1

$-

* IN THE HIGH COURT OF DELHI AT NEW DELHI

BEFORE

HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV

+ CS(OS) 2046/2015 & I.A. 14119/2015

MS. NEELU CHADHA

WIFE OF MR SAURABH CHADHA

FLAT NO 505, SECTOR A,

POCKET C, VASANT KUNJ

NEW DELHI-110070

....PLAINTIFF

(Through: Mr. Arpit Sharma, Mr. Anil Sharma, Mr. Anant Sharma and Mr.

Aman Sharma, Advs.)

Versus

1. SUNIL SETHI

SON OF LATE JYOTI SWARUP SETHI

C-99, ANAND NIKETAN,

NEW DELHI

2. ANIL SETHI

SON OF LATE JYOTI SWARUP SETHI

C-99, ANAND NIKETAN,

NEW DELHI

3. SUKSHAM SETHI

WIFE OF LATE SH SATISH SETHI

302, RAGHAV RESIDENCY,

ROAD NO. 11, BANJARA HILLS,

HYDERABAD 500034.

2

4. PUNISH SETHI

SON OF LATE SH SATISH SETHI

302, RAGHAV RESIDENCY,

ROAD NO. 11, BANJARA HILLS,

HYDERABAD 500034.

5. DELHI DEVLOPMENT A UTHORITY

CO-OPERATIVE SOCIETY WING

INA, VIKAS SADAN

NEW DELHI

SERVICE TO BE EFFECTED THROUGH ITS

VICE-CHAIRMAN

6. ANAND NIKETAN CO-OPERATIVE

SOCIETY LTD.,

ANAND NIKETAN,

NEW DELHI-110021

THROUGH ITS SECRETARY

NEW DELHI- 110001 ....DEFENDANTS

(Through: Mr. Alok Kumar, Sr. Adv. with Ms. Monisha A. Narain, Mr. Amit

Kumar Singh, Mr. Varun Maheshwari and Mr. Manan Soni, Advs. for D-

1&2. Ms. Vrinda Kapoor, Ms. Latika Malhotra and Ms. Saumya Soni and

Mr. Vishal Vaid, Advs. for D-5)

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% Reserved on: 16.12.2025

Pronounced on: 27.01.2026

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JUDGMENT

The suit is for partition of property bearing No. C-99, Anand Niketan,

New Delhi (hereinafter referred to as the suit property), originally

belonging to late Mr. Joti Swarup Sethi. The plaintiff is his grand-daughter,

3

defendants no. 1 and 2 are his sons, whereas, defendants no. 3 and 4 are the

plaintiff’s mother and brother respectively. Defendant no. 5 is Delhi

Development Authority and defendant no. 6 is the co-operative society

which allotted the suit property in the name of late Mr. Joti Swarup Sethi.

2. The family tree is extracted below, for reference:

3. The case set up by the plaintiff is that the suit property was sub-leased

to late Mr. Joti Swarup Sethi by defendant no. 6 in the year 1968. He passed

away intestate on 03.08.1972, leaving behind his wife, Mrs. Ved Sethi,

defendants no. 1 and 2, and the plaintiff’s father, Mr. Satish Sethi. Mr.

Satish Sethi passed away on 04.07.1977, leaving behind the plaintiff, and

defendants no. 3 and 4. It is alleged that subsequent to her father’s death, the

plaintiff and defendant no. 4, who were minors at the time, and defendant

no. 3 were maltreated by defendants no. 1 and 2 and were forced to leave the

suit property.

4. The plaintiff further avers that she was always assured by their

relatives that her family would be given its rightful share in the properties of

late Mr. Joti Swarup Sethi, and in spite of the same, defendants no. 1 and 2

have refused to do so. The suit property presently stands mutated and

Late Mr. Joti Swarup Sethi ----- Late Mrs. Ved Sethi

Late Mr. Satish Sethi

(father of the plaintiff)

Mr. Sunil Sethi

(defendant no. 1)

Mr. Anil Sethi

(defendant no. 2)

Mrs. Suksham Sethi

(defendant no. 3)

Ms. Neelu Chadha

(plaintiff)

Mr. Punish Sethi

(defendant no. 4)

4

Conveyance Deed dated 16.07.2007 (hereinafter referred to as the

Conveyance Deed) has been executed after conversion as ‘freehold-

property’, in the names of defendants no. 1 and 2. The plaintiff’s case is that

she became aware of the same only on 14.08.2014, when the said

information was disclosed by defendant no. 5, upon an application by the

plaintiff. On a perusal of the documents, the plaintiff realised that there were

discrepancies in the manner in which the mutation was carried out and the

Conveyance Deed was executed.

