Delhi District Court
Smt.Amrit Kaur(Now Deceased) Through ... vs Sardar Hardev Singh on 27 January, 2025
IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No. 475/2018
Date of Institution : 12.08.2002
Final arguments heard : 29.11.2024
Date of Judgment : 27.01.2025
Amrit Kaur (deceased),
Through her Legal representative,
Sardar Surinder Singh Sibia,
S/o Late S. Surjit Inder Singh Sibia,
R/o 25, Jor Bagh,
New Delhi-110003.
.....Plaintiff
Vs.
1. Sardar Hardev Singh
S/o Late Sh. Rajdev Singh
R/o 2, Kasturba Gandhi Marg
New Delhi-110001
2. Sardar Jasdev Singh
S/o Late Sh. Rajdev Singh
R/o 2, Kasturba Gandhi Marg
New Delhi-110001
3. Smt. Alape Kaur (now deceased)
Through her Legal heirs,
(a) Mr. Andrea Aftab Pauro, Son
(b) Ms. Amrita Pauro, Daughter,
Both resident of
224, Jor Bagh, New Delhi-110003
...Defendants
JUDGMENT
1. The plaintiff has filed the present suit seeking relief of declaration declaring the plaintiff to be owner to the extent CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 1 of 130of 12½ % in Hotal Imperial at Janpath, New Delhi and the entire new construction carried out from 1968 till date, as well as mesne profits, permanent injunction and mandatory injunction.
2. The suit was initially filed before the Hon'ble High Court of Delhi as CS (OS) No. 1344/2002. The suit was, subsequently, transferred to the District Court due to the change in the pecuniary jurisdiction.
PLAINT
3. The case of the plaintiff as pleaded in the plaint is as follows:
3.1. Sardar Bahadur Ranjit Singh and his wife, Smt. Rajinder Kaur, had one son, namely Sardar Rajdev Singh, and four daughters, namely Smt. Surinder Kaur, Smt. Gobinder Kaur, Smt. Amarjit Kaur and the plaintiff herein i.e. Smt. Amrit Kaur.
3.2. The defendant no.1, S. Hardev Singh, and the defendant no.2, S. Jasdev Singh, are the sons and the defendant no.3, Smt. Alape Kaur, is the daughter of Late S. Rajdev Singh.
3.3. S. B. Ranjit Singh was a very prominent builder in Delhi. He had a lot of properties in Delhi and other places. S. B. Ranjit Singh during his lifetime had distributed most of his properties in Delhi.
The main immovable property which was retained by S. B. Ranjit Singh in Delhi was Hotel Imperial CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 2 of 130and buildings situated at Janpath, New Delhi, which is the 'suit property'.
3.4. By virtue of a perpetual lease executed between the Secretary of State for India and S. B. Ranjit Singh under the instruction of the Government of India relating to the disposal of the buildings site in New Delhi, the Chief Commissioner of Delhi had agreed to demise the building on land measuring 7,938 acres to the Lessee S. B. Ranjit Singh for a consideration of Rs.35,721/-. It was agreed that the lessee shall pay to the lessor yearly rent in advance of Rs. 1,786/- and shall abide by all the terms as stipulated in the agreement.
3.5. S. B. Ranjit Singh let out the said Hotel Imperial, New Delhi to the Associated Hotels of India for a period of 20 years and obtained the possession of the Hotel Imperial, Janpath, New Delhi, in execution of a decree passed on 07.12.1967.
3.6. S.B. Ranjit Singh had suffered considerably on account of the Rent Control Act and on account of a protracted litigation while getting the premises of Hotel Imperial situated at Janpath, New Delhi vacated from Associated Hotel India Ltd., S. B. Ranjit Singh had planned to keep the property amongst his heirs and family.
3.7. S. B. Ranjit Singh, keeping in view the permanent interest of his children in the Hotel Imperial and CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 3 of 130to avoid any additional burden of wealth tax, gift tax and house tax, constituted a firm on 15.06.1968 in the name and style of M/s. Rajdev Singh & Company, a partnership firm for running the affairs of Hotel Imperial at Janpath, New Delhi. The said firm when constituted was consisting of his wife- Smt. Rajinder Kaur, his son- S. Rajdev Singh and his grandson- S. Hardev Singh i.e. the defendant no.1 herein. His four daughters including the plaintiff herein were given separate shares as partners under their mother Smt. Rajinder Kaur. Smt. Rajinder Kaur (wife), S. Rajdev Singh (son) and S. Hardev Singh (grandson) were also shown to be tenants under S. B. Ranjit Singh.
3.8. This arrangement drew serious objections from the Income Tax authorities and other government departments. The government authorities addressed letters to S. B. Ranjit Singh raising objections to the arrangement which ultimately led to the participation of S. B. Ranjit Singh in a fresh partnership as a partner in place of his wife Smt. Rajinder Kaur and the lease of 1968 was also terminated.
3.9. Accordingly, a partnership deed dated 30.4.1972 was executed between the parties where the mother of the plaintiff i.e. Smt. Rajinder Kaur retired and it was agreed that the money of Smt CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 4 of 130Rajinder Kaur shall be treated as loan to the partnership firm and the amount shall carry an interest of 12% till the loan is repaid to her. This partnership deed further confirmed that S. B. Ranjit Singh, the First Party to the said partnership deed dated 30.4.1972 contributed a skeleton hotel premises together with fittings, fixtures, equipment etc. as detailed in the Schedule-A annexed to the Agreement of partnership. It further stated that S. B. Ranjit Singh shall not be asked to contribute any further capital at any time thereafter and the other parties and Smt. Rajinder Kaur had invested and spent Rs.39,44,842.90 upto 02.04.1972 besides the profits earned by M/s Rajdev Singh and Company and that the capital of Smt. Rajinder Kaur had been taken as a loan and complete details of improvement and works carried out have been mentioned in the books of accounts and it was also agreed that in the event of dissolution, the First Party shall be liable to give fair market price of the assets mentioned to the other parties and the assets and liabilities of M/s Rajdev Singh & Co. as previously constituted shall be taken over by this firm.
3.10. By virtue of the partnership deed dated 30.4.1972, S. B. Ranjit Singh contributed skeleton hotel premises together with fittings, fixtures, furniture, CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 5 of 130equipment as capital and the remaining parties contributed Rs.21 lakhs as their share of the capital contribution in the partnership deed. The said partnership carried out the business successfully. From the terms of the partnership it is clear that as on 01.05.1972, the entire hotel premises, i.e. Hotel Imperial alongwith fittings, fixtures, equipment and buildings then existing at Hotel Imperial at Janpath, New Delhi became the property of M/s Rajdev Singh & Co., the partnership firm. According to law, the firm became the absolute owner of the entire Hotel Imperial premises and buildings etc. situated at Janpath, New Delhi.
3.11. The plaintiff was partner to the extent of 6¼ % in the firm and thus, became a share holder/co- owner to the extent of 6¼ % in the Hotel Imperial including land, building, structure, movables, machinery, plant and other assets of the Hotel Imperial at that time.
3.12. The parties continued doing business and running Hotel Imperial as owners and, therefore, in Clause 16 of the partnership deed, it was agreed that the owners i.e. M/s Rajdev Singh & Co. and its partners shall be liable for payment of wealth tax, house tax and all other taxes to the Government and no construction of any sort shall be made in the Hotel Imperial without obtaining the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 6 of 130permission of the appropriate authorities and that the construction so made in future in the Hotel Imperial premises shall belong to the partnership.
3.13. As per the terms of the deed dated 30.4.1972, the plaintiff is the owner of 6¼ % in respect of the construction which has been made from 1972 to 1979 apart from her ownership right in the Hotel building and other movables which were existing as on 1.5.1972 and were conveyed and granted to her while executing the deed on 30.04.1972.
3.14. The parties continued their business of running the hotel till 30.06.1979 and on account of old age and failing health S.B. Ranjit Singh decided to retire from the partnership. S.B Ranjit Singh while he was a partner had 25% share in the firm. On his instructions, his two grandsons, namely S. Jasdev Singh S/o S. Rajdev Singh (defendant no.2 herein) and S. Gopal Inder Singh (deceased on 5.4.1997), son of the plaintiff, were inducted into the partnership firm in his place and were allotted share of 18 ¾ % and 6 ¼ %, respectively.
3.15. Accordingly, a deed of partnership dated 01.07.1979 was executed. The relevant Clauses 7 and 16 of the deed corroborate the fact that the plaintiff being the co-owner to the extent of 6¼ % had spent considerable amount upon building and construction etc. CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 7 of 1303.16. The partnership deed of 01.07.1979 was for a period of 20 years and S. B. Ranjit Singh to avoid any objections from the authorities and to minimize the House Tax and Wealth Tax executed a lease in favour of M/s. Rajdev Singh & Co. on a rental of Rs. 50,000/- per annum. In fact and in reality, each partner of the firm was an owner and also a tenant of each other. While executing the lease, S.B. Ranjit Singh was made a landlord for the reason that the 25% share of S.B. Ranjit Singh given in the partnership deed of 1972 was not still finally settled while executing the fresh partnership of 1979. Each partner was owner in respect of his share including S. B. Ranjit Singh who had retired in 1979 without taking any actual profits/premium or share from the now ended partnership of 1972. S. B. Ranjit Singh, to facilitate the running of the hotel business and to minimize the taxes and to avoid any dispute or objection from the parent lessor i.e. Government of India, had executed the lease thereby granting permanent lease rights in the hotel premises for running the affairs of the hotel in favour of the owners i.e. family members. The lease was also executed as the two new partners were not the partners in the previous partnerships. The said long lease was executed keeping in view the rights of ownership already granted and, therefore, a long lease till 2014 with right of CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 8 of 130renewal was mentioned in the lease and for that reason a low rent of Rs.50,000/- per annum was kept and the sole intention of the Lessor was that each partner who otherwise was owner should enjoy the property as co-owner.
3.17. On the induction of two partners in the firm in 1979 and execution of the lease, the co-owners further carried out construction from time to time. Additional new areas of about 1,50,000 sq.ft. were built which included a three-storeys new block of rooms and attached bathrooms consisting of 19 rooms on each of the floors 1st, 2nd and 3rd totalling 57 new rooms and other accommodation. A complete new floor was also added in the main building of the Hotel and a basement of 3 storeyes including a plant room, 3 restaurants on the ground floor etc. more accurately recorded in the sanction plan, books of accounts and on the site itself. The business of the Hotel Imperial continued successfully till the Managing Partner Sardar Rajdev Singh fell seriously ill in the year 1993-94.
3.18. The defendants No.1 and 2 conspired with each other and taking advantage of illness and old age of S. Rajdev Singh started systematically to plan to oust the plaintiff. In furtherance to their conspiracy and illegal act to oust other partners, the defendants No.1 and 2 purportedly got a CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 9 of 130power of attorney from their father S. Rajdev Singh when he recovered partially for a short duration. In fact, the said power of attorney on the basis of which the defendant No. 1 and 2 were alleging to work on behalf of S. Rajdev Singh was a nullity as far as it effected the rights of the plaintiff. At best defendants No.1 and 2 were representing S. Rajdev Singh as an individual partner. Even otherwise defendants No. 1 and 2 were fully competent as was the plaintiff to take collective business decisions for running Hotel Imperial under the partnership deed and Partnership Act in the sustained and continued absence of S. Rajdev Singh due to his severe ill- health. All throughout, when new construction was carried out by the co-owners, the defendant No.2 under instructions from his father, late S. Rajdev Singh (Managing Partner) who himself was indisposed had addressed several communications and held meeting with the plaintiff and her deceased son thereby completely re-assuring the plaintiff of her ownership rights in the buildings and all the new construction. Periodically construction updates on ongoing works were addressed to the plaintiff and others.
3.19. Since the defendant No.1 and 2 were determined to take over the hotel premises and not to allow the plaintiff and other co-owners to carry on the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 10 of 130work of running the Hotel Imperial, the plaintiff herein served a notice dated 01.02.1999 wherein the plaintiff clearly indicated that no decision would be binding upon her or effect her rights which may be taken unilaterally by any single person more specifically S. Rajdev Singh, whose health had completely deteriorated and who was not in a position to attend and effectively execute and discharge the day to day duties of Hotel Imperial. The Defendants No.1 and 2, despite being notified, refused to continue the business of the Hotel Imperial in association with the plaintiff as co-owner, thus, compelling the plaintiff to file a suit for permanent injunction and the said suit was registered as Suit No. 1306 of 1999 before the Hon'ble High Court of Delhi and vide order dated 21.6.1999 the defendants were restrained from dispossessing the plaintiff except with due process of law. The said suit was still pending disposal in the Hon'ble High Court.
3.20. Smt. Surinder Kaur and others also filed a suit for declaration, permanent injunction etc. before the Hon'ble High Court and a preliminary decree for rendition of accounts was passed but the rights of the plaintiff as co-owner in the properties were not being determined in the said suit and, therefore, the plaintiff who is a co-owner in respect of the entire hotel premises has been CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 11 of 130forced to file the present suit.
3.21. From the facts as stated above and the deeds of partnerships of 1968, 1972 and 1979 duly acted upon and in terms of the provisions of the Transfer of Property Act, it is clear that the plaintiff is a co-owner and in joint possession of the entire Hotel Imperial and buildings premises to the extent of 12½ %. S. Gopal Inder Singh Sibia who was allotted 6¼ % in 1979 by his grandfather S.B. Ranjit Singh expired on 5.4.1997. On his death his 6¼ % share devolved on his mother i.e. the plaintiff. She has been receiving all the profits thereafter, i.e. from April/May, 1997 to June, 1999. The plaintiff has demanded mesne profits of her share of 12½ % but the defendants have disputed the payment of mesne profits and are also disputing the rights of the plaintiff in the property in question, thus, leaving no option except to file the present suit.
3.22. The plaintiff has reserved her right for filing a suit for partition and other consequential reliefs.
3.23. The Defendant No.1 and 2 are illegally and unlawfully using and continuing to use the co- owned hotel business in the joint property i.e. Hotel Imperial and are not paying any mesne profits or charges for use and occupation to the plaintiff. The plaintiff during the course of the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 12 of 130partnership was being paid a sum of Rs.3 lacs per month and additional Rs. 3 lakhs per month of profit was being utilized as reserve and being applied towards raising the construction of additional rooms, restaurants, basement and other additional construction and alterations.
3.24. From July, 1999 to June, 2000 and then from July, 2000 to June, 2001 the defendants and their father S. Rajdev Singh (deceased in February 2002) earned about Rs.1 crore and Rs.1.30 crores after taxes from the plaintiff's 12½ % share. Keeping in view the facts and circumstances, location of the hotel and the fact that a part of the hotel premises have been further sub-let by the defendant No.1 and 2 to various tenants and are getting handsome rent from those sub-tenants, the plaintiff estimates at least Rs. 8 lac per month as mesne profits in respect of her share of the property in Hotel Imperial and the plaintiff claims a sum of Rs. 24,00,000/- as mesne profits for the period from 01.05.2002 upto July, 2002. The claim of the plaintiff for mesne profits has nothing to do with the claims and rights being adjudicated in the suit bearing No. 1806/1999 where a preliminary decree has been passed and Local Commissioner has been appointed.
3.25. Though a restriction has been created by the lease granted by the Government of India not to part CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 13 of 130with or carry on any other activity except for running a first class hotel, however, the defendants in violation of the terms of the lease and without the consent of the plaintiff who being the co-owner of the property have sub-let and have parted with the portion/parts of the hotel premises to Thomas Cook India Ltd and other persons. The action of the defendants is contrary to the understanding between the co-owners and the defendants have failed to get those persons ousted from the hotel premises, as such the plaintiff is compelled to claim the relief of mandatory injunction.
3.26. The plaintiff is an old widow aged about 70 years and is being put to unnecessary hardships by the defendants with a view to take away her share unlawfully in the property in question and to distribute and bifurcate her share of the income amongst the defendants and/or their immediate family members.
4. On this basis, the plaintiff has sought the following reliefs in the prayer clause of the plaint:
"a) Decree for Rs. 24,00,000/- (Rupees twenty four lakhs only) as mesne profits alongwith interest pendente lite till realisation of the amount at the rate of 18% per annum be passed in favour of the plaintiff and against the defendants.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 14 of 130b) Decree for declaration to be passed in favour of the plaintiff and against the defendant thereby declaring the plaintiff as owner to the extent of 12½ % in Hotel Imperial and buildings at Janpath, New Delhi and the entire new construction carried out from 1968 till date.
c) To pass a decree for permanent injunction restricting the defendants not to part with, sell or create any third party interest in respect of the entitled share of the plaintiff in Hotel premises.
d) To pass a decree for mandatory injunction directing the defendants to remove unauthorised user of the premises by sub-letting/licensees and in other manners.
e) Future mesne profit under order 20 rule 12 of the Code of Civil Procedure may also be granted to the plaintiff till disposal of the present suit and the plaintiff undertakes to pay Court fee on the future mesne profits.
f) Cost of the suit be also awarded to the plaintiff.
g) Any other order this Hon'ble Court feels appropriate in the facts and circumstances of the case may also be passed in favour of the plaintiff and against the defendants."
WRITTEN STATEMENTS OF DEFENDANTS
5. The defendant no.1 has filed his written statement seeking CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 15 of 130dismissal of the suit. The defence taken by the defendant no.1 in his written statement is summarised as follows:
5.1. The present suit is not maintainable as the same is hit by Order II Rule 2 CPC as Suit bearing CS (OS) No. 1306/1999 titled as Bibi Amrit Kaur vs. S. Rajdev Singh & Ors. filed by the Plaintiff against the Defendant Nos. 1 and 2 on the same cause of action is sub judice before the Hon'ble High Court. Order II Rule 2 CPC clearly provides that every suit shall include the whole of the claim to which the plaintiff is entitled to make in respect of the cause of action and where the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, then he shall not sue afterwards in respect of portion of the claim so omitted or relinquished. Order II Rule 2 CPC further provides that if a person is entitled to more than one relief in respect of the same cause of action then he has to sue for all or any of such reliefs and if he omits, except with leave of the court, to sue for all such reliefs then he cannot sue for any such relief so omitted afterwards.
