Delhi District Court
Sh. Ajay Chawla vs Sh. Rajinder Lal (Deceased) on 1 October, 2018
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT : TIS HAZARI COURTS : DELHI
RCA No. 61006/2016
In re:
Sh. Ajay Chawla
S/o Sh. Gopal Das
R/o B - 588,
Sudarshan Par,
New Delhi-110015 .................Appellant
VERSUS
1. Sh. Rajinder Lal (Deceased)
S/o Late Sh. Manak Chand
R/o K-2/12, Model Town,
Delhi-110009
Now represented by:
a) Smt. Kanta Devi (Widow)
b) Sh. Vimal Kumar (Son)
c) Sh. Jatinder Kumar (Son)
d) Smt. Madhu Arora (Daughter)
e) Sh. Anil Kumar (Son)
All Resident of H.No. K-2/12, Model Town, Delhi-110009
2. Sh. Moninder Lal (deceased)
S/o Late Sh. Manad Chand
R/o Paramount Rubber Works
8/91, Kirti Nagar, New Delhi-15
Now represented by:
i) Smt/ Raj Arora (Widow)
ii) Sh. Deepak Arora
iii) Sh. Satish Arora (deceased)
Now represented by legal heirs:
a. Smt. Shashi Aror (Widow)
b. Sh. Nishant Arora (Son)
c. Ms. Neha Arora (Daughter)
All R/o 6/3, 2nd Floor, Kirti Nagar,
Industrial Area, New Delhi-15.
iv) Sh. Raju Arora
v) Sh. Manoj Arora
Legal Heirs No. (ii) to (iv) are sons (major) of lae Sh. Moninder Lal
RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 1 of 21
vi) Kumari Sunita (daughter/major)
vii) Kumari Anita (daughter/major)
All R/o H. No. 6/3, Industrial Area
Kirti Nagar, New Delhi-15.
3. Smt. Kamla (deceased)
Widow of Late Sh. Manak Chand
Now represented by legal heirs of deceased
defendants No. 1 & 2 already on record.
4. Smt. Krishna Rani (deceased)
D/o Late Sh. Manak Chand
Now represented by legal heirs
a. Mr. Nomesh Arora (son)
b. Ms. Ranjana Arora (daughter)
c. Ms. Sunita Arora (daughter)
d. Ms. Neeru Arora (daughter)
e. Ms. Vineeta Arora (daughter)
All R/o D-78, Ashok Vihar,
Phase-I, Delhi-52. ..............Respondents
Date of institution of present appeal : 25.08.2011
Date of hearing arguments : 21.04.2018
Date of Judgment : 01.10.2018
Appeal against the judgment & decree dated 21.07.2011
passed by Sh. N. K. Malhotra, Ld. Addl. Senior Civil Judge.
JUDGMENT
This judgment shall dispose of the appeal filed by the appellant herein against judgment and decree dated 21.07.2011 whereby Ld. Trial Court has dismissed the suit of the plaintiff/appellant for partition of the suit property. For the sake of convenience parties have been referred to in this judgment as per their rank before the Trial Court.
1. This almost 50 years old litigation began with the plaintiff RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 2 of 21 filling suit on 31.05.1971 for partition of the suit property. After conclusion of trial, suit was dismissed vide judgement/decree dt 18.12.1982. Plaintiff/appellant preferred appeal against the said judgement and the Ld. Appellate court vide judgment dated 19.11.1990 set aside the judgment and remanded back the matter with direction to recast issues with direction to have inter-alia one issue to the effect "Whether the defendants can take the plea about benaami ownership of Sh. Prem Nath in view of the Benaami Transaction (Prohibition of Right to Recovery of Property) Act?". The onus of this issue was placed on the plaintiff. Vide impugned judgment dt 21.07.2011 Ld. Trial Court again dismissed the suit aggrieved from which judgement this appeal has been preferred.
2. Brief facts of the case as per amended plaint is that the plaintiff had filed suit for possession by partition of one half share of shop bearing No. XIV/372 (new) Sadar Bazar, Delhi-06 (hereinafter referred to a suit property) before Ld. Trial Court stating that by a registered sale deed dated 29.05.1966, Sh. Prem Nath and Sh. Manak Chand jointly purchased the suit shop for a sum of Rs. 1,647/- from the President of India. Shri Prem Nath co-owner of the suit shop sold his half undivided share in the suit shop to the plaintiff for Rs 1,000/- vide registered Sale Deed 13.04.1971 and possession of the said one half share of the shop was duly handed over to the plaintiff on the spot. Thus, plaintiff became the co-owner in possession of the aforesaid property by virtue of sale deed dated 13.04.1971 alongwith the defendants, the legal heirs of Late Sh. Manak Chand.