5. The plaintiff further claims to have made a representation before

defendant no. 5, highlighting the aforesaid alleged discrepancies, but the

same was rejected on the ground that defendant no. 5 was not the competent

forum to look into the said aspects. The plaintiff, thus, also seeks the reliefs

of declaration that the impugned mutation and Conveyance Deed are null

and void, and injunction restraining defendants no. 1 and 2 from

encumbering the suit property or creating any third-party rights therein.

6. Defendants no. 1 and 2 are the principal contesting defendants. In

their written statement, it is pleaded that late Mr. Joti Swarup Sethi owned a

commercial property bearing No. 2, at Sewa Nagar, New Delhi (hereinafter

referred to as the commercial property) besides, the suit property.

Subsequent to his death, on 23.09.1978, the said properties were orally

partitioned and while the suit property fell in the share of defendants no. 1

and 2 and their mother, the commercial property fell in the share of the

plaintiff and defendants no. 3 and 4. They had also paid a sum of Rs.

10,000/-(Rupees Ten Thousand only) each, to the plaintiff and defendants

no. 3 and 4. Further, defendant no. 3 on behalf of the plaintiff, defendant no.

4 and herself, had executed Release Deed dated 23.09.1978, relinquishing

5

all their rights in the suit property, whereas, Mrs. Ved Sethi, and defendants

no. 1 and 2 had executed Release Deed dated 14.12.1978 (hereinafter both

release deeds shall be collectively referred to as the release deeds)

relinquishing their rights in the commercial property. The commercial

property was even mutated in the name of defendant no. 3, who later sold

the same to one Mr. Amrik Lal Budhraja vide registered Sale Deed dated

23.11.1979.

7. Defendants No. 3 and 4 support the case of the plaintiff, whereas,

defendant no. 5, in its written statement has pleaded that the mutation entries

for the suit properties were effected on the basis of the requisite documents

and that there was no connivance on the part of its officers with defendants

no. 1 and 2.

8. The plaintiff has produced the following documents, and examined

the following witnesses in support of her case:

Documents

Sr.

No.

Document

No.

Description

1. Exhibit P-1 Copy of lease deed dated 11.06.1968

2. Exhibit P-2 Copy of affidavit dated 19.04.1968

3. Unnumbered Copy of DDA letters dated11.06.1968, 12.08.11,

20.08.1972

4. Exhibit P-6 Copy of letter dated 16.09.1972

5. Exhibit P-7 Copy of DDA letters dated. 22.11.1972

6

Exhibit P-8 Copy of DDA letters dated05.12.1972, 08.12.1972

9. Exhibit P-10 Copy of death certificate of J.S. Sethi.

10. Exhibit P-12 Copy of DDA letters dated, 25.07.1973, 21.09.1974,

28.07.1975 07.02.1976, 25.6.1976

9. Exhibit P-14 Letter dated 07.02.1976 from defendant no. 6 to

defendant no. 5

10. Unnumbered Copy of letter dated 08.11.76 and 13.12.1976

11. Exhibit P-18 Copy of death certificate of S.K.Sethi

12. Unnumbered Copy of letter dated 09.01.2007

13. Exhibit P-21 Copy of death certificate of Ved Kumari Sethi

14. Unnumbered Copy of affidavits, undertakings indemnity bonds all

dated 9.1.2007

15. Exhibit P-32 Copy of letter dated 11.01.2007

16. Exhibit P-33 Copy of letter dated 19.04.2007

17. Exhibit P-34 Copy of letters dated 26.04.2007, 04.06.2007 and

10.07.2007

18. Exhibit P-36 Copy of Conveyance Deed dated 16.07.2007

19. Unnumbered Copy of letter dated 14.08.2014 by defendant no. 6 to

the plaintiff.

Witness

7

Sr.

No.

Witness no. Particulars

1. PW-1 Ms. Neelu Chadha, the plaintiff

9. The defendants have produced the following documents and witnesses

in support of their case:

Documents

Sr. No. Document

No.

