Delhi High Court
Hari Krishan Dass vs Jai Krishan Dass on 1 July, 1996
Equivalent citations: 1996IIIAD(DELHI)920, 1996(38)DRJ597
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
1. The question that has arisen for consideration is whether the 15 items of properties, mentioned in the list filed by first defendant Jai Kishan Dass on 9.8.1982 i.e. 14 years ago are joint family properties available for partition.
2. In this suit a preliminary decree was passed on 17th of May 1979 in respect of properties that were subject matter of the suit. The parties were given liberty of claiming rights in any other items of properties left out in the suit. The idea apparently was that if there were any other properties remaining undivided they could also be brought into the common pool and divided, instead of parties launching fresh litigations. But Jai Kishan Dass has determined not to allow the litigation to see the end and he has been filing applications after applications, which are wholly frivolous and in spite of orders being against him, even though vanquished he would still file applications for the same relief.
3. A perusal of the order passed by this Court, in particular, order of D.R. Khanna, J. and order of Y.K. Sabharwal, J. would show how adamant he is in his un reasonable stand. He does not seem to relent. Reverting from a slight digression to the brass tacks, on 27.7.82 this Court gave an opportunity to the parties to file a list of properties, which according to them are partible. Other parties did not give any list and as I had mentioned Jai Kishan Dass alone filed a list on 9.8.1982 without giving any details. He would take out summons to banks and other institutions without giving particulars and he would instruct his counsel to ask for adjournments on some pretext or the other. At long last, the matter was taken up for trial to adjudicate on the question.
4. 12 years after he filed the list he filed an affidavit and that too after orders were passed by this Court in this behalf directing the parties to file affidavits.
5. Orders passed by D.R. Khanna, J. bring out the position of the family and the position of Jai Kishan Dass. I do not want to recount the history of the family because that will be a repeat performance of what Hon'ble Mr. Justice D.R. Khanna had done. In the affidavit filed by Jai Kishan Dass, defendant No. 1, he has referred to the 15 items of properties. He has not given details as to how, according to him, they are partible. The 15 items, mentioned by the first defendant Jai Kishan Dass, are as follows :-
1(a) Business concerned M/s. Bhagwan Dass Babu Ram later re-named as Victor Cables Corporation which was sold for Rs. 60 Lacs on 1.4.1980.
(b) Factory Aggarwal Hosiery Mills, later known as Standard Insulated Cables and finally known as Victor Cables Corporation.
2. Property situated at 5775 Sadar Bazar, Delhi, purchased in the name Smt. Ram Kala Devi alias Kalawati which was sold for Rs. 48,000/-.
3. Property at 795 - 809 Joshi Road, Karolbagh, Delhi. Suit No. 754/79 "Uma Devi v. Vimla Devi and Ors." is pending in this High Court.
4. Property situated at 38 Ratendon Road (Amrita Sher Gill Marg) New Delhi.
Suit No. 127 of 1980 "Chander Krishan Gupta v. Brij Krishan Gupta and Ors." is pending in this High Court.
5. Plot No. ) - 2, Block B-II, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi.
Suit No. 236 of 1976 "Hari Krishan Gupta v. Brij Krishan Gupta and Ors. is pending in this High Court.
6. Property situated at D-7 Kalindi Colony New Delhi in the name of Smt. Uma Devi wife of Hari Krishan Gupta, plaintiff.
7. Flat No. 401 Kanchenjunga Building, 18 Barakhamba Road New Delhi in the name of Smt. Uma Devi.
8. Land situated at Meola Maharajpur, Tehsil Ballabgarh District Gurgaon, in the names S/Smt. Uma Devi, Vimla Devi late Jaswanti Gupta mother of Balraj Krishan, Sheela Gupta and Autar Krishan.
9. Orchards at village Sadora Kalan, Subzimandi, Delhi. This land is acquired by the Government of India, 10(a) The business concern M/s. Alcan Power Cables Ltd., at Chiranjit Towers, Nehru Place, New Delhi in the name of Shri Chander Krishan Gupta.
10(b) the factory at Matsya Industrial Estate, Alwar, started in the name Alcan Power Cables Ltd., by Chander Krishan.
11. The flat No. 1410 on 14th Floor, Chiranjit Towers, Nehru Place, New Delhi, in the name of Smt. Sheela Gupta wife of Shri Chander Krishan Gupta.
12. The business "concern M/s. Alka International at 37 Netaji Subhash Marg, New Delhi, started by Autar Krishan and others.
13. The business concern Pamia Lal Girdhar Lal situated at 5718, Sadar Bazar, Delhi.
Suit No. 234 of 1976 is pending in this High Court, "Hari Krishan Gupta v. Balkishan Das and Ors.."
14. The factory under the name and style Krishna Cold & Silver Thread Mills at 2153 Turkman Gate Delhi later named Panna Lal Girdhari Lal (P) Ltd.,
15. The jewellery and silver, utensils. A part of the said jewellery and utensils are lying in the lockers of Delhi Safe Deposit Co. Ltd., Janpath, New Delhi and in the lockers of Bank of India (branch) Chandni Chowk, Delhi.
The keys of the above said lockers are in possession of Shri Autar Krishan Gupta according to information.
16. On 28.4.1994 Chandra K. Gupta, defendant No. 4 filed his affidavit repudiating the claim of the first defendant. The wife of defendant No. 4 Smt. Sheela Gupta, 9th defendant filed an affidavit on 28.4.19 claiming the rights in the properties mentioned in her affidavit and all those items were acquired by her.
