Delhi District Court
Dropti Devi vs Krishna Abhaya And Ors on 28 November, 2024
Suit No. 17251/16 1
IN THE COURT OF SH. DIVYANG THAKUR, LD. DJ-03, SOUTH-
WEST DISTRICT, DWARKA COURTS, DELHI
Civil Suit No: 17251/16
CNR No. : DLSW01-004381-2016
1. Smt. Dropti Devi
W/o Late Dr. Chhotey Lal Abhaya
R/o House no.RZ-1667/11, Kamla Park,
Main Dharampura Road
Najafgarh
Delhi - 110043
2. Dr. Avinash Abhaya
S/o Late Dr. Chhotey Lal Abhaya
Associate Professor
Department of Anatomy
Government Medical College and Hospital
Sector-32, Chandigarh - 160030 .....Plaintiffs
Versus
1. Smt. Krishna Abhaya
W/o Late Sh. Jagdish Prasad Abhaya
R/o House no.RZ-28-B/1
Block H, Dharampura, Najafgarh,
Delhi - 110043
2. Dr. Gaurav Singh Abhaya
S/o Late Sh. Jagdish Prasad Abhaya
R/o House no.RZ-28-B/1
Block H, Dharampura, Najafgarh,
Delhi - 110043
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors.
Suit No. 17251/16 2
3. Mr. Saurabh Singh Abhaya
S/o Late Sh. Jagdish Prasad Abhaya
R/o House no.RZ-28-B/1
Block H, Dharampura, Najafgarh,
Delhi - 110043
4. Smt. Meenakshi
D/o Late Sh. Jagdish Prasad Abhaya
R/o House no.RZ-28-B/1
Block H, Dharampura, Najafgarh,
Delhi - 110043
5. Smt. Mithlesh
W/o Sh. Nand Kishore
R/o C-9, Tower 5,
New Moti Bagh,
New Delhi - 110023
6. Smt. Vijay Laxmi Shailon
W/o Sh. V.K.Shailon
R/o I-207, Sarojini Nagar,
New Delhi - 110023 .....Defendants
SUIT FOR PARTITION, RECOVERY OF MONEY AND
PERMANENT INJUNCTION
DATE OF INSTITUTION : 07.01.2013
DATE OF FINAL ARGUMENTS : 06.09.2024
DATE OF DECISION : 28.11.2024
DECISION : Partly decreed
JUDGMENT
1. The plaintiffs have filed the present suit seeking partition, recovery of money and permanent injunction against the defendants. The Plaint
2. The brief facts as mentioned in the plaint are as follows :
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 3
(i) Plaintiff no.1 is the legally wedded wife of late Sh. Chhotey Lal Abhaya and plaintiff no.2 is his son. Late Sh. Chhotey Lal expired on 02.12.2010. The family of Late Sh. Chhotey Lal comprised of his wife (plaintiff no.1), two sons namely Sh. Jagdish Prasad Abhaya (who died in the year 2006) and Dr. Avinash Abhaya (plaintiff no.2) who has been living in Chandigarh for many years and two daughters namely Smt. Mithlesh and Smt. Vijay Laxmi, both residing in Delhi. The defendants no.1 to 4 are widow, sons and daughters of Late Sh. Jagdish Prasad Abhaya. The deceased husband of plaintiff no.1 was earlier married to one Smt. Chameli who died in the year 1960 leaving behind a child namely Sh. Jagdish Prasad Abhaya. After the death of his wife, Late Sh.
Chhotey Lal Abhaya married plaintiff no.1, who brought up Sh. Jagdish Prasad Abhaya. Out of the wedlock, three other children namely Dr. Avinash Abhaya, Smt. Mithlesh and Smt. Vijay Laxmi were born to the plaintiff. Late Dr. Chhotey Lal Abhaya is survived by his following legal heirs :
DR. CHHOTEY LAL ABHAYA (Died intestate on 02nd Dec 2010) | | _________________________________________________________ | | | | | (1) (2) (3) (4) (5) DROPTI DEVI JAGDISH ABHAYA AVINASH ABHAYA MITHLESH VIJAY LAXMI (Wife) (Pre-deceased Son) (Son)(Plaintiff no.2) (Daughter) (Daughter) (Plaintiff no.2) (Died in 2006) (D-5) (D-6) | | _________________________________________________________________ | | | | Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors.
Suit No. 17251/16 4
KRISHNA DEVI GAURAV ABHAYA MEENAKSHI SAURABH ABHAYA
(Widow) (Son) (Daughter) (Son)
(D-1) (D-2) (D-4) (D-3)
(ii) The plaintiff no.1 is permanent resident of House no.1667/11,
Kamla Park, Main Dharampura Road, Najafgarh, Delhi. She has been residing there since the day the said property was purchased by her husband. She also got installed landline telephone connection and LPG connection and also has been issued Voter I-Card on the said residence.
Late Dr. Chhotey Lal was a Central govt. employee and a duly qualified medico holding BIMS degree conferred by Body of Ayurvedic and Unani System of Medicine by Delhi Administration on 15.04.1967. Late Dr. Chhotey Lal also settled his private medical practice in a rented shop bearing no.723, Gaushala Road, Najafgarh, Delhi during the year 1968. Main part of his income came from his medical practice in addition to his income from salary and rent from his self-acquired and constructed three storey house in Firozabad, U.P.
(iii) After some time, some disputes arose between Late Dr. Chhotey Lal and his landlord named Sh. Net Ram who was landlord of his rented shop. Sh. Net Ram sent a notice to late Dr. Chhotey Lal whereby the tenancy of Dr. Chhotey Lal in respect of shop no.723 was terminated. However, litigations started between them and on 20.07.1979, due to intervention by the area's Shopkeepers Welfare Association, the dispute was amicably settled and the court cases Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 5 between them were compromised. In terms of the compromise, the landlord Sh. Net Ram sold his shop no.723, Gaushala Road, Najafgarh, Delhi to Late Dr. Chhotey Lal on 22.08.1979 vide GPA, Agreement, Affidavit and Receipt duly executed by Sh. Net Ram in favour of Late Dr. Chhotey Lal. After having purchased the shop, Late Dr. Chhotey Lal got constructed first floor on the said shop and got installed electricity connection in his own name. He also wrote various letters to MCD for mutation of the said shop in his name. For almost a period of 42 years, i.e. from his induction as a tenant in the year 1968 till his death on 02.12.2010, Dr. Chhotey Lal was continuously and uninterruptedly running his clinic from the said shop.
(iv) Late Dr. Chhotey Lal purchased a plot admeasuring about 150 sq. yds. bearing no.1667/11, Kamala Park, Main Dharampura Road, Najafgarh, Delhi in the year 1970 and also got constructed a house on it in the year 1972 and till his death, he continuously resided in the said house with plaintiff no.1. In the year 1992, Late Dr. Chhotey Lal retired from government service and was getting pension after August 1992. Plaintiff was nominated by her husband in his Pension Pay Orders dated 06.08.1992. Late Dr. Chhotey Lal also had rental income from his self acquired house i.e. House no.38, Katra Sunaran, Firozabad, U.P.
