Delhi High Court
Jai Krishan Dass vs Hari Kishan Dass & Ors on 5 April, 2013
Equivalent citations: 2013 (2) ADR 689, (2013) 132 ALLINDCAS 13 (DEL), AIR 2013 (NOC) (SUPP) 946 (DEL.), (2013) 199 DLT 545
Author: S.Ravindra Bhat
Bench: S. Ravindra Bhat, S.P. Garg
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% RESERVED ON: 26.04.2012
PRONOUNCED ON: 05.04.2013
+ RFA (OS) 27/1997
CM APPL.5201, 16364/2007 &
2641 & 2939/2009
JAI KRISHAN DASS ..... Appellant
Through: Mr. H.L. Tikku, Sr. Advocate with
Ms. Yashmeet and Ms. Renuka Arora,
Advocates.
versus
HARI KISHAN DASS & ORS ..... Respondents
Through: Mr. Ravi Gupta, Sr. Advocate with Mr. Lalit Gupta,Mr. Ranjan Grover and Mr. Nishant Prateek, Advocates for Resp-
5&6.
Mr. N.K. Kantawala with Mr. Arvind Bhat, Advocates for Resp-1&8.
Ms. Sangeeta Jain, Advocates for LRs of Resp-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE S.P. GARG MR. JUSTICE S.RAVINDRA BHAT
1. This appeal has been preferred against the judgment and order of the learned Single Judge dated 11-07-1997 in Suit No. 235/1976.
The appellant (hereafter referred as "Jai Krishan") was the first RFA (OS) 27/1997 Page 1 defendant in the suit for partition filed by the first respondent, Hari Krishan (hereafter referred to as "the plaintiff" and "Hari Krishan").
2. The facts briefly are that the plaintiff and the appellant are brothers. The suit originally impleaded the other brothers i.e. Brij Krishan, Gopal Krishan, Avtar Krishan - their father, Balkrishan Das and their mother Ram Kala Devi. Balkrishan Dass (the appellant's father) was one of the five sons of Girdhari Lal (i.e. grandfather of the plaintiff and the appellant). His other brothers - uncles of the said two parties - were Babu Ram, Banwari Lal, Murari Lal and Devi Charan. The parties' grandfather Lala Girdhari Lal was part of a joint Hindu family. He also had a business known as Panna Lal Girdhari Lal (PLGL). PLGL was a joint family business. The appellant and his two minor sons had filed a suit No. 317/1961 claiming that they were members of joint family firm and were entitled to share in the business and properties. That suit was transferred and registered as Suit No.154/1967 before the High Court. It was heard and dismissed sometime in 1979; the appeal against that judgment was also met with the same fate. The appellant preferred an appeal for special leave to the Supreme Court which too was dismissed on 04.01.1984; the Supreme Court judgment is reported as Jai Krishan & Others Vs. Nirmala Devi & Another, AIR 1984 SC 589. The Supreme Court affirmed the finding of this Court that there was a general disruption of the larger joint Hindu family of Girdharilal sometime in 1941-1942.
3. In the meanwhile Balkrishan Dass had constituted a firm of which some of his sons were partners. The present plaintiff Hari Krishan filed a suit being 234/1976 seeking dissolution and rendition RFA (OS) 27/1997 Page 2 of accounts. The appellant was not a party to that suit. He claimed to be a necessary party and filed two applications i.e. IA No.2592/1976 and 1364/1981 for being impleaded; they were rejected. By the second suit CS (OS) No. 235/1976 - out of which the present appeal has arisen - Hari Krishan claimed partition of joint family of Balkrishan Dass, who was its karta. The larger HUF, of which Balkrishan Dass, father of the parties of the present suit was a member, had already stood disrupted in 1941-42. All brothers i.e. the appellant, the plaintiff as well as their brothers were made parties; Balkrishan Dass and the parties' mother Ram Kala Devi were also impleaded as defendants. The parents i.e. Balkrishan Dass and Ram Kala Devi died during the pendency of the suit as did Gopal Krishan Dass, one of the brothers. In the light of the pleadings and after hearing counsel for the parties, the learned Single Judge - N.N. Goswamy, J. by an order dated 17.5.1979 declared the share of each of the parties to be 1/8th in respect of the 7 items of the properties mentioned in the suit. The said preliminary decree and order dated 17.5.1979 reads as follows :
"GOSWAMY, J (oral) This suit for partition has been filed by Shri Hari Krishan Gupta, plaintiff. It is alleged in the plaint that the properties mentioned in schedule `A' and `B' attached to the plaint are H.U.F. properties owned by M/s Balkrishan Dass (H.U.F.) and as such a decree for partition of the said properties be passed. The karta of H.U.F. namely Balkrishan Dass has filed a statement of properties which were owned by Balkrishan Dass (H.U.F) as on3.4.1976. It is agreed RFA (OS) 27/1997 Page 3 between the parties that a preliminary decree for partition in respect of the properties mentioned as Serial Nos.1 to 7 passed to day and for the other properties the parties will be free to make the submissions in the suit. Accordingly, I pass a preliminary decree for partition of the following seven properties mentioned in this suit at page 55:-
1. House No.3 Pusa Road, New Delhi
2. House No.37, Daryaganj, Delhi
3. House No.1002/1009 Bazar Sita Ram, Delhi
4. Kharpail No.3728 to 3732 Bagichi Bawaji Wali, Subzi Mandi, Delhi
5. Factory land & Building, Kuncha Mir Bhikari Turkman Gate, New Delhi
6. 1/10th share in shop Nos.3825 to 3945, Lahori Gate, Delhi
7. Shares Tin Printing & Metal Works Natioal Rolling & Steel Ltd.
Natioal Insulated Cables Ltd.
Modi Spinning & Weaving Ltd.
Delhi cloth & General Mills Ltd.
Bharat Nidhi Ltd.
Hindustan Motors Ltd.
It is not denied that the shares of the parties to the suit are 1/8th each and accordingly I declare it as such. The parties will be free to make their submissions in respect of any other property, of Balkrishan Dass (HUF). The local commissioner to effect the partition will be appointed on the next date of hearing. Let the matter be listed on 16.7.1979.
