Delhi District Court
Shri Gulshan Rai vs Shri Krishan Lal on 3 September, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
Suit No. 9575/2016
In re :
Shri Gulshan Rai
S/o Late Arjun Dass
R/o 1st and 2nd Floor,
House Bearing No. A-181, Gujranwala Town,
Delhi-110 033 ...... Plaintiff
Versus
1.Shri Krishan Lal
S/o Late Arjun Dass
R/o Ground Floor
House Bearing No. A-181, Gujranwala Town,
Delhi-110 033.
2. Shri Chaman Lal
(Since deceased and his LRs were dropped vide order dated 02.03.2016)
S/o Late Arjun Dass
R/o Ground Floor,
House Bearing No. A-180, Gujranwala Town,
Delhi-110 033.
3. Shri Gurcharan Lal,
S/o Late Arjun Dass
R/o 1st and 2nd Floor
House Bearing No. A-180, Gujranwala Town,
Delhi-110 033.
4. Delhi Development Authority
Vikas Sadan, INA, New Delhi,
Through its Vice Chairman
...... Defendants
Date of institution of present suit : 29.01.2003
Date of receiving in this court : 01.02.2016
Date of hearing arguments : 10.08.2016
Date of Judgment : 03.09.2016
Suit for Declaration, Specific Performance and Injunction
Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 1 of 36
JUDGMENT
This judgment shall dispose of the suit filed by Plaintiff against defendant seeking decree of declaration, specific relief and injunction.
1. Brief fact of the case as set out in the plaint is that the plaintiff, defendant and their two other brothers i.e. Sh. Chaman Lal and Gurcharan Lal used to live jointly in Moti Nagar, Delhi. When the size of the families of all the four brothers grew in size, a need was felt to acquire more properties. Thus, the parties alongwith their two other brothers and their mother decided to acquire two plots in Gujranwala Town, Delhi. The parties inquired about the allotment of the plots in Gujranwala Town, Delhi and came to know that the plots can be alloted only in the name of one person and not jointly. Thus, it was decided that two adjacent plots will be purchased by two of all the brothers and the other two brothers would share the cost and later on the brothers in whose name the plots would be purchased, would execute the sale documents in favour of the other brothers. With this understanding two plots in Gujranwala Town were purchased i.e. one plot bearing no. A-180 and another plot bearing no. A-181. Plot no. A-180 was purchased in the name of Gurcharan Lal and sublease was executed in his name. Similarly the plot bearing no. A-181 was purchased in the name of the defendant No. 1 i.e. Krishan Lal and later on the plaintiff i.e. Gulshan Rai shared the cost of the plot with Krishan Lal and in plot no. A-180, Sh. Chaman Lal shared the cost with Gurcharan Lal. Thus, in pursuance of the joint understanding between the plaintiff and the defendant No. 1 the suit plot was acquired vide perpetual sub- lease deed dated 23.12.1970 which was executed and registered in the name of the plaintiff on 18.01.1971. As per the terms of perpetual sub lease the plot could be registered/transferred only in the name of one person and other could be made a partner only by Agreement. In the year 1971 the said plot was got transferred in the favour of defendant no. 1 and the perpetual sub lease dated Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 2 of 36 23.12.1970 was executed and registered in the name of defendant no. 1 on 18.01.1971. An agreement was executed by and between defendant no. 1 and the plaintiff on 29.07.1972 on the terms and condition agreed for sharing the plot equally and for raising the construction by spending money equally and all other things in respect of property equally.
2. It is further averred that parties agreed vide agreement dt 29.07.1972 that the above said plot and the house to be constructed over it shall be the property of the plaintiff and defendant No.1 in equal shares in ownership, sub lease and all other rights. It has been further averred that both defendant no. 1 and plaintiff invested the amount of Rs. 80,000/- each in the aforesaid property. It has been mentioned that in accordance with the terms and conditions of the said agreement, plaintiff paid Rs. 4900/- (one half of the price) to the defendant no. 1 vide cheque No. 374904 dated 02.11.1976. It is further averred that on 13.02.1976 Rs. 1271.07 each was paid by the plaintiff and the defendant no. 1 as House Tax and that on 29.12.1975 both plaintiff and defendant no. 1 paid lease for the year 1975-76. It has been further averred that two separate plans were got sanctioned from the defendant no. 4 for construction of ground floor on 19.07.1972 for the defendant no. 1 and on 29.11.1972 for construction of 1st and second floor for the plaintiff and since the day of the completion of construction, the defendant no. 1 is in possession of the ground floor and the plaintiff is in the possession of first and second floor exclusively. Adjoining property bearing no. A -180, Gujranwala Town, was similarly owned by the defendants No. 2 and 3 through the perpetual sub lease which was in the name of defendant no. 3 alone but all the costs, expenses and investment in respect of above said property was borne by defendants 2 and 3 equally.
3. It has been further averred that agreement dated 03.12.1977 was entered into by all the four brothers with regard to two properties i.e. A-180 and A-181 Gujranwala Town Delhi-33 wherein it was agreed that the Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 3 of 36 defendant no. 2 would be the owner of the ground floor of A-180 and the defendant no. 3 would be the owner of first and second floor with right of construction of second and third floor of the said property. Similarly, defendant no. 1 would be owner of ground floor in respect of property A-181 and plaintiff would be owner of first and second floor with right of further construction on the 2nd floor and the said agreement was duly signed and acknowledged by all the four brothers. It has been further averred that defendant no. 1 filed appeals before the Appellate Assistant Commissioner of Income Tax, C Range, New Delhi and it was held by the said Commissioner that the defendant no. 1 is the owner ½ of the property bearing no. 181, Gujranwala Town, Delhi and the other ½ is owned by the plaintiff.
4. It has been further alleged that defendant no. 1 with ulterior motives and to cause loss and injury to the plaintiff started holding out himself to be the exclusive owner of the entire property and plaintiff to be tenant in the portion of the property. It has been further alleged that defendant no. 1 had issued a false and baseless notice and he claimed himself to be the exclusive owner of the suit property and plaintiff as his tenant.
5. It has been further averred that plaintiff requested the defendant no. 1 to desist from holding out himself to be the exclusive owner of entire suit property and further requested him to admit the plaintiff to be the owner of half property which is already in physical possession of the plaintiff i.e. first and second floor with roof and get the property converted into free hold from DDA but the defendant no. 1 has not cared. It is further averred that the defendant no. 1 filed the suit titled as Krishan Lal Manchanda v. Gulshan Rai Manchanda for relief of declaration, mandatory injunction, damages and stating various false and concocted facts and he (defendant no. 1) also filed false and fabricated agreement dated 08.12.1984 with a view to take advantage of the same and create false evidence. During the pendency of the present suit the defendant no. 1 and his son attempted to take forcibly possession of the Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 4 of 36 suit property and defendant no. 1 had not acceded to the requests of the plaintiff and had refused to desist from casting cloud on the ownership right of the plaintiff in respect of ½ of the property and further had refused to desist from putting his threats of dispossession of the plaintiff from the said first and second floor of the property, hence the present suit filed.
6. Summons of the suit was served upon the defendants who appeared. Defendant No.1 filed written statement wherein raising preliminary objection that plaintiff was relying upon forged and fabricated documents in order to seek specific performance and equitable relief of declaration and injunction; that plaintiff had relied upon various documents which are not stamped, verified and registered in accordance with due process of law; that the plaint was liable to be rejected under the provisions of Order VII Rule 11 of CPC; that plaintiff cannot acquire any right, title or interest in the property in question on payment of a sum of Rs 4900/- until and unless there was a registered agreement of sale; that suit of the plaintiff was barred by limitation, that suit was barred under the provision of Section 41 (h) of Specific Relief Act; that plaintiff had acknowledged receipt of his loan to defendant no. 1 and gave up all rights, title and interest, if any, in the suit premises, that suit of the plaintiff is liable to be rejected on the ground that there was lack of any cause of action.
