Delhi District Court
Shri Tara Chand Aggarwal vs Shri Sanjay Bansal on 29 May, 2014
1
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE
(CENTRAL) 03, THC, DELHI
Date of institution : 27.11.2003
Judgment reserved on : 15.05.2014
Judgment delivered on : 29.05.2014
Suit No.332/2012
Unique Case ID No.02401C0093122003
Shri Tara Chand Aggarwal
Son of Late Ganga Ram
Resident of 257,
(Ground Floor, Second Floor and Top Floor)
Gali No.7, Padam Nagar,
Delhi110007 ......Plaintiff
Versus
Shri Sanjay Bansal
Son of Late Ganga Ram
Flat No.A402, Sector5
Naveen Cooperative Group Housing Society Ltd
Dwarka (Pappan Kalan)
New Delhi ......Defendant
J U D G M E N T
1. This is a suit for possession and recovery of damages/mesne profits filed by Shri Tara Chand Aggarwal, the CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 1/39 2 plaintiff against Sh. Sanjay Bansal, the defendant.
2. The brief resume of the facts of the case, as set out in the plaint is that the plaintiff was a member of Naveen Co operative Group Housing Society Ltd and was alloted a flat bearing No.A402, situated in Plot No.13, Sector No.5, Dwarka, (Pappan Kalan), New Delhi (herein after shall be referred as the suit property), more specifically shown in red colour of the site plan attached with the plaint, thereby the plaintiff was absolute owner of the suit property.
Also, the defendant is the real younger brother of the plaintiff and was permitted to use and enjoy the suit property on lease and license basis without any license fees in the month of April, 2001.
3. Further that finding the attitude and behavior of the defendant detriment and prejudice to the interest of the plaintiff, a legal notice dated 01.07.2002 was sent to the defendant to revoke and cancel the permission and license permitted to him to enjoy the suit property.
And that, it was also notified in the notice that the defendant shall be liable to pay damages to the plaintiff @ CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 2/39 3 Rs.500/ per day, if he failed to vacate the suit property and deliver the possession to the plaintiff after expiry of such notice period but despite receipt of said notice, the defendant failed to either comply with or reply to the said notice.
Hence the suit was filed by the plaintiff claiming a decree of possession of the suit property along with a decree of damages/mesne profits in a sum of Rs. 31,500/ along with interest @ 12% per annum and @ Rs. 500/ per day from the date of filing of the suit till its vacation and delivery of possession to the plaintiff.
4. The defendant in its contrapleadings in the form of Written Statement has replied to the plaint and had a taken plea that the flat was acquired by the plaintiff out of joint family funds and he was adopted as the son of the plaintiff on 17.10.1986 as he was not having any male child, and also that there was a family settlement in the month of March, 2001 and vide such oral family settlement, the defendant was told to leave the house bearing No.257, Gali No.7, Padam Nagar, Delhi110007, in lieu of that he would get a flat in question and also to take effect such oral family settlement, the plaintiff on 28.10.2001 has given a declaration in writing dated 28.04.2001 CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 3/39 4 that the defendant has become the absolute owner of the suit property in question and also that since then the defendant is the owner in possession of such property, thereby praying for dismissal of this suit.
5. The plaintiff has vehemently countered the reply of the defendant in his replication reiterating the facts stated therein in the plaint and replying to the particular plea taken by the defendant stating that the suit property in question was not a joint family property, rather it was selfacquired property, for which all the dues were paid by him out of his own funds. Also that, the defendant was never adopted as his son on 17.10.1986 and that even otherwise on 17.10.1986, the defendant was not capable of being taken under adoption in accordance of law of Adoption, as he has already completed the age of 15 years by that date.
Further that, there was no family settlement as pleaded by the defendant in the month of March, 2001, to the effect that the defendant was to leave the property bearing no.257, Gali No.7, Padam Nagar, Delhi110007, and he was not even authorized to say so, as it was a joint family property and he had no right to permit or disallow the defendant to use CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 4/39 5 or occupy or leave that property.
Regarding declaration dated 28.04.2001, it is submitted that plaintiff on account of the heartproblem that occurred in 1996, was not able to manage or control his sole proprietorship business and thereby was not in good health, and thus, entrusted the affairs of the business of his sole proprietorship firm namely M/s. Shyam Lal Pawan Lal to Sh. Babu Lal, his another brother but he in collusion with the defendant and one Sh. Mahesh Batra, an employee of Sh. Babu Lal, and misappropriated the funds of his business and even the document dated 28.04.2001 allegedly named as declaration was obtained by playing fraud and undue influence from the plaintiff and the same is liable to be impounded under Section 2 (35) of the Indian Stamp Act.
Thus, the plaintiff has reiterated his prayer in his plaint for the decree of possession and a money decree towards damages / mesne profits for use and occupation of the suit property.
