Delhi District Court
Sh. Rakesh Taneja vs Smt. Suman Taneja on 22 February, 2013
IN THE COURT OF SH SUNIL K AGGARWAL: ADDL. DISTRICT
JUDGE (CENTRAL)10: DELHI
RCA No. 11/07
Sh. Rakesh Taneja,
S/o Late Sh. Lekh Raj Taneja,
Nav Nirman Shiv Mandir,
Near D3, East Kidwai Nagar,
New Delhi. ....Appellant
VERSUS
1.Smt. Suman Taneja,
W/o Late Sh. Satish Kumar Taneja,
R/o 5B, Dayalsar Colony,
Uttam Nagar, New Delhi.
Also at:
Office of Municipal Corporation of Delhi,
South Zone, Green Park, New Delhi.
2. Smt. Bimla Chawla,
W/o Sh. O. P. Chawla,
D/o Late Sh. Lekh Raj Taneja
R/o 100, Star Apartments, Sector9,
Rohini, Delhi110085.
3. Smt. Suman Gambhir,
W/o Sh. Dinesh Kumar Gambhir,
D/o Late Sh. Lekh Raj Taneja,
R/o DG2/255C, Vikaspuri, New Delhi18.
RCA No. 11 of 2007 Page No. 1 of 18
4. Smt. Rekha,
W/o Sh. Dalip,
D/o Late Sh. Lekh Raj Taneja,
R/o D6, East Kidwai Nagar, New Delhi.
5. Sh. Naresh Kumar,
S/o Late Sh. Lekh Raj Taneja,
Nav Nirman Shiv Mandir,
Near D3, East Kidwai Nagar,
New Delhi. ...Respondents
Appeal presented on 16.07.2007
J U D G M E N T:
1. This appeal under Section 96 read with Order 41 Rule 1 and Section 151 CPC takes exception to the judgment and decree dated 07.05.2007 passed by the Ld. Civil Judge whereby Suit No. 100/03 of the appellant for partition, possession and permanent injunction was dismissed.
2. Starting from the facts of the case in brief, the suit was filed by Sh. Lekh Raj Taneja as plaintiff no. 1 and the appellant as plaintiff no.2. In these presents the parties will be referred as they were arrayed in the file of ld. Trial court. It may be intriguingly pointed out at the outset that Sh. Lekh Raj Taneja, Plaintiff no.1 had died intestate on 20.01.2005 and his death certificate was filed in the trial court on the next date of 03.03.2005 yet his name was neither urged nor deleted from the memo of parties as all RCA No. 11 of 2007 Page No. 2 of 18 his legal heirs were already impleaded in this very suit. Consequently he was shown as live party in the impugned judgment and even impleaded as appellant no. 1 herein. The memo of parties has now been suitably rectified. Case of plaintiff no. 1 is that plaintiff no. 2, Late Sh. Satish Kumar Taneja (husband of the defendant no. 1) and defendant no. 2 to 5 had born out of his wedlock with Smt. Sahiba Devi. During his employment in Safdarjung Hospital, plaintiff no. 1 had purchased a DDA Flat no. 89H, Seikh Sarai, New Delhi out of his income. It was sold by him in 1992 and property no. 5B measuring 75 Sq. yards, village Hastsal, Colony Dayalsar, Najafgarh Road, New Delhi59 (hereinafter called 'the suit property') comprising two shops, two rooms, kitchen, latrine and bath room on the ground floor and two rooms on the first floor was purchased in the name of his wife out of love and affection vide GPA, sale agreement, affidavit, registered Will and receipt dated 23.07.1992. The sale consideration was paid out of the realization of DDA flat and other earnings of plaintiff no. 1 therefore the suit property is his selfacquired property and none of his family members had contributed any amount in its purchase. The suit property was occupied by the family in which an electricity connection in the name of Smt. Sahiba Devi was taken. Sh. Satish Kumar Taneja was married to defendant no. 1 in 1987. On being requested, one room of the suit property was given to defendant no. 1 and Sh. Satish Kumar Taneja on license basis for residential purposes at monthly charges of Rs. 500/. After about 45 months however the defendant no. 1 and her husband had stopped paying the license charges and postponed the matter on one or other pretext. They gradually started harassing and humiliating plaintiff no. 1, his wife RCA No. 11 of 2007 Page No. 3 of 18 and other family members. Their behavior turned rude and callous compelling plaintiff no. 1 to debar defendant no. 1 and her husband from all his movable and immovable properties through public notice published in newspaper in 16.08.2000.
