Delhi District Court
Jitender Pal Singh vs Gurmeet Kaur Ors on 18 December, 2023
IN THE COURT OF MS. SAUMYA CHAUHAN
ADDITIONAL SESSION JUDGE (FTC)-02,WEST
TIS HAZARI COURTS: DELHI
EARLIER
IN THE COURT OF MS. SAUMYA CHAUHAN
ADDITIONAL DISTRICT JUDGE-02:CENTRAL
TIS HAZARI COURTS: DELHI
CS DJ No.16426/2016
In the matter of:-
CS DJ No.16426/2016
CNR No.DLCT01-000049-1996
S. Jatinder Pal Singh,
S/o Late Sardar Arjan Singh,
Resident of 27/56, First Floor, Punjabi Bagh,
New Delhi-110026 .......Plaintiff
Versus
1. S. Prithipal Singh (now deceased)
through his legal heirs
Smt. Gurmeet Kaur
W/o late S. Prithipal Singh,
Resident of 27/56, Ground Floor,
Punjabi Bagh, New Delhi-110026
2. Smt. Amrit Kaur (now deceased),
wife of late S. Arjan Singh,
through her legal heirs
a) (i) Smt. Gurmeet Kaur,
wife of late S. Prithipal Singh
ii) Sh. Kanwar Preet Singh,
son of late S. Prithipal Singh
(iii) Ms.Preetika Rangar,
D/o late S. Prithipal Singh,
CS DJ no.16426/2016 page no.1 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
All residents of 27/56, Ground Floor,
Punjabi Bagh, New Delhi-110026
b) S. Jatinder Pal Singh,
son of late Sardar Arjan Singh,
resident of 27/56, First Floor,
Punjabi Bagh, New Delhi-110026
c) Smt. Urvinder Kaur @ Rani Harjit Singh (now deceased)
D/o late S. Arjan Singh,
through her legal heirs
i) Ms. Jasmina Sachdeva,
wife of Sh. Gurvinder Singh,
R/o House No.25, Basant Avenue,
Rattan Singh Chowk, Amritsar, Punjab
(ii) Ms. Harshina Sethi,
wife of Sh. Loveneet Singh Sethi,
Resident of 1/52, Top Floor,
West Punjabi Bagh, New Delhi-110026
3. Smt. Urvinder Kaur @ Rani Harjit Singh (now deceased),
D/o late S. Arjan Singh,
through her legal heirs
(i) Ms. Jasmina Sachdeva,
wife of Sh. Gurvinder Singh,
R/o House No.25, Basant Avenue,
Rattan Singh Chowk, Amritsar, Punjab
(ii) Ms. Harshina Sethi,
wife of Sh. Loveneet Singh Sethi,
Resident of 1/52, Top Floor,
West Punjabi Bagh, New Delhi-110026
4. Smt. Harbans Kaur (deceased)
daughter of late S. Arjan Singh,
through her legal heirs
a) S. Jaswant Singh
b) S. Surinder Pal Singh
CS DJ no.16426/2016 page no.2 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
c) S. Tejinder Pal Singh
All Residents of B-129, Fateh Nagar
Jail Road, New Delhi-110018
d) Smt. Sarabjeet Kaur,
W/o Sh. Gurmeet Singh,
Resident of 10980, Second Floor,
East Park Road, Dori Walan, Karol Bagh,
New Delhi-110005
5. Smt. Varinder Kaur (deceased)
D/o late S. Arjan singh,
through her legal heirs
a) S. Balwant Singh
b) S. Maninder Pal Singh,
c) S. Harpreet Singh
All residents of A-48, Rajouri Garden,
New Delhi-110027 .....Defendants
Date of Institution : 12.06.1996
Date of reserving for judgment : 09.11.2023
Date of pronouncement of Judgment : 18.12.2023
JUDGMENT
1. By this judgment, the court shall decide the present suit for partition and rendition of accounts filed by the plaintiff against his mother (defendant no.2) and siblings (defendant no.1 and defendant no.3 to 5).
PLAINTIFF'S CASE
2. It is the case of the plaintiff that defendant no 1 is his real brother, defendant no. 2 is his mother and defendant no.3 to 5 are sisters. Plaintiff's father late Sh. Arjan Singh had CS DJ no.16426/2016 page no.3 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. purchased/acquired a double storey building bearing Municipal no.2638 to 2642, built upon a lease-hold plot of land bearing Khasra no.240, Block-L, ad measuring 330 sq. yards situated on Gurudwara Road, Ward no. XVI Karol Bagh, New Delhi (hereinafter referred to as "the suit property"). It has been averred that as per the sale deed, late Sh. Arjan Singh, the plaintiff, defendant no.1 and defendant no.2 had 1/4th share each in the said property.
3. It has been averred by the plaintiff that Late Sh. Arjan Singh expired on 27.08.1984. During his life time, Sh. Arjan Singh had executed a will dated 30.06.1981, which was duly registered in the office of Sub-Registrar on 02.07.1981. By way of the said will, late Sh. Arjan Singh had bequeathed his 1/4th share in the suit property upon the plaintiff. Now that Sh. Arjan Singh has expired, by operation of the said Will, now the plaintiff has become owner of his father's 1/4th share in the suit property and thus owner of half share in the suit property.
4. It has been further averred that in the year 1986, the parties to the present suit decided to renovate/reconstruct the building. Accordingly, the already existing structure was demolished and a new 3½ storey building was constructed. The plaintiff contributed a huge amount towards the construction, even more than his share. The total cost of the said construction was around 28,00,000/-.
5. It has been averred that the parties to the suit decided to CS DJ no.16426/2016 page no.4 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. run a hotel in the said building in partnership and executed a formal Deed of partnership dated 15.01.1988. The defendant no.1, being the elder brother of the plaintiff was looking after and was in charge of the affairs of construction as well as installment of equipment/furniture and other material in the building.
6. It has been further averred that for the purpose of running the hotel, the parties applied for a loan to Punjab & Sind Bank, Karol Bagh, New Delhi for installing air conditioning plant, lift, televisions, refrigerators, generators, kitchen equipment, furniture/fixtures, crockery, cutlery and utensils. The bank disbursed a loan of Rs.3,97,500/- on 15.05.1988 and a further loan of Rs.1,88,000/- on 09.02.1989 and thus cash credit facility to the extent of Rs.5,85,500/- was obtained from the bank.
7. The plaintiff has averred that to run a hotel, various formalities including a license are required to be obtained from police i.e. DCP (Licensing) and MCD. However, the requisite license for running the hotel could not be obtained. The defendant no.1 wanted to run the hotel without the requisite license in an unauthorized manner. Also, defendant no.1 also wanted to indulge in illegal construction by constructing more than the sanctioned limit by the Corporation. However, the plaintiff and defendant no.2 were not willing to become party to these illegal acts and they refused to run the hotel in an unauthorized manner. Hence, differences arose between the parties and the business was never started in partnership.
