IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR PARTITION Date of Reserve: 5th July, 2007 Date of judgment: November 06, 2007 CS(OS) No.1440/2000 Mela Ram... Through: Plaintiff Ms.Sonia Khurana with Mr. Mohit Gupta, Advocates Versus Joginder Pal Kohli and Ors.... Defendants Through: Mr. Arun Khosla, Advocate for D-1 SHIV NARAYAN DHINGRA J. 1. The plaintiff has filed this suit for partition, possession and permanent injunction against the defendants who are his brothers and sisters. 2. It is pleaded by the plaintiff in the plaint that Shri Ram Kohli, his father, was a member of Refugees Cooperative Housing Society Limited. This Society was founded for the purpose of allotment and distribution of land to its members. The name of the society was later on changed to Punjabi Bagh Cooperative Housing Society Limited. Ram Kohli died in 1956, leaving behind his widow Smt. Lajwanti, plaintiff and defendant No.1 to 5 as his sons and daughters. After death of Ram Kohli, Smt. Lajwanti became the member of the cooperative housing society as Ram Kohli had made her as his nominee in the membership form. It is pleaded by the plaintiff that despite Smt. Lajwanti Kohli having been admitted as a member of Housing Society on the strength of nomination,, all the defendants and Smt. Lajwanti Kohli being the legal heirs of Ram Kohli, inherited the rights in respect of membership of the society and in respect of the allotment of the plot, since Ram Kohli had died intestate. Smt. Lajwanti, therefore was holding membership of the society on behalf of all the legal heirs of late Shri Ram Kohli. In 1962, defendant No.6 i.e. the Cooperative Housing Society allotted plot No.13 at Road No.60 measuring 279.55 sq. yards in favour of Smt. Lajwanti and a sale deed was executed by defendant No.6 in favour of Smt. Lajwanti on 16.4.1962 registered with Sub Registrar on 27.4.1962. The plaintiff submitted that he was running a business at that time and had contributed towards the construction and the cost of building. The construction was raised on the plot in the year 1967. Thus, the plaintiff and other defendants No.1 to 5 and Smt. Lajwanti, all were co-owner of the plot having 1/7th undivided share, despite the
fact that the said deed was only in favour of Smt. Lajwanti. Smt. Lajwanti expired intestate in the year 1968 and after her death, plaintiff and defendant Nos. 1 to 5 became joint owner of the property to the extent of 1/6th undivided share. The plaintiff also claimed that all the sisters namely defendants No. 2 to 5 got married one after another. As all the sisters after marriage lived at their in-laws house, only defendant No.1 remained in possession of the suit property, since the plaintiff was living separately. However this possession of defendant No.1 was a constructive possession of other defendants and plaintiff. The plaintiff and defendant No.1 to 5 did not take any step for getting their shares separated in the suit property. On 1st July, 2000, plaintiff learnt that defendant No.1 was intending to sell the entire suit property to some third party after negotiations, and he was going to sell even undivided share of the plaintiff and other defendants. On 2nd July, 2000, the plaintiff contacted defendant No.1 and requested him to effect the partition of the said property and separate his one sixth undivided share. The plaintiff also told the defendant No.1 that he has no right to sell the property since it was a joint property of all brothers and sisters. Defendant No.1 refused to listen to plaintiff and refused to partition the property, so filing of the instant suit was necessitated. 3. The plaintiff amended the plaint after written statement was filed by defendant No.1 wherein it was disclosed by defendant No.1 that Smt. Lajwanti had executed a sale deed in favour of defendant No.1 on 26th March, 1966. The plaintiff submitted that Smt. Lajwanti had no right to execute the sale deed in favour of defendant No.1 and the sale deed so executed was illegal and unlawful and did not create any right in favour of defendant No.1. Defendant No.1 disclosed about the execution of the sale deed for the first time only in the written statement filed in the suit and he had not disclosed this fact to anyone prior to filing of written statement and that fact came to knowledge of the plaintiff only from the written statement. The suit was amended and additional relief of declaration that the sale deed dated 26th March, 1966 in favour of defendant No.1 was null and void. The plaintiff also claimed a relief of declaration, declaring him as owner of 1/6th share in the property No.13/60 Punjabi Bagh and passing a preliminary decree of partition. 