3. Sh. Satish Kumar Taneja was employed as Driver in MCD. He was a drunkard and expired on 28.02.2001. Even after his demise, defendant no. 1 did not mend her cruel behavior against plaintiff no. 1 and his wife. Smt. Sahiba Devi had therefore, lodged complaint dated 10.08.2002 in this behalf at Police Station Kotla Mubarakpur. Due to bearing constant cruelty, she had fallen ill and ultimately died on 28.04.2003. Defendant no. 1 thereafter turned violent with an intention to drive plaintiff no. 1 and his family members out of the suit property in order to grab the same and usurp the rights of other legal heirs of owner Smt. Sahiba Devi.
4. Alleging that defendant no. 1 was intending to sell the suit property or to create third party interest therein in collusion with defendants no. 2 to 5, the plaintiff no. 1 got her a legal notice dated 10.07.2003 issued of which she had sent a false and frivolous reply dated 24.07.2003. She also did not pay the use and occupation charges of suit property @ Rs. 5,000/ per month. As head of the family the intentions of plaintiff no.1 are fair and despite the suit property actually belonging to him as it was purchased out of his exclusive resources yet going by the law of succession as his wife has died intestate, the suit property is inherited by suit parties in equal shares. RCA No. 11 of 2007 Page No. 4 of 18 The defendant no. 1 was asked on 24.08.2003 to vacate the portion of property illegally occupied by her, but she started abusing and threatening the plaintiff to contain which the suit for partition of property by metes and bounds and permanent injunction was filed.
5. Defendants no. 2 to 5 in their common written statement had supported the case of plaintiffs and denied having any collusion with defendant no. 1.
6. In her separate written statement defendant no. 1 had termed the suit to be false and frivolous as the suit property was self acquired by her husband and therefore the plaintiffs have no locus standi to file the suit. It is otherwise filed by suppressing material facts with intention to take its possession forcibly. While admitting that a DDA flat at Sheikh Sarai, New Delhi was purchased in the name of plaintiff no. 1, the claim of the same being his self acquired property is refuted. It was sold in 1992 for arranging the marriages of his sons and daughters. Actually Sh. Satish Kumar Taneja was employed at that time and had contributed 50% of the consideration amount for purchasing the flat. He had also contributed in the marriages of his brothers and sisters besides his own. The averment of plaintiff no. 1 having purchased the suit property out of the sale proceeds of DDA flat is denied. It was rather purchased by the husband of defendant no. 1 out of his funds including the loan taken from his inlaws and friends. The documents of suit property were got executed in the name of mother out of love and affection and being head of the family. Because the property was RCA No. 11 of 2007 Page No. 5 of 18 in her name, the electricity meter in it could have been installed only in her name. Husband of defendant no. 1 had occupied the suit property as its owner from the date of purchase and after his demise the property has devolved on defendant no. 1 by law of inheritance. She has been maintaining and looking after it from her resources. The theory of defendant no. 1 having been permitted to occupy one room of the suit property on license fee of Rs. 500/ per month is discounted. There was no question of such an arrangement as Sh. Satish Kumar Taneja was its absolute owner. Defendant no. 1 denied the misconduct imputed to her as also about knowledge of public notice and Police complaint. She was never called to the Police Station. Smt. Sahiba Devi had died a natural death as she was of mature age of 70 years. Rest of the allegations of threat to dispose off the suit property or to create third party interest therein as well as liability to pay for the use and occupation of suit property to the plaintiffs and other legal heirs of Smt. Sahiba Devi were denied and it was urged that the suit be dismissed.
7. Following issues were settled in the matter by Ld. Trial Court on 08.12.2003:
1. Whether the plaintiff is entitled for the relief of partition? OPP.
2. Whether the plaintiff is entitled for relief of possession?
OPP.
