Uttarakhand High Court
Smt Gyandhari vs Ram Avtar And Another on 2 November, 2015
Author: Servesh Kumar Gupta
Bench: Servesh Kumar Gupta
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Second Appeal No. 3/2014
Smt. Gyandhari W/O Ratan Lal, R/O Ghasmandi,
Jwalapur, Tehsil and District Haridwar
........Appellant
Versus
1. Ram Avtar S/O Ratal Lal, R/O Harilok Colony,
Jwalapur, Tehsil and District Haridwar.
2. Rajendra Prasad, S/O Ratal Lal, R/O House No.424,
Near Sondhi Nursing Home, Arya Nagar Chowk, Jwalapur,
Tehsil and District Haridwar.
.....Respondents
Mr. Siddhartha Singh, Advocate, for the appellant.
Mr. Arvind Vasishth, Sr. Advocate assisted by Mr. Vivek Pathak,
Advocate, for the respondents.
With
Second Appeal No. 4/2014
Smt. Gyandhari W/O Ratan Lal, R/O Ghasmandi,
Jwalapur, Tehsil and District Haridwar
........Appellant
Versus
1. Ram Avtar S/O Ratal Lal, R/O Harilok Colony,
Jwalapur, Tehsil and District Haridwar.
2. Rajendra Prasad, S/O Ratal Lal, R/O House No.424,
Near Sondhi Nursing Home, Arya Nagar Chowk, Jwalapur,
Tehsil and District Haridwar.
.....Respondents
Mr. Siddhartha Singh, Advocate, for the appellant.
Mr. Arvind Vasishth, Sr. Advocate assisted by Mr. Vivek Pathak,
Advocate, for the respondents.
November 2, 2015
Hon'ble Servesh Kumar Gupta, J.
Both the above-titled appeals have been preferred by Smt. Gyandhari, who is none other but the real mother of the respondents and running in her mid eighties, challenging the judgment and order dated 19.12.2013 rendered by 4th Additional District Judge, 2 Haridwar, whereby the Civil Appeals No. 83/2011 and 1/2012, both preferred by Sri Ram Avtar, were allowed against Smt. Gyandhari.
2. Since in both these appeals challenge has been made to the same judgment by the same person, hence a coordinate Bench of this Court formulated a common substantial question of law, which is as under:-
"Whether lower appellate court erred in law in shifting the burden of proof on the defendants regarding the Benami transaction?"
3. To answer such question would call for narrating the facts, shorn of unnecessary details. Only thereafter the controversy existing between the mother and the sons can be appreciated and wherefor I consider it necessary to evince the lineage of the family of the parties as under:
Chetan Das ↓
--------------------------------------------------------------------------------------------
↓ ↓ ↓
Ratan Lal Phool Chand Few other sons
(Died in 1983) (married with Magan
(married with Devi {alive})
Gyandhari {alive}
in 1949)
↓
↓ ↓I son ↓II son ↓III son ↓IV son ↓V son
↓ ↓ ↓ ↓ ↓ ↓
3 daughters Jai Prakash Ram Avtar Jawahar Lal Rajendra Pd. Raj Kamal ↓ (not in controversy.
now married and living separately in their in-laws house )
4. It has been in the evidence that by virtue of a sale deed dated 5.8.1955, the present property in dispute 3 was purchased for a total sale consideration of rupees three thousand in the name of Smt. Gyandhari and Smt. Magan Devi jointly. At the time of purchase, this property was not in its existing shape, but was part of a big old Haveli. Within almost little less than ten years, the partition of this purchased property occurred on 17.2.1965 between these two ladies, who, in those conservative times, were only the formal owners of such property and, in fact, the entire transaction, be that of the purchase of property, maintenance thereof or its partition, was subject to the guidance, supervision and decision of the male dominance of their respective families, and thus partition was reduced in writing by metes and bounds which is available on the record. There is enough in the evidence to demonstrate that the questioned property under this litigation as well as the residential place situated in the north portion (presently occupied by the youngest son Rajkamal with the second appellant Smt. Gyandhari) was given in the share of Smt. Gyandhari, while east portion of such very old Haveli fell in the share of Smt. Magan Devi. After reconstruction in the lifetime of Sri Ratan Lal and Sri Phool Chand, the shape of this whole property, in due course of time, was converted in such a manner as to build three south road facing shops in the share of Smt. Gyandhari and one or two south facing shops in the share of Smt. Magan Devi. Further, when these three shops were handed over in the possession of Ram Avtar to carry on the business of fodder, grains and other co-related items, he converted the shape thereof in such a manner so that to make it two shops covered by three shutters and these shops are clearly visible in the photographs available on the record of Original Suit No. 101/2008 as Paper No. 30Ga/1 to 30Ga/5.
