Delhi District Court
Cs No. 105479/2015 Inder Mohan Jha vs . Ram Vishesh Jha (D) Through Lrs on 6 May, 2023
CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs
IN THE COURT OF MS. BABITA PUNIYA
SENIOR CIVIL JUDGE:NORTH-EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Civ Suit 105479/2015
Unique ID No. DLNE03-000256-2012
In the matter of:
Inder Mohan Jha
S/o Sh. Sri Chand Jha
R/o B-14, Gali No. 4,
Pradhan Wali Gali, Dagarpur Mohalla,
Johripur, shahdara, Delhi-110094
......Plaintiff
Versus
Ram Vishesh Jha (since deceased)
Through LRs
1. Smt. Ranju Devi
W/o late Ram Vishesh Jha
2. Mr. Hare Ram Jha
S/o late Ram Vishesh Jha
3. Ms. Meenu Kumari
D/o late Ram Vishesh Jha
4. Mr. Puja Kumari
D/o late Ram Vishesh Jha
5. Ms. Manisha
D/o late Ram Vishesh Jha
6. Ms. Nandni
D/o late Ram Vishesh Jha
Page No. 1 of 45
CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs
All R/o B-15, Gali No. 4,
Pradhan Wali Gali, Dagarpur Mohalla,
Johripur, shahdara, Delhi-110094
Also at
C-77, Anand Vihar,
Delhi-110092.
....Defendants
Date of Institution : 30.10.2012
Date of Decision : 06.05.2023
Final Decision : Dismissed
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
J U D G M E N T
1(a). Brief facts as per plaint are that parties are real brothers. Defendant (since deceased) was the elder brother while plaintiff is the younger brother. In the year 1996 the suit property was purchased in the name of defendant by way of usual documents viz Agreement for Sale, GPA, Receipt and Deed of Will, all dated 17th April 1996 but the consideration amount was paid equally by both the brothers.
(b). It is averred that the transaction was a benami transaction and the defendant had acted as benamidar for the plaintiff being the elder brother.
Page No. 2 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs
(c). It is further averred that the plaintiff was in the possession of suit property since the date of purchase. However, in the month of June, 2012, the defendant along with his family also shifted in the suit property and started pressurizing the plaintiff to vacate the suit property. Therefore, the plaintiff approached the elders and other members of the family and sought their interference to resolve the dispute.
(d). In the meeting of the parties and family friends held on 17.06.2012 the parties arrived at a mutual settlement and a "partition" was recorded whereby the suit property was partitioned and western portion of the plot was given to defendant while eastern portion was given to the plaintiff. Thereafter, on 03.07.2012, a notarized "mutual agreement" was also executed between the parties at Delhi wherein it was recorded that plaintiff and defendant are co-owners of the suit property being owners of 25.5 sq. yards each and that the defendant has transferred 8.64 sq. yards of the property to the plaintiff through GPA, Agreement to Sell etc., all dated 3rd July 2012.
However, despite the above arrangement/settlement the defendant was bent upon to dispossess the plaintiff from the suit property and to achieve that end, he also filed a suit for permanent injunction bearing CS No. 196/2012 titled "Ram Vishesh vs. Inder Mohan Jha".
Page No. 3 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs Therefore, the plaintiff sent a legal notice to the defendant seeking mutation of 25.5 sq. yards of the suit property in his name as per the mutual agreement dated 03.07.2012 which was replied by the defendant vide reply dated 15.10.2012.
(e). It is further averred that on 24.09.2012, some persons came to the suit property and on enquiry, the plaintiff came to know that the defendant intended to sell the suit property. Therefore, he filed the present suit for declaration and permanent injunction.
2. Pursuant to the summons issued by the learned predecessor Judge, the defendant entered appearance and filed his written statement wherein he denied the claim of the plaintiff. He stated that suit property was his self acquired property and the plaintiff was allowed to run his business in one room constructed on 8.64 sq. yards of the suit property.
3. After completion of the pleadings, following issues were framed by the learned predecessor Judge:
1. Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
3. Relief.Page No. 4 of 45
CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs
4. While the case was at the stage of PE, an additional issue was framed by the learned predecessor Judge. It reads as under:-
Whether the suit is maintainable in the present form? OPP
5. Vide order dated 13.01.2015, the suit was dismissed by the learned predecessor judge being hit by section 4 (1) of the Prohibition of Benami Property Transaction Act, 1988 (herein after referred to as the Act). Relevant part of the order reads as under:-
"It is admitted between the parties that the suit property was purchased in the name of the defendant on 17.04.1996 and that all its sale documents are in the name of the defendant only. In the light of this admission, the plea of the plaintiff that he had contributed equally to the purchase of the suit property as well as the reliefs sought in the suit appears to be barred by section 4(a) of the Act.
The counsel for the plaintiff has argued that his suit and the pleas raised therein are protected by section 4(3)(b) of the Act since the suit property was purchased and been held by the defendant in fiduciary capacity being the elder brother of the plaintiff. This argument cannot be upheld in the light of the admission made by the plaintiff himself in para 4 of the plaint. In this para, instead of raising the plea of fiduciary capacity as been argued today, the plaintiff himself has very clearly admitted that the transaction in question was a Benami transaction and the defendant had acted as his "benamidar"Page No. 5 of 45
CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs being the elder brother. Once the plaintiff himself preferred to take a stand that his elder brother i.e. the defendant acted as his benamidar and not as his fiduciary agent, he can not be allowed to retract his own admission by making contrary submissions now. This admission also makes the citation of "Marcel Martins v. M. Printers and Ors"
2012 (5) SCC 243 distinguishable in the facts and circumstances of this case. The situation would have been different had the plaintiff instead of admitted the benami nature of the transaction would have raised a plea that his brother purchased the suit property in his sole name while acting in the fiduciary capacity of his elder brother. But since this plea has not been raised, it can not be permitted at this stage so as to nullify his own admission.
Thus for the reasons assigned herein above, the suit being filed to enforce a right based on a Benami Transaction is clearly hit by section 4 (1) of the Act whereby the issue in question is decided against the plaintiff.
