Delhi District Court
Rajeev Kumar Jain And Anr vs Gulshan Kumar Jain And Ors on 29 January, 2026
IN THE COURT OF DISTRICT JUDGE-02: NORTH ROHINI
COURTS COMPLEX: DELHI
CNR No. DLNT01-001032-2016
CS DJ No. 57718/2016
IN THE MATTER OF:-
1. Sh. Rajeev Jain
S/o Sh. Gulshan Kumar Jain
2. Smt. Kiran Jain
W/o Sh. Rajeev Jain
Both R/o B - 66, Ahinsa Vihar,
Sector - 9, Rohini, Delhi - 110085. .....Plaintiffs
Versus
1. Sh. Deepak Jain
S/o Late Sh. Gulshan Kumar Jain
R/o B - 65, Ground Floor,
Ahinsa Vihar, Sector - 9,
Rohini, Delhi - 110085.
2. Smt. Jyoti Jain
W/o Sh. Ajay Jain
Presently residing at
B - 66, First Floor, Ahinsa Vihar,
Sector - 9, Rohini, Delhi - 110085. .....Defendants
Date of Filing : 24/02/2016
Date of Conclusion of Argument : 23/01/2026
Date of Order Judgment : 29/01/2026
Suit for Partition, Declaration and Permanent Injunction
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 1 of 46
JUDGMENT
1. Vide this judgment, this Court shall decide the present suit filed by the plaintiffs for partition, declaration and permanent injunction on behalf of the plaintiffs (husband and wife) qua the properties bearing no. B - 65 & B - 66, Plot No. 27/1, Sector - 9, Ahinsa Vihar, Rohini, Delhi - 110085 (suit properties). Tersely put the first plaintiff claims suit properties on basis of his share in ancestral properties, oral family arrangement and owing to contribution made for purchase of suit properties. Defence is that properties are not ancestral, no contribution was made and no oral family arrangement, as alleged took place.
2. As per original memo of parties dated 24/02/2016, plaintiff no. 1 is Son of Late Sh. Gulshan Kumar Jain. Plaintiff no. 2 is wife of plaintiff no. 1. First defendant is Sh. Gulshan Kumar Jain - father of first plaintiff who had died during pendency of the case. Second defendant is Sh. Deepak Jain (brother of first plaintiff).
PLAINTIFF's CASE
3. It is case of the plaintiff that forefathers of Rajeev Jain and Deepak Jain (brothers) had an ancestral property bearing no. C - 32/1, situated at Jain Nagar, Railway Road, Meerut City, Uttar Pradesh (hereinafter referred to as ancestral property).
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 2 of 46
4. It is case of the plaintiff that it was decided between plaintiff no. 1 and defendants that the ancestral property in Meerut was to be sold. Two separate properties were agreed to be purchased in name of both sons/brothers (first plaintiff and Sh. Deepak Jain). It was further decided that since Sh. Gulshan Kumar Jain (father of first plaintiff) and Smt. Usha Kanta Jain (mother of first plaintiff) were alive property will be purchased in name of Sh. Gulshan Kumar Jain (father of first plaintiff) and Smt. Usha Kanta Jain (mother of first plaintiff). After their death, House No. B - 66, Plot No. 27/1, Sector - 9, Ahinsa Vihar, Rohini, Delhi - 110085 (hereinafter referred to as B - 66) was to be given to plaintiffs and the second property i.e. House No. B - 65, Plot No. 27/1, Sector - 9, Ahinsa Vihar, Rohini, Delhi - 110085 (hereinafter referred to as B - 65) was to be given to Deepak Jain in lieu of shares in ancestral property sold. (For sake of convenience both these properties i.e. B - 66 and B - 65 are referred to as suit properties).
5. It is further case of plaintiffs that it was further decided that separate property would be purchased in name of Smt. Jyoti Jain (sister of Rajeev Jain and Deepak Jain). She was therefore having no right, title or interest in the suit properties.
6. It is case of the plaintiff that a joint NOC (for sale of ancestral property) in form of affidavit dated 20/09/1993 was given by brothers i.e. Sh. Rajeev Kumar Jain and Sh. Deepak Jain in favour of their father - Sh. Gulshan Kumar Jain. Sh. Gulshan Kumar Jain had sold CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 3 of 46 his half share in the ancestral property to Smt. Sushma Jain for Rs.1.6 lacs in September, 1993.
7. It is case of the plaintiff that property bearing no. B - 66 was purchased in name of Sh. Gulshan Kumar Jain in 1995 and property no. B - 65 was purchased in the name of Smt. Usha Kanta Jain in 1996 (para 10 of plaint).
8. It is further case of the plaintiff that since there was short fall of money with Sh. Gulshan Kumar Jain, the wife of Sh. Rajeev Kumar Jain (namely Smt. Kiran Jain) had contributed money for purchase of suit properties. Smt. Kiran Jain was working in Nationalized Bank i.e. Oriental Bank of Commerce and hence had available funds.
9. It is further case of the plaintiff as borne out from record that Smt. Jyoti Jain, who is sister of plaintiff had a matrimonial dispute and was allowed to stay in portion of property bearing no. B - 66. After resolution of matrimonial dispute, a property was purchased for Smt. Jyoti Jain (House No. 162, Pocket No. 26, Sector - 24, Rohini, Delhi).
10. It is case of the plaintiff that despite the family arrangement and NOC given by plaintiff in favour of his father, the plaintiff has been deprived of his share in suit properties. Thus, the present suit has been filed. For ease of reference, the prayers in the suit are as under :-
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 4 of 46 PRAYER "a) Partition the suit property bearing no. B -
66, Plot No. 27/1, Sector - 9, Ahinsa Vihar, Rohini, Delhi - 110085 and B - 65, Plot No. 27/1, Sector - 9, Ahinsa Vihar, Rohini, Delhi - 110085 in equal shares of 1/3rd between plaintiffs and the defendants by meets and bound.
b) Pass a permanent injunction of the suit properties in favour of the plaintiffs and against the defendants qua their 1/3rd shares in the suit properties.
c) Pass a permanent injunction restraining the defendant from selling, parting, disposing, dealing or creating any third party interest in the suit properties more particularly qua 1/3rd shares of the plaintiff in the suit properties.
d) Pass an order granting the cost of the suit to be paid to the plaintiffs by the defendants.
e) Pass any other order(s) or direction(s) in favor of the plaintiffs and against the defendant as deemed fit and obliged."
DEFENDANT'S CASE
11. Joint Written Statement has been filed on behalf of Sh. Gulshan Kumar Jain and Sh. Deepak Jain.
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12. Preliminary objections have been taken that suit property is not ancestral. The alleged ancestral property was shown in name of Sh. Salig Ram Jain i.e. father of Sh. Gulshan Kumar Jain. Since, Sh. Gulshan Kumar Jain was alive at the time of filing of Written Statement, during his life time, the children of Sh. Gulshan Kumar Jain cannot stake a share in ancestral property.
