Delhi District Court
Sh. Sugan Das vs Late Smt. Kamlesh on 26 July, 2021
IN THE COURT OF ADJ07, SOUTHEAST DISTRICT, SAKET
COURTS, DELHI
Presided By : Sh. Jay Thareja, DHJS
Civil Suit No:8418/2016
1. Sh. Sugan Das
S/o. Late Sh. Gulab Singh
R/o. 13/42, Dakshinpuri, New Delhi
2. Sh. Lakhmi Chand
S/o. Late Sh. Gulab Singh
R/o. 13/42, Dakshinpuri, New Delhi
3. Smt. Maya Devi
W/o. Sh. Gopal Singh
D/o. Sh. Gulab Singh
R/o. H.No. 37, Subhash Park,
Kotla Mubarakpur, New Delhi
4. Smt. Dolly Bageria
W/o. Sh. Rajesh Kumar
D/o. Late Sh. Gulab Singh
R/o. 9/221, Dakshinpuri, New Delhi62
5. Smt. Lajo Bai
W/o. Sh. Radhey Shyam
D/o. Sh. Gulab Singh
R/o. Ghat no. 30, Lodhi Road
Lodhi Colony, Mehar Chand Market,
New Delhi. ... Plaintiffs
Versus
1. Late Smt. Kamlesh 1
W/o Late Sh. Pritam Singh
1 The suit stands abated qua the defendant no.1 because the record reflects that upon
the death of Late Smt. Kamlesh, no application was filed by any of the parties under
Order XXII of CPC, 1908, seeking impleadment of her legal representatives, in this suit.
Civil Suit No.8418/2016
Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.1 of 31
2. Sh. Nand Kishore
S/o. Late Sh. Pritam Singh
3. Smt. Rajni
D/o. Late Sh. Pritam Singh
All residents of J3/89, DDA Flats, Kalkaji, New Delhi
4. Sh. Praveen
W/o. Late Sh. Phool Chand
5. Sh. Komal
D/o. Late Sh. Phool Chand
6. Sh. Mohit
S/o. Late Sh. Phool Chand
7. Sh. Akash
S/o. Late Sh. Phool Chand
All residents of H. No. 13/49, Dakshinpuri Extn., New Delhi.
8. Sh. Arjun
S/o. Late Sh. Pritam Singh
R/o. Flat no. 14D, Pocket12,
Kalkaji Extn., New Delhi
9. Smt. Bhagwani
W/o. Late Sh. Moti Lal
R/o. 9/304, Dakshinpuri Extn., New Delhi.
10. Smt. Kamla
W/o. Sh. Madan Lal
R/o. 11/221, Dakshinpuri Extn., New Delhi
11. Sh. Pradeep Kumar
S/o. Sh. Ramji Lal
Civil Suit No.8418/2016
Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.2 of 31
R/o. L2172, H.No. 3358,
Bhagwati Township, Basant Nagar
Ahmedabad, Gujrat.
12. Sh. Krishan Lal
S/o. Late Sh. Goverdhan Das
R/o. 9/296, Dakshinpuri Extn., New Delhi
13. Smt. Kamla Devi
W/o. Late Sh. Kaxmanji
R/o. 487/2, Ghear Sodian
Near Chappal Market, Distt. Patiala, Punjab
14. Smt. Vidya Ben
W/o. Late Sh. Bhai Vachetha
R/o. Malji Bhai Ki Chaali
Gopal Nagar, PartI,
Near 132 Feet Mem Nagar Road
Ahemdabad, Gujarat.
15. Smt. Bhagwati Devi
W/o. Late Sh. Om Prakash
W/o. 9/290, Dakshinpuri Extn., New Delhi
16. Smt. Sharda Devi
W/o. Late Sh. Devi Raj
R/o. H.No. 32, Parwati Nagar,
Near Chand Lodia Bridge,
Ahmedabad, Gujarat.
17. Smt. Sarita Rani
W/o. Sh. Bansi Lal
R/o. H.No. 102, Desi Mehmandari
Near Rajpura colony, Patiala, Punjab.
18. Smt. Shashi
W/o. Sh. Narender
R/o. Ghat no. 26, Jawahar Lal Nehru Marg
Civil Suit No.8418/2016
Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.3 of 31
Near G.B. Pant Hospital, Gate no. 9
New Delhi02
19. Sh. Rajesh
S/o. Sh. Girdhari Lal
R/o. 15/14, Dakshinpuri Extn. New Delhi62.
20. Sh. Bonu
S/o. Sh. Girdhari Lal
R/o. 15/14, Dakshinpuri Extn., New Delhi62 ... Defendants
SUIT FOR PARTITION AND RECOVERY OF
DAMAGES/MESNE PROFITS
DATE OF INSTITUTION : 24.02.2016
DATE OF FINAL ARGUMENTS : 27.03.2021
DATE OF DECISION : 26.07.2021
JUDGMENT
1. The plaintiffs have filed this suit against the defendants seeking reliefs of partition and recovery of damages/mesne profits. The exact prayer made by the plaintiffs, in the plaint of this suit, is reproduced below: "It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to;
i) pass a decree for partition and possession in favour of the plaintiffs and against the defendants thereby directing them to give 1/5th share in the suit property No.J3/89, DDA Flat, Kalkaji, New Delhi and declare the plaintiffs to the owner of the 1/5th share of the property No.J3/89, DDA Flats, Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.4 of 31Kalkaji, New Delhi, more specifically shown in red colour in the site plan attached with the plaint and hand over to the plaintiffs.
ii) Pass an order for recovery of damages for the month of November 2012 to February 2016 @ Rs.8000/ per month as per the share of the plaintiffs, in favour of the plaintiffs and against the defendants.
Iii) Pass an order for recovery of damages/mesne profit @ Rs.8000/ per month w.e.f. November 2012 till the date of handing over the possession as per the share of the plaintiffs in the suit premises/property/flat.
iv) Grant the cost of the suit.
v) Pass any other relief/s in favour of the plaintiffs and against the defendants which this Hon'ble court may deem fit and proper.