Description

1. Exhibit D-1 Original share certificate dated 15.07.1965 in

favour of Mr. Joti Swarup Sethi

8. Exhibit

DW3/1,

Exhibit

DW3/2 and

Exhibit

DW3/3-

Exhibit DW3/1, Exhibit DW3/2 and Exhibit

DW3/3- Original receipts dated 23.09.1978

signed by defendant no. 3.

9. Exhibit

DW3/4

Original receipt dated 23.09.1978 signed by

defendant no. 3.

10. Exhibit

PW1/DX1

Legal notice dated 15.05.2014 by the plaintiff to

defendants no. 1 and 2.

11. Exhibit

PW1/DX2

Legal notice dated 15.05.2014 by the plaintiff to

defendants no. 1 and 2.

8

12. Exhibit

PW1/DX2

Application dated 28.05.2014 filed by the

plaintiff before defendant no. 5

13. Exhibit

PW1/DX3

Reply dated 08.07.2014 by defendant no. 5 to

the plaintiff’s application.

14. Exhibit

PW1/DX4

Letter dated 22.07.2014 by the plaintiff to

defendant no. 5.

15. Exhibit

PW1/DX5

Representation dated 29.07.2014 by the plaintiff

to defendant no. 5.

16. Exhibit

D5W-1/X1

Letter dated 24.07.1973 by defendant no. 5 to

defendant no. 6.

17. Exhibit

D5W1/1

(Colly)

Show-Cause Notice dated 13.10.2014 issued by

defendant no. 5 to defendants no. 1 and 2

18. Mark A Reply dated 14.08.2014 by defendant no. 5 to the

plaintiff.

19. Mark B Reply dated 09.12.2014 by defendant no. 5 to the

plaintiff’s representation.

9

Witnesses

Sr.

No.

Witness

No.

Particulars

1. DW-1 1. Mr. Anil Sethi, defendant no. 2

2. 2. D2W-2 3. Mr. S.P. Gulati one of the attesting witnesses to Will

dated 14.04.1980 executed by Mrs. Ved Sethi.

4. 3. DW-3 1. Mr. Pramjit Singh Wason- Son of Mr. Baldev Singh

Wason, one of the signatories to the receipts dated

23.09.1978.

4. DW-4 2. Mr. Rakesh, Record Keeper, Sub-Registrar-III, New

Delhi.

5. DW-5 3. Ms. Preeti, Manager, Central Bank of India

6. DW-6 1. Mr. Sanjay Kumar, Section Officer, Land and Estate

Department, South MCD.

2.

7. DW-7 3. Mr. Ajay Singh, Record-incharge, Department of

Delhi Archives

8. DW-8 1. Mr. Daya Shankar, Clerk at defendant no. 6.

2.

9. D5W-1 4. Mr. Budhram, Dy. Director (CS), at defendant no. 5.

3.

10. The issues for consideration as framed vide order of the Court dated

30.03.2016 are as follows:

10

1. Whether the suit is barred by limitation? OPD 1-2

2. Whether defendant Nos. l & 2 are exclusive owners of

the suit property? OPD 1-2

3. In alternative, whether the defendant Nos. 1 & 2 have

become owner of the suit property by virtue of adverse

possession? OPD 1-2

4. Whether the suit is filed without cause of action? OPD

1-2

5. Whether the plaintiff has not paid proper court fees on

the plaint? If so, its effect OPD 1-2

6. Whether the plaintiff and defendant Nos.3 & 4 have a

share in the suit property? OPP

7. Whether the plaintiff is entitled for a decree of partition

in the suit property? OPP

8. Whether the plaintiff is entitled for decree, of

declaration, as prayed? OPP

9. Relief.

Submissions

11. Mr. Arpit Sharma, learned counsel for the plaintiff submits that the

plaintiff, being the grand-daughter of late Mr. Joti Swarup Sethi through one

of his sons, is entitled to a share in the properties left behind by her

grandfather.

12. He submits that the theory of oral family arrangement propounded by

defendants no. 1 and 2 is false and baseless. It is pointed out from the cross-

examination of DW-1, Mr. Anil Sethi that he has admitted that neither was

the leave of the Court for dealing with minors’ shares obtained, nor was any

11

memorandum of family settlement produced before any authority. Placing

reliance on Section 8 of the Hindu Minority and Guardianship Act, 1956

(hereinafter referred to as the HMGA), he contends that the purported oral

family arrangement in the year 1978 cannot bind the plaintiff and defendant

no. 4 as they were minors at that time. The decision of the Supreme Court in

Vishwambhar and Others v. Lakshminarayan and Another,

1

is relied on in

support of the said contention.

