Delhi District Court
Nitin Bahal vs Meera Batra on 21 April, 2025
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-000012-2001
Civil DJ No.610210/2016
1 Nitin Bahl
S/o Col. R. C. Bahl
R/o 1026, Vikas Kunj,
Vikaspur, New Delhi-110018.
2 Nidhi Popli
W/o Sandeep Popli
R/o 1026, Vikas Kunj, Vikaspuri,
New Delhi-110018.
3 Vinod Kumar Kohli
S/o Shri Ram Lubhaya Kohli
R/o G-28, First Floor, Kirti Nagar
New Delhi-110015. ...Plaintiffs.
Versus
1 Meera Batra
W/o Vinod Batra
R/o G-28, First Floor, Kirti Nagar
New Delhi-110015.
2. Rita Malhan
W/o Avinash Malhan,
R/o M-40, Kirti Nagar,
New Delhi. ...Defendants
SUIT FOR PARTITION, DECLARATION
AND PERMANENT INJUNCTION.
Nitin Bahl vs. Meera Batra Page No. 1 of 70
Civil DJ No. 610210/2016
DATE OF INSTITUTION : 24.05.2001
JUDGMENT RESERVED ON : 03.04.2025
JUDGMENT PRONOUNCED ON : 21.04.2025
Ld. Counsel for the Plaintiff : Ms. Nandani Sahni, Advocate
Ld. Counsel for the Defendant No.1 : Ms. Dimple Dhamija, Advocate.
JUDGMENT
1. Introduction:
1.1. The present suit has been filed for the prayers of partition, with regard to property No.G-28 (1st Floor) and No. L-37 (2nd Floor), Kirti Nagar, New Delhi. The Plaintiffs have also sought declaration with regard to the Gift Deed dated 19.11.1999 with regard to the property No.G-28 (1 st Floor), Kirti Nagar, New Delhi. The Plaintiffs have also sought the consequential prayer of permanent injunction with regard to the aforementioned properties.
1.2. The description of the parties to the present suit has been changed several times in the suit on account of transposition, impleadment and death of the parties. The parties are described by serial No.s mentioned in last amended memo of parties, which is mentioned in first page of judgment and the parties not shown in the abovementioned last amended memo of parties are addressed by their respective names in Nitin Bahl vs. Meera Batra Page No. 2 of 70 Civil DJ No. 610210/2016 this judgment. The change in the description of the parties is explained in the paras hereinbelow, so as to obviate any confusion.
1.3. The suit has been filed by the Plaintiff No.3 as being the sole Plaintiff. The original Defendant No.1 in the suit was father of the Plaintiff No.3, i.e., late Ram Lubhaya Kohli. The present Defendant No.1 was the Defendant No.2. The present Plaintiff No.1 and 2 were the original Defendant No.3 and 4. The aforesaid original Defendants were duly served and entered appearance on 07.08.2001. On the next date of hearing, i.e., 25.09.2001, the Plaintiff No.3, being the sole Plaintiff at that time, filed an application under Order XXIII Rule 1 of Code of Civil Procedure, 1908 for withdrawal of the suit, however, before the aforesaid application for withdrawal could be decided, the original Defendant No.3 and 4 filed an application for their transposition as the Plaintiffs. The aforesaid application for transposition was allowed on 17.10.2001 and the original Defendant No. 3 and 4 were thus transposed as the Plaintiffs No.1 and 2.
1.4. The application for withdrawal of the suit by the Plaintiff No.3 remained pending, however the suit was continued and pursued on behalf of the Plaintiff No.1 and 2. Late Ms. Swadesh Kohli, wife of late Ram Lubhaya Kohli filed an application for her impleadment as a Defendant and the Nitin Bahl vs. Meera Batra Page No. 3 of 70 Civil DJ No. 610210/2016 aforesaid application was allowed on 11.02.2003 and she was impleaded as the Defendant No.3 to the suit. 1.5. Subsequently, the original Defendant No.1, i.e., Late Ram Lubhaya Kohli passed away on 02.09.2003 and an application was filed for impleadment of LRs of the Defendant No.1, which was allowed on 10.12.2004. As a consequence of the aforesaid application, the description of the Defendants was changed in the amended memo of parties and Late Ram Lubhaya Kohli was deleted from the memo of parties and the Original Defendant No.2(Ms. Meera Batra) was shown as the Defendant No.1 and the then Defendant No.3(Ms. Swadesh Kohli) was shown as the Defendant No.2, in the amended memo of parties.
1.6. On 24.03.2006, Ld. Counsel for the Plaintiffs informed the Court that there is conflict of interest between the Plaintiff No.1 and 2 and the Plaintiff No. 3 and therefore he would appear only on behalf of the Plaintiff No.1 and 2. Subsequently, on 04.10.2006, the Plaintiff No. 3 was represented by a separate Counsel. On 31.07.2007, it is submitted on behalf of the Plaintiff No.1 and 2 submitted that they would file an application for transposition of the Plaintiff No. 3 as a Defendant, however no such application was ever filed.
1.7. It is recorded in the Order dated 14.08.2007 that the Plaintiff No.3 has initially filed an application for withdrawal of the suit and thereafter filed an application for withdrawal of the Nitin Bahl vs. Meera Batra Page No. 4 of 70 Civil DJ No. 610210/2016 application for withdrawal. It is recorded that in view of the second application, the first application for withdrawal of the suit automatically stood withdrawn. Ld. Counsel for the Plaintiff No. 3 also stated that the Plaintiff No. 3 intended to continue with the present suit and both the aforesaid applications were accordingly disposed of.
1.8. On 12.09.2007, the Plaintiff No.1 and 2 filed an application for impleadment of Ms. Rita Malhan as a Defendant to the suit, being the subsequent purchaser of the property No.L- 37(2nd Floor), Kirti Nagar, New Delhi. The Application was allowed on 22.02.2008 and Ms. Rita Malhan was impleaded as the Defendant No.3 in the present suit.
1.9. On 04.09.2013, it was informed that the Defendant No.2 (Ms. Swadesh Kohli) had passed away on 29.06.2012 and it was stated that the LRs of the Defendant No.2 were already on record. A fresh amended memo of parties was filed upon death of Ms. Swadesh Kohli and she was deleted from the memo of parties and the then Defendant No.3 (Ms. Rita Malhan) was mentioned/designated as the Defendant No.2. The aforesaid position of parties have continued and there is no subsequent change in their description.
2. The facts stated in the Plaint:
The facts, as set out in the plaint, are summed up in brief in the paras hereinbelow:Nitin Bahl vs. Meera Batra Page No. 5 of 70 Civil DJ No. 610210/2016
i. Late Mr. Ram Lubhaya Kohli alongwith his wife (Late Sudesh Kohli), son (Vinod Kumar Kohli, Plaintiff No.3), one daughter (Defendant No.1) and children of pre-deceased daughter Kamini Kohli (Plaintiff No.1 and 2) were members of the joint Hindu family.
ii. Late Lala Panna Lal Kohli was the owner of immovable property bearing no. 156, Bikram Pura, Jalandhar, Punjab, ad-measuing 500 square yards and the same was the ancestral property of the Joint Hindu Family. The share of the Plaintiffs in the said property is 1/4th along with Ram Lubhaya Kohli and other members of the family. Late Lala Panna Lal Kohli died in 1945 and after the death of late Lala Panna Lal Kohli, the members of the said Joint Hindu Family were late Ram Lubhaya Kohli and his son, i.e., the Plaintiff No.3, who was born in the year 1942. The said Joint Hindu Family constituted a coparcenery governed by the Mitakshra School of Hindu Law.
iii. Late Ram Lubhaya Kohli in his capacity as Karta of the said Joint Hindu Family sold the ancestral property at Jalandhar, Punjab in the year 1953 and with the proceeds acquired the following two properties (plots):Nitin Bahl vs. Meera Batra Page No. 6 of 70 Civil DJ No. 610210/2016
a) property No. A-21, Kirti Nagar, New Delhi, ad-measuring 150 sq. yds., which was a commercial property;
b) property No. D-42, Kirti Nagar, New Delhi, ad-measuring 380 sq. yds., which was a residential property.
Late Ram Lubhaya Kohli did not have any steady income or savings, other the money received from sale of ancestral properties in Punjab, which were in his control as the Karta and the eldest surviving male of the Joint Family.
iv. It had come to the knowledge of Plaintiff No. 3 that the commercial property situated at A-21, Kirti Nagar, New Delhi, was disposed off by Late Ram Lubhaya Kohli in or about 1978-79 and the funds were utilized to marry off and settle the Defendant No. 1(Meera Batra).
v. The property No. D-42 was also constructed from joint family funds and was used as residence. The property No. D-42, Kirti Nagar, New Delhi, was initially purchased in the name of the wife of Late Ram Lubhaya Kohli, i.e., Late Sudesh Kohli, and was subsequently transferred to the name of Late Ram Lubhaya Kohli, however the same had always been a property belonging to the Joint Family and any income and / or sale proceeds derived from its Nitin Bahl vs. Meera Batra Page No. 7 of 70 Civil DJ No. 610210/2016 sale / alienation also belonged to the family in which the Plaintiff's had a share.
vi. Ram Lubhaya Kohli informed the Plaintiff No.3 that he intended to partition the property No. D-42 equally amongst his three children. Ram Lubhaya Kohli was aged about 80 years and was in a delicate state of health as he was in a near blind and deaf condition since the last 5-6 years. He also had a brain surgery in 1995 and since then he was infirm and totally dependent.
vii. The Defendant No. 1 (Meera Batra) was taking care of Late Ram Lubhya Kohli and took advantage of his physical and mental condition. Under the pressure of the Defendant No.1, Late Ram Lubhya Kohli sold the Property No. D-42 and purchased the following two properties from the sale proceeds of the same:
a) G-28, Kirti Nagar, New Delhi,
b) L-37, Kirti Nagar, New Delhi.
viii. The flats bearing no. L-37, Kirti Nagar, New Delhi and G-28, Kirti Nagar, New Delhi were purchased out of the sale proceeds of property bearing no. D- 42, Kirti Nagar, New Delhi, which was a fully constructed independent property admeasuring Nitin Bahl vs. Meera Batra Page No. 8 of 70 Civil DJ No. 610210/2016 approx. 380 sq. yds. The property bearing No. D- 42, Kirti Nagar, New Delhi was an ancestral property and belonged to the Joint Hindu Family and any properties / assets acquired from the sale / alienation of the said property are therefore also Joint Hindu Family properties / assets belonging the family in which the Plaintiffs had a share. The sale of the said property would, at the minimum, have fetched a sum of Rs.1.25/- crores approx. The properties bearing No. L-37, Kirti Nagar, New Delhi and G-28, Kirti Nagar, New Delhi were purchased for consideration far below the market value.
ix. The property bearing No. G-28, Kirti Nagar, New Delhi was purchased for a mere consideration of Rs.2.28 lakhs. The said property moreover has been registered under the names of Defendant No. 1 and late Ram Lubhaya Kohli in equal shares vide registered sale deed dated 07.04.1999.
