Delhi District Court
Santosh Khurana vs Madan Lal Khurana on 3 August, 2017
IN THE COURT OF DR HARDEEP KAUR, ADJ02, SHAHDARA
DISTRICT, KARKARDOOMA COURTS, DELHI
(Civil Suit No. 2304/16)
IN THE MATTER OF:
Santosh Khurana
W/o Tilak Raj Khurana
R/o 242, Jagriti Enclave
Delhi. ............Plaintiff
versus
1.Madan Lal Khurana S/o Tilak Raj Khurana R/o 172, First Floor, Jagriti Enclave Bhartendu Harish Chandra Marg Delhi110092
2. Bindu Khurana w/o Madan Lal Khurana
3. Gagan Khurana (Minor) through his natural guardian and father Sh. Madan Lal Khurana
4. Rahul Khurana (Minor) through his natural guardian and father Sh. Madan Lal Khurana
5. Leena Khurana (Minor) through his natural guardian and father Sh. Madan Lal Khurana ...........Defendants Date of institution : 23.01.2006 Date of judgment: 03.08.2017 Decision : Decreed.
[Suit for possession of immovable property] J U D G M E N T (1) Plaintiff has filed the present suit for possession of CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 1/16 immovable property bearing no. 172 Jagriti Enclave I.P Extension, Delhi against the defendants.
(2) Brief facts of the present suit are that the plaintiff is Senior Citizen aged about 72 years age and her husband is 82 years old. Defendants no. 3 to 5 are minors and are sued through their father and natural guardian. Plaintiff is the owner of immovable property bearing Municipal No. 172 Jagriti Enclave I.P Extension, Delhi consisting of basement, ground floor, first floor and a barsati room and was purchased by virtue of customary documents such as agreement to sell, power of attorney dated 29.12.1983 which was superseded by a Registered Sale deed executed on 05.03.1993 in favour of the plaintiff and thereafter on payment of conversion charges etc. a final conveyance deed dated 12.02.1998 was executed and registered by the DDA in favour of the plaintiff. House tax is regularly paid by the plaintiff.
(3) Defendant no. 1 is the eldest son of the plaintiff. He was married in the year 1988 with defendant no. 2. Due to problem of adjustments, defendant no. 1 and 2 who at the time of their marriage were residing as a family members of the plaintiff, separated from the plaintiff and her family members, in the year 1988 and started living separately in different tenanted accommodations in adjacent colony i.e. Anand Vihar,where they lived for two - three years. In the mean time defendant no. 1 and 2 were blessed with their children i.e. defendant no. 3 to 5. Defendant no. 1 and 2 were not able to adjust themselves in different tenanted accommodations. (4) In the year 1992 the defendants approached the plaintiff and her husband with a request to allow them to come back and temporarily live in property no. 172, Jagriti Enclave Delhi with promise CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 2/16 to arrange their separate residence shortly and vacate the portion permitted to be temporarily used by defendants. A simple license and permission was granted to the defendants to live alongwith the plaintiff and her husband Tilak Raj Khurana, on the first floor of the suit property. Soon after they were started fighting with the plaintiff and her husband and sometimes they were quite aggressive and used filthy language against the plaintiff and her husband. At occasions, physical force was also used.