3. Relief.
RCA No. 11 of 2007 Page No. 6 of 18
8. Unfortunately the plaintiff no. 1 could not be examined in this case as he was paralytic since 1998 and could speak with difficulty. His sonPlaintiff no. 2; real brother Sh. Moti Ram Taneja; sisterinlaw Smt. Veena Taneja were examined by the plaintiffs. Defendant no. 1 had examined herself; her cousins Sh. Satpal and Sh. Jagdish Chander besides marginal witness to the title documents of suit property Sh. Praveen Kumar Bansal, in support of her case. Defendant no. 2 to 5 have examined themselves to canvass their contentions.
9. By virtue of impugned judgment, Ld. Trial court concluded that the plaintiffs have failed to prove having generated requisite funds for purchase of the suit property whereas the defendant no. 1 has duly proved the investment of Rs. 25,000/ by her husband out of his resources and Rs. 50,000/ taken as loan from Sh. Satpal and Sh. Jagdish Chander therefore the issue no. 1 was decided in negative. Consequently, the issue no. 2 also got decided against the plaintiffs resulting into dismissal of the suit.
10. Plaintiff no. 2 has preferred this appeal on the ground that the judgment and decree of Ld. Trial Court is bad in law and contrary to facts as evidence led by the plaintiffs has totally been ignored while the contradictory pleas taken by defendant no. 1 were taken into account. The trial court failed to appreciate that the suit property having been purchased in the name of Smt. Sahiba Devi, defendant no. 1 could not have asserted her husband to be its absolute owner. The plaintiffs had produced pension RCA No. 11 of 2007 Page No. 7 of 18 book of plaintiff no. 1 and other relevant documents for establishing that he had enough funds to purchase the suit property without seeking help of his family members but the same were not looked into. The trial court also did not examine the case under the provisions of The Benami Transactions (Prohibition) Act, 1988 which prohibit the defense of being the real owner of the suit property as against the ostensible owner thereof. Had the husband of defendant no. 1 been instrumental in purchasing the suit property, the seller would have executed Power of Attorney in his name instead of plaintiff no. 1. Sh Satpal and Jagdish Chander are the cousin brothers of defendant no. 1. Their statements are actuated with malice and design to grab the suit property for her. It is alleged that Ld. Trial Court has committed an error in analyzing the statements of DWs and relying on the same despite the fact that she has also failed to produce any documentary evidence in support of her assertions. Annual salary of husband of defendant no. 1 was always much below Rs. 25,000/ till March, 1992. Of course he had the liability to maintain his family comprising wife and two sons. He therefore could not have collected/saved a sum of Rs. 25,000/ allegedly for purchasing the suit property. It is claimed that on demise of Smt. Sahiba Devi owner of the suit property, the same devolved upon her legal heirs under Section 15 & 16 of The Hindu Succession Act, 1956 therefore preliminary decree to the effect that suit parties are entitled to 1/6th share each in the suit property needed to be passed. It is contended that the judgment and decree of learned trial court suffer from material irregularities and liable to be set aside and suit deserves to be decreed. RCA No. 11 of 2007 Page No. 8 of 18
11. Defendant no. 2 to 5 have supported the plaintiffs by filing their reply to the grounds of appeal.
12. The appeal was filed with delay of about a month, along with an application under Order 41 Rule 3A CPC and Section 5 of the Limitation Act for condonation of delay. The same was allowed on 14.12.2008.
13. An application under Order 41 Rule 27 and Section 151 CPC was also filed by the plaintiff for being allowed to lead additional evidence for showing that plaintiff no. 1 had sufficient funds to purchase the suit property as the same were provided to the earlier counsel who did not produced them in court. It was however never pressed for disposal hence is deemed to have been abandoned/dismissed for nonprosecution.
14. Arguments were heard on behalf of the parties and the trial court record has been carefully perused. The Ld. trial court was driven by the fact that the plaintiff no. 1 did not adduce evidence of his terminal dues on retirement as Lab Assistant from Sufdarjung Hospital in 1990 and as to how much amount was contributed by him for purchasing the suit property. Further it was observed that evidence of the sale proceeds of DDA flat in 1991 and availability of some funds out of it for purchasing the suit property, was lacking. It got swayed by the evidence of defendant no. 1 that a sum of Rs. 25,000/ was contributed by her husband out of his savings and another Rs. 50,000/ was taken as loan from his brothersin RCA No. 11 of 2007 Page No. 9 of 18 law. Testimonies of DWs Satpal, Jagdish Chander and Praveen Kumar Bansal were strongly relied in this behalf.