It is prayed accordingly."
2. In order to justify the grant of the aforesaid reliefs/prayers, the plaintiffs have interalia pleaded in the plaint of this suit that this suit has been filed/instituted on behalf of the plaintiffs no.2 to 5 by the plaintiff no.1, on the strength of a special power of attorney; that vide allotment cumdemand letter dated 18.06.1975, DDA Flat No. J3/89, Kalkaji, New Delhi (henceforth 'suit property') was allotted by DDA to Late Smt. Bhiki Bai; that vide possession letter dated 05.07.1975 issued by DDA, the possession of the suit property was handed over to Late Smt. Bhiki Bai;
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.5 of 31that at the time of her death, on 26.10.1987, Late Smt. Bhiki Bai had left behind five children/legal heirs viz. Late Sh. Gulab Singh (who expired on 22.09.1985)1, Late Sh. Pritam Singh (who expired on 28.03.2003), Late Smt. Laxmi Devi, Late Smt. Gora Devi (who expired on 21.09.2004) and Late Smt. Leela Bai (who expired on 28.08.2012); that the plaintiffs and the defendants are the legal heirs of the aforesaid deceased five children/legal heirs of Late Smt. Bhiki Bai; that the plaintiffs are the legal heirs of Late Sh. Gulab Singh; that the defendants no.1 to 8 are the legal heirs of Late Sh. Pritam Singh; that the defendants no.9 to 11 are the legal heirs of Late Smt. Laxmi Devi; that defendants no.12 to 16 are the legal heirs of Late Smt. Gora Devi; that the defendants no.17 to 20 are the legal heirs of Late Smt. Leela Bai; that being the legal heirs of Late Sh. Gulab Singh, son of Late Smt. Bhiki Bai, the plaintiffs are entitled to 1/5th share in the suit property; that in order to defeat the rights of the plaintiffs and the other defendants in the suit property, the defendants no.1 and 2 have fraudulently obtained the allotment of the suit property, in the name of the defendant no.1, from DDA, on the basis of a registered relinquishment deed dated 11.04.2012, wherein it is falsely claimed that Late Smt. Bhiki Bai had no legal heirs except Late Sh. Pritam Singh, the defendant no.1 and the defendant no.2; that the said allotment of the suit property to the defendant no.1, by DDA, does not bind the plaintiffs; that in respect of the fraud committed by the defendants no.1 and 2 upon DDA, the plaintiffs have got FIR No.438/2013 under Section 420/468/471 of IPC, 1860 registered at PS Kalkaji; that at present, the suit property is in the possession of the 1 The said date (as pleaded in paragraph 3 of the plaint of this suit) appears to be a typographical error.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.6 of 31defendants no.1 and 2 and they are earning rent of Rs.40,000/ per month, by renting out three floors at the suit property; that therefore, the defendants no.1 and 2 are liable to pay damages/mesne profits at the rate of Rs.8000/ per month to the plaintiffs; that despite repeated requests and reminders of the plaintiffs, the defendants have neither partitioned the suit property nor paid any damages/mesne profits to the plaintiffs and that as such, the plaintiffs are entitled to reliefs of partition and recovery of damages/mesne profits, sought by way of this suit.
3. Upon service of summons for settlement of issues of this suit, the defendants no.1 and 2, defendants no.3 to 8 and defendants no.12 to 16 have contested this suit by filing separate written statements. In the joint written statement of the defendants no.1 and 2, it is interalia pleaded that this suit has not been duly filed/instituted by the plaintiff no.1, on behalf of the plaintiffs no.2 to 5; that the plaint of this suit is liable to be rejected under Order VII Rule 11(c) of CPC, 1908 because the plaintiffs have not paid the requisite courtfees; that the claims made by way of this suit are barred by the law of limitation; that the substantive relief of partition sought by the plaintiffs cannot be granted by this Court because in this suit, the plaintiffs have not challenged the registered conveyance deed dated 22.11.2012, executed by the President of India in favour of the defendant no.1, conferring exclusive ownership rights qua the suit property, in the name of the defendant no.1 and that in any event, this suit should be dismissed as the claim of the plaintiffs that they are entitled to 1/5th share in the suit property is baseless because the suit property was allotted to Late Smt. Bhiki Bai, subject to payment of Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.7 of 31due installments to DDA, because when the possession of the suit property was handed over to Late Smt. Bhiki Bai, the suit property only had a ground floor consisting of one room, one kitchen and a latrine bathroom, because in September 1983, an oral family settlement had taken place in the presence of Late Smt. Bhiki Bai, Late Sh. Gulab Singh, Late Sh. Pritam Singh, Late Smt. Laxmi Devi, Late Smt. Gora Devi and Late Smt. Leela Devi, whereby it was mutually agreed that the suit property will be transferred by Late Smt. Bhiki Bai in favour of her younger son, Late Sh. Pritam Singh and that the liability to pay the installments qua the suit property to DDA will be of Late Sh. Pritam Singh, because in pursuance of the said oral family settlement, a letter dated 16.09.1983 was sent by Late Smt. Bhiki Bai to the Assistant Housing Officer, DDA, seeking transfer of the suit property in the name of Late Sh. Pritam Singh, because in pursuance of the said oral family settlement, Late Sh. Pritam Singh and his son(s) had started paying all the dues pertaining to the suit property, including the installments payable to DDA, because even after the death of Late Smt. Bhiki Bai, on 26.10.1987, all the dues pertaining to the suit property were paid by Late Sh. Pritam Singh and his son(s), because in the year 1987, Late Sh. Pritam Singh had constructed the first floor of the suit property, by utilizing his own funds, because in the year 2003, Late Sh. Pritam Singh had constructed the second floor, third floor and half of fourth floor of the suit property, by utilizing his own funds and because the failure of the plaintiffs and the other defendants to assert any rights in respect of the suit property or to render any financial assistance to Late Sh. Pritam Singh or his son(s), during 1983 to 2003, precludes them from claiming Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.8 of 31any rights, in respect of the suit property.
