12.2012 between Kunwar Surjeet Singh (plaintiff no.1) and Shri Ashok Chowdhary. 28. Deposit slip dated 29.12.2012 for Rs.1,00,000/- deposited in the account of Kunwar Surjeet Singh (plaintiff no.1) along with typed copy.

29. Letter dated 14.01.2013 issued by Kishan Bhaniramka issuing cheque amount to Rs. 1,20,000/- in favour of Kanwar Surjit Singh. 30. Deposit slip dated 20.02.2013 for Rs.500,000/- deposited in the account of Kanwar Surjit Singh (plaintiff no.1) along with typed copy.

31. Deposit slip dated 20.02.2013 for Rs.30,000/- deposited in the account of Kanwar Surjit Singh (plaintiff no.1) along with typed copy.

32. Deposit slip dated 06.03.2013 for Rs.30,000/- deposited in the account of Kanwar Surjit Singh (plaintiff no.1) along with typed copy.

33. Deposit slips dated 15.04.2013 for Rs.25,000/- & Rs.30,000/- deposited in the account of Kanwar Surjit Singh (plaintiff no.1) along with typed copy. DW1/28 DW1/29 D-18 D21 D22 D23 D24 D25 D26 D27 D30 D31 D32 D33 D34 D35 D36 Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 10 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

34. Deposit slip dated 30.04.2013 for Rs.60,000/- deposited in the account of Kanwar Surjit Singh (plaintiff no.1) along with typed copy.

35. Deposit slip dated 06.05.2013 for Rs.25,000/- deposited in the account of Kanwar Surjit Singh along with typed copy

36. Email dt. 31.05.2013. D37 D38 PW1/D22

19. The Court shall now proceed to adjudicate the issues framed on

21.07.2017. 20. The onus of proving Issue No. 1, relating to the absence of a valid cause of action, and Issue No. 3, concerning the alleged oral partition of the suit property in the year 1998, lies upon the defendants. Given their interrelated nature, these issues shall be considered conjointly. The outcome of Issues No. 1 and 3 will necessarily inform the determination of the subsequent Issues No. 4, 5, 6, and 7, which pertain to the valuation of the suit and require prior adjudication. As regards Issue No. 2 being whether the suit has been properly valued for the purposes of court fees, it is noted that during the course of arguments, the defendants did not advance any substantive contention(s) on this issue. Neither was the same emphasised by any party nor dealt with by the Court in detail. Accordingly, the Court considers it appropriate to refrain from recording any finding on Issue No. 2. 21. The substantive issues encapsulated in Issue No. 1 and 3 pertain to the maintainability of the suit, on the grounds that the plaint does not disclose a cause of action and that the suit property was purportedly partitioned in the year 1998, thereby rendering the present suit for partition untenable, are required to be addressed conjointly. Should these issues be adjudicated in favour of the defendants, the necessity of examining the remaining issues would not arise. Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 11 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

22. The present civil suit has been instituted for the partition and possession of the suit property. The plaintiffs assert that the suit property remains undivided and unpartitioned. Until such partition is duly effected, it is their contention that each co-sharer is legally deemed to be in constructive possession of every portion of the suit property. Reference can be made to a decision of the Division Bench of this Court in Rajbir v. Padma Devi1, wherein reliance has been placed on the decision of the High Court of Punjab in Sant Ram Nagina Ram v. Daya Ram Nagina Ram2, wherein, the following position of law has been settled:- “29. Law is clear that possession by one co-sharer, in the eyes of law, is possession of all and a mere occupation of a large portion or even of an entire joint property necessarily does not amount to an ouster or a proof of partition. In the decision AIR 1961 Punjab 528, Sant Ram Nagina Ram v. Daya Ram Nagina Ram, it was held as under: “(1) A co-owner has an interest in the whole property and also in every parcel of it. (2) Possession of joint property by one co-owner is in the eye of law, possession of all, even if all but one are actually out of possession. (3) A mere occupation of a larger portion, or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. (4) The above rule admits of an exception when there is ouster of a co- owner by another. But in order to negative the presumption of joint possession on behalf of all, on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a co-owner openly asserts his own title and denies that of the other. (5) Passage of time does not extinguish the right of the co-owner who has been out of possession of the joint property except in the event of ouster of abandonment. (6) Every co-owner has a right to use the joint property in a husband like manner not inconsistent with similar rights of other co-owners. (7) Where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to any 12008 SCC OnLine Del 1291 2AIR 1961 Punjab 528 Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 12 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV body to disturb the arrangement without the consent of others except by filing a suit for partition.”

