Delhi District Court
Ms. Sushila Chadha (Since Deceased) vs Sh. Krishan Kumar Bhandari on 1 May, 2019
IN THE COURT OF PRAVEEN KUMAR: ADDITIONAL
DISTRICT JUDGE05 :NEW DELHI DISTRICT, PATIALA
HOUSE COURTS, NEW DELHI.
Civil Suit No.57879/2016 (Thirty Three Years Old Case)
In the matter of:
1. Ms. Sushila Chadha (since deceased)
(Through LRs)
1A Sh. Ved Prakash Chadha
1B Sh. Arvind Chadha
Both residents of,
3273, Carol Heap Court,
San Jose, CA95148,
U.S.A.
1C Sh. Deepak Chadha
R/o 10, Gardenia Court,
Dayton, N.J.008810 (U.S.A).
1D Smt. Rashmi Khatri
R/o 3281, Heritage Estate,
Dr. San Jose, CA95148 (U.S.A).
2. Ms. Chandra Kanta Batra
D/o Late Sh. V.D. Bhandari,
R/o 8064, Prichards Court,
Dunn Loring, VA 22027, U.S.A.
3. Sh. Anand Kumar Bhandari
S/o Late Sh. V.D. Bhandari,
Resident of 702, Deepe Dene Road,
Baltimore MD21210, U.S.A ................Plaintiffs
Versus
1. Sh. Krishan Kumar Bhandari,
(Since deceased),
Through LRs.
1A Ms. Poonam Sethi
CS No.57879/2016
Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.1 of 30
1B Ms. Kavita Nagpal
Both resident of 26,
Sunder Nagar, New Delhi.
2. Sh. Rajender Kumar Bhandari
(Since deceased)
Through LRs.
2A Sh. Sanjay Bhandari
2B Sh. Sumeet Bhandari
Both residents of E/217,
East of Kailash, New Delhi.
3. Sh. Sharad Bhandari
S/o Late Sh. Surinder Kumar Bhandari,
Resident of 26, Sunder Nagar,
New Delhi. ..............Defendants
Date of institution of the case : 04.10.1985
Date of arguments : 01.04.2019
Date of judgment : 01.05.2019
JUDGMENT:
1. Sh. Sharad Bhandari (defendant no.3 herein) originally filed a suit for partition of immovable properties i.e. 26, Sunder Nagar, New Delhi; E217, East of Kailash, New Delhi and 44/45, SectorIV, Chandigarh (in short 'the suit properties') and rendition of accounts on 04.10.1985 in the High Court of Delhi which was subsequently dismissed as withdrawn vide order dated 06.07.1990.
2. Sh. Anand Kumar Bhandari, Smt. Sushila Chadha and Smt. Chandra Kanta Batra, originally defendants no.3, 4 and CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.2 of 30 5 respectively, filed separate applicationsI.A. No.562/1995, I.A. No.5408/1990 and I.A. No.107/2005 for their transposition as plaintiffs which were allowed vide order dated 05.12.1995 r/w order dated 26.02.2007.
3. Late Sh. Vasu Dev Bhandari (in short 'V.D. Bhandari') had four sons and two daughters, namely, Krishan Kumar Bhandari, Rajender Kumar Bhandari, Surender Kumar Bhandari, Anand Kumar Bhandari, Sushila Chadha and Chandra Kanta Batra. Sh. V.D. Bhandari died intestate at Delhi in the year 1960, leaving behind his wife Smt. Vidya Wati Bhandari and abovementioned children. Smt. Vidya Wati Bhandari and Sh. Surender Kumar Bhandari also died intestate, both in the year 1968. Sh. Surender Kumar Bhandari left behind him Smt. Asha who has since remarried and Sh. Sharad Bhandari, the original plaintiff (now defendant no.3).
4. Before proceeding further it is relevant to mention that when the plaintiffs no.1 & 2 initially filed the written statements (as defendants no.4 & 5) to the original plaint of Sh. Sharad Bhandari, they took the stand that the suit properties are self acquired properties of Sh. V.D. Bhandari. However, after their transposition as plaintiffs, they changed their stand claiming the suit properties to be HUF properties of Sh. V.D. Bhandari. The relevant paras 16 & 17 of their plaint are reproduced herein below: CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.3 of 30 "16. That the plaintiffs state that initially the stand of the plaintiffs was that the suit properties are the self acquired properties of Sh. V.D. Bhandari, however, keeping in view the stand now taken by the other parties on record and to narrow down the controversy the plaintiffs admit that the properties at Sunder Nagar as also of Chandigarh are the HUF Properties.
17. That the plaintiffs state that the property at East of Kailash is also a HUF Property which fact has been denied by the defendants No.1 and 2."