7. On merits, plaintiff did not deny the execution of the agreement dt 29.07.1972 and 3.12.1977 but pleaded that due to lack of registration and stamp duty same is nonest in the eyes of law. Spending money by the plaintiff on the construction of the suit property was not specifically denied. It was pleaded that plaintiff had advanced to defendant No.1 a sum of Rs 85,000/- at the time of acquiring the suit property out of which Rs 83,000/- was arranged by the defendant No.1 himself from his friends and relatives on his personal guarantee. Plaintiff failed to return the same which caused great embarrassment to defendant No.1. As plaintiff failed to return the said amount Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 5 of 36 to friends and relative, a family settlement dt 8.12.1984 was arrived at whereby plaintiff received a sum of Rs 90,000/- out of which Rs 83,000/- was to be paid to friends and relatives and executed agreement dt 8.12.1984 and gave up all his right, title, interest, if any, in the suit property. However, since mother of the parties was alive plaintiff was allowed to live on the first floor of the property and even after the death of mother he was allowed to continue purely as gratuitous licensee out of sheer brotherly and affection. Subsequently plaintiff indulged in illegal activity and he was asked to vacate but plaintiff filed the present false suit.
8. Plaintiff filed replication reiterating the contents of the plaint and denying the contents of written statement filed by the defendant No.1. Plaintiff denied any such agreement dt 8.12.1984 or that it bears his signature.
9. Defendants No. 2 and 3 supported the case of the plaintiff. Defendant no. 4 filed written statement thereby objecting that suit is not maintainable in view of lack of notice under Section 53B of Delhi Development Act. Moreover, no relief was sought against the defendant. It is further submitted that mutation of the plot in the joint names can only be done as per the terms and conditions of the sub-lease deed, applicable policy and as per law.
10. On the pleadings of the parties following issues were framed by the predecessor of this court:-
1. Whether agreement to sell dated 29.07.1972 requires compulsory registration as alleged by the defendant No.1 in his written statement? If so its effect? OPD1
2. Whether the agreement to sell dt 29.07.1972 is not properly stamped? If so its effect? OPP
3. Whether the family settlement dated 3.12.1977 requires compulsory registration as alleged by the defendant No.1? If so its effect? OPD1 Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 6 of 36
4. Whether family settlement dated 3.12.1977 is not properly stamped? If so its effect?OPD1
5. Whether the present suit is within the period of limitation? OPP
6. Whether defendant No.1 had returned the loan amount to the plaintiff in the year 1984-85? If so its effect? OPD1
7. Whether plaintiff is entitled to the decree of declaration as prayed for? OPP
8. Whether plaintiff is entitled for the decree of specific performance of the agreement and family settlement dt 29.07.
and 3.12.1977 respectively?OPP
9. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
10. Relief
11. In order to prove his case plaintiff examined himself as PW-1 who tendered his affidavit in examination-in-chief as Ex. PW1/A and relied upon documents i.e. Agreement dated 29.07.1972 Ex. A (Ex. DW1/P3)( Ex DW2/P3), Letter dated 19.11.1976 Ex. A2 (Ex. DW1/P1), Pass Book Ex. PW1/1, Agreement dated 03.12.1977 Ex. A42 (Ex. DW2/P2)(Ex DW2/P2), Order of Assessment Ex. A3, Ex. A5, Ex. A6, Ex. A11 to Ex. A21 passed by Income Tax & Wealth Tax, Written Arguments filed by defendant No.1 to Income Tax Authority Ex. PW1/2, Certified copies of Orders of Assessment passed by the said Income Tax/Wealth Tax Ex. PW1/6, Ex. PW1/7, Ex. PW1/8, Ex. PW1/9, Ex. PW1/10, Ex. PW1/11, Ex. PW1/12, Ex. PW1/13, Ex. PW1/14, Ex. PW1/15 and Ex. PW1/16, Reply dated 20.05.2002 Ex. PW1/4, Reply dated 19.01.204 Ex. A10, Notice dated 29.12.2003 Ex. A9 (Ex. DW2/P1), Site Plan Ex. PW1/3, Affidavits of defendant nos. 2 and 3 Ex. PW1/16A and Ex. PW1/16B, Original Tax Receipts Ex. PW1/17 to Ex.PW1/19, Other property receipts Ex. PW1/20 (13 colly.), Two Receipts by valuer Ex. A40 and Ex. A41, Certificate of exemption of property tax Ex.
Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 7 of 36 PW1/21, Lease Tax Receipt Ex. PW1/22 (colly.), Public Notice dated 27.11.2000 Ex. PW1/23, Application to DDA Ex. PW1/24, Electricity Bills Ex. PW1/25 to Ex. PW1/34, Cash Receipts and Water Bills Ex. PW1/35 to Ex. PW1/14 and Telephone Bills Ex. PW1/48 to Ex. PW1/60. He was cross- examined by the defendant. After which, plaintiff closed his evidence.
12. In support of their case, defendants No.1 examined defendant no. 1 as DW-1 who tendered his affidavit in examination-in-chief as DW1/1 and relied upon documents i.e. Perpetual Lease Deed dated 23.12.1970 Ex. DW1/A, Site Plan Ex. DW1/B, Mortgage Deed Ex. DW1/C, Agreement dated 08.12.1984 Ex. DW1/D, FSL Report dated 07.03.2006 Ex. DW1/E, Report of Directorate of Forensic Science dated 22.06.2006 Ex. DW1/F, Agreement dated 28.04.2004 Ex. DW1/G, Photographs Ex. DW1/H (colly.), Negatives Ex. DW1/I (colly.), Site plan of 2nd floor Ex. DW1/J, Legal Notice dated 29.12.2003 Ex. DW1/K, Reply dated 19.01.2004 Ex. DW1L, No dues letter of DDA dated 16.01.1996 Ex. DW1/M and Lease Money Receipts Ex. DW1/N (colly.). He was cross-examined by the plaintiff. Defendant No.1 also examined Sh. Vimal Manchanda as DW-2 who tendered his affidavit in examination-in-chief as Ex. DW2/1. He relied upon the same documents relied upon by DW-1. He was cross-examined by the plaintiff. After which, defendant's evidence was closed.
13. Respective counsels for parties have addressed arguments and have also filed brief written synopsis. This court went through the pleadings, evidence and material on record.
14. However, before recording issue wise findings it is worthwhile to note here that defendant No.1 herein has also filed suit for declaration, mandatory injunction and damages against the plaintiff herein which is also being decided simultaneously vide separate judgment of even date . Both suits were consolidated for the purpose of leading evidence treating the present suit Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 8 of 36 as the lead case. Since both files are before this Court, therefore, common facts as appearing from pleadings of both the case have also been taken into consideration. Though defendant No.1 got himself dropped as witness on the statement given by his son but since no authorisation in favour of his son Vimal Manchanda was found on record, therefore, his testimony has also been taken into consideration. Issue wise findings of this Court are as under :-
ISSUE No.1:- Whether agreement to sell dated 29.07.1972 requires compulsory registration as alleged by the defendant No.1 in his written statement? If so its effect? OPD1 ISSUE No.3:- Whether the family settlement dated 3.12.1977 requires compulsory registration as alleged by the defendant No.1? If so its effect? OPD1
15. Both issues are being taken up together as the same requires discussion of common provision of law in the light of common facts. Onus to prove these issues is upon the defendant No.1. Agreement dt 29.07.197 Ex-A1 (Ex DW2/P3) and agreement/family settlement dt 3.12.1977 Ex A-42 (Ex DW2/P2) are admitted document. Execution of these agreements dt. 29.07.197 Ex-A1 (Ex DW2/P3) and agreement/family settlement dt 3.12.1977 Ex A-42 (Ex DW2/P2) has not been disputed expressly in the written statement nor has been disputed in the cross examination of plaintiff's witness, although plea of these being forged and fabricated was taken in the written statement. But during admission-denial Counsel for Defendant No.1 admitted these documents for him. There is no plea that these documents were signed by defendant No.1 when same were blank. DW1 in examination in chief and DW2 in his cross examination have also admitted its execution. Sum and substances of the above discussion is that execution of these agreements is not in question, otherwise there would have been specific issue regarding these agreements about the execution of the same between the parties.
