Delhi District Court
Satya Prakash Gupta vs Lala Kanshi Ram Gupta on 24 November, 2018
IN THE COURT OF SHRI RAJ KUMAR: PRESIDING OFFICER:
MOTOR ACCIDENT CLAIMS TRIBUNAL, WEST(01) DELHI
Suit No. 608605/16
Satya Prakash Gupta
S/o Sh. Lala Kanshi Ram Gupta
R/o 25/41, Punjabi Bagh(West)
New Delhi - 110 026 ........... Plaintiff
VERSUS
1. Lala Kanshi Ram Gupta
S/o Late Sh. Lala Badloo Ram
Through his LR's
(a) Raghbar Dayal Garg
s/o Late Lala Kanshi Ram
R/o 25/41, Punjabi Bagh, New Delhi
(b) Mrs. Shanti Devi
W/o Late Sh. Krishan Goel
C/o Kumar Floor Mills
A57, New Anaz Mandi,
Nahafgarh, Delhi
(c ) Mrs. Resham Devi
w/o Lala Gang Bishan Goel
C/o Ramanand Sursh Kumar
Samalkha, Mandi, District Panipat
Haryana
(d) Sh. Vikas Gupta
s/o Sh. Jagdish Rai
Suit No. 608605/16 Page No. 1/40
R/o 25/41, Punjabi Bagh,
New Delhi
(e) Sh. Manish Gupta
S/o Sh. Ved Prakash
R/o 25/41, Punjabi Bagh,
New Delhi
(f) Sh. Gauri Shanker
S/o Sh. Om Prakash
R/o 25/41, Punjabi Bagh,
New Delhi
2. Sh. Jagdish Lal Agarwal
S/o Late Sh. Lala Kanshi Ram Gupta
For himself as well as LR of deceased defendant no.1
R/o 25/41, Punjabi Bagh West, New Delhi
3. Sh. Om Prakash Gupta
S/o Sh. Lala Kanshi Ram Gupta
For himself as well as LR of deceased defendant no.1
R/o BC 213, Phase II, Mangol Puri Indl. Area,
New Delhi
4. Sh. Ved Prakash Gupta,
S/o Late Lala Kanshi Ram Gupta
For himself as well as LR of deceased defendant no.1
R/o 25/41, Punjabi Bagh West, New Delhi
5. Sh. Ramesh Chand Gupta
S/o Late Sh. Ram Chander Gupta
R/o 8A, Kamla Nagar, Delhi
6. Sh. Harish Chander Gupta
S/o Late Sh. Ram Chander Gupta
Suit No. 608605/16 Page No. 2/40
R/o 8A, Kamla Nagar, Delhi
7. Sh. Kishan Chand Gupta
S/o Late Sh. Ram Chander Gupta
R/o 8A, Kamla Nagar, Delhi
8. Sh. Chattarbhuj Garg,
S/o Late Sh. Badloo Ram
R/o B3/11, Rajasthali Apartments,
Near Madhuban Chowk,
Pitam Pura, Delhi - 34
9. Sh. Rattan Lal Garg,
S/o Late Sh. Badloo Ram,
R/o R7, Nehru Place Enclave,
New Delhi - 110 019 ......... Defendants
Date of institution of the suit : 15.05.1997
Date on which order was reserved : 25.09.2018
Date of decision : 24.11.2018
SUIT FOR PURPOSE OF PARTITION AND RENDITION OF
ACCOUNTS
JUDGMENT
1 The facts in brief, necessary for the disposal of the present suit filed by the plaintiff as disclosed in the plaint are that Sh. Badloo Ram had four sons viz. Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chhatarbhuj Garg and Sh. Rattan Lal Garg. It has been further stated that the plaintiff and the defendants no.2 to 4 are the sons of the defendant no.1, the defendants no.5 to 9 are the legal heirs of late Sh. Ram Chander Gupta S/o Late Sh. Badloo Ram and the defendants no. 8 Suit No. 608605/16 Page No. 3/40 and 9 are the sons of Lala Late Sh. Badloo Ram and brother of the defendant no.1.
1.1 It has been further stated that the defendant no.1, father of the plaintiff along with his brothers and grandfather of the plaintiff Late Lala Badloo Ram constituted a bigger Hindu Undivided Family and purchased and owned various properties in Delhi, UP and Haryana. It has been further stated that the details of the properties then owned by the Bigger HUF are as under: PROPERTIES IN DELHI
a) Three houses in Prem Nagar, Delhi
b) Eight plots in Shakti Nagar, Delhi.
c) Four plots at Jawahar Nagar, New Delhi. d) Two shops at Narela Mandi, Delhi. e) One plot no. 8A, Kamla Nagar, Delhi. PROPERTIES IN HARYANA a) One shop at Sampla(Haryana) b) One shop at Sonepat. c) Agricultural land at Village Rohat. d) Agricultural land at Village Fatehpur e) Agricultural land at Kwali. PROPERTIES AT UP a) Two shops at Titehru Mandi. 1.2 It has been further stated that the bigger HUF was also
carrying on traditional business before the expiry of late Lala Badloo Ram in the year 1945 namely of money lending, sale & purchase of food grains, transport and that of brick klin also.
Suit No. 608605/16 Page No. 4/401.3 It has been further stated that during the life time of Late Sh. Badloo Ram, grandfather of the plaintiff, there was some mutual partition carried out by Late Sh. Badloo Ram and his four sons namely Lala Kanshi Ram, Late Sh. Ram Chander, Sh. Chattarbhuj Garg and Sh. Rattan Lal Garg according to which they were separated. It has been further stated that the said partition was also the subject matter of suit bearing no. 57/43, which was decided by the court of Ld. Sr. Sub Judge, Rohtak on 14.12.1943.
1.4 It has been further stated that in the year 1948, all the four sons of Late Lala Badloo Ram, each constituted their own smaller HUF. It has been further stated that four smaller HUF were constituted and each son of Late Lala Badloo Ram became Karta of the smaller HUF. It has been further stated that the defendant no.1, Lala Kanshi Ram became Karta of the smaller HUF, which comprised of Lala Kanshi Ram and all his five sons namely Sh. Raghubar Dayal Garg, Sh. Om Prakash Gupta, Sh. Satya Prakash Gupta, Sh. Jagdish Rai Agarwal and Sh. Ved Prakash Gupta. It has been further stated that likewise, all other sons of Late Lala Badloo Ram became the karta of their own smaller HUFs. 1.5 It has been further stated that in the year 1948, all the four HUFs joined together and started a business in partnership in the name and style of Jai Bharat Trading Company at Naya Bazar, Delhi. 6. 1.6 It has been further stated that the plaintiff became a member of the smaller HUF of which, the defendant no.1 was the karta along with his brothers and he continued to be so until 1979 when the business of M/s Jai Bharat Trading Company was closed due to disputes. It has been further stated that during the period , when M/s Jai Bharat Trading Suit No. 608605/16 Page No. 5/40 Company was working, three houses at Prem Nagar were sold in the year 195055, 8 plots at Shakti Nagar were sold in the year 195657 and 1965, the shops at Sonepat and Sampla (Haryana) were sold in 1958, the shop at Narela Mandi was sold in 1949, two shops at Tetahari Mandi were sold in the year 196668 and the agricultural land in Haryana was sold in the year 194950.
1.7 It has been further stated that all the sale proceeds of these properties were invested in the business being carried jointly in the name of M/s Jai Bharat Trading Company and the business of the said company was a joint family business of all the family members mentioned herein above including the plaintiff.