5.2. Assuming without admitting that even if the plaintiff could actually claim any ownership rights over the suit premises then she has relinquished the same in terms of Order II Rule 2(2) CPC as she should have made such claims in suit no. 1306/99 but she intentionally did not do so.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 16 of 130Further, assuming without admitting that if the plaintiff was entitled to any such relief as she has asked for in this suit even then she is barred from suing for any such relief in terms of Order II Rule 2 (iii) CPC as she should have sued for the same in Suit No. 1306/99. In these circumstances, this suit should be dismissed as Order II Rule 2 CPC hits the same.
5.3. In the plaint filed by the Plaintiff in suit bearing No. 1306/99, she has repeatedly stated that she is a tenant in the Hotel Imperial premises on the basis of being a partner in the erstwhile partnership firm namely S. Rajdev Singh & Co., while on the other hand, the plaintiff has totally changed her stand in the present suit and has submitted that she is one of the co-owners of the premises. This clearly brings into light the mala fide intentions of the plaintiff.
5.4. A bare reading of the plaint clearly shows that it is manifestly vexatious and meritless, as the same is not disclosing any right to sue. This is clear from the fact that at the stage of Admission-Denial of documents in Suit No. 1306/1999, the Plaintiff has admitted certain documents particularly the Statement of Clarification dated 17.5.1972 in which she along with the other aunts of the Defendant has clarified that she has no ownership rights in the Hotel Imperial lands, buildings and CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 17 of 130premises. Thus, the plaintiff does not have and has not disclosed any cause of action whatsoever in the present suit. In the circumstances, the plaint calls for rejection in terms of Order VII Rule 11 CPC.
5.5. The present suit is not maintainable as the same is hit by Section 12 CPC which clearly provides that where a Plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action then he shall not be entitled to institute a suit in respect of such cause of action in any court to which the Code applies. The Plaintiff is precluded from filing this Suit as Order II Rule 2 CPC and Order VII Rule 11 CPC hits the same.
5.6. The Plaintiff herein is not only the Plaintiff in a prior Suit bearing No. 1306/1999 but is also Defendant No.4 in a connected Suit bearing No. 1806/1999. Both these suits are on a similar cause of action and both suit are sub judice before the Hon'ble High Court. Moreover, in both these suits, the Plaintiff is pleading that she is one of the tenants in the Hotel Imperial premises in total contradiction to her claims of being a co-owner of the said premises in the present suit. In these circumstances, the present suit also deserves to be dismissed on this short ground also.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 18 of 1305.7. The present suit is not maintainable as the Partnership Firm i.e. M/s Rajdev Singh & Co. on the basis of which the Plaintiff is claiming her rights stands dissolved by efflux of time and a consent preliminary decree for the rendition of accounts has also been passed by the Hon'ble High Court vide order dated 27.11.2001 in Suit No. 1806/1999. The Plaintiff herein who is Defendant No.4 in that Suit has given her express consent to the Preliminary Decree. Hence, the Plaintiff herein is now estopped from raising any fresh claims in this Suit. Hence, this Suit deserves to be dismissed on this ground also.
5.8. The land on which the suit premises i.e. Hotel Imperial premises and buildings is situated was originally perpetually leased out to S. Bahadur Ranjit Singh vide perpetual lease deed dated 09.07.1937.
5.9. Vide partnership deed dated 01.07.1979, a registered partnership firm namely M/s S.Rajdev Singh & Co. was formed with 8 persons as partners having the following shares:
S.Rajdev Singh 25.00% Share
S.Hardev Singh (Defendant no.1) 25.00% Share
S.Jasdev Singh (Defendant no.2) 18.75% Share
Bibi Surinder Kaur 6.25% Share
Bibi Gobinder Kaur 6.25% Share
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 19 of 130 Bibi Amarjit Kaur 6.25% Share
Bibi Amrit Kaur (Plaintiff) 6.25%Share
S.Gopal Inder Singh Sibia 6.25% Share
5.10. In terms of Clause 9 of the said partnership deed, the said partnership firm was formed for a fixed for a period of 20 years i.e. till 30.06.1999.
5.11. Also, in terms of said partnership deed, S. Rajdev Singh was the sole managing partner and all the other partners were only sleeping partners with no right whatsoever to manage or even assist in managing the business of hotel Imperial. However, from time to time, defendant nos. 1 and 2 assisted S. Rajdev Singh in managing the hotel Imperial business in pursuance of and vide Power of Attorneys executed in their favour by S. Rajdev Singh.
5.12. Vide lease deed dated 02.07.1979, S. Bahadur Ranjeet Singh, the grandfather of Defendant no. 1 and father of S. Rajdev Singh, leased out the Hotel Imperial building to the said firm in the capacity of the Landlord/Perpetual Lessee. The said lease deed was for a fixed period of 5 years with the option of renewals only on the execution of a fresh Lease Deed.
5.13. In the circumstances, the Hotel Imperial buildings were leased out for a period of 5 years each from time to time, by its landlord, S.B. Ranjit Singh, to CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 20 of 130the said firm/Lessee on the execution of fresh lease deeds containing fresh terms and conditions.
5.14. On 20.12.1984, S. B. Ranjit Singh passed away.
Thereafter, after the demise of S. B. Ranjit Singh, the said property was inherited by S. Rajdev Singh, the only son of S. B. Ranjit Singh vide the registered Will and codicil of S. B. Ranjit Singh.
5.15. The said Will and Codicil were thereafter probated vide judgement dated 21.05.1986 passed by the Hon'ble Delhi High Court in Probate case no.52/1985 after taking the consent and admission of the plaintiff and all the other daughters of S. B. Ranjit Singh.
5.16. The said property was thereafter mutated in the name of S. Rajdev Singh. At the time of the mutation in the name of S. Rajdev Singh, there was no objection to the same by the Plaintiff or any of the other sisters of Late S. Rajdev Singh.
5.17. The Plaintiff and all the other sisters of Late S. Rajdev Singh have admitted that late S. Rajdev Singh owns the suit premises. In his Will and Codicil, late S.BS. Ranjit Singh has clearly stated that "I give, bequeath and devise Hotel Imperial building, Janpath, New Delhi, together with fittings and fixtures belonging to me to S. Rajdev Singh who shall be its exclusive owner. My wife or any other female heir shall have no concern CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 21 of 130with this property." This Will was probated in probate case No. 52 of 1985 by the Hon'ble High Court vide Judgment dated 21.05.1986 on the admissions of the Plaintiff as well as Mrs. Surinder Kaur, Mrs. Gobinder Kaur and Mrs. Amarjit Kaur. The Plaintiff and all the other sisters of Late Rajdev Singh had also executed and signed their respective affidavits stating that they have no objection to the mutation of the said property in favour of Late S. Rajdev Singh.
5.18. In the circumstances, S. Rajdev Singh now in the capacity of the Landlord of the said premises executed firstly the lease deed dated 09.01.1991 for a fixed period of 5 years effective from 01.07.1989 and then the last and final lease deed dated 17.06.1994 again for a fixed period of 5 years effective from 01.06.1994 in favour of the said firm. Both the lease deeds executed by S. Rajdev Singh had no renewal clause in them.
5.19. The aforesaid last and final lease deed executed by S. Rajdev Singh which was for a period of 5 years ending on 30.06.1999 co-terminated with the Partnership Deed which was also coming to end by efflux of time on the 30.06.1999. As all the parties were aware that the partnership firm/Lessee would be dissolved by efflux of time on 30.6.1999, it was in these particular circumstances, that no renewal clause was CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 22 of 130deliberately and consciously put in the last lease deed, though the same was present in the earlier lease deeds.
5.20. Knowing fully well that both the partnership and the lease were coming to an end on the midnight of 30.6.1999, S. Rajdev Singh had both orally and expressly by way of numerous letters informed the plaintiff and the other partners of the said firm that neither did he wish to carry on the partnership business beyond 30.06.1999 and nor could any fresh lease deed of the said property be executed in favour of a lessee which would become extinct on 30.06.1999 and therefore he requested the plaintiff and the other partners of the said firm to assist him in preparing the final accounts of the said firm.
5.21. S. Rajdev Singh, who, apart from being the managing partner of the firm, was also the sole owner and landlord of Hotel Imperial property, had expressly denied the offer of renewal of the said partnership and lease deeds respectively, made by the Plaintiff and his other sisters. Due to this denial by the Late S. Rajdev Singh, a friction arose between the Plaintiff and the other sisters of Late S. Rajdev Singh on one hand and S. Rajdev Singh and his two sons i.e. Defendant No.s 1 and 2 on the other hand, and in the circumstances the Plaintiff and the other sisters of Late S. Rajdev CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 23 of 130Singh decided to harass and blackmail Late S. Rajdev Singh and the Defendant No.s 1 and 2 by way of a bullish and non-co-operative attitude towards them. This is also clear from the fact that in spite of repeated written and oral requests by Late S. Rajdev Singh to the Plaintiff and his other sisters to participate in the preparation of the final/winding up accounts of the said firm there was no participation on their part. These being the circumstances, coupled with the fact that the partnership was coming to an end, Late S. Rajdev Singh had no other option but to get the final winding up accounts of the said firm, including the accounts for the period from 01.04.1998 to 30.06.1999, prepared by the auditors of the said firm namely M/s. A.S. Bhatia & Co, keeping in mind the fact that the said Chartered Accountants, had been trusted by all the partners of the said firm since its inception.
5.22. Though the preparation of the final/winding up accounts of the said firm had been completed on the 30.06.1999, the final amount due to each of the partners was tendered by way of cheques by the Late S. Rajdev Singh first on 11.08.1999. However, the Plaintiff and the other sisters of Late S. Rajdev Singh had refused to accept the said cheques on frivolous grounds.
5.23. Knowing fully well that S. Rajdev Singh was not CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 24 of 130inclined to renew the said partnership and the lease deeds, the plaintiff filed a suit bearing No. 1306/99 against Late S. Rajdev Singh, S. Hardev Singh, S. Jasdev Singh and Bibi Surinder Kaur. In the said suit, which was sub judice before the Hon'ble High Court, the plaintiff prayed for a permanent injunction in her favour and decree against the defendants restraining them from dispossessing her and the other partners of the said firm from the Hotel Imperial premises.
5.24. Three of the other partners of the said firm namely, Bibi Surinder Kaur, Bibi Gobinder Kaur and Bibi Amarjit Kaur, who had also expressed a similar desire to S. Rajdev Singh that both the partnership and the lease-deeds be renewed also filed a suit bearing no. 1806/99 for Declaration, Permanent Injunction, Rendition of Accounts, Specific Performance and Mesne Profits before the Hon'ble High Court. The plaintiff herein was also been impleaded as defendant no. 4 in Suit No. 1806/99. Vide order dated 27.11.01, a consent preliminary decree was passed in suit no. 1806/99. A Local Commissioner was also appointed to go into the accounts of the said erstwhile firm. The plaintiff herein had also given her express consent to the said preliminary decree. The said Suit was also sub judice before the Hon'ble High Court.
5.25. In Suit No. 1306/1999, the Plaintiff has clearly, CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 25 of 130expressly and repeatedly submitted and admitted that she is solely a tenant in the said premises. In the circumstances, the present suit should be dismissed on this short ground alone.
5.26. Late Sardar Rajdev Singh has since 01.07.1979 continued to be in uninterrupted de-facto, de-juro and rightful possession of Hotel Imperial premises. All permissions for additions and alterations and constructions in Hotel Imperial buildings were obtained in the name of S. Rajdev Singh as owner from the L. & D. O., NDMC and all other statutory authorities. S. B. S. Ranjit Singh and S. Rajdev Singh have been paying Wealth Tax in respect of Hotel Imperial. No other partner of M/s. Rajdev Singh & Co. had paid any Wealth Tax in respect of Hotel Imperial premises and had never declared the said property or any part or portion thereof in their Wealth Tax returns.
5.27. The Partnership firm M/s Rajdev Singh & Co constituted vide the Deed of Partnership dated 01.07.1979 stood dissolved by efflux of time on 30.06.1999 and it ceased to do business with effect from the midnight of 30.06.1999. The final Balance Sheet of the erstwhile firm as on 30.6.1999 as well as Realisation Account and Dissolution Account had been duly prepared in accordance with law and contracts by the firm's Chartered Accountants M/s A. S. Bhatia & Co.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 26 of 130The said accounts were also prepared under the scrutiny and guidance of M/s Ray & Ray, who had been the internal auditors of the erstwhile firm. All erstwhile partners including the Plaintiff were offered payments in full and final settlement of their accounts. Late S. Rajdev Singh, through a notary public tendered a sum of Rs. 2,91,60,003/- vide Cheque No 400392 dated 11.8.1999, drawn on Bank of Nova Scotia vide a letter dated 11.08.1999 to the Plaintiff in full and final settlement of the money owed to her by the dissolved firm and by Late S. Rajdev Singh in the capacity of the Landlord. Copies of the duly audited Balance Sheet and final accounts together with Cheques as mentioned above were duly sent to the Plaintiff and Mrs. Surinder Kaur, Mrs. Gobinder Kaur, and Mrs. Amarjit Kaur through representatives of Late Sardar Rajdev Singh accompanied by a Notary Public. These documents were sent on 11.08.1999. Mrs. Amrit Kaur, i.e. the Plaintiff herein and plaintiffs in suit no. 1806 of 1999 refused to accept the same. The documents along with copies of the cheques were thereafter again sent by Registered AD post and as well as copies of the same were delivered by hand. Mrs. Amrit Kaur, Plaintiff herein and plaintiffs in suit no.1806 of 1999 had not responded to the same. This offer was repeated before the Hon'ble High Court on 18.08.1999 CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 27 of 130during the course of hearing of Suit No. 1806 of 1999 and Suit No. 1306 of 1999 (both being connected matters). The legal obligations of Late S. Rajdev Singh i.e. the father of the Defendant, under deed of Partnership Deed dated 01.07.1979 and the Lease Deed dated 17.06.1994 has hence been duly discharged. Hence, the question of paying any mesne profits to the Plaintiff does not arise.
5.28. Clause 3 of the Registered Lease Deed dated 17.06.1994 executed between the parties inter-alia provides that if the tenant, i.e., the firm ceases to do business, then the landlord shall have the option to determine the tenancy and re-enter the premises demised without any notice and shall be entitled to hold possession of the premises. The erstwhile partnership firm M/s. Rajdev Singh & Co. ceased to do business with effect from 01.07.1999 as it has also ceased to exist. In the circumstances, the Landlord i.e. Late S. Rajdev Singh and thereafter his beneficiaries i.e. Defendant Nos. 1 and 2 had rightfully continued to be in possession of the said premises. In the circumstances, the Plaintiff is not entitled to any reliefs whatsoever claimed by her in the present suit.
5.29. The present suit is an abuse of process of the Court. It has been filed with the malicious motive CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 28 of 130of pressurizing and coercing the defendants to pay a large amount of money to the plaintiff, which is far in excess of the amount legally due to her and the other erstwhile partners. In the circumstances also this Suit should be dismissed on this short ground alone.
5.30. The present suit is based on allegations which are totally baseless, concocted and are false even to the knowledge of the plaintiff herself. The allegations in the suit are totally unwarranted and are contrary to the Plaintiff's own admissions and written documents executed by the parties to the suit.
5.31. Hence, the suit deserves to be dismissed.
6. The defendants nos. 2 and 3 have also filed their joint written statement seeking dismissal of the suit taking similar defence as the defendant no.1.
REPLICATION BY PLAINTIFF
7. The plaintiff has filed replications to the written statements in which the plaintiff has reiterated the averments made in the plaint and has disputed the case set up by the defendants. In the replication, the plaintiff has made, inter alia, the following averments:
7.1. The suit is not barred under Order II Rule 2 CPC.
The claim in the present suit is totally distinct and independent from the earlier suit and cause of CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 29 of 130action is distinct.
7.2. As regards the statement of clarification dated 17.05.1972, it is not denied that the plaintiff has admitted her signatures on the said document, but any legal rights which may have accrued to the plaintiff or the ownership rights of the immovable property cannot be taken away, snatched by such statement of clarification. It is well settled that if the plaintiff has right in the immovable property, the same cannot be taken away by clarification documents and the same can be conveyed only as per the provision of the Transfer of Property Act. The statement of clarification was executed only for the purpose of tax advantages under the Wealth Tax Act and that this was clearly understood by all concerned. The document was never implemented or acted upon.
7.3. It is not denied that the lease deeds were executed by Sardar Bahardur Ranjit Singh and after his demise, by Sardar Rajdev Singh. However, it is stated that these lease deeds were executed only for the purpose of tax planning.
7.4. The grant of probate of the will and the mutation of the property do not establish the right of ownership.
ISSUES
8. The following issues were framed in the suit vide order CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 30 of 130dated 02.03.2010:
"1. Is the suit not maintainable, as claimed by the defendants? OPD
2. Whether the suit has not been correctly valued for the purpose of Court Fees? OPD
3. Whether the Plaintiff has any right/share in the ownership of Hotel Imperial land and building, if so, what proportion?
4. Whether the Plaintiff is entitled to mesne profits. If so, at what rate, from which defendants and for what period?
5. Is the plaintiff entitled to all or any of the reliefs claimed in the suit? OPP"
9. The plaintiff expired during the pendency of the suit and her legal representative was impleaded in the suit.
10. Both the parties have led their respective evidence.
PLAINTIFF'S EVIDENCE
11. The legal representative of the plaintiff Sh. Surinder Singh Sibia, who is the son of the original plaintiff, has examined himself as PW-1, and has tendered his affidavits in evidence as Ex.PW-1/1 and Ex.PW-1/2 in which he has deposed along the lines of the plaint. He has relied upon the documents which have been exhibited during the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 31 of 130course of his examination and which form part of the record. He was cross-examined at length by the defendants.
12. The legal representative of the plaintiff also summoned records from the New Delhi Municipal Council pertaining to the subject Hotel, which were produced through PW-2 Sh. Liak Ram, an official in the NDMC.
DEFENDANT'S EVIDENCE
13. The defendant no.1 Sh. Hardev Singh was examined as DW-1. He has tendered his affidavit in evidence as Ex.DW-1/A in which he has deposed along the lines of his written statement. He has relied upon the documents which have been exhibited during the course of his examination and which form part of the record. He was cross-examined by the plaintiff.