At this stage defendant No.1 states that since he had filed a suit involving the same properties being suit RFA (OS) 27/1997 Page 4 No.154/1977, the present suit should be stayed. This contention has to be rejected since there is no application under section 10 of the Code of Civil Procedure by this defendant and secondly. I am given to understand that the suit was already been dismissed and for the present there is no appeal pending.
Sd/-N.N. Goswamy Judge"
4. Continuing in the narrative, Hari Krishan also filed another suit No.236/1976; impleaded some of the brothers, but not the present appellant; in that he sought partition of another property being 0-2 Mohan Industrial Area. His wife Uma Devi filed a suit No. 754/1979. The parties impleaded were including Bimla Devi and the wives of other brothers - co-owners of the suit property located at Joshi Road. Uma Devi's suit sought for partition of that property. In this suit too Jai Krishan sought for being impleaded as a party; after the preliminary decree was drawn on 06.05.1980, Jai Krishan's application for being impleaded was dismissed on 22.02.1982. One of the brothers of the parties, Chander Krishan filed yet another suit being 127/1980 before this court, for partitioning of property at Ratendon Road. This impleaded the other brothers; Jai Krishan was not made a party. A preliminary decree was drawn by an order of this Court in March 1980. Like in the case of the other suits Jai Krishan's application for being impleaded was dismissed on 22.01.1982.
5. Undaunted by the repeated reverses that the appellant Jai Krishan was subjected to, he filed a suit No.1007/1982 on 24.07.1982 RFA (OS) 27/1997 Page 5 for declaration and partition of what were termed as a joint family properties of Balkrishan Dass. In this all properties that were the subject matter of Suit Nos.235, 236/1976; 754/1979 and suit No.127/1980 were sought to be subjected to partition. At the time this suit was filed, Jai Krishan's appeal was pending before the Supreme Court (CA No.717/1989). He had therefore, stated that the suit was without prejudice to his contention in that appeal and in order to protect his rights.
6. After the dismissal of the appellant's application for being impleaded in the other suits and after he filed Suit No.1007/1982, a list of properties was sought to be included in suit No.235/1976, in which a preliminary decree had been drawn on 17.05.1979. By an order dated 27.07.1982, learned Single Judge noticed the previous position and inter alia observed and directed as follows :
"The contention of the plaintiff however is that in case the objections to the commissioner's report are allowed to hand on, and ultimately the Supreme Court vacates the stay, the decision of the pending objections in this suit may further prolong the agony of the suit and its fruits reaching the parties. However this aspect again as aforesaid is dependent upon the determination of additional properties, if any, belonging to HUF. That controversy has to be determined in terms of the preliminary decree. It is not mentioned therein that such of the further properties can still asset independently the existence of such HUF properties may require consideration.
Before however this query is embarked upon, let each of the parties submit its version of the existence of RFA (OS) 27/1997 Page 6 any other Balkishan Dass (HUF) properties. This to be done within 10 days. Be listed on 9th August, 1982."
7. The Court by an order dated 12.09.1982 noticed that during the pendency of the suit and even at the time when preliminary decree was directed to be drawn on 17.05.1979 none of the defendants had stated that other properties were owned by Balkrishan Dass (HUF). The Court bemoaned the fact that the plaintiff's casual mention of other properties in the suit resulted in a situation which was sought to be taken advantage of by the defendants including the present appellant. In the light of these it was observed and directed as follows :
"As a result of the order made on 27.7.1982, the defendant No.1 filed a list of 15 properties which he claims, belong to Bal Kishan Dass Hindu undivided family. He asserts that these properties should as well be partitioned in terms of the preliminary decree passed on 17.5.1979. The plaintiff who had in his plaint as well as two applications bearing I.A. Nos.1147/76 and 109/78, been asserting that these were other properties of the joint Hindu family apart from the seven properties specifically mentioned in the plaint, has now taken the stand that there are no other joint Hindu Family properties which call for partition under the preliminary decree passed on 17.5.1979. Similar is the stand taken by the other defendants. Rather those defendants at no stage asserted the existence of such other properties. How much one would have wished that plaintiff had not been caught in his own net laid in the plaint and the said applications by making wide vague assertions of the existence of other joint Hindu family properties. Now when the defendant No.1 has taken a positive stand about those properties, and the disposal of the suit is likely to be considerably prolonged, the plaintiff has come out with the sand that there are no other joint Hindu family properties. Since the preliminary decree RFA (OS) 27/1997 Page 7 has itself left the matter open with regard to other joint Hindu family properties, this aspect of the controversy cannot be just brushed aside. This Court at this stage cannot go behind the preliminary decree. It can, of course, be with the parties to mutually agree if they like to proceed with the partition with regard to the seven properties specifically mentioned in the decree. In the absence of such mutual agreement, the preliminary decree has to be given effect to.
The grievance of the defendants and the plaintiff that there are no particulars given by the defendant No.1 in the list which he has filed, as to how he claims that those properties are of the joint Hindu family of Bal Kishan Dass. Their clarification has been given by him in the rejoinder which he has filed to be replies which the defendants and the plaintiff have filed to that list. Those defendants and plaintiff have no occasion to meet the rejoinder.
In the circumstances, the proper course is that the defendant No.1 moves a self-contained application of how he claims that 15 properties mentioned in the list are joint Hindu family of Bal Kishan Dass, and, therefore, partition by metes and bounds in terms of the preliminary decree should be granted qua them as well. The plaintiff and the other defendants will thereafter reply to the application and set forth their case. It will be then considered how far further enquiry or investigation about the respective claims of the parties with regard to those properties should be embarked upon.
Let the self-contained application be filed by the defendant No.1 within two weeks. Replies thereto be filed within 10 days next, and rejoinders, if any, within a week thereafter. That application along with the suit be listed before the Court on 19.1.1983."