4. The defendant in his written statement stated that the suit was not maintainable. Smt. Lajwanti had executed a sale deed dated 26th March, 1966 in favour of defendant No.1 with the consent and concurrence of other legal heirs. The defendant No.1 was in open, continued and uninterrupted possession of the suit property including super structure thereon since 1967 to the knowledge of all the parties. The property stood mutated in the name of defendant No.1 in Municipal records. He was the sole and exclusive owner of the property by virtue of sale deed in his favour and was in possession of the suit property by virtue of sale deed. He also took the stand that the suit of the plaintiff was barred by limitation. 5. Defendant No.1 pleaded that after the death of Late Ram Lal Kohli Smt.Lajwanti was made member of the Refugees Cooperative society being nominee of late Shri Ram Lal Kohli. All other legal heirs had given consent and concurrence for Smt. Lajwanti becoming the sole member of the society to their exclusion. She cleared all the dues and paid all charges out of her own funds and became absolute owner of the plot allotted to
her in the year 1962. None of the other legal heirs of Late Shri Ram Kohli had any rights or share in the plot alloted to her. The entire sale consideration of Rs.391.37 for the plot was paid by Smt. Lajwanti from her savings. After execution of sale deed in favour of Smt. Lajwanti, it was decided among all legal heirs of Late Shri Ram Lal Kohli that the property be assessed and sold. Its value was assessed at Rs.8368/- and defendant No.1 paid the consideration of Rs.8368/- out of his own funds and a sale deed dated 26th March, 1966 was executed in his favour. The said sale deed was witnessed by defendant No.4. The contention of the plaintiff that the sale deed was illegal, was baseless. Since the property was sold by Smt. Lajwanti during her lifetime to defendant No.1 for a consideration, no right of plaintiff and other defendant was there in the suit property. Tthe suit was liable to be dismissed. It was denied that the plaintiff had contributed something towards the purchase price of the plot or towards construction of the house over the plot. It was submitted that defendants No.2 and 3 got married during the lifetime of Smt. Lajwanti and she spent money on their marriages out of her savings. Defendants No.4 and 5 lived with defendant No.1 after death of parents and it was defendant No.1 who got them married with the help of savings and jewelery kept aside by mother i.e. Smt. Lajwanti. Defendant No.1 raised construction on the plot in the year 1967 from his own funds and resources as he was the exclusive owner of the plot and other defendants had no right over it. The defendant No.1 was in peaceful and exclusive possession of the property for the last 33 years and his title over the property was protected by adverse possession as well. It is defendant No.1 who had been paying house tax and had been raising structure from time to time from his savings. 6. Defendants No. 3 to 5 in their written statements supported the claim of the plaintiff for partition of the property claiming themselves to be the joint owners of the suit property. While defendant No.2 adopted the written statement filed by defendant No.1 and supported the stand taken by defendant No.1. Following issues were framed out of the pleading of the parties: 1.Whether the present suit is barred by the provisions of the Benami Transactions Act both on account of challenge to the sale deed dated 27.4.1962 in favour of Lajwanti Kohli and the sale deed dated 26.3.1966 in favour of defendant No.1 OPD 2.Whether the present suit is barred by limitation OPP 3.Whether the defendant No.1 is entitled to claim acquisition of ownership over the property by adverse possession in view of the defence taken in the written statement and, if so, its effect in view of pleadings in the present suit OPD 4.Whether the plaintiff and all other defendants are estopped from questioning the legality and validity of the sale deed dated 16.4.1962 in favour of late Smt. Lajwanti Kohli on account of their consent in that regard OPD 5. Whether the plaintiff and other defendants are estopped from questioning the legality and validity of the sale deed dated 26.3.1966 in favour of the defendant No.1 having received their share in the sum of Rs.8368.50 paid by defendant No.1 as sale consideration for the plot of land in question to the original owner, late Smt. Lajwanti Kohli OPD 6. Whether the plaintiff has made any contribution towards the purchase of the plot in favour of Smt. Lajwanti Kohli and also made contribution for the construction of the building and, if so, to what effect OPP