14. The defendant no.2 Sh. Jasdev Singh was examined as DW-3. He has tendered his affidavit in evidence in which he has deposed along the lines of his written statement. He has relied upon the documents which have been exhibited during the course of his examination and which form part of the record. He was cross-examined by the plaintiff.
SUBMISSIONS MADE BY THE PARTIES
15. The learned counsels for both the parties have made their respective submissions at length. The submissions were addressed by Mr. Ashok Chhabra, Ld. Counsel for plaintiff, and by Mr. Sudhir Nandrajog, Ld. Senior CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 32 of 130Counsel along with Mr. Preet Pal Singh, Ld. Counsel for defendant no.2, Mr. Ajoy Kalia, Ld. Counsel for defendant no.1, and Mr. P.S. Khandelwal, Ld. Counsel for defendant no.3.
PLAINTIFF'S SUBMISSIONS
16. The learned counsel for the plaintiff has referred to the relevant pleadings and evidence in support of the case of the plaintiff and has submitted that the plaintiff has been able to prove her case as pleaded and would be entitled to decree as prayed.
17. The learned counsel for the plaintiff has made the following submissions:
Re: S. Bahadur Ranjit Singh put the Hotel Imperial as his capital in the partnership firm vide Partnership Deed of 1972, and under Section 14 of the Partnership Act, the Hotel Imperial became property of the Partnership Firm.
17.1. Under Section 14 of the Partnership Act, the property of the firm includes all property and rights and interest in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm. The Partnership Deed of 1972 Ex. P-7 is an admitted document. Clause 2 of the Partnership Deed of 1972 Ex. P-7 provides that: "Sardar Bahadur Ranjit Singh, First Party, will contribute Skelton Hotel premises along with fittings and fixtures, CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 33 of 130
furnitures, equipments etc. as annexed to the Agreement for the partnership business detailed in the Agreement of Lease dated 16.08.1966 and Sardar Bahdur Ranjit Singh at any time hereafter shall not be asked to contribute any further capital for the partnership business". Thus, clearly, Sardar Bahadur Ranjit Singh had put Hotel Imperial premises as his capital into the partnership business and therefore, as per Section 14 of the Partnership Act, it became the property of the partnership.
17.2. In paragraph 6 of the plaint, it has been stated that:
"Sardar Bahadur Ranjit Singh, keeping in view the permanent interest of his children in the Hotel Imperial and to avoid any additional burden on wealth tax, gift tax, house tax, constituted the firm on 15.06.1968 in the name and style of Rajdev Singh & Company". In the written statement filed on behalf of Defendant No.1, the constitution of the firm on 15.06.1968 is not disputed. There is no denial of the fact to the specific averment made by the Plaintiff that the firm was constituted to avoid any further gift tax, wealth tax and keeping in view the permanent interest of the children. Since there is no denial, it shall be deemed to have been admitted. Therefore, from the pleadings of the parties, it clearly shows that the firm was constituted to save further wealth tax, gift tax etc. and keeping in view the permanent interest of the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 34 of 130
children.
17.3. In paragraph 8 of the plaint, the Plaintiff has categorically and specifically stated about the partnership deed of 1972 and Sardar Bahadur Ranjit Singh having contributed the Skelton hotel as capital to the partnership. In the written statement, the Partnership Deed dated 30.04.1972 Ex. P-7 is admitted, however, the Defendant No.1 is disputing that Sardar Bahadur Ranjit Singh contributed the hotel premises. Looking into the document i.e. Partnership Deed of 30.04.1972 Ex. P-7, on the face of it, the averments made in the written statement regarding the contribution of Skelton hotel are contrary to the admitted document i.e. Partnership Deed. As per Section 91 and 92 of the Evidence Act, the Defendant is debarred from making any averments which are contrary to the written document and no amount of oral evidence can be looked into as per Section 92 of the Evidence Act. Therefore, the plea of the Defendants that Sardar Bahadur Ranjit Singh never contributed the hotel, cannot be looked into.
17.4. The Plaintiff PW-1 has in his Affidavit of Evidence at paragraph 7 and 8 referred to Partnership Deeds of 1968 and 1972. The Plaintiff has also exhibited the document as Ex.P-7 and the Plaintiff was cross examined at length by the Counsel for the Defendant No.1 but no question was put to the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 35 of 130
witness about the Partnership Deed of 30.04.1972 or about Sardar Bahadur Ranjit Singh having not contributed the Hotel Imperial as his capital and therefore, as per settled law, if there is no cross examination on a particular issue, it shall be deemed to have been admitted.
17.5. The Defendant No.1 filed the Affidavit of Evidence and in paragraph 6 of the Affidavit, the Defendant No.1 himself has exhibited Partnership Deed of 30.04.1972 as Ex.P-2 and the document having been duly proved by the Plaintiff and no cross examination was carried out in respect to the document. The said document being the basis of the suit cannot be ignored. Once it is clearly established from the evidence of the parties that Sardar Bahadur Ranjit Singh contributed Hotel Imperial as his capital, therefore, the Hotel Imperial become the property of Partnership firm as per provisions of Section 14 of the Partnership Act.
17.6. The law is well settled that once the property is brought into the stock of the partnership it becomes the property of the partnership and the property cannot be taken away from the partnership firm except as per provisions of Section 14 of the Partnership Act and/or provisions of the Transfer of Property Act.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 36 of 130
17.7. The fact of the property having been transferred under Section 14 of the Partnership Act and accepted by the parties is also established from the admitted documents sent by the firm to New Delhi Municipal Committee (NDMC) apart from the other evidence.
17.8. Reference is made to letter dated 03.05.1996 Ex.P-12. This letter has been written by S. Jasdev Singh, Defendant No.2 as Executive Partner of M/s Rajdev Singh & Co. The letter is seeking permission for revalidation of the plan and informing the NDMC about the partition constructed in the basement as per norms of Chief Fire Officer, and further informing about the nature of construction and change of shops, restaurants etc. at ground level. On perusal of this letter, it will be seen that such communication informing the authorities could only be written by the owner and Defendant No.2 herein was admittedly inducted as a partner in 1979 and has given all the information to the NDMC as a partner of the Firm.
17.9. Reference is also made to other letters/communications to the authorities being Ex.P-14 to Ex.P-25. Ex.P14 has been addressed by Defendant No.2 and signed on behalf of Hotel Imperial. This relates to revalidation of the building plan approved by the NDMC. Ex.P-15 has also been signed by the Defendant No.2 seeking CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 37 of 130
extension of Temporary Occupation Certificate. Ex.P-16 is also signed by the Defendant No.2 as Working Partner again seeking extension of Temporary Occupation Certificate. Ex.P-17 has been signed on behalf of Hotel Imperial by Defendant No.2 seeking Temporary Occupation Certificate for additional 57 rooms at the rear side, 28 rooms on the third floor on the North side and 12 rooms on the South side. Ex.P-18 and P-19 are communication from the Vice President, General Manager of the Hotel Imperial where again seeking consent from the NDMC to use make shift lobby. Ex.P-21 again signed by the Vice President, General Manager of the Hotel Imperial seeking Occupancy Certificate. Ex.P-23 again signed by Vice President General Manager seeking Temporary Occupation Certificate. Ex.P-24, sent from Defendant No.2 as Managing Partner seeking revalidation of the plan. Ex.P-25, signed by Vice President General Manager of the Hotel seeking compensation in respect of the portion of the land taken over by the Government under Land Acquisition Act. All these communications clearly indicate that such communications for revalidation of the plan, seeking extension of Temporary Occupation Certificate and other related thins relating to the Hotel could be sent by the owner of the Hotel and tenant and occupant has no right whatsoever. This clearly indicates that all the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 38 of 130
parties had treated M/s Rajdev Singh & Company and its partners to be owners of the Hotel Imperial and that status never been changed right from 1972.
17.10. After 1972, a fresh Partnership Deed was executed in 1979 wherein two new partners were inducted in place of Sardar Bahadur Ranjit Singh i.e. his two grandsons were brought in. Even the said Partnership Deed also clearly stipulates the same thing. Clause 16 clearly says that no construction of any sort will be made without obtaining requisite permission and construction so made shall belong to the partnership and shall be recorded in the books of accounts. Clause 11 gives the Partnership firm the power to assign, mortgage, sell or otherwise dispose of or part with share or interest in the partnership or property of the partnership. This power has been given only to Rajdev Singh who was the Managing Partner. Clause 11(b) provides to dispose off by pledge, sale or otherwise any partnership property or assets belonging to the partnership. Clause 11(d), (e) and
(f) provides to have any additional construction to be made in the Hotel Imperial building, to give security or promise for payment, to take on loan any money from any person. Clause 12 gave S. Rajdev Singh power to be exercised along with Sardar Ajit Singh, Administrative Officer in Hotel CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 39 of 130
Imperial. Under Clause 13, the firm has been made liable to pay taxes to the Government inclusive of Sales Tax, Wealth Tax, Income Tax etc. Under Clause 20, partners have been given powers to sell but with consent of other partners in respect of property or business of the partnership. All these facts are also supported from the cross examination of DW-1 Shri Hardev Singh wherein Defendant has admitted that Sh. Harvinder Sekhon signed the communications as stated hereinabove as General Manager.
17.11. Reference is also made to cross-examination of DW-1. The witness admitted that entire Hotel premises along with the fittings and fixtures were handed over to M/s Rajdev Singh & Co. for running the Hotel. The witness has admitted that all additions, replacement, air conditioning system, swimming pool etc. were purchased by M/s Rajdev Singh & Co. It is also admitted that Licences have been obtained by Rajdev Singh & Company. The witness has also admitted that property of the Hotel was sealed in the year 1996 and compounding charges were paid by the Firm.
17.12. Reference is also made to cross-examination of DW-2 i.e. S. Jasdev Singh, Defendant No.2. The witness has admitted that from 01.07.1979 to till 2000 in the Income Tax and Sales Tax Departments, the partnership deed of Rajdev Singh CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 40 of 130& Company dated 01.07.1979 was submitted. The witness has admitted that sanctions from the NDMC have been obtained by M/s Rajdev Singh & Co. in the year 1988 for repairs and renovations. The witness has also admitted that all renovations and additions were started by M/s Rajdev Singh & Co.
17.13. There is enough evidence and documents and clear admissions of the Defendants that everything including applying for sanction plan, carrying out construction etc. have been carried out by the Firm.
17.14. Reference is made to the following case-laws with regard to the proposition that property becomes property of the firm under Section 14 of the Partnership Act when the same is brought into the partnership business: Addanki Narayanappa & Anr. Vs. Bhaskara Krishtappa & Ors. 1966 (3) SCR 400: AIR 1966 SC 1300; 2022 SCC Online Kerala 7369; 2007 (15) SCC 58; 2006(13) SCC 481; 235 (2016) DLT 601 (DB); 2012 (127) DRJ 743; 1984 (1) ILR Delhi 787 (DB); 2012 (49) PTC 440 Delhi; 1983 SCC Online Del 356; and 1990 (2) SCC 231.
DEFENDANTS' SUBMISSIONS
18. On the other hand, the learned counsels for the defendants have made the following submissions:
Re: Issue No.1- Is the suit not maintainable, as claimed by CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 41 of 130
the Defendants? OPD 18.1. The suit is barred under Order II Rule 2 CPC. The allegations made in the present suit were available to the plaintiff when filing the earlier suit i.e. CS (OS) No. 1306/1999. The plaintiff having omitted to make the present allegations in the prior suit, the plaintiff is barred from raising the alleged claims in the present suit.
18.2. Furthermore, the plaintiff had filed the earlier suit CS (OS) No. 1306/1999 against S. Rajdev Singh, S. Hardev Singh, S. Jasdev Singh, Mrs. Surinder Kaur, Mrs. Gobinder Kaur and Mrs. Amarjit Kaur on the basis that the partnership firm was a tenant, while in the present suit the plaintiff has claimed ownership to the extent of 12½ %. The position taken by the plaintiff in her two suits are mutually contradictory and destructive and cannot coexist. The present suit is merely a façade, and the alleged claim in the present suit is false and fictitious.
18.3. The present suit is also barred by the principles of res judicata under Section 11 CPC. The present suit is barred in view of the preliminary decree dated 27.11.2001 passed in Suit No. 1806/1999, which was filed by Mrs. Surinder Kaur, Mrs. Gobinder Kaur and Mrs. Amarjit Kaur against S. Rajdev Singh, S. Hardev Singh, S. Jasdev Singh, CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 42 of 130Mrs. Amrit Kaur and M/s. Rajdev Singh & Co., seeking reliefs premised on the Partnership Deed dated 01.07.1979. The plaintiff herein was arrayed as the defendant no.4 in Suit No. 1806/1999. The plaintiff herein only reserved her limited right to the extent that the said decree was without prejudice only to the rights claimed by the plaintiff herein in her previous suit CS (OS) No. 1306/1999.
18.4. The suit is barred by the principles of waiver and estoppel. All the pleas taken in the present suit were available when suit CS(OS) No. 1306/1999 was filed. By choosing not to include them in the earlier suit, the plaintiff has waived and abandoned these claims and cannot pursue the present suit in a deceptive manner. The plaintiff is estopped from making the frivolous claims in the present suit based on the principle of estoppel.
18.5. Mere suit for declaration without seeking possession was not maintainable. A mere suit for declaration is insufficient when the plaintiff is not in possession of the property and was legally required to seek relief of possession but instead camouflaged the suit to avoid court fees. Undisputedly, the partnership firm ceased to exist and do business as on 01.07.1999, at which point the landlord/owner took possession, excluding all others. The firm held possession only as a tenant CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 43 of 130under the registered lease deeds. Therefore, at the time of filing the present suit, the plaintiff was not in possession of the property and was legally required to seek possession and pay court fees at market rate. In this regard, reliance is placed on the following case laws: Anathula Sudhakar vs P. Buchi Reddy 2008 LAWPACK (SC) 44276, and Municipal Corporation Bhilai vs Managing Director Chhattisgarh State Industrial Development Corporation & Ors. (decision dated 06.02.2014 of the Hon'ble High Court of Chhattisgarh in Second Appeal No. 225/2001).
Re: Issue No.2- Whether the suit has not been correctly valued for the purpose of Court Fees. OPD 18.6. The suit has been undervalued. The plaintiff's alleged claim of 12.5% interest in the hotel is undervalued and she was required to value and pay appropriate court fees at the market rates. The suit ought to be dismissed on this ground itself.
Re: Issue No.3- Whether the Plaintiff has any right/share in the ownership of Hotel Imperial Land and Building, if so, on what proportion? OPP 18.7. There is no registered document indicating that S. B. S. Ranjit Singh ever transferred the property to anyone during his lifetime.
18.8. The fictitious claim of the plaintiff is based on a misinterpretation of the Partnership Deed dated CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 44 of 13030.04.1972. The entire fictitious claim is premised on a misreading of Clause 3 of the Partnership Deed dated 30.04.1972, while conveniently overlooking the full document and the duly admitted Clarification Deed dated 17.05.1972 which is binding on all parties.
18.9. The plaintiff has withheld vital documents essential for a proper adjudication and misread the Clause 3 in isolation, ignoring other admitted documents including the duly signed audited balance sheets that reflect the true intention and understanding of the partners of M/s. Rajdev Singh & Co.
18.10. S. B. S. Ranjit Singh was the sole owner of the Hotel Imperial and a perpetual lessee of the land. Upon his death, ownership passed exclusively to his son, S. Rajdev Singh, as per his registered will and codicil. After S. Rajdev Singh's death, his sons, i.e. defendants no. 1 and 2, became the exclusive owners, each holding 50% share. Neither the plaintiff nor anyone else has any right, share, or interest in the Hotel Imperial.
18.11. It is settled principle of law that where the terms of contract, grant and other dispositions of property are reduced to a form of document or are required to be reduced in the form of a document, no evidence of any oral agreement or statement CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 45 of 130can be admitted as between the parties to such instrument for purposes of contradicting, varying, adding or subtracting from its terms. Oral self- serving statement of the plaintiff's witness contradicting the admissions in the admitted documents lacks substance and is barred under law.
18.12. The Clarification Deed dated 17.05.1972 is integral to the Partnership Deed dated 30.04.1972 and must be read together as one complete document confirming the parties' understanding that S.B.S. Ranjit Singh never divested himself of ownership and had no intention to transfer ownership to the partnership firm, he merely allowed the firm to use his premises.
18.13. The purported claim of the plaintiff is premised on a misinterpretation of Section 14 of the Partnership Act. The opening words of Section 14, "Subject to the Contract between the partners,"
create an exception to the principle of property of the firm. Moreover, mere permissive use of self- owned property by one partner does not ipso facto tantamount to a transfer of ownership to the partnership firm. In this regard, reliance is placed on the following case laws: Arjun Kanoji Tankar Vs Santaram Kanoji Tankar 1969 2 ALT SC 78,and Mohd. Laiquiddin & Anr. Vs Kamala Devi Misra (decision dated 05.01.2010 of Hon'ble CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 46 of 130
Supreme Court in Civil Appeal Nos. 6933- 6934/2002).
18.14. The key is to determine the contract and the true intent, conduct and understanding between the partners regarding the property, whether express or implied. It is well established that the interpretation of a document can be ascertained by the statements, conduct, and subsequent acts of the parties. In this regard, reliance is placed on the following case laws: The Godhra Electricity Co. vs State of Gujarat AIR 1975 SC 32, Sh. Rati Ram vs M/s. D.C.M. Shriram Consolidated Ltd. (2012) 187 DLT 5, Bharat Sanchar Nigam Ltd. vs National Telecom of India Ltd. 2016 (226) DLT 598, and Prabhakara vs Basavaraj K 2021 LAWPACK SC 65619.
18.15. Through the Partnership Deed dated 30.04.1972, S.B.S. Ranjit Singh, merely permitted the partnership to use his premises, without divesting his ownership or possession. Contrary to the plaintiff's false allegations, there has been no extinguishment of his rights to the Hotel Imperial (land and building) in favour of the partnership.
18.16. All partners of M/s. Rajdev Singh & Co. affirmed their understanding of Clause 3 of the Partnership Deed dated 30.04.1972 by executing the Clarification Deed dated 17.05.1972 within 17 CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 47 of 130days, acknowledging S.B.S. Ranjit Singh as the sole, absolute and exclusive owner of the Hotel Imperial. The same is further reinforced by the actions and conduct of his daughters, who were also partners in the firm and have accepted his Will dated 09.07.1979 and Codicil dated 28.06.1984, which affirm his sole, absolute and exclusive ownership of the property, rather than that of the partnership firm.
