Delhi District Court
Cs No. 8648/16 Amarjeet Singh & Ors vs . Tara Singh & Ors. Page No. 1 /35 on 29 February, 2020
IN THE COURT OF SH. HASAN ANZAR, ADJ-06
WEST DISTRICT,TIS HAZARI COURTS
CS No. 8648/16
1. Sh. Amarjeet Singh
S/o Late Atma Singh
2. Sh Gurbaksh Singh
S/o Late Atma Singh
Both R/o 23/18, Dogran Mohalla,
Hissar, Haryana
3. Sh Gurmeet Singh
S/o Late Atma Singh
H No. 406/1, Ward No.6
Udeypuria Mohalla, Tehsil Hissar
District Hissar, Haryana
4. Smt Rajinder Kaur
W/o Sh Manjit Singh
D/o Late Atma Singh
R/o 1-C/63, Namdhari Colony,
Ramesh Nagar, New Delhi-110015
5. Smt Surinder Kaur
D/o Late Atma Singh
(since deceased through her LRs)
a. Sh Pyara Singh S/o Sh Buddasingh
b. Sh Balbir Singh S/o Pyara Singh
c. Sh Satnam Singh S/o Pyara Singh
All R/o 1-C/79, Namdhari Colony,
Ramesh Nagar, New Delhi-110015
d. Sh Chanan Singh S/o Sh Pyara Singh
CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 1 /35
R/o 1-B/72, Ramesh Nagar, New Delhi-110015
..........Plaintiffs
VERSUS
1. Late Sh Tara Singh (since deceased)
1a. Sh. Satnam Singh
S/o Late Tara Singh
R/o H No.2151-A, Gali No.167
Ganesh pura, Tri Nagar,
North West Delhi, Delhi-110035
1b. Sh Manjeet Singh
S/o Late Tara Singh
R/o H No.2151-A, Gali No.167
Ganesh pura, Tri Nagar,
North West Delhi, Delhi-110035
2. Sh Gurdev Singh
S/o Late Partap Singh
R/o 9/31, Ramesh Nagar, New Delhi-110015
3. Sh Bachittar Singh
S/o Late Partap Singh
R/o 9/31, Ramesh Nagar, New Delhi-110015
4. Smt Rajinder Kaur
W/o Sh Jagdish Singh
D/o Late Partap Singh
R/o C-73/A, Mansarovar Garden,
New Delhi-110015
5. Smt Preetpal Kaur
W/o Sh Manjeet Singh
CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 2 /35
R/o A-30, Rajouri Garden,
New Delhi-110027
6. Smt Ranjit Kaur
W/o Sh Amrik Singh
D/o Late Partap Singh
R/o A-18, Tagore Market
Kirti Nagar, New Delhi-110015
7. Delhi Development Authority
Vikas Sadan, INA, New Delhi
Through its Vice Chairman
8. The Sub-Registrar, Sub-Distrcit-II
Govt of NCT of Delhi, Basai Darapur,
New Delhi-110015
9. Sh Surjeet Singh
S/o Sh Pyara Singh
R/o 1C/79, Namdhari Colony,
Ramesh Nagar, New Delhi-110015
..........Defendants
Date of Institution: 06.12.2013
Reserved on: 27.01.2020
Date of Judgment: 29.02.2020
JUDGMENT
1. Plaintiff has filed suit for declaration, cancellation of instrument, partition with separate possession, mesne profits/ damages and injunction.
2. Facts as per plaint are that Shri Atma Singh, Tara Singh and CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 3 /35 Pratap Singh were carrying on business in the partnership under the name and style of M/s Sabharwal and Brothers at 11129/58, Idgah Road Motia Khan, Delhi. It is also pleaded that partners i.e. Shri Atma Singh and Pratap Singh have died. Shri Atma Singh died on 8 th September, 2004 by leaving behind Plaintiffs and defendant no.9 as his legal heirs. It is also pleaded that other partner i.e. Shri Pratap Singh died leaving behind defendant no. 2 to 6 as legal heirs.
3. It is also pleaded that M/s Sabharwal and brothers was allotted Industrial plot No. 72, Rewari Line, Industrial Area Phase-2 Mayapuri, New Delhi measuring about 605 square yards by Delhi Development Authority (hereinafter referred as 'suit property'). It is also pleaded that this land was allotted in lieu of land occupied at Idgah Road.