(Emphasis mine)
5. The plaintiffs herein are the two daughters and one son of late Sh. V.D. Bhandari. The pedigree table of the family is given hereunder : Shri V.D. Bhandari (Died in the year 1960) & Smt. Vidya Wati Bhandari (Died in the year 1968) !! :
:
:
! ! ! ! ! ! ! ! ! ! ! ! KRISHAN RAJINDER SURINDER ANAND SUSHILA CHAMDAR UMAR KUMAR KUMAR KUMAR CHADDHA KANTA BHANDARI BHANDARI BHANDARI BHANDARI BATRA SON SON SON SON DAUGHTER DAUGHTER (DEF.1) (DEF.2) (DECEASED) (PLTF.3) (PLTF.1) (PLTF.2) !! (THROUGH LRs) ! ! ! ! ! ! ! ! ! MS. ASHA KOHLI SHARAD BHANDARI (DEFT.4) (DEFT.3) (SINCE REMARRIED)
6. The case of the plaintiffs, in brief, is that Sh. V.D. Bhandari was maintaining the joint Hindu family alongwith his children during his life time. The joint Hindu family of late Sh.
CS No.57879/2016Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.4 of 30 V.D. Bhandari had acquired movable and immovable properties. Upon the death of Sh. V.D. Bhandari, his estate, joint Hindu family properties, came into the hands of the defendant no.1 herein who had become the Manager/Karta of the joint Hindu family being the eldest male member in the family. It is averred that the ground floor of the property No.26, Sunder Nagar, New Delhi and property at Chandigarh were let out to the tenants while second floor of the Sunder Nagar property is in possession of defendant no.3 herein. It is averred that late Sh. V.D. Bhandari had left considerable cash and jewellery which the defendant no.1 is not disclosing to the other members of the family. It is averred that defendant no.1 has been receiving rents accruing from the properties in question and has been maintaining and looking after the affairs and management of the properties and, as such, he is liable to render the true and correct accounts to the parties for the amounts so received by him from time to time. It is averred that the parties have shares in the properties and, thus, these properties are liable to be partitioned so that they are able to get their respective shares in the same. The plaintiffs have prayed that the suit of the plaintiffs be decreed.
7. Defendants no.1 and 2 have filed separate written statements and have contested the suit. Defendant no.1, on merits, has submitted that late Sh. V.D. Bhandari did not have any HUF. The HUF was created by defendant No.1 in 1956, when it CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.5 of 30 became clear that their father Sh. V.D. Bhandari may not be able to complete all his obligations towards his family during his lifetime and would have to depend on the defendant No.1 to complete this task. It is averred that the HUF consisted of four brothers, defendant No.1 and 2, father of defendant No.3 and plaintiff No.3. It is averred that the HUF was to receive only the income from rent of the house situate at Sunder Nagar and as desired by the father, to use this income for upbringing of his family and to meet all those expenses which the father would ordinarily has to discharge. It is averred that defendant no.1 was designated to be the 'Karta' of the family even when the father was still alive. It is averred that the movable properties of late Sh. V.D. Bhandari were subject of a Succession Certificate issued by a Delhi Court. It is averred that as regards the HUF created in 1956, plaintiffs No.1 and 2 are not the members of HUF and, as such, they have no say whatsoever in the HUF and cannot claim the partition of its assets. It is averred that late Sh. V.D. Bhandari built a house at Lahore in 1943, spending almost all his life savings. He lost the said house in the partition of the country in 1947 alongwith the fixed deposits in the banks and shares in Lahore based companies. The claim against the property at Lahore was adjusted against the purchase of agricultural land at village Kilokri at Delhi. Delhi Administration acquired this land in 1966 for development of a residential colony. Compensation CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.6 of 30 was determined only at 30% of the market value. But a plot was offered in a developed colony should the owner of agricultural land choose to forgo his/her right to appeal against the compensation determined. Smt. Vidya Wati Bhandari accepted this offer and, thus, acquired the plot at E217, East of Kailash, New Delhi in the year 1966. It is averred that plot of land at 26, Sunder Nagar was purchased in a public auction in 1948. It is averred that although the father Sh. V.D. Bhandari made the bid, the money was provided by defendant no.1 and, therefore, the father himself arranged with the Land & Development Office (in short 'L&DO') to register the lease in the name of defendant no.1. The lease of the said plot stands exclusively in the name of defendant no.1. It is averred that the cost of construction of the superstructure amounted to Rs.73,000/ and the portion of the contribution made by the father was returned to him by the defendant no.1 in monthly installments. It is averred that the factum of the house at 26, Sunder Nagar being exclusively owned by defendant no.1 has been accepted by the father in his declarations which he periodically submitted to the Government of India about the assets held by him and his family. It is averred that first floor of the house at 26, Sunder Nagar was rented and the rental income was used in upbringing of the family. Sh. V.D. Bhandari expired in 1960. He left Rs.43,180/ as fixed deposits and balances in his accounts and Rs.17,776/ as value of CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.7 of 30 securities. The mother received the family pension of Rs.150/ per month. The entire rental income from the first floor of the rented property at Sunder Nagar was placed at her disposal. The income after allowing for taxes and maintenance of the building was not more than Rs.5,000/ annually. It is averred that Smt. Vidya Wati was the absolute owner of East of Kailash and Chandigarh properties. It is averred that all the legal heirs of mother's estate including the three plaintiffs relinquished their shares in the plot at East of Kailash in favour of defendant no.2. They submitted affidavits in this regard to DDA on the basis of which the plot was transferred to defendant no.2. It is averred that for the plot at Chandigarh, all the legal heirs gave affidavits disclaiming the right of ownership in favour of defendant no.1. It is averred that the father of the defendant no.2 had died before the application could be filed with the Estate Office, Chandigarh and defendant no.3 was only an infant, the affidavits given by the mother as natural guardian on behalf of the defendant no.2 was not accepted. It is averred that the plot at Chandigarh therefore stands in the names of defendant no.1 and defendant no.3. It is averred that even though the plaintiffs no.1 and 2 relinquished their shares in the plots voluntarily, defendant no.1 handed over to them, ten year treasury saving deposits, which each of them held jointly with their mother. Each certificate was worth Rs.25,000/ which defendant no.1 considered more than CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.8 of 30 adequately covered compensation for surrendering their rights in the two plots, together with any other claim they may have had in the estate of their parents. It is averred that over a period of 25 years the property at Chandigarh has been dealt with by the defendant No.1 and defendant No.1 alone. It is averred that since the lease deed for the plot at Sunder Nagar stands exclusively in the name of the defendant No.1, none of the family members can claim right over it. It is averred that the defendant No.1 has only permitted the other members of the family to live in it. It is averred that in Chandigarh and East of Kailash properties, plaintiffs along with other legal heirs have surrendered their rights voluntarily, without any conditions, after the mother Smt. Vidya Wati passed away. All other allegations have been denied. Defendant no.1 has prayed that the suit of the plaintiffs be dismissed.