1.8 It has been further stated that the property bearing no. 25/41, Punjabi Bagh, New Delhi measuring 2209.2 sq. yards was purchased in the year 1964 for a sum of Rs. 28000/ from the joint assets of the plaintiff and the defendants no.1 to 4 and Sh. R. Dayal. It has been further stated that however, the sale deed of the said property was got executed in the name of the defendant no.1, 2 and 4. It has been further stated that the said property was purchased out of the funds of M/s Jai Bharat Trading Company but the names of the defendants no.1,2 and 4 were only shown in the sale deed.
1.9 It has been further stated that another property bearing no. N77, Panchsheel Park, New Delhi measuring 800 sq yards was purchased in the year 1966 out of the funds of M/s Jai Bharat Trading Company. It has been further stated that the said property was also the HUF property of which the plaintiff along with other brothers were the members and the defendant no.1 was the karta, even though the sale deed Suit No. 608605/16 Page No. 6/40 was executed in the name of the defendant no.1. It has been further stated that M/s Jai Bharat Trading company was only in possession of the properties namely M/s Jai Bharat Trading Company, Naya Bazar Delhi ; 4018, Naya Bazar, Delhi; 4028, Naya Bazar, Delhi; 8A, Kamla Nagar, Delhi; properties of M/s Jai Bharat Trading Company lying at Mori Gate, Delhi and the goodwill and other assets of M/s Jai Bharat Trading Company.
1.10 It has been further stated that in addition to the abovesaid properties, the abovesaid firm was maintaining the accounts, which have not been settled so far. It has been further stated that the money of the said firm is lying in the bank accounts with Oriental Bank of Commerce, Naya Bazar and with Punjab National Bank, Kamla Nagar, Delhi. It has been further stated that the firm had also been receiving the rent from various dealings in the properties 4018 and 4028, Naya Bazar, Delhi and 8A, Kamla Nagar, Delhi which was being credited in the account of the said firm.
1.11 It has been further stated that the plaintiff is entitled to 1/6th share in the properties situated at Punjabi Bagh and Panchsheel Park together with the defendants no.1 to 4 and Sh. R. Dayal. The plaintiff has also claimed 1/24th share in the other properties and assets of M/s Jai Bharat Trading Company. The plaintiff has alleged that despite the repeated demands by the plaintiff, the defendant no.1 failed to carry out any partition and to render the accounts.
1.12 It has been further stated that the defendants no.2 and 4 have already filed a suit for mandatory injunction bearing suit no. 1230/93 which is being contested by the plaintiff and which is pending Suit No. 608605/16 Page No. 7/40 disposal.
1.13 It has been further stated that one more suit has been filed by Sh. R. Dayal against the defendants no.1,2 and 4 for Permanent Injunction which is pending disposal. The plaintiff has alleged that on 25.04.1997, the defendants no.2 and 4 and their labourers etc. demolished the garage of the property situated at Punjabi Bagh wherein the plaintiff was sleeping. It has been further alleged that the defendants no.2 to 4 did this with a view to erect a dividing wall in order to forcibly occupy the vacant portion of the said property.
2. On the basis of the abovesaid allegations as contained in the plaint, the plaintiff has prayed for a preliminary decree for partition holding that the plaintiff is entitled to 1/6th share in the properties of smaller HUF and 1/24 th share in the properties of the larger HUF ie of M/s Jai Bharat Trading company and enlisted in schedule A. It has been further prayed that it be also held that the plaintiff is entitled for partition by meets and bounds. It has been further prayed that the defendant no.1 and 5 to 9 be also directed to render the accounts of the rent being received by them. The plaintiff has also prayed for the costs of the suit.
3. Written statement has been jointly filed on record by the defendant no.1 to 4 stating therein that the suit of the plaintiff is bad for nonjoinder of Sh. Raghubar Dayal Garg, who is also one of the real brother of the plaintiff namely Sh. Satya Prakash Gupta. It has been further stated that the plaintiff has concealed the material facts to the effect that Sh. Raghubar Dayal Garg has already filed a suit for permanent injunction against the defendants no.1,2 and 4 claiming 1/6th share in the joint Hindu Family Property bearing no. 25/41, Punjabi Suit No. 608605/16 Page No. 8/40 Bagh, New Delhi and N77, Panchsheel Park, New Delhi. It has been further stated that the interim application filed by the plaintiff in that suit has already been dismissed by the court of Sh. Narender Kumar, the then, Ld. Civil Judge, Delhi on 06.03.1997. It has been further stated that the suit of the plaintiff is also barred by the law of limitation. 3.1 On merits, the defendants no.1 to 4 have not denied the relationship of the parties and the pedigree table, which have been mentioned by the plaintiff in Para no.1 and 2 of the plaint. The constitution of the bigger HUF as mentioned by the plaintiff in Para no.3 of the plaint has also not been denied but it has been denied that the bigger HUF purchased the properties in Delhi, Haryana and in UP, which have been mentioned by the plaintiff in Para no.3 of the plaint. 3.2 It has been further stated that there was only one house in Prem Nagar, Delhi in the name of the defendant no.1 and his father Late Lala Badloo Ram and when the bigger HUF came to an end in the year 1943, then, the said house came to the share of Sh. Rattan Lal Garg(defendant no.10). It has been further stated that there was only one shop at Narela Mandi, which came to the share of the defendant no.1 in 1942 and the defendant no.1 sold the said shop in the year 1949. It has been further stated that plot no. 8A, Kamla Nagar, Delhi was in the name of Badloo Ram Kanshi Ram and the said plot has been constructed and the same is under the tenancy of different tenants such as Punjab National Bank, Weight and Measure Department of the Government of Delhi. It has been further stated that the last floor of the said house is occupied by the defendants no. 5 to 7. It has been further stated that one shop at Sampla(Haryana) was purchased by the defendant no.1 in his Suit No. 608605/16 Page No. 9/40 personal name and it was sold in the year 1950. It has been further stated that the shop at Sonepat fell to the share of the defendant no.8 in the year 1943.
3.3 It has been admitted that the bigger HUF came to an end in the year 1943 in accordance with the ruling in suit no. 57/43 decided by the court of Ld. Sr. Sub Judge, Rohtak on 14.12.1943. It has been further stated that Lala Badloo Ram died in the year 1945. 3.4 It has not been denied that the defendant no.1 constituted his HUF along with his sons but the constitution of the HUFs by late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Ratan Lal Garg has been denied for want of knowledge.
3.5 The defendants no. 1 to 4 have not denied that the defendant no.1 became the karta of the smaller HUF along with his five sons but they have taken the stand that Sh. Raghubar Gayal Garg and the plaintiff took their shares on 31.07.1956 and separated from HUF Family. It has been further stated that M/s Jai Bharat Trading Company was started as a partnership concern by the defendant no.1, defendant no.8, defendant no.9 and father of the defendants no.5 to 7 in their individual and personal capacity in the year 1949 and not in the year 1948. It has been further stated that the plaintiff was a minor in the year 1949 as his Date of Birth is 1938.
3.6 It has been denied that the business of M/s Jai Bharat Trading Company was being run by the HUF of four brothers namely defendant no.1, defendant no.8, defendant no.9 and father of the defendants no. 5 to 7. It has not been denied that the business of M/s Jai Bharat Trading Company was closed in the year 1979 due to the disputes.