13. He further submits that Release Deed dated 12.12.1978 was not

executed in favour of the plaintiff or defendant no. 4. The same is not

indicative of an oral family arrangement. Reliance is placed on the decision

of the Supreme Court in the case of Yellappu Uma Maheshwari and

Another v. Buddha Jagadeeshwara Rao and Others,

2

to assert that

unregistered partition deeds or documents effecting relinquishment of rights

in immovable properties cannot be appreciated as evidence under Section 49

of the Registration Act, 1908 (hereinafter referred to as the Registration

Act). Therefore, according to him, the defendants have failed to prove that

the suit property was the subject matter of any family arrangement between

the parties and the plaintiff and defendants no. 3 and 4 are entitled to the

share of Mr. Satish Sethi, in the suit property.

14. With respect to the grievance relating to the mutation entries for the

suit property, he submits that the entry in the name of Mrs. Ved Sethi, in the

year 1973 was illegal as she was merely a nominee of Mr. Joti Swarup Sethi

and not the absolute owner of the suit property. Reliance is placed on the

1

(2001) 6 SCC 163

2

(2015) 6 SCC 787

12

decision of the Supreme Court in Nagappanv. Ammasai Gounder,

3

to assert

that the role of a nominee is to distribute the property amongst the rightful

legal heirs, without conferment of any title on the nominee. It is pointed out

from the cross-examination of DW-1 that he has admitted to the factum of

not having produced before defendant no. 5, any document executed by Mr.

Satish Sethi, relinquishing his share in the suit property prior to the

mutation. It is further pointed out from the cross-examination of D5W-1,

Mr. Budhram, Deputy Director, DDA (CS) that when asked whether Mrs.

Ved Sethi had produced any document indicating no-objection from the

other legal heirs of Mr. Joti Swarup Sethi, he answered that no mutation was

ever effected in her name, but only the membership of the defendant no. 6

society was transferred to her name. He submits that the mutation in the

names of defendants no. 1 and 2 was also without any legal basis, as the

purported Will vide which Mrs. Ved Sethi bequeathed the suit property to

the former, and on the basis of which the said mutation was effected, was

not found in the records of defendant no.5. Therefore, according to him, the

mutation of the suit properties in the names of Mrs. Ved Kumari and

defendants no. 1 and 2 are illegal and the same has to be reverted to the

name of Mr. Joti Swarup Sethi.

15. Mr. Alok Kumar, learned senior counsel for defendants no. 1 and 2,

submits that the suit is barred by limitation. He submits that the limitation

period for filing a suit for setting aside transfer of property made by the

guardian of a ward, as provided for under Article 60 in the Schedule to the

Limitation Act, 1963 (hereinafter referred to as the Limitation Act), is three

years from the date when the ward attains majority. The plaintiff, he

3

(2004) 13 SCC 480

13

submits, attained majority in the year 1993, and therefore, the present suit

ought to have been filed within three years therefrom. Reliance is placed on

the decisions of the Supreme Court in the cases of Murugan Vs. Kesava

Gounder,

4

and Narayan Vs Babasaheb,

5

in this regard. Further, it is

highlighted that although the plaintiff claims to have become aware of the

impugned mutation and execution of the Conveyance Deed in favour of

defendants no. 1 and 2 only upon receiving the requisite documents from

defendant no. 5, but she has expressly referred to the same in her

representation prior to receiving the documents. The said inconsistency,

according to him, is indicative of the factum of her knowledge of the same

since inception.

16. He submits that defendants no. 1 and 2 have duly established their

lawful title over the suit property. Late Joti Swarup Seth was possessed of

the suit property along with the commercial property, which was orally

partitioned between Mrs. Ved Kumari, defendants no. 1 and 2 on one side

and defendant no. 3, who represented the plaintiff and defendant no. 4 along

with herself. The suit property was allotted to the share of Mrs. Ved Kumari

and defendants no. 1 and 2, whereas, the commercial property was allotted

to the plaintiff and her family. The plaintiff and her family were also paid a

sum of Rs. 10,000/- (Rupees Ten Thousand only) each to the legal heirs of

late Mr. Satish Sethi.

