Delhi District Court
Shri Kishore Chand Midha vs Cs No.113/17 Kishor Chand Midha & Ors. ... on 27 September, 2017
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. Neelofer Abida Perveen, ADJ04
Suit No.113/17
In the matter of :
1. Shri Kishore Chand Midha,
S/o Late Sh. Bal Mukund Mdha,
Flat no.410, Paschim Vihar, New Delhi.
2. Sh. Surinder Kumar Midha,
S/o Late Sh. Bal Mukand Midha,
S50/27, DLF CityIII,
Gurgaon (Haryana).
3. Sh. Devinder Kumar Midha,
S/o Late Sh. Bal Mukand Midha,
E17 B, Chaupla Railway Colony,
Bareilly (Uttar Pradesh).
4. Sh. Anil Kumar Midha,
S/o Late Sh. Bal Mukund Midha,
BH236, Royale Garden Estate,
Sector61, Noida, Uttar Pradesh.
5. Sh. Manmohan Kumar Midha,
S/o Late Sh. Bal Mukund Midha,
E51, Greater Kailash EnclaveII,
New Delhi110048. .....Plaintiffs.
Vs
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 1 of 75
1. Sh. Ramesh Chand Midha,
S/o Late Sh. Bal Mukand Midha,
E51, Greater Kailash EnclaveII,
New Delhi110048.
2. Mrs. Urmila Bhagat,
D/o Late Sh. Bal Mukand Midha,
W/o Sh. Tilak Raj Bhagat,
Flat no.107, Sector15, BlockA, Pocket6,
Rohini, Delhi.
3. Mr. Chander Mohan Bhagat,
Husband of Late Mrs. Kamla Bhagat,
Son in law of late Sh. Bal Mukand Midha,
Flat no.727/1, Sector41A,
Chandigarh.
4. Mr. Sanjay Arora,
S/o late Mrs. Kamla Bhagat
And Mr. Chandra Mohan,
Grand Son of Late Sh. Bal Mukand Midha,
Flat no.727/1, Sector41A, Chandigarh.
5. Mr. Rajiv Arora,
S/o late Mrs. Kamla Bhagat
And Mr. Chandra Mohan,
Grand son of Late Sh. Bal Mukund Midha,
Flat no.727/1, Sector41A,
Chandigarh. ......Defendants.
Date of institution : 22.03.2005
Date on which order was reserved : 18.09.2017
Date of pronouncement of the order : 27.09.2017
Judgment
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 2 of 75
Vide this judgment, I shall decide the present suit for
partition and permanent injunction.
1. The plaintiff has instituted the suit for partition and
permanent injunction against the defendants on a set of facts that Sh.
Bal Mukund Midha, father of the Plaintiff's and the Defendant Nos.1
and 2 was a displaced person from West Pakistan and after partition
of the Country in August 1947, he along with his 3 sons (plaintiffs
no.1, 5 and defendant no.1) and one daughter (since deceased)
migrated to India and settled at Delhi. Sh. Bal Mukund Midha and his
undivided joint Hindu family thereupon occupied a vacant house
bearing no.10236 at Library Road, Azad Market, Delhi110006. He
started living here with his 3 sons and one daughter till he was
evicted by the Municipal Corporation of Delhi in 1961 and given an
alternate recommendation bearing no. C109 at New Moti Nagar,
New Delhi110016. During this time he was blessed with 3 more
sons and one daughter (plaintif no.2, 3, 4 and defendant no. 2).Sh.
Bal Mukund Midha was serving with Northern Railway. The
employee of the Railway formed a House Building CoOperative
Society with the name of E. P. Railway Refusing Rehabilitation and
House Building CoOperative Society Limited and its office at IRCA
Building, New Delhi. Sh. Bal Mukund Midha became a member of
the said CoOperative Society in 195859. Both the daughters of Sh.
Bal Mukund Midha were married during his lifetime in 1969 and
1973. Smt. Kamla Bhagat one of the daughters who was married in
1969 has died, leaving behind her husband and 2 sons. Both the sons
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of Smt. Kamla Bhagat are major and as such herein being impleaded
as Defendant Nos. 4 & 5 respectively, while the husband of Smt.
Kamla Bhagat up has been impleaded as Defendant No.3 in the
present suit. Sh. Bal Mukund Midha in lieu of the ancestral property
left behind in West Pakistan was allotted a piece of land at Village
Matloda, District Panipat. The said land was sold and the
consideration thus received along with some additional funds were
utilised in purchasing a plot no.E51, Greater Kailash, EnclaveII,
measuring 200 sq. yd. in the Cooperative Society of which he was a
member. The physical possession of plot No.E51, Greater Kailash,
EnclaveII, New Delhi was given to Sh. Bal Mukund Midha on 26th
July, 1970 and the possession report was signed by Plaintiff No.2 on
behalf of his father the Karta of the Joint Hindu Family. That the
Delhi Development Authority in year 1972 served a notice on Sh. Bal
Mukund Midha calling upon him to complete the construction of the
residential house on the plot no E51, within a specified time of six
months failing which his allotment would be cancelled. That as the
father of the Plaintiff's and Defendant's No.1 and 2 had retired from
the Railways in 1963 and was now only privately employed he was
thus unable to raise at short notice the huge resources required for
constructing the house. It was therefore decided to transfer the plot in
the name of one of his son Capt R.C.Midha (defendant no.1) who
could get the loan for construction only when the plot was in his own
name. Accordingly, the plot bearing No.51, in Greater KailashII,
New Delhi was transferred in the name of defendant no.1 for
construction of residential house for the benefit and residence of the
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Joint Hindu undivided Family. The Plot No. E51, at Greater Kailash
EnclaveII, New Delhi was transferred in favour of one of the
coparceners in the Hindu undivided family Sh. Ramesh Chand Midha
hereinafter referred to as Defendant No.1 by the Karta of the said
family for the benefit of all the coparceners as this would enable
Defendant No.1 to raise the house building loan from the Delhi
Administration. Even this loan was subsequently repaid by Sh. Bal
Mukund Midha himself.That the earning coparceners Sh. MK Midha
and Sh. DK Midha being Plaintif no.5 and 3 also along with
defendant no.1 and their father Sh. Bal Mukund Midha contributed in
the construction of the house where the entire joint family lived. That
though the Defendant No.1 as submitted raised a loan from the Delhi
Administration to the tune of Rs. 27,500/(Rupees TwentySeven
Thousand Five Hundred Only). After paying back one/two
instalments he found the repayment of the loan very onerous and
cumbersome and thus Sh. Bal Mukund Midha, through a cheque
bearing No.002011 dated 18th November, 1976 for Rs. 26,869.50
(Rupees TwentySix Thousand Eight Hundred SixtyNine and Fifty
Paise Only) repaid the entire loan amount with interest on behalf of
defendant no.1. The said cheque was issued by Sh. Bal Mukund
Midha from his Savings Account bearing No.836 issued in favour of
Assistant Housing Commissioner (Loans), Delhi Administration.
That to closely monitor the construction of the residential house at E
51, Greater Kailash EnclaveII, New Delhi, Sh. Bal Mukund Midha
with his family vacated the house at C109, New Moti Nagar, New
Delhi sometime in 1974 and took on rent a house in Greater Kailash
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Enclave. The house at Moti Nagar was let out. That after the
construction of residential house at E51, Greater Kailash EnclaveII,
New Delhi was completed sometime in 1975, Sh. Bal Mukund Midha
with his wife and sons moved to E51, Greater Kailash EnclaveII,
New Delhi. The house at C109 which had been let out, was
subsequently in the year 1984 sold for a consideration of Rs.
40,000/. Sh. BM Midha thereupon purchased a 200 sq. yard plot
bearing no.A42/10, DLF Qutab Enclave, PhaseI, Gurgaon for Rs.
60,000/jointly in his own name and that of his wife's name. The
possession of the said plot has yet to be delivered by DLF
Authorities. As in the construction of the house on the Plot No.E51,
Greater Kailash EnclaveII, New Delhi, money was required,
accordingly, Sh. Bal Mukund Midha on one part and Plaintif No.3, 5
and Defendant No.1 on the 2nd part entered into an agreement dated
August 15, 1977. The relevant part of the agreement is reproduced
herein below:
"Whereas party of the first part was shareholder of E.P.Railway
Refusing Rehabilitation and House Building CoOperative Society
and was allotted a plot of land bearing No.E51, Greater Kailash
EnclaveII New Delhi110048 by the said Society, which he
subsequently transferred to party of the second part was in position to
obtain a loan for construction from the Delhi Administration. The
party of the second part then obtained loan from Delhi
Administration in three instalments beginning 14th November, 1974.
The loan amount along with further sums contributed by parties of
the second, third and fourth part were spent for construction of a
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single storyed house with the Mezzanine floor on the plot bearing
number E51, Greater Kailash Enclave, PartII, New Delhi110048.
The up to date contribution made by parties of the second third &
fourth part excluding loan received from Delhi capitalist wish and an
inclusive of instalments of loan repayment towards construction of
the house property at E51, Greater Kailash Enclave PartII, New
Delhi110048 is as follows:
1. Sh. Ramesh Chander Midha Rs. 32,500/.
2. Sh. Manmohan Kumar Midha Rs. 21,000/
3. Sh. Devinder Kumar Midha Rs. 15,000/.
That all the four parties of this agreement have agreed that
the loan advanced by the last three parties to the 1st party including
the loan to be advanced by the last two parties for repayment of
outstanding loan and interest of Delhi Administration for
construction, shall stand as the First Charge on this House Property
situated at E51, Greater Kailash Enclave PartII, New Delhi110048,
and on any transfer of this property, loan advanced by the last three
parties shall be paid forthwith by the party of the First Part. All the
four parties to this agreement shall have a right to use the residential
premises at E51, Greater Kailash Enclave, PartII, New Delhi
110048, for the purpose of residence as also all those who would
inherit the land at E51, Greater Kailash Enclave, PartII, New Delhi
110048 sub lease to the party of the 1st part. In case of dispute
between any of the four parties to this agreement the house property
situated at E51, Greater Kailash Enclave, PartII, New Delhi110048
shall be sold (and anyone who could inherit the land sub leased to the
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first party shall have the first right of purchase before it is sold to an
outsider) and in the event of its sale whether to those who have a first
right of purchase or to an outsider the loan advanced by the last three
parties to this agreement shall be returned to them by the first party
without any interest first, and the cost of the land and profit, if any,
shall go to the party of the first part. In case the house property is
sold to anyone who can inherit the land sub lease to the party of the
1st part, the payment of the sale price can be made in 10 equal yearly
instalments. The parties of the third and fouth part have agreed to pay
the balance loan and interest payable to Delhi Administration from
whom the loan was obtained for construction by the party of the
secnd part and on the repayment of loan and interest and release of
mortgage of this property by the Delhi Administration. The party of
the secnd part shall have to transfer the sub lease of the land to the
party of the 1st part, the original sub lessee of E51, Greater Kailash
Enclave PartII, New Delhi."
That the plaintiff no.1 in the meanwhile had obtained
employment in a Steel Plant and thus temporarily moved to Bhilai
from 1960 to 1971 and thereafter to Bokaro from 1971 to 2001,
where after he obtained a VRS. The plaintiff no.2 employed with
Central Warehousing Corporation in 1982 lived at the above
premises till 1995 when he moved to the present address at Gurgaon.
The plaintif no.3 in 1971 got employment with Western Railway and
thus moved to the Ahmedabad in 1971 and is presently posted at
Bareilly. The plaintiff no.4 lived at E51, in 1989 when he was
transferred to Baroda and has now since 2002 been living at Noida.
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The plaintiff no.5 left Delhi in 1958 and came back in 1985 and has
been living at E51 till date. The defendant no.1 after his graduation
at Bhilai in the year 1964 and 1965 while living with the plaintiff no
1 joined the army in 1966 and was married in 1976. He lived at E51
from 1976 to 1978 and from 1995 till date. It is evident that the plot
no.E51, Greater Kailash EnclaveII, New Delhi is the property of the
joint undivided Hindu Family in which all coparceners have equal
share. The house thereupon was with the contributions of all earning
members at the relevant point that is plaintif no.1, 3, 5 and defendant
no.1 and their father Sh. Bal Mukund Midha. The other members of
the joint Hindu Family viz namely plaintiff no.2 and 4 also
contributed subsequently in maintaining the premises and payment of
various taxes etc. It is also a fact which cannot be disputed that all
plaintiffs and Defendants No.1 and 2 had been residing at the above
premises from time to time and maintaining the same. At present, it is
the plaintiff no.5 and Defendant no.1 who are residing in the said
property. That Smt. Vidya Wati mother of the plaintiff's and
defendants no.1 and 2 and wife of Sh. BM Midha died in the year
1989 and Sh. BM Midha father of the plaintiff and defendant 1 and 2
died in 1994 while living at E51, Greater Kailash EnclaveII, New
Delhi. That Sh. BM Midha on 27/04/1989 the registered will as
under:
(i) That after my death all my 5 sons namely, Manmohan
Kumar Midha, Kishore Chand Midha, Dhirinder Midha, Surinder
Kumar Midha and Anil Kumar Midha, shall inherit Plot No.A 42/10,
DLF Qutab enclave phaseI, (which was purchased by me from the
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DLF in the joint name of my self and my wife Smt. Vidya Wati
(since deceased) as coowners and I bequeath this property to them.