45. During the course of time, Sri Ratan Lal left this mortal world in 1983 leaving his wife Smt. Gyandhari and five sons along with their respective families. Now, the quarrel began rise as regards these properties, polluting the atmosphere of mutual love and understanding making all these brethren envious to each other and the subject matter of this whole environment was the different properties including the property in dispute left by Sri Ratan Lal Ji.
6. The core question wherearound the whole controversy revolves is whether the sale deed dated 5.8.1955 was got executed by paying a consideration of rupees three thousand from the earnings of the joint family of Sri Ratan Lal and Sri Phool Chand under the supervision of their father Sri Chetan Das or was it purchased from the Stridhan of these two ladies Smt. Gyandhari and Smt. Magan Devi? The version of Smt. Gyandhari is that such property was purchased out of the consideration which she paid from her Stridhan. So, she was the absolute owner of her share fallen after the partition on 17.2.1965 and this position is still subsisting today and being such owner, the property in question was given to Ram Avtar by her as a licensee to carry on his business. Per contra, the version of Ram Avtar (respondent herein) is that, in fact, the sale deed dated 5.8.1955 was not executed out of any Stridhan, but from the income of the joint business of his father Sri Ratan Lal along with his uncle Sri Phool Chand under the care and supervision of his grandfather Sri Chetan Das, and that being the situation, his mother Smt. Gyandhari was simply a benamider and the real owner of the whole share which fallen out of the division on 17.2.1965 was his father Sri Ratan Lal and during whose lifetime, all the 5 brothers resided in the same house (presently occupied by Rajkamal along with Smt. Gyandhari) and as they reached to their marriageable age, it became indispensable for their father Sri Ratan Lal to settle his each and every son for their independent life and this duty was discharged by him by allocating the various shops, which he could acquire out of his business income. In that course, Ram Avtar was given the present shops for carrying on and advancement of his business of food grains and fodder. With the passage of time, all the sons except Rajkamal could be able to construct their own houses in different parts of Haridwar city and gradually moved to their respective newly constructed and acquired houses. At the time of death of Sri Ratan Lal in 1983, it is obvious that Rajkamal (born in 1967) was pursuing his studies. So, he was not capable to start and run his independent business.
7. All these details, as clarified above, have been deposed by Smt. Gyandhari herself in her cross- examination on dated 30.9.2011, wherein she has stated that "........Jawahar Lal, Rajendra and Rajkamal are doing their business in their respective shops ever since the lifetime of my husband. There was a settlement within the four walls of the house allocating the shops to each and every son indicating a particular shop for each one of them to start/carry on and advancement of their respective businesses. The son, who is running a particular shop, is taking the income of the same. None is giving anything to me. This family settlement was done more than 20 years ago, determining as to which shop will be run by which son. Rajkamal was pursuing his studies at that time. But the shop allocated for him was given in his possession eight years ago."
68. This statement of Smt. Gyandhari is supported by other independent witnesses Rajkumar Yadav, aged about 62 years, and Ashok Kumar Gupta, aged about 57 years, who are well acquainted with the whole family structure and their properties. They accept this settlement in their family. This family settlement has also been accepted by one of the brothers Rajendra Prasad in his deposition before the Court. The only denial is from Smt. Gyandhari and Rajkamal (the youngest son). Statement of Smt. Gyandhari denying the family settlement is away from any truth and it is very easy to discern that her statement is not an independent one. She is only the face while deposing before the Court, and her making such statement is completely under the pressure of her own son Rajkamal, who was standing close to her at the time of deposition before the Court and this helpless position of the octogenarian lady creating the constraints for her not to reveal the truth while standing in the witness box because she is dependent for everything on his youngest son Rajkamal and his wife Smt. Vishakha. Her deposition was within his hearing, as has been recorded by the Court, because he was standing just behind her. Her constraints have gone to the extent that she has been made so helpless as to put her signature at the desire of Rajkamal and his wife Smt. Vishakha. That is why they (Rajkamal and Smt. Vishakha) have been successful in getting the mock sale deed dated 6.11.2006 in their absolute names from Smt. Gyandhari for a fake monetary consideration of rupees six lakhs. This sale deed pertains to the house which was once the part of Haveli and fallen in the share of Smt. Gyandhari after partition. That apart, a notarised Will dated 14.7.2010 has also been filed to show that all remaining properties, besides this house, have also been indicated in such 7 bequeath whereon she has been forced to sign at the behest of Rajkamal. These three shops are occupied presently by Jawahar Lal, Rajendra Prasad and Rajkamal, as has been stated by Smt. Gyandhari in her deposition. In addition to, one house which is situated in Kuttimaran Mohalla and was constructed by her husband, and she claims to be the owner of the same, has also been made the subject matter of such Will. But nonetheless she could not conceal the truth of family settlement as indicated above for the simple reason that she was unaware of the legal implications of her such deposition regarding that aspect.