17. On 19.5.1994 Uma Devi, defendant No. 8, wife of the plaintiff Hari Kishan Gupta filed her affidavit.
18. On 21.5.1994 Balraj Kishan Gupta, defendant No. 3(a) son of Gopal Krishan Gupta filed his affidavit.
19. On 6.9.1994 Smt. Swarna Gupta, defendant No. 6 filed her affidavit.
20. On 7.9.1994 Brij Kishan Gupta, defendant No. 2, who is supporting the first defendant, filed his affidavit which was reaffirmed on 15.2.1995.
21. Dr. Avtar Gupta, defendant No. 5 filed his affidavit on 11.3.1995.
22. On 11.3.1996 Sheela Gupta, defendant No. 9 filed a set of documents tendering the documents in evidence to prove her case in support of the averments in the affidavit by her on 28.4.1994.
23. On 20.3.1996 Chander K. Gupta, defendant No. 4, filed documents in support of his averments in the affidavit dated 28.4.1994.
24. On 25.3.1996 Uma Devi, defendant No. 8 wife of Hari Kishan Gupta plaintiff filed documents in support of her averments in the affidavit filed on 19.5.1994.
25. Except the first defendant no other party had chosen to give oral evidence.
26. It is well settled that the person claiming the properties to be joint family properties must establish the nucleus, the position of the family, income and expenditure and the availability of surplus for acquisition of property and then only the burden would shift to the person in whose name the property was purchased.
27. I shall deal with the authorities cited at the Bar a little later.
28. I shall take up the items mentioned in the affidavit of Jai Kishan Das and to consider each of the items in the light of the evidence adduced by him and the documents filed by him.
29. Item No. 1 business concern M/s. Bhagwan Das Babu Ram, situated at 5775, Sadar Bazar, Delhi, which was renamed as Victor Cables Corporation, what he has stated in the affidavit is as follows :-
"A(b) The factory under the name and style Aggarwal Hosiery Mills at 802 Joshi Road, Karolbagh, New Delhi, was re-named Standard Insulated Cables and again it was re-named Victor Cables Corporation. B. The above business concern and its factory stated above were acquired/purchased for Rs. 93,000/- on or about 1.10.1955, from Panna Lal Girdhari Lal. C. The above business concern M/s, Bhagwan Das Babu Ram owning its factory Aggarwal Hosiery Mills, were purchased acquired by L. Balkishan Dass as Karta of his H.U.F. consisting of himself, his wife Smt. Ram Kala Devi and six sons; Jai Krishna Das, Hari Krishan, Brij Krishan, Gopal Krishan, Chander Krishan and Autar Krishan and owned by them.
"The capital contribution Rs. 93,000/- approx. having been made out of the Joint Hindu Family funds" admitted in alleged partnership deed dated 1.1.1958.
The above H.U.F. properties concern Bhagwan Das. Babu Ram and its factory Aggarwal Hosiery Mills were converted into partnership concern. L. Balkishan Das, Hari Krishan, Brij Krishan, Chander Krishan and Autar Krishan became its partners to the exclusion of jai Krishna Das, defendant No. 1, who is an Electrical and Mechanical Engineer from B.H.U. whereas Hari Krishan was an employee of M/s Panna Lal and Autar Krishan a doctor.
D. The documents and accounts books are in possession of the plaintiff and or other defendants excluding Jai Krishan Das. E. Title document; partnership deed dated 30.12.1955.
F. Title document; deed dated 30.12.1955 and 1.1.1955 are not in possession of this defendant No. 1. G. The title documents; partnership deeds are in possession of the plaintiff and or other defendants excluding Jai Krishna Das. H. The above properties are the subject matter of this suit No. 235 of 1976."
30. It may be noticed that he has not mentioned about the assets owned by the joint family inspite of the fact that there were some items of properties with reference to which on 17.7.1979 a preliminary decree had been passed. He does not give any details as to what was the income from the properties on the date of the acquisition of the items mentioned by him and what was the expenditure of the family. The avocation by the members of the family is not mentioned by him. He has not pin pointed the surplus available on the date of the acquisition in the family for purchase of property. His only point is that all the documents and properties are in possession of the other defendants and the plaintiff and he had been completely excluded and, therefore it is, according to him he had filed an application in the year 1991 serving interrogatories on the other defendants and the plaintiff.
31. In the chief examination he would state that the 15 items of properties were purchased out of the funds of Bal Kishan Das HUF. He had filed I.A.10251/91 for the purpose of serving interrogatories. The following answer given by him to question No. 6 would show that he has absolutely nothing to prove his case:-
Q.6. Can you say anything else in support of your case?
Ans. I can say that if the answer to interrogatories served on plaintiff and other defendants is given by them it shall prove that these properties were purchased from Bal Kishan Dass HUF. To question No. 7, he would answer :-
Q.7. Anything else with regards to 15 properties would you like to tell the Court?
Ans. With regard to these 15 properties, which are subject matter of trial, I got my right, title, interest and share in these properties and my share is being enjoyed by the plaintiff and other defendants and my family is suffering and I am not able to have treatment for my disease.
32. He would state that if the application for serving interrogatories is ordered, then it will solve his problem. He was elaborately cross examined by the learned senior counsel Mr. Arun Mohan. About the earlier litigations, he would give very evasive answers. I found him to be a person who is not telling us the truth. He has been nurturing grievances against other defendants except the second defendant, who was supporting him. His demeanour and deportment was quite unsatisfactory. He would admit that he was a drop out from Benaras Hindu University. To question No. 37 he would give a very curious answer which cannot be accepted from a person, if he is serious about laying claim to the properties.
