Delhi District Court
Upender Kumar Gupta vs Prem on 12 April, 2018
IN THE COURT OF SH. SAURABH PRATAP SINGH LALER
ADDITIONAL DISTRICT JUDGE-01 (CENTRAL)
TIS HAZARI COURTS, DELHI.
CS No.17683/2016
UPENDER KUMAR GUPTA
S/o Sh. Suraj Prakash
R/o 780, Gali Kunde Walan,
Ajmeri Gate, Delhi-110006
.......PLAINTIFF
VERSUS
1.PREM Wife of Late Hira Lal
2. MAHESH KUMAR S/o Late Sh. Hira Lal
3. PUNEET KUMAR S/o Late Sh. Hira Lal All Resident of 243/18A & 18B, First Floor, Gandhi Gali, Mandawali, Fazilpur, Delhi-92 ......DEFENDANTS J U D G M E N T (Suit for recovery of Rs.3,14,000/-)
1. Date of institution : 25.01.2010
2. Date of Final Order : 22.02.2018
3. Final Order : 12.04.2018
1. PLAINT 1.1. Plaintiff has filed the present suit for recovery of Rs.3,14,000/-
from the defendants on the ground that the plaintiff advanced friendly loan of Rs.2,00,000/- to Sh. Hira Lal (husband of defendant No.1 and father of defendant No.2 and 3) on CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 1 of 21 27.08.2007 with respect to which late Sh. Hira Lal also executed a Promissory Note and Receipt (both on single page).
1.2. As per the plaintiff the said amount was borrowed by late Sh.
Hira Lal to clear his dues to other borrowers, from whom he borrowed money for purchase of his house in the name of his wife and he claimed that the said property was purchased by Sh. Hira Lal from his own funds and as such the defendants, particularly defendant no.1, are liable to clear the loan taken by Late Sh. Hira Lal. The relevant para is reproduced as under:-
"That it is pertinent to mention herein that the said Late Shri Hira Lal borrowed the said money for clearing his dues to the other borrowers from whom he borrowed money for the purchase of his house in the name of his wife i.e. the Defendant No.1 herein as the Defendant No.1 is an illiterate lady and is a house wife having no source of income, so the property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 purchased in the name of the Defendant No.1, was purchased by Sh. Hira Lal being a Benami property, purchased from the loan amount taken from the plaintiff, therefore, the defendants being the legal heirs of Late Shri Hira Lal are liable / responsible to pay / clear the debts / dues of Shri Hira Lal."
1.3. The said amount was to be repaid by August 2008, however, as the said amount was not paid, hence, the plaintiff issued legal notice dated 29.07.2009 demanding the said amount along with interest @ 24% per annum, but to no avail. 1.4. Late Sh. Hira Lal expired in the month of September 2009 and when the plaintiff demanded the loan from his legal heirs i.e. CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 2 of 21 defendants they undertook to repay the loan amount and assured to repay it by November 2009. The relevant portion of the plaint as regards the obligation of defendants (who are class-I legal heirs of deceased late Sh. Hira Lal) is reproduced as under:-
"Defendants said that they are under pious obligation to repay the loan taken by late Sh. Hira Lal and assured the plaintiff to repay the same in the month of November, 2009."1 1.5. However, as the defendants did not repay the loan amount along with interest, therefore, plaintiff filed the present suit for recovery of loan amount of Rs.2,00,000/- along with interest of Rs.1,14,000/- with the following prayer:-
"It is therefore, respectfully prayed that this Hon'ble Court may kindly be pleased to pass a decree of Rs.3,14,000/- (Rupess Three Lakhs and Fourteen Thousand only) alongwith interest @ 24% per annum from the date of filing of the suit till its realization, in favour of the plaintiff and against the defendants jointly and / or severally."
2. WRITTEN STATEMENT 2.1. In the written statement the defendants have denied that Late Shri Hira Lal had taken friendly loan of Rs.2,00,000/- from the plaintiff and that he executed a Promissory Note and Receipt in this regard.
2.2. They further submitted that Late Sh. Hira Lal was not contributing financially to his family due to ill health and since teen age defendant No.2 and 3 had been working to 1 Portion of Para 4 of the plaint.
CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 3 of 21 sustained the family and that Late Shri Hira Lal had not left behind any estate or property for the defendants. 2.3. As regards property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92, the defendants categorically denied that the said property was purchased from the funds of Late Shri Hira Lal and that the same was purchased by Late Shri Hira Lal in the name of his wife / defendant No.1 as benami property. They pleaded that defendant No.1 from her household savings had purchased the property in her name at Prakash Nagar, Khoda Colony, Ghaziabad in the year 2003 and it was after disposing of the said property, that defendant No.1 purchased property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92. Lastly, they prayed that the suit be dismissed with cost.
3. After completion of the pleadings, issues were framed on 05.09.2012, as under:-
a) Whether the plaintiff is entitled for recovery of Rs.3,14,000/- OPP
b) Whether plaintiff is entitled for interest? If so at what rate and for what period? OPP
c) Whether the suit of the plaintiff is not maintainable?
OPD
d) Relief.
4. In plaintiff' evidence, plaintiff testified as PW-1 and he examined PW-2 Satish Gupta and PW-3 Mr. B.N. Srivastava, whereas in CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 4 of 21 defendants' evidence defendant No.2 deposed as DW-1 and they examined Mr. R.P. Gupta, Notary Public as DW-2 and Mr. Avdhesh Singh as DW-3.
FINDING ON ISSUES
5. Issue No.1: Whether the plaintiff is entitled for recovery of Rs.3,14,000/- OPP & Issue No.3: Whether the suit of the plaintiff is not maintainable? OPD 5.1. The defendants in Para 1 and 2 of preliminary objections in the written statement contended that the suit is not maintainable because it does not disclose any cause of action in favour of plaintiff and against the defendants and that the plaintiff has no locus standi to file the present suit. Both the said objections are objections relating to facts and in case the plaintiff proves his case, then the said issue will be decided accordingly, therefore issue No.1 and 3 are taken up together. 5.2. In order to decide the aforesaid issues, the first question before the court is whether the plaintiff has proved that he advanced loan of Rs.2 lakhs to Late Sh. Hira Lal on 27.08.2007, with respect to which Late Sh. Hira Lal executed Promissory Note and Receipt?
a) Coming directly to the testimony of plaintiff's witnesses in this regard, PW-1 / plaintiff in his affidavit Ex. P-1 categorically testified that on 27.08.2007 he paid sum of Rs.2 lakhs to Sh. Hira Lal which was to be repaid by CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 5 of 21 August 2008 and Sh. Hira Lal executed a Promissory Note and a Receipt acknowledging the said loan. The original Promissory Note and Receipt are Ex. PW 1/1 and Ex. PW 1/2 respectively.
b) The relevant portion of his cross examination as regards how he arranged the said amount and whether he reflected the same in his income tax return or not is as under:-
"I filled income tax return for the year 2008-09. I have not shown that I have given loan of Rs.2.00 lacs to Hira Lal. Vol. I have arranged the loan amount from my friend circle and my wife. I can produce the copy of return for the assessment year 2005-2006, 2006-2007. I have not written in my plaint from whom I have arranged the loan amount. I have arranged the amount in cash. The name of friends from whom I arranged the amount namely Rajender Gola, Vijay Kumar and Pratibha Gupta. Rajender Gola was working at that point of time Asso-Chem, my friend Vijay Kumar was running Kirana Shop and Pratibha Gupta was running tutition center. Vijay arranged Rs.1,00,000/-, Pratibha Rs.40,000/- and Rajender arranged Rs.60,000/-. It is incorrect to suggest that I have not given any loan to Hira Lal as I had no money to give...........I also gave loan to other person. I do not remember as to how many persons I have given loan. I know Hari Chand. It is correct that I have filed a case against Hari Chand. Vol. The said case is complaint under Section 138 NI Act for dishonour of cheque of Rs.60,000/- which was extended as a friendly loan."
c) Therefore, the plaintiff in his cross examination admitted that the loan advanced was not reflected in the income tax return and also that the said amount was not available with him, rather, the entire amount was arranged from his CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 6 of 21 friends and wife.
d) It may be noted that the plaintiff did not examine Rajender Gola, Vijay Kumar or his wife Pratibha Gupta as witness in the present case in order to prove that he had arranged the amount of Rs.2.00 lakhs from the said persons to advance as loan to Late Sh. Hira Lal.
e) Plaintiff examined Mr. Satish Gupta as PW-2, who testified that the loan was advanced in his presence by the plaintiff to Late Sh. Hira Lal and it was in his presence that the Promissory Note and Receipt Ex. PW 1/1 and Ex. PW 1/2 were executed by Late Sh. Hira Lal. The said witness has been cross examined at length, however, nothing material is found in his cross examination.