Resultantly the suit is dismissed u/s 151 CPC....."
6. The above order was challenged by way of an appeal before the Appellate Court being RCA No. 7/2015 which allowed the same on 18.03.2015 and remanded the matter back with direction to decide the additional issue of maintainability after evidence of both parties along with other issues. Relevant part of the order reads as under:-
".....Hon'ble Supreme Court in case Valliammal vs. Subramaniam AIR 2004 Page No. 6 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs Supreme Court 4187 in paragraph no. 13 held that the question whether a particular sale is a benami or not is largely one of the fact and no uniform formula can be laid down in tis regard. However, Supreme Court has given following broad six circumstances which can be taken as a guide to determine the nature of transaction:-
I. The source from which the purchase money came.
II The nature and possession of the
property after the purchase.
III Motive, if any for giving the
transaction benami colour.
IV The position of the parties and the
relationship if any between the claimant and alleged benamidar.
V The custody of the tile deeds after the sale and VI The conduct of the parties concerned in dealing with the property after the sale.
Now if the above mentioned six broad circumstances are taken into consideration in the light of the facts of the present case, then it is clear that there are number of factual disputes between the parties which cannot be sorted out without evidence and the preliminary issue of maintainability as framed by the ld. Trial Court could not have been decided simply on the basis of arguments.
Admittedly, both the parties are real brothers so the possibility of existence of fiduciary relationship cannot be ruled out. The suit property was purchased in the year 1996 in the name of defendant who is in possession of original title documents. However, number of documents placed on Page No. 7 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs record by plaintiff prima facie shows that is occupying the suit property since long and was also running cable network business from there. The ration card, voter card, cable license, gas connections etc. in the name of plaintiff point out his possession in the suit property for last several years whereas the defendant only could place on record one electricity bill of August 2012 to show his possession. Hence, the nature and long period of possession as shown by the plaintiff can leads to the inference that property may be a benami property but purchased for the benefit of plaintiff also. Moreover, defendant has not prima facie shown that he had purchased the suit properly exclusively from his own income and funds. This it is be proved only by way of evidence whether plaintiff had contributed anything towards purchase of the property or not.
The suit property is measuring 51 sq. yards in total. Plaintiff has alleged that in respect of the suit property two different settlements took place on 17.06.2012 and 3-7- 2012. Defendant has disputed the genuineness of these settlements. If these settlements are taken into consideration, then it discloses that defendant had admitted plaintiff to be half owner of the suit property to an extent of 25.5 sq yards. If these settlements are found genuine, then case of the plaintiff would cover within exception of sub clause 3 (b) of Section 4 of the Benami Transaction Act. Even ld.
Trial Court once while prima facie relying upon these settlements had allowed the interim stay application and granted the stay against the defendant. In my view, the Trial Court is required to solve the legality and validity of these two settlements on the basis of evidence and it cannot be ignored. Parties are required to be given chance to prove/disprove these two settlements.
Page No. 8 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs This fact is not in dispute that defendant had sold 8.64 sq. yards area of the suit property to the plaintiff on 3-7-2012. On behalf of defendant it is argued that when plaintiff is allegedly claiming himself to be an owner of 50% of the suit property then why he had purchased this portion from plaintiff. However, it is the case of the plaintiff that defendant had sold 8.64 sq yards from his own share of 25.5 sq. yards and further agreed to sell his remaining area measuring 16.86 sq. yards for a consideration of more than Rs. 5 lacs as per the term of the mutual settlement dated 3-7-2012. Defendant did not dispute the fact that he had received the payment of Rs. 1,18,793/- from plaintiff through cheque dated 21-8-2012. There is a controversy between the parties whether this cheque was issued against the proposed sale transaction of 16.86 sq. yards area or as financial help for his business purposes which amount had to be returned subsequently by the defendant. If it is proved after trial that defendant had agreed to sell 16.86 sq yards after accepting earnest money vide cheque dated 21-8-2012, the then also case of the plaintiff would be covered under exception of sub clause 3 (b) of Section 4 of the Benami Act and could be clear that suit property was purchased for the benefit of the plaintiff also who was having half share in the same.
Though it is not clear what was the motive of purchasing the property was benami but the relationship of the parties and above facts and circumstances can indicate on the face of it that the defendant was standing in fiduciary capacity for the plaintiff in purchasing the suit property. Due to above mentioned circumstances, in my view simple one admission made in paragraph no. 4 of the plaint does not given the transaction as a benami without any exception as alleged by the defendant. The alleged settlements taken place between the parties as well as factum of Page No. 9 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs sale of 8.64 sq. yards to the plaintiff and agreeing to sell remaining 16.86 sq yards portion out of his share by accepting the cheque dated 21-8-2012 if is proved by the plaintiff will lead to the concluding that defendant never thought of keeping exclusive ownership rights with himself qua the entire suit property.
The plaint has to be read as a whole but ld Trial Court picked up one admission of the plaintiff made in paragraph no. 4 of the plaint and dismissed the suit without taking into consideration other facts and circumstances. No doubt, in the plaint it is not specifically mentioned anywhere that the suit property was purchased in the name of the defendant on behalf of as well as for the benefit of plaintiff also but if the plaint is read as a whole supported by the documents, then it can be said that on the face of it the case of the plaintiff can said to be falling under exception of sub clause 3 (b) of Section 4 of the Benami Transaction (Prohibition) Act. Hence, I am of the opinion that this additional issue framed by the Trial Court regarding maintainability of the sit is not a purely legal issue but has to be decided after the trial on the basis of the evidence of both parties as it is a mixed question of law and fact. After trial only it can be ascertained what is the effect of the settlements dated 17-6-2012 and 3-7-2012 and under what circumstances, sale of 8.64 sq. yards took place and whether the defendant had agreed to sell remaining left out portion measuring 16.86 sq yards area of his share by accepting the cheque or he received the financial assistance from the plaintiff. The issue of existence of fiduciary relationship between the parties as well as its exact nature can only be decided effectively after the proper trial and not prior to the same. Hence, the finding of the ld. Trial Court that in absence of specific averments made in the plaint about such fiduciary relationship Page No. 10 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs will amount to withdrawal of the admission is not sustainable. The other facts and circumstances mentioned in the plaint are required to be discussed and read along with para no. 4 of the plaint and not in isolation and thereafter on the basis of evidence while applying the principles given in above mentioned Supreme Court judgment, a clear finding has to be given.