16. Neither plaintiff nor defendant No.1 has called agreement dt Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 9 of 36 29.07.1972 Ex A-1 (Ex DW2/P3) as an "agreement to sell". It appears that this terminology crept in may be in juxtaposition of relief of specific performance. Be that as it may, in these issues question is whether the agreement Ex A-1( Ex DW2/P3) and agreement Ex A-42(Ex DW2/P2) requires compulsory registration.
17. Contention of the defendant No.1 is that since plaintiff is basing his claim on the agreements dt 29.07.1972 Ex-A1 (Ex DW2/P3) and agreement dt 3.12.1977 Ex A-42 (Ex DW2/P2) and therefore these being document covered by the provision of Section 17(1)(b) of The Registration Act require compulsory registration and therefore in view of Section 49 of the said Act these cannot be received as evidence of any transaction affecting property.
18. On the other hand plaintiff has relied upon the proviso to Section 49 of The Registration Act to contend that agreement dt. 29.07.1972 Ex- A1( Ex DW2/P3) and agreement dt 5.12.1977 Ex A-42 ( Ex DW2/P2) do not require registration.
19. There is no dispute about the contents of agreement dt. 29.07.1972 Ex A-1( Ex DW2/P3) and agreement dt 3.12.1977 Ex A-42 (Ex DW1/P2) nor is there any allegation of defendant No.1 about Ex-A1 & Ex- A- 42 of having been obtained/executed under fraud, misrepresentation etc. Thus, agreement Ex A-1 was executed by the parties with senses, consent and with intent to make it binding between the parties.
20. Perusal of Ex-A1 shows by virtue of the same plaintiff and defendant No.1 have agreed to share the lease hold rights of the suit plot in equal share for which plaintiff would pay Rs 4900/- (50% of the purchase money) to defendant No. 1 and both parties would equally invest in the construction of a house on the plot. It was further agreed that ownership and Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 10 of 36 all other rights in the plot No. A-181 would vest equally. All the expenses on construction of a house on this plot would be borne by the parties in equal share and for all intent and purpose the plot and the house to be constructed over the said plot would be properties of the parties in equal share.
21. Similarly, perusal of the agreement dt 3.12.1977 Ex A-42 (DW2/P2) shows that by virtue of this agreement four brothers i.e. plaintiff and defendants No.1, 2 and 3 have entered into an understanding/settlement in respect of two properties i.e. A-180 and A-181, Gujranwala Town, Delhi. Property No. A-180 has been divided between defendant No.2 and 3 whereas property No. A-181 (suit property) was divided between plaintiff and defendant No.1. As per this defendant No.1 was to be exclusive owner of ground floor portion and plaintiff was to be exclusive owner of 1 st Floor and 2nd Floor with right of construction. Certain portion was to remain common and they have also agreed how the common portion is to be maintained etc.
22. Bare perusal of the terms of the agreements Ex A-1 and Ex A-42 reveals that these documents itself are not creating extinguishing or otherwise limiting the right, title or any interest in the parties vis-a-vis DDA and public at large. Admittedly, these agreements will not have overriding effect over the perpetual lease deed which was admittedly executed in favor of defendant No.1. Therefore, it cannot be said that by executing the said agreements defendant created, extinguished or limited his title in the plot vis-a-vis the DDA and public at large. This was purely an arrangement, an understanding between two brothers and was to remain in operation till perpetual lease in the plot could be executed in joint name. This was an internal understanding. This was executed so that in future there may not be disagreement in the families and parties could live with peace with their respective families and when ripe time would come necessary documents could be executed i.e. execution of perpetual lease deed in joint name. It was for peaceful co-existence and made with clear and pure heart. It was based on trust equity and good conscience.
Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 11 of 36 This was executed to hold each other bound to in case one resile from the said agreement/understanding/arrangement. This document was not executed to allow plaintiff to claim right, title or interest in the property directly vis-a-vis DDA, though it was a agreed that benefit of exemption etc could be claimed in income tax and wealth tax. These agreements of course were executed so that one should not resile from the terms recorded therein and also to remind each other how and what manner they have to enjoy the property together and also to remind that when ripe time would come one has to help other to get himself establish as co-owner to the extent agreed by executing necessary documents. In view of this, agreements Ex A-1 and Ex A-42 do not require registration.
23. In any case in the present case plaintiff has also claimed the relief of specific performance of these agreements Ex-A1 and Ex A-42 and therefore proviso to Section 49 of The Registration Act 1908 comes into operation which proviso itself declares that for relief of specific performance, agreement is not required to be registered.
24. If it is held that right, title or interest in respect of immovable property of value of Rs 100 upward was created, extinguished or limited by virtue of agreements dt 29.7.1972 Ex A-1 ( Ex DW2/P3) and agreement dt 3.12.1977 Ex A-42 (Ex.DW2/P2), even then for being effective and binding between the parties, agreements Ex A-1 and Ex A-42 does not require registration being a family arrangement/settlement.
25. In the decision AIR 1976 SC 807, Kale v. Deputy Director of Consolidation, Their Lordship of the Hon'ble Supreme Court held that a document which effected partition as distinct from a document which contains terms and condition and recitals of an oral partition requires registration but in para 38 to 42 of the judgment, Their Lordships dealt with the issue of estoppel where a party challenged a family settlement by and under document which requires registration.
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26. Under Section 17 of The Registration Act, a document creating or extinguishing a right, title or interest in immovable property requires compulsory registration and in the absence thereof cannot be relied upon to assert a right, title or interest in a property. But this is part of substantive law. Rules of evidence recognises estoppel. The two laws operate in their respective fields. A grant may be fed by estoppel. In para 38 of Kale's decisions (supra), Their Lordship held:
"Assuming, however, the said document was compulsorily registrable the Courts have generally held that a family arrangement being binding on the parties to it would operate as an estoppel by preventing the parties after having taken advantage under the arrangement to resile from the same or try to revoke it. This principle has been established by several decisions of this court as also of the Privy Council. In Kanhai Lal Vs Brij Lal, 45 Ind app 118 at p 124: ( AIR 1918 PC 70 at p. 74) the Privy Council applied the principle of estopple to the facts of the case and observed as follows:
"Kanhai Lal was a party to that compromise. He was one of those whose claims to the family property, or to shares in it, induced Ram Dei, against her own interest and those of her daughter, Kirpa, and greatly to her own detriment, to alter her position by agreeing to the compromise, and under that compromise he obtained a substantial benefit, which he has hitherto enjoyed. In their Lordships' opinion he is bound by it, and cannot claim as a reversioner."