Suit No. 608605/16 Page No. 10/40It has also not been denied that the accounts of the said firm have not been settled till date but the defendants no. 1 to 4 have taken the stand that the dispute is in between the defendant no.1, defendant no.8, defendant no.9 and the defendants no.5 to 7.
3.7 It has been denied that M/s Jai Bharat Trading Company sold three houses at Prem Nagar and eight plots at Shakti Nagar as alleged in the plaint. It has been further stated that the shops at Sampla and Sonepat were never owned by Jai Bharat Trading Company. 3.8 It has been further stated that the plaintiff has already taken his share on 31.07.1956 by executing the release deed in favour of the defendant no.1. It has not been denied that the property bearing no.
25./41 Punjabi Bagh Delhi was purchased in the year 1964 for a sum of Rs. 28000/ but it has been stated that the said property was purchased exclusively from the money of the defendants no.1,2 and 4 and that is why, the sale deed has been got executed in their names only. It has been denied that the said property was purchased out of the funds of M/s Jai Bharat Trading Company. It has been further stated that property no. N 77, Panchsheel Park, New Delhi was purchased by the defendant no.1 and he started paying the installments for the said property in the year 1961. It has been further stated that the sale deed/release deed of the said property was executed in the year 1966 by the DDA through Panchsheel Cooperative Society. It has been further stated that shop no. 4018, Naya Bazar Delhi is a tenanted shop taken on rent by M/s Jai Bharat Trading Company and the same is lying locked. It has been further stated that shop no. 4028, Naya Bazar, Delhi is in possession of the defendant no.8 and the defendants no.5 to 7. The defendant no. 1 to 4 Suit No. 608605/16 Page No. 11/40 have taken a categorical stand that the plaintiff is not entitled for any share in the properties and assets belonging to M/s Jai Bharat Trading company because the properties of M/s Jai Bharat Trading Company belong to the defendant no.1, defendant no.8, defendant no.9 and the defendants no.5 to 7 in equal shares. Rest of the contents of the plaint have been denied and it has been prayed that the suit of the plaintiff be dismissed with heavy costs.
3.9 Written statement has also been filed by the defendants No. 5 to 7 but the stand of the said defendants is also the same as is the stand of the defendants No. 1 to 4. The defendants No. 5 to 7 have stated that they have been unnecessarily dragged into the present litigation and the claim is essentially in between the plaintiff and his father (defendant No.1) and his brothers (defendants No.2 to 4). It has been further stated that the plaintiff had ceased to be a member of the smaller HUF comprising his father, defendant No.1 and his brothers in view of the fact that the plaintiff had executed a release deed dated 31.07.1956. 3.10 It has been admitted that the larger HUF came to an end in the year 1943. It has been further stated that the property No. 8A, Kamla Nagar, Delhi is the property belonging to the answering defendants and the same has ceased to be the property of the larger HUF. It has been further stated that the said property had fallen to the share of Late Sh. Ram Chander Gupta who decided to carry out formal partition of all the properties by appointing two Arbitrators namely Sh. Amin Lal and Sh. C. B. Gupta. It has been further stated that the properties situated at Punjabi Bagh and Panchsheel Park were assigned to the defendant no.1. It has been further stated that the plaintiff has no claim against the Suit No. 608605/16 Page No. 12/40 answering defendants.
3.11 It has been denied that the four smaller HUFs became the partners of the firm known as M/s Jai Bharat Trading Company, Naya Bazar, New Delhi. It has been further stated that the said firm was constituted by a partnership deed executed by the four brothers namely Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. It has been further stated that the business of the partnership under the deed of partnership started in the year 1949 and not in the year 1948. It has been prayed that suit of the plaintiff be dismissed with costs.
3.12 Written statement has also been filed by the defendant No.9 Sh. Rattan Lal Garg but the stand of the defendant No.9 is also the same as is the stand of the rest of the defendants. The defendant No.9 has also stated that the plaintiff has no right, title or interest or share in any of the property which was owned by the erstwhile HUF consisting of Sh. Badloo Ram and his sons which felt to the share of other members of the HUF.
3.13 It has been further stated by the defendant No.9 that M/s Jai Bharat Trading Company is an independent partnership which came into existence in pursuance to the partnership deed dated 03.03.1949. It has been denied that the business of the said firm was HUF business. It has been further stated that the partnership firm of M/s Jai Bharat Trading Company was created in pursuance to an agreement between defendant No.1 Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg, Sh. R. L. Garg, defendants No. 8 & 9 and one Sh. Rati Ram who retired from the partnership business on 31.03.1950. It has been further stated that the Suit No. 608605/16 Page No. 13/40 suit of the plaintiff is barred by the law of limitation. 3.14 It has been further stated that in the partition which took place in the year 1943, the defendant No.1 was given Rs.12858/ on account of cash, other deposits, money lending outstanding, one shop at Narela Mandi, one house and a plot of land at Rohtak as his share. It has been denied that in the year 1948, four HUFs joined together and started the business under the name and style of M/s Jai Bharat Trading Company. It has been further stated that the plaintiff or any of his brothers does not have any right, title or interest in the assets of the said firm. It has been prayed that the present suit be dismissed with punitive costs.
4 Separate replications to the separate written statements have been filed on record by the plaintiff denying the contents of the written statements and reiterating and reaffirming the stand as taken by the plaintiff in the plaint.
5 Vide orders dated 28.02.2010, the following issues were framed in the present suit:
1. Whether the property No. 25/1, Punjabi Bagh (West) and property No. N77, Panchshila Park, New Delhi were the properties of smaller HUF of Lala Kanshi Ram Gupta, as alleged in para 12 of the plaint; if so, its effect. OPP.
2. Whether M/s Jai Bharat Trading Company owned and possessed the property as mentioned in para 13 of the plaint; if so, its effect. OPP:
3. Whether the plaintiff is in joint possession of property; if not, whether the suit is properly valued for purposes of Court Fees and jurisdiction. OPP;
Suit No. 608605/16 Page No. 14/404. Whether the plaintiff has 1/6th share in the property shown in ScheduleA to the plaint. OPP;
5. Whether the suit is barred by time. OPD;
6. Whether the plaintiff is entitled to the relief of partition. OPP;
7. Relief.
EVIDENCE :
6. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record his evidence by way of affidavit as Ex. PW1/A and the list of the properties liable for the partition as Ex.PW1/1.
7. PW1 ie the plaintiff, in the crossexamination states that it is in his knowledge that the property of Panchseel Park as mentioned at Sr. no. 2 of Ex.PW1/1 has been taken over by the DDA. PW1 has admitted it to be correct that the said property situated at Panchseel Park cannot be partitioned. PW1 further states that he does not know whether he had filed the appeal against the judgment and decree dated 26.09.2013 passed by the court of Sh. Vishal Singh, the then Ld. Civil Judge in the suit bearing no. 294/13/93 titled as Kanshi Ram Gupta and others Vs. Raghubar Dayal and Another. PW1 has further states that Ex.PW1/D1 bears his signatures at point A, which is the appeal U/s 96 before the court of Ld. Senior Civil Judge.
8. PW1 further states that he has not challenged any release deed in the Hon'ble High Court in the suit for declaration. During the course of the crossexamination of PW1, the copy of the judgment dated Suit No. 608605/16 Page No. 15/40 24.11.2011 passed by the Hon'ble High Court of Delhi in RFA(OS) no.
23/2010 titled as Satya Prakash and another Vs. Vikas Gupta and others has been marked as mark X. Certified copy of his statement recorded in the suit titled as Kanshi Ram Vs. Raghubar Dayal has been exhibited as Ex.PW1/D3 as PW1 has admitted his signatures at point B on his statement.
