Delhi District Court
Ramesh Chand vs Pritam Dass on 23 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.19732/16
CNR No.DLCT01-011829-2016
In the matter of:-
Sh. Ramesh Chand
S/o Late Sh. Budhu Ram
95, Engineers Enclave,
Pitampura, Delhi-110034 .........Plaintiff
Versus
1. Pritam Das (Deceased)
son of late Sh. Budhu Ram
Through Legal Representatives
i) Sh. Anil Kumar
S/o of late Sh. Pritam Das
R/o 175, Kohat Enclave,
Pitampura, Delhi-110034
ii) Sh. Rakesh Kumar,
S/o of late Sh. Pritam Das
R/o D-710, Saraswati Vihar,
Pitampura, Delhi-110034
iii) Ms. Seema Khurana
Daughter of late Sh. Pritam Das
Wife of Sh. Mahesh Kumar,
R/o BP-28, Shalimar Bagh
Delhi-110052
2. Shri Charan Dass (Deceased)
CS DJ No.19732/16 1 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
Son of late Sh.Budhu Ram
Through Legal Representatives
i) Smt. Usha Gera,
Wife of Late Sh. Charan Dass
Resident of H-32/50, Sector-3,
Rohini, Delhi
ii) Sh. Rajeev Gera
Son of late Sh. Charan Dass
Resident of H-32/50, Sector-3,
Rohini, Delhi
iii) Sh. Neeraj Gera,
Son of Late Sh. Charan Dass
Resident of 414, UGF, Kohat Enclave
Pitampura, Delhi-110034
iv) Mrs. Deepa Mahajan,
Daughter of late Sh. Charan Dass
Resident of R-Block, 69A,
Dilshad Garden, Delhi
3. Sh. Sat Pal
Son of late Sh. Budhu Ram
R/o H-119, Ashok Vihar, Phase-I,
Delhi-55
Also at:
B-3, 3B, Kehsavpurma
Delhi-110034
4. Smt. Madhu Dhingra
W/o Sh. Gulshan Rai Dhingra
R/o A-3/42, 1st Floor,
Paschim Vihar
Delhi-63
5. Smt. Namita Bajaj
W/o Sh. Harish Bajaj
R/o C-6/21, Model Town III
Delhi ....... Defendants
CS DJ No.19732/16 2 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
Date of Institution : 25.07.1986
Date of reserving for judgment : 09.12.2023
Date of pronouncement of Judgment : 23.12.2023
JUDGMENT
1. By this judgment, the Court shall decide the present suit for partition and rendition of accounts alongwith permanent injunction filed by the plaintiff against his brothers (defendant no.1 to 3), mother (defendant no.4) and sisters (defendant no.5 and 6).
PLAINTIFF'S CASE
2. Briefly stated facts as per the present plaint are that plaintiff is the son of late Sh. Budhu Ram. Defendant no.1 to 3 are the brothers of the plaintiff while defendant no.4 is plaintiff's mother. Defendant no.5 and 6 are the sisters of the plaintiff. It has been submitted that Sh. Budhu Ram had inherited a number of assets from his ancestors and had a lucrative business of confectionery in Pakistan. However, after partition, he migrated to India. Late Sh. Budhu Ram got settled certain claims under the Displaced Persons (Rehabilitation and Compensation) Act, 1947. He also had carried his cash earnings from Pakistan.
3. It has been averred that out of his resources and earnings and the claim received, late Sh. Budhu Ram started manufacture of confectionery at 648, Gali Cinema, Mukimpura, Subzi Mandi, Delhi. Subsequently, he set up a factory engaged in manufacture of different varieties of confectionery items at CS DJ No.19732/16 3 of 70 Ramesh Chand Vs. Pritam Dass & Ors. premises no.17, Building Harphool Singh, Subzi Mandi, Delhi-7 in the name and style of National Industries.
4. As per the plaintiff, the said factory had a lucrative business and was making huge profits. However, late Sh.Budhu Ram expired in 1963. The plaintiff, defendant no.5 and defendant no. 6 were minors at that time. The family of late Sh. Budhu Ram was residing in H.No.648, Gali Cinema, Subzi Mandi, Delhi- 110007 at that time.
5. It is the case of the plaintiff that after the death of late Sh. Budhu Ram, the business was inherited by defendant no.1 and 2, for and on behalf of all the family members. In the family interest and as per wishes of defendant no.4, all the family members lived jointly under the management and kartaship of defendant no.1. It has been averred that the said factory was situated in a non-conforming area and thereafter as per the declared policy of the Government in terms of the Master Plan of Delhi, all the factory manufacturing units engaged in manufacturing and production of food and food stuffs were shifted to the Lawrence Road Industrial Area, Delhi. For the said purpose, defendant no.1 and 2 moved applications to the concerned authority. On basis of the same, National Industries, which was a joint family concern, was allotted an industrial plot ad-measuring 1219 sq. yards bearing plot no. C-38/1, Lawrence Road Industrial Area, Delhi and another industrial plot bearing plot no.26, Small Scale Co-operative Industrial Estate Limited, Large Udyog Nagar, G.T. Karnal Road, Delhi. As per the CS DJ No.19732/16 4 of 70 Ramesh Chand Vs. Pritam Dass & Ors. plaintiff, these properties were acquired by defendant out of the joint family funds and they had no means to acquire the same from their own funds.
6. It has been averred that in the meanwhile, defendant no.1 and 2 also purchased out of the family funds, for and on behalf of the family, a residential plot from the Delhi Development Authority i.e H-119, Ashok Vihar, Delhi-52. A residential building was constructed thereupon out of the family funds for residence of the family members. After completion of the construction, all the family members shifted to the said premises. Since then, the plaintiff has been residing in the joint family house i.e. H.No.119, Ashok Vihar, Phase-1, Delhi-52.
7. It has been averred that in the year 1977, defendant no.1, 2, 3 and 4 besides the plaintiff arrived at an arrangement whereby partial partition of the properties was agreed upon. A memorandum of proposed partition was signed and executed by the plaintiff and defendant no.1, 2 and 3 on 26.02.1977. The said proposed partition was witnessed by 7 other independent persons. A perusal of the said proposal partition clearly shows that late Sh. Budhu Ram had left sufficient nucleus from which different properties were constituted and the plaintiff has share in the said properties.
8. Besides the properties as mentioned in the Memorandum dated 26.02.1979 the joint family further acquired other properties from the business. As per the plaintiff, out of the CS DJ No.19732/16 5 of 70 Ramesh Chand Vs. Pritam Dass & Ors. family funds, the defendant no.1 in representative capacity had a business of motor parts in partnership with Shri Om Prakash and it was settled amongst the members of family that the benefits of the said business would be shared by all the family members. After acquiring plot bearing C-38/1, Lawrence Road Industrial area, a factory was constructed there wherein all the members of the family were running their separate confectionery units.
9. It has been further averred that dispute arose between defendant no.1 to 4 and defendant no.1 filed a suit for dissolution of partnership and rendition of accounts qua their partnership business. The plaintiff had moved an application for impleadment as a party in the said suit, but it was dismissed with the observation that plaintiff should have filed a separate suit. Hence, the plaintiff has filed the present suit, seeking partition of the following properties which have been jointly owned by all the family members and have been acquired out of the joint family funds for the benefits of the family, and which form part of the estate left behind by late Sh. Budhu Ram:
1. House No.648, Gali Cinema, Mukimpura Subzi Mandi, Delhi- 110007.
2. 17, Building Harphool Singh, Subzi Mandi Clock Tower, Delhi- 110007.
3. C-38/1, Lawrence Road Industrial Area, Delhi-52.
4. H-119, Ashok Vihar, Phase-1, Delhi-52.
5. Business of M/s National Industries being run at C-38/1, Lawrence Road Indl. Area, Delhi and also at 17, Building CS DJ No.19732/16 6 of 70 Ramesh Chand Vs. Pritam Dass & Ors. Harphool Singh, Subzi Mandi, Delhi-7.
6. Auto Parts business run by the defendant no.1 in a representative capacity, in partnership with Sh.Om Prakash or some other person or persons as may have been joined for the time being.
7. Plot no.26, Small Scale Co-operative Industrial Estate ltd.
Laghu Udyog Nagar, G.T. Karnal Road, Delhi.
10. The plaintiff has submitted that he had requested defendant no.1 to 3 for partition by metes and bounds, however, they have failed to do so. Hence, the plaintiff has filed the present suit for partition and rendition of accounts. The plaintiff has also prayed for decree of permanent injunction restraining the defendants from selling, alienation or creating third party interest in the suit properties.
WRITTEN STATEMENT OF DEFENDANT NO.1
11. Written statement was filed by defendant no.1 wherein he has vehemently opposed the contentions of the plaintiff. Amongst preliminary objections, it has been contended that plaintiff has no locus standi to file the present suit, as he has no right, title or interest in the suit properties. The suit is also not legally maintainable and is barred under Section 281-A of Income Tax Act. It has been alleged that the plaintiff has filed the present suit in collusion with defendant no.3 to 6.
12. It has been further averred that the plaintiff and defendant no.4 to 6 are estopped by their own acts, conduct and CS DJ No.19732/16 7 of 70 Ramesh Chand Vs. Pritam Dass & Ors. acquiescence in the previous litigations from claiming any right, title or interest in the property and the business owned by defendants.
13. It has been alleged that the counsel for the plaintiff was appointed as Local Commissioner in suit no.461/79 filed by this defendant in Hon'ble High Court of Delhi against defendant no.2 and 3, for dissolution of partnership and rendition of accounts with respect to the business under the name and style of 'M/s National Industries'. It has been averred that at the time of inspection by the said LC, the plaintiff was present there and had admitted about the partnership and distribution of machinery and property bearing no.C-38/1 Lawrence Road Industrial Area, Delhi. This admission of the plaintiff was incorporated by the local commissioner in his proceedings dated 01.05.1979, on basis of which he submitted his report dated 02.05.1979. At that time, no claim for share in the property or business of National Industries was made by the plaintiff before the local commissioner.
14. On merits, defendant no.1 has admitted that late Sh. Budhu Ram was their father. However, he has denied that he was Karta of any joint Hindu Family as there was no joint Hindu Family. Hence, the question of the plaintiff and the defendant no.1 to 3 being members of the alleged Joint Hindu Family does not arise.
15. The defendant has denied that Sh. Budhu Ram had CS DJ No.19732/16 8 of 70 Ramesh Chand Vs. Pritam Dass & Ors. inherited any assets from his father or that he had a lucrative confectionery business in Pakistan. It has been denied that he had brought his cash earnings from Pakistan. Per contra, Sh. Budhu Ram was residing in Multan (now in Pakistan) before partition and was in the service of M/s National Biscuit Company. In the year 1945, he left the said service and started the business of purchasing confectionery from manufactures and selling the same to retailers on a small scale. In 1947, after partition of the country, he alongwith his family migrated to India. For a short period, he lived in the tents for refugees in Jalandhar and thereafter he came to Delhi where he started living in a temporary jhopri at Multani Dhanda, Paharganj, New Delhi.