x. The property bearing No.L-37, Kirti Nagar, New Delhi similarly was purchased for the paltry sale consideration of Rs.3,00,000/- vide registered sale deed dated 26.03.1999. The said property was exclusively in the name of Ram Lubhaya Kohli. The Defendant No.1 had pocketed and siphoned off the majority of the balance sale consideration, Nitin Bahl vs. Meera Batra Page No. 9 of 70 Civil DJ No. 610210/2016 received from the alienation of D-42, Kirti Nagar, New Delhi, with the help of property dealer Sh. Shekhar Grover and the builder Arun Sehgal.
xi. Subsequently the Defendant No.1 pressurized late Ram Lubhaya Kohli to bequeath and gift even his own half share in the said property bearing No. G-28, Kirti Nagar, New Delhi, in her favour by valuing the said flat at a paltry sum of Rs.3,42,500/- by way of a gift deed dated 19.11.1999. It is submitted that the market value of the said flat was at a minimum of Rs.55 Lakhs.
xii. The said gift deed is vitiated by undue influence, coercion and by sheer exploitation of the fiduciary relationship that Defendant No. 1 had with Late Ram Lubhaya Kohli. The Defendant No.1 had abused her role as a daughter of Ram Lubhaya Kohli and had influenced and coerced him to gift away even his own half share in the said property bearing No.G-28, Kirti Nagar, New Delhi in his favour.
xiii. The properties bearing No. L-37, Kirti Nagar, New Delhi and G-28, Kirti Nagar, New Delhi are joint family properties in which the Plaintiffs have shares being the coparceners. The said properties have been acquired out of common funds, which were received by alienating the ancestral property Nitin Bahl vs. Meera Batra Page No. 10 of 70 Civil DJ No. 610210/2016 bearing No. D-42, Kirti Nagar, New Delhi.
xiv. The Defendant No.1 and Ram Lubhaya Kohli had taken the advantage of the physical absence of the Plaintiffs and had got the said properties registered in their favour in the first instance. The Defendant No.1 had thereafter influenced and coerced Late Ram Lubhaya Kohli to transfer and gift his share in the property to the Defendant No. 1 thereby making her the exclusive owner of property bearing No. G- 28, Kirti Nagar, New Delhi.
xv. The aforementioned Gift Deed is void and inoperative as the same was primarily a Joint Hindu Family property having been purchased from the funds derived out of the alienation of the ancestral property No. D-42, Kirti Nagar, New Delhi. The said gift deed in addition thereto is vitiated as the same is procured by Defendant No.1 by exercising great and monumental undue influence & coercion upon Late Ram Lubhaya Kohli and forcing and blackmailing him to execute the said gift deed. The said gift deed is, therefore, void on account of the afore-stated reasons and is liable to be cancelled forthwith.
xvi. The aforesaid properties bearing No. G-28, Kirti Nagar, New Delhi and L-37, Kirti Nagar, New Delhi are liable to be partitioned by metes and Nitin Bahl vs. Meera Batra Page No. 11 of 70 Civil DJ No. 610210/2016 bounds as the same are Joint Hindu Family Properties having been purchased out of the common ancestral funds after the sale/alienation of the property no. D-42, Kirti Nagar, New Delhi.
3. Written Statements:
3.1. Written Statement of Late Ram Lubhaya Kohli and the Defendant No.1 :
3.1.1. Late Ram Lubhaya Kohli and the Defendant No.1 (Meera Batra) filed joint written statement and refuted the contentions of the Plaint. The relevant averments, made by them in their written statement and constituting their defence, are being summed up in brief in the paras hereinbelow:
i. There was no coparcenary/Joint Hindu Family property on the death of the father of Ram Lubhaya Kohli in the year 1945 and the properties in question are not joint family properties and have been purchased by Ram Lubhaya Kohli through his self- acquired funds.
ii. Late Panna Lal Kohli was employed in the Military Accounts Office and was posted at Lahore. He retired from his office in the year 1933 and shifted to Nitin Bahl vs. Meera Batra Page No. 12 of 70 Civil DJ No. 610210/2016 Jalandhar from Lahore in 1933. Late Panna Lal Kohli purchased a 50 years old house in Bikrampura, Jalandhar City, with the amount he received upon his retirement. His pension was Rs.150/- per month. Late Panna Lal Kohli died in 1945 and his wife pre- deceased him in 1935. Late Panna Lal Kohli was survived by his son, namely, Ram Lubhaya Kohli and daughter, namely, Nirmal.
iii. Ram Lubhaya Kohli was engaged in small scale business of Socks Manufacturing on hand driven Socks Machine, which was started in September, 1942 in partnership with Mr. Shiv Kumar Seth, with the business capital of Rs.10,000/- (Shiv Kumar Seth Rs. 6,000/- and R.L. Kohli Rs. 4,000/-). The firm's name was M/s Prabhat Hosiery Works.
iv. Ram Lubhaya Kohli worked at M/s Atlas Hosiery Works, Kartarpur Road, Jalandhar City from January 1941 to September 1942, before joining M/s Prabhat Hosiery Works as a partner and invested the amount saved from his employment in M/s. Prabhat Hosiery Works on 28.08.1942.
v. The aforesaid business flourished and they had good income, and started paying income tax from 1944 onwards. On 09.06.1950, their work expanded and Nitin Bahl vs. Meera Batra Page No. 13 of 70 Civil DJ No. 610210/2016 Ram Lubhaya Kohli opened a firm (M/s. Navyug Trading Co.) as the sole Agent of M/s Prabhat Hosiery Works from C.P., Madras, South India, Punjab, UP, Rajasthan, Bihar from 09.06.1950. On 09.06.1950, Ram Lubhaya Kohli received Rs.15,000/- as his share out of his profits from M/s.
Prabhat Hosiery Works from 1942 to 1950. Ram Lubhaya Kohli invested the aforementioned amount of Rs.15,000/- in M/s. Navyug Trading Co., as capital. Ram Lubhaya Kohli started the work of Booking & Supplying orders of Hosiery Goods (Socks & Banians etc.) vi. In 1953, M/s Prabhat Hosiery Works and M/s Nagyug Trading Co., had decided to shift their business to Delhi. As they had decided to shift to Delhi, Ram Lubhaya Kohli decided to marry off his younger sister Nirmal. Ram Lubhaya Kohli did not have much funds in his firm for withdrawal, in order to marry off his sister and therefore, he decided to take a loan of Rs.10,000/-for Nirmal's marriage against his house No.156, Bikrampura, Jalandhar as they were shifting their business & residence to Delhi. Ram Lubhaya Kohli, therefore, took a loan of Rs.10,000/- (Rupees Ten Thousand Only) from Shri Jangi Lal Chadha resident of Attari Bazar, Jalandhar City at 6% interest, against his house No.156, Nitin Bahl vs. Meera Batra Page No. 14 of 70 Civil DJ No. 610210/2016 Bikrampura, Jalandhar City, to be returned back on the sale of house No. 156, Bikrampura, Jalandhar City.
vii. Ram Lubhaya Kohli spent the loan of Rs. 10,000/- on the marriage of his younger sister Nirmal in the following manner:
Betrothal 1120
Shagan 501 Orn. Set 1915
Sweet 245 Churian 1020
Fruits 134 Ring 115
Milnis 210 Watch 140
Bus & Tonga 30
1120 4430
4430
Suit 150 6350
Suit 130 Tailor 260
Sari 180 G. Suit 330
Sari 180 Sofa Set 375
Suit 165 G. Suit 210
Suit 205 Tailer 85
Sari 175 7610
Sari 150 Ration etc. 315
Suit 190 Ghee 225
Nitin Bahl vs. Meera Batra Page No. 15 of 70
Civil DJ No. 610210/2016
8150
Sari 175 Sweets 245
Pak. Tea 80
Sari 220 Milk 40
6350 Samdhi 24
Pandi 101
Milni 240
Shagans 180
9060
viii. Total Rs.9060/- were spent on Nirmal's marriage upto
November, 1953. In December, 1953, Ram Lubhaya Kohli & family shifted to Delhi and they decided to sell off their house No.156, Bikrampura, Jalandhar City. Ram Lubhaya Kohli asked some property dealer to find a customer for the same. As there was one tenant Mr. Ram Pratap Dhir, who was paying only Rs.20/- per month for the house, and he was not vacating the house, Ram Lubhaya Kohli could not find a purchaser for the same.
ix. Ultimately, the tenant Ram Pratap Dhir offered Ram Lubhaya Kohli in November, 1959 that he would buy the house in six monthly installments for a total amount of Rs.12,000/-. As per agreement dated Nitin Bahl vs. Meera Batra Page No. 16 of 70 Civil DJ No. 610210/2016 29.11.1959, Ram Lubhaya Kohli received the following installments from Shri Ram Pratap Dhir:
Date Amount
(In Rs)
29.11.59 1,000
20.05.60 3,000
24.11.60 2,000
24.05.61 2,000
25.11.61 2,000
29.06.62 2,000
Total 12,000
x. Ram Lubhaya Kohli paid back the loan amount of
Rs.10,000/-, alongwith interest, to Mr. Jangi Lal
Chadha in terms of following installments:
01.06.60 Rs. 4,000 01.06.61 Rs. 4,000 07.12.61 Rs. 2,000 07.12.61 (interest) Rs. 4230 Total Rs. 14,230/-
xi. In 1957, Ram Lubhaya Kohli again joined M/s Prabhat Hosiery Works in partnerships with Shri Shiv Nitin Bahl vs. Meera Batra Page No. 17 of 70 Civil DJ No. 610210/2016 Kumar Seth with 50% share each. They had a new partnership with a capital of Rs.50,000/-, where the share of Ram Lubhaya Kohli was Rs.25,000/-.
xii. The property No. A-21 and property No.D-42, Kirti Nagar, Delhi were purchased and constructed from the income of Ram Lubhaya Kohli accrued from his business. The property No. A-21 was purchased for an amount of Rs.3327.74/- and was constructed with the cost of Rs.10,521.31/- from 19.04.1955 to 30.08.1956. An amount of Rs.10,569.80/- was withdrawn by Ram Lubhaya Kohli from his firm M/s Navyug Trading Company and commission received from Atlas Hosiery Works. The property No.D-42 was purchased for Rs.3353.58/-.The construction of the property No. D-42 was completed by Ram Lubhaya Kohli in a period of about eight years for a total cost of Rs.36,403/-, which was withdrawn by him from his business and bank.
3.2. Written statement of Swadesh Kohli:
Late Ms. Sudesh Kohli had filed her written statement in the matter and supported the case of the Plaintiffs. It was stated in her written statement that the property No. A-21, Kirti Nagar and the property No. D-42, Kirti Nagar were Nitin Bahl vs. Meera Batra Page No. 18 of 70 Civil DJ No. 610210/2016 purchased from the sale proceeds of H. No. 156, Bikrampura, Punjab. It was also stated that the initial construction of the aforementioned properties was raised with the funds received on account of sale of jewellary of late Ms. Sudesh Kohli. It was also stated in the written statement that the suit properties were acquired by sale of property No.D-42, Kirti Nagar, Delhi.