18.17. Reference is made to Clause 9 of the Will dated 09.07.1979, which states as follows:
"9. I give, bequeath and devise Hotel Imperial Buildings, Janpath, New Delhi with fittings and fixtures belonging to me to S. Rajdev Singh, who shall be its exclusive owner. My wife or any other female heir shall have no concern with this property."
18.18. Reference is also made to Clause 10 of the Codicil dated 28.06.1984, which states as follows:
"10. I give, bequeath and devise Hotel Imperial Buildings, Janpath, New Delhi with fittings and fixtures belonging to me to S. Rajdev Singh, who shall its exclusive owner. NO FEMALE HEIR shall have any concern with the ownership rights of this property vested in me."
18.19. The said registered Codicil dated 28.06.1984 was CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 48 of 130attested by two daughters, Smt. Surinder Kaur and Smt. Amarjit Kaur, who were themselves partners of the said 1972 Partnership as well as by Sh. Amolak Singh who was the son of Smt. Amarjit Kaur.
18.20. Based on the duly admitted affidavits of the sisters of Late S. Rajdev Singh including the present plaintiff, the Hon'ble High Court of Delhi granted probate of the registered Will and Codicil of S.B.S. Ranjit Singh in favour of S. Rajdev Singh vide Judgment dated 21.05.1986 Consequently, the Hotel Imperial (land and building), along with all furniture and fixtures, devolved solely and absolutely upon S. Rajdev Singh. Additionally, the mutation in government records in favour of S. Rajdev Singh has been completed by the L&DO and NDMC.
18.21. The paragraphs 2 and 3 of the duly admitted Affidavit of No-Objection dated 29.07.1985 in Probate Case No. 52 of 1985 sworn by the plaintiff Smt. Amrit Kaur read as under:
"2. That I have read the accompanying petition for grant of probate being submitted by my brother S. Rajdev Singh and say that I have no objection to the grant of the Probate by this Court to S. Rajdev Singh.
3. That I have seen the Original Will CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 49 of 130
dated 9.7.1979 and Codicil dated 28.6.1984 executed by late S.B. Ranjit Singh and accept these as the last testamentary instruments of the deceased. I have no objection to their validity or probate being granted."
18.22. The paragraphs 6 and 7 of the duly admitted Affidavit dated 29.03.1988 filed before the L&DO duly attested by Sub-Divisional Magistrate, New Delhi sworn by the plaintiff Smt. Amrit Kaur read as under:
"6. That the deponent and all the other heirs accept the Will dated 9th July 1979 and Codicil dated 28th June, 1984 and they have no objection to the Mutation of Hotel Imperial land and building in favour of S. Rajdev Singh son of Late Sardar Ranjit Singh.
7. All the heirs of late Sardar Ranjit Singh have absolutely no objection to the transfer of the said property in the records of the Land and Development Office, New Delhi."
18.23. In 1972, the entire family acknowledged S.B.S. Ranjit Singh as the sole and exclusive owner which is clear from the Clarification Deed dated 17.05.1972. This acknowledgment continued even after the demise of S. B.S. Ranjit Singh which is clear from the affidavits submitted by his children, including the plaintiff, during the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 50 of 130probate proceedings and the mutation proceedings before the L&DO.
18.24. The landlord-tenant relationship has been consistently admitted. Time and again, consistently, all partners of M/s. Rajdev Singh & Co. have acknowledged S. B. S. Ranjit Singh as the exclusive owner of the Hotel Imperial buildings, and upon his death, S. Rajdev Singh as the sole owner. M/s. Rajdev Singh & Co. which was the Tenant- Partnership Firm occupied the property as a permissive user/tenant first under S.B.S. Ranjit Singh and then under S. Rajdev Singh, as confirmed by the following registered lease deeds executed with both landlords:
i) First Registered Lease Deed dated 02.07.1979 executed by S.B.S. Ranjit Singh granting a Lease of the Hotel Properties to the Tenant Firm - M/s.
Rajdev Singh & Co. for a fixed period of 05 Years w.e.f. 01.07.1979 to 30.06.1984;
ii) Second Registered Lease Deed dated 28.06.1984 executed by S.B.S. Ranjit Singh granting a Lease of the Hotel Properties to the Tenant Firm - M/s.
Rajdev Singh & Co. for a fixed period of 05 Years w.e.f. 01.07.1984 to 30.06.1989;
iii) Third Registered Lease Deed dated CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 51 of 13009.01.1991 executed by S. Rajdev Singh granting a Lease of the Hotel Properties to the Tenant Firm - M/s. Rajdev Singh & Co. for a fixed period of 05 Years w.e.f. 01.07.1989 to 30.06.1994
iv) Fourth Registered Lease Deed dated 17.06.1994 executed by S. Rajdev Singh granting a Lease of the Hotel Properties to the Tenant Firm - M/s. Rajdev Singh & Co. for a fixed period of 05 Years w.e.f. 01.07.1994 to 30.06.1999 18.25. In the recitals to the Third Lease Deed dated 09.01.1991 and Fourth Lease Deed dated 17.06.1994, the plaintiff and other partners clearly acknowledge S. Rajdev Singh as the exclusive owner/landlord, in the following manner:
"WHEREAS THE LANDLORD is the owner of the Hotel Imperial Buildings situated on Janpath, New Delhi and the Perpetual Lease rights of the land in the said Hotel Buildings, which he inherited from his, father late S.B. Ranjit Singh."
18.26. The plaintiff's pleadings are contrary to the admitted documents and are thus barred under law. There is no explanation from the plaintiff's side as to why the admitted documents, including the Clarification Deed and the lease deeds, were CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 52 of 130executed over time if the plaintiff's assertion that the property belonged to the partnership firm were true.
18.27. The owner/landlord S.B.S. Ranjit Singh never divested his ownership rights or contributed the premises to the partnership, contrary to the plaintiff's claims. The partnership deed did not create any rights in the Hotel Imperial for the partners, but only a limited right to use the premises as tenants was granted to M/s. Rajdev Singh & Co. through the registered lease deeds.
18.28. The fictitious claim of the plaintiff is further evident from the conduct of the plaintiff herself as she has never listed the Imperial Hotel property or any share of it in her tax returns, indicating she never claimed ownership.
18.29. The suit is not maintainable since no declaration was sought in respect of the Clarification Deed as not binding on the plaintiff. The suit is liable to be dismissed on this ground itself. Reliance in this regard is placed on Vasantha Vs Rajalakshmi @ Rajam (decision dated 13.02.2024 of the Hon'ble Supreme Court in Civil Appeal No. 3854/2014).
18.30. The plaintiff has not produced any documents to prove her alleged ownership over the suit property or presented any evidence to support her false claims, which contradict the admitted documents, CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 53 of 130including the Clarification Deed, the balance sheets of M/s. Rajdev Singh & Co., the plaintiff's affidavits dated 29.07.1985 and 29.03.1988, and the registered lease deeds dated 02.07.1979, 28.06.1984, 09.01.1991 and 17.06.1994, respectively, executed by the plaintiff with the landlord/owner. The partnership firm's possession was limited to that of a tenant, as stated in the registered lease deeds.
Re: Issue No.4- Whether the Plaintiff is entitled to mesne profits? If so, at what rate, from which Defendants and for what period?
18.31. Late S.B.S. Ranjit Singh and Late S. Rajdev Singh have had continuous uninterrupted de facto, de jure and rightful possession of the Hotel Imperial premises, with all necessary permissions for additions, alterations and constructions obtained in S. Rajdev Singh's name from all relevant authorities.
18.32. The plaintiff, in order to prove mesne profits, has attempted to rely on NDMC records and relied upon documents to argue that communications from S. Jasdev Singh implied ownership by M/s. Rajdev Singh & Co. and that all additions, alterations, constructions of the Hotel Imperial were made in the name of Tenant Firm i.e. M/s. Rajdev Singh & Co. The plaintiff has misread CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 54 of 130documents in isolation and purposefully interpreted them piecemeal to mislead, and has very conveniently chosen to not read point 4 under the heading "Present Position" in the Agenda of the meeting held on 28.12.1995 of NDMC Ex. P - 20, which reads as under:
"4.The plans and documents have been signed by Sh. Jasdev Singh Akoi on behalf of Sh. Rajdev Singh and submitted the power of attorney in favor of Jasdev Singh Akoi"
18.33. The same is reiterated in Report on Proposal for Revised Plan in April 1999 of NDMC in Points 1 and 2 under the heading "Present Position".
18.34. S.B.S. Ranjit Singh and S. Rajdev Singh have solely paid wealth tax for the Hotel Imperial buildings. No other partner of M/s. Rajdev Singh & Co. has paid wealth tax or declared any part of the property in their wealth tax returns.
18.35. The fixed-term partnership firm- M/s. Rajdev Singh & Co., established on 01.07.1979, dissolved by efflux of time on 30.06.1999 in accordance with Section 42(a) of the Partnership Act read with the preliminary decree for dissolution.
18.36. Paragraph 3 of the registered lease deed stipulated that if the tenant i.e. M/s. Rajdev Singh & Co. ceases business, the landlord i.e. S. Rajdev Singh CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 55 of 130can terminate the tenancy and re-enter the premises without notice. Since the partnership ceased to exist and do business on 01.07.1999, the landlord took possession, excluding all others, from that date.
18.37. All partners, including plaintiff, regularly signed the balance sheets of M/s. Rajdev Singh & Co. for the period from 01.07.1979 to 31.03.1998, admitting the firm's status as a tenant of the suit property, contradicting any later claims of alleged ownership.
18.38. The final balance sheet, realization account, and dissolution accounts were prepared in accordance with the law, considering the covenants of the last effective lease deed dated 17.06.1994 and the partnership deed dated 01.07.1979.
18.39. The amounts due and payable in full and final settlement of their accounts were tendered to all the partners by S. Rajdev Singh, as per his legal obligation under Deed of Partnership dated 01.07.1979 and Lease Deed dated 17.06.1994 As per the final accounts, the plaintiff was tendered a sum of Rs. 2,91,60,003/- vide cheque bearing No. 400392 dated 11.08.1999, towards full and final settlement of her accounts vide letter dated 11.08.1999. Thus the owner i.e. Late S. Rajdev Singh discharged his legal obligation. Mrs. Amrit CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 56 of 130Kaur, Mrs. Surinder Kaur, Mrs. Gobinder Kaur and Mrs. Amarjit Kaur initially refused to accept and again refused the said offer made by S. Rajdev Singh in CS(OS) No. 1806 of 1999 on 18.08.1999, but subsequently during the pendency of the proceedings, accepted the same money subject to final adjudication. Determination of additional amount, if any, under the Partnership of 1979 is subject matter of the said suit.
18.40. Erstwhile partners never brought in any fresh capital or money to finance the cost of additions, alterations and constructions to meet the needs of the business and/or the obligation on the Landlord Owner under the Perpetual Lease Deed to run the Hotel as "First Class Five Star" Hotel. The same were undertaken to comply with the needs of the business and to avail and take full benefit of tax incentives, tax deductions and development rebates etc. allowed under the various provisions of the Income Tax Act and rules framed thereunder.
18.41. Various portions of additions, alterations, & constructions made by M/s. Rajdev Singh & Co. in Hotel Imperial property as originally leased out, had been demolished by the erstwhile tenants while undertaking new additions, alterations and constructions in Hotel Imperial buildings.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 57 of 13018.42. As also evident from the Minutes of Meeting dated 22.12.1994, investments on additions and alterations were financed through savings under the Income Tax Act, all investments were made out of the reserve created under Section 80 HHD of the Income Tax Act or the relief allowed under Sub-Section (a) of Section 80 HHD as well as benefits allowed for depreciation for investments.
18.43. At the close of the business on 30.06.1999, full amount of the reserve created under section 80 HHD (I)(b) had been duly credited to the erstwhile partners account proportionately, as is evident from the Final Balance Sheet as well as Realisation Account and Dissolution accounts of the erstwhile Partnership Firm - M/s. Rajdev Singh & Co.
18.44. The cost of additional constructions has been taken into account by Late S. Rajdev Singh, when he offered to pay all cost of additional constructions to the erstwhile partners and had tendered the amounts due to them. All sanctions and permissions for making additional constructions in Hotel Imperial premises had been regularly obtained by S. Rajdev Singh in his own name from all the concerned authorities.
18.45. NDMC levied house tax on all new additions and alterations to the Hotel Imperial property, assessed CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 58 of 130to S. Rajdev Singh as the owner. The owner provided complete details and a valuation certificate which was accepted by authorities.
18.46. Pursuant to Plaintiff seeking details regarding payment of Property Tax, complete list of the entire house tax cases in respect of Hotel Imperial till the assessment year 1999 - 2000 including a few orders were submitted by Defendants, wherein detailed breakup of valuation/assessment has been worked assessed and accepted by the authorities. No contrary evidence disputing the valuation/assessment has been brought by the Plaintiff nor has the plaintiff led any iota of evidence to substantiate/prove their alleged case.
18.47. The plaintiff is not entitled to any mesne profits, particularly the falsely claimed amount of Rs. 24,00,000/- for May to July 2002. The defendants are not liable for mesne profits, nor can the plaintiff make such a claim against the true owner. The late S. Rajdev Singh and the defendants have never wrongfully occupied the Hotel Imperial building or any part of it.
18.48. Before 1972, M/s Rajdev Singh & Co. added 72 bathrooms and a makeshift swimming pool to the Hotel Imperial, which were demolished before 30.06.1999. After the partnership's dissolution, defendants not only constructed modern CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 59 of 130bathrooms and a new swimming pool but had to fully refurbish the shabby structures built by the former partnership firm (Tenant) after obtaining the necessary permissions from all relevant authorities at their own cost and expense.
18.49. Post 30.06.1999 after Dissolution of Partnership Firm, from 01.07.1999, the then owner S. Rajdev Singh had been carrying on the business of running First Class Hotel in accordance with the terms and conditions of the Perpetual Lease.
Neither the Plaintiff nor any other
person/erstwhile partner of the erstwhile
partnership firm had any right, interest or say to interfere in the same in any manner whatsoever.
18.50. Without prejudice to the aforesaid submissions that the plaintiff neither has any right or share or interest in any manner whatsoever nor has any claim of mesne profits, even otherwise the plaintiff has led no evidence on mesne profits and the rooms tariffs by no means is the criteria to determine the profits as being alleged by Plaintiff. The room tariff charged for occupying a room from a hotel guest is not merely the rent of the room but includes many attendant and incidental facilities and services, the cost of all of which is included in the room rent. Thus, the room rent can by no means be equated with the rent at which a willing lessee will be willing to take the room on CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 60 of 130rent, which is the premise underlying the fixation of mesne profits. No proof with regard to the rate of rent in the adjoining area has been filed by the plaintiff, much less having been proved.
Re: Issue No.5- Is the Plaintiff entitled to all or any of the reliefs claimed in the suit? OPP 18.51. The plaintiff has not produced any document proving her purported ownership and/or led any iota of evidence to establish her fictitious claims, which contradict admissions in admitted documents, including the Clarification Deed, various affidavits, communications, balance sheets and registered lease deeds.
18.52. The Partnership Deed never intended to create any rights in the hotel properties for the partners. The firm only had limited tenancy rights under the registered lease deeds. Furthermore, the partnership established by the deed dated 30.04.1972 ended on 30.06.1979, and a new fixed term partnership was created on 01.07.1979 which stood dissolved on 30.06.1999. Mere permissive use of a self-owned property by one partner does not imply a transfer of ownership to the partnership. The key is to determine the intent and understanding between the partners regarding the property through their express or implied conduct.
18.53. The owner/landlord never divested his ownership CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 61 of 130rights in the property nor contributed any part of it to the partnership, contrary to the plaintiff's claims. It is a well established principle that the interpretation of documents can be ascertained by the statements, conduct and actions of the parties.
18.54. In the present case, it is manifest beyond a shadow of a doubt that the property in question was the sole and exclusive property of S.B. Ranjit Singh of which he was the absolute owner as evident from the following documents duly executed, signed and acted upon by the all the partners during the period from 1972 to 1999:
i. Statement of Clarification dated
17.05.972;
ii. Balance Sheet as on 30.06.1979 duly
signed by all the Partners;
iii. Registered Will dated 09.07.1979 read
with Codicil dated 28.06.1984 of Late
S. Ranjit Singh;
iv. Affidavit dated 29.07.1985 sworn Late
Smt. Amrit Kaur in Probate Case No. 52
of 1985;
v. Affidavit dated 29.03.1988 sworn by
Late Smt. Amrit Kaur filed before the
L&DO duly attested by Sub-Divisional
Magistrate, New Delhi;
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 62 of 130vi. Registered Lease Deeds dated 02.07.1979, 28.06.1984, 09.01.1991 and 17.06.1994;
vii. Balance Sheets for the period from 01.07.1979 to 31.03.1998 duly signed by all the partners;
viii. Letters as well as Minutes of Meeting dated 01.07.1989 and 28.09.1989, wherein the plaintiff accepted that the partnership firm was merely a tenant of the Hotel property and that S. Rajdev Singh was the sole owner and landlord thereof;
ix. Judgment dated 12.11.1990 in Suit No. 27 of 1990 titled as S. Rajdev Singh Versus M/s. Rajdev Singh & Company.
18.55. The duly signed and audited balance sheet of M/s.
Rajdev Singh & Co. manifestly demonstrates that neither the hotel premises nor the land owned by S.B.S. Ranjit Singh was ever capitalized in the firm's books nor his name was listed in the capital account on the books. The total capital of the firm was Rs. 21 Lakhs, credited to the respective partners excluding S.B.S. Ranjit Singh. Additionally, Schedule A of the fixed assets in the balance sheet, again duly signed by all partners, does not reflect the land and building belonging to CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 63 of 130S.B.S. Ranjit Singh. Conversely, the partners acknowledge, through their signatures, the assets sold to the firm by S.B.S. Ranjit Singh for Rs.86,000.
18.56. Late S. Rajdev Singh and the defendants have never wrongfully occupied the Hotel Imperial building. S.B.S. Ranjit Singh, followed by S. Rajdev Singh, and subsequently S. Hardev Singh and Late S. Jasdev Singh, have always maintained uninterrupted and rightful possession of the hotel as the absolute and exclusive owners.