8. Consequent upon the above order Jai Krishan filed an application i.e. IA 250/1983 seeking to include additional properties RFA (OS) 27/1997 Page 8 for which partition was claimed. On 15.02.1985, learned Single Judge framed an issue "As to whether the properties detailed in the list submitted by the appellant Jai Krishan belonged to Balkrishan Dass (HUF)?" The court order also observed that Jai Krishan Dass had filed another suit i.e. CS 1007/1982 which included the very same properties. In the light of that fact a submission had been made by the counsel for that limited purpose of that decision i.e. 15 items belonged to Balkrishan Dass (HUF), Suit No.1007/1982 would be consolidated and that for the purpose of deciding the other question of limitation the said later suit would stand alone.
9. The suit continued for ten years. An interlocutory appeal had been preferred, which was disposed of by the Division Bench. Eventually, on 18-04-1994, a learned Single Judge directed the parties to file an affidavit with respect to each of the properties sought to be partitioned, including, date, month and year of acquisition, date(s) of transaction, date of the title documents and whether the title documents were in the possession of the party concerned, etc. Ten days' time was given to the parties. Affidavits in compliance with this order were placed on record, with the relevant materials. A later order recorded the parties' unanimity and consent not to lead or rely on oral evidence. However, during the proceedings, the Appellant examined himself, and was subjected to cross examination. He had served interrogatories during the proceedings; they were replied to. Additionally, the oral evidence of a clerk from Allahabad Bank was also recorded. After considering all these materials, the learned Single Judge, by the impugned judgment, held that the Appellant could not RFA (OS) 27/1997 Page 9 establish his claim that the 15 items of properties were part of the HUF assets of Balkrishan Dass. The owners of these properties, either the other brothers individually, or in some instances, jointly, and in some cases, the wives of those brothers, had asserted that the properties belonged to them and had deposed as such in their affidavits.
10. Mr. H.L. Tiku, learned Senior counsel argued that the appellant had discharged the onus and had given sufficient details that the 15 properties were HUF and arose from the funds of nucleus of the joint family. It was urged that the Single Judge court fell into error because by preponderance of probability the respondents had to lead their evidence to discharge their onus. In view of the admitted details and evidence led by the appellant, it was clear that the funding of the said 15 properties were HUF properties. It was submitted that the appellant had exhibited documents and had stated by leading positive evidence that his late father Bal Kishan Dass had executed a deed of partial partition on 9th July 1960. Counsel also stressed that the evidence revealed that PLGL was a partnership firm between Bal Kishan Dass and his four brothers. Such brothers of the Appellant's father relinquished their respective right, interest, title and share during the course of the years and Sh. Banwari Lal was the last brother who had retired. On 9th November 1973 the said firm exclusively fell to the share of the Bal Kishan Dass and wife Ram Kala Devi and the appellant herein, namely, Jai Kishan Dass. The other heirs of Balkrishan Dass had been exclulded since they were paid their respective and due amount of Rs.22,000/- on 9th July 1960 by the said RFA (OS) 27/1997 Page 10 partial partition. Thus, on the partial partition which was effected on 9th July 1960 it was stated categorically that the other heirs of Lala Bal Kishan Dass, namely, the other brothers of the appellant had nothing to do with the said properties as their share had been earmarked as Rs. 22,000/- about and given and only the appellant and his parents were the co-sharer. It is only on the death of Bal Kishan Dass and on the demise of appellant's mother that their share of 66% would devolve on the 6 sons, i.e. 11% each. The appellant's share got enhanced by 11% and was 44% in all whereas the other brothers had 11% share each. Ex.P-1 the partial partition dated 9th July 1960 was on the record. These facts were overlooked by the impugned judgment
11. It was submitted that the evidence before the Court showed that Bal Kishan Dass had opened an account of PLGL which was his account as proprietor of PLGL, which fell to his share. M/s. Victor Cable Corporation was shown to have been introduced and its account opened on 24.4.73 substantiated the Appellant's submission. This account had substantial amounts.
12. Learned senior counsel faulted the impugned judgment for not dealing with the appellant's affidavit dated 17th May 1994 in which detailed submissions were made and facts shown regarding the business concern of Bhagwan Dass, the respective properties 1(a) and 1 (b), and the factory under the name and style of Aggarwal Hosiery Mill. He stated that the onus had been discharged by the appellant that the factory was purchased for Rs.93,000/-. Similarly, the appellant had proved that the orchard and other properties were purchased with RFA (OS) 27/1997 Page 11 monies of the HUF. Likewise, the counsel submitted that there is no mention in the impugned order regarding the deed dated 1.1.1958 where the capital contribution was made out of the joint Hindu family of Lala Bal Kishan Dass. The appellant had shown and substantiated his claim and the corresponding burden was not discharged by the respondents
13. It was argued by Mr. H.L. Tiku, learned senior counsel that the impugned judgment has not appreciated the true and full effect of the documents and materials placed on the record. It was submitted that the learned Single Judge failed to give any importance or credence to the partnership deeds dated 30.12.1955 and 01.01.1958. These demonstrated that the erstwhile Bhagwan Dass Babu Ram (which was later renamed as "Victor Cable Corporation") was entirely funded by the father of the parties, i.e. Bal Kishan Dass. This was categorically stated by the appellant in I.A. 230/1983. None of the parties, i.e. the plaintiff or the other contesting defendants/brothers ever stated that the erstwhile firm Bhagwan Dass Babu Ram had not been acquired by Bal Kishan Dass through HUF funds. It was also not their case that any or all of the other sons of Bhagwan Dass who were made partners in the firm had made any capital contributions. Having regard to these facts, every property mentioned in the appellant's affidavit, which had been acquired through the funds of Victor Cable Corporation, in fact, became partible as it was joint family property. Arguing next about the Property no. 4 - i.e. 38, Ratendeon Road, New Delhi, it was submitted that the sale deed had been filed by the fourth defendant - Mr. C.K. RFA (OS) 27/1997 Page 12 Gupta. It showed that the sale deed dated 01.02.1971 was filed. The property was purchased for a consideration of Rs. 3,50,000/- in favor of the sons of Bal Kishan Dass excluding the appellant. Learned counsel relied upon the statement of account of Victor Cable Corporation maintained with the Allahabad Bank and produced during the trial as Ex.DW-2/1, to say that the funds had been paid out of the accounts of that firm. It was submitted that similarly, Plot No. 2 at Block 2 Mohan Cooperative Industrial Estate (MCIE) was acquired on 12.02.1963 in the name of Brij Krishan for Rs.77,200/-. The relative statement of accounts, of Victor Cable Corporation, maintained with the Allahabad Bank were produced as Ex.DW-2/9 and DW-2/10. So far as Flat No. 401, Kanchanjunga Building, 18, Barakhamba Road was concerned, the materials on record in the form of Flat Buyer's Agreement filed by the eighth defendant Uma Devi clearly established that it was purchased for Rs.1,10,000/-. The statement of account of Victor Cable Corporation placed on the record clearly revealed that Uma Devi had withdrawn Rs.1,23,000/- during the period 1969-72. She also admitted that she had received moneys from the firm; yet she stated that in turn had been investing money with the firm. It was submitted that as far as the business and factory - Alcon Power Cables Ltd. was concerned, the affidavit of Mr. Chandra Krishan Gupta - the fourth defendant clearly revealed that the amount of Rs.13,62,500/- had been received by him from the sale proceeds of Victor Cable Corporation, which was sold on 01.04.1980. He used part of those funds in the acquisition of M/s. Alcan Power Cables Ltd. This, it was submitted, clearly revealed that the said properties too had to be RFA (OS) 27/1997 Page 13 included on account of their consideration being traced to the capital and resources of Victor Cable Corporation.