My son Ramesh Chand Midha shall have no right, claim or share in
this plot of land.
(ii) That the residential house bearing no.E51, Greater Kailash
EnclaveII, New Delhi and of which my son Ramesh Chand Midha is
the owner in the municipal records and purportedly pays its house tax
and in fact has been paid by my sons Manmohan Kumar and Anil
Kumar in entirety at least during the last about 8 years when my son
Ramesh Chand Midha was transferred from Delhi to Bombay. The
telephone (6410725) installed in the house is in the name of my son
Ramesh Chand Midha but the bill in respect of this telephone has
been paid at least during the past 8 years, either by Manmohan
Kumar Midha or Anil Kumar Midha. As indicated in the foregoing
the lion's share of the cost of construction of the said building has
been born jointly by me and my sons Manmohan Kumar and
Devinder Kumar. I therefore desire and direct my son Ramesh Chand
Midha, in case he wants to reside in the house after his retirement and
get the house vacated, then in that contingency, my son Ramesh
Chand Midha shall pay to my sons Manmohan Kumar Midha and
Devinder Kumar Midha their share of investment at the prevailing
market price and get the matter mutually settled amongst themselves
and avoid legal confrontation. My share of investment shall be paid
by my son Ramesh Chand to my other 3 sons namely Kishore Chand,
Surinder Kumar and Anil Kumar in equal 1/3rd share each. That the
defendant no.1 on 01/11/1991 coerced Sh. BM Midha to make a fresh
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 10 of 75
will largely tilting in formers favour and superseding the previous
one. She BM Midha accordingly on 24/11/1991 rectified his mistake
and made in published his last and final Will bequeathing his assets
in a more equitable manner. The will dated 24/11/1991 interalia
provides:
"I have purchased 2 plots of land in the city of New
Delhi from my own funds and bought the plots are my self acquired
properties. one plot is situated in the residential area known as
Greater KailashII whereon the residential superstructure that is
house has been constructed from my own funds exclusively. This
property is of considerable value today and therefore I would not like
to deprive any of my sons of a share in the said plot and the house,
and I therefore direct my SIX sons to take an equal share in the same
after my demise.
I have another piece and parcel of land admeasuring about
200 yd.² in the area known as DLF, Qutab Enclave. This is a vacant
plot without any superstructure thereon. This also I have acquired
from my own funds exclusively and no matter in whose name or
names it stands today in the property records or title documents. I
now direct that out of my 6 surviving sons, my son Ramesh Midha
who at present resides in Calcutta shall not have any share in it in as
much as he disputes the legitimate shares of his other 5 brothers in
my self acquired property, that is residential plot and the residential
house there on in Greater KailashII, New Delhi. My not giving
Ramesh Midha any share in the residential plot in Qutab Enclave,
should not be construed as Ramesh Midha will have Greater Kailash
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 11 of 75
plot and house to the exclusion of my other 5 remaining sons, who
have an equal share in the same."
That all the plaintiff's being the coowners of the residential
house constructed on Plot No.E51, Greater Kailash EnclaveII, New
Delhi as the same is the property of the Hindu undivided family all
the plaintiffs are in constructive possession of the same. Similarly the
plot land bearing No.A42/10, at Qutab Enclave, phaseI, Gurgaon,
Haryana, is also in the constructive possession of all the plaintiffs.
Besides the above properties Shri Bal Mukund Midha left behind a
small bank account and few household goods at his residential house
No.E51, Greater KailashII, New Delhi which is also liable to be
partitioned. That now, the Plaintiffs and Defendant No.1 are entitled
to a share in the immovable properties of the HUF of Sh. Bal
Mukund Midha. Accordingly, the Plaintiffs being the coparceners of
the ibid family demanded and called upon the Defendant No.1 to
partition the immovable properties of the erstwhile HUF, but the said
Defendant failed to respond to the request of the Plaintiff's to
partition the properties. The Plaintiffs are entitled to 1/6th share each
in the immovable properties situated at Plot No.E51, Greater Kailash
EnclaveII New Delhi and 1/5th share in the Plot No.A/4210, Qutab
Enclave, PhaseI, Gurgaon, Haryana. The Defendant No.1 and
plaintiff no.5 are residing in the Property No.E51, Greater Kailash
EnclaveII, New Delhi. The Plaintiffs have learned that the Defendant
No.1 is carrying out certain constructions in the above plot, more
specifically on the 1st Floor of the said property. The Plaintiffs have
also learned that the Defendant No.1 has brought the building
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material at the site and the construction work has already been
commenced. The construction if carried out, would not only affect
the value of the property but would also amount to compulsory
partition of the property by the defendant no.1 in his favour. That the
plaintiff's claim that the property bearing no. E51, Greater Kailash
EnclaveII, New Delhi belonging to the HUF of which the plaintiff
and defendant no.1 are coparceners, is liable to be partitioned and
share of each of the coowners determined. That the plaintiffs are
further entitled to 1/6 share by metes and bounds and separate
possession in respect of the above property bearing no. E51, Greater
Kailash EnclaveII, New Delhi or such other share as this Hon'ble
Court may be pleased to determine. That the plaintiffs are also
entitled to 1/5 share by metes and bounds and separate possession in
respect of immovable property bearing Plot No. A/4210, Qutab
Enclave, PhaseI, Gurgaon, Haryana or such other share as this
Hon'ble Court may be pleased to determine. That the plaintiff are also
entitled to a decree of permanent injunction in their favour and
against the defendant no.1 restraining the said defendant from
interfering with the peaceful possession and enjoyment of the
immovable properties of the HUF left behind by Sh. BM Midha,
particularly the share of the plaintiffs. That the plaintiffs are also
entitled to a decree of permanent injunction in their favour and
against the defendant no.1 restraining the said defendant from
alienating, transferring or selling or creating thirdparty interest in the
immovable property of the HUF namely E 51, Greater Kailash
EnclaveII, New Delhi. That the plaintiffs are also entitled to a decree
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of permanent injunction in their favour and against the defendant
no.1 restraining the said defendant from carrying out construction of
any nature whatsoever, in the property no.E51, Greater Kailash
EnclaveII, New Delhi and also evicting plaintiff no.5 from the same.
That the defendant No.1 is also negotiating for the sale of
the immovable property bearing No.E51, Greater Kailash EnclaveII,
New Delhi. The cause of action arose in favour of the Plaintiffs
firstly in November, 1977 when the loan was repaid by the father of
the Plaintiff's. It again arose on several dates. The cause of action
arose in March, 2005 when the Plaintiffs learnt that the Defendant
No.1 is in process of raising construction in the property No.Plot
No.E51, Greater Kailash EnclaveII, New Delhi. It again arose on
when the plaintiff learnt that the defendant no 1 intend to sell/create
third party interest in the property built at Plot no E51 , Greater
Kailash Enclave partII, New Delhi. The cause of action continues till
date as the defendant no.1 declines to partition the suit property. That
this Hon'ble Court has the pecuniary and territorial jurisdiction to try
and entertain the present Suit in as much as one of the premises is
located at Delhi within the jurisdiction of this Hon'ble Court and
while the value of Greater Kailash EnclaveII, New Delhi is
approximately Rs. 30 lakhs. The value of the DLF property is
approximately Rs. 18 lakhs. The total value of both the properties
thus comes to Rs. 48 lakhs. The cause of action has arisen entirely in
Delhi and the Defendant Nos.1 to 2 resides at Delhi, within the
jurisdiction of this Hon'ble Court. That the Plaintiff values the relief
for the purpose of partition at Rs. 200/(Rupees Two Hundred Only).
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For the purposes of permanent injunction at Rs. 130/(Rupees One
Hundred and Thirty Only) each. The total value of the properties for
the purpose of jurisdiction is Rs. 48,00,000/. As share of plaintiffs
have not been determined plaintiffs have paid the fixed Court fee of
Rs. 20/for the time being and undertakes to make up the deficiency
after the determination of his share on partition by metes and bounds.
For the purposes of the injunction the court fee of Rs. 39 is being
paid. Accordingly a total court fee of Rs. 59 has been paid on the
plaint.
2. The defendant no.1 has filed written statement taking up
the preliminary objections that the suit of the plaintiff is
misconceived and is liable to be dismissed by this Hon'ble Court. The
plaintiffs have not approached the Hon'ble Court with clean hands
and are guilty of stating wrong facts and of concealing material and
vital information from this Hon'ble Court. The plaintiffs are not
entitled to any relief, whatsoever, from this Hon'ble Court. Even
otherwise no relief can be claimed against the defendant No.1. The
correct name of the defendant No.1 is Ramesh Chander Midha and
not Ramesh Chand Midha. It is Ramesh Chander Midha who is the
owner of the property No. E51, Greater Kailash EnclaveII, New
Delhi and not Ramesh Chand Midha. That the property bearing No.
E51, Greater Kailash EnclaveII, New Delhi is the sole and exclusive
property of the answering defendant. The answering defendant is the
registered owner of the said property. The same has been acquired
from the funds and income of the answering defendant. The
construction of the building/superstructure has also been raised by
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the answering defendant, from his own funds. The said property has
never been the property of any alleged joint Hindu family nor has the
same been acquired from the funds of any alleged joint Hindu family.
There is no joint Hindu family in existence therefore, the question of
same having funds does not arise. The entire funds for the acquisition
of the property and raising construction on the same have been
provided by the answering defendant.That the true and correct facts
are that the father of the parties, late Sh. Bal Mukund Midha
(hereinafter referred to as late Sh. BM Midha) shifted to India after
partition. Late Sh. BM Midha was staying with his family at 10236,
Library Road, which was an evacuee property. This property was
requisitioned by the Government for its own officers. The occupant
of the same that is late Sh. BM Midha was therefore to be evicted
from the said property. Late Sh. BM Middha filed a suit in the court
to avoid eviction. In the meantime rent of the property was enhanced.
Late Sh. BM Midha filed another suit in the court against the
enhancement of rent. Late Sh. BM Midha lost the suit against
eviction and was evicted from the aforesaid property sometime in
1961. He also lost the suit against enhancement of rent and had to pay
the arrears of rent, calculated at the enhanced rate. The said arrears
were around Rs. 6000/. That late Sh. BM Midha was the coowner of
agricultural land in District Panipat. The said land was sold in 1961.
The share of late Sh. BM Midha in the sale consideration came to
about Rs. 6000/. The said amount was utilised by him to discharge
the liability of arrears of enhanced rent amounting to Rs 6000/in
respect of the requisitioned property bearing No.10236, Library
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Road, New Delhi. The entire funds received from the sale of the
agricultural land was spent to meet the said liability and no part of the
said income was utilised for purchase of any other property by late
Sh. BM Midha.That late Sh. BM Midha had a large family to support.
He was unable to raise sufficient resources for supporting his
dependants. He therefore, look towards the answering defendant for
financial help from time to time. The answering defendant was
interested in further studies. However, considering the financial
hardship the family faced, the answering defendant after graduation
had taken up employment in 1965 with DCM group. He later joined
the Army and was commissioned as an Army officer in 1967. After
serving the country in the 1971 war, the answering defendant left the
Army and joined the Civil Services with the Government of India. It
is only after several years in the Civil Services that he could pursue
higher studies when he was awarded 2 Fellowships by the French
Government. He consequently obtainedMasters degree and an M Phil
degree at I.I.A.P.at SorbonneDauphin Universities, Paris. It is
important to note that it is only the answering defendant who had a
stable job and an income. No other brother or sister of the answering
defendant that is the children of late Sh. BM Middha, was able to
extend any financial assistance to the father, for maintenance of the
family or for meeting the financial obligations of the father of the
parties.That late Sh. BM Middha became a member of the EPRRR
House Building CoOperative Society Limited. He was issued the
share certificate of a member only in 1965, after he had paid the full
share of money of Rs. 100/to the Society. As a member of the
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Society he was entitled to allotment of a plot of land. The cost
towards the plot was to be deposited before allotment could be made
and the possession of the plot could be given to him. The same was a
heavy financial obligation for him and had to be regularly met as any
failure in the payment of instalment towards the cost of the plot
would have resulted in cancellation of membership and consequently
no plot of land would have been allotted to him. That as already
stated above, the father of the parties did not have sufficient funds
even to meet his daytoday expenses. Therefore, he was finding it
extremely difficult to pay the money/instalments towards the cost of
the plot. The only choice before him was to ask the answering
defendant for financial assistance, so as to meet his obligations
towards the payment for the cost of the plot. After obtaining money
from the answering defendant, he made payments, in instalments
right up to 1970. The total amount paid to the society for the cost of
the plot up to July 1970 was Rs. 5311/which included the premium
amount of Rs. 1115/and development charges of Rs. 3668/. The
lease deed however mentions the consideration of Rs.1,115/ and
development charges of Rs. 3668/(that is Rs. 4,783/in all), besides
the terms and conditions of lease. That the answering defendant gave
regular financial contribution to his parents, out of which money, the
instalments towards the cost of the plot were paid by the father of the
answering defendant. Not only were the financial contributions
utilised for purchase of the plot, but the answering defendant has also
contributed substantially towards the family expenses and the
expenses of his siblings, their education etc. The father of the parties
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 18 of 75
always said that he will return the amounts/money to the defendant
No.1 but was unable to do so, as he was never in a position to repay
the money taken from the answering defendant for paying the
instalments to the cooperative Society for land and meeting his other
expenses. That the plot of land underneath the property in question
was allotted to late Sh. BM Middha, the father of the answering
defendant and possession of the same was handed over to him. As per
the terms and conditions of the lease deed, late Sh. BM Midha was
required to raise construction on the same immediately that is on
obtaining possession of the said plot. The plot had been acquired by
the father of the answering defendant, primary and overwhelming
through the financial contributions made by the answering defendant.