f) In order to prove the execution of Promissory Note and Receipt Ex. PW 1/1 and Ex. PW 1/2, the plaintiff also examined hand writing expert namely Sh. B.N. Srivastava as PW-3 who after comparing the disputed signatures with the admitted signatures of Late Sh. Hira Lal opined that the disputed signatures of Late Sh. Hira Lal were actually that of Late Sh. Hira Lal. His report dated 04.06.2014 is Ex. PW 3/1, the photographs are exhibit Ex. PW 3/2 to Ex. PW 3/14 and the CD is Ex. PW 3/15.
The said witness was cross examined by learned counsel for defendants and in his cross examination he denied the suggestions given by learned defence counsel, including the suggestion that he had prepared the report at the CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 7 of 21 instance of the plaintiff and that the disputed signatures do not tally with comparative signatures. However, nothing material contradictory is found in his cross examination.
g) On the other hand, the defendants as regards the Promissory Note and Receipt Ex. PW 1/1 and Ex. PW 1/2 examined defendant No.2 as DW-2, who in his affidavit Ex. DW 1/P testified in para 8 that Late Sh. Hira Lal had not borrowed any loan from the plaintiff and he had also not executed the Promissory Note and Receipt dated 27.08.2007, which is forged and fabricated document. Even in his cross examination the said witness categorically deny the fact that the signatures at point A and B on the document Ex. PW 1/1 and Ex. PW 1/2 were that of his father.
h) From the aforesaid evidence, it can be concluded, that though the plaintiff could not prove that he had accounted cash of Rs.2 lakhs on 27.08.2007 to advance the same as friendly loan to Late Sh. Hira Lal, but he successfully proved the execution of Promissory Note and Receipt Ex. PW 1/1 and Ex. PW 1/2. In the said Promissory Note and Receipt Late Sh. Hira Lal admitted that he had taken a sum of Rs.2 lakhs from the plaintiff as loan in cash on interest @ 24% per annum and the contents of the said document with respect to the advancement of loan is further corroborated by unchallenged testimony of PW-2, who had signed the Receipt Ex. PW 1/2 as a witness.
CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 8 of 21 Therefore, though the source from which the payment was arranged by the plaintiff could not be proved, but the fact that the amount of Rs.2 lakhs (unaccounted money) was actually advanced by plaintiff to Late Sh. Hira Lal on 27.08.2007 was proved by plaintiff, through his own testimony as well as the testimony of witness to the Promissory Note and Receipt i.e. PW-2 and hand writing expert PW-3.
i) Accordingly, it is held that the plaintiff proved that he advanced loan of Rs.2 lakhs (unaccounted money) to Late Sh. Hira Lal on 27.08.2007, with respect to which Late Sh. Hira Lal executed Promissory Note and Receipt Ex. PW 1/1 and Ex. PW 1/2 respectively.
5.3. The next question before the court is whether the defendants are liable to repay the said loan, which was not taken by them and which was taken by Late Sh. Hira Lal (husband of defendant No.1 and father of defendant No.2 and 3)? PIOUS OBLIGATION:
a) In the present case the loan transaction is dated 27.08.2007 and as per the plaintiff the defendants are liable to repay the loan amount taken by Late Sh. Hira Lal because they are under pious obligation to do so. The relevant portion of the written statement is reproduced as under:-
"Defendants said that they are under pious obligation to repay the loan taken by late Sh. Hira Lal and assured the plaintiff to repay the same in the month of CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 9 of 21 November, 2009."2
b) As regards pious obligation of the defendants to repay the aforesaid loan, the court would like to reproduce Section 6 (4) of Hindu Succession Act 1956, as inserted by the Hindu Succession (Amendment) Act 2005 with effect from 09.09.2005. The section is reproduced as under:-
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no Court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-
grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. For the purposes of clause (a), the expression son, grandson or great-grandson shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu 2 Portion of Para 4 of the plaint.
CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 10 of 21 Succession (Amendment) Act, 2005.
c) As per the said Section after 09.09.2005, when the Amendment Act of 2005 came into force, no court shall recognize the right of a creditor to proceed against the son, grandson or great grandson of a debtor for debts contracted by the father, grandfather or great grandfather solely on the ground of pious obligation. The doctrine of pious obligation thus stands abrogated by the insertion of Section 6 (4) of Hindu Succession Act w.e.f. 09.09.2005. Under the old Hindu Law, where the sons are joint with their father, and debts have been contracted by the father in his capacity of manager and head of the family for family purpose, the sons as members of the joint family, are bound to pay the debts to the extent of their interest in the coparcenary property and under the Mitakshra Law the liability to pay the debts contracted by the father, though for his own benefits, arise from an obligation for religious and piety (pious obligation), where the debts are not tainted with immorality. It may be noted that even under the old law the liability of an heir of deceased Hindu to pay the debts of the deceased, is limited to the extent of the assets inherited by him from the deceased. 3 However, the said doctrine of pious obligation under the old Hindu Law has been abrogated by the Amendment Act of 2005 w.e.f. 09.09.2005.
3 Page 437, Mulla Hindu law 22nd Edition.
CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 11 of 21
d) For any loan which is advanced after 09.09.2005, the sons of the borrower are not liable to pay the same on the ground of pious obligation under the Hindu Law.
e) Accordingly, as far as defendant No.1 is concerned, she being wife was not under pious obligation, even under the old Hindu law to repay the loan taken by her husband Late Sh. Hira Lal AND defendant No.2 and 3, who are sons of the borrower Late Sh. Hira Lal, by virtue of Section 6 (4) of Hindu Succession Act, are not under pious obligation to repay the said loan.
BENAMI TRANSACTION
f) As far as defendant No.1 is concerned, the plaintiff in Para 6 of his plaint has submitted that as property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 was purchased by Late Sh. Hira Lal from his own funds in the name of defendant No.1, hence, the said property being benami property in the name of defendant No.1, defendant No.1 is liable to clear the debts left by deceased Hira Lal.
g) The question before the court is whether property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 was purchased by Late Sh. Hira Lal from his own funds in the name of defendant No.1 and if so, whether defendant No.1 because of the same is liable to repay the loan taken by Late Sh. Hira Lal from the plaintiff?
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h) At the outset it may be noted that property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 was purchased on 24.04.2006 for consideration of Rs.1,00,000/- by Late Sh. Hira Lal, whereas the loan was advanced on 27.08.2007 i.e. more than 16 months after the purchase of the aforesaid property.
i) Before coming to the evidence in this regard, even if it is presumed that the said property was purchased by Late Sh. Hira Lal in the name of his wife, from his own funds, still the said transaction would not fall within ambit of Section 3 of Benami Transactions (Prohibition) Act 1988, because as per Section 3 (2) of the said Act, a transaction shall not be a benami transaction, if the property is purchased by a person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. Therefore, in view of Section 3 (2) of the aforesaid Act, even if the plaintiff proves that Late Sh. Hira Lal paid the consideration for purchase of property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 in the name of defendant No.1, still the said transaction shall not be benami transaction as defined in Section 2 (a) read with Section 3 of the aforesaid Act and it shall be presumed by the court that the said property CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 13 of 21 was purchased by Late Sh. Hira Lal for the benefit of his wife / defendant No.1, which cannot be a basis for fixing liability on defendant No.1 to repay the loan taken by Late Sh. Hira Lal.
Moreover, a conjoint reading of section 3 of Benami Transaction (Prohibition) Act and Section 14 of the Hindu Succession Act 1956, make it clear that a property purchased by husband in the name of his wife shall be held by such Hindu wife in her own name as full owner thereof and not as a limited owner.
j) Therefore, even if plaintiff proves that property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 was purchased by Late Sh. Hira Lal in name of his wife from his own funds, still the wife would be under no legal obligation to repay the loan advanced by plaintiff to Late Sh. Hira Lal.
k) Now coming to the question whether the plaintiff has been able to prove the fact that property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 was purchased by Late Sh. Hira Lal in favour of defendant No.1 or not?