3. Sh. Manak Chand co-owner of the suit property died on 31.12.1968 leaving Sh. Rajinder Lal and Sh. Mohinder Lal (now represented by their respective legal heirs) as his legal heirs who were in possession of the suit property to the extent of one half share of Late Sh. Manak Chand along with the plaintiff since 13.04.1971. Sh. Mohinder Lal, the defendant No. 2 died on 31.08.1978 at Delhi, leaving behind legal heirs mentioned at S.No. (i) to (vi) in the heading of the plaint. Sh. Rajinder Lal defendant No. 1 died in September, RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 3 of 21 1980 leaving behind legal heirs mentioned at (a) to (e) in the heading of the plaint. It is stated that plaintiff called upon Late Rajinder Lal and Late Sh. Mohinder Lal to partition the suit property in equal shares but they willfully avoided to partition the same.
4. It is also averred that under the Benaami Transaction (Prohibition) Act, 1988, the defendants have been prohibited from entering into any Benaami Transaction retrospectively and the defendants have been prohibited to raise the plea that Sh. Manak Chand was the real owner of the property or that Sh. Prem Nath was only Benaami owner and not the real owner. The plaintiff valued the suit for the purpose of court fees and jurisdiction at Rs. 20,000/-. Plaintiff prayed for a decree of partition by actual possession of one half share of the shop bearing No. XIV/372 (new), Gali Purana, Dak Khana, Sadar Bazar, Delhi-06 in favour of the plaintiff against the defendant.
5. Defendants filed written statement to the amended plaint and have taken preliminary objection that the suit was not properly valued for the purpose of court fees and jurisdiction. The plaintiff was not in the possession of the suit property. Sh. Prem Nath had no salable interest in the suit property. Any transfer by him is void ab initio. The plaintiff has no locus standi to file the present suit. The entire sale consideration was paid to the custodian of the evacuee property by Late Sh. Manak Chand, predecessor-in-interest of the defendants in cash and he was the exclusive owner of the shop/suit property. Sh. Prem Nath was merely Benaami and he was not the owner of the suit property. Late Sh. Manak Chand was a tenant of the suit property under the custodian department prior to purchase by him at a monthly rent of Rs. 13.25 paisa. In reply on merits, it is averred that late Manak Chand alone purchased the suit property from the Ministry of Rehabilitation and paid the entire sale consideration in cash. The sale deed executed by Sh. Prem Nath in favour of the plaintiff is collusive and with malafide intention. Sh. Prem Nath was never in possession of the suit property so the question of handing over the possession of half share of the property does RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 4 of 21 not arise. The recital in the alleged sale deed about handing over the possession of the undivided half share to the present plaintiff is contrary to the facts.
6. Defendants have also taken the additional pleas that after the partition of the country, Sh. Prem Nath occupied the shop in question and it was an evacuee property and the rent of the shop was assessed in the name of Sh Prem Nath. In 1950 Sh. Manak Chand came to Delhi and he had taken possession of the suit property from Sh. Prem Nath after paying him Rs. 1,000/- towards the premium and goodwill of the shop and Sh. Prem Nath had assigned all his rights in favour of Sh. Manak Chand. Sh. Manak Chand has been doing the business in suit property under the name and style of Manak Chand & Sons as sole proprietor and the firm was registered with the Sales Tax authorities with the enforcement of Sales Tax in Delhi. The rent receipts were continued to be issued by custodian in the name of Sh. Prem Nath but the rent was being paid by late Sh. Manak Chand. The rent receipts continued to be issued in the name of Prem Nath Manak Chand and the name of Prem Nath could not be deleted from the receipts for fear of cancellation of allotment on the ground of subletting. The shop was purchased by late Sh. Manak Chand at reserve price of Rs. 1,647/- by paying the amount in cash. As the entire sale consideration was paid by Manak Chand in cash, he was the exclusive owner of the property. As the name of Prem Nath appeared in the rent receipts, the sale deed was executed in the name of Prem Nath Manak Chand for technical reasons. The name of Prem Chand was merely Benaami and he has no interest in the suit property.
7. The plaintiff filed replication to the written statement to the amended plaint. It is averred that the Ld. Appellate Court vide judgment dated 19.11.1990 while deciding the issue of the court fees held that the market value of the property in question is Rs. 20,000/- and the plaintiff should pay the court fees on the said amount. In due compliance of the Order of the Ld. Appellate Court, plaintiff has revalued the suit and amended the plaint and paid the requisite court fees. The defendant cannot be permitted to re-agitate the issue RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 5 of 21 before court again. Plaintiff has controverted the other allegations made in the written statement and reaffirmed all the averments made in the amended plaint.