4. In the joint written statement of the defendants no.3 to 8, it is interalia pleaded that Late Smt. Bhiki Bai was a house wife and never had the financial resources to pay DDA; that all throughout, the installments qua the suit property were paid by Late Sh. Pritam Singh; that the entire construction at the suit property was done by Late Sh. Pritam Singh; that only the legal heirs of Late Sh. Pritam Singh are entitled to a share in the suit property because Late Sh. Pritam Singh had died intestate on 28.03.2003; that as and when, the defendants no.3 to 8 will be advised to seek partition of the suit property from the defendants no.1 and 2, they will do so and that the plaintiffs have insidiously filed this suit in order to take advantage of the malafide intention of the defendants no.1 and 2 to usurp the suit property on the basis of the conveyance deed dated 22.11.2012, executed by the President of India in favour of the defendant no.1.
5. In the joint written statement of the defendants no.12 to 16, it is interalia pleaded that being the legal heirs of Late Smt. Gora Devi, one of the five children/legal heirs of Late Smt. Bhiki Bai, they are also entitled to 1/5th share in the suit property and that the defendants no.1 and 2 have dishonestly obtained the conveyance deed dated 22.11.2012, executed by the President of India in favour of the defendant no.1 qua the suit property, on the strength of the fraudulent registered relinquishment deed dated 11.04.2012.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.9 of 316. In the separate replications qua the aforesaid written statements, the plaintiffs have traversed the contents of the aforesaid written statements, made the necessary denials and reiterated the contents of the plaint. Also, in the replication qua the joint written statement of the defendants no.1 and 2, the plaintiffs have pleaded that they had found out about the fraud committed by the defendants no.1 and 2 upon DDA, when DDA had sent them the copies of certain letters issued to the defendants no.1 and 2; that no oral family settlement, as claimed by the defendants no.1 and 2 had ever taken place; that the letter dated 16.09.1983, relied upon by the defendants no.1 and 2 is a forged document; that the first floor of the suit property was constructed during the lifetime of Late Smt. Bhiki Bai and that the parents of the plaintiffs had extended financial help to Late Sh. Pritam Singh when he was constructing second floor, third floor and fourth floor at the suit property.
7. On the basis of the aforesaid pleadings of the parties, the following issues were framed by a Ld. Predecessor Judge, on 03.05.2017: "1. Whether the plaintiffs are entitled to a preliminary decree of partition in favour of the plaintiff and against the defendants thereby declaring that the plaintiff along with the defendants are entitled to 1/5 share each in property describe as bearing no. J3/89, DDA flats, Kalkaji? OPP Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.10 of 312. Whether the plaintiffs are entitled to a final decree of partition in favour of the plaintiffs and against the defendants thereby partitioning the property described as bearing no. J3/89, DDA flats, Kalkaji by metes and bounds in accordance with the shares declared under the preliminary decree of partition and putting the plaintiff in separate possession of their 1/5 share each?
OPP
3. Whether the plaintiff is entitled to recover damages from the defendants @ Rs.8,000/ per month or at any other rate w.e.f. November, 2012 till handing over of possession of the shares of the plaintiff in premises described as bearing no. J 3/89, DDA flats, Kalkaji? OPP
4. Whether the suit for partition and damages is barred by limitation? OPD
5. Whether oral family settlement took place before the death of Smt. Bikhi Bai, the original allotee of the property described as bearing no. J 3/89 DDA flats, Kalkaji in the presence of Smt. Bikhi Bai, Sh. Gulab Singh, Sh. Pritam Singh, Smt. Laxmi Devi, Smt. Gora Devi, Smt. Leela Devi, where under it was mutually agreed between the family members that the property bearing no. J3/89, DDA flats, Kalkaji would be transferred by Smt. Bikhi Bai in favour of Sh.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.11 of 31Pritam Singh i.e. the late husband of defendant no. 1 and father of defendants no. 2, 3 and 8, defendants 4 to 7 being the LRs of the pre deceased son of Sh. Pritam Singh?
6. Whether the suit for partition and damages has been filed without any cause of action? OPD
7. Whether the suit for partition and damages is not properly valued for the purposes of jurisdiction and Court fees and whether adequate Court fees is not affixed? OPD
8. Whether the suit for partition is instituted by a competent person? OPD
9. Whether Sh. Pritam Singh has paid the entire sale consideration including the cost of construction in respect of property described as bearing no. J3/89, DDA flats, Kalkaji? OPD