l) Plaintiff / PW-1 in his testimony has not stated that as to when and for what consideration, property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 was purchased by Late Sh. Hira Lal in the name of his wife and he has merely stated that "Late CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 14 of 21 Sh. Hira Lal borrowed the said money for clearing his due to the other borrowers from he borrowed money for the purchase of his house in the name of his wife i.e. the defendant No.1."4
m) The plaintiff has not disclosed the name of said borrowers and he has not disclosed that how much money was borrowed by Late Sh. Hira Lal for purchase of the property. The testimony of the plaintiff as regards the averment that the money borrowed from him, was used by Late Sh. Hira Lal to clear the dues of the borrowers, from whom he had borrowed the money to purchase the aforesaid property, is quite vague and ambiguous. The plaintiff in his testimony has not clearly disclosed the details of the said transactions between Late Sh. Hira Lal and other borrowers and he has also not examined any of the other borrowers whose money was repaid by Late Sh. Hira Lal after taking money from plaintiff.
n) The plaintiff through his own testimony or from the testimony of PW-2 and PW-3, could not prove that property in question was purchased by Late Sh. Hira Lal from the money borrowed from some borrowers, which money was subsequently paid by Late Sh. Hira Lal after borrowing from plaintiff. The only relevant witness as regards the said fact is DW-1/defendant No.2, who in his examination in chief testified that property bearing No.243/18A & 18B, 4 Para 7 of affidavit Ex. P-1.
CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 15 of 21 First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 was purchased by defendant No.1 from her own resources and after selling out a plot at Khoda Colony, Ghaziabad. The said witness also placed on record the certified copy of registered irrevocable General Power of Attorney dated 24.04.2006 with respect to property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 as Ex. DW 1/1. Though the plaintiff objected to the exhibit of the said Ex. DW 1/1 on the ground of mode of proof, but the plaintiff himself never examined any witness from the Sub-Registrar Office to prove the title documents with respect to property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 and subsequently questions were put to D1 from the said document itself. The cross examination of the said witness with respect to the property in question is as under"-
"My mother is a house wife since she was married to my father...............The signatures at point C at document Ex. DW 1/1 is of my father. The signatures at point D and E document Mark D (colly.) is of my father. The same is answer at point F, G and H. My mother purchased a property at Ghaziabad for sum of Rs.63,000/-. At that time I was 32 years old. I think I was married in 2009. My mother have no bank account. At the time of purchase of said property my mother has cash of Rs.63,000/-. I do not remember in the year 2003 how much I earned. I have no knowledge that as per Income Tax Act more than payment of Rs.20,000/- cash is offence. My late father Sh. Hira Lal had no bank account. I do not remember at what cost the property at Ajmeri Gate was sold out by CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 16 of 21 my father. The amount received from the sale of said property was spent by my father on their sisters, daughters ceremonies. I do not remember the said ceremonies. It is wrong to suggest that my father purchased a property at Mandawli, in the name of my mother from the amount received from the sale of property at Ajmeri Gate and getting loan from othere persons. The property at Mandawli was purchased after selling the property at Ghaziabad by my mother, but I do not remember the amount of purchasing the property at Mandawli and selling the property at Ghaziabad.........My father had spent the entire amount of sale proceed of Ajmeri Gate property towards the birth and other ceremonies of his two daughters. ........The defendants did not inherit anything after the death of Late Sh. Hira Lal as he owned nothing. The entire immovable assets at the time of death of my father were owned by me and my younger brother. There is no jewellery with us any nature whatsoever, even at the time of death of my father. My father had not filed any insolvency petition before any court before his death........In the year 2003 I and my younger brother used to maintain the house towards household expenses. My father was not working in the year 2003 and was not earning any amount. I and my brother never used to pay any amount to our father towards his day to day expenses since 2003. My mother had no source of income at any point of time.
o) From the aforesaid cross examination of defendant No.2, the plaintiff could not prove that Late Sh. Hira Lal had borrowed money from some borrowers for purchasing property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 and that he repaid the amount taken from the said borrowers after taking a fresh loan from the plaintiff.
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p) It is interesting to note that though the plaintiff himself submits that he had paid Rs.2 lakhs in cash to Late Sh.
Hira Lal, in the cross examination of defendant No.2 it was put to him that payment of more than Rs.20,000/- is an offence under the Income Tax Act. It may be noted that at the relevant time payment of Rs.20,000/- or more for purchase of movable or immovable property was not an offence under the Income Tax Act, rather, as per Section 269 ST of the Income Tax Act advancing loan more than Rs.20,000/- in cash was prohibited. Therefore, the said suggestion given to defendant No.2 goes against the plaintiff and not in his favour.