(5) To face with the daily problems and with a view to solve this suffocating and unbearable atmosphere, plot No. 242, Jagiriti Enclave Delhi was purchased on 03.08.1994 in the joint names of Madan Lal Khurana and Sanjay Khurana whereas the power of attorney was executed in the name of Surinder Kumar Khurana. The Construction, comprising of basement, ground floor and first floor was raised/completed on 242, Jagriti Enclave, Delhi with a view to shift two sons namely Surinder Khurana and Madan Lal Khurana to property no. 242, Jagriti Enclave Delhi whereas the youngest son Sanjai Khurana was to remain and continue living at 172, Jagriti Enclave Delhi alongwith plaintiff and her husband and to continue taking their care. Out of three sons, only youngest son Sanjay Khurana was always attentive and attending to his parents. Surinder Khurana was shifted and started living on ground floor of property no. 242, Jagriti Enclave Delhi in the year1995 but Madan Lal Khurana with his wife became dishonest. They did not shift to property No. 242 Jagriti Enclave and continued to live in suit property i.e. 172 Jagriti Enclave. Instead of shifting and residing at property no. 242, Jagriti Enclave, Madan Lal Khurana and his family members started physically attacking the plaintiff and her husband and repeatedly CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 3/16 tortured them and criminally intimidated while asking the aged parents to arrange an independent and separate house for them. After shifting of Surinder Kumar Khurana to property no. 242, Jagriti Enclave, Sanjay Khurana was in occupation of entire ground floor of 172 Jagriti Enclave. The plaintiff and her husband were residing on the first floor alongwith Madan Lal Khurana and his family members. Occupation of entire ground floor was with Sanjay Khurana and his family. This was not tolerable or acceptable to Madan Lal Khurana and his family members. The life of plaintiff and her husband was becoming very difficult day by day. Only Sanjay Khurana was affectionate to his parents and was taking their care and with a view to secure his possession of ground floor of property no. 172 Jagriti Enclave from unruly attitude of Madan Lal Khurana and his family, the plaintiff has executed a Will dated 22.06.2001 in favour of Sanjay Kumar Khurana bequeathing her immovable property no. 172, Jagriti Enclave to devolve upon her youngest son Sanjay Khurana, after the death of plaintiff. This act of bequeathing the property No. 172 Jagriti Enclave in favour of Sanjai Khurana infuriated Madan Lal Khurana and his family members and it became daily routine for them to pick up quarrels with the plaintiff, her husband and Sanjay Kumar Khurana. Physical attacks and beatings, particularly of the father, had become almost a daily routine. All these criminal acts were committed by Madan Lal Khurana and his family members including the minor children for throwing out and removing the plaintiff and her husband from the first floor of property no. 172 Jagriti Enclave to exclusively occupy the same. Defendants by use of force evicted them from the first floor residence in the year 2004 whereupon the plaintiff with her husband started residing on the first floor of property CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 4/16 no. 242, Jagriti Enclave Delhi. This temporary shifting was done with a view to avoid any unpleasant happening without appreciating that this should not have been done. Ground floor of property no. 242 Jagriti Enclave is occupied by another son Surinder Khurana and his family, with no relations with aged couple The plaintiff and her husband were leading a life in exile. But still, this was not acceptable to Madan Lal Khurana. It became dangerous for the old couple to live on first floor of 242, Jagriti Enclave and they started feeling unsecured and lonely. The husband of the plaintiff is suffering from various ailments like High blood pressure, Asthma and heart ailments having already suffered heart strokes and is under continuous medical treatment and care since 1980. Plaintiff and her husband have repeatedly been advised by the doctors to remain under the continuous watch and care of their family members but this most compelling requirement has been brought to naught by own son of the plaintiff. This has endangered the life of the couple. Aged couple were not in a position to reside separately from his youngest son due to medical reasons and aging factor and hence, a notice was served on 02.12.2004 on defendant no. 1 and another son Surinder Khurana for not disturbing the aged couple. The husband of plaintiff sent letter asking two sons to pay monthly maintenance. On this Surinder Khurana became aggressive, used filthy language against his father and when plaintiff asked him not to shout at the ailing father, the plaintiff was pushed against the wall. The youngest son of plaintiff Sanjay Khurana who is residing on the ground floor of property no. 172 Jagriti Enclave Delhi has to come daily in the evening to measure blood pressure of his father and to attend to his other requirements, needs of medicine etc. and some times has to CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 5/16 visit at odd hours also. The aged couple require continuous care, attention and nursing which is not possible unless they shift and reside in their own property, alongwith their youngest son Sanjay Khurana and family. Plaintiff is too week to attend to numerous needs of her husband without assistance. Plaintiff sent and served upon a legal notice dated 06.12.2005, withdrawing the license granted to the defendants for residing in her property and asking them to handover the vacant and peaceful possession of the first floor of the property no. 172, Jagriti Enclave, Delhi. Inspite of service of notice, the defendants have not vacated the property owned by the plaintiff and with regard to which the defendants have no legal rights whatsoever.