(v) After his retirement, Late Dr. Chhotey Lal purchased another plot admeasuring 100 sq yds. bearing no.RZ-28-B/1, Block H, Dharampura, Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 6 Najafgarh, Delhi upon which two rooms, kitchen and toilet were built up at ground floor only at time of purchase. His elder son Sh. Jagdish Prasad was sent to live in the said house with his family comprising of defendants no.1 to 4. Late Dr. Chhotey Lal got issued a separate Ration Card for them. Sh. Jagdish Prasad did not get the necessary changes in his ration card, voter identity card and gas connection etc. but in the invitation card of marriage of defendant no.4, the address was given as RZ-28-B/1, Block H, Dharampura, Najafgarh, Delhi. Further, defendant no.2 Gaurav Singh Abhaya had old account in SBI Bank, Najafgarh at said address.
(vi) As the House no.1667/11, Kamla Park, Main Dharampura Road, Najafgarh, Delhi earlier acquired by Late Dr. Chhotey Lal had fallen down, he planned to shift to RZ-28-B/1, Block H, Dharampura, Najafgarh, Delhi and asked his elder son to vacate the house and to shift in a rented accommodation in the neighbourhood house of one Sh. Dharam Singh who was a retired employee of DESU. Late Sh. Jagdish Prasad shifted to the rented premises with his family for which rent was also paid by Dr. Chhotey Lal. Late Dr. Chhotey Lal got constructed upto 3 storey on RZ-28-B/1, Block H, Dharampura, Najafgarh, Delhi. The demolition of old construction started in May 2002 and new construction was completed in December 2003 on which he spent about Rs.15 lacs. After completion of construction, Late Sh. Jagdish Prasad Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 7 was sent to reside only at the first floor of the house and since then, he is residing in the said floor with his family. The second floor of the said house was given on rent and the ground floor was kept by plaintiff no.1 and her husband for their personal use. Therefore, plaintiff no.1 and her husband shifted some of their furniture and belongings there and used to stay there for a day or two but before they could permanently shift there, Jagdish Prasad and his wife started quarelling with plaintiff no.1. Therefore, plaintiff no.1 and her husband dropped their plan of shifting to the said house and kept the ground floor vacant as their belongings were kept there under lock and key. Dr. Chhotey Lal resided throughout his life at House no.1667/11, Kamla Park, Main Dharampura Road, Najafgarh, Delhi.There was no formal partition of any property acquired, owned and held by late Dr. Chhotey Lal.
(vii) Dr. Chhotey Lal also submitted two applications for allotment of LIG flats in DDA under Ambedkar Awas Yojna 1989, one application in his name and another in the name of Sh. Jagdish Prasad, out of which in the draw of lots, only the application in the name of Sh. Jagdish Prasad succeeded and consequently, a flat no.357 in Sector 14, Dwarka, New Delhi was allotted. Dr. Chhotey Lal made the payment of Rs.8,000/- for each application towards registration fee and also made remaining payment. The flat was given on rent by Dr. Chhotey Lal after its possession. Sh. Jagdish Prasad did not do well in studies and his career, Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 8 he was asked by Dr. Chhotey Lal to assist him in his clinic. Sh. Jagdish Prasad has never been in any employment except assisting his father. Therefore, his father had to bear all his household expenses. Both the sons of Sh. Jagdish Prasad have got education at the expense of Late Dr. Chhotey Lal. Thereafter, Sh. Jagdish Prasad died of kidney ailment in the year 2006.
(viii) Late Dr. Chhotey Lal got the daughter of defendant namely Meenakshi married after the death of her father and bore all the expenses of the same but she is not residing in her matrimonial house but is residing at RZ-28-B/1, Block H, Dharampura, Najafgarh, Delhi. Dr. Chhotey Lal died intestate on 02.12.2010. Thereafter, defendants no.1 and 3 asked plaintiff no.1 to give them entire property papers, FDRs, passbooks of her deceased husband. They searched the house and removed the box containing property documents, FDRs., bank passbooks etc. and keys of the house and clinic and took them to their residence i.e. RZ-28-B/1, Block H, Dharampura, Najafgarh, Delhi. They also asked plaintiff to vacate House no.1667/11, Kamla Park, Main Dharampura Road, Najafgarh, Delhi. After the death of Dr. Chhotey Lal in December 2010, the defendants no.1 to 4 have not only restricted the entry of plaintiff no.1 and other legal heirs of late Dr. Chhotey Lal in RZ-28-B/1, Block H, Dharampura, Najafgarh, Delhi but also started residing at the ground floor of the said house. On Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 9 06.12.2010, the defendants came to the residence of plaintiff no.1 and started ransacking the house. They also threatened to kill plaintiff no.1. Thereafter, a police complaint was made and a warning to given to the defendants. They also pressurized plaintiff no.1 to vacate House no.1667/11, Kamla Park, Main Dharampura Road, Najafgarh, Delhi and shop no.723, Gaushala Road, Najafgarh on which plaintiff no.1 made a written complaint to local police. Thereafter on 07.12.2010, plaintiff no.1 was assaulted and threatened by the defendants to be thrown out if she did not vacate the premises. Plaintiff no.1 filed a suit bearing no.259/2010 before Ld. JSCC cum CCJ, Dwarka Courts, Delhi for permanent injunction. A Local Commissioner was appointed who recorded statement of a neighbour stating that the shop no.723, Gaushala Road, Najafgarh belonged to Late Dr. Chhotey Lal. Defendants no.2 and 3 also got encashed FDRs of Dr.Chhotey Lal from SBI Bank, Najafgarh Village branch and received a sum of Rs.4,25,233/-.
(ix) Thereafter, defendants no.1 to 4 also filed a suit bearing no.CS 1077/11 seeking partition of property no.1667/11, Kamla Park, Najafgarh, New Delhi which is also pending.
(x) The details of properties and other assets left behind by the husband of plaintiff no.1 are as follows :
Immovable Properties:
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 10
1. House no.1667/11, Kamla Park, Main Dharampura Road, Najafgarh, Delhi - 110043.
2. House no.RZ-28-B/1, Block H, Dharmapura, Najafgarh, Delhi - 43
3. Shop no.723, Gaushala Road, Najafgarh, Delhi - 110043
4. Flat no.357, Sector-14, Dwarka, Delhi.
Movable Properties :
1. Rs.2,75,701.24 - The last balance amount lying in Account no.411 of Late Dr. Chhotey Lal Abhaya in Punjab and Sind Bank, Najafgarh Branch.
2. Rs.75,236.14 - The last balance amount lying in SB A/c No.8437 of Dr. Chhotey Lal Abhaya in Punjab National Bank, Najafgarh Branch.
3. Rs.40,086.00 - FDR No.698036 A/c No.22349/S-7 in the Punjab & Sind Bank, Najafgarh Branch with Maturity date 31.05.2013
4. Rs.4,25,233.00 - FDR No.30175352449 in SBI in the name of Dr. Chhotey Lal Abhaya in which sum of Rs.3 lacs were invested in the said FD but against which the defendants no.2 and 3 have got a sum of Rs.4,25,233.00 on 16.07.2011.
5. Rs.2,00,000/- - Sr. Citizen Monthly Income Scheme Account No.21000244 and 2100216 of Rs.1 lakh each in Najafgarh post office in the name of Dr. Chhotey Lal Abhaya which has been encashed by defendants no.2 and 3.
6. Amount not known- SBN A/c No.7429 in the name of Dr. Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 11
Chhotey Lal Abhaya in Punjab & Sind Bank, Najafgarh.
