(1) This is a suit seeking partition of property No. B-4/72, Safdarjung Enclave, New Delhi, for separating the half share of the plaintiffs by metes and bounds.
(2) Plaintiff No. I is the father of defendants 1 & 3 while plaintiff No. 2 is the second wife of plaintiff No: I while defendants 1 & 3 were born from the first wife of plaintiff No. 1. Defendant No 2 is the wife of defendant No. I Plot No. 72 Block No. B-4 of Safdarjung Residential Scheme measuring 397.7 Sq. Yards was acquired by way of perpetual lease from the President of India in the names of plaintiff No. 2, defendant No. 2 and defendant No. 3. The possession was obtained in the year 1968. Lease deed was executed on February 21, 1971. The plot was acquired for a consideration of Rs.54,200.00 . It is the case of the plaintiffs that the plaintiff No 1 is the real owner of half share in the said lease hold rights of the plot and he has acquired that share Bunami in the name of his wife plaintiff No. 2 and plaintiff No. 1, in fact, is assessed with regard to his income on the value of the above said plot and the building constructed over there in the income tax and wealth tax department. It is pleaded that plaintiff No. I has contributed a sum of Rs. 40,660.00 in the payment of the premium of the said plot including the expenses incurred on the stamp and the registration charges of the lease deed. It is averred that defendant No. I has contributed Rs. 7,550.00 in the payment of the premium of the said plot and he is owner of one-fourth share in the said plot which he acquired Benami in the name of his wile defendant No. 2 and defendant No. 1 as similarly assessed to the income-lax and wealth tax with respect to the said one-fourth share. Defendant No. 3 is stated to be owner of one-fourth share and he having contributed Rs. 10,000.00 in the premium pertaining to the said plot and is also assessed similarly in the income- tax and wealth tax department. The one and a half storey building is stated to have been constructed on the said plot in the year 1972-74 According to the plaintiffs, plaintiff No, 1 had contributed a sum of Rs 60,000 in the construction of the building whereas defendant No. 1 contributed a sum of Rs. 15,600.00 and defendant No. 3 bad contributed a sum of Rs. 11,970.00 . It is mentioned that in the income-tax and wealth-tax department plaintiff No. l is assessed on one-half share of the said building where defendants l & 3 are assessed to the tune of ore fourth share each in the said building. Plaintiffs and defendants are stated to be in possession of ihe above said properly and have been paying lease money and house-tax according to their respective shares.
(3) Defendants 1 & 2. in their joint written statement pleaded that defendant No. I had worked with plaintiff No. 1, his father, since the year 1948 and was actively involved in running a Kiryana shop of his father and defendant No. I used to live and sleep at the shop itself and this shop was originally located in Khanna Market and there has been no accounting between plaintiff No. 1 and defendant No. I regarding the earnings from the said shop even after defendant No. I had attained the age of majority. It is pleaded that the entire earnings from the Kiryana shop were due to the result of joint efforts and plaintiff No. I being the father had kept the accounts in the manner as it pleased him. It was controverter that the plaintiff had contributed a sum of Rs.40,660.00 towards the premium of the plot. It is pleaded that in fact, the premium of the plot was paid from the joint income of plaintiff No. I and defendant No. I from the Kiryana shop and some money had been contributed by defendant No. 2 from her own savings derived from her own income as a teacher. It was controverter that defendant No. 2 is a Benami and it is pleaded that she had contributed some money from her own savings towards the premium of the plot. It is then pleaded that the joint accounts were kept by plaintiff No. I and plaintiff No. I appeared to have juggled the account to suit his convenience and the returns of income-tax had been filed at the behest of plaintiff No. I by defendant No. 1. It is further averred that defendant No. 3 used to work at another shop and had contributed squally to the earnings of the family and for the sake of his own convenience, plaintiff No I had got executed a partnership deed between defendant No. I and defendant No. 3 with respect to the shop of R K Puram but the profits from the said shop were as well controlled by plaintiff No. I who was managing the finance of the entire family. So, it is pleaded by defendants 1 & 2 that in fact. the funds for constructing the one and a half storey building bad come out of the joint funds which were being controlled by plaintiff No. I who was Katra of the family. They have controverter that defendant No. I is the owner of only one-fourth share and similarly defendant No. 3 is the owner of only one-fourth share. It is denied that plaintiff No. 1 had contributed a sum of Rs. 69,035.00 and defendant No. 1 had contributed a sum of Rs. 15,600/. and defendant No. 3 had contributed Rs. 11,970.00 in the construction of the building. It is pleaded that the amount of moneys which were shown in the various returns were filed with the inc me.tax department for the sake of convenience of plaintiff No. 1. So, it is pleaded that in fact, defendant No. I, plaintiff and defendant No. 3 have equal share in the property in question whereas defendant No. 2 is the owner to the extent of her respective contribution therein, It is pleaded that the property in question could not be partitioned by metes and bounds particularly when the same is a leasehold property. Defendants 1 & 2 have also set up a counter-claim for rendition of accounts against plaintiff No. I and to have a decree for the money which may be found due, on the plaintiff No. I rendering the accounts of the money received by him in respect of the business being run at the shops at R, Puram and Lodi Colony.
