Delhi District Court
Sh. Ved Prakash vs Sh. Daya Nand on 16 July, 2012
IN THE COURT OF MS. SUJATA KOHLI
ADDITIONAL DISTRICT JUDGE04 (WEST)
TIS HAZARI : DELHI
C.S. 263/10/90
Sh. Ved Prakash
S/o Late Sh. Sham Dass
R/o H-352, New Rajinder Nagar,
New Delhi.
Presently Residing at G-35,
East of Kailash.
New Delhi.
.....Plaintiff
VERSUS
1. Sh. Daya Nand,
S/o Late Sh. Sham Dass,
R/o H-352, New Rajinder Nagar,
New Delhi.
2. Sh. Radha Kishan
S/o Late Sh. Sham Dass,
R/o Pocket-B/41-A,
Sidhartha Extn., (Near Ashram),
New Delhi.
3. Sh. Ramesh Chander
S/o Late Sh. Sham Dass,
R/o R-809, New Rajinder Nagar,
New Delhi.
4. Sh. Subhash Chander
S/o Late Sh. Sham Dass,
R/o H-352, New Rajinder Nagar,
New Delhi.
5. Sh. Rajinder Kumar
S/o late Sh. Sham Das
R/o h-352, New Rajinder Nagar,
New Delhi.
6. Smt. Promila Kumari,
W/o Sh. Bhagwan Dass,
R/o D-13A/3, Model Town,
Delhi.
....Defendant
Date of Institution of suit : 14.09.2010
Date of reserving the judgment : 23.05.2012
Date of passing the judgment : 16.07.2012
JUDGMENT
In this 21 years old suit, for partition and rendition of accounts, plaintiff Sh. Ved Prakash alleged that Sh. Sham Dass, his father and that of the defendants no.1 to 7 and husband of defendant no.8 was the absolute owner in possession of a plot of land measuring 200 Sq.Yds bearing Municipal No.H 352, at New Rajendra Nagar, New Delhi, a commercial shop bearing No.546 at Gandhi Katra, Chandni Chowk, Delhi and that the said Sh.Sham Dass had raised a 2 ½ storey residential structure comprising ground floor, first floor and Barsati floor on the said plot, as per the description in the Site Plan annexed.
2. Further stated that the said Sh. Sham Dass and all the parties to the suit are Hindus governed by Mitakshra School of Hindu Law and that the said Sh.Sham Dass had died intestate on 25.02.1981, leaving behind all his movable and immovable properties, which devolved upon his surviving legal heirs/successors, with the plaintiff and the defendants becoming the coowners in respect of the said properties as per the Hindu Succession Act, 1956. It is averred that as such, each party has an equal i.e. one upon ninth share of the so far undivided right, title and interest in the properties.
3. It is further elaborated that a flourishing proprietorship business was left behind by Sh. Sham Dass under the name and style of Luda Ram Ved Prakash at the shop above stated and the said business is continuing to be run as on the date of filing of the plaint. It is alleged that at the time of death of late Sh. Sham Dass, the said concern had a stock of cloth and other assets of the value of approximately Rs.6,00,000/.
4. Further alleged that parties to the suit being the immediate members of the family/being the LRs of late Sh.Sham Dass have a joint interest and are also in joint possession of the said properties. At the same time it is averred that plaintiff is in joint, constructive possession of the said properties, and that besides the properties detailed in the plaint, there were also movable assets of late Sham Dass, the details of which are not known to the plaintiff as stated. Plaintiff has also sought leave to include all those properties also in the suit, as and when discovered.
5. Further alleged that defendant no.1 being the eldest among the parties to the suit alongwith the defendants no.3 and 4 had been managing the said business of M/s Luda Ram Ved Prakash and they continued to do so and that they being trustees are liable to account for the same.