16. In the year 1948-49, he occupied a small piece of government land ad measuring about 20 sq. yards known as Katra Namak, in Gali Cinema Wali, Sabzi Mandi Delhi. He used to pay Rs.2 per month as ground rent for the said piece of land. He raised a temporary construction with discarded building material, tin sheets and momjama for residence. It has been averred that Sh. Budhu Ram filed a claim as per the provisions of Displaced Persons (Compensation and Rehabilitation) Act with the Ministry of Rehabilitation regarding the small residential house he had left behind in Multan. The said claim was passed for Rs.4,639/-. By associating other claims, he purchased in auction the property bearing no.VI/6066-6067 at Gali Batasan, Khari Bauli, Delhi. He had taken a loan from his uncle Sh. Naru Ram for purchasing the associating claim. The said loan was repaid by defendant no.4 after the death of Sh. Budhu Ram.
CS DJ No.19732/16 9 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
17. It has been further averred that Sh. Budhu Ram started selling rice from door to door after coming to Delhi. He also started soap making for washing clothes on a very small scale to meet the family expenses in which defendant no.1 and 2 used to help. In the year 1952, Sh. Budhu Ram started making sweets and toffees on a very small scale in the house, having an investment of about Rs.300/-. After some time in the year 1955- 56 as Sh. Budhu Ram could not manage the family expenses, the defendant stopped going to school and started helping his father full time. One room was taken on rent in 54-UB Jawahar Nagar, Delhi where confectionery making was started under the name and style of M/s Budhu Ram Pritam Dass. In 1959, one room in 17, Harphool Singh building, Subzi Mandi Delhi was arranged where the said manufacturing business was shifted and carried on till 1961. In the year 1961, Sh. Budhu Ram purchased the plot in Gandhi Nagar, Shahdara, Delhi for Rs.2700/- in the name of his wife i.e. defendant no.4.
18. It has been averred that after acquiring experience and learning new techniques, defendant no.1 arranged more accommodation in building no.17 in partnership with defendant no.2 and their father Sh. Budhu Ram, in the year 1961. They expanded the confectionery manufacturing business under the name and style of M/s National Industries. The defendant made contribution to the share capital from his earlier savings.
19. In the year 1963, Sh. Budhu Ram expired. It has CS DJ No.19732/16 10 of 70 Ramesh Chand Vs. Pritam Dass & Ors. been denied that before his death he was carrying on a lucrative business and was making huge profits. In fact, his earnings were less than the exemption limits under the Income Tax Act as well as Sales Tax Act. As per defendant no.1, Sh. Budhu Ram has withdrawn from the partnership in his lifetime. A new partnership was formed between defendant no.1 to 3 during his lifetime. However, no other family member including Sh. Budhu Ram had any connection with the said partnership.
20. It has been denied that defendant no.1 acted as Karta of joint Hindu family. Infact it is denied that he was living jointly with the other family members. Since his marriage in the year 1965, defendant no.1 had started his separate kitchen/mess and so has defendant no.2 after his marriage; even though they lived in the same house. It has been further averred that since defendant no.1 to 3 had established their own business, property bearing no.6066/6067, Gali Batasan acquired by Sh. Budhu Ram, was allotted to the plaintiff and defendant no.4. The remaining heirs of Sh.Budhu Ram including defendant no.1 to 3 relinquished their rights in the said property and had given their affidavits to the concerned authority, immediately after the death of late Sh. Budhu Ram. It has been averred that the said property was in the name of plaintiff and defendant no.4 till March/April 1986, when the same was sold by them for Rs.8,00,000/-.
21. It has been denied that there was a joint Hindu family of the parties and defendant no.1 was its Karta. Defendant no.1,2 and 3 were partners in their individual capacity in M/s CS DJ No.19732/16 11 of 70 Ramesh Chand Vs. Pritam Dass & Ors. National Industries since its formation. It has been alleged that the plaintiff had concealed about the property bearing no.C-36/20 Lawrence Road, Industrial Area, Delhi ad measuring 675 sq. yards in which he is carrying on business under the name of Rajat Food Industries. This property has been acquired from the profits/rents of the property no.6066/6067 and business carried on there.
22. It has been admitted that plot no.C-38/1 Lawrence Road Industrial Area was allotted to M/s National Industries by DDA in 1967-68. Defendant no.1, 2 and 3 bearing partners in their individual capacity, had taken a loan from Delhi Financial Corporation and made construction thereupon. These three partners repaid the said loan from their own earnings. The said plot and construction has been partitioned mutually by defendant no.1,2 and 3 vide agreement dt.24.12.1977 and they are in occupation of their respective portions carrying on their separate businesses in the same. It has been submitted that no plot other than plot no.C-38/1 was acquired by the National Industries.
23. Defendant has alleged that the plaintiff has not come to the court with clean hands and has suppressed material facts. He has deliberately not mentioned in the plaint about the properties which he has acquired including property at 95, Engineers Enclave, Pitampura, Delhi where he is living at present. This property was purchased out of the proceeds of sale of the property no.6066/6067.
CS DJ No.19732/16 12 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
24. It has been averred that Budhu Ram had left behind only two properties. The first one was purchased by him in Gandhi Nagar, Shahdara which was sold by defendant no.4 in 1967-68 for Rs.17,000/- and from its proceeds, she had started business under the name and style of M/s Anil Food Industry. Previously defendant no.4 was the sole owner of the same but it was looked after and managed by the plaintiff and defendant no.3. Subsequently, plaintiff was inducted as a partner alongwith defendant no.4 in the said business. It has been averred that since the said business has been started with the resources provided by Sh. Budhu Ram, is liable to rendition of account by the said two parties. The other property purchased by late Sh.Budhu Ram is property no.6066/6067, Khari Bauli which was relinquished in favour of the plaintiff and defendant no.4. Apart from these properties, a tenanted premises in property no.648 Gali Cinema Wali was also left behind by Sh. Budhu Ram, tenancy right in which were transferred in the name of defendant no.4. The possession of the said premises was handed over to Sh. Jagdish Chander Chawla on a handsome premium amount in the year 1979-80.
25. It has been further alleged that in the property bearing no.6066-6067, Khari Bauli also, the plaintiff was running a business under the name and style of M/s Capital Agency. However, in April- May, 1986, they sold the property for about Rs.2,00,000/-.
26. Defendant no.1 has denied that in 1979 the parties to CS DJ No.19732/16 13 of 70 Ramesh Chand Vs. Pritam Dass & Ors. the suit arrived at an arrangement of partial partition of the properties and the said memorandum of proposed partition was signed and executed on 26.02.1977. It has been submitted that defendant no.1 had not inherited any property from their father and hence the question of partition does not arise. It is submitted that plaintiff is not entitled to any share whatsoever. Infact, whatever was left behind by their father has been immediately given to the plaintiff and defendant no.4 after his death.
27. It has been denied that the defendant had ever started any business of spare motor parts in partnership with Sh. Om Prakash with family funds. The defendant was a partner with Sh. Om Prakash in his individual capacity and the said firm has been dissolved on 31.03.1976. It has been submitted that there are no joint family properties owned by the parties jointly or purchased from any joint family funds. Hence, the plaintiff is not entitled to any partition or share in the properties.
28. Defendant no.1 has submitted about the properties mentioned by the plaintiff in para 13 of his plaint as below:
(i) House no.648, Gali Cinema Wali is on rent and the tenancy is in the name of defendant no.4 after the death of Shri Budhu Ram who was the original tenant. Defendant No.4 has already delivered its possession to Shri Jagdish Chander Chawla, after accepting a huge amount in 1979/80. The amount is lying with the plaintiff and defendant No.4.
CS DJ No.19732/16 14 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
(ii) No.17 Harphool Singh building, Subzi Mandi, Delhi is a tenanted premises. Only a part of the same is in the tenancy of defendant no.1.
(iii) C-38/1, Lawrence Road Industrial Area was previously owned by the defendants 1, 2 and 3. After partition between them, separate portions have been allotted to the defendants 1, 2 and 3 they are carrying on their respective business in their separate portions. None of any other party to the suit has any right, title or interest of any nature whatsoever in respect of this property.
(iv) H-119, Ashok Vihar is the self-acquired property of the defendants no.1, 2 and-3 and none of other parties to the suit has any right, title or interest of any nature whatsoever in the same. A preliminary decree of partition has already been passed qua the said property in the partition suit between defendant no. 1, 2 and 3.
(v) Business of M/s National Industries at C-38/1, was a partnership business of defendants 1, 2 and 3.
The said partnership stands dissolved with effect from 01-04-1980. No business under the name and style of M/s National Industries is being carried on now.
CS DJ No.19732/16 15 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
(vi) Auto parts business by this defendant No. 1 in partnership with Shri Om Prakash was not in a representative capacity, as alleged. He was a partner in his own individual capacity. This partnership business stands closed since 31.3.1976.
(vii) Plot No.26, Laghu Udgoy Nagar is the sole acquisition of defendant no.1 and none of remaining parties to the suit has any right, title or interest in the same.
29. The defendant has alleged that the suit is collusive between the plaintiff and defendants 3 to 6. Defendant no.3 does not want to pay the amount due to defendant no.1 and 2 on the dissolution of partnership M/s National Industries. He is already prolonging the matter of rendition of accounts and has got filed this suit to put the same in abeyance.
WRITTEN STATEMENT OF DEFENDANT NO.2
30. Defendant no.2 has also vehemently opposed the contentions of the plaintiff on the same lines as defendant no.1. In his written statement, amongst preliminary objections it has been alleged that the suit is time barred and is further barred under Section 281-A Income Tax Act.
31. On merits, it has been submitted that there was no joint Hindu family of Sh.Budhu Ram, the plaintiff and the defendants. Hence, there is no question of Sh. Budhu Ram being CS DJ No.19732/16 16 of 70 Ramesh Chand Vs. Pritam Dass & Ors. the Karta of the joint Hindu family. He admitted that Sh. Budhu Ram has migrated to India after partition. However, he has denied that Sh. Budhu Ram had inherited various assets from his ancestors and had a lucrative business in Pakistan. Infact, he was in service with a manufacturer of sweets and toffees in Multan, Pakistan. After partition, Sh. Budhu Ram had stayed in refugee tents in Jalandhar. Thereafter, he came to Delhi and got possession of a small piece of government land Gali Cinema Subzi Mandi, Delhi at the rent of Rs.2 per month. He started selling rice and soap from door to door.
32. In 1952, Sh. Budhu Ram started making sweets and toffee at home on a very small scale. In 1955-56, Sh. Budhu Ram moved his business to the rented accommodation at 54 UB, Jawahar Nagar, Delhi in the name and style of M/s Budhu Ram Pritam Dass. In 1959, Sh. Budhu Ram shifted his business to 17 Harphool Singh building. Defendant no.1 and 2 were helping their father in his small business of manufacturing sweets and toffee in the said business.
33. It has been further averred that in 1961, Sh. Budhu Ram purchased a plot for about Rs.2700/- in Gandhi Nagar, Shahdara in the name of defendant no.4 i.e. his wife. In 1963, Sh. Budhu Ram expired. However, in the year 1961, Budhu Ram had started working under the name and style of M/s National Industries and defendant no.1 and 2 were helping him in the same. After his death in March, 1963 the business under M/s National Industries was converted into a partnership vide CS DJ No.19732/16 17 of 70 Ramesh Chand Vs. Pritam Dass & Ors. partnership deed dated 06.09.1963 in which defendant no.1, 2 and 3 became partners. Plaintiff was minor at that time while defendant no.4 was house wife. Therefore, as per mutual family arrangement and understanding, the property at Gali Batasan, Khari Bauli was allotted to the plaintiff and defendant no.4. A sum of Rs.4000/- left behind by Sh.Budhu Ram for his daughter was given to defendant no.4.