14. Mr. Tiku, dealing next with the Flat No. 1410, Chiranjit Towers, Nehru Place, New Delhi (Property no. 11) said that this was acquired in the name of Smt. Sheela Gupta for Rs.1,54,726/- on 01.10.1980. She had clearly withdrawn sum of Rs.1,66,000/- during the period 1974-76. For this purpose, learned counsel relied upon extract of an account of the firm for the period. He also relied upon the averments of Smt. Gupta, who stated that she had been receiving amounts from Victor Cable Corporation but that she had been investing with the firm too. Dealing next with the property no. 6, i.e. D-7, Kalindi Colony, New Delhi, it was submitted that the consideration paid was Rs.48,000/- and the property was purchased through sale deed dated 03.06.1967 by the eighth defendant - Smt. Uma Devi. It was argued that the said defendant, being a housewife did not have a separate income and, therefore, the monies were traceable to that of her husband's firm which in turn belonged to the HUF. The property next dealt with was the land at Meola Maharajpur, Ballabgarh, Gurgaon, acquired in the names of Uma Devi, Vimla, Jaswanti, Sheela and Avtar. The total consideration was Rs.37,510/-. Learned counsel relied upon the affidavit filed by the eighth defendant, Smt. Uma Devi, before the learned Single Judge, and stated that the funds were clearly traceable to accounts held in Allahabad Bank and, therefore, the property belonged to the HUF of Bal Kishan Dass.
RFA (OS) 27/1997 Page 14
15. Learned senior counsel argued that the appellant had led evidence that the father, Bal Kishan Dass had executed deed of partial partition. The evidence also pointed to the firm PLGL and the respective shareholding in it. Furthermore, it was revealed that by a series of relinquishment/release deeds, the shares of that firm had devolved exclusively upon Bal Kishan Dass; ultimately on 09.11.1973, the concern became that of Bal Kishan Dass and Ram Kala Devi and the present appellant. The parties to the suit, i.e. the plaintiff and the other brothers (who were excluded from that firm) were paid Rs. 22,000/- at the time of partial partition on 09.07.1960. That partition deed categorically stated that other heirs of Bal Kishan Dass had nothing to do with the properties. The evidence on record also showed that Bal Kishan Dass was the only individual who could operate the PLGL account. In these surrounding circumstances, when Victor Cable Corporation had opened its bank account on 24.04.1973, there was no question of the amounts paid for acquiring the properties- that were subject matter of the suit-, belonging to anyone other than Bal Kishan Dass or his HUF.
16. Learned counsel submitted that the impugned order is silent about the capital contribution made to the firm on 01.01.1958 from the joint HUF of Lala Bal Kishan Dass. Once this stood established, the respondents were under a duty to discharge the onus and reveal that the source of funds for all the properties, of which partition was sought, actually belonged to them. Learned counsel submitted that the business of Bhagwan Dass Babu Ram which later came to be renamed RFA (OS) 27/1997 Page 15 as Victor Cable Corporation was purchased for Rs.93,000/- in October1955 from PLGL. Aggarwal Hosiery Mill was acquired by Bhagwan Dass as karta of his HUF. The partnership deed dated 01.01.1958 relied upon by the appellant stated that the capital contribution of Rs.93,000/- was made from joint family funds. In not taking all these into consideration, the Trial Court fell into error in holding that the appellant had not discharged the onus in proving that for acquiring each of the 15 items of properties listed, belonged to Bhagwan Dass HUF; in holding otherwise, the Trial Court fell into error.
17. Learned counsel for the respondents, and the plaintiff argued that at no relevant point in time did the Appellant claimed that the properties belonged to the HUF. It was pointed out that when the suit was filed, and the defendants entered their defence, the plea that properties other than those listed in the plaint ought to have been made the subject matter of the partition was never taken by the appellant. The stray sentence in the plaint referring to "other properties" of Balkrishan Das HUF, without specifying what they were, was seized upon by the Appellant - more than seven years after the suit was filed, and four years after the preliminary decree was drawn, in 1979. The Appellant and the plaintiffs' father, Balkrishan Dass, during his life time never acquiesced or conceded that the 15 properties that were sought to be included through IA 250/1983, could be subject to partition.