As the father had no money of his own, he was unable to raise
construction of the building/superstructure on the said plot. It may be
mentioned that late Sh. BM Midha lacked adequate means to even
support his dependents at that stage comprising of his wife, and
unmarried daughter (defendant No.2) and three sons S.K Midha, DK
Midha and AK Midha (plaintiffs No.2, 3 and 4 respectively). That the
situation came to such head, that the father of the parties was issued a
notice for cancellation of the plot on account of his failure or to
construct a building on the plot. The very plot was in danger of being
lost. Late Sh. BM Midha had no means to save them same. That since
the plot in question had been purchased out of the funds provided by
the answering defendant, the father of the answering defendant
decided to transfer the plot in favour of the answering defendant. The
same was also to compensate the answering defendant for his
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 19 of 75
sacrifices and contributions to the family. An application for transfer
of membership was made to the cooperative Society by the father of
the answering defendant, as well as by the answering defendant. The
membership of late Sh. BM Midha was transferred in favour of
answering defendant by the cooperative Society. That an application
was also made for transfer of the plot in favour of the answering
defendant by his father. All necessary formalities required for the
said transfer were completed by the answering defendant and his
father. The plot in question was transferred in favour of the
answering defendant by the Lessor that is President of India/Delhi
Development Authority. The answering defendant does became
member of the CoOperative House Building Society. He was
acknowledged as a lessee of the plot by the Lessor that is D.D.A. And
the perpetual lease deed was executed in his favour in respect of the
plot in question. All the related charges like Kaswan charges, stamp
duty etc were paid by the answering defendant. The transfer of the
plot was an unconditional transfer, without any intention to recover
the property at any stage of time. That it is pertinent to mention that
on his becoming a member of the CoOperative House Building
Society and acquiring a plot, the answering defendant became
ineligible to become a member of any other cooperative house
building society or to acquire any other residential property in Delhi.
In case the answering defendant were to acquire any other property in
Delhi, the lease of the property bearing No. E51, Greater Kailash
EnclaveII, New Delhi was liable for cancellation and the plot would
have been resumed by the Lessor. No other party to the suit suffered
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 20 of 75
from such disability. That it is categorically denied that the transfer
of the plot in favour of the answering defendant was for the benefit of
the entire family. It is denied that the transfer was only to enable the
answering defendant to raise a loan. The plot at E51, Greater Kailash
EnclaveII, New Delhi had been transferred in favour of the
answering defendant, as the father of the parties was unable to raise
any resources for constructing a building and due to nonraising of
construction, the lease was liable to be cancelled and the plot
resumed. That on transfer of the plot in favour of the answering
defendant, the answering defendant paid money to the architect for
drawing a building plan. He met all the formalities of getting the plan
approved, getting connection for water, temporary (and eventually
permanent) connection for electricity. The construction of the
building was done entirely by the answering defendant through his
own funds. Loan for the purpose of raising construction, alone was
also taken by the answering defendant. Surety for the above loan was
also arranged by the answering defendant before the loan was
sanctioned. He started repaying the loan from 1975 onwards from his
own funds. The electricity connection, the water connection and the
telephone connection of his house at E51, Greater Kailash Enclave
II, New Delhi are in the name of the answering defendant right from
1975 and he is paying the bills in respect of the same. In the house
tax records of E51, Greater Kailash EnclaveII, New Delhi the
answering defendant is recorded as owner right from 1975 till date
and he is paying the house tax since the beginning. That it is
important to note that the answering defendant had decided to let out
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 21 of 75
the property, the said income was to be utilised for repayment of the
housing loan taken by the answering defendant from Delhi
Administration. The answering defendant being in government
service was entitled to official accommodation. Therefore, he had
decided to let out the property to enable him to repay the loan taken
by him. That the aforesaid plan of the answering defendant could not
fructify in as much as the family was in acute financial crisis. The
father of the parties was about 70 years old and was finding it
extremely difficult to manage its finances and look after his family
members. He, therefore, again approach to the answering defendant
for financial assistance. The answering defendant, therefore, kept his
parents and dependent brothers in his house at E51, Greater Kailash
EnclaveII, New Delhi. That for the purpose of construction of the
building, the respondent made efforts to get his transfer from Nagpur
to Delhi. He met the higher officials of his department and explained his difficulty to them. The answering defendant was assured that he will be transferred to Delhi very soon. In anticipation of the same and to facilitate the construction of the house, the answering defendant rented a house at D42 Greater Kailash EnclaveII, New Delhi very near the plot in Greater Kailash EnclaveII, New Delhi. The answering defendant paid the monthly rent of the said property that is D42, Greater Kailash EnclaveII New Delhi from November 1974 onwards. The answering defendant shifted to Delhi in May 1975 when he got posted to New Delhi and resided in there with his parents and dependent brothers till September 1975, when the construction of E51, Greater Kailash EnclaveII, New Delhi though CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 22 of 75 semi finished, enabling the answering defendant to shift to it. It is pertinent to mention that when the answering defendant had rented the house, his family shifted to it, so as live with the answering defendant on his eventual shifting to Delhi. The family was dependent on the answering defendant and had no option but to reside with him. The answering defendant therefore, permitted the family to stay in the house constructed by him. The same provided a reasonable standard of living to them. The parents of the answering defendant as well as plaintiff No.2 and 4, were fully dependent on the answering defendant once he was posted in Delhi in May 1975 from Nagpur. They stayed with him in the rented house and moved along with him to the newly constructed house of the answering defendant at E51, Greater Kailash EnclaveII, New Delhi. That the answering defendant had sacrificed so much for his family and had faced financial crunch. He had to repay the housing loan which had been taken by him through his own income, without any assistance coming from the rent which he would have earned on the letting out of the property at E51, Greater Kailash EnclaveII, New Delhi. Therefore, the father of the answering defendant decided to compensate the answering defendant for his sacrifice for the family. The father of the answering defendant agreed to pay a sum of Rs. 26,869.50 including interest, which was the outstanding amount on the loan taken by the answering defendant. That the answering defendant had spent an amount of over Rs. 50,000/towards the construction of the building on the plot in question. He had taken a loan of Rs. 27,500/and the rest of the money had been spent by him from his own funds. Out of CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 23 of 75 the aforesaid amount a sum of Rs. 24,750/plus interest of Rs. 2119.58 was repaid from the funds provided by the father of the answering defendant, which funds had been provided to compensate the answering defendant for the sacrifice undertaken by him for the benefit of the family, in not letting out the property and permitting the family to occupy the same. It needs to be mentioned that the answering defendant repaid the first instalment of housing loan and interest of Rs. 3179 on 13/11/1975 and second instalment of Rs. 3717 on 11/11/1976 both out of his own resources. That even though the answering defendant has been providing for his parents and siblings and has been rendering financial and other assistance to them from time to time, the plaintiffs and the other defendants, despite enjoying the benefit of such assistance provided by the answering defendant, started raising a claim to the property in question. That the plaintiffs and the other defendants even force the father of the parties to file a suit for declaration against the answering defendant being suit No.160 of 1981 dated 02/04/1981 titled Sh. Bhal Mukunda Middha versus Sh. Ramesh Midha. In the said suit the father of the answering defendant had claimed that the property bearing No. E51, Greater Kailash EnclaveII, New Delhi was his self acquired property and had been acquired out of his own funds. The very case as has been set up in the present suit was set up by the father of the parties in the said suit. A declaration was prayed from the Hon'ble Court that the father of the parties, late Sh. BM Midha be declared as the owner of the property bearing No. E51, Greater Kailash EnclaveII, New Delhi. The suit was a false and frivolous suit and had no legs to stand on.
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 24 of 75That the aforesaid suit was dismissed by the Hon'ble Court on 26 November, 1982 and the father of the answering defendant did not pursue of the said suit. He was fully aware of the fact that the suit filed by him was a false and frivolous suit and will not withstand judicial scrutiny. The said suit having been dismissed, the claim of the father of the answering defendant as the owner of the property bearing No. E51, Greater Kailash EnclaveII, New Delhi has been negated. The plaintiffs and the other defendants, who are claiming under late Sh. BM Midha are bound by the decision of the aforesaid suit. They are estopped from raising any claim to the property bearing No. E51, Greater Kailash EnclaveII, New Delhi on the principle of res judicata. That in view of the aforesaid submissions it is evident that the suit filed by the plaintiff's is false and frivolous suit. The same has been set up on false averments, only to grab the property of the answering defendant. The answering defendant is the owner of the property No. E51, Greater Kailash EnclaveII, New Delhi, having acquired the same out of his own funds. No other party has any claim to the said property. The answering defendant as the sole and exclusive owner of the said property, is entitled to deal with the same in any manner as he deems fit. That the suit under reply is barred on the principles of res judicata. The very same claim as raised in the suit under reply, had been raised by the father of the parties and which suit, as stated above, has been dismissed. The self same claim cannot be raised again by the plaintiffs, who are claiming under the father of the parties. That it is the answering defendant who has been meeting all the liabilities of property bearing No. E51, Greater CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 25 of 75 Kailash EnclaveII, New Delhi. He is responsible for complying with the provisions of law for the said property. It is pertinent to mention that the house was constructed in 19741975 and finally completed in September, 1976. The completion certificate of the house was obtained by the answering defendant only on 25/04/1996 after meeting all the formalities and paying the compounding fee of Rs. 1202. The answering defendant also carried out extensive renovation and modification to his house at E51, Greater Kailash EnclaveII, New Delhi from 1995 to 1997 as the house was 20 years old and could not be maintained so well after 1980 due to postings outside Delhi as an Officer of the Central Government. That as per the well advertised scheme of the DDA, the answering defendant converted his property at E51, Greater Kailash EnclaveII, New Delhi from his leasehold to freehold w.e.f. 14/09/2000, after paying the following charges:
Conversion charges to DDA Rs. 31,809
Processing fee to DDA Rs. 200
Cooperative housing society for NOC Rs. 500
Registration charges for conveyance Rs. 2565
deed
Enhanced ground rent from 1997 Rs. 345
(provisional)
Miscellaneous expenses Rs. 196
Total Rs. 35,165
That the answering defendant applied for sanction of 1st floor plan of his house at E51, Greater Kailash EnclaveII, New Delhi and also decided to carry out necessary modifications and CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 26 of 75 renovation of the ground floor. The application for sanction of the plan was made on 19th May, 2004. The approval of the building plan was granted on 31/12/2004. Considering that approvals can take a lot of time, the answering defendant after obtaining the approval for the 1st floor also applied for sanction of the 2nd floor of the house on 07/03/2005 and for its sanction paid the required levies and betterment charges of Rs. 34,500/. The answering defendant has been sanctioned the house building loan of Rs. 1,700,000 by IDBI Home Finance Limited on 31/12/2004 for constructing 1st floor and renovating the ground floor of his house at E51, Greater Kailash EnclaveII, New Delhi. This loan is in the joint name of the answering defendant and his elder son Anshul Middha. As per the terms of the house building loan, the property at E51, Greater Kailash EnclaveII, New Delhi has been mortgaged to IDBI Home Finance Limited. It is the answering defendant who is meeting all liabilities towards repayment of the loan and interest thereon. That after completing all formalities for constructing the 1st floor and renovation of ground floor of E51, Greater Kailash EnclaveII, New Delhi, construction has commenced on 10/02/2005 and is substantially complete. The entire property is in occupation of the answering defendant and is being used for his residence.That no alleged joint family funds have been spent for either the acquisition or raising of construction on property bearing No. E51, Greater Kailash EnclaveII, New Delhi. There was/is no joint Hindu family of late Sh. BM Midha his siblings. No such alleged joint family has ever been in existence at any point of time. Therefore, the very question of CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 27 of 75 any alleged joint family funds being in existence or any such alleged funds being invested for the acquisition or construction on the aforesaid property is absurd and does not arise. That the claim of late Sh. BM Midha to the ownership of the property in question has already been negated on the dismissal of the suit filed by him. Even as per the averments made in the suit, the plaintiffs have attempted to build up the case that since the money for the acquisition of the property bearing No. E51, Greater Kailash EnclaveII, New Delhi has allegedly been spent by late Sh. BM Midha, therefore, the same is allegedly a joint