15. Ld. Counsel for the appellant has contended that there was no pleading of the husband of defendant no. 1 of having taken loan for paying the consideration of suit property. The evidence of her cousins in support thereof is not only improvement but also beyond pleadings. How could Sh. Satish Kumar Taneja spare a sum of Rs. 5000/ per month out of his salary for being spent on the family around the time when the suit property was purchased? Even the defendant no. 1 has failed to produce documentary evidence of availability of Rs. 25,000/ as savings with her husband for being paid as consideration. Contradictions in the statements of DW Satpal and Jagdish Chander have been pointed out. It is averred that Sections 3 & 4 of Benami Transactions (Prohibition) Act were considered at all by Ld. Trial Court to repel the claim that the property stood Benami in the name of Smt. Sahiba Devi.
16. Ld. Counsel for the defendant no. 1 on the other hand has argued that the objection as to the applicability of The Benami Transactions (Prohibition) Act has been raised for the first time in appeal and therefore cannot be considered. In any case, the cited provisions are not applicable to the facts in view of the reported judgments in 'Binapani Paul Vs. Pratima Ghosh, 2007 (2) RCR (Civil) 801 (SC) and 'V. Shankarnarayana Rao Vs. Leelavathy, 2007 (3) RCR (Civil) 143 (SC)'. According to him the Ld. Trial court has analyzed the evidence led by the parties naturally and reached the RCA No. 11 of 2007 Page No. 10 of 18 obvious conclusion which does not deserve to be unsettled in appeal. It is claimed the statements of plaintiff no. 2, defendants no. 2 to 5 and their uncle and aunt who had appeared as PW 2 and PW 3 were generally hearsay and therefore could not have been relied upon whereas the relevant witnesses on behalf of defendant no. 1 had deposed from their personal knowledge and as such were more reliable.
17. Sh. Satish Kumar Taneja was employed as Group 'D' employee in MCD as a Driver. He got married to defendant no. 1 in 1987. As testified by PW1, two of his sisters had been married prior to him. Both of his brothers i.e. defendant no. 4 and plaintiff no. 2 were married after the purchase of suit property in 1993 and 1995 respectively. No record of salary or other accumulations of Sh. Satish Kumar Taneja was called from the office of his employer to assess the availability of spare funds with him after meeting the liabilities of his own small family, so as to be able to contribute in performing marriages of his siblings besides his own and also in purchasing DDA flat at Sheikh Sarai, New Delhi to the extent of 50%. Defendant no. 1 did not disclose the amount that Sh. Satish Kumar Taneja may have spent in various marriages and for purchasing DDA flat even by estimation. Eyebrows have justifiably been raised in respect of the version of defendant no. 1 that she used to be paid a sum of Rs. 5,000/ per month by her husband. Even a Group 'A' officer was not receiving this much amount in his salary in or about 1992. While there was good probability of plaintiff no. 1 having sufficient amount in hand in 1992 as he had retired from Government service in 1990 and must have received retiral benefits RCA No. 11 of 2007 Page No. 11 of 18 besides the sale proceeds of DDA flat of Sheikh Sarai from 1991 with no major liability in the interregnum, the defendant no. 1 had utterly failed to substantiate the availability of savings to the extent of Rs. 25,000/ with her husband.