RFA (OS) 27/1997 Page 16
18. Learned counsel submitted that the findings recorded by the learned Single Judge were in consonance with reason, law and consistent with the evidence on the record. The mere fact that a joint family had existed during some time, did not automatically lead to any presumption that the properties acquired by some of its members were from the joint family funds, or that sufficient nucleus existed with the HUF to invest those assets with the character of joint family properties. In order to be partible, the claimant had to establish in some manner that there could be no other inference except that the funds of HUF were used for the acquisition of the assets. In the present case, all worthwhile assets were acquired during the period 1957 to 1959; the properties were owned by wives of the defendant/ respondents. Each one of them had given an explanation about the source of funds, initially with them, and later given in deposit to Victor Cable Corporation. These monies were later used to finance the asset acquisition. The property tax, income tax and wealth tax assessments of these properties showed that they were self-acquired properties of such ladies. The Appellant was well aware of all these aspects, and even chose to question the status of these properties, seeking a declaration that they did not belong to their ostensible owners, but to the larger joint family. In that suit, he lost before the Single Judge, Division Bench, and even suffered an adverse judgment by the Supreme Court. This showed his awareness and knowledge as to who were owners of the properties. He did not chose to question the ownership of those assets, as not belonging to the ladies. Hence, in the guise of seeking a partition, through an enlarged proceeding, he could RFA (OS) 27/1997 Page 17 not be allowed to obtain a declaration or a cancellation of the title deed.
19. It was argued on behalf of the plaintiff and the other contesting defendants that the appellant could not establish through any credible materials on the record that the assets which he sought partition to, belonged to HUF of which he was a member. Elaborating on this, it was submitted that as on 1.10.1955, Bal Kishan Dass formed a partnership firm with three sons, i.e., Brij Kishan, Gopal Kishan and Hari Kishan. These sons were highly qualified technically and were taken on as working partners in the firm M/s Bhagwan Das Babu Ram. The erstwhile Board of Bhagwan Dass Babu Ram comprised of Bal Kishan Dass as one of its partners. On account of continuing losses, the firm was wound up and Bal Kishan Dass took over the entire business. It was thereafter that the firm of four partners including Bal Kishan Dass was formed. Each partner had 1/4 th share. The venture engaged itself in manufacturing of electric wires and cables and was duly registered under the Income Tax Act. It was submitted subsequently that the Bal Kishan Dass as Karta of his HUF effected the partial partition of the assets and interest of Bal Kishan Dass HUF in the firm of Bhagwan Dass Babu Ram which at that stage was Rs.1,24,817/-. The coparceners including the first defendant were allotted 1/8th share. The first defendant/appellant received his share and with that the matter ended. With effect from 1.1.1958, M/s Bhagwan Das Babu Ram was reconstituted and two new partners, i.e., Chander Krishan Gupta and Avtar Krishan Gupta were added. Each RFA (OS) 27/1997 Page 18 one of them had 10% share. Bal Kishan Dass' share was reduced to 5%. This firm was duly registered again with the income tax authorities. A re-composition of the firm took place once again on 25.6.1960 when Bal Kishan Dass retired from the firm. The remaining five partners became equal shareholders to the extent of 20%. On 14.7.1961, the name of the firm was changed to Victor Cable Corporation. All these were consistently averred and pleaded in all the proceedings including the first suit instituted by the appellant seeking a declaration that the erstwhile larger family of Panna Lal Girdhari Lal had existed. Counsel for the respondents urged that this history of the creation and business firm M/s Bhagwan Dass Babu Ram and its later transformation into Victor Cable Corporation was consistently maintained in all the pleadings by all contesting defendants as well as the plaintiff except the present appellant. It was highlighted that the appellant never worked as a partner; all other brothers were technically qualified and had used their expertise for the augmentation of the firm's business and progress. Learned counsel submitted that the accounts of the firm and the copies of the income tax returns filed by the firm with details of the income expenditure and the entries standing in the name of Late Bal Kishan Dass as well as his sons in their individual capacity and wherever they are partners, in that capacity were reflected in the suit as well as in the previous proceedings. As a result the onus was heavily on the appellant who asserted that the money used by the owners of the several properties to acquire them in fact emanated from the coffers of the HUF.
RFA (OS) 27/1997 Page 19
20. Learned counsel for the respondents argued that the firm Panna Lal Girdhari Lal existed with reduced number of partners till 1973. Bal Kishan Dass' share, in that firm, as Karta of the HUF was the subject matter of the partial partition in 1960. In fact the assets of that HUF were correctly reflected in the schedule to Suit No.235/1976 when the first respondent initially filed it. The appellant was correctly awarded 1/8th share from amongst those assets. Since he has sought to include 15 other items, 6 of which were in the name of the wives of his brothers, there was a clear cut onus upon him to establish that acquisition of such assets by the wives was from out of the joint family funds of which he was a member. The mere circumstance that a joint family existed did not lead to any presumption that properties acquire individually was in the name of certain individual members of the HUF in fact belonged to the joint family. On the contrary, argued the counsel, the fact that wives of some of the coparceners - except the plaintiff- were owners or co-owners of properties, raised a presumption of facts that they were real owners and not ostensible owners. If the logic behind the appellant's assertion and arguments were to be correct, even the properties held in the name of his son, his wife and by him separately, or individually should have been included in the list supplied by him. This aspect was put to him during the cross examination to which he reacted that those properties were acquired separately and were not part of the joint family funds. Learned counsel, therefore, emphasis that on application of similar logic, there was nothing to prevent other coparceners or their family RFA (OS) 27/1997 Page 20 members from acquiring their own assets which could never be termed as joint family property.
21. The judgment of the Supreme Court in Surjit Lal Chhabra v Commissioner of Income Tax AIR 1976 SC 109 is authority for the proposition that even if an asset, otherwise self-acquired property of a male member is thrown into the common hotchpot, it does not alter the situation and that "in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has no right to challenge the alienation."