13. On merits, it is case of answering defendants Sh. Gulshan Kumar Jain and Sh. Deepak Jain that, it was denied that two separate properties were purchased out of Sale proceeds of ancestral property. The financial contribution allegedly made by the plaintiffs was denied. The family arrangement that separate property would be purchased and given to Smt. Jyoti Jain is also denied. The alleged promise that properties will be purchased in name of defendant no. 1 is also denied. It is further denied that purchase in name of Sh. Gulshan Kumar Jain was as Karta as alleged in the plaint. It is specifically pleaded in reply to Para No. 22 of the plaint on merits that Smt. Usha Kanta Jain (W/o Sh. Gulshan Kumar Jain and Mother of Sh. Rajeev Jain and Sh. Deepak Jain) had executed a Registered Will in favour of Sh. Deepak Jain. Plaintiff no. 1 was given no share by his mother.
14. The oral agreement that plaintiff no. 1 will be given suit properties is specifically denied. Dismissal of suit is prayed for.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 6 of 46 STAND OF SMT. JYOTI (SISTER OF SH. RAJEEV KUMAR JAIN AND SH. DEEPAK JAIN)
15. For ease of reference, order dated 18/09/2018 is reproduced as under :-
"18/09/2018 Present : Sh. Vivek Agarwal, Ld. Counsel for plaintiff.
Sh. Rajdev Sharma, Ld. Counsel for defendant.
One application under Order 22 Rule 3 CPC was moved on behalf of the defendant. He has also stated that all the LRs i.e. plaintiff no. 1, defendant no. 2 are already parties before the Court. One of the LRs namely Ms. Jyoti Jain has already given her No Objection Certificate and the is no need for impleading her as party.
As Ld. Counsel for the plaintiff has raised no objection to the aforesaid application admitting that there is no need to add any party. Accordingly, the application under Order 22 Rule 3 CPC moved on behalf of the defendant stands disposed of.
Put up for arguments on application under Order 12 Rule 6 CPC on 26/11/2018.
(Shivaji Anand) ADJ - 2 (North) : Rohini Courts :
Delhi : 18/09/2018"
16. No separate Written Statement has been filed on behalf of Ms. Jyoti Jain.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 7 of 46 DEATH OF SH. GULSHAN KUMAR JAIN
17. After death of Sh. Gulshan Kumar Jain, application under Order 22 Rule 3 CPC filed on behalf of defendant was disposed off on 18/09/2018. Vide order dated 11/01/2023, an application under Order 1 Rule 10 CPC was allowed. Smt. Jyoti Jain (daughter of Sh. Gulshan Kumar Jain) was impleaded as defendant no. 2. Fresh amended memo of parties dated 15/12/2022 is on record. It is clarified that heir of Late Sh. Gulshan Kumar Jain i.e. Sh. Deepak Jain is party in amended memo of parties dated 15/12/2022. Even in connected case Sh. Deepak Jain is Legal representative of Late Sh. Gulshan Kumar Jain.
18. A legal representative with conflicting interest with that of the deceased cannot be permitted to represent the estate of the deceased. Thus first plaintiff, who sought partition cannot represent Sh. Gulshan Kumar Jain, his father. As Sh. Gulshan Kumar Jain, his father in his Written Statement opposed prayers of first plaintiff. (reliance is placed upon case titled as 'S. K. Beri Vs. Deepak Beri', reported as 2023 SCC OnLine Del 789, decided on 09/02/2023 by Hon'ble Delhi High Court).
REPLICATION
19. Replication to the written statement was filed on 16/05/2017. In essence, averments of the Written Statement were denied. Averments of the plaint were reiterated.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 8 of 46 ISSUES
20. From the pleadings of the parties, following issues were framed by the Court vide order dated 11/07/2022 :-
1. Whether the property bearing no. B-66, Ahinsa Vihar is the ancestral property? OPP.
2. Whether property bearing no. B65 was purchased partly from the contribution of the sale of properties of ancestors and partly from the contribution of plaintiff no. 2? OPP.
3. Whether plaintiffs are entitled to share in the suit properties as claimed? OPP.
4. Whether the suit is bad for nonjoinder of necessary party i.e. daughter of Sh. Gulshan Kumar Jain? OPD.
5. Whether plaintiff is entitled for permanent injunction as prayed for? OPP.
6. Relief.
21. PLAINTIFF EVIDENCE S. No. Name of witness Remarks/documents tendered
1. PW1 - Rajeev Jain PW1 tendered his evidence by way of affidavit Ex. PW1/A. He relied upon the following documents :-
1. The photocopy of application form for membership dated 21/03/1949 in the name of Sh. Salig Ram Jain in Shri Jain Pursharthi Housing Cooperative CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 9 of 46 Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City -
250002 as Mark 'A'.
2. The photocopy of declaration form dated 10/02/1951 by Sh. Salig Ram Jain of Shri Jain Pursharthi Housing Cooperative Society Ltd., as Mark 'B'.
3. The photocopy of letter dated 22/07/1988 by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32 in the name of Smt. Devki Devi as Mark 'C'.
4. The photocopy of letter dated 30/04/1989 by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 in the name of Sh.
Gulshan Kumar Jain and Sh. Satish Kumar Jain as Mark 'D'.
5. The photocopy of letter by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 in the name of Smt. Sushma Jain W/o Sh.
Arun Kumar from Sh. Gulshan Kumar as Mark 'E'.
6. The photocopy of affidavit dated 25/09/1993 of Sh. Gulshan Kumar Jain given to Shri Jain Pursharthi CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 10 of 46 Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 as Mark 'F'.
7. The photocopy of affidavit / No objection dated 20/09/1993 by Sh.
Deepak Kumar Jain given and Sh.
Rajeev Kumar Jain regarding transfer of Plot No. C/32/1 as Mark 'G'.
8. The photocopy of the certified copy of Conveyance Deed dated 09/10/2013 by DDA in the name of Smt. Usha Kanta Jain in respect of B-65, Ahinsa CGHS Ltd., Plot No. 27/1, Sector - 9, Rohini, Delhi - 110085 as Mark 'H'.
9. The photocopy of the certified copy of Conveyance Deed dated 21/06/2013 in the name of Sh. Gulshan Kumar Jain in respect of B-66, Ahinsa CGHS Ltd., Plot No. 27/1, Sector - 9, Rohini, Delhi - 110085 as Mark 'J'.
10. Photocopy of death certificate of Smt. Usha Kanta Jain dated 16/11/2015 as Ex. PW1/1 (OSR).
11. Photocopy of receipt No.11573 dated 20/12/2015 in respect of Flat No. B-66, of Ahinsa Cooperative Group Housing Society, Sector -9, Rohini, Delhi as Ex. PW1/2 (OSR).
12. Photocopy of electricity bills of Flat No. 66-B, Ahinsa Vihar, in the name CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 11 of 46 of Nirmal Kumar Jain dated 09/08/2013 and 28/04/2014 mentioned in the affidavit as Ex. PW1/3 and Ex.
PW1/4 respectively were de-exhibited and marked as Mark 'L' and Mark 'M' as the originals of the same were in another case which is pending in the court of Sh. Rakesh Kumar, Ld. ASCJ, North, Rohini.
13. Photocopy of house tax receipt dated 27/06/2015 in respect of B-66, AhinsaVihar, Sector - 9, Delhi for the year 2015 - 2016 as Ex. PW1/5 (OSR).
14. The Site plan of B-66, Ahinsa Vihar, Sector - 9, Rohini, Delhi as Ex.
PW1/6 & Ex. PW1/7.