23. The determination of Issues Nos. 1 and 3, concerning the alleged oral partition, necessitates a thorough examination of the evidence presented by the parties. Furthermore, the defendants contend that the suit is barred as the suit property has already been partitioned, thereby negating any claim for fresh division. Given that both issues challenge the maintainability of the suit and the existence of a cause of action, the onus to prove these issues rests entirely upon the defendants. Submissions on behalf of the defendants on Issues No.1 and 3:-

24. Mr. Atul Nigam, learned counsel for the defendants, submits that the division of the suit property took place in 1998, whereby, the respective flats were allotted to the parties as per their shares. The said allotment as per the version of the defendants is reproduced hereunder:- S.No Name of the Party Share in the Subject Property. a. Plaintiff no.1 b. c. d. e. Plaintiff no.2 Defendant No.1 Defendant No.2 to 4 Late Mr. Surinder pal Singh. Flat at the rear portion of the second floor along with terrace right with the right to construct. Flat at the rear portion on the ground floor Flat at front portion on the first floor along with terrace right with the right to construct. Flat at the front portion on the ground floor. Flat at the rear portion on the first floor.

25. He asserts that the oral partition in 1998 is evidenced through various Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 13 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV communications, letters, and other contemporaneous documents, along with the conduct of the parties over the years. He further submits that the manner in which the parties have dealt with the property post the year 1998, such as the collection and distribution of rental income, payment of property taxes, settlement of utility bills, and maintenance of individual portions, corroborate the fact that the oral partition had already been effected and acted upon. According to him, the overall conduct of the parties clearly indicates their recognition of the partition, and the present suit is an afterthought, aimed at unsettling an arrangement that has been in place for decades.

26. Learned counsel for the defendants places reliance on various documents to substantiate the claim that an oral partition had indeed taken place in 1998 and was acted upon by all the parties. He draws the attention of the Court to the letter dated 27.07.2009 (Exhibit D-19) by plaintiff no. 1. According to learned counsel for the defendants, this letter records an admission by plaintiff no. 1, acknowledging ownership of the rear second- floor flat along with roof rights. The letter further reflects that plaintiff no. 1 desired to construct an additional flat on the said roof, similar to defendant no.1, who had built a flat over his allotted portion after the partition. However, due to legal restrictions, plaintiff no. 1 was unable to do so, and was persuading defendant no.1 to construct it for him. Additionally, the letter seeks a settlement of accounts concerning common areas of the suit property, proposing division into seven portions corresponding to the seven flats in the building.

27. He further takes the Court through letter dated 16.08.2009 (Exhibit D- Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 14 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV 40) by plaintiff no. 1, wherein, according to him, this letter reflects that after the partition by metes and bounds in 1998, common expenditure of the property was limited to maintenance charges for the common areas, which Plaintiff no. 1 acknowledged as his concern.

28. Learned counsel then drew the attention of the Court through the cross-examination of plaintiff no. 2, wherein plaintiff no. 2 purportedly admitted during cross-examination that he had been paying separate electricity and water charges through an independent water connection, indicating exclusive ownership and independent possession. Additionally, the electricity connection for flat in possession of plaintiff no. 1 was transferred from the mother of the brothers, pursuant to her letter dated

05.03.1999 (Exhibit D-39), which explicitly recognized plaintiff no. 1 as the owner of the rear-side flat of the suit property.

29. He also places reliance on the rental transactions by plaintiffs and defendants to contend that plaintiffs nos. 1 and 2 have independently let out their respective flats and collected rent without any interference from their brothers. Similarly, the defendants have also leased out their portions and collected rent individually without sharing any rental income among themselves. This pattern of conduct, according the defendants, unequivocally supports the existence and implementation of an oral partition.

30. On the acquisition of the first-floor rear flat by plaintiff no. 2 from Mr. Surinder Pal Singh through a direct sale, learned counsel contends that the same has taken place, without the involvement of his brothers. Learned Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 15 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV counsel for the defendants contends that, based on this transaction between plaintiff and Mr. Surinderpal Singh, without permission/release/consent from the other defendants, he contends that the flat of Mr. Surinderpal Singh was considered as his distinct, separately owned property, post-partition.