There is a body of authority, in the form of decisions of various High Courts (Manikrao v. Deorao A.I.R. 1955 Nag. 290, Radha Gobinda Roy v. Durgarani Dassi I.L.R. (1955) 1 Cal. 207, 213 and Nagayasami Naidu & Ors. vs Kochadai Naidu & Ors (1970) 1 MLJ 105; Dasrath Prasad v Daswanti Kaur ILR (1976) 55 Pat 161) etc. that merely because the husband possessed considerable properties raises no presumption that the property found in the possession of the females and widow belonged to him (the husband) and that it is for the person making the claim to adduce evidence as to the source from which the property was acquired. If no account is given, it has to be held that the property belongs to her. This line of distinction between properties standing in the name of a male member and those standing RFA (OS) 27/1997 Page 21 in the name of a female member of the family, whether she is the wife, or the daughter-in-law or the daughter, is well settled.
22. As far as the first properties standing in the name of the wives of the other brothers of the Appellants are concerned (i.e. land at Meola Maharajpur, Ballabhgarh, Haryana; 785-809, Joshi Road, Karol Bagh, D-7 Kalindi Colony; Flat No. 401, Kanchenjunga, New Delhi, Flat No. 1410, Chiranjiv Tower, Nehru Place, the South Extension property and Shop No. 5775, Sadar Bazar) all co-owners filed their affidavits pursuant to the orders of Court. They also produced documents, such as income tax assessments, Bank account statements, etc. Their claim is that these assets were acquired by them independently of the monies generated by the HUF. In the case of one property, the eighth respondent was able to show account and ledger entries that disclosed that she maintained deposits with Victor Cable Corporation. In the light of these documents, and the materials, even if there were no presumption and arguendo there were some merit in the Appellant's contention that such women must have acquired the properties with the help of their husband's share in the HUF, such presumption stood rebutted, and the onus of proving that the assets were acquired out of HUF funds was upon the Appellant. He did not lead any contrary evidence; he did not also insist on cross examining any of the witnesses, who deposed through their affidavits regarding the assets and the source of their acquisition. As a result, the learned Single Judge's findings that the properties did not belong to any HUF, RFA (OS) 27/1997 Page 22 and that he could not lay claim for partitioning them, is sound. The Appellant's arguments to the contrary are meritless.
Property Nos 7 to 13
23. The other properties of which the Appellant sought partition were:
(1) Plot of land in Mohan Co-operateive Industrial Area; (2) 38 Ratendon Road (Amrita Shergill Marg) (3) The business concern Bhagwandass Babu Ram (later renamed Victor Cables Corporation);
(4) The business concern Pannalal Girdharilal (PLGL); (5) The business Alcan Power Cables;
(6) The Krisha Gold and Silver Thread Mills (7) The business Alka International.
24. The Appellant's submission in regard to his entitlement to share in these assets, and for accounting of these businesses, is premised on the existence of his father's HUF, Balkrishan Dass HUF. There is no doubt that Balkrishan Dass HUF existed. Equally, however, the material on record shows that this firm was represented through the father, Balkrishan Dass, as a partner in PLGL, to the extent of 20%. The Appellant did not establish through any objective material that the firm/concern Bhagwandass Babu Ram was a family concern of Balkrishan Dass. The pleadings in the affidavits of parties reveal that the firm was reconstituted in 1955 when Balkrishan Dass and his three sons including the plaintiff were partners to the extent of 25% each.
RFA (OS) 27/1997 Page 23 The Appellant was aware of this fact, and had agitated that this concern was part of the larger joint family, in the previous suit. His plea was rejected right up to the Supreme Court. The firm was again re-organized in 1958, when the father, Balkrishan Dass became partner to the extent of 5% and the sons, except the Appellant also became share-holders. The business of this firm was manufacture and sale of cables; yet another re-organization took place in 1961 when Balkrishan Dass walked out of the partnership, and the remaining sons (except the Appellant) became equal partners to the extent of 20% each.
25. The ultimate fate of PLGL appears to have been that the entire concern went into the hands of Balkrishan Das, in 1973. However, before that, he seems to have effected a partition - of his HUF's share in that concern (PLGL) and made over the shares to his sons, including the present Appellant. The accounts produced under oath, by the brothers of the Appellants, show clearly that the sum of Rs.15,602/19 was credited to each son, including the Appellant Jaikishan Dass during the accounting year 1957-58 (assessment year 1959-60); the amount of Rs.15,602/19 was transferred to Balkrishan Das's personal account. The assessment order, dated 14-8-1960, records the partial partition of Balkrishan Dass's assets in the firm as karta, and the further reconstitution of the firm (Bhagwandass Babu Ram). Registration of the firm under Section 26-A of the (repealed) Income Tax Act, 1922 was recorded. Thus, it is clear from the materials on the record, placed by the contesting parties that even RFA (OS) 27/1997 Page 24 though Balkrishan Dass's HUF continued, till the suit (out of which the present appeal arises) was filed by the plaintiff, some partial partitions took place at early stages, resulting in the share of that firm, in Bhagwandass Babu Ram, itself being partitioned, as far back as in 1957. Before that Balkrishan Dass held a 25% share, which at best could be in his capacity as karta of his joint family. However, as far as the 75% share of the three other sons, including the plaintiff was concerned, there is no material to suggest that they belonged to the HUF. In fact, the common case of all the brothers, except the Appellant (even the two other brothers, Chander Krishan and Avtar Krishan who were not partners originally, in Bhagwandass Baburam) was that the said three partner-brothers were inducted on account of their knowledge, expertise and education in the trade. By all accounts, this knowledge and expertise helped the business, which grew. The Appellant was under a duty to show that the entire firm (Bhagwandass Babu Ram, later known as Victor Cables Corporation) remained a HUF property right up to the filing of the suit. He could not prove that; on the other hand, his attempt to say that it was part of the larger HUF of Girdharilal, his grandfather, miserably failed, in all courts, right up to the Supreme Court.
26. In this context, it would be relevant to extract some of the discussion and findings of the learned Single Judge, in the impugned judgment. They are as follows:
"35. When asked about Pusa Road property and Darya Ganj property that they had been included in assessment of Bal Kishan Das HUF, defendant No. 1 would admit that they were RFA (OS) 27/1997 Page 25 assessed in the name of Balkishan Das HUF. Therefore, the witness was fully aware of the assessment being made in respect of the properties of the joint family and properties assessed belonging to the other defendants. He was also asked that Joshi Road or Kalindi properties were not included in the assessment he gives a reply which shows desperateness for him. He says that he was never associated and, therefore, he did not know. He admits that he made complaints to the Income Tax Department.