8. Defendant no.2 has taken preliminary objections (i) that the plaintiffs are not in possession of any of the suit properties either directly or through anyone else; (ii) that the suit has not been properly valued for the purposes of court fees; (iii) that the plaint has not been signed and verified in accordance with law; (iv) that plaintiff no.1 is not entitled to pray or seek a decree for partition, being a female member; and (v) that there is no cause of action for filing the present suit. On merits, defendant no.2 has supported the defendant no.1. It is denied that Sh. V.D. CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.9 of 30 Bhandari was maintaining any joint Hindu family or the alleged joint Hindu family maintained by Sh. V.D. Bhandari had acquired and owned the suit properties, as alleged. It is averred that property bearing no.E217, East of Kailash, New Delhi was never acquired, owned or belonged either to Sh. V.D. Bhandari or to the alleged joint Hindu family being maintained by him. It is averred that the said property is the selfacquired property of the defendant no.2 registered in his name by virtue of a perpetual lease deed dated 05.09.1969 executed in favour of the defendant no.2 by the title paramount viz., the President of India. It is averred that neither the plaintiffs nor anyone else can claim any share in the same and, as such, the same is not liable to be partitioned at all. It is averred that property no.26, Sunder Nagar, New Delhi was acquired and owned by defendant no.1 and the same stands registered in his name. It is averred that the property at Chandigarh was also not acquired by or owned or belonged to either Sh. V.D. Bhandari or the alleged joint Hindu family being maintained by him. It is averred that the superstructure thereon was built by the defendant no.1 with his own money. It is averred that the four sons of Sh. V.D. Bhandari i.e. defendant no.1, defendant no.2, Sh. Anand Kumar Bhandari (now deceased) and Sh. Surender Kumar Bhandari (now deceased) were members of HUF of which defendant no.1 was the 'Karta'. It is averred that the said HUF did not own any of the movable or immovable CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.10 of 30 properties. All other allegations have been denied. Defendant no.2 has prayed that the suit of the plaintiffs be dismissed.
9. The plaintiffs have filed separate replications to the written statements of the defendants no.1 and 2. In the replication to the written statement of defendant no.1, plaintiffs for the first time claimed that father of Sh. V.D. Bhandari had owned a property at 27, Barakhamba Road, New Delhi which property was sold by him during his lifetime and out of the said sale proceeds a sum of Rs.75,000/ was given by him to Sh. V.D. Bhandari as the share of his family. This money was invested for acquiring the property at Sunder Nagar. The superstructure was raised by Sh. V.D. Bhandari himself. Plaintiffs have reiterated the contents of the plaint. It is averred that the property as Sunder Nagar has always being assessed to income tax showing that the property belongs to the HUF.
10. As stated hereinabove original plaintiffSh. Sharad Bhandari withdrew his suit vide order dated 06.07.1990. Subsequently, on application u/O XLVII Rule 1 CPC filed on behalf of Smt. Sushila Chadha (earlier defendant no.4), the suit was restored vide order dated 05.12.1995 by the court, observing therein, "It is well settled in a suit for partition the plaintiff shall be defendant and the defendant will be plaintiff and if suit for partition has to be disposed of, it shall dispose of declaring the rights of all the parties concerned. Therefore, the withdrawal of CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.11 of 30 the suit by the plaintiff on 06.07.1990 cannot affect the rights of the defendants in the suit. They can continue the suit for the purpose of partition, subject to the other contentions of the other parties.". Vide order dated 05.12.1995 r/w Order dated 26.02.2007, defendants no.3 to 5 were transposed as plaintiffs and Sh. Sharad Bhandari as defendant no.3. Consequently, as already stated, plaintiffs filed their new plaint to which defendants no.1 and 2 filed their separate written statements and the plaintiffs, in turn, filed their replications thereto. It is pertinent to mention here that after Sh. Sharad Bhandari was transposed as defendant no.3, he chose not to file any written statement to the new plaint of the plaintiffs. On 28.04.2017 the Apex Court allowed Sh. Sharad Bhandari to take up all such contentions that can be taken up in law by him as defendant no.3. Sh. Sharad Bhandari in his original plaint, in paras 4 and 5, had claimed that Sh. V.D. Bhandari left movable and immovable properties and upon his death, all his four sons constituted joint Hindu family and that all his movable and immovable properties vested in the said HUF, which has been managed by defendant no.1 as the 'Karta' thereof from 1960 uptill now.