4. It is also averred that perpetual lease dated 29th August, 1967 was executed by Delhi Development Authority in favour of M/s Sabharwal & brothers and possession of the plot was given to M/s Sabharwal and Brothers through its partners. After taking possession, partners raised construction and begin to run their business. Shri Atma Singh participated in the business till 1988 and he retired from the partnership business as he got himself settled in Hissar however he retained his 1/3rd share in the Industrial property. It is also pleaded that one of the legal Heirs of Atma Singh i.e. Amarjeet Singh applied for CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 4 /35 mutation in respect of one third share in the suit property of deceased on 27.12.2012 and in this respect, a reply dated 12.04.2013 was given by DDA in which it was informed that Shri Gurudev Singh and Bachittar Singh son of late Pratap Singh have furnished relinquishment deed dated 08.06.1988 as per which Atma Singh is stated to have relinquished his share in the property in favour of his brothers Pratap Singh and Tara Singh. It is also pleaded that DDA has sought clarification from legal heirs of Pratap Singh and were also directed to file partnership deed and retirement deed of M/s Sabharwal and Brothers. It is also pleaded that legal Heirs of Atma Singh informed DDA that no relinquishment deed was executed by him and documents in respect of the suit property. It is also pleaded that plaintiff subsequently obtained an information through Right to Information Act that legal Heirs of deceased Pratap Singh had forged and fabricated relinquishment deed dated 08.06.1988 by which it is alleged that Sh Atma Singh had relinquished 1/3 rd share in respect of the suit property. Plaintiff prayed for the cancellation of the relinquishment deed dated 08.06.1988. Plaintiff has also prayed that intimation be also sent to the office of Registrar with regard to the cancellation of relinquishment deed dt 08.06.1988. Plaintiff claimed that plaintiff and defendant no. 9 are entitled to have one third share and separate possession in the suit property. Plaintiff also prayed for mesne profit/ damages to the extent of 1/3rd share from defendant no.1 to 6 for use and occupation of one third of the deceased Atma CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 5 /35 Singh at the market rate from 03.11.2013 till the date of partition. Plaintiff also prayed for decree of mandatory injunction directing the defendant/ Delhi Development Authority to mutate 1/3rd share of the deceased Atma Singh in the suit property in the name of plaintiff and defendant no.9 and also prayed that mutation in respect of the suit property be not carried out in the exclusive name of defendant no.1 to
6. Plaintiff also prayed for decree of perpetual injunction from conveying, transferring or alienating in any manner whatsoever and to part with the possession of any portion of suit property without first partitioning by metes and bound and determination of share.
5. Written Statement on behalf of defendant No. 1 Written Statement was filed on behalf of defendant no.1 in which objections were raised to effect that suit filed by plaintiff is not maintainable as Shri Atma Singh who was partner of M/s Sabharwal and Brothers had retired from the partnership firm by surrendering all his rights and claims in the partnership firm and partnership properties.
It is also pleaded that when a partner retires from a partnership firm, the right of such a partner in respect of the partnership properties gets extinguished.
CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 6 /35
6. It is also pleaded that since Atma Singh has separated from the partnership business since 1st April 1969 and has received the amount due to him from partnership firm therefore Atma Singh has no concern with the firm and its goodwill and transaction of any kind.
7. It is also pleaded that as per retirement deed dated 29.04.1969, Atma Singh shall have no right or concern in respect of the suit property which exist in the name of partnership firm. It is also pleaded that loan was also taken from the government in respect of construction in the plot and the said loan was repaid by Pratap Singh and Tara Singh.
8. Defendant also took an objection that suit has not been valued correctly for the purposes of jurisdiction as market value of suit property is about 10 Crores. Relief of Declaration is not maintainable as there is no legal character or any legal right has accrued in favour of the plaintiff and other persons.
9. Alternative plea is also raised that that even if it is accepted that Atma Singh had retired from partnership firm in the year 1988 and expired in 2004 and no claim was preferred by Atma Singh and therefore same confirms the conduct of plaintiff.
10. On merits, it was the case of defendant No.1 that Atma Singh, CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 7 /35 Pratap Singh and Tara Singh were carrying on business at 11129/58, Eidgah Road, Motia Khan, Delhi in partnership under the name and style of M/s Sabharwal and Brothers. Suit property was allotted to M/s Sabharwal and Brothers on 10.12.1965 and perpetual lease was executed on 29.08.1967 and registered at the office of Sub-Registrar on 29.09.1967. Shri Atma Singh has separated himself from the partnership business with effect from 01.04.1969 and received the amount due from the partnership firm and also executed retirement deed dated 29.04.1969. It is also averred that Late Atma Singh has no concern with the firm and its goodwill. It was also pleaded that various documents were executed in the name of late Pratap Singh and Tara Singh after retirement of Atma Singh indicating that both of them have one to one share in respect of the partnership firm including suit property.
11. Defendant No. 1 admitted the existence of partnership firm by the name of Mr Sabharawal and Brothers. However denied that Atma Singh participated in the business of partnership firm, till June 1988. It was denied that Atma Singh was entitled to retain 1/3 rd share in the suit property. It is also averred that retirement deed dated 29.04.1969 was also submitted to sales tax authority and name of Shri Atma Singh was struck down from the records of sales tax department. Defendant No.1 also stated that also stated that various documents were filed by the partnership firm in various government offices.
CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 8 /35
12. In so far as the averment made in the plaint that defendant no.2 and 3 have filed certain documents with DDA to which defendant No.1 pleaded his ignorance and also averred that defendant is unaware of existence of any relinquishment deed dated 08.06.2008 whereby the suit property was relinquished in favour of defendant No.1 and 2. Defendant No.1 also denied that he has forged or fabricated any document. Defendant No.1 also denied that legal heirs of late Atma Singh are entitled for any right in the suit property. Defendant No. 1 denied that plaintiffs are entitled for one third share in the suit property or the suit property is liable to be partitioned by Metes and bound. Defendant No. 1 denied that plaintiffs are entitled for mesne profit and damages. Defendant denied other averments as made in the plaint and prayed for the dismissal of the suit filed by plaintiff.