34. It has been averred that defendant no.1 and 2 had their separate kitchens while defendant no.3 and 4 and the plaintiff had a common kitchen. It has been denied that the parties were living jointly under the management and kartaship of defendant no.1. It has been averred that M/s National Industries was a partnership firm and not an HUF.
35. It has been further averred that in the year 1971-72, the plaintiff started agency business in the name and style of Capital Agency, in Gali Batasan, Khari Baoli, Delhi. The said property was, however, sold in April, 1986 for a sum of about Rs.8,00,000/- by the plaintiff. The plaintiff has purchased a plot in the Engineer Enclave (no.95) Pitampura, New Delhi, where he has constructed a house out of the said proceeds.
36. It has been further averred that the plaintiff purchased plot no.C-36/20, Lawrence Road Industrial Area measuring about 675 sq. yards for about Rs.1,00,000/- through sale by Power of Attorney. The plaintiff constructed a factory there and is running a business in the name and style of M/s Rajat CS DJ No.19732/16 18 of 70 Ramesh Chand Vs. Pritam Dass & Ors. Food Industries manufacturing sweets and toffees. He has denied that out of family funds and for and on behalf of family, a residential plot of land at H-119 Ashok Vihar, Phase-1, Delhi was purchased by defendants No.1 and 2 or that a residential building was constructed thereon out of the family funds. It is submitted that the said plot at Ashok Vihar, Phase -1, was purchased by defendants Nos.1, 2 and 3 from their own personal funds. No family funds were available for purchase of the said plot or for construction of building thereon. The building was constructed on the said plot out of the funds provided by defendants 1, 2 and 3 which were their personal funds. The building was completed in or about 1973.Gradually the brothers, that is defendants Nos.1, 2, and 3, started shifting to the said house, one by one for purposes of their residence, from 648, Gali cinema, Subzi Mandi, Delhi. Defendant No.4 and the plaintiff also shifted to the Ashok Vihar House and started residing there. Defendants 1 and 2 had their separate mess while plaintiff, defendant No.3 and 4 had a common mess. However, the plaintiff and defendants Nos. 3 to 6 do not reside in the said house at Ashok Vihar any longer since they have shifted to their separate residences.
37. Defendant no.2 has denied that in the year 1977, defendants No.1 to 4 as well as the Plaintiff arrived at any family arrangement or that any alleged partial partition of the alleged properties was agreed upon. He has denied that any memorandum of proposed partition was signed by parties i.e. plaintiff and defendant no.1 to 3 and executed on 26-2-1977. Further, the alleged memorandum of proposed partition is neither CS DJ No.19732/16 19 of 70 Ramesh Chand Vs. Pritam Dass & Ors. registered nor written on stamp paper and hence is inadmissible in evidence.
38. Defendant no.2 has averred that the plaintiff has no right of any nature in the said properties and is not entitled to any relief of partition. He has already been given the property at Khari Bauli after the death of their father.
WRITTEN STATEMENT OF DEFENDANT NO.3
39. The defendant no.3 has submitted that in 1947, he was only 4 or 5 years old. He has admitted that Sh. Budhu Ram had started manufacturing confectionery items at 648, Gali Cinema, Mukimpura, Subzi Mandi from his own funds. It has also been admitted that subsequently a factory was set up at 17, Harphool Singh Building, Subzi Mandi Delhi in the name and style of M/s National Industries. Till his death in the year 1963, Sh. Budhu Ram was managing the said business alongwith defendant no.1 and 2. Defendant no.3 had started working in the business after Sh. Budhu Ram expired.
40. Defendant no.3 has admitted that defendant no.1 was managing and controlling the confectionery business of M/s National Industries, left behind by Sh. Budhu Ram and defendant no.3 worked under his guidance and directions. He has also admitted that all the family members were living jointly under the management and kartaship of defendant no.1.
41. He has averred that the business of National CS DJ No.19732/16 20 of 70 Ramesh Chand Vs. Pritam Dass & Ors. Industries was being run by Sh. Budhu Ram as sole proprietor. However, after his death it was converted into a partnership concerned and defendant no.1 to 3 became its partners. The manufacturing unit was shifted to Lawrence Road property which was allotted to M/s National Industries. However, he has denied that the plot no.C-38/1, Lawrence Road was acquired out of joint family funds. It has also been denied that plot no. H-119, Ashok Vihar, Phase-I was purchased from the joint family funds.
42. Defendant no.3 has admitted that a settlement of partition of property was executed and signed by the plaintiff and defendant no.1 to 3 in the year 1977 in presence of common friends and relatives, including Sh. Jagdish Chander (son-in-law of maternal aunt), Sh. Narayan Dass ji @ Naru Ram, Sh. O.P.Nanda, Sh. Hansraj Jaiswal and Others.
43. It has been submitted that M/s National Industries entered into partnership on 50-50 basis with one Sh. Om Prakash to carry on the business of Motor spare parts to start with at 17 Harphool Singh Building and later on at 308/5, Shahzada Bagh Old Rohtak Road, New Delhi. The said business was run under the name and style of National Industries (India) on behalf of from M/s National Industries. However, only the name of defendant no.1 was introduced, as representative of the firm of National Industries as per agreement dated 22.02.1968. The said business of motor parts was carried from 1967 to 1976. It has been alleged that defendant no.1 has not rendered the true and correct accounts of the said business till date.
CS DJ No.19732/16 21 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
44. The defendant has admitted that construction on plot no.C-38/1, Lawrence Road was made out of the family funds. It is admitted that the suit no.461/79 is pending for rendition of account filed by defendant no.1 against defendant no.2 and 3.
REPLICATION
45. The plaintiff has filed separate replications to the Written Statements of defendants no.1, 2 and 3, wherein he has denied the allegations made by the defendants and reiterated the contentions made in the plaint. He has alleged the business conducted by Sh. Budhu Ram was joint family business and was run out of the joint Hindu family assets with the help and efforts of all the family members and the same constituted a necessary nucleus to form the joint Hindu family property business. The plaintiff denied that there was a partnership namely M/s Budhu Ram Pritam Dass between Late Sh. Budhu Ram and defendant no.1 and 2. He has emphasized that National Industries remained under sole proprietorship of late Sh. Budhu Ram during his life time. After his death, national industries was illegally converted by defendant no.1, 2 and 3 into a partnership.
46. On completion of the pleadings, following issues were framed vide order dated 01.02.2006:-
1. Whether late Sh. Budhu Ram along with the plaintiff and defendants no.1 to 3, constituted a Joint Hindu Family of which Sh. Budhu Ram was the Karta? OPP CS DJ No.19732/16 22 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
2. Whether the suit properties as mentioned in para no.13 of the plaint are owned by the Joint Hindu Family and purchased out of the joint family funds for the benefits of the family? OPP
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Whether the suit is barred by time? OPD
5. Whether the plaintiff is estopped by his own acts, conduct and acquiescence from claiming any rights in the suit properties? OPD
6. Whether the plaintiff is entitled to a decree of partition of the suit properties as claimed in the suit? OPP
7. Whether the defendants are liable to render accounts for the business as mentioned in items no.5 and 6 in para no.13 of the plaint?
8. Whether the plaintiff is entitled to seek partition of the properties in question?
9. Relief.
47. To lead evidence, plaintiff entered the witness box as PW-1. He tendered his evidence by way of affidavit which is Ex. PW1/A wherein he reiterated the contentions made in the plaint and relied upon the following documents:-
1. The letter dated 09.03.1972 sent by LIC of CS DJ No.19732/16 23 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
India, and received by defendant no.1 to 3 is Ex.PW1/1.
2. Reply to the said letter dated 09.03.1972 bearing signatures of Sh.Pritam Dass at point A is Ex.PW1/2.
3. Ex.PW1/3 is not on record.
4.Ex.PW1/4 is the memorandum of proposed partition, bearing the signatures of defendant no.1 to 3 at point H to J.
5. Ex.PW1/5 is the certified copy of the order dated 13.11.1979 vide which the application of the witness under Order 1 Rule 10 CPC in suit no. 461 of 1979 was dismissed.
6. Ex.PW1/6 and Ex.PW1/7 are the certified copies of WS of defendant no.1 and 2 in the said suit.
7. Ex.PW1/8 is the certified copy of the order dated 05.04.1995 passed by Hon'ble High Court of Delhi in suit no.289/1979.
8. Ex.PW1/9 is the copy of registered Sale Deed dated 25.04.1986 pertaining to property no.6066/6067 Gali Batasan.
48. PW-1 was cross-examined at length on behalf of all the defendants. In his cross examination, PW-1 stated that he had shifted in Engineer Enclave in the year 1995. He denied that he shifted to Engineers Enclave in March, 1988. He has stated that property at Engineers Enclave is in the name of his wife and she CS DJ No.19732/16 24 of 70 Ramesh Chand Vs. Pritam Dass & Ors. had herself purchased the same, as she takes tuition classes and also has rental income and is from a very rich background from her parents' side. She is also running a business of providing of photocopier machines on rent. However, witness could neither give details of this business, nor of the property from which his wife is earning rent. PW-1 was married in May, 1980 at Karnal. His late father-in-law was having business of dry fruits and he had helped his wife in purchasing the plot at 95 Engineers Enclave. PW-1 stated that he is living separate from his wife. However, he has not sought divorce. He produced the copy of sale documents vide which his wife had purchased the property at 95, Engineers Enclave. Same is Ex.PW1/DA. He admitted that GPA of the property is in his name. He denied that the property at Engineers Enclave was purchased out of the sale proceeds of property no.6066-67. He denied that his wife Shashi Bala is not a qualified teacher. The photocopy of his wife's B. Ed. Certificate is Ex. PW-1/D3A.
49. PW-1 admitted that his father's claim with regard to the property at Multan was settled at Rs.4,639/-. However, he denied that the property no.6066/6067 was purchased from the said amount. As per the witness, the said property was purchased in an auction for Rs.26,700/- and the amount of the claim was adjusted in this purchase money. He denied that his father had purchased a plot at Gandhi Nagar in his mother's name and voluntarily stated that the said plot was purchased by his mother from her own savings. He stated that he had heard that his mother used to help his father in the confectionery business and used to CS DJ No.19732/16 25 of 70 Ramesh Chand Vs. Pritam Dass & Ors. earn by stitching clothes.
50. PW-1 denied that after his father's death, property at Gali Batasan was surrendered by defendant no.1 to 3 in his favour and that of defendant no.4/his mother. He admitted that the said property was sold by him and his mother for Rs. 2 Lakhs vide Ex.PW1/9. He denied that the property was sold for Rs.8 Lakhs. He could neither admit nor deny if the said property was sold by him and his mother under the certificate of Sale Mark A.
51. He denied that the property at Gali Cinema Wali was sold by him and his mother to one Sh. Jagdish Chand Chawla for handsome amount.
52. PW-1 admitted that at the time of his father's death, he had left only three properties - one at Gali Batasan Wali, another at Gali Cinema Wali and third at Gandhi Nagar. Apart from that, he had left one factory with stock and machinery under the name and style of National Industries at 17, Harphool Singh Building, Subzi Mandi, Delhi. He admitted that at Harphool Singh Building was taken on rent. However, he denied that defendant no.1 Pritam Das had taken the same on rent. He denied the suggestion that in the year 1959 his father and defendant no.1 had started a business of confectionery in Harphool Singh Building under the name of M/s Budhu Ram Pritam Das. He further denied that after some time Sh. Charan Dass i.e. defendant no.2 was also made partner in the business. The witness had heard that the factory National Industries at CS DJ No.19732/16 26 of 70 Ramesh Chand Vs. Pritam Dass & Ors. Harphool Singh Building was started in 1959-60 by his father.