9. PW1 further states that he cannot tell in which properties, he has claimed the partitioned but PW1 states that he has detailed the same is Ex.PW1/1.
10. PW1 further states that he has not exhibited any document to show the HUF properties of Late Badlu Ram. PW1 further states that he does not remember whether Late Badlu Ram had distributed all the properties amongst his sons during his life time. PW1 further states that HUF of Late Sh. Badlu Ram was dissolved after his death.
11. PW1 further states that the partners of Jai Bharat Trading Company were four in number ie Late Sh. Kanshi Ram, Late Sh. Ram Chander, Late Sh. Chaturbhuj and Late Sh. Rattan Lal Garg. PW1 further states that he does not know whether one Sh. Rati Ram was also the partner of this firm. PW1, in response to the question as to whether he had placed on record any document to show that Jai Bharat Trading was an HUF business states that he could not see because he was not having spectacles on that day.
12. PW1 further states that he does not know if there was any HUF of Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. PW1 further states that he does not know as to whether there was any HUF of Sh. Kanshi Ram or that he was the karta thereof. PW1 Suit No. 608605/16 Page No. 16/40 further states that the partnership business of Jai Bharat Trading Company continued in the year 1979.
13. PW1 further states that he did not take any share in the properties to the tune of Rs. 14,000/ in the year 1956. PW1 further states that he did not execute any Release Deed.
14. PW1 further states that he has not challenged the sale deed with respect to Punjabi Bagh property.
15. PW1 further states that the properties possessed by Jai Bharat Trading Company are a plot at Kamla Nagar, a plot at Okhla, a plot at Badarpur and a plot at Shahdara. PW1 further states that he does not remember the rest of the properties of Jai Bharat Trading Company. PW1 further states that he does not have any document to show the existence of these properties. PW1 further states that he has claimed 1/20th share in the assets of Jai Bharat Trading Company on the basis of his own imagination.
16. PW1 further states that he does not remember whether he has challenged the Will before the Hon'ble High Court of Delhi.
17. The plaintiff had further examined Sh. Raghubar Dayal Garg as PW2 and this witness, in his evidence by way of affidavit Ex.PW2/A on record has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has placed on record the certified copy of the plaint in Suit no. 99/1981 as Ex.PW2/1, the certified copy of the judgment dated 22.08.1996 as Ex.PW2/2, the certified copy of the judgment dated 03.11.2000 as Ex.PW2/3, the certified copy of replication in suit no. 99/1981 titled as Sh. Kanshi Ram Vs. DDA as Ex.PW2/4, the certified copy of the appeal U/s 96 of CPC in RCA no. 63/96 as Ex.PW2/5, the Suit No. 608605/16 Page No. 17/40 certified copy of evidence of Sh. Kanshi Ram in the suit titled as Kanshi Ram Vs. DDA dated 12.05.1995 as Ex.PW2/6.
18. Sh. Raghubar Dayal Garg, ie PW2 in the crossexamination states that he does not remember whether he has filed the written statement in the present suit or not. PW1 further states that he does not know as to whether his statement in his affidavit of the plaint is correct or not. PW1 further states that he can not tell as to whether the statement of the plaintiff made in the court in evidence on 07.12.2017 is correct or not. PW1 further states that he does not know as to what has been written in the file of Satya Prakash. PW1 further states that he does not know as to what are the contents of Para no.5 of his affidavit as the same are in English language.
19. PW2 further states that he does not know as to by whom and when the properties as mentioned in Para no.5 of his affidavit were purchased. By way of volunteer, PW2 states that by virtue of his birth, he knows that the said properties were purchased by his forefathers. PW2 further states that he does not have any documentary proof to show the purchasing of the said properties by his forefathers.
20. PW2 further states that he does not have documentary proof to show the existence of HUF of Sh. Badlu Ram, Sh. Rattan Lal, Sh. Chaturbhuj Garg, Sh. Ram Chander and Sh. Kanshi Ram. PW2 further states that he does not have any documentary evidence to show the purchasing of the properties by his father Late Kanshi Ram.
21. PW2 further states that the partners of Jai Bharat Trading Company were Sh. Kanshi Ram , Sh. Ram Chander, Sh. Chaturbhuj and Sh. Rattan Lal. PW2 further states that he does not know as to whether Suit No. 608605/16 Page No. 18/40 Sh. Rati Ram was also one of the partners.
22. PW2 further states that he does not have any documentary proof to show the sale and purchase of the properties mentioned by him in para no.10 of his affidavit.
23. PW2 admits it to be correct that the property bearing no. 25/41, Punjabi Bagh, Delhi was purchased by Late Sh. Kanshi Ram. PW2 further states that 50% of the share was purchased in the name of Kanshi Ram, ¼ th share was purchased in the name of each Sh. Jagdish Rai and Sh. Ved Prakash. PW2 further states that the said property was purchased in the year 1964 and he has not filed any suit till date challenging the sale deed pertaining to the said property.
24. PW2 admits his signatures on his statement recorded as DW1 on 01.07.2010 in the suit bearing no. 2333/08 and the certified copy of his statement has been exhibited as Ex.PW2/D1. PW2 admits that he had instituted a suit for Permanent Injunction against Lala Kanshi Ram, Sh. Jagdish Rai and Sh. Ved Prakash. Certified copy of the plaint in that suit has been exhibited as Ex.PW2/D2, the certified copy of the orders dated 06.03.1997 on the application U/o 39 Rules 1 and 2 of the CPC has been exhibited as Ex.PW2/D3,t he certified copy of the orders dated 01.12.2004 passed by the Ld. Appellate Court against the orders dated 06.03.1997 has been exhibited as Ex.PW2/D4.
25. PW2 was asked a question that the said suit was later on withdrawn as he was not having any proof of HUF and PW2 has answered that he does not remember.
26. PW2 has admitted it to be correct that the property no. N77, Panchsheel Park, New Delhi was purchased by Lala Kanshi Ram and that Suit No. 608605/16 Page No. 19/40 the said property has been taken over by DDA. PW2 further states that he had not paid any amount for purchasing the property at Punjabi Bagh, Delhi. PW2 admits it to be correct that he has received the amount of Rs. 14,000/ in the year 1956 but by way of volunteer, he states that the said amount was received by him in lieu of his work.
27. PW2 further states that he did not institute any suit challenging the Will of Lala Kanshi Ram. PW2 further states that he has not filed any suit for Declaration to the effect that he is the coparcenor in the property of Lala Kanshi Ram situated at Punjabi Bagh and Panchsheel Park.
28. PW2 admits it to be correct that the partnership business of Jai Bharat Trading Company was closed in the year 1979. PW2 further states that he does not remember as to which properties were belonging to Jai Bharat Trading Company. PW2 further states that he does not have any document to show that Jai Bharat Trading Company business was an HUF business or that HUF funds were invested in the same. PW2 admits it to be correct that no purchase bill was provided either by him or by Satya Prakash for purchasing the property situated at Panchsheel Park.
29. The plaintiff has also examined the witness from Department of Delhi Archives as PW3 and this witness, in his evidence has placed on record the office copy of the agreement for sale dated 22.01.1941 executed in between the MCD and Badlu Ram Kanshi,Village Rohat with respect to a plot of land situated at 8A, Subzi Mandi Extension Scheme no.1 measuring 334.4 sq. yards and the said agreement for sale has been exhibited as Ex.PW3/1.