17. He submits that the factum of the oral partition is established on the

basis of the release deeds executed by both the sides, and the conduct of

defendant no. 3, who got the property allotted to the share of the plaintiff

4

2019 INSC 259

5

2016 (6) SCC 725

14

and her family mutated in her own name and later sold the same to a third-

party.

18. He further submits that Mrs. Ved Sethi had also bequeathed her share

in the suit property to defendants no. 1 and 2 vide Will dated 14.04.1980 and

the same has duly been proved by D2W-2, Mr. S.P. Gulati, one of the

attesting witnesses. Therefore, according to him, the title of defendants no. 1

and 2 over the suit property has been established, and the suit is without any

cause of action.

19. Learned senior counsel submits that Mrs. Ved Sethi and defendants

no. 1 and 2 have been in exclusive possession of the suit property and have

exercised all rights as its owner, and by virtue of the said fact as well, the

title of defendants no. 1 and 2 would have become perfected by way of

adverse possession.

20. Finally, he submits that the plaintiff has not filed the required ad-

valorem Court fees for the relief of partition, despite her own stance being

that after her father’s death, she was thrown out of the suit property along

with defendant no. 3 and 4. Therefore, according to him, having claimed

complete ouster from the suit property, the plaintiff cannot claim

constructive possession through defendants no. 1 and 2 and avoid payment

of ad-valorem Court fees.

Analysis.

Issue No. 1 and Issue No. 8

21. Issue No. 1 pertains to the bar of limitation, and the onus to prove the

same lies upon defendants no. 1 and 2, Issue No. 8 pertains to the prayer for

declaration and the onus of proof of the same lies on the plaintiff. However,

15

due to the overlapping nature of submissions advanced thereon, both the

issues are taken up together, for, the stand of defendants no. 1 and 2 is that

the prayer for declaration is barred by limitation and therefore, cannot be

granted.

22. It is the case of defendants no. 1 and 2 that the plaintiff had

knowledge of the impugned mutation and documents since inception, and

has falsely claimed that she only became aware of the same upon receipt of

documents marked as Mark-A from defendant no. 5. Attention of the Court

is drawn to Exhibit PW-1/DX5, being the representation dated 29.07.2014

filed by the plaintiff before defendant no. 5, wherein, the plaintiff has sought

revocation of the impugned mutation in the names of defendants no. 1 and 2.

There is a clear contradiction between the averments in the plaint and

Exhibit PW-1/DX5. A comparative examination of the two, reveals that the

plaintiff’s claims on this issue have been deconstructed by documentary

evidence adduced by herself. The relevant portions of the said document are

reproduced below, for reference:

“That to my astonishment and surprise my uncle namely Sh Sunil

Sethi & Anil Sethi in connivance with few officials of Delhi

Development Authority by forging and abricated documents secured

the mutation in favour of the mother namely Smt Ved Kumari Sethi

and then setting up an Old and false Will secured mutation in their

favour.

XXXX

That my uncles namely Sh Sunil Sethi & Anil Sethi set up a forged and

fabricated Will claiming it to be Registered Will of April 1980

registered Document which is not available in the records of the

Registrar as per the own certificate of the Sub-Registrar which makes

it more suspicious as the records are claimed to have been lost or,

misplaced. The intention was to oust me of my genuine claim in the

property by setting up after complete homework as which records will

not be available for perusal once the fraud is unearthed. That the

alleged Will has been so cleverly drafted setting up the demise of my

father and Release Deed having been given by my mother as heir of

16

Late Sh Satish Kumar Sethi on 23 September 1978. That my mother

had executed any Release Deed nor had visited the Sub-Registrar

office in this regard. It is well established to give up nay right in an

immovable property has to by means of Registered Deed. That even

otherwise Smt Suksham Sethi in law was not entitled to execute any

document on behalf of the minors namely Punish Sethi & Neelam

Sethi (my Self) without the leave of the court or to protect the interest

of the Minor.”

(Emphasis supplied)

23. A perusal of the same clearly indicates that the plaintiff had

knowledge of the impugned mutation prior to 14.08.2014, i.e., the claimed

date. The representation is couched in a language which reflects ample

certainty of facts and preceding events on the part of the plaintiff and

therefore, the submission that she gathered knowledge only after receiving

the documents, stands countered by her own document/representation. It is

important to note that the plaint does not contain any other averment

indicating any other time when the plaintiff may have become aware of the

impugned mutation. In this factual backdrop, the bar of limitation assumes

importance.