53. PW-1 admitted that he was running a business in the style and capacity of M/s Capital Agency in the year 1974-75. He stated that after leaving his studies in 1970, he had joined his brothers in the business of National Industries. However, this fact has not been mentioned in the plaint. He also admitted that he is proprietor of M/s Anil Food Industries at 308/5 Shahzada Bagh Old Rohtak Road, Delhi. His mother was the proprietor of the same from 1970 to 1982. In the year 1982, he became partner in the same alongwith his mother. He stated that the property at Shahjzada Bagh is a rented property and he has been paying rent of Rs.2,000/- per month to the landlady Smt. Shashi Gera, his wife. The property was given on rent in the year 1993-94. He denied having purchased the said property.
54. PW-1 further admitted that property at Lawrence Road was purchased by Sh. Krishan Lal on 23.06.1979. He denied that GPA in respect of that property was in the name of defendant no.2 and 3. He admitted that defendant no.2 and 3 had made nomination in favour his wife ignoring defendant no.2 on 20.02.2002. He admitted that he had applied to get the suit property free hold in the year 2005. The GPA and Agreement to Sell qua the property at Lawrence Road has been marked as Ex.PW1/DB and Ex.PW1/DC.
55. The witness stated that he had attained majority in 1971 and thereafter he started working in as Commission Agent CS DJ No.19732/16 27 of 70 Ramesh Chand Vs. Pritam Dass & Ors. in Gogia Chemicals. He admitted that he had shown the income from Gogia Chemicals and his agency business with the name of Capital Agency at 6066 First Floor, Gali Batasan.
56. PW-1 denied that there was no HUF in their family at any point of time and that Sh. Budhu Ram or Pritam Das were never the Karta of the said HUF. He could not tell if any account of the HUF was opened at any point of time by his father or defendant no.1. He voluntarily stated that he was very small at that time. He could not tell whether the said HUF was an income tax payee or not. He could neither admit nor deny whether the property at Gali Batasan was in the individual name of Budhu Ram and not as Karta of HUF. He had no knowledge whether his father was an income tax payee in Pakistan.
57. He has denied that his father did not bring any money or jewellery at the time of migration or that he had started the business of manufacturing soap case. He denied that in the year 1955-56 his father had started a firm under the name and style of M/s Budhu Ram Prtiam Das at 54 UB, Jawahar Nagar and thereafter he had taken a room on rent in Harphool Singh Building. He denied the suggestion that in the year 1961 defendant no.1 had started a firm in the name of M/s National Industries at 17 Harphool Singh Building and the firm was registered in his name under the Delhi Shops and Establishment Act.
58. He denied the suggestion that in the business of auto CS DJ No.19732/16 28 of 70 Ramesh Chand Vs. Pritam Dass & Ors. spare parts, defendant no.1 was only a partner in his individual capacity and not representing the family. He was not aware of any partnership deed between Sh. Om Prakash and defendant no.1, or Sh. Om Prakash and M/s National Industries.
59. PW-1 admitted that all the accounts books, income tax return and assessment orders of his mother after 1982 are in his possession. He admitted that defendant no.1 had filed a suit for dissolution of partnership and rendition of accounts against defendant no.2 and 3 in respect of the partnership business carried on at C-38/1, Lawrence Road in the name of National Industries. He admitted that in the said case Sh. S.K. Tiwari was appointed as Local Commissioner. He denied that when the Local Commissioner visited the property, he was standing in the portion of Satpal and had voluntarily stated that he was standing in the passage. He admitted that he has filed the present suit through Sh. S.K.Tiwari. He denied having given any statement to Local Commissioner S.K.Tiwari. The witness was confronted with the report of Local Commissioner Sh. S.K.Tiwari dated 01.05.1979 which is Mark X. The witness submitted that the same does not bear the signatures of S.K.Tiwari. He denied that the business of Anil Food Industry was stared in 1972 and not in 1970. However, he also admitted that he had filed the case under Trade Marks Act wherein he had mentioned that Anil Food Industries had started in the year 1972.
60. He admitted that defendant no.1 had filed a suit under Trade Marks Act against Anil Food Industries in the court CS DJ No.19732/16 29 of 70 Ramesh Chand Vs. Pritam Dass & Ors. of Sh. Inder Pal, Ld. ADJ which is now pending before Ms. S.S.Maan, Ld. ADJ. He also admitted that in the said suit, he had filed an application for Contempt. He admitted that he had filed an application under Order 39 Rule 1A in suit no.1/92, same is Ex.PW1/DD. He stated that he has not filed any appeal against the order Ex.PW1/5. He stated that a suit was filed with respect to H 119, Ashok Vihar between Charan Dass, Pritam Dass and Satpal. He had filed an application for becoming a party in the said suit which was dismissed on the ground that he had already filed the present suit.
61. PW-1 expressed his ignorance as to whether defendant no.1 to 3 had taken loan from DFC for raising construction on property no.C-38/1, Lawrence Road and whether the said loan has been repaid by all three defendants to DFC. He could neither admit nor deny that no loan was sanctioned in the name of defendant no.1, nor he obtained any loan from LIC in 1972. He voluntarily stated that he had heard that defendant no.1 had applied for the loan. He denied the suggestion in Ex.PW1/2 signatures of defendant no.1 have been forged at the point A.
62. PW-1 stated that when they shifted to House No.119, Ashok Vihar, there was only one kitchen. After marriage of Charan Das i.e defendant no.2, the kitchen was partitioned into two kitchens due to domestic quarrels between wives of defendant no.1 and 2. He denied the suggestion that in the property of Ashok Vihar defendant no.1 alongwith his family shifted first and thereafter defendant no.2 shifted; thereafter CS DJ No.19732/16 30 of 70 Ramesh Chand Vs. Pritam Dass & Ors. defendant no.3 alongwith witness, his sisters and mother shifted. He voluntarily stated that he and def no.2 had separate gas connection and separate utensils but using the same space of the kitchen. He denied the suggestion that defendant no.1 has nowhere signed on Ex.PW1/4 and the signatures at point H are forged.
63. PW-1 stated he does not know whether in the application under Order 1 Rule 10 filed by him in suit no.461/79, he had not mentioned anything about the document Ex.PW1/4. The document Ex.PW1/4 was given to him by his mother. He could not tell whether he had mentioned about Ex. PW1/4 in his application under Order 1 Rule 10 CPC filed in suit no. 289/79. He admitted that in the suit filed by him in 1986 and in the first application for amendment in the present case, he has not mentioned about the document Ex PW 1/4. He denied that Ex PW1/4 is a forged and fabricated document.
64. PW-1 stated that the said partnership deed between defendant no. 1 to 3 was forged as it was made on 29/02/1963 though in the said year, there were only 28 days in month of February.
65. He admitted that another suit for partition of the partnership and rendition of accounts is pending between the three defendants bearing no. 461/79 in which he had moved an application under Order 1 Rule 10 CPC. He admitted that in the said suit Sh. Munni Lal Jain, Retired Registrar, Delhi High Court CS DJ No.19732/16 31 of 70 Ramesh Chand Vs. Pritam Dass & Ors. was appointed as Local Commissioner but he could not tell whether he had submitted a report. He could neither admit or deny due to want of knowledge that the partnership of National Industries was dissolved between the defendants no. 1,2,3 on 11/04/1980.
66. PW-1 admitted that the property no. C-38/1, Lawrence Road Industrial Area was allotted to partnership firm namely M/s National Industries comprising of defendant no. 1 to 3 as partners and a registered perpetual lease deed has been executed in favour of defendants no. 1 to 3 but stated that this property was allotted in in lieu of property of National Industries, 17, Harpool Singh Building. He admitted that 17, Harpool Singh Building was rented property, and neither his father nor the brothers were owner of the same. However, he denied that the tenancy of this building was surrendered by National Industries in 1971. He admitted that the business of National Industries being run as on today also from building 17 Harpool Singh Building but since the premises are in the possession of defendants no. 1,2 & 3, he could not tell under which name and style they are running this business.
67. PW-1 admitted that the property C-38/1, Lawrence Road was and is under the possession of defendants no. 1 to 3. He denied that his father had withdrawn from the partnership which was being run in 17, Harpool Singh Building during his lifetime as he remained ill. He voluntarily stated that during his life time, his father remained the proprietor of said firm CS DJ No.19732/16 32 of 70 Ramesh Chand Vs. Pritam Dass & Ors. throughout and had no partner.
68. PW-1 further admitted that as per records, the perpetual lease deed in respect of H 119, Ashok Vihar is in the name of defendants no. 1 to 3. However, he denied that defendants no. 1 to 3 had spent money from their own pocket to purchase the said property. He admitted that his firm Capital Agency had dealings with National Industries for around 4-5 years. He denied that since beginning, he had his own separate business or that he has no concern with the business of defendants no. 1 to 3.
69. The witness stated that he was born on 10/10/1952 as per his school leaving certificate. As on date he was residing both at 95, Engineers Enclave, Pitampura, Delhi 110 034 as well as H-119, Ashok Vihar, Phase I, Delhi 110052. His family occasionally joins him at Ashok Vihar but most of time he alongwith his family resides at 95, Engineers Enclave, Pitampura.
70. He admitted that 648, Gali Cinema, Subzi Mandi, Delhi was a tenanted property on government land.
71. He stated that his mother had already expired on 15/10/2000. He denied that after migration his father had started the business of selling rice door to door in order to sustain his family. he denied that in order to supplement the income his father had started making soap at his house. He denied that his CS DJ No.19732/16 33 of 70 Ramesh Chand Vs. Pritam Dass & Ors. father had started the business of sweets and confectionery shop at a small scale at his residence in Gali Cinema Wali, Subzi Mandi only in the year 1952. He voluntarily stated that his father was doing his business right since he had migrated to India. He denied that his father was working at a confectionery shop in Pakistan prior to migration, and did not own any confectionery shop in Multan (Pakistan). He denied that his father had taken the premises 54, UB Jawahar Nagar on rent in the year 1955-56 or that he had started a confectionery shop on a small scale in the said premises under the name and style of Budhu Ram Pritam Das. He stated that his father had taken a factory space around 200 sq. yds. in 17 Harpool Singh Building in 1959-60 due to constraints of space at 648 Gali Cinema Wali. He denied that his father had taken only one shop in 17 Harpool Singh Building in 1959 and the remaining portion of this property was taken by him in 1961.
72. PW-1 admitted that he has no personal knowledge and that he had filed his affidavit based upon the information given to him by his mother and brother Sh. Pritam Dass. A question was put to the witness that the business under the name and style of National Industries was started only in building 17. Harpool Singh Building. To this he answered that he has no knowledge whether this business under the name and style of National Industries was started from the premises of Gali Cinema Wali or from Harpool Singh building. However, he admitted that defendant no. 1 & 2 were helping their father in the business of national industries at whatever place it was being run.
CS DJ No.19732/16 34 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
73. He admitted that his mother i.e defendant no. 4 had started a confectionery business under the name and style M/s Anil Food Industries and that this business was being run in a rented premises 308/5 Shehzada Bagh, Old Rohtak Road, Delhi 110031. His mother was running the business since 1970. She was not a housewife. He could not say from where his mother had generated the funds for starting the business of Anil Food Industries. He had filed the income tax assessment orders showing the income of my mother from stitching work etc. pertaining to year 1964-65,1965-66, 1967-68 which are exhibited as Ex PW 1/D2- A to Ex PW 1/D2-C.