27. In the decision (1973) 2 SCC 312, S. Shanmugam Pilllai v. K. Shanmugam Pillai, Their Lordship observed:
"Equitable principles such as estopple, election, family Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 13 of 36 settlement etc are not mere technical rules of evidence. They have an important purpose to serve in the administration of justice. The ultimate aim of law is to secure justice. In the recent time in order to render justice between the parties, Courts have been liberally relying on those principles."
28. In para 44 of the decision in Kale's case( supra), Their Lordships held:
"The High Court further erred in law in not giving effect to the doctrine of estoppel which is always applied whenever any party to the valid family settlement tries to assail it. The High Court further erred in not considering the fact that even if the family arrangement was not registered it could be used for a collateral purpose, namely, for the purpose, of showing the nature and character of possession of the parties in pursuance of the family settlement and also for the purpose of applying the rule of estoppel which flowed from the conduct of the parties who having taken benefit under the settlement keep their mouths shut for full seven years and later try to resile from the settlement. In Shyam Sunder V. Siya Ram, AIR 1973 All 382, 389 it was clearly held by the Allahabad High Court that the compromise could have been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title. The High Court observed as follows: The decision in Ram Gopal v. Tishi Ram, AIR 1928 All 641(FB) is clear that such a recital can be relied upon as piece of evidence.
x x x x x It is clear , therefore, that the compromise can be taken into consideration as a piece of evidence.
Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 14 of 36
x x x To sum up, therefore, we are of the view
that the compromise could have been releid upon as an
admission of antecedent title."
29. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving its honour.
The agreement may be implied from a long course of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term " family arrangement"
is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The Court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to consideration which, in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transaction between strangers are not objections to the binding effect of family arrangements."
30. A bonafide family settlement/arrangement which resolves family dispute and rivals claim or is executed preserving family property Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 15 of 36 or for the peace and security of the family by a fair and equitable arrangement or distribution, if acted upon would bind the parties and even if such instrument is unregistered, the documents is evidence of conduct of the parties. Estoppel can be invoked to estop a party from urging to the contrary.
31. An argument would be raised that in a family settlement or arrangement parties have antecedent title and a person having no title at all cannot be called to have antecedent title and therefore if by such an arrangement a right, title or interest is created for the first time, then such documents would require registration. It would be argued that in the present case admittedly suit plot was allotted to defendant No.1 who had deposited the allotment/purchase money of Rs 9800/- and therefore till the date of execution of agreement Ex-A1 or Ex A-42, plaintiff did not have any title, right or interest in the property and since plaintiff's all right for the first time began to flow from Ex- A1, therefore plaintiff cannot be said to have antecedent title and consequently aforesaid principles of law as laid down by Hon'ble Apex Court and Privy Council is not applicable to the present case.
32. In this regard it is submitted that the Hon'ble Supreme Court itself has rejected this argument in Kale's case decision (supra). In para 35 of the said decision, Their Lordships held:
"35. .................... We have already pointed out that this court has widened the concept of an antecedent title by holding that an antecedent title would be assumed in a person who may not have any title but who has been allotted a particular property by other party to the family arrangement by relinquishing his claim in favour of such a donee. In such a case the party in whose favour a similar argument was advanced before this Court in Tek Bahadur Bhuji case relying on a certain Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 16 of 36 observation made by Bose, J. in Saho Madho Das case, but the argument was repelled and this Court observed as follows:
"Reliance is placed on the following in support of the contention that the brothers, having no right in the property purchased by the mother's money, could not have legally entered into a family arrangement. The Observation are: It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquished all claims to property other than that falling to his share and recognizing the right of the others, as they had previously asserted it to the portions alloted to them respectively.
********* These observation do not mean that some title must exists as a fact in the persons entering into a family arrangement. They simply mean that it is to be assumed that the parties to the arrangement had an antecedent title of some sort and that the agreement clinches and defines what that title is."
The observation of this Court in that case, therefore, afford complete answer to the argument of the learned Counsel for the respondents on this point."
33. For the aforesaid proposition reliance can also be had to decision of Ramgouda Annagouda v. Bhausaheb, AIR 1927 PC 227, wherein also Privy Council upheld the family settlement by virtue of which right, title or interest was created in favour of person who was not having so called antecedent title.
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34. Thus, the agreement dt 29.07.1972 Ex A-1 (Ex DW2/P3) and agreement dt 3.12.2.1977 Ex A-42(DW2/P2) being a family arrangement between the brothers so that peace and security of the family could be preserved and having been acted upon by the parties (even as per assertion of defendant) and in view of law discussed above, the agreement dt 29.07.1972 Ex A-1 (Ex DW2/P3) and agreement dt 3.12.2.1977 Ex A-42(DW2/P2) are admissible in evidence irrespective of registration. It is to kept in mind that family arrangements are governed by principles which are not applicable to dealings between strangers.
In view thereof, issue No.1 and 3 are decided against the defendant No.1 and in favor of plaintiff.
ISSUE No.2:- Whether the agreement to sell dt 29.07.1972 is not properly stamped? If so its effect? OPP ISSUE No.4:- Whether family settlement dated 3.12.1977 is not properly stamped? If so its effect?OPD1
35. Onus to prove these issue No.2 is upon the plaintiff and onus to prove the issue No.4 is upon defendant No.4. Onus to issue No.2 appears to have been wrongly cast, it should have been on defendant No.1 as has been the case with issue No.4. Irrespective of onus of prove, these issues can be decided without going into the said controversy as finding on above issues rest on pure question of law.
36. Agreement dt 29.07.1972 Ex-A1 has been executed on a stamp paper of Rs 1.50p. Ld. Counsel for defendant finished his job by saying that it is deficiently stamped but did not point out as to what value of stamp paper was required. Similarly, Ld. Counsel for plaintiff supported the valuation but did not point out any law or schedule or list of rates applicable for payment of stamp fees to such documents. Agreement dt 3.12.1977 is on plain paper.
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37. In Tek Bahadur Bhujil v. Debi Singh Bhujil AIR 1966 SC 292 it was held that where document is drawn up only to serve the purpose of proof or evidence of what had been decided by the parties, and not to form the basis of their rights in any form over the property, the same constitutes a mere memorandum recording something that has already taken place, and such a document would not require registration or stamping. Reliance can also be held for such proposition on Roshan Singh V. Zile Singh AIR 1988 SC 881 and Madan Lal Kapur V. Subhash Lal Kapur 105( 2003) DLT 987. It is true that the nomenclature accorded to the document by the parties is not determinative of the character of the instrument and what has to be seen is its effect in law.
38. While deciding issue No.1 and 3 many case laws were referred to wherein it was held that family arrangement/settlement even if unregistered is admissible in evidence (if the same has been acted upon) as an evidence of conduct of parties to invoke the principle of estoppel and also as an evidence of admission. It was also noted that family arrangements are governed by principles which are not applicable to dealings between strangers. Therefore, even if agreements dt 29.07.1972 Ex A-1(Ex DW2/P3) and agreement dt 3.12.1977 Ex A-42(Ex DW2/P2) are deficiently stamped or not stamped at all, can still be admissible in evidence and court can act upon it as an evidence of admission and as an evidence to invoke the principle of estoppel.
In view of the discussion and reasoning and case laws cited above, issues No.2 and 4 are accordingly decided in favour of plaintiff and against the defendant No.1.