15. Photocopy of certified copy of sale deed dated 04/05/2011 in favour Jyoti Jain in respect of entire Second Floor of property bearing No. 162, Pkt. 26, Sector - 24, Rohini, Delhi, registration No.7018, Book No.1, Vol.
No. 4370, Page No. 121 - 129, registered with the office of Sub-
Registrar - VI-C, Sector - 11, Rohini, Delhi which is mentioned as Mark 'K' was exhibited as PW4/1.
2. PW2 - Smt. Kiran Jain She tendered her evidence by way of affidavit Ex. PW2/A. She relied upon the following documents:
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 12 of 46
1. The relevant record of membership No. 1515 in the name of deponent for the period 01/04/1995 to 31/03/1997 as Mark 'A'.
2. The relevant statement of account of PPF Account in the name of deponent i.e. Kiran Jain, ID No. 118255 9 (New ID No. 5119619) for the period 01/04/1996 to 31/03/1998 as Mark 'B'.
3. PW3 - Sh. Satyavir He is a summoned witness. He brought the Singh, Deputy Manager, statement for the period 01/04/1996 to posted at PNB Head 31/03/1998 of PF (PF No. 118255) account Office, PF and Pension of Smt. Kiran Jain. The certified copy of the Department, New Delhi. same is Ex. PW3/1 (running into three pages) (colly.).
4. PW4 - Sh. Sunil Kumar, Being summoned witness, he brought the Data Entry Operator from certified copy of the sale deed dated the office of Sub-Registrar 04/05/2011 in favour of Jyoti Jain in respect
- VI-C, Ambedkar of entire second floor of property bearing Bhawan, Rohini, Delhi. No. 162, Pocket - 26, Sector - 24, Rohini, Delhi registration No. 7018, Book No.1, Vol.
No. 4370, page No.121 - 129. The same is Ex. PW4/1 (running into 10 pages) (colly) (OSR).
He also brought the original register and Form A. Certified copy of Form 'A' is Ex.
PW4/2 (OSR).
5. PW5 - Sh. Rakesh Kumar He is also a summoned witness. On Bhatia, President, Oriental 15/03/2023, He had brought the record of Bank of Commerce, membership No. 1515 in the name of Kiran Cooperative Thrift and Jain. The photocopy of the membership form CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 13 of 46 Credit Society, office at : dated 31/12/1994 is Ex. PW5/1 (OSR). He PNBEA Delhi Union deposed that there is no other record except Office, First Floor, Harsha the Ex. PW5/1 as the same is very old and is Bhawan, E-Block, not available. He has seen the photocopy of Connaught Place, New the loan account of the society for the period Delhi. 1996 from the court file which was marked as Mark 'A' (running into three pages) (colly.). He deposed that the same was procured by Smt. Kiran Jain from Sh.
Mukesh Khanna who sees the affairs of our society as told by Smt. Kiran Jain.
On 24/09/2025, he was again summoned and had brought the summoned record i.e. Confirmation Entry (Point 'X' to 'X1') as Member shown in the registry of society in the name of Smt. Kiran Jain. Same is Ex.
PW5/2 (OSR) and the outstanding amount of Rs. 15,812/- (Point 'Y' to 'Y1') marked as Mark 'PX - 1'.
On Court question, witness had clarified that Mark PX-1 is a photocopy. Original of the same is not available as the same has been submitted to Registrar of Cooperative Society.
6 PW6 - Sh. Trilok Jain He was a summoned witness and had brought the summoned record. He deposed that the documents at Serial No. 1 to 7 which were marked on 15/03/2023 in the examination-in-chief of PW1 are now exhibited.
1. The photocopy of application form for membership dated 21/03/1949 in the name of Sh. Salig Ram Jain in Shri Jain Pursharthi CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 14 of 46 Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002 as Mark 'A' was exhibited as Ex. PW6/1 (OSR).
2. The photocopy of declaration form dated 10/02/1951 by Sh. Salig Ram Jain of Shri Jain Pursharthi Housing Cooperative Society Ltd., as Mark 'B' was exhibited as Ex.
PW6/2 (OSR).
3. The photocopy of letter dated 22/07/1988 by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32 in the name of Smt. Devki Devi as Mark 'C' was exhibited as Ex.
PW6/3 (OSR).
4. The photocopy of letter dated 30/04/1989 by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 in the name of Sh.
Gulshan Kumar Jain and Sh. Satish Kumar Jain as Mark 'D' was exhibited as Ex.
PW6/4 (OSR).
5. The photocopy of letter by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 in the name of Smt. Sushma Jain W/o Sh. Arun Kumar from Sh. Gulshan Kumar as Mark 'E' was exhibited as Ex. PW6/5 (OSR).
6. The photocopy of affidavit dated 25/09/1993 of Sh. Gulshan Kumar Jain CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 15 of 46 given to Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 as Mark 'F' was exhibited as Ex. PW6/6 (OSR).
7. The photocopy of affidavit / No objection dated 20/09/1993 by Sh. Deepak Kumar Jain given and Sh. Rajeev Kumar Jain regarding transfer of Plot No. C/32/1 as Mark 'G' was exhibited as Ex. PW6/7 (OSR).
7. PW7 - Sh. Shubham He was a summoned witness and had Nautiyal, Manager, Punjab brought the summoned record i.e. National Bank (Head Confirmation Letter dated 08/09/1995 Office), PF and Pension reflecting the loan amount of the account no. Department, New Delhi. 118255 in the name of Smt. Kiran Jain for total loan amount of Rs. 11,300/- and installment of Rs. 550/-. Same is Ex. PW7/1 (OSR).
22. Plaintiff evidence was closed on 02/12/2023.
23. DEFENDANT EVIDENCE S. No. Name of witness Remarks/documents tendered
1. DW1 - Sh. Deepak Jain He tendered his Evidence by way of affidavit Ex. DW1/A. He relied upon the following documents:
1. The property bearing No. B-65, Sector - 9, Ahinsa Vihar, Rohini registered in the name of Smt. Usha CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 16 of 46 Kanta Jain W/o Sh. Gulshan Kumar Jain by virtue of documents already Mark 'H' as Ex. DW1/1 (two pages, back to back, colly) (OSR).
2. The property bearing No. B-66, Plot No. 27/1, Sector - 9, Ahinsa Vihar, Rohini registered in the name of Sh.
Gulshan Kumar Jain i.e. defendant no.1 by virtue of documents i.e. Conveyance Deed already Mark 'J' was exhibited as Ex. DW1/2 (one page, back to back, colly.) (OSR).
3. Will executed by Smt. Usha Kanta Jain already Mark 'A' and is registered as Regd. No. 20, Book No. 3, Vol. No. 291, on Page 59 to 61 dated 29/01/2013 was exhibited as Ex.DW1/3 (six pages, colly.) (OSR).
4. Will executed by defendant no.1 Gulshan Kumar Jain already Mark 'B' and was registered as Regd. No. 383, Book No. 3, Vol. No. 384, on Page 163 to 165 dated 08/02/2016 was exhibited as Ex. DW1/4 (three pages, colly., back to back) (OSR).
2. DW2 - Sh. Abhay Kumar He tendered his evidence by way of affidavit Jain Ex.DW2/A. He relied upon the documents Ex. DW1/4 which is signed by Sh. Late Sh.