Hindu family property and the plaintiffs have a share in the same. It is evident that the entire claim of the plaintiff's is made on the basis of the funds alleged to have been provided by late Sh. BM Midha. The claim of late Sh. BM Midha to the property bearing No. E51, Greater Kailash EnclaveII, New Delhi on the basis of his own funds has already been negated on the dismissal of the suit filed by him. Therefore, the plaintiffs were claiming under late Sh. BM Midha are bound by the dismissal of the suit filed by him. That it is important to note that the plaintiffs are claiming that the property in question has been raised and acquired out of an alleged joint family funds. The plaintiffs have been unable to show the source of the said funds or that such funds were actually used for acquiring the property at E51, Greater Kailash EnclaveII, New Delhi. The onus of proving the source of the joint family funds and its actual utilisation for acquiring the property at E51, Greater Kailash EnclaveII, New Delhi is entirely on the plaintiffs. That having failed to even prima facie show the existence of any alleged joint family funds and any CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 28 of 75 correlation between the acquisition of the property and the alleged joint family funds proves the falsity of the case filed by the plaintiffs. The suit under reply is misconceived and is liable to be dismissed by this Hon'ble Court. That the present suit has been filed by the plaintiff's only to grab the property of the answering defendant. The value of the property has increased manifold since the acquisition of the same by the answering defendant. The plaintiffs have raised a false case to grab the said property and thus cause wrongful loss to the answering defendant and wrongful gain to themselves. The malafide and motivated suit under reply is liable to be dismissed, with heavy costs by this Hon'ble Court. That the plaintiffs have not valued the suit plaint correctly and have not paid the true and correct court fee on the same. The suit under reply is liable to be dismissed on this ground alone. That the suit under reply is barred under 'The Benami Transactions (Prohibition) Act, 1988. The answering defendant is the registered owner of the property, having purchased the same from his own funds. The plaintiffs are estopped from claiming any title, ownership rights in the property bearing No. E51, Greater Kailash EnclaveII, New Delhi, in view of the provisions of the Benami Act. On merits it is denied that there was any Hindu undivided family of late Sh. BM Midha or his siblings. It is contended that the family of late Sh. BM Midha at the relevant time comprised of his wife and 4 minor children. His 4 other children were also born between 1948 and 1954 in the same house at 10236, Library Road. The plaintiffs have used the expression "undivided joint Hindu Family" in this Para with an ulterior motive, as no such CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 29 of 75 joint or undivided Hindu Family was ever in existence. There was no joint/undivided Hindu family. The house occupied by Sh. BM Midha at 10236 Library Road, New Delhi was an evacuee property and was requisitioned by the Government for its own officers. Late Sh. BM Midha was given a notice for eviction, which he contested in Court and obtained a stay. In the meantime the rent of the requisitioned house was enhanced. Late Sh. BM Midha did not pay enhanced rent and contested the enhancement in the Court. He lost the suit against eviction and was evicted sometime in 1961. He could not afford to rent a house having to support a large family comprising at that relevant time of his wife, 2 daughters and 4 sons all minors. His 2 elder sons, plaintif no.5 and plaintiff No.1 respectively had not yet commenced earning. The family was without any accommodation for about 6 months till early November, 1961 when on compassionate grounds, the municipal corporation allotted temporarily on rent for 2 months a tenement to the family at C/109, New Moti Nagar, New Delhi. This was later regularised as allotment on rent. In the meantime late Sh. BM Midha also lost the 2nd suit against and enhancement of rent in respect of the requisitioned house occupied by him at 10236 Library Road, Delhi and was held liable to pay the arrears of enhanced rent of Rs. 6000/. The amount of Rs. 6000/was paid by him from the money received from the sale of his share of the Agricultural land at Matloda near Panipat. That late Sh. BM Midha was issued a share certificate as a member of the EPRRR house building society Limited only after he had paid the full share money of Rs. 100/to the society in 1965. It is necessary to state that CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 30 of 75 payments towards the cost of the plot allotted to the father of the parties, was made out of the contributions made by the answering defendant. The membership of the Cooperative Housing Society was transferred by his father, in favour of the answering defendant and consequently the ownership of the plot also stood transferred to the answering defendant. The perpetual sublease of the same has been executed in favour of the answering defendant by the Lessor. The said property has been converted from leasehold to Freehold and the conveyance deed has also been executed in favour of the answering defendant. The answering defendant is the registered owner of the property and the sole, rightful and exclusive owner of the same. That the property at Greater Kailash EnclaveII New Delhi is the sole, rightful and exclusive property of the answering defendant and he is entitled to own, occupy and possess the same in accordance with law, without any claim whatsoever from anyone else. It is denied that Sh. BM Midha was allotted any piece of land at village, Matloda, District Panipat. It is denied that sale proceeds of the said land have been utilised for purchase of property No. E51, Greater Kailash Enclave II, New Delhi. It is denied that any funds from the sale of any ancestral property has been utilised for the purchase of property bearing No. E51, Greater Kailash EnclaveII, New Delhi. It is contended that the purchase of the plot has been made out of the funds provided by the answering defendant to his father. The construction of the property has also been made out of the funds of the answering defendant. The property bearing No. E51, Greater Kailash EnclaveII, New Delhi is the sole rightful and exclusive CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 31 of 75 property of the answering defendant. No plot of land was allotted to late Sh. BM Midha in lieu of any ancestral property at Pakistan. Late Sh. BM Midha was coowner of agricultural land. The agricultural land at Panipat was sold in 1961. The share of late Sh. BM Midha in the same came to about 6,000/out of the sale of agricultural land. As he had a large family of 8 children and any possible agricultural income also became nil on sale of the property comprising of the agricultural land, he was not able to keep aside the sale proceeds of ancestral property (about 6,000) and spent the same, much before he had to pay the instalments to the cooperative Society between 1963 to 1970. In addition he had to discharge the liability of arrears of enhanced rent amounting to Rs. 6000/for the requisitioned house at 10236 Library Road, Delhi from 1961 onwards. The entire money received from the sale of the agricultural land was spent for discharging the liability arising from the said enhancement of rent as well as household expenditure. It is contended that the property bearing No. E51, Greater Kailash EnclaveII, New Delhi is the self acquired property of the answering defendant. The funds for the purchase of the property had been provided by the answering defendant. The answering defendant had been making regular contributions to his father, which money has been utilised by him for purchase of the land/plot No. E51, Greater Kailash EnclaveII, New Delhi. The membership of the cooperative Society and the plot of land were transferred in favour of the answering defendant. The construction of the building has been made thereafter, by the answering defendant. It is denied that the said property has ever been CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 32 of 75 the property of any alleged joint Hindu family. No such joint Hindu family has ever existed, therefore, the question of any alleged joint Hindu family owning any property does not arise. That the contents of paragraph No.8 are denied. It is submitted that the purchase of the land had been made by the father of the parties from the funds provided by the answering defendant. He did not have any money of his own, for either purchasing the plot or for raising construction on the same. It is due to the said fact that the father of the parties was unable to raise construction on the plot, which rendered the plot liable for cancellation. By 1972, late Sh. BM Midha was 67 years old and it became impossible for him to find resources and to undertake construction of the house on the leasehold plot at E51, Greater Kailash EnclaveII, New Delhi. In addition he had no pension and was finding it difficult to support his dependents, comprising of his wife, and unmarried daughter and 2 sons. The elder daughter of late Sh. BM Midha had been recently married (in June 1969). Towards the marriage expenses of his elder sister, the answering defendant though only 23 and half years in age, had to contribute a substantial amount out of his salary and savings as an Army Officer. This is despite the fact that plaintiff no.5 and the eldest of the brother was at that time about 34 years old and plaintiff no.1 the 2nd brother was also older to the answering defendant. In fact he was already being supported by the answering defendant from time to time for running his family expenses as well as for paying the instalments for plot at E51, Greater Kailash EnclaveII, New Delhi. It is categorically denied that the transfer of the plot in favour of the answering CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 33 of 75 defendant was for the benefit of the entire family. It is denied that the transfer of the plot in the name of the answering defendant was only for the purpose of obtaining a loan for construction. That the father of the parties had no money and had no source of income, either to purchase the plot or to raise construction thereon. Therefore, in lieu of the money provided by the answering defendant, the membership of the cooperative Society and the plot in question was transferred in favour of the answering defendant by the father of the parties. The answering defendant thus became the sole and exclusive owner of the property in question it is denied that the construction of the residential house, which construction has been undertaken by the answering defendant out of his own funds, was for the benefit and residence of any alleged joint Hindu undivided family. The answering defendant as the sole, rightful and exclusive owner of the property bearing No. E51, Greater Kailash EnclaveII, New Delhi has raised construction on the same for his own purposes and not for any alleged joint Hindu family. Late Sh. BM Midha did not have any regular/stable job to support his family, leave aside constructing a house. The question of short notice for constructing the house as mentioned by the plaintiff's does not arise as 2 years, from 1970 to 1972, permitted by the DDA had passed and yet he was unable to raise any resources to undertake construction. This shows the precarious nature of his finances. Since late Sh. BM Middha could not get any benefit out of allotment of leasehold plot at E51, Greater Kailash EnclaveII, New Delhi and since the answering defendant was financially supporting the late Sh. BM Midha and had also CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 34 of 75 provided money to pay instalments for the purchase of the plot at E 51, Greater Kailash EnclaveII, New Delhi, late BM Middha decided to transfer the plot in favour of the answering defendant. It is denied that the transfer of the property bearing No. E51, Greater Kailash EnclaveII, New Delhi in favour of the answering defendant was for the benefit of any/all the coparceners of any alleged joint Hindu family. There was no joint Hindu family, therefore, the question of transfer for the benefit of the alleged joint Hindu family or its members does not arise. It is denied that either the plaintiff's or any of the defendants other than the answering defendant have contributed for the construction of the house. The construction of the house has been made by the answering defendant out of his own funds and through the loans, which have been raised by him. The repayment of the loan instalments has also been done by the answering defendant. It is however pertinent to mention that the father of the parties did not have enough resources to maintain his dependents. Therefore, out of compassion, the answering defendant permitted the family to live in the premises/property bearing No. E 51, Greater Kailash EnclaveII, New Delhi and supported them for their monthly expenses and medical needs. In view of the compassionate gesture of the answering defendant and as a compensation for the sacrifice undertaken by the answering defendant for the family, the father of the answering defendant had repaid a portion of the loan taken by the answering defendant. It is after the answering defendant had repaid the instalments of housing loan of Rs. 6898/up to November, 1976 out of his own resources, CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 35 of 75 without any assistance coming from the rent which he could have earned on letting out the property, that the father of the answering defendant agreed to pay a sum of Rs. 26,869.50P, the outstanding amount of the loan including interest taken by the answering defendant. He prayed this amount in November, 1977 and not in November 1976 as is claimed by the plaintiffs. In case the answering defendant had not permitted the family to reside in the property bearing No. E51, Greater Kailash EnclaveII, New Delhi, he would have let out the property and earned an income from the rent of the same which would have enabled answering defendant to pay the loan taken by him. The said income was forgone by him for helping the family, due to which, the father of the parties had repaid a portion of the loan. The same in no manner converts the sole, rightful and exclusive property of the answering defendant into any alleged joint Hindu family property. It is denied that late Sh. BM Midha shifted to D42 Greater Kailash EnclaveII, New Delhi to monitor construction. The construction was being done by the answering defendant with his own funds. It is the answering defendant who rented the house at D 42 Greater Kailash EnclaveII for supervising construction. It is denied that late Sh. BM Midha let out the municipal accommodation at New Moti Nagar. It is submitted that the house at New Moti Nagar was itself a rented accommodation provided by the Municipal Corporation and sub letting it would have resulted in cancellation of allotment. No right of subletting vested in him. Therefore, the question of subletting the same out on rent does not arise Sh. BM Midha was in no position to pay rent for hiring a house at Greater CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 36 of 75 Kailash. It is the answering defendant who paid the rent for the accommodation at D42 Greater Kailash EnclaveII