"Q.37. Can you deny the suggestion that in respect of the 15 properties being claimed by you, any income has ever been assessed by the Department as being that of the HUF, and similarly none of these properties have been assessed as being that of the HUF for wealth tax purpose either? Ans. I am not aware that the assessment was made regarding these properties in Income Tax or Wealth Tax."
To question No. 38 he would give an answer which shows that he had not even cared to see Uma Devi's affidavit. He admits that he was isolated from the joint family but he was not able to recollect the exact year in which he was isolated. Question No. 44 is relevant and the answer would show that the first defendant is speculating. When asked whether there was any partition effected by his father Bal Kishan Dass, his answer is he cannot say anything about it. He was specifically asked that there was a partition effected by the father Bal Kishan Dass on 9.7.1960. His answer is that he was not a party to it and if there had been a partition he would have got his share. Again, about the income tax assessments with reference to 15 properties, he would give a very evasive reply.
Q.49. I put it to you that even in Income Tax the 15 properties that you are alleging to be Bal Kishan Dass HUF have been assessed in the income tax as individuals properties. Are you aware of it?
Ans. I am not concerned with it.
33. About the property bearing 795 to 809 Joshi Road, the following questions and answers would prove the hollowness of the claim of the first defendant :-
Q.52. Can you deny the fact that property bearing Municipal No. 795 to 809 at Joshi Road was purchased by a sale deed dated 29.11.57 by Ms. Uma Devi, Ms Jaswanti Devi and Ms Bimla Devi? Ans. So far as the property at Joshi Road, Karol Bagh, New Delhi Nos. 795, to 809 is concerned, the original deeds and documents are in possession of the plaintiff and other defendants. So what I say is that these properties were purchased from the funds of Bhagwan Dass Babu Ram which was purchased in the year 1955 for about Rs. 93,000/- financed by Bal Kishan Dass HUF. Therefore, these properties belong to Bal Kishan Dass HUF. Q.53. Kindly examine para 6.1.3 (PP5:017) of Uma Devi's affidavit giving details of the pay orders by which money for the purchase of this property was paid by her in the year 1957. Can you deny the same and if so please state by which cheques pay orders was the money paid, as claimed by you?
Ans. It is their personal concern and I do not know how the payments were made. Accounts books are with them. Q.54. I put it to you that this property was mutated in her favour and also assessed by the Income Tax Department for income tax and sales tax as her's from 1957 till date. Can you contradict so and if so, state when and how they were assessed as that of any HUF? Ans. I have already answered this question before and I am not concerned who is assessed or not assessed. It is their individual concern and not my and not my concern. Q.55. In your suit No. 154/67 (originally filed in 1961) you had sought relief for this property, which claim of yours was denied and it was assessed in April 1962 that his belong to this and not HUF. Can you state any reason why you did not bring any suit within 12 years thereof? Ans. I filed a suit No. 317/61. That was transferred in the High Court of Delhi and marked suit No. 154/67. That bigger suit which was against the larger HUF Panna Lal Girdhar Lal and in that suit I have claimed relief that right, interest, title and share in those properties, which were suit annexed with suit No. 154/67, may kindly be declared and as alleged by counsel for the plaintiff if Uma Devi, who is wife of Hari Kishan, has any interest she could have intervened in the suit."
34. About the acquisition of the property of Meola Maharajpur, the witness is hot in a position to give any details. His following answers show that without any materials he has been frivolously making claims :-
Q.56. Agricultural land at Meola Maharajpur was purchased with the consideration, detailed in paragraphs 2,3 and 4 (PP5:022). Do you contradict the details? If so, please state how was the money paid?
Ans. These are their own manipulations and calculations. I am not concerned with them.
Q.57. Plot at .C-5, N.D.S.E. Part II, New Delhi, which was purchased on 30.9.64, how was it paid for and in what manner? Ans. The original documents have not been produced by them and plaintiff is not justified in putting the question to me. Q.58. I put it to you that this plot was paid for in the manner detailed in para 14 (PP:015). Do you contradict the same? Ans. Again, I submit that it is their manipulations in their books of accounts. I am not informed when and how it was purchased. Q.59. I put it to you that property No. C-5, N.D.S.E. Part II was sold on 2/3.6.67 and with the sale proceeds thereof and certain moneys added, property No. D-7, Kalindi Colony was purchased on the same day (3.6.67) by Uma Devi, as detailed in paragraphs 3 and 4 (PP5:024). Do you contradict that, and if so, please state the particulars of any payment that any HUF might have made for it? Ans. According to the statement given by her and according to the affidavit given by her, in her affidavit she has stated as far as they remember that the property D-7 Kalindi Colony was acquired or she spent Rs. 5 lakhs but here she says that the property at D-7 Kalindi Colony was built or acquired for Rs. 5 lakhs. The details given in that page I do not accept, though I am not aware of it. The moneys had come from Bal Kishan Dass HUF.
35. When asked about Pusa Road property and Darya Ganj property that they had been included in assessment of Bal Kishan Das HUF, defendant No. 1 would admit that they were assessed in the name of Balkishan Das HUF. Therefore, the witness was fully aware of the assessment being made in respect of the properties of the joint family and properties assessed belonging to the other defendants. He was also asked that Joshi Road or Kalindi properties were not included in the assessment he gives a reply which shows desperateness for him. He says that he was never associated and, therefore, he did not know. He admits that he made complaints to the Income Tax Department.