(4) In the replication the plaintiffs controverter the pleas of defendants I & 2 and reiterated their own pleas. It was denied that plaintiff No. 1 was controlling any joint funds of the parties. It is also controverter that there was any joint business of plaintiff No. I and the defendants. It is pleaded that in fact, defendant No. I and defendant No. 3 were having their own separate business and they were themselves filing the returns of income.tax and wealth-tax in which they set up only one-fourth share each for themselves.
(5) Defendant No. 3 in a separate written statement although took the plea that the plot in question had been acquired and the property had been built by joint funds of the parties, had taken up another plea that in fact, plaintiff No. I has sold an ancestral house for a sum of Rs. 23.000 - which amount has been also invested in acquiring the plot and constructing the building thereon. He pleaded that although he has one third share in the property in question yet he would be satisfied with one-fourth share as he did not want to raise any dispute with his father and he concedes that he has one-fourth share in the property in question. He has also prayed for a decree of partition by separating his share as well by metes and bounds.
(6) In replication the plaintiffs have controverter that there was any ancestral properly, rather the plea taken is that plaintiff No. I had acquired a house which he later on sold for a sum of Rs. 23,000.00 . Following issues were framed :-
1. Whether the plaintiffs are the owners of one-half share in the lease hold rights of plot No. 72 Block B-4, Safdarjung Residential Colony, New- Delhi and in the building built on the said plot 2. In case issue No. I is held against the plaintiffs, then what are the shares of the parties in the said property 3. Whether the entire premium for the purchase of the said plot and the cost of construction on it was paid out from the joint income of plaintiff No I and defendant No. 1 from running of Kiryana shops at the Lodi Colony and and R K. Puram 4. Whether the counter-claim filed by defendants 1 & 2 is entertainable in this suit for partition if so, to what effect 5. Whether the property in suit is partition able by metes and bounds If not, to what effect 6. Relief.
(7) An additional issue was framed on May 16, 1989, to the following effect: Additional issue : Whether plaintiff is entitled to the relief claimed in view of the Benami Transactions (Prohibition of Right to Recover Property) Act, 1988 even in all the allegations made in the plaint were accepted as correct
(8) Issues 1, 2, & 3 are interlinked and are being dealt with together.
(9) Counsel for the plaintiffs has argued that the plaintiffs have led sufficient evidence which also includes copies of the income-tax assessment orders of the parties to show that contribution of funds towards the purchases of the plot and construction of the house by the plaintiffs was much more than half and thus, plaintiff are justified in claiming one-half share in the said property and whereas the contributions made by defendants 1 & 2 on the one side and defendant No. 3 on the other side were much less than one-fourth share, still the plaintiffs have agreed to give one-fourth share to defendants 1 & 2 one-fourth share to defendant No. 3. The learned counsel for the plaintiffs has pointed out that at no point of time there were any joint funds of the parties from which any consideration was paid for purchasing the plot or constructing the house He has pointed out that defendant No. I and defendant No. 3 after becoming major have been living separately and have been having separate business and sources of income and at no point of time they had banded over their income or earnings to the plaintiffs.