6. Ld. Counsel for the plaintiff has relied upon following judgments in support of his contentions :
1. Wg. Cdr. (Retd.) R. N. Dawar Vs. Sh. Ganga Saran Dhama, AIR 1993 Delhi 19 "on the point of unregistered document"
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 5/39 6
2. Pushpa Saroha Vs. Mohinder Kumar & Ors., 157 (2009) Delhi Law Times 425 and A. C. Lakshumipathy Vs. A. M. Chakrapani Reddiar, AIR 2001 Madras 135 "on the point of family settlement"
7. Ld. Counsel for the defendant has relied upon the following judgment in support of his contentions : Ramchandra Vs Rajendra ShriKrishna Deshmukh & Ors with Ramchandra Sakharam Mahajan Vs Damodar Trimbam Tanksale, AIR 2007 SC 2577 "on the point of declaration of title"
8. On the basis of the pleadings, vide order dated 15.12.2009, following issues were framed: ISSUES
(i). Whether the defendant is the owner in possession of the suit property in view of family settlement and declaration of the plaintiff? OPD
(ii). Whether the plaintiff is entitled to a decree of possession in respect of the suit property? OPP
(iii). Whether the plaintiff is entitled to any mesne profits and if so, its quantum and period? OPP
(iv) Relief.
9. To discharge the burden laid down on the parties in the issues of controversy, the plaintiff has examined himself as PW1 and has tendered his affidavitinevidence as Ex. PA and has relied upon a total number of ten documents. Ex. PW1/1 to Ex. PW1/2 are the attested copies of shares and No Dues CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 6/39 7 Certificate of the societies, Ex. PW1/3 is the allotment letter dated 21.04.2000, Ex. PW1/4 is the pass book issued by the society relating to the payment of the society, Ex. PW1/5 was the possession letter, Ex. PW1/6 is the site plan, Ex. PW1/7 is the copy of legal notice, Ex. PW1/8 to Ex. PW1/10 are the postal receipts.
The plaintiff has examined one Ms. Pushpa Mittal, as PW2, as the official Clerk of the school to produce the school record showing the age and parentage of the defendant in his school record.
The plaintiff has also examined one Dr. S.K. Sood, as PW3, the officer/executive of the society with the records of the allotment of the suit property. However, Sh. Murari Lal, as PW4, the Section Officer to produce the certificates of the school examination.
10. Defendant has examined himself as DW1 and he has tendered his affidavit as Ex.D1 and also examined Sh. Anil Bansal and Sh. Shyam Lal Aggarwal, his brothers as DW2 and DW3 respectively, as the attesting witnesses of the document of declaration dated 28.04.2001.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 7/39 8
11. Having heard Sh. Madan Lal Sharma, Ld. Counsel for the plaintiff and Sh. S.K. Jha, Ld. Counsel for the defendant and having perused the records consisting of the pleadings and evidence, meticulously and on thoughtful considerations to the authorities relied upon, in the lights of the contentions of the counsels of the parties, my issuewise findings are given in the following paras.
12. ISSUE No. (i)
(i).Whether the defendant is the owner in possession of the suit property in view of family settlement and declaration of the plaintiff? OPD The onus to prove this issue was laid on the defendant.
13. To counter the plaintiff's claim in the suit for possession of the suit property, the defendant has pleaded that he was the owner in possession of the suit property by taking the following plea :
(a). that the suit property was acquired by the plaintiff out of the joint family funds;
(b). that he was the adopted son of the plaintiff w.e.f. 17.10.1986 and the adoption ceremonies were duly performed by the plaintiff;
(c). that there was an oral family settlement in the month of CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 8/39 9 March, 2001, to the effect that he would leave the house no. 257, Gali no. 7, Padam Nagar, Delhi, and in lieu of that, he would get the suit property, as his exclusive property;
(d). also that to give effect to the oral family settlement, a declaration / gift deed was executed by the plaintiff on 28.04.2001 declaring that the suit property shall belong to the defendant and the defendant has become the absolute owner of the suit property w.e.f. 28.04.2001.
Thereby, on the basis of the abovestated plea, the defendant claimed himself to be the ownerinpossession of the suit property in view of the family settlement and declaration of the plaintiff.
14. To establish the abovestated plea and to prove the issue no. (i), the defendant has examined himself as DW1 by way of affidavitinevidence Ex.D1 and to support and corroborate his depositions, has produced Sh. Anil Bansal, DW2, and Sh. Shyam Lal Aggarwal as DW3.
15. On appreciation of evidence of DW1, it is observed that in para no. 2 of his affidavit Ex.D1, it was deposed that the suit property was obtained in the name of the plaintiff out of the CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 9/39 10 family funds. During his crossexamination, the words / phrases used for 'family funds' were clarified by DW1 as funds from the joint business of rice trading in the name and style of M/s. Shyam Lal Pawan Kumar and M/s. Bansal Trading Company.