Written Statement on behalf of defendant No. 2 and 3
13. Written statement filed on behalf of defendant no. 2 and 3 is on the same line with the written statement of defendant no.1. Defendant no.2 and 3 took the plea that lease deed was executed on 29.08.1967 in the name of Sabharwal and Brothers. Thereafter, the construction was raised on the plot and business of partnership firm was being carried out at the suit property. It is also pleaded that Atma Singh has separated himself from partnership firm on 01.04.1969. It is also CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 9 /35 pleaded that after retirement of Atma Singh, both Pratap Singh and Tara Singh continued the business of partnership firm. It is also stated that Pratap Singh passed away on 28.12.2005 and defendant no.2 and 3 have discovered Relinquishment deed dated 08.06.2008 and subsequently they applied for mutation. It is also averred that the right of partner to the property extinguishes with his retirement from the partnership firm.
14. It is also averred that suit filed by plaintiff is barred by delay and laches. It is also stated that by virtue of retirement deed dated 29.04.1969 no right whatsoever is left with Atma Singh. Defendants admitted that they applied for mutation of half undivided share in the suit property and they filed relinquishment deed dated 08.06.1988 which was found from the record of Pratap Singh. Written statement also made reference to number of documents and relied upon retirement deed dated 29.04.1969. Defendants also relied upon the copy of assessment order issued by Income tax department from time to time. Defendants prayed for dismissal of the suit. Objection is also raised that the suit is undervalued and the plaintiffs are required to pay Advalorem court fees on the value of the suit property is more than Rs. 10 Crores.
Written Statement of defendant no.4 to 6 CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 10 /35
15. Written Statement filed on behalf of defendant no.4 to 6. Defendant no.4 to 6 are daughters of Lt. Pratap Singh (in the subject title of WS, name of Jagdish Singh, Manjeet Singh and Amrik Singh were mentioned who appeared to be the husband of daughters of Pratap Singh). Written statement is in the line of plea taken in written Statement of defendant no.1 to 3 and hence for the sake of gravity, same is not being reproduced herein.
16. Replication was filed on behalf of plaintiff to the written statement of defendant no.1 wherein the plea to the effect that Sh Atma Singh had separated from partnership business was denied owing to the differences it was stated that " but infact he retired from the partnership as he settled in Hissar". It is also averred that some manipulation were carried out by Pratap Singh without the consent and knowledge of Atma Singh. Plaintiff reiterated the contents of his plaint and denied the assertion made in the Written Statement. It is also averred that defendants have committed forgery by relying upon relinquishment deed dated 08.06.1988.
17. Replication to the written statement of defendant no. 2 and 3 filed on behalf of plaintiff on the same lines as that of the replication to the written statement filed on behalf of defendant no.1.
Issues CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 11 /35
18. On the basis of pleadings, following issues are framed on 10.09.2014:-
Issue No.1:- Whether Shri Atma Singh separated himself from the partnership of M/s Sabharwal and Brothers on 1st April, 1969 and settled his accounts and executed retirement deed dated 29-04-1969? OPD ?
Issue No. 2:- Whether Shri Atma Singh retired from the partnership of M/s Sabharwal and Brothers and released and relinquished his rights and share in the movable and immovable properties held by the partnership, including the suit property bearing Plot No.C-72, Rewari Line Industrial Area, Phase II, Mayapuri, New Delhi-110064? OPD Issue No.3:- Whether the suit in the present form is not maintainable? OPD Issue No.4:- Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD Issue No.5:- Whether the plaintiffs are entitled to a decree for mandatory injunction to have 1/3rd share in the suit property mutated in their names in the record of DDA? OPP Issue No.6:- Whether the plaintiffs are entitled to partition of the suit property with its separate possession of 1/3rd share held by the deceased S. Atma Singh? OPP CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 12 /35 Issue No.7:- Whether the plaintiffs are entitled to a decree for perpetual injunction against the defendants, as prayed for ? OPP Issue No.8:- Whether the plaintiffs are entitled to mesne profits/damages in respect of their 1/3rd share in the suit property, and if so, for what period and at what rate? OPP Issue No.9:- Relief.
Evidence on behalf of Plaintiff.
19. Plaintiff has examined himself as PW1 and relied upon the following documents which are as under:-
PW1/1 is the copy of letter dated 27.12.2012 PW1/2 is the reply dated 12.04.2013 PW1/3 (colly) is the letter dated 31.05.2013 from DDA alongwith documents PW1/4 is the copy of notice dated 15.07.2013 PW1/5 is the reply dated 05.09.2013 PW1/6 is the communication dated 24.09.2013 PW1/7 is the legal notice dated and 30.09.2013 with its postal reciept PW1/8 (colly) are postal receipts PW1/9 (colly) are acknowledgments PW1/10 (colly) are original receipt and application dated 30.12.2013
20. Plaintiff has further examined PW2 Sh Pyara Singh and on CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 13 /35 07.11.2016, PE stands closed.