3.3. Written Statement of Rita Malhan:
The Defendant No.2, i.e., Ms. Rita Malhan has also filed a brief written statement of one page, wherein it is stated that she has purchased the property No.L-37, Second Floor with terrace rights on the assurance of Ms. Swadesh Kohli of her being the absolute owner of the same and with the consent of the Plaintiff No.3, who had signed as a witness. It is further stated by her that she has already sold the aforesaid suit property and passed on the possession, however the details of the purchaser or manner of sale has not been stated in the written statement.
4. Replications:
4.1. The Plaintiffs have filed the replication to the written statement of the Defendants, wherein the Plaintiffs has traversed the contents of same and has made the necessary denials, reiterating the averments of the plaint.Nitin Bahl vs. Meera Batra Page No. 19 of 70 Civil DJ No. 610210/2016
5. Issues:
5.1. On the basis of the pleadings of the parties, the following issues were framed on 18.12.2009:
i. Whether properties bearing Nos.G-28 (Ist Floor), Kirti Nagar, New Delhi and L-37 (2nd Floor), Kirti Nagar, New Delhi are ancestral and HUF properties? OPP ii. Whether plaintiffs are entitled to relief of partition of the properties G-28 (Ist Floor) and L-37 (2 nd Floor), Kirti Nagar, New Delhi? OPP iii. Whether the Gift Deed dated 19.11.1999 in favour of Meera Batra, defendant No.1 with respect to property No.G-28, Ist Floor, Kirti Nagar, New Delhi is bogus, null and void? OPP iv. Whether plaintiff is entitled to a decree of permanent injunction as prayed for? OPP In addition to the above-mentioned Issues, one additional Issue, i.e., the following fifth Issue, was also framed on 10.03.2010:Nitin Bahl vs. Meera Batra Page No. 20 of 70 Civil DJ No. 610210/2016
v. Is Conveyance/sale deed dated 13.07.2005, in respect of the suit property No. L-37, Second Floor, Kirti Nagar, favouring third defendant not binding upon the Plaintiff, as contended? OPP
6. The Plaintiff's Evidence:
6.1. The Plaintiff No.1 and 2 have led their evidence and have examined two witnesses in support of their case. The father of the Plaintiff No.1 and 2, also an attorney for them in the present case, has appeared as PW-1. The PW-1 has reiterated the contentions of the plaint in his examination-in-chief. He has exhibited and relied upon the following documents in his examination-in-chief:
i. Exhibit PW-1/1 (colly): Certified copy of the Sale Deed dated 06.11.1954 along with its translation.
ii. Exhibit PW-1/2: Certified copy of the Sale Deed dated 29.05.1962 along with its translation. iii. Mark-A: Photocopy of the Will dated 13.06.1994. iv. Mark-B: Photocopy of Will dated 15.02.1995. v. Exhibit PW-1/5: The written statement of Defendant No.3 (now Defendant No.2). vi. Exhibit PW-1/6: The original Power of Attorney dated 25.02.2002, executed by Plaintiffs No.1 and 2 in favour of PW-1.Nitin Bahl vs. Meera Batra Page No. 21 of 70 Civil DJ No. 610210/2016
The PW-1 was only cross-examined by Ld. Counsel for the Defendant No.1 and was discharged upon conclusion of his cross-examination.
6.2. The Plaintiff has examined the official witness from the office of HRC Branch, Deputy Commissioner Office, Jalandhar, Punjab as PW-2. The PW-2 has produced the summoned record, i.e, the copies of the Sale Deeds dated 09.11.1954 and 29.05.1962, which are Exhibited as Exhibit PW-2/A and PW-2/B respectively. He has also relied upon the English translation of the aforesaid Sale Deeds, which are Exhibit PW2/A-1 and Exhibit PW-2/A-2 respectively.
The PW-2 was not cross-examined by Ld. Counsel for the Defendant No.1 despite opportunity given and was discharged upon conclusion of his examination-in-chief.
6.3. The Plaintiff No.3 has not led any evidence in the matter.
7. The Defendant's Evidence:
7.1. The Defendant No.1 (Ms. Meera Batra) has led her evidence and has examined four witnesses in support of her case. The Defendant No.1 has herself appeared as the DW-1. The DW-1 has reiterated the contentions of her written statement in her examination in chief. The DW-1 has relied upon the Nitin Bahl vs. Meera Batra Page No. 22 of 70 Civil DJ No. 610210/2016 following documents in her examination-in-chief:
i. Exhibit D-1 to Exhibit D-16: The original receipts issued by the Rehabilitation Housing Corporation Ltd.
ii. Exhibit D-17: Certified copy of the Order dated 06.02.1969.
iii. Exhibit D-18: The original Agreement to Sell dated 23.07.1954.
iv. Exhibit D-19: The Letter dated 22.03.1954, issued by the Rehabilitation Housing Corporation Ltd. v. Exhibit DW1/1 to Exhibit DW1/42: The original income tax assessment Orders and returns of Sh. Ram Lubhaya Kohli pertaining to the year 1960 onwards to the year 2002-2003.
vi. Exhibit DW-1/44: The copy of the registered Sale Deed dated 16.09.1999, executed in favour of Sh. Ram Lubhaya Kohli and the Defendant No.1.
The DW-1 was cross-examined by the Ld. Counsel for the Plaintiff No.1 and 2 as well as by Ld. Counsel for the Plaintiff No.3 and was discharged, upon conclusion of her cross-examination.
7.2. The Defendant No.1 has examined the official witness from the office of Sub-Registrar-II, Basai Darapur, New Delhi as D1W2. The D1W2 has produced the summoned record, i.e, Nitin Bahl vs. Meera Batra Page No. 23 of 70 Civil DJ No. 610210/2016 the Sale Deed dated 19.11.1999, which was already Exhibited as Exhibit PW1/D1X2 (OSR). The D1W2 has also produced the registered sale deed dated 07.04.1999, executed by Sh. Surender Malhotra, Sh. Bharat Mehta and Smt. Neeru Sehgal, in favoufr of Sh. Ram Lubhaya Kohli and Smt. Meera Batra, which was already Exhibited as Exhibit PW1/D1X1 (OSR). The D1W2 has also produced the summoned record, i.e., sale deed dated 16.09.1999, executed by Sh. Surender Malhotra, Sh. Bharat Mehta and Smt. Neeru Sehgal, in favour of Sh. Ram Lubhaya Kohli and Smt. Meera Batra, which is Exhibited as Exhibit D1-W2/1 (OSR). The D1W2 was not cross-examined by Ld. Counsel for the Plaintiffs despite opportunity being given and was discharged upon conclusion of his examination-in-chief.
7.3. The Defendant No.1 has examined the official witness from the office of Income Tax, Ward No. 49 (1), Civic Centre, Minto Road, New Delhi as D1W3. The D1W3 has produced the summoned record, i.e, the assessment Orders for the year 2001-2002 relating to late Ram Lubhaya Kohli and the computer generated copy of the same is Exhibit D1/W3/1 (colly) (running into six pages). The D1W3 has also relied upon the affidavit under Section 65-B of Indian Evidence Act, filed in respect of aforesaid record, which is Exhibit D1/W3/2. The D1W3 was not cross-examined by Ld. Counsel for the Plaintiffs despite opportunity being given and was discharged upon conclusion of his examination-in-
Nitin Bahl vs. Meera Batra Page No. 24 of 70 Civil DJ No. 610210/2016chief.
7.4. The Defendant No.1 has examined the official witness from the office of National Archive of India, Ministry of Culture, Janpath, New Delhi as D1W4. The D1W4 has produced the summoned record, i.e, the attested copy of the letter dated 28.04.1953 bearing reference No.RHCL/34/173. The D1W4 has also compared the attested copy of the aforesaid document with the original records produced by him and the attested copy of the aforesaid letter is Exhibit-D1W4/1. The D1W4 has also produced the summons record, i.e., the original record of the file bearing No.R.H.B./126 (8) 53 of the Rehabilitation Division of Ministry of Home Affairs. The D1W4 has also compared the attested of the aforesaid document with the records produced by him and the attested copy of page No. 179-180 ( Image No. 186-187) is Exhibit- D1W4/2. The D1W4 was not cross-examined by Ld. Counsel for the Plaintiffs despite opportunity being given and was discharged upon conclusion of his examination-in- chief.
7.5. The Defendant No.2 (Ms. Rita Malhan) has not led any evidence in the matter and has also not participated in the same after filing of the written statement. After conclusion of the evidence of the parties, the matter was posted for final arguments.
Nitin Bahl vs. Meera Batra Page No. 25 of 70 Civil DJ No. 610210/20168. Submissions of Parties:
8.1. Ld. Counsel for the Plaintiff has addressed her arguments and has also filed written note of her arguments. It is submitted by her that the sale of the property No.156, Bikrampura, Punjab is not disputed by the parties and the aforesaid sale deeds, i.e., Exhibit PW-1/1 and Exhibit PW-
1/2 themselves record that the property No. 156, Bikrampura, Punjab was being sold for purchase and construction of further properties. It is submitted that the property No.A-21 and D-42, Kirti Nagar, Delhi were purchased simultaneously with the sale of the property No. 156, Bikrampura, Punjab and therefore, the onus is upon the Defendants, more appropriately on the Defendant No.1 to establish that the aforesaid properties were purchased from the funds independently of the amount received from the sale of property No.156, Bikrampura, Punjab. It is submitted that the Defendant No.1 has miserably failed to prove any other source for showing the purchase of property No.A-21 and D- 42, Kirti Nagar Delhi and therefore, the property No.D-42 remained a joint family property. It is submitted that the property No.G-28 and L-37 were purchased from the sale proceeds of property No.D-42 and are thus joint family properties. It is submitted that the Defendant No.1 has not come forward with the production of the relevant records and has selectively filed the documents, which also did not prove the contentions of the Defendant No.1. It is submitted Nitin Bahl vs. Meera Batra Page No. 26 of 70 Civil DJ No. 610210/2016 that the contradictions in the testimony of the DW-1 are apparent from her cross-examination and the totality of the evidence on record, the Plaintiffs are entitled to a decree of partition. Ld. Counsel for the Plaintiff No.1 and 2 has relied upon the following judgments in support of her contentions:
i. V.D. Dhanwatey vs. CIT: AIR 1968 SCC 683;
ii. Bhagwant P. Sulakhe Vs. Digambar Gopal Sulakhe:
AIR1986SC79;
iii. Annasaheb Bapusaheb Patil Vs. Balwant:
AIR1995SC895;
iv. Danamma @ Suman Surpur Vs. Amar & Ors.:
(2018)3SCC343;
v. Arshnoor Singh vs. Harpal Singh: 2019(9)Scale147;
vi. Vinita Sharma vs. Rakesh Sharma: 2020(9)SCC1.