The defendant has admitted that the plaintiff was a sole proprietor of M/s. Shyam Lal Pawan Kumar and also that Sh. Babu Lal Aggarwal, the brother of the plaintiff was the sole proprietor of M/s. Bansal Trading Company, thereby establishing that these firms were not joint family firms and these funds cannot be treated as family funds.
Thus, it is observed that DW1 could not stand firm on the test of crossexamination that the suit property was obtained by the plaintiff out of the family funds from the common business of the family.
16. The defendant as DW1 has also admitted that all the brothers of the plaintiff have their separate business and each one had no concern to the proprietorship firm or business of any nature of the other, particularly that of the plaintiff and that there was no common business of the family to be run by the plaintiff or participated by the defendant in any manner to affect CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 10/39 11 the acquiring of the suit property by the plaintiff.
Rather, he has admitted that the flat in question is the self acquired property of Sh. Tara Chand Aggarwal, the Plaintiff and it is still in the name of Sh. Tara Chand in the records of Naveen Cooperating Housing Society, Dwarka, as owner and that it is not mutated in his name at any point of time.
17. Further, the defendant has shown his ignorance about the fact that he himself was a partner in another business namely Santosh Dharam Kanta, that was a partnership concerned consisting of Smt. Pushpa Bansal W/o. Sh. Babu Lal, Smt. Sushila Devi W/o. Sh. Tara Chand and he became the partner of said firm after the retirement of Smt. Sushila Devi.
Thus, the defendant could not stand firm on his plea and depositions made in para no. 2 to establish that the suit property was purchased out of the family funds from the common business of the family, he was participated to earn.
18. Further, the defendant, to establish issue no. (i) has taken a plea that he has acquired a right in the suit property as an adopted son of the plaintiff and the plaintiff has adopted him as his son being having no male child upto the year of 1986 and CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 11/39 12 that his adoption had taken place on 17.10.1986 and the adoption ceremonies were performed at the time of his adoption.
Also that, after adoption, his father's name was changed from Sh. Ganga Ram to Sh. Tara Chand Aggarwal (the plaintiff) in the public records.
19. To contest this plea of the defendant, the plaintiff has denied any such adoption.
Sh. M. L. Sharma, Ld. Counsel for the plaintiff has raised a legal contention that as per the legal proposition envisaged within the provisions of Section 10(4) of Hindu Adoption and Maintenance Act, it is a law settled that a person who is 'not under the age of 15 years' cannot be adopted by any Hindu and as the defendant had already crossed the age of 15 years on 17.10.1986, thus, the question of his legal adoption does not arise.
On the point of 'change of the name of father' of the defendant after alleged adoption, it is submitted that his father's name was never changed in any public records and the documents on which, the defendant is relying are his self created to take such plea and to prove the contrary, the plaintiff CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 12/39 13 has produced the school records of the defendant of the date after 17.10.1986 to prove his 'age' on the date of adoption and his father's name in the public records.
20. Having perused the records produced by the parties, during the course of trial, in the light of contentions of both the parties, it is observed that the defendant has not disputed his date of birth as 22.03.1971, otherwise also as per the school records, particularly the 10 th certificate of CBSE Ex.PW4/2, the same has been proved as 22.03.1971 through the document Ex.PW2/5, as recorded.
Further, the defendant as DW1 during his cross examination has admitted that his date of birth is 22.03.1971 and as on 17.10.1996, his age was 15½ years.
It is observed that on calculation of the age, as per date of birth upto the alleged date of adoption on 17.10.1986, the defendant has already completed the age of 15 years, much prior to the date of adoption and the defendant has not relied upon any custom or religion applicable to the parties to permit his adoption even after the completion of the age of 15 years.
Therefore, the contention of Ld. Counsel for the plaintiff has a strength that any legal adoption of the defendant by the CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 13/39 14 plaintiff, even if it presumed to be to have taken place, then also it cannot be considered as legal adoption to confer any right of the defendant against the plaintiff in the capacity and status of his 'adopted' son.
21. So far as, the change of name of his father in the public records is concerned, it is observed that the school records, particularly the records of CBSE of the year of 1988, after the date of alleged adoption, clearly mentions Sh. Ganga Ram as the name of his father and not the name of the plaintiff, as such. The CBSE record is basically based on the filling of the examination form for the 12 th Board Exams, that ought to be filled by the student himself i.e. the defendant and thus, it cannot be treated as manipulated or interpolated by anyone, rather it is an admitted document as is being filled up by himself with the declaration at the footnote of such form.
22. The defendant, in support of his plea, has deposed that at the time of adoption ceremony, certain photographs were taken, but any such photographs have not been produced or exhibited during the course of trial and it is a well settled principle of law that anyone who takes the plea has to prove CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 14/39 15 the same and if any evidence is kept a back leads to adverse inference.