New Delhi. He also permitted his parents and 2 dependent brothers to move into the new house only because late Sh. BM Midha was 70 years old and was unable to support himself and his dependents comprising of his wife and 2 dependent sons (plaintiff no.2 and 4) as late Sh. BM Midha was in the extreme financial crisis. It is denied that the construction of the house at E51, Greater Kailash EnclaveII, New Delhi was completed in 1975. It was in a semifinished condition when the answering defendant decided to move in. The answering defendant permitted his parents and 2 dependent's brothers to occupy the property bearing No. E51, Greater Kailash EnclaveII, New Delhi to help them in a situation of extreme financial crisis. The house No.C109, Moti Nagar, New Delhi was itself a rented accommodation, therefore, the question of further renting out the same or selling it does not arise. The father of the parties was never the owner of the said property therefore there is no question of sale of the same by him at any point of time, much less in the year 1984. The purchase of property bearing No.A 42/10, DLF Qutab Enclave, PhaseI, Gurgaon is not denied. However the property is in the joint name of late Sh. BM Midha and late Smt. Vidyawati Midha. The said property is a joint property of the parties, having inherited the same from their parents. The answering defendant is also entitled to his share in the same. The construction of the house had already been completed by September, 1976. Therefore, the question of any alleged agreement for construction of the house, after construction CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 37 of 75 had already been completed, is absurd and does not arise. It is denied that any agreement was executed between the parties on 15/08/1977 or any other point of time relating to property No. E51, Greater Kailash EnclaveII, New Delhi. The reproduction of the alleged agreement is incorrect and is denied, and no such agreement was ever executed by the parties, the question of their being any alleged terms of such agreement does not arise. Even if it is assumed for the sake of argument, though it is otherwise denied, that there is any alleged agreement in existence, even then, such an agreement requires registration as the same creates right in an immovable property in favour of the parties. No such registration of the said alleged agreement has been done, even as per the case set up by the plaintiff's. The said unregistered document, even if it is assumed to be in existence, is in admissible in evidence and cannot be considered or looked into by this Hon'ble Court. In fact late Sh. BM Midha filed a suit in 1981 to get the socalled agreement implemented. This suit was dismissed by the Court for non prosecution as late Sh. BM Midha knew that it was a frivolous and false suit and that he had no case. That from time to time the answering defendant has been permitting his siblings to live in the property as a family gesture. The same does not confer any right on the plaintiffs or the other defendants to the property bearing No. E51, Greater Kailash EnclaveII, New Delhi, which remains the sole and exclusive property of the answering defendant. It is denied that the property bearing No. E51, Greater Kailash EnclaveII, New Delhi is the joint undivided Hindu family property. It is denied that the plaintiffs or the CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 38 of 75 other defendants have any right to the same. It is denied that any other family member has contributed towards the purchase or construction of the property. It is denied that the plaintiffs No.2 and 4 have contributed for the maintenance of the premises or payment of any taxes. In fact even when the siblings were staying with the answering defendant by virtue of being dependent on the father the answering defendant found employment and the answering defendant was still posted in Delhi, they continued to enjoy financial support of the answering defendant as their jobs were not stable right 10/02/1980 when the answering defendant temporarily shifted to Bombay along with his family. The purchase of the property and the construction of the same is out of the self acquired funds of the answering defendant. The property is the sole and exclusive property of the answering defendant. It is how were submitted that from time to time the answering defendant has been permitting his siblings to live in the property as a family gesture. The same does not confer any right on the plaintiffs or the other defendants to the property bearing No. E51, Greater Kailash EnclaveII, New Delhi, which remains the sole and exclusive property of the answering defendant. That right till the end of the answering defendant has been financially supporting his parents and it is for this reason alone that the mother and the father of the parties were residing with the answering defendant. It is also important to note that several of the plaintiffs had refused to financially support the parents in the past. It is denied that any will was executed by the father of the parties on 27/04/1989. Even assuming such a Will to be in existence, even then the property CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 39 of 75 bearing No. E51, Greater Kailash EnclaveII, New Delhi being the sole, rightful and exclusive property of the answering defendant, his father had no right to bequeath the same to any one or contain any reference to the shares of any person in the same. The only true Will executed by the father of the parties was executed on 01/11/1991. It is denied that the answering defendant coerced late Sh. BM Midha to make the true will dated 01/11/1991. This allegation is false, misleading, mysterious and without any basis. This is true will was in fact was signed in the presence of 2 witnesses who were neighbours and have known the family right from the 1970s/early 1980s. In fact a mischief has apparently been committed by the plaintiffs. The true will dated 01/11/1991 has never been revoked by the father of the parties. This is his last will and testament. The reproduction of the terms of the alleged will dated 27/04/1989 and the alleged will dated 24/11/1991 are with ulterior motives and the contents are false and incorrect and are denied. It is denied that the property bearing No. E 51, Greater Kailash EnclaveII, New Delhi is the property of any alleged Hindu undivided family or that the plaintiffs are the co owners and/or that the plaintiff are in constructive possession of the same. It is denied that the plaintiffs are in constructive possession of the property bearing A/4210, DLF Qutab Enclave. On the contrary, this property has not been registered and is liable for cancellation for non fulfilment of legal formalities and nonpayment of certain deals, as per Final Notice of DLF dated 3rd June, 2005. The property bearing No. E51, Greater Kailash EnclaveII, New Delhi is the sole, rightful and exclusive property of the answering defendant and he is CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 40 of 75 in exclusive occupation of the said property. Mainly because the answering defendant has permitted plaintiff and No.5 to stay in his house primarily on humanitarian grounds, does not amount to conferring any ownership on him or constructive possession of the property by him or any of the other plaintiffs through him. It is denied that the father of the parties left behind any small bank account or any household goods in the property bearing No. E51, Greater Kailash EnclaveII, New Delhi. On the contrary, plaintiff no.2 and plaintiff no.4 have yet to account for the jewellery and household effects that the parents of the answering defendant and plaintiffs, left behind after their death. All the household goods present in the property bearing No. E51, Greater Kailash EnclaveII, New Delhi belong to the answering defendant. The plaintiffs or the other defendants have no right to the property bearing No. E51, Greater Kailash EnclaveII, New Delhi or any goods present in the same. It is however submitted that the answering defendant is entitled to his share in the property bearing No.A/42/10, Qutab Enclave, Gurgaon, Haryana. It is denied that the plaintiffs or the parties are the coparceners of any alleged Hindu undivided family. It is denied that the plaintiffs are entitled to partition of the property bearing No. E 51, Greater Kailash EnclaveII, New Delhi or any share in the same. It is denied that the plaintiffs are entitled to any share, much less 1/6th share in the property No. E51, Greater Kailash EnclaveII, New Delhi. It is denied that the plaintiffs are entitled to 1/5th share in the property at Gurgaon. The property No. E51, Greater Kailash EnclaveII, New Delhi, is the sole, rightful and exclusive property of CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 41 of 75 the answering defendant and he is entitled to hold the same exclusively in accordance with law. The answering defendant is further entitled to his share in the property at Gurgaon. The defendant No.1 as the sole, rightful and exclusive owner of the property is entitled to raise construction on the same, which is being done by him in accordance with law. It is denied that the property No. E51, Greater Kailash EnclaveII, New Delhi is liable to be partitioned. It is denied that the plaintiffs or the other defendants have any right or share in the property No. E51, Greater Kailash EnclaveII, New Delhi. It is denied that the plaintiffs are entitled to any decree of permanent injunction as prayed for. It is contended that the answering defendant as the sole, rightful and exclusive owner of the property No. E51, Greater Kailash EnclaveII, New Delhi is entitled to exercise all rights of ownership in respect of the same, in accordance with law. The answering defendant is entitled to raise construction in the property No. E51, Greater Kailash EnclaveII, New Delhi and to enjoy the same to the exclusion of all other parties. The answering defendant is also entitled to alienate and sell the property bearing No. E51, Greater Kailash EnclaveII, New Delhi or to deal with it in any manner as he so desires. It is denied that the Plaintiff's are entitled to 1/5th share of immovable property bearing plot no.T42/10, Qutab Enclave, Gurgaon. That the suit filed by the plaintiffs is false, frivolous, misleading and designed to harass the defendant No.1, damages be awarded to defendant No.1 in addition to defendant No.1 being awarded the entire cost of defending the present suit. That there is no cause of action in favour of the plaintiffs or against the CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 42 of 75 answering defendant. No cause of action existed in favour of the plaintiff either in 1977 or on any subsequent dates as falsely claimed by the plaintiffs. In fact the suit was filed in the Court in 1981 by the father of the plaintiff's but it was dismissed on 26/11/1982 and thereafter no suit was filed by either the father of the plaintiffs or plaintiffs themselves for a long period of 23 years from 1982 to 2005 and this is an acknowledgement of the fact that the answering defendant is the sole, exclusive and rightful owner of the property at E51, Greater Kailash EnclaveII, New Delhi. That the plaintiffs have wrongly valued the property bearing E51, Greater Kailash Enclave II, New Delhi. That the valuation of the property bearing No. E51, Greater Kailash EnclaveII, New Delhi is incorrect and the suit has not been properly valued and the proper Court fee has not been fixed by the plaintiffs. It is liable to be dismissed on this ground alone. The suit is undervalued and the proper Court fee has not been paid on the same. The suit under reply is misconceived and is liable to be dismissed by this Hon'ble Court.
3. Upon completion of the pleadings, the following issues are framed on 07.02.2006: (1) Whether Sh. B.M. Midha had any undivided Hindu Family? If yes, did it own any property? OPP (2) Whether property no.E51, Greater Kailash EnclaveII, New Delhi has been purchased out of an alleged joint family corpus? OPP (3) Whether the defendant no.1 is the sole and exclusive owner of the property No.E51, Greater Kailash CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 43 of 75 Enclave II, New Delhi? OPD (4) Whether the plaintiffs have made any contribution for purchase/construction of property No.E51, Greater Kailash II, New Delhi? OPP (5) Whether property no.A/4210, Qutab Enclave, Phase I, Gurgaon, Haryana is to be divided amongst the parties? If yes, in what shares? OPP (6) Whether the suit is not maintainable in its present form? OPD (7) Whether the suit is barred under "The Benami Transactions (Prohibition) Act, 1988? OPD (8) Whether the present suit is barred on the principles of resjudicata? OPD (9) Whether the suit has not properly valued for the purposes of court fee and jurisdiction? OPD (10) Whether the suit property is liable to be partitioned as prayed by the plaintiff? OPP (11) Whether the plaintiff is entitled to a decree for injunction as prayed? OPP (12) Relief.
4. The plaintiff has stepped into the witness box as PW1 and besides his affidavit in evidence has tendered into evidence the possession letter dated 26.7.1970 as Ex.P1, sub lease dated 3.10.1972 and lease dated 2.4.1970 an admitted document as Ex.D1, letter dated 16.5.1972 written by the father of the parties to the society as Ex.P2, CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 44 of 75 letter written by the defendant no.1 dated 16.5.1972 to the society as Ex.P3, letter dated 7.7.1992 by DDA granting approval to the society to transfer the plot as Ex.P4, loan approval letter dated 30.9.1974 as Ex.P5, all these documents are admitted documents. The PW1 has tendered letter dated 17.1.1987 from Bank of India as Ex.PW1/1, Will dated 27.4.1989 as Ex.PW1/2, Will dated 24.11.1991 as Ex.PW1/3 and Will dated 1.11.1991 as Ex.P6. The plaintiff no.2 has stepped into the witness box as PW2 and has relied upon the admitted documents letters dated 18.12.1976 and 7.1.1997 to DDA by the defendant no.1 as Ex.P10 and Ex.P11. PW2 has also relied upon the documents tendered into evidence by the PW1. Plaintiff no.3 is examined as PW3 who has relied upon the admitted documents as tendered by PW1, and has tendered into evidence agreement dated 15.8.1977 as Ex.PW3/1. Plaintiff no.4 is examined as PW4 and plaintiff no.5 is examined as PW5.
5. The defendant no.1 has stepped into the witness box as DW1 and besides relying on admitted document including the perpetual lease deed , Ex.D1, has tendered into evidence copy of sanction letter issued by DDA as Mark A, and relies upon agreement dated 15.11.1974 with Sh. Ishtiaq Ali as Ex.D2, list of labour rates as Ex.D3, bill dated 6.12.1974 as Ex.D4, bill dated 25.12.1974 as Ex.D5, receipt for labour charges as Ex.D6, bill dated 9.8.1976 as Ex.D7 colly., bill dated 17.10.75 as Ex.D8, Ex.D8 to Ex.D19 are bills of different dates, letter of DESU dated 25.9.1975 is Ex.D20, receipt issued b y DESU is Ex.D21, demand note issued by MTNL is Ex.D22, water bill is Ex.D23, House tax assessment in favour of CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 45 of 75 defendant no.1 is Ex.D24, property tax receipt is Ex.D25, occupancy certificate dated 25.4.1996 is Ex.D26, property tax receipt dated 25.10.04 is Ex.D27, summons for settlement of issues dated 30.5.1981 as Ex.PW3/X3, plaint as Ex.PW3/X1, order dated 26.11.1982 as Ex.PW3/X2, copy of conveyance deed as Mark B, the declaration of the defendant no.1 before the employer as Ex.D28.