37. He was specifically asked about the payments made by the HUF for 38, Retandon Road property. He asserted that it was Balkishan Das HUF which purchased and financed for the property. It was renamed as Victor Cables Corporation and that there was no other source from which anybody could have purchased the property. If this is the nature of the evidence to claim immovable properties, I am afraid, the first defendant is trying to establish law of his own. From the earlier proceedings, it came to light that the first defendant had filed a petition under the Delhi Shops & Establishment Act, 1954, against Panna Lal Girdhar Lal as he was an employee therein. One would expect him to either admit the fact and also give us the details about the petition so that this Court could appreciate the jural relationship between Panna Lal Girdhar Lal and the first defendant. But what he would say is that he does not remember and that has nothing to do with the partition sought for in this suit. Therefore, the evidence of such a person cannot be taken without a pinch of salt. He was asked about the properties in his name and in the name of his son Raj Krishan Das, he became very furious and would say that he purchased from his own funds and his son purchased his property from his own money and these items were not subject matter of the suit. What is sought to be elicited from him is that if he is claiming properties in the names of the wives of other brothers and other brothers the properties in his names and in the names of his son and daughter should also be brought into the hotchpot, if his theory of purchases from out of the common funds of the family is true.
38. When he was asked about the total income tax paid by him between 1950 to 1960 and 1970 to 1980, the answer is that he RFA (OS) 27/1997 Page 26 does not remember. He was asked about the proof of his claim, he would again state that the interrogatories are the answer.
Q.83. Apart from your oral statement do you have any other proof in support of your claim that properties being claimed by you, are that all HUF and were purchased from the funds of the HUF?
Ans. I again repeat that I have given the proof in the interrogatories served on them which they have not answered so far in spite pf repeated orders of this Hon'ble Court. Secondly I have filed an application that the parties, plaintiff and other defendants, who are in possession of the original documents they should file and produce those documents in court whereas I have filed the list of documents some of these are certified copies rest uncertified copies and these are in the court record. List of documents and documents are in court file part III. So on my part I have filed the documents whether they are certified copies or un-certified copies.
39. Mr. S.P. Aggarwal, learned senior counsel for Brij Krishan Gupta, the second defendant, asked few questions in the cross examination in his attempt to get some material in favour of the first defendant and the second defendant. The first defendant could not appreciate and gave again answers which could not be understood by anybody.
40. Mr. M.N. Krishnamani, learned senior counsel cross- examined Jai Krishan Das on behalf of defendants No. 3A, 5 and 6. He admits that about Joshi Road property he gave a complaint and that was rejected by the Income Tax Department, even though the suggestion was denied by him. He would even go to the extent of denying his filing an application in suit No. 412/75 which related to the firm Victor Cables Corporation and which was rejected.
41. Then Mr. J.P. Gupta, learned counsel for defendants 4 and 9 cross-examined the witness. He would admit that for the first time after his being isolated in 1961 he claims that partnership belonging to HUF and he admits that suit No. 154/67 was dismissed upto the Supreme Court.
42. On 11.3.1996, 4th defendant Chander Krishan Gupta filed an affidavit filing list of accounts books of Bhagwan Das Babu Ram/Victor Cables Corporation and photostat copies of RFA (OS) 27/1997 Page 27 the Mundi Scripts relating to Uma Devi, Vimla Devi, Jaswanti Devi, Sheela Devi and Swarn Devi. These documents have been filed to show that the ladies were depositing monies in Bhagwan Das Babu Ram/Victor Cables Corporation and the firm used to deduct income tax at source on the interests paid to them. On the same date, the second defendant Brij Krishan Gupta filed an affidavit along with the list of documents. He filed photostat copies of the partnership deed dated 30th day of December 1955 and partnership deed dated 30th of April 1973. The document is of 1955 prior to 1961 and the 1973 documents have been considered by this Court in the earlier orders and these documents filed by the second defendant do not throw any light to come to any decision about the character of the 15 items under consideration.
43. The first defendant sought to examine some telegram and he sought to examine Om Pal Singh, Town Inspector, Department of Posts & Telegraph. He said that he was not able to get any document because no particulars are given. I noted the following on that date :-
"The learned counsel for the first defendant when seeking to issue summons to the witness to the Superintendent Incharge, DTO, Delhi mentioned as witness No. 14 in the summons, has written "Clerk concerned records pertaining to telegram, Kashmere Gate, Delhi."
This shows how without any regard for the Court and just for the purpose of asking for time the first defendant had taken out summons.
44. On 12.3.1996 the first defendant sought to examine D.W.2 who ha come to Court but not available for examination. In the list of witnesses given by the first defendant, the serial number is 13. To find out how the first defendant had described about D.W.2 and what sorts of documents he wanted D.W.2 to produce I perused the list. This also shows how vague the summons is. This only demonstrates that the first defendant was not really interested in getting relevant documents. He was fully aware that no document would be available. I noted the following on that date with reference to D.W.2 :-
RFA (OS) 27/1997 Page 28 "Learned counsel for the first defendant, when seeking to issue summons to the witness No. 13, it is mentioned as follows :-
"Clerk concerned, Mohan Cooperative Industrial Estate Limited, Mohan Singh Building, Shankar Market, Connaught Place, New Delhi."
The learned counsel for the first defendant seeks to have it on some other day for examination on his behalf."
45. Sh. Dhanbir Singh, Cashier-cum-clerk, Allahabad Bank was examined as D.W.3 on 12.3.1996. The photostat copies of certain statements of accounts and the following documents were marked through him :-
1. Ex.DW3/1 statement of account relating to the year 1971.
2. Ex.DW3/2 statement of account for the year 1959 relating to Mrs. Urmila Devi.
3. Ex.DW3/3 statement of account relating to Gopal Krishan Gupta for the year 1973.
4. Ex.DW3/4 statement of account relating to Urmila Devi for the year 1957.
5. Ex.DW.3/5 statement of account relating to the year 1957 in respect of Bhagwan Dass Babu Ram.
6. Ex.DW.3/6 statement of account relating to Hari Krishan Dass relating to 1957. The second sheet in Ex. DW.3/6 would relate to the year 1958.