The reliance is placed on the observations made in the case titled as Gopal Krishnaji Ketkar V/s Mohamed Haji Latif & Ors. cited as AIR 1968 SC 1413 wherein it was observed that :
"Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to reply upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issue in controversy and to rely upon the abstract doctrine of onus of proof. ..."
23. Thus, the defendant was not able to establish on record that he acquired a right in the suit property being the legally adopted son of the plaintiff.
No observations are required to be made on the documents produced by the defendant to show that his father's name was shown as of the plaintiff.
24. Further, to prove another plea for proving issue no. (i), the defendant has relied heavily on family settlement allegedly had CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 15/39 16 taken place in the month of March, 2001 and a document dated 28.04.2001 (Ex.DW1/4, Ex.PW1/D1) naming it as a 'declaration' to confirm and acknowledgment of the plaintiff for the said settlement.
25. In this regard, it is depose by DW1 that in the month of March, 2001 there was an oral family settlement between the plaintiff and the defendant thereby plaintiff claimed independent business without his participation and to leave the residential house No. 257, Padam Nagar, Gali No.7, Delhi and in lieu of that the plaintiff was given all rights, title and interest exclusively, in respect of the suit property in his favour .
26. The defendant has deposed that at the time of draw of lots for the allotment of the suit property on 19.04.2000 that was participated by him and the allotment of the suit property took place by delivering possession on 04.08.2000 to him and that he had been in occupation of the said flat since the very inception.
27. It is observed that DW1 was put on the test of cross examination on these aspects of family settlement and the CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 16/39 17 declaration and also regarding the allotment of the suit property and delivery of the possession to him.
He has admitted that Smt. Sushila Devi wife of the plaintiff and Smt. Pushpa Bansal wife of Babu Lal (his brother) were the owners of House No. 257, Padam Nagar, Gali No. 7, Delhi and that a litigation regarding the said house was pending before the Hon'ble High Court. Thus, from such admissions it is clear that the defendant was aware of the joint ownership and title of these two women for the House No. 257, Padam Nagar, Gali No. 7, Delhi.
And it is a matter of common knowledge that for any property for which plaintiff has no right or title, he cannot be in capacity of entering into any kind of family settlement for such property and to handover suit property to anyone, what to say, to the defendant, in lieu of any rights in such property.
Thus, on the test of reasonable prudence, it cannot be said that the plaintiff has entered into any family settlement to swap the rights of the defendant in the said house for another right to be created in his favour in the suit property, particularly when it was known to the plaintiff as well as the defendant that the property bearing House No. 257, Padam Nagar, Gali No. 7, Delhi was in the joint ownership of the wife of the plaintiff and CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 17/39 18 the wife of Sh. Babu Lal, their brothers, then that property cannot become the subject matter of any family settlement, without the coowners participate in such settlement. It is not the case that the two ladies abovementioned, who were the co owners consented any such family settlement.
Also, in the preceding paras on the aspect of common business, it was observed that the plaintiff had sole proprietorship of the business namely M/s. Shyam Lal Pawan Kumar and there was no common business of family or any business in which the plaintiff and if for sake of arguments, it is assumed that the defendant was having the joint share in the business then the question of swapping of the independent business rights of the plaintiff with the rights of the defendant to any independent business does not arise to make it a 'term' of the family settlement, as pleaded by the defendant.
Thus, as per the facts established on record, neither the plaintiff had any connection with the property bearing House No. 257, Padam Nagar, Gali No. 7, Delhi nor the defendant had any connection with the business that was a sole proprietorship firm of the plaintiff then both these subject matter can never be swapped against 'creation' of a new right of the defendant qua the suit property.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 18/39 19 Further, as per the defendant, he had taken possession of the suit property just on the day on 04.08.2000 when it was handed over by the society allotted such flat then handing over such possession is not possible, to take place again in the month of March, 2001 during the alleged family settlement. Also, the DW1 could not stand firm on his plea of his presence at the time of allotment or possession during the cross examination, it was admitted by the defendant as DW1 that : 'I had not participated in the draw of lots for the allotment of flats which has taken place on 19.04.2000. It is correct that the suit property was allotted to the plaintiff by Naveen Cooperative Group Housing Society in the draw held on 19.04.2000 and possession thereof was also delivered to the plaintiff; the date of which I do not remember. ........
It is correct that Naveen Cooperative Group Housing Society had never delivered the possession of the aforesaid flat to me. Tara Chand Plaintiff had made a gift of the aforesaid flat to me by way of a written gift deed. ..... It is correct that plaintiff had permitted me to use and occupy the suit property.'
28. Thus, on appreciation of evidence of DW1, it is observed that DW1 has kept changing his stand again and again regarding his rights, title, possession qua the suit property, to the extent of contrary facts at different places. These contrary depositions and admissions shatter the testimony of DW1 out rightly and even question the trust worthiness of this witness on the material aspects.