6. Further alleged that defendants no.1, 3 and 4 have illegally 'inter meddled' with the estate of late Sh. Sham Dass to the detriment of the plaintiff and that they have deprived the plaintiff of his legitimate share in the said properties and have failed to account for the same. It is also alleged that the said defendants are intending to deny the right, title and the legitimate share of the plaintiff in the estate of the deceased.
7. Further alleged that plaintiff in the given circumstances, was forced to call upon the defendants to demarcate his share in the said properties by partition but defendants avoided and neglected to do so and also stated that the immovable property in incapable of partition by metes and bounds and as such it would be converted into silver coins and after accounting for all the properties of the deceased, the due share would be given to the plaintiff. However, the defendants failed to keep up their assurances.
8. Further alleged that the said defendants i.e. defendants No.1, 3 and 4 further started diverting the funds and the assets of the business firm above stated, in collusion with each other in order to cause wrongful laws to the plaintiff.
9. Further alleged that there is an apprehension of the said defendants disposing off the properties on their own to third party and which may cause irreparable loss to the plaintiff. Hence the present suit for partition and rendition of accounts.
10. Defendants No.1, 3, 4 and 8only contested the suit while the others were stated to be proforma parties and they failed to appear and contest despite due service and as such they were proceeded exparte vide separate orders as under: Defendant no.2 - Order dated 06.07.1992 Defendant no.5 - Order dated 15.07.1993 Defendant No.6 and 7 - Order dated 30.01.1991 Written statements were filed only by defendants no.1, 3 and 4.
11. Defendant no.8 deleted at the subsequent stage vide Order dated 05.05.2004 consequent to her death and all the LRs being the plaintiff and the other defendants being already on record.
12. Remaining defendants i.e. 1, 3 and 4 in their joint written statement raised certain preliminary objections firstly that the firm in question was a partnership firm from the very inception of the business i.e. 01.04.1959 wherein late Sh. Sham Dass had been one of the partners. It is further their case that at the time of death of Sh. Sham Dass, i.e. on 25.02.1981, the partnership firm stood dissolved and the remaining partners i.e. defendants no.1, 3 and 4 had started a new partnership concern taking defendant no.8 as a partner vide Partnership Deed dated 19.03.1981 and as such the present suit in so far as it is seeking rendition of accounts, is barred by limitation.
13. Further alleged that plaintiff had concealed material facts from Court in as much as the late Sh. Sham Dass had acquired the property no.H352, New Rajendra Nagar, New Delhi and also the property no.G35, East of Kailash, New Delhi as Karta of Sham Dass, HUF and although the property bearing No.G35, East of Kailash had been purchased in the name of the plaintiff but late Sh. Sham Dass and other coparceners of HUF were the coowners of both the properties belonging to HUF. Further alleged that on the death of Sh. Sham Dass, all the other coparceners and the plaintiff, intentionally did not disclose the said facts.
14. It is further the stand taken by defendants no.1, 3 and 4 that plaintiff, to his knowledge, nor any other LR of Sh. Sham Dass have any right, title or interest in respect of the firm M/s Ludha Ram Ved Prakash.
15. It is the version of the contesting defendants that Sh. Sham Dass had executed a Will dated 28.12.1980, whereby he had bequeathed his right, title and interest in the partnership business i.e. the goodwill as well as the tenancy right of the firm in favour of the said defendants, while the capital investment in the partnership business had been bequeathed in favour of defendant no.8. It is further their case that the said Will was duly acted upon on the death of Sh. Bhagwan Dass, as the capital amount standing in his name in the firm M/s. Ludha Ram Ved Prakash was accordingly, transferred to the capital account of the defendant no.8. According to the said defendants, the business was still being run in the partnership of defendants no.1, 3, 4 and 8 (the last one already expired).
16. Defendants have further alleged that the property bearing No.546, Gandhi Cloth Market, Chandni Chowk, was purchased by the partnership firm, wherein Sh. Sham Dass had been a partner and that the ownership right of the said property to the extent of the share of late Sh. Sham Dass has already been bequeathed in favour of the contesting defendants no.1, 3 and 4.