7. Werther the plaintiff has any share in the suit property and can seek partition thereof and, if so, what is the share of the plaintiff in the suit property OPP 8.Whether the plaintiff and other defendants were not in the knowledge of the sale deed dated 26.3.1966 in favour of defendant No.1 till 1.7.2000 OPD 9.Whether the sale deed dated 26.3.1966 is a forged document and was not executed by the late Smt. Lajwanti Kohli in favour of the defendant No.1 in accordance with law, if so its effect OPP 10.Whether the plaintiff and the defendants are entitled to partition of the suit property as claimed in the plaint and, if so, for what share the parties hereto are entitled to OPP ISSUE NO.1: 7. It is undisputed fact that late Shri Ram Kohli was a member of the cooperative housing society. It is obvious that he had acquired this membership during his lifetime. The purpose of the society was to seek land from the government and then develop the land into a colony and to give plots to its members. The membership of the society was a personal membership of Late Shri Ram Lal Kohli. He was a refugee and being a refugee, he became member of this society. However, before this society could allot the land, he died in 1956. None of the parties have stated as to what was their age at that time. However, the membership of the society, after the death of Ram Lal Kohli was conferred to Smt. Lajwanti on the basis of nomination and after becoming member of the society, Smt. Lajwanti continued to be its member till the allotment of the plot. Sale deed of the plot was executed by the society in her favour in the year 1962. The provisions of Benami transaction would not be attracted in this case because there was no Benami transactions. Section 2(a) of the Benami Transaction (Prohibition) Act defines Benami Transaction as under : (a) Benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person. 8. A transaction is called Benami if the purchase of property is in the name of a person who is not the payer of consideration. The property is held by such person for benefit of other who pays the consideration. In a Benami transaction the true owner of property is the person who pays the purchase money. In the present case, Smt. Lajwanti became a member of housing society after the death of her husband. It was a personal right of her husband. The membership at that time had not crystallized into the property rights and the plot of land was not allotted to her husband. She became member because of wishes of her husband. She continued to be the member and the plot was alloted by society in the year 1962. It has not come in the evidence of either of the parties as to what was the the contribution made by Ram Lal Kohli to the society and what was the contribution made by Smt. Lajwanti to the society for allotment of the plot. Thus, the property which came into the hands of Smt. Lajwanti cannot be said to be a Benami property and it has to be considered as her own property. Even if late Ram Lal Kohli had died intestate, the right to become the member of the society was not a right which could have been inherited by all the legal heirs, whether minor or major. The membership of the society was a transaction between Ram Lal Kohli and defendant No.6. After his death all the legal heirs could not have become joint members of the society. Since the society could have conferred membership only on one person, nomination was there in favour of Smt. Lajwanti she was given the membership. Thus, the Benami Transaction Act would not come into play in this case neither the suit can be said to be barred because of the provisions of Benami Transaction Act as there was no Benami Transaction in this case
and Smt. Lajwanti had become member of the society in her own right and paid the membership and demand made by the society after 1956 for allotment of land to her. ISSUE NO.4: 9. Defendants No. 5 and the plaintiff in their evidence by way of affidavits stated that Smt. Lajwanti was the nominee of Late Ram Lal Kohli. She was not the sole owner of the property as nominee and she held the membership of the society on behalf of the legal heirs and all the legal heirs were the joint owners of the property. Defendant No.5 in her testimony deposed that late Ram Lal Kohli when alive was running four shops in Sadar Bazar and a cement agency in Amritsar. After the death of Ram Lal Kohli, the total income was coming to family out of which the land was purchased and a house was built over the land. Smt. Lajwanti's membership of Society was as a trustee for all the legal heirs of Late Ram Lal Kohli. Therefore, the property in the suit became the property of all the legal heirs and Smt. Lajwanti was holding the property only as a trustee for all the legal heirs. She was having only 1/7th share in the property. To same effect is the testimony of defendant No.4. In cross examination defendant No.4 deposed that she was not even aware that her mother had become a member of the society and therefore she had no occasion to raise objection regarding this. She did