31. Based on these documents and admissions, learned counsel for the defendants asserts that the plaintiffs have unequivocally treated their respective portions of the property as independently owned, further substantiating the claim that the suit property was indeed partitioned in

1998. Submissions on behalf of the plaintiffs on Issues No.1 and 3:-

32. Mr. Harish Malhotra, learned senior counsel appearing on behalf of the plaintiffs, vehemently opposing the submissions advanced on behalf of the defendants, has drawn the attention of the Court to the cross-examination of defendant no.1, and submits that the testimony of defendant no.1 is rife with contradictions and inconsistencies, which cast serious doubt on the veracity of his claim regarding the alleged oral partition in 1998. He guides the attention of the Court to the deposition of DW1, who in his written statement has categorically asserted that partition of the suit property was effected among the family members in 1998. In his affidavit of evidence, he reiterated this claim, stating in para 3 as follows:- “The suit is not maintainable as partition of the property has been effected by metes and bounds in 1998 amongst five brothers i.e., the sons of Gurbax Singh.” Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 16 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

33. However, learned senior counsel submits that, when subjected to cross-examination, the responses given by defendant no.1 revealed significant inconsistencies. In response to Question No. 6, he confirmed that the oral partition was effected in the presence of six individuals, i.e., the five brothers, and their mother. In response to Question No. 7, he stated that their mother had convened a meeting wherein the suit property was divided into five shares. Further, in response to Question No. 11, he insisted that the meeting was held in November or December of the year 1998, and that all five brothers were present.

34. However, in response to Question No. 135, Defendant No.1 admitted that in June 1998, Surinderpal Singh had sold his undivided share in the suit property to Plaintiff no.2, Wg Cdr Amolak Singh, through a registered sale deed. In response to Questions No. 141 and 142, he admitted that after the sale, possession of the first-floor rear flat was handed over to Plaintiff no.2, and Surinderpal Singh moved out of the suit property and left for Karnal.

35. The most significant inconsistency, according to the plaintiffs, emerged in response to Question No. 143, where defendant no.1 was specifically confronted with the fact that plaintiff no.1, Kanwar Surjeet Singh, who resides in the UK, had never visited India in 1998, including during November and December of 1998. Upon being confronted, defendant no.1 conceded that plaintiff no.1 may not have been in India at the time, however, he then attempted to qualify his earlier statements by asserting that he did not remember the exact month or year of the partition but that plaintiff no.1 was present in Delhi when the partition was effected. Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 17 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

36. Learned senior counsel submits that the responses given by defendant no.1 to Questions No. 144 to 150 further exposed the shifting nature of his stance. Initially, he set up a definite case that an oral partition had taken place in 1998, specifically in November or December of 1998. However, upon being confronted with evidence establishing that plaintiff no.1 was not even in India during that period, defendant No.1 retracted from his earlier stand and became evasive, stating that he could not recall the exact year or date when the partition took place. It is, thus, contended that this contradiction between the written statement, affidavit of evidence, and oral testimony clearly belies the credibility of the claim of defendant no.1 that an oral partition had taken place in 1998.

37. Learned senior counsel further submits that this shifting stand and clear attempt to backtrack from the original assertion, only when confronted with documentary evidence, demonstrate that the plea of oral partition is nothing more than a belated afterthought, aimed at defeating the legitimate rights of the plaintiffs over the suit property.

38. Learned senior counsel contends that the reliance placed by the defendants upon the letter dated 16.08.2009 (Exhibit D-40) is misplaced, as the letter merely indicates the existence of seven distinct portions within the suit property and provided for an apportionment of maintenance costs into seven shares. He submitted that the said letter, by itself, does not reflect, establish or evidence for any concluded oral partition among the parties.

39. Further rebutting the letter dated 27.07.2009 (Exhibit D-19), learned senior counsel submits that the contents of this letter are merely indicative of Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 18 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV correspondence exchanged between the parties for the purpose of exploring the possibility of further construction upon the suit property. He submits that this communication, on a plain reading, does not even remotely suggest or establish the existence of an oral partition among the parties. Thus, according to him, none of the documents cited by the defendants substantiate their case regarding an oral partition.

40. I have heard learned counsel for the parties and have perused the record on Issue No. 1 and Issue No. 3.

41. As noted earlier, Issue No. 1 and No. 3 relate specifically to the contentions of the defendants that the plaint fails to disclose any cause of action, and further, that the suit property already stood partitioned in the year 1998, thereby rendering the present suit for partition not maintainable. The Court is of the considered view that if issue no. 1 and issue no. 3, the burden of which rests upon the defendants, are decided in their favour, it would obviate the necessity of adjudicating upon the remaining issues.