Accordingly, this appeal is allowed and impugned order of the Trial Court is set aside by remanding the matter back to court concerned with direction to decide this additional issue of maintainability after evidence of the both parties alongwith other issues.........".
7. Pursuant to the direction given by the first Appellate Court, evidence of the parties was recorded.
Plaintiffs' Evidence
8. To prove his case, the plaintiff has examined as many as eight witnesses including himself.
8.1. The plaintiff entered the witness box as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. He also relied on the documents Ex. PW1/1 to Ex. PW1/22.
He during his cross-examination by the learned counsel for the defendant stated that their ancestral property has not been partitioned till date. After having purchased the suit property, he purchased another property in Delhi at B-14, Pradhan Wali Gali, Page No. 11 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs Johri Pur in the name of his wife. He stated that when he shifted to Delhi in the year 1989, he was 17 years old and stayed with the defendant. He stated after shifting to Delhi, he did not open any bank account in his name. However, he voluntarily stated that the defendant had opened a bank account in his name wherein both of them used to deposit money for purchasing the suit property. He stated that he can produce the pass-book to show that he had made withdrawals for giving money to defendant for purchasing the suit property. He stated that he has been working in cable TV office since the beginning and later on, he started his own cable TV business in 2000. He stated that he used to earn Rs. 3,100/- in the year 1989, however, he has no document to show that his salary was Rs. 3,100/-.
Thereafter, his cross-examination was deferred for another date. On the next date of hearing, he did not produce the pass-book and stated that record has been destroyed by the Bank.
During his further cross-examination, he admitted having mentioned in the suit as well in affidavit in evidence in Para 4 that all the documents of the suit property were in the name of defendant and that the said transaction was a Benami Transaction.
He denied that the site plan Ex. PW1/1 was incorrect. He stated that he is running his cable operator business at the suit property while residing at B-14, Gali No. 4, Pradhan Wali Gali, Johripur, Shahdara with his family.
Page No. 12 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs He stated that the when the family settlement dated 17.06.2012 was recorded, the son and daughter of the defendant i.e. Ram Vishesh Jha, his wife were also present along with their relatives namely Sh. Praveen Kumar, Sh. Dayanand Jha and Sh. Murari Jha. He stated that their mother was also present at the time of family settlement. He admitted the suggestion that said document Ex. PW1/7 does not bear the signature of his mother or the legal heirs of defendants Ram Vishesh Jha besides that also does not bear the signature of his wife.
He stated that they are three brothers. However, third brother was not present at the time of family settlement. He stated that it is not mentioned in the document Ex. PW1/7 that it was a family settlement, but the document is a family settlement. He denied that it was a fake document. He stated that Ex. PW1/7 was signed by defendant Ram Vishesh Jha at point A in his presence. He denied the suggestion that Sh. Ram Vishesh Jha has not signed on document Ex. PW1/7 in his presence.
He stated that Ex. PW1/7 was written by one Sh. Madan Kr. Rai. He stated that no written family settlement had even taken place with the defendant prior to or after date of execution of document Ex. PW1/7. However, he again stated that he does not remember and after going through the judicial file, he stated that Ex. PW1/8 was executed after Ex. PW1/7.
Page No. 13 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs In reply to court question, he stated that the Mutual Agreement was registered in the Tehsil and it was registered and the same is Ex. PW1/8. However, having gone through the file, the learned predecessor Judge observed that the document does not bear the stamp of Registrar. Therefore, the witness was directed to file certified copy of the said registered document after obtaining it from the Office of Registrar on the next date of hearing.
He denied the suggestion that Ex. PW1/3 (colly), PW1/4 (colly) and PW1/2 (colly) are fake documents. He denied that Ex. PW1/15, inter-alia, cheque bearing No. 250999 was not issued as an earnest money for the purchase of part of suit property having an area 16.86 sq yd. for a total consideration of Rs. 5,48,793/-.
In reply to a question whether any written document was executed between him and defendant for selling or purchasing an area of 16.86 sq yd of suit property, he stated that Mutual Agreement Ex. PW1/8 and Ex. PW1/15 i.e. cheque no. 250999 were executed between the parties in respect of above transaction.
He denied that there is no cause of action in his favour and against the defendant for filing of the present suit. He denied that some people did not visit the suit premises on 24.09.2012 as potential buyers of the suit property. He denied that the defendant did not shift in the suit property in the month of June 2012. He Page No. 14 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs did not file certified copy of mutual agreement i.e. Ex. PW1/8 on the ground that the same was not registered.
8.2. PW2 Sh. Dayanand Thakur also tendered his evidence by way of affidavit Ex.PW2/A wherein he, inter-alia, stated that plaintiff and defendant had purchased the suit property in the year 1996 vide GPA, Sale Deed and Will dated 17.04.1996 from Sh. Ved Prakash in favour of defendant due to some family settlement. He stated that he had signed those documents as witness. He stated that on 17.06.2012, a family meeting was held to resolve the dispute between the parties and a mutual settlement was arrived at. He stated that he signed that settlement dated 17.06.2012 and 03.07.2012 as witness at point B respectively.
He during cross-examination by the learned counsel for the defendant stated that his name is Daya Nand Thakur while Sh. Daya Nand Jha is another person.
In reply to court question, he stated that he has never been known by the name of Daya Nand Jha.
In reply to question as to why he has stated in his affidavit in evidence Ex. PW2/A that he was also known by the name of Daya Nand Jha, he stated that his name is Daya Nand Thakur, however, in the area where he resides some people call him as Daya Nand Jha though he is not Daya Nand Jha.