not raise objection even when the sale deed was executed by Society in favour of her mother. She in her examination in chief stated that price of the plot was paid by her father but during cross examination she deposed that she was not aware if she has testified to that effect. She was not sure if the payment for the plot and for construction was made from the earnings of the shop left behind by her father, but stated that the property payments were made by her mother. She was unable to say when the house was constructed and who paid for the construction. She was also unable to say if her father left behind any source of income or not, if the shops left behind by her father produced any income or not. Her answers were evasive during cross examination. She stated that she never had any interest in the family matters. She was not interested as to who was the owner of the property. She did not remember if her mother had told that she executed a sale deed in favour of the defendant No.1. She never questioned her mother, nor anyone else about the membership as she was not interested. She became interested in the property only when time came for its sale i.e.. after about 33 years after execution of the sale deed in favour of defendant No.1 and she had never thought about her right in the property for all these 33 years. The other defendant, defendant No.3, deposed that she had not objected to the execution of the sale deed in favour of her mother, since she was caretaker and nominee of her father. She did not remember what payment was made for the plot by her brother and what expenses were incurred for the construction over the plot. She deposed that plaintiff M.R. Kohli had taken over the business of her father and ruined the same but she did not remember when the business was ruined by the plaintiff and when the income stopped from the business left behind by her father. She testified that at that time she was married and away. Defendant No.5 Smt. Anjali also deposed that the plaintiff had ruined the business left behind by her father and disposed of all the shops left by her father. This witness testified contrary to record that the initial sale deed of the property in question was executed in favour of her father and no further sale deed was executed in the name of anyone else. The plaintiff, Mela Ram, sold away the shops left behind by her father. She also asserted that she became interested in the property after learning that it was going to be sold i.e.
after 33 years. The plaintiff in his testimony deposed that he did not raise objection to his mother's becoming member of the society since she was a nominee of his father. He did not raise any objection in writing or orally to the allotment of plot of land and executing of this sale deed in favour of his mother considering that it was for the joint family. He had not made payment in respect of the plot and it was her mother who paid installments of Rs.201 or Rs.300 and she eventually paid Rs.25,00/-. He did not not apply for sanction of building plan. It was her mother who was dealing with the property. He did not apply to MCD for other formalities neither he remembered if he had contributed anything for the construction of the property. He was not on talking terms with his brother's family i.e. defendant No.1 for the last 50 years. 10. Defendant No.1 deposed that his mother Smt. Lajwanti was not holding the membership of the society on behalf of legal heirs of Late Ram Lal Kohli but she was sole and exclusive member of the society in her own right and the sale deed dated 16th April, 1962 was executed in her favour without any objection from anyone. She became member of the society after the death of her husband and the entire sale consideration was paid by her. 12. It is evident from the testimony of witnesses that after death of Ram Lal Kohli the shops and his business were taken over by the plaintiff. It seems that he could not run the business and ruined the business and disposed of the shops and separated from the family in 1962-63. Exact year of separation has not been given by him. After separation from the family he had not been on talking terms with defendant No.1 at all. His mother died in the year 1967. The contribution as a member after 1956 and consideration money for the plot were paid by Smt. Lajwanti. She was also having the responsibility of maintaining the family after death of her husband and it seems that all the children were young at that time. None of them had any maturity to take care of the family. She had inherited a family to maintain. The family was living in a rented accommodation in Kamla Nagar at that time. The business left behind by her husband was taken over by the elder son, i.e., the plaintiff, who after taking over the business separated from the family and as