9. Now, still the question remains as regards the finding of the Court whether the purchase of whole Haveli on dated 5.8.1955 was made by paying the consideration out of the Stridhan of these two ladies or out of the joint family income from the business carried on by Sri Ratan Lal and Sri Phool Chand (real brothers)?
10. It has been on the record that Smt. Gyandhari was married in 1949. It has never been in practice in the Indian society, much less in those conservative days, to sell out the ornaments and jewelleries of newly wedded respective wives in order to purchase this old Haveli because at the most, the jewelleries/ornaments, which either the father of Smt. Gyandhari or her father-in-law offered to her as gift, were the sole Stridhan and the economic status of a person, who was running a shop of flourmill was not of such a potency as to evoke the parents of Smt. Gyandhari to offer a huge cash. More so, Smt. Gyandhari herself is not in remembrance as to how much cash was gifted by her own parents as Stridhan at the time of her marriage. The whole evidence and circumstances are speaking in volumes that the sale deed dated 5.8.1955 was 8 got executed by the joint family income earned by the brothers duo (their husbands) from their common business of the shop of flourmill and out of respect and love, their names were countenanced as ostensible purchasers. Therefore, Smt. Gyandhari along with another lady Smt. Magan Devi were simply the benamiders. The real owners of the property, in question, were Sri Ratan Lal and his brother Phool Chand. After the partition as aforementioned the property was divided in two almost equal shares. Thus after the death of Sri Ratan Lal, the same shall be succeeded as per the provisions of Hindu Succession Act. However, even before that, during his lifetime, the family settlement has completely taken place on the basis of those times prevailing circumstances because Sri Ratan Lal had to settle his every son, who had attained the age of majority/marriageable age in order to lead independent life and, out of that family settlement, these shops were allocated to Ram Avtar, whereon he is carrying on the business since 1990. This fact has been accepted by all the witnesses except Rajkamal and Smt. Gyandhari, nay the written papers like 11C-1, which is the Sales Tax Registration in the name of Ram Avtar and Amit Kumar since 25.6.1990 of the shop in question, and the Paper No. 12C-1, which is one-time license issued by the Regional Marketing Officer on dated 21.2.1998 authorising Ram Avtar to carry on the business of food grains, pulses and vegetable oils in the shop, are also strengthening the above position.
11. So, the substantial question of law, as has been formulated, is answered to the effect that the burden of proving the transaction dated 5.8.1955 to be benami in nature was on Ram Avtar, which he has discharged 9 affirmatively showing all these circumstances accordingly. And on the other hand, Smt. Gyandhari could not show anything to discharge her onus that such sale deed was got executed out of the consideration of her absolute Stridhan.
12. Before departing, it is desirable to make it clear that the observation of this Court regarding the mock sale deed dated 6.11.2006 and the notarised Will dated 14.7.2010 pertaining to the house in Kuttimaran and other properties have been made eventually for the reason that these papers were submitted on the record obviously at the instance of Rajkamal and to show the fidelity of Smt. Gyandhari to him and his wife and in the future, if any litigation is cropped up between the brothers regarding these two papers, then the same shall be adjudicated by any Court on its own merits without having least regard to the observation of this Court on these two documents.
13. All told, I feel that the learned Civil Judge could not appreciate the controversy between the parties and her findings were not in consonance with the evidence available on the record, whereas there is no infirmity in the judgment and order under challenge. As a consequence, both these appeals are hereby dismissed with costs throughout. Let the lower court records be sent back.
(Servesh Kumar Gupta, J.) Prabodh