Page No. 15 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs He stated that he knew the parties to suit since 1996. He stated that at the time of purchase of the suit property, no title document was executed/registered in favour of plaintiff. He stated that in the year 1996, at the time of execution of title documents of the suit property, he had signed 3-4 documents, however, he cannot tell the exact number of documents which he signed.
He identified his signature at point B on the GPA dated 17.04.1996, same was marked as Ex. PW2/D1. He thereafter identified his signature at point A and B of affidavit. Thereafter, the counsel requested the learned predecessor Judge to compare the signature of witness at the affidavit Ex. PW2/A with document Ex. PW2/D1 on which the witness has signed purportedly as a witness, for the said purpose the 10 signatures of the witness were taken at the bottom of the Ex. PW2/A. He denied the suggestion that at the time of execution of title documents with respect to suit property he was not present there. He stated that when the suit property was purchased it was vacant land. He stated that the consideration amount of the suit property was not given in his presence to the seller.
In reply to question as to who told him that the plaintiff had also given half of the consideration amount for purchase of the suit property to the seller, he stated that both plaintiff and defendant told him that they have contributed 50% consideration towards the payment of the entire consideration for the purchase Page No. 16 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs of the property. However, no money was paid by the plaintiff to the defendant in his presence.
When his attention was drawn towards Ex. PW1/7, he stated that he does not remember as to who written it. He also could not tell the date, month and time, when document Ex. PW1/7 was executed.
He denied that he was not present when Ex. PW1/7 was executed.
He stated that he signed GPA dated 03.07.2012, executed between Ram Vishesh Jha and Inder Mohan Jha which is Ex. PW1/9. After seeing the document Ex. PW1/9, the witness the said document does not bear his signature. He identified his signature on Ex. PW1/10 at point B. He stated that the said document was with respect to the settlement apprx. 8 sq yards of land and Benami (agreement to sell) with respect to the remaining portion of Inder Mohan Jha. The said document was prepared at Nand Nagari, Registrar office and the said document was registered and photographs were also taken and thumb impressions etc. were also taken. He denied that the said document Ex. PW1/10 is not registered. He denied that he is not aware about the document Ex. PW1/10.
He stated that he signed Ex. PW1/8 on the request of plaintiff. He stated that he is not aware of its contents. He denied Page No. 17 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs the suggestion that he has deposed falsely at the instance of Inder Mohan Jha.
8.3. PW3 Sh. Rajender Singh tendered his evidence by way of affidavit Ex.PW3/A wherein he, inter-alia, stated that Ram Vishesh Jha along with his family was staying at C-90, Anand Vihar, Delhi-110092 and moved in the suit property in the month of June, 2012. He stated that he signed the settlement dated 03.07.2012 at point B as a witness.
He during cross-examination by the learned counsel for the defendant stated that he is aware of the contents of document Ex. PW1/8. However, he could not tell the date, month or the year when it was executed.
He stated that he can neither admit nor deny the suggestion that Ram Vishesh Jha had given the consideration amount in respect of the property for which GPA Ex. CW1/9 was prepared.
8.4. PW4 Sh. Gopal Dutt was the Record Keeper, Sub- Registrar -IV, Seelampur, Delhi. He produced the summoned record i.e. the Registered GPA dated 03.07.2012 executed by the defendant in favour of the plaintiff. Same was marked as Ex.PW1/9.
Page No. 18 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs 8.5. PW5 Sh. Praveen Kumar tendered his evidence by way of affidavit Ex.PW5/A. He relied upon the document already exhibited as Ex. PW1/7 bearing his signature at point C. During cross examination he stated that plaintiff had asked him to appear as a witness in the present case, however, he denied the suggestion that he was deposing falsely as he has taken money from the plaintiff to give a false statement.
He denied the suggestion that document Ex. PW1/7 is false and fabricated document. He denied that since he was not present when the said document Ex. PW1/7 was executed, thus, he is not aware about the number of persons who were present. He stated that he does not remember in whose handwriting the said document Ex. PW1/7 was executed/prepared.
He stated that he cannot identify the signature of Ram Vishesh Jha.
8.6. PW6 Retd. SI Surender Pal Singh had also produced the summoned record i.e., the status report dated 14.02.2013 filed in CC No. 47159/15 titled "Inder Mohan Jha vs. Ram Vishesh Jha". The status report was marked as Mark A. 8.7. PW7 Sh. Narender Singh, Deputy Manager, Johripur Branch, PNB, Delhi also produced the summoned record i.e. attested copy of cheque pertaining to account no. 3980000100002256 and bearing No. 250999 dated 03.07.2012 in Page No. 19 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs the sum of Rs. 90,000/- drawn upon Punjab National Bank, Anand Vihar, Delhi-110092 issued by Ram Vishesh in favour of Inder Mohan. The same is Ex. PW7/A. The aforesaid cheque was deposited in the name of Inder Mohan bearing account no. 3980000100002122.
8.8. PW8 Sh. Santosh Kumar, Ahlmad posted in the court of learned MM, North-East District, Karkardooma Courts produced the summoned record i.e. the judicial file of the case titled 'Inder Mohan Jha v. Ram Vishesh Jha' complaint case No. 47159/15 which also contained the original status report dated 14.02.2013 which was filed by IO ASI Surender Pal Singh before Ld. Predecessor Court of Sh. Jitendra Singh, Ld. MM, Karkardooma Courts, Delhi. The said report is Ex. PW8/1
9. Thereafter, vide order dated 31.03.2021, PE was closed at the request of the plaintiff and the matter was posted for defendants' evidence.
10. While the case was at the stage of DE, the defendant expired and his LRs were impleaded as party vide order dated 25.11.2021.
Defendant's evidence 11.1 To disprove the case of the plaintiff, the defendant examined two witnesses.