18.57. The present suit has been filed with ulterior motives to harass the defendants and to extort unwarranted monetary gains beyond what was legally due to the plaintiff. The plaintiff's claims for mesne profits are baseless and are a mere figment of her imagination, contradicting various existing admitted documents and agreements.
REJOINDER SUBMISSIONS BY PLAINTIFF
19. In rejoinder, ld. Counsel for the plaintiff has made the following submissions:
Re: Statement of clarification dated 17.05.1972 would not assist the case of the defendants.
19.1. The plaintiff has, in the replication, stated that signatures do appear on the Statement of Clarification, but the alleged document was CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 64 of 130
executed only for the purpose of tax advantage under the Wealth Tax Act, and it was never intended to defeat the rights of the plaintiff, and that plaintiff's rights in the immovable properties cannot be taken away by such a Clarification Deed, and this document has seen light after 28 years for the first time, and the document has never been implemented or acted upon to reflect any changes in the partnership deed.
19.2. The partnership deed of 01.05.1972 was registered under Section 69 of the Partnership Act. During cross-examination of PW-1, when the question was put to the witness as regards the Clarification Deed, the witness has deposed that signatures were obtained on a blank paper and the alleged document was seen for the first time in the year 1999 after filing of the suit. There is no question whatsoever put to the witness in cross- examination that this document was ever acted upon, relied upon or submitted to any authority including tax authorities. Therefore, it is clear that this document has not been acted upon nor produced before any authority and as such cannot be relied upon. Even otherwise, without prejudice, on a perusal of the document, it will be seen that it only mentions that the document is taken only for the purpose of income tax. It may also be seen that the document refers that the plaintiff used to CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 65 of 130reside at Patiala and therefore, such blank signatures were taken in good faith by the father of the plaintiff.
19.3. The affidavit of evidence has been filed by S. Hardev Singh who was a partner in the partnership of 1972 and his affidavit does not mention regarding the statement of clarification and or whether it was ever acted upon or implemented. If any such statement of clarification was in existence and/or acted upon, then he was the best witness to depose about the same. Having not mentioned about such a document in the affidavit of evidence, this clearly shows that no such document was in existence and the document has been manufactured subsequently.
19.4. Similarly, an affidavit in evidence has been filed by the other defendant i.e S. Jasdev Singh wherein in paragraph 20, a reference has been made regarding the statement of clarification dated 17.05.1972 but no explanation has been given regarding non-implementation and producing of the document for the first time after 28 years. It is pertinent to note that S. Jasdev Singh became a partner only for the first time in the year 1979 and therefore, his evidence relating to the statement of clarification is only a secondary evidence and no reliance can be placed on his averments made in CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 66 of 130the affidavit of evidence. It may be further noted that fresh partnership was executed in the year 1979 wherein new partners were inducted and the document of partnership executed in the year 1979 contains mostly the same terms and it further states that the amount standing credited in S. Rajdev Singh, S. Hardev Singh and others shall be considered as their capital contribution.
19.5. The statement of clarification has no legal value.
Since 1972 when the partnership deed was first executed and thereafter in 1979, partnership firm has been filing income tax returns, signing balance sheets and producing all records of books of accounts to the Income Tax office and in no authority this document has been produced. The partnership deeds of 1972 and 1979 are registered under Section 69 of the Partnership Act with the Registrar of Firms. It is settled principle of law that if there is a registered document, no amount of oral evidence, as per Section 91 and 92 of the Evidence Act, can be looked into. Even apart from the fact that no oral evidence can be looked into, even the unregistered document also cannot be looked into to change the terms of the partnership. The defendants have failed to produce any evidence to show that this document was ever acted upon and/or any authority was ever intimated about this document which is contrary CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 67 of 130to the partnership deed.
19.6. As per provisions of Registration Act and the Partnership Act, the partnership deed is required to be registered with the Registrar of Firms, and admittedly, the partnership deed is duly registered with the Registrar of Firms. Therefore, in order to modify or alter the terms of the partnership deed, the purported statement of clarification was also required to be registered with the partnership deed and having not done so nor ever acted upon or placed before any authority, the document purported to be the statement of clarification is inadmissible in evidence. The purported document i.e. statement of clarification has never been made an addendum to the partnership deed. If such a document was in existence allegedly in 1972, subsequently the partnership deed was executed in the year 1979, where this clause could have been added in the partnership deed and/or statement of clarification ought to have been added/made annexure to the partnership deed. It may be seen that the statement of clarification of 1972 does not even otherwise has any locus standi on its own because a new partnership deed had been executed where there is no reference to any such statement of clarification and the new partners were inducted in the said partnership deed and the same clause as mentioned in CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 68 of 130partnership deed of 1972, i.e. whatever construction is carried out by the firm the same shall belong to the firm, is present there also.
19.7. The so-called statement of clarification has never been produced before any authority, bank or Registrar, and for the first time, it has been produced in the present proceedings. Section 92 of the Evidence Act debars the defendants from leading any evidence to show that contrary terms were recorded. In the present case, one of the defendants has not even mentioned the fact of the statement of clarification in the written statement nor anything has been stated so in the affidavit of evidence. The other defendant has stated so in the affidavit of evidence but the said statement of clarification does not get proved as per the affidavit filed. Even otherwise, the defendants have led no evidence to establish that the terms of the partnership deed were ever varied by the statement of clarification. The evidence on the record shows that all throughout the partnership deed was existing, the terms of the partnership deed were being followed by the firm and all its partners. In order to show that any terms have been altered by virtue of any document, a positive evidence has to be led. First of all, it is not permitted under Section 92 to lead any oral evidence which is contrary to the document. In the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 69 of 130present case, the partnership deed is also registered under Section 69 of the Partnership Act and therefore, in order to modify the terms, the said statement of clarification ought to have been again registered with the Sub-Registrar. However, in the present case, no evidence at all has been even led regarding the change of the terms of the partnership deed.
19.8. Reliance is placed on the following case laws with regard to exclusion of oral evidence under Sections 91 and 92 of the Evidence Act: 2024 SCC Online SC 1668; 2013 SCC Online Delhi 2014; 1997 (9) SCC 179; 2016 (3) RLR 561.
19.9. In view of the settled principles of law, the purported document which is called Clarification Deed and its terms cannot be looked into and the Court is not competent to look into as per provisions of Section 92 of the Evidence Act. Even otherwise, no evidence has been led that this agreement was ever acted upon and or terms were changed by the parties. It may be further pertinent to note that after first partnership of 1972, a fresh partnership was executed in 1979 but no such clarification deed was ever signed by any of the parties. Therefore, it is clear that Statement of Clarification has no sanctity, legal value and cannot be read in the evidence.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 70 of 13019.10. Reliance is also placed on the decision in 2018 (6) SCC 410 on the proposition that in terms of Section 54 of the Transfer of Property Act, once the contract is concluded by way of execution of Sale Deed, the terms cannot be modified or changed without a registered document.
19.11. Reliance is also placed on the decision in 1975 RLR 67 on the proposition that if any document is executed simultaneously with oral agreement then no oral agreement can be entertained till the same is registered. In the present case, applying the provisions of Section 91 and 92 of the Evidence Act, it is clear that Defendants have neither pleaded nor evidence has been led to prove that this document was ever submitted before the Registrar of Firms and or any other Authority. Therefore, the document is inadmissible in evidence and no reliance can be placed on the said document.
19.12. Since the Statement of Clarification has not been proved nor established in law as a valid, legal document admissible as per Evidence Act, no reliance can be placed on the same. Even otherwise, parties cannot by entering into any agreement cancel or modify the terms of the written contract. The partnership deed is registered under Section 69 of the Partnership Act and cannot be modified by such document.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 71 of 13019.13. The Defendants also argued and put question to PW-1 in the cross examination that "have you ever filed Income Tax Returns or show as your assets". Similar arguments have been addressed on the issue that no Income Tax returns have been filed to show that it is her assets. In this regard, the Plaintiff submits that it is settled principle of law that as long as partnership is active and in existence, all assets belonging to the partnership firm whether put as capital and or acquired otherwise during the course of the business are the assets of the partnership firm. This is the law under Section 14 of the Partnership Act and none of the partners can claim or ask for partition of the share during the existence of the partnership and the fact that partnership was filing returns of their income and assets. Therefore, there was no occasion on the part of the Plaintiff to file such returns.
Re: The lease deeds would not assist the case of the defendants.
19.14. The contention of the defendants that the plaintiff has in the earlier suit claimed to be tenant is without any force and the facts have been misrepresented by the defendants. On a perusal of the plaint and the orders in the earlier suit, it will be seen that the plaintiff had filed the suit on 19.06.1999 when the partnership of 1979 was in CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 72 of 130existence. Admittedly by the document executed between the landlord and the firm, the firm has been shown as a lessee. On a perusal of the lease deeds as executed, it will be seen that the lease deeds nowhere mention the lessor to be the owner. It only mentions as a lessor. As per Section 2 of the Delhi Rent Control Act which defines 'landlord', the landlord may not be the owner. 'Landlord' is a person who is entitled to let out or has been empowered or otherwise authorized to let out. Merely mentioning that the plaintiff was a lessee in the suit filed prior to the partnership having come to an end does not mean that the plaintiff has given up her rights.
19.15. On perusal of the lease deeds, it will be seen that the tenant was paying house tax, all fees to the NDMC and the tenants were permitted to obtain licenses in their own name, pay all insurance and all charges to the NDMC and L&DO. It may be seen that all ownership rights have been reflected to in the partnership deed of 1972 and two new partners were inducted in the partnership of 1979. The rights which had accrued to the partners of 1972 partnership cannot be taken away by merely mentioning the words "lease deed" or "in terms of the Lease Deed." The lease is merely an arrangement to avoid the wealth tax and other taxes and it is unbelievable that whole Hotel CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 73 of 130Imperial can be let out for small amount of Rs.50,000/- per year and the tenant is permitted to construct whatever they like. In fact, in order to ascertain the document, one has to look into the entire document. The entire document, if looked into, only reflects that firm has been permitted to carry on their business in any manner they like, bring in fittings, fixtures etc., to carry out any construction and when such clause is there, it has also been mentioned that whatever has been brought in, will become the properties of the tenant. The documents rather corroborate the averment of the Plaintiff that whatever was brought in as capital of Sardar Bahadur Ranjit Singh, the assets become the assets of the partnership. The document referred to as lease deed neither can annull the rights given in the partnership deed of 1972 nor even otherwise it refers in any of the purported lease deeds. Therefore, the lease deed also supports the case of the Plaintiff and the constructions carried out are owned by the Plaintiff and the Plaintiff has rightly claimed the relief after the partnership has come to an end i.e. on 30.06.1979. PW-1 in his statement has also stated that it was only for the purpose of tax saving as the premises are shown as rental premises. The wealth tax payable is much lesser on account of rent capitalization method as compared to the otherwise valuation at CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 74 of 130the market valuation. This was another reason why the rent @ Rs.50,000/- per year was fixed.
Re: Probate granted in respect of the Will of late S. Bahadur Ranjit Singh would not assist the defendants.
19.16. It is a settled principle of law that the Probate Court does not decide the question of title. The Probate Court only decides the legality and validity of the Will. Since S. Bahadur Ranjit Singh had already divested himself and had contributed the skeleton hotel and all fittings and fixtures installed in the hotel into the partnership as his contribution, therefore, the skeleton hotel and all fittings and fixtures installed in the hotel became the property of the firm and no advantage could be taken by the defendants on account of the probate order. The Probate Court has not gone into the question of title. Reliance is placed on the following case-laws on the proposition that probate proceedings are not concerned with the title of the testator: Swami Suprakashananda v. State 2019 (264) DLT 574, Kalayanaswamy & Anr Vs. Bakthavatsalam 2021 (16) SCC 543, Vandana Sharma Vs. Smt. Hem Lata Goswami 2014 (209) DLT 741, Ajay Malhotra v. State 2019 (260) DLT 488, Navin Soi v. State 2019 (4) AD Delhi 528, Jatinder Singh Bhatia v. State AIR 2018 Delhi 197, Mukti Dutta v. Vijay Bhushan 2018 (171) DRJ 582, and Krishna Kumar Birla v.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 75 of 130Rajendra Singh Lodha (2008) 4 SCC 300.
Re: Mutation in the name of the defendants would not assist the case of the defendants.
19.17. It is the well settled principle of law that mutation entries in the revenue records before the revenue/municipal authorities do not create or extinguish any right, title or interest in immoveable property, and mutation is only for the purpose of payment of land revenue/house tax. In this regard, reliance is placed on the following case laws: 2023 (15) SCALE 406, Prahlad Pradhan v. Sonu Kumhar 2019 (10) SCC 259, 2019 (13) SCC 70; Municipal Corporation, Aurangabad v. State of Maharashtra 2015 (16) SCC 689; Municipal Corporation, Gwalior v. Puran Singh 2015 (5) SCC 725, Dinesh Kumar Sharma v. Sudhir Kumar 2018 (5) AD Delhi 244, and Mohinder Singh Verma v. J.P.S. Verma 2014 (209) DLT 741.
Re: Suit is not barred under Order II Rule 2 CPC 19.18. The objection of Order II Rule 2 of CPC cannot be looked into at this stage as the Court has prima facie considered the suit to be maintainable and at the time of framing of the issues, the defendants never pressed the framing of issue on the maintainability of the suit on account of Order II Rule 2 CPC. Without prejudice to the above, the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 76 of 130objection under Order II Rule 2 CPC is without merit. In the written statement, the Defendants have taken a Preliminary Objection that suit bearing No.1306/1999 was filed by the plaintiff on the same cause of action. The said plea of the Defendant is wholly untenable in law. First of all, the pleadings of the suit have not been placed on record by the Defendants in the present suit and therefore, the said plea cannot be looked into. Without prejudice to the above, the cause of action in the present suit and the suit instituted earlier is totally different, distinctive and separate. In the present case, the cause of action actually arose after 30.06.1999 on which date the partnership came to an end by efflux of time. The earlier suit for injunction was filed prior to 30.06.1999. The previous suit was a simple suit for permanent injunction and relief claimed was that the injunction be granted thereby restraining the Defendants from dispossessing the Plaintiff from the premises known as Hotel Imperial. The Court while entertaining the suit passed an order directing maintenance of status quo. The averments as made in the plaint were that Sardar Bahadur Ranjit Singh as the landlord and being a partner in M/s Rajdev Singh & Co. leased the Hotel Imperial to M/s Rajdev Singh & Co. of which the Plaintiff was a partner and further stated that the lease deed permitted the tenant to CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 77 of 130carry out construction and further whatever construction is carried out, the same will belong to the partners. In paragraph 14, it was stated that additional area of 1,50,000/- sq.ft. with addition of swimming pool, several levels of basement, 170 bedrooms etc. have been added.
19.19. On a bare perusal of the plaint instituted in suit No.l306 of 1999 it will be seen that it is a suit only for permanent injunction and has been filed before 20.06.2009 and the case set up is that Sardar Bahadur Ranjit Singh who was owner of the building known as Hotel Imperial was also a partner in Rajdev Singh & Company (Paragraph 5 of the plaint) and said Sardar Bahadur Ranjit Singh retired from the partnership firm on account of his old age and as such a lease agreement dated 02.07.1979 was executed and the said Sardar Bahadur Ranjit Singh renewed the lease in favour of Rajdev Singh & Company. The plaint also referred to certain clauses of lease where lease has been renewed from time to time and a copy of the order passed by the Learned Additional District Judge has been referred to. It has been further mentioned that firm M/s Rajdev Singh & Co. has been running Hotel Imperial as tenants from 1979 and the firm has spent more Rs.60 crores in renovating the whole building and have thereby add additional area of 1,50,000 sq. fit with CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 78 of 130addition of swimming pool, several levels of basement and additional 170 bed rooms in hotel. The tenants have also decorated and furnished air condition and with the understanding that tenant will not be dispossessed.
19.20. In paragraph 15, it has been stated that Defendant No.2 and 3 are also partners of the firm and to grab the entire property they are trying to dislodge the remaining partners including the plaintiff and are threatening to take forcible possession of the Hotel. In these circumstances, the Plaintiff has prayed that cause of action accrued on 22.04.1999 when the plaintiff exercised right of the renewal of the lease and on 28.05.1999 when the Defendant No.1 addressed letters informing that their intention of take over the possession after 30.06.2000.
19.21. In the written statement so filed by the Defendant, the execution of lease in favour of Rajdev Singh & Co., a partnership firm, is admitted but it has been stated that the partnership firm has ceased to exist on the expiry of fixed term i.e. 30.06.1999 and the plaintiff is not a tenant in the premises and that the lease under which M/s Rajdev Singh & Company was a tenant has been terminated by efflux of time.
19.22. The provision of Order II Rule 2 says "every suit CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 79 of 130shall include whole of the claim which the plaintiff is entitled to make in respect of cause of action". On bare perusal of the plaint, in both the cases, it will be seen that as on 20.06.1999 when the suit No.1306 of 1999 was filed both the lease in favour of Rajdev Singh & Co and the Partnership Deed were continuing. The suit No.1306 of 1999 only relates to a threat of dispossession and simple suit for injunction restraining the defendants not to dispossess all tenants without due process of law. The execution of lease and M/s Rajdev Singh & Co. being a tenant are not disputed by any of the parties. The right of the plaintiff in the present suit seeking declaration to 12½% and right to seek mesne profits arose only after 30.06.1999 when the Defendants started alleging that partnership deed has come to an end by afflux of time. There was no cause of action for the plaintiff to seek declaration on 20.06.1999 when no one was disputing his/her rights in the partnership deed.
19.23. Reference is made to the following case laws on the proposition that the bar of Order II Rule 2 CPC would not apply when the cause of action is different: Amrit Estate Pvt. Ltd. Vs. PNB 2023 (296) DLT 204; 2019 (264) DLT 516;
Indianhawks Wealth Creators Pvt. Ltd. Vs. Anil CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 80 of 130Gupta & Anr. 2018(249) DLT 417;
Kalayanaswamy & Anr Vs. Bakthavatsalam 2021 (16) SCC 543; 1997 (1) SCC 99; (2005) 10 SCC 218; 2007 (7) SCC 650; 2004 (3) SCC 277; 155 (2008) DLT 424.