(6) Written statement has been filed on behalf of defendants stating that suit is not maintainable in the present form as no cause of action arise in favour of the plaintiff and against the defendants. The story which the plaintiff has brought now before the Court is totally false, incorrect and with ulterior motives. In fact, in the year 1980, the economic position of the plaintiff and her husband was confined to a plot consisting of two rooms at Gautam Puri and there was no fund in existence. In 1980, the defendant no. 1 entered into partnership with his father which is duly executed between the parties and later on , it was dissolved in 1993 but the account of partnership is not yet settled. It is admitted case of the plaintiff that Tilak Raj Khurana has been suffering from various diseases/ailments and has been getting continuous medical treatment since 1980. In these circumstances, it can be easily assessed and estimated the contribution made by the defendant no. 1 during the period from 1980 to 1993 and now he is being treated as he had made no CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 6/16 contribution. Moreover, it is also necessary to mention that the other two sons of the plaintiff namely Surinder Khurana and Sanjay Khurana made no contribution to the family at all. Madan Lal Khurana defendant no. 1 was the only son who sacrificed everything for the development of the family. Now, the parents of defendant no. 1 are playing in the hands of two younger brothers namely Surinder Khurana and Sanjay Khurana. It is further stated that plaintiff has no source of income and the entire money came in her hands which was earned by defendant no. 1 alongwith his father Sh. Tilak Raj Khurana. In these circumstances, it cannot be said that the property in dispute is the property belonging to Santosh Khurana alone, but in fact, it is a joint property of defendant no. 1 and his father Tilak Raj Khurana and she has nothing to do with this property whatsoever and if she was assessed to the income tax that too was manipulated from various sources. Though, the plaintiff is an ostensible owner of the property in question, but in fact, that the property no. 172, Jagriti Enclave, IP Extension Delhi92 consisting of basement, ground floor, first floor and barasati room is joint property of the replying defendant no. 1 and his father Tilak Raj Khurana which was purchased out of the joint funds in the name of Santosh Khurana , the mother of the defendant no. 1. The father of the defendant no. 1 and husband of the plaintiff was working as a painter on daily wage basis and the condition was very poor at that time and was residing in a oneroom on rent at Kashmere Gate Delhi. It is further stated that in the year 1978, the defendant no. 1 alongwith his father started a firm under the name and style M/s Khurana Traders which was dealing in watch straps and accessories and thereafter they earned a lot. In 1983, the property bearing no. 172 Jagriti Enclave, Delhi was purchased out of CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 7/16 the joint funds. So in fact, the plaintiff was neither owner nor purchaser of the suit property and it was purchased on the basis of customary documents such as Agreement, Power of Attorney etc. and later on , the lease deed was obtained from DDA. Since the plaintiff and the father of defendant no. 1 Tilak Raj Khurana have been playing in the hands of their two sons namely Sanjay Khurana and Surinder Khurana and they are bent upon in grabbing up the property earned by defendant no. 1 and his father together. Earlier it was agreed by all the members of the family that plot no. 242 Jagriti Enclave was to be given to defendant no. 1 and plot no. 172 Jagriti Enclave to Surinder Khurana and one plot no. 39 measuring 550 sq yds at Ramprastha was to be given in the share of Sanjay Khurana but later on the plot no. 39 Ramprastha was got constructed by a builder and 14 flats were raised over the said land. All the 14 flats were sold to various persons and the sale proceed came into hands of plaintiff and Sanjay Khurana, now due to dishonest intention of Sanjay Khurana and Surinder Khurana, Surinder Khurana occupied plot no. 242 Jagriti Enclave and now Sanjay Khurana claiming plot no. 172 Jagriti Enclave. In the present situation, the defendant no. 1 is at mercy of his parents and brothers. Plaintiff has not come with clean hands and suppressed the material facts as she has not disclosed in the plaint as to how these properties were purchased whether it was the earning of Santosh Khurana alone or it was a joint earning of defendant no. 1 and his father. In the present suit, the plaintiff has tried to show that the property no. 242 Jagriti Enclave has been purchased for the defendant no. 1 and his younger brother Sanjay Khurana but it is irony of fate that the documents of plot no. 242 Jagriti Enclave has been executed in the name of Surinder CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 8/16 Khurana. It is further stated that defendant no.1 has always been obedient and respectful to his parents and he never committed any act which may displease his parents and remain always in their services. They have made various allegations against the defendant no. 1 and his wife defendant no. 2 in the suit but all the these allegations are false, frivolous to knowledge of the plaintiff as well as her husband Tilak Raj Khurana and so these allegtions are totally concocted and fabricated. The defendant no. 1 has all love and affection for his parents and he has never committed any such thing which pricks in their minds. Whatever, he earned during his life, has been devoted towards his parents and all his earnings alongwith his father have been utilized for the development of the family which is a matter of serious concern and particularly in that period when his father was not in a position to work hard, due to his continuous ailments. All the documents and funds remained in the custody of Tilak Raj Khurana and the plaintiff was his close associate in all matters relating to purchase, sale of the property. (7) Thereafter, replication filed on behalf of plaintiff and in replication plaintiff has reiterated the facts mentioned in her plaint. From the pleadings of the parties following issues were framed by Hon'ble High Court on 24.10.2008 :
(a) Whether property no. 172 Jagriti Enclave IP Extension New Delhi was acquired from the funds of the partnership firm M/s Khurana Traders and effect thereof? OPD
(b) Whether the defendants are not barred from taking the plea that the property no. 172 Jagriti Enclave IP Extension New Delhi is not owned by CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 9/16 the plaintiff in view of the provisions of Benami Transaction (Prohibition) Act, 1988? OPD
(c) Whether the plaintiff is entitled to decree of possession of the first floor of the property bearing no. 172, Jagriti Enclave IP Extension, new Delhi? OPP
(d) Whether the plaintiff is entitled to mesne profits and if so, at what rate and from which defendant? OPP
(e) Relief.