10. Relief."
8. During the trial of this suit, the defendants no.12 to 16 were proceeded exparte. Thereafter, four witnesses viz. PW1 Sh. Sugan Das, PW2 Sh. Narender Kumar, PW3 Sh. Parvinder Kumar and PW4 SI Satish Bhati were examined in support of the case of the plaintiffs, one witness viz. DW1 Sh. Nand Kishore was examined in support of the case of the defendants no.1 and 2 and one witness viz. D3W1 Sh. Arjun was examined in support of the case of the defendants no.3 to 8. The testimonies of the said witnesses are not being discussed, at this stage of this judgment, for the sake of brevity.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.12 of 319. In order to adjudicate upon this suit, I had heard Sh. Ayub Ahmad, Ld. Advocate for the plaintiffs and Sh. Yogender Singh, Ld. Advocate for the defendants no. 1 and 2, on 27.03.2021. Also, in order to adjudicate upon this suit, I have perused the written submissions filed by the Ld. Advocate for the defendants no.3 to 8, on 13.04.2021. The issue wise findings, in this suit are as follows:
ISSUE NO.1
10. In respect of this issue, the case of the plaintiffs as well as the defendants no.12 to 16 is that they are entitled to 1/5th share each in the suit property because the suit property was allotted by DDA exclusively to Late Smt. Bhiki Bai; because no oral family settlement, as alleged by the defendants no.1 and 2 had taken place in September 1983; because the letter dated 16.09.1983, relied upon by the defendants no. 1 & 2, is a forged document; because upon the intestate death of Late Smt. Bhiki Bai, on 26.10.1987, the suit property was jointly inherited by her five children/legal heirs viz. Late Sh. Gulab Singh, Late Sh. Pritam Singh, Late Smt. Laxmi Devi, Late Smt. Gora Devi and Late Smt. Leela Bai and because upon the intestate death of Late Sh. Gulab Singh (predecessor in interest of the plaintiffs) and Late Smt. Gora Devi (predecessor in interest of the defendants no.12 to 16), the plaintiffs and the defendants no.12 to 16, have inherited 1/5th share each in the suit property. Per contra, the case of the defendants no.1 and 2 is that neither the plaintiffs nor the defendants no.9 to 20 are entitled to any share in the suit property because by virtue of an oral family settlement Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.13 of 31that had taken place in the presence of Late Smt. Bhiki Bai, Late Sh. Gulab Singh, Late Sh. Pritam Singh, Late Smt. Laxmi Devi, Late Smt. Gora Devi and Late Smt. Leela Devi in September 1983 and the consequent letter dated 16.09.1983, written by Late Smt. Bhiki Bai to the Assistant Housing Officer, DDA, the suit property was duly transferred by Late Smt. Bhiki Bai to Late Sh. Pritam Singh and because the failure of the plaintiffs and the other defendants to assert any rights in respect of the suit property or to render any financial assistance to Late Sh. Pritam Singh or his son(s), during 1983 to 2003, precludes them from claiming any rights in respect of the suit property. Analogous to the case of the defendants no.1 and 2, the case of the defendants no.3 to 8 is that neither the plaintiffs nor the defendants no.9 to 20 are entitled to any share in the suit property because Late Smt. Bhiki Bai, being a house wife, never had the financial capacity to purchase the suit property; because Late Sh. Pritam Singh had made a benami purchase of the suit property, in the name of his mother, Late Smt. Bhiki Bai and because as as such, Late Sh. Pritam Singh was the actual owner of the suit property.
11. In addition to the aforesaid, it is the exclusive case of the defendants no.1 and 2 that no relief of partition can be granted in this suit because in this suit, neither the plaintiffs nor the other defendants have raised any challenge qua the registered conveyance deed dated 22.11.2012, executed by the President of India in favour of the defendant no.1, conferring exclusive ownership rights qua the suit property, in the name of the defendant no.1.
12. In order to prove their case qua this issue, the plaintiffs have Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.14 of 31examined four witnesses viz. PW1 Sh. Sugan Das, PW2 Sh. Narender Kumar, PW3 Sh. Parvinder Kumar and PW4 SI Satish Bhati. During examination in chief, the plaintiff no. 1 viz. PW1 Sh. Sugan Das has deposed in line with the plaint of this suit and tendered in evidence site plan, Ex.PW1/A, death certificate of Late Smt. Bhiki Bai, Ex.PW1/B (OSR), death certificate of Late Sh. Gulab Singh, Mark PW1/C, death certificate of Late Smt. Gora Devi, Mark PW1/D, aadhar card and death certificate of Late Smt. Leela Bai, Mark PW1/E (colly), special power of attorney notarized on 21.02.2014, Mark PW1/F, registered relinquishment deed dated 11.04.2012, Ex.PW1/G (CSR) 1, letter dated 25.10.2012 and conveyance deed dated 22.11.2012, Mark PW1/H (colly), FIR No.438/2013, PS Kalkaji, Mark PW1/I and status report dated 03.02.2013 of SI Samar Pal, Mark PW1/J. During cross examination by the Ld. Advocate for the defendants no. 1 and 2, PW1 Sh. Sugan Das has interalia deposed that he does not remember the date on which he had signed the special power of attorney, Mark PW1/F; that the site plan Ex.PW1/A was not prepared by him; that he does not remember the date when the draftsman had visited the suit property to prepare the site plan, Ex.PW1/A; that he had never requested the defendants no. 1 and 2 to get the registered relinquishment deed dated 11.04.2012, Ex.PW1/G(CSR) cancelled; that he does not remember, if the plaintiffs had ever filed any civil suit seeking cancellation of the registered relinquishment deed, Ex.PW1/G(CSR); that the copies of the letter dated 25.10.2012 and conveyance deed dated 22.11.2012, Mark PW1/H (colly) were supplied to him by Sh. S.S. Bawa, Ld. Advocate for the defendants 1 The certified copy was seen and returned by Sh. Jatin Sharma, Advocate appointed as Local Commissioner to record evidence in this suit.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.15 of 31no. 1 and 2, in 201213; that although he has challenged the said documents before the DDA and the SubRegistrar, he has never challenged the said documents before a Civil Court; that he has not filed any document in this Court to show that he has ever challenged the registered relinquishment deed dated 11.04.2012, Ex.PW1/G(CSR) or the conveyance deed dated 22.11.2012, part of Mark PW1/H (colly) before DDA or the SubRegistrar; that the plaintiffs have never resided at the suit property; that some person, whose name he cannot tell, had informed him about the tenants residing at the suit property and that the entire defense of the defendants no. 1 and 2 qua the existence of the oral settlement dated September 1983, is patently false. During cross examination by the Ld. Advocate for the defendants no. 3 and 8, PW1 Sh. Sugan Das has interalia deposed that Late Smt. Bhiki Bai used to work as a domestic help at the house of an Advocate; that Late Smt. Bhiki Bai used to reside with his father, Late Sh. Gulab Singh at H. No. 13/42, Dakshinpuri, New Delhi; that Late Sh. Pritam Singh used to reside at H. No. 13/49, Dakshinpuri, New Delhi; that he does not have any knowledge about the amount paid by Smt. Bhiki Bai in respect of the suit property; that during his lifetime, his father, Late Sh. Gulab Singh had never filed any suit for partition in respect of the suit property; that he has not filed any document to show that his father, Late Sh. Gulab Singh had ever made any contribution towards the purchase of the suit property from DDA or towards the construction of the suit property and that the entire defense of the defendants no. 3 to 8 that the suit property was purchased benami by Late Sh. Pritam Singh in the name of his mother, Late Smt. Bhiki Bai, is patently false.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.16 of 3113. During examinationinchief, PW2 Sh. Narender Kumar, Record Keeper, Office of SubRegistrarV, Mehrauli has tendered in evidence the registered relinquishment deed dated 11.04.2012, Ex.PW1/G(OSR). During crossexamination, PW2 Sh. Narender Kumar has interalia deposed that at the instructions of the SubRegistrarV, Mehrauli, he had brought the record of the registered relinquishment deed dated 11.04.2012, Ex.PW1/G(OSR) in Court; that he has no knowledge, if any objections had been filed in respect of the registered relinquishment deed dated 11.04.2012, Ex.PW1/G(OSR) and that he has no personal knowledge regarding the parties mentioned in the registered relinquishment deed dated 11.04.2012, Ex.PW1/G(OSR).