Re: No document was required to be executed and registered to transfer the property into the partnership firm.
19.24. It is a settled principle of law that no document is required for transfer of property into the partnership firm, and the deed of partnership and other evidence led by the party is enough, nor the document is required to be registered. The partnership deed registered itself is enough. Under Section 14 of the Partnership Act it is sufficient for the partner to bring into the partnership, property belonging to him and make it as a part of the assets of the partnership, and it does not require any other document. In this regard, reliance is placed on the following case-laws: The Chief Controlling Revenue Authority V. Chidambaram, Partner AIR 1969 Madras 321 (FB), Firm Ram Sahay Mall Rameshwar Dayal & Ors. Vs. Bishwanath Prasad AIR 1963 Patna 221, Sudhanshu Kanta Vs. Manindra Nath AIR 1965 Patna 144, Addl.Commissioner of Income Tax, Delhi-III, New Delhi Vs. Manjeet Engineering Industries, New Delhi 1983 SCC Online Delhi 356 DB Delhi High Court, Addanki Narayanappa CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 81 of 130& Another Vs. Bhaskara Krishnappa & Others AIR 1959 AP 380, and Vali Pattabhirama Rao and another Vs. Sri Ramanuja Ginning and Rice Factory (P) Ltd. AIR 1984 AP 176.
Re: Present suit is not merely for declaration, but is for declaration with consequential relief, hence, not barred.
19.25. On a perusal of the reliefs as claimed by the plaintiff, it will be seen that the present suit is not merely a suit for declaration. The plaintiff has prayed for declaration and consequential reliefs of injunction and mesne profits. The plaintiff in the present case has claimed mesne profits because of the unlawful user of the immovable property owned by the plaintiff. Therefore, it cannot be said that there is no consequential relief. The suit, therefore, is very much maintainable.
Re: The suit for dissolution of the partnership by other partners in which preliminary decree has been passed does not bar the present suit.
19.26. With regard to the argument of the defendants that a suit for dissolution of partnership had been filed by other partners in which preliminary decree for settlement of accounts had been passed, and, therefore, the present suit was not maintainable, first of all, there are no pleadings of the said suit proved before this Court. The present plaintiff is defendant no.3 in the said case and the suit for CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 82 of 130dissolution relates to rendition of accounts of the partnership up to the date of dissolution i.e. 30.06.1999. In the present suit, the plaintiff has sought for declaration that the plaintiff is the owner to the extent of 12½ % in the suit property i.e. the hotel and has also sought for mesne profits for unlawful user of the property of the plaintiff after the dissolution of the partnership. Therefore, the relief claimed is totally distinct and separate in the suits. The preliminary decree in the suit for dissolution only describes the share of the parties which does not define any other issues. It is otherwise also the case of the plaintiff that the plaintiff was partner to the extent of 12½ % share in the partnership and therefore, owner of the assets of the firm to the extent of 12½ %.
Re: Plaintiff has valued the suit properly and has paid sufficient court fees.
19.27. The plaintiff has paid court fees on the suit for declaration on the fixed value as the plaintiff was in possession which is also clarified from the order dated 19.06.2002, and therefore, since the plaintiff was in possession, there is no need for seeking a decree for possession. Ad valorem court fees would have been payable only if the plaintiff was asking for decree of possession. The plaintiff is only asking for simple declaration for partition, and on the claims of mesne profits, the plaintiff CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 83 of 130has already paid the ad valorem court fees. Reliance is placed on the following case laws:
State of Uttar Pradesh v. Ramkrishan Burman 1970(1) SCC 80, and Ram Narain Prasad v. Atul Chandra Mitra 1994 (4) SCC 349.
20. Both parties have also filed their respective detailed Written Submissions.
21. I have considered the submissions of the learned counsels for the parties and I have perused the record.
22. My Issue-wise findings are as follows.
Issue No.1- Is the suit not maintainable, as claimed by the defendants? OPD
23. The defendants have raised objections to the maintainability of the present suit. It is, inter alia, the objection of the defendants that the present suit would not be maintainable in view of the Preliminary Decree dated 27.11.2001 passed in Suit No. 1806/1999 for the rendition of accounts of the dissolved partnership firm.
24. I have carefully considered the record and the submissions of the parties and, in my view, the present suit as framed is highly defective in nature and would not be maintainable.
25. The plaintiff's suit is essentially premised on the basis that S. B. Ranjit Singh had put the Hotel Imperial (skeleton hotel along with the fittings and fixtures etc.) as his capital into the partnership business and that as per Section 14 of the Partnership Act, the Hotel Imperial which is the suit CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 84 of 130property became the property of the firm. It is the plaintiff's case that, hence, the Hotel Imperial was the property of the partnership firm. It is also the plaintiff's case that she had 6¼ % share in the partnership under the partnership deed, and that the plaintiff's late son S. Gopal Inder Singh Sibia also had 6¼ % share which devolved upon the plaintiff, bringing the plaintiff's share to 12½ % in the partnership. It is on this basis that the plaintiff is in the present suit claiming the relief of declaration declaring her to be owner to the extent of 12½ % share in the Hotel Imperial and for mesne profits.
26. I am afraid, the plaintiff's suit is thoroughly misconceived in form and the suit as framed is not maintainable.
27. Even assuming that the Hotel Imperial was the property of the partnership firm as claimed by the plaintiff, the suit by the plaintiff for declaring her to be owner to the extent of 12½ % of the Hotel Imperial would not be maintainable.
28. It is the own case of the plaintiff in the present suit that the partnership under the partnership deed dated 01.07.1979 was for a period of 20 years, and the undisputed position is that the partnership stood dissolved by efflux of time on 30.06.1999. This is also clear from the Preliminary Decree dated 27.11.2001 passed in Suit No. 1806/1999.
29. Once it is the plaintiff's own case that the partnership firm stood dissolved on 30.06.1999 by efflux of time, then the only remedy that the plaintiff had was to sue to have the business wound up, the properties of the firm to be applied CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 85 of 130in payment of the debts and liabilities of the firm and for the surplus to be distributed amongst the partners, in exercise of her right under Section 46 read with Section 48 of the Partnership Act.
30. Section 46 of the Partnership Act provides as under:
"46. Right of partners to have business wound up after dissolution.--
On the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights."
31. Section 48 of the Partnership Act provides for the mode of settlement of accounts between partners after dissolution, as under:
"48. Mode of settlement of accounts between partners. --
In settling the accounts of a firm after dissolution, the following rules shall, subject to agreement by the partners, be observed: --
(a) Losses, including deficiencies of capital, shall be paid first out of profits, next out of capital, and, lastly, if necessary, by the partners individually in the proportions in CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 86 of 130
which they were entitled to share profits.
(b) The assets of the firm, including any sums contributed by the partners to make up deficiencies of capital, shall be applied in the following manner and order:--
(i) in paying the debts of the firm to third parties;
(ii) in paying to each partner rateably what is due to him from the firm for advances as distinguished from capital;
(iii) in paying to each partner rateably what is due to him on account of capital; and
(iv) the residue, if any, shall be divided among the partners in the proportions in which they were entitled to share profits."
32. The scheme of the law on partnership as envisaged in Sections 46 and 48 of the Partnership Act is that on the dissolution of the partnership firm, the partners have a right for having the business of the firm wound up and to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights. The settlement of the accounts would be in the manner as provided under Section 48 of CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 87 of 130the Partnership Act.
33. An overview of the law in the context of a dissolved firm would show that a suit by a partner for partition of the properties of the partnership firm would not be maintainable, and the partner's only remedy is to to sue for winding up of the business, application of the partnership properties for payment of the debts and liabilities of the firm, and for the surplus to the distributed amongst the partners as per their respective entitlement, under Sections 46 and 48 of the Partnership Act.
34. Reference in this regard is made to the decision of the Hon'ble High Court of Madras (Division Bench) in Suthersanam Maistri Vs. Narasimhulu Maistri (1901) 11 MLJ 353: MANU/TN/0060/1901, and more particularly to paragraph 36 of the decision in which it was held as under:
"36. If the plaintiff's suit on the footing of partnership were sustainable and the same be not barred by limitation, the remedy he would be entitled to in this suit would be, not to a decree for partition of partnership properties, but to an order for winding up the business of the partnership by sale of its effects including lands and houses, providing for the payment of its debts, if any, distributing the surplus of the sale proceeds according to the shares of the plaintiff and 1st defendant respectively."
(Emphasis supplied by me) CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 88 of 13035. The aforesaid decision in Suthersanam Maistri (supra) was been followed by the Hon'ble High Court of Madras in M.M. Valliammai Achi vs. KN. PL. V. Ramanathan Chettiar AIR 1969 Mad 257:
MANU/TN/0194/1969, the relevant portion of which is extracted as under:
"8. It is now settled law that a partner's or his representative's lien with reference to partnership assets is on the surplus of the assets of the firm and not on any particular item of property belonging to the partnership. On the dissolution of a firm, all the properties belonging to the partnership have to be sold and the sale proceeds after discharging all the partnership debts liabilities, have to be divided among the partners according to their respective shares, and this is the general rule. The lien of a partner is not one on any specific assets of the partnership existing on the death of a partner such as would fetter its conversion into money. The right of a representative of a partner is really a claim against the surplus assets on realisation -- whether the surplus assets consist entirely of the proceeds of realisation or whether they include some specific items of property which existed on the death of the partner. The proper remedy of a partner in the circumstances is to have accounts taken to ascertain his share and if the right to sue for accounts is barred by limitation, the partner cannot sue any CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 89 of 130
partner in possession of the assets for a share therein. If after taking accounts and discharging the mutual rights and obligations of the partners or their representatives an asset which has been forgotten or treated as valueless afterwards falls in, that asset no doubt will be divided between the partners or their representatives in proportion to their shares in the partnership.
The head-note in ILR 45 Mad 378 MANU/PR/0108/1922 : AIR 1922 PC 115, the leading case on the subject, which succinctly states the principle, runs thus:
"If a partnership has been dissolved and accounts have been wound up, the mutual rights and obligations of the partners therein being discharged, and an asset which has been forgotten or treated as valueless afterwards falls in, it ought to be divided between the partners in proportion to their shares in the partnership. But if no account has been taken, the proper remedy of a partner in respect of an asset so received is to have an account taken; if his right to sue for an account is barred by limitation, he cannot sue the partner who has received the asset for a share of it."
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CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 90 of 130
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In English Law where the distinction is between real and personal property the position is stated thus in Lindley on Partnership, 12th Edition, at page 378:
"From the principle that a share of a partner is nothing more than his proportion of the partnership assets after they have been turned into money and applied in liquidation of the partnership debts, it necessarily follows that in equity, a share in a partnership whether its property consists of land or not, must, as between the real and personal representatives of a deceased partner, be deemed to be personal and not real estate, unless indeed such conversion is inconsistent with the agreement between the parties."
The Supreme Court quotes this passage with approval in Narayanappa V. Bhaskara Krishnappa, MANU/SC/0281/1966 : [1966]3SCR400 , where the Court had to consider whether a document evidencing relinquishment of interest of the partners in partnership assets which consisted also of immovables was compulsorily registrable under Section 17(1) of the Registration Act Their Lordships of the Supreme Court held that the interest of the partners in partnership assets was moveable property, and that the document CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 91 of 130evidencing relinquishment of that interest was not compulsorily registrable. After referring to the relevant section of the Partnership Act it is observed:
"From a perusal of these provisions it would be abundantly clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profits, if any, accruing to the partnership from the realisation of this property, and upon dissolution of the partnership to a share in the money representing the value of the property."
Quoting from Lindley it is said:
"What is meant by the share of a partner is his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged. This it is, and this only which on the death of a partner passes to his representatives, or to a legatee of his share ..... and which on his bankruptcy passes to his trustee."
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 92 of 130Clearly the above extracts indubitably establish that the character of any particular asset of the partnership, has little to do in ascertaining the share to which a partner or his representative may be entitled in the property of the firm on dissolution. There is a direct decision of this Court on this question in Sundarsanam Maistri v. Narasimhulu Maistri, I.L.R.(1902) Mad 149 where it is said:
"It was further contended by the learned Advocate-General that the three years' period of limitation prescribed by Article 106 would be inapplicable to houses and lands purchased by the first defendant from the profits of the partnership. This contention would certainly hold good if it had been alleged and proved that, from time to time, portions of the assets of the partnership were, by the agreement of the partners, withdrawn from the partnership and converted into land or house to be owned by the partners as co-owners.
.....
If the plaintiffs suit on the footing of partnership were sustainable. and the same be not barred by limitation, the remedy he would be entitled to in this suit would be, not to a decree for partition of partnership properties, but to an order for winding up the business of the partnership by sale of its effects, including CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 93 of 130
lands and houses, providing for the payment of its debts, if any, distributing the surplus of the sale proceeds according to the shares of the plaintiff and first defendant respectively."
In that case the plaintiff sued for a share in the partnership which admittedly was possessed of Immovable property. It was argued that in respect of Immovable property the suit would be in time, although as a suit for dissolution of partnership it was barred by limitation. It was held that the only suit which could be brought was for winding up of the partnership business and for distribution of the properties and not a suit for partition of the partnership properties. On that basis the suit was held barred by limitation. This decision and Venkata Ratnam v. Subba Rao, ILR 49 Mad 738 AIR 1926 Mad 1010 which relied on it, find approval by the Supreme Court in MANU/SC/0281/1966 :
[1966]3SCR400 . Reference may also be made to Gobardhan v. Ganesh Lal, (1911) 11 Ind Cas 288 where it was held that a suit for division of Immovable property forming Part of partnership assets after the dissolution of partnership is governed by Article 106 of the Limitation Act. The decision in Ismail v. Tayaballi, AIR 1929 Sind 182 which has followed Sundarsanam Maistri v. Narasimhulu Maistri, I.L.R.(1902) Mad 149 and the one in Niaz Ahmad v. Abdul Hamid, CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 94 of 130
MANU/UP/0079/1908 : I.L.R.(1908) All 279 may also be cited here."
(Emphasis supplied by me)
36. Reference in this regard is also made to the decision of the Hon'ble High Court of Telangana and Andhra Pradesh in Ketineni Chandrasekhar Rao vs. Boppana Seshagiri Rao MANU/AP/0677/2016, the relevant portion of which is extracted hereunder:
"21. The suit is field for multiple reliefs. Paragraphs
(a) and (b) in paragraph 10 of the plaint read as under:
"a) To pass a preliminary decree for partition of suit schedule property by metes and bounds situated at 7-1-208/2 in Sy. No. 157, Ameerpet, Hyderabad, admeasuring 7250 sq. yards and also divide the immovable property of the said partnership firm and allot 1/5th share to the plaintiff;
b) By granting a decree for dissolution of the partnership firm by name "M/s. Satyam Brothers & Co" situated at 7-1-208/2 in Sy.
No. 157, Ameerpet, Hyderabad, admeasuring 7250 sq. yards...."
In paragraph 1 of the plaint, the plaintiff pleaded that himself, defendant Nos. 1 to 14 and his son Mr. B. Srinivasa Rao are the partners of the firm by CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 95 of 130name "Satyam Brothers & Co." as per the partnership deed dt. 23.07.2005, that the said partnership firm was originally constituted on 26.06.1978, and that the business of the partnership firm is running of a cinema hall by name "Satyam Theatre" at Ameerpet, Hyderabad. The plaintiff further averred that the partnership stood dissolved on account of notice dt. 02.05.2011 issued by defendant No. 1.
In paragraph 2 of the plaint the plaintiff inter alia averred as under:
"It is submitted that the immovable property on which the cinema hall is existing is a land admeasuring 7250 sq. yards in Sy. No. 157 at Ameerpet, Hyderabad. This immovable property does not belong to the partnership firm and the said property (is) belongs to plaintiff and his four brothers who (are) died and their legal successors are defendant Nos. 1 to 14 in the suit. It is submitted that the plaintiff is having 1/5th share in the said immovable property which was acquired under a specific performance decree in O.S. No. 514 of 1974 on the file of the I Additional Judge, City Civil Court, Hyderabad, confirmed in C.C.C.A. No. 63 of 1980 and L.P.A. No. 146 of 1988. Hence, the plaintiff is entitled to 1/5th share in the said immovable CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 96 of 130
property on which the partnership firm business is run."
In our opinion the aforementioned averments as well as the prayers (a) and (b) extracted above are mutually contradictory. Section 14 of the Act postulates that subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, and unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm. Therefore, once a partnership is formed, all the properties brought into the stock of the firm by the partners become the part of the firm's properties.
22. Under the first partnership deed dt. 26.06.1978, the entire land of 7250 sq. yards acquired by all the five original partners, including the plaintiff, was thrown into the partnership stock and accordingly it became the property of the partnership firm. A theatre was constructed on the land and the partnership firm was running the theatre. A fresh partnership deed was executed among the pre- existing and new partners on 23.07.2005. Under this partnership deed, the plaintiff and his son by name, Boppana Srinivasa Rao, have 5% share each, while CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 97 of 130the remaining partners including the appellants herein hold the balance shares. It is the pleaded case of the appellants, which is not disputed by the plaintiff, that one Dr. K. Lakshmi, D/o. K. Rama Rao, one of the original co-sharers and partners under the partnership deed dt. 26.6.1978, filed O.S. No. 596 of 2001 for partition and separate possession of the subject property and the said suit was dismissed by judgment dt. 11.4.2007 of the X Additional Chief Judge (Fast Track Court), FAC, IX Additional Chief Judge, City Civil Court, Hyderabad, mainly on the ground that the subject property being firm property is not liable for partition. Admittedly, the plaintiff, who is defendant No. 4 in the said suit, has not disclosed the said fact in the present suit or in the I.A. filed by him for injunction. Thus, we find that the plaintiff has not revealed material facts. When there is no dispute about the fact that the entire extent of 7250 sq. yards was thrown into partnership stock and the same forms part of 'M/s. Satyam Brothers & Co.' partnership firm, the plaintiff is not entitled to the grant of prayer (a) namely, preliminary decree for partition. The submission of Mr. V.L.N.G.K. Murthy that the said prayer is also hit by the doctrine of res judicata in view of dismissal of O.S. No. 596 of 2001, is seriously disputed by Mr. Vedula Venkata Ramana. For adjudication of these CMAs, this aspect need not be discussed as prima facie even in CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 98 of 130the absence of application of doctrine of res judicata, decree for partition in respect of the property of a partnership firm cannot be granted. Once the plaintiff is not entitled to passing of a preliminary decree for partition, all that he can seek in the suit is passing of a decree for dissolution of the partnership and rendition of accounts as per the existing partnership deed. This view of ours is fortified by the judgment of the Supreme Court in Addanki Narayanappa (supra) wherein it was held that the provisions of Sections 14, 15, 29, 32, 37, 38 and 48 of the Act make it clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership, it becomes the property of the firm and what a partner is entitled to is his share of profits, if any, accruing to the partnership from the realization of the property, and upon dissolution of the partnership to a share in the money representing the value of the property. Admittedly, the plaintiff being a partner cannot claim partition of his original share and he may be entitled to a share in the partnership assets calculated in terms of the money or otherwise in the pending suit.