17. Further objected that the suit has not been properly valued for the purpose of Court fee and jurisdiction and as such the same is liable to be rejected.
18. It has also been stated as a preliminary objection that the name of defendant no.1 is also Nand Kishore in addition to the name shown in the Memo of Parties, while the name of defendant no.3 shown as Ramesh Chander, is actually Ramesh Kumar.
19. Defendants have also disputed the chart of inheritance shown in the plaint and alleged the same to be incorrect and instead the defendants have furnished the chart of their own as per which they have shown the shares of each party as under: "Property No.H352, New Rajendra Nagar, New Delhi and G35, East of Kailash, New Delhi.
(a) Smt. Bhagwanti, 1/63, (b) Sh. Nand Kishore alias Dayanand, 10/63,
(c) Sh. Radha Kishan, 10/63, (d) Sh. Ved Prakash, 10/63, (e) Sh.
Ramesh Kumar 10/63, (f) Sh. Subash Chandra 10/63, (g) Sh. Rajendra Kumar 10/63, (h) Miss Promila 1/63, (i) Sushma 1/63 Property NO.546, Gandhi Katra, Chandni Chowk, Delhi. Sh. Nand Kishore alias Dawa Nand 1/3, Sh. Ramesh Kumar 1/3, Sh. Subash Chandra, 1/3."
20. As per the said defendants, plaintiff has no right, title or interest under the law in the said properties. The defendants have sought dismissal of the suit with costs or in the alternative for the properties bearing No.H352, New Rajendra Nagar, New Delhi and G35, East of Kailash, Delhi to be partitioned to the extent of the plaintiff's share i.e. 10/63 and that the defendants be allowed to pay to the plaintiff, the value of his share.
21. In his replication, the plaintiff has submitted that the business concern in question was in fact a proprietorship concern of Sh. Sham Dass and duly registered vide Regn. No.2465 as on 13.07.1956 and that the defendants no.1, 3 and 4 have dishonestly attempted to convert the said proprietorship concern into a partnership concern in order to cause wrongful loss to the plaintiff.
22. Plaintiff has also stated that the Property No.G35, East of Kailash is the exclusive property of the plaintiff and duly registered in his name. He has elaborated the said property was allotted to him under the Low Income Group Scheme and the plaintiff had been depositing all the payments for the same from his own funds and the entire allegations of the defendants in roping in of this property in the suit is mischievous and vicious . Plainitiff has also denied that Property No.H352, New Rajendra Nagar and the property of East of Kailash were HUF properties and he has averred that there never was any HUF by the name Sham Dass HUF.
23. As regards the Will dated 28.12.1980, propagated by the defendants, purported to be the Will of late Sh. Sham Dass, plaintiff has denied it, claiming it and alleged it to be a fabricated document. Plaintiff has asserted that no Will was ever executed by late Sh. Sham Dass and the signatures thereon are forged. He has also denied that the said alleged Will has been acted upon by any one till now and according to plaintiff, defendants have set up a Will only in their attempt to claim the entire assets and profits of the concerned Ludha Ram Ved Prakash.
24. As per the plaintiff, defendants are only the trustees and are managing the affairs of the said concern for and on behalf of all the legal heirs and in the course of managing the same, the defendants have siphoned off/diverted huge funds from the said concern to their own personal use, building palatial bungalows for themselves, and to the detriment of the plaintiff and other coowners.
25. Plaintiff has further reasserted that all the funds for the purchase and construction of the said properties have been obtained from the funds/profits of M/s. Ludha Ved Prakash and as such plaintiff has an equal share therein as the other LRs.
26. Plaintiff has also denied that property No.546 at Gandhi Cloth Market, Chandni Chowk had been purchased by a partnership firm as alleged.