74. PW-1 stated that at the time when property no. 648, Gali Cinema, Sabzi Mandi was taken on rent it had one big room in which his father was carrying on the business, one small room used for packing etc. was there on ground floor, on the first floor similarly one hall and one small room was there which was used for residence purposes. There was one kitchen also on the first floor. When they left the premises, the big hall on the first floor was converted into two rooms.
75. He denied that after the marriage of defendant no.1 in the year 1965, he was living separately and maintaining a separate kitchen.
76. PW-1 admitted that the property H-119, Ashok Vihar was purchased by defendants 1, 2 and 3 in their own names.
CS DJ No.19732/16 35 of 70 Ramesh Chand Vs. Pritam Dass & Ors. However, he further added that the money used towards the purchase of this plot belonged to the entire family and the major share of the money was of his mother and remaining funds were contributed from the family business of National Industries.
77. He admitted that defendant no.1 had filed a suit bearing suit no.289/79 for partition with respect to the property of Ashok Vihar against defendant nos 2 and 3. However he expressed ignorance that in the said suit a final decree for partition had already been passed on 19/08/06. He further expressed ignorance that an appeal filed by defendant no.3 Satpal against the said decree has also been dismissed. However, he admitted that in the said suit for partition, he had moved an application under order 1 rule 10 CPC for impleading him as a party in this case, which was dismissed. The witness could not recall that earlier also in 1979 he has moved a similar application under Order 1 Rule 10 CPC bearing IA No.3246/79 which was also dismissed by the court.
78. PW-1 admitted that he has not placed on record any document to show that the alleged HUF has ever been assessed to income tax. He stated that Ex. PW1/1 and Ex. PW 1/2 are the documents to show that Sh. Budh Ram and Sh. Pritam Dass had acted as Karta. He admitted that the property at Gali Batasha Wali was in the name of Sh. Budh Ram and not in the name of HUF. He stated that after his father's death, his brothers had relinquished their share in the property of Gali Batashan in favour of his mother, who had got his name added in the CS DJ No.19732/16 36 of 70 Ramesh Chand Vs. Pritam Dass & Ors. mutation. He admitted that he and his mother had sold this property of Gali Batashan wali in 1986.
79. PW-1 also admitted that the property 648, Gali Cinema was also in the name of his father and after his death it was mutated in the name of his mother. However, he denied that his mother has sold the said property to her sister's son Sh.Jagdish Chander, and voluntarily stated that it was given to him only for residence purpose with consent of all family members. He could not tell who is residing as on today in the said premises and whether Sh. Jagdish Chander is still residing there.
80. PW-1 admitted that defendants no. 1 to 3 had divided the property situated at Industrial Plot C-38/1, Lawrence Road inter se. He denied that he does not have any legal right whatsoever in this property as it was allotted to National Industries whose partners are defendants no. 1 to 3.
81. PW-1 admitted that he had started a business under the name of M/s Capital Agencies from Gali Batashan Wali property in 1973-74. He denied that out of the sale proceeds of Gali Batasha property, plot no. 95, Engineering Enclave was purchased in his name.
82. He denied that his belongings are not lying in the property No. H 119, Ashok Vihar. He stated that electricity and telephone connections are also in his name. Copy of an old CS DJ No.19732/16 37 of 70 Ramesh Chand Vs. Pritam Dass & Ors. electricity bill is Ex. PW-1/D3B.
83. He admitted that he has not placed on record any document showing Sh. Budhu Ram as Karta of HUF as at the time of his death he was only ten years old and all documents are in the possession of defendants. He admitted he had not served any notice upon the defendants asking them to produce the accounts of HUF.
84. He denied that plot no. 26, SSI, J.K. Karnal Road, Udhyog Nagar was purchased by defendant no. 1 out of his own funds. However, he admitted that Pritam Dass is doing business as on today from that property.
85. PW-1 admitted that he had purchased plot no. C- 35/20, Lawrence Road Industrial Area, in the year 1979 on Power-of-Attorney basis. However, he denied that he is carrying on business in the aforesaid plot under name & style of M/s. Rajat Food. Infact, he never carried out any business under this name from anywhere.
86. PW-1 stated that the tenancy of the factory at Dayabasti is in his name, as he was accepted as a tenant by landlord Sh. Rajender Kumar in a Court case. The certified copy of written compromise is Ex. PW-1/D3C.
87. PW-2 Sh.S.K.Srivastav, Senior Accountant, Land and Building Department Vikas Bhawan deposed that property CS DJ No.19732/16 38 of 70 Ramesh Chand Vs. Pritam Dass & Ors. no.6066-67 Gali Batasa Khari Baoli is in the name of Smt Kaushalaya, wife of Sh. Budhu Ram and her minor son Sh. Ramesh Chand as per their record. The certified copy issued on 30.07.1964 is Ex.PW2/1. He stated that the certified copies of the order dated 13.03.1964 passed by Settlement officer is Ex.PW2/2. The affidavits executed by Sh. Pritam Dass, Charan Dass and Satpal have been filed in their records and certified copy of the same are Ex.PW2/3 to Ex.PW2/5 respectively.
88. After the plaintiff's evidence was closed, the matter was listed for defendants' evidence. Son of defendant no.1 entered the witness box as DW-1. He tendered his evidence by way of affidavit as Ex.DW1/A wherein he reiterated the averments made in the written statement and relied upon the following documents:-
1.Ex.DW1/1 is the registration certificate.
2.Ex.DW1/2 is the order dated 13.03.1964 of Settlement Officer (already exhibited as Ex.PW2/2).
3.Ex.DW1/3 is the certified copy of Sale Certificate issued on 24.08.1965 (already exhibited as Ex.PW2/D1).
4.Ex.DW1/6 is the agreement dated 24.12.1977.
5.Mark A is the report of LC Sh. S.K.Tiwari (Ex.DW1/5 is exhibited).
6. Certified copy of order on plaintiff's application under Order 39 Rule 2A in suit no.1/1992 is already Ex.PW1/DB.
89. In his cross-examination, DW-1 admitted that CS DJ No.19732/16 39 of 70 Ramesh Chand Vs. Pritam Dass & Ors. property 648, Gali Cinema Subzi Mandi is built upto 2 floors, i.e. ground floor and fist floor. However, he denied that property is of 40 sq. yards and vol. stated that its area is 20 sq. yards. He admitted that Sh. Budhu Ram had constructed two rooms on the ground floor and two rooms on the first floor. However, it was not a pakka construction. He admitted that Sh. Budhu Ram had taken the premises on rent at Harphool Singh Building. Again said it was taken by his father. He denied that in the said premises Sh. Budhu Ram was running his business in the name and style of M/s National Industries and deposed that he was carrying on his business under the name and style of M/s Budhu Ram Pritam Dass. He stated that Sh. Budhu Ram had carried on his business in the name and style of M/s National Industries in 1961 but he was a partner in the firm. He stated that no partnership document was ever executed and he is not in possession of the same.
90. The original of Ex.DW1/1 was produced by DW-1. Ld. Counsel had pointed out that printed year of date in the last line of original exhibits Ex.DW1/1 is 1971 but, in the ink, '1971' has been written as '1961' to give the impression that the said certificate was issued in 1961. The said portion was marked A in the photocopy i.e. Ex.DW1/1 and the original was returned. He stated that Sh. Budhu Ram was doing business till his death except a period of 1.5-2.0 years prior to his death as he was suffering from cancer.
91. He admitted that an FIR no. 182/1988 was registered CS DJ No.19732/16 40 of 70 Ramesh Chand Vs. Pritam Dass & Ors. at PS Kehsavpuram on complaint of his father. He recognized the signature of his father on certified copy of statement of Pritam Dass in the said criminal case at point A and A1. The said statement was exhibited as Ex.DW1/P1.
92. DW-1 stated that he has not filed the dissolution deed of the alleged partnership with Budhu Ram on record as the same is not in his possession. He stated that there were two partnership - one was between Budhu Ram and Pritam Dass, and the other one was between Budhu Ram, Pritam Dass and Charan Dass. He stated that partnership between Budhu Ram and Pritam Dass was dissolved but he had not seen any dissolution deed of the same, nor has he ever seen the partnership deed between Budhu Ram and Pritam Dass. He had not seen the books of account of either of the partnership firms. He stated that neither Budhu Ram nor the said partnership firms used to pay sales tax or income tax.
93. He stated that his grandmother had shown him the dissolution deed which was somewhere in January/February 1963. Sh. Budhu Ram had expired on 26.03.1963. He stated that Budhu Ram remained a partner in the firm ever after he was suffering from cancer but he was not an active partner. He denied the suggestion that there was no partnership firm in the name and style of Budhu Ram and Pritam Dass or between Budhu Ram Pritam Dass or between Budhu Ram Pritam Dass and Charan Dass. He denied the suggestion that M/s National Industries was the sole proprietor ship concerned of Budhu Ram.
CS DJ No.19732/16 41 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
94. DW-1 admitted that at the time of death of Budhu Ram plaintiff was a minor and at that time all family members were residing at 648, Gali Cinema, Subzi Mandi Delhi. He admitted that Budhu Ram had received some claim qua the property left in Pakistan however, it was not received in cash. He denied that Budhu Ram had purchased the property no.6066-67 Gali Batasha Wali from the claim amount as well as from the income earned from business. He admitted that there is no document of loan as referred in para 3 of his evidence affidavit.
95. DW-1 admitted that vide the Relinquishment Deeds Ex.PW2/3 to Ex.PW2/5, property no.6066-67 was relinquished in the name of Smt. Kaushalaya Devi and not in the name of the plaintiff. He admitted that National Industries which was earlier run at 17, Harphool Singh Building was allotted a plot no.C 38/A Lawrence Road. He voluntarily stated that in the said firm there were three partners namely Pritam Dass, Charan Dass and Satpal. He denied that it was a family business. After the death of Budhu Ram the above said three brothers constituted the partnership firm. He denied the suggestion that Pritam Dass had no source of income except working with his father in his business. Pritam Das earlier worked in the partnership firm M/s Buddu Ram Prtiam Das and thereafter in National Industries in the capacity of partners.
96. He denied the suggestion that after the death of Buddu Ram, his business was being looked after by his three CS DJ No.19732/16 42 of 70 Ramesh Chand Vs. Pritam Dass & Ors. sons namely Pritam Das, Satpal and Charan Das on behalf of the family and they had assured to look after the interest of minor children of late Sh. Budhu Ram.
97. It is wrong to suggest that in 1967 M/s National Industries had started the business of Auto parts with one Mr. Om Prakash at 17, Harphool Singh Building. The Books of accounts of National Industries are not in his possession. He voluntarily stated that the same are with Mr. Satpal. However, he had seen the said books of accounts during the proceedings continued before learned Local Commissioner Mr. M.L. Jain.