14. During examinationinchief, PW3 Sh. Parvinder Kumar, Assistant Section Officer, DDA has deposed that the original record of the suit property was taken from DDA by SI Satish Bhati, who was investigating FIR No. 438/2013, PS Kalkaji.
15. During examinationinchief, PW4 IO/SI Satish Bhati has tendered in evidence, the copy of chargesheet, Ex.PW4/A (colly) filed in respect of FIR No. 438/2013, PS Kalkaji.
16. In order to prove their case qua this issue, the defendants no. 1 and 2 have examined one witness viz. DW1 Sh. Nand Kishore. During examinationinchief, the defendant no. 2 viz. DW1 Sh. Nand Kishore has deposed in line with the joint written statement of the defendants no. 1 and 2 and tendered in evidence the letter dated 16.09.1983, Mark A, letter dated 25.10.2012 and conveyance deed dated 22.11.2012, Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.17 of 31Ex.DW1/3 (colly)(OSR) and receipts of payments made by and on behalf of Late Sh. Pritam Singh qua the suit property, Ex.DW1/2 (colly). During crossexamination by the Ld. Advocate for the plaintiffs, DW1 Sh. Nand Kishore has interalia deposed that Late Smt. Bhiki Bai was his grandmother; that his father, Late Sh. Pritam Singh was the owner of the H.No. 13/49, Dakshinpuri, New Delhi; that the registered conveyance deed 22.11.2012, part of Ex.DW1/3(colly)(OSR) was obtained on the strength of the registered relinquishment deed dated 11.04.2012, Ex.PW1/G(OSR); that he is in possession of ground floor and some parts of second floor of suit property; that the other floors of the suit property are rented out, without any written rent agreement; that in September 1983, he was 9 years old; that the oral family settlement of September 1983 had taken place in his presence; that his father, Late Sh. Pritam Singh had never obtained any NOC from the other four children/legal heirs of Late Smt. Bhiki Bai; that he had learned about the letter dated 16.09.1983, Mark A, in the year 2012 and that the entire case of the plaintiffs, is false.
17. In order to prove their case qua this issue, the defendants no. 3 to 8 have examined one witness viz. D3W1 Sh. Arjun. During examinationinchief, the defendant no. 8 viz. D3W1 Sh. Arjun has deposed in line with the joint written statement of the defendants no. 3 to
8. During crossexamination by the Ld. Advocate for the plaintiff, D3W1 Sh. Arjun has interalia deposed that his father Late Sh. Pritam Singh had four children including him; that Late Smt. Bhiki Bai had not executed any will in favour of Late Sh. Pritam Singh; that he does not know the defendants no.14 to 19; that he has not filed any complaint to Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.18 of 31the police in respect of the fraud committed by the defendants no.1 and 2 upon DDA, while obtaining the registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly)(OSR) and that the entire of the case of the plaintiffs, is false.
18. After examining the probative value of the aforesaid competing evidence lead by the parties qua this issue, I find that the first plea of the defendants no.1 and 2 viz. that neither the plaintiffs nor the defendants no.9 to 20 are entitled to any share in the suit property because by virtue of an oral family settlement that had taken place in the presence of Late Smt. Bhiki Bai, Late Sh. Gulab Singh, Late Sh. Pritam Singh, Late Smt. Laxmi Devi, Late Smt. Gora Devi and Late Smt. Leela Devi in September 1983 and the consequent letter dated 16.09.1983, Mark A, written by Late Smt. Bhiki Bai to the Assistant Housing Officer, DDA, the suit property was duly transferred by Late Smt. Bhiki Bai to Late Sh. Pritam Singh, is liable to be rejected because of two reasons.