27. In his replication on merits plaintiff has reiterated that property No.H352, New Rajendra Nagar had been owned exclusively/absolutely by late Sh. Sham Dass.
28. On the basis of the pleadings, following issues were framed:
1. Whether the plaintiff proves that the suit property is a Hindu Joint Family property?
2. Whether the defendants prove that property No.G35, East of Kailash is a property of the ownership of Joint Family of plaintiffs and defendants?
3. Whether the defendant proves that there are valid and legal Wills dated 16.05.1980 and 28.12.1980 executed by Sh. Shyam Das?
4. Whether the defendant Himmat Ram has become the absolute owner of the suit property on account of Will dated 16.05.1980?
5. What is the share of the plaintiff and in what property?
6. Whether the plaintiffs are entitled to claim and get partition and separate possession of their share?
7. Whether the plaintiffs are entitled to get the accounts of the joint family property from the defendant?
8. Whether the plaintiffs' suit is barred by law of limitation?
9. Whether the court fee paid by the plaintiff is sufficient and if not what is the effect?
10.What order and decree?
29. During pendency of the case, defendant no.8 expired Vide Order dated 13.01.2004, suit abated qua the said defendant and accordingly his name was deleted from the array of defendants, all his LRs being already on record.
30. During evidence, plaintiff examined himself as PW1 on his affidavit Ex.P1 and tendered only two documents Ex.PW1/1 and PW1/2, which were the Site Plans qua the property Gandhi Katra, Chandni Chowk and the property at New Rajendra Nagar, New Delhi. Apart from the site plans, plaintiff failed to produce any documentary evidence at all.
31. Defendants on the other hand examined defendant no.3 as DW3, on his affidavit Ex.D3/A, defendant no.4 as DW1, on his affidavit Ex.DW1/A and defendant no. 1 as DW2 on his affidavit Ex.DW2/A. Defendant no.3/DW1 also relied upon Will mentioned in his affidavit as Ex.DW4/A (deexhibited and marked 'A') while defendant no.1/DW2 tendered as many as 13 documents Ex.DW1/1 to DW1/13 as under:
(a) Partnership Deed dated 02.04.1959 - Ex.DW1/1
(b) Partnership Deed dated 19.03.1981 - Ex. DW1/2
(c) Will dated 16.05.1980 (initially marked A) - Ex.DW1/3 (again re exhibited as Ex.DW1/4)
(d) Receipts issued by the custodian of enemy property - Ex.DW1/59
(e) Letter dated 24.09.2002 issued by the Office of Custodian of Enemy Property Ex.DW1/10
(f) Site Plan of the Shop Ex.DW1/11
(g) Notice dated 09.09.1999 issued by SDM, Kotwali - Ex.DW1/12
(g) Notice dated 16.09.1997 from Income Tax Officer, IP Estate - Ex.DW1/13.
Arguments were addressed at length.
32. I proceed to decide the suit on the basis of the material on record and my issuewise findings are as under: ISSUE No.1:
"Whether the plaintiff proves that the suit property is a Hindu Joint Family Property?"
33. PW1 plaintiff has examined only himself on his affidavit in support of his averments made in the plaint and all that he has tendered in documentary evidence are two documents Ex.PW1/1 and PW1/2 i.e. the site plans of the two suit properties.
34. In a detailed crossexamination conducted on behalf of all the three defendants, several significant replies have been evicted from the plaintiff and the relevant extracts of his testimonies are necessary to be reproduced herein to show their overall implication. Plaintiff has admitted that the firm was formed in the year 1959, however, he has replied that he was not aware as to whether the firm M/s. Ludha Ram Ved Prakash was an income tax assesee or not and whether the income tax was paid in the name of M/s. Ludha Ram Ved Prakash as a partnership firm. PW1 denied the suggestion that he had no role to play in the business of the said firm and he Vol. of his own that he used to participate in the business of the firm along with his father.