98. He denied the suggestion that plot no. H-119, Ashok Vihar was bid by three brothers on behalf of the entire family. The bidding amount was Rs. 25,700/-. He admitted that in 1967, Kaushalya Devi had sold the plot at Gandhi Nagar in the sum of 17000/-. Again said it was sold on 13.08.1968. he denied the suggestion that the said sale consideration was used in the bidding of said plot and voluntarily stated that Smt Kaushalya Devi had utilized the said amount to start the business of Anil Food Industries). He denied that Kaushalya Devi had withdrawn Rs.10,000/- from her saving account maintained at Central Bank in 1967 and the said amount was given to M/s National Industries. He denied that from the account of National Industries, three cheques bearing no. 140126, 140127 and 140128 dated 01.01.1968 of total sum of 10,000 were issued in favour of DDA to pay the bid amount. He denied that at the time of bidding, Rs. 6000/- was paid by Smt. Kaushalya Devi. He CS DJ No.19732/16 43 of 70 Ramesh Chand Vs. Pritam Dass & Ors. admitted that the bidding had not taken place in my presence.
99. DW-1 stated that M/s Anil Food started business in 1970 but the sales tax number was taken in 1972. He admitted that Smt Kaushalya was the sole proprietor of the said firm. He also admitted that the said firm was running its business from rented premises at Shazada Bagh. He denied that loan was taken from LIC to raise construction at Ashok Vihar plot. He admitted that the document dated 17.12.1975 was filed by Pritam Das in the present suit and it bears the signature of Pritam Das at point mark 'A'. The said document is Ex. DW1/P2. However, the witness denied his father's signature on the letter Ex. PW1/2.
100. DW-1 expressed his ignorance about any negotiations amongst the family members/relatives regarding the family settlement in the year 1977. He voluntarily stated that he has seen the family settlement dated 24.12.1977 and that the same was arrived at between defendant no.1 to 3. He was not aware whether any family settlement had taken place between the plaintiffs and defendants. He denied that Ex.PW1/4 bears his father's signatures at point H and alleged that these are forged signatures.
101. DW-1 stated that they had very cordial relations with Kaushalya Devi till 1986-1987 i.e before filing of the present suit. Till 1988, Kaushalya Devi supported the plaintiff's version. However, in 1988 Kaushalya Devi stated that she intended to speak truth but plaintiff did not permit her to go to the court. He CS DJ No.19732/16 44 of 70 Ramesh Chand Vs. Pritam Dass & Ors. denied the suggestion that since Pritam Das had not honoured the family settlement Ex. PW1/4, Kaushalya Devi was annoyed with his family. He admitted that Smt Kaushalaya Devi did not attend his marriage in 1992, or that of his siblings.
102. DW-1 admitted that as nothing was given to the plaintiff, Kaushalya Devi joined the plaintiff as a partner in M/s Anil Food. He denied the suggestion that nothing was given to the plaintiff, and voluntarily stated that whatever was left behind by late Sh. Budhu Ram, all was given to the plaintiff.
103. DW-1 stated that he is in the possession of a portion of the property located at Harphool Singh building and the remaining portion is with Mr. Charan Das. He denied that the tenancy was in the name of Budhu Ram since beginning and the same is still continued. He voluntarily stated that it is in the name of Pritam Das and the copy of rent receipt is already on the court record. He further denied that property at 26, Laghu Udhyog Nagar was purchased from joint family funds.
104. DW-2 Sh. S.K. Tiwari deposed that he was appointed as Local Commissioner on 27.04.1979 in Suit no. 461/1979 in the matter 'Pritam Das v Charan Das'. He has submitted his report in Hon'ble High Court on 02.05.1979 in respect of his visit dated 01.05.1979. He admitted his signatures on the certified copy of the same from the summoned file of CS(OS) No. 461/1979 and stated that it was the same report which he had submitted before the Court. The certified copy of CS DJ No.19732/16 45 of 70 Ramesh Chand Vs. Pritam Dass & Ors. the report is Ex.DW2/1 (OSR).
105. During cross examination, DW-2 stated that Mr. Ramesh Chand refused to participate in the proceeding and also refused to sign the proceeding and this fact is mentioned in his report. The attention of the witness was drawn to portion A to A1 in Ex. DW2/1 and suggestion as put to him that Mr. Ramesh Chand had not made any such statement/submission before him, and it was Mr. Pritam Das who had made that statement. The witness replied that he does not remember the facts as he had visited the property about 32 years back.
106. DW-3 Sh. Charan Dass tendered his evidence by way of affidavit which is Ex.DW3/A. He has reiterated the averments made in his written statement and has relied upon the agreement dated 24.12.1997 which was inadvertently marked as Mark PW1/4. The said document be read as Ex.D1/6.
107. DW-3 was partly cross-examined. However, thereafter he did not appear for recording of further cross- examination. Hence, vide order dated 05.03.2012, the evidence of defendant no.2 was closed. It is a settled law that if a witness does not present himself for cross-examination despite being available, his testimony shall not be read in evidence. Hence, the examination in chief and evidence affidavit of DW-3 shall not be considered by this court.
108. D3W1 Sh. Satpal has entered in the witness box. He CS DJ No.19732/16 46 of 70 Ramesh Chand Vs. Pritam Dass & Ors. has tendered his evidence by way of affidavit which is Ex.D3W1/A. During cross examination, D3W1 admitted that in the suit for dissolution of partnership involving him, Charan Dass and Pritam Dass, some proceedings had taken place before Sh. M.L.Jain, Local Commissioner. Certified copies of ordersheets dated 20.08.1980, 29.08.1980, 22.12.1980, 25.01.1981, 26.02.1982, 21.11.1984 and 24.05.1995 as recorded by Sh.M.L.Jain, in the civil suit bearing no.461/1979 was put to the witness and he was asked to identity the signature of Sh. Charan Dass and Pritam Dass. The witness admitted that the said orders bears photo impressions of signatures of Pritam Dass at point A1 to A7, of Charan Dass at point B1 to B3 and his signatures at point C1 to C5. The said order-sheets are Ex.D3W1/P1 (colly.).
109. DW-1 admitted that settlement Ex.PW1/4 was arrived at between the family members including himself and identified his signatures thereupon at point J and that of Sh.Charan Dass, Pritam Dass and Ramesh Chand at point I, H and K respectively.
110. The witness had produced the cash books and ledger books of National Industries (registered) for the period 1.04.1967 to 31.03.1968 and 01.04.1968 to 31.03.1969. In the said ledger book from 1967-68 there is ledger account of Smt. Kaushalaya Devi. Photocopy of the true copy of the ledger are Ex.D3W1/P3 (colly.). He admitted that defendant no.1 to 3 had applied for grant of loan to LIC for construction of the house at H-119, Ashok Vihar, Delhi. He admitted that PW-1/2 addressed to LIC CS DJ No.19732/16 47 of 70 Ramesh Chand Vs. Pritam Dass & Ors. by defendant no.1 to 3.
111. D3W1 was cross-examined on behalf of defendant no.1 also, as their interests are contradictory to each other. In his cross-examination by defendant no.1, the witness admitted that the house on plot no.648, Gali Cinema Wali was built up by his father in 1948 and they resided there for about 25 years. Thereafter they shifted to H.No.H-119, Ashok Vihar Phase-I, Delhi. Voluntarily stated that he himself and families of defendant no.1, their mother, two sisters and Ramesh i.e. plaintiff had shifted there.
112. He admitted that his father had filed a claim application in the Rehabilitation Department. However, he was not aware of the total claim amount. He could neither admit nor deny whether the said amount for Rs.4639/-. He denied the suggestion that he and defendant no.1 and 2 had given an affidavit that the said claim amount be given to their mother and the plaintiff. He stated that Ex.PW2/5 does not bear his signatures. He stated that said claims stand adjusted by the Rehabilitation Department towards another property bearing no.6066-67 which their father had purchased in an auction. He stated that his father had expired and thereafter he and the other two defendants had given no objection in favour of their mother and the plaintiff qua the said property.
113. He stated that his father did not own any plot in Gandhi Nagar. In Gandhi Nagar there was a plot in their mother's CS DJ No.19732/16 48 of 70 Ramesh Chand Vs. Pritam Dass & Ors. name Kaushalaya Devi. A question was put to the witness that the plot at Gandhi Nagar was given by Smt. Kaushalya Devi to the plaintiff. In answer he has stated that at the time when plot no.H-119 was purchased, there was deficiency of fund which was made up by his mother after the selling the plot at Gandhi Nagar. The witness stated that his father, at the time of his death was owner of property no.6066-67 and H.No.648. He did not own the plot at Gandhi Nagar.
114. D3W1 could not tell in whose name the property no.648 was transferred after the death of his father. However, the property no.6066-67 was transferred in the name of his mother and the plaintiff. He again said that property no.648 was transferred in the name of his mother after his father's death. However, he was not aware in whose name the property stood as on date. As per him, the property no.6066-67 has been sold by his mother and the plaintiff. He could not tell whether the sale proceeds were used by the plaintiff to purchase the property no.95 Engineers Enclave, Delhi.
115. The witness denied the suggestion that his mother was a housewife. Infact, she was doing tailoring work with two associates and was also assisting their father in the confectionery business. However, she was not a partner in the firm National Industry nor was she receiving any payment/salary from there. He stated that M/s Anil Foods Industry was started by his mother Smt. Kaushalaya Devi and was its exclusive owner. The said business was started by his mother after 6 to 7 years of their CS DJ No.19732/16 49 of 70 Ramesh Chand Vs. Pritam Dass & Ors. father's death. As per his knowledge, M/s Anil Food is still working and is being run by the plaintiff. He stated that when Anil Food Industry was started the entire family was joint.
116. He admitted that plaintiff has a plot at Lawrence Road, however, he could not recall the number of the same. He had never seen the original title documents of the plot at Gandhi Nagar. He has one electricity meter in the property no.H119, Ashok Vihar. He admitted that plaintiff has also connection in the said property. He could not recall whether he had given NOC to the plaintiff for installation of electricity meter. He admitted that a suit regarding property no.H-119, Ashok Vihar was filed by defendant no.1 against him and Sh.Charan Dass. He admitted that defendant no.1 to 3 had entered into an agreement dt.26.12.1977 which is Ex.D1/6. However, he voluntarily stated that it was not acted upon and the civil suit was filed by defendant no.1.
117. No other witness was examined by the defendants and DE was closed and matter was listed for final arguments. I have heard the final oral submissions made on behalf of Ld. Counsels on behalf of all the parties and perused the entire record carefully. The issue wise findings of the court are as below.
118. ISSUE NO. 1, 2, 6,7 and 8"1. Whether late Sh. Budhu Ram alongwith the plaintiff and defendant no.1 to 3, constituted a Joint Hindu Family of which CS DJ No.19732/16 50 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
Sh. Budhu Ram was the Karta? OPP"
"2. Whether the suit properties as mentioned in para no.13 of the plaint are owned by the Joint Hindu Family and purchased out of the joint family funds for the benefits of the family? OPP"
"6. Whether the plaintiff is entitled to a decree of partition of the suit properties as claimed in the suit? OPP"
"7. Whether the defendants are liable to render accounts for the business as mentioned in items no.5 and 6 in para no.13 of the plaint?"
"8. Whether the plaintiff is entitled to seek partition of the properties in question?"
119. The onus of proving all these issues was upon the plaintiff. As per the plaintiff, the suit properties as mentioned in para 13 of the plaint are joint family properties as they were either purchased and left behind by his father late Sh. Budhu Ram, or they have been purchased from the joint family funds of the Joint Hindu Family consisting of his father, himself and defendant no.1 to 3.