8. Issues were re-cast by the Ld. Trial Court as per the Judgment dt 19.11.1990 of the Ld. Appellate Court and following issues were framed vide order dated 11.05.1992:-
i) Whether the plaint is not properly valued for th purpose for court fees and jurisdiction ?OPP
ii) Whether Prem Nath had no saleable interest in the property in suit ? OPD.
iii) Whether Sh. Manak Chand paid full consideration and the name of Sh. Prem Nath was Benaami ?
iv) Whether the defendants can take the plea about the Benaami ownership of Prem Nath in view of the Benaami Transaction (Prohibition of right of recovery of property ) Act?
v) Whether the plaintiff has no locus standi to file the suit as alleged in para 4 of the WS ? OPD
vi) Whether Prem Nath assigned all his rights in the shop in suit a alleged in para 12 of the WS? OPD
vii) Whether Sh. Manak Chand was the sole owner of the shop in suit?
viii) Whether plaintiff purchased the shop in suit from Prem Nath?
ix) Relief
9. During first trial, plaintiff had examined Prem Nath as PW-1 and Sh. Gopal Das as PW-2. Plaintiff examined himself as PW-3 and Sh. Manohar Lal as PW-4. On the other hand, defendant had examined Sh. R. L. Gaur as DW-
RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 6 of 21 1; Sh. S. K. Kapur, Inspector, Income Tax Office as DW-2; Sh. V .P. Bahri, Clerk for the UCO Bank, Sadar Bazar as Ex. DW-3; Sh. Hukum Chand, Clerk, Sale Tax Office, Vikash Bhawan as DW-4; Sh. S. B. Lal as DW-5; Sh. Satbir Singh, clerk from the office of Chief Inspector of Shops as DW-6; Sh. Mohd. Islam as DW-7; Sh. Gurubux Singh as DW-8; Sh. Janak Raj as DW-9, Sh. Gurdayal Singh, LDC, Licensing Department, MCD as DW-10; Sh. B. K. Tiwari, Clerk, Sales Tax office as DW-11; Sh. B. K. Sood, Clerk, UCO Bank as DW-12; Sh. Daulat Ram as DW-13; HC Ram Bal as DW-14; Sh. S. B. Lal, Clerk R&C Office as DW-15 and Sh. Rajinder Lal, defendant No. 1 examined himself as DW-16.
10. After recasting the issues, the matter was fixed for PE but no evidence was adduced by the plaintiff and the PE was closed on 03.08.1992. The defendant filed an application for cross examination of plaintiff's witnesses which was allowed vide order dated 07.11.1994 and again on 27.11.1998, the counsel for the plaintiff made statement that PW-1 an PW-2 had expired and could not be produced for cross examination. Defendants too did not lead any evidence. As no evidence was adduced by the parties, the issues were decided by the Ld. Trial Court on the basis of evidence adduced during the course of first trial.
11. Ld. Trial Court vide impugned judgment and decree dt 21.07.2011 was pleased to dismissed the suit primarily holding that Prem Nath had assigned all his tenancy right in the suit shop in favour of the Manak Chand after receiving Rs 1,000/- from Manak Chand and Prem Nath was benaami owner of the property as he admitted that entire consideration amount was paid only Manak Chand.
12. Aggrieved by the impugned judgement plaintiff has filed the present appeal and has prayed for accepting the appeal thereby seeking to set aside the impugned judgment and pass preliminary decree of partition.
13. Perusal of the previous and later pleading of the parties and sale RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 7 of 21 deed 29.08.1966 Ex PW1/P-2, admitted position that comes to the fore is that Sale Deed Ex PW1/P-2 in respect of the suit shop is in the joint name of Prem Nath and Manak Chand, Sons of Radha Kishan and Mool Chand respectively. That is to say that sale deed was in personal name and not in any name of firm "Prem Nath Manak Chand".