11. The present suit was transferred to District Court in 2016 on account of change in pecuniary jurisdiction. During the pendency of the suit, plaintiff no.1, defendant no.1 & defendant no.2 died and their legal heirs were brought on record. It is CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.12 of 30 pertinent to mention here that plaintiff no.3Sh. Anand Kumar Bhandari and legal heirs of plaintiff no.1 (Smt. Sushila Chadha) settled the matter with the defendants no.1 and 2 vide orders dated 26.02.2007 and 23.03.2011 respectively in terms of their applicationsI.A. No.418/2007 and I.A. No.4698/2011 respectively.
12. Vide order dated 27.02.1997, as modified by order dated 25.08.2005, issues in the suit were framed afresh as under :
(i) Whether the properties belong to individual or HUF?
(ii) Relief.
13. Plaintiffs in support of their case have examined Smt. Chandra Kanta Batra (plaintiff no.2) as PW1 and Sh. P.S. Rawat, Official from DDA as PW2.
14. PW1 has deposed that Sh. V.D. Bhandari acquired property at Sunder Nagar from ancestral funds while the other properties i.e. East of Kailash and Chandigarh properties were acquired by him from his own earnings. She has deposed that East of Kailash property was acquired by her mother Smt. Vidya Wati in lieu of the compensation of the house left in West Punjab. During the course of her crossexamination, she admitted the paras 4 & 11 of the written statementEx.PW1/D1 filed by her in the present suit on 25.04.1986 when she was defending the suit filed by the original plaintiffSh. Sharad Bhandari. She also admitted the certified copy of the Administration Bond CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.13 of 30 Ex.PW1/D2 (collectively) and the return/assessment orders Ex.PW1/D31 (collectively).
15. PW2Sh. P.S. Rawat, Assistant Section Officer, Land Administrative Branch (LA), DDA has proved the summoned record as under :
(i) Noting dated 03.11.1966 regarding allotment of East of Kailash property in the name of Smt. Vidya Wati Bhandari as Ex.PW2/1;
(ii) Noting dated 04.04.1967 regarding result of draw of lots with respect to property E217, East of Kailash, New Delhi as Ex.PW2/2;
(iii) Allotment letter dated 05.10.1966 by DDA in favour of Vidya Wati Bhandari as Ex.PW2/3;
(vi) Letter dated 23.11.1966 by Smt. Vidya Wati Bhandari alongwith affidavit as Ex.PW2/4;
(v) Forwarding memo dated 15.02.1966 of DDA as Ex.PW2/5;
(vi) Result of lots of allotment on 08.03.1967 as Ex.PW2/6;
(vii) Allotmentcumdemand letter dated 14.04.1966 by DDA as Ex.PW2/7; and
(viii) Letter dated 08.06.1967 by Smt. Vidya Wati Bhandari to DDA as Ex.PW2/8.
16. Defendants in their defence have not examined any CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.14 of 30 witness.
17. I have heard Sh. A.K. Mathur, ld. Counsel for plaintiff no.2; Sh. Abhishek, ld. Counsel for plaintiff no.3; Sh. Pawan Kumar, ld. Counsel for LRs of defendant no.1; Sh. Puneet Aggarwal, ld. Counsel for LRs of defendant no.2 and Sh. Sumit Bhandari, ld. Counsel for defendant no.3.
18. Ld. Counsel for the plaintiff no.2 has contended that vide order dated 21.08.2008 the court has given liberty to the parties to rely upon any admission made by the parties and put the same to the witness in the crossexamination. It is contended that no evidence was led by the defendants and, as such, the case set up by them stands not proved. Secondly, it is contended that the stand now taken up by the defendant no.1 and 2 is contrary to the earlier pleadings and, therefore, the defendant no.1 and 2 cannot take a different plea and withdraw their earlier admissions. It is contended that the 'judicial admissions' made by the defendants no.1 and 2 cannot be permitted to be withdrawn as 'judicial admissions' stand on a higher footing than evidentiary admissions. Thirdly, it is contended that defendants no.1 & 2 have themselves admitted the fact that the properties at Sunder Nagar and Chandigarh were part of HUF properties while filing their respective written statements in the earlier proceedings and, as such, plaintiffs are not required to prove or to lead any evidence to show that the suit properties belong to the parents or they were purchased from the family funds. Lastly, it is CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.15 of 30 contended that from the documentsEx.PW1/D31 (collectively), it stands proved that the property at Sunder Nagar and Chandigarh were HUF properties. Ld. Counsel for plaintiff no.2 has contended that plaintiff no.2 is entitled to 1/6th share in the suit properties. In support of his contentions, he has relied upon judgments - Nagindas Ramdas Vs. Dalpatram Ichharam, 1974 (1) SCC 242; Mritunjoy Sett Vs. Jadunath Basak, 2011 (11) SCC 402; Adiveppa Vs. Bhimappa, 2017 (9) SCC 586; Vidyadharr Vs. Manikrao, 1993 (3) SCC 573; Danamma Vs. Amar, 2018 (3) SCC 343; and Master Neel Dayal Vs. Someshwar Dayal, CS(OS) No.168/2016, decided on 22.03.2017 by the High Court of Delhi.