35. It was the contention of Ld. Counsel for defendants that it is not credible that a person who is participating in the business of a firm, would not be aware of the material aspects of the firm as mentioned above relating to the assessment of income tax.
36. Further PW1 has also replied that he had joined Govt. Service in the year 1961 and retired in the year 2000. He has also replied that he was an income tax assesee till his retirement and that the tax used to be paid by the department (by deduction at source). PW1 has admitted that he never filed any income tax return in the name of the firm or on any income from the firm. All that he has stated is that his father used to give him 'some amount from the income of the firm' till he remained alive.
37. Plaintiff PW1 also admitted during crossexamination that he had not placed any document on record to show that M/s. Ludha Ram Ved Prakash was a proprietorship firm and that he was a beneficiary of the income of the firm in any manner. PW1 also expressed complete lack of awareness about as to what capital amount had been invested initially when the firm was formed, whether it was Rs, 1,25,000/ (as suggested on behalf of defendants during crossexamination) or any other amount. It was also put to PW1 by way of suggestion that when his father expired in February 1981, all that was standing on his name in his capital account of the firm was only Rs.68,149.36p.
38. PW1 admitted that there was one Sh. Ishwar Dutt working in the firm as a Munim and who had already expired but PW1 expressed inability to identify the signatures of the said Ishwar Dutt.
39. As regards, the exclusive ownership of the shop by the father of the PW1, PW1 has stated the name of the previous owner as one Salamati Jaan Begum and that his father had purchased the shop after the partition of the firm M/s. Ludha Ram Ved Prakash. PW1 has admitted that he has never seen any document vide which the shop was purchased by his father.
40. As regards the property at Rajendra Nagar, PW1 has admitted that he, his father and his brothers were shareholders of their HUF property and also the fact that after the death of their father, part of the property devolved upon his mother and two sisters i.e. from the share of his father.
41. It was suggested to PW1 on behalf of the defendants that the shop was originally left by the owner who had shifted to Pakistan during the partition and the shop had become evacuee property and it is only in the custodian of the evacuee property who would be the true owner of the shop. It was also suggested that since 1986, it was defendant no.1 who was a tenant in the said shop and continuous to be in possession thereof till date as a tenant.
42. As regards property No.H354, New Rajendra Nagar, New Delhi, the plaintiff has clearly admitted that the said property was owned by Sh. Shamd Dass HUF. He has also admitted the case of the defendant that Sh. Sham Dass was karta of the HUF.
43. Plaintiff/PW1 further admitted it to be correct that his father, his brothers as well as himself were shareholders of the HUF property comprising the New Rajendra Nagar property and that after the death of his father, the part of the said devolved upon his mother and two sisters quo the shares of his father.
44. Plaintiff/PW1 further admitted that he had never issued any notice to the defendants seeking a partition and seeking a share of the properties before filing the present suit.
45. DW3 on the other hand has also made other quite material admissions during his crossexamination. He has admitted that the livelihood of the entire family was being run from the said business. He has further stated that the shop at Gandhi Market was purchased from the funds of the partnership concern and Sh. Nand Kishore being a partner of the dissolved firm is carrying on his business from the said shop.
46. DW1 Sh. Subhash Chander has strongly denied that late Sh. Sham Dass had executed any Will contrary to his written statement, wherein the defendants no.1, 3 and 4 had propagated two Wills having been executed by the said late Sh. Sham Dass.
47. However, at the same time, it is surprising that the suggestion has come from Ld. counsel for plaintiff against the plaintiff's own case and being put to DW1 to the effect that the property No. H352, New Rajendra Nagar, Delhi was bought by Sh. Sham Dass as HUF karta.
48. The case of the plaintiff itself was that Sh. Sham Dass was absolute owner of the said property. DW2 Sh. Daya Nand has completely demolished the defence by his destructive replies given during his crossexamination. He has stated herein that they all had migrated from Pakistan to India and that Sh. Sham Dass i.e. his father, his mother and all the fours brothers and they were provided accommodation in Tibiya and after that his father bought the property NO.352, New Rajendra Nagar, Delhi and they all shifted there.