CS DJ no.16426/2016 page no.5 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
8. It has been submitted that since the year 1990-1991 till date, it is defendant no.1 who has been utilizing and earning all the profits by using the main building, except the basement and shop no.1, 2, 3 and 4 on the Ground Floor. However, the plaintiff and defendant no.2 are entitled to their share in the profit earned by the defendant no.1 from use of the said building, and defendant no.1 is liable to render the amount of profit earned by him from the property. It is the case of the plaintiff that he had persuaded defendant no.1 to settle the matter amicably but defendant refused to co-operate with the plaintiff. To the contrary, he is trying to sell the property to some builders. Hence, the plaintiff has filed the present suit for partition of the suit property by auctioning the same and sale proceeds be divided between the parties as per their respective shares. He has also prayed for rendition of accounts by defendant no.1 with respect to the profits/benefits earned by him by using the building.
DEFENDANT'S CASE
9. Defendant no.1 has vehemently opposed the contentions made by the plaintiff in his plaint. In his written statement, defendant no.1 has alleged that the plaintiff has no cause of action in his favour and the suit is liable to be dismissed. Further, the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction and hence, is liable to be dismissed.
10. On merits, the defendant has contended that the suit property has already been partitioned in metes and bounds by way of a mutual oral settlement between the plaintiff and CS DJ no.16426/2016 page no.6 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. defendants. As per the oral partition, the plaintiff is entitled to enjoy the shops on the ground floor, while defendant no.2 is entitled to the entire basement area. The upper storeys of the building have fallen to the share of defendant no.1. Hence, the present suit is liable to be dismissed.
11. It has further been alleged that the plaintiff has not come to the court with clean hands and has manipulated the facts of the case. It has been alleged that the plaintiff has committed various illegalities and has spoiled the entire project, thereby causing great hardship and huge losses to defendant no.1. Hence, it is the plaintiff and defendant no.2, who are liable to reimburse the losses suffered by defendant no. 1.
12. Defendant no.1 has contended that their father late Sh. Arjan Singh had executed a Will dated 10.07.1984 vide which he had bequeathed his 1/4th share in the suit property in favour of the plaintiff and defendant no.1 equally. Any other will is forged and fabricated. It has been further averred that defendant nos.3 to 5 have no legal right or interest in the estate left behind by late Sh. Arjan Singh. The daughters Smt. Varinder Kaur and Smt. Harbans Kaur, pursuant to the demise of late Sh. Arjan Singh and acting upon the will dated 10.07.1984, had executed a Relinquishment Deed dated 05.09.1984, thereby relinquishing their respective shares in favour of the plaintiff and defendant no.1. Defendant no.1 has alleged that the plaintiff and defendant nos.3 to 5 are in collusion with each other and the application under Order 1 Rule 10 CPC has been filed by the plaintiff only CS DJ no.16426/2016 page no.7 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. with a view to delay and protract the matter.
13. Defendant no.1 has alleged that the Will dated 30.06.1981 as relied upon by the plaintiff, is forged and fabricated. He has denied that the plaintiff has become owner of half share in the suit property by virtue of the said will of late Sh. Arjan Singh.
14. The defendant no.1 has admitted that the suit property was re-constructed in the year 1985-86 as agreed by the parties. However, he has denied that the plaintiff had contributed a huge amount towards the construction of the and that the total cost of construction was Rs.28,00,000/-. Infact, the cost of construction was around Rs.40,00,000/-.
15. Defendant no.1 has admitted that a joint proposal for taking loan was submitted by the plaintiff and defendants. However, he has alleged that the loan amount was not released to defendant no.1 due to objections and hindrances caused by the plaintiff in collusion with defendant no.2 and for that reason the entire project for completing and running the hotel was spoiled. Having no other alternative, defendant no.1 had to arrange funds from his friends and relatives and from his personal account. He has averred that the plaintiff has not paid any amount towards construction cost and had betrayed the defendant. Hence, no question of plaintiff's share arises in the completed hotel project.
16. Defendant no.1 has admitted that a Partnership Deed was executed by the parties. However, it has been denied that the CS DJ no.16426/2016 page no.8 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. partnership dated 15.01.1988 was only a formal one. Rather, it was duly acted upon and loan was taken. A loan of Rs.15,00,000/- was sanctioned. However, part loan was not released due to the objections and hindrances created by the plaintiff. The defendant no.1 incurred a loss of Rs.60,00,000/- and the plaintiff and defendant no.2 are liable to pay the same.
17. It has been further averred that Punjab and Sind Bank filed a suit for recovery against the plaintiff and the defendants. However, the plaintiff and defendant no.2 did not even bother to appear before the court. Ultimately defendant no.1 appeared before the court and deposited the entire amount of Rs.16,00,000/- to Punjab and Sind Bank. The defendant has denied that he was running the hotel in an illegal and unauthorized manner. The plaintiff and defendant no.2 failed to make the payment of their respective shares and further failed to co-operate in taking the loan and running the hotel as complete project was spoiled by the plaintiff and defendant no.2. He had submitted that DESU had raised a huge bill, however, the defendant has already taken steps for the same.
18. It has been further averred that when the plaintiff and defendant no.2 failed to make payment of the statutory dues of government bodies as well as the loan amount, under compelling circumstances the defendant sold a part of the suit property prior to institution of the present suit. Defendant no.1 entered into an agreement to sell with M/s. Brother Builders & Developers and M/s. Brother Builders (P) Ltd. and out of the earnest money, a CS DJ no.16426/2016 page no.9 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. sum of Rs.12,50,000/- from each of the agreement was paid to DESU to settle the electricity charges, and a sum of Rs.8,00,000/- from each of the agreement had been paid to Punjab & Sind Bank. A total amount of Rs. 16,00,000/- was paid in the suit filed by Punjab & Sind Bank against the plaintiff and the defendants before Hon'ble High Court of Delhi. The amount of Rs. 16,00,000/- was deposited vide order of the Hon'ble Mr. Justice S. Joseph. Further, a sum of Rs.5,00,000/- from each agreement, totaling Rs.10,00,000/- has been retained for payment to be made to Property Tax Department. Part possession of the building has already been handed over to the aforesaid purchasers prior to the institution of the present suit.
WS OF DEFENDANT NO.2
19. Defendant no.2 Smt. Amrit Kaur has admitted the contentions made by the plaintiff in his plaint. She has admitted that will dated 30.06.1981 was executed by her husband late Sh. Arjan Singh vide which he had bequeathed his 1/4th share in the suit property upon the plaintiff. She has admitted the entire story of the plaintiff and has submitted that she has no objection if decree is passed in favour of the plaintiff.