(8) In order to prove her case, the plaintiff has examined herself as PW1. No other witness was examined on behalf of plaintiff. She relied upon the documents EX PW 1/A to EX PW 1/D. Vide separate statement of counsel for plaintiff dated 29.01.2015 plaintiff evidence was closed and matter was listed for DE, since defendants failed to lead their evidence. Vide order dated 08.02.2017, right of defendants to lead DE was closed. Vide order dated 17.11.2015 chamber appeal was allowed and one opportunity was granted to defendants to lead evidence subject to cost of Rs 20,000/, however, defendants have not shown their bonafide as they have not even deposited the costs.
(9) Thereafter, on 16.03.2017, application under Section 151 CPC has been filed on behalf of defendant no. 1 seeking recall of the order dated 08.02.2017 and allow the defendant no. 1 to lead evidence in his defence which was dismissed vide order dated 28.07.2017 and matter was listed for arguments. (10) Arguments heard on behalf of Plaintiff. Defendants filed written argument. My issue wise findings on the above said issues are CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 10/16 as under: ISSUE No. 1 : Whether property no. 172 Jagriti Enclave IP Extension New Delhi was acquired from the funds of the partnership firm M/s Khurana Traders and effect thereof? OPD & ISSUE N0. 2 Whether the defendants are not barred from taking the plea that the property no. 172 Jagriti Enclave IP Extension New Delhi is not owned by the plaintiff in view of the provisions of Benami Transaction (Prohibition) Act, 1988? OPD (11) Onus to prove issue no. 1 & 2 is on the defendants. Despite giving several opportunities to the defendants by Hon'ble High Court as well as this court, they failed to lead their evidence, hence, issue no. 1 & 2 are decided against the defendants.
Issue no. 3 & 4 being inter connected in nature, are being decided together.
ISSUE No. 3 & 4Whether the plaintiff is entitled to decree of possession of the first floor of the property bearing no. 172, Jagriti Enclave IP Extension, new Delhi? OPP & Whether the plaintiff is entitled to mesne profits and if so, at what rate and from which defendant? OPP (12) Onus to prove Issue no 3 & 4 is on the plaintiff . To prove .
her case, plaintiff has filed her evidence by way of affidavit (EX PW 1/1). Plaintiff stated in her evidence by way of affidavit that she is the owner of property bearing Municipal No. 172 Jagriti Enclave I.P CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 11/16 Extension, Delhi which was purchased by virtue of customary documents such as agreement to sell, power of attorney etc. dated 29.12.1983 which was superseded by a Registered Sale deed executed on 05.03.1993 in favour of the plaintiff and thereafter on payment of conversion charges a final conveyance deed dated 12.02.1998 was executed and registered by the DDA in favour of the plaintiff. House tax is regularly paid by the plaintiff. Plaintiff has placed on record the original conveyance deed dated 12.02.1998 executed and registered by the DDA in her favour admeasuring 160.51 sq. meters.
She further stated that In the year 1992 the defendants approached the plaintiff and her husband with a request to allow them to temporarily live in property no. 172, Jagriti Enclave Delhi with promise to arrange their separate residence shortly and vacate the portion permitted to be temporarily used by defendants and a simple license and permission was granted to the defendants to live alongwith the plaintiff and her husband Tilak Raj Khurana, on the first floor of the suit property. Thereafter, defendants started physically attacking the plaintiff and her husband and repeatedly tortured them.