49. It is further suggested by DW3 during crossexamination that his father had started business of cloth at shop NO.546, Gandhi Market, Chandni Chowk, Delhi. The property was originally stated to be of Mohammedan. Further, DW2 Sh. Daya Nand has denied that only his father was doing the said business of clothes but without elaborating further. He has claimed to have joined the business and that none other being involved therein. DW2 has also claimed the property to be custodian property. He has also admitted that his father was running the business out of the HUF cases as against their stand taken in the written statement that the business was a partnership concern.
50. From the entire oral testimony on record, it transpires that neither party has stuck to their own respective case and have failed to support their own stand. While the plaintiff has made admissions totally contrary to his case and termed the concern as an HUF venture, in his plaint, he had averred that the concern was a proprietary concern. So is the case of the defendants who, though in their written statement claimed that the concern was a partnership concern, while in crossexamination of the 3 witnesses admitted that the concern was an HUF.
51. As per the plaint, the case of the plaintiff was not that the suit property was Hindu Joint Family property but his case was that his father was the absolute owner of the suit properties and that since he died intestate, his property should be divided equally between his LRs, i.e. parties to the suit as per Hindu Succession Act. It was the defendant's contention that the property was a Hindu Joint Family property and had been purchased by the said Sh. Sham Dass in the capacity of the karta of HUF.
52. However, since from the nature of the evidence led and also the fact that neither the parties had at any stage sought modification of the issues as framed, it can safely be concluded that both parties well knew what case each one had to meet. Having considered the entire evidence from the record, oral as well as written, it is clear that the plaintiff has failed to bring on record even a single document in spite of his claim that his father Sh. Sham Dass is the absolute owner of the suit property. In fact the plaintiff has not uttered even a single word in his examinationinchief as to the status of the property at New Rajendra Nagar as well.
53. In his crossexamination he admitted that in the year 1961, he was a government employee and was having a very small salary and it was not possible for him to purchase any property from the said in come, that too at East of Kailash. As per the defendants, the funds were generated by the father of the plaintiff and the defendants from the HUF funds, to purchase the said property and plaintiff got the said property through lottery as stated by him in his crossexamination. Since, the lottery was in the name of plaintiff, the property had been purchased in the name of the plaintiff alone otherwise, the said property belonged to the HUF of late Sh. Sham Dass.
54. However, it is equally true that even the defendants have not been able to bring on record any such document to establish that the properties were of Sh. Sham Dass HUF. Even otherwise, as regards the property of East of Kailash, defendants have not come up with any counter claim and it is the plaintiff who has filed the suit only with respect to the properties comprising of New Rajendra Nagar property as well as Gandhi Nagar property and the business being run therein. In case, the defendants sought any relief regarding any other property which is not a subject matter of the suit it was for them either to have filed an independent suit or a counter claim herein; neither of which were done. Accordingly, the claim of defendants regarding East of Kailash property cannot even be taken into consideration in the present suit brought by the plaintiff.
55. From the kind of evidence led, both parties have failed to prove their respective version in as much as the plaintiff has failed to prove that the properties were exclusively owned by late Sh. Sham Dass as an exclusive owner or in any capacity whatsoever. Similarly, the defendants have also failed to prove that the properties were HUF properties.
56. However, since the onus to prove the said issue was upon the plaintiff as he has come to the court claiming that his father was the absolute owner of the suit property and plaintiff has failed to discharge his onus. Issue No.1 is decided against the plaintiff.
Issue No.2:
"Whether the defendants prove that property No.G35, East of Kailash is a property of the ownership of Joint Family of plaintiffs and defendants?"