Gulshan Kumar at point A, point B, point C and point D in his presence and signed by him at point E and point F and signed by Sh.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 17 of 46 Sunil Jain at point G and point H in the office of sub-registrar and signed by all in the presence of each other.
3. DW3 - Sh. Puneet Jain He tendered his evidence by way of affidavit Ex.DW3/A and relied upon the documents already Ex.DW1/3 which is signed by Smt. Usha Kanta Jain at points A, B, C, D and point E in his presence and signed by him at point F and G and signed by Sh. Vijay Kumar Wadhwa at point H and point I in the office of sub-registrar and signed by all in the presence of each other.
24. Defendant evidence was closed on 04/01/2025.
25. Vide order dated 07/07/2025, application under Section 151 CPC filed on behalf of plaintiff for recalling PW3 - Sh. Satyaveer Singh and PW5 - Sh. Rakesh Kumar Bhatia or concerned official from PNB Head Office and PNBEA, Delhi Union was allowed. PW7 - Sh. Shubham Nautiyal was examined on 24/09/2025. Sh. Rakesh Kumar Bhatia was examined, cross-examined and discharged on 24/09/2025. Thereafter, case was posted for final arguments.
26. Court has carefully heard rival submissions. Record has been perused. After careful consideration findings are being returned.
27. ISSUE WISE SUBMISSIONS RAISED AND FINDINGS ARE AS UNDER :-
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 18 of 46 Issue No. 1 is :
"Whether the property bearing no. B-66, Ahinsa Vihar is the ancestral property? OPP."
FIRST ARGUMENT (THAT SUIT PROPERTIES ARE ANCESTRAL)
28. Ld. Counsel for the plaintiff has argued on this issue that Firstly, vide Ex. PW6/1, the grandfather (Sh. Salig Ram Jain) of Sh. Rajeev Kumar Jain had applied for allotment of ancestral property bearing no. C - 32 with Sh. Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002.
29. Secondly; Vide Ex. PW6/3, ancestral property was transferred in name of wife of Late Sh. Salig Ram Jain i.e. in name of Smt. Devki Devi.
30. Thirdly; Vide Ex. PW6/4, this ancestral property was transferred in name of two sons of Sh. Salig Ram Jain namely Sh. Gulshan Kumar Jain and Sh. Satish Jain.
31. It is thus argued that the ancestral property is duly proved and this issue be decided in favour of plaintiff.
32. Per contra, Ld. Counsel for the defendants has argued that at the time of death of Sh. Salig Ram Jain, Sh. Gulshan Kumar Jain and Sh. Satish were alive. The plaintiff no. 1 and Sh. Deepak Jain, who are sons of Sh. Gulshan Kumar Jain, cannot stake a claim the property no. C - 32 CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 19 of 46 as ancestral, as Sh. Gulshan Kumar Jain, their father was still alive at time of death of grandfather of plaintiff no. 1 and Sh. Deepak Jain.
33. Per contra, it is also argued on behalf of defendant that Ex. PW6/X1 (Colly.) contains affidavit of Smt. Devki Devi which mentions date of death of Late Sh. Salig Ram Jain as 21/09/1964). Since death of grandfather of plaintiff no. 1 and Deepak Jain is after coming in force of Hindu Succession Act,1956 the property in hands of Sh. Gulshan Kumar Jain will be separate property of Sh. Gulshan Kumar Jain.
34. Ld. Counsel for the plaintiff relies upon case titled as 'Rohit Chauhan Vs. Surender Singh & Ors.', decided by Hon'ble Supreme Court of India on 15/07/2013 to contend that coparcener from moment of his birth gets share in father's property.
35. Per contra to this submission, Ld. Counsel for the defendant contends that Late Sh. Gulshan Kumar Jain had died on 31/12/2017 i.e. after after commencement of Hindu Succession Act and thus, the cited judgment is distinguishable.
36. Ld. Counsel for plaintiff relies upon case titled as 'Shyam Narayan Prasad Vs. Krishna Prasad', decided by Hon'ble Supreme Court of India on 02/07/2018 to contend that that coparcener from moment of his birth gets share in father's property.
37. Per contra to this submission, Ld. Counsel for the defendant contends that Late Sh. Gulshan Kumar Jain had died on 31/12/2017 i.e. CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 20 of 46 after after commencement of Hindu Succession Act and thus, the cited judgment is distinguishable.
SECOND ARGUMENT (THAT C - 32, MEERUT IS ANCESTRAL PROPERTY)
38. It is further argued by Ld. Counsel for plaintiff that vide joint affidavit Ex. PW6/7 (OSR), Sh. Deepak Kumar Jain and Sh. Rajeev Kumar Jain had stated that property bearing no. C - 32 is ancestral. No Objection was given that father of the deponents may dispose off the same. Vide affidavit Ex. PW6/6, Sh. Gulshan Kumar Jain had sold the property to Smt. Sushma Jain for Rs. 1.6 lacs on 25/09/1993.
39. Per contra, Ld. Counsel for defendant contends that title in the movable property cannot pass by mere admission. Mere mention in affidavit regarding ancestral nature is not sufficient in law to prove nature of property as ancestral. In Para No. 2 of Ex. PW6/7, it is mentioned that, "ancestral property is owned by our father Sh. Gulshan Kumar Jain" which shows property was separate property of father of parties.
ADDITIONAL SUBMISSIONS RAISED ON BEHALF OF DEFENDANTS
40. Ld. Counsel for defendant has argued that Smt. Usha Kanta Jain was owner of flat bearing no. B - 65. She had made a Will which was registered on 29/01/2013 [Ex. DW1/3 (OSR)]. It is argued that same CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 21 of 46 was duly proved by DW3 - Sh. Puneet Jain. As per the Will, the property bearing no. B - 65 was bequeathed to her husband Sh. Gulshan Kumar Jain.
41. Per contra, Ld. Counsel for plaintiff contends that DW3 - Sh. Puneet Jain is son of Smt. Jyoti Jain who is daughter of Late Smt. Usha Kanta Jain. He is an interested witness. To this submission, Ld. Counsel for the defendant contends that Sh. Puneet Jain is not beneficiary of the Will and neither is his mother Smt. Jyoti. During cross-examination, the credibility of Sh. Puneet Jain was not demolished.
42. Ld. Counsel for defendant has argued that Late Sh. Gulshan Kumar Jain was owner of flat bearing no. B - 65 and also flat bearing no. B - 66. He had made a Will which was registered on 08/02/2016 [Ex. DW1/4 (OSR)]. It is argued that same was duly proved by DW2 - Sh. Abhay Jain. As per the Will, the properties bearing nos. B - 65 and B - 66 were bequeathed to his son Sh. Deepak Kumar Jain.
43. Per contra, Ld. Counsel for the plaintiff argued that DW2 - Sh. Abhay Kumar Jain is an interested witness as he had represented the firm M/s Dharam Chand Ladha Mal in a suit on behalf of his mother. In this suit, Sh. Deepak Jain had taken side of Sh. Abhay Kumar Jain, despite being a defendant and thus, it is clear that Sh. Abhay Kumar Jain is an interested witness. To this submission, Ld. Counsel for the defendant contends that Sh. Abhay Kumar Jain is not beneficiary under CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 22 of 46 the Will. During cross-examination, the credibility of Sh. Abhay Kumar Jain was not demolished.