19. Firstly, the aforesaid first plea of the defendants no.1 and 2, is liable to be rejected because during trial of this suit, the defendants no.1 and 2 have not lead any credible evidence to prove the aforesaid oral family settlement and the consequent writing of letter dated 16.09.1983, Mark A, by Late Smt. Bhiki Bai to the Assistant Housing Officer, DDA. In this regard, it is noteworthy (a) that in order to prove the existence of the aforesaid oral family settlement, the defendants no.1 and 2 have only examined only one witness viz. DW1 Sh. Nand Kishore and (b) that the testimony of DW1 Sh. Nand Kishore qua the aforesaid oral family settlement is unreliable because in the written statement of Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.19 of 31the defendants no.1 and 2, it is nowhere pleaded that DW1 Sh. Nand Kishore was also present when the aforesaid oral family settlement was being discussed and because even otherwise, DW1 Sh. Nand Kishore, being only 9 years old in 1983, cannot be accepted to have been part of an important family settlement being made between the elders of his family. Also, in this regard, it is noteworthy that despite the deexhibition of the letter dated 16.09.1983, from Ex.DW1/1 to Mark A by this Court, on 16.04.2019 (presumably on the ground of 'mode of proof'), the defendants no.1 and 2 have not duly proved the letter dated 16.09.1983, Mark A, by summoning its original, from the current custodian. Finally, in this regard, it is noteworthy that the defendants no.1 and 2 have nowhere explained that if the aforesaid oral family settlement and the consequent letter dated 16.09.1983, Mark A were genuine, why during her lifetime, particularly between 16.09.1983 to 26.10.1987, Late Smt. Bhiki Bai had not pursued the letter dated 16.09.1983, Mark A with DDA and ensured that the suit property was transferred in the name of Late Sh. Pritam Singh, why during his lifetime, Late Sh. Pritam Singh had not pursued the letter dated 16.09.1983, Mark A with DDA and ensured that the suit property was transferred in his name and why in 2012, the defendants no.1 and 2, instead of relying on the fraudulent contents of the registered relinquishment deed dated 11.04.2012, Ex.PW1/G (CSR), had not relied on the said letter, while seeking the registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly)(OSR).
20. Secondly, the aforesaid first plea of the defendants no.1 and 2, is liable to be rejected because even if it is believed that the aforesaid oral family settlement had taken place and Late Smt. Bhiki Bai had Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.20 of 31written the letter dated 16.09.1983, Mark A, to the Assistant Housing Officer, DDA, the due/legal transfer of the suit property from the name of Late Smt. Bhiki Bai to the name of Late Sh. Pritam Singh, had actually never taken place, in the records of DDA. In this regard, it is noteworthy that payment receipts, Ex.DW1/2 (colly) and the letter dated 25.10.2012, part of Ex.DW1/3 (colly)(OSR) clearly reflect that till the execution of the registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly) (OSR), the allotment of the suit property was existing in the name of Late Smt. Bhiki Bai.
21. Further, after examining the probative value of the aforesaid competing evidence lead by the parties qua this issue, I find that the second plea of the defendants no.1 and 2 viz. that the failure of the plaintiffs and the defendants no. 9 to 20, to assert any rights in respect of the suit property or to render any financial assistance to Late Sh. Pritam Singh or his son(s), during 1983 to 2003, precludes them from claiming any rights in respect of the suit property, is liable to be rejected because the mere failure of the plaintiffs and the defendants no.9 to 20, to assert any rights in respect of the suit property during 1983 to 2003, does not result in automatic extinguishing of the rights of inheritance conferred upon them by the Hindu Succession Act, 1956 and because the money invested by Late Sh. Pritam Singh and his son(s) in the purchase and construction of the suit property, only confers upon them an equitable right to receive the said money alongwith reasonable interest from the plaintiffs and defendants no.9 to 20, if the suit property, is directed to be partitioned by this Court. In this regard, reference is craved to the judgment of the Hon'ble Supreme Court in Krishna Pillai Rajasekharan Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.21 of 31Nair dead through LRs v Padmanabha Pillai dead through LRs and Ors., (2004) 12 SCC 754, wherein it is held that if one of the coowners of a mortgaged immovable property invests his/her money and redeems the mortgage qua the said property, then in a suit for partition of the said property, filed by another coowner, the first coowner will only have an equitable right to receive the money invested by him/her from the other coowner, before the immovable property is partitioned. In my view, the reasoning given in the said judgment squarely applies to the aforesaid second plea of the defendants no.1 and 2.
22. Further, after examining the probative value of the aforesaid competing evidence lead by the parties qua this issue, I find that plea of the defendants no.3 to 8 viz. that neither the plaintiffs nor the defendants no.9 to 20 are entitled to any share in the suit property because Late Smt. Bhiki Bai, being a house wife, never had the financial capacity to purchase the suit property; because Late Sh. Pritam Singh had made a benami purchase of the suit property, in the name of his mother, Late Smt. Bhiki Bai and because as as such, Late Sh. Pritam Singh alone was actual owner of the suit property, is liable to be rejected because of three reasons.
23. Firstly, the aforesaid plea of the defendants no.3 to 8 is liable to be rejected because during trial of this suit, the defendants no. 3 to 8 have not lead any credible evidence (a) to defeat the testimony of PW1 Sh. Sugan Das that Late Smt. Bhiki Bai was earning by working as a domestic help at the house of an Advocate, (b) to prove that during his lifetime, Late Sh. Pritam Singh had ever claimed that he had made a Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.22 of 31benami purchase of the suit property, in the name of his mother, Late Smt. Bhiki Bai and (c) to prove that all the money for the allotment and purchase of the suit property from DDA, had originated from Late Sh. Pritam Singh or the estate, left behind by him.1
24. Secondly, the aforesaid plea of the defendants no.3 to 8 is liable to be rejected because it is hit by the law regarding benami transactions, as discussed by the Hon'ble High Court of Delhi in Vivek Bindra v Geetika Bindra, 2019 SCC OnLine Del 10392. In the said judgment, the Hon'ble High Court of Delhi has observed that when in his/her pleadings, a litigant claims to have made benami purchase of an immovable property, the litigant should disclose the known sources of his/her income, from where he/she had sourced the money for the benami purchase of the immovable property and the failure to do so, shall be fatal to the case of the litigant. In this suit, the defendants no. 3 to 8 have nowhere disclosed the known sources of income of their father, Late Sh. Pritam Singh, from where, he had sourced the money for benami allotment and purchase of the suit property, in the name of his mother, Late Smt. Bhiki Bai. In my view, the said failure of the defendants no.3 to 8 squarely defeats their aforesaid plea.