It is observed that he could not remain firm on his stand CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 19/39 20 that there was a family settlement vide which the plaintiff in lieu of 'the share in his exclusive independent business and right of occupation in House No. 257, Padam Nagar, Gali No. 7, Delhi, of the defendant, has handed over all rights and titles in the suit property in his favour or that the defendant was in possession of the flat since the day, the possession was handed over after allotment.
On these aspects, his testimony was absolutely shattered with the contrary facts admitted by him.
29. Regarding the family settlement, Ld. Counsel for the plaintiff has raised a contention that for any property to be a subject matter of settlement, there has to be preexisting right with the parties entering into such family settlement to create an interest of anyone qua such property.
In support of his submissions, he has relied on the judicial opinion expressed in cases namely Pushpa Saroha Vs. Mohinder Kumar & Ors., 157 (2009) Delhi Law Times 425 and A. C. Lakshumipathy Vs. A. M. Chakrapani Reddiar, AIR 2001 Madras 135.
Further, it is observed that the defendant has admitted during his cross examination as DW1 that house bearing no.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 20/39 21 257, Padam Nagar, Delhi, was in the coownership of the wives of his brothers, thus, there could not be any preexisting right in such property, either of the plaintiff or the defendant and thus, it could not be a part of the family settlement as pleaded by the defendant.
It is observed that it is duly established on record that either the plaintiff or the defendant has no preexisting right in the house bearing no. 257, Padam Nagar, Delhi, and thus, there was no question of any kind of family settlement as alleged qua swaping of the rights in the said property with the suit property.
30. To this extent, the contention of Ld. Counsel for the plaintiff has a strength on the law settled in Pushpa Saroha Vs. Mohinder Kumar & Ors., 157 (2009) Delhi Law Times 425 and A. C. Lakshumipathy Vs. A. M. Chakrapani Reddiar, AIR 2001 Madras 135, wherein it is observed that :
"It is settled law that 'For a family settlement to take place, there has to be a preexisting right in the property subject matter of settlement in favour of the family members or all the family members part of the settlement. By a family settlement, such rights can be restricted or given up or rights of others can be expended to the extent of making them the absolute owners of a property which but for the settlement would have belonged to all. However, by a family settlement no fresh or new rights can be created in favour of a family member who otherwise had no rights to the property."
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 21/39 22 Further, it is observed that the defendant could not stand firm on the point of family settlement during his cross examination on many counts to establish such facts, particularly it could not be specified that such family settlement was arrived on which day, at what point of time and in the presence of how many persons and between / among whom, as who were the parties to such settlement. And thus, on these aspects of family settlement, the depositions of DW1 were vague in nature.
Also, the defendant has pleaded and deposed in the court that to confirm the oral settlement, a declaration in writing vide a document dated 28.04.2001 Ex.DW1/4 was executed by the plaintiff in his favour qua the suit property, but this document was named with different nomenclature, as declaration, a gift deed, an affidavit etc. in his depositions to affect the credit worthiness of the testimony of this witness.
It is worth to mention that all the names of the documents above mentioned have absolutely different cannons of law, to convey or transfer any right through such documents.
31. Also, he has taken a stand that the suit property i.e. the flat allotted to the plaintiff by Naveen Cooperative Housing CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 22/39 23 Society was given to him as a 'gift' through the written gift deed. Thus, the stand taken by the defendant regarding a 'declaration' vide written document dated 28.04.2001, in confirmation of the family settlement, was changed to the execution of the 'gift deed' vide the same document dated 28.04.2001.
This document is Ex.DW1/4 that was earlier put to the plaintiff during his crossexamination and was also exhibited as Ex.PW1/D1 and it was a document produced by the defendant and he is relying on such document very heavily to claim his ownership on the basis of such document firstly naming it a 'declaration' in confirmation of the oral family settlement and again naming it a 'gift deed' executed by the plaintiff in his favour on 28.04.2001.
32. Firstly, it is required to look into the 'nature' of this document, as the defendant is basically depending on this document for claiming his right, title and ownership qua the suit property. This document is a hand written document with Hindi scripts, admittedly in the handwriting of the plaintiff on which even the signatures are admitted by the plaintiff at Point 'A', but it is unstamped and unregistered document.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 23/39 24
33. According to the written contents in Hindi, on this document the plaintiff writes : 'that he is the resident of House No. 257, Padam Nagar, Gali No. 7, Delhi and that the suit property i.e. a Flat bearing No. A402, Naveen Cooperative Housing Society is in his name and on 28.04.2001 it was given to the defendant and that with respect to this flat whatever amount is due and is in arrears shall be the liability of the defendant and that such document in written in his full consciousness and he will have no connection with such flat.' S/d Tara Chand Aggarwal This document had signatures of two witnesses both of them were the brothers of the plaintiff as well as of the defendant. This document is not signed by the defendant, thus it cannot be treated as a 'contract' between plaintiff and the defendant, in any manner.