8.2. Ld. Counsel for the Defendant No.1 has submitted that the Plaintiffs have failed to prove that the property No.156, Bikrampura, Punjab was source of further purchase of properties. It is submitted that the property No. A-21 and D- 42, Kirti Nagar were alloted, prior in point of time and by that time the transaction of sale of property No.156, Bikrampura, Punjab was not in picture. It is submitted that the financial capacity of late Ram Lubhaya Kohli for the relevant period as duly been made out on record. It is submitted that the properties were purchased in the individual names of the family members and the aforesaid transactions were not challenged by the Plaintiffs. It is Nitin Bahl vs. Meera Batra Page No. 27 of 70 Civil DJ No. 610210/2016 submitted that late Ram Lubhaya Kohli was declared the owner of the property No.D-42 by the judgment and decree dated 06.02.1969 and in view of the same, it is not open for the Plaintiffs to contend that the property No.D-42 was a joint family property. It is submitted that no incapacity or legal infirmity has been proven on record to challenge the gift deed in favour of the Defendant No.1. It is submitted that the Plaintiffs have examined the PW-1, who did not have personal knowledge of the facts prior to his marriage and the substantive transactions in the family with regard to the properties in question had already been concluded, before his induction to the family.
9. Conclusions on Issues and Reasons for such Conclusions:
9.1. Issue No. 1: Whether properties bearing Nos.G-28 (1st Floor), Kirti Nagar, New Delhi and L-37 (2nd Floor), Kirti Nagar, New Delhi are ancestral and HUF properties? OPP 9.1.1. The onus to prove the Issue No.1 is upon the Plaintiff. The Issue No.1 is foundational to the claim of the Plaintiffs. It is the case of the Plaintiffs that Late Panna Lal Kohli was the common ancestor of the parties and was absolute owner of the property No.156, Bikrampura, Jalandhar, Punjab. It will Nitin Bahl vs. Meera Batra Page No. 28 of 70 Civil DJ No. 610210/2016 be appropriate to first understand the family pedigree of the parties from Late Panna Lal Kohli and the same is shown in the genealogical table given hereinbelow:
Lala Panna Lal Kohli [Died in 1945] Ram Lubhaya Kohli Nirmala (Son) (Daughter) (Died on 02.09.2003) Wife Son Daughter Daughter Swadesh Kohli Vinod Kr. Kohli Kamini Bahl Meera Batra (Died on 29.06.2012) (Died on 06.07.1996) Husband Son Daughter Col. R.C. Bahl Nitin Bahl Nidhi Popli 9.1.2. It is the admitted case of the parties that Late Panna Lal Nitin Bahl vs. Meera Batra Page No. 29 of 70 Civil DJ No. 610210/2016 Kohli was owner of the property No. 156, Bikrampura, Jalandhar, Punjab and he passed away in the year 1945. The Plaintiffs have stated in the plaint that upon death of Late Panna Lal Kohli, the property No.156, Bikrampura, Punjab became a joint family property of the coparcenary consisting of Late Ram Lubhaya Kohli and his son, i.e., the Plaintiff No.3. It is stated that late Ram Lubhaya Kohli, acting as a Karta of joint Hindu family, sold the Property No. 156, Bikrampura, Jalandhar, Punjab and purchased two properties in Delhi from the sale proceeds, i.e., the property No. A-21 and D-42, Kirti Nagar. It is stated that the property No. D-42, Kirti Nagar was purchased and constructed from the sale proceeds of property No.156, Bikrampura, Jalandhar, Punjab. It is further stated that the property No. D-42, Kirti Nagar was further sold by late Ram Lubhaya Kohli and from the sale proceeds of the same, two further properties are purchased, i.e., G-28(1st Floor) and L-37(2nd Floor), Kirti Nagar, Delhi.
9.1.3. Thus, in terms of the case set up in the plaint, the funds received from sale property No.156, Bikrampura, Punjab served as nucleus/source for the purchase of property No.D- 42, which further culminated in acquisition of the two suit properties.
9.1.4. The accretion of the properties, as stated in the plaint, is Nitin Bahl vs. Meera Batra Page No. 30 of 70 Civil DJ No. 610210/2016 traced in the following table:
House No.156, Bikrampura, Punjab A-21, Kirti Nagar D-42, Kirti Nagar G-28(1st Floor), Kirti Nagar L-37(2nd Floor), Kirti Nagar The sale deeds/documents pertaining to property No. D-42, No. A-21, No.G-28 (1st Floor) and property No.L-37(2nd Floor) are in the name of individual family members and not in the name of the owners/coparceners stated in the plaint.
The property No. D-42 was purchased in the name of the Defendant No.1(Meera Batra). Subsequently, in terms of the declaration of the Court, the ownership was conferred upon late Ram Lubhaya Kohli. The title deeds of property No. A- 21 are not on record and the receipts of payment on record reflect the name of depositor of amount as Ms. Sudesh Kohli, i.e., the wife of late Ram Lubhaya Kohli. The property No. G-28 (1st Floor) is purchased in the name of late Nitin Bahl vs. Meera Batra Page No. 31 of 70 Civil DJ No. 610210/2016 Ram Lubhaya Kohli and the Defendant No.1(Meera Batra) as joint owners. The property No. L-37 (2 nd Floor) is purchased in the name of late Ram Lubhaya Kohli alone. Therefore, besides proving the factum of the properties being purchased from the funds of the joint family /HUF properties, starting with the sale of the Bikrampura, Punjab property, the Plaintiffs have also to prove that the relief claimed by them is not barred by the provisions of the Benami Transactions Prohibition Act, 1988.
9.1.5. Thus, the Plaintiffs, within scope of Issue No.1, have to prove the prove the following facts:
i. The property No. D-42 Kirti Nagar was purchased and constructed from the funds received from the sale proceeds of 156, Bikrampura, Jalandhar, Punjab.
ii. The property No. G-28 and property No. L-37, Kirti Nagar were purchased from the sale proceeds of property No. D-42, Kirti Nagar.
iii. The contentions raised by the Plaintiffs are not barred by the provisions of the Benami Transactions (Prohibition) Act, 1988.
The aforesaid facts are being discussed in detail in the paras hereinafter.Nitin Bahl vs. Meera Batra Page No. 32 of 70 Civil DJ No. 610210/2016
9.1.6. Whether the Property No.D-42, Kirti Nagar, Delhi was purchased and constructed from the sale proceeds of Property No. 156, Bikrampura, Jalandhar, Punjab and is HUF/joint family property?
i. The right to seek partition in the present suit originates from the sale of property No.156, Bikram Pura, Jalandhar, Punjab. The aforesaid property is admitted to be owned by late Panna Lal Kohli. The aforesaid property has been sold by two sale deeds, the sale deed dated 09.11.1954, i.e., Exhibit PW-1/1 (also Exhibit PW-2/A) and the sale deed dated 29.05.1962, i.e., Exhibit PW-1/2 (also Exhibit PW-2/B).
ii. The first sale deed of property No. 156, Bikrampura, Jalandhar, Punjab is dated 06.11.1954 and the certified copy of the same, along with its English translation, is exhibited as Exhibit PW-1/1. The official witness PW-2 has also produced and exhibited the aforesaid sale deed as the Exhibit PW-2/A. It is stated in the aforesaid document that sale consideration was Rs.8,250/- and the same was stated to be received in three installments. The earnest money of Rs.200/- was received in cash vide agreement dated 16.10.1954. A sum of Rs.7,750/- was agreed to be received before the Sub-registrar, at the time of execution of the document. The remaining amount of Rs.300/- was kept as security and was agreed to be received after mutation in the Nitin Bahl vs. Meera Batra Page No. 33 of 70 Civil DJ No. 610210/2016 name of the purchaser. Therefore, the substantive amount of sale consideration, i.e.,Rs.7,750/- was received on 06.11.1954, in terms of the recitals in the document.
iii. The second part of the property No.156, Bikrampura, Jalandhar, Punjab was sold in terms of sale deed dated 29.05.1962 and the certified copy of the same, along with its English translation, is Exhibit PW-1/2. The official witness PW-2 has also produced and exhibited the aforesaid sale deed as the Exhibit PW-2/B. It is mentioned in the document that sale consideration was Rs.12,000/- and the same is mentioned in the document to have been received in the following manner:
29.11.1959: Rs.1,000/-.
20.05.1960: Rs.3,000/-
24.11.1960: Rs.2,000/-.
24.05.1961: Rs.2,000/-
25.11.1961: Rs.2,000/-
29.05.1962: Rs.2,000/-.
iv. It is the case of the Plaintiffs that after the sale of the Bikrampura property in Punjab, in terms of abovementioned Exhibit PW-1/1 and Exhibit PW-1/2, late Ram Lubhaya Kohli purchased two properties in Delhi, i.e., A-21, Kirti Nagar and D-42, Kirti Nagar. The only witness examined by the Plaintiffs, to prove the aforesaid transaction, is PW-1.
Nitin Bahl vs. Meera Batra Page No. 34 of 70 Civil DJ No. 610210/2016The PW-1 is husband of pre-deceased daughter of the late Ram Lubhaya Kohli, namely Late Kamini Behl. In terms of his own affidavit of evidence, he was introduced to the family, on account of his marriage in the year 1966. Though the PW-1 has reiterated all the averments of the plaint in his examination in chief, however he does not have knowledge of the facts, prior to his induction in the family, i.e., prior to the year 1966. The relevant part of the cross-examination of the PW-1 dated 08.05.2012 is being reproduced hereinbelow:
"I joined Indian Army as Second Lieutenant in December, 1962. (Vol. With seniority from the year 1960).
I am Bachelor of Engineering from BIT, Ranchi and post graduated in Business and Industrial Management from British Institute of Management, U.K., besides and in addition to other post graduation qualifications/army qualification. In the year 1966 when I got married with Ms. Kamini Bahl, the sister of Defendant No.1 and the mother Plaintiff no. 1 & 2, I was posted at Sangrur. My marriage was an arranged marriage.
Immediately after the marriage, we stayed at Sangrur and kept on shifting with each of the postings.
My first posting to Delhi was in the year 1962 to 1964 end. Thereafter, I was again posted to Delhi between the year 1975 to 1979 and finally I have settled in Delhi after seeking premature retirement in the year 1991.
My relationship with deceased Defendant No.1- Sh. R.L. Kohli had remained cordial.
(Witness is put to Para 2 of his affidavit) I have already placed Ex.PW1/1 and Ex.PW1/2 in support of my averments in Para 2 of my Nitin Bahl vs. Meera Batra Page No. 35 of 70 Civil DJ No. 610210/2016 affidavit to the effect that Plaintiff no. 1& 2 are the part and parcels of joint Hindu family.
Q Whether document-Ex.PW1/1 and Ex.PW1/2 bear my mention of the properties being joint Hindu family properties?
A. The same may not have been mentioned in particular. (Vol. However, as the document has been signed by several members, including mother and son, in token of their acceptance, the same is suggestive of the properties being joint Hindu family properties).
It is incorrect to suggest that the same cannot treated or labeled as joint Hindu family properties, including for the reasons volunteered above. It is correct that my wife died in the year 1996. Prior to her death or prior to the filing of the suit, no claim whatsoever was raised by my wife or myself or my children, from within the estate of Sh. R.L. Kohli.