20. It is pertinent to mention here that the name of defendant no.3 to 5 was added on an application under Order 1 Rule 10 CPC filed on behalf of the plaintiff, which was allowed vide order dated 24.09.2018 and Smt. Urvinder @ Rani Harjeet, Smt. Harbans and Smt. Sarabjeet Kaur were added as defendant no.3 to 5 respectively in the array of party.
CS DJ no.16426/2016 page no.10 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
21. Written statements were filed on behalf of defendant no.3, 4 and 5 wherein the defendants have admitted the contents of the plaint and have submitted that late Sh.Arjan Singh had executed his last will dated 30.06.1981 which was duly registered in the office of Sub-Registrar on 02.07.1981. No other will was executed by late S.Arjan Singh and the will dated 10.07.1984 relied upon by defendant no.1 is a forged and fabricated document. They have submitted that the suit be decreed in favour of the plaintiff as per the will of late S. Arjan Singh and that they are not claiming any right or share in the suit property.
22. At this stage, it would be relevant to refer to the order of Hon'ble High Court of Delhi order dated 08.11.2019, vide which it was observed that since the application under Order 1 Rule 10 CPC has been filed at a belated stage and since the matter is at the stage of final arguments, no opportunity for leading evidence will be granted to the newly impleaded defendants. However, at the same time, the Hon'ble High Court directed this court to bear in mind the number of co-sharers of the suit property if decree for partition is to be passed.
ISSUES
23. On completion of pleadings, the following issues were framed by the Hon'ble High Court of Delhi, vide order dated 12.11.2010:-
"1. Whether the plaintiff is entitled to the partition of the suit property. OPP;
CS DJ no.16426/2016 page no.11 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
2. Whether the plaintiff is entitled to rendition of accounts for the alleged profits/benefits earned by the defendant no.1 from the suit property. OPP;
3.Whether the suit property stands partitioned in terms of an oral settlement between the parties. OPD;
4. Whether the Will dated 30.06.1981 executed by late Sh. Arjan Singh is valid and genuine. OPP;
5. Whether the Will dated 10.07.1984 executed by Late Sh. Arjan Singh is valid and genuine. OPD;
6. Whether the plaintiff contributed any funds towards the re-construction of the suit property between 1985 and 1986. OPP;
7. Whether the defendant no.1 repaid the loan amount to the Punjab and Sind Bank. OPD
8. Relief."
24. To lead evidence, the plaintiff examined the following witnesses: -
PW-1 Sh. Jatinder Pal Singh
PW-2 Sh. Jaswant Singh
PW-3 Sh. Surender Kumar
PW-4 Sh.Rajbir
PW-5 HC Charan Singh
25. Plaintiff entered the witness box as PW-1 and tendered his evidence by way of affidavit as Ex. PW-1/A. PW-1 reiterated the averments made in the plaint and has relied upon the Will of late S. Arjan Singh dated 30.06.1981 which is Ex.PW1/1 and copy of CS DJ no.16426/2016 page no.12 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. Partnership Deed is Mark A.
26. In his cross-examination, PW-1 stated that the dispute in these proceedings is the with regard to property number 2638-42, Gurdwara Road Karol Bagh, New Delhi. As per Sale Deed, this property was in the name of Late Sh. Arjan Singh, Smt. Amrit Kaur, Sh. Prithi Pal Singh and the witness. After the demise of his father Late Sh. Arjan Singh, as per his registered Will Ex.PW1/1, the share of his father devolved in his favour. He stated that his father had not executed any other will except this one. He denied the suggestion that his father had executed another will dated 10.07.1984 and voluntarily stated that the other alleged will was a forged document.
27. PW-1 deposed that the suit property consists of four floors. Ground floor consists of 7 shops presently and one reception area. 1st, 2nd and 3rd floor consist of 11 rooms each. Fourth floor consists of one big hall and two rooms and in addition there is basement in the suit property.
28. He admitted that the suit property was re-constructed in the year 1986-88. The re-construction of the suit property would have cost about Rs.28,00,000/- approximately. He denied that the total cost of construction exceeded Rs.40,00,000/-. He denied that that late Prithipal Singh paid the most towards reconstruction of the suit property.
29. PW-1 denied that the suit property has been partitioned by CS DJ no.16426/2016 page no.13 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. metes and bounds. He denied that as per the oral partition, the shops on the ground floor came to his share and the rest of the property was to be enjoyed by late Prithi Pal Singh i.e defendant no.1. PW-1 further deposed that he had contributed about Rs.13.5 Lakhs approximately between the period of 1986-88, while defendant no.1 and 2 contributed about Rs.5.5 lakhs and Rs.5 Lakhs respectively towards the reconstruction.
30. He further stated that the Will of Late Sh. Arjan Singh dated 30.06.1981 was discovered by him from his father's cupboard after about 1-2 months of his death. He had shared the copy of the said will with his mother and brother. He denied the suggestion that his father had not executed any such will.
31. PW-1 admitted that a loan of Rs.5.85 lakhs approximately was availed from Punjab & Sind Bank, Karol Bagh Branch. However, the bank had sanctioned a limit of Rs.15,00,000/-. Initially the loan was applied jointly by him, Smt. Amrit Kaur and Sh. Prithi Pal Singh. However, in 1991 late Prithi Pal Singh had executed documents in the favour of the bank taking sole responsibility for the repayment of the loan so availed. He did not know if the said loan was ever repaid. The said loan was sanctioned and released by the bank after completing the formalities. He denied the suggestion that he had created hindrance while late Sh. Prithi Pal Singh was applying for the said loan for reconstruction of the suit property, and due to this, the reconstruction work was delayed and hampered.
CS DJ no.16426/2016 page no.14 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
32. PW-1 admitted that the bank had filed a suit for recovery against all of them and all the amount was returned by defendant no.1 to the bank. He admitted that the Partnership Deed dated 15.01.1988 was also given to the bank at the time of applying for the loan. Photocopy of the Partnership deed dated 15.01.1988 is Ex. PW1/DX1.
33. PW-1 admitted that after the construction was over, he had not spent any amount towards running the affairs of the business. He admitted that the hotel business in the name of partnership firm which was to be run from the suit property, never started. He admitted that a hotel business in name and style of Hotel Pearl Palace was started by defendant no.1 from the suit property. He had no financial or otherwise contribution in the business of Hotel Pearl Palace. He stated that the house tax of the suit property was jointly shared by him and his mother upto the year 1989. He could not tell who has been depositing the house tax after the year 1989.
34. He denied the suggestion that the shares in the Partnership Deed Ex.PW1/DX1, were based on the shares bequeathed by his father on the basis of his purported will dated 10.07.1984.
35. PW-2 Jaswant Singh, son-in-law of late Sh. Arjan Singh tendered his evidence by way of affidavit as Ex.PW-2/A. He deposed that the Will dated 10.07.1984 purported to have been executed by late Sardar Arjan Singh bears his signatures as witness. However, late S. Arjan Singh had never signed the same CS DJ no.16426/2016 page no.15 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. in his presence. In fact, after the death of Sh. Arjan Singh defendant no.1 i.e. his brother-in-law had brought the said document to him and asked him to sign the same as it was required for government department. Believing him, the witness signed the same.