21. Defendant has examined himself as DW1 and relied upon the following documents which are as under:-
1. Deed of Dissolution of Partnership dated 29/04/1969 is Ex. DW/1 (the said document is already Ex. PW1/D1).
2. Certificate of registration of sales tax is Ex. DW1/2.
3. Income Tax returns for the year 1971-72 is Ex. DW1/3 (OSR).
4. Income Tax returns for the year 1974-75 is Ex. DW1/4 (OSR).
5. Sales Tax returns for the year 1976 is Ex. DW1/5 (OSR).
6. Record of directorate of industries regarding repayment of loan is Ex. DW1/6 (OSR).
7. Redemption deed dated 02/01/1981 is Ex. DW1/7 (OSR).
8. Form no. 1 dated 11/09/1979 is Ex. DW1/8 (already Ex. as DW2/A Colly).
9. Acknowledgement dated 02/11/1979 issued by registrar of firms is Ex. DW1/9 (already exhibited as DW2/A Colly).
22. Further, defendant has examined DW2 Sh Ashok Kumar who is a summoned witness ; Sh S Bachittar Singh as DW3 and relied upon the document i.e. Relinquishment deed dated 08.06.1988 as Mark A; DW 4 Sh Sanjay Gupta who is also a summoned witness; DW 5 Sh Rakesh who has relied upon the following documents i.e. letter dated 01.02.2018 which is Ex DW5/2 and summoned records (colly) which CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 14 /35 is EX DW5/3.
DW-6 ie concerned Record Clerk from Income tax department was also examined to prove the income tax record vide Ex.DW6/1. As per this witness, income tax pertaining to the year 1971 to 1976 is not available in the office as records are maintained only for a period of 10 years.
23. Vide separate statement recorded on 16.08.2018 of counsel for defendant no.1, DE stands closed.
24. I have heard ld counsel for parties and perused the case file. I have also perused the written submissions filed by both the parties.
25. My issuewise finding is as hereunder:-
26. Issue No.1. Whether Shri Atma Singh separated himself from the partnership of M/s Sabharwal and Brothers on 1st April, 1969 and settled his accounts and executed retirement deed dated 29-04-1969? OPD ?
AND Issue No.2. Whether Shri Atma Singh retired from the partnership of M/s Sabharwal and Brothers and released and relinquished his rights and share in the movable and immovable properties held by the CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 15 /35 partnership, including the suit property bearing Plot No.C-72, Rewari Line Industrial Area, Phase II, Mayapuri, New Delhi-110064? OPD Both issues are being taken up together since they require appreciation of evidence and facts which are interlinked with each other.
Onus to prove both issues were on the defendants since plea was taken in para no.6 of the Written statement of defendant no.1 & defendant no.2 and 3 respectively that Atma Singh had separated himself from the partnership of M/s Sabharwal and Brothers on 01.04.1969 and also executed retirement/settle deed dated 29.04.1969.
27. In order to prove issue No. 1 and 2, apart from defendant no.1 and defendant no.3, other witnesses were also examined on behalf of defendants. Defendant no.1 examined himself and deposed that Atma Singh had executed retirement/dissolution deed dated 29.04.1969. DW-1 deposed that accounts of partnership firm were settled in between the partners. DW-1 in his examination identified the signature of Atma Singh and other witnesses as mentioned in the retirement/settlement deed vide Ex.DW1/1. It was deposed by DW-1 that Atma Singh after retiring from the partnership business had surrendered all his rights and claims in the partnership business and properties including the suit property. DW1 also explained in his cross examination that two witnesses who were cited as witness in CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 16 /35 retirement deed Ex.DW1/1 are dead. DW1 admitted that he cannot produce the original partnership deed in respect of the partnership firm and whatever documents available with him are placed into the records. DW1 admitted that suit property was allotted in the joint name of three brothers by DDA. During the cross-examination, it was admitted by him that he did not have statement of account for the year 1969 and as per DW-1 since it was an old record, therefore he did not have the record of the case. DW-1 denied the suggestion of plaintiff that all partners have jointly applied loan for the construction of property and signed the application form for loan. DW-1 also denied the suggestion that Atma Singh had actively participated in the business of firm till 1988.
28. DW-3 i.e. Bachhittar Singh S/o Sh Pratap Singh was also examined. Pratap Singh was one of the partner of M/s Sabharwal and Brothers. Reading of cross examination would reflect that he was 57 years old when his evidence was recorded. DW-3 also stated that he is not personally aware about the execution of retirement deed Ex PW- 1/D1 (Ex.DW1/1). Witness expressed his inability to say anything with regard to Relinquishment Mark A and further stated that he cannot say whether relinquishment deed Mark A is forged and fabricated document.