Page No. 20 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs 11.2. DW1 was the wife of deceased defendant. She tendered her evidence by way of affidavit Ex. DW1/A wherein she stated that the suit property was purchased and constructed by her late husband from his own earnings. She stated that when the property was purchased, plaintiff was not earning and was given one room measuring 8.64 sq. yards in the year 2000 or 2001 which was later on sold to him for a total consideration amount of Rs. 2,75,000/-. She stated that the plaintiff has been using the said room for commercial purpose only. She stated that the documents dated 17.06.2012 and 03.07.2021 were forged and fabricated documents.
She also, inter-alia, relied on the following documents:
(a). Receipt dated 17.04.1996 : Ex. DW-1/4 (OSR).
(b). Will dated 17.04.1996 : Ex. DW-1/5 (OSR).
(c). Agreement to sell 17.04.1996 : Ex.PW1/3 (OSR).
(d). Electricity Bill dated 21.08.2012 : Ex.PW1/6
(e). Suit titled Ram Vishesh Jha Vs. Inder Mohan Jha : Ex. PW1/8 She during cross-examination by learned counsel for the plaintiff stated that she is an illiterate lady and can understand Hindi language only. She stated that she is aware of the contents of her affidavit. She stated that plaintiff has filed the present suit as he wants share/right in the suit property. She stated that the Page No. 21 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs suit property was purchased in the year 1996. She stated that her husband was also illiterate and worked as labourer and used to earn Rs. 8,000/- to 9,000/- per month in the year 1996, however, she cannot place on record any document to show the proof of salary of her husband. She denied the suggestion that plaintiff contributed towards the purchase of the suit property or that Inder Mohan Jha has contributed for the construction of the suit property.
She further stated that she never stayed at C-77, Anand Vihar, Delhi. Her husband was working at C-90, Anand Vihar and C-77. She stated that she had been residing at the suit property since its purchase and construction in the year 2000 and prior to that, she was residing at the land nearby the suit property.
She stated that she can recognize the signatures of her husband Ram Vishesh Jha if shown to her and identified his signature on the WS at point X. However, she stated that signature on Ex. PW-1/7 at point A are not of her husband. She admitted the signature of her husband on Ex. PW-1/9, Ex. PW- 1/10 and PW-1/11. However, she could not identify his signature at point Z on the document Ex. PW-1/12.
She also identified signature of deceased defendant on Ex. PW-1/13 and PW-1/8 at point Z1 and Z2 respectively.
She admitted the suggestion that she has not produced any document pertaining to suit property prior to the year 2014 Page No. 22 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs except the title documents. However, she denied the suggestion that she has not made her children witness in this case for the reason that they knew that plaintiff and her deceased husband has jointly purchased the suit property.
11.3 DW2 Sh. Vidya Nand Jha also tendered his evidence by way of affidavit Ex.DW2/A wherein he stated that defendant was the owner of the suit property and had purchased it from his own earnings from Sh. Ved Prakash. He stated that no family settlement has ever taken place between plaintiff and deceased defendant.
He during cross-examination by learned counsel for the plaintiff stated that Ram Vishesh Jha was his brother in law. He stated that the suit property was purchased in the year 1996 from Ved Prakash in his presence, however, he is not aware about the nature of the documents executed at the time of transferring of the property. He stated that he is not aware whether his Jija had sold any part of the suit property to anyone or whether plaintiff has contributed some amount for the purchasing of this suit property. He stated that his sister and jija have resided in the suit property since its purchase.
12. Thereafter, DE was closed and the matter was posted for final arguments.
Arguments Page No. 23 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs 13.1 It was argued on behalf of the plaintiff that suit property was purchased in the name of deceased defendant from the funds of both the brothers, therefore, according to the learned counsel for the plaintiff they both were the co-owners or had equal share in the suit property. He stated that deceased defendant stood in fiduciary capacity vis-à-vis the plaintiff. He further stated that later on, a family settlement was also arrived at between the parties whereby the property was partitioned vide Ex. PW1/7 and eastern portion was given to plaintiff while western portion was given to defendant. He, therefore, prayed that the plaintiff may be declared owner of 25.5 sq. yards of the suit property as per mutual agreement dated 03.07.2012 Ex.PW1/8.
13.2(a). Per contra, it was submitted on behalf of the defendant that suit property was his self acquired property and the plaintiff did not contribute anything towards purchase and construction of the suit property.
13.2(b). Without prejudice to his above contention, he stated that even if it is accepted that the deceased defendant was a benamidar, the plaintiff cannot derive any benefit since the plea of benami transaction is hit by the provisions of section 4 (1) of the Act.
13.2(c). He further stated that the alleged family settlements are forged and fabricated documents. He urged that in any case, as Page No. 24 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs these documents are not registered they cannot be received as evidence. He stated that a document transferring title/interest in an immovable property worth more than 100 rupees, even if it was by way of mutual settlement, the same requires registration. Thus, according to the learned counsel for defendant no title passed on to the plaintiff under Ex. PW1/7 or Ex. PW1/8.
He also placed reliance on a judgment passed by the Hon'ble Supreme Court in the case of Hari Chand (dead) through LRs vs. Dharampal Singh Baba decided on 18 September 2007 wherein the Hon'ble Supreme Court has been pleased to lay down that the family settlement could only be if one has lawful right over the property and then alone family settlement could be executed. When there is no lawful right of the parties over the property, there was no occasion to file the suit on the basis of family settlement.
14. In rebuttal, it was submitted by the learned counsel for the plaintiff that the defendant in whose name the property is held was standing in a fiduciary capacity towards the plaintiff, therefore, according to learned counsel for the plaintiff, it was not hit by the Act.
He also submitted that he has examined eight witnesses to prove his case while the defendant has examined only two witnesses.
Page No. 25 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs Legal Position
15. Evidence has to be weighed and not counted. This legal maxim is enshrined in Section 134 of the Indian Evidence Act, 1872. It reads as under:-
134. Number of witnesses - No particular number of witnesses shall in any case be required for the proof of any fact.
Thus, it is not the number, the quantity, but the quality that is material. The time- honoured principle is that evidence has to be weighed and not counted.