19. Ld. Counsel for LRs of defendant no.1 has contended that plaintiffs no.1 and 3 are no more contesting defendant. Defendant no.3 withdrew the suit and has not filed any written statement and, as such, only plaintiff no.2 and defendant no.1 and 2 are the contesting parties in the present suit. Secondly, it is contended that no reliance can be placed on the old written statement of defendant no.1 as plaintiff no.2 has herself withdrawn her admissions, made by her in her earlier written statement as defendant no.5. It is contended that there is no reason whatsoever as to why the defendants no.1 and 2, while filing their fresh written statements, cannot withdraw their respective admissions, if any, made by them in their old written statements under identical circumstances. Thirdly, it is contended that it is not the case of the plaintiffs and defendant no.3 CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.16 of 30 that any HUF existed or, at least, existed prior to 17.06.1956 when the Hindu Succession Act, 1956 came into force. Fourthly, without prejudice to the above pleas, it is contended that there never existed any HUF of Sh. V.D. Bhandari before 17.06.1956. No such HUF is proved to have come into being after his death on 08.12.1960 in respect of the estate, movable and/or immovable, if any, left behind by him. Fifthly, it is contended that the plea sought to be raised now at the time of final arguments that the suit properties being HUF properties on account of defendant no.1 and/or defendant no.2 having thrown their respective selfacquired properties into a common hotchpotch not being a 'legal cause of action' cannot be allowed to be raised, much less proved, even on the basis of alleged admissions of defendants no.1 and/or 2 unless it is specifically so pleaded, either in the old plaint or in the new plaint, as a factual cause of action. It is contended that it is not so pleaded either by the defendant no.3 in the old plaint or by the present plaintiffs in the new plaint. Sixthly, it is contended that all the immovable/suit properties were purchased/acquired by named individuals from L&DO/DDA/Chandigarh Administration and, as such, the 'doctrine of blending' is not applicable. No separate HUF existed at the time of death of Sh. V.D. Bhandari and, as such, the question of defendant no.1 or any other party throwing their separate selfacquired property into any common hotchpotch does not arise. Seventhly, it is contended that documentEx.PW1/D31 does not prove/support the CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.17 of 30 claim in the present suit of existence of V.D. Bhandari HUF. Eighthly, it is contended that the plaintiffs took a new plea in the replication which is not permissible under law as the replication is not a part of pleading u/O VI Rule 1 CPC. Ninthly, it is contended that without prejudice to the above contentions even if it is presumed that the suit properties are HUF properties, plaintiff no.2 who is the only contesting plaintiff would be entitled to 1/30th share only. Lastly, it is contended that plaintiffs no.1 and 2 relinquished their shares in the plots voluntarily as a defendant no.1 handed over to them 10 years treasury saving deposits. Each certificate was worth Rs.25,000/ which was more than adequately covered the compensation for their surrendering their rights in the two plots. Ld. Counsel for LRs of defendant no.1 has contended that the suit of the plaintiffs is liable to be dismissed. In support of his contentions, he has relied upon judgments - Sangeeta Vs. Ramphool, 2016 IX AD (Delhi) 630; R.N. Gosain Vs. Yashpal Dhir, AIR 1993 SC 352; Karam Kapahi Vs. Lal Chand Public Charitable Trust, AIR 2010 SC 2077; Kewal Krishan Mayor Vs. Kailash Chand Mayor, 95 (2002) DLT 115; Sunny Vs. Raj Singh, 225 (2015) DLT 211; Surender Kumar Vs. Dhani Ram, AIR 2016 Delhi 120; Vineeta Sharma Vs. Rakesh Sharma, RFA 301/2017, decided by High Court of Delhi on 15.05.2018; Prakash Vs. Phulavati, AIR 2016 SC 769; Danamma (supra); Makhan Singh Vs. Kulwant Singh, AIR 2007 SC 1808; K.K. Puri Vs. Krishna Puri, AIR 2008 P&H 23 and Mangamma Vs. T.B. CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.18 of 30 Raju, 2018 (6) SCALE 331.
20. Ld. Counsel for the defendant no.3 has contended that the defendant no.3 has a right to claim partition of the suit properties and his right cannot be foreclosed simply because he has withdrawn himself as a plaintiff from the present suit. It is contended that defendants no.1 and 2 are estopped in law or otherwise from stating any facts to the contrary which have been admitted by them before this court. It is contended that he is entitled to 1/6th share in the suit properties. Reliance is placed on order dated 28.05.2014 in RFA(OS) No.94/2014 titled as 'Sharad Bhandari Vs. K.K. Bhandari' and the order dated 28.04.2017 in SLP No.404/2015 titled as 'Sharad Bhandari Vs. K.K. Bhandari'.