18. DW Satpal claimed to be a caterer and sweet shop owner earning about Rs. 8,000/ 9,000/ per month in 1992. He must be an income tax payee. He has neither produced his books of account nor filed the Income Tax returns of the relevant years where the alleged loan of Rs. 20,000/ given by him to Sh. Satish Kumar Taneja may have been reflected. He claimed that Rs. 30,000/ was borrowed by Sh. Satish Kumar Taneja from his cousin Sh. Jagdish Chander who had arranged that amount from a grain agent. He did not disclose the name and particulars of said agent. It is another matter that DW Jagdish Chander himself is totally silent in this behalf. He also did not produce either his books of account or Income Tax returns showing the loan entry in the name of Satish Kumar Taneja. While Satpal claimed to have accompanied his brotherinlaw to the house of Jagdish Chander for borrowing the sum of Rs. 30,000/ , Sh. Jagdish Chander did not whisper about the presence of Satpal but claimed that the money was directly paid by him to husband of defendant no. 1. Strangely enough the theory of part funding of suit property by taking loan by Satish Kumar Taneja was not propounded in reply Ex. DW 1/1A to the legal notice of the plaintiffs. Even in written statement it was stated that loan was arranged from 'relatives and friends'. Reliability to the version could have been attached if instead of taking a shaky and open defence and leaving RCA No. 11 of 2007 Page No. 12 of 18 margin for manipulation in evidence, the defendant no. 1 would have come out straight with the names of creditors. Further defendant no. 1 has not disclosed as to when and in what manner the loan liability of her cousins was discharged by her husband. No document in this behalf is filed. While DW Satpal has deposed that the consideration amount was paid to the seller in Uttam Nagar court, DW Praveen Kumar Bansal has testified that the total amount of consideration of sale was paid at the residence of seller in advance. This hits the trustworthiness of DWs.
19. It is being thrusted that suit property had been purchased in the name of Smt. Sahiba Devi being the mother of Sh. Satish Kumar Taneja 'out of love and affection'. In fact the defendant no. 1 was not even aware in whose name the documents were got executed from the seller Sh. Rakesh Kumar. The legal notice Ex. PW 1/11 was got issued to defendant no. 1 by plaintiff no. 1 Sh. Lekh Raj Taneja after death of his wife. In her reply Ex. DW 1/1A defendant no. 1 insisted that the suit property was purchased by her husband by investing his funds and resources but in the name of sender of the notice i.e. Sh. Lekh Raj Taneja. No whisper about the documents of suit property having been executed in the name of Smt. Sahiba Devi, was made in the entire reply. It was claimed that the documents were got executed in the name of mother because she was the "head of family". In north Indian societal arrangement when eldest male in the family is alive, the female next in line is not bestowed this nomenclature. Even in that case Sh. Satish Kumar Taneja would have got GPA Ex. PW 1/6 executed from the seller in his own favour and not in favour of plaintiff no. 1. It is not the RCA No. 11 of 2007 Page No. 13 of 18 case of defendant no. 1 in pleadings that this document was got executed in favour of Sh. Lekh Raj Taneja out of so called "love & affection". The basis asserted by defendant no. 1 to explain the documents of property in the name of mother of her husband, therefore is unpalatable.
20. It is a usual & normal behavior that one who actually purchases any property for personal occupation will retain the title papers thereof with him. In the case in hand however all the documents got executed from the vendor were in the custody of plaintiffs who have produced them in the court. In Para 3 of the reply Ex. DW 1/1A to the legal notice, defendant no. 1 had claimed that she was being harassed, humiliated and terrorized by plaintiffs and other family members and that she had made written complaint about it at Police Post Matiala, New Delhi. No plausible reason has been furnished by defendant no. 1 for neither demanding nor taking any legal action against the plaintiff no. 1 for retrieving documents Ex. PW 1/2 to Ex. PW 1/5 and the previous set of similar documents which were in favour of the vendor Sh. Rakesh Kumar, even when the circumstances were aggravated and she was allegedly being maltreated.
21. The repeated assertions of Sh. Satish Kumar Taneja being a drunkard have just been refuted on behalf of the defendant by giving suggestions. No reason for his demise at comparatively young age is furnished. It is well neigh possible that he was spending good part of his earning on liquor leaving the family just to make two ends meet. There was therefore no scope of Sh. Satish Kumar Taneja saving any earnings and RCA No. 11 of 2007 Page No. 14 of 18 existence of least probability of somebody accommodating him for a loan of Rs. 50,000/ in 1992 of which there were no reasonable prospects of return.