42. The fate of the instant suit, as gleaned from the arguments advanced, hinges on the existence of a valid oral partition allegedly effected in 1998 among all the sons of late Mr. Gurbux Singh and their mother. Before examining the factual aspects to determine whether such an oral partition took place, it is necessary to first consider the legal position as to whether a partition effected orally, without being formalized through a written document or instrument, can be regarded as valid in law. Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 19 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV

43. In H. Vasanthi v. A. Santha3, the Supreme Court has observed that there is no prohibition against effecting a partition through means other than a written instrument, provided the requirements of law are duly complied with. The relevant portion of the said decision reads as under:- “15. We are alive to the principle that there is no prohibition to effect a partition otherwise than through an instrument in writing by duly complying with the requirement of law. In other words, the division may also be effected under a settlement or oral understanding…”

44. Thus, it is seen that the aforenoted does not prohibit the validity of oral partition. However, the Supreme Court in Vineeta Sharma v. Rakesh Sharma4, has outlined the contours of the stringent requirements for proving the existence of an oral partition. The Court cautioned that an oral partition or an unregistered memorandum of partition can be fabricated at any point in time and, in the absence of any contemporaneous public document, must be rejected in all but exceptional cases. The Court further noted that partition should not be inferred merely on the basis of the preponderance of probabilities. Historically, execution of a registered partition document was not always a necessity, and parties would rarely approach the Court, unless reconciliation within the family was impossible.

45. It is important to contextualize the said dictum. The observations in Vineeta Sharma arose in the specific backdrop of succession rights of women under the amended Hindu Succession Act, 1956, and the Court therein was primarily cautioning against the routine invocation of an oral partition as a defence to defeat statutory inheritance rights of daughters. In 32023 SCC OnLine SC 998 4(2020) 9 SCC 1 Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 20 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV contradistinction, the present case does not involve any issue concerning the inheritance rights of a female heir or the application of any beneficial legislation intended to protect the interests of a specific class. Rather, the present dispute pertains exclusively to the question of partition among five brothers, and no special statutory protection is pleaded or attracted in the factual matrix of this case.

46. It is a settled principle of law that in civil proceedings, the standard of proof is not that of proof beyond reasonable doubt, but one based on the preponderance of probabilities. While adjudicating issues arising in a civil suit, the Court is required to weigh the evidence on the scale of probabilities, assessing which version appears more probable in the light of the surrounding circumstances. This position has been consistently reiterated by the Supreme Court, including in N.G. Dastane (Dr) v. S. Dastane5, wherein it was held that the normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities.

47. As explained therein, under Section 3 of the Indian Evidence Act, 1872, a fact is said to be proved when the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent person, when faced with conflicting probabilities, is expected to act upon the supposition that the fact exists if, 5(1975) 2 SCC 326 Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 21 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV on weighing the various probabilities, the preponderance lies in favour of the existence of that fact. The first step in this process is to exclude the impossible; and the second is to reject the improbable. Within the broad range of possibilities, it is this choice that ultimately determines where the preponderance of probabilities lies. As the Court further noted, “the nature and gravity of an issue necessarily determine the manner of attaining reasonable satisfaction of the truth of the issue,” and therefore, issues affecting the status of parties may demand closer scrutiny comparatively routine matters.

48. Even within the framework of the standard of preponderance of probabilities, the Court recognized that the degree of probability required is necessarily dependent on the nature and gravity of the subject matter. As observed by the Supreme Court in State of U.P. v. Krishna Gopal6, that“The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge.”

49. The present case, being one seeking partition and declaration of shares in ancestral or joint family property, is manifestly a civil disspute governed by the general principles applicable to civil adjudication. It is well 6(1988) 4 SCC 302 Signature Not Verified Signed By:AMIT KUMAR SHARMA Signing Date:09.05.2025 12:13:25 22 Signature Not Verified Signed By:PURUSHAINDRA KUMAR KAURAV settled that a suit for partition is essentially a civil proceeding, to be tried in accordance with the Civil Procedure Code, 1908, and the Indian Evidence Act, 1872. The standard of proof in such matters is that of preponderance of probabilities and not proof beyond reasonable doubt. In Devendra v. State of U.P.7, the Supreme Court, while dealing with a petition to quash criminal proceedings wherein the core dispute pertained to partition between co- sharers, observed, relying upon Kamaladevi Agarwal v. State of W.B.8, that a partition dispute is, in essence, a civil dispute, and must be resolved on the basis of probabilities, unlike criminal cases which require strict standards of proof. Accordingly, even in partition suits, the Court must assess the oral and documentary evidence with reference to what appears more probable in the given facts and circumstances.

50. Accordingly, this Court finds no legal impediment in evaluating the existence and effect of the alleged oral partition on the touchstone of preponderance of probabilities, as is ordinarily applied in civil adjudication.

51. Furthermore, the determination of fact that, whether an oral partition has taken place, can also be assessed through corroborative evidence, as elucidated in Subraya M.N. v. Vittala M.N.9, wherein, the Supreme Court observed that when the terms of a family settlement or arrangement are reduced in writing, registration becomes mandatory. However, the Court also noted that the conduct of the parties and surrounding circumstances must be examined to determine whether there was an actual division in the