36. During his cross-examination, PW-2 stated that Sh. Arjan Singh was his father-in-law. He stated that he does not know anything about the said Will. He denied the suggestion he has made a false statement in his evidence affidavit. He further denied that he had visited the residence of Sh. Arjan Singh and all family members were present when this will was signed. He voluntarily stated that he does not know anything about this will. He admitted his signatures on the Will dated 10.07.1984 which was exhibited as Ex.PW2/DX1 and stated that he had signed it somewhere in October 1984, as his brother-in- law Mr. Prithpal Singh told him that he has some work with the MCD. He had signed the same without going through the same.
37. PW-3 Sh.Surender Kumar, from MCD office, Karol Bagh Zone deposed that he is unable to produce the sanctioned plan of property no. 2368-2642, Gurdwara Road, Karol Bagh, New Delhi, as the same is available at the Building Head Quarter, Civic Centre, New Delhi. The copy of status report duly signed by JE (Buildings) and AE (Buildings) is Ex.PW3/A. During cross-examination, this witness stated that he had not prepared the report Ex.PW3/A, nor had he inspected the suit property on 06.08.2015, as mentioned in this status report.
CS DJ no.16426/2016 page no.16 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
38. PW-4 Sh. Rajbir, License Clerk, Health Department, MCD, Karol Bagh Zone has brought the summoned record partly, i.e. from the year 2003 only. He produced the license for running the hotel/eating house on property no.2368-2642, Gurdwara Road, Karol Bagh, New Delhi. Photocopy of the license dated 21.02.2003, which was renewed thereafter upto 2011, is Ex.PW4/1. He stated that the original document was not in the office file as the original is always with the party concerned. He had also brought another form G8A/ receipt and the number of that G8A/ receipt is 5285195 and as per this form, the license stands renewed upto 31.03.2016. The form G8A/receipt is Ex. PW4/2. (OSR).
39. PW-5 HC Charan Singh, Licensing Branch, Defence Colony, Delhi deposed that the summoned record i.e. the license for running the hotel/eating house in the suit property for the period 1989 upto 1998 is not available in their office. However, he had brought the application for grant of license dated 25.10.1999 for grant of eating-house license on this property which is Ex.PW5/A. (OSR). As per their record, after receiving application in the year 1999, license was granted to one Sh. Jugal Uppal on 29/05/2003; copy of which is Ex. PW5/B and it was valid upto 31/03/2004. The license was renewed thereafter from time to time and it was renewed upto 31/03/2010. After 31/03/2010 it was renewed from time to time and it stands now renewed upto 31/03/2016 vide Ex.PW5/C (OSR).
CS DJ no.16426/2016 page no.17 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
40. After the plaintiff's evidence was closed, the matter was listed for defendant's evidence. Smt. Gurmeet Kaur, wife of deceased defendant no.1, entered the witness box as DW-1 and tendered her evidence by way of affidavit which is Ex.DW1/A. She has relied upon the following documents:
1. The original Will dated 10.07.1984 already exhibited as Ex.PW2/DX1 in the testimony of PW-2.
2. Copies of communication dated 06.08.1986, 26.08.1986 and 24.11.1986 which exhibited Ex.DW1/3 to Ex.DW1/5.
3. The documents Ex.DW1/2, Ex.DW1/6, Ex.DW1/7 and Ex.DW1/8 are de-exhibited.
4. Certified copies of the record in suit no.1584/1991 i.e. the suit for recovery filed by Punjab & Sindh Bank are Ex.DW1/6 to Ex.DW1/9.
41. In her cross-examination, DW-1 admitted that she had joined the proceedings in the present suit only after the death of her husband i.e defendant no.1 Sardar Prithi Pal Singh and that she has no knowledge about the suit proceedings and transactions of her husband. She admitted that she did not have personal knowledge of the communications Ex.DW1/3, Ex.DW1/4 and Ex.DW1/5, and had found them lying in a file maintained by her husband. She could not tell whether the said transactions contained the signatures of the plaintiff or not, or who had written the said communication and who had sent the same. She admitted that her father-in-law late Sardar Arjan Singh had visited London in the year 1984 and had expired in London only.
CS DJ no.16426/2016 page no.18 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
42. DW-1 stated that there used to be partition talks with respect to partition of the property between the family members. However, she could not recollect when the said partition had taken place. She could not tell whether there was any written partition or family settlement. She could neither admit nor deny the suggestion that there was no oral settlement between the parties after the death of S. Arjan Singh.
43. The witness was confronted with para 21 of her evidence affidavit wherein she had deposed that her husband had entered into an Agreement to Sell dated 31.05.1996 with M/s Brother Builders and Developers and M/s Brothers Builders (P) Ltd. She stated that she has deposed about the same as she had heard about it. She had not seen the documents executed by her husband on 31.05.1996. She could neither admit nor deny the suggestion that when her husband had executed the documents mentioned in para 21 and her affidavit dated 31.05.1996, there was no physical partition of the suit property; nor could she tell whether the said transaction was without the consent of the plaintiff and defendant no.2. She could not tell whether any Sale Deed was executed by her husband after the Agreement dated 31.05.1996 in favour of M/s Brother Builder and Developers. However, she admitted that the purchaser had not asked her to complete the transaction with respect to the said Agreement to Sell after her husband's death. She denied that at the time of death of Sh. Arjan Singh the plaintiff had 50% share while defendant no.1 and 2 had 25% share each in the suit property. She could not tell whether the husband had let out shops in the CS DJ no.16426/2016 page no.19 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. suit property and she was receiving rent from tenants. She voluntarily stated the matter of transaction in the property was between two brothers i.e. her husband and the plaintiff.
44. DW-1 further admitted that the Will dated 10.07.1984 was not executed in her presence. However, she denied the suggestion that the said Will was forged and fabricated. She was not aware whether real sister of her husband have ever appeared before the office of Sub-Registrar for execution of any document.
45. No other witness was examined by the defendants and defendant's evidence was closed.
46. I have heard the final submissions made by Ld. Counsels for both the parties and perused the entire record carefully. Written submissions and case-laws have been filed on behalf of both the Ld. Counsels in support of their arguments. The issue wise findings of the court are as follows:
ISSUEWISE FINDINGS
47. Issue no.3 "3.Whether the suit property stands partitioned in terms of an oral settlement between the parties? OPD"
48. Issue no.3 has been taken up first as this issue is to be decided prior to recording findings on issue no.1 and 2. The onus of proving this issue was on defendant no.1.