30. The plaintiff has further examined the witness from Mohan Suit No. 608605/16 Page No. 20/40 Cooperative Industrial Estate Limited as PW4 and this witness has stated that as per the record, the plot no. BII, 24 was in the name of Jai Bharat Trading Company but he had not brought the relevant record. The aforesaid witness further states that the allotment is done by L & DO Department and not by their department.
31. The plaintiff has further examined the Clerk from PNB Bank as PW5 and this witness has proved on record the certified copy of lease deed dated 06.11.1969 executed between Jai Bharat Trading Company and Punjab National Bank w.r.t House no. 8A, Kamla Nagar, Delhi and the certified copy of account of Jai Bharat Trading Company with their branch and the said documents have been hereby exhibited as Ex.PW5/1 and Ex.PW5/2.
32. The plaintiff has further examined the Record Clerk from Maharaja Agarsen Hospital as PW6 and this witness has brought in the court the original records of treatment of Late Lala Kanshi Ram and the photocopies of the same have been exhibited as Ex.PW6/1(colly).
33. The plaintiff has further examined Sh. Naresh Kumar, the Record Keeper from Department of Trade and Taxes, Government of NCT of Delhi as PW7 and this witness has brought on record the report dated 03.04.2018 which states that the details of the Dealer of M/s Jai Bharat Trading Company, Naya Bazar, Delhi such as the address and TIN No./GSTIN etc. are not available.
34. The defendant has examined Sh. Jagdish Rai Aggarwal as DW1 and in his evidence by way of affidavit Ex.DW1/A on record, he has reiterated and reaffirmed the stand as taken by the defendant no.1 in the written statement filed by the defendants no.1 to 4. He has filed on Suit No. 608605/16 Page No. 21/40 record the photocopy of the document bearing diary no. 12838/2008 pertaining to SLP no. 014056/2008 registered on 10.05.2008 and SLP no. 007582/2008 registered on 16.05.2008 as mark X, the copy of judgment/decree dated 26.02.2013 passed in suit no. 294/13/92 passed by the court of Sh. Vishal Singh, the then Ld. Civil Judge as Ex.DW1/2, the certified copy of the Will exhibited by Sh. Kanshi Ram as Ex.DW1/3. The witness has further relied upon the release deed dated 31.07.1956 which is already there on record in the form of Ex.PW1/D5 and on the said release deed, the witness identified the signatures of Sh. Satya Prakash Gupta at point A encircled in red, the signature of Sh. Kanshi Ram at point encircled in red and the signature of Sh. Ram Chnder Gupta at point C encircled in red. The witness has further relied upon one more release deed dated 31.07.1956 and on the said release deed, the witness identified the signatures of Sh. Raghubar Dayal Garg at point W encircled in red, the signatures of Sh. Kanshi Ram at point X encircled in red and the signature of witness Sh. Gagan Nath at point Y encircled in red and the signature of other witness Sh. Ram Chander Gupta at point Z and the same is exhibited as Ex.DW1/4. The witness has further relied upon the written statement filed on record by the defendants no.5 to 7 in the present suit and the same is hereby exhibited as Ex.DW1/5, the copy of the written statement filed by the defendant no. 9 in the present suit as Ex.DW1/6, the original partnership deed as Ex.DW1/7, the certified copy of the suit for mandatory injunction instituted by Lala Kanshi Ram and ors. against Sh. Satya Prakash Gupta and Ors. as Ex.DW1/8.
35. DW1 in the crossexamination admits it to be correct that the assets of Jai Bharat Trading Company have not been partitioned till Suit No. 608605/16 Page No. 22/40 date. DW1 admits it to be correct that Lala Kanshi Ram was a partner in Jai Bharat Trading Company. DW1 further states that the release deeds Ex.DW1/4 and Ex.DW1/5 were not in his possession in the year 1997 when the present suit for partition was filed. DW1, by way of volunteer states that the said Release Deeds were in the possession of his father. DW1 further states that so far as he knows, the main source of the incomes of Lala Kanshi Ram was that he was getting his share from Jai Bharat Trading Company as he was the ex partner of the same. DW1 admits it to be correct that Lala Kanshi Ram, Ram Chander Gupta, Chaturbhuj Garg and Rattan lal Garg were the partners in Jai Bharat Trading company.
36. DW1 further states that he does not know as to whether Ragubhar Dayal Garg also used to run the business of Jai Bharat Trading company. DW1 admits it to be correct that prior to the year 1956, Raghubar Dayal used to work in Jai Bharat Trading Company. By way of volunteer, DW1 states that after the year 1956, he got separated and he never went to Jai Bharat Trading Company. DW1 by way of volunteer, states that the property situated at Punjabi Bagh was purchased by them and as such, the question of giving the same to Lala Kanshi Ram under the award does not arise. DW1 further states that the original sale deed of the property situated at Punjabi Bagh was lost but he was having the certified copy of the same.
37. DW1 admits it to be correct that the property situated at Panchsheel Park was purchased by Lala Kanshi Ram out of his own funds.
38. DW1 further states that he does not remember as to when he Suit No. 608605/16 Page No. 23/40 came to know about the Will of Late Lala Kanshi Ram. DW1 further states that he was not present at the time when the Will was written. DW1 admits it to be correct that Sh.D. P. Jain, the Advocate who had drafted the said Will was his counsel in another case. DW1 further states that he knows Sh. Dinesh Kumar who was a witness in the Will of Lala Kanshi Ram. DW1 further states that he does not know as to whether Lala Kanshi Ram used to put his signature only in Mundi Hindi on every pleading filed by him before any Court or any other legal document. DW1 admits it to be correct that Lala Kanshi Ram was not able to either read or write English language. By way of volunteer, DW1 states that however, Lala Kanshi Ram was able to put his signature in English language. DW1 admits it to be correct that during the year 1996 1997, Lala Kanshi Ram was admitted in hospital several times.
39. DW1 further states that in the partition of 1943, Lala Kanshi Ram was given Rs.12858/ as stated on page No. 6 of the written statement of defendant No.9 in para no.2 from point A to A1. DW1 further states that all the four brothers invested in Jai Bharat Trading Company out of their own sources.
40. I have carefully gone through the entire material available on record and heard the rival submissions of Sh. Ajay Kumar, Ld. Counsel for the plaintiff, Ms. Manju Jain, Ld. Counsel for the defendant no.2 and also for the LR's of the deceased defendant no.4 and Sh. Rohit Gandhi, Ld. Counsel for the LR's of the deceased defendant no.9.
41. The plaintiff has also filed on record the final arguments in writing. I have also meticulously perused the written final arguments which have been filed on record by the Ld. Counsel for the plaintiff.
Suit No. 608605/16 Page No. 24/40ISSUES NO.1 TO 4 AND ISSUE NO.6
42. Issues no. 1 to 4 and issue no.6 are being taken up together for disposal as the same are connected interse and overlap each other. The onus to prove all the abovesaid issues no.1 to 4 and 6 has been placed upon the plaintiff.
43. In the written final arguments, Ld. Counsel for the plaintiff has argued that so far the existence of HUF is concerned, conflicting answers have been given by DW1 Sh. Jagdish Rai Aggarwal in his cross examination. It has been further argued that DW1 has placed reliance upon the joint written statement filed by the defendants no.5 to 7 wherein it has been mentioned that the properties of Punjabi Bagh and Panchsheel Park were assigned to Lala Kanshi Ram as per the arbitral award. It has been further argued that it has been admitted by the defendants that the assets of M/s Jai Bharat Trading Company have not been divided till date. It has been further argued that though M/s Jai Bharat Trading Company was designated as a partnership concern but infact, the said firm was carrying on its activities as a joint Hindu Family Firm and not as a partnership firm in the strict sense of the term under the Law of Partners.