Issue-wise findings
16. My issue-wise findings are as under:-
Issue no. 1: Whether the suit is maintainable in the present form? OPP
17. Onus to prove this issue was upon the plaintiff.
18.1. The Hon'ble Federal Court in the case of Gangadara Ayyar & Ors v Subramania Ayyar & Ors AIR 1949 FC 88 while dealing with the issue of benami property held thus:-
Page No. 26 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs ".... It is settled law that the onus of establishing that a transaction is benami is on the plaintiff and it must be strictly made out. The decision of the Court cannot rest on mere suspicion, but must rest on legal grounds and legal testimony. In the absence of evidence, the apparent title must prevail. It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts ...........".
18.2. The Hon'ble Supreme Court of India in the case of Jaydayal Poddar & Anr v Mst. Bibi Hazra & Ors reported as AIR 1974 SC 171 enumerated six circumstances which must be looked into by the courts in determining whether a particular transaction is benami or not. Relevant para of the judgment reads thus:-
"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a Page No. 27 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances :
(1) the source from which the purchase money came;
(2) the nature and possession of the property, after the purchase;
(3) motive, if any, for giving the transaction a benami colour;
(4) the position of the parties and the relationship, if any between the claimant and the alleged benamidar;
(5) the custody of the title-deeds after the sale; and Page No. 28 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs (6) the conduct of the parties concerned in dealing with the property after the sale.
The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No. I, viz. the source whence the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another.
18.3. The Hon'ble Supreme Court in yet another case titled as Valliammal (D) by LRs. v Subramaniam & Ors AIR 2004 SC 4187 summarized the law relating to proof of benami transactions as under:-
"There is a presumption in law that the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami.
Heavy burden lies on the person who pleads that recorded owner is a benami-holder."
19. Now let us examine the evidence led by the plaintiff regarding present transaction on the touchstone of the law laid down by the Hon'ble Apex Court.
Page No. 29 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs The Source From Which The Purchase Money Came 20.1. It is the case of the plaintiff that though the suit properly was purchased in the name of deceased defendant, the plaintiff had contributed half the consideration of the sale price.
20.2. To prove this fact, he has examined himself as PW1 and Sh. Dayanand Thakur as PW2.
20.3. Though the plaintiff in his plaint has stated that "the consideration amount for the suit property was paid equally by both the parties to the suit", he has not mentioned the consideration amount. He has also not mentioned, either in his pleadings or evidence by way of affidavit Ex.P1/A, the source whence the consideration came.
During his cross-examination by the learned defence counsel he stated that defendant had opened a bank account in his (plaintiff's) name wherein they both used to deposit money for purchasing the suit property. He stated that he has pass-book to show that he had withdrawn money for giving it to defendant for purchasing the suit property. However, he could not produce the pass-book on the pretext that record has been destroyed by the Bank.
Page No. 30 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs Except for the statement of PW1 i.e. the plaintiff that record has been destroyed, there is no evidence showing that in fact, the record has been destroyed by the bank. To prove destruction of the record, the plaintiff could and should have examined the concerned Bank Manager/Official, who could have produced the Circular in terms whereof the Bank has destroyed the record, but for the reasons best known to him, no Bank Official was examined. Thus, the claim of the plaintiff that he contributed funds towards purchase of suit property after being withdrawn from the bank has remained a mere claim. No documentary evidence has been led by him to prove that he had contributed equally towards the sale consideration.
20.4. To corroborate his oral testimony, he examined Sh. Dayanand Thakur as PW2.
20.5. PW2 Dayanand Thakur in his evidence by way of affidavit Ex. PW2/A in para 5 stated thus;
"4......I had signed the aforesaid documents i.e. General Power of Attorney, Agreement to Sell, Will and Receipt dated 17.04.1996 as a witness.
5....the consideration amount for the purchase of the property......was paid by both Mr. Inder Mohan Jha as well as Mr. Ram Vishesh Jha equally" .Page No. 31 of 45
CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs However, in his cross-examination by the counsel for defendant he stated that "I am not aware about the consideration amount of the suit property at the time of its purchase.
Q. Who told you that plaintiff had also given half of the consideration amount for purchase of the suit property to the seller?
Ans. At the time of registration of the documents of the suit property I was present in person but I was not present at the time of making of payment of consideration amount to the seller. Both plaintiff and defendant told me that they have contributed 50% consideration towards the payment of the entire consideration for the purchase of the property. However, no money was paid by the plaintiff to the defendant in my presence..".
20.6. Thus, what was deposed by PW2 would remain in the realm of hearsay evidence as one of the informants i.e., PW1/plaintiff has not stated having told PW2 that the sale consideration was paid equally by both the parties to suit property while the other alleged informant i.e. the defendant could not be examined on account of his death.
20.7. In the absence of such direct evidence of plaintiff (PW1), the testimony of PW2 to that extent would be hit by section 60 of the Evidence Act.
Page No. 32 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs 20.8. The only conclusion which can be derived from the afore-noted testimony of PWs is that the plaintiff has miserably failed to prove the source whence the purchase money came. Resultantly, he failed to prove that he had provided money for the purchase of the suit property.
Motive For Giving The Transaction A Benami Colour
21. As far as motive for giving the transaction a benami colour is concerned, the plaintiff has neither averred nor has led any evidence on this aspect.
Custody Of Title Deeds After The Sale
22. The defendant along with his written statement filed the GPA, Agreement for Sale, Receipt etc., all dated 17th April 1996. Therefore, the custody of the title documents came from the defendant.
The Position Of The Parties & The Relationship Between The Parties 23.1 It was contended on behalf of the plaintiff that defendant was the elder brother of the plaintiff, therefore, the property was purchased in his name for the benefit of both the parties and that he acted in a fiduciary capacity. Thus, according to learned Page No. 33 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs counsel for the plaintiff the bar of the Banami Act would not apply to the case at hand.