7. Amount not known- SB A/c No.21924/30 in the name of Dr. Chhotey Lal Abhaya in State Bank of India, Najafgarh.
(xi) No formal partition of the above properties left behind by late Dr. Chhotey Lal Abhaya has taken place. The plaintiffs being the wife and sons have one fifth share in the estate left behind by late Sh. Chhotey Lal Abhaya. The plaintiffs are also entitled to recover a sum of Rs.2,03,251/- from the defendants being one fifth share in the total sum lying in the bank accounts as mentioned above. Hence, this suit. Proceedings of the Case
3. A perusal of the Court file reveals that the suit was initially instituted in Hon'ble High Court of Delhi on 07.01.2013 along with an application u/o XXXIX R 1 and 2 CPC. Summons along with notice of the application were issued to the defendants on 14.01.2013 which were received back duly served. Thereafter, the defendants entered appearance through their counsel and filed Written Statement.
4. In the Written Statement, it is averred by the defendants that the present suit is liable to be dismissed for misjoinder and non joinder of necessary parties. It is also averred that the present suit is not maintainable as the properties i.e. RZ-28-B/1, Dharampura, Najafgarh, New Delhi; Shop No.723, Gaushala Road and Flat no.357, Sector 14, Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 12 Dwarka, all were self acquired by late Sh. Jagdish Prasad, who was husband of defendant no.1, out of his own funds. It is also averred that the present suit is not maintainable in view of the fact that the plaintiff has no right, title or interest in the properties. It is further averred that Flat no.357, Sector-14, Dwarka, New Delhi was allotted to Late Sh. Jagdish Prasad in his name by DDA and was later on sold by Late Sh. Jagdish Prasad in 2006 during his lifetime and therefore, neither the said flat nor the sale proceeds thereof can be considered as a part of the estate of Late Dr. Chhotey Lal and hence, the said property can not be partitioned as being exclusive property of Late Sh. Jagdish Prasad. It is further averred that the plaintiff was earlier married to one Smt. Chameli and out of the said wedlock, his elder son namely Sh. Jagdish Abhaya was born. The defendants are the wife and children of Late Sh. Jagdish Abhaya. It is further averred that plaintiff no.1 is the second wife of late Dr. Chhotey Lal Abhaya and the children from the said wedlock namely Dr. Avinash Abhaya, Smt. Mithlesh and Smt. Vijay Laxmi were never having good relations with Dr. Chhotey Lal Abhaya and used to mistreat him and therefore, he has not made them a nominee in any of his FDs or savings. It is further averred that the present suit is not maintainable in view of the fact that the defendants had already filed one suit for partition with regards to the estate of Late Dr. Chhotey Lal which was registered as Suit no.1077/2011 which wa Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 13 later on transferred before Hon'ble High Court and is still pending and in that suit, the plaintiff has admitted that the defendants have 1/5th share in property bearing no.RZ-1667/11, Kamla Park, Main Dharampura Road, Najafgarh, Delhi - 110043 is the only immovable property left behind by late Dr. Chhotey Lal. It is also averred that as the present suit is also concerned with the same subject matter i.e. the estate of Late Sh. Chhotey Lal, therefore the present suit is liable to be stayed in view of Section 10 CPC. It is also averred that the relief claimed herein is also barred by Section 11 of CPC and the plaintiff had already filed one suit for permanent injunction which was between the same parties and has already been decided against the plaintiff and hence, can not be re-litigated by way of the present suit. It is also averred that the suit has not been properly evaluated by the plaintiff while instituting and the plaintiff has not paid appropriate court fees at the time of institution of the plaint.
5. On 04.07.2013, admission-denial of documents was conducted and the matter was fixed for framing of issues. On 12.07.2013, on the basis of pleadings, the following issues were framed :
(I) Whether the plaintiff is entitled to relief of partition of the properties and declaring her 1/5th share therein? OPP. (II) Is the suit barred by the principles of res judicata? OPD. (III) Is the suit liable to be dismissed for not disclosing any cause of Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 14
action? OPD.
(IV) Is the suit not maintainable due to non-joinder of parties? OPD. (V) Is the suit property no.357, Sector-14, Dwarka, Delhi owned by late husband of defendant no.1 and therefore, not amenable to partition? OPD.
(VI) Is the suit property no.RZ-B-B/1, Block-H, Najafgarh, New Delhi a self-acquired property of late husband of defendant no.1 and, therefore, no amenable to partition? OPD.
(VII) Is the suit property no.723, Gaushala Road, Najafgarh, New Delhi a self-acquired property of late husband of defendant no.1 and, therefore, not amenable to partition? OPD (VIII) Relief.
6. Thereafter, the matter was fixed for PE. On 04.03.2014, an application for consolidation of evidence in this suit as well as another suit vide CS(OS) No.2701/2012 filed by defendant no.1 which was allowed. On 10.03.2014, an application for consolidation of suit i.e. the present suit as well as CS(OS) No.2701/2012. Another application for amendment of issue, filed by defendants. Ld. Counsel for plaintiff submitted that he did not want to file any reply to the said application and intends to argument the same directly. Vide order dated 20.01.2015, the application for amendment of issues was allowed and issue no.1 was reframed as under :
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 15
"(i) Whether the plaintiff is entitled to relief of partition of the properties and declaring her 1/5th share therein? (OPP)"
Thereafter, the matter was again adjourned for PE. Evidence of the Parties
7. On 18.03.2015, PW Smt. Dropti Devi was examined as PW-1. She tendered her affidavit of evidence Ex.PW-1/A. She was partly cross examined on 17.08.2015 before the Hon'ble High Court of Delhi and thereafter, the matter was transferred to the Court of Ld. District Judge, South-West, Dwarka, New Delhi vide order dated 10.02.2016. Thereafter, an application under Order I R 10 of CPC was filed on behalf of the Plaintiff to which reply was also filed and arguments were heard. The said application was thereafter, allowed subject to cost vide order dated 18.05.2017 and amended memo of parties was also filed.
8. Thereafter, another application under Order I R 10 of CPC was filed on behalf of the Plaintiff for impleading the daughters as the proposed Defendants which was also allowed subject to cost vide order dated 12.02.2018 and matter was adjourned for further cross- examination of PW-1.
9. No WS was filed on behalf of Defendants no. 5 and 6 and they were proceeded ex-parte vide order dated 02.07.2018. However, amended written statement was filed on 04.12.2018 on behalf of Defendants no. 1 to 4. Thereafter, separate statement of Plaintiff no. 2 Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 16 Dr. Avinash Abhaya was recorded wherein he was substituted as the authority in place of Smt. Dropti Devi and affidavit of Plaintiff no. 1 Smt. Dropti Devi was taken off record in the absence of her cross- examination vide order dated 26.09.2019.
10. Thereafter, on 22.02.2020, PW-1 Dr. Avinash Abhaya had tendered his evidence by way of affidavit exhibited as Ex. PW1/A and during cross-examination, he deposed that no document / title deed of four properties which are the subject-matter of the present suit was filed along with plaint. He denied the suggestion that no complaint was ever lodged with the police and that is why, the same was not placed on judicial record. He deposed that the property bearing flat no. 357, Sector 14, Dwarka, New Delhi is in the name of late Sh. Jagdish Prasad, husband of Defendant no. 1. He further deposed that the allotment of the aforesaid flat was part of Ambedkar Awas Yojna, 1997 and the allotment letter was given as per the priority list declared. Further cross- examination of PW-1 was deferred.