29. Plaintiff i.e. Son of Atma Singh examined himself as PW-1 and CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 17 /35 he deposed on the lines of the fact stated in his plaint. At the time of his deposition, he was 58 years old. PW-1 deposed that he was aged about 9 years in the year 1965. PW-1 also deposed that Sh Atma Singh did not have any residential house in Delhi and further said that Atma Singh used to reside with Pratap Singh and Tara Singh. In his cross examination, plaintiff stated that he was not aware when did Atma Singh retired from the partnership business. PW-1 in cross examination also stated that he was not aware that his father Atma Singh had retired from Partnership Business/settled his account in the year 1969. During his cross examination, PW-1 admitted that he can identify signature of his father and admitted that his father used to sign in Urdu Language and denied the signature of his father appearing in the Retirement Deed Ex PW-1/D-1 (Ex.DW1/1). He denied the suggestion that after the year 1969, his father did not attend the affairs of the firm and volunteered that his father used to attend the work. He denied various suggestions with regard to the working of firm as put up by defendant. It is admitted in cross examination that Sh. Atma Singh did not have any residential property in Delhi In his cross examination, PW-1 deposed that prior to 1990, Atma Singh was residing at Delhi and also said that his father was not sharing things with him. He denied that his father retired from partnership firm business and stated that he shifted to Hissar in 1990. PW-1 admitted that suit property is partnership firm property and was not aware about the construction raised in the suit property.
CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 18 /35
30. PW-2/Pyara Singh is son-in-law of Atma Singh. In his cross examination, he deposed that he did not see Atma Singh undertaking any business at Hissar. He also deposed that he was married in the year 1958 and further denied the suggestion that Atma Singh was residing in Hissar since 1969 and stated in his cross examination that Late Atma Singh owned a plot in Delhi. He denied the suggestion that his father in law had left the partnership business in the year1969 and had retired from the partnership in the year 1988-89.
31. Suit property is partnership property as per averment made in the paragraph no.1 of plaint. Both plaintiff and PW-2 also deposed to the effect that suit property is partnership property. Furthermore conveyance deed dated 29.08.1967 was admitted by both the parties although none of the parties have led any formal evidence with regard to the allotment of the suit property vide conveyance deed and thus, property plot no.72 Block C, Rewari Industral Area, Mayapuri, Phase- II is a partnership property.
32. DW-1 appeared before the court and made an endeavour to prove the document Ex PW-1/D-1(also Ex.DW-1/1) i.e. retirement/ settlement deed and even identified the signature of Sh Atma Singh. He deposed that both the witnesses as mentioned in DW-1/1 are dead. Perusal of cross examination of DW-1 would reveal that in the cross CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 19 /35 examination, appearance of signatures of Atma Singh vide Ex DW-1/1 on the retirement deed Ex DW-1/1 were not put to serious challenge on behalf of plaintiff and even no suggestion was given to the effect that signature of Atma Singh is forged and fabricated. Moreover in the cross examination of plaintiff/PW-1 Amarjeet Singh had simply denied the signature of his father appearing in the retirement deed vide Ex.DW1/1. Once defendant no.1 being brother of Atma Singh identified the signature of Atma Singh and other witnesses, it was incumbent upon the plaintiff to disprove the signature of his father or to bring into record the last available signature of his father, either in his own evidence or in the rebuttal evidence. Defendant No. 1 both in his pleadings and also in his evidence took a categoric stand with regard to the signature of Atma Singh in retirement deed, however plaintiff did not make any attempt to establish that signature appearing on Ex.DW1/1 i.e. Retirement deed and conveyance deed dated 29.8.1967 were not of Atma Singh (conveyance deed is an admitted document between the parties) or there is any dissimilarity appearing in the signature in Ex DW-1/1 and Conveyance deed are forged and fabricated. It is pertinent to mention that Defendants have placed on record originals of both documents.
33. Plaintiffs also failed to bring into record any other signature of his father to disprove the fact that signature on Retirement deed are not that of Atma Singh. Plaintiff no.1 being his son and other legal CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 20 /35 heirs must be having access to different documents or writings of Atma Singh in documents such as bank account/passport/documents of property/ or any other documents having the signature of Atma Singh to disprove the fact that signature on Retirement Deed Ex.DW1/1 are not Atma Singh. Plaintiff has maintained complete silence in respect of the signature of Sh Atma Singh specially in a situation when defendants by way of documentary evidence has brought sufficient material on record to indicate the withdrawal of Sh Atma Singh from the affairs of partnership firm since 1969. As per section 67 of Indian Evidence Act document can be proved either by maker of the document or by the persons who have seen the maker of the document signing before him and on this account, defendants have established that signature of Atma Singh in Ex.DW1/1 since defendant no.1 was the partner and also brother of Atma Singh have identified the signature of Atma Singh and therefore, defendants have established that Ex.DW1/1 was executed by Atma Singh on 29.04.1969.
34. As said earlier, both issues are interrelated with each other and due execution of Ex.DW1/1 is further fortified from the fact that document is more than 30 years as on the date of recording of the evidence and therefore, seal of imprimatur has to be given to the document ExDW1/1 as per section 90 of Indian Evidence Act.
CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 21 /35
35. Other attendant circumstances duly establish that Sh Atma Singh had retired from the business of partnership firm M/s Sabharwal and Brothers. Plaintiffs failed to establish by any scintilla of evidence that Shri Atma Singh was participating in the business of partnership firm of M/s Sabhawal and Brothers or that Sh. Atma Singh was residing in Delhi during the period of 1969-1988 since plaintiff failed to disclose the place of residence or even place of stay of Atma Singh in Delhi during the period of 1969-1988 except stating that Atma Singh used to live with his brothers and it is not even the case of plaintiff that Shri Atma Singh was continuously residing with his brothers. Therefore, there is no evidence to the effect that Sh Atma Singh had ever participated in the affairs of the partnership firm post 1969.