120. Per contra, defendant no.1 and 2 have submitted that there was no joint family between them and their father at any point of time. The properties purchased by their father were, after his death, transferred in the name of the plaintiff and defendant CS DJ No.19732/16 51 of 70 Ramesh Chand Vs. Pritam Dass & Ors. no.4/mother. Rest of the properties are either individual properties of the defendants or purchased/allotted to the partnership firm of defendant no.1, 2 and 3 i.e M/S National Industries.
121. At this stage, it would be relevant to refer to the judgment in the case titled as "Bhagwat Sharan v. Purushottam", (2020) 6 SCC 387, wherein Hon'ble Supreme Court has observed as below, "11. The Privy Council in Randhi Appalaswami v. Randhi Suryanarayanamurti [Randhi Appalaswami v. Randhi Suryanarayanamurti, 1947 SCC OnLine PC 42 : ILR 1948 Mad 440] held as follows : (SCC OnLine PC) "... The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property."
The aforesaid view was accepted by this Court in Shrinivas Krishnarao Kangov.Narayan Devji Kango [Shrinivas Krishnarao Kango v. Narayan Devji Kango, (1955) 1 SCR 1 : AIR 1954 SC 379] .
12. In D.S. Lakshmaiah v. L. Balasubramanyam [D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310] this Court held as follows : (D.S. Lakshmaiah case [D.S. Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310] , SCC p.
317, para 18) CS DJ No.19732/16 52 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
"18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available."
Similar view was taken in Rukhmabai v. Lala Laxminarayan [Rukhmabai v. Lala Laxminarayan, (1960) 2 SCR 253 : AIR 1960 SC 335] and Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade [Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade, (2007) 1 SCC 521] . The law is thus well settled that the burden lies upon the person who alleges the existence of the Hindu Undivided Family to prove the same."
122. It has been admitted by both the parties that late Sh. Budhu Ram, their father had migrated to India after partition. Firstly, he started manufacturing of sweets and confectioneries at no.648 Gali Cinema Wali, where he was also residing with his family. Thereafter, he shifted his business to 17, Harphool Singh building, where he started business in name of National Industries. It is also admitted that the defendant no.1 and 2 had started helping their father in his business since an early age due to family constraints. However, exactly when they joined the business of their father is not known.
123. While the plaintiff has claimed that after death of Sh. Budhu Ram, defendant no.1 became karta of their joint hindu CS DJ No.19732/16 53 of 70 Ramesh Chand Vs. Pritam Dass & Ors. family and took over the business of national industries in the capacity of the Karta, defendants no.1 to 3 have claimed that they had formed a partnership amongst themselves and it was not a hindu undivided family business. A partnership deed dated 06.09.1963 Ex.D1/4 was executed between defendant no.1 to 3 and another partnership deed was executed between them on 30.11.1971, which is Ex.D1/5.
124. The onus to prove that there was joint family business between late Sh.Budhu Ram and his sons i.e. defendant no.1 to 3 was on the plaintiff. However, apart from making an avernment in his plaint and stating so in his affidavit in evidence Ex.PW1/A, the plaintiff has failed to lead any material evidence to prove the same. There is no document of the business of M/s National Industries prior to the year 1963 i.e. when late Sh. Budhu Ram had expired. There are no cash books or books of accounts on record to show that there was a Hindu undivided family business between late Sh. Budhu Ram and defendant no.1 to 3. There is no document to show that the said business was sole proprietorship concern of late Sh. Budhu Ram.
125. Per contra, defendant no.1 has claimed that the business of national industries was a partnership business between him and his father. He has relied on Ex.DW1/1 which is registration certificate issued under Delhi Shops and Establishments Act 1954, to M/s National Industries. The name of the occupier is mentioned as Sh. Pritam Dass in the said certificate. The certificate has been issued on 02.11.1961.
CS DJ No.19732/16 54 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
126. It has been alleged by the plaintiff that this document has been tampered with as the original date of issue was 02.11.1971 but the number '7' in the date has been changed by hand to make it appear as '1961'. This has been vehemently refuted by learned counsel for the defendant submitting that there is no such tampering. The whole date has been written by the concerned official only and no change has been made therein.
127. To prove this allegation, the plaintiff ought to have summoned the original record from the concerned department from where the said certificate was issued. However, the plaintiff has failed to do. No original record of the document Ex. DW1/1 was ever summoned and examined in the court by the plaintiff. Hence, this allegation of the plaintiff is not duly proved.
128. From Ex. DW1/1, it appears that the defendant no.1 was actively engaged in the business of National Indistries. Even the name thereupon is mentioned as "M/s National Industries"
which is used by partnership firms.
129. Further, it is proved that the defendants no.1,2 and 3 had entered into a partnership in the year 1963 vide partnership deed dated 06.09.1963 which is Ex.D1/4. Another partnership deed Ex.D1/5 was executed between them with respect to the same business i.e. M/s National Industries on 30.11.1971.
CS DJ No.19732/16 55 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
130. To prove that the defendant no.1 had acted as karta of their joint hindu family, the plaintiff has relied upon Ex.PW1/1 which is a letter by Zonal Manager LIC dated 09.03.1972 in reply to the loan application filed by Sh. Pritam Dass and Ex.PW1/2 which is the loan application of Pritam Dass, Charan Dass and Satpal. It has been argued that in the said letter Ex.PW1/2 the defendants have admitted that the business under the name of M/s National Industries was inherited by them from their father late Sh. Budhu Ram who was actually running the said business.
131. However, it is a settled rule of evidence that a document is proved by either the executor of the same or by any person who is duly acquainted with the handwriting of the executor/writer, having seen him writing or signing in the daily course of business. The letter Ex.PW1/2 was purportedly written by late Sh. Pritam Dass i.e. defendant no.1. However, defendant no.1 expired pending trial and DW-1 i.e. son of defendant no.1 had denied the signatures of Sh. Pritam Dass on the said document. The said letter was addressed to the Zonal Manager, LIC. However, no official from LIC office was called to prove the said letter was written by Sh. Pritam Dass to LIC or whether any loan was sanctioned and disbursed to the defendants by LIC. Even PW-1 could neither admit nor deny that defendants had taken a loan from LIC or not. Hence, this letter is of no help of the defendant to prove that defendant no.1 was the karta of their joint family.
CS DJ No.19732/16 56 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
132. Further, PW-1 could not tell whether any account of the HUF was opened at any point of time by his father or defendant no.1. He could further not tell whether the said HUF was an income tax payee or not.
133. It is also admitted fact that defendant no. 1 had filed a suit for partition of the partnership business of M/s National Industries between him and defendant no.2 and 3 and rendition of accounts in the year 1979 having suit no.461/1979. In the suit no.461/1979, a local commissioner Sh. S.K.Tiwari was appointed by the Hon'ble High Court of Delhi. On 01.05.1979 the Local Commissioner had visited the factory premises no.C-38/1 Lawrence Road. Sh. Ramesh Chand was present there but he refused to take part in the proceedings. He further informed the Local Commissioner that he is incharge of two factories in the front portion of the properties. He further informed that earlier the said premises belongs to the firm M/s National Industries and it has been partitioned in following three parts-
1. Front left- Neeraj Food Products-belonging to Sh. Charan Dass.
2. Front right- Vicky Food Corporation-belonging to Sh. Satpal.
3. Back portion- Alka Food Industries-belonging to Sh. Pritam Dass.
134. He further told the LC that the machinery of M/s National Industries have also been distributed. The Local Commissioner had filed his report which is Ex.DW2/1 (OSR).
CS DJ No.19732/16 57 of 70 Ramesh Chand Vs. Pritam Dass & Ors. Vide order dated 11.04.1980, a preliminary decree was passed by Hon'ble high Court of Delhi in the suit no.461/79 and the partnership named and style as National Industries was dissolved. Hon'ble High Court prescribed the share of Sh. Pritam Dass as 20% and of the defendants as 40% each. Sh. Muni Lal Jain retired Registrar was appointed as Commissioner for going into accounts.
135. Another suit having no.289/79 was also pending between Pritam Dass as plaintiff and Charan Dass and Satpal as defendants with respect to the partition of property no.H-119, Ashok Vihar, Phase-I, Delhi which was settled between the parties and vide order dt.07.02.1987, a preliminary decree of partition been passed in suit no.289/79 vide which defendants Pritam Dass, Satpal and Charan Dass were given 1/3 rd share each in property bearing no.H-119, Ashok Vihar, Phase-I, Delhi-52.
136. Admittedly in the said suit an application was filed by the present plaintiff Ramesh Chand under Order 1 Rule 10 CPC to be impleaded as a party which was dismissed vide order dt.05.04.1995 (Ex.PW1/8) observing that the said application has been filed after the preliminary decree has already been passed and since the plaintiff has already filed the present suit for partition.
137. When the property no. H-117, Ashok Vihar has already been partitioned and preliminary decree of partitioned also passed qua the business of M/s National Industries, the CS DJ No.19732/16 58 of 70 Ramesh Chand Vs. Pritam Dass & Ors. plaintiff ought to have amended his suit and include the relief of declaration that the said decrees be declared as null and void as the plaintiff also had a share in the same which was denied to him. However, no such relief was claimed nor any plea of amendment to insert the said reliefs was ever made by the plaintiff.
138. In view of the above discussion, this court is of the considered opinion that the plaintiff has failed to show any joint family business between the defendants and their father or even thereafter.
139. It is a settled principle of jurisprudence that in a civil suit, the burden of proof is that of preponderance of probabilities as oppose to beyond reasonable doubts as in the criminal proceedings. In the present case, the plaintiff has failed to prove that the defendants were carrying on any joint family business with their father late Sh. Budhu Ram and he was the Karta of the said joint hindu family. Hence, the plaintiff has failed to discharge the onus of proving issue no.1. Issue no.1 is accordingly decided against the plaintiff and in favour of defendants.
140. Coming to issue no.2, the plaintiff has alleged that properties as mentioned in para 13 of his plaint are owned by their joint Hindu family and purchased out of the joint family funds for benefit of the family. These properties are :-
1. House No.648, Gali Cinema, Mukimpura Subzi Mandi, Delhi-
CS DJ No.19732/16 59 of 70 Ramesh Chand Vs. Pritam Dass & Ors. 110007.
2. 17, Building Harphool Singh, Subzi Mandi Clock Tower, Delhi-110007.
3. C-38/1, Lawrence Road, Industrial Area, Delhi-52.
4. H-119, Ashok Vihar, Phase-1, Delhi-52.
5. Business of M/s National Industries being run at C-38/1, Lawrence Road Indl. Area, Delhi and also at 17, Building Harphool Singh, Subzi Mandi, Delhi-7.
6. Auto Parts business run by the defendant no.1 in a representative capacity, in partnership with Sh.Om Prakash or some other person or persons as may have been joined for the time being.
7. Plot no.26, Small Scale Co-operative Industrial Estate ltd. Laghu Udyog Nagar, G.T. Karnal Road, Delhi.
141. However, PW-1 in his cross-examination has categorically admitted that his father had left behind only three properties-
1. Property no. 6066/6067at Gali Batasan.
2.Property at 648, Gali Cinema, Mukimpura Subzi Mandi, Delhi- 110007.