11. Thereafter, on 17.12.2021, PW-1 Dr. Avinash Abhaya was further cross examined and during further cross-examination, he denied the suggestion that late Sh. Jagdish Prasad had knowledge of Ayurveda / Homeopathy and father of late Sh. Jagdish Prasad was a government doctor and hence could not practice in private clinic. His further cross- examination was again deferred.
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 17
12. On 28.04.2022, PW-1 Dr. Avinash Abhaya was further cross examined and during his further cross-examination, he admitted that he had not filed any papers for the immovable properties mentioned on page 15 of his affidavit in para 36 at serial nos. 1 to 4 and voluntarily stated that these papers are not in his possession. Relevant extract of the cross-examination of PW-1 is reproduced herein as under:
".........It is correct that it is in my knowledge now that D-2 and D-3 were the nominees in the FDR/senior citizen account mentioned at serial no. 4 and 5 at page 16 of my affidavit. However, I did not know about this fact at the time of filing of this suit........... " He further denied the suggestion that the property at serial no. 2 on page 16 of his affidavit is a self acquired property of Defendant no. 1's husband purchased from her own funds from one Asha Rani. He further denied the suggestion that the shop no. 723, Gaushala Road, Najafgarh had been purchased from Om Prakash by Defendant no. 1's husband out of his own funds. He also denied the suggestion that flat no. 357, Sector 14, Dwarka is a self acquired property which was already sold by Defendant no. 1's husband at the time of his daughter's marriage. He admitted that the LRs of Jagdish Prasad have 1/5th share in house no. 16671/11, Kamla Park, Main Dharampura Road, Najafgarh, Delhi. He was discharged on the even date.
13. Thereafter, arguments were heard on the application under Order Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 18 XVI R 1(3) of CPC and the same was allowed subject to cost vide order dated 08.06.2022. On 24.08.2022, PW-2 Sh. Mahender Singh, Assistant Manager, Punjab and Sind Bank, Roshanpura, Najafgarh, New Delhi was examined as a summoned witness and the record brought by him was exhibited as Ex. PW2/1 which was the certified copy of FDR no. 698036; Ex. PW2/2 which is the certified copy of the application submitted by Saurabh Singh for getting the payment of FDR; Ex. PW2/3 i.e. statement of account of Saurabh Singh and Ex. PW2/4 which is also the statement of account. The witness was cross examined by Ld. Counsel for Defendants no. 1 to 4 and discharged.
14. On 24.09.2022, PW-3 Sh. Roop Ram Meena and PW-4 Sh. Mehtab Ali were examined-in-chief and their cross examination was deferred. Thereafter, on 07.11.2022, both the witnesses were discharged. On 17.12.2022, PW-5 Sh. Ashok Yadav had tendered his evidence by way of affidavit exhibited as Ex. PW5/A and during cross- examination by Ld. Counsel for Defendants no. 1 to 4, he deposed that Dr. Chotey Lal Abhaya had only one wife and her name was Gayatri Devi and that he had also another wife who had expired but he had not seen her. He was discharged on the even date. On the same date, PW-6 Sh. Prem Raj had also tendered his evidence by way of affidavit exhibited as Ex. PW6/A and he was also cross examined and discharged. Thereafter, on 01.03.2023, PW-7 and PW-8 were also Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 19 examined, cross examined and discharged and thereafter, no other witness was examined on behalf of the Plaintiff and PE was closed vide separate statement of the Ld. Counsel for Plaintiff dated 01.03.2023 and matter was proceeded for DE.
15. Thereafter, applications under Order VIII R 1A(3) of CPC and under Order XI R 14 of CPC were moved on behalf of the Plaintiffs which were dismissed and disposed off vide order dated 16.10.2023. On 04.01.2024, DW-1 Smt. Krishna Abhaya had tendered her evidence by way of affidavit exhibited as Ex. DW1/X and relied upon the following documents:
(a) Aadhar card as Ex. DW1/1 (OSR); (b) Certified copy of report of Ld. LC dated 04.01.2011 filed in civil suit no. 259/10 as Ex. DW1/2; (c) Certified copy of the judgment and decree sheet dated 19.10.2012 in suit no. 2596/10 as Ex. DW1/3; (d) Copy of registered GPA dated 18.06.1997, Will dated 18.06.1997
and affidavit dated 18.06.1997 as Ex. DW1/4 (colly);
(e) Original water bill of the property no. RZ-28B/1, Dharampura as Ex. DW1/5;
(f) Original electricity bill of the property no. RZ-28B/1, Dharampura as Ex. DW1/6;
(g) Copy of registered GPA dated 09.06.1994, Agreement to Sell Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 20 dated 06.09.1994, registered Will dated 09.06.1994 and Affidavit along with receipt as Ex. DW1/7 (colly);
(h) Original water connection bill of the shop no. 723, Gaushala Road in the name of Sh. Jagdish Prasad Abhaya as Ex. DW1/8;
(i) Original electricity bill of shop no. 723, Gaushala Road in the name of Sh. Jagdish Prasad Abhaya as Ex. DW1/9;
(j) Copy of DDA acknowledgment letter for flat no. 357, Sector 14, Dwarka as Ex. DW1/10;
(k) Certified copy of order dated 24.08.2022 as Ex. DW1/11;
(l) Copy of pages from personal diary of late Dr. Chhotey Lal Abhaya as Ex. DW1/12;
(m) Copy of certificate of registration dated 30.04.1984 issued to Dr. Jagdish Prasad Abhaya by registered Medical Practitioners Council as Ex. DW1/13;
(n) Copy of MLC in Safdarjung Hospital of Sh. Jagdish Prasad Abhaya and her wife Smt. Krishna Devi dated 20.04.1997 as Ex. DW1/14 and
(o) Two original letter from Sub Post Master HSG II, Najafgarh, New Delhi dated 16.11.2011 as Ex. DW1/15 (colly).
16. During cross-examination, DW-1 deposed that she did not know as to whether her deceased husband received all the original previous title chain of the shop no. 723, Gaushala Road, Najafgarh, New Delhi in Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 21 the year 1994. She further deposed that she did not know as to whether his deceased husband used to file ITRs or not. Relevant portion of the cross-examination of DW-1 is extracted herein:
".........It is wrong to suggest that the documents placed on record by me regarding property no. RZ-28B/1, Dharampura, Najafgarh, Delhi do not pertain to this property but some other property. I do not know whether my sons have encashed / received any payment from the bank / post office against the FDs or other deposits of my deceased father in law. It is wrong to suggest that the suit properties belonged to my deceased father in law as his self-acquired properties. It is also wrong to suggest that my husband never had any independent income and was not capable to purchase such big properties........... " She further deposed that her father-in-law had never executed any Will or other testamentary disposition wherein he had excluded the Plaintiffs or the Defendants no. 5 and 6. Thereafter, she was discharged on the even date.