ISSUE No. 6:- Whether defendant No.1 had returned the loan amount to the plaintiff in the year 1984-85? If so its effect? OPD1
39. Issue No.6 is taken up before issue No.5 as findings of this issue will have important bearing on the issue No.5. Onus to prove this issue is upon Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 19 of 36 the defendant No.1. Defendant No.1 in para 10 of the written statement has pleaded that the loan taken by defendant No. 1 from the plaintiff for the purpose of the purchase of the suit premise was returned to the plaintiff in 1984-85 and the same was duly evidenced by a written Agreement to this effect between defendant No. 1 and plaintiff. It was stated in the agreement that out of approximately Rs 85,000/- that the plaintiff had spent on the plot and construction thereon, Rs 83,000/- was got arranged by defendant No.1 from amongst his relatives and friends and that since the plaintiff was unable to return the said amount of money or the interest thereon, defendant No.1 was being subjected to great embarrassment. Thus, for a consideration of Rs 90,000/- from defendant No.1 to the plaintiff being acknowledged by way of agreement dt. 8.12.1984, the plaintiff had acknowledged receipt of his loan to defendant No.1 and gave all rights, title and interest, if any, in the suit property. Hence, any consideration advanced by plaintiff towards creating any right, title or interest in the suit property were returned to him and the said debt stood duly discharged.
40. It has already been noted herein before that volunteered execution of agreement dt. 29.07.1972 Ex A-1 and agreement dt. 3.12.1977 Ex A-41 has not been disputed by defendant No.1. The only objection to the said agreements was that the same cannot be looked into in evidence or otherwise for being un-registered and being not properly stamped. It has also been admitted by the defendant No.1 (as noted above in the pleading of the defendant No.1) that plaintiff had spent Rs 85,000/- on the suit plot and construction thereon. It has also been admitted though indirectly that said expenditure by plaintiff was in return for plaintiff's right, title and interest in the suit plot and construction thereon. Had it not been so defendant No.1 would not have pleaded that consideration advanced by plaintiff towards creating any right, title or interest in the suit property were returned to him and the said debt stood duly discharged. Thus, in a way defendant has admitted that plaintiff spent money on the plot and construction in pursuance of Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 20 of 36 agreement Ex A-1 and was given right, title and interest in the property to the extent of 50% but now defendant No.1 has disputed that right, title and interest of the plaintiff in the suit plot and constriction thereon i.e. suit property on the basis that said agreement being un-registered and deficiently stamped cannot be looked into and secondly whatever right, title or interest plaintiff had in the suit property stood canceled or nullified with the payment of Rs 90,000/- in the year 1984-85 vide a written agreement. Plaintiff has denied this agreement, his signature on it and also that he received any payment of Rs 90,000/- in the manner alleged by defendant No.1.
41. In order to prove payment of Rs 90,000/- and execution of agreement dt 8.12.1984, defendant No.1 examined defendant No.1 himself as DW1, his son Vimal Manchanda as DW2. Defendant No.1 through the statement dt 4.05.2016 of his son got himself dropped as witness on account of his age, after having tendered his affidavit in examination in chief and substantial cross examination. But since no authorisation by defendant No.1 was found in favour of Vimal Manchanda, therefore whatever testimony of DW1 has come on record has been taken into account.
42. In chief examination both DW1 and DW2 have verbatim deposed the same thing on the lines of pleading in the written statement. After narrating how plaintiff advanced sum of Rs 85,000/- to defendant No.1 and how out of the said amount Rs 83,000/- was arranged by defendant No.1 himself from his relative for plaintiff for being advanced to Defendant No.1 and how when plaintiff failed to return that amount caused a great amount of embarrassment, disrepute and anguish to him and resulted in bitter acrimony and hurt feeling between defendant No.1 and plaintiff and as such with a view to amicably settle all disputes and to ensure the peace and harmonious relations in the family, a family settlement dt 8.12.1984 was entered into between plaintiff and defendant No.1 vide which it was acknowledged by the plaintiff that he had received a sum of Rs 90,000/-from defendant No.1 out of Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 21 of 36 which he would hand over a sum of Rs 83,000/- which had been advanced to him and was got arranged from friends and relatives of defendant No.1 on his personal guarantee. All his account stood settled and were squared off and plaintiff gave up all his rights, title and interest in the suit property or any part thereof and also right of future construction in the 2nd and 3rd floor of the suit property. Copy of agreement is Ex DW1/-D. DW2 further deposed that it bears the signature of the defendant No.1 at point 'A' and that of plaintiff at point 'B' and of witnesses Shri Amrit Lal and O P Bajaj at point 'C' and 'D' respectively. DW 2 further deposed that Ex DW1/-D was in his handwriting.
43. It is to be noted that DW2 in his chief examination no where deposed that said agreement dt 8.12.1984 Ex DW1/-D was signed and executed in his presence. Interestingly even defendant No.1. did not depose in his chief examination that Ex DW1/-D was executed in his presence or that Mr Vimal Manchanda (DW2) was present. Defendant No.1 has not examined the so called attesting witness Sh Amrit Lal and O.P.Bjaj, though their respective affidavits in examination in chief was filed on record but they never graced the witness box either for recording chief examination or cross examination.
44. Plaintiff as PW1 in his examination in chief had denied his signature on the agreement dt 8.12.1984 Ex DW1/-D and has called it a forged document. He has also deposed that agreement dt 8.12.1984 had been declared as forged and fabricated document by the Govt. approved Handwriting Experts and consequently a criminal case against defendant No.1 is pending. In cross examination he deposed that they were four brothers and he being youngest in good faith might had given any blank signed document to his brother for some bonafide purpose. Document mark X (Ex DW1/-D) agreement dt 8.12.1984 which was placed in case file No. 460/2006 did not bear his signature. He also denied the suggestion that the said agreement bore his signature at point A. He also denied the suggestion that he was paid Rs 90,000/- and he signed the agreement dt 8.12.1984. He also denied the suggestion that vide said Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 22 of 36 agreement he had relinquished his rights in regard to the suit property. He volunteered that this document is forged and fabricated. He further denied the suggestion that since 8.12.1984 his status in the property was that of a licensee and not as owner. He also denied the suggestion that no sale deed as per agreement dt 3.12.1977 was executed as he had received all the money and he had relinquished his share in favour of defendant No.1.
45. Thus, defendant No.1 has failed to prove the execution of the agreement dt 8.12.1984 as no eye witness was examined by the defendant No1 who could depose that it was signed by plaintiff in his presence and payment was made in his presence. Even DW1 did not depose that it was executed in his presence or that plaintiff signed the same in his presence.
46. Even if it is assumed that agreement dt 8.12.1984 Ex DW1/D bears the signature of plaintiff, that itself is not sufficient because one has also to prove by cogent evidence that payment was actually made. DW1 in his cross examination admitted that he had not filed the Ex DW1/D dt 8.12.9184 with income tax department. Nothing has been brought on record to show that payment actually passed from defendant No.1 to plaintiff.
47. Defendant No.1 has alleged that he had taken loan of Rs 85,000/- from plaintiff out which he arranged Rs 83,000/- for plaintiff from his (defendant No.1) friends and relative. This story itself is unbelievable. If defendant No.1 required loan then why he would borrow from person (plaintiff) who himself was not having fund. If defendant No.1 himself could arrange fund for plaintiff from his friends and relative, then why he (defendant No.1) would not borrow himself from those friends and relative if he at all required fund. It appears not acceptable that a person in need of money would himself arrange money from his friends and relative and then make them loan to a third person on his personal guarantee and then he in turn would borrow the same from the said third person. If at all it had been so, there was nothing Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 23 of 36 to prevent the parties from incorporating the said fact in the agreement dt 29.07.1972 Ex A-1. At that time relation between the parties were cordial and admittedly agreement Ex A-1 was executed voluntarily between the parties, therefore, it was more easier for parties to incorporate actual fact that transacted between the parties. Thus, defendant's No.1 story of taking loan of Rs 85,000/- from plaintiff out which he himself arranged Rs 83,000/- from his friends and relative, does not inspire confidence of this court. Thus, defendant failed to prove that he had taken loan and in any case he also failed to prove execution of agreement Ex DW1/D dt. 8.12.1984 thereby failed to prove that he returned the so called loan to plaintiff.