per the testimony of other witnesses, had ruined the business. Thus, it cannot be said that membership of the society held by Smt. Lajwanti was on behalf of legal heirs of Late Ram Lal Kohli. Neither the plaintiff nor the defendants were in fact capable of becoming members as they were either minors or they had no interest in the membership. At the time when the membership of society was given to Smt. Lajwanti, none of the other family members objected because she was the nominee of her husband. She paid the entire consideration for the plot. After such a long time i.e. after about 40 years it does not lie in the mouth of the plaintiff or any of the defendants that Smt. Lajwanti was not the owner of the property and they were the joint owner of the property. There was no element of jointness in the family. The plaintiff separated from the family, taking away entire business of his father and was not even on talking terms with his brothers. He had not taken over any responsibility of the family. The daughters were got married either by mother or by defendant No.1, and lived with their husbands in own houses. Defendant No.1, the other son, was living with his mother and it seems that the mother decided to sell this property to him. I consider that the plaintiff and other defendants cannot question the legality and validity of the sale deed made in favour of the Smt. Lajwanti by
defendant No.6 on 16th April, 1962 nor they can contend that the property was a joint family property, though it was owned by Smt. Lajwanti. Smt. Lajwanti was the exclusive owner of property by virtue of sale deed dated 16.4.1962. ISSUE NO.5 and 9: 11. In view of my holding that Smt. Lajwanti was the absolute owner of the property, she could sell this property to anyone whom she liked. She sold this property to his son, defendant No.1 by executing a sale deed dated 26th March, 1966 for a consideration of Rs.8368/-. The sale deed in favour of the defendant No.1 has been proved by examination of the clerk from the office of Sub Registrar, Kashmiri Gate, who proved the registration of the sale deed, executed by Smt. Lajwanti in favour of defendant No.1 in the year 1966. The sale deed was registered vide registration No. 2031 in Additional Book No.1 Vol. 471725-28 on 30th March, 1966. The record produced in the Court being more than 30 years old and produced from the office having custody and care under law, has to be considered true and duly executed by the person mentioned in view Section 90 of the Evidence Act. The other witness examined is Mr. Vijay Prakesh, UDC in Land and Building Department, who testified that a bond dated 10th January, 1967 was executed between J.P. Kohli, defendant No.1 and the President of India, through Commissioner, Delhi Administration with regard to loan granted to J.P. Kohli for a sum of Rs.10,000- for the purpose of construction of a house on plot No.13, Road No.60, Punjabi Bagh and the security of mortgage of the plot was given by J.P. Kohli vide the said bond. He placed on record documents regarding this loan as Ex.DW1/3 and DW1/4. The Ledger Account No. was 20/7-L maintained by one Shri H.P. Gupta of the department. 12. It is clear from the testimony of witness that a duly registered sale deed was executed by Smt. Lajwanti in favour of defendant No.1. The plaintiff and defendants No. 3 to 5 have questioned the validity of the sale deed only on the ground that Smt. Lajwani had no right to execute sale deed in favour of defendant No.1. I consider that Smt. Lajwanti being an absolute owner of the property had a right to execute this sale deed in favour of defendant No.1. The sale deed executed by her in favour of defendant No.1 cannot be doubted merely because the plaintiff and defendants No. 3 to 5 have chosen to raise a doubt on the sale deed. Whether or not any of the defendants received share out of the sale consideration, is not material. It is the case of the defendant No.1 that the sale consideration was divided among other legal heirs. However, the evidence of the witnesses and the plaintiff would show that after such a long time, nobody bothered about the plot or construction over there for four decades. How she spent or divided the sale consideration is not material. ISSUE NO.6: 13. From the testimony of plaintiff and other witnesses, it becomes clear that plaintiff had not contributed anything towards the purchase of the plot or towards construction of the building. The plaintiff has failed to specify as to what was the amount contributed by him, how and when. In any event, the plaintiff had separated from the family soon after the allotment of this plot of land to his mother and he was not on talking terms with his brother thereafter. It has come in testimony of sisters that it was plaintiff who had taken over the entire business of his father including shops and he ruined the business. On the contrary the defendant No.1 had produced evidence to show that it was he who took the loan for construction of the house. It was he who had engaged Architect. I come to the