17. On the even date, DW-2 Sh. Chaman Lal who was a summoned witness was also examined, cross-examined and discharged. The record brought by him was summoned as Ex. DW2/1 (OSR) to Ex. DW2/4 (OSR). Thereafter, on 30.03.2024, DW-3 and DW-4 were also examined, cross examined and discharged. DW-3 was a summoned witness and DW-4 Sh. Gaurav Singh had tendered his evidence by way of affidavit exhibited as Ex. DW4/X and during cross-examination, he Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 22 deposed that his father had purchased all the suit properties from his own funds, out of his own income as he was a doctor and was a registered medical practitioner. He further deposed that he has not placed on record any document to show the medical qualification of his father. He further deposed that he did not know as to whether his father had ever filed ITR. He denied the suggestion that all the suit properties were purchased by his grandfather Dr. Chhotey Lal Abhaya and that his father had no financial capacity to meet out the medical expenses, etc. Thereafter, the witness was confronted with an affidavit dated 16.02.2012 filed in suit no. 259/2010 which was exhibited as Ex. DW4/X1. He deposed that he had never seen any document by which his father had made any payment to DDA regarding the sale of the flat bearing no. 357, Sector 14, Dwarka, New Delhi. He denied the suggestion that his grandfather never had any reason to sell the said shop and he was never in any financial difficulty to sell the said shop. He deposed that the title documents pertaining to property bearing no. RZ-28B/1, Block H, Dharampura, Najafgarh, New Delhi are in their possession and power. He admitted that whatever amount was received towards encashment of the FDRs and bank accounts of their grandfather was received by him and his father as his nominees. He deposed that he had never paid any single penny out of the amount so received to the Plaintiffs or other LRs of late Dr. Chhotey Lal Abhaya. Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 23 He was further cross examined at length and discharged on the even date.
18. Thereafter, on 13.05.2024, DW-5 Sh. Saurabh Abhaya had tendered his evidence by way of affidavit exhibited as Ex. DW5/A and during cross-examination, he admitted that he had received the amounts from the bank account, FDR, post office saving schemes of his grandfather, being his nominee. He deposed that he never had any joint account with his grandfather. Thereafter, the said witness was cross examined at length and discharged on the even date.
No other witness was examined on behalf of the Defendants and therefore, DE was closed vide separate statement of Defendant no. 1 Smt. Krishna Abhaya and matter was fixed for final arguments.
19. Thereafter, it was submitted that the Plaintiff Dropti Devi had expired and an application under Order XXII R 1 and 2 of CPC was filed for impleading the LRs of the deceased Plaintiff which was subsequently, allowed and disposed off vide order dated 08.07.2024 and final arguments were heard.
Contentions of the Parties
20. Final arguments were heard on behalf of the parties. Rebuttal arguments were also heard. Written submissions were filed by the parties. Ld. Counsel for the plaintiff has submitted that the plaintiff and defendants No.5 & 6 are the widow, son and daughter respectively of Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 24 late Dr. Chhote Lal Abhaya whereas defendant Nos. 1 to 4 are the widow, sons and daughter of late Jagdish Prasad Abhaya who was the pre deceased son of late Dr. Chhote Lal Abhaya.
21. The case put forward by the plaintiff is that the suit properties mentioned in para No.34 of the plaint are the self acquired properties of Dr. Chhote Lal Abhaya who was employed as Pharmasist. He also was practising medicine and used to earn a handsome income. Dr. Chhote Lal Abhaya made huge investments in the form of FDs, Post Office Saving Schemes, Bank deposits and also purchased immovable properties such as RZ-28-B1, Block H, Dharampura, Najafgarh and flat No.357, Sec.14 Dwarka in the name of his elder son i.e. Jagdish Prasad Abhaya and a shop at 723, Goshala Road, Najafgarh in his name from where he was running his clinic. Dr. Chhote Lal Abhaya died intestate on 02.12.2010 while Jagdish Prasad Abhaya had pre-deceased him on 08.11.2006 and had remained totally dependent on his father throughout his life. On the death of Dr. Chhote Lal Abhaya, the defendant Nos. 1 to 4 took away all the title documents, bank pass books and the same remained in their possession.
22. It is submitted by ld. Counsel for plaintiff that the plaintiff has been able to prove the case. In respect of the property at 723, Goshala Road, Najafgarh, Dr. Chhote Lal Abhaya had purchased the same in 1979 and the defendants NO. 1 to 4 have deliberately not placed on Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 25 record the previous chain of title documents pertaining to 723, Goshala Road. The documents Ex. DW1/7, DW2/3 and DW2/4 dated 09.06.1994 are sham documents which have been prepared by defendant Nos. 1 to 4 to lay a false claim on the aforesaid property.
23. It is further submitted that the defendants have deliberately not placed on record the actual title documents of the property RZ28 B1, Block H, Dharampura, Najafgarh and the documents Ex. DW1/4 (colly), DW2/1 and DW2/2 pertains to some other property. The defendants No. 1 to 4 have also not shown any record of the payments made by late Jagdish Prasad Abhaya towards the flat No.357, Sec. 14, Dwarka. They have dishonestly sold out the flat after demise of Jagdish Prasad Abhaya and not disclosed the amount of sale proceed received by them. The only document placed on record by defendant Nos. 1 to 4 to show that late Jagdish Prasad Abhaya was a Doctor is Ex. DW1/13 which is a forged and bogus documents. PW5 and PW6 who were neighbours of late Jagdish Prasad Abhaya have categorically stated that he was not a doctor and that they never saw him working as one. The defendants have not placed any income tax returns or bank pass book to show the financial situation of late Jagdish Prasad Abhaya and adverse inferance must be drawn against them. Therefore, it is established that the suit properties were purchased by late Dr. Chhote Lal Abhaya in the name of his elder son Jagdish Prasad Abhaya. Dr. Chhote Lal Abhaya Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 26 never executed any Will or Gift Deed in favour of any party to the suit. Ld. Counsel for plaintiff has submitted that the property purchased by the father in the name of the son is not hit by provisions of the Benami Transactions Act and had placed reliance upon the judgment of the Hon'ble Supreme Court in Marcel Martins Vs. M. Printer & Ors.
24. Qua the movable property, it has been submitted by ld. Counsel for plaintiff that the defendants have given false statements on oath and concealed the amount received by them as nominees of late Dr. Chhote Lal Abhaya. It has been submitted that it is the settled law that the nominee is not entitled to retain the amount received by them by virtue of the nomination. Reliance has been placed upon the judgment of the Hon'ble Supreme Court in Sharbati Devi vs. Usha Devi, 1984, 1 SCC
424.
25. Per contra, it has been submitted on behalf of defendant Nos. 1 to 4 that the plaintiff had filed the suit for partition which is not maintainable as the properties in question were the self acquired properties of late Jagdish Prasad Abhaya and purchased from its own funds. It has been submitted that DW2 has produced the documents relating to house No.RZ-28 B1, Block H, Dharampura, Najafgarh showing that the property is registered in the name of Jagdish Prasad Abhaya and similar is the situation qua shop No.723, Gaushala Road, Najafgarh. PW3 has proved that the flat No.357, Sec.14, Dwarka was Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 27 allotted to Jagdish Prasad Abhaya and the payment was also made by him on 07.06.2000. It is further submitted that Jagdish Prasad Abhaya had his own medical practice and a shop in the name of Jagdish Health Clinic and the electricity and water bills of the shop at 723, Gaushala Road, Najafgarh is also in the name of late Jagdish Prasad Abhaya. Therefore, it has been submitted that no case is made out and same is liable to be dismissed.
Issue Wise Findings Issue no. (II): Is the suit barred by the principles of res judicata? OPD.