(10) The learned counsel for defendants 1 & 2, on the other hand, has contended that in the plaint the plaintiffs have not set up the case that there was any agreement between the parties with regard to the share in the property in question and plaintiffs have withhold best evidence with regard to the account books and thus, adverse inference should be drawn that the account books if produced would have shown that there were joint funds of the parties from which the property in question was built. He has also contended that that copies of the income-tax assessment orders are not admissible in evidence:
(11) Section 45 of the Transfer of Property Act lays down that where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respestively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. It is also laid down that in the absence cf evidence as to the interests inthe fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to equally interested in the property. In the plaint or in the written statements, there is no plea taken that there was any contract between the parties as to what share they will have in the property in question. The plaintiff is relying on evidence with regard to the contribution made by each of the parties respectively towards the consideration of the property in question in order to claim one- half in this property. The defendants, however, have set up the plea that there was common funds of the parties in which they had equal shares from which the consideration of the property was paid and in the alternative it is contended on behalf of the defendants that as there is no sufficient evidence to show as to the interests in the found to which they were respectively entitled or as to the shares which they respectively advanced, thus, the parties have one-third shares each in the property in question
(12) As far as oral evidence is concerned the plaintiff-Chiranjilal appeared as Public Witness 1 and deposed as to how and in what manner the plot was purchased and the house was constructed. Admintedly, he had come over to India Cd partition of the country from Aukawara Mandi District Montgomery which has been included in Pakistan where he was having a shop. At the time he came over to India he had two sons i.e. defendant No. 1 and defendant No- 3 and two daughters from his wife Smt. Chanter Kala and he started residing in Ferozpur and at that time defendant No. 1 was aged about 8 years whereas defendant No. 3 was aged about 5 years and the daughters were also very young. His wife had died within two or three days of his settling in Ferozpur and thereafter, he shifted to Ludhiana and got married in 1948 with plaintiff No. 2 and after 4-5 months he shifted to Delhi where be took up a rented house in Aliganj and stayed there till 1953 and he had started a shop in a Jhuggi in Lodi Colony opposite Mehar Chand Khanna Market and was doing business of sale of betel leaves and cigarettes. He came to be allotted a shop bearing No 100, Khanna Market, New Delhi, in 1952 in lieu of the Jhuggi where he started the general merchandise business which he continued till 1970. He deposed that in the year 1960 defendant No. I who had become adult had started the shop in the name and style of Subhash Pustak Bhandar in a Jhuggi at R K. Puram which shop he carried on till about 1964 and then the said Jhuggi was demolished and shop No. 12. R.K. Puram, was allotted in the name of plaintiff No. 2 and defendants 1 & 3 were allowed to have their joint business in the said shop and they started the business under the name and style of National Store. He has also deposed that initially defendant No. 3 in between the year 1960-64 was carrying on his independent business in the name of National Store in a hut in R.K. Puram opposite quarter No. 264, which was close to the hut of defendant No.1 and from 1964 to 1977 defendants 1 & 3 jointly carried on the business in the name of National Store in the said shop No. 12, R.K.Puram, and in 1977 defendant No. 3 left the said business and since then defendant No. 1 alone is carrying on the business in the said shop. He has also deposed that in 1968 a regular partnership deed was also executed between defendant No. 1 and defendant No. 3 in respect of the said joint business and later on a dissolution deed was also executed. Defendant No. 3 is stated to have started doing business of selling goods sitting on roadside since 1977. Plaintiff is stated to have purchased the house D 145, Karbala where the plaintiff and his family members stayed together till the year 1972. He has further deposed that in the year 1972, defendant No. I had shifted to the portion of the suit property and plaintiffs also shifted to the said property whereas defendant No. 3 hod taken a house on rent in Arjun Nagar in the year 1972 Plaintiff has also given facts with regard to his father and brothers which are not relevant for deciding the present suit because it is not the case of the parties that there was any joint Hindu family property of the parties.