6. My issue wise findings are as under I shall take up for discussion all the issues together except issue no.9 as the issues are interconnected and interlinked having consequential bearing on each other. I have found it to be of considerable expedience to gather at the outset facts on which there is no contest between the parties, what in other words would be the admitted case of the parties. The parties to the suit are sons , daughter and the legal heirs of the deceased daughter of late Sh. Bal Mukund Gupta, and the suit of the plaintiffs is for partition of properties described as follows:
(a) Plot no.E51, Greater Kailash EnclaveII, New Delhi.
(b) Plot no.A/4210, Qutub Enclave, Phase I, Gurgaon, Haryana.
Late Sh. Bal Mukind Midha was blessed with 6 sons and 2 daughters. The suit for partition with consequential relief is instituted by 5 sons of late Sh. Bal Mukund Midha against their one brother, who claims himself to be the absolute and exclusive owner of property described as bearing no.E51, Greater Kailash EnclaveII, New Delhi and the daughter and legal heirs of the deceased daughter of late Sh. Bal Mukund Midha are impleaded as party defendants, CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 46 of 75 proforma, for the purposes of determining the share, in the suit properties, though the entitlement being claimed by the plaintiffs in respect of the twin properties described supra is not stated to be disputed by the surviving sister or the legal heirs of the deceased sister. Sh. Bal Mukund Midha belonged to Vill. Kamalia, District Lyalpur in the undivided India and following partition in 1947 migrated to India and settled at Delhi along with his 3 sons, plaintiff no. 1 and 5 and defendant no.1, and one daughter (since deceased), the other children 3 sons and one daughter (plaintiffs 2 to 4 and defendant no.2) of late Sh. Bal Mukund Midha are born in Delhi. Sh. Bal Mukund Midha along with his family came to occupy a vacant house bearing no.10236, Library Road, Azad Market Delhi, and remained in occupation thereof till his eviction therefrom in the year 1961. He was provided with an alternate accommodation by the MCD in 1961 bearing no.C109, New Moti Nagar, New Delhi. Sh. Bal Mukund Midha was employed with the Indian Railways even before the partition of the country and retired from the services in 1961. Sh. Bal Mukund Midha being a railway employee became member of the cooperative society formed by the Railways employees, under the name of East Pakistan Railway Refugee Rehabilitation and House Building Cooperative Society Ltd, and was issued a share certificate of a member and became entitled to allotment of a plot of land and on 22.4.1970 Plot bearing no.E51, Greater Kailash EnclaveII, New Delhi, measuring 200 sq. yards, was sub leased in favour of Sh. B.M. Midha, as member of the society Physical possession of the plot was taken over on 26.7.1970 vide CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 47 of 75 possession letter dated 26.7.1970, Ex.P1, an admitted document. Sh. B.M. Midha vide letter dated 16.5.1972 sought permission from the society for transfer of the sub lease in favour of his son, the defendant no.1. The request letter dated 16.5.1972 is again an admitted document contents whereof are relied upon by both the parties in support of their respective claims and I shall reproduce the contents hereunder for ready reference at the subsequent stage of the discussion. The document reads as follows:
1651972 The E.P. Railway Refugee, Rehabilitation & House Building Cooperative Society Limited, New Delhi.
Subject: Transfer of Residential Plot on Perpetual sub lease. Dear Sir:
I am a member of the E.P. Railway Refugee Rehabilitation and House Building Cooperative Society Limited since 1948 and as such Plot No.E51, Block No.II in the lay out plan of the above mentioned society was sub leased to me on 22nd April 1970 nearly after 22 years of membership with the society. Since I retired from the Railways in 1961 and have no source of income at present, I am not entitled to any loan from any source for constructing the house on the plot. As such I may please be permitted to transfer this plot to my son Capt. Ramesh Chander Midha who can get loan for construction only when the plot is in his name.
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 48 of 75
Thanks,
Yours sincerely,
Sd/
(Balmukund)
Dated: S/o Shri Jauggi Ram
As the transfer could be effected as per the terms and conditions of the sub lease in favour of a member of the society exclusively the defendant no.1 applied to the society for being enrolled as a member of the society vide application dated 16.5.1972, Ex.P2 again an admitted document which is along the following lines.
The E.P.Railway Refugee, Rehabilitation & House Building Cooperative Society Ltd., New Delhi.
Subject: Transfer of Residential Plot on Perpetual Sub Lease. Dear Sir, As desired by my father Sh. Balmukund Midha I may please be made a member of the society and the plot no.E51 in part II be transferred in my name so that construction of the house can be completed as early as possible.
Thanks.
Yours sincerely, (Capt R C Midha) S/o Sh. B.M. Midha The necessary permission as sought for in the facts and CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 49 of 75 circumstances as described by the father of the parties in favour of the defendant no.1 was granted by the DDA vide letter dated 17.7.1992 and the relevant portion of the sanction accorded reads as follows:
Sir, With reference to your letter no.7EP/3/11 dated 13.6.72 on the above subject I am directed to convey the approval of the Lt. Governor Delhi to the transfer of plot no.E51, Block II in E.P.R. Cooperative House Building Society, which stands earmarked for allotment to Sh. Balmukund in the name of his son Sh. Cap. Ramesh Chander Midha. He should be enrolled as a member of your society provided he is eligible for allotment of a residential plot.
Yours faithfully, (R.C. Sharma) Executive Officer (C.S.) And thereafter a perpetual sub lease dated 3.10.1972 was executed between the President of India, the lessor, the EPRR Society the lessee and the defendant no.1 sub lessee and consequently thereupon conveyance deed dated 14.9.2000 on the basis of the perpetual sub lease has also been executed in favour of the defendant no.1 by the President of India in respect of property bearing no.E51, Greater Kailash EnclaveII, New Delhi.
7. So far as property bearing no.A/4210, Qutub Enclave PhaseI, Gurgaon is concerned, there is no contest between the parties, the legal heirs of late Sh. Bal Mukund Midha, and the parties are in unison that this property was acquired by the late father of the CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 50 of 75 parties during his lifetime jointly with their mother and that he died intestate in respect thereof and that the property has devolved upon the parties as the class I legal heirs of late Sh. Bal Mukund Midha as per Section 8 of the Hindu Succession Act, 1956 and the parties have no objection if a decree of partition in respect thereof is passed declaring that the parties are entitled to an equal share each in the property bearing no. A/4210, Qutub Enclave PhaseI, Gurgaon.
It is property bearing no.E51, Greater Kailash EnclaveII that is the bone of contention between the brothers, the 6 sons of late Sh. Bal Mukund Midha. Whereas the defendant no.1 claims himself to be the absolute owner of property bearing no.E51, Greater Kailash EnclaveII on the strength of the perpetual lease deed and the consequent conveyance deed executed in respect of the said property in his favour, it is the case of the plaintiff that the suit property was acquired by the late father of the parties as the Karta of the HUF constituted of their father and his progenies with their mother and transferred in the name of defendant no.1 in his capacity as a coparcenor and that the property is acquired from sale proceeds of ancestral property and the funds contributed by all the members of the HUF. It is for the plaint to stand on its own legs and the onus probandi falls squarely on the shoulder of the plaintiff. The plaintiff besides the oral depositions of the plaintiffs examined as PW1 to PW5 relied upon possession letter dated 26.7.1970 Ex.P1; letter of request dated 16.5.1972 Ex.P2; Agreement dated 15.8.1977 Ex.PW3/1; and the recitals in the Wills of late father of the parties dated 27.4.1989, and 24.11.1991 as Ex.PW1/2, and Ex.PW1/3 and CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 51 of 75 also Ex.PW1/1, the certificate issued by Manager, SBI in respect of the payment made by Sh. B.M. Midha to the Assistant Housing Commissioner (Loan) Delhi Admin in support of the plaintiffs contention that the property in dispute is acquired by Sh. Bal Mukund Midha as Karta of HUF constituted of his wife, his sons and daughters.
Joint and undivided family is the normal condition of Hindu society. A joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters, a daughter however ceases to be members of a father's family on marriage and becomes the member of a her husbands family. A Hindu Family is ordinarily joint not only in estate but also in food and worship, the existence of joint estate is however not an essential requisite to constitute joint family and family which does not own property may nevertheless be joint. Where there is joint estate and members of the family become separate in estate the family ceases to be joint, however mere severance in food and worship does not operate as a separation. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family. A Hindu coparcenary is a much narrower body than a joint family. It includes only those persons who acquire by birth title and interest in the joint or coparcenary property. The conception of a joint Hindu family constituting a coparcenary is that of a male ancestor with his lineal descendants within 4 degrees counting from and inclusive of such ancestors. No coparcenary can commence without, a common male ancestor. A coparcenary is purely a creature CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 52 of 75 of law. The Hindu Succession Act, 1956, has brought about some radical changes in the law of succession without abolishing the joint family and the joint family property. It does not interfere with the special rights of those who are members of a Mitakshara coparcenary governed by section 6 of the Hindu Succession Act 1956. The Cardinal doctrine of Mitakshara law that property inherited by Hindu from his father, father's father, while father's father's father's ancestral property (and obstructed heritage) as regards his own Male issue that is his son, grandson and greatgrandson and that his male issues acquire an interest in it from the moment of their birth and they become coparceners with their paternal ancestors in such property immediately on their birth has been vitally affected by section 8 of the Hindu Succession Act. Moreover section 6 itself following the Hindu succession (Amendment) Act, 2005 has brought farreaching and sweeping changes by including daughters in the Mitakshara coparcenary, and vesting equal rights in the coparcenary in the daughters with the sons. The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparcenary. According to the true notion of undivided family governed by Mitakshara law, no individual member of that family while it remains undivided can predicate of the joint and undivided property his definite share. His interest is a fluctuating interest, capable of being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to definite shares and the most appropriate term to describe the interest of coparcener in a CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 53 of 75 coparcenary property is undivided coparcenary interest and the rights of each coparcener until the partition takes place is in common possession and common enjoyment of the coparcenary property.
I have borrowed extensively from Mulla's celebrated treatise on Hindu Law for conceptual clarity to facilitate the discussion on the nuances of the controversy at hand. Property according to Hindu law may be divided into 2 classes as per Mulla on Hindu Law i.e.
(i)Joint family property
(ii) separate property Joint family property is further classified according to the source from which it comes into the following i.e.
(i) Ancestral property and
(ii) Separate property of persons thrown into the coparcenary stock.
Property jointly acquired by the members of a joint family, with the aid of ancestral property is indubitably joint family property. Property jointly acquired by the members of the joint family without the aid of ancestral property may or may not be joint family property, whether it is so or not is a question of fact in each case. Joint family property is purely a creation of Hindu law and those who own it is called coparceners. Ancestral property one species of joint family property is defined as follows by Mulla;
221. Ancestral property. (1) Property inherited from paternal ancestor.All property inherited by a male Hindu from his CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 54 of 75 father, father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that his sons, grandsons and greatgrandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth....."
Property which was originally the separate self acquired property of the member of the joint family may by operation of the doctrine of blending become joint family property if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. In such a case a clear intention to waive his separate rights must be established and it cannot be inferred from the mere fact of the permissive usage of the property by the other members of the family conjointly with himself. The act by which the coparceners throws his separate property in to the common stock is a unilateral act and a matter of individual volition. As soon as she declares his intention to treat his self acquired property as that of the joint family, the property assumes the character of joint family property. The existence of coparcenary property is essential for blending of the coparceners separate property with the coparcenary property since if there is no coparcenary property there can obviously be no blending or throwing of sell self acquired property into the common stock. Also where members of the joint family who have control over the joint estate blend with that estate property in which they have separate interests the effect is that all the property so blended becomes joint family property. Where property has been acquired in business by persons constituting a joint CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 55 of 75 Hindu family by their joint labour the question arises whether the property so acquired is joint family property or whether it is merely the joint property of the joint acquirers or whether it is ordinarily partnership property. It is only If the property so acquired is with the aid of joint family property that it becomes joint family property. Property developed with the joint efforts of father's and sons is joint family property. The property jointly acquired by members of the joint family without the aid of joint family property is presumed to be joint however there is no presumption that the property is joint family property.
8. Whereas in the plaint it is stated that Sh. Bal Mukund Midha became a member of the East Punjab Rehabilitation And Housing Development society somewhere during the year 1958 1959, in the affidavit in evidence, all the witnesses of the plaintiff refer to the year of 19481949 as the timeline during which Sh. Bal Mukund Midha became a Member of the society and in Ex.P2, an admitted document, dated 16.5.1972, written by Sh. Bal Mukund Midha to the E.P. Railway Refugee Rehabilitation and House Building Cooperative Society Ltd., it is stated that Sh. Bal Mukund Midha is a member of the society since 1948.What therefore emerges is that Sh. Bal Mukund Midha migrated and settled at Delhi in 1947 and became a member of the society in 1948.