26. This issue was never pressed and moreover, it has not been shown that a similar suit was filed in regard to the suit properties in question before the present suit or that the same matter in issue had already been decided between the parties qua the suit properties of the present suit. Therefore, this issue is decided in favour of the Plaintiffs and against the Defendants.
Issue no. (III) : Is the suit liable to be dismissed for not disclosing any cause of action? OPD.
27. The present suit has been filed for partition of the alleged immovable and movable assets of the deceased intestate Dr. Chhotey Lal Abhaya. There is no reason to find that the suit does not have a cause of action. Therefore, this issue is decided in favour of the Plaintiffs and against the Defendants.
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 28 Issue no. (IV): Is the suit not maintainable due to non-joinder of parties? OPD.
28. It has not been shown by the Defendants that any of the necessary parties have not been joined to the suit. It is not claimed that there is any other LR of Dr. Chhotey Lal Abhaya who is not party to the suit. In a partition suit, only the LRs of the deceased intestate as per the Hindu Succession Act, 1956 are the necessary parties. Therefore, this issue is decided in favour of the Plaintiffs and against the Defendants. Issue no. (V): Is the suit property no.357, Sector-14, Dwarka, Delhi owned by late husband of defendant no.1 and therefore, not amenable to partition? OPD.
29. I find that the Defendants have been able to prove that the said suit property being no. 357, Sector-14, Dwarka, Delhi was the self acquired property of late Jagdish Lal Abhaya. The witness DW-1 has placed on record the documents showing the allotment by DDA of the flat as Ex. DW1/10. A perusal of the same would show that the DDA has allotted the plot vide the acknowledgment letter dated 08.03.2006. No suggestion has been given to the witness DW-1 that the said document was a forged and fabricated document or that the suit property was not allotted to late Jagdish Lal Abhaya by the DDA. In fact, the same has been admitted by PW-1 during cross-examination wherein he himself states that the allotment was part of Ambedkar Awas Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 29 Yojna, 1997 and that the same was given as per the priority list. It has also been admitted that the property is in the name of late Sh. Jagdish Prasad Abhaya. In fact, the Plaintiff examined PW-3 who produced the record from the DDA and who testified that the said plot was allotted to Jagdish Prasad Abhaya. He deposed that "As per records, the said flat was allotted to one Sh. Jagdish Prasad Abhaya R/o 1667/11, Kamla Park, Najafgarh and for the allotment of this flat, a payment of Rs. 3,35,934/- by way of pay order drawn on Syndicate Bank, Shadipur, Delhi, vide challan No. 215550 dated 07.06.2000. As per record, vide letter dated 28.05.2001, the physical possession of the said flat was given to allottee Jagdish Prasad Abhaya. Further, as per record, the conveyance deed for this flat was executed on 22.03.2006 in the name of Jagdish Prasad Abhaya S/o Sh. Chhotey Lal Abhaya. Original records seen and returned.
As per procedure, if the said flat is resold by the allottee to any third person, DDA has no role to play."
30. However, the main thrust of the Plaintiff is that the sale consideration was given by late Chhotey Lal Abhaya and therefore, the property would form part of the estate of Chhotey Lal Abhaya and not Jagdish Prasad Abhaya. Firstly, there is no evidence to show that Chhotey Lal Abhaya had paid the sale consideration. Moreover, even if that is the case, it would not mean that the property would belong to Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 30 Chhotey Lal Abhaya. It was the specific contention of the Counsel for Plaintiff that the prohibition under the Benami Transactions (Prohibition) Act, 1988 would not apply.
31. Section 4 of the Benami Act reads as under:
"4. Prohibition of the right to recover property held benami (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 31
whom he is a trustee or towards whom he stands in such capacity."
32. At this stage, I would like to place reliance on the judgment of the Hon'ble High Court of Delhi in Amar N Gugnani v. Naresh Kumar Gugnani 2015 SCC Online Del 11248, where the Hon'ble Court explained the law extensively in context of a similar claim. The following is the relevant portion of the judgment:-
"I would at this stage refer to a judgment delivered by this Court in the case of J M Kohli v. Madan Mohan Sahni in RFA No. 207/2012 decided on 07.05.2012. In this judgment this Court has had an occasion to consider the intendment of the passing of the Benami Act as reflected from Section 7 of the Benami Act. Section 7 of the Benami Act repealed the provisions of Sections 81, 82 and 94 of the Indian Trusts Act, 1882 (in short 'the Trusts Act') and which provisions of the Trusts Act gave statutory recognition and protection to the benami transactions by calling such transactions protected by a relationship of a trust. It bears note that benami transactions were very much legal within this country before the passing of the Benami Act and the relationship of a benamidar to the owner was in the nature of a trust/fiduciary relationship Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 32
because it was the Trusts Act which contained the provisions of Sections 81, 82 and 94 giving statutory recognition to the benami ownership of the properties being in the nature of trust. In J M Kohli's case (supra), this Court has held that the expression "fiduciary relationship"
and a relationship of a trustee cannot be so interpreted so as to in fact negate the Benami Act itself because all benami transactions actually are in the nature of trust and create a fiduciary relationship and if the expression "trustee" or "fiduciary relationship" is interpreted liberally to even include within its fold a typical benami transaction, then it would amount to holding that there is no Benami Act at all. Putting in other words, since Section 7 of the Benami Act repealed certain provisions, hence, the relationship of trust comprised in such provisions necessarily would be excluded from the sweep of the expression trust/fiduciary relationship found in Section 4(3)(b) of the Benami Act because what is excluded by Section 7 of the Benami Act cannot be got included in Section 4(3)(b) of the Benami Act. Let me at this stage refer to the relevant paras in the judgment in the case of J M Kohli (supra) and these paras read as under:
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 33
"6. The consequences of the Benami Transactions (Prohibition) Act, 1988 were harsh as they brought to an end the ownership rights of an actual owner against the benami owner. Before passing of the Benami Act, a de jure owner could also file a suit against de facto owner and thereby claim ownership of the property on the ground that ostensible owner was only a benamidar. The legal provisions which helped the plaintiff in such a suit prior to passing of the Benami Act were inter-alia the provisions of Sections 81, 82 and 94 of the Indian Trusts Act, 1882 and as per which provisions a benami owner was actually a trustee for the real owner. Section 7 of the Benami Act specifically repeals the aforesaid sections of the Indian Trusts Act, 1882 and also Section 66 of the CPC which had similar substance.
7. Section 4(3)(b) of the Benami Act, however, protected rights of a real owner where the person in whose name the property is held is a trustee or other person standing in the fiduciary capacity and the property is held for the benefit of other person, for whom the person in whose name the property is held is a trustee. Section 4(3)(b) of the Benami Act reads as under:- "4. Prohibition of the right to recover Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 34
property held benami.-
(3) Nothing in this section shall apply -
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
8. In a way, therefore, there may be some ostensible conflict between the provision of Section 4(3)(b) of the Benami Act and Section 7 of the same Act which repeals the provisions of the Indian Trusts Act, 1882, however, one has to read and interpret Section 4(3)(b) in a manner which is in accord with the legislative intention to bar claims against properties held as benami. The concept of trust was always inbuilt once a transaction was a benami transaction as the benamidar was the trustee for the real owner. But in spite of the concept of trust being inbuilt in benami transactions, the Benami Act provided that no rights could be asserted in a benami property by the actual/de jure owner. Putting it differently, once Sections 81, 82 and 94 of the India Trusts Act, 1882 have been repealed, they cannot be brought in from the back door, so to say, by Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 35
giving the same content contained in the repealed provisions of Sections 81, 82 and 94 of the Indian Trusts Act, 1882 to Section 4(3)(b) of the Benami Act. If we give such an interpretation, the entire Benami Act will fall and it will be as if the same has not been enacted. Therefore, Section 4(3)(b) which provides that the property which is held as a trustee or in a fiduciary capacity must be interpreted in the sense that the trustee or a person who is holding the property in a fiduciary capacity has either committed a fraud and got the property title in his name or is in furtherance of law holding property in his name however in the capacity of a trustee or in fiduciary capacity, although the real owner is somebody else. Repealed Sections 81, 82 and 94 of the Indian Trusts Act, 1882 read as under:-
"81. Where the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances that the intend to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal representative.