37. He was specifically asked about the payments made by the HUF for 38, Retandon Road property. He asserted that it was Balkishan Das HUF which purchased and financed for the property. It was renamed as Victor Cables Corporation and that there was no other source from which anybody could have purchased the property. If this is the nature of the evidence to claim immovable properties, I am afraid, the first defendant is trying to establish law of his own. From the earlier proceedings, it came to light that the first defendant had filed a petition under the Delhi Shops & Establishment Act, 1954, against Panna Lal Girdhar Lal as he was an employee therein. One would expect him to either admit the fact and also give us the details about the petition so that this Court could appreciate the jural relationship between Panna Lal Girdhar Lal and the first defendant. But what he would say is that he does not remember and that has nothing to do with the partition sought for in this suit. Therefore, the evidence of such a person cannot be taken without a pinch of salt. He was asked about the properties in his name and in the name of his son Raj Krishan Das, he became very furious and would say that he purchased from his own funds and his son purchased his property from his own money and these items were not subject matter of the suit. What is sought to be elicited from him is that if he is claiming properties in the names of the wives of other brothers and other brothers the properties in his names and in the names of his son and daughter should also be brought into the hotchpot, if his theory of purchases from out of the common funds of the family is true.
38. When he was asked about the total income tax paid by him between 1950 to 1960 and 1970 to 1980, the answer is that he does not remember. He was asked about the proof of his claim, he would again state that the interrogatories are the answer.
Q.83. Apart from your oral statement do you have any other proof in support of your claim that properties being claimed by you, are that all HUF and were purchased from the funds of the HUF?
Ans. I again repeat that I have given the proof in the interrogatories served on them which they have not answered so far in spite pf repeated orders of this Hon'ble Court. Secondly I have filed an application that the parties, plaintiff and other defendants, who are in possession of the original documents they should file and produce those documents in court whereas I have filed the list of documents some of these are certified copies rest uncertified copies and these are in the court record. List of documents and documents are in court file part III. So on my part I have filed the documents whether they are certified copies or un-certified copies.
39. Mr. S.P. Aggarwal, learned senior counsel for Brij Krishan Gupta, the second defendant, asked few questions in the cross examination in his attempt to get some material in favour of the first defendant and the second defendant. The first defendant could not appreciate and gave again answers which could not be understood by anybody.
40. Mr. M.N. Krishnamani, learned senior counsel cross-examined Jai Krishan Das on behalf of defendants No. 3A, 5 and 6. He admits that about Joshi Road property he gave a complaint and that was rejected by the Income Tax Department, even though the suggestion was denied by him. He would even go to the extent of denying his filing an application in suit No. 412/75 which related to the firm Victor Cables Corporation and which was rejected.
41. Then Mr. J.P. Gupta, learned counsel for defendants 4 and 9 cross-examined the witness. He would admit that for the first time after his being isolated in 1961 he claims that partnership belonging to HUF and he admits that suit No. 154/67 was dismissed upto the Supreme Court.
42. On 11.3.1996, 4th defendant Chander Krishan Gupta filed an affidavit filing list of accounts books of Bhagwan Das Babu Ram/Victor Cables Corporation and photostat copies of the Mundi Scripts relating to Uma Devi, Vimla Devi, Jaswanti Devi, Sheela Devi and Swarn Devi. These documents have been filed to show that the ladies were depositing monies in Bhagwan Das Babu Ram/Victor Cables Corporation and the firm used to deduct income tax at source on the interests paid to them. On the same date, the second defendant Brij Krishan Gupta filed an affidavit along with the list of documents. He filed photostat copies of the partnership deed dated 30th day of December 1955 and partnership deed dated 30th of April 1973. The document is of 1955 prior to 1961 and the 1973 documents have been considered by this Court in the earlier orders and these documents filed by the second defendant do not throw any light to come to any decision about the character of the 15 items under consideration.
43. The first defendant sought to examine some telegram and he sought to examine Om Pal Singh, Town Inspector, Department of Posts & Telegraph. He said that he was not able to get any document because no particulars are given. I noted the following on that date :-
"The learned counsel for the first defendant when seeking to issue summons to the witness to the Superintendent Incharge, DTO, Delhi mentioned as witness No. 14 in the summons, has written "Clerk concerned records pertaining to telegram, Kashmere Gate, Delhi."
This shows how without any regard for the Court and just for the purpose of asking for time the first defendant had taken out summons.
44. On 12.3.1996 the first defendant sought to examine D.W.2 who ha come to Court but not available for examination. In the list of witnesses given by the first defendant, the serial number is 13. To find out how the first defendant had described about D.W.2 and what sorts of documents he wanted D.W.2 to produce I perused the list. This also shows how vague the summons is. This only demonstrates that the first defendant was not really interested in getting relevant documents. He was fully aware that no document would be available. I noted the following on that date with reference to D.W.2 :-
"Learned counsel for the first defendant, when seeking to issue summons to the witness No. 13, it is mentioned as follows :-
"Clerk concerned, Mohan Cooperative Industrial Estate Limited, Mohan Singh Building, Shankar Market, Connaught Place, New Delhi."
The learned counsel for the first defendant seeks to have it on some other day for examination on his behalf."