21. I have gone through the file. My issuewise findings are as under : Issue No.1 :
22. It is vehemently contended on behalf of plaintiff no.2Smt. Chandra Kanta Batra that relying upon para 3A of the old written statement of defendant no.1, the present suit is liable to be decreed on the basis of the alleged 'judicial admissions' made by the defendant no.1 that the suit properties are HUF/joint properties of the parties and, as such, all the parties to the suit are entitled to 1/6th shares each therein. In support of his contentions, ld. Counsel for the plaintiff no.2 has relied upon judgments - Nagindas Ramdas (supra) and Mritunjoy Sett (supra).
CS No.57879/2016Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.19 of 30
23. The plaintiff no.2 in her old written statement as defendant no.5 made clear admissions that there existed 'No HUF of V.D. Bhandari'; that there existed 'No HUF Property'; that 'defendant no.1 was never the Karta of any alleged HUF' and that all the suit properties are the selfacquired properties of Sh. V.D. Bhandari.
24. Therefore, if after being transposed as one of the plaintiffs, Smt. Chandra Kanta Batra is entitled to withdraw her admissions made by her in her earlier written statement as defendant no.5 as stated hereinabove, then there is no reason as to why the defendants no.1 and 2, while filing their fresh separate written statements to the amended plaint, cannot withdraw their respective admissions made by them in their old written statements under identical circumstances. Law and admissions cannot be different for the two set of defendants. The reliance placed on the aforesaid judgments by ld. Counsel for plaintiff no.2 is misplaced and the said judgments are not applicable to the facts of the present case. Thus, the suit is to be decided on the basis of the evidence which has come on record.
25. In the plaint and the written statements on record there is no averment to the effect that any of the suit properties were acquired/owned and/or left behind by any ancestor of Sh. V.D. Bhandari. It is for the first time the transposed plaintiffs, in their replication to the written statement of defendant no.1, stated CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.20 of 30 to the effect, "...father of Sh. V.D. Bhandari had owned property at 27, Barakhamba Road, New Delhi, which property was sold by him during his lifetime and out of the said sale proceeds a sum of Rs.75,000/ was given by him to Sh. V.D. Bhandari as the share of his family. This money was invested for acquiring the property at Sunder Nagar. The superstructure was raised by Sh. V.D. Bhandari himself...". The said plea taken by the plaintiffs in the replication should have been taken at the first instance in the plaint itself. The defendants no.1 & 2 had no chance to rebut the averments so made by plaintiffs in their replication for the first time. PW1, during her crossexamination, has admitted that she has not mentioned in her pleadings that the property at Sunder Nagar was acquired by Sh. V.D. Bhandari from the ancestral funds. There is no pleading as to when and how the property bearing no.27, Barakhamba Road, New Delhi was acquired or sold by the father of Sh. V.D. Bhandari and also as to when and how did he give the alleged amount of Rs.75,000/ to late Sh. V.D. Bhandari. PW1Smt. Chandra Kanta Batra is the only witness examined in this case. In her examinationinchief she has not deposed that the property no.27, Barakhamba Road, New Delhi was acquired and/or sold by father of late Sh. V.D. Bhandari or any amount therefrom was given to the said Sh. V.D. Bhandari. Thus, PW1 has failed to prove the averments made by her in her replication. There is no evidence on record that any CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.21 of 30 ancestral property/fund was available in the hands of late Sh. V.D. Bhandari from which any of the suit properties could have been purchased by him so as to clothe the same as an 'Ancestral Property'. Thus, it is not proved that the Sunder Nagar property was acquired by Sh. V.D. Bhandari from his ancestral funds as claimed by PW1 in her examinationinchief. Qua the properties other than Sunder Nagar property i.e. properties at East of Kailash and Chandigarh, PW1 has herself deposed that the said properties were acquired by Sh. V.D. Bhandari from his own earnings.
26. PW1 has made contradictory pleas as regards the mode of acquisition of the suit properties. During her cross examination in response to question as to how she has said that the suit properties were purchased with the joint family funds, she deposed to the effect, "I say on the basis that the proceeds came from joint family funds in as much as, my father had surrendered his right in the ancestral property at Lahore and Barakhambha, Delhi and in lieu thereof these properties were purchased by family from the proceeds thereof". This plea taken by PW1 during crossexamination was not so stated in the plaint. By the abovesaid response, she meant to say that the properties at Lahore and Barakhambha Road, New Delhi were both ancestral properties and since the suit properties were purchased from the alleged ancestral funds, they also became ancestral/joint CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.22 of 30 properties. This deposition of PW1 is contrary to her earlier crossexamination wherein she has deposed to the effect, "it is correct that the house at Lahore was purchased and constructed by my father from his own money". Thus, she has admitted that the house at Lahore was also the selfacquired property of Sh. V.D. Bhandari.