44. It has been further argued in the written arguments that DW1 has shown the ignorance about the funds invested in Jai Bharat Trading Company and he has no personal knowledge of the facts. It has been further argued that DW1 in the crossexamination admits that Dinesh Kumar, who is one of the attesting witness to the Will dated 12.11.1999 executed by Lala Kanshi Ram Gupta, is a friend of his son. It has been Suit No. 608605/16 Page No. 25/40 further argued that Lala Kanshi Ram Gupta was not able to read and write English language. It has been further argued that the Will dated 12.11.1999 is a forged and fabricated document as Lala Kanshi Ram was not having a sound state of mind and good physical condition so as to execute the abovesaid Will. It has been further argued that the Will has not been proved at all by the defendants.
45. In the written final arguments, the plaintiff has further argued that PW1 and PW2 have denied the execution of the Release Deeds dated 31.07.1956. It has been further argued that the testimonies of PW1 and PW2 are streamlined and corroborative of each other. Ld. Counsel for the plaintiff has relied upon the testimonies of PW3 to PW7 also and has argued that the PWs have been able to prove the case of the plaintiff. It has been further argued that the Release Deeds dated 31.07.1956 have not been proved at all by the defendants and the same are hit by Section 17 of the Registration Act, Section 49 of the Evidence Act and Section 55 of the Stamp Act. It has been further argued that the plaintiff has been able to prove his case and the suit of the plaintiff be decreed as prayed for by the plaintiff in the plaint and in case, this court comes to the conclusion that the plaintiff has failed to prove his case of Partition by proving the existence of Larger HUF and Smaller HUF, then, in the alternate, the partition of the properties of Late Lala Kanshi Ram be given effect to by way of Law of Succession and the plaintiff may be given 1/5 th share in the said properties.
46. Ld. Counsel for the plaintiff has relied upon the authorities titled as Narinder Kaur Vs. Amar Jeet Sethi cited as 2000(3) AD (Delhi) 599, the judgment dated 04.04.2018 passed by the Hon'ble High Court of Suit No. 608605/16 Page No. 26/40 Delhi in CS(OS) 575/2001, 1588/2007 titled as Paramjit Anand Vs. Mohan Lal Anand, the authority cited as 1995 II AD Delhi 189 titled as Sudir Engineering Company Vs. Nitco Roadways Limited, the authority cited as 2015 (12) JT 592 titled as Yellapu Uma Maheshwari & Anr. Vs. Buddha Jagadheeshwararao and Others, the authority cited as AIR (34) 1947 Privy Council 189, the authority cited as AIR 1954 Supreme Court 379 titled as Srinivas Krishnararo Kango Vs. Narayan Devji Kango and others, the authority cited as AIR 1954 Supreme Court 388 titled as Rati Lal Panachand Gandhi and others Vs. State of Bombay and others, the authority cited as AIR 1959 Supreme Court 906 titled as Mallappa Girimallappa Betgeri and others Vs. R. Yellappagouda Patil and others, the authority cited as AIR 1966 Supreme Court 411, the authority cited as 162(2009) DLT 549 titled as Kavita Gambhir Vs. Hari Chand Gambhir and another.
47. Whereas, on the other hand, Ld. Counsels for the defendants have argued that the plaintiff has utterly failed to prove his case. It has been further argued that the plaintiff has failed to prove as to who was owning the properties, when the same were purchased and when the same were sold. It has been further argued that not even a single document has been placed on record to show the existence of HUF properties. Ld. Counsel for the defendants has heavily relied upon the crossexamination of PW1 and PW2 and has argued that the cross examination of PWs is sufficient to demolish the entire case of the plaintiff.
48. It has been further argued by the defendants that the partnership deed dated 26.08.1950 is already there on record in the form Suit No. 608605/16 Page No. 27/40 of Ex.DW1/7 which clearly shows that M/s Jai Bharat Trading Company was the partnership concern of Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. It has been further argued that when the documentary evidence is available on record to show the existence of the partnership, no oral evidence can be allowed to prove the existence of the HUF business contrary to the documentary evidence available on record.
49. The defendants have further argued that nothing has been placed on record that the funds of the bigger HUF were invested in the smaller HUF or to show the purchase of the properties as mentioned by the plaintiff in the list of the properties annexed with the plaint and in his evidence by way of affidavit also by the plaintiff of the smaller HUF. It has been further argued that since no objection was taken initially by the plaintiff qua the stamping of the Release Deeds, no objection can be allowed at a later stage and as such, the Release Deeds dated 31.07.1956 have also been proved on record. It has been further argued that during the crossexamination of DW1, not even a single suggestion has been given to DW1 to the effect that the Release Deeds were not executed.
50. It has been further argued that as per the admissions of PWs, the registered sale deed with respect to the Punjabi Bagh property has not been challenged till date. It has been further argued that the Will dated 12.11.1999 of Late Lala Kanshi Ram Gupta has been well proved by the testimony of PW4, during the crossexamination of whom, nothing adverse has come out. It has been further argued that otherwise also, the authenticity and genuineness of a document, which is more than 30 years old cannot be challenged and as such, the defendants have been able to Suit No. 608605/16 Page No. 28/40 prove their defence and the plaintiff has utterly failed to prove his case.
51. Ld. Counsel for the defendants has relied upon the authority cited as 2014(1) RLR 696 SC titled as Union of India and others Vs. Vasavi Cooperative Houses Society Limited and others, the authority cited as 2005 RLR 233 titled as Maha Singh Vs. Sri Anand Singh Mann, the authority cited as 225(2015) DLT 211 titled as Sunny and another Vs. Raj Singh and another, the authority cited as 225(2015) DLT 218 titled as Sunil Kumar Vs. State of Delhi and another, the authority cited as 2009 RLR 302 titled as P.S. Batra Vs. Anoop Singh, the authority cited as 2009 RLR 169(SC) titled as Subba Vs. Debiya, the authority cited as 2004 RLR 529(SC) titled as Dayamathi Bai Vs. Sri K. M Shaffi, the authority cited as 2007 RLR 16 (NSC) titled as Shyamal Kumar vs. Sushil Kumar, the authority cited as 1976 RLR 96 titled as Kanwar Sain vs. State etc. the authority cited as 1986 RLR 572 titled as Ram Lal vs. Hari Kishan, the authority cited as 205 (2013) DLT 179 titled as Surinder Kaur vs. Ram Narula & ors. and the authority cited as AIR 1966 SC 1300 titled as Addanki Narayanappa & Anr. vs. Bhaskara Krishnappa.