14. It is the case of defendant that Shri Prem Nath was only benaami owner and the real owner was only Manak Chand and it was only Manak Chand who paid the entire consideration amount for the purchase of the suit property. By way of additional plea it is the case of the defendant that after the partition of the country Shri Prem Nath occupied the shop in question as it was an evacuee property and the rent of the shop was assessed in the name of Shri Prem Nath. Sometime towards the end of 1950 Shri Manak Chand came to Delhi and settled here. Late Shri Manak Chand took the possession of the suit shop from Shri Prem Nath after paying him Rs.1,000/- towards the premium and goodwill of the shop who assigned all his rights in favour of Shri Manak Chand. Since then Manak Chand had been doing business in the name of Manak Chand and Sons as is sole proprietor and registered with sales tax authority and other authorities. The rent receipt, however, continued in the name of Shri Prem Nath as the tenancy was not transferable, whereafter under the new rules tenancy was changed into the name of Prem Natb Manak Chand and the name of Prem Nath was not deleted for fear of cancellation of allotment on the ground of subletting.
15. On the pleadings of the defendant itself a question comes up for consideration whether something done clandestinely/illegally can be protected by the court of law. Admittedly, Prem Nath was the tenant in the suit property. As per defendant Manak Chand took the possession of the suit shop from Shri Prem Nath after paying him Rs.1,000/- towards the premium and goodwill of the shop and Prem Nath assigned all his rights in favour of Shri Manak Chand but name of Prem Nath continued in the rent receipt for fear of cancellation due to sub letting. Thus what Mank Chand did was illegal as taking possession and continuance RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 8 of 21 with possession of the suit in the manner as pleaded by defendant was prohibited by law, otherwise nothing prevented Manak Chand from getting the tenancy transferred exclusively in his name.
16. Though Manak Chand occupied the suit shop in 1950, as per defendant, but till the date of purchase of the suit shop in the year 1966 he kept the name of Prem Nath in front as tenant for fear of cancellation which itself show that act of Manak Chand was not permissible under the law. Even on account of long possession or with consent of Prem Nath also tenancy was not transferable. Further continuance of tenancy in the name of Prem Nath till the date of purchase itself shows that suit shop could not have been sold to Manak Chand alone if it could have been disclosed to the authorities that Prem Nath had left the suit shop long ago and it is the Manak Chand who is in possession of the suit shop since 1950. It thus fortifies that what Manak Chand did was illegal if at all defendant's stand is believed.
17. Further, if rent receipts later on were issued in the name of Prem Nath Manak Chand with intent to treat Manak Chand as tenant too in the suit, then there could not have been any problem in getting the sale deed only in the name of Prem Nath if entire payment was being paying made by Manak Chand alone because as per defendant Prem Nath had already received Rs. 1000/- for assigning all his rights in the suit shop in favour of the Manak Chand and name of Manak Chand had already got inserted in the rent receipt by the time of sale deed. Then even "No Objection" from Prem Nath would not have been required or otherwise Prem Nath then could have easily given his consent for the registration of sale deed exclusive in the name of Manak Chand, if at all Prem Nath was left with no right in the suit shop and entire consideration amount was being paid by the Manak Chand. Further, it is not the case of the defendant that Prem Nath was blackmailing Manak Chand and was not giving his consent that's why his name was inserted in the sale deed despite Prem Nath having left with no right in the suit property. It is also not the case of the defendant that Prem Nath RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 9 of 21 was not having funds at all or was short of funds to purchase the property. If at all there was no legal bar in getting the sale deed only in the name of Manak Chand, then insertion of name of Prem Nath in the sale deed cannot be explained except that Prem Nath must have also paid his share of consideration for the purchase of suit shop.
18. The purpose of discussion herein before is to show that as per defendant themselves sale deed in favour Manak Chand and Prem Chand could not have been executed if fraud has not been played upon authorities and if at all defendants contends that Manak Chand had not committed any illegality then they need to explain why name of Prem Nath was inserted in the sale deed when he was not paying any consideration amount at all. It is not understandable why name and presence of Prem Nath was considered necessary but for the illegality as noted above or but for joint payment of consideration amount as pleaded by plaintiff.
19. It is not the case of the defendant that name of Prem Nath was inserted out of love, respect and affection? It is also not the case of the defendant that Manak Chand was short of funds and he borrowed money from Prem Nath and for security of repayment his name was inserted in the sale deed with clear understanding that on repayment he would transfer the half share in the property and that he had repaid the loan but Prem Nath dishonestly did not re-transfer the half title in favour of Manak Chand. It is also not the case of the defendants that Manak Chand was having unaccounted money and therefore he could not have purchased the property entirely in his own name. When it was not the above noted case of the defendant then but for the illegality noted above or but for joint payment of consideration amount pleaded by plaintiff, defendant cannot explain why the name of Prem Nath came to be mentioned in the sale deed if at all Prem Nath did not pay half of the consideration as pleaded by the defendant and if no illegality was practiced as noted above.