In view of the above discussion and reasoning, issue No.6 is decided in favour of plaintiff and against the defendant No.1 ISSUE No. 5:- Whether the present suit is within the period of limitation? OPP
48. Onus to prove this issue lies upon the plaintiff. Plaintiff has filed the present suit on 29.01.2003 and has sought decree of declaration and specific performance of agreement dt 29.07.1972 Ex A-1 and agreement dt 3.12.1977 Ex A-42. There is no dispute that suit for specific performance can be filed within three years.
49. Counsel of defendant has argued that period of three years expired in 1980 itself and plaint having not been filed within three years from the date of agreement, therefore, suit is barred by limitation.
50. Per contra it has been argued by counsel for plaintiff that limitation to file the present suit arose on 3.05.2002 when defendant No.1 got issued legal notice to the plaintiff thereby claiming exclusive ownership in the suit property and computed from that suit of the plaintiff having been filed on 29.01.2003 can be said to be within limitation for both reliefs.
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51. Article 58 of the Schedule to Limitation Act provides that limitation period for suit for declaration is three years and the time from which limitation begins to run is from the day when cause of action first arises. It is the claim of the plaintiff that defendants No.1 started holding out himself as exclusive owner and plaintiff as tenant and defendant No.1 also got issued legal notice dt. 3.05.2002 to the plaintiff to the same effect. Therefore, as per plaintiff cause of action first arose on 3.05.2002 and therefore suit is well within limitation. Nothing has been brought on record by defendant No.1 to show that cause of action for plaintiff arose much earlier. In fact defendant No.1 has disowned the notice dt 3.05.2002 and has claimed that defendant No.1 got issued legal notice dt 29.12.2003. It has already been held herein before that defendant No.1 failed to prove the agreement dt. 8.12.1984 Ex DW1/D. In these circumstances, suit for the plaintiff for the relief of declaration cannot be said to be barred by time.
52. Similarly, Article 54 of the Schedule to Limitation Act provides that limitation period for suit for specific performance is three years and time from which limitation begins to run from the date fixed for the performance or if no date is fixed, when the plaintiff has notice that performance is refused. Perusal of Ex A-1 and Ex A-42 reveals that no date was fixed within which parties would execute the necessary documents. Therefore, time to file the present suit would have began to run from the day defendant No.1 refused to execute the documents in favour of plaintiff or when plaintiff has the knowledge of refusal by the defendant No.1.
53. PW1 in his cross examination deposed that he repeatedly asked the defendant No.1 to have the documents drawn up in terms of agreement Ex A-42. Instead of clarifying as to on which day he requested defendant No.1 to execute the document and on which date he refused, he was admitted that there was no document on record in writing, including averments in the plaint Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 25 of 36 and affidavit to show that he had made such request to defendant No.1. Meaning thereby by such cross examination defendant No.1 conveyed to the court that defendant No.1 was never asked and defendant No.1 never refused. PW1 was further made to admit that no legal notice was issued to defendant No.1 for execution of sale deed in respect of suit property in terms of agreement.
54. It has already been held herein before that defendant No. failed to prove agreement dt 8.12.1984 Ex DW1/D which could have been starting date for running of limitation period for both reliefs. Defendant No.1 failed to prove that this document Ex DW1/D was ever used in any department with the knowledge of the plaintiff so as to give cause of action to the plaintiff. Plaintiff pleaded that cause of action arose on 3.05.2002 when defendant No.1 issued legal notice. This notice was disowned by the defendant No.1. Defendant has relied upon other legal notice dt 29.12.2003 EX DW1/K which was admittedly issued after institution of the present suit.
55. Plaintiff has successfully brought his case within limitation as no specific date could be brought on record by defendant in cross examination of PW1 where from it could be inferred that limitation began to run. From the direction of cross examination of PW1 case of the defendant No.1 appears to be that no such request was made by plaintiff and no such refusal was ever made by defendant No.1. Therefore, suit of the plaintiff is well within limitation for the relief of specific performance as well.
In view of the above discussion, issue No.5 is decided in favour of plaintiff and against the defendant No.1.
ISSUE No. 7:- Whether plaintiff is entitled to the decree of declaration as prayed for? OPP ISSUE NO.8:- Whether plaintiff is entitled for the decree of specific performance of the agreement and family settlement dt 29.07.1972 and 3.12.1977 respectively?OPP Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 26 of 36
56. Both the issues are taken up together as findings thereon require appreciation of same facts and evidence. Onus to prove both these issue lies upon the plaintiff. It has already been noted herein before that plaintiff is claiming ownership of the first and second floor with right of future construction in respect of the property bearing No. A-181, Gujranwala Town, Delhi on the basis of agreement dt 29.07.1972 Ex A-1 and family settlement dt 3.12.1977 Ex A-42 and on the basis of subsequent conduct of the parties in accordance of the both the agreements till the time dispute arose.
57. Defendant No.1 is defending the case on the ground firstly that agreements Ex A-1 and Ex A-42 cannot be looked into evidence (even though its execution is not denied) and therefore it has been claimed that no right, title or interest passed on to plaintiff. Secondly, suit is being defended by defendant No.1 on the ground that the right, title or interest, if any, of the plaintiff came to an end when plaintiff was paid back his invested money of Rs 90,000/- and executed agreement dt 8.12.1984 Ex DW1/D.
58. It has already been noted herein before while recording findings on issue no.7 that defendant No.1 failed to prove execution of agreement Ex DW1/D and payment of Rs 90,000/- as claimed by the defendant. Similarly, it has also been noted herein before while recording findings on issue no.1 and 3 that both agreements Ex A-1 and Ex A-42 can be looked into evidence as an admission of defendant No.1 and as an estoppel of the conduct of the parties.
59. Execution of agreements Ex A-1 and Ex A-42 is not in dispute as is clear from the written statement as well as from the cross examination of PW1 and that of DW1 and DW2. PW1 has not been cross examined on the point that Ex A-1 and Ex A-42 were not executed at all or not signed by the defendant No.1. Similarly, in cross examination both DW1 and DW2 have admitted that Ex A-1 and Ex A-42 bears the signature of the defendant No.1.
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60. Vide Ex A-1 it was agreed between plaintiff and defendant No.1 that out of Rs 9800/- paid by defendant No.1 for acquiring the plot, plaintiff would have 50% share in the plot by paying Rs 4,900/- against plot within the a period of next five years to defendant No.1 and both parties would invest equally in the construction of a house on the plot. It was also agreed that ownership and all other rights in the plot, in the instrument of Sub-perpetual Lease which was executed in the name of defendant No.1, would vest equally in plaintiff and defendant No.1. it was further agreed that expenses on construction of a house on the plot would be borne by the parties in equal shares and they would be responsible to explain half share in the investment to the income-tax and other authorities. House tax, repairs and all other expense would be borne by the parties equally.