34. Regarding the execution of this document, the plaintiff's stand is that he was not aware of execution of such document and the same must be got written through him under his unconscious state of mind, in the night, when he might be under the doses of sleeping pills and was not aware of what was got written or signed by him. Also that the defendant must have played a fraud with him to get it executed as he was a heart patient and the defendant knew that he used to take sleeping pills at night and under the doses of such sleeping pills, it must have been got written but he must be under the CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 24/39 25 unconscious state of mind at that time.
Thus, the plaintiff has questioned the conscious execution of such document by him.
35. Regarding the execution of the document Ex.DW1/4 by the plaintiff, the contentions of the plaintiff were that it was got executed by the defendant by playing fraud. Such contention shall be taken up at the later stage, first of all, it is necessary to examine the nature of this document and its effect, if any, also of its legal implications qua the suit property.
36. It is observed that admittedly, this document is an un stamped and unregistered document.
37. For the legal implication of such document, Ld. Counsel for the plaintiff has raised a contention that if such document is named as a gift deed as testified by the defendant in his testimony, then within the provisions of section 123 of Transfer of Property Act, registration of such document is must to pass any title in favour of the donee and as this document was an unregistered one, mere delivery of possession cannot pass title to the donee.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 25/39 26 For this contention, Ld. Counsel for the plaintiff placed his reliance on an authority titled as Wg. Cdr. (Retd.) R. N. Dawar Vs. Sh. Ganga Saran Dhama cited as AIR 1993 Delhi 19, wherein it was observed that : "A gift of immovable property which is not registered is bad in law and cannot pass any title to the donee"
38. Further, this document is an unstamped document. Ld. Counsel for the defendant has argued during the course of arguments that an application u/s 33 of the Indian Stamp Act was moved on behalf of the plaintiff, seeking impounding of such document, as per the provisions of section 33 of the Indian Stamp Act and such application was not pressed upon and was kept in abeyance vide order dated 21.10.2005, thus, for nonpressing of such application leads to an adverse inference against plaintiff that if it could have been disposed of on merits, the conclusion may not favour the plaintiff.
39. To the contention of Ld. Counsel for the defendant, even if it assumed for the sake of arguments that at its disposal, the court could have directed either to cure the deficiency of stamps or to impound for such irregularity, then also, in any case, the legal implication of this document could not be CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 26/39 27 changed for its nature, particularly when it was an unregistered document.
40. To observe, the legal implication of such documents qua the suit property, whether the document is named as 'declaration' or a 'gift deed', or treated as a mere license, the basic question of law remains to decide as to ; 'Whether such document can confer any right, title or ownership qua the suit property in favour of the person, the defendant named therein'
41. On careful perusal of such document, obviously this document cannot be treated as a 'contract' between the plaintiff and the defendant, as it is signed by only the plaintiff and not the defendant.
Further, whether this document could be treated as a license or gift, qua the suit property, but the basic question remained : Can it create an ownership and title in favour of the defendant.
42. These questions and situations have been dealt with by the Apex Court, in a case titled as Balkrishna S. Dalwale Vs. CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 27/39 28 Vithabai C. Rathod, 2010 (13) SCC 291, wherein the facts of the case were similar to the effect of the document in question, vide which the executant had permitted the use of property of which he was the owner, to the beneficiary out of love and affection and question of ownership and title was raised calling such document 'a partnership deed' between the plaintiffs and the defendant.
Such document was an unregistered and unstamped document and the provisions of Order 6 Rule 4 & 12 CPC, Section 91 of Evidence Act, 1872, and sections 5, 122 and 123 of Transfer of Property Act and Section 52 and 56 of Easement Act, 1882 and section 10 of Contract Act were discussed in detail and it was opined that :
'the document was unregistered and unstamped document and said document did not confer any right or interest in defendant's favour'
43. In the instant case, on the document dated 28.04.2001 Ex.DW1/4 (also exhibited as Ex.PW1/D1), the following observations are made :
(i). it is an unstamped and unregistered document;
(ii). it is not signed by the defendant and only signed by the plaintiff, obviously it could not be treated as a contract between the plaintiff and the defendant and also for the reasons that it CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 28/39 29 had no consideration mentioned for the subject matter (suit property) to be transferred from one party to another;
(iii). it cannot be treated as 'a declaration' of any family settlement as alleged, as this mentions none of the clauses of any such terms of alleged family settlement;
(iv). it declares the suit property is in the name of the executant;
(v). if it is treated as a gift (as testified by the defendant as DW1 during his crossexamination) by the plaintiff as donor and to the defendant as donee qua suit property, then it attracts the provisions of Section 123 of Transfer of Property Act, 1882. In that situation, it cannot pass title, if it is an unregistered & unstamped document to the defendant qua the suit property as envisaged within the provisions of Transfer of Property Act.
In view of above settled law, the document dated 28.04.2001, whether named as declaration, or gift deed or license, it cannot confer ownership to the defendant.