(13) Now coming to the property in question he deposed that out of the total premium of Rs. 54,200.00 in respect of the plot in question he had contributed Rs.36,000.00 and the balance was paid by defendants 1 & 3. He has deposed that neither plaintiff No. 2 nor defendant No. 2 had contributed anything although the plot was taken in their names along with the name of defendant No. 3 He has stated that about Rs. 96.000.00 were spent in construction of the house out of which he contributed about Rs. 69,500.00 and the balance amount was contributed by defendant No. 1 and defendant No. 3. Two flats in the ground floor and one flat on the first floor were constructed. The first floor flat is in possession of the plaintiffs while one of the ground floor flats is in possession of defendant No. I and the second ground floor flat has been let out. He was collecting the rent of the said flat and has been paying the house- tax, lease money, and incurring expenses for repairs of the house and has been paying Rs. 700.00 per month to defendant No. 3 from the balance of the rental income. Although in his testimony he referred to an agreement made between the parties by which it was allegedly agreed that one half share would be of the plaintiffs while defendants 1 & 2 on the one side and defendant No. 3 on the other side would have one fourth share each yet as no plea has been set up in the plaint that there was any such agreement, this particular part of the evidence being beyond the pleadings has to be ignored. He proved on record Cpw 1/1 to Cpw 1/25 receipts showing payment of house-tax, Cpw 1/6 to Cpw 1/27 receipts showing payment of sewer tax and Cpw 1/28 to Cpw 1/42 receipts showing payment of ground rent of the plot paid to the Delhi Development Authority and then he proved on record the certified copies of the income.tax assessment orders and wealth-tax orders Cpw 1/43 to Cpw 1/58. He also proved on record copies of certain letters Exs Cpw 1/61 to Cpw 1/62 which show that defendant No. I had made a request to the Ministry of Rehabilitation for getting an alternate premises in place of the hut where he was carrying on business of Subhash Pustak Bhandar. Ex. Cpw 1/63 to Cpw 1/74 are the copies of the income-tax and wealth-tax orders of defendant No. 2 and defendant No. 3. It has also been proved by him that a telephone was taken by making an application in the name of Chiranjilal Bhagwan Dass which telephone has been used by the plaintiffs and has been shifted to their homes where they shifted from time to time. H3 has categorically stated that there was no firm by the name of Chiranjilal Bhagwan Dass. This fact is not disputed. Public Witness I has also two sons and two daughters from plaintiff No 2 and he is carrying on business in Shop No. 7, R.K. Puram Although this shop was allotted in the name of defendant No. 1 in the year 1970 yet as defendant No. 1 and dependant No. 3 had been given shop No 12, R, Puram, which was in the name of plaintiff No. 2, so defendant No, I had given this shop No. 7 to the plaintiffs where Public Witness I and his sons from plaintiff No. 2 are carrying on business. Shop No. 100, Khanna Market, where the plaintiff was carrying on business has been given by him to his other son Ashok Kumar from plaintiff No. 2.
(14) In cross-examination at one stage he has admitted that he was having accounts showing the amount contributed by him for purchasing the plot but has not produced the same but later on he deposed that no such accounts existed. He has been carrying on business in the name and style of Krishna Store. He was cross-examined with regard to the income shown by him in his income-tax returns from his business in order to show that he had not-enough money of having contributed the amount claimed by him towards the purchase of the plot. He has stated that he had taken certain loans for that purpose which be has shown in his return of income-tax. He has stater that be bad kept certain accounts showing the amounts spent on the construction of the house but the same got damaged due to some rains and the trunk which contained the account books aod the income-tax records had got wet due to rains which resulted in damage to the account books but the income-tax record was not damaged. He was confronted with some entries from the account books of the partnership firm of defendant No.1 and defendant No. 3 that certain entries appear in those account books and most of the entries were denied by him although he admitted that on a Dewali day he bad made an entry regarding that auspicious day. He as also confronted with certain income- tax and wealth-tax orders showing that be had been appearing on behalf of defendants I to 3 before the particular officers although this fact was also denied by him. Prior to 1972 be had admitted that defendant No. I was staying with him in D-145, Karbala. It is significant to mention that no suggestions were given to him in the cross-examination that he was controlling the income of all the businesses being run. The only suggestion given was that the payments were made for acquiring, plot and for constructing the building from joint funds which suggestion was, however, controverter by him. It was also suggested to him that income-tax and wealth-lax returns has been filed for his convenience which suggestion was also denied by him.