We did not file the suit ourselves. (Vol. The Plaintiffs herein had been transposed as Plaintiffs subsequent to the application for withdrawal filed by the original Plaintiff-Sh. V.K. Kohli. Again said, as would transpire from order dated 17.10.2001. Father of Sh.R.L. Kohli-Sh. Panna Lal Kohli was an employee of the Defence Accounts in the British period.
It is correct that property no. 156, Bikram Pura, Jalandhar, Punjab was purchased by him. It is incorrect to suggest that the area of the aid plot was only 300 sq. yards and not 500 sq. yards as claimed by me in Para 4 of my affidavit. It is incorrect to suggest that the same does not fall within any posh or fully developed or modernized colony.
It is incorrect to suggest that we have come to know about he property at Jalandhar only after the filing of the suit for partition by Sh. V.K. Kohli. The original Defendant-Mr. R.L. Kohli as well as his wife, Defendant No.2 had themselves informed me about the existence of that property on Nitin Bahl vs. Meera Batra Page No. 36 of 70 Civil DJ No. 610210/2016 numerous occasions. (Vol. While stating that they have already disposed the said property and purchased the properties at Delhi). It is incorrect to suggest that it was only after the filing of he suit by Sh. V.K. Kohli that we have come to know about the property at Jhalandhar for the first time. It is incorrect to suggest that Mr. R.L. Kohli or his wife had never informed as about the property at Jalandhar. It is incorrect to suggest that they had never given us any representation to the effect that the property at Jalandhar had been disposed of or properties at Delhi have been acquired from the sale proceeds from the Jalandhar property. It is incorrect to suggest that even otherwise the sale proceeds form the said property at Jalandhar would not have given enough money to purchase properties at Delhi."
Thus the PW-1 was inducted in the family in the year 1966. His source of averments about the suit property being ancestral is information provided by the late Ram Lubhaya Kohli and his wife. Late Ram Lubhaya Kohli has himself filed the written statement and challenged the aforesaid contentions in the same. The wife of late Ram Lubhaya Kohli has her made different and contradictory versions about the suit property at different stages of the suit. Thus the PW-1 is not a witness of fact of the transactions taken place, prior to his induction in the family, i.e., prior to year 1966. The Plaintiffs have also not filed any document on record about the purchase of the aforesaid two properties, i.e., A-21 and D-42 Kirti Nagar, Delhi, however the Defendant No.1 (Meera Batra) has filed the documents of purchase of the property No. A-21 and D-42 Kirti Nagar, Nitin Bahl vs. Meera Batra Page No. 37 of 70 Civil DJ No. 610210/2016 Delhi.
v. The documents of purchase of the property No. D-42, Kirti Nagar are produced by the Defendant No.1 and the same are Exhibit D-1 to Exhibit D-8. It is evident from the aforesaid documents that the property No. D-42, Kirti Nagar was allotted to the Defendant No.1 (Meera Batra) vide Allotment Letter dated 22.03.1954, which is Exhibit D-19. Subsequently, an agreement to sell dated 23.07.1954 was executed in favour of the Defendant No.1 (Meera Batra) by Rehabilitation Housing Corporation Ltd., which is Exhibit D-18. The sale consideration mentioned in the aforesaid agreement to sell is Rs.3,606.41/-, out of which Rs.901.91/- was paid as advance before execution of the agreement to sell and remaining amount of Rs.2704.11/- was payable by four equal installments within a period of next two years.
vi. The payment of the sale consideration of property No.D-42, Kirti Nagar has been made through different installments and the receipts of payment have been filed as Exhibit D-1 to Exhibit D-10, which are mentioned in the table hereinbelow:
Exhibit No. Date Amount (in Rs.)
D-1 08.03.1954 400/-
D-2 19.04.1954 501.9/-
D-3 23.07.1954 1.50/-
D-4 23.12.1954 676/-
Nitin Bahl vs. Meera Batra Page No. 38 of 70
Civil DJ No. 610210/2016
D-5 23.05.1955 687/-
D-6 31.10.1958 683/-
D-7 20.10.1961 407.64/-
D-8 07.06.1962 19.04/-
vii. Therefore, it is apparent that the property No. D-42, Kirti
Nagar was allotted in the name of the Defendant No.1(Meera Batra) prior to the sale of property No.156, Bikrampura, Jalandhar, Punjab. The first sale deed is property No. 156 is Exhibit PW-1/1, which was executed on 06.11.1954. It is mentioned in the Exhibit PW-1/1 that amount of Rs.200/- was received as advance on 16.10.1954 and the amount of Rs.7,750/- would be received before the Sub-Registrar, i.e., not before 06.11.1954. Whereas, an amount of Rs.902/- had already been paid towards the total sale consideration of Rs.3606/-, i.e., about 1/4th of the total sale consideration, for allotment of the property No.D-42, Kirti Nagar, even before any amount of sale consideration was received from the sale of property No.156, Bikrampura, Punjab. It is evident from the receipts of payment towards property No.D-42, Kirti Nagar, i.e., Exhibit D-4 to Exhibit D-8, that the remaining amount has also not been paid in one go or simultaneously after receiving the sale consideration of Property No.156, Bikrampura, Punjab and has been paid in different installments over a period of eight years till 1962.
viii. The financial capacity of Late Ram Lubhaya Kohli for the Nitin Bahl vs. Meera Batra Page No. 39 of 70 Civil DJ No. 610210/2016 relevant period, independently of the aforesaid sale proceeds of property No.156, Bikrampura, Punjab, also assumes importance, for assessing as to whether the remaining consideration of the property No.D-42 could not have been paid by him from his own income. Late Ram Lubhaya Kohli had filed the written statement prior to his death. It is stated in the written statement that he had purchased the property No.D-42, Kirti Nagar from his independent income and the sale proceeds of the property No.156, Bikrampura Punjab were utilized for repayment of loan, with regard to marriage of his sister. The written statement of Late Ram Lubhaya Kohli and Defendant No.1(Meera Batra) was joint and she has reiterated the contentions of the same in her examination in chief. Late Ram Lubhaya Kohli passed away before the evidence commenced in the matter and the Defendant No.1 is not a witness of the facts relating to transactions of loan stated to be obtained for marriage of Ram Lubhaya Kohli's sister, namely Nirmala or repayment thereof. Though there may not be evidence of the factum of aforesaid loan and its repayment, as stated in the written statement, however, however the Defendant No.1 has produced and relied upon the original Income Tax Assessment Orders of Late Ram Lubhaya Kohli in her evidence. The relevant Assessment Orders, exhibited in examination in chief of DW-1, are mentioned in the following table:
Nitin Bahl vs. Meera Batra Page No. 40 of 70 Civil DJ No. 610210/2016 Exhibit No. Date & period Total Income &
Sources.
DW-1/1 Assessment Order dated The total income is
29.02.1964 for the Assessment Rs.4980/-. Share of
Year 1960-61. profits received from
Prabhat Hosiery Works
is Rs.3034/- and
commission received
from Atlas Hosiery
Jalandhar is Rs.1485/-
DW-1/2 Assessment Order dated The total income is
29.02.1964 for the Assessment Rs.3710/-. Share of
Year 1961-62. profits received from
Prabhat Hosiery Works
is Rs.2607/- and
commission received
from Atlas Hosiery
Jalandhar is Rs.800/-
DW-1/3 Assessment Order dated The total income is
29.02.1964 for the Assessment Rs.5073/-. Share of
Year 1962-63. profits received from
Prabhat Hosiery Works
is Rs.3759/- and
commission received
from Atlas Hosiery
Jalandhar is Rs.750/-.
DW-1/5 Assessment Order dated The total income is
06.09.1968 for the Assessment Rs.13,414/-. Share of Year 1965-66 profits received from Prabhat Hosiery Works Nitin Bahl vs. Meera Batra Page No. 41 of 70 Civil DJ No. 610210/2016 is Rs.8,558/-.
DW-1/6 Assessment Order dated The total income is
11.12.1969 for the Assessment Rs.15,207/-. Share of
Year 1966-67 profits received from
Prabhat Hosiery Works
is Rs.10,181/-.
The aforementioned assessment Orders have filed in original and are more than 30 years old documents. The information submitted in the aforementioned Assessment Orders was provided in the ordinary course, long before the dispute has arisen between the parties. The Plaintiff has also not pointed out any infirmity with regard to the aforementioned Assessment Orders and therefore, the same stood proved. The aforesaid Assessment Orders reflect the independent income and financial capability of the late Ram Lubhaya Kohli to make payments of the installments of Property No.D-42, in year 1959, 1960, 1961 and 1962. The Assessment Orders for the subsequent years also reflect a constant upward trend of the income.
ix. It has been established on record that 1/4th of the sale consideration of property No. D-42, Kirti Nagar was paid even before any amount was received towards the sale consideration of the Property No.156, Bikrampura Punjab. The remaining has been paid in five more installments, in the year 1954, 1955, 1956 and 1962. It has also been established Nitin Bahl vs. Meera Batra Page No. 42 of 70 Civil DJ No. 610210/2016 on record that late Ram Lubhaya Kohli had annual income of Rs.4980/- in 1959-1960, Rs.3,710/- in 1960-61 and Rs.5,073 in the year 1961-62. The substantive part of the same is from his business and aforesaid income was sufficient to make payment of the sale consideration/ installments in the year 1959, 1960, 1961 and 1961. The payment of aforesaid installment has been made over a period of years and not simultaneously alongwith the sale of the property No.156. The amount of the installments is not such, which could be said to be not payable at all, from the income of the late Ram Lubhaya Kohli.
x. In terms of contentions of the plaint, two properties, i.e., the property No. D-42 and the property No. A-21 are stated to have been purchased from the sale proceeds of property No.156. The Plaintiffs have not produced any documents or evidence to show the purchase of the property No. A-21, Kirti Nagar, however the Defendant No.1 has produced the receipts of payment towards the property No. A-21, The aforesaid receipts, relied upon in the examination in chief of DW-1, are being mentioned in table hereinbelow:
Exhibit No. Date Amount (in Rs.)