45. Sh. Dhanbir Singh, Cashier-cum-clerk, Allahabad Bank was examined as D.W.3 on 12.3.1996. The photostat copies of certain statements of accounts and the following documents were marked through him :-
1. Ex.DW3/1 statement of account relating to the year 1971.
2. Ex.DW3/2 statement of account for the year 1959 relating to Mrs. Urmila Devi.
3. Ex.DW3/3 statement of account relating to Gopal Krishan Gupta for the year 1973.
4. Ex.DW3/4 statement of account relating to Urmila Devi for the year 1957.
5. Ex.DW.3/5 statement of account relating to the year 1957 in respect of Bhagwan Dass Babu Ram.
6. Ex.DW.3/6 statement of account relating to Hari Krishan Dass relating to 1957. The second sheet in Ex. DW.3/6 would relate to the year 1958.
7. Ex.DW.3/7 relates to Brij Krishan Gupta for the year 1957.
8. Ex.DW3/8 relates to Brij Krishan Gupta for the year 1958.
9. Ex.DW.3/9 relates to Bhagwan Dass Babu Ram for the year 1959.
10. Ex.DW.3/10 is in relation to Uma Devi for the year 1957.
11. Ex.DW.3/11 in relation to Uma Devi is for the year 1957.
12. Ex.DW3/12 a copy of the ledger account of the firm Panna Lal Girdhar Lal of the opening sheet dated 11.9.73.
13. Ex.DW.3/13 is the cash credit current account of Panna Lal Girdhar Lal.
14. Ex.DW.3/14 again cash credit ledger account of Panna Lal Girdhar Lal.
It is noted that all these documents marked today are photostat copies and the learned counsel for the first defendant represented that the certified copies re on record in suit No. 154/67 which has been disposed of. It is not shown as to how these documents are of any help to the first defendant with reference to the 15 items.
46. On 22.3.1996 Dhanbir Singh, a clerk from Allahabad Bank, Basandra Enclave, New Delhi was examined as D1W2. It appears the same man D.W.3 has again been examined. The first defendant marked Ex.D1W2/1 to D1W2/13. The marking of these documents were opposed. In the summons issued, it was not specified what are the documents to be brought by the witness. In the cross-examination, the witness would admit that he was not in a position to identify the signatures because he joined the bank only in 1986. Documents Ex.D1W2/1 to D1W/13 do not throw any light on the question on issue.
47. The same pattern is adopted by the first defendant with reference to the other 14 items in the affidavit filed by him. They are as follows:-
"Item No. II.
A. Property situated at 5775, Sadar Bazar, Delhi.
B. This property was purchased/ acquired on or about dated 24.12.1960 for Rs. 25,000.00 and sold for Rs. 48,000.00 on or about July, 1970, to S/Shri Tilak Raj, Kedar Nath Om Prakash sons of Shri Chunni Lal, 1/26th Kirti Nagar, New Delhi. C. This property was acquired/purchased in the name of Smt. Ram Kala Devi wife of L. Balkishan Das. D. Purchased by sale deed dated 24.12.1960 and registered on 9.1.1961. E. The date of the title document which came in to existence maybe 9.1.1961. Exact date is not known. F. The documents are not in possession of this defendant No. 1. G. The documents may be in possession of the plaintiff or other defendants. H. This property is the subject matter of suit No. 235 of 76 pending in this Hon'ble Court.
Item No. III.
A. Property is situated at 795-809 Joshi Road, Karolbagh, New Delhi, and was in possession of business concern M/s Bhagwan Das Babu Ram having their factory Aggarwal Hosiery Mills at this place as tenants of M/s. Kanji Mal and Sons since long back about 1940/41 or earlier according to information received and believed to be true. B. This property was purchased/acquired on or about 29th November, 1957 for Rs. 60,000/- in the names of the wives of the alleged partners of M/s. Bhagwan Das Babu Ram Hari Krishan, Brij Krishan, Gopal Krishan, later on wives of Chander Krishan and Autar Krishan were also taken as co-owners, to the exclusion deprive co-ownership rights to Jai Krishan Dass or his wife. C. The funds of Bhagwan Das Babu Ram later known as Victor Cables Corporation which is owned by Balkishan Das HUF, were utilised to acquire this property. D. The deeds and documents are in possession of the plaintiff and other defendants and or their wives.
E. Date of the title document which came in to existence can be given by the plaintiff and other defendants (excluding Jai Krishna Das-) or their wives.
F. The title document are not in possession of this defendant.
G. The documents may be in possession of the plaintiff and other defendant and their wives.
H. This property is the subject mater of this suit No. 235 of 1976 Hari Krishan Gupta v. Jai Krishan Das and Ors. Suit No. 754 of 1979 "Uma Devi v. Vimla Devi and Ors." is also pending in this High Court.
Smt. Uma Devi is the wife of Shri Hari Krishan.
Smt. Vimla Devi is the wife of Shri Brij Krishan.
Smt. Sheela Gupta is the wife of Chander Krishan.
Smt. Swarna Gupta is the wife of Autar Krishan.
Shri Balraj Krishan and Anjali Gupta are the legal heirs of late Smt. Jaswanti Gupta wife of Late Gopal Krishan and others.
Item No. IV A. This property is situated at 38 Ratendon Road (Amrita Sher Gill Marg) New Delhi.