25. Thirdly, the aforesaid plea of the defendants no.3 to 8 is liable to be rejected because de hors of what has already been said qua it, the said plea is squarely hit by the law regarding benami transactions, as laid down by the Hon'ble High Court of Delhi in Mahesh Karwal v Satya 1 In respect of this observation, reasoning has been given in paragraph 37 of this judgment.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.23 of 31Devi, 2018 SCC OnLine Del 12090. In the said judgment, the Hon'ble High Court of Delhi has categorically held that subsequent to enforcement of the Benami Transactions (Prohibition) Act, 1988 (now known as Prohibition of Benami Property Transactions Act, 1988), a major son cannot claim that benami purchase of an immovable property by him, in the name of his mother, falls under the exceptions provided under the said Act.1
26. Lastly, after examining the probative value of the aforesaid competing evidence lead by the parties qua this issue, I find that exclusive plea of the defendants no. 1 to 2 viz. that no relief of partition can be granted in this suit because in this suit, neither the plaintiffs nor the other defendants have raised any challenge qua the registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly)(OSR), is liable to be accepted because in order to succeed in this suit, the plaintiffs as well as the other defendants, were duty bound to challenge the registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly)(OSR), whereby exclusive ownership rights qua the suit property were conferred by the President of India, upon the defendant no.1. In this regard, reference is craved to the judgment in Lata Chauhan v L.S. Bisht, 2010 (117) DRJ 715, wherein the Hon'ble High Court of Delhi interalia relying upon Section 3 of the Transfer of Property Act, 1882, Section 27 of the Limitation Act, 1963 and the judgment of the Hon'ble Supreme Court in Ramti Devi (Smt.) v Union of India, (1995) 1 SCC 198 1 In my view, Prohibition of Benami Property Transactions Act, 1988, will apply in the facts and circumstances presented by this suit because till the execution of registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly)(OSR), the sale trasaction qua the suit property had not been completed.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.24 of 31has held that where a person, claiming to have inherited rights in respect of allotment of an immovable property, from his ancestor, does not challenge the registered instrument, executed by the allotting authority in favour of another such person and seek its cancellation, within the prescribed period of limitation, then the rights of such first person qua the immovable property (including the right to seek partition) extinguish on account of applicability of Section 27 of the Limitation Act, 1963. Upon applying the said ratio to the facts and circumstances of this suit, it becomes clear that by failing to challenge the registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly)(OSR), in this suit, the plaintiffs as well as the defendants (other than the defendants no.1 and
2) have lost the right to seek partition of the suit property on the premise that it was once allotted to Late Smt. Bhiki Bai.
27. As a net result of the aforesaid discussion, the pleas of the defendants no.1 and 2 as well as the defendants no.3 to 8, identified in paragraphs 18, 21 and 22 of this judgment are rejected and only the exclusive plea of the defendants no.1 and 2, identified in paragraph 26 of this judgment, is accepted. As a corollary thereof, this issue is decided in favour of the defendants no.1 and 2 and it is held that the preliminary decree, as sought by the plaintiffs as well as the defendants no.12 to 16, cannot be passed in this suit.
ISSUE NO.2
28. In view of the aforesaid decision qua the issue no.1, this issue is also decided in favour of the defendants no.1 and 2 and it is held Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.25 of 31that the final decree, as sought by the plaintiffs as well as the defendants no.12 to 16, cannot be passed in this suit.
ISSUE NO.3
29. In view of the observations made and the findings recorded while deciding issue no.1, this issue is also decided in favour of the defendants no.1 and 2. It is held that the plaintiffs are not entitled to recover any damages/mesne profits from the defendants no.1 and 2.
ISSUE NO.4
30. In respect of this issue, the defendants no.1 and 2 have simply pleaded in their joint written statement that the reliefs of partition and recovery of damages/mesne profits, sought by the plaintiffs, by way of this suit, are barred by the law of limitation. Upon inquiry regarding the specifics of the said plea, no assistance was rendered by the Ld. Advocate for the defendants no.1 and 2. Upon perusal of the pleadings made in paragraph 17 of the plaint of this suit as well as evidence lead by the parties during the trial of this suit, I find that the relief of partition sought by the plaintiffs, has been sought within the period of limitation prescribed under Article 110 of the Schedule to the Limitation Act, 1963. Further, upon perusal of the pleadings made in the plaint of this suit, I find that only the relief of recovery of damages/mesne profits, sought by the plaintiffs, is partly barred by the law of limitation as provided under Section 3 read with Article 51 of the Schedule to the Limitation Act, 1963. Therefore, this issue is partly decided in favour of the defendants no.1 Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.26 of 31and 2 and it is held that only the relief of recovery of damages/mesne profits, sought by the plaintiffs, for the period November 2012 to February 2013, is barred by the law of limitation, as provided under Section 3 read with Article 51 of the Schedule to the Limitation Act, 1963.
ISSUE NO.5
31. In view of the observations made and findings recorded in paragraphs 19 of this judgment, this issue is decided in favour of the plaintiffs. It is held that in September 1983, no oral family settlement had taken place in the presence of Late Smt. Bhiki Bai, Late Sh. Gulab Singh, Late Sh. Pritam Singh, Late Smt. Laxmi Devi, Late Smt. Gora Devi and Late Smt. Leela Devi, whereby it was mutually agreed that the suit property will be transferred by Late Smt. Bhiki Bai to Late Sh. Pritam Singh.
ISSUE NO.6
32. In exercise of power under Order XIV Rule 5 of CPC, 1908, this issue is striked off because whether or not, a suit has been filed with/without cause of action, is an aspect which should be decided at a preliminary stage of a suit, through the prism of Order VII Rule 11(a) of CPC, 1908, without looking into the defense of the defendants and not, at the stage of passing of final judgment.