24. Article 58 of the Schedule to the Limitation Act governs the limitation

period for suits for declaration, and as such, the same governs the instant

prayer. The limitation period prescribed therein is of three years

commencing from the date on which the right to sue first accrued in favour

of the plaintiff. The plaintiff herein, seeking that the impugned mutation and

Conveyance Deed be declared as null and void, should have established that

the suit has been filed within three years from the date when she first gained

knowledge of the said documents/acts. The evidentiary burden on the issue

of limitation has been discharged by defendants no. 1 and 2 by highlighting

from the plaintiff’s own representation that the alleged date of knowledge is

17

contrary to record. In such scenario, the onus of proof on this issue shifted

on the plaintiff to show otherwise.

25. In order to displace the inference drawn from the face of the material

highlighted by defendants no. 1 and 2, it was incumbent on the plaintiff to

specifically plead as to when she became aware of the same so as to enable

the Court to ascertain whether or not the prayer is within the limitation

period. Reference can be made to the decision of the Supreme Court in R.

Nagaraj (Dead) Through LRs and Another v. Rajamani and Others.

6

in

this regard. Furthermore, the only averment in the plaint in this regard is not

supported by any evidence. Therefore, the onus of proving that the prayer

for declaration is within the limitation period has not been discharged by the

plaintiff. Consequently, the aforesaid prayer is held to be barred by

limitation.

26. The prayer for partition of the suit property however, is not barred by

limitation. The reliance placed on Article 60 of the Schedule to the

Limitation Act by Mr. Alok Kumar seems to be misplaced. Article 60

governs the limitation period for suits challenging alienation of minors’

property by the guardian. The plaintiff has not sought setting aside of the

purported oral partition effected on her behalf by defendant no. 3, but has

only prayed for partition of the suit property. In fact, the factum of oral

partition/family arrangement has been denied by the plaintiff, and thus, there

is no question of seeking its setting aside. Notably, no limitation period has

been prescribed under the Limitation Act for filing a suit for partition. This

view is in line with the decision of the Supreme Court in Vidya Devi alias

6

2025 INSC 478

18

Vidya Vati (dead) by LRs v. Prem Prakash and Others,

7

wherein it has been

held that seeking partitioning of joint properties is the prerogative of the co-

sharers, and there cannot be any limitation period for exercising the said

prerogative. The relevant portion of the said decision is extracted below, for

reference:

“The legislature has not prescribed any period of limitation for

filing a suit for partition because partition is an incident attached

to the property and there is always a running cause of action for

seeking partition by one of the co-sharers if and when he decides

not to keep his share joint with other co-sharers. Since the filing of

the suit is wholly dependent upon the will of the co-sharer, the

period of limitation, specially the date or time from which such

period would commence, could not have been possibly provided for

by the legislature and, therefore, in this Act also a period of

limitation, so far as suits for partition are concerned, has not been

prescribed.”

27. Therefore, Issue No. 1 is answered in the affirmative as far as the

prayer for declaration is concerned, and in the negative with respect to the

prayer for partition. In view of the finding on Issue No. 1, Issue No. 8 is

answered in the negative, as the prayer for declaration is barred.

Issues No. 4, 5, 6, and 7.

28. Issues 4, 5, 6, and 7 are interconnected and are therefore, adjudicated

together.

29. The defendants have opposed the prayer for partition on the ground

that the properties of Mr. Joti Swarup Sethi were orally partitioned amongst

the legal heirs and have relied on Exhibit DW1/9, Exhibit DW-1/12, Exhibit

DW-3/1, Exhibit DW-3/2, Exhibit DW-3/3, Exhibit DW-3/4, and Exhibit

DW-3/5 in support of the same. Exhibit DW-1/9 and Exhibit DW-1/12 are

7

1995 SCC (4) 496

19

the release deeds; Exhibit DW-1/9, being executed by Mrs. Ved Sethi and

defendants no. 1 and 2, and Exhibit DW-1/12 being executed by defendant

no. 3. Exhibit DW-3/1, Exhibit DW-3/2, and Exhibit DW-3/3 are receipts

acknowledging the payment of Rs. 30,000 (Rupees Thirty Thousand only)

by Mrs. Ved Sethi and defendants no. 1 and 2 to defendant no. 3. Exhibit

DW-3/5 is a document purportedly signed by one of the signatories to

Exhibit SW-3/1, Exhibit DW-3/2, and Exhibit DW-3/3.