3. Plot at Gandhi Nagar.
142. PW-1, in his cross examination, could neither admit nor deny whether the property at Gali Batashan was in the individual name of late Sh.Budhu Ram and not as Karta of HUF or not. PW-1 further admitted that the defendants had relinquished their share in property at gali Batashan in favour of CS DJ No.19732/16 60 of 70 Ramesh Chand Vs. Pritam Dass & Ors. his mother, and his mother had got the property mutated in his name. He further admitted that the said property has already been sold by him and his mother for Rs.2,00,000/- vide registered Sale Deed Ex.PW1/9 dated 25.04.1986. PW-1 has also admitted that he had started a business under the name of M/s Capital Agencies from Gali Batashan Wali property in 1973-74.
143. Coming to the property at 648, Gali Cinema, Mukimpura Subzi Mandi, Delhi- 110007, the parties are in consensus that late Sh. Budhu Ram had started his confectionery business at 648, Gali Cinema Wali, Mukimpura, Subzi Mandi, Delhi. He also resided at the said property alongwith his family. However, defendant no.1 has claimed that the said property was taken on rent by their father and only a temporary structure was raised there by their father; and that the said tenancy has already been surrendered to the original owners.
144. Even PW-1 admitted in his cross-examination that 648, Gali Cinema, Subzi Mandi, Delhi was a tenanted property on government land. The plaintiff has failed to produce any document on record to prove that the said property was purchased by late Sh. Budhu Ram. Further, PW-1 has admitted in his cross examination that his mother had given this property to her sister's son Sh.Jagdish Chander for residential purpose. However, he denied that she had sold the property to Sh. Jagdish Chander. At the same time, the witness failed to answer whether Sh.Jagdish Chander is residing in the said property as on date or not. Hence, he has failed to show that late Sh.Budhu Ram was CS DJ No.19732/16 61 of 70 Ramesh Chand Vs. Pritam Dass & Ors. the owner of the said property and it is a subject matter of partition between him and his brothers.
145. The plaintiff has failed to prove that any of these properties were joint family properties at any point of time. Coming to the remaining properties i.e; property H-119, Ashok Vihar, Phase-I Delhi, PW-1 has himself admitted the said property was purchased by defendant no.1 to 3 and the lease deed is in the name of the said defendants only. Further, the plaintiff has failed to prove that the said property was purchased out of the joint family funds of the property.
146. Coming to property no.C-38/1, Lawrence Road Industrial Area, Delhi, the plaintiff has failed to prove that the said property was purchased by the defendants out of joint family funds. There is no record of property no.C-38/1 Lawrence Road, Industrial Area on the judicial record. The GPA and Agreement to Sell i.e Ex.PW1/DB and Ex.PW1/DC pertains to property no.C/35/20, admeasuring 663.3 sq. yards, Lawrence Road Industrial Area, Delhi.
147. PW-1 has admitted that the property no. C-38/1, Lawrence Road Industrial Area was allotted to partnership firm namely M/s National Industries comprising of defendant no. 1 to 3 as partners and a registered perpetual lease deed has been executed in favour of defendants no. 1 to 3. He has claimed that this property was allotted in lieu of property of National Industries, 17, Harpool Singh Building. However, there is no CS DJ No.19732/16 62 of 70 Ramesh Chand Vs. Pritam Dass & Ors. such evidence on record to prove that the property C-38, Lawrence Road was allotted in lie of property no.17, Harphool Singh building.
148. Coming to the plot at Gandhi Nagar, admittedly it was in the name of their mother i.e. defendant no.4. However, while the plaintiff has claimed that the said property was purchased by their mother from her own earnings, the defendants have claimed that the said property has been purchased by late Sh.Budhu Ram in the name of his wife.
149. Since it is admitted by both the parties that the plot at Gandhi Nagar is in the name of their mother, then it is not to be considered as a joint family property and none of the parties can claim share in the same on this ground.
150. In view of the above discussions the court is of the considered opinion that the plaintiff has failed to discharge the onus of proving that the properties in question are joint family properties or purchased out of joint family funds for benefits of the family. Hence, issue no.2 is also decided against the plaintiff and in favour of the defendants.
151. The plaintiff has prayed for a decree of partition of the properties as mentioned in para 13 of his plaint. He has further asked the defendants to render accounts of the business of M/s National Industries and the Auto Part business i.e., M/s CS DJ No.19732/16 63 of 70 Ramesh Chand Vs. Pritam Dass & Ors. National Industries (India) and gives the plaintiff his share in the same.
152. However, it has already been discussed while recording finding of issue no.1 and 2 that the properties as mentioned by the plaintiff in para 13 of this plaint have not been proved to be joint hindu family properties or purchased out of joint hindu family funds.
153. Even otherwise, the plaintiff has not come to the court with clean hands and he has concealed material facts from the court and deliberately omitted to mention them in his plaint. The plaintiff/PW-1 stated in his cross-examination that he had joined National Industries after attaining majority in the year 1971. However, this fact has not been mentioned by him in his plaint. Similarly, the plaintiff has admitted that the property at Gali Batasan Wali has already been sold by him and his mother vide Ex.PW1/9. This factum was not mentioned in his plaint. Infact, the plaintiff has mentioned many additional facts in his evidence affidavit Ex PW1/A, which he has not mentioned in his plaint. Further, the plaintiff has very cleverly concealed about the business being carried on by him and the properties in his name. He admitted in his cross-examination that he is carrying on the business of M/s Capital Agency since the year 1974-75. He is also the proprietor of M/s Anil Food Industry at Shehzada Bagh, Old Rohtak Road, Delhi. However, these facts were not mentioned by him in his plaint.
CS DJ No.19732/16 64 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
154. Further, the plaintiff concealed the factum of being present at the suit property at the time of visit by Local Commissioner Sh. S.K.Tiwari. In his report, the LC has specifically mentioned that in the year 1979 the plaintiff was running his separate business and had informed the LC that the property C-38/1 Lawrence Road belongs to defendant no.1 to 3.
155. It is a settled principle of civil jurisprudence that one who seeks equity must do equity. The person seeking relief from the court must come to the court with clean hands. However, in this case the plaintiff has not come to the court with clean hands and suppressed material facts. He has also tried to misrepresent and seek relief against the properties which are admittedly sold by him or admittedly belongs to defendant no.1 to 3 exclusively. He also failed to include his businesses i.e. Capital Agency and Anil Food Industry and in the present suit.
156. Further, the plaintiff has claimed that defendant no.1 to 3 had entered into a partnership with Om Prakash for Auto Spare Part business. However, firstly it is not been proved that the said partnership was entered into by defendant no.1 as Karta of their joint family and secondly the said partnership has already been dissolved in the year 31.03.1976. Similarly, the property at plot no.26 Laghu Udyog Nagar is exclusively owned by defendant no.1 and this has been admitted by plaintiff also as is reflected from the order-sheet dated 22.07.2002 vide which plaintiff's application under Order 39 Rule 1 and 2 CPC was dismissed.
CS DJ No.19732/16 65 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
157. 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. He has failed to prove that the properties as alleged by him in para 13 of the plaint are joint family properties and that he is entitled to a share in the same. He has failed to prove that he is entitled to a decree of partition or rendition of accounts. Issue no.6,7 and 8 are accordingly decided against the plaintiff and in favour of the defendants.
158. ISSUE NO.3 "3.Whether the plaintiff has no locus standi to file the present suit? OPD"
159. The onus of proving this issue was on the defendants. The defendants no.1 to 3 only have contested the present matter. These defendants have alleged that the plaintiff has no right, title or interest in the suit properties and hence, he had no locus standi to file the present suit.
160. The term "Locus standi" means the right or capacity to bring an action in a court. It is a legal maxim consisting of two words, 'locus' meaning place and 'standi' meaning a right to stand i.e. a right to appear in the court or file an action. According to this maxim, a person must first show his legal right or interest before approaching the court for remedy i.e. a person must have some personal interest in the matter and should show CS DJ No.19732/16 66 of 70 Ramesh Chand Vs. Pritam Dass & Ors. the court that he shall suffer injury if the relief prayed by him is not granted.
161. In the case at hand, the plaintiff has filed a suit for partition of the properties which he is believes to be joint Hindu family properties, and in which he claims to have a share. Notwithstanding the outcome of this case, the plaintiff has locus to file the present suit as he believes that he is co-owner of the said properties being a member of the said joint family. Hence, it cannot be said that the plaintiff has filed the present suit without any locus standi.
162. In view of the above discussion, issue no.3 is decided in favour of the plaintiff and against the defendants.
163. ISSUE NO.4
"4. Whether the suit is barred by time?
OPD"
164. The onus of proving this issue was on the defendants. However, except making a bald averment in their written statements, the defendants have failed to lead any evidence to prove that the present suit is barred by limitation.
165. During final arguments, Ld. Counsel for the defendants has argued that the present suit is barred by Article 110 Limitation Act. As per Article 110, Schedule to the Limitation Act, 1963, the limitation period for filing a suit by a CS DJ No.19732/16 67 of 70 Ramesh Chand Vs. Pritam Dass & Ors. person excluded from a joint family property to enforce a right to share therein is 12 years from the date when such exclusion becomes known to the plaintiff.
166. In the present case, the plaintiff has stated that he attained majority in the year 1971. In 1979 Sh. Pritam Dass had filed the suit for partition of property no.H-119, Ashok Vihar vide suit no.289/79 and for dissolution of partnership having suit no.461/79. An application to be impleaded as a party in the suit no. 461/79 was filed by the present plaintiff which was dismissed vide order dt. 03.11.1979. The application was filed on 17.08.1979 hence, it can be said that the plaintiff had claimed his share in the suit properties in the year 1979. The present suit has been filed in the year 1986.
167. There is no evidence led on behalf of the defendants that the plaintiff had asked for partition at any point prior to the year 1979. Even if the family settlement dated 24.02.1977, which is Ex.PW1/4 is taken into account, the suit is well within the period of limitation.
168. In view of the above discussion, this court is of the considered opinion that the defendants have failed to discharge the onus of proving this issue. Issue no.4 is accordingly decided against the defendants and in favour of plaintiff.
169. ISSUE NO.5
"5. Whether the plaintiff is estopped by his CS DJ No.19732/16 68 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
own acts, conduct and acquiescence from claiming any rights in the suit properties?
OPD"
170. The onus of proving this issue was on the defendants. However, no evidence has been led by the defendants to prove this issue. It is not been proved that how the plaintiff is estopped by his previous conduct or acquiescence from claiming any right in the suit properties. It is not been proved that the plaintiff had acquiesced his share in favour of the defendants at any point of time. Infact, in the civil suits filed by the defendants earlier, the plaintiff has filed an application under Order 1 Rule 10 CPC to be impleaded as a party. Though the said applications were dismissed but it was not for the reason that the plaintiff had no interest in the suit properties but for the reason that the plaintiff has a right to file a separate suit to claim his share in the property. There is no other evidence to prove that the plaintiff has made any statement or done any action which bars him from filing the present suit.
171. In view of the above discussion, issue no.5 is decided in favour of the plaintiff and against the defendants.
172. ISSUE NO.9 "Relief"
173. In view of the above findings of this court, the suit is dismissed.
CS DJ No.19732/16 69 of 70 Ramesh Chand Vs. Pritam Dass & Ors.
174. Parties to bear their own costs.
175 Decree sheet be prepared accordingly.
176. File be consigned to the record room after completing necessary formalities.
Announced in the Court (Saumya Chauhan)
today on 23rd December, 2023 ASJ (FTC)-02, West
Tis Hazari Courts/Delhi
Earlier
ADJ-02, Central
Tis Hazari Courts/Delhi
CS DJ No.19732/16 70 of 70 Ramesh Chand Vs. Pritam Dass & Ors.