57. Whether defendants proved that the property No.G35, East of Kailash is the property of the ownership of joint family of plaintiff and defendants for the reasons already discussed, as the property at East of Kailash is not even subject matter of the present suit as plaintiff has not made any averment regarding the said property and the defendants have not filed any separate counter claim and not any separate independent proceedings, the said property could not have been an issue in the present suit. However, even so, defendants have failed to prove even a single document to establish that the said property at East of Kailash was belonging to the HUF. Issue No.2 is being decided against the defendants and in favour of the plaintiffs. Issue No.3: "Whether the defendant proves that there are valid and legal Wills dated 16.05.1980 and 28.12.1980 executed by Sh. Shyam Das?"
58. The defendants have failed to prove both the Wills dated 16.05.1980 and 28.12.1980 by examining the attesting witnesses or any other person familiar with their hand writings and in fact, no substantial evidence has been led to prove the Wills in accordance with the provisions of the Section 68 of the Indian Succession Act. Issue no.3 is decided against the defendants.
ISSUE No.4: "Whether the defendant Himmat Ram has become the absolute owner of the suit property on account of Will dated 16.05.1980?"
59. In view of my findings, on the issue No.3 above, since the Wills dated 16.05.1980 and 28.12.1980 have remained unproved, the said issue has also been decided against the defendants.
ISSUES No.5, 6 and 7:
"5. What is the share of the plaintiff and in what property?
6. Whether the plaintiffs are entitled to claim and get partition and separate possession of their share?
7. Whether the plaintiffs are entitled to get the accounts of the joint family property from the defendant?"
60. As already discussed above at length and from the entire evidence led by the parties, parties have not been able to establish even the fact that the suit properties belonged to the Hindu undivided family of Sh. Sham Dass or exclusively to Sh. Sham Dass or to the plaintiff or to the defendants.
61. Had it been established that the properties were owned exclusively by late Sh. Sham Dass, and that he had died intestate, the properties would have been divided amongst his LRs i.e. the parties to the suit as per the rules of succession under the Hindu Succession Act.
62. Had it been established by the defendants that the properties were belonging to Sh. Shma Dass HUF, the share of late Sh. Sham Dass would have been devided amongst the LRs under the same Act.
63. However, from the material on record, what transpires is that the properties in question remained under the ownership of Custodian of Enemy Property for India. Reference is had to the original letter from the office of the Custodian of Enemy Property for India dated 24.09.2002 addressed to defendant no.1 who was known as Daya Nand as well as Nand Kishore and by which letter, the request for sale of the property had been rejected on the ground that the Custodian of Enemy Property for India is required to preserve and manage enemy property vested in it by virtue of Notification NO.12/2/65EPTY dated 10.09.1965 EP Act, 1968. Accordingly, the request for sale of property on long lease could not be acceded to as stated in the said letter.
64. The original letter dated 09.09.1999 again from the office of Deputy Commissioner of Police, (North) and SubDivisional Magistrate, Kotwali again makes it clear that the properties in question were not owned either by Sham Dass or by the Sham Dass (HUF),
65. By this letter, the defendant no. 1 had been called upon to pay the rent w.e.f. 10.09.1965 onwards within 15 days of the said notice. Besides, there are several other letters in respect of the shop at Gandhi Cloth Market which is clearly showing that neither of the parties was an owner of the said shop. The said letter has been addressed only to defendant no. 1 reflecting him being a tenant in the said property.
66. As against business being run under the name and style of M/s Ludha Ram Ved Prakash, as against two partnership deeds, the plaintiff failed to bring on record even one document to support her claim that he had any share in the said business or that he was contributing to the said business in any manner.
67. Same is the position with regard to the properties at New Rajendra Nagar. The plaintiff has failed to prove any single document and plaintiff has failed to make out his entitlement to any share in the suit properties.
68. House No.352: Relevant portion of testimony of DW2 Daya Nand. "We migrated to India from Pakistan in 1948. In my family, Sh. Sham Dass, my father, my mother and we 4 brothers migrated at that time. My younger brother Rajinder and sister Sushma were born in India. We are provided accommodation in Tibiya college. After that my father bought house No.H352, New Rajendra Nagar, Delhi and we shifted there."