B. This property was purchased/ acquired on or about 1.2.71 for Rs. 3,50,000.00.
C. This property was purchased/ acquired from the funds of Victor Cables Corporation, a Balkishan Das HUF concern, earlier known as Bhagwan Das Babu Ram, in the names of Hari Krishan, Brij Krishan, Gopal Krishan, Chander Krishan and Autar Krishan, sons of L. Balkishan Das to the exclusion of his son Jai Krishna Das, defendant No. 1, to deprive him of his co-ownership rights in this property. D. The sale deed was made on 1st February, 1971. E. Date of the title deed/document which came into existence is known to the plaintiff and other defendants, excluding Jai Krishna Das, defendant No. 1. F. The title document are not in possession of this defendant No. 1. G. The title deed and documents are in possession of the plaintiff and other defendants excluding defendant No. 1. H. The suit with respect to this property No. 127/80 is pending in this High Court. The property is also the subject matter to this suit No. 235/76 Hari Krishan Gupta v. Jai Krishna Das and Ors. Item No. V. A. Plot of land No. O-2, Block B- II, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi. B. The above plot of land was allotted in the name of Shri Brij Krishan Gupta in consideration of Rs. 77,200.00 payment having been made by the Balkishan Das HUF business concern Victor Cables Corporation earlier known M/s. Bhagwan Das Babu Ram, on or about 15.6.63. C. It was acquired/purchased in the name of Shri Brij Krishan Gupta for and on behalf of Balkishan Das HUF. D. The transaction took place on 12.2.63.
E. The title document are not in possession of this defendant No. 1. F. The title document are not in possession of this defendant No. 1. G. The title document maybe in possession of the plaintiff or other defendants. H. The suit No. 236/76 Hari Krishan Gupta v. Brij Krishan Gupta and others is pending in this High Court. This property is also subject matter of this suit No. 235/76 Hari Krishan Gupta v. Jai Krishna Das & Ors. Item No. VI.
A. Property situated at D/7 Kalindi Colony New Delhi.
B. This property was occupied on or about 1978/79, exact date not known to this defendant No. 1, Jai Krishna Das, by Hari Krishan Gupta - plaintiff and his wife Smt. Uma Devi and their children. C. Balkishan Das H.U.F. funds were utilised, got from Victor Cables Corporation originally known as M/s. Bhagwan Das Babu Ram. Hari Krishan got about Rs. 2514,177.00, Uma Devi got about. Rs. 3,94,970.88, Maharaj Krishan(son) got Rs. 75,315.75 and Divea grand daughter got Rs. 39,163.00. This property is in name of Uma Devi. Thus belongs to Balkishan Das HUF. D. The date on which transaction took place is not known to this defendant No. 1. Account books are in possession of Uma Devi. E. Date of the title document which came into existence is not known to this defendant No. 1.
F. The title documents re not in possession of defendant No. 1. G. The title document may be in possession Smt. Uma Devi. H. This property is the subject matter suit No. 235 of 76 Hari Krishan Gupta v. Jai Krishan Das and Ors. pending in this Court. Item No. VII.
A. Flat No. 401, Kanchenjunga Building, 18 Barakhamba Road, New Delhi.
B. This flat was purchased/acquired in the 1972/73 about, exact date is not known.
C. The funds of the Victor Cables Corporation earlier known Bhagwan Das Babu Ram and owned by Balkishan Das HUF were utilised to purchase this flat for about Rs. 1,25,000.00 in the name of Smt. Uma Devi wife of Shri Hari Krishan. She got about Rs. 3,94,970.88 from Victor Cables Corporation. D. The date on which the transaction took place is not known to this defendant No. 1.
E. Date of the title document that came into existence is not known to this defendant No. 1.
F. The title document is not in possession of this defendant No. 1 G. According to this deponent the document may be in possession of Smt.Uma Devi or any other person. H. This property is the subject matter of suit No. 235/76 "Hari Krishan Gupta v. Jai Krishan Das and Ors. Item No. VIII.
A. Land situated at Village Meola Maharajpur, Tehsil Ballabhgarh, District Gurgaon, Haryana. B. Date of its acquisition 2.11.59.
C. Funds of Balkishan Das HUF business concern Bhagwan Babu Ram later known as Victor Cables Corporation were utilised for the purchase of this land in consideration of Rs. 187,755.00 in the names of S/Smt. Uma Devi w/o Hari Krishan, Vimla Devi w/o Brij Krishan, Jaswanti Gupta w/o Gopal Krishan, Sheela Gupta w/o Chander Krishan and Autar Krishan. D. Transaction took place on or about 2.11.59.
E. Date of the title document 2.11.59.
F. Title deed is not in possession of this defendant No. 1.
G. Title deeds and documents may be in possession of the above said persons, Uma Devi, Vimla Devi, Balraj Krishan son of late Jaswanti Gupta, Sheela Gupta and Autar Krishan. H. This property is subject matter of suit No. 235 of 1976 Hari Krishan Gupta v. Jai Krishan Das and Ors. pending inn this Court. Item No. IX.
A. Orchards at village Sadora Salan, Subzimandi, Delhi.
B. It is an ancestral property date of its acquisition is not known, to this defendant No. 1.
C. Acquired by ancesters.
D. Date of transaction took place not known to this defendant No. 1.
E. Date of title document that came to existence is not known to this defendant No. 1.
F. The title documents are not in possession of this defendant No. 1. This land is acquired by the Government of India. Some of the compensation has been received by this defendant No. 1. For more compensation appeal is pending in Delhi High Court. G. According to this deponent the document should be in possession of the Government of India.
H. An appeal is pending in this High Court at Delhi.
Item No. X.(a) A. The business concern M/s. Alcan Power Cables Ltd., was started at Chiranjit Towers, Nehru Place, New Delhi by Shri Chander Krishan Gupta. B. Date of its acquisition is not known to this defendant No. 1.
C. It was started by Shri Chander Krishan Gupta. The funds of Victor Cables Corporation and HUF business of Balkishan Das HUF were utilised. He got about Rs. 2167050/00 from Victor Cables Corporation according to information received and believed to be true. D. The date of transaction took place is not known to this defendant.