CS DJ no.16426/2016 page no.20 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
49. Defendant no.1 had averred that the suit property has already been partitioned by way of an oral family settlement. However, he has not specifically mentioned in his Written Statement as to when, how and on which date the said oral partition had taken place. He has only made a bald averment that an oral partition of the suit property had taken place. Unfortunately, defendant no.1 could not appear in the witness box as he had already expired. However, even DW-1, wife of defendant no.1 has not been able to depose anything about the said oral partition. She could not tell the date on which the said partition had taken place, nor could she name the persons in whose presence the said partition was done. Infact, in her cross- examination, DW-1 could neither admit nor deny whether oral family partition had taken place or not between the parties to the suit. The relevant portion of her testimony is reproduced below, "Q.17 Can you tell on what basis you have deposed in para 9 of your affidavit Ex.DW- 1/A that there was mutual partition of the suit property between the owners of the property?
Ans. I have deposed the said fact that there used to be talk in the family with regard to the partition of the property between the family members Q18 Can you tell when the said talk between the family members has taken CS DJ no.16426/2016 page no.21 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
place?
Ans. I cannot recollect the same.
Q.19 I put it to you that there has been no writing between the family members to the said effect. What have you to say?
Ans. I cannot say whether there had been any writing to the said effect.
Q.20 I put it to you that there was no oral family settlement between the parties, after the death of your father-in-law S. Arjun. What have you to say?
Ans. I cannot say."
50. It is a settled law that if a party to a suit claims that the suit property has been partitioned orally or by way of oral partition, the onus to prove the said oral partition is on the said party and this onus is a heavy one. In the case titled as 'Gispati alias Gurudas Bhattacharya v. Hrishikesh Santra & Ors' 2018 SCC OnLine Cal 6341, it was observed by Hon'ble High Court of Calcutta that if one contends that a property stood partitioned orally, then it is the bounden duty of the person claiming such oral partition to prove that partition. Burden of proof is entirely on the person who claims oral partition. The Hon'ble Court held as follows:
"If the plaintiff pleads that the properties were partitioned by an oral partition then he is required to prove such oral partition. By simply saying that an amicable arrangement was made and thereby CS DJ no.16426/2016 page no.22 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
plaintiff acquired transferable right over the suit land, cannot be accepted.
.................
.................
It is also to be considered that amicable arrangement between the co-sharers does not amount to partition. If a party claims that there was an amicable arrangement of partition, the same should be substantiated by evidence."
51. In the case titled as "Backiammal v C.Vasantha A.S.No.126 of 2011, date of decision 07.06.2022, it was held by Hon'ble High Court of Madras that the plea of oral partition should be proved by cogent evidence by the claimant. It was observed, "10. (iv) There are no witnesses in support of the oral transfer. It is settled that when a claim of oral partition is made the burden is on the party setting up the claim of oral partition and the burden is onerous and ought to be discharged by letting in cogent evidence. However, admittedly, no evidence whatsoever has been let in by the appellant herein. The case of oral partition cannot be accepted merely on the ipse dixit of a party."
52. In the case at hand, the defendant has failed to lead any ev- idence to prove that the suit property was partitioned by way of an oral settlement. There is absolutely no evidence to prove that any oral partition has ever taken place between the parties at any point of time. Learned counsel for defendant no.1 has submitted that in the Partnership Deed Ex.PW1/DX1 also, the shares of the parties in the profit and loss of the business are the same as their shares specified in the Will dated 10.07.1984 Ex.PW2/DX1. He has also argued that the parties have been given possession of the CS DJ no.16426/2016 page no.23 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. suit property as per the said oral partition. Even PW-1 has admit- ted in his cross-examination that defendant no.1 is in possession of the entire suit property except the shops on the ground floor and the basement.
53. However, it is a settled law that merely for the reason that the parties are in possession of particular portions of the property as per their convenience is not sufficient to prove that the property has been partitioned. In "Debendra Nath Bez v. Kanan Bez" 2011 SCC OnLine Cal 4295 it was held by Hon'ble High Court of Calcutta, "9. An amicable arrangement amongst the co-
owners should not be confused with an oral partition. A mere arrangement as to possession of convenience of the parties is not a partition by metes and bounds. Such amicable arrangement can never be operative and binding for all time to come. Such arrangement does not destroy the joint character of the properties nor bars a suit for partition at the instance of one of the co-owners dissatisfied with the arrangement. The burden lies upon the party, who asserts oral partition to prove partition. The intention of the parties has to be gathered from their subsequent conducts."
54. In the present case, the plaintiff as well as defendant no.2 have specifically denied any oral partition of the suit property. Defendant no.1 has failed to prove any oral partition between the co-sharers of the suit property. Ld. Counsel for defendant no.1 has submitted that it is admitted that position that the parties are in the settled possession of their respective shares in the suit property. However, PW-1 has specifically denied in his cross-ex- amination that as per the oral partition, the shops on the first floor had come to his share and the rest of the property is to be enjoyed CS DJ no.16426/2016 page no.24 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. by defendant no.1. Hence, in absence of any clear and cogent ev- idence, defendant no.1 has failed to prove that the suit property has been partitioned by metes and bounds through an oral family settlement or oral partition. He has failed to discharge the onus of proving this issue.
55. Issue no.3 is accordingly decided against defendant no.1 and in favour of the plaintiff.
56. Issue no.4 and 5.
"4. Whether the Will dated 30.06.1981 executed by late Sh. Arjan Singh is valid and genuine. OPP"
"5. Whether the Will dated 10.07.1984 executed by Late Sh. Arjan Singh is valid and genuine. OPD"
57. Next, the court shall take up the issues pertaining to the two different wills of late S. Arjan Singh relied upon by the plaintiff and defendant no.1. The onus of proving issue no.4 was on the plaintiff while onus of proving issue no.5 was on defendant no.1.
58. The plaintiff has relied upon the Will of late Sardar Arjan Singh dated 30.06.1981, which is Ex.PW1/1 vide which he had bequeathed his 1/4th share in the property on the plaintiff. Per contra, defendant no.1 has relied upon the Will dated 10.07.1984 Ex.PW2/DX-1 vide which their father had bequeathed his share CS DJ no.16426/2016 page no.25 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. in the property on him and the plaintiff in equal share.
59. The law relating to proving a Will is quite clearly laid down. As per Section 68, Indian Evidence Act, 1872, a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. The Proviso to Section 68 reads that the attesting witness may not be called to prove execution of any document, not being a will, if the same has been registered in accordance with the provisions of Indian Registration Act 1908, unless its execution is denied by the person who has purportedly executed it. The said section is reproduced verbatim as under, "68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
60. In the case titled as "Raj Kumari v. Surinder Pal Sharma, (2021) 14 SCC 500, Hon'ble Supreme Court discussed the law relating to Will. The relevant portion of the said judgment is reproduced below, CS DJ no.16426/2016 page no.26 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
"9. We would first expound the law relating to the execution and proof of wills under the Succession Act and the Evidence Act. Clause (c) of Section 63 of the Succession Act reads as follows: "63. Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules--
(a)-(b)***
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person;
and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
10. As per the mandate of clause (c), a will is re- quired to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the will or should have seen some other person sign the will in his presence and by the direc- tion of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The will must be signed by the witness in the pres- ence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the will in the presence of the attesting witnesses only or that the attesting wit- nesses must put their signatures on the will simulta- neously, that is, at the same time, in the presence of each other and the testator.