61. Pursuant to this, it was deposed by PW1, that plaintiff paid Rs 4,900/- to the defendant vide cheque No. AY 374904 dt 2.11.76 drawn on United Commercial Bank, Model Town and said amounts stands reflected in the Pass Book Ex PW1/1 of "Zenith Sales Corporation" by which name and style he was doing business as sole proprietor. This part of evidence was pleaded by the plaintiff in his plaint. In cross examination he admitted that his name is not mentioned in the Pas Book Ex PW1/1 as an proprietor of "Zenith Sales Corporation" and that he had not filed any other document to show that he was the proprietor of the said firm. He volunteered that he had mentioned himself as proprietor in the said cheque of Rs 4,900/- issued to the plaintiff. He admitted that he had not filed any photocopy/certified copy of said cheque. No suggestion was given to him that this cheque was not received from plaintiff or enchased by defendant or that he was not the proprietor of the said firm or that this cheque was not in respect of his half share in the plot pursuant to agreement Ex A-1 or that this cheques was given by ABC for different transaction. Moreover, DW2 in his cross examination categorically admitted that his father had received cheque No. AY 374904 dt 2.11..1976 drawn on Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 28 of 36 UCO Bank Model Town for Rs 4,900/- from plaintiff towards the value of his share in the plot bearing No. A-181, Gujranwala Town, Delhi. This per se proves that both parties acted upon the agreement Ex A-1 as plaintiff paid the half share/price of plot to defendant No.1 and defendant No.1 accepted the same in pursuance to the agreement Ex A-1.
62. Plaintiff has thereafter relied upon the letter dt 19.11.1976 which is addressed to Income Tax Officer (ITO) written by defendant No.1 under his signature, wherein defendant No.1 had conveyed to the ITO that he had received Rs 4,900/- by way of cheuqe No. AY 374904 dt 2.11.1976 of UCO Bank, Model Town which was obtainable upto 29.7.1977 as per agreement deed. During admission denial of document, signature of defendant No.1 was admitted by the defendant No.1 through his counsel. Contents thereof was not denied. Even in cross examination, DW1 admitted his signature on this letter Ex DW1/P-1. PW1 was not cross examined on this letter at all. This further fortifies that both plaintiff and defendant No.1 acted upon the agreement dt 29.07.1977 Ex A-1.
63. Next is expenses on construction on the plot. It was agreed that between plaintiff and defendant No.1 that both would equally contribute in the construction of house on the plot. No. A-181, Gujranwala Town. In para 3 of plaint, plaintiff gave year wise break up of the amount spent by defendant No.1 and plaintiff on the construction of house on the plot. In reply to para 3 of the plaint, defendant No.1 in his written statement submitted that contents of para 3 of the plaint is matter of record and the plaintiff be put to strict proof of averment. Further in para 4 of reply on merits of the written statement, defendant No.1 pleaded that agreement dt 8.12.1984 clearly records for a consideration amount of Rs 90,000/-, plaintiff acknowledged receipt of all sums advanced to defendant towards the plot and construction of the suit property. Thus, there is clear cut admission of defendant No.1 that plaintiff spent equal amount in the construction of house on the plot. Moreover, it has Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 29 of 36 already been held while recording finding on issue No.7 that story of defendant No.1 taking loan for acquiring plot and construction of house from plaintiff did not inspire confidence and was therefore disbelieved.
64. Apart from this, DW1 in his cross examination admitted that all four brothers gave their separate contributions for construction of properties i.e. A-180 and A-181, Gurjranwala Town with respect to their respective portion. Here he admitted both that plaintiff borne entire expense of construction and that was in respect of his separate portion. The expression "his separate portion" proves agreement for sharing property and also that parties were acting upon the agreement dt 29.07.1972. He further admitted that after the completion of construction of the above said properties, the four brothers were fully empowered to carry out any further construction in their respective portion of the property as being owner. This admission of the defendant No.1 leaves no doubt that both plaintiff and defendant No.1 were treating themselves as owner of their respective portion in the suit property.
65. Similarly, DW2 in his cross examination deposed that all the four brothers had separately made the payment of the construction of their portion with regard the properties bearing No. A-180 and A-181 Gujranwala Town. He volunteered that defendant No.1 had made the payment of his portion directly. His deposition also proves the agreement of sharing the suit property and that parties acted upon the same.
66. Plaintiff has relied upon the wealth tax assessment orders and statement of wealth tax assessable proprieties of defendant No.1. During the admission denial wealth tax assessment orders all dt 11/09/1978 for period 1970-71 Ex A-11, 1971-72 Ex A-12, 1972-73 Ex A-13, 1973-74 Ex A-14, 1975-76 Ex A-16, wealth tax assessment order dt 19.8.82 for 1978-79 Ex A-17 and order dt 6.10.1983 for 1979-80 Ex A-18 were admitted for defendant No.1 by Counsel for defendant No.1. In all this assessment orders Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 30 of 36 defendant has been shown to be owner of the suit property to the extent of half share. Similarly, Statement of Assessable properties of defendant No.1 for the period 1979-80 Ex A-19, 1980-81 Ex A-20, 1981-82 Ex A-21 were admitted for defendant No.1 by the Counsel for defendant No.1 during the admission- denial of documents. In all these statements of assessable properties, defendant No.1 has shown himself to be owner of the suit property to the extent of half share.
67. Plaintiff also exhibited wealth tax assessment orders of 1974-75 Ex PW1/7, 1976-77 Ex PW1/9, 1977-78 Ex PW1/10, statement of assessable properties of defendant No.1 Ex PW1/11, wealth tax assessment orders all dated 21.01.1985 of 1982-83 Ex PW1/12, 1983-84 Ex PW1/13, 1984-85 Ex PW1/14, wealth tax assessment order dt 8.9.1987 of 1985-86 Ex PW1/15, wealth tax assessment order dt 31.01.1989 of 1986-7-87 Ex PW1/15A, statements of assessable properties of defendant No.1 for 1987-88 Ex PW1/15B, for period 1988-89 Ex PW1/16. In all these assessment orders and statements defendant No.1 has claimed himself to be the owner to the extent of half share in the property. Thus, subsequent to alleged execution of agreement dt 8.12.1984 Ex DW1/D defendant continued to claim himself owner to the extent of half share in the suit property. This lend credence to the submission of the plaintiff that no such agreement dt 8.12.1984 was ever executed between the parties. If the agreement dt 8.12.1984 Ex DW1/D had taken place, defendant No.1 would not have claimed half ownership in the suit property before the wealth tax authorities after 1984 onwards.
68. Defendant No1 denied above document Ex PW1/7,Ex PW1/9, Ex PW1/10,Ex PW1/Ex PW1/11, Ex PW1/12, Ex PW1/13, Ex PW1/14, Ex PW1/15, Ex PW1/15A, Ex PW1/15B and Ex PW1/16. Objection was raised with regard to mode of prove only with respect to documents Ex PW1/13 to Ex PW/16 at the time of exhibition of documents. However, in cross examination PW1admitted that he had filed copies of income tax/wealth tax Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 31 of 36 assessment orders of defendant No.1 vide Ex A-18 to A-20 and Ex PW1/6 to Ex PW1/16. He denied the suggestion that the Ex PW1/13, Ex PW1/6, Ex PW1/7, Ex PW1/9, Ex PW1/8, Ex PW1/10 does not bear any stamp or signature of issuing authority or of defendant No.1. He admitted that documents relating to wealth tax Ex A-19, Ex A-29 and Ex A-22 bears signature of Defendant No.1 He admitted that at Point 'B' building No. A-180 has been corrected as A-181. He admitted that similar correction has been made in Ex PW1/15A, 15B and 15C. Finally, a suggestion was given to PW1 that documents belonging to defendant No.1 placed by plaintiff was stolen by him which suggestion was denied by the plaintiff. Thus, by this suggestion defendant No.1 admitted all documents placed by plaintiff on record as documents of defendant No.1 which certainly includes wealth tax above exhibited orders/statements. Defendant No.1 has not pleaded or lead evidence that such document was stolen by plaintiff. But by way of suggestion admitted the above said documents belonged to defendant No.1.