36. Plaintiff/PW1 Amarjeet Singh who is son of Atma Singh deposed in the 2015, when he was aged about 56 years at the time of his deposition. Plaintiff must be aged about 13 years to 29 years during the period of 1969-1988, yet he failed to disclose as to what his father was doing in regard to the business of partnership during the period of 1976 to 1988 and even if one discount the fact that a man has no memory during his minority (age). Normal human conduct would tell that even an adult could retain memories of young age and in the present as on the date of retirement, plaintiff was aged about 32 years. Nothing much has been stated by PW-1 as to where he was residing, when his father was running partnership with other partners.
CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 22 /35 He also did not disclose where he and his other members of family were residing during in 1969-1988 and same probablises that there is a clear disconnect of Atma Singh with Partnership firm since 1969.
37. Even other witness i.e. Pyara Singh examined on behalf of the plaintiff did not say much with regard to state of affairs prevailing in the partnership firm and same fortifies disinclination of Late Atma Singh towards the affairs of the Partnership Firm.
38. Defendants have successfully proved the state of affairs during the period of 1969 to 1988 which is explicit from the fact that name of M/s Sabharwal and Brothers was registered in the year 1979 and in which the name of Tara Singh and Pratap Singh were shown as Partners of the firm.
39. DW-1/1( DW-2/A) is certificate of registration of partnership firm M/s Sabharwal and Brothers from the office of Sub-Registrar and certificate records the anme of defendant no.1 and Sh Pratap Singh as the partners of M/s Sabharwal and Brothers. This certificate records the name of M/s Sabharwal and Brothers having been registered on 02.11.1979 pursuant to application dated 11.09.1979.
40. Defendant has also attempted to prove Income tax returns for the year 1971-1972 and 1974-1975. Although defendant has made an CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 23 /35 endeavour to prove Income Tax Returns for the year 1971-1972 and 1974-1975 however, requisite record could not be summoned as same has been wedded out because of rules. Record of an assessee are retained only for the period of 10 years and furthermore, PAN number has not been alloted to M/s Sabharwal and Brothers. It is also noted that PAN number is mentioned in the record pertains to Tara Singh. ITR are not available and in the cross-examination, only objection that has been made by plaintiff on the ground that mode of proof being objected to. Since ITR for the relevant period are of old and not much challenge has been raised in respect of ITR and therefore, one can safely say that during the year 1971-72, Atma Singh has no relation whatsoever with the partnership firm and defendant has sufficiently proved IT Returns in respect of partnership firm.
41. Other documents were also filed by defendant. Ex.DW1/6 is one of the letter that is placed on record by the defendant stating that wherein acknowledgment was written to the effect that loan would be paid by remaining partners Sh Pratap Singh and Sh Tara Singh and redemption deed was also executed in favour of Sabharwal and Brothers vide Ex DW-1/7 and same shows that payment in respect of loan was made by partnership firm and possession of Redemption deed vide Ex DW-1/7 lends credence to the fact that it was remaining partners who were having control over the firm.
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42. Ex.DW-5/3(Colly) is Certificate of Registration with Sales Tax Department and same shows registration of the firm with Sales Tax Department. DW-1/5(3) Colly also contains copy of Application for grant of authorization for purchase of First Point Goods and said document records the name of Shri Tara Singh and Partap Singh having no. 2175 dated 18/6/1986 is written on it. Other documents as placed with Sales Tax Department i.e. Application for grant of an authorization having diary entry no. 5777 dated 14.1.1976 and same was approved on 26.3.1976 and it records the name of Tara Singh and Partap Singh only. Summoned record also contains attested Copy of Ex DW-1/1 and all these documents over the period of time as maintained by Government department also fortifies total exclusion of Atma Singh from the affairs partnership firm.
43. Documents as placed on record by defendants coupled with testimonies of witness examined on behalf of defendants establish that Tara Singh and Pratap Singh were associated with the affairs of the partnership firm after 1969. No document/evidence is brought on record to establish that during 1969-1988, Sh Atma Singh was working as partner in firm and if Atma Singh was associated with the affairs of Partnership Firm, then he must be having some documents to establish that he was working as partner but plaintiff did not place on record any document to establish that prior to 1988, Shri Atma Singh had any association with partnership firm.
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44. Retirement deed/dissolution deed( In urdu it is written as Dastawez faskh Shirkat nama meaning Document of Cancellation of Partnership) records that accounts have been settled in between the parties and Atma Singh shall has no concern with the suit property or anything with the affairs of partnership firm. Further reading of Ex DW1/1 talks about the inter se settlement and separation of Atma Singh from Parnternship firm and its property and same does not convey any right in immoveable property by a partner to another partner although it merely mentions the name of suit property. The interest of a partner in partnership assets comprising of moveable and immoveable property should be taken only as moveable property. His right during the insistence of the partnership is to get his share of the profits from time to time, as may be agreed upon among the partners and his right after dissolution of partnership, or with his retirement, or the partnership is only to receive the money value of his share in the net partnership assets as on the date of dissolution or retirement after a deduction of liability. Hence, Ex DW1/1 does not require any registration. This view was also reiterated in the Commissioner of Income Tax, West Bengal, Calcutta vs Buddhilal Kamlapat AIR1967
401. The deed of relinquishment was in respect of individual interest in the assets of original firm did not require registration even though the assets of that firm included immoveable property.