7. Ex.DW.3/7 relates to Brij Krishan Gupta for the year 1957.
8. Ex.DW3/8 relates to Brij Krishan Gupta for the year 1958.
9. Ex.DW.3/9 relates to Bhagwan Dass Babu Ram for the year 1959.
10. Ex.DW.3/10 is in relation to Uma Devi for the year 1957.
11. Ex.DW.3/11 in relation to Uma Devi is for the year 1957.
12. Ex.DW3/12 a copy of the ledger account of the firm Panna Lal Girdhar Lal of the opening sheet dated 11.9.73.
RFA (OS) 27/1997 Page 29
13. Ex.DW.3/13 is the cash credit current account of Panna Lal Girdhar Lal.
14. Ex.DW.3/14 again cash credit ledger account of Panna Lal Girdhar Lal.
It is noted that all these documents marked today are photostat copies and the learned counsel for the first defendant represented that the certified copies re on record in suit No. 154/67 which has been disposed of. It is not shown as to how these documents are of any help to the first defendant with reference to the 15 items.
46. On 22.3.1996 Dhanbir Singh, a clerk from Allahabad Bank, Basandra Enclave, New Delhi was examined as D1W2. It appears the same man D.W.3 has again been examined. The first defendant marked Ex.D1W2/1 to D1W2/13. The marking of these documents were opposed. In the summons issued, it was not specified what are the documents to be brought by the witness.
In the cross-examination, the witness would admit that he was not in a position to identify the signatures because he joined the bank only in 1986. Documents Ex.D1W2/1 to D1W/13 do not throw any light on the question on issue."
27. Ultimately, after discussing the relevant law, the impugned judgment concluded that:
"48. In the context to the evidence adduced by the first defendant, the conclusion is irresistible that the first defendant had indulged himself in a very vexatious claim without any regard for truth. The other defendants Nos. 3A, 4, 5, 6, 8 and 9 and the plaintiff have filed documents which go to show that their claims are true. On a perusal of the documents filed by them would show that they had acquired their respective properties from their own resources without any detriment to any joint family members.
49. The first defendant having failed upto the Supreme Court in the earlier suit, has again attempted to resuscitate the dead RFA (OS) 27/1997 Page 30 claims without any justification whatsoever. The documents filed by him and the evidence given by him do not satisfy the requirements of law as laid down by the Privy Council and Their Lordships of the Supreme Court."
28. This court notices that the learned Single Judge relied on the Privy Council ruling in Appalaswami v. Suryanarayanamurti & Ors., A.I.R. 1947 PC 189 where it was held that:
"Proof of the.existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property is joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property"
29. Much later, analyzing the above ruling, and subsequent decisions, the Supreme Court, in D.S. Lakshmaiah & Anr. Vs. L. Balasubramanyam & Anr 2003 (10) SCC 310, held that:
"In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh [(1969) 1 SCC 386], noticing the observations of Sir John Beaumont in Appalaswami's case (supra), it was reiterated that the burden of proving that any particular property is joint family property in the first instance is upon the person who claims it to be so. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is, however, subject to the limitation that the joint family property must be such as RFA (OS) 27/1997 Page 31 with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate. We are unable to accept the contention of learned counsel for the respondents that the aforesaid later observations have been made without reasons or that the Privy Council's decision does not hold so. The observation that only after possession of adequate nucleus is shown that the onus shifts also get support from Srinivas Krishnarao Kango's case (supra) where, while considering the question of shifting of burden, it has been held that the important thing to consider is the income which the nucleus yields. In Baikuntha Nath Paramanik (dead) by His L.Rs. & Heirs v. Sashi Bhusan Pramanik (dead) by his L.Rs. & Ors. [(1973) 2 SCC 334], this Court again held that when a joint family is found to be in possession of nucleus sufficient to make the impugned acquisitions then a presumption arises that the acquisitions standing in the names of the person who were in the management of the family properties are family acquisitions. In Surendra Kumar v. Phoolchand (dead) through LRs & Anr. [(1996) 2 SCC 491], this Court held that where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family funds."
30. The Appellant/first defendant, being the only one claiming that the properties which he sought partition of, were impressed with the character of HUF assets, was under an onus to establish that a joint RFA (OS) 27/1997 Page 32 family with sufficient funds, to acquire the said assets, existed. The materials on record on the other hand reveals that the firm Bhagwandass Babu Ram was never treated as a family concern; initially only a few sons were inducted as partners. The father, Balkrishan Dass, effected a partition of his share in that concern after which he joined as a minor partner, in his individual capacity; two other sons became partners with 10% share each. Later, the firm was reorganized and Balkrishan Dass was no longer partner; others - except the first defendant, became equal partners. The assets belonging to the HUF of Balkrishan Dass, to the extent they remained intact and undivided were concededly made the subject matter of the suit, out of which the present appeal has arisen, i.e., Suit No. 235/1976. Each of the other brothers who continued in Victor Cable Corporation, worked in their individual capacity, having gained experience, qualifications and expertise in the business and trade. The Appellant, on the other hand, was never part of that business; he did not seek inclusion, at any appropriate stage. He has not been able to show also that the HUF Balkrishan Dass had funds sufficient to acquire all the rest of the properties that were the subject matter of the list submitted by the Appellant. He clearly failed to discharge the burden which lay upon him to prove that the properties - of which claimed partition were acquired out of HUF funds, and that sufficient funds for acquiring such assets existed.
RFA (OS) 27/1997 Page 33
31.In view of the above discussion, this Court is of the opinion that the Appeal is devoid of any merit. It fails and is accordingly dismissed, without any order as to costs.
S. RAVINDRA BHAT (JUDGE) S.P.GARG (JUDGE) APRIL 5, 2013 RFA (OS) 27/1997 Page 34