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20. Thus, if Manak Chand or his legal heirs contends that it was Manak Chand alone who paid the entire consideration amount and Prem Nath was only name lender and fails to justify by way of legally acceptable reasoning for making Prem Nath name lender, then stand of the defendants amounts to taking advantage of having played fraud with authorities. No one can take advantage of his own wrong particularly of illegality. When something is illegal it cannot be legally justified and enforced in the court of law subsequently.
21. For argument's sake if it is held that Prem Nath was only name lender for any legally justifiable reason then question arises whether Manak Chand or his successor can get Manak Chand declared owner without seeking any relief of declaration by way of counter claim to the effect that he is owner and Sale Deed Ex PW1/P2 was void to the extent of showing Prem Nath as co- owner and also without getting the sale deed in favour third party executed by name lender co-owner declared as null and void. Admittedly defendant knew that Prem Nath was only name lender and for any reason his name was necessarily inserted in the Sale Deed, then once Sale Deed was executed in favour of both Prem Nath and Manak Chand then what prevented Manak Chand from getting sale deed or gift deed executed by Prem Nath in his favour so as to make Manak Chand exclusive owner of the entire suit property.
22. If Prem Nath was not willing to do so for any reason then what prevented the Manak Chand from getting himself declared as exclusive owner in respect of entire suit property within the period of limitation of three years. Till date admittedly neither Manak Chand nor his successor-in-interest filed any suit or counter claim for getting Manak Chand declared as exclusive owner or getting the sale deed Ex PW1/P2 to the extent it held Prem Nath co-owner or the sale deed executed by Prem Nath in favour of plaintiff declared as null and void. As on date also both the sale deeds stands as it is because they neither stands cancelled nor declared as null and void.
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23. Irrespective of the above legal aspect churned out of the stands of the defendant, the first and foremost factual question involved in the present suit is issue No. 3 i.e. "Whether Sh. Nanak Chand paid full consideration and the name of Prem Nath was Benaami?". Perusal of the issue itself shows that onus has not been cast upon any of the parties but perusal of the issue and the manner in which it has been framed leave no one in doubt that the onus was on defendant to prove that it was Manak Chand who paid the full consideration amount and name of Sh. Prem Nath was inserted as a Benaami title holder.
24. Defendant in all has examined 16 witnesses including himself. However, most of the witnesses examined by the defendant is in respect of establishing exclusive possession of the defendant since 1950. DW-1 was examined with respect to the installation of telephone connection in the suit shop. DW-2 was with respect to income tax of the firm Nanak Chand & Sons. DW-3, 4 and 5 were not examined as they had not brought the summoned record. DW-6 was with respect to inspection of shops and issuance of registration certificates. DW-7, DW-8 and DW-9 are the neighbours of the defendant. They mostly focused on proving the exclusive possession of the defendant in respect of the suit property. Although, they also give one line statement to the effect that suit property was purchased by Nanak Chand. However, they were silent with respect to funding for the purchase of the property by Nanak Chand. Therefore, testimony of DW-7, 8 and 9 cannot be taken to be a testimony on the point of whether it was Nanak Chand who paid the entire consideration amount for the purchase of the property. DW-10 is the witness from Licensing Department of MCD and was examined to prove that Prem Nath had nothing to with business and possession of the shop. DW11 is witness from Sales Tax department for the witness of registration of firm with the department. DW-12 is a witness from UCO bank, who brought the bank opening account of Manak Chand & Sons to show that business was being run by Manak Chand and his successor, therefore, this witness is also not a witness to prove that entire consideration amount was paid by Manak Chand. DW-13 is the private person and he is witness to RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 12 of 21 compounding of dispute between Prem Nath and Manak Chnad. He was not witness to the factum of payment of consideration amount by Manak Chand. DW-14 is HC from PS Sadar Bazar who was a witness to some Rojnamcha. DW-15 is a witness from Rent Collector office to prove that rent was always being paid by Manak Chand and that rent receipt were later on issued in the name of Manak Chand Prem Nath. DW-16 is the defendant Rajendar Lal himself who has examined himself the prove payment of consideration exclusively by Manak Chand..
25. DW-16 in his examination-in-chief deposed that near about Deepawali in 1950, the shop in question was taken from Prem Nath on payment of Rs.1,000/- by his father namely Sh. Manak Chand and Prem Nath had stated that he had nothing to do with the shop. Manak Chand expired in 1967 and possession of the shop was with him since 1950 and Prem Nath was left with no concern or interest in the suit property since 1950. Rent was being paid to custodian by the defendants and till 1955, receipt was in the name of Prem Nath thereafter from 1955 to 1965 rent receipt was in the name of Manak Chand Prem Nath. The business was being run from the shop in question under the name and style of Manak Chand & Sons. Earlier, owner was Manak Chand, however, in 1956, there came into existence a partnership and before it, it was a Joint Hindu Family.