27. In her examinationinchief PW1 has claimed only Sunder Nagar property to have been acquired from ancestral funds. However, during her crossexamination on 29.11.2013, she deposed to the effect, "It is correct that I had applied for letter of administration qua the properties owned by my husband. I do not recall if Sh. K.K. Bhandari had given surety of his property in applying for letters of administration. It is correct that in Ex.PW1/D2 (colly), which is the certified copy of the administration bond, and the statements of sureties recorded therein, it has been mentioned in the statement of Mr. Krishan Kumar Bhandari that he owns property no.26, Sunder Nagar, New Delhi". Thus, PW1 has herself falsified her claim of Sunder Nagar property being ancestral property.
28. It is the settled law that it is the plaintiff who has to prove his case and the plaintiff cannot derive any benefit from the weaknesses of the defendant. Plaintiffs have examined plaintiff no.2 as PW1 and an official witness as PW2. Merely because the defendants have not led any evidence, it does not mean that the CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.23 of 30 defendants would be shut out from showing that the plaintiffs have not been able to prove their case and the same is to be decreed only on the plea that the defendants did not adduce any evidence on record. The judgment - Vidyadhar (supra) relied upon by ld. Counsel for plaintiff no.2 is not applicable to the facts of the present case.
29. It is neither the case of the plaintiffs in the plaint nor the case of the defendant no.3 in the original plaint that the defendants threw the suit properties in a common hotchpotch. The said plea was raised only at the stage of final arguments. The doctrine of blending postulates two conditions (i) that the person owning his selfacquired property must be established to have voluntarily thrown the same into the common hotchpotch with the intention of abandoning/waiving off all his separate claims upon the same; and (ii) that there existed separate HUF/coparcenory property as well as separate selfacquired property of a coparcenor/member of HUF as has been held by Division Bench of High Court of Delhi in the case titled as 'Kewal Krishan Mayor' (supra). As no separate HUF has been proved to be existing at the time of death of Sh. V.D. Bhandari, the question of defendant no.1 or defendant no.2 or any other party to the suit having ever thrown his or her separate self acquired property into such common hotchpotch does not arise.
30. The present suit for partition is in respect of the CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.24 of 30 properties of V.D. Bhandari HUF. The existence of the same is sought to be proved by tendering in evidence ITRs/assessment orders as Ex.PW1/D1 (colly) during crossexamination of PW1 on 21.02.2018. A bare perusal of Ex.PW1/D1 (colly) would reveal that they pertain to 'Krishan Kumar Bhandari HUF' and not V.D. Bhandari HUF. There is no reference in the suit to Krishan Kumar Bhandari HUF. The very first page of Ex.PW1/D1 (colly) would reveal that such ITRs of said 'Krishan Kumar Bhandari HUF' were being filed since the FY 196061. Ex.PW1/D1 (colly) does not prove the claim in the present suit of existence of V.D. Bhandari HUF.
Status of properties : 26, Sunder Nagar, New Delhi :
31. PW1 in her examinationinchief itself has admitted that the property bearing no.26, Sunder Nagar is registered in the name of Sh. Krishan Kumar Bhandari (defendant no.1). In her replication to the written statement of defendant no.1 qua the Sunder Nagar property she has stated to the effect, "...the structure in fact was raised by the father of late Sh. V. D. Bhandari out of his own income...". The plaintiffs have not adduced any evidence in support of the said claim that the father of Sh. V.D. Bhandari had raised any such structure. During her crossexamination PW1 has admitted the documentEx.PW1/D2 (colly) wherein it has been mentioned in the statement of Sh. Krishan Kumar Bhandari that he owns property no.26, Sunder CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.25 of 30 Nagar, New Delhi. Similarly, the plaintiffs have relied upon and tendered in evidence through their witnessPW2 the letter dated 23.11.1966Ex.PW2/4 of late Smt. Vidya Wati Bhandari which was forwarded to DDA with her affidavit dated 22.11.1966 declaring on oath as under: "I, VIDYAWATI BHANARI widow of Shri V.D. BHANDARI, resident of 26, Sunder Nagar solemnly declare and affirm that I or my husband or any of my dependent relations including unmarried children do not own, in full or in part on freehold or lease hold basis, any residential plot or house in the urban areas of Delhi, New Delhi or Delhi Cantonment.
I have attained the age of majority, my date of birth being October, 1905.
DEPONENT I, VIDYAWATI BHANDARI aforesaid solemnly affirm and say that the facts mentioned above are true to my knowledge and nothing is false therein and that no material fact has been concealed.
DEPONENT
Place: New Delhi
Date: 22nd November, 1966"
(Emphasis mine)
32. Thus, in view of the abovesaid affidavit of Smt. Vidya Wati Bhandari, the plaintiffs cannot now take a stand that Sh. V.D. Bhandari owned the property no.26, Sunder Nagar, New Delhi.
33. Admittedly, defendant no.1 by virtue of being the owner of property no.26, Sunder Nagar, New Delhi stood surety CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.26 of 30 for plaintiff no.2 at her instance to enable her to obtain Letter of Administration/Administration Bond in respect of the properties of a deceased husband. She having derived benefit of defendant no.1 being the owner of the said property, cannot now turn around and claim to the contrary that Sh. Krishan Kumar Bhandari was/is not the owner of the Sunder Nagar property by application of doctrine that a person cannot approbate and reprobate at the same time as has been held by the Apex Court in R.S. Gosain (supra). The relevant para of the judgment is reproduced hereinbelow "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid any thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."