E. Not known to this defendant No. 1.
F. The documents are not in possession of this defendant No. 1.
G. According to this deponent the documents my be in possession of Chander Krishan.
H. This firm is the subject matter of this suit No. 235 of 76 "Hari Krishan Gupta v. Jai Krishan Das and Ors. Item No. X(b).
A. The factory under the name and style Alcan Power Cables Ltd., situated at Matsya Industrial Estate, Alwar, Rajasthan. B. Date of its acquisition is not known.
C. The factory was started by Chander Krishan Gupta. The funds of Victor Cables Corporation and HUF business concern of Balkishan Das HUF were utilised.
D. Date on which the transaction took place is not known to this defendant No. 1.
E. Date of the title document which came into existence is not known to this defendant No. 1.
F. The title documents re not in possession of this defendant No. 1.
G. According to this deponent the documents may be in possession of Shri Chander Krishan.
H. Suit in respect of this factory is pending in this Court No. 235/76 "Hari Krishan Gupta v. Jai Krishan Das and Ors.. Item No. XI.
A. Flat No. 1410, Chiranjiv Tower, Nehru Place, New Delhi.
B. Date of its acquisition is not known to this defendant No. 1.
C. This flat was purchased in the name of Smt. Sheela Gupta in consideration of Rs. 1,50,000.00 according to information received and believed to be true. The funds of Victor Cables Corporation, an HUF concern of Balkishan Das HUF were utilised for its purchase. She got Rs. 375058.00 (about) from Victor Cables Corporation. D. The date of transaction is not known.
E. The date of the title document that came into existence is not known.
F. The title document is not in possession of this defendant No. 1.
G. The title document may be in possession of Smt. Sheela Gupta.
H. This property is the subject matter of this suit No. 235 of 76 "Hari Kishan Gupta v. Jai Krishan Das and Ors.".
Item No. XII.
A. The business concern of Alka International is at 37 Daryaganj, Delhi.
B. Date of its acquisition is not known to this defendant No. 1. The account books of Alka International is in possession of Shri Autar Krishan.
C. It was started by Shri Autar Krishan and others.
D. Date on which the transaction took place is known to Shri Autar Krishan Gupta.
E. The date of the document that came in existence is known to Shri Autar Krishan Gupta.
F. The title deed is not in possession of this defendant No. 1.
G. The documents are in possession of Shri Autar Krishan Gupta according to information received and believed to be true.
H. This firm is the subject matter of suit No. 235 of 1976 Hari Krishan Gupta v. Jai Krishan Das and Ors.
Item No. XIII A. The business concern Panna Lal Girdhar Lal, an ancestral H.U.F. concern of Panna Lal Girdhar Lal family situated at 5718, Sadar Bazar, Delhi, came to the share of L. Balkishan Das as Karta of his H.U.F, consisting himself, wife Smt. Rama Kala Devi, and six sons; Jai Krishan Das, Hari Krishan, Brij Krishan, Chander Krishan Gopal Krishan and Autar Krishan on partition amongst his brothers; S/Shri Babu Ram, legal representatives Balkishan Das, Banwari Lal Murari Lal and Devi Charan. Shri Babu Ram died on 1.2.71.
B. That the above business concern Panna Lal Girdhar Lal was acquired on or about 23rd March, 1973 according to information received and believed to be true.
C. It was acquired by L. Balkishan Das as karta of his joint Hindu undivided family.
D. The transaction took place on or about 23rd March, 1973 according to information received and believed to true and converted into the partnership concern excluding Jai Krishan Das.
E. Date of the title document which came into existence is not known to this defendant No. 1.
F. The title document is not in possession of this defendant.
G. According to this deponent, it should be in possession of the plaintiff and or other defendants.
H. This firm is the subject matter of this suit No. 235 of 1976 "Hari Krishan Gupta v. Jai Krishan Das and also the subject matter of suit No. 234 of 1976 Hari Krishan Gupta v. Balkrishan Das and Ors. pending in this High Court.
Item No. XIV A. The factory under the name and style Krishna Gold and Silver Thread Mills was an ancestral H.U.F. factory of Panna Lal Girdhari Lal family, situated at 2153 Turkman Gate Delhi, latter known as Panna Lal Girdhar Lal (P) Ltd.
B. The above said factory under the name and style Krishna Gold and Silver Thread Mills came to the share of L. Balkishan Das as karta of HUF on or about 23rd March 1973, from the erst while partners (brothers) of Panna Lal Girdhar Lal, S/Shri Babu Ram's legal representatives, Banwari Lal, Murari Lal and Devi Charan with their mutual agreement amongst themselves.
C. The above factory Krishna Gold and Silver Thread Mills was acquired by L. Balkishan Das as Karta of his Joint Hindu Family, consisting of self, his wife Smt. Ram Kala Devi and his six sons; Jai Krishna Das, Hari Krishan, Brij Krishan, Gopal Krishan, Chander Krishan and Autar Krishan, and later converted it to Panna Lal Girdhar Lal (P) Ltd., Jai Krishna Das was excluded from the said Panna Lal Girdhar Lal (P) Ltd.
D. The transaction took place on or about 23.3.1973 according to information received and believed, to be true.
E. Date of the title document which came into existence is not known to this defendant No. 1.
F. The title document arc not in possession of this defendant No. 1.
G. The title documents are in possession of the plaintiff and or other defendants excluding defendant No. 1.
H. This property is the subject of this suit No. 235 of 76 Hari Krishan Gupta v. Jai Krishna Das and Ors.. Suit No. 234 of 1976 is pending in this High Court "Hari Krishan Gupta v. Balkishan Das and Ors.."