52. The case of the plaintiff is squarely based on the premise that late Lala Badloo Ram constituted a bigger HUF along with his sons Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. It has been further stated by the plaintiff in the plaint that various properties were purchased by the bigger HUF in Delhi, in UP and in Haryana. The details of the said properties have been given in the plaint. The plaintiff has further stated that mutual partition was carried out by late Sh. Badloo Ram and his four sons and the said Suit No. 608605/16 Page No. 29/40 partition was also the subject matter of suit bearing no. 57/43 which was decided by the court of Ld. Sr. Sub Judge, Rohtak on 14.12.1943. It has been further stated that in the year 1948, all the abovesaid four sons of Late Lala Badloo Ram constituted four smaller HUF headed by each of the sons and in the year 1948 itself, all the four HUFs joined together and started business in partnership in the name and style of M/s Jai Bharat Trading Company at Naya Bazar, Delhi. It has been further stated that the business of the said partnership firm was infact the HUF business and the plaintiff became a member of the smaller HUF of which Late Lala Kanshi Ram was the Karta. It has been further stated that the assets of M/s Jai Bharat Trading Company have not been divided till date and that the said firm was owning various properties, the details of which have been given in the list of properties annexed with the plaint. The plaintiff has further stated that the property at Punjabi Bagh was purchased in the year 1964 for a sum of Rs. 28,000/ from the joint assets of the plaintiff, the defendants no.1 to 4 and Sh. R. Dayal. It has been further stated that though the sale deed of the said property was executed in the name of the defendants no.1 to 4 and the defendant no.6 but infact, the said property was purchased out of the funds of M/s Jai Bharat Trading Company. It has been further stated that the property at Panchsheel Park, New Delhi was purchased in the year 1966 out of the funds of M/s Jai Bharat Trading Company.
53. The defendants no. 1 to 4 are the main contesting defendants. In the written statement filed by the defendants no.1 to 4, the defendants no.1 to 4 have not denied the relationship of the parties. It has not been denied that the bigger HUF came to an end in the year 1943 but Suit No. 608605/16 Page No. 30/40 the defendants have categorically denied that the business of M/s Jai Bharat Trading Company was the HUF business. It has been squarely claimed by the said defendants that M/s Jai Bharat Trading Company was started as a partnership concern by the defendants no.1, 8 and 9 and the father of the defendants no.5 to 7 in their individual and personal capacity in the year 1949 and not in the year 1948. It has been admitted that the business of the said partnership concern was closed in the year 1979 due to the disputes but it has been stated that the dispute is in between the defendant no.1, the defendant no.8, the defendant no.9 and the defendants no.5 to 7.
54. The Release Deeds dated 31.07.1956 Ex.PW1/D5 and Ex.DW1/4 have been relied upon by the said defendants and it has been argued that the plaintiff cannot claim any share in the properties. The Will dated 12.11.1999 executed by Late Lala Kanshi Ram Ex.DW1/3 has also been relied upon by the defendants no.1 to 4.
55. In the light of the abovesaid pleadings, the respective contentions of the parties and the evidence led by the parties, the vital question to be considered by this court is as to whether the plaintiff has been able to prove that the business of M/s Jai Bharat Trading Company was infact the HUF business of the four smaller HUFs headed by Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg despite the fact that the partnership deed dated 26.08.1950 Ex.DW1/7 on record specifically states that the said firm was constituted as a partnership firm. This court has to further consider and see as to whether the plaintiff has been able to prove that four smaller HUFs were constituted by each of the abovesaid brothers, who later on Suit No. 608605/16 Page No. 31/40 joined hands to constitute the abovesaid firm M/s. Jai Bharat Trading Company, which was an HUF firm as per the case of the plaintiff. This court has to further consider and to see as to whether the plaintiff has been able to prove the purchasing of the properties by the bigger HUF, by the smaller HUFs and by M/s Jai Bharat Trading Company, the list of which has been annexed by the plaintiff with the plaint.
56. If the plaintiff, in the considered opinion of this court is able to prove the existence of the properties mentioned in the list annexed with the plaint, as HUF properties owned and possessed by M/s Jai Bharat Trading Company, then the plaintiff succeeds, otherwise, the case of the plaintiff is bound to fail. The plaintiff, in order to succeed in the present matter, to my mind, is essentially required to prove that M/s Jai Bharat Trading Company was an HUF firm carrying on the HUF business despite the nomenclature of the said firm as a partnership concern. To my mind, the plaintiff is also required to bring home the point that the Will dated 12.11.1999 Ex.DW1/3 on record was not validly executed and that the Release Deeds dated 31.07.1956 Ex.PW1/D5 and Ex.DW1/4 were also not executed. EX.PW1/D5 is the Release Deed allegedly executed by the plaintiff Sh. Satya Prakash Gupta and the Release Deed Ex.DW1/4 has been allegedly executed by Sh. Raghubar Dayal Garg.
57. The settled law is that the plaintiff in a civil suit has to stand upon his own legs and has to prove his own case by way of cogent and reliable evidence. The plaintiff cannot be allowed to take benefit of the lacunae, if any, left by the defendants, in proving their own case. The litmus test, which is applied in civil cases is the test of preponderance of Suit No. 608605/16 Page No. 32/40 the probabilities.
58. PW1 and PW2 are the two main star witnesses examined by the plaintiff. The rest of the witnesses are the official witnesses. PW1 is the plaintiff himself and PW2 is the brother of the plaintiff.
59. The material aspects of the testimonies of all the witnesses examined by the parties have already been narrated herein above. If the crossexamination of PW1 is carefully gone through, to my mind, PW1 has categorically admitted that the property situated at Panchsheel Park cannot be partitioned as the possession of the same has already been taken over by the DDA. PW1 has given an evasive reply when he is asked about the appeal which was filed against the judgment and decree dated 26.09.2013 passed in the suit titled as Kanshi Ram and others Vs. Raghubhar Dayal and Another which is a suit for mandatory injunction. PW1 admits that the Release Deed executed by him has not been challenged till date. PW1 has failed to prove on record the filing of any document to show the HUF properties of Late Badloo Ram. PW1 does not remember as to whether Late Badloo Ram had distributed all the properties amongst his sons during his life time. PW1 admits that there were four partners of M/s Jai Bharat Trading Company. PW1 further states that he does not know as to whether there was any HUF of Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. PW1 admits that he has not placed on record any document to show the existence of HUF properties of M/s Jai Bharat Trading Company. PW1 does not remember as to whether the Will of Late Lala Kanshi Ram has been challenged by him or not.
60. From the crossexamination of PW2, to my mind, it is Suit No. 608605/16 Page No. 33/40 evident that the testimony of PW2 cannot be relied upon at all because he neither knows as to what has been written in the file of the plaintiff or as to what are the contents of his affidavit. PW2 is unaware as to whether the statement of the plaintiff made in the court in the evidence of 07.12.2017 is correct or not. PW2 does not know as to by whom and when the properties as mentioned in para no.5 of his affidavit were purchased. PW2 is unable to place on record any documentary proof to show the purchasing of the properties by his forefathers and to show the existence of HUF of Sh. Badloo Ram, Sh. Rattan Lal, Sh. Ram Chander Sh. Chaturbhuj and Sh. Kanshi Ram. PW2 is unable to place on record any documentary evidence to show the sale and purchase of the properties mentioned by him in para no.10 of his affidavit. PW2 admits that the Will of Lala Kanshi Ram has never been challenged either by the plaintiff or by him. PW2 categorically admits that he does not have any document to show that Jai Bharat Trading Company Business was an HUF business or that HUF funds were invested in the same.
61. During the course of the final arguments, Ld. Counsel for the plaintiff has heavily relied upon the contradictions in the cross examination of DW1. It is true that there are certain contradictions in the crossexamination of DW1 also but, as stated by me herein above, merely because there are contradictions in the testimony of DW1 does not mean that the case of the plaintiff stands ipsofacto proved. As stated herein above, to my mind, the plaintiff has to stand upon his own legs and he cannot be allowed to take the benefit of the lacunae, if any, left by the defendants in proving their own case.