... ... ..."
(Emphasis supplied by me)
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 99 of 130
37. The decision in Ketineni Chandrasekhar Rao (supra) was followed by the Hon'ble High Court of Andhra Pradesh (Division Bench) in Varalakshmi Jute Twine Mills Private Limited vs. Grandhi Naveen Babu and Ors. MANU/AP/0800/2023, wherein it has been held as under:
"8. The law on the subject is also very clear. The judgment relied upon by the learned senior counsel reported in Ketineni Chandrasekhar Rao case (1 supra) is applicable to the facts. It is clearly mentioned that once the property is thrown into the partnership stock it becomes the property of the firm and the partner is only entitled to a share of the profits accruing to the partnership firm or upon dissolution of share in the money representing the value of the property. It is clearly held that the plaintiff being a partner cannot claim a partition or demand his share of the property. To the same effect is the judgment of the Hon'ble Supreme Court of India reported in Addanki Narayanappa case (2 supra) in paragraph-7 the following is held:
"7. It seems to us that looking to the scheme of the Indian Act no other view can reasonably be taken. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the trading asset CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 100 of 130
of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated, his right during the subsistence of the partnership is to get his share of profits from time to time as may be agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of dissolution or retirement after a deduction of liabilities and prior charges. It is true that even during the subsistence of the partnership a partner may assign his share to another. In that case what the assignee would get would be only that which is permitted by Section 29(1), that is to say, the right to receive the share of profits of the assignor and accept the account of profits agreed to by the partners."
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 101 of 1309. It appears none of the defendants has taken a clear plea about the status of the property. To effect a partition of the property it must first be concluded that it is capable of being partitioned. If it is partnership property it cannot be "partitioned" in view of the law. Along with the status of the property (joint family/partnership etc) the conduct of the defendants has to be examined to decide if there was suppression of facts etc.
10. This Court is, therefore, of the opinion that this is a fit case which should be remanded back to the trial court with a direction to enquire threadbare into the issue and then decide if the suit itself is maintainable or not based on the status of the property. The matter requires evidence before a final conclusion is to be reached.
11. With the above observation the Appeal Suit is allowed. ... ... ..."
(Emphasis supplied by me)
38. Thus, it is the clear position of law that upon dissolution of the firm, a suit by a partner for partition of the partnership properties would not be maintainable, and the partner could only sue for winding up, for the accounts and for his share of the residue after realisation of the assets of the firm and after clearing the debts and liabilities of the firm. By corollary, on a similar principle, even a suit by a partner merely for declaration of being owner of a share in CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 102 of 130an immoveable property of the partnership firm and for mesne profits on this basis would also not be maintainable. Hence, the present suit as framed is unsustainable and not maintainable. The appropriate remedy for the plaintiff was to sue for winding up of the business of the firm, for settlement of accounts and for her share of the residue after realisation of the assets of the firm and clearing of the debts and liabilities of the firm. In such a suit, all the partners of the firm would have been arrayed as parties being necessary parties.
39. Furthermore, the undisputed position is also that, in fact, some of the partners of the dissolved firm had already filed suit being CS No. 1806/1999 before the Hon'ble High Court of Delhi. It is also the undisputed position that the partners in the firm, including the plaintiff herein as well as the defendants nos. 1 and 2 herein, were arrayed as parties in the said suit CS No. 1806/1999. A perusal of the plaint in CS No. 1806/1999 Ex.DW-1/17 shows that in the said suit, inter alia, the reliefs were sought for winding up the affairs of the firm by appointment of a committee or receiver and to determine the true and correct share of the partners in the dissolved firm. It is also the undisputed position that in the said suit, a preliminary decree dated 27.11.2001 Ex.DW-1/17A was already passed with the consent of the parties recording that the firm stood already dissolved by efflux of time on 30.06.1999 and directing for settlement of accounts of the dissolved firm through the appointment of a firm of Chartered Accountants. The CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 103 of 130relevant portion of the order dated 27.11.2001 passed in CS No. 1806/1999 (as corrected vide order dated 18.01.2002) is as under:
"S. No.1806/09During the course of submissions it has been conceded that the partnership stood dissolved by afflux of time as on 30th June, 1999 on basis of the partnership deed of 1st July, 1979.
It is also conceded at the Bar at either end that keeping in view the aforesaid fact a preliminary decree for rendition of accounts be passed and that M/s. KPMG a firm of Chartered Accountants be appointed as the Local Commissioner to go into the accounts and find out as to what amount, if any, would be due to the plaintiff and to which of the defendants.
The Local Commissioner/Chartered Accountants mentioned above would seek accounts and go into them up to 30th June, 1999. It would be separately go into the accounts from 1-7-99 up to the date of winding up. This would be subject to the final order that Court may pass with respect to the period for which the accounts have to be rendered. ... ... ..."
40. It is well settled that in a suit for dissolution of partnership and rendition of accounts every partner is both a plaintiff and a defendant. Reference in this regard is made to the decision in Parmod Kumar Gupta vs. Ram Murti Devi and CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 104 of 130
Ors. MANU/DE/2163/2017, wherein it was held as under:
"6. It is trite that in every suit for dissolution of partnership and rendition of accounts every partner is both a plaintiff and a defendant meaning thereby a partner is a plaintiff to the extent that he has to get rights in the partnership firm and the partner is a defendant to the extent that he is liable to render accounts of any of the assets etc. of the partnership firm in the hands of such partner. Every partner therefore has a right and a liability and is therefore both a plaintiff and a defendant simultaneously in a suit for dissolution of partnership firm and rendition of accounts."
41. Thus, even assuming that the Hotel Imperial was partnership property as claimed by the plaintiff, it was for the plaintiff to either file a suit for winding up and settlement of accounts between the partners claiming the Hotel Imperial premises as partnership property, or to make such a claim for winding up and settlement of accounts as a party in the suit CS No. 1806/1999 itself. However, in so far as the present suit is concerned, the same is clearly not maintainable in view of the aforesaid discussion. The suit is liable to be dismissed on this ground alone.
42. Accordingly, the Issue No.1 is decided in favour of the defendants and against the plaintiff.
Issue No.3- Whether the Plaintiff has any right/share in CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 105 of 130the ownership of Hotel Imperial land and building, if so, what proportion? OPP
43. The Issue No.1 has already been decided against the plaintiff, and the suit has been held to be not maintainable and liable to be dismissed on this ground alone. Be that as it may, I have also considered the Issue No.3 assuming the suit to be maintainable.
44. The entire basis for the plaintiff's claim that she was owner to extent of 12½ % share in the Hotel Imperial and the buildings and construction thereon is that the owner of the property i.e. S. B. Ranjit Singh had by way of the Partnership Deed dated 30.04.1972 Ex.P-2 put the Hotel Imperial premises as his capital into the partnership business and that, hence, the Hotel Imperial premises became the partnership property under Section 14 of the Partnership Act.
45. Section 14 of the Partnership Act provides as follows:
"14. The property of the firm.--
Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of the business of the firm, and includes also the goodwill of the business.
Unless the contrary intention appears, property and CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 106 of 130
rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm."
46. The first part of Section 14 of the Partnership Act provides that the property of the firm includes all property and rights and interest in property originally brought into the stock of the firm, or acquired by purchase of otherwise by or for the firm or for the purposes and in the course of the business of the firm. Importantly, this provision is subject to the contract between the parties.
47. The second part of Section 14 of the Partnership Act provides that property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm. Importantly, this provision is also subject to any contrary intention appearing.
48. It is the case of the plaintiff that S. B. Ranjit Singh had originally brought the Hotel Imperial premises into the stock of the firm and as such the partnership firm became the owner of the Hotel Imperial premises. It is also the case of the plaintiff that after the Hotel Imperial premises was originally brought to the stock of the firm by S. B. Ranjit Singh and became partnership property, the firm carried out further construction on the Hotel Imperial premises and accordingly, such further construction also became part of the partnership property.
49. I have carefully considered the pleadings and the evidence CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 107 of 130on record as well as the submissions of the parties in this regard. Clearly, the suit of the plaintiff must fail. There is ample evidence on the record to show, on a balance of probabilities, that S. B. Ranjit Singh had not brought the Hotel Imperial premises into the stock of the firm and this was the clear agreement and understanding of the parties.
50. The plaintiff has primarily relied upon Clause 3 of the Partnership Deed dated 30.04.1972 to argue that S. B. Ranjit Singh had contributed the Hotel Imperial premises to the partnership business as capital and that, hence, the Hotel Imperial premises became partnership property. For better understanding, Clause 3 of the Partnership Deed dated 30.04.1972 is extracted hereunder:
"3. That Sardar Ranjit Singh, First Party will contribute skeleton hotel premises to get herewith fitting, fixture, furniture, equipment fully detailed in schedule 'A' annexed to this Agreement for the partnership business end as detailed in agreement of lease, dated 16th August, 1968. Sardar Ranjit Singh at any time hereinafter shall not, he asked to contribute any further capital for the partnership business, Rs 21 lacs, shall be provided as capital by 2nd, 3rd, 4th, 5th, 5th and 7th Parties in proportion to their respective shares. The amount standing credited to the last 6 parties in the account hooks of Ms. Rajdev Singh & Co. shall be considered as their gapital contribution in the partnership firm."
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 108 of 13051. Although Section 14 provides that property originally brought into the stock of the firm would become partnership property, however, this was clearly "subject to contract between the partners". Thus, even if any property was originally contributed for the firm by any partner, the parties could contract that the same would not constitute partnership property, and in the event of any such contract, such property would not obtain the character of partnership property. In the present case, there is ample evidence to show that the partners had clearly contracted that the Hotel Imperial premises would not become partnership property.
52. Soon after the Partnership Deed dated 30.04.1972 was executed, the partners executed another document being the Statement of Clarification dated 17.05.1972 Ex. PW-1/D2. The plaintiff has clearly admitted in paragraph B of the 'Reply to Preliminary Objections' portion of her replication to the written statement of defendant no.1 that the Statement of Clarification carries her signature. Importantly, the plaintiff also does not claim in her written statement that she had signed the Statement of Clarification under any fraud or misrepresentation or coercion or pressure. Thus, clearly the plaintiff had signed the Statement of Clarification voluntarily. Undisputedly, the plaintiff has also neither sought cancellation nor declaration as null and void of the said Statement of Clarification. Thus, the Statement of Clarification stands as it is.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 109 of 13053. Although the plaintiff has sought to contend in the replication that the Statement of Clarification was executed only for the purposes of claiming tax advantages under the Wealth Act and that the Statement of Clarification was never implemented or acted upon, however, the plaintiff has been unable to prove this contention. When the execution of the Statement of Clarification is admitted by the plaintiff, then the onus heavily on the plaintiff to show that this was only a sham document which was not to acted upon. The plaintiff has been unable to discharge this onus.
54. Rather, the evidence on record clearly shows that the Statement of Clarification was not a sham or bogus document executed by the partners, but was a document which was executed voluntarily and contained the real agreement between the parties. This is clear from the conduct and actions of the parties which shall be referred to in the following paragraphs in detail.
55. The Statement of Clarification dated 17.05.1972 is crucial to the present case, and is extracted hereunder, in extenso:
"This Statement of Clarification made this 17th day of May, 1972 by S. Ranjit Singh S/o Rate R.B. Narain Singh of New Delhi. S. Rejdov Singh S/o S. Ranjit Singh of New Delhi, 8. Hardev Singh S/o S. Rajdev Singh of New Delhi, Bibi Surinder Kaur H/o
3. Shivander Pal Singh of few Delhi, Bibi Govinder Kaur W/o S. Gurbex Singh of New Delhi, Bibi CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 110 of 130
Amarjit Kaur W/o S. Daya Singh of New Delhi and Bibi Amrit Kaur Widow of Late S. Surjitinder Singh Sibia of sitna House Patiala.
The above said persons entered into partnership vide deed dated 30.4.1972 on the terms and conditions stated therein to carry on the business of Hotal Imperial and Restaurant and the Lake at New Dolhi and have been carrying on the same accordingly.
The above said seven persons partners hereby record their clear understanding of clause 3 of the said partnership deed dated 30.4.1972 As follows as understood by them at the time of executing the said partnership deed.
1. That S. Ranjit Singh (First party in the Partnership Deed) has merely allowed the use of his premises styled (Hotel Imperial) situated at Janpath, New Delhi and is not in any manner whatsoever divested himself of his ownership and possession of the said premises to the said partnership and there has not been my extinguishment of any right of S. Ranjit Singh in any manner, whatsoever of the said premises (1.e. land and building) by virtue of terms of the said partnership deed as understood and agreed by the partners which has been and is and continues to be exclusively owned and possessed by said S. Ranjit Singh.
2. That S. Ranjit Singh pursuant to clear CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 111 of 130
understanding as recorded hereinabove, will be entitled to claim depreciation of the building in his income-tax returns as here-before.
In witness hereof the said persons (partners as aforesaid) have executed and signed this statement of clarification on this 17th day of May, 1972.
(Signed by the Partners)"
56. The terms of the Partnership Deed dated 30.04.1972 contained the intention and agreement of the parties. The partners, who were the executants of the Partnership Deed were the best persons to say as to what was the real intention and meaning of the terms of the Partnership Deed.
57. Soon after the execution of the Partnership Deed dated 30.04.1972, the partners themselves executed the Statement of Clarification dated 17.05.1972 stating and clarifying as to what was their intention in and understanding of the Clause 3 of the Partnership Deed at the time of executing the partnership deed. The partners have themselves stated in the Statement of Clarification that as per their understanding S. B. Ranjit Singh had merely allowed the use of the Hotel Imperial premises to teh partnership firm and had not in any manner whatsoever divested himself of his ownership of the premises and that the Hotel Imperial premises continued to be owned by S. B. Ranjit Singh.
58. The exercise of interpretation of a contract is not an CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 112 of 130exercise to be conducted by taking the contract in isolation and separate from the surrounding circumstances including the subsequent events and conduct of the parties. The interpretation of a contract is a dynamic process which involves looking into the conduct of the parties and understanding as to how the parties themselves understood the document. After all a contract is nothing but a meeting of minds between the parties and contains the intention of the parties. When the partners have themselves, subsequent to the execution of the partnership deed, clearly and unanimously declared by way of the Statement of Clarification as to what was their intention and understanding of the Partnership Deed, then such interpretation of the partnership deed as declared by the partners themselves would be the best interpretation of the partnership deed, and has to be accepted.
59. Furthermore, as pointed out by the defendants, even the audited balance sheets of the partnership firm for the relevant period Ex.PW-1/DX-1 to Ex.PW-1/DX20 duly signed by all the partners do not show the Hotel premises and land of S. B. Ranjit Singh to be capitalized in the firm's books.
60. It is also the admitted position that S. B. Ranjit Singh had executed Will dated 09.07.1979 Ex. DW-1/4 which was also got registered. By way of the said Will, S. B. Ranjit Singh unequivocally bequeathed the Hotel Imperial to his son S. Rajdev Singh as the exclusive owner. He has also categorically stated in this Will that his wife or any other CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 113 of 130female heirs shall have no concern with the Hotel Imperial property.
61. It is also the admitted position that, subsequently, S. B. Ranjit Singh had executed Codicil dated 28.06.1984 Ex. DW-1/4 which was also got registered. By way of the said Codicil also, S. B. Ranjit Singh unequivocally bequeathed the Hotel Imperial to his son S. Rajdev Singh as the exclusive owner. He has also categorically stated in the Codicial that his wife or any other female heirs shall have no concern with the Hotel Imperial property. Crucially, this Codicil was witnessed by none other than two sisters of S. Rajdev Singh, namely Smt. Surinder Kaur and Smt. Amarjit Kaur, who were also partners in the firm.
62. The execution of the will and the codicil by which S. B. Ranjit Singh beqeauthed the Hotel Imperial absolutely to his son S. Rajdev Singh and to the exclusion of any female heirs was in line with the position that S. B. Ranjit Singh remained the owner of the Hotel Imperial land and buildings.
63. It is also the admitted position that S. Rajdev Singh had applied to the Hon'ble High Court of Delhi by way of Probate Case No. 52/1985 for probate of the Will and Codicil. It is also the admitted position that in the probate proceedings, all the sisters of S. Rajdev Singh including the plaintiff had filed their respective affidavits in which they stated that they had seen the Will and Codicil executed by S. B. Ranjit Singh and accepted the same as CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 114 of 130the last testamentary instrument of S. B. Ranjit Singh. The affidavit in this regard of the plaintiff is Ex. PW-1/D-1/1 (Ex.DW-1/5). The execution of the testamentary instruments was duly proved in the probate proceedings and probate was granted vide Judgment dated 21.05.1986.
64. Following the grant of the probate, S. Rajdev Singh applied for mutation of his name in the records of the L&DO in respect of perpetual lease of the Hotel Imperial premises. The mutation proceedings are also crucial. Undisputedly, the premises known as the Hotel Imperial at Janpath, New Delhi had been granted to S. B. Ranjit Singh by way of a Perpetual Lease Deed. All the sisters of S. Rajdev Singh including the plaintiff also filed affidavits before the L&DO stating that S. B. Ranjit Singh had excuted the Will dated 09.07.1979 and Codicil dated 28.06.1984 which were registered. It was further categorically stated that the Will and Codicil were genuine and should be acted upon. It was further stated that the sisters of S. Rajdev Singh accepted the Will and Codicil and that they had no objection to the mutation of the Hotel Imperial Land and Buildings in favour of S. Rajdev Singh. The affidavit in this regard of the plaintiff is Ex. PW-1/D-7.