22. The above analysis unambiguously indicate that the defence set up by defendant no. 1 is full of holes and that she has tried to improve her case with active assistance of her cousins yet could not succeed in the venture. The plaintiff on the other hand was able to make out an honest, conscionable and natural case of having invested amount out of his funds for purchasing the suit property. No doubt the earning sons of plaintiff no. 1 may be giving major part of their salary to him but that cannot be treated as their savings but thrown by them in family kitty for meeting family expenses. Such contributions of sons would also be meager taking into account the small period during which they may made contributions to family in comparison to long innings of their father. Moreover the sons may have been at the beginning of their payscales, the father must be at a mature stage of his payscale.
23. The contention that the plaintiffs cannot take the assistance of the provisions of The Benami Transactions (Prohibition) Act, 1988 for the first time in appeal, does not hold water in view of the fact that legal submissions available to the litigants can be raked up at any stage of the proceedings. Section 3 of the said Act, which came into force on 05.09.1988 puts a bar on Benami Transactions. Section 4 thereof, deemed to have become effective on 19.05.1988, constitutes an embargo to a suit, RCA No. 11 of 2007 Page No. 15 of 18 claim, action or defence in respect of any property held benami. Even if the stance of defendant no. 1 that the suit property was purchased by her husband by paying consideration amount of Rs. 75,000/ from his resources of which documents were got executed by him in the name of his parents benami, were to be accepted, the transaction was barred under the Act of 1988. The purported real owner or his successorininterest cannot raise a defence to assert the title of real owner. In fact the benami transaction was made punishable by Section 3(3) of the Act. Reliance in this behalf is placed upon 'R. Rajagopal Reddy Vs. Padmini Chandershekharan, AIR 1996 SC 238'.
24. The two judgments cited on behalf of defendant no. 1 are of no help to her as the litigation in both the cases had commenced prior to the coming into force of Section 3 & 4 of Benami Transactions Act. It was held in R. Rajagopal Reddy case that it shall not affect the legal rights of parties in the pending litigation at any stage but would bar claims based on Benami Transactions from date of enforcement, even if they may have taken place at any time before. In the case in hand the alleged Benami Transaction had taken place after coming into force of the act of 1988.
25. Here it needs to be emphasized that in 'O.P. Aggarwal Vs. Akshay Lal, 188 (2012) DLT 525' it was held that although documents such as agreement to sell, Power of Attorney, Will etc. do not strictly confer ownership rights as a Sale Deed, however such documents create certain rights entitling persons having them to claim possession of suit property as RCA No. 11 of 2007 Page No. 16 of 18 at least right to suit property would stand transferred to a person in whose favour such documents have been executed. The plaintiffs thus being the successors of female Hindu had the locus standi to file and maintain the present suit on the basis of documents Ex. PW1/2 to Ex. PW1/6.
26. In view of the above discussions, it is concluded that the findings reached by the Ld. Trial Court were at tangent and was not based on appropriate assessment of the evidence. No fault however can be imputed for nonconsideration of the effect of The Benami Transactions (Prohibition) Act as the parties do not claim to have canvassed it there. The findings on issue no. 1 in the impugned judgment therefore cannot be sustained and are hereby setaside. Resultantly the decree passed by Ld. Trial Court is also setaside. The issue is decided in favour of the plaintiff and preliminary decree of partition of the suit property described in site plan Ex. PW 1/1 is passed holding plaintiff no.2, defendant no. 1 and her sons as one unit, defendants no. 2 to 5 entitled to equal share (1/6th each) in it, inclusive of the devolution of share that had fallen in favour of plaintiff no. 1on demise of Smt. Sahiba Devi.
27. Preliminary decree be prepared. Trial court record is released with an attested copy of judgment and decree with direction to proceed for passing final partition decree in the matter after inviting suggestions as to the mode of partition of the suit property from parties or otherwise RCA No. 11 of 2007 Page No. 17 of 18 including by appointing local commissioner and for deciding the remaining issues in the suit.
28. Parties are directed to appear before Ld. Trial/Successor Court on 06.05.2013 at 2:00 pm.
29. Appeal file be consigned to Record Room.
Announced in the open court
on 22nd February, 2013 (Sunil K. Aggarwal)
Addl. District Judge (Central)10
Delhi
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