11. The need and necessity for stringent require- ments of clause (c) to Section 63 of the Succession Act has been elucidated and explained in several de- cisions. In H. Venkatachala Iyengar v. B.N. Thimma- jamma [H. Venkatachala Iyengar v. B.N. Thimma-
CS DJ no.16426/2016 page no.27 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
jamma, AIR 1959 SC 443] dilating on the statutory and mandatory requisites for validating the execu- tion of the will, this Court had highlighted the dis- similarities between the will which is a testamentary instrument vis-à-vis other documents of conveyanc- ing, by emphasizing that the will is produced before the court after the testator who has departed from the world, cannot say that the will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the will propounded is proved as the last will or testa- ment of the departed testator. Therefore, the pro- pounder to succeed and prove the will is required to prove by satisfactory evidence that (i) the will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the tes- tator understood the nature and effect of the disposi- tions; and (iv) that the testator had put his signature on the document of his own free will. Ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the pro- pounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the will and therefore no hard and fast or inflexible rules can be laid down for the apprecia- tion of the evidence to this effect."
61. Hon'ble Supreme Court further examined the scope of Section 68 and Section 71 of the Indian Evidence Act, 1872. Sec- tion 68 of the said Act has already been discussed above. Sections 71 of the Evidence Act, which relate to proof of documents required by law to be attested, as under:
71. Proof when attesting witness denies the execution.--If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
62. It was further observed by Hon'ble Supreme Court, CS DJ no.16426/2016 page no.28 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
"22. Majority of earlier judgments like Vishnu Ramkrishna [Vishnu Ramkrishna v.Nathu Vithal, 1948 SCC OnLine Bom 97 : AIR 1949 Bom 266] follow the ratio in Dhira Singh [Dhira Singh v. Moti Lal, (1921) 63 IC 266] , with a few exceptions like Manki Kaur v. Hansraj Singh [Manki Kaur v. Hansraj Singh, 1938 SCC OnLine Pat 45 : AIR 1938 Pat 301]. The issue was resolved beyond controversy and debate in Janki Narayan Bhoir [Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91] wherein it has been held that clause (c) of Section 63 of the Succession Act requires and mandates attestation of a will by two or more persons as witnesses, albeit Section 68 of the Evidence Act gives concession to those who want to prove and establish a will in the court of law by examining at least one attesting witness who could prove the execution of the will viz. attestation by the two witnesses and its execution in the manner contemplated by clause (c) to Section 63 of the Succession Act. However, where one attesting witness examined fails to prove due execution of the will, then the other available attesting witness must be called to supplement his evidence to make it complete in all respects to comply with the requirement of proof as mandated by Section 68 of the Evidence Act. It was held : (Janki Narayan Bhoir case [Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91] , SCC pp. 99-100, para
11) "11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive.
This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the CS DJ no.16426/2016 page no.29 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the court for consideration, is one of the cardinal principles of the Indian Evidence Act. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will."
63. In the case it hand, the plaintiff has failed to summon and examine any attesting witness to the Will of late Sh. Arjan Singh CS DJ no.16426/2016 page no.30 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. Ex.PW1/1. Hence, in light of the above-mentioned provisions of law and above-discussed judgment, the said will has not been proved as per law. The plaintiff has failed to discharge the onus of proving this issue. Hence, issue no.4 is decided against the plaintiff.
64. Coming to issue no.5, the onus of proving this issue was on the defendant. Even defendant no.1 has failed to examine any attesting witness to the said will of late Sh. Arjan Singh. Ld. Counsel for defendant has argued that the partnership deed Ex. PW1/DX1 reflects the shares of the parties are as per the shares specified by late S. Arjan Singh in his Will Ex.PW2/DX1. Also, the sisters Smt. Urvinder Kaur and Smt. Harbans Kaur have executed relinquishment deeds in favour of the plaintiff and defendant no.1. Hence, the Will Ex.PW2/DX1 has been duly proved.
65. However, as already observed, the defendant can take benefit of Section 71 Indian Evidence Act only when both the attesting witnesses to the Will have denied or fails to recollect execution of the same. In this case, PW-2 has denied having signed the Will Ex.PW2/DX1 as an attesting witness. Though he has admitted that the said document bears his signature, however, it was not in the capacity of an attesting witness. He has also denied that purpoted executor of the Will, Late Sardar Arjan Singh had signed the said Will in his presence. Infact, as per the said witness, he had signed the same at the behest of defendant no.1, much after the death of S. Arjan Singh. As per Section 71, CS DJ no.16426/2016 page no.31 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. Indian Evidence Act, the defendant ought to have summoned and examined the other attesting witness to the said Will. However, he failed to do so. Hence, he cannot be allowed to take recourse to Section 71 Evidence Act. Infact, as observed by Hon'ble Supreme Court in the above referred case of "Raj Kumari v. Surinder Pal Sharma, (2021) 14 SCC 500", an adverse inference is to be drawn against defendant no.1 in his failure to summon and examine the other attesting witness to the will of late S. Arjan Singh when PW-2 denied the execution of the said will, as per Section 114, Illustration (g) Indian Evidence Act, 1872. Hence, this argument of defendant no.1 is hence untenable.
66. In view of the above discussion, this court is of the considered opinion that defendant no.1 has failed to discharge the onus of proving issue no.5. Hence, issue no.5 is decided against the defendant.
67. Issue no.2 and 6 "2. Whether the plaintiff is entitled to rendition of accounts for the alleged profits/benefits earned by the defendant no.1 from the suit property?OPP "6. Whether the plaintiff contributed any funds towards the re-construction of the suit property between 1985 and 1986. OPP"
68. The onus of proving both these issues was on the plaintiff. Both these issues are taken up together as they are inter-related CS DJ no.16426/2016 page no.32 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. and inter-linked.
69. A suit for rendition of account is for accounts of any property and for its administration, suits by a partner of a firm for dissolution of the partnership firm and accounts, suits by beneficiary against trustees, or suits by member of joint family against the Karta for partition and account, suits by a co-sharer against co-sharers who have received profits of a common property, suits by principal against an agent, and a suits by a minor against a person who has received the funds of a minor. A suit for rendition of account is maintainable only if a person suing has a right to receive an account from the defendant. In the case titled as 'K.C. Skaria Vs. Government of State of Kerala and Anr' 2006 (4) All MR 14 (SC) it was held by Hon'ble Supreme Court, "16. To summarise, a suit for rendition of accounts can be maintained only if a person suing has a right to receive an account from the defendant. Such a right can either be (a) created or recognized under a statute; or (b) based on the fiduciary relationship between the parties as in the case of a beneficiary and a trustee, or (c) claimed in equity when the relationship is such that rendition of accounts is the only relief which will enable the person seeking account to satisfactorily assert his legal right. Such a right to seek accounts cannot be claimed as a matter of convenience or on the ground of hardship or on the ground that the person suing did not know the exact amount due to him, as that will open the floodgates for converting several types of money claims into suits for accounts, to avoid payment of Court fee at the time of institution."