23.2. Per contra, it was submitted on behalf of the defendant that sans pleading, the plaintiff cannot be allowed to take the plea of "fiduciary relationship". He also placed reliance on a judgment passed by the Hon'ble Delhi High Court while dealing with a similar plea in the case of Smt. Baljeet Kaur Kalra vs Sh. Surjeet Singh (Now Deceased) wherein it was held as under:-
"7. I have already reproduced above the pleadings of the defendant no. 3. All that these pleadings say is that defendant no. 3 contributed funds for the property which was purchased in the name of the mother on account of natural love and affection for the mother. A pleading of purchasing a property in the name of the mother on account of natural love and affection for the mother is not the pleading which can be taken as a plea of the suit property having been purchased in the name of the mother Smt. Gobind Kaur Sabharwal on account of fiduciary relationship of defendant no.3 with the mother Smt. Gobind Kaur Sabharwal. The requirement of section 4(3)(b) of the Benami Act is that there must be a specific pleading of the property being purchased in the name of a person as a trustee or the property being purchased on account of fiduciary relationship........
8. Admittedly, in the present case, there is no plea which is set up of the existence of an HUF and this Court only has to examine as to whether the pleading of defendant no.3 falls within the scope of section 4(3)(b) of the Benami Act. In my opinion, mere pleading of Page No. 34 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs love and affection towards the mother cannot be taken as a pleading of the property being purchased by the defendant no. 3 in the name of his mother as a trustee once Sections 81, 82 and 94 of the Indian Trusts Act, 1882 stand repealed by section 7 of the Benami Act. Natural relationships no doubt have an element of trust, however, this natural element of trust on account of natural relationship is not what is the subject matter of section 4(3)(b) of the Benami Act because this sub-Section specifically requires an averment/pleading with respect to the property being purchased as a trustee. Natural love and affection is not equivalent to possession of the property having been purchased as a trustee, and which is the only exception under section 4(3)(b) of the Benami Act.....
10. Counsel for the defendant no. 3 sought to argue that during the course of trial defendant no.3 will lead evidence to show that the property was purchased in the name of the mother as a trustee, however, no amount of evidence can be looked into on a plea which is not put forth in the pleading, and therefore, once the plea of the mother Smt. Gobind Kaur Sabharwal having the property purchased in the name of trustee is not found in the pleading, then no amount of evidence can be led by the defendant no.3 or looked into by the Court of the property being in the name of the mother Smt. Gobind Kaur Sabharwal as a trustee.
11. In view of the above, I exercise my powers under Order XII Rule 6 CPC. Since the defence of the defendant no.3 does not fall within the exception of section 4(3)(b) of the Benami Act, the defence will be a defence which will be barred by law as per section 4(2)of the Benami Act. Once the defence is Page No. 35 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs barred by law, there is no need to go into trial on this aspect because there cannot be a trial with respect to a plea/pleading which the law bars for being taken up.
23.3. Let us examine whether the relationship was in the nature of a "fiduciary relationship" which is exempted by section 4 (3)
(b) of the Act.
23.4. Admittedly the transaction is question was undertaken in the year 1996 i.e. after the enforcement of the Benami Act, 1988. Section 2 (a) of the Act defines "Benami Transaction" to mean "any transaction in which property is transferred to one person for a consideration paid or provided by another person".
23.5. Section 3 thereof prohibits benami transactions. It reads as under:-
3. Prohibition of benami transaction- (1) No person shall enter into any benami transaction.
23.6. While section 4 prohibited recovery of property held benami from a person in whose name the same is held. It reads as under:-
4. Prohibition of the right to recover property held banami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against Page No. 36 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
However, sub-section (3) carves out exceptions where the bar created by sub-section (1) would not apply. It reads as under:-
(3) Nothing in this section shall apply-
(a).Where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparcener in the family; or
(b).Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity and the property is held for the benefit of another person for whom he is a trustee or towards he stands in such capacity.
23.7. The plaintiff in para 4 of the plaint has stated thus "4. That the said transaction was a benami transaction and the defendant acted as the benamidar for the plaintiff being his elder brother for the purchase of the suit property".
In para 3 of replication to the reply on merits he improved his version and stated thus:
"......It is submitted that the aforesaid property was bought by the plaintiff and the defendant in equal shares and the same was a benami transaction which is also mentioned in the paint and out of natural Page No. 37 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs love and respect towards the elder brother i.e. the defendant, the plaintiff didn't took part in registration of documents and the same was duly registered in the name of the defendant only".
However, it was not stated so in the evidence by way of affidavit.
23.8. Admittedly, the parties are real brothers. However, this relationship between the parties is not sufficient to hold that the defendant held the ostensible title to the suit property in a fiduciary capacity vis-à-vis his younger brother who, as discussed above, has failed to show that he made contributions towards the sale consideration paid for the acquisition of the suit property which, as per the Hon'ble Apex Court in Hazra Bibi's case (supra), is the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another.
The Nature & Possession Of The Property, After The Purchase And The Conduct Of The Parties Concerned In Dealing With The Property After The Sale.
24.1. In para 5 of the plaint, it was pleaded thus:
"That the plaintiff was in possession of the complete property consisting of three rooms, one toilet, one kitchen and other open space on the ground floor and open terrace having one bathroom on the first Page No. 38 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs floor since the inception of ownership of the said property in the year 1996........".
This was also reiterated in para 7 of Ex. P-1/A. 24.2. Thus, according to the plaintiff, it was a built-up property and he has been residing therein since 1996. This is belied by the Agreement for Sale Ex. DW1/3 wherein it was clearly mentioned that it was an open land with boundary wall.
24.3. Further, to show his possession over the suit property, he has relied on the bills/receipts e.g. telephone bills, gas cylinder receipts etc., and has stated in para 11 of Ex. P-1/A that "......defendant alongwith his family was staying at C-90, Anand Vihar, Delhi-110092 and moved in the suit property in the month of June, 2012 and therefore the deponent vacated some part of the suit property to make sufficient accommodation for the deponent".