26. Apart from other thing, DW16 also deposed that since suit shop could not have been sub-let, therefore, rent receipt was being issued in the name of Prem Nath and thereafter, it was being issued in the name of Manak Chand Prem Nath and rent receipts are in his possession. He further deposed that Prem Nath was residing at Dehradun. The suit shop was purchased in 1966 from custodian against consideration amount of Rs. 1647/- and this amount was paid by his father Manak Chand. Prem Nath did not contribute any payment in it and sale deed was done at reserve price and was executed in the name of both, as the rent receipt was in the name of both Manak Chand Prem Nath. He deposed that RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 13 of 21 Prem Nath had nothing to do with the ownership of the suit property. Prem Nath had no right to sell the property.
27. In cross-examination, DW16 admitted that suit shop was declared evacuee property and Prem Nath was the allottee. He deposed that his father Manak Chand had applied to the Custodian for allotment of shop but he did not have in possession any record to that effect. He also did not know whether any application was written for getting the sale deed in the name of his father and Prem Nath. He admitted that sale deed was in the name of his father and Prem Nath. He admitted that no information was given to Custodian about the payment of Rs. 1,000/- to Prem Nath. He deposed that no receipt was taken from Prem Nath for the payment of Rs.1,000/-. He further deposed that neither any document has been filed nor is he in possession of any document wherein it was mentioned that only Manak Chand was the owner of the shop.
28. Plaintiff examined Prem Nath as PW1 who in his examination-in- chief deposed that he had taken the shop on rent from Ibrahim after which, this property went to Custodian and Custodian taken him as tenant. Thereafter, he took Sh. Manak Chand as a co-partner in the tenanted shop. He further deposed that he and Manak Chand had purchased the suit property from Custodian and 50% of the consideration amount was paid by him and 50% was paid by Manak Chand.
29. In cross-examination PW1 deposed that he started practice in Delhi in 1963 and prior thereto he was in Dehradun. He further deposed that after returning to Delhi, he started practice at Lajpat Nagar and he was working from the suit shop in 1948-1949 but did not remember upto which period he did the work. He stated that Manak Chand joined him in 1964 probably. He further deposed that it may be correct that Manak Chand came into the suit property in 1951. He did not remember what was the number of the shop in 1951. He further deposed that business of shoes/ chappal was being run. He deposed that RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 14 of 21 he was the sole proprietor and when he was in Dehradun, his son who was here in 1950 used to work (in the suit shop) and he often used to visit his younger son namely Bijender. No income tax or sale tax registration was done and since 1951, business was being run as Manak Chand & Sons. He further deposed that he does not have any evidenciary proof of running of the business from the shop.
30. PW1 further deposed in cross examination that rent of the shop was being paid by Manak Chand as he was having the account and he (PW1) never paid the rent and as far as he remembered the rent was being paid by cheques. He further deposed that at the time of getting the registry from Custodian, Custodian was informed that he had included Manak Chand. The property was not auctioned and was purchased on reserve price. He deposed that he had given money to Manak Chand at his house and he and Manak Chand had gone together to deposit the amount in the Reserve Bank. He deposed that they had gone to the Parliament Street for depositing the amount and a receipt was issued which is in possession of Manak Chand and since 1964, he and Manak Chand was doing business which ran till the death of Manak Chand. He denied the suggestion that he separated from Manak Chand in 1950 after taking Rs.1,000/- and that he did not do any business from the shop or that he was not in possession of the shop since 1950. In between the suggestion there is a testimony that consideration amount was paid only by Manak Chand, which testimony is in the center of storm.
31. It is the contention of the Ld. Counsel for the appellant that Ld. Trial Court caught this testimony that "consideration amount was paid only by Manak Chand" and returned findings that PW-1 admitted that consideration amount was paid by Manak Chand. Ld. Counsel for appellant has contended that this particular sentence is a continuation of suggestion given by the defendant and because of testimony being recorded by hand the scribe missed to write the complete suggestion. He contends that if the whole paragraph where the alleged admission had occurred is read properly it clearly establishes that it was the RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 15 of 21 suggestion given by the defendant which was denied but due to error in scribing, it appears to be an admission. Even otherwise, he contends that the onus was upon the defendant to prove that it was Manak Chand who paid the entire consideration amount.