SUBMISSIONS RAISED ON BEHALF OF DEFENDANT QUA PLAINTIFF'S EVIDENCE
44. It is argued by the Ld. Counsel for defendant that PW1 - Sh. Rajeev Kumar Jain is not a reliable witness. It is argued that in his cross- examination dated 10/08/2023, PW1 admitted that Sh. Gulshan Kumar Jain was working as Manager, SBI. Smt. Kiran Jain, Wife of PW1 was a clerk. It is argued that since Sh. Gulshan Kumar Jain was thus in a good position, he was financially better off. Thus, the case set up that he sought for loan/funds from Sh. Rajeev Kumar Jain and Smt. Kiran Jain is improbable. In cross-examination dated 10/08/2023, PW1 stated that no specific money was asked. The exact month of alleged family settlement was not stated. Cross-examination dated 07/10/2023 shows that Sh. Gulshan Kumar Jain was paying the rent of property B - 66, where the family was staying at the relevant period. This shows that Sh. Gulshan Kumar Jain was financially sound as PW1 could not even tell as to what was the rent. In cross-examination dated 02/12/2023, Sh. Rajeev Kumar Jain - PW1 stated that there was gradual change of behaviour of his father towards him. It is further admitted that no HUF existed in the name of her family having my father as Karta to the best of my knowledge. It is further admitted that the ownership documents of properties no. B - 65 & B - 66 were not challenged in any Court of law.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 23 of 46
45. Regarding PW2 - Smt. Kiran Jain, it is argued by Ld. Counsel for defendant that in her cross-examination dated 10/08/2023, it is her contrary stand that she had personally paid contribution. Direct dem,and was made to me by Sh. Gulshan Kumar Jain. (This is contrary to stand of PW1 - Sh. Rajeev Kumar Jain in his cross-examination dated 07/10/2023, wherein he had stated that his wife had lent him money from her personal savings. This money was given to his father by him). PW2 in her cross-examination dated 10/08/2023 stated that oral family settlement of the year 1995 was in presence of her father-in-law, mother-in-law and her husband. Same is contrary from stand of PW1, who had stated in his cross-examination dated 10/08/2023 that the family settlement had taken place in his presence, presence of his brother - Deepak Jain and our parents. Further, PW2 - Smt. Kiran Jain admitted that there is no record pertaining to year 1995 and 1996 in judicial file qua her Bank salary. The capacity to give loan at the relevant time of purchase of B - 65 and B - 66 i.e. in year 1996 and 1995 respectively is not proved.
46. Per contra, Ld. Counsel for plaintiff contends that the transaction regarding demand and supply of funds by Smt. Kiran Jain pertains to the year, 1995. Smt. Kiran Jain - PW2 was cross-examined on 10/08/2023 i.e. after approximately 28 years and thus, slight discrepancies regarding presence of persons during family settlement CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 24 of 46 and whether demand for money was made directly to PW2 - Smt. Kiran Jain or not are bound to occur due to human memory.
FINDING OF THE COURT ON ISSUE NO. 147. Tersely put, the first plaintiff claims suit properties on basis of his share in ancestral properties, oral family arrangement and owing to contribution made for their purchases. Defence is that properties are not ancestral, no contribution, as alleged was made and no oral family arrangement as alleged, took place.
FINDINGS ON FIRST ARGUMENT (THAT SUIT PROPERTIES ARE ANCESTRAL) LAW APPLICABLE TRADITIONAL HINDU LAW I.E. LAW PRIOR TO 1956 (YEAR WHEN HINDU SUCCESSION ACT 1956 WAS PASSED)
48. When a person 'A' inherited property from his father or fathers father's father or father's father's father then the property in his hand was not to be treated as a self-acquired property but was to be treated as an HUF property in which his son, son's son and son's son's son had a right equal to 'A'.
LEGAL POSITION POST PASSING OF THE HINDU SUCCESSION ACT, 1956, GENERAL STATEMENT OF LAW CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 25 of 46
49. This traditional position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same.
TWO EXCEPTIONS TO THE GENERAL STATEMENT OF LAW FIRST EXCEPTION TO THE PROPERTY IN THE HANDS OF A PERSON BEING NOT SELF ACQUIRED
50. Property inherited by such a person say 'A' will be Hindu Undivided Family if Hindu Undivided Family and its properties was existing even prior to the passing of the Hindu Succession Act, 1956. Further, the Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956.
SECOND EXCEPTION TO THE PROPERTY IN THE HANDS OF A PERSON BEING NOT SELF ACQUIRED
51. If after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties.
REQUIREMENT OF PROOF
52. Facts as to how the properties are Hindu Undivided Family properties is required to be stated as a positive statement in the plaint. CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 26 of 46 Uttering a mantra of the properties inherited being 'ancestral' properties and thus the existence of HUF, does not suffice in law.
53. An averment in the plaint as to when Hindu Undivided Family was created i.e. whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch is required.
54. (Reliance for above statement of law above is placed upon case titled as Sunny (Minor) Vs. Raj Singh decided by Hon'ble Delhi High Court in CS(OS) No. 431 of 2006 on 17/11/2015.) APPLYING LAW TO FACTS OF PRESENT CASE
55. A reference to the plaint shows that is nowhere pleaded in the plaint that as to the specific date/period/month/year of creation of an Hindu Undivided Family before 1956 and it's continuance after 1956 or throwing properties into common hotchpotch. Only a self-serving statement has been made of properties of being 'ancestral' of plaintiff no. 1.
56. Onus of important issues cannot be discharged by oral self- serving averments in deposition, An Hindu Undivided Family, as already stated above, could only have been created by showing creation of HUF after 1956 by throwing property/properties in common hotchpotch or an HUF existing prior to 1956 and continuing after 1956. There is no CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 27 of 46 pleading or evidence on these aspects, it cannot be held that any HUF existed or was created prior to 1956 and is continuing after 1956.
57. Submissions raised on behalf of plaintiff that :
Firstly, vide Ex. PW6/1, the grandfather (Sh. Salig Ram Jain) of Sh. Rajeev Kumar Jain had applied for allotment of ancestral property bearing no. C - 32 with Sh. Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002.
Secondly, Vide Ex. PW6/3, ancestral property was transferred in name of wife of Late Sh. Salig Ram Jain i.e. in name of Smt. Devki Devi.
Thirdly, Vide Ex. PW6/4, this ancestral property was transferred in name of two sons of Sh. Salig Ram Jain namely Sh. Gulshan Kumar Jain and Sh. Satish Jain.
58. And further submissions that nature of the ancestral property is duly proved as after transfer of Meerut property funds were utilized to purchase suit properties so ancestral nature of suit properties is proved are without merits. These submissions are rejected as :
59. Perusal of record shows that at the time of death of Sh. Salig Ram Jain, Sh. Gulshan Kumar Jain was alive. The plaintiff no. 1 who is son of Sh. Gulshan Kumar Jain, cannot stake a claim the property no. C CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 28 of 46
- 32 as ancestral, as Sh. Gulshan Kumar Jain, their father was still alive at time of death of grandfather of plaintiff no. 1 and Sh. Deepak Jain.