Item No. XV.
A. Jewellery and Silver Utensils. A part of the said Jewellery and Utensils are lying in the lockers Delhi Safe Deposit Co. Ltd., Janpath, New Delhi and in the lockers of Bank of India, (branch) Chandni Chowk, Delhi.
B. Date of acquisition-jeweler and Utensils is not to this defendant No. 1.
C. A part of it was acquired an ancestral property of Panna Lal Girdhar Lal HUF, received by L. Balkishan Das on partition amongst his brothers on or about 1940/41 and the remaining was acquired/purchased from the Balkishan Das HUF funds, from time to time.
D. Dates on which the transaction took place is not known to this defendant.
E. Date of the title document that came into existence is not known to this defendant No. 1.
F. The title documents are not in possession of this defendant No. 1. Some of the Jewellery belonging to the wife of this defendant No. 1 Jai Krishna Das, Smt. Kiran Devi - Gold garment (Long-ka-Har) and tagri studed with precious stones are lying in the above lockers, taken from Smt. Kiran Devi on the pretext of repairs by Smt. Ram Kala Devi, but not returned to her.
G. According to this deponent the keys of the above lockers are in possession of Shri Autar Krishan according to information received and believed to be true.
H. This jewellery and utensils are the subject matter of this suit No. 235.76 Hari Krishan Gupta v. Jai Krishna Das and Ors."
48. In the context to the evidence adduced by the first defendant, the conclusion is irresistible that the first defendant had indulged himself in a very vexatious claim without any regard for truth. The other defendants Nos. 3A, 4, 5, 6, 8 and 9 and the plaintiff have filed documents which go to show that their claims are true. On a perusal of the documents filed by them would show that they had acquired their respective properties from their own resources without any detriment to any joint family members.
49. The first defendant having failed upto the Supreme Court in the earlier suit, has again attempted to resuscitate the dead claims without any justification whatsoever. The documents filed by him and the evidence given by him do not satisfy the requirements of law as laid down by the Privy Council and Their Lordships of the Supreme Court. In Appalaswami v. Suryanarayanamurti and Ors., A.I.R. (34) 1947 Privy Council 189 the Judges of the Privy Council observed "The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
50. The Privy Council approved of a number of judgments of the Bombay High Court and the Madras High Court.
51. In K.V. Narayanaswami Iyer v. K.V. Ramakrishna Iyer and Ors., , on a consideration of the evidence, the Supreme Court held that there was no material to come to the conclusion that the joint family at the date of the acquisitions had any sufficient nucleus from which the properties had been purchased. There also the evidence adduced on behalf of the person claiming the property to be joint did not satisfy the requirements of Hindu Law. In Mudigowda Gowdappa Sankh and Ors. v. Ramchandra Revgowda Sankh (dead) by his legal representatives and Anr., categorically laid down as under :-
"The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate."
52. Their Lordships approved of the decision of the 1947 P.C. 189 (supra). There are numerous authorities on the point and I do not want to deal with each of the cases elaborately. In the cases reported Nagayasami Naidu and Ors. v. Kochadai Naidu and Ors., , C.K. Krishnan v. C.K. Shanmugham and Ors. , Krishnanand v. The State of Madhya Pradesh, and V.M. Mathew v. V.S. Sharma and Ors., , the principles laid down by the Privy Council and the Supreme Court are followed. The statement of law in Hindu Law by Mulla page 259 is clear and it is in the following terms :-
"To render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired (x) or from which the presumption could be drawn that all the property possessed by the family is joint family property (y) or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property (z) or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognizance of a Court in the same way as any other fact, namely, by evidence (a)."
In Hindu Law by N.R. Raghavachariar 8th Edition 1987 in ages 214 to 226 the learned author had referred to all the authorities on the point and there is no need to extract the passages from the text book.
On a consideration of the materials produced by the first defendant and the oral evidence given by him and the documents filed by other defendants and the plaintiff, I have no hesitation, whatsoever, in coming to the conclusion that the first defendant has miserably failed to prove his case.
53. An issue was also framed whether these properties could be joint family properties.
54. I find that on the issue the first defendant Jai Kishan Dass has failed to establish his case and the issue is answered against the first defendant. Consequently, the claim of the first defendant to these 15 items of the properties is rejected. Therefore, there shall be a decree :
(i) directing the dismissal of the claim pl11.5" of the first defendant for a share in these 15 items of properties.
(ii) directing the parties to bear their own costs, except that the first defendant is directed to pay as costs Rs. 15,000/- to the Delhi Legal Aid & Advice Board, High Court Lawyers Chambers, New Delhi, within four weeks from today.
55. It was represented that in suit No.1007/82 the same 15 items are subject matter of that suit. Mr. J.P. Gupta, learned counsel appearing for defendant No. 4 submitted that defendant No. 11 in suit No. 1007/82 had filed I.A. 21/93, to transpose himself as plaintiff as Jai Krishan Dass, as plaintiff in that suit had filed a petition seeking leave to withdraw the suit. In the light of the finding given by me now with reference to 15 items of properties, the application I.A.21/93 in suit No. 1007//82 has to be separately considered. Therefore, post the suit No. 1007/82 and LA. 21/93 for disposal on the 25th of September 1996.
Post the other connected suits on that date for disposal.