conclusion that the defendant No.1, spent on the construction of the house and defendant No.1 was the owner of the property by virtue of sale deed. It was he who was paying all taxes for the property. None of other brothers or sisters had any concern with this property. They made claim over the property as opportunists to extract some money from defendant No.1. In view of the fact that no testimony has come on record about any contribution made by the plaintiff, or other defendants this issue is decided against the plaintiff and in favour of defendant No.1. ISSUE NO. 7 and 10: 14. The plaintiff was to show that he had share in the suit property and has right to claim partition. The plaintiff claimed share in the suit property on the ground that his father died interstate and the membership of the Housing Society stood transferred in the name of Smt. Lajwanti, his mother. He submitted that since his father died interstate, the nomination in favour of the mother did not give any right to the mother to claim absolute ownership over the property. The plaintiff relied upon AIR 1984, SC 346 wherein the Supreme Court observed that merely a nomination made under Section 39, does not have effect of conferring on the nominee beneficial interest in the amount payable under a life insurance policy on the death of assurer. The nomination only indicates that the hand authorized to receive the amount of payment on which insurer gets a valid discharge of its liability under the policy. The amount, however, has to be apportioned in accordance with law of Succession. The Plaintiff also relied upon 1994 (2) AD Delhi 33 to press the same point. 15. In the case before the Supreme Court, the nomination was in respect of the insurance policy where the claim was paid to the nominee in respect of policy of the deceased and the Supreme Court held that nominee had no exclusive rights to succeed to the claim after death of the policy holder. In the case in hand, the deceased left behind no claim to be distributed among the legal heirs. He was having only membership of a society and no evidence has been led as to how much amount he had paid towards the membership and what was the worth of membership at the time of his death. On his death at the most, the amount already paid to the society would have gone to all the legal heirs in equal share. Mere membership of society is not a proprietary right. After death of a member, who could be granted membership depended upon the rules of the society as well as the wishes of the deceased member. If Late Ram Lal Kohli had not nominated his wife, the society would have just terminated the membership and asked the legal heirs to receive the amount deposited with society. The plaintiff, after death of Ram Lal Kohli had already taken over the business of Ram Lal Kohli and ruined it. He separated thereafter. All others were young children, so the only person who could become the member of the society was the wife of Ram Lal Kohli who was nominated by Ram Lal Kohli to succeed on his death as member. On death of Ram Lal Kohli no claim of the deceased had materialized to be distributed among the heirs and it was only a membership of the society which could not be distributed among the legal heirs and could go only to one person. Thus, the plaintiff cannot claim that Smt. Lajwanti Kohli held membership on his behalf or on behalf of legal heirs. Smt. Lajwanti became the member of the society being the wife of the deceased Ram Lal Kohli and she had right to succeed and to become the member and was rightly made as member. Moreover, it was she who paid to the society the rest of the contribution, consideration and registration charges etc
for the plot. No other legal heirs had contributed anything. No other legal heir can claim the property in question as a joint owner. The plaintiff, therefore, had no share in the suit property and cannot seek a partition thereof. ISSUE NO.8: 16. It is claimed by the plaintiff and defendants No. 3 to 5 that they were not in the knowledge of sale deed dated 26th March, 1966 in favour of defendant No.1. The denial of the knowledge by plaintiff and defendants No.3 to 5 in fact shows the nature of relationship of the defendants interse as well as relationship of the plaintiff and defendants with Smt. Lajwanti. On the one hand, it is claimed by the defendants 3 to 5 that their relationship with mother was very cordial and they were meeting with each other also, on the other hand, it is stated by plaintiff that he was not on talking terms with defendant No.1. He left his mother after death of his father and started living separate in 1963. Defendants No.3 and 5 submitted that they had no concern and were not interested in the property. The mother was looking after everything and therefore they took no interest. Pushpa, one of the witnesses, who also witnessed the sale deed denied her signatures on the sale deed. While the plaintiff deposed that Pushpa told him that she did sign the sale deed as a witness. 