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45. In V J George vs V V George, SA no. 339/01 dated 09.04.2010 (2010(2)KLJ 692) passed by Hon'ble High Court of Kerala after referring to various text books in para no. 6, it was held as under and it was also held in para no 7 that the deed of release of share in partnership by a partner even though the partnership owns immoveable property is not required to be registered as an instrument under Sec 17(i)(b) of Registration Act i.e. because even though the partner may be the co-owner of partnership property, he has no right to ask for a share in that property, but only that the partnership business would be wound up including sale of the immoveable property and to ask for his share in the resultant asset.
46. Ld Counsel for Plaintiff has relied upon N. Khaderwali VS N. Gudu Sahib(Dead) and Others (2003)SCC 229 in support of his contention that assets of the firm after dissolution shall belong to each partner individually. The judgment as cited is not applicable in reference to the present case in view of the discussion as mentioned above as after settlement of accounts such a claim has to preferred in terms of Article 5 of Schedule 1 of Limitation Act and said judgment has been passed in reference to the issue whether an award in respect of residue assets of partnership firm require registration or not. Therefore, Ex.DW1/1 does not require compulsory registration and hence, the said document Ex.DW1/1 can be read in evidence and relied upon.
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47. There is substantial merit in the contention of Ld Counsel for defendant to the effect that as per the case of Plaintiff that Shri Atma Singh has left the business of partnership firm in 1988 by retaining his share in the partnership firm and he died in 2004 without telling anything to his legal heirs, points out that Shri Atma Singh has no connection with partnership firm pursuant to his retirement which is demonstrated from his conduct of not being in touch with the affairs of partnership and it fortifies the case of defendant that deceased Atma Singh has no concern with the partnership firm.
48. In normal course of human conduct, a person having an interest in property or a legacy, would express his involvement in the affairs or business, either directly or indirectly, by showing his assertion in the by participating in the business of partnership firm. In the instant case, there is absolutely no shred of evidence which indicates that Shri Atma Singh had participated in the business of partnership firm at any time during 1969 to 1988. It would be apt to consider Section 12 (a) of Partnership Act , which provides that all partners of partnership firm has right to participate in the business of partnership in equal manner and even has right to inspect the business of the partnership firm.
49. Defendant No. 2 i.e. LRs of deceased Pratap Singh took a plea in their written statement that deceased Atma Singh have executed a CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 28 /35 relinquished deed in favour of Pratap Singh and Tara Singh dated 08.06.1988 and said Relinquishment deed was found in the record of deceased Pratap Singh. As per plaintiff/PW1, relinquishment deed dated 08.06.1988 was verified by him through Right to Information Act, 2005 (RTI) from the office of Sub Registrar and as per information received, the so called Relinquishment deed dated 08.06.1988 was forged and fabricated.
50. Since, retirement /dissolution deed vide ExDW1/1 was already executed by Atma Singh, there could have been no reason for execution of another relinquishment Deed. Moreover, during the evidence, defendant did not take any step to prove relinquishment deed dated 08.06.1988. Hence, even if same is eschewed out of consideration of the present case, no benefit could be given to the plaintiff.
51. In view of the above mentioned discussion, issue No. 1 and 2 are decided against the plaintiffs and in favour of defendants.
52. Issue No. 3Whether the suit in the present form is not maintainable? OPD As discussed earlier, plaintiff has sought partition of the suit property. In paragaraph No. 2, it is pleaded that suit property was CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 29 /35 allotted to the partnership firm. It is also pleaded that Sh Atma Singh had retired from the affairs of partnership firm in the year 1988 by retaining his 1/3rd share in the suit property. The question for determination is whether a partner who has retired from the affairs of the partnership firm could claim lien/right in respect of specific properties of a partnership firm. Although, it was held in preceding paragraphs that Atma Singh had retired from partnership firm in 1969 and if one considers the case of plaintiff as per his own pleadings that plaintiff has retired in the year 1988 and the firm continued with its business after retirement of Atma Singh, meaning thereby that plaintiff is asserting his claim in respect of the specific property of a partnership firm. As per Section 14 of Partnership Act, 1932 subject to contract between the partners, the property of the firm includes all property and rights including goodwill of the firm. Conveyance deed dated 29.8.1967 executed by DDA is in favour of the partnership firm M/S Sabharwal and Brothers. Hence, claim of plaintiff to seek partition in respect of 1/3 share in suit property cannot be sustained as suit property was property of partnership firm M/s Sabharwal and Brothers.