69. Moreover, there is no denial from the defendant No.1 that he was filling of Wealth Tax Returns prior to and even after agreement dt 8.12.1984 Ex DW1/D. Plaintiff placed on record wealth Tax assessment orders and statement of assessable properties particularly of the period after 1984 which defendant No.1 denied. If the assessment orders Ex PW1/13 to Ex Pw1/15A and statement of assessable properties particularly Ex PW1/15B and Ex PW1/16 were not that of defendant No.1, then defendant No.1 should have filed his copies of those order and statements to belie the plaintiff. Defendant having not produced the same despite not denying of filling wealth tax after 1984 onwards made himself liable for drawing of adverse inference against him. Hon'ble Apex Court in AIR 1968 SC 1413 categorically ruled that an adverse inference would be drawn against party withholding best evidence irrespective of onus of prove. Here also defendant No.1 by producing record of wealth tax assessment orders and statement could have dislodged the plaintiff but having not done so, defendant No.1 has made the court to believe Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 32 of 36 and rely on the wealth tax record of defendant No.1 produced by plaintiff and draw adverse inference against defendant No.1.
70. Defendant No.1 has admitted Wealth Tax assessment Orders dt 11.09.1978 Ex A-11 to Ex A-14 and Ex A-17 to Ex A-18 and statement Ex A- 19 to Ex A-21. In all these admitted documents, defendant No.1 has claimed himself to be owner to the extent of half share in the suit property. It was also admitted by DW2 that his father had shown the property in question as half owner from 1972 to 1984 in the records of Wealth tax and Income Tax. He shown ignorance to the fact that his father had shown himself as half owner of the suit property in the proceedings before Wealth Tax, "C" Range, New Delhi in 1992. Therefore, it was for defendant No.1 to show that after agreement dt 8.12.1984 Ex DW1/D he started filling returns thereby claiming full ownership in respect of the suit property after 1984 onwards. Defendant No.1 did not even attempt to do placed on record his wealth tax returns particular of the period after the alleged agreement dt 8.12.1984.
71. Defendant No.1 has sought to dislodge the claim of plaintiff on the ground that in Nov 1972 itself defendant No.1 mortgaged the suit property to obtain loan of Rs 27,500/- and to the said mortgage deed plaintiff was witness. Admittedly in those days relation between the parties were cordial and trust on each other has not withered away. Moreover, there is nothing on record to suggest that plaintiff signed the mortgage deed with intent to relinquish his claim in the property against his brother defendant No.1. For all practical purpose vis-a-vis DDA it was the defendant No.1 who was the lessee and plaintiff became witness not in suppression of his agreement with his brother vide agreement dt 29.07.1972 Ex A-1. Plaintiff has disputed that entire property was mortgaged but even if it is so that is not sufficient to discard the overwhelming evidences that have come on record in the form of subsequent conduct of the parties which unerringly point out that parties proceeded in life treating themselves to be the owner of respective portion as agreed by them Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 33 of 36 vide agreement dt 29.7.1972 and vide agreement dt 3.12.1977 Ex A-42.
72. Plaintiff has claimed that since beginning each party is paying their respective house tax, water charges and electricity bills but all bills and receipt were in the name of defendant No.1 as he was lease holder vis-a-vis DDA and other authorities. Defendant has disputed saying that it was he who paid them. Plaintiff has produced on record some of receipts of payment house tax Ex PW1/17 to Ex Pw1/19 and lease money charges to the Society Ex A-36 to Ex A-41 which are receipts are in the name of defendant No.1, which in the facts of the case do not appear to be unpractical and claim of plaintiff appears to be reasonable that parties were paying charges, tax respectively in the light of the defendant's No.1 conduct in the filling of wealth tax returns claiming himself to be owner to the extent of half share in the suit property.
73. Thus, in the light of the admitted fact about the execution of agreement dt 29.07.1972 Ex A-1( Ex DW2/P3) and agreement dt 3.12.1977 Ex A-41( Ex DW2/P2) and which have also been proved in evidence and in the light of subsequent conduct of the parties pursuant to agreements Ex A-1( Ex DW2/P3) and Ex A-42( Ex DW2/P2) and in view of case law as discussed above while deciding issue No.1 and 3, Ex A-1 (Ex DW2/P3) and Ex A-42 (Ex DW2/P2) are admissible in evidence as an admission of defendant No.1 and as an evidence of estoppel whereby defendant No1 is estopped from questioning the legality and validity of agreement Ex A-1(Ex DW2/P3) and Ex A-42 (Ex DW2/P2) and right, title and interest of the plaintiff in the suit property. Therefore, plaintiff is entitled to be declared owner of his portion of the suit property vis-a-vis defendant No.1 and in order to make him complete owner qua the public at large plaintiff is entitled for decree of specific performance of the agreement dt 3.12.1977 with to direction to defendant No.1, his LRs, agent, assignee etc to execute the necessary documents in favor of plaintiff in respect of plaintiff's portion in the suit property as agreed by parties vide agreement Ex A-42 (Ex DW2/P2).
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74. The contention of Ld. Counsel for the defendant no.1 that agreement Ex. A1 and A42 cannot be enforced as the same is against law and public policy and he has cited the provisions of the sub-lease deed to contend that land alloted therein cannot be sold further or transferred further. The aforesaid argument of Ld. Counsel for defendant no.1 is misplaced as the terms of the lease does not have status of statute. Secondly, these are terms which has been laid down by the DDA not in absolute term but provides that without permission the same cannot be transferred. Thus, the terms thereof does not absolutely bars the transfer. Even in the written statement of DDA it has also been mentioned that without due permission the same cannot be transferred. But it has already held herein before that the arrangement between the plaintiff and defendants was family settlement and it was both plaintiff and defendant no. 1 to request the DDA for making the lease in the joint name in pursuance of agreement Ex. A1 and A42 by executing necessary documents in favour of plaintiff by the defendant no. 1.
In view of the above reasoning and discussion both issues No.7 and 8 are decided in favour of plaintiff and against defendant No.1.
ISSUE No. 9:- Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
75. Onus to prove this issue is upon the plaintiff. In view of findings recorded on issue No. 2, 5 and 8, for the same reason issue No.9 is hereby decided in favour of plaintiff and against the defendant.
RELIEF In view of the findings recorded on above issues, suit of the plaintiff is allowed and decree of declaration is hereby passed in favour of the plaintiff and against the defendant no. 1 thereby declaring that the plaintiff is the exclusive owner to the extent of ½ share in H.No. A-181, Gujranwala Town i.e. first floor and second floor with roof rights thereof.
Suit No. 9575/2016 Gulshan Rai Vs Krishan Lal & Ors Page No. 35 of 36 A decree of specific performance is also hereby passed in favour of the plaintiff and against the defendant No.1 in respect of agreements dated 29.07.1972 and 03.12.1977 thereby directing the defendant no. 1 to execute the necessary documents/sale deed in pursuance to aforesaid agreements.
Further, a decree of permanent injunction is also hereby passed in favour of the plaintiff and against the defendant no. 1 thereby restraining the defendant no. 1, his agent, assignee, legal heirs, officials etc. from disturbing the physical possession of the plaintiff in respect of the first floor and second floor portions shown in green and yellow colour in the site plan Ex. PW1/3 in respect of H.No. A-181, Gujranwala Town and from holding out himself as exclusive owner of the said property in any manner whatsoever.
Cost of the suit is also awarded in favour of the plaintiff and against defendant no. 1.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
(Harish Kumar)
Announced in open Court ADJ-13(Central)/THC
(Judgment contains 36 pages) Delhi/03.09.2016
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