70. In the present case, the plaintiff has claimed rendition accounts of the business being carried out by the defendant no.1 CS DJ no.16426/2016 page no.33 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. in the suit property in pursuance to the partnership deed dated 15.01.1988 which is Ex. PW1/DX1. The plaintiff has claimed that he has contributed about Rs.13.5 Lakhs towards reconstruction of the suit property between 1986-88.
71. Admittedly, the suit property was re-constructed in the year 84-85. The plaintiff, defendant no.1 and 2 had decided to run a hotel in the suit property in partnership. Admittedly, the partnership deed Ex. PW1/DX1 was signed and executed by the plaintiff, defendant no.1 and defendant no.2. Defendant no.1 has not denied the execution of this document. AS per the said Deed, it was agreed that partnership business of hotelier shall be carried on under the name and style of M/s Rangar Palace or any other name agreed upon. The profit or loss of the firm was to be borne by the parties in the following proportions-
1) S. Prithipal Singh- 37.5%
2) Amrit Kaur- 25%
3) S. Jatinder Pal Singh-37.5%
72. However, there is no evidence on record led by the plaintiff that any business or hotel was run by the parties in partnership or in furtherance of the said partnership deed in the suit property. There is no proof that hotel with the name of Rangar Palace or any other name had ever started as the partnership business of the parties. he has failed to bring on record any document to prove the same. No book of accounts or ledger book, or cash memo book of the partnership firm M/s Rangar Palace have been placed on record by PW-1 to prove that CS DJ no.16426/2016 page no.34 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. any partnership business was being run by the said firm or that he had contributed towards the business of either the hotel Rangar Palace or Hotel Pearl Palace at any other business being run at the suit property at any point of time. The plaintiff has further failed to prove that he had contributed about Rs.13.5 Lakhs towards reconstruction of the suit property between 1986-88. Even if he had contributed so, as per Ex. DW1/6 to Ex. DE1/9, i.e the record of the recovery suit filed by Punjab and Sind Bank against the plaintiff and defendant no.1 and 2 clearly show that the entire loan amount was repaid solely by defendant no.1.
73. Further, PW-1 has admitted in his cross examination that once the reconstruction of the property was over, he did not contribute towards the running of any business in the suit property. The relevant portion of his cross examination is reproduced as below, 'After the construction was over, I had not spent any amount towards running the affairs of business. The hotel business in the name of partnership firm which was to be run from the suit property never started. A hotel business was started from the suit property. (Vol. it was started by defendant no.1 in name and style of Hotel Pearl Palace). I had no financial or otherwise contribution in the business started with the name of Hotel Pearl Palace. The house tax of the suit property was being shared jointly by me and by my mother (defendant no. 1). This was being shared upto the year 1989. I do not know as to who was depositing the house tax after the year 1989. I cannot comment if the defendant no.1 was depositing the house tax of the suit property after the year 1989.'
74. Hence, the plaintiff has failed to prove that he has contributed towards re-construction of the suit property or that he CS DJ no.16426/2016 page no.35 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. has a right to call upon the defendant to render account with respect to any business run in a suit property.
75. In view of the above discussions, this court is of the considered opinion that the plaintiff has failed to discharge the onus of proving these issues.
76. Issue no.2 and 6 are accordingly decided against the plaintiff and in favour of the defendant no.1.
77. Issue no.7 "7. Whether the defendant no.1 repaid the loan amount to the Punjab and Sind Bank. OPD"
78. The onus of proving this issue was on defendant no.1. Defendant no.1 has contended that he alone has repaid the loan amount to the Punjab & Sind Bank i.e. the bank from where they had taken a loan of Rs.5,85,500/-.
79. Admittedly, suit for recovery having no.1584/91 was filed by Punjab & Sind Bank against defendant no.1, defendant no.2 and the plaintiff as well as M/s Hotel Rangar Palace before the Hon'ble High Court of Delhi. It is also an admitted fact that the defendant no.1 has solely contested the said suit. It is also admitted that the suit was later on settled between the Bank and the present defendant no.1 i.e. Sh. Prithipal Singh vide order dated 21.11.1996. The copy of order of Hon'ble High Court of Delhi dated 09.08.1995 and 21.11.1996 are Ex.PW1/8 (colly.). It CS DJ no.16426/2016 page no.36 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. is clearly recorded in the ordersheet dated 09.08.1995 that defendant no.3 and 4 i.e. Smt. Amrit Kaur and Sh. Jatinder Pal Singh (defendant no. 2 and plaintiff respectively in this suit) are not co-operating with defendant no.1 and 2. Further, vide order dated 21.11.1996, the matter was amicably settled between the Bank and Sardar Prithipal Singh for total sum of Rs.15,53,000/- towards full and final settlement. This amount has solely been paid by Sh. Prithipal Singh. Hence, it is proved that defendant no.1 has repaid the loan amount to the Punjab and Sind Bank.
80. In view of the above discussions, the court is of the considered opinion that defendant no.1 has successfully discharged the onus of proving the said issue. Issue no.7 is decided in favour of defendant no.1 accordingly.
81. Issue no.1 "1.Whether the plaintiff is entitled to the partition of the suit property. OPP"
82. The onus of proving this issue was upon the plaintiff. The plaintiff has filed the present suit for partition of the suit property. As per the plaintiff, the property was purchased by his father in his name as well as in the name of plaintiff and defendant no.1 and defendant no.2. Both the defendants have admitted this fact in their respective written statements. All the defendants have also admitted that since the time of purchase of the said property, the plaintiff, defendant no.1, defendant no.2 and S. Arjan Singh had equal share in the suit property i.e. 1/4th share each.
CS DJ no.16426/2016 page no.37 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
83. The dispute arose between the parties after the death of late Sardar Arjan Singh. While plaintiff has claimed that he has become owner of S. Arjan Singh's 1/4th share in the property by virtue of Will dated 30.06.1981 Ex.PW1/1, defendant no.1 relied upon the Will of S.Arjan Singh dated 10.07.1984 Ex.PW2/DX-1 to prove that their father had equally divided his share in the suit property between him and the plaintiff.