34. Similar is the ratio of judgment - Karam Kapahi (supra). Thus, from the material and the evidence on record, it stands proved that the defendant no.1 is the owner of property no.26, Sunder Nagar, New Delhi in his own right.
E217, East of Kailash, New Delhi :
35. PW1 in her examinationinchief itself has deposed that the property at East of Kailash was acquired by Sh. V.D. Bhandari from his own earnings. In her crossexamination she has admitted that the East of Kailash property was allotted in the CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.27 of 30 name of her mother and this fact also stands proved from the testimony of PW2. PW1 has further admitted that after the death of her mother, the property at East of Kailash was/is registered in the name of Sh. R.K. Bhandari. Ld. counsel for the plaintiffs has contended that from the testimony of PW2 and the document Ex.P2/7 it stands proved that the property at East of Kailash was acquired by Smt. Vidya Wati in lieu of the ancestral property. I do not agree with this contention of ld. Counsel for plaintiff no.2. The documentEx.PW2/7 does not say so. The plaintiffs have failed to prove that the said property was purchased with the joint family funds. Thus, the East of Kailash property was the individual property of Smt. Vidya Wati which was transferred in the name of defendant no.2.
44/45, Sector4, Chandigarh :-
36. PW1 in her examinationinchief itself has claimed the Chandigarh property to have been acquired by Sh. V.D. Bhandari from his own earnings. In her crossexamination she has deposed to the effect, "we were perhaps allotted plots at Chandigarh in lieu of the house left at Lahore. It is correct that the house at Lahore was purchased and constructed by my father from his own money (Emphasis mine)" . PW1 is herself not sure if the plot at Chandigarh were allotted in lieu of the house left at Lahore. She has further deposed to the effect, "I cannot say if the land at village Kilokari, Delhi was purchased with the money CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.28 of 30 received as compensation in lieu of the property at Lahore". Thus, the Lahore property cannot be said to be an ancestral property. PW1 has admitted during her crossexamination that the property at Chandigarh was allotted in the name of her mother Smt. Vidya Wati Bhandari who expired in 1968. It has been admitted by PW1 during her crossexamination that she had signed the affidavits with regard to the Chandigarh property. The testimony of PW1 is full of contradictions and omissions and, as such, the same is neither reliable nor trustworthy. In view of her admission during her crossexamination of having executed the affidavit, a copy of which is on record, it stands proved that PW1 gave 'No Objection' for the transfer of her share in the plot at Chandigarh in favour of her brotherSh. Krishan Kumar Bhandari and her nephewSh. Sharad Bhandari. Though not referred to or relied upon, a family settlement, it was held as far as back as in Kale Vs. Deputy Director of Consolidation, 1976 (3) SCC 119, is to be viewed without the technicalities of law and is to be honoured. A family settlement, even if unregistered, affects the property settled thereby. In judgment - K.K. Puri (supra), it was held as under : "From the affidavit, it appears that the affidavit only conveys the intention of the members of the family to relinquish their rights in favour of their mother. It is not a document which by itself extinguishes or creates any rights. Therefore, non registration of the document is of no consequence. The defective verification in the affidavit also does not in any way help the plaintiffappellant. It is only a mode of communication to the Chandigarh CS No.57879/2016 Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.29 of 30 Administration whereby the other members of the family conveyed their intention not to claim any title over the property in question and requested for transferring the rights in favour of their mother Smt. Tara Puri. The Chandigarh Administration has accepted this mode and consequently executed a valid conveyance deed in favour of Smt. Tara Puri. Therefore, the legality of the affidavit on the technicalities like the defective verification or non registration, is of little help to the plaintiffappellant. It is nobody's case that for transferring the property in favour of one amongst the legal heirs, valid transfer deed is required from other legal heirs. The plaintiff has neither impleaded the Chandigarh Administration as a party to the suit challenging their action of transferring the property in favour of Smt. Tara Puri, nor the instrument of the transfer has been challenged in the present suit".
37. In view of my above discussion, the plaintiffs have failed to prove that the suit properties belong to HUF. The suit properties are held to belong to individual(s). This issue is decided accordingly.
Relief :
38. In view of my findings on issue no.1, the suit of the plaintiffs is dismissed with costs. Needless to say, legal heirs of plaintiff no.1, plaintiff no.3, defendant no.1 and defendant no.2 shall remain bound by the terms & conditions of their settlement arrived at among them during the pendency of the present suit. Decree sheet be prepared accordingly. File be consigned to Digitally signed by PRAVEEN Record Room after due compliance.
PRAVEEN KUMAR
KUMAR Date: 2019.05.01
16:14:05 +0530
Announced in open court (PRAVEEN KUMAR)
today i.e. on 01.05.2019 Additional District Judge05,
NDD, Patiala House Courts,
New Delhi. (R)
CS No.57879/2016
Sushila Chadha & Ors. Vs. Krishan Kumar Bhandari & Ors. Page No.30 of 30