The eldest son of late Shri Bal Mukund Midha, the plaintiff number 5, born in 1935, in the year 1947 when the father of the parties migrated to India and came to settle at Delhi along with his 2 sons and one daughter, was 12 years of age, the plaintiff no.1 born CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 56 of 75 on 04/02/1943, the 2nd eldest of the 6 sons and 2 daughters of late Sh. Bal Mukund Midha was around 4 years of age, the now deceased sister of the plaintiffs whose legal heirs are impleaded as defendants the 3, 4 and 5 was 3 years of age and the defendant number 1 himself was one year old. Sh. Bal Mukund Middha alongwith his sons and daughter including the mother of the parties occupied a vacant house bearing number 10236 at library Road, Azad Market, Delhi. The brother of late Sh. Bal Mukund Midha along with family also joined, the family of late Sh. Bal Mukund Midda at the aforestated residence and the grandparents of the plaintiffs were also residing with the family of Sh. Bal Mukund Midha, however the HUF is alleged to be comprised of Sh. Bal Mukund Midha and his sons and daughters along with his wife. Sh. Bal Mukund Midha being the common ancestor with the immediate lineal descendats his sons and daughter and wife constituted a joint family. There is a presumption that a Hindu Family is joint and undivided, however there is no presumption that property of a Hindu Male is Joint family property. In 1948 when Sh. Bal Mukund Midha because a member of the society, all the sons and daughters of late Sh. Bal Mukund Midha were minors and were dependent on Sh. Bal Mukund Midha incapable of extending any financial assistance. Sh. Bal Mukund Midha was enrolled as a member by virtue of being employee of the Railways and exclusively in such capacity as the society was constituted by the East Pakistan Refugee employees of the Railways. The sub lease is executed in favour of Sh. Bal Mukund Midha as is borne out from the statements attributed to Sh. Bal CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 57 of 75 Mukund Midha under an admitted document, Ex.P2 on 22.4.1970, Much water had flown down the Ganges by the time Sh. Bal Mukund Midha had acquired title in the suit property as a sub lessee of the EPRR Society. The plaintiff no.2 is born on 18.4.1951, plaintiff no.3 is born on 19.4.1950 and DOB of plaintiff no.4 is 6.7.1954, the defendant no.2 was born in 1948, all born at Delhi. Sh. Bal Mukund Midha retired from the Railways in the year 1963 upon reaching the age of superannuation. The elder daughterwas got married in 1969 and the younger daughter was married off in 1973. The eldest son had gained employment in the year 1957 and had shifted to Bombay in connection with his employment and returned to Delhi only in the year 1985. The plaintiff no.4 the youngest son of Sh. Bal Mukund Midha was pursuing his studies. Plaintiff no.3 secured employment with the Indian Railways in the year 1971 after finishing his studies in 1969 and got posted at Gujrat. The plaintiff no.1 got employment in Bhillai in the year 1961. The defendant no.1 completed his graduation in 1965 from Bhillai. Plaintiff no.2 started earning in 1976. In 1970 when the property came to vest in the father of the parties, one daughter was married away and no longer a member of the fathers HUF, 2 sons had gained employment and were settled at Bhillai and Bombay, one son was pursuing studies at Bhillai, one son was pursuing his studies at Delhi and one son had concluded the studies and was seeking employment. The existence of a HUF, comprising of Sh. Bal Mukund Midha as the Karta along with his all sons and daughters is not duly reflected from the status and placement of the individual members as in 1970. There is no CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 58 of 75 common residence with joint food and worship, there is no joint estate pleaded to be in existence prior to 1970. The property in dispute is the only property alleged to be acquired by the HUF of Sh. Bal Mukund Midha. The existence of a joint corpus is also not alleged. There is no separate bank account in the name of the HUF.
9. It has come in the cross examination of PW2 that part payment of Rs.1700 towards the purchase price of the property is made in the year 1963, second installment was paid in 1964 and third installment of Rs.1400 was cleared in 1967 then in 1968 and last installment was paid up in 1970. The plaintiffs do not allege the existence of a joint family corpus which defrayed the payments to be made for the acquisition of the interest in the property in dispute by the father; however it is the assertion of the plaintiffs that as the property was acquired from the application of the funds obtained from the disposal of ancestral property at Matloda in Panipat, therefore the property has acquired the color of HUF property. The plaintiffs in the pleadings and examination in chief have not divulged any details of the ancestral property left behind at Vill. Kamaliya. PW2 has vaguely described the ancestral property as residential house and landed property. No documents in respect of the allotment of Matloda property are placed on record. What the plaintiffs have disclosed in the course of their cross examination is that the property allotted to the grandfather of the parties at Matloda was sold in the year 1961 for a total sale consideration of Rs.30,000/ and a sum of Rs.6000/ out of the sale proceeds was received by the father of the parties as his share. There is no documentary evidence CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 59 of 75 attempted to be adduced in support of the contention and even if the entire case to this effect as set up by the plaintiffs is taken to be correct, upon division of the sale proceeds accruing from transfer of ancestral property between the individual members of HUF or co sharers or joint owners, the money in the hands of the Individual member as his share received no longer forms a HUF asset but is his separate property and application of such monies towards acquisition of an immovable asset would not ipso facto give the color of HUF property to the immovable property so acquired. Upon a division/partition of ancestral property the share of the individual member of HUF is his separate property and is no longer ancestral in his hands as regards his lineal descendants. It is only where property devolves by inheritance from the lineal ascendant, that the property is ancestral and HUF. A division of ancestral property takes away the color of HUF property and clothes it as self acquired/separate property of the individual member. Therefore even if it were that the property at Matloda was allotted in lieu of ancestral property and was ancestral property in the hands of the father of the parties upon a division thereof the share in the sale proceeds is no longer HUF asset and property acquired from the application of such fund is not presumed to be HUF property.
The plot no. E51, Block II was earmarked for allotment to Sh. Bal Mukund Midha as a member of EPRR Society, a Cooperative constituted of the Railway employees who had migrated from the erstwhile East Punjab, in his capacity as a Railway employee having migrated from erstwhile East Punjab. It has also come in cross CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 60 of 75 examination of the plaintiffs that the last installment for the plot was made in 1970. The sub lease is executed on 22.4.1970 in favour of Sh. Bal Mukund Midha and the last installment was paid up by 1970. There is no joint family corpus of funds in existence in 1970, the money in the hands of Sh. Bal Mukund Midha received in 1961 was not an ancestral asset, the plaintiffs do not allege that the plaintiffs had contributed towards the payment of the installments as all the plaintiffs were either pursuing their studies or had recently embarked upon their careers and were in the process of finding their place under the sun, struggling to stand on their feet.
10. The eldest son of Sh. Bal Mukund Midha, deposing as PW5 admits in the course of cross examination that:
"I do not have any such document to indicate the property no.E51, G K Enclave, PartII, New Delhi has been referred as Joint Hindu Family funds except the agreement (Ex.PW3/1). At this stage, the original agreement (Ex.PW3/1 is shown to the witness from the judicial record. After going through the said agreement the witness states that it is not specifically mentioned therein that the property no.E51. G.K Enclave, PartII, New Delhi having been purchased from Joint Hindu Family funds, however, this property belonged to my father. My claim in the present suit is also based upon this agreement..."
The plaintiffs have tendered into evidence a family settlement/agreement dated 15.8.1977 arrived at between the Sh. Bal Mukund Midha the defendant no.1 and plaintiff no.5 and 3. The contents of the document indicate that the dispute between the family CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 61 of 75 members had been simmering for some time and it was to lay at rest any misgivings and to preempt any discord between the family members as the property had already become a bone of contention between the family members, the father and the sons, a settlement/agreement between the parties was penned down. What is pertinent is that Sh. Bal Mukund Middha, alleged by the plaintiffs to have acquired the suit property as a Karta of the HUF comprising of the plaintiffs and the defendants, nowhere has referred to the suit property as HUF property. When the agreement is read as a whole the outstanding concern of the family members appears to be the apportionment and disbursement of the amounts spent in raising of the construction over the disputed property. The parties do not appear ad idem that the parties are coparceners, co sharers, co owners, the property being jointly acquired or out of a HUF corpus being HUF property. The parties are in unison that the amounts that are spent by the respective parties towards the construction raised shall be considered as the first charge on the property. What is secured is a right to use the premises for the purposes of residence and in the event of the property being sold it was agreed that the party/parties who had made expenditure on account of construction shall be reimbursed.
The agreement dated 15.08.1977 Ex.PW1/1 is introduced rather abruptly by me in the course of the discussion, the backdrop is relevant as the document set up by the plaintiffs and denied by the defendant no.1 carries statements imputed to Sh. Bal Mukund Midha not in consonance with the claim of the plaintiffs. The property is CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 62 of 75 alleged to have been transferred by the father of the parties only as a measure of expedience acting as the Karta of the HUF in favour of a coparcenor in order to avail loan from the financial institutions for raising construction within the stipulated period to prevent the forfeiture of the lease in respect of the property. The plaintiffs futher contend that though the loan was availed in the name of defendant no.1, however it was repaid by Sh. Bal Mukund Midha and all the members of the HUF contributed funds and resources, time and money towards the raising of the construction over the property as the defendant no.1 was posted at Nagpur when the construction was being raised and the family shifted to the premises in the year 1975. Plaintiff No.2 it is contended supervised the construction by commuting from Moti Nagar to Greater Kailash and subsequently an accommodation near to the property was secured on a monthly rent of Rs. 200/, it is another aspect of the matter that whereas the plaintiffs contend rent was paid by late father, the defendant no. 1 alleges that he paid for the rent; steel, pipes and pipe fittings were supplied by the company in which plaintiff no. 5 was working and the payments in respect of the material was made by him, Plaintiff no. 5 also made payments directly to the contractor, the plaintiff no. 3 is stated to have contributed an amount of Rs. 15000/ utilised in the cost of material and payment made to labour. It is the case of the plaintiff that even after the transfer of the property in the name of the defendant no.1, all the members of the HUF comprising of Sh. Bal Mukund Midha and his sons contributed to the raising of construction over the plot as the property belonged to the HUF and CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 63 of 75 had been transferred in favour of one of the coparceners by the Karta of the HUF for the benefit of all the coparceners. The loan was approved in favour of defendant no.1, a member of the Indian Revenue Services at that time vide loan sanction letter dated 30.9.1974 Ex.P5. The loan was in the amount of Rs.27,500 disbursed in three installments of Rs.5500 at the time of approval/sanction, a sum of Rs.13,750 upon completion of the construction till the ground level and a sum of Rs.8,250 upon laying of the roof. It is the case of the plaintiffs that this loan amount was subsequently repaid by the father of the parties himself. The plaintiff rely upon Ex.PW1/1 i.e. a certificate issued by the Bank of India, the banker of the father of the parties in respect of the savings bank account held in the name of Sh. Bal Mukund Midha confirming that an amount of Rs.26,869.50 paisa were debited on 18.11.1976 towards cheque payment in favour of Assistant Housing Commissioner Loans Delhi Administration. The defendant on the other hand contends that the entire construction of the building was carried out entirely and exclusively by defendant no.1 from his own funds and without any help whatsoever from any kind from the brothers and sisters and that the defendant no.1 had spent an amount of over Rs.50,000 out of which Rs.27,500 was the loan amount and the rests of the money was spent from his own income/funds and that the first installment of the housing loan and interest was repaid on 13.11.1975 and the second installment was repaid on 11.11.1976. The defendant however does not deny the payment made by Sh. Bal Mukund Midha to the Commissioner Loan towards repayment of the loan availed in the CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 64 of 75 name of the defendant no.1. The defendant admits in the reply to para 10 of the plaint on merits that the father of the parties had repaid a portion of the loan taken by the answering defendant and that this amount was paid in November, 1977. The defendant no.1 contends that this was by way of a compensation for the compassionate gesture of the defendant no.1 in permitting the father and his brothers to reside over the suit property to which they had no right title or interest and in case the property was not occupied by the father and the brothers of the defendant no.1 the defendant no.1 would have earned handsome amounts by leasing out the property to third parties. It is with this context that the agreement was entered into between the members of the HUF who had made contributions in cash for construction of the house including the father. Reverting to the contents of the document, poignantly, none of the parties insinuate on the existence of a HUF and the agreement having been executed as amongst members of HUF nor refer to the property in dispute as HUF property. The amounts contributed towards construction are referred to as loans advanced to Sh. Bal Mukund Midha. It is the father of the parties who undertook to repay the loan advanced by the 3 sons. The defendant no. 1 has undertaken to retransfer the property to his father upon the repayment of the loan secured against the property in the name of defendant no. 1. The assertion raised by the plaintiffs that the property was purchased by the father acting as the Karta of the HUF for the HUF is not substantiated from the contents of the document relied upon by the plaintiffs.