32. Ld. Counsel for the appellant further contends that admittedly DW- 16 did not specifically depose that entire consideration amount was paid by his father in his presence. He further contends that defendant did not bring about any documentary record to show that entire payment was made from the account / pocket of Manak Chand. He further deposed that PW-1 in examination-in-chief deposed that half of the consideration amount was paid by each and also in cross- examination deposed that he had given money to Manak Chand in his house and both of them had gone together to deposit the same in the Reserve Bank at Parliament Street. Defendant has not disputed that amount was deposited in the Reserve Bank at Parliament Street. If seen in this light, the above alleged admission will make it absolutely clear that the alleged admission was the suggestion given by the defendant and was denied by PW-1 but due to scribing error it remain incomplete as a result of which it is being read as an admission and trial court erroneously held it so. The testimony was recorded by hand in December, 1972 and the alleged admission and scribing error was noted only when the Ld. Trial Court relied upon the same. He further submits that even otherwise burden is upon the defendant to prove that the consideration amount was paid by them and they cannot rely upon only alleged admission to prove that the amount was paid only by Manak Chand. He further contends that defendant has to stand on his own legs and cannot rely on alleged admission to discharge his onus. He further contends that defendant on his own has miserably failed to prove that entire consideration amount was paid only by Manak Chand. Hence, he contends that findings of the Ld. Trial court is erroneous and not in the right perspective in accordance with the established norms of appreciation of evidence.
33. Ld. Counsel for respondent/defendant on the question of not RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 16 of 21 seeking declaration against Prem Nath and in respect of both Sale deeds, submits that same was not required as in the suit of the plaintiff itself this question can be gone into and decided. On the question of status of both sale deed after the judgement he fairly concedes that in the absence of any declaration both sale deeds stand but quickly add that are of no effect now. He, however, fairly concedes that he did not come across any precedent in this regard where legally executed sale deed that too by person who is named owner, is of no value without there being any declaration to this effect. He further argues that so far as the question of payment of entire consideration amount for the sale deed is concerned same has duly been proved by DW 16 and was categorically admitted by PW1. He further submits that even otherwise plaintiff has failed to prove that Prem Nath was in possession of the property so as to be able to deliver the possession of the suit property to the plaintiff. He further contends that in any case plaintiff has failed to prove that he ever came in possession of the suit property, thus, he further contends, plaintiff has approached the court with unclean hand.
34. Ld. Trial Court taken up issue No. 3, 6 and 7 together and returned findings against the plaintiff. It has already been noted above that from the pleaded case of the defendants itself it is explicit that subletting was illegal. Once, the act of the defendant amounts to illegality no legal consequence can be said to follow. Admittedly as per the case of the defendant, name of the Prem Nath was carried on till the last as tenant for fear of cancellation thus even if defendants prove that Manak Chand took possession from Prem Nath after paying him Rs. 1,000/-. Prem Nath could not have legally assigned his right in the suit property in favour of anyone. What is not legally possible cannot have legal effect even if factually done. Hence, Prem Nath could not have legally assigned his right in the tenanted suit property, therefore, there cannot be any question of assigning such right. Ld. Trial Court only considered the factual aspect of the matter but did not considered the legal aspect involved. Hence, issue No. 6 is hereby decided in favour of the plaintiff and against the defendant.
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35. So far as issue No. 3 and 7 are concerned they are the one and same. Onus is upon the defendant to prove that entire consideration amount was paid by Manak Chand. Perusal of entire evidence from the both side shows that but for alleged admission of PW1 Prem Nath, defendant has failed to prove that entire consideration amount was paid by Manak Chand. It has already been noted above that out of 16 witness, testimony of DW16 is on the point of entire payment by Manak Chand. DW16 depose that his father paid the entire consideration amount but DW16 neither produced any record to this effect nor did he depose that same was paid/deposited in his presence nor did he produced the receipt nor did he produce record regarding availability of funds with Manak Chand for the said purpose. Thus, defendant's own evidence is far short of proving that it was Manak Chand who paid the entire consideration amount. Defendant on his own has failed to prove the same.
36. PW1 categorically deposed that half of the consideration amount was paid by him and other half was paid by Manak Chand. Then, in cross examination also he deposed that he had given money to Manak Chand in his house and both of them had gone together to deposit the same in the Reserve Bank at Parliament Street. After some testimony on other aspect came the alleged admission of PW1. In order to appreciate if at all PW1 made admission it is necessary to read entire paragraph wherein the alleged admission occurred. The said entire paragraph is quoted as under:-
"YEH GALAT KI 1950 ME RS 1000/- LEKAR MAI MANIK CHAND SE ALAG HO GAYA AUR MAINE KABHI KOI KAROBAR ISS DUKAAN SE NA KIYA. SALE CONSIDERATION MANIK CHAND NE HI PAY KI. YEH GALAT HAI KI 1950 SE MERA KABJA DUKAN MUNTANZA PAR NA HAI."