(15) Sham Lal, defendant No. 3, has appeared as Dw 1/3 and made a brief statement in his examination-in-chief that he and his brother and his father are entitled to one-third share each and they were working together for running the business in a shop. He bad not engaged any counsel in this suit. In the written statement be has already conceded that be is prepared take one- fourth share in the property in question. In cross-examination be admitted that his.father bad started the business of selling betel leaver on shifting to Delhi and thereafter be was allotted a shop in Delhi Colony and stated that in that shop general merchandise joint business was started. It is significant to mention that in:1952, defendant No. 1 and defendant No. 3 were minors. So, the question of there having joint business was their father at that young ages did not arise Mere fact that they might be helping the father sometime in running the business would not make them partners in the business or make the business joint Hindu Family business. He admitted that he was in school a July 1990. He admits that in 1960 his father got him a but where he started his independent business of general merchandise under the name of National Store amd thereafter shop was taken in R.K. Puram, Sector 1, a the name of Plaintiff No, 2 in the year 1961 where he shifted the business and thereafter defendant No. 1 joined him in that business and a partnership deed was executed between defendant No. I and himself as partners and in 1977 that partnership was dissolved. He admits that in 1970 another shop was taken he his father in R.K Puram in the name of defendant No. I and his father had started the business in the name and style of Kumar Store whereas defendant No I is running a general merchandise business and since 1977 he had started business of selling goods while sitting on payment in different place. He has deposed that his father and his brother used to look after the income-tax matters although he used to sign the income tax and wealth-tax returns. At first he deposed that he had not contributed any money in purchasing the plot in question and money came from the common business but he corrected himself and stated that he had paid Rs. 10,000.00 from his own pocket and thereafter he had also paid Rs. 8,000.00 from his own account and be could not say whether Bhagwan lass had contributed towards the price of the plot from his own account and whether any amount had been contributed by defendant No. 2, Bhagwandass's wife. He has stated that the construction of the house was made between the year 1972 to 1974 but be could not say bow such he had contributed from his personal account in the construction of the house : rather be stated that he had taken some money from the bank for contributing towards the construction of the house but he could not remember the amounts. The testimony of this defendant No. 3 rather belies the story of father controlling the funds belonging to defendant No. I and defendant No. 3.
(16) Dw 4 is defendant No. 1 and he stated that he had started living in a hut while other family members lived in a rented house after shifting to Delhi in January 1948. According to him, he and his father had started a joint business initially in a hut for selling cigarettes are betel leaves etc. but admittedly he was a mineral that time and it is not understandable how could he make a statement that he had started joint business with his father. In may 1952 a shop in Khanna Market was allotted and it appears that in 1966 a sample was lifted from that shop by Inspector (Food Adulteration) and defendant No. 1 was prosecuted as the sample was taken from him. Again this particular fact would not show that defendant No. I was having any joint business with his father when the business was being sum in the shop in Khanna Market, may be as a son he could be helping his father in the business. According to him, in a hut opposite R.K. Puram, Sector-IV, a hut was taken and a business in the name and style of National Store was commenced According to him, this was a joint business whereas defendant No. 3 had stated that it was his own business and his statement was not challenged in cross-examination by counsel for defendants 1 & 2. He submits that he had taken a certificate under the Delhi Shops and Establishments Act shoving that 113 was running thi business in the name of Subhash Pustak Bhandar but he stated that he hid taken this certificate to obtain some alternate shop while, in Fact, be had not run any such business. At one stage he had to admit that it was Sham Lal, defendant No 3, who bad started the business under the name and style of National Store in 1963. According to him, he had been carrying on the business in the name and style of National Store after defendant No. 3 left that business. He has deposed that his father was keeping accounts of the business and then he proved on record copies of the account books EM. DW4/1 to 4/49. He admits that he has been filing income-tax and sales-tax returns and at first Shri Kamla Nanda, Advocate, was engaged for this purpose and thereafter, Shri Mittal, Advocate, was engaged and these lawyers worked for him, his brother as well as his father was preparing the accounts for the purpose of income-tax and sales-tax and he used to appear for them before the authorities. He has deposed that up to 1982 his father had remained with him in joint business and he further deposed that sale consideration for purchasing the plot was given out of the income from the joint business of National Store and the house was also constructed from the income from the joint business. In cross-examination be