q) At this stage, the court would like to point that the plaintiff in Para 9 on page 5 of his counter affidavit filed along with reply to leave to defend application had stated as under:-
"It is submitted that the Late Sh. Hira Lal after dispossessing off his property at Ajmeri Gate and by obtaining loan from others like the plaintiff herein, purchased a property and thereafter disposed of the same and purchased the aforesaid property in the name of his wife i.e. defendant No.1 herein from his own sources and the defendant No.2 and 3 were dependent on their father being minor at that time having no source of income to the extent to purchase a house in Delhi.
r) It may be noted that the said deposition made in the counter affidavit of the plaintiff is contrary to the averment made in para 6 of the plaint and para 7 of plaintiff's affidavit Ex. P-1. Para 7 of plaintiff's affidavit Ex. P-1 is reproduced CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 18 of 21 as under:-
"I say that the said Late Shri Hira Lal borrowed the said money for clearing his dues to the other borrowers from whom he borrowed money for the purchase of his house in the name of his wife i.e. the Defendant No.1 herein as the Defendant No.1 is an illiterate lady and is a house wife having no source of income, so the property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi- 92 purchased in the name of the Defendant No.1, was purchased by Sh. Hira Lal being a Benami property, purchased from the loan amount taken from the plaintiff, therefore, the defendants being the legal heirs of Late Shri Hira Lal are liable / responsible to pay / clear the debts / dues of Shri Hira Lal."
s) It may be noted that as per Ex. DW 1/1, which was also referred to by the plaintiff in cross examination of DW-1, the consideration for purchase of property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi-92 is mentioned as Rs.1.00 lakh, whereas the loan which is taken by the plaintiff from the defendant is Rs.2.00 lakhs. During admission / denial of documents on 05.09.2012, certain documents with respect of property at Ajmeri Gate dated 25.05.2004, were admitted and as per the said documents the property was sold for Rs.50,000/-. Therefore, if the property at Ajmeri Gate was sold for Rs.50,000/- and the property bearing No.243/18A & 18B, First Floor, Gandhi Gali, Mandawli, Fazilpur, Delhi- 92 was purchased for Rs.1.00 lakh, then even as per the story of plaintiff, there was no reason for the plaintiff to CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 19 of 21 advance loan of Rs.2.00 lakhs to Late Sh. Hira Lal for repaying the borrowers who had taken money to purchase the property in question.
t) Moreover, if the transaction was such as stated by the plaintiff and the plaintiff was aware that the property was already purchased in the name of defendant No.1 and not in the name of Late Sh. Hira Lal, then the plaintiff should have also obtained the signatures of defendant No.1 on the Promissory Note and Receipt Ex. PW 1/1 and Ex. PW 1/2 while advancing loan to Late Sh. Hira Lal. u) In the opinion of the court, the plaintiff has failed to prove that the property in question was purchased by Late Sh. Hira Lal from the funds provided by the plaintiff and as stated earlier the said property cannot be said to be benami property, even if it was purchased by Hira Lal from his own funds in the name of his wife. Hence, defendant No.1 is not liable to repay the loan amount advanced by plaintiff to Late Sh. Hira Lal either personally or from the property in question.
v) The plaintiff has also failed to show that any of the defendants inherited movable or immovable property from Late Sh. Hira Lal and in absence of such proof, in the opinion of the court, none of the defendants are liable to repay the loan taken by Late Sh. Hira Lal from the plaintiff. 5.4. Accordingly, in view of the aforesaid discussion, issue No.1 and 3 are decided in favour of defendants and against the CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 20 of 21 plaintiff.
6. Issue No.2: Whether plaintiff is entitled for interest? If so at what rate and for what period? OPP 6.1. As issue No.1 and 3 are decided against the plaintiff and it is held that plaintiff is not entitled to recover Rs.3,14,000/- from the defendants, hence, the plaintiff is also not entitled to interest on the said amount.
6.2. Accordingly, this issue is also decided in favour of defendants and against the plaintiff.
7. FINAL ORDER In view of finding of this court on the aforesaid issues, present suit is dismissed.
8. Decree sheet be drawn accordingly.
9. No order as to costs.
10. File be consigned to Record Room after necessary compliance. Announced in the Open Court Digitally signed by on 12.04.2018. SAURABH PARTAP SINGH LALER Date: 2018.04.12 20:45:43 +05'30' (S.P.S. LALER) Additional District Judge-01, Central Tis Hazari Courts, Delhi CS No. 17683/2016 Upender Gupta Vs. Prem & Ors. Page No. 21 of 21