84. As already observed, neither the plaintiff nor defendant no.1 has been able to prove the Will of late Sh. Arjan Singh as per law. Hence, this court has no qualms in holding that late Sh. Arjan Singh had died intestate in absence of any valid and subsisting Will. Hence, the suit property, i.e the one-fourth share of late Sh. Arjan Singh in the suit property shall devolved on all the LRs of late Sh. Arjan Singh as per the provision of Hindu Succession Act 1956.
85. The property of a Hindu male dying intestate is contained in Section 8 of Hindu Succession Act, 1956. The same has been reproduced verbatim as under -
"Section 8. General rules of succession in the case of males.-The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter-
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of CS DJ no.16426/2016 page no.38 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnate of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased."
86. As per the Schedule to the Hindu Succesion Act, the following persons fall in the category of Class-I Legal Heirs of a Hindu male dying intestate:-
"Class I:- Son; daughter; widow; mother; son of a predeceased son; daughter of a pre-deceased son; son of pre-deceased daughter; daughter of predeceased daughter' widow of per-deceased son; son of predeceased son of a pre-deceased son; daughter of predeceased son of a predeceased son:
widow of a predeceased son of a predeceased son; 1 [son of predeceased daughter of a predeceased daughter; daughter of predeceased daughter of a predeceased daughter; daughter of a predeceased son of a predeceased daughter; daughter of a predeceased daughter of a predeceased son}."
87. The defendant no.1 has averred that her sisters Smt. Varinder Kaur and Smt. Harvans had executed Relinquishment Deeds in favour of him and the plaintiff. In her evidence affidavit, DW-1 had relied upon the said Relinquishment Deeds. However, the original Relinquishment Deeds were never produced before the court and these documents were de- exhibited while recording testimony of DW-1. None of the said sisters were produced as witness in the witness box by defendant no.1 to prove the said relinquishment deeds. Hence, the said Relinquishment Deeds have not been proved as per law and it is not proved that the sisters have relinquished their shares in the CS DJ no.16426/2016 page no.39 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. suit property in favour of the brothers.
88. However, at the same time, separate written statements have been filed on behalf of defendant no.3, 4 and 5 wherein they have admitted the case of the plaintiff and have averred that they are not claiming any share in the suit property.
89. It is also argued by Ld. Counsel for defendant no.1 that a portion of the property had already been sold to the subsequent purchaser M/s Brother Builders (P) Ltd. and part possession has already been handed over to them. Further, the earnest money received from the said purchaser has been used by defendant no.1 to pay the charges of DESU, MCD and towards payment of loan to Punjab and Sind Bank. This fact was well in the knowledge of the plaintiff despite that he has not amended the plaint to include the relief of possession in the suit.
90. The law with respect to sell of immovable property has been well settled in the celebrated judgment of "Suraj Lamp & Industries Pvt. Ltd. Vs State of Haryana" (2012) 1 SCC 656, wherein it was held that any immovable property can be transferred to any person only by way of a registered document. Hon'ble Supreme Court depreciated the practice of sale and purchase of land by way of GPA, Agreement to Sell and other documents and re-emphasized that immovable property can be sold only through a registered sale deed.
91. It was also held in this case and many subsequent CS DJ no.16426/2016 page no.40 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. judgments that parties to an Agreement to Sell can perfects their title by executing a sale deed in furtherance of the sale agreement. In the case titled as "Shakeel Ahmed V. Syed Akhlaq Hussain," Civil Appeal no.1598 of 2023, date of decision 01.03.2023, it was held by Hon'ble Supreme Court, "10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 of the Registration Act and Section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i) Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others
(ii) Balram Singh Vs. Kelo Devi
(iii). M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the CS DJ no.16426/2016 page no.41 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view."
92. In the case it hand, it is admitted by DW-1 that no sale deed has been executed qua the suit property in favour of M/s Brother Builders and Developers or M/s Brother Builders (P) Ltd. by her after her husband's death. She was unable to answer whether any sale deed was executed by defendant no.1 late Sh.Prithipal Singh in favour of M/s Brother Builders and Developers and Brother Builder (P) Ltd. during his lifetime. She admitted that the said purchasers never asked her for completing the transaction of the agreement dated 31.05.1996.
93. The defendant no.1 has further failed to prove that part possession of the suit property has been delivered to M/s Brother Builders and Developers or M/s Brother Builders Pvt. Ltd. The defendant failed to summon and examine the subsequent purchaser to prove that they are in possession of the property or any particular portion of the same. Even the Agreement to Sell relied upon by defendant no.1 has not been proved as per law. Even otherwise mere execution of Agreement to Sell, GPA, SPA, CS DJ no.16426/2016 page no.42 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors. Will, Possession letter etc. is not sufficient to prove that the subsequent purchasers or the proposed purchasers had taken the possession of the suit property. Moreover, no suggestion has been put to PW-1 that he was aware of the execution of the Agreement to Sell in favour of M/s Brother Builders and Developers or that the subsequent purchaser is in possession of the same during his cross-examination.
94. Hence, the plaintiff need not have amended the present suit to include the relief of possession. This argument of defendant no.1 does not hold any ground.
95. In view of the above discussion, this court is of the considered opinion that since late Sh. Arjan Singh has died intestate, hence his 1/4th share in the property shall devolve equally on all his legal heirs i.e. the plaintiff Jitender Pal Singh, defendant no.1 (since deceased), defendant no.2 (since deceased), defendant no.3 (since deceased), defendant no.4 and 5 in equal shares i.e. 1/6th share each. However, since defendant no. 3, 4 and 5, in their respective written statements, have admitted the case of the plaintiff and have averred that they are not claiming any share in the suit property at the same time, the suit property shall devolve upon the plaintiff, defendant no.1 and defendant no.2 only in equal share of 1/3rd each.
96. Issue no.1 is decided accordingly.
CS DJ no.16426/2016 page no.43 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.
97. Issue no.8 "Relief"
98. In view of the discussion above, the suit of the plaintiff is partly decreed to the effect that the 1/4 th share of late Sardar Arjan Singh in the suit property i.e. double storey building bearing Municipal no.2638 to 2642, built upon a lease-hold plot of land bearing Khasra no.240, Block-L, ad measuring 330 sq. yards situated on Gurudwara Road, Ward no. XVI Karol Bagh, New Delhi is to be partitioned between the plaintiff, defendant no.1 and defendant no.2 in equal share having 1/3rd undivided share each. A preliminary decree of partition is passed and drawn in favour of the plaintiff and defendant no.1 and 2 in equal share having 1/3rd undivided share each in the said 1/4th share of late Sardar Arjan Singh in the suit property.
99. Decree sheet be prepared accordingly.
Announced in the Court (Saumya Chauhan)
today on 18th December, 2023 ASJ (FTC)-02, West
Tis Hazari Courts/Delhi
Earlier
ADJ-02, Central
Tis Hazari Courts/Delhi
CS DJ no.16426/2016 page no.44 of 44 Jitender Pal Singh Vs. Gurmeet Kaur & Ors.