In the written statement defendants have not denied that the property is not in the name of plaintiff but taken a plea that plaintiff has no source of income and the entire money came in her hands, was earned by defendant no. 1 alongwith his father Sh. Tilak Raj Khurana., husband of plaintiff.
(13) It is a well settled law that Joint funds or joint properties are not in law equal to HUF funds/HUF properties or business. 'Joint Funds' is an expression which is not in law equal to Joint Hindu Family CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 12/16 property. 'Working together' is not equivalent to existence of a joint Hindu family. This is all the more so after passing of the Benami Transaction (Prohibition) Act, 1988.
Since the title documents of property no. 172 Jagriti Enclave IP Extension New Delhi are in the name of plaintiff and defendants have taken a plea that property was purchased with the joint funds of defendant no. 1 and husband of plaintiff. This plea is not tenable in view of provisions of Section 3 & Section 4 of Benami Transaction (Prohibition) Act 1988 which are as under:
Section 3 Prohibition of benami transactions (1). No person shall enter into any benami transactions.
(2) Nothing in subsection (1) shall apply to
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or unmarried daughter;
(b) the securities held by a.........
(3) whoever ......
(4) Notwithstanding ......
Section 4 Prohibition of the right to recover property held benami (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or again any other person shall lie by or on behalf of a person claiming to be the real owner of such property CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 13/16 (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property (3) Nothing in this section shall apply;
(a) whether the property in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
In view of aforesaid discussions, issue no. 3 is decided in favour of the plaintiff and against the defendants.
Plaintiff further deposed that the defendants are in illegal possession of the suit property in question and therefore, liable to pay the damages with mesne profits @ Rs. 10,000/ per month to the plaintiff.
(14) This Court has relied upon the judgment titled as Pankaj Tyagi and Ors. vs. Rajender Kumar and Ors., RFA No. 635/2017 decided on 21.07.2017 wherein Hon'ble High Court of Delhi has observed as under: "9. Learned Counsel for the appellant/ defendant Nos. 1 and 2 argued that the CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 14/16 rate of mesne profits granted at Rs. 10,000/ per month is excessive, however, I cannot agree, in as much as, the suit property is a property of 100 sq. yards in New Delhi and when even a hutments cost Rs. 3,000/ per month as rent in Delhi then there is no reason why rate of mesne profits of Rs.
10000/ per month of a 100 sq. yards in New Delhi can be argued to be in any manner excessive"
(15) Perusal of the record shows that the suit property is situated in the area of Jagriti Enclave, I.P Extension, Delhi and defendants have occupied the entire first floor of the suit property illegally. In the light of aforesaid judgment passed by Hon'ble High Court regarding the rate of rent in Delhi. Hence, issue no. 4 is decided in favour of plaintiff. Hence, defendants are directed to pay the mesne profits @ Rs. 10,000/ per month to the plaintiff from the date of filing of the present suit till handing over the possession of the suit property alongwith interest @ 6% per annum, to the plaintiff, for the unauthorized use and occupation of the suit property. Relief: (16) As issues No. 3 & 4 have been decided in favour of the plaintiff, plaintiff is entitled for possession of the first floor of the property bearing no. 172 Jagriti Enclave IP Extension New Delhi (shown with red colour in site plan attached with the plaint) from the defendants. Plaintiff is also entitled for mesne profits @ Rs. 10,000/ per month alongwith interest @ 6% per annum, from the date of filing of the present suit till handing over the possession of the suit property CS-2304/16 Santosh Khurana vs. Madan Lal Khurana & Ors Page 15/16 for the unauthorized use and occupation of the suit property. Plaintiff shall also be entitled to costs.
(17) Decree sheet be drawn accordingly. File be consigned to record room after necessary compliance.
(Announced in the open court (Dr. Hardeep Kaur) on 03.08.2017) ADJ02(SHD)/KKD/Delhi Digitally signed by HARDEEP KAUR HARDEEP Location:
KARKARDOOMA KAUR COURTS, Delhi
Date:
2017.08.04
16:59:29 +0530
CS-2304/16
Santosh Khurana vs. Madan Lal Khurana & Ors
Page 16/16