24.4. Thus, as per plaintiff, defendant shifted to suit property in the year 2012 and he vacated some part of the suit property to make sufficient accommodation for him, however, he continued in possession of the suit property which is corroborated by the documents e.g. telephone bills and gas cylinder receipts dated 24.07.2012 etc. Page No. 39 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs 24.5. This is also belied by his own document i.e. legal notice dated 24.09.2012 Ex. PW1/19 wherein in para 5 it is mentioned as under:-
"5. That you along with your family shifted to the aforesaid premises in the month of June, 2012. It is pertinent to mention over here that our client moved out of the said premises but continued to carry his business from the aforesaid premises and stayed in possession of two rooms and the open space available in the property".
24.6. Memo of the parties also shows that plaintiff at the time of institution of the suit was residing separately. As per the plaintiff himself, defendant had also filed a suit for permanent injunction Ex. PW1/17 against the plaintiff.
24.7. The above instances show that defendant always asserted the property to be his own property and exercised all rights or possession in respect of the property.
24.8. Thus, the conduct of the parties also does not indicate about the benami character of the transaction.
25. In view of above discussion, I am of the view that none of the tests mentioned above have been satisfied in the present case. Resultantly, the plaintiff has not been able to prove his case that the transaction was a benami one. Therefore, the issue is decided against the plaintiff and in favour of the defendant.
Page No. 40 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs Issue No.2 : Whether the plaintiff is entitled to the decree of declaration as prayed ? OPP
26. It was submitted on behalf of the plaintiff that on 17.06.2012 with the help of elders and relatives, a settlement was arrived at between the parties whereby the defendant was given western portion of the plot while eastern part was given to the plaintiff.
27. The document is marked as Ex. PW1/7. Relevant part of it reads as under:-
"........ददोनन भभाइयन कक बबीच सरर सहमतत सक बरभाबर कभा बबंटरभारभा हदो गयभा जजिसमक रभाम तरशकष रभाय कक तहस्सक मम पशशचम सभाइड और इन्दर मदोहन रभाय कक तहस्सक मम पपूरब सभाइड कभा तहस्सभा आयभा हहै...."
28. The document was executed on a plain paper and bears purported signature of the deceased defendant.
29. It is settled law that when a document is tendered in evidence the court has to consider three aspects, namely, (1) its authorship in order to ensure that it is a genuine document, Page No. 41 of 45 CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs (2) correctness of its contents so that the document is correctly construed, and (3) truthfulness of its contents.
30. The contents of a document may be proved either by primary or by secondary evidence. Primary evidence means the document itself produced for the inspection of the court.
31. During course of the trial, original of Ex.PW1/7 was produced for the inspection of the court. Therefore, the requirements of this provision stood satisfied.
32. Now comes the question of genuineness of Ex.PW1/7. As per the plaintiff, since it was a family settlement it was not required to be attested. Thus, it can be proved as per section 67 of the Evidence Act. It simply requires that the signature of the person alleged to have signed a document (i.e. the executant) must be proved by evidence that the signature purporting to that of the executant is in his handwriting. Further it requires that if the body of the document purports to be in the hand-writing of someone, it must be proved to be in the hand-writing of that person.
33. To prove the genuineness of Ex. PW1/7, the plaintiff has examined three witnesses including himself.
Page No. 42 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs
34. PW2/Dayanand Thakur during his cross-examination stated as under:-
"I do not remember by whom the same was reduced in writing"
35. PW1/Plaintiff during his cross-examination stated that the document was written by one Sh. Madan Kumar Rai.
While PW5 Sh. Praveen Kumar stated that "I cannot state about in whose handwriting it was so prepared". He further stated that he cannot identify the signature of Ram Vishesh Jha.
36. The document was also put to DW1 during her cross- examination. She stated that signatures at point A are not that of defendant Ram Vishesh Jha.
37. It is settled proposition of law that the execution/authorship of a document may be proved either by direct evidence i. e. by the writer or a person who saw the document written and signed or by circumstantial evidence. However, in the case at hand, the plaintiff has not been able to bring on record convincing corroborative evidence to prove that Ex. PW1/7 was written by one Sh. Madan Kumar Rai and was signed by deceased defendant.
38. Thus, the genuineness of Ex. PW1/7 is not proved.
Page No. 43 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs
39. Now comes the document Ex. PW1/8. It is titled as "Mutual Agreement". Perusal of Ex.PW1/8 shows that right of plaintiff was created in the suit property which was purchased and registered in the name of defendant. This clearly amounts partly extinguishing the existing right of the defendant in the said property. Thus, it required registration within the meaning of section 17 of the Registration Act, 1908. However, since it was not registered it cannot be received as evidence of any transaction affecting such property.
40. Even otherwise the courts are here to uphold the intent of Legislatures and not to defeat the statutory provisions made by the Legislatures. It is settled law that what cannot be done directly cannot be done indirectly.
41. Therefore, the issue is decided against the defendant and in favour of the plaintiff.
Issue No. 3- Whether plaintiff is entitled for decree of permanent injunction?
OPP
42. Once it is held that plaintiff is not entitled for declaration of ownership, he cannot exercise any right on the property and therefore he cannot seek any injunction against any person in respect of that property. Issue is, therefore, decided against the plaintiff.
Page No. 44 of 45CS No. 105479/2015 Inder Mohan Jha vs. Ram Vishesh Jha (D) through LRs Relief
43. In view of aforesaid discussion and findings, the plaintiff is not entitled for any relief as prayed in the suit. The suit of plaintiff is, accordingly, dismissed.
44. Parties to bear their own costs.
45. Decree sheet be drawn accordingly.
46. File be consigned to record room after due compliance.
Digitally signed
BABITA by BABITA
PUNIYA
Announced in open Court PUNIYA Date: 2023.05.06
on 6th day of May, 2023 16:32:51 +0530
(Babita Puniya)
Senior Civil Judge
N/E District, KKD/Delhi/06.05.2023
This judgment contains 45 pages and each page bears my signature. BABITA Digitally signed by BABITA PUNIYA PUNIYA 16:33:05 +0530 Date: 2023.05.06 (Babita Puniya) Senior Civil Judge N/E District, KKD/Delhi/06.05.2023 Page No. 45 of 45