D-9 29.12.1953 200/-
D-10 04.02.1954 631/-
D-11 15.11.1954 624/-
D-12 28.03.1955 624/-
D-13 23.11.1955 5,00/-
D-14 03.03.1959 106/-
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D-15 29.09.1961 630/-
D-16 07.06.1962 26/-
Thus total amount paid towards the property No.A-21, Kirti Nagar is Rs.3,341/- in terms of aforementioned receipts and an amount of Rs.831/-, i.e., about 1/4th of total consideration, had apparently been paid much before execution of first sale deed of property No.156 Bikrampura Punjab and before any money was received thereunder. The remaining amount has been paid in multiple installments in the year 1955, 1959, 1961, and 1962. It has also been established on record that late Ram Lubhaya Kohli had independent income and was capable of making payment of the aforesaid installments in year 1959, 1961 and 1962. The installments of the sale consideration of property No. A-21 is spread over a period of time and in terms of average income of late Ram Lubhya Kohli on record, it cannot be concluded that the property was purchased from the sale proceeds alone and late Ram Lubhaya Kohli was not financially capable of making the payment of the sale consideration. There is no evidence as to how the property No. A-21 was sold. Though it is stated in the plaint that aforesaid property was disposed of for expenses incurred in the marriage of Defendant No.1, however besides bare averments, there is no evidence about the same.
xi. Ld. Counsel for the Plaintiff No.1 and 2 has submitted that that the sale deeds Exhibit PW-1/1 and Exhibit PW-1/2 Nitin Bahl vs. Meera Batra Page No. 44 of 70 Civil DJ No. 610210/2016 records the fact that property No.156 was being sold for purchasing and constructing further properties. The relevant part of the aforementioned sale deed, which are also mentioned in para 13 of the examination in chief of the PW- 1, is being reproduced hereinbelow:
"Exhibit PW-1/1: Since I am very much in need of money for the purchase and construction of other property.
Exhibit PW-1/2: I was in need of money for my business and construction of property, which I have spent from the said sale, therefore, my wife Smt. Swadesh Kohli and my son Vinod Kumar Kohli both have appended their signatures on this document of sale deed as their consent and in token of correctness."
It is submitted that the above-mentioned recitals are in themselves sufficient to conclude that late Ram Lubhaya Kohli was in need of money for purchasing the properties and construction thereof. Though the aforesaid contentions/recitals are relevant, however the same on their own are not conclusive proof of the fact that the property No.D-42 and A-21, Kirti Nagar, Delhi were in fact purchased and constructed from the sale proceeds received on account of Exhibit PW-1/1 and Exhibit PW-1/2. The aforesaid recitals are to be read and assessed in terms of the other evidence on record. It cannot be ignored that both the properties were allotted prior to the first sale deed, i.e., Exhibit PW1/1 and even the 1/4th of sale consideration has been paid by that time. Further the contentions are generic Nitin Bahl vs. Meera Batra Page No. 45 of 70 Civil DJ No. 610210/2016 and are not specifically related to any property and it remains to be explained as to whether the same are related to both the properties or either of them. The aforesaid fact assumes importance as the right is being claimed through one property alone, i.e., through D-42 and not through A-21.
xii. No record of construction of D-42 or A-21, Kirti Nagar has been placed on record. The extent of construction, the period of construction, the expenses incurred thereon have not been established on record. It is stated in the written statement of late Ram Lubhaya Kohli and the Defendant No.1 that an amount of Rs.36,403/- was spent on the construction of the plot No.D-42, over a period of 8 years. It is stated that an amount of Rs.10,521/- was spent on the construction of property No.A-21. Though the aforesaid contentions have not been established with documentary/evidentiary corroboration, however if the aforesaid amount is assumed to be true, the same is way greater than the sale proceeds received in terms of Exhibit PW-1/1 and PW-1/2. If it is to be assumed that a part of the sale proceeds was used in the construction, the Plaintiffs have also to establish that the same was done with the intention and objective of making it a family property. It is required to be proved if part of the sale proceeds are used in construction, the same were used with a view to blend the same, in order to make the property a joint family property. The evidence on record is to the contrary. Late Ram Lubhaya Kohli has considered the Nitin Bahl vs. Meera Batra Page No. 46 of 70 Civil DJ No. 610210/2016 properties as his sole properties and dealt with them in manner of being an absolute owner by executing documents and entering into unrestrained transactions at will, over a period of years. The extent of the funds used for construction, if any, also becomes relevant so as to see, whether the major or minor share/portion of construction was funded and the same was required to be shown in relation to property No.D-42. The Plaintiffs have not led any affirmative evidence on record to establish the nature, manner or extent of construction, in order to infer the estimate of expenses of the same in relation/comparison to the sale proceeds of Exhibit PW-1/1 & Exhibit PW-1/2. The evidence on record is completely insufficient to infer that the property No.D-42 and A-21 were constructed from the sale proceeds received in terms of Exhibit PW-1/1 and Exhibit PW-1/2.
xiii. One more aspect is to be considered is that the allotment of property No.D-42, Kirti Nagar was in the name of the Defendant No.1 (Meera Batra) and not in the name of the family. It is also interesting to note that late Ram Lubhaya Kohli had filed a Civil Suit No. 96/1969 in the Court of Ld. SJIC, Delhi for declaring him as owner of the property No. D-42, Kirti Nagar and the aforesaid suit was eventually decreed in his favour in terms of an Order dated 06.02.1969. which was decreed. The Order dated 06.02.1969, passed in Suit No. 96/1969, filed by late Ram Lubhaya Kohli against Nitin Bahl vs. Meera Batra Page No. 47 of 70 Civil DJ No. 610210/2016 the Defendant No.1, i.e., (Meera Kohli) and his wife Ms. Swadesh Kohli is being reproduced hereinbelow:
"In view of statement of the Defendant No.2 and in view of the written statement filed by the defendant No.1 and 2, wherein the claim of the Plaintiff has been admitted. I pass a decree for declaration in favour of the plaintiff and against the defts to the effect that the defendant no.1 is merely a benami allottee of plot no. D-42, Kirti Nagar, New Delhi and that the plaintiff is the real allottee of the plot in suit and is entitled to get the sale deed of the plot executed and registered in his name as purchaser. We have been himself made the payment of the price of the plot. No order is made as to costs. Decree sheet be prepared and file be consigned to the R.Room.
Announced in open Court.
6.2.69.
Sd/-
Jaspal Singh S.J.I.C. Delhi"
The certified copy of the aforesaid Order is Exhibit D-17. The Plaintiffs have not challenged the aforesaid Order/decree. The same is evident from the para 14 of the examination in chief of PW-1, which is being reproduced hereinbelow:
"14. It is submitted that the properties A/21 Kirti Nagar (commercial) and D /42 Kirti Nagar (residential house) continued to remain in the name of the original allottees of the plots i.e., Mrs. Swadesh Kohli (wife of Shri Ram Lubhaya Nitin Bahl vs. Meera Batra Page No. 48 of 70 Civil DJ No. 610210/2016 Kohli) and Kittoo (alias Meera - younger daughter of Shri Ram Lubhaya Kohli) respectively. In 1969, Shri Ram Lubhaya Kohli filed Suit No. 96 of 1969 before the Court of Shri Jaspal Singh, SJIC, Delhi ( as His Lordship then was) in which on 6.2.1969 the Defendants No.1 and 2 admitted that the property No. D-42, Kirti nagar, New Delhi was held benami in their names and the real allotee is late Shri Ram Lubhaya Kohli and on the basis of the said statement the said property was transferred in his own name by a Court Order Dt 6.2.69 passed in a suit for declaration filed by him."
Though the aforesaid Order/decree concludes that the property No.D-42 was purchased as Benami, however the same also further mentions that late Ram Lubhaya Kohli was the owner of the same, as he had paid the sale consideration. The aforesaid Order/Decree does not in any manner lead to a conclusion that the property No. D-42 is a joint family property, wherein the other members have also had shares. The aforesaid declaration was an act against the interests of the Plaintiffs and other family members, who are seeking to enforce the rights to the aforesaid property. The aforesaid declaration was required to be challenged, once the Plaintiffs had come to know about the same, even if they were not parties to the proceedings. However, the act of Late Ram Lubhaya Kohli in seeking the aforesaid declaration has not been challenged even within the scope of the present suit and the aforesaid declaration of the Court is being relied upon by the Plaintiff to contend that the property was Benami.
Nitin Bahl vs. Meera Batra Page No. 49 of 70 Civil DJ No. 610210/2016Though the property was held to be Benami, however in view of the aforementioned declaration the same was not joint family property.
xiv. Therefore, a collective reading of the evidence led by the parties lead to the conclusion that that property No. D-42 and A-21, Kirti Nagar were allotted prior to the sale of property No.156, Bikrampura, Punjab and even prior to any money received towards the sale of property No.156. It has also been established that about 1/4th of the sale consideration of the property No. D-42 and A-21, Kirti Nagar, New Delhi had already been paid prior to any amount received towards the sale of property No.156, Bikrampura, Punjab. The remaining amount was paid in multiple installments spread over a period of years till 1962. In terms of assessment Orders of late Ram Lubhaya Kohli, proved on record, it has also been established on record that he was capable of making payment of the installments from his independent income in the year 1959, 1960, 1961 and 1962. Further in terms of Order/Decree dated 06.02.1969, passed by the Court of Ld. SJIC, Delhi, in the Civil Suit No. 96/1969, late Ram Lubhaya Kohli was declared to be owner of the property No. D-42, Kirti Nagar. Therefore, on account of preponderance of probabilities, it can-not be concluded that the property No.D-42 and property No.A-21 were purchased/constructed only or substantively, out of the sale proceeds of the property No.156, Bikrampura Punjab or are ancestral in Nitin Bahl vs. Meera Batra Page No. 50 of 70 Civil DJ No. 610210/2016 nature.
9.1.7. Whether the property No. G-28 and property No. L-37, Kirti Nagar were purchased from the sale proceeds of property No. D-42, Kirti Nagar?
i. The property No.G-28(1st Floor), Kriti Nagar is purchased vide registered sale deed dated 07.04.1999 for a total sale consideration of Rs.2,28,000/-. The sale deed of the property is in the name of late Ram Lubhaya Kohli and the Defendant No.1 (Meera Batra). Late Ram Lubhaya Kohli had subsequently executed a registered gift deed dated 19.11.1999, whereby he transferred his undivided half share in G-28, in favour of the Defendant No.1. The half of the consideration of the property No.G-28 is claimed to have been paid by the Defendant No.1. The documents further produced by the Defendant No.1 prove that she had more amount in her account than the sale consideration at the relevant time of the transaction of property No.G-28, Kirti Nagar. The DW-1 has admitted in the cross-examination that the property No.G-28 was purchased from the same persons, to whom the property No.D-42 was sold.
ii. The property No. L-37(2nd Floor), Kirti Nagar has been purchased vide a sale deed dated 26.03.1999. The purchaser was late Ram Lubhaya Kohli. The sale consideration of the property was Rs.3,00,000/-.