82. Where property is transferred to one person for a Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 36
consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. Nothing in this session shall be deemed to affect the Code of Civil Procedure, section 317, or Act No. XI of 1859 (to improve the law relating to sales of land for arrears of revenue in the Lower Provinces under the Bengal Presidency)
94. In any case not coming within the scope of any of the proceeding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands."
9. Two of the examples where the Supreme Court has held the property to be held as a trustee in terms of Section 4(3)
(b) of the Benami Act are the judgments in the cases of C. Gangacharan v. C. Narayanan, (2000) 1 SCC 459 and P.V. Sankara Kurup v. Leelavathy Nambiar, (1994) 6 SCC 68. In the case of C. Gangacharan (supra), the Supreme Court Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 37
has held that the property was held as a trustee as per Section 4(3)(b) of the Benami Act, and the person in whose name the property stood cannot take up a plea of the bar of Benami Act, inasmuch as, actually the owner had given moneys for the property to be purchased under his name, however, the moneys were in fraud utilized to get the property purchased in the name of defendants in that suit. In the case of P.V. Sankara Kurup (supra) also the obvious fraud which was perpetrated was that the property was to be purchased in the name of the plaintiff by his attorney holder and which the defendants did not do and instead got the property purchased directly in their name. In the case of P.V. Sankara Kurup (supra), the Supreme Court was dealing with Section 66 of CPC as it existed before its repeal by Section 7 of the Benami Act and in the facts of the case as stated above it was held that the purchaser had acted in fiduciary capacity as an agent and consequently the bar of the Benami Act would not apply. In the said judgment, the Supreme Court held that when the agent was employed to purchase the property on behalf of his principal, however does so in his own name, i.e. the agent's name then upon conveyance or transfer of the Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 38
property to the agent, he stands as a trustee for the principal.
10. Therefore, in certain cases where there is obvious breach of trust in purchasing the property in the name of a person, whereas it ought to have been purchased in the name of the principal or the real owner, Supreme Court has, to that limited extent, held that such actions are covered under Section 4(3)(b) of the Benami Act and such transactions are not hit by the Benami Act."
12. It need not be again said, but at the cost of repetition it bears note that the expression "trustee" or "fiduciary relationship" cannot be interpreted in such a manner that the definition of "benami transaction" provided under Section 2(a) of the Benami Act and prohibited by Sections 4(1) & 4(2) of the Benami Act is totally washed away, inasmuch as, it is the benami transactions which are sought to be completely barred by the provisions of the Benami Act.
13. In the judgment in J M Kohli's case (supra) certain cases where there is a relationship of trust and fiduciary relationship, and which cases are exempted from operation of the Benami Act and they fall under the exception of Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 39
Section 4(3)(b) of the Benami Act are given in para 9 by reference to the judgments of the Supreme Court in the cases of C. Gangacharan v. C. Narayanan (2000) 1 SCC 459 and P.V. Sankara Kurup v. Leelavathy Nambiar (1994) 6 SCC 68. These Supreme Court judgments held as to when a relationship of trustee would be covered under Section 4(3)(b) of the Benami Act for the same not to be a benami transaction which is barred as per Section 2(a) read with Sections 4(1) and 4(2) of the Benami Act. Para 9 of the judgment in JM Kohli's case (supra) gives the facts of these two Supreme Court judgments and hence the factual reasons why those cases fell in the exception of Section 4(3)(b) of the Benami Act.
....... A reading of the judgment in the case of Marcel Martins (supra) shows that on the facts of the said case it was held that there was a fiduciary relationship and a relationship in the nature of trust, inasmuch as, actually all the parties were to be the owners but for the fact that the Corporation had desired, and which is in fact in the nature of compulsion by the Corporation and as per its policy, the property by the Corporation was not transferred in the name of all the legal heirs of Smt. Stella Martins but only Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 40
in the name of one legal heir. Such transactions compassed in the case of Marcel Martins (supra), and which were brought about on the direction of a third party, is different from a voluntary transaction where a person voluntarily gives money for property to be purchased in the name of another person and in which case such a transaction where A pays money for the property to be purchased in the name of B, this by itself will necessarily be a benami transaction under Section 2(a) of the Benami Act which states that any transaction in which property is transferred to one person for a consideration paid or provided by another person, such a transaction is a benami transaction, and such benami transactions are subject matter of prohibition of Sections 4(1) and 4(2) of the Benami Act." (emphasis supplied)
33. The above is a complete answer to the points of fact and law raised by the Plaintiff to buttress their claim that the property in question belonged to Chhotey Lal Abhaya and not Jagdish Prasad Abhaya. Much stress has been laid upon the fact that Jagdish Prasad Abhaya was not having a source of income and that the medical practice certificate produced by the Defendants is forged and fabricated. The Plaintiff cannot seek to prove their case by proving the negative i.e. Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 41 that Jagdish Prasad Abhaya did not have a source of income to purchase the property. They had to prove that the document was either in the name of Chhotey Lal Abhaya which they could not do so. As far as the contention of the Benami Transaction i.e. that the sale consideration was paid by Chhotey Lal Abhaya but property was in the name of his son Jagdish Prasad Abhaya is concerned, the judgment of Amar N. Gugnani (supra) is a complete answer to the same and such claim is barred by Section 4 of the Benami Transaction (Prohibition) Act, 1988.
Therefore, the present issue is decided against the Plaintiff and in favour of the Defendants.
Issue no. (VI): Is the suit property no.RZ-B-B/1, Block-H, Najafgarh, New Delhi a self-acquired property of late husband of defendant no.1 and, therefore, no amenable to partition? OPD.
34. The observations qua issue no. (V) above will apply mutatis mutandis to the present issue as well. The Plaintiffs have failed to produce a single document showing that the said property has been purchased and was owned by Chhotey Lal Abhaya. Merely trying to prove the negative i.e. that the said property could not be purchased by Jagdish Prasad Abhaya because he was not having a source of income or that the said property is not in the name of Jagdish Prasad Abhaya is not sufficient for the Plaintiffs to succeed. The Plaintiff's case has to stand on its own legs and it is for the Plaintiff to prove with positive Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 42 evidence that the said property was in fact, owned by Chhotey Lal Abhaya. In absence of such evidence, it is difficult to find in favour of the Plaintiffs and rather, more weightage will have to be given to the documents produced by the Defendants which is the registered GPA, Will Ex. DW2/1 and Ex. DW2/2 respectively. In so far as the contention that the sale consideration was paid by Chhotey Lal Abhaya is concerned, the judgment of Amar N. Gugnani (supra) as discussed above, will apply.