60. Perusal of record shows that that Ex.PW6/X1 (Colly.) contains affidavit of Smt. Devki Devi mentions date of death of Late Sh. Salig Ram Jain as 21/09/1964). Since death of grandfather of plaintiff no. 1 and Deepak Jain is after coming in force of Hindu Succession Act, 1956 the property in hands of Sh. Gulshan Kumar Jain will be separate property of Sh. Gulshan Kumar Jain. Exceptional circumstances to prove ancestral nature of property are not proved on record.
61. Their is no dispute with the proposition of law laid down in case titled as 'Rohit Chauhan Vs. Surender Singh & Ors.', decided by Hon'ble Supreme Court of India on 15/07/2013 by counsel for plaintiffs to contend that coparcener from moment of his birth gets share in father's property. However for applicability of this case, the Hindu Undivided Family properties must exist. In the facts of present case, the Hindu Undivided Family properties has not been shown to have existed. Further death of Late Sh. Salig Ram Jain is of 21/09/1964 i.e. after commencement of Hindu Succession Act and thus, the cited judgment is distinguishable as Section 8 of Hindu Succession Act 1956 will apply.
62. Their is no dispute with the proposition of law laid down in case titled as case titled as 'Shyam Narayan Prasad Vs. Krishna Prasad', decided by Hon'ble Supreme Court of India on 02/07/2018 to contend that that coparcener from moment of his birth gets share in father's CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 29 of 46 property. However same is inapplicable to facts of present case as death of Late Sh. Salig Ram Jain is of 21/09/1964 i.e. after commencement of Hindu Succession Act and thus, the cited judgment is distinguishable as Section 8 of Hindu Succession Act 1956 will apply. Existence of Hindu Undivided Family properties is not proved
63. Moreover, in case titled as 'Uttam Vs. Saubhag Singh & Ors.', decided by Hon'ble Supreme Court of India on 2 March, 2016 it was held:
"...20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. ......" (emphasis is by this Court) FINDINGS ON SECOND ARGUMENT (THAT C - 32, MEERUT IS ANCESTRAL PROPERTY)
64. Submissions on behalf of plaintiff that vide joint affidavit Ex. PW6/7 (OSR), Sh. Deepak Kumar Jain and Sh. Rajeev Kumar Jain CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 30 of 46 had stated that property bearing no. C - 32 is ancestral. No Objection was given that father of the deponents may dispose off the same. Vide affidavit Ex. PW6/6, Sh. Gulshan Kumar Jain had sold the property to Smt. Sushma Jain for Rs. 1.6 lacs on 25/09/1993 from which funds suit property was purchased so ancestral nature is proved are without merits. These submissions are rejected as:
65. Title in the movable property cannot pass by mere admission (reliance for this statement of law is placed upon case titled as 'Ambika Prasad Thakur Vs. Ram Ekbal Rai' , (AIR 1966 SC 605) ).
66. Mere mention in affidavit regarding ancestral nature is not sufficient in law to prove nature of property as ancestral. In Para No. 2 of Ex. PW6/7, it is mentioned that, "ancestral property is owned by our father Sh. Gulshan Kumar Jain" which shows property was separate property of father of parties.
FINDINGS ON ADDITIONAL SUBMISSIONS RAISED ON BEHALF OF DEFENDANTS
67. According to Section 63 of the Indian Succession Act, 1925, a Will is required to be attested by at least two witnesses. According to Section 68 of the Evidence Act, a document required by law to be attested can be read into evidence only if at least one attesting witness thereof is examined to prove the same. Combined effect of both those CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 31 of 46 provisions is that at least one attesting witness of the Will should have been examined to prove its execution.
68. Perusal of record shows that Smt. Usha Kanta Jain was owner of flat bearing no. B - 65. She had made a Will which was registered on 29/01/2013 [Ex. DW1/3 (OSR)]. Same was duly proved by DW3 - Sh. Puneet Jain. As per the Will, the property bearing no. B - 65 was bequeathed to her husband Sh. Gulshan Kumar Jain.
69. Submissions on behalf of plaintiff that DW3 - Sh. Puneet Jain is son of Smt. Jyoti Jain who is daughter of Late Smt. Usha Kanta Jain. He is an interested witness, so attestation is not proved is without merits. This submission is rejected as :
70. Perusal of record shows that Sh. Puneet Jain is not beneficiary of the Will and neither is his mother Smt. Jyoti. During cross-examination, the credibility of Sh. Puneet Jain was not demolished.
71. Further submission in written arguments filed on 24/01/2026 on behalf of plaintiffs that other attesting witness was not examined so doubt is raised is rejected as :
72. According to Section 68 of the Evidence Act, a document required by law to be attested can be read into evidence only if at least one attesting witness thereof is examined to prove the same. Examination of one attesting witness who has duly proved attestation suffices in law.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 32 of 46
73. Perusal of record shows that Late Sh. Gulshan Kumar Jain was owner of flat bearing no. B - 65(by will of his wife) and also flat bearing no. B - 66 (as admitted in para 6 of plaint itself). He had made a Will which was registered on 08/02/2016 [Ex. DW1/4 (OSR)]. Same was duly proved by DW2 - Sh. Abhay Jain. As per the Will, the properties bearing nos. B - 65 and B - 66 were bequeathed to his son Sh. Deepak Kumar Jain.
74. Submissions on behalf of plaintiff that DW2 - Sh. Abhay Kumar Jain is an interested witness as he had represented the firm M/s Dharam Chand Ladha Mal in a suit on behalf of his mother. In this suit, Sh. Deepak Jain had taken side of Sh. Abhay Kumar Jain, despite being a defendant and thus, it is clear that Sh. Abhay Kumar Jain is an interested witness, so attestation is not proved is without merits. These submissions are rejected as :
75. Perusal of record shows that Sh. Abhay Kumar Jain is not beneficiary under the Will. During cross-examination, the credibility of Sh. Abhay Kumar Jain was not demolished.
76. Further, as stated above examination of one attesting witness who has duly proved attestation suffices in law.
FINDINGS ON SUBMISSIONS RAISED ON BEHALF OF DEFENDANT QUA PLAINTIFF'S EVIDENCE CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 33 of 46 PW1 - SH. RAJEEV KUMAR JAIN
77. Perusal of record shows that PW1 - Sh. Rajeev Kumar Jain is not a reliable witness as :
78. Perusal of record shows that in his cross-examination dated 10/08/2023, PW1 admitted that Sh. Gulshan Kumar Jain was working as Manager, SBI. Smt. Kiran Jain, Wife of PW1 was a clerk. since Sh. Gulshan Kumar Jain was thus in a good position, he was financially better off. Thus the case set up that he sought for loan/funds from Sh. Rajeev Kumar Jain and Kiran Jain is improbable and not in consonance with ordinary conduct of human affairs.
79. Further in cross-examination dated 10/08/2023, PW1 - Sh. Rajeev Kumar Jain stated that no specific money was asked. The exact month of alleged family settlement was not stated.
80. Further cross-examination dated 07/10/2023 shows that Sh. Gulshan Kumar Jain was paying the rent of property B - 66, where the family was staying at the relevant period. This shows that Sh. Gulshan Kumar Jain was financially sound as PW1 could not even tell as to what was the rent.