69. Business: "My father started business of cloths at shop NO.546, Gandhi Market, Chandni Chowk, Delhi. Vol. this was property of Mohammedan. It is incorrect to suggest that only my father was doing the business of cloths. I joined my father in 1959 in this business. No other brother was involved in the business at that time. It is incorrect to suggest that my father bought this shop and started the business. Vol. this is Custodian property. My father ran business out of HUF resources. It is correct that business of cloths run from the shop above referred was my family business. It is incorrect to suggest that the documents filed with respect of the partnership are false and fabricated."
70. It is quite surprising that in this overly prolonged litigation spent over a long time span of 22 years, the plaintiff never produced even a single document either with respect of the house No.H352, New Rajendra Nagar or with respect to the shop at Gandhi Market or even with respect to the business, the accounts of which are being sought by the plaintiff.
71. In his entire evidence, plaintiff came up with only two documents i.e. two site plans and even though, the defendant no.1 may have conceded that the house at New Rajendra Nagar had been purchased by late Sh. Sham Dass in the name of the plaintiff, there is not even one document on record to substantiate his title to the property which cannot be bestowed by a mere claim of the plaintiff and admission or concession conceded by the defendants. Title must be established by the documents. Neither there is any document pertaining to the title of the deceased father of the parties late Sh. Sham Dass nor any document pertaining to the plaintiff himself. However, keeping in view the above discussion that the issue nos. 5, 6 and 7 are also being decided against the plaintiff.
Issue No.8: Limitation:
72. Defendants have claimed that the suit of the plaintiff is hopelessly barred by limitation as plaintiff has claimed rendition of accounts of M/s. Luda Ram Ved Prakash by the present suit in the year 1990, whereas the said firm stood dissolved on 25.02.1981 upon the death of Sh. Sham Dass one of the two partners of the said firm and therefore, the relief of rendition of accounts of the said firm would be hopelessly barred by limitation. Plaintiff has failed to produce any documentary evidence or any other evidence to establish, on the other hand, the defendants have stated that the business in question was a partnership, between father of the parties i.e. late Mr. Sham Dass being one of the partners and that with the death of the Mr. Sham Dass, the said partnership stood dissolved in the year year 1981.
73. Going by this, in the absence of any evidence brought by the plaintiff, the claim of the plaintiff i.e. his father was an exclusive owner of the business would also fail on merit.
74. In view of the father of plaintiff as being involved in the business as a partner also, since the partnership dissolved with the death of Sh. Sham Dass in the year 1981, the present suit which was filed in the year 1990, would be beyond the period of limitation fixed for suit for rendition of accounts as per the Limitation Act, 1963 and accordingly, the claim for rendition of accounts would also fail.
75. Article 5 which provides that a suit for an account and a share of the property of a dissolved partnership would lie only within 3 years and the limitation would begin to run from the date of the dissolutions. Since partnership had dissolved in the year 1981 and which averment of the defendant has remained unrebutted, the suit as brought in the year 1990 for relief of the rendition of accounts in the said partnership, the said claim would also otherwise not be maintainable. This issue is decided against the plaintiff and in favour of the defendants.
Issue No.9: Court fee
76. The plaintiff was admittedly not in possession of any part of the property bearing No.H352, New Rajendra Nagar, and as such the plaintiff should have paid advalorem court fee on the market value of the said property value and accordingly, the said as filed is held to be not bearing the appropriate court fee as per the Court Fee Act. Issue of Court fee is decided against the plaintiff.
Issue No.10: What order and relief?
In the result, the suit is dismissed.
Decree sheet be drawn.
File be consigned to record room.
Announced in open court
today i.e. 16.07.2012 (SUJATA KOHLI)
ADJ/WEST/DELHI