62. By the crossexamination of PW1 and PW2, to my mind, it Suit No. 608605/16 Page No. 34/40 can be safely concluded that the plaintiff has utterly failed to prove on record that M/s Jai Bharat Trading Company was constituted as a result of joining the hands together by the four smaller HUFs of Lala Kanshi Ram, Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. It is true that the existence of the smaller HUF of Lala Kanshi Ram has been admitted by the defendants no.1 to 4 in the written statement but to my mind, the plaintiff has utterly failed to prove the constitution of the HUFs by Late Sh. Ram Chander Gupta, Sh. Chaturbhuj Garg and Sh. Rattan Lal Garg. I have no hesitation to hold that the plaintiff has absolutely failed in proving that M/s Jai Bharat Trading Company business was an HUF business or that HUF funds were invested in the same.
63. To my mind, Ld. Counsel for the defendant no.2 and the LR's of the deceased defendant no.4 has rightly argued that the partnership deed dated 26.08.1950 in writing in the form of Ex.DW1/7 is there on record and the same has not been denied by the plaintiff. To my mind, it has been rightly argued that once a document in writing stands admitted, then, no oral evidence can be allowed to disprove the same.
64. Needless to mention that as per the own admission of PW1 and PW2, the sale deed pertaining to the property at Punjabi Bagh has not been challenged till date. The said sale deed is dated 22.10.1964 executed by Sh. Sarabjeet Singh in favour of Lala Kanshi Ram, Jagdish Rai Aggarwal and Sh. Ved Prakash. The said Sale Deed is a registered document. To my mind, not even a single iota of evidence has been brought on record by the plaintiff either to prove that the purchase money for the said property was invested out of the joint funds of the bigger Suit No. 608605/16 Page No. 35/40 HUF or the smaller HUF or by M/s Jai Bharat Trading Company.
65. Accordingly, to my mind, the said property cannot be construed as a Joint Property of the parties to the present suit including the plaintiff. To my mind, the defendants have been able to prove that the said property was purchased by Lala Kanshi Ram, Sh. Jagdish Rai Aggarwal and Sh. Ved Prakash by them in their individual capacity and as such, the sale deed was executed in their name only.
66. Ld. Counsel for the plaintiff has vehemently argued that the Will dated 12.11.1999 Ex.DW1/3 on record has not been proved as the Will is shrouded by suspicious circumstances. It has been further argued that Lala Kanshi Ram was not having sound physical and mental condition on the date of the execution of the Will and as such, he was not in a fit state of mind to execute the Will. It has been further argued that the Executors of the Will are the beneficiaries of the Will and they have taken the active part in the execution of the Will. It has been further argued that since the Will has not been proved, the plaintiff has been able to prove his case.
67. As stated herein above, one more Civil Suit bearing no. 8314/16 titled as Kanshi Ram and others Vs. Raghubar Dayal and other has been instituted. In the abovesaid civil suit, which is a suit for Mandatory Injunction, the validity of the Will Ex.DW1/3 has been upheld by virtue of the judgment, which has been announced in the said civil suit as on date. Accordingly, to my mind, since the validity of the Will dated 12.11.1999 has been upheld in the abovesaid suit, it cannot be said that the Will has not been proved by the defendants. Needless to mention that the said Will is in the favour of Sh. Jagdish Rai Aggarwal Suit No. 608605/16 Page No. 36/40 and Sh. Ved Prakash Gupta.
68. Now, coming to the two Release Deeds, both the Release Deeds are dated 31.07.1956. The Release Deed Ex.PW1/D5 has been executed by Sh. Satya Prakash Gupta, who is the plaintiff in the present suit and the Release Deed dated 31.07.1956 has been executed by Sh. Raghubar Dayal Garg, which is there on record in the form of Ex.DW1/4.
69. Ld. Counsel for the plaintiff has vehemently argued that both the abovesaid release deeds are forged and fabricated and the originals of the said Release Deeds have not been placed on record.
70. First of all, it has to be seen that the original Release Deeds have been placed on record by the defendants in the form of Ex.PW1/D5 and Ex.DW1/4. PW1 ie the plaintiff in the crossexamination was confronted with the Release Deed dated 31.07.1956 Ex.PW1/D5 and he stated that the said document was forged. PW1 further states that he does not know as to whether he had challenged this document before the Hon'ble High Court of Delhi and his appeal was dismissed by the Hon'ble Division Bench of the Hon'ble High Cout of Delhi vide orders 24.11.2011 Ex.PW1/D4 on record.
71. The certified copy of the orders dated 24.11.2011 Ex.PW1/D4 passed in RFA(OS) no. 23/2010 titled as Satya Prakash Gupta Vs. Vikas Gupta and others is already there on record, which clearly state that the orders dated 09.02.2010 passed by the Hon'ble Single Judge of the Hon'ble High Court of Delhi were challenged before the Division Bench and the Hon'ble Division Bench was pleased to dismiss the appeal vide orders dated 24.11.2011. A perusal of the said orders reveal that the Will and the two Release Deeds were the subject Suit No. 608605/16 Page No. 37/40 matters of the judgment dated 09.02.2010 and the appeal dated 24.11.2011. Since the validity of the Will dated 12.11.1999 and the two Release Deeds dated 31.07.1956 has already been upheld by the Hon'ble High Court of Delhi, to my mind, at this stage, the plaintiff cannot be allowed to plead and argue that the two Release Deeds Ex.PW1/D5 and Ex.DW1/4 have not been proved by the defendants.
72. In the light of the abovesaid discussion, I have no hesitation to hold that the plaintiff has utterly failed to prove the issues no.1 to 4 and 6. Accordingly, issues no.1 to 4 and 6 are decided against the plaintiff.
ISSUE NO.5
73. Issue no.5 pertains to the plea of the defendants pertaining to the limitation and the onus to prove the said issue has been placed upon the defendants.
74. In the plaint, the plaintiff has asserted that the plaintiff is entitled to his share in the properties, which have been mentioned by the plaintiff by virtue of the member of HUF. The plaintiff in para no. 23 had stated that the cause of action arose on 25.04.1997 when the defendants no.2 and 4 wanted to oust the plaintiff from the property situated at Punjabi Bagh.
75. The present suit has been instituted on 16.05.1997. Though Ld. Counsel for the defendant no.2 and the LR's of the deceased defendant no.4 has argued that Article 113 of the Limitation Act applies but, to my mind, the defendants have failed to prove that the present suit is barred by the Law of Limitation. Accordingly, issue no.5 is decided Suit No. 608605/16 Page No. 38/40 against the defendants.
Relief
76. In the light of my findings on issues no.1 to 4 and 6, the suit of the plaintiff is hereby dismissed. Parties are left to bear their own costs. Decree sheet be prepared accordingly by the Reader. File be consigned to record room.
Announced in the open court (RAJ KUMAR) on this 24th day of November 2018. JUDGE MACT01(WEST) Tis Hazari Courts, Delhi.
Digitally
signed by
RAJ
RAJ KUMAR
KUMAR Date:
2018.11.29
13:59:22
+0530
Suit No. 608605/16 Page No. 39/40
CS no. 608605/16
24.11.2018
Present : None.
Vide my separate judgment of even date, the suit of the plaintiffs has been dismissed. Parties are left to bear their own costs. Decree sheet be prepared accordingly by the Reader. File be consigned to record room.
(Raj Kumar) Judge : MACT-01(West) Delhi/24.11.2018 Suit No. 608605/16 Page No. 40/40 Suit No. 608605/16 Page No. 41/40