admitted that be and his brother defendant No. 3 Sham Lal had entered into a partnership business in the name and style of National Store and the said partnership was dissolved in 1977 and the father was never shown as a partner or in any way interested in the said business and no entry could be found from the account books of the said partnership business showing that any amount had been withdrawn by Chiranjilal or any amount bad been contributed towards the construction of the house He admitted that he and his wife are assessed to income-tax and wealth-tax since 1964 and they have been filing the income tax returns. He deposed that in 1970 one Shop No. 7 was allotted in his name in R.K. Puram in which his father started the business in that shop and in Khanna Market shop his step brother Ashok Kumar is carrying on the business of repairs of scooter. He admitted that he has met his income-tax lawyer a number of times and he had given a loiter of authority to bids father for appearing on his behalf before the Income tax and Sales tax Authorities. He admitted that in the business of his father which is being run in shop No. 7, he and his brother have no share. He deposed that earlier there had been a joint business with the father but apart from this bald statement there is nothing brought on the record to show that at any time defendant No. 1 and defendant No. 3 had joint business with their father. It is not disputed that defendant No. I has also been appearing sometimes before the Income-tax and Sales-tax Authorities.
(17) The learned counsel for defendant No. I and 2 has vehemently argued that there is no satisfactory evidence available on the record to prove as to what funds had been contributed by each of the parties for purchase of the plot and for construction of the house and thus, it should be held that each bad one-third share. He has contended that the income-tax assessment orders and wealth- tax assessment orders which are based on the income-tax and wealth-tax returns filed by the parties are not admissible in evidence. He has referred to Ss. 13 and 40 to 43 of the Indian Evidence Act in this connection. It is true that the income-tax and wealth-tax assessment orders are not admissible in evidence under Ss. 40 to 42 of the Indian Evidence Act but they arc definitely admissible in evidence under S. 43 as they contain the admissions of defendants 1 to 3 with regard to shares which they were having in the property in question. Counsel for the plaintiff has referred to The Coca- Cola Company of Canada Ltd. v. Pepsi-Cola Company of Canada Ltd. Air 1942 Pc 40, wherein it has been held that the Court is not entitled to refer to or rely upon a judgment given in proceedings to which neither the plaintiff nor the defendant was a party, as proving the facts staled therein. This judgment is not applicable to the facts of the present case because admittedly the defendants have filed the Income-tax and wealth-tax returns which contain the admission regarding their shares and the contribution made by them towards requiring of the property in question. Judgments which are not inter parties could be relevant and admissible under various provisions of the Indian Evidence Act. In Lakshman Govind v. Amrit Gopal, (1900) Jlr 24 Bor 591, it was held that judgments not inter parties, though not conclusive as rest judicata, are admissible in evidence to show the conduct of the parties or particular instances of the exercise of a right or admissions made by the parties. This ratio was follower in Chandulal v. Pushkar Raj Air 1952 Nag 271 and Union of India v. Moksh Builders & Financiers Ltd. MANC/0057/1976 and it was laid down that an admission by a party is substantive evidence of the fact admitted and admissions duly proved are admissible as evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to the admissions. It is not possible to hold the defendants Nos. I to 3 were making admissions in income-tax and wealth- tax returns on the basis of which the assessment or ers were made only to suit the convenience of plaintiff No. 1. They had become matured when the had started doing their own businesses and so, it cannot be said that they were making those admissions only at the behest of their father; rather in the written statement of defendants 1 and 2 and also of defendant No. 3 the averment made in the plaint that such admissions had been made was not disputed and only plea taken was that those admission had been made for the convenience of plaintiff No. 1. It is admitted that at no point of time the defendants have withdrawn those admissions before the authorities concerned. If those admissions are kept in view it is evident that the contribution of defendants I to 3 towards the purchase of plot and for constructing the house in question was not up to the share of one-forth even So, keeping in view the provisions of S. 45 of the Transfer of Properly Act and the contributions made by defendants 1 to 3 towards purchase of plot and construction of the house, it has to be held that according to their contributions they are not entitled to have more than one-fourth share i.e, one-fourth share for defendant No. 2 and one-fourth share for defendant No. 3 and one-half share would be of plaintiff No. 2. At the stage of arguments it was agreed before me that plaintiff No. 2, defendant No. 2 and defendant No. 3 be treated as owners of the properly in question as they are the only persons in v. Lose favor the leave deed of the plot in question stands executed by the Government. The plea that plaintiff No: 2 and defendant No. 2 were holding Benami on behalf of plaintiff No. I and defendant No. I respectively was given up.