30. It has been contended on behalf of the plaintiff that Exhibit DW-1/12,

being an unregistered document by which rights in the suit property were

purportedly relinquished, is compulsorily registerable and hence, cannot be

admitted in evidence, in view of the bar under Section 49 of the Registration

Act. However, the proviso to Section 49 clearly provides that unregistered

documents which are compulsorily registerable may be received as evidence

of any collateral transaction not required to be effected by registered

instrument. Even in Yellappu Uma Maheshwari (supra), which is relied

upon by Mr. Arpit Sharma, the Supreme Court has taken note of the proviso

to Section 49 and in fact, has held that certain unregistered relinquishment

deeds therein were admissible in evidence for collateral purposes. Exhibit

DW-1/12 is being relied upon by the defendants not to prove the

relinquishment by defendant no. 3, but to prove an oral partition, which does

not require any registered instrument to be effected and is a collateral

transaction not founded on the relinquishment effected vide the document.

Therefore, the said document may be appreciated as evidence of the oral

partition.

31. Exhibit DW-3/5 is neither an original document nor a certified copy,

and the plaintiff had objected to its exhibiting on 22.02.2022. It was

20

incumbent on the defendants to produce the original document or a certified

copy thereafter, to overcome the objection. However, they have failed to so,

and therefore, the said document cannot be appreciated as evidence as per

the provision contained in Section 65 of the Evidence Act, 1872 (hereinafter

referred to as the Evidence Act). The other documents noted above being,

originals/certified copies may be received as evidence under Sections 64 and

65 of the Evidence Act.

32. Insofar as Exhibit DW-1/9 is concerned, it is not a unilateral

document, and purportedly, it bears the signature of defendant no. 3 as well.

It is important to note that the signature on Exhibit DW-1/9 has not been

denied either by defendant no. 3 or by the plaintiff. While the plaintiff has

only objected to the mode of proof of the said document, defendant no. 3 did

not step into the witness box in support of her case. Considering that the

plaintiff, as per her own case, was not present at the time of execution of the

said document, and therefore, denial, if any, of the same ought to have come

from defendant no. 3. Therefore, the signature, purportedly, of defendant no.

3 on the said document is deemed to have been admitted. A perusal of the

signatures purportedly of defendant no. 3 in Exhibit DW-3/1, Exhibit

DW3/2, Exhibit DW3/3, and Exhibit DW3/4 and a comparison of the same

with the signature in exhibit DW-1/9 indicates that the signatures are affixed

by the same person, being defendant no. 3.

33. The aforenoted documents clearly indicate that there existed some

family arrangement between defendant no. 3 who represented the plaintiff

and defendant no. 4 along with herself on one side and Mrs. Ved Kumari

and defendants no. 1 and 2 on the other and the suit property appears to have

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been allotted to the share of defendants no. 1 and 2 therein in furtherance of

the same.

34. The argument advanced on behalf of the plaintiff that any partition,

without the permission of the Court as per Section 8 of the HMGA,

extinguishing her rights in the suit property in the year 1978 when she was a

minor would not be binding on her, cannot be accepted. Section 8 of the

HMGA does not contemplate transactions lacking permission of the Court

as mandated thereunder to be void. The relevant portion of the aforesaid

provision is reproduced below for reference:

8. Powers of natural guardian.—(1) The natural guardian of a Hindu

minor has power, subject to the provisions of this section, to do all

acts which are necessary or reasonable and proper for the benefit of

the minor or for the realization, protection or benefit of the minor's

estate; but the guardian can in no case bind the minor by a personal

covenant.

(2) The natural guardian shall not, without the previous permission of

the court,— (a) mortgage or charge, or transfer by sale, gift,

exchange or otherwise, any part of the immovable property of the

minor; or (b) lease any part of such property for a term exceeding five

years or for a term extending more than one year beyond the date on

which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in

contravention of sub-section (1) or sub-section (2), is voidable at the

instance of the minor or any person claiming under him.

(Emphasis supplied)

35. Sub-section (3), thereof, clearly provides that transactions in

contravention of sub-sections (1) or (2) are only voidable and not void. In

Vishwambhar (supra), the Supreme Court has held that the aforesaid

voidable transaction has to be set aside in order to be avoided for the

purposes of sub-section (3). The relevant portion of the decision is

reproduced below, for reference:

“On a fair reading of the plaint, it is clear that the main fulcrum on

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which the case of the plaintiffs was balanced was that the alienations

made by their mother-guardian Laxmibai were void and therefore,

liable to be ignored since they were not supported by legal necessity

and without permission of the competent court. On that basis the

claim was made that the alienations did not affect the interest of the

plaintiffs in the suit property. The prayers in the plaint were inter alia

to set aside the sale deeds dated 14.11.1967 and 24.10.1974, recover

possession of the properties sold from the respective purchasers,

partition of the properties carving out separate possession of the

share from the suit properties of the plaintiffs and deliver the same to

them. As noted earlier, the trial court as well as the first appellate

court accepted the case of the plaintiffs that the alienations in dispute

were not supported by legal necessity. They also held that no prior

permission of the court was taken for the said alienations. The

question is in such circumstances are the alienations void or

voidable? In Section 8(2) of the Hindu Minority and Guradianship

Act, 1956, it is laid down, inter alia, that the natural guardian shall

not, without previous permission of the Court, transfer by sale any

part of the immovable property of the minor. In sub-section (3) of the

said section it is specifically provided that any disposal of immovable

property by a natural guardian, in contravention of sub-section (2) is

voidable at the instance of the minor or any person claiming under

him. There is, therefore, little scope for doubt that the alienations

made by Laxmibai which are under challenge in the suit were

voidable at the instance of the plaintiffs and the plaintiffs were

required to get the alienations set aside if they wanted to avoid the

transfers and regain the properties from the purchasers.”

(Emphasis supplied)

36. Therefore, the proper recourse that the plaintiff ought to have taken to

avoid the oral partition was to have it declared as void in accordance with

law. There is a sound juristic distinction between void

instruments/transactions and voidable instruments/transactions. A voidable

instrument/transaction continues to be valid till the time it is avoided. In

order to avoid the same, the plaintiff ought to have acted within the

limitation period. However, she has clearly failed to do so.

37. As per the case record, the plaintiff attained majority in the year 1993.

Therefore, the three-years’ limitation period under Article 60 would end in

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the year 1996. However, the suit has been filed only in the year 2014,

around twenty-one years after the plaintiff attained majority and eighteen

years after the limitation period under Article 60 would have ended.

Therefore, even if a prayer for setting aside the prior partition is deemed to

be inherent in the prayer for partitioning the suit property, the former is

barred by limitation. Accordingly, the objection under Section 8 of the

HMGA to the oral partition/family arrangement is meritless.

38. In view thereof, the oral partition of the properties of late Mr. Joti

Swarup Sethi in the year 1984 having been duly proved by defendants no. 1

and 2, the plaintiff is, essentially, seeking a share in a property in which she

has no right or title. On one hand, there is cogent documentary evidence

with admitted signatures of defendant no. 3 to find in favour of the oral

partition. On the other hand, to counter the same and indicate jointness of

the suit property, the plaintiff has not adduced any credible evidence. In the

absence of proof of jointness, there is no question of partition of the suit

property. Consequently, the prayer for partition is without any cause of

action.

39. Before parting, there is another fact which needs to be appreciated,

Defendants no. 1 and 2 have categorically averred that consequent to the

oral partition, the commercial property was allotted to the share of the

plaintiff and defendants no. 3 and 4, which was sold by defendant no. 3 to

third-parties. This assertion has not been denied, and therefore, the inference

that can be drawn is that defendant no. 3, representing the plaintiff and

defendant no. 4, had acted in furtherance of the oral partition/family

settlement to her advantage by selling of their share. Their conspicuous

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silence on this aspect actually raises a question regarding the bona fide

nature of the present claim.

40. In view of the above discussion, Issue No. 4 is answered in the

affirmative, and Issues No. 6 and 7 are answered in the negative.

Considering the findings on Issues No. 4 and 7, Issue No. 5 does not require

to be adjudicated.

Issues No. 2 and 3.

41. Considering that defendants no. 1 and 2 have not prayed for

declaration of their title to the suit property and that the plaintiff has been

found not to be entitled for the reliefs prayed, Issues No. 2 and 3 do not

require to be adjudicated.

42. In view of the findings and discussion in the preceding paragraphs,

the suit is without merit and is, accordingly, dismissed along with pending

applications. No order as to costs. Let a decree of dismissal be drawn

accordingly.

(PURUSHAINDRA KUMAR KAURAV)

JUDGE

27 JANUARY, 2026

P