17. It makes no difference if the defendants No.2 to 5 and the plaintiff had any knowledge of the execution of the sale deed by Smt. Lajwanti in favour of the defendant No.1 in March, 1966. Smt. Lajwanti was the absolute owner of the property and she could execute the sale deed in favour of anyone. It makes no difference also because after death of Smt. Lajwanti and after marriage of defendants No.3 to 5, defendant No.1 had been in exclusive possession of the property. He constructed the property. He made additions to the property and none of the other defendants or plaintiff at any point of time raised any objection about it. Defendant No.1 held and projected himself to be the owner of the property. He had not only been in exclusive possession of the property but, paying taxes, making additions, alterations in the property, making construction in the property. Since the value of the property phenomenally increased in recent years, it seems when defendant No.1 wanted to sell the property, the plaintiff and defendants No.3 to 5 suddenly thought of having a share in the sale prices and filed the instant suit. Had they claim a over the property, they should have asked a share in the property soon after the death of their mother on the ground that she had died intestate. Smt. Lajwanti died in the year 1967. Till the year 2000, when this suit was filed i.e. for 33 years neither the plaintiff nor the defendants No.3 to 5 thought of seeking partition of this property or seek any share in the property. Defendant No.1 has been the owner to their knowledge all these years. He has been making additions in the property without their consent and without their contribution. The plaintiff and other defendants cannot turn around and say that the property was a joint property and not the property of defendant No.1 on a plea that they were not aware of the sale deed. ISSUE NO.2: 18. The plaintiff and defendants are six brothers and sisters. Plaintiff had separated from the defendants and her mother in 1963. Thereafter, he never looked back, nor claimed any share. He also did not give share out of the business of his father which he handled after death of his father to anyone. According to the evidence of defendants No.3 to 5, he ruined the business, sold away the shops and separated from the family. He never asked defendant No.1, after death of his mother for partition of the property despite the fact that he was not on speaking terms with defendant No.1 and despite the fact that the defendant
No.1 was making additions in the property. If he wanted to claim any share, he could have filed a suit for partition within a period of 12 years of death of his mother i.e. when cause of action arose. The suit filed by him is miserably time barred. The suit was filed after 33 years of death of his mother. 19. The two sisters got married during lifetime of mother and two were married after the death of their mother. Of the four sisters, three deposed that defendant No.1 was in exclusive possession of the house, he was making construction in the house and investing in the house and he was paying taxes of the house and treated himself to be the owner. He had not talked of the share of the plaintiff at any point of time. None of the sisters at any point of time asked for any share in the property. They claimed share only in the written statement filed in response to the plaint of the plaintiff. Their claim also is barred by limitation. They could have made the claim only within 12 years of cause of action. The cause of action arose on the death of mother and later on when defendant No.1 treated himself as owner, made additions in the property, made constructions in the property in the year 1987. The cause of action also arose when all the sisters got married by the year 1974 and went away from that house. Thus claim of the plaintiff as well as of defendants, 3 to 5, is barred by limitation. The defendant No.1 is rightful owner of the property by virtue of sale deed executed by Smt. Lajwanti Kohli in favour of defendant No.1. Even if there had been no sale deed in his favour and defendant No.1's title and possession would have been protected because of his adverse possession. RELIEF: 20. The suit of the plaintiff has no force and devoid of merits. The same is hereby dismissed with costs. Costs are quantified as Rs.50,000/-. Sd./- November 06, 2007 SHIV NARAYAN DHINGRA J.