53. Section 37 of Partnership Act, 1932 provides that when any member of a firm has died or ceased to be a partner and the surviving partner or the continuing partners carry on the businesses of the firm with the property of the firm without any final settlement as between CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 30 /35 them and the outgoing partner or his estate, then in the absence of the contrary, the outgoing partner or his estate is entitled at the option of himself or his representatives to such share of profits since he seized to be a partner as may be attributable to the use of his share of property of the firm or interest at the rate of 6 % per annum on the amount of his share in the property of the firm. In present case, it is the case of plaintiff that Shri Atma Singh had retired from the partnership in the year 1988 and once Shri Atma Singh had retired, the affairs of partnership firm would be conducted in between Amarjeet Singh and Pratap Singh and claim of plaintiff is confined to specific property of partnership firm and furthermore after execution of settlement/retirement deed, no right of Atma Singh is left in partnership firm.
54. Once, partner had retired from the business of partnership by executing a settlement/retirement deed, claim of such a partner or his Legal Representative would be governed by Article 5 of Schedule I of Limitation Act and by virtue of this analogy, right of Sh Atma Singh, to seek assets for the assets of a firm at the best would come to an end in 1991. Even if one takes the best possible case forward for the plaintiff, it is apparent that such a right of partner or his Legal Representatives shall extinguish in respect of the property of the partnership firm after three years from the date of death of Atma Singh, who died on 12.9.2004, meaning thereby that suit at the best CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 31 /35 could have been filed on or before 12.09.2007 where the present suit was filed on 18.11.2013.
55. In K Gopala Chetty (deceased) & anr. Vs. T. G. Vijay Raghavacharyar, AIR 1922 PC 115 (Volume XXVI of Calcutta Notes at page 983) It was held that "if no account have been taken and there is no constant that the partners have squared up, the proper remedy when such an item falls in is to have the accounts of partnership taken and if it is too late to have recourse to that remedy, then it is also too late to claim a share in an item as part of the partnership assets, and the plaintiff does not prove, and cannot prove that upon the due taking of the accounts, he would be entitled to that share. "
56. In reference to case as set up set up by the plaintiff himself, Atma Singh retired in 1988 and died in 12.09.2004 and. Therefore, the claim of plaintiff would also be barred by Limitation. It is relevant to note that even if one takes the date of retirement or the date of death of Sh Atma Singh, Whether partnership firm continued with the business or not, the claim has to be preferred within a period of three years. The partnership firm has been reconstituted in the year 1969 itself or assuming the best case scenario for the plaintiff in the year 1988, no right whatsoever in respect of any specific property of the partnership firm would not remain with the plaintiff or his father Atma CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 32 /35 Singh. Hence, the suit as filed by plaintiff in its present form would not be maintainable even if one takes the year of 1969, 1988 or 2004.
57. Therefore, at the most plaintiff might seek an account or the share in profit only to the extend @ 6 % per annum and even such a claim is barred by limitation by application of article 5 of Schedule I of the Limitation Act. It would be appropriate to rely upon Gopi Nath Vs. Satish Chandra AIR 1964 Allahabad 53 in which it was held that a suit between surviving partners and representatives of deceased partners have to be filed within the period of limitation as contemplated under Section 106 of Limitation Act,1908 (i.e article 5 of Schedule I of Limitation Act, 1963). Accordingly, issue no.3 is decided against plaintiffs and in favour of defendants.
58. Issue No.4 : Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD Onus to prove this issue was on the defendants as objection was raised that suit was not properly valued for the purposes of court fees and jurisdiction. This plea was only taken in the written statement however, during the course of trial no evidence was produced by the defendants to state the value of the suit property for the purposes of court fees and jurisdiction. Since defendants failed to prove the aforesaid issue, accordingly issue No. 4 is decided against CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 33 /35 defendants and in favour of plaintiffs.
59. Issue No.5 Whether the plaintiffs are entitled to a decree for mandatory injunction to have 1/3rd share in the suit property mutated in their names in the record of DDA? OPP Since plaintiff does not have any right, title or interest in the suit property and therefore, no decree of mandatory injunction can be passed requiring DDA to mutate the name of LRs of Atma Singh in the record of DDA in respect of the suit property. Accordingly, issue No. 5 is decided against the plaintiff and in favour of the defendants.
60. Issue No.6 to 8Issue No.6:- Whether the plaintiffs are entitled to partition of the suit property with its separate possession of 1/3rd share held by the deceased S. Atma Singh? OPP Issue No.7:- Whether the plaintiffs are entitled to a decree for perpetual injunction against the defendants, as prayed for ? OPP Issue No.8:- Whether the plaintiffs are entitled to mesne profits/damages in respect of their 1/3rd share in the suit property, and if so, for what period and at what rate? OPP In view of the findings as recorded in issue no.1, 2and 3, CS No. 8648/16 Amarjeet Singh & Ors Vs. Tara Singh & Ors. Page no. 34 /35 plaintiff, all these issues are decided against the plaintiff and in favour of defendants. Since plaintiff has no right in respect of the suit property so plaintiff, therefore, plaintiff would not be entitled to seek partition with separate possession, perpetual injunction and mesne profits. Hence, issue no. 6 to 8 are decided against the plaintiffs and in favour of defendants.
61. Relief In view of the findings as recorded on issue no.1, 2,3,5,6, 7 and 8, the suit filed by plaintiff is dismissed. No order as to cost.
Decree sheet be prepared.
File be consigned to record room as per rules.
Announced in the Open Court
on 29.02.2020 (Hasan Anzar)
Additional District Judge-06
West District, THC
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