9. The plaintiffs have also relied upon Wills dated 27.4.1989 CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 65 of 75 and 24.11.1991 of late Sh. Bal Mukund Middha. The plaintiffs do not seek to derive title to the property in dispute on the strength of any testamentary disposition. Though the claim of the plaintiffs is not premised upon the Wills dated 27.4.1989 and 24.11.1991 or alleged to be the last Will and testament of late Sh. Bal Mukund Middha as the plaintiffs claim 1/8 share each along with the defendants contending that the property is HUF property, and no declaration is being sought as regards the Wills Ex.PW1/2 and Ex.PW1/3 however the statements made in these documents tendered as Ex.PW1/2 and Ex.PW1/3 imputed to late Sh. Bal Mukund Middha are admissible as admissions in terms of section 32 of the Indian Evidence Act, particularly where the statements contained in the document relied upon by the plaintiffs are contrary to the case set up by the plaintiffs. A perusal of the contents reveal that Sh. Bal Mukund Middha has expressed his displeasure at the refusal of the defendant no.1 to transfer the ownership of the plot back in the name of his father however what is pertinent is that throughout the Wills Sh. Bal Mukund Middha refers to the suit property as having been purchased from his own resources. It is the desire of the testator that the defendant no.1 pays to the plaintiff no.5 and the plaintiff no.3 their shares of investment in the Greater Kailash property at the prevailing market price and to pay the share of investment of Sh. Bal Mukund Middha in the property to the plaintiffs 1,2 and 4. The Will dated 24.11.1991 also contains a statement of Sh. Bal Mukund Middha to the effect that the property is his self acquired property. The relevant portion is extracted below:
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 66 of 75"....After my demise all my movable and immovables which are my exclusively owned and occupied selfacquired properties wherever situated be distributed amongst my SIX sons equally except residential plot in D.L.F. Kutub Enclave, New Delhi no matter in whose name/names at present the property stands jointly or singly.
I have purchased two plots of land in the city of New Delhi from my own funds and both the plots are my selfacquited properties. One plot is situated in the residential area known as Greater Kailash II whereon the residential superstructure that is house has been constructed from my own funds exclusively. This property is of considerable value today and therefore I would not like to deprive any of my sons of a share in the said plot and the house, and I therefore direct my SIX sons to take an equal share in the same after my demise....".
The statements made by Sh. Bal Mukund Middha in the Wills Ex.PW1/2 and Ex.PW1/3 on the matter in issue as to whether the suit property is HUF property is therefore in itself a relevant fact. The plaintiffs rely upon the Wills dated 27.04.1989 and 24.11.1991 however have not founded their claim on the bequest made. The documents relied upon by the plaintiffs containing statements in respect of the suit property do not buttresse the contention of the plaintiffs that the property in dispute was acquired by the father of the parties as Karta of HUF and is HUF property, the documents are relied upon primarily in proof of the contributions made by some of CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 67 of 75 the plaintiffs particularly No. 3 and No. 5 towards the construction raised on the property. Merely by virtue of extending financial help to their father for completing the construction of the property in dispute, the plaintiffs do not acquire any right/title/interest in the property in dispute. The plaintiffs may have been entitled to recover the amounts spent however no title has come to be vested in their favour on account of money spent for raising of construction on the property in dispute. Also for the reason that Sh. Bal Mukund Midha and his sons spent various amounts in raising of the construction on the property in dispute, the property does not ipso facto acquire the color of HUF property. No presumption that the property is HUF property gets attracted in the circumstance of the plaintiffs and the defendant no.1 alongwith their father having expended various amounts on raising of the construction, particularly where the father invariably describes the property as his selfacquired property and in the written documents there is no such assertion by any of the parties that the property is HUF property. There is no intention discernable from the fact proved of the contributions made in the process of the raising of the construction, of the parties having made the contributions under the impression and belief of the property being HUF or that the property was being treated as HUF property. Moreover there is a promise to repay the loan under the agreement and a direction to defendant no.1 to reimburse the respective contributions. It has also come in evidence that Sh. Bal Mukund Middha had instituted a civil suit for declaration registered as CS CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 68 of 75 No.160/81 on 2.4.1981 seeking a declaration to the effect that Sh. Bal Mukund Middha is the real and exclusive owner of the property bearing no.E51, Greater Kailash Enclave Part II and that his son Sh. Ramesh Chand Middha is just a benami in relation to the property. The plaintiff no.5 has categorically admitted the institution of the suit in the course of his cross examination. In the civil suit the father of the parties had repeatedly asserted that the suit property is his self acquired property. Sh. Bal Mukund Middha alleged the property to be held benami in the name of his son. Sh. Bal Mukund Middha never asserted that the suit property was HUF property. The plaintiffs have failed to substantiate their claim on the strength of oral and documentary evidence that the property in dispute was acquired by Sh. Bal Mukund Midha as the Karta of the HUF comprised of Sh. Bal Mukund Midha and his sons and daughters, or that the property was acquired from the application of funds obtained from disposal of ancestral property or that the property is HUF property.
10. It is the case of the plaintiff that construction over the plot allotted in favour of Sh. Bal Mukund Midha was to be raised within a time frame and as the father of the parties retired from the railways in the year 1961, the father of the parties wanted to avail of a loan for raising funds for constructions of the house on the plot and being a retired employee his application for loan was not likely to be favourably considered by any financial institution and therefore the father of the parties had applied to the cooperative society for transfer of the plot in the name of defendant no.1. A perusal of Ex.P2 an admitted document would show that the father of the parties never CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 69 of 75 intended to acquire the suit property in the name of and for the benefit of the defendant no.1. The events that unfolded subsequent to the allotment and as the father of the parties was not possessed of the funds required for raising the construction the father of the parties intended to obtain a loan from a financial institution to secure the funds that may be required for meeting the expenditure entailing the process of raising construction on the plot, the father of the parties sought permission of the society for transfer of the plot in favour of defendant no.1. Again the permission for transfer is being sought with the addendum and rider that it is his son who is capable of securing loan for raising the construction over the plot only if the plot is in his name. Neither did the father intend to acquire the property in the name of the defendant no.1 or to vest the property in the name of defendant no.1. It were the financial constraints that compelled the father of the parties to seek a transfer of the plot from the society in the name of defendant no.1. The defendant no.1 has made the same request on similar lines vide letter dated 16.5.1972 address to the society.The record speaks for itself and Ex.P2 clearly reveals that the property was not applied for or acquired by Sh. Bal Mukund Middha for the benefit of his son the defendant no.1 and the permission was sought by Sh. Bal Mukund Middha for transfer of the plot in favour of defendant no.1 only for the purposes of facilitating the securing of a loan to meet the expenses for raising the contruction over the plot. The defendant no.1 has also sought the transfer of the suit property in his favour in accordance with the desire of his father Sh. Bal Mukund Middha so that construction of the house could be completed within CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 70 of 75 the stipulated time period. The defendant no.1 was not eligible on his own to have acquired the membership of the cooperative society as the membership was restricted in favour of the railway employees and the defendant no.1 was not the member of the Indian Railway Services therefore was not eligible for being considered for allotment of the property in question.
11. What therefore emerges is that neither Sh. Bal Mukund Middha had intended to purchase the property for the benefit of HUF nor had he thrown the property in the common hotch potch of HUF properties nor the defendant no.1 in whose favour the property was transferred at any point in time had intended to treat the property as HUF by throwing it in the common hotch potch of HUF properties. The defendant no.1 did not pay any part of the sale consideration but has spent amounts on the raising of the construction thereof. The sale consideration was paid by Sh. Bal Mukund Middha. However even though it is to be concluded that the property was acquired by Sh. Bal Mukund Middha however in the name of his son Sh. Ramesh Chand Middha, the plaintiffs can claim no right, title or interest in the property in dispute as such a claim after the coming into force of the Benami transactions Prohibition Act 1988 is not maintainable. It is Section 4 of the Benami Transaction Prohibition Act 1988 that bars any suit claim or action to enforce any right in respect of any property held benami which reads as under:
4. Prohibition of the right to recover property held benami. (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 71 of 75 property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply.
(a) Where the person in whose name the property is held is a coparcener in Hindu Undivided Family and the property is held for the benefit of the coparceners in the family; or
(b) Where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.
12. The claim of the plaintiff therefore cannot be considered in terms of the embargo stipulated under Section 4 of the Benami Transaction (Prohibition) Act as the property is not proved to have been acquired by Sh. Bal Mukund Midha as the Karta of HUF and property was not transferred in favour of defendant no.1 as a coparcenor. As a consequence of the above discussion issue no.1 and 2 is decided against the plaintiff and in favour of the defendant no.1 and the issue no.3 is decided in favour of defendant no.1 and against the plaintiffs, though issue no.4 is decided in favour of the plaintiffs. The suit of the plaintiff in view of the civil suit instituted by the father of the parties is not barred by the principles of res judicata.
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 72 of 75Issue no.8 is therefore decided in favour of the plaintiffs and against the defendant. The suit for partition in respect of the properties alleged by the plaintiffs to have been acquired by the father of the parties cannot be held to be not maintainable per se, issue no.6 is therefore decided against the defendants and in favour of the plaintiffs. As the plaintiffs have failed to establish that property in dispute was acquired by the late father of the parties as Karta of HUF and is HUF property and is held by the defendant no.1 as a coparcenor of the HUF, the suit of the plaintiff for a claim of share in the property in dispute is barred in terms of the Benami Transaction (Prohibition) Act, 1988 and issue no.7 is decided against the plaintiffs and in favour of the defendants. Issue no.10 is answered partly in favour of the plaintiffs to the extent that the plaintiffs are held entitled to partition of property described as A42/10, DLF, Qutub Enclave, Phase I, Gurgaon. The plaintiffs are held not entitled to seek partition of property described as E51, Greater Kailash EnclaveII, New Delhi. Preliminary decree of partition is therefore passed in favour of the plaintiffs in respect of property bearing no. A 42/10, DLF, Qutub Enclave, Phase I, Gurgaon thereby declaring that the plaintiffs are entitled to an equal share each along with the defendants i.e. 1/8th share each with the defendants 3,4 and 5 being entitled to 1/8th share together as the legal heirs of the deceased sister of the parties. Issue no.11 is also decided against the plaintiffs and in favour of the defendants.
13. Issue No. 9. (9) Whether the suit has not properly valued for the CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 73 of 75 purposes of court fee and jurisdiction? OPD The plaintiff has valued the suit for the purposes of court fees and jurisdiction as follows:
That the Plaintiff values the relief for the purpose of partition at Rs. 200/(Rupees Two Hundred Only). For the purposes of permanent injunction at Rs. 130/(Rupees One Hundred and Thirty Only) each. The total value of the properties for the purpose of jurisdiction is Rs. 48,00,000/. As share of plaintiffs have not been determined plaintiffs have paid the fixed Court fee of Rs. 20/for the time being and undertakes to make up the deficiency after the determination of his share on partition by metes and bounds. For the purposes of the injunction the court fee of Rs. 39 is being paid. Accordingly a total court fee of Rs. 59 has been paid on the plaint. Plaintiffs instituted the suit raising a claim as coparcenors in joint possession and ownership of the property bearing no.E51, Greater Kailash EnclaveII, New Delhi, though the defendant no.1 is the recorded absolute owner thereof. In case the plaintiffs were to be put in separate possession of their respective portions, ad volorem court fees was required of property bearing no.E51, Greater Kailash EnclaveII, New Delhi. The plaintiffs are held not entitled to partition of property bearing no.E51, Greater Kailash EnclaveII, and so far as property described as A42/10, DLF, Qutub Enclave, Phase I, Gurgaon is concerned, the property is ordered to be partitioned amongst the legal heirs of late Sh. Bal Mukund Midha in accordance with Section 8 of the Hindu Succession Act. There is therefore no inadequacy in the court fees affixed.CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 74 of 75
14. Relief.
15. In view of issue wise findings above, the suit of the plaintiffs for partition along with consequential relief is decreed in part in favour of the plaintiff to the extent that the plaintiffs are held entitled to partition of property described as A42/10, DLF, Qutub Enclave, Phase I, Gurgaon. The plaintiffs are held not entitled to seek partition of property described as E51, Greater Kailash EnclaveII, New Delhi. Preliminary decree of partition is therefore passed in favour of the plaintiffs in respect of property bearing no. A42/10, DLF, Qutub Enclave, Phase I, Gurgaon thereby declaring that the plaintiffs are entitled to an equal share each along with the defendants i.e. 1/8th share each with the defendants 3,4 and 5 being entitled to 1/8th share together as the legal heirs of the deceased sister of the parties. Preliminary decree of partition in respect of property bearing no.A42/10, DLF, Qutub Enclave, PhaseI, Gurgaon be drawn up accordingly.
For further proceedings and passing of final decree put up on 30.10.2017.
Pronounced in the open Court (Neelofer Abida Perveen) th on this 27 September, 2017. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
The judgment contains 75 pages all checked and signed by me.
CS No.113/17 Kishor Chand Midha & Ors. Vs. Ramesh Chand Midha & Ors. Page 75 of 75