Nitin Bahl vs. Meera Batra Page No. 51 of 70 Civil DJ No. 610210/2016iii. It is the case of the Plaintiffs that the property No.D-42, Kirti Nagar was sold and from the sale proceeds of the same further two properties, i.e., G-28 (1st Floor) and L-37 (2nd Floor) are purchased. The sale deed of property No.D-42 is not on record. In the affidavit of evidence para No.15 of PW- 1, only a wild guess about the sale consideration of property No.D-42 has been made by stating that the aforesaid property would have fetched minimum price of about Rs.1.25 Crores as per the market rates. The Plaintiff have filed the copies of four General Power of Attorneys dated 24.12.1998, 24.02.1999, 10.03.1999 and 07.04.1999, relating to property No.D-42, Kirti Nagar however neither the original were summoned or sought to be produced nor any witness is examined to prove the same. Further, the aforesaid power of attorneys do not reflect any consideration, which may become relevant to assess whether the same has been utilized for subsequent purchase of the properties.
iv. The Plaintiffs have contended that the sale consideration of the Property No.D-42 was pocketed by the Defendant No.1 and the Property No.G-28 and L-37, Kirti Nagar were purchased for far below their market price. However besides mere averments, there is no evidence to conclude about the aforesaid contentions. There is nothing to conclude about the fact that the sale consideration mentioned in the registered Nitin Bahl vs. Meera Batra Page No. 52 of 70 Civil DJ No. 610210/2016 sale deeds of property No.G-28 and L-37, Kirti Nagar is not the actual market value or is not the actual amount of consideration paid towards the transaction. The entire evidence of the Plaintiff is in the nature of oral averments, mentioned in the examination in chief of PW-1, which are based on the contentions of the plaint, instituted by the Plaintiff No.3, who was never examined in the matter.
v. The only evidence about the sale consideration of property No.D-42 is Exhibit DW-1/40, which is copy of the Income Tax Returns of the Late Ram Lubhaya Kohli, produced by the Defendant No.1. The aforesaid income tax returns for the year 2000-2001 reflects the sale consideration as Rs.19,20,000/-. Though, no date of receiving of the aforesaid amount is established in the evidence, however the same appears to be during the same period, which does not rule out the possibility of same being available to late Ram Lubhaya Kohli for further investment in properties, more particularly in view of the fact that he was purchasing the property from the same persons to whom he was selling his property.
vi. Though Late Ms. Sudesh Kohli and the Plaintiff No.3 has stated the property No. L-37(2nd Floor), Kirti Nagar to be purchased from the joint family funds, however subsequently, Late Swadesh Kohli executed a sale deed dated 13.07.2005 in favour of the Defendant No.2 with Nitin Bahl vs. Meera Batra Page No. 53 of 70 Civil DJ No. 610210/2016 regard to the same. It is stated in the aforesaid sale deed that Late Ram Lubhaya Kohli was the absolute owner of the property No.L-37(2nd Floor), alongwith roof rights and Ms. Swadesh Kohli had become owner of the same by virtue of a registered Will. The Plaintiff No.3 is a witness to the aforesaid sale deed. The Plaintiff No.3 acted against the interests of the Plaintiff No.1 and 2 and was not even sought to be transposed as the Defendant and was continued to be as one of the Plaintiffs.
vii. Though the manner in which property No.D-42 was sold, through power of attorneys, without mentioning the sale consideration, raises an eye brow, however in absence of affirmative evidence of the Plaintiffs, no conclusive finding about the transaction being against the ordinary course of nature can be given. The contentions of sale consideration, having been received in cash and misused by the Defendant No.1, are the facts, which were to be established/ proved by the Plaintiffs with better and credible evidence. The Plaintiffs could have examined the buyers of property No. D- 42 to prove the role of the Defendant No.1 in the transaction, if there was any or the alleged amount received in cash. Further as a matter of fact, once the property No. D-42 is not proved to be an ancestral property, the further accretion of the properties would not fall within the purview of same being joint family property and even if the aforesaid amount is utilized by late Ram Lubhaya Kohli, the same does not Nitin Bahl vs. Meera Batra Page No. 54 of 70 Civil DJ No. 610210/2016 help the case of the Plaintiffs.
9.1.8. Whether the contentions raised by the Plaintiffs are not barred by the provisions of the Benami Transactions (Prohibition) Act, 1988?
i. The properties No. G-28 and L-37 have been purchased by registered sale deeds in the individual name of the Defendants. In terms of the Benami Transaction Prohibition Act, no one can contend or raise a defence of ownership of property purchased in the name of someone else on the ground the consideration was paid by him. The transaction and parties are governed by the un-amended Section 4 of the Benami Transactions (Prohibition) Act, 1988, which is being reproduced hereinbelow:
"4. Prohibition of the right to recover property held benami:
(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.Nitin Bahl vs. Meera Batra Page No. 55 of 70 Civil DJ No. 610210/2016
(3) Nothing in this Section shall apply, - (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
ii. The scope of such a suit has aptly been discussed by the Hon'ble Supreme Supreme Court of India in, "Valliammal (D) by Lrs. Vs. Subramaniam & Ors. (31.08.2004):
2022INSC910: MANU/SC/0699/2004", and the relevant observations of the Hon'ble Court are being reproduced hereinbelow:
"12. There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person from some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami-holder.
13. This Court in a number of judgments has held that it is well-established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of Nitin Bahl vs. Meera Batra Page No. 56 of 70 Civil DJ No. 610210/2016 any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. Referred to Jaydayal Poddar v. Bibi Hazra, MANU/SC/0332/1973: [1974]2SCR90; Krishnanand v. State of Madhya Pradesh, MANU/SC/0134/1976 : 1977CriLJ566 ; Thakur Bhim Singh v. Thakur Kan Singh, MANU/SC/0516/1979: [1980]2SCR628; His Highness Maharaja Pratap Singh v. Her Highness Maharani Sarojini Devi and Ors.
MANU/SC/0963/1994: 1993(3)SCALE394; and Heirs of Vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, MANU/SC/1161/1996: [1996]222ITR391(SC). It has been held that in the judgments referred to above that the question whether a particular sale is a benami or not, is largely one of fact, and for determining the question no absolute formulas or acid test, uniformly applicable in all situations can be laid. After saying so, this Court spelt out following six circumstances which can be taken as a guide to determine the nature of the transaction:
1. the source from which the purchase money came;
2. the nature and possession of the property, after the purchase;
3. motive, if any, for giving the transaction a benami colour;
4. the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
5. the custody of the title deeds after the sale; and
6. the conduct of the parties concerned in dealing with the property after the sale."
14. The above indicia are not exhaustive and their efficacy varies according to the facts of each case.
Nitin Bahl vs. Meera Batra Page No. 57 of 70 Civil DJ No. 610210/2016Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another. We would examine the present transaction on the touchstone of the above two indicia."
(Highlighting & underlining Added) The facts of the present are required to assessed in terms of the above-mentioned law.
iii. The Plaintiffs have failed to prove that the property No.D-42 was funded only through the sale proceeds of property No.156, Birampur Punjab. The property No. D-42 and A-21, Kirti Nagar were allotted prior to the sale of property No.156, Bikrampura, Punjab and even prior to any money received towards the sale of property No.156. The 1/4th of sale consideration of the property No. D-42 and A-21, Kirti Nagar, New Delhi had already been paid prior to any amount received towards the sale of property No.156, Bikrampura, Punjab. The remaining amount was paid in multiple installments spread over a period of years till 1962. In terms of assessment Orders of late Ram Lubhaya Kohli, proved on record, he was capable of making payment of the installments from his independent income in the year 1959, 1960, 1961 and 1962. Mere possibility of some minor Nitin Bahl vs. Meera Batra Page No. 58 of 70 Civil DJ No. 610210/2016 installments being paid through the sale proceeds would not be substantive proof of the same being paid in relation to both the properties. Mere difficulty in proving the contentions of transaction being old would not help the person in seeking the transaction to be declared as Benami. The Plaintiffs have not only to prove the source of funds used for transaction, however also the motive for such transaction.
iv. Late Ram Lubhaya Kohli has treated the property No.D-42, Kirti Nagar as his sole property. The same is evident from the fact that he filed a suit for declaration of him being declared as owner of the property No. D-42 and in terms of Order/Decree dated 06.02.1969, passed by the Court of Ld. SJIC, Delhi, in the Civil Suit No. 96/1969, late Ram Lubhaya Kohli was declared to be owner of the property No. D-42, Kirti Nagar. There is nothing on record to infer that Late Ram Lubhaya Kohli has acknowledged the right of any family member in the property No.D-42 or treated the same as joint family property or purchased the same for benefit of the remaining family members. If his acts were against the interests of the remaining family members, the same were never challenged. The predecessor-in-interest of the Plaintiff, i.e., Late Kamini Behl, the daughter of late Ram Lubhaya Kohli had never made any demand for any share in the property No.D-42 or asserted any right therein till her death in 1996.
Nitin Bahl vs. Meera Batra Page No. 59 of 70 Civil DJ No. 610210/2016v. The Plaintiffs have neither proved the factum of properties being purchased from joint family funds nor proved the motive for such a purchase. There is nothing on record that the aforesaid properties were treated as Benami or HUF properties by the family members. The subsequent conduct of some of the family members is to the contrary as wife of late Ram Lubhaya Kohli has even sold the property No. L-37(2nd Floor) by contending that the same was absolute property of her husband. One of the Plaintiffs was also a witness to the aforesaid sale.
vi. Thus, the contentions of the Plaintiffs, with regard to the property No. D-42, A-21, G-28 and L-37, Kirti Nagar, Delhi not being the properties of the persons named in the title documents, do not fall within the exceptions to the Section 4 of the Benami Transaction (Prohibition) Act, 1988.
9.1.9. Therefore, in terms of discussion and reasons stated hereinabove, the Plaintiffs have failed to prove that the property No. G-28(1st Floor), Kirti Nagar and the property No.L-37, Kirti Nagar are ancestral or HUF properties. The Issue No.1 is accordingly decided against the Plaintiffs and in favour of the Defendants.
9.2. Issue No.3: Whether the Gift Deed dated 19.11.1999 in favour of Meera Batra, defendant Nitin Bahl vs. Meera Batra Page No. 60 of 70 Civil DJ No. 610210/2016 No.1 with respect to property No.G-28, 1st Floor, Kirti Nagar, New Delhi is bogus, null and void? OPP 9.2.1. The Issue No.3 is taken up for discussion before the Issue No.2. The onus to prove this Issue was upon the Plaintiffs. The gift deed was executed by late Ram Lubhaya Kohli, during his life time. He has also filed the written statement, wherein he has affirmed the aforesaid gift deed. The Plaintiffs have failed to prove that the property No. G-28 (1 st Floor), Kirti Nagar, Delhi was joint family property. The aforesaid property has been acquired through registered sale deed. In terms of registered documents, Ram Lubhaya Kohli was owner of the 1/2nd share of the property and was legally entitled to deal with the same. The gift deed is registered and there is no dispute to the factum of registration. The same is challenged on the ground of unsoundness of mind, undue influence and coercion of the donor, i.e., of Ram Lubhaya Kohli. No medical evidence has been produced whereby the unsoundness of the executant could be inferred. The contentions of undue influence, coercion or unsoundness of mind were required to be corroborated and proved and bare allegations in themselves would not amount to proof of the same, more particularly in view of the fact that the donor himself has filed the written statement and affirmed the gift deed. Besides bare allegations, there is no effective evidence on record to conclude in favour of the Plaintiffs. Therefore Nitin Bahl vs. Meera Batra Page No. 61 of 70 Civil DJ No. 610210/2016 the Plaintiffs have failed to prove the Issue No.3 and the same is decided against them.