ISSUE NO.7
33. In paragraph 18 of the plaint of this suit, the plaintiffs have Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.27 of 31properly valued the relief of partition, as per the law laid down in Anu v Suresh Verma and Ors., CS(OS) No.2546/2010, decided by the Hon'ble High Court of Delhi, on 12.07.2011, Jagdish Pershad v Joti Pershad, 1975 ILR (Del) 841 and Rule 8, Part C, Chapter 3 of the Instructions to Civil Courts in Delhi, Volume I, High Court Rules and Orders. 1 Also, in paragraph 18 of the plaint of this suit, the plaintiffs have properly valued the relief of recovery of damages/mesne profits, as per Section 7(i) of the Courtfees Act, 1870. During trial of this suit, the defendants no.1 and 2 have not lead any evidence to prove that the plaintiffs have under valued the relief of partition, for the purpose of courtfees and jurisdiction. Also, during the hearing of final arguments, the defendants no.1 and 2 have not demonstrated how the courtfees of Rs.13,400/, furnished by the plaintiffs, is inadequate.
34. In view of the aforesaid, this issue is decided in favour of the plaintiffs. It is held that the plaintiffs have properly valued this suit for the purpose of courtfees and jurisdiction and paid the adequate courtfees.
ISSUE NO.8
35. Keeping in view (a) the failure of the plaintiff no.1 to file/produce the original of the special power of attorney notarized on 1 Therein, it is specified that in a suit for partition, the value of the suit for the purpose of jurisdiction is supposed to be the total value of the properties sought to be partitioned; that the value of the suit for the purpose of courtfees is supposed to be the value of the share of the plaintiff; that if the plaintiff is in possession of any of the properties sought to be partitioned, the plaintiff has to pay a fixed courtfees as per Article 17(vi) of the Courtfees Act, 1870 and that if the plaintiff is not in possession of any of the properties sought to be partitioned, the plaintiff has to pay ad valorem courtfees as per value of his/her share in the properties sought to be partitioned.
Civil Suit No.8418/2016Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.28 of 3121.02.2014, Mark PW1/F, in this Court; (b) the failure of the plaintiff no.1 viz. PW1 Sh. Sugan Das to state the date on which he had signed the special power of attorney notarized on 21.02.2014, Mark PW1/F and (c) the fact that the plaintiffs no.2 to 5 have shied from signing the plaint of this suit and testifying before this Court, atleast in respect of the special power of attorney notarized on 21.02.2014, Mark PW1/F, it is concluded that the special power of attorney notarized on 21.02.2014, Mark PW1/F, is not a reliable document and that this suit has not been duly instituted by the plaintiff no.1, on behalf of the plaintiffs no.2 to 5.
36. In light of what has been observed in the preceding paragraph, this issue is decided in favour of the defendants no.1 and 2 and it is held that this suit has not been duly instituted by the plaintiff no.1, on behalf of the plaintiffs no.2 to 5.
ISSUE NO.9
37. In order to prove their case qua this issue viz. that the entire money qua the allotment/purchase of the suit property from DDA had originated from Late Sh. Pritam Singh or the estate, left behind by him, the defendants no.1 and 2 as well as defendants no.3 to 8 were first required to disclose the exact amount of money that was paid to DDA in respect of the allotment/purchase of the suit property and then to place on record all the receipts, reflecting the payment of the said amount of money to DDA. Also, in order to prove that the entire money qua the construction of the suit property had originated from Late Sh. Pritam Singh or the estate, left behind by him, the defendants no.1 and 2 as well Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.29 of 31as defendants no.3 to 8 were first required to disclose, the exact amount of money that was used for construction of the suit property and then to place on record sufficient evidence, reflecting that the said amount of money had in fact originated from Late Sh. Pritam Singh or the estate, left behind by him. Since, neither the defendants no.1 and 2 nor the defendants no.3 to 8 have done so, this issue is decided in favour of the plaintiffs. It is held that the entire money qua the allotment/purchase of the suit property from DDA and qua the construction of the suit property had not originated from Late Sh. Pritam Singh or the estate, left behind by him.
RELIEF
38. In view of the aforesaid decisions qua the issues framed in this suit, on 03.05.2017, this suit is dismissed, leaving the parties to bear their own costs.
39. Before parting with this judgment, it is clarified (a) that in my view, the registered relinquishment deed dated 11.04.2012, Ex.PW1/G(OSR) is a fraudulent document because its paragraph 3 contains a false statement of fact that Late Smt. Bhiki Bai had left behind only three legal heirs viz. Late Sh. Pritam Singh, the defendant no. 1 and the defendant no. 2; (b) that the dismissal of this suit shall not preclude the DDA from independently examining whether the registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly)(OSR) was fraudulently obtained from it, by the defendants no. 1 and 2; (c) that nothing expressed in this judgment shall preclude the DDA from Civil Suit No.8418/2016 Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.30 of 31independently examining whether the conduct of Late Smt. Bhiki Bai and any of her legal heirs warrants action as per clause 4 of the conditions mentioned in the registered conveyance deed dated 22.11.2012, part of Ex.DW1/3 (colly)(OSR); (d) that apart from reasons mentioned in paragraph 19 of this judgment, the letter dated 16.09.1983, Mark A appears to be incredible because it contains a false statement that Late Sh. Pritam Singh was the eldest son of Late Smt. Bhiki Bai whereas the truth is that Late Sh. Gulab Singh was the eldest son of Late Smt. Bhiki Bai and (e) that in this judgment, no reliance has been placed upon the copy of chargesheet, Ex.PW4/A (colly) because being only a report of a police officer, it per se does not have any probative value and because during the trial of this suit, all its annexures, have not been duly proved in this Court.
40. After preparation of the decree sheet by the Reader, the file Digitally signed shall be consigned to the record room.
JAY by JAY THAREJA
THAREJA Date: 2021.07.26
14:19:38 +0530
Announced in open Court (Jay Thareja)
today on 26.07.2021 Ld. ADJ07, South East District,
Saket Courts/Delhi
Civil Suit No.8418/2016
Sugan Das & Ors. v Late Smt. Kamlesh & Ors.
Page No.31 of 31