44. The defendant has established and rather it is an admitted case of the plaintiff that the defendant was permitted to use and occupy such property and in the totality of facts and circumstances, it has been established that the permissible use CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 29/39 30 of the property was given to the defendant out of love and affection, being the defendant was the younger brother of the plaintiff, who was the eldest of all and was looking after the defendant since his childhood.
Thus, clearly the document dated 28.04.2001 is in the form of a license providing the permissible use of the property to be given to the defendant out of love and affection and was not the gift deed or the declaration, as alleged.
45. The contentions of the defendant was that he was to pay all the encumbrances and expenses qua such flat as per such document and that he had carried and paid all such expenses qua such property since April, 2001, after execution of such document, as the possession of the property was handed over to him and it was in his possession since then.
46. To meet this contention, on perusal of record, it is observed that the expenses or the word 'bakaya' (arrears) used in such document, it appears that it was referring to the maintenance charges needed to be paid by the occupier to third party, society or otherwise for the use and occupation of such property, as was permitted by the owner of that property.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 30/39 31
47. The testimony of Dr. S. K. Sood, PW3, and the supporting documents Ex.PW3/1 (colly), Ex.PW3/2 (colly) produced by this witness have proved on record that since the inception of the membership of the Naveen Cooperative Group Housing Society, that alloted the flat to its member (the plaintiff) all the expenses qua the suit property, as per the account of the society, was paid by the plaintiff and none of the single penny was paid by the defendant, until the possession of the flat was handed over admittedly to the plaintiff on 04.08.2000.
Thus, it cannot be said that after execution of such document Ex.DW1/4, the expenses qua the property or the arrears were paid by the defendant.
Thus, this contention of the defendant that the document in question has transferred the ownership to the defendant along with the condition of payment of arrears / expenses to be carried by the defendant, cannot be upheld, in the light of nature of document, and in view of law settled in Balkrishna S. Dalwale's case (supra).
48. Obviously, it is observed that the defendant, who is heavily relying on the document Ex.DW1/4 for proving his ownership / title qua the suit property was not of the nature of CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 31/39 32 creating of any right, title or ownership in his favour, as such document was basically a mere license to provide permissible use and occupation of the suit property to the defendant and nothing more and such license was also created only out of love and affection and was not covered within the provisions of Section 52 and 56 of the Easement Act.
Also, as an unregistered and unstamped document, it cannot confer any right, title or ownership to anyone and with the execution of an unregistered, unstamped document, no right or title could be conferred qua an immovable property, as per the provisions of the Transfer of Property Act.
49. There is no need of making any observations or to lead to the detailed discussions on the aspects of the allegations of playing fraud by the defendant in getting executed such document, because the plaintiff has admitted that he has given the permissible use of suit property to the defendant out of love and affection and law prohibits any conveyance or transfer of any immovable property through an unregistered and unstamped document as discussed above, as was one in question, thus, there is no need to go into the details of circumstances, in which such document was created, as CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 32/39 33 otherwise also it does not create or convey or transfer or confer any right, title and ownership in favour of the defendant.
50. Ld. Counsel for the defendant has relied on Ramchandra Vs Rajendra ShriKrishna Deshmukh & Ors with Ramchandra Sakharam Mahajan Vs Damodar Trimbam Tanksale, AIR 2007 SC 2577 in support of his contentions that the document Ex.DW1/4 can be looked into, but such case law on the law points relied upon during the course of arguments by Ld. Counsel for the defendant is based on the absolutely distinguishable facts and circumstances, as of the case in hand and thus, the judicial opinion expressed therein has no application in the instant case and is of no help to the defendant.
51. Thus, on the basis of above observations on law and facts and on appreciation of evidence of the defendant, it is observed that the defendant has miserably failed to establish issue no. (i) in his favour that he was the owner in possession of the suit property, in view of family settlement and declaration of the plaintiff.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 33/39 34
52. Issues No. (ii)
(ii). Whether the plaintiff is entitled to a decree of possession in respect of the suit property? OPP The onus to prove this issue was laid on the plaintiff.
53. To establish this issue, the plaintiff has tendered his depositions in para no. 1 of his affidavitinevidence Ex.PA that he was a member of Naveen Cooperative Group Housing Society and was alloted the suit property, vide allotment letter dated 21.04.2000 Ex.PW1/3 and the possession of the suit property was delivered to him, vide document Ex.PW1/5.
These facts were admitted by the defendant as DW1 during his crossexamination and otherwise were proved through the testimony of PW1 and with the corroborative testimony of PW3, who has categorically identified and admitted the issuance of the documents of allotment / ownership and possession of the plaintiff qua the suit property and on these aspects the evidence of the plaintiff was un shattered and unrebutted. Further, the facts of such ownership were admitted by the defendant during his crossexamination.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 34/39 35
54. Therefore, the plaintiff has duly proved on record that he was the owner of the suit property. Further, in view of the findings on issues no. (i), as the issue no. (i) is decided against the defendant and the same goes to favour the plaintiff, the defendant, who was in possession of the suit property was only in the permissible use and occupation as licensee without any license fee and on displaying the intentions to terminate such permission / license by serving a legal notice dated 01.07.2002 duly received by the defendant, it is duly proved by the plaintiff that the such permission / license has been terminated. Thus, the plaintiff is entitled for peaceful vacant possession of the suit property from the defendant.