81. Further in cross-examination dated 02/12/2023, Sh. Rajeev Kumar Jain - PW1 stated that there was gradual change of behavior of his father towards him. It is further admitted that no HUF existed in the name of her family having my father as Karta to the best of my CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 34 of 46 knowledge. It is further admitted that the ownership documents of properties no. B - 65 & B - 66 were not challenged in any Court of law.
PW2 - SMT. KIRAN JAIN
82. Perusal of record shows that in her cross-examination dated 10/08/2023, PW2 - Smt. Kiran jain has taken a contrary stand that she had personally paid contribution. Direct demand was made to her by Sh. Gulshan Kumar Jain. (This is contrary to stand of PW1 Sh. Rajeev Kumar Jain in his cross-examination dated 07/10/2023, wherein he had stated that his wife had lent him money from her personal savings. This money was given to his father by him).
83. Further PW2 - Smt. Kiran jain in her cross-examination dated 10/08/2023 stated that oral family settlement of the year 1995 was in presence of her father-in-law, mother-in-law and her husband. Same is contrary from stand of PW1- Sh. Rajeev Kumar Jain , who had stated in his cross-examination dated 10/08/2023 that the family settlement had taken place in his presence, presence of his brother - Sh. Deepak Jain and our parents.
84. Further, PW2 - Smt. Kiran Jain admitted that there is no record pertaining to year 1995 and 1996 in judicial file qua her Bank salary. The capacity to give loan at the relevant time of purchase of B - 65 and B - 66 i.e. in year 1996 and 1995 respectively is not proved.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 35 of 46
85. Submissions on behalf of plaintiff that the transaction regarding demand and supply of funds by Smt. Kiran Jain pertains to the year, 1995. Smt. Kiran Jain - PW2 was cross-examined on 10/08/2023 i.e. after approximately 28 years and thus, slight discrepancies regarding presence of persons during family settlement and whether demand for money was made directly to PW2 - Smt. Kiran Jain or not? are bound to occur due to human memory, so PW-2 be considered credible are without merits. These submissions are rejected as:
86. Re requirement of funds by Gulshan Kumar Jain is not proved. Gulshan Kumar Jain was paying rent. PW1- Sh. Rajeev Kumar Jain and his wife Kiran were living with him. PW1- Sh. Rajeev Kumar Jain could not tell about rate of rent. Financial capacity of Sh Gulshan is thus proved. Evidence of PW1- Sh. Rajeev Kumar Jain and PW2 - Smt. Kiran Jain is not in consonance with natural human conduct in ordinary circumstances.
87. To sum up : ancestral nature of suit property is not established. PW1- Sh. Rajeev Kumar Jain and PW2 - Smt. Kiran Jain are not reliable.
88. It is not proved that property bearing no. B-66, Ahinsa Vihar is an ancestral property.
89. Issue no. 1 is decided against plaintiffs.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 36 of 46 Issue No. 2 is :
"Whether property bearing no. B65 was purchased partly from the contribution of the sale of properties of ancestors and partly from the contribution of plaintiff no. 2?OPP."
FIRST ARGUMENT
90. It is argued by Ld. Counsel for plaintiff that out of funds from sale of ancestral property; properties no. B - 65 & B - 66 were purchased. Since contribution was also made by the plaintiffs, they are entitled to share in properties no. B - 65 & B - 66.
91. It is further argued by Ld. Counsel for the plaintiff that PW7
- Sh. Shubham Nautiyal has proved that Smt. Kiran Jain, who is wife of plaintiff no. 1 had taken loan of Rs.11,300/-. This amount was contributed towards purchase of suit properties.
92. Per contra, Ld. Counsel for defendant to this argument contends that PW7 - Sh. Shubham Nautiyal at best proved that loan of Rs.11,300/- was taken by Smt. Kiran Jain. Whether Sh. Gulshan Kumar Jain demanded contribution from Smt. Kiran Jain and whether Smt. Kiran Jain transferred the amount to Sh. Gulshan Kumar Jain is not proved.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 37 of 46 SECOND ARGUMENT
93. It is further argued by Ld. Counsel for the plaintiff that PW5
- Sh. Rakesh Kumar Bhatia has proved that Smt. Kiran Jain who is wife of plaintiff no. 1 had taken loan. Outstanding amount against loan is of Rs.15,182/-. This amount was contributed towards purchase of suit properties.
94. Per contra, Ld. Counsel for defendant in reply to this argument points out that PW5 - Sh. Rakesh Kumar Bhatia only brought the Membership form. He admitted in cross-examination that he had not checked about Mark 'A' in his office before bringing present record. Mark 'A' was not summoned. No other record except Ex. PW5/1 was available (same is stated by PW5 - Sh. Rakesh Kumar Bhatia in his examination-in-chief dated 15/03/2023). He had further admitted in his cross-examination that he cannot tell on what date loan was taken by Smt. Kiran Jain from the Society. Further even during re-examination of PW5 - Sh. Rakesh Kumar Bhatia on 24/09/2025, only membership of Smt. Kiran Jain was proved. The loan amount and further as to when the loan was given was not proved.
THIRD ARGUMENT
95. It is further argued by Ld. Counsel for plaintiff that PW1 - Sh. Rajeev Jain has proved the photocopy of application form for membership dated 21/03/1949 in the name of Sh. Salig Ram Jain in Shri CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 38 of 46 Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002 as Mark 'A'. No objection regarding mode of proof was taken. This Mark 'A' document shows that Smt. Kiran Jain had taken loan of Rs.30,000/- from Oriental Bank of Commerce.
96. Per contra, Ld. Counsel for defendant to this argument contends that PW5 could not prove that loan of Rs.30,000/- was given to Smt. Kiran Jain. Further, whether Sh. Gulshan Kumar Jain demanded contribution from Smt. Kiran Jain and whether Smt. Kiran Jain transferred the amount to Sh. Gulshan Kumar Jain is not proved.
97. It is further argued by Ld. Counsel for defendant that PW3 in his cross-examination dated 15/03/2023 admitted that Rs.15,300/- were withdrawn by Smt. Kiran Jain on July, 1997. Same is not relevant for contribution regarding purchase of suit properties. As suit property B
- 65 was purchased in 1996 and the B - 66 was purchased in 1995 (as averred in Para No. 10 of the plaint by the plaintiffs). Since withdrawal of Rs.15,300/- in July, 1997 is after the suit properties were already purchased, it is not proved that withdrawal was for the purposes of contribution.
FINDING OF THE COURT ON ISSUE NO. 2FINDINGS ON FIRST ARGUMENT CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 39 of 46
98. Submissions on behalf of plaintiff that out of funds from sale of ancestral property; properties no. B - 65 & B - 66 were purchased. Submissions that since contribution was also made by the plaintiffs, they are entitled to share in properties no. B - 65 & B - 66 are without merits. These submissions are rejected for reasons below:
99. Additionally further submissions on behalf of plaintiff that PW7 - Sh. Shubham Nautiyal has proved that Smt. Kiran Jain, who is wife of plaintiff no. 1 had taken loan of Rs.11,300/-. This amount was contributed towards purchase of suit properties. These submissions are also without merits. These submissions are also rejected for reasons below :
100. Perusal of record shows that that PW7 - Sh. Shubham Nautiyal at best proved that loan of Rs.11,300/- was taken by Smt. Kiran Jain. Whether Sh. Gulshan Kumar Jain demanded contribution from Smt. Kiran Jain and whether Smt. Kiran Jain transferred the amount to Sh. Gulshan Kumar Jain on his asking is not proved.