English translation of the above is as follows:-
"It is wrong to say that I separated from Manik Chand in 1950 after taking Rs. 1000/- and did not do any business from this shop.
RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 18 of 21 Sale consideration was paid only by Manik Chand. It is wrong to say that I am not in possession of the suit shop since 1950."
37. The sequence of quoted part of testimony lends support to the contention of the Ld. Counsel for the appellant that the alleged admission is in fact result of error resulted due to incomplete writing/scribing of the suggestion given by the defendant. The alleged admission appears in between the suggestion about the case set up by the defendant including that entire consideration amount was paid by Manak Chand. The case set up by the defendant put by way of suggestion was denied. Perusal of entire testimony of PW1 shows that he stuck to his stand of having shared the consideration amount equally with Manak Chand. Presumption is also in favour of Prem Nath as sale deed Ex PW1/-P2 is in his name too. Therefore, it was upon the defendant to stand on his own legs and to prove the same by cogent evidence otherwise than by alleged admission. Ld Trial Court did not appreciate the testimony of PW1 in correct perspective so far as question of proving payment of entire consideration amount by Manak Chand is concerned. Hence, in view of the above reasoning discussed above findings of the Ld. Trial Court on issue No. 3 and 7 cannot be sustained and is accordingly hereby decided against the defendant. Consequently, it is hereby held the Prem Nath was not benaami but real co-owner.
38. Similarly for the reason discussed above findings on issue No. 2 can also not be sustained and accordingly, issue No.2 is hereby decided against the defendant/respondents and in favour of the plaintiff/appellant and it is hereby held that Prem Nath had saleable interest in the suit shop.
39. Now coming to issue No. 5 and 8, Ld Trial Court decided the issue No. 8 in favour of the plaintiff but decided the issue No. 5 against him primarily on the ground that plaintiff failed to prove that he was delivered possession of the suit shop by Prem Nath. Ld. Trial Court misdirected itself. Question to be looked into was if plaintiff has right to have partition and separate possession, RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 19 of 21 irrespective of whether possession was delivered or not. Respondents have not filed any cross appeal against any finding that has been returned against them. Now question arise when plaintiff has purchased the suit property as Ld. Trial Court itself held then why he is not entitled to partition and separate possession. Ld. Trial Court in view of its findings recorded on issue No. 3, 6 and 7 might have come to the conclusion that plaintiff has no locus standi. But now that it has been noted above that findings of the Ld. Trial Court on issue No. 3, 6 and 7 has not been sustained and have been decided in favour of the plaintiff/appellant, therefore, plaintiff/appellant has locus standi to file the suit for partition and separate possession. Accordingly, issue No. 5 is also hereby decided in favour of the plaintiff.
40. So far as findings of the Ld. Trial Court on issue No. 4 is concerned, suffice it to say that findings of the Ld. Trial cannot be interfered with because admittedly this suit was filed in the year 1971 and Benaami Transaction (Prohibition) Act, 1988 came into force in the year 1988 and entire perusal of the Act no where shows that it was made applicable to pending proceedings as well. In any case question of taking plea of beenami by defendant no longer survives due to findings on issue No. 3, 6 and 7.
In view of the above discussion appeal of the plaintiff/appellant is accepted and impugned judgement/decree dt 21.07.2011 is hereby set aside. Preliminary decree of partition is hereby passed in favour of the plaintiff/appellant against the defendants/respondents thereby holding that both plaintiff is entitled to the half share in the suit property i.e. shop bearing No. XIV/372 (New), Sadar Bazar, Delhi - 6 and defendants/respondents are jointly entitled to remaining half share of the suit property.
Appellate decree sheet be drawn accordingly.
TCR be sent back with copy of this judgment for passing final decree in accordance with law.
Trial Court record is very old calling for immediate protection.
RCA No. 61006/2016 Ajay Chawla Vs. Rajinder Lal & Ors. Page No. 20 of 21 Accordingly, Ld Trial Court will get done the scanning of the complete Trial Court record before proceeding further and shall ensure to pass final decree preferably within three months.
Parties to bear their own cost.
Appeal file be consigned to Record Room after necessary
Digitally signed
compliance. HARISH
by HARISH
KUMAR
KUMAR Date:
2018.10.04
10:11:59 +0530
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 21 pages) Delhi/ 01.10.2018
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