Delhi District Court
Mukesh Chand vs Pritam Singh on 24 April, 2010
1
IN THE COURT OF SHRI SURINDER S. RATHI:
ADJ: CENTRAL 07:ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO: 02401CO346122005
CS NO:84/05
MUKESH CHAND
S/o Sh. Govind Prasad
R/o D23, Panchsheel Enclave,
New Delhi. .......... Plaintiff
vs.
1. PRITAM SINGH
S/o Sh. Ishwar Singh
R/o A44, Mahipalpur,
New Delhi37.
2. Smt. VED WATI
W/o Sh. Ishwar Singh
R/o A44, Mahipalpur,
New Delhi37.
3. Smt. SUDESH
W/o Sh. Narinder
R/o V& PO Bharthal,
New Delhi.
4. Smt. MAYA
W/o Sh. Jai Parkash
R/o V& PO Bharthal,
New Delhi.
5. Shri GOVIND PRASAD
S/o Sh. Ram Swaroop
R/o 373 to 377, Bazar Sita Ram,
Delhi. ........... Defendants
DATE OF INSTITUTION : 27.04.2005
DATE OF FINAL HEARING : 22.04.2010
DATE OF FINAL JUDGMENT : 24.04.2010
SUIT FOR SEEKING DECLARATION AND
CONSEQUENTIAL RELIEF OF POSSESSION
@contd
2
JUDGMENT
1. This suit has been filed by the plaintiff for seeking declaration against defendant no.1 to 4 to the effect that registered sale deed dated 25.3.2004 executed by defendant no.1 as attorney of defendant no.5 in favour of defendant no.2 to 4 is null and void and not binding on plaintiff . Consequential relief of possession of suit land ad measuring 2 bigha 10 biswa out of Khasra no.358 (2 10) at extended Lal Dora of Village Bijwasan, Delhi is also sought.
2. Case of the plaintiff as per plaint is that plaintiff's father Sh. Govind Pd, defendant no.5 in this suit , constituted a HUF by the name of Govind Parsad of which plaintiff was a member as coparcener . This HUF own several movable and immovable properties including the above land where a farm house was constructed out of HUF funds. This land was purchased out of HUF funds. It is further case of the plaintiff that in first week of December'2004 , he went to the suit property and found that it is under lock and care of some other person and care taker of the suit property appointed @contd 3 by the HUF namely Sh. Ram Kishan was also not there. Plaintiff got in touch with caretaker Sh. Ram Kishan who in turn told him that plaintiff's defendant no.5 father has appointed defendant no.1 as an attorney to look for some buyer for the property. Plaintiff was also apprised that defendant no.1 has already executed a sale deed in favour of defendant no.2 to 4. Thereafter plaintiff obtained certified copy of the sale deed and found that the suit property stood sold for consideration of Rs.14,12,500/ vide sale deed registered as document no.2273 additional book no.1, volume 13, 12 at page no.170182 on 25.3.2004.
3. Plaintiff found that this property was sold by his defendant no.5 father pretending to be exclusive owner of the property even though it was a HUF property. As per plaintiff since defendant no.5 had no legal right to sell the suit property , it shall be treated as void and not binding on plaintiff. As such he came with this suit seeking above mentioned reliefs.
4. Upon service of summons of this suit, it was contested by defendants. Common WS was filed by defendant no.1 to 4 wherein they prayed for @contd 4 dismissal of the suit on the objection that it is a collusive suit between plaintiff and defendant no.5 , son and father duo. It is further objected that plaintiff has concealed material facts and that general power of attorney executed by Defendant no.5 in favour of defendant no.1 was of irrevocable nature and also accompanied with execution of a Registered Will dated 9.1.2004 in favour of defendant no.2 to 4 coupled with an Agreement to Sell by defendant no.5 in favour of defendant 2 to 4. It is also pleaded that defendant no.5 received the total sale consideration and in part performance of the agreement for sale, he handed over the physical possession of the suit property to defendant no. 2 to 4 by executing a cash receipt and possession letter apart from indemnity bond and affidavit. As per defendants , all this was done not only with consent and knowledge of plaintiff but also in the physical presence of plaintiff.
5. It is further case of the defendants that plaintiff and defendant no.5 are in collusion and after the execution of the above documents , defendant no.5 filed a suit for mandatory and permanent injunction against defendant no.1(to restrain him from executing the sale deed) having suit no. 80/04 titled Govind @contd 5 Parsad Vs. Pritam Singh. This suit was however, was dismissed as withdrawn by defendant no.5 on 30.7.04.
6. Thereafter defendant no.5 filed yet another suit seeking cancellation of sale deed, recovery of possession , damages, and mesne profits as suit no. 135/04 which is said to be pending trial. As per defendants this suit has been filed to pressurise and compel them to yield to dishonest intentions of plaintiff and defendant no.5. It is claimed that in all the documents executed by defendant no.5 in favour of other defendants, he claims himself to be exclusive owner of the property and as such the story of HUF has been concocted falsely. It is contended that had there been any truth in the plea of the plaintiff, he would have joined the proceedings in the other suit filed by his father against the answering defendants qua the same property. It is claimed that the plea of plaintiff that his father's properties actually belongs HUF is hit by Benami Transaction ( Prohibition Act ). With these pleas , they have prayed for dismissal of this suit.
@contd 6
7. Separate replication to this WS was filed by the plaintiff wherein he reiterated his pleaded case and denied the averments of the defendants. He denied that he was present at the time his father executed document in favour of defendant no.1 and 4.
8. Separate WS was filed by defendant no.5 wherein he almost entirely admitted the case of the plaintiff that the suit property belongs to the HUF and that it could not have been sold by him to other defendants. However, defendant no.5 admitted that he had executed registered power of attorney in favour of defendant no.1 but he claimed that defendant no.1 has no right the execute the sale deed on his behalf. As per him , he was desirous of selling the suit property as KARTA of HUF and when this fact came to the notice of defendant no.1, he alongwith one Sanjay approached the answering defendant as property dealer and assured him that they would find a buyer for him. It is further case of defendant no.5 that the property was agreed to be sold for Rs. 1,14,12,500/ and part payment of Rs.14,12,500/ was paid to him by defendant no.5 and balance 1 crore was supposed to be paid @contd 7 subsequently. He accepted that defendant no.1 was given the possession of the suit property except the portion which was in occupation of Sh. Ram Kishan, his Care Taker. As per him he used to enjoy drinks with defendant no.1 and his friend Sh. Sanjay . As per him on 9.1.2004 when he went to the house of defendant no.1 , he was made to have drinks and was taken to the office of Sub Registrar Kapeshera where he was made to sign certain documents.
9. As per him he was not presented before the Sub Registrar and due to influence of drinks , he was not aware of the nature of document which he signed . It is his case that a fraud was played upon him while getting the documents executed. He filed a separate civil suit against the other co defendant seeking cancellation of registered document executed by him. As per him vide notice dated 8.3.2004, he revoked the power of attorney executed by him in favour of defendant no.1 which was followed by execution of revocation deed dated 3.2.2004 . He has prayed for decreetal of the suit filed by his plaintiff son.
@contd 8
10.Upon completion of pleadings , following issues were framed by Ld. Predecessor on 6.12.2006.
11.ISSUES
1.Whether the plaintiff has filed the present suit in collusion with defendant no.5 (OPD)
2.Whether plaintiff is guilty of concealment of material facts and has approached the court with clean hands? (OPD)
3.Whether the suit is liable to be stayed under Section 10 CPC?
4.Whether the plaintiff was present with defendant no.5 at the time of execution of POA, Will etc. in favour of defendant no.1 to 