FINDINGS ON SECOND ARGUMENT
101. Submissions on behalf of plaintiff further are that PW5 - Sh. Rakesh Kumar Bhatia has proved that Smt. Kiran Jain who is wife of plaintiff no. 1 had taken loan. Outstanding amount against loan is of Rs. 15,182/-. This amount was contributed towards purchase of suit CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 40 of 46 properties. These submissions are without merits. These submissions are rejected as :
102. Perusal of record shows that PW5 - Sh. Rakesh Kumar Bhatia only brought the Membership form. He admitted in cross- examination that he had not checked about Mark 'A' in his office before bringing present record. Mark 'A' was not summoned. No other record except Ex. PW5/1 was available (same is stated by PW5 - Sh. Rakesh Kumar Bhatia in his examination-in-chief dated 15/03/2023). He had further admitted in his cross-examination that he cannot tell on what date loan was taken by Smt. Kiran Jain from the Society. Further even during re-examination of PW5 - Sh. Rakesh Kumar Bhatia on 24/09/2025, only membership of Smt. Kiran Jain was proved. The loan amount and further as to when the loan was given was not proved.
FINDINGS ON THIRD ARGUMENT
103. Submissions on behalf of plaintiff that PW1 - Sh. Rajeev Jain has proved the photocopy of application form for membership dated 21/03/1949 in the name of Sh. Salig Ram Jain in Shri Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002 as Mark 'A'. No objection regarding mode of proof was taken. This Mark 'A' document shows that Smt. Kiran Jain had taken loan of Rs.30,000/- from Oriental Bank of Commerce and hence contribution by Smt. Kiran stands proved, are without merits. These submissions are rejected as :
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 41 of 46
104. Perusal of record shows that PW5 Sh. Rakesh Kumar Bhatia could not prove that loan of Rs.30,000/- was given to Smt. Kiran Jain. Further, whether Sh. Gulshan Kumar Jain demanded contribution from Smt. Kiran Jain and whether Smt. Kiran Jain transferred the amount to Sh. Gulshan Kumar Jain is not proved.
105. Perusal of record shows that PW3 - Sh. Satyavir Singh, Deputy Manager, posted at PNB Head Office, PF and Pension Department, New Delhi in his cross-examination dated 15/03/2023 admitted that Rs.15,300/- were withdrawn by Smt. Kiran Jain on July, 1997. Same is not relevant for contribution regarding purchase of suit properties. As property B - 65 was purchased in 1996 and the B - 66 was purchased in 1995 (as averred in Para No. 10 of the plaint by the plaintiffs). Since withdrawal of Rs.15,300/- in July, 1997 is after the suit properties were already purchased, it is not proved that withdrawal was for the purposes of contribution towards purchase of suit properties.
106. To sum up : plaintiffs did not prove that property bearing no. B65 was purchased partly from the contribution of the sale of properties of ancestors and partly from the contribution of plaintiff no. 2
107. Issue no. 2 is decided against plaintiffs.
Issue No. 3 is :
"Whether plaintiffs are entitled to share in the suit properties as claimed? OPP."
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 42 of 46
108. Ld. Counsel for the parties had adopted their arguments raised on Issues No. 1 and 2 for the purposes of this issue.
FINDING OF THE COURT ON ISSUE NO. 3109. In view of findings on issues no. 1 and 2 above plaintiffs are not entitled to share in the suit properties as claimed.
110. Issue no. 3 is decided against plaintiffs.
Issue No. 4 is :
"Whether the suit is bad for nonjoinder of necessary party i.e. daughter of Sh. Gulshan Kumar Jain? OPD."
111. It is argued by Ld. Counsel for defendant that sister of Sh. Rajeev Kumar Jai and Sh. Deepak Jain namely Smt. Jyoti Jain was not impleaded initially and thus, the suit is bad for non-joinder of necessary party.
112. Per contra, Ld. Counsel for plaintiff points out that vide order dated 11/01/2023, Smt. Jyoti Jain was impleaded as defendant no. 2, hence, the objection raised on behalf of defendants pales into insignificance.
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113. It is further argued by Ld. Counsel for plaintiff that there is no relinquishment by Smt. Jyoti Jain in favour of Sh. Deepak Jain. To this submission, Ld. Counsel for the defendant points out that he is claiming right in the suit property on the basis of Will. Smt. Jyoti did not contest the Will, so rights of Sh. Deepak Jain are not affected. It is further submitted that need for Relinquishment Deed would have arisen, in case Smt. Jyoti had a share. Since, Will was in favour of Sh. Deepak Jain, the question of relinquishment of share does not arise.
FINDING OF THE COURT ON ISSUE NO. 4114. Submissions on behalf of defendant that sister of Sh. Rajeev Kumar Jai and Sh. Deepak Jain namely Smt. Jyoti Jain was not impleaded initially and thus, the suit is bad for non-joinder of necessary party pales into insignificance as:
115. Perusal of record shows that vide order dated 11/01/2023, Smt. Jyoti Jain was impleaded as defendant no. 2, hence, the objection raised on behalf of defendants pales into insignificance.
116. Further submissions on behalf of plaintiff that there is no relinquishment by Smt. Jyoti Jain in favour of Sh. Deepak Jain, so suit deserves to succeed is without merits. This submission is rejected as :
117. Perusal of record shows that defendant claims right in the suit property on the basis of two Wills. Firstly, Smt. Usha Kanta Jain was CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 44 of 46 owner of flat bearing no. B - 65. She had made a Will which was registered on 29/01/2013 [Ex. DW1/3 (OSR)]. Secondly, Sh. Gulshan Kumar Jain was owner of flat bearing no. B - 65 and also flat bearing no. B - 66. He had made a Will which was registered on 08/02/2016 [Ex. DW1/4 (OSR)]. Smt. Jyoti did not contest the Will, so rights of Sh. Deepak Jain are not affected. Need for Relinquishment Deed would have arisen, in case Smt. Jyoti had a share. Since, Will was in favour of Sh. Deepak Jain, the question of relinquishment of share does not arise.
118. Issue no. 3 is decided against defendants.
Issue No. 5 is :
"Whether plaintiff is entitled for permanent injunction as prayed for? OPP."
119. Ld. Counsel for the parties adopted their arguments raised on Issues No. 1 and 2 for the purposes of this issue.
FINDING OF THE COURT ON ISSUE NO. 5120. In view of findings on issues no. 1 and 2 above plaintiffs are not entitled to permanent injunction as prayed for
121. Issue no. 5 is decided against plaintiffs.
CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 45 of 46 RELIEF
122. In view of the findings on issues above the suit of the plaintiff is dismissed with costs.
123. Decree sheet be prepared accordingly by reader as per law. File be consigned to Record-Room. Digitally signed VIKRAM by VIKRAM BALI BALI Date: 2026.01.29 16:01:43 +0530 Announced in the open Court today (Vikram Bali) on 29th January, 2026 District Judge-02, North, Rohini Court Complex, Rohini, Delhi CS DJ No. 57718/16 Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors. Page No. 46 of 46