65. The aforesaid conduct of the sisters of S. Rajdev Singh including the plaintiff in the probate and mutation proceedings was absolutely in consonance with their declaration in the Statement of Clarification dated 17.05.1972.
CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 115 of 13066. In the Statement of Clarification, the partners of the firm had made clear their understanding that the Hotel Imperial land and buildings were owned by S. B. Ranjit Singh only and that S. B. Ranjit Singh had only allowed the firm to use the Hotel Imperial property. Thus, there was a clear contract between the parties that the Hotel Imperial property did not become partnership property. The provision of Section 14 of the Partnership Act begins with the phrase "subject to the contract between the partners" . Hence, even though in the partnership deed it was recorded that S. B. Ranjit Singh was contributing the Hotel Imperial property for the partnership business, since there was a contract between the partners that the Hotel Imperial property would continue to be owned by S. B. Ranjit Singh, hence, the Hotel Imperial property did not become partnership property.
67. In consonance with this understanding, S. B. Ranjit Singh had executed and registered his Will dated 09.07.1979 bequeathing as owner the Hotel Imperial property to his son S. Rajdev Singh as the exclusive owner. The subsequent Codicil dated 28.06.1984 whereby also S. B. Ranjit Singh bequeathed the Hotel Imperial property to his son S. Rajdev Singh as the exclusive owner manifested the understanding that S. B. Ranjit Singh was the owner of the Hotel Imperial. The fact that the sisters of S. Rajdev Singh were the attesting witnesses to the Codicil without any objection is also testament of the position that the sisters had clearly understood that the Hotel Imperial property CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 116 of 130remained owned by S. B. Ranjit Singh only. The fact that the sisters of S. Rajdev Singh including the plaintiff executed affidavits accepting the testamentary instruments made by S. B. Ranjit Singh also testifies to the fact that the sisters always understood that S. B. Ranjit Singh was the owner of the Hotel Imperial. This is also manifested from the affidavits executed by the sisters of S. Rajdev Singh including the plaintiff in the mutation proceedings in which they have categorically accepted the testamentary instruments of S. B. Ranjit Singh.
68. It is wholly improbable that the plaintiff and the other sisters would have peaceably executed and filed the affidavits in the probate as well as the mutation proceedings accepting the testamentary instruments of S. B. Ranjit Singh in case it was their understanding that S. B. Ranjit Singh was not the sole and absolute owner of the Hotel Imperial and that Hotel Imperial had become partnership property.
69. The undisputed position is also that S.B.S. Ranjit Singh and the partnership firm had executed registered lease deed dated 02.07.1979 Ex. DW-1/2 in respect of the Hotel Imperial property for a period of 5 years w.e.f. 01.07.1979 to 30.06.1984, and, thereafter, registered lease deed dated 28.06.1984 Ex. DW-1/3 for another period of 5 years w.e.f. 01.07.1984 to 30.06.1989. By way of these lease deeds, S.B.S. Ranjit Singh had as the landlord leased the Hotel Imperial property to the partnership firm as the tenant. S.B.S. Ranjit Singh died on 20.12.1984. The subsequent CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 117 of 130lease deed, being registered lease deed dated 09.01.1991 Ex. PW-1/D6 was executed between S. Rajdev Singh as the landlord and the partnership firm as the tenant for a fixed period of 05 Years w.e.f. 01.07.1989 to 30.06.1994. Subsequently, another registered lease deed dated 17.06.1994 Ex. PW-1/D5 was executed between S. Rajdev Singh and the partnership firm for another period of 05 Years w.e.f. 01.07.1994 to 30.06.1999.
70. In the lease deed dated 17.06.1994, it is clearly acknowledged that the landlord S. Rajdev Singh was "the owner of the Hotel Imperial Buildings situated at Janpath and the Perpetual Lease rights of the land in the said Hotel Buildings, which he inherited from his father late S.B. Ranjit Singh".
71. The execution of the lease deeds also go to show that the parties always agreed and understood that the Hotel Imperial buildings and properties were not partnership property, but were the property of S. B. Ranjit Singh, and upon his demise, of S. Rajdev Singh through inheritance.
72. Further, the lease deed dated 17.06.1994 shows the understanding and the agreement between the parties with respect to the construction which the partnership firm had made in the hotel premises. Clauses 6, 8 and 16 of the lease deed dated 17.06.1994 are relevant in this regard, and the same are reproduced hereunder:
"6. That the TENANTS shall not make any alterations in the buildings without the express CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 118 of 130
sanction from the L&DO and the New Delhi Municipal Committee. In case this permission is granted and the LANDLORD also agrees to make the additions and alterations or for any additional accommodation to be constructed by the TENANTS, the same shall be constructed by the TENANTS at their own cost. The TENANTS will be entitled to get the cost of such additional accommodation construction and from the LANDLORD before handing over possession of the premises back to the LANDLORD. The TENANTS at their own expense will have to obtain permission in writing from the New Delhi Municipal Committee and the Lieutenant Governor of Delhi or from the Government before any construction work is taken in hand in Hotel Imperial. The TENANTS will also pay to the LANDLORD the additional ground rent demanded by the LANDLORD to the Land & Development Office, New Delhi."
"8. That the TENANTS had already at their own cost fixed and installed air-conditioning with necessary ducting and have brought in air- conditioning machinery with necessary equipment and had further installed new A.C. Electric transformers, cables, switch boards, electric wiring, new A.C. Fans, cables. The TENANTS had also brought in new kitchen equipments, kitchen utensils and new hot water boilers, glassware, crockery, CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 119 of 130
silverwares, new linen, napery, blankets, rubber matresses, new furniture, new carpets and new curtains. The TENANTS had further laid down complete bell system, complete telephone system, television system and complete music system. The TENANTS have made 69 new bath rooms and a swimming pool with changing rooms etc. All these have been done by the TENANTS at their recorded in the account books of own the expenses as TENANTS and revealed in audited Balance Sheets of their business as on 30th June, 1979."
"16. That the TENANTS shall not be entitled to either transfer or sublet the premises or any part thereof to any person without the written consent of the LANDLORD, and on such transfers both the TRANSFEREE and the TENANTS shall be liable for payment of rents to the LANDLORD, and to deliver possession of the hotel premises. The TENANTS at the time of dispossession or termination of the tanancy shall be entitled to claim cost of their entire fixtures and other moveables equipment brought in by them form the LANDLORD, such as carpets, curtains, silverwares, glasswares, crockery, linen, napery, blankets , all the kitchen equipmewnt, air-conditioning plants with necessary machinery, pipes and other necessary accessories, electric transformers. cables, switch boards, accessories, bell system, with all the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 120 of 130
necessary complete with wires and equipment including refrigeration, freezers, ice-creams making mixing machines, Coffee machines and all other necessary equipments required to run a first class Hotel and brought in by the TENANTS including cost of construction of 69 bath rooms, other additions in the building and the Swimming pool. In fact whatever would be brought in the Hotel by the TENANTS to run the hotel as a first class Hotel will belong to the TENANTS and at the termination and dispossession of the TENANTS from the premises, the LANDLORD shall pay to the TENANTS for their fittings, fixtures, furnitures, equipment etc. brought in by the TENANTS at the market price prevailing at the time of dispossession.
The TENANTS have constructed 69 bath rooms and a Swimming pool with bath rooms and changing rooms etc. The TENANTS will not be dispossessed without payment for construction of 69 bath rooms, Swimming pool and other buildings constructed in the premises by them, and all fittings, fixtures, furnitures, plants articles installed by them at their cost. and other The said market value mentioned above will be the cost of construction and installing of new equipment on the date of dispossession less depreciation allowed under the Income Tax Act, provided, however, on account of rising costs, the said value payable to the TENANTS will not be less CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.Page No. 121 of 130
than the original amount spent by the TENANTS upon the said buildings, equipment, furnitures fittings. fixtures, plant etc. as per account books of the TENANTS.
The TENANTS have got sanctioned plans for construction of additional accommodation consisting of 117 bed rooms, 117 bath rooms, basement and other accommodation in the name of the LANDLORD S. Rajdev Singh from the New Delhi Municipal Committee. The TENANTS got demolished the existing two restaurants and some other accommodation for the purpose of making construction as per the sanctioned plans. The TENANTS have constructed a basement undernearth, three restaurants on the Ground Floor and 19 bed rooms with attached bath rooms and other accommodation on the Ist, 2nd and 3rd floors, thus making 57 bed rooms with attached bath rooms and other accommodation. The TENANTS have completely decorated, furnished, air-conditioned and equipped all these bed rooms and the restaurants with all modern amenities. The TENANTS will not be dispossessed without payment for making this additional construction and all the fittings, furniture, appliances and other articles installed by them at their costs in accordance with the terms of this paragraph."
(Emphasis supplied by me) CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 122 of 13073. Thus, as per the agreement between the parties, the partnership firm had got sanction plans for construction of additional premises in the Hotel in the name of S. Rajdev Singh, and such construction was carried out by the partnership firm. As per the agreement, in view of the construction made by the partnership firm in the hotel premises, the partnership firm was entitled to receive the costs of such construction from S. Rajdev Singh and that the partnership firm could not be dispossessed without payment of such costs. Similar provisions as in the afore- extracted portion of the lease deed dated 17.06.1994 were also there in the previous lease deeds. The clear inference is that the additional construction which was sanctioned in the name of S. Rajdev Singh did not enure absolutely to the partnership firm, but the partnership firm was only entitled to claim costs towards the additional construction and to claim that the firm would not be dispossessed without payment of such costs.
74. The understanding and arrangement between the parties in respect of the partnership is discernable from the Partnership Deed of 1972, the Statement of Clarification of 1972, the Partnership Deed of 1979, the execution of the will and codicil by S. B. Ranjit Singh, the probate proceedings, the mutation proceedings as well as the lease deeds, all of which are to be read and interpreted in a harmonious manner to cull out the real intention of the parties. The Clause 16 of the Partnership Deed dated 01.07.1979 Ex.P-7, which provided that no construction CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 123 of 130shall be made in the Hotel Imperial Buildings without the prior permission of the authorities and that the construction so made shall belong to the partnership and its expenses shall be debited to the account of the partnership, has to be read harmoniously with the Statement of Clarification dated 17.05.1972, which provided that S. B. Ranjit Singh remained the owner of the Hotel Imperial premises and that he had not divested ownership, as well as the lease deeds, which provided that the partnership firm would make the construction at its own cost and that such expenses would be recorded in the account books of the firm and that the firm shall not be dispossessed without payment for making such additional construction. When these documents are read harmoniously then the understanding of the parties which is revealed is that the Hotel Imperial premises remained in the ownership of S. B. Ranjit Singh and was not transferred to the firm, and that the additional construction was to be made by the firm at its own expense which was to be recorded in its account books, and that such additional construction belonged to the firm only in the sense that the firm was entitled to claim the costs/expenses in respect of such additional construction from S. Rajdev Singh, and that the firm was not to be dispossessed without making payment to the firm in respect of the additional construction. Since, the dissolution of the firm was to take place on 30.06.1999 and the last lease deed was also to expire on 30.06.1999, this exercise of making payment for the additional construction was naturally to be CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 124 of 130conducted only at the time of settlement of the accounts post the dissolution of the firm. What would be the mode and manner of calculating and quantifying the costs towards the additional construction which was to be paid towards settlement of the accounts is, however, wholly a different matter which is not the concern in the present suit.
75. The plaintiff herein had sometime in June 1999 filed suit for permanent injunction against S. Rajdev Singh and the defendants nos. 1 and 2 herein being CS No.1306/1999. The plaint in the said suit is Ex. DW-1/16. In the said suit, the plaintiff had also impleaded her three sisters as parties on the basis they were partners in the firm although no relief was claimed against them. In the said suit, the plaintiff has averred that the perpetual lease was executed by the Government of India in favour of S. B. Ranjit Singh and that S. B. Ranjit Singh was the owner of the Hotel Imperial. It was averred that S. B. Ranjit Singh was also partner in the firm from 1972 till 1979. It was averred that the lease deed was executed between S. B. Ranjit Singh and the firm M/s. Rajdev Singh & Co. It was further categorically averred that S. Ranjit Singh died in December 1984 and that the perpetual lease in respect of the land devolved upon S. Rajdev Singh who thereafter renewed the lease in favour of M/s. Rajdev Singh. It was further averred that S. Rajdev Singh had executed lease deed dated 09.01.1999 in favour of the firm which was to come to end on 30.06.1999. It was averred that the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 125 of 130plaintiff had issued letter dated 22.04.1999 to S. Rajdev Singh exercising option to renew the lease for period of five years. It was averred that, however, S. Rajdev Singh vide communication dated 15.05.1999 intimated that he did not wish to extend the lease. It was averred that till the time the partnership deed was actually dissolved by executing a dissolution deed and the rights of the partners and the valuation accounts were settled and tenancy rights were decided, the plaintiff and other partners could not be dispossessed without the due process of law and after complying with all the terms and conditions and understanding between the parties. It was averred that the plaintiff apprehended that the S. Rajdev Singh and the defendants nos. 1 and 2 herein would forcibly dispossess the plaintiff and the other partners. It was averred that even a landlord could at best go the Court and only by due process of law evict the plaintiff and the other partners. On this basis, the plaintiff sought permanent injunction against S. Rajdev Singh and the defendants nos. 1 and 2 herein restraining them from dispossessing the plaintiff and the other partners from the premises of Hotel Imperial.
76. It is seen that the averments made by the plaintiff in the aforesaid suit being CS No.1306/1999 were in consonance with the clear understanding of the parties that the Hotel Imperial premises remained owned by S. B. Ranjit Singh, that upon the demise of S. Rajdev Singh, the Hotel premises devolved upon S. Rajdev Singh, that S. Rajdev Singh had executed the lease deed in favour of the firm as CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 126 of 130owner and landlord and the firm was a tenant in the Hotel premises. A perusal of the averments made in the plaint in CS No.1306/1999 shows that therein the plaintiff is not claiming that the Hotel premises was partnership property, but is rather claiming that the partnership firm had incurred huge expenses in making the additions to the hotel premises and that till the time the rights of the partners and the accounts were settled as per the terms and conditions and understanding between the partners, the defendants could not evict the partners without the due process of law. Accordingly, on this basis, the plaintiff had sought the relief of permanent injunction from dispossession from the Hotel premises.
77. Nowhere in the plaint in the CS No.1306/1999 is there any mention that the Hotel Imperial had become partnership property since allegedly S. B. Ranjit Singh had contributed the hotel premises to the partnership firm. This clearly shows that even up to June 1999, the plaintiff clearly understood that the Hotel Imperial was never partnership property and that the same had remained in the ownership of S. B. Ranjit Singh and upon his demise was inherited by his son S. Rajdev Singh.
78. It is only by way of the present suit which was filed sometime in August 2002 as per the record that the plaintiff has for the first time raised the contention that the Hotel Imperial was partnership property since S. B. Ranjit Singh had contributed the Hotel to the firm's stock. This was clearly done by way of an afterthought. The CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 127 of 130contention raised in the present suit that the Hotel Imperial was partnership property amounts to a complete U-turn by the plaintiff from her otherwise consistent position till the filing of the suit to the effect that S. B. Ranjit Singh was the owner of the Hotel Imperial property and after his demise, the same had devolved upon S. Rajdev Singh.
79. The evidence overwhelmingly points out that the Hotel Imperial property was not partnership property but remained the property of S. B. Ranjit Singh and upon his demise, devolved upon S. Rajdev Singh only. Hence, the plaintiff would have no share in ownership of the Hotel Imperial property and would not be entitled to the declaration as prayed for.
80. Accordingly, the Issue No.3 is decided in favour of the defendants and against the plaintiff.
Issue No.4- Whether the Plaintiff is entitled to mesne profits. If so, at what rate, from which defendants and for what period? OPP
81. In view of the findings on the Issues No.1 and 3, the plaintiff would not be entitled to any mesne profits as claimed.
82. Accordingly, the Issue No.4 is also decided in favour of the defendants and against the plaintiff.
Issue No.5- Is the plaintiff entitled to all or any of the reliefs claimed in the suit? OPP
83. In view of the findings on the Issues No. 1, 3 and 4, the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 128 of 130plaintiff would not be entitled to any reliefs as claimed in the suit, and the suit is liable to be dismissed.
84. Accordingly, the Issue No.5 is decided in favour of the defendants and against the plaintiff.
Issue No.2- Whether the suit has not been correctly valued for the purpose of Court Fees? OPD
85. The plaintiff has claimed mesne profits of Rs. 24 lacs and has valued the said relief for mesne profits accordingly. The plaintiff has valued the relief of declaration at Rs. 200/- and the relief of injunction at Rs.130/-.
86. It is well settled that for the purposes of valuation of the suit, it is only the case of the plaintiff in the plaint which is to be looked at and the defence raised by the defendants is not be seen. Looking at the case set up by the plaintiff in the plaint, the valuation of the suit would be taken as proper. The plaintiff has sought declaration that she was owner of 12½ % share in the Hotel Imperial by virtue of the partnership deed. The relief of declaration sought is with respect to her share by virtue of the partnership and this was a relief in respect of which the plaintiff had the discretion to give her own valuation. Hence, the suit would be taken to be correctly valued for the purposes of court fees and pecuniary jurisdiction. Although the other issues have been decided against the plaintiff and it has been held that the suit is not maintainable and that the plaintiff would not be entitled to the relief as sought, however, that is altogether a different matter and would not affect the CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
Page No. 129 of 130aspect of valuation of the suit for which only the averments of the plaintiff in the plaint would be seen.
87. Accordingly, the Issue No.2 is decided in favour of the plaintiff and against the defendants.
DECISION
88. In the result, in view of the findings on the Issues Nos. 1, 3, 4 and 5, the suit is dismissed.
89. In the facts and circumstances of the case, costs of Rs.
45,000/- are awarded to the defendants.
90. Let the decree sheet be drawn up accordingly.
91. File be consigned to record room after due compliance.
(SATYABRATA PANDA) District Judge-04 Judge Code- DL01057 PHC/New Delhi/27.01.2025 CS No. 475/2018 Amrit Kaur (Deceased) Through LRs v. Sardar Hardev Singh & Ors.
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