9.3. Issue No.2: Whether plaintiffs are entitled to relief of partition of the properties G-28 (1 st Floor) and L-37 (2nd Floor), Kirti Nagar, New Delhi? OPP Issue No. 5: Is Conveyance / sale deed dated 13.07.2005, in respect of the suit property No. L-37, Second Floor, Kirti Nagar, favouring third defendant not binding upon the Plaintiff, as contended? OPP 9.3.1. The Issue No.2 and 5 are taken up together for discussion. In terms of Issue No.1, it has been held that the suit properties are not joint family properties. The property No.G-28(1 st Floor), Kirti Nagar, Delhi is held to be the property of the Defendant No.1 and the Plaintiffs do not have any right to seek partition of the same. Though the foundational right of ownership to property No.G-28 has not been proved, however there is an additional challenge to seek the prayer of partition as all the necessary parties have not been arrayed as parties. In case, the suit properties are held to be the joint family properties and the source is traced from late Panna Lal Kohli, then his daughter/her branch also becomes a Nitin Bahl vs. Meera Batra Page No. 62 of 70 Civil DJ No. 610210/2016 necessary party for the prayers of partition.
9.3.2. In so far as the property No.L-37 (2nd Floor), Kirti Nagar, Delhi is concerned, the same is a property owned by late Ram Lubhaya Kohli in terms of the registered sale deed dated 26.03.1999. Though the aforesaid property may not be joint family property, however upon death of the owner, i.e., Late Ram Lubhaya Kohli, the ownership will be created in favour of his legal heirs by operation of succession unless the same are disrupted by proof of a valid Will. The aforesaid property is sold by Late Ms. Swadesh Kohli to the Defendant No. 2 (Ms. Rita Malhan) in terms of a sale deed dated 13.07.2005. The certified copy of the aforesaid sale deed has been filed on record. It is stated in the aforesaid sale deed that late Ram Lubhaya Kohli was the absolute owner of the property No. L-37 (2nd Floor), Kirti Nagar, Delhi, in terms of the registered sale deed dated 26.03.1999. It is mentioned that late Ram Lubhaya Kohli also purchased the roof rights of property No. L-37, Kirti Nagar, Delhi in terms of another registered sale deed dated 28.03.1999. It is further mentioned that late Ram Lubhaya Kohli has executed a registered Will dated 15.01.2001, whereby the property No. L-37 (2nd Floor), Kirti Nagar, Delhi along with roof rights, were bequeathed in favour of Ms. Swadesh Kohli and upon the death of late Ram Lubhaya Kohli, his wife namely late Swadesh Kohli became absolute owner of the aforementioned property. Therefore, the rights of the Nitin Bahl vs. Meera Batra Page No. 63 of 70 Civil DJ No. 610210/2016 Defendant No.2 (Ms. Rita Malhan) are based upon the rights of late Ms. Swadesh Kohli in terms of Will dated 15.01.2001.
9.3.3. The Will dated 15.01.2001 is stated to be a registered one and is an unprivileged Will. An unprivileged Will is required to be attested by two witnesses and has to be executed in the manner stated in Section 63 of the Indian Succession Act, 1925. It is prescribed in Section 68 of the Indian Evidence Act, 1872 that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Even in case of a registered Will, the requirement of examination of the attesting Witness is not dispensed with. The Defendant No.2 has not led any evidence. The Defendant No.2 has neither examined any attesting Witness of the aforementioned Will nor stated the reason for such non-examination. The death or incapability of the attesting witness to appear and depose has also not either been pleaded or established on record. Therefore, the Defendant No.2 has failed to prove the Will dated 15.01.2001. Though the sale deed dated 13.07.2005 has been executed during the pendency of the present suit and is required to be examined under Section 52 of the Transfer of Property Act, 1882, however in the event of Will dated 15.01.2001 not being Nitin Bahl vs. Meera Batra Page No. 64 of 70 Civil DJ No. 610210/2016 proved, no right can be claimed under the aforesaid sale deed. Thus, the sale deed dated 13.07.2005 is not binding upon the Plaintiffs.
9.3.4. Though the sale deed dated 13.07.2005 has been proved to be not binding on the Plaintiffs, however that is not the end of the matter. For some unknown reasons, the Plaintiffs in the present suit have not focused much on the aforesaid property No.L-37 (2nd Floor), Kirti Nagar, Delhi and have exhausted the entire strength in pursuing the claim against the property No. G-28, which is evident from the manner in which they have proceeded. Even though the rights of the Defendant No.2 to the property No.L-37 (2nd Floor) have not been proved, the fact of the matter remains that the possession of the aforesaid property was transferred to the Defendant No.2. The Defendant No.2 stated in the written statement that she had already sold the property and passed on the possession. The Defendant No. 2 did not provide any detail of the subsequent purchaser and did not even contest the present suit. Though the conduct of the Defendant No.2 is completely unjustified, however the Plaintiffs were also required to exercise the expected diligence in order to preserve the possession of the aforesaid property, which becomes crucial for prayers of partition.
9.3.5. The Plaintiffs were denied interim injunction with regard to the property No. L-37, in terms of Order dated 14.08.2007 Nitin Bahl vs. Meera Batra Page No. 65 of 70 Civil DJ No. 610210/2016 for the reason that the same was already sold to a third party, i.e., the Defendant No.2(Ms. Rita Malhan) and she was not a party to the suit at that point of time. The Application for impleadment of the Defendant No.2 (Ms. Rita Malhan) was filed subsequently and she was impleaded as a party on 22.02.2008. The written statement was filed by the Defendant No.2 (Ms. Rita Malhan) on 09.09.2008, wherein she stated that she had already sold the property and passed on the possession. The Plaintiffs though have filed the replication to the written statement of the Defendant No.2, however did not seek to ascertain and establish the position of possession of the property on record. The Defendant No.2 may not be interested in contesting the suit, however the same does not take away the responsibility of the Plaintiff to assure on record the details of current possession of the property and take further steps for preservation and protection of the same. It is not evident on record as to who is in possession of the property No. L-37 and what is his capacity of possession. A period of more than 15 years has passed since the disclosure that the Defendant No.2 had transferred the possession of the property. There is no clarity about the person in possession and there is a question mark on the fact as to whether the suit/prayer for possession against such a person would be maintainable on account of limitation. A decree for partition cannot be granted for the properties, where there is no certainty of the possession and the parties are not in possession of the property.
Nitin Bahl vs. Meera Batra Page No. 66 of 70 Civil DJ No. 610210/20169.3.6. The sale deed dated 13.07.2005 was executed by late Swadesh Kohli and the Plaintiff No.3 has signed the same as witness to the same. The Plaintiffs, despite being aggrieved of the acts of the Plaintiff No.3, did not take any steps for his transposition as the Defendant. In terms of the written arguments filed on behalf of the Plaintiffs, they do not seem to be even aggrieved of the acts of the Plaintiff No.3 and his mother and have accepted the same towards appropriation of his share in the suit properties. The relevant part of the aforesaid written arguments dated 03.03.2022 is being reproduced hereinbelow:
Srl Questions Stand Taken by Arguments of Plaintiffs No. Defendant(s) Against Stand Taken by Defendant(s) 12 What share Vinod Kohli, -11- The value of Suit properties as Plaintiff No.3, has in the mentioned in Para 38 of the suit after he and his Plaint, is :
mother sold L-37 and No stand taken L-37 Kirti Nagar =20 Lakhs both left for USA. And, after the death of his G-28 Kirti Nagar =55 Lakhs mother he acquired all Total =75 Lakhs her assets including sale proceedings of L-37. The Share of the Plaintiffs and the Defendant would be:-
1. Vinod Kohli- Plaintiff No3..1/3
2. Nitin Bahl - Plaintiff No.1} & Nidhi Popli -Plaintiff No.2}....1/3 (through their Mother) }
3. Meera Batra - Def Nitin Bahl vs. Meera Batra Page No. 67 of 70 Civil DJ No. 610210/2016 No.1...1/3 Since Vinod Kohli has not proved his case and has not even come in the witness box to lead any evidence and further, since he has already sold and acquired Sale proceeds of L-37 the value of which is almost 1/3 of the total value of Suit properties, he has now No Share in the remaining property G-28.
G-28 now needs to be divided only between Plaintiffs 1&2 (half share) and Defendant No.1 (half share).
Even in the concluding note of the argument, the following prayer has been made.
"Conclusion:
24 In view of the above and notes I, II and III placed on record, this Hon'ble Court be pleased to pass a decree in favour of the Plaintiffs and partition the property G/28 Kirti Nagar, New Delhi-110015 as recommended in Para 12 of Note III submitted on 03.03.2022."
Though the aforesaid prayer is not a prayer in the plaint and cannot substitute the substantive prayer in the plaint, however the same definitely shows greater disinclination of the Plaintiffs to enforce the rights, which they were entitled to in the property No. L-37(2nd Floor), on account of death of late Ram Lubhaya Kohli. A right in the property, which was available, on account of the Will dated 15.01.2001 not being Nitin Bahl vs. Meera Batra Page No. 68 of 70 Civil DJ No. 610210/2016 proved, has been defeated by the acquiescence of the Plaintiffs, in not preserving or protecting the possession of the property.
9.3.7. Thus neither of the parties are interested to enforce their rights in the property No. L-37 (2nd Floor), Kirti Nagar, Delhi. The status of possession of property is not clear on record. The last person in possession was the Defendant No.2, who also did not participate in the matter as she had already passed on the burden to the next person in line by transferring the possession of the suit property. A period of more than 15 years has already been passed and the right to recover possession is shrouded in serious challenge of limitation. Even if the preliminary decree of the aforesaid property is granted against the wishes of the parties, this Court does not see as to how the same will be followed up with the final decree and execution, when the possession is with a third party, whose identity has not been established on record and against whom the prayer for possession has already become time barred.
9.3.8. Therefore, for the reasons stated hereinabove, the Plaintiffs are not entitled to decree for partition with regard to property No.G-28(1st Floor), Kirti Nagar, Delhi or with regard to the property No.L-37(2nd Floor), Kirti Nagar, New Delhi. The Issue No. 2 and 5 are accordingly decided.
Nitin Bahl vs. Meera Batra Page No. 69 of 70 Civil DJ No. 610210/20169.4 Issue No. 4: Whether plaintiff is entitled to a decree of permanent injunction as prayed for?
OPP 9.4.1. Since the foundational prayer of partition is being declined to the Plaintiffs, therefore, they do not have any entitlement to the consequential prayer of permanent injunction. This Issue is accordingly decided in favour of the Defendant No.1 and against the Plaintiffs.
10. Relief/Final Conclusion:
The suit of the Plaintiff is dismissed. The decree sheet be drawn up accordingly. The files be consigned to record room after due compliance.Digitally signed by ANIL
ANIL CHANDHEL
CHANDHEL Date: 2025.04.21
17:06:23 +0530
Announced in the open Court (ANIL CHANDHEL)
today on 21st of April, 2025 DISTRICT JUDGE-04
WEST DISTRICT
HC/DELHI/21.04.2025
Nitin Bahl vs. Meera Batra Page No. 70 of 70
Civil DJ No. 610210/2016