55. Therefore, the plaintiff has duly established on record that he is entitled for a decree of possession in respect of the suit property.
Thus, issue no. (ii) is decided in favour of the plaintiff and against the defendant.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 35/39 36
56. Issue No. (iii)
(iii). Whether the plaintiff is entitled to any mesne profits and if so, its quantum and period? OPP The onus to prove this issue was laid on the plaintiff.
57. The plaintiff has claimed that on revoking of the license and permission for use and occupation of the suit property by the plaintiff, who was the owner of the suit property, the defendant became a tresspasser and as per his notice of termination of such permission, he was entitled for mesne profit / damages to the tune of Rs. 5,00/ per day until the vacant possession is handed over.
58. So far as these facts are concerned except mere plea taken in the notice and the depositions to that effect, the plaintiff has failed to establish that on what basis, such quantum of user charges have been calculated.
During the course of crossexamination of DW1, the defendant, a suggestion was put to the defendant that the CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 36/39 37 rental value of the property as on date could be Rs. 15,000/ to Rs. 20,000/ per month, but such facts were neither admitted nor denied by the witness.
Otherwise also, the onus to prove such facts were on the plaintiff to prove through his independent affirmative evidence for the basis on which such damages were quantified and it cannot shift on the defendant, in any manner.
59. The plaintiff has not produced any evidence to show as to what was the rental value or user charges for the use and occupation of such and similar property in that area to quantify the mesne profit / damages for use and occupation of the suit property.
60. It is observed that the defendant being real younger brother admittedly taken care of by the plaintiff since his childhood and was permitted for use and occupation of the suit property out of love and affection and without any user charges, since the day of inception of the defendant in the suit property.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 37/39 38 Thus, having charged no license fee or the user and occupation charges, the plaintiff has failed to prove his entitlement for the mesne profit / damages for use and occupation of the termination of the permission and also failed to prove any quantum that of, on record.
Thus, the plaintiff has failed to establish this issue either for his entitlement for the user charges / mesne profit / damges form the defendant.
Thus, issue no. (iii) is decided against the plaintiff.
61. Issue No. (iv) Relief In view of the findings on issue no. (i) to (iii), as issue no.
(i) is decided against the defendant, issue no. (ii) is decided in favour of the plaintiff and against the defendant, the plaintiff is entitled for a decree of possession of the suit property and issue no. (iii) is not decided in favour of the plaintiff, the suit of the plaintiff is decreed for the possession of the suit property and against the defendant.
CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 38/39 39
62. Accordingly, a decree of possession is passed in favour of the plaintiff and against the defendant, thereby defendant is directed to hand over the peaceful, vacant and actual physical possession of the suit property i.e. flat bearing no. A402, lying and situated within the premises of Naveen Cooperative Group Housing Society Ltd., Plot No. 13, Sector - 5, Dwarka (Pappankalan), New Delhi, more specifically shown as red colour in the site plan Ex.PW1/6.
The plaintiff is also entitled for cost to the extent of the Court Fee.
Decree sheet be drawn accordingly.
File be consigned to R/Room.
Announced In the open Court (Dr. Archana Sinha) 29th day of May, 2014. Addl. District Judge (Central03) Tis Hazari Courts / Delhi 29.05.2014 CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 39/39 40 Suit No.332/2012 Unique Case ID No.02401C0093122003 Shri Tara Chand Aggarwal vs. Sanjay Bansal 29.05.2014 Present: Sh. Madan Lal Sharma, Ld. Counsel for the plaintiff Sh. S.K. Jha, Ld. Counsel for the defendant Vide separate detailed judgment of even date announced in the open court today, the plaintiff is entitled for a decree of possession of the suit property.
Accordingly, a decree of possession is passed in favour of the plaintiff and against the defendant, thereby defendant is directed to hand over the peaceful, vacant and actual physical possession of the suit property i.e. flat bearing no. A402, lying and situated within the premises of Naveen Cooperative Group Housing Society Ltd., Plot No. 13, Sector - 5, Dwarka (Pappankalan), New Delhi, more specifically shown as red colour in the site plan Ex.PW1/6.
No orders as to costs.
Decree sheet be drawn accordingly.
File be consigned to R/Room.
(Dr. Archana Sinha) Addl. District Judge (Central03) Tis Hazari Courts / Delhi 29.05.2014 CS No.332/12 Tara Chand Aggarwal Vs Sanjay Bansal 40/39