Therefore, this issue is decided against the Plaintiffs and in favour of the Defendants.
Issue no. (VII): Is the suit property no.723, Gaushala Road, Najafgarh, New Delhi a self-acquired property of late husband of defendant no.1 and, therefore, not amenable to partition? OPD
35. The observations qua issue no. (V) and (VI) above will apply mutatis mutandis to the present issue as well. The Plaintiffs have failed to produce a single document showing that the said property has been purchased and was owned by Chhotey Lal Abhaya. Merely trying to prove the negative i.e. that the said property could not be purchased by Jagdish Prasad Abhaya because he was not having a source of income or that the said property is not in the name of Jagdish Prasad Abhaya is not sufficient for the Plaintiffs to succeed. The Plaintiff's case has to stand on its own legs and it is for the Plaintiff to prove with positive Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 43 evidence that the said property was in fact, owned by Chhotey Lal Abhaya. The Plaintiffs have not proved any such documents. Certain documents have been placed on record showing that the suit property was earlier sold to Chhotey Lal Abhaya. However, no such documents have been proved by the Plaintiffs. On the other hand, apart from the Will and GPA which are registered in favour of Jagdish Prasad Abhaya, the Plaintiff has also produced the original water bill dated 23.03.2005 Ex. DW1/8 in the name of Jagdish Prasad Abhaya and original electricity bill Ex. DW1/9 dated 11.12.1999. In absence of such evidence, it is difficult to find in favour of the Plaintiffs and rather, more weightage will have to be given to the documents produced by the Defendants which is the registered GPA, Will Ex. DW2/3 and Ex. DW2/4 respectively. In so far as the contention that the sale consideration was paid by Chhotey Lal Abhaya is concerned, the judgment of Amar N. Gugnani (supra) as discussed above, will apply.
Therefore, this issue is decided against the Plaintiffs and in favour of the Defendants.
Issue no. (I): Whether the plaintiff is entitled to relief of partition of the properties and declaring her 1/5th share therein? OPP.
36. The Plaintiffs have also claimed partition of the movable properties i.e. the monies in FD / Post office savings / savings accounts etc left by the deceased intestate Dr. Chhotey Lal Abhaya. A perusal of Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 44 the evidence would show that the following accounts have been proved:-
(a) FDR account no. 698036 in Punjab and Sind Bank, Najafgarh Branch, New Delhi which was being jointly operated by Chhotey Lal Abhaya and Saurabh Singh (Ex. PW2/1, Ex. PW2/2 and Ex. PW2/3). It has been proved that the amount has been withdrawn and credited to the survivor i.e. Saurabh Singh Abhaya.
(b) Account no. 02911000000411 in Punjab and Sind Bank, Najafgarh Branch, New Delhi in the name of Dr. Chhotey Lal Abhaya (copy of statement Ex. PW2/4). The said account is still lying with the bank and the sum therein has not been withdrawn by any of the parties.
(c) Post office senior citizen savings accounts no. 21000244 and 21000216 in the name of Dr. Chhotey Lal Abhaya in Najafgarh post office, New Delhi (Ex. PW4/X and Ex. PW4/Y and the amounts therein have been paid to Gaurav Singh Abhaya and Saurabh Singh Abhaya).
(d) Savings account no. 10492999538 in State Bank of India, Najafgarh main branch, New Delhi in the name of Dr. Chhotey Lal Abhaya. As deposed by PW-7, the amount in this savings account was paid out to Chhotey Lal Abhaya on 22.01.2010 (Ex. PW7/2).
(e) FDR bearing no. 30175352449 in State Bank of India, Najafgarh main branch, New Delhi in the name of Dr. Chhotey Lal Abhaya and the said FDR was closed and maturity amount of Rs. 4,25,233/- was Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 45
paid to Gaurav Singh Abhaya and Saurabh Singh Abhaya as they were the nominees (Ex. PW7/3 and Ex. PW7/4).
(f) Saving account no. 1519000100084375 in the name of Dr. Chhotey Lal Abhaya with Punjab National Bank, Najafgarh branch (Ex. PW8/1).
No evidence has been provided by the Defendants as to why the aforesaid property should not be partitioned being the movable property owned by deceased intestate Chhotey Lal Abhaya. Merely being the nominee does not override the scheme of succession under the Hindu Succession Act, 1956. It is a settled law that nominees are merely entitled to receive the amount but not entitled to enjoy the exclusive possession thereof as against the co-sharers.
37. I find that the maturity amount or the amount lying in the aforesaid accounts apart from the account as mentioned in para (d) above, forms the estate of the deceased intestate Dr. Chhotey Lal Abhaya and has to be partitioned as per Section 8 of the Hindu Succession Act, 1956 among his LRs. Plaintiff no. 1 and 2 and Defendants no. 5 and 6 are the widow, son and daughters of Chhotey Lal Abhaya and therefore, they will take an independent equal share, whereas, Defendants no. 1 to 4 being the widow, sons and daughter of the predeceased son i.e. Jagdish Prasad Abhaya of the deceased intestate will take one share as a whole collectively. Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 46
38. Therefore, the Plaintiff is entitled to a decree of partition of the movables as mentioned in paras (a), (b), (c), (e) and (f) above. Defendants no. 2 and 3 having received the sums as nominees in accounts mentioned in paras (a), (c) and (e) are liable to deliver up the shares of the other co-sharers to them.
Therefore, this issue is decided accordingly in favour of the Plaintiffs.
Relief
39. Therefore, the suit of the plaintiff is partly decreed and a decree of partition is passed in the movable properties declaring that the Plaintiff no. 1, Plaintiff no. 2, Defendant no. 5, Defendant no. 6 have a share of 1/5th each and Defendants no. 1 to 4 have a collective share of 1/5th in the following movable properties i.e. money in the below mentioned accounts:-
(a) FDR account no. 698036 in Punjab and Sind Bank, Najafgarh Branch, New Delhi;
(b) Account no. 02911000000411 in Punjab and Sind Bank, Najafgarh Branch, New Delhi;
(c) Post office senior citizen savings accounts no. 21000244 and 21000216 in the name of Dr. Chhotey Lal Abhaya in Najafgarh post office, New Delhi;
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors. Suit No. 17251/16 47
(e) FDR bearing no. 30175352449 in State Bank of India, Najafgarh main branch, New Delhi;
(f) Saving account no. 1519000100084375 in the name of Dr. Chhotey Lal Abhaya with Punjab National Bank, Najafgarh branch.
40. Costs of the suit are also to be awarded to the Plaintiffs and to be paid by Defendants no. 1 to 4. Parties are entitled to realize the amounts by way of appropriate execution proceedings.
41. The relief not granted explicitly herein are deemed to have been refused to the Plaintiffs. The suit, in so far as the relief of partition of the immovable properties is concerned, stands dismissed.
42. Decree sheet be prepared accordingly.
43. File be consigned to Record Room after due compliance.
Digitally
signed by
DIVYANG
DIVYANG THAKUR
THAKUR Date:
2024.11.28
15:18:54
+0530
Announced in the open court (Sh. Divyang Thakur)
On 28.11.2024 DJ-03/South West
Dwarka / New Delhi
Smt. Dropti Devi & Anr. Vs Smt. Krishna Abhaya and Ors.