(18) The learned counsel for the plaintiff also has made reference to Tehmina Dinshaw Tehrani v. The Official Assignee Air 1976 Mad 222, in which it was laid down that if no evidence is 1ed one way or the other as to source of the purchase money then presumption arises that the property was purchased in equal shares. This judgment is not helpful to the case of the defendants in view of the admissions made by the defendants in their income-tax and wealth tax matters which clearly show that their contribution was not more than one- fourth share in any event.
(19) In view of the above discussion, I declare that plaintiff No. 2 is the owner of one-half share in the property in question whereas defendant No.2 and defendant No 3 are owners of one-fourth share each in the property is question. The issues are decided accordingly in favor of the plaintiffs and against the defendants.
(20) issue No. 4 I have already given a finding that there was no joint business of plaintiff No 1 with defendant No. 1 and defend nt No. 3, thus, the counter-claim of defendants I and 2 seeking rendition of accounts from the plaintiffs is not tenable. Issue is decoded against the defendants.
(21) Issue No. 5 A contention was raised that as there exists a joint lease in respect of the plot in question from the Government and the plot cannot be divided in view of the terms of the lease deed, thus. the properly in question cannot be partitioned by imetes and bounds. Similar question arose for decision in Inderjit Singh v. Tarlochan Singh 1991 Raj Lr 239 and it was held that the super structure built on a plot can be partitioned by mates and bounds according to the respective shares of the parties while keeping the plot underneath the structure as joint and no permission of the Lesser is needed for effecting the partition of the building by metes and bounds. I respectively agree with the ratio expressed in this judgment and bold that no permission is liable to be obtained from the Delhi Development Authority for partitioning the building in question according to the shares of the parties. Now the question Whether physically the building could be partitioned by mates and bounds according to the shares of the parties mentioned above, could be decided only by the Local Commissioner who is to be appointed for suggesting mode of partition.
(22) Additional Issue: This issue now does not arise in view of the concession given by counsel for the-parties that only plaintiff No. 2 defendant No 2 and defendant No3 are to be declared that owners of different shares in the property in question as the lease deed stands in their names only and not in the name of plaintiff No. I and defendant No. 1. So, this issue is decided accordingly.
(23) Issue No. 6 A preliminary decree for partition is liable to be passed.
(24) I pass a preliminary decree for partition declaring that, plaintiff No. 2 is owner of one-half share in the property in question and defendant No 2 and defendant No. 3 are owners of one-fourth share each in the said property and I appoint Mr. B.Mazumdar, S.E., Delhi Central C.P.W.D., IInd Floor, I.P. Bhawan, New Delhi, as Local Commissioner to suggest the mode of partition and also to give his opinion whether the property can be divided by metes and bounds according to the said shares and if so, he should suggest the mode and way of separating the respective shares on the parties. He shall be paid Rs. 5,000.00 as fee by the plaintiffs.