Manismran Kaur

New Delhi, June 4, 2022: Referring to Section 45 of the Transfer Property Act ,1882  which stipulates that contributions towards consideration made from joint funds may be ascertained in the ratio in which the two persons have their interest in the fund, the Delhi High Court has observed that in the absence of any evidence of their respective shares, it shall be presumed to be equal interest.

The  Division Bench of Justice Mukta Gupta and Justice Neena Bansal Krishna dismissed the appeal filed against the judgment whereby a preliminary decree assessing the respective shares of the parties in the joint properties  was made under Order XLIII Rule 1 of CPC  on account of it being barred by time under the Limitation Act , 1963.  

In this matter, the appellant averred in his plaint with respect to the suit property that the same was in the joint name of the appellant and the first respondent; however the appellant stated that the sale consideration in respect of the said property was paid in the ratio of 80.55% by the appellant and the rest by the first respondent. It was also claimed by the appellant that a partial oral settlement took place between the parties in respect of the suit property, in pursuance of which the share property came to the share of the appellant.   Thereafter, the  shares of plaintiff/appellant and first respondent in the suit property was declared as 50% each on the basis of sale deed which was in the joint name of appellant and first respondent by the Single Judge Bench. Aggrieved by the same, the present appeal was preferred by the appellant. 

The Bench opined that the sale deed was silent about the extent of the shares of the appellant and the first respondent respectively. The Court further observed that the basic premise of the appellant to claim a share to the extent of 80% was without any foundation. Additionally, the Court opined that the appellant attempted to confound the entire facts  and the payment of sale consideration was done with the contribution of the money being put by either party in the joint account from which the EMI repayment of loan was made.

It was further submitted by the Court that Section 45 of the TPA would not be attracted in the instant case as the same would not be attracted in a situation where the loan is being repaid. The parties may repay the loan in any manner or in any ration as per their mutual agreement, the Court noted. Thus, the remedy under Section 45 sought by the appellant was not available in the present case, the Court remarked.  Further with reference to the oral agreement as claimed by the petitioner, the Court referred to Sections 91 and 92 of the Indian Evidence Act stating that the said sections nullifies  any oral evidence in regard to covenants of a written document. 

Reliance was placed on the Apex Court judgment in Placido Francisco Pinto (D) By Lrs & Anr. v. Jose Francisco Pinto & Anr.On the issue of limitation, the Court noted that the sale deed was executed on October 12, 2011 mentioning the appellant and the first respondent as the joint owners of the property.  If the appellant was aggrieved of the same, he should have assailed the same within the period of three years from the date of registration of sale deed.. Since the appellant failed to conted the same, thus the appeal was barred by time, the Court noted.

It was also noticed by the Bench that  a vague plea of oral agreement was raised. Lastly, the Court concluded that the appellant claimed that as per the oral agreement, the first respondent was supposed to execute the relinquishment deed in the favor of the appellant, however, the Court could not find any trace of such relinquishment deed being executed by the first respondent in the favour of the appellant.  In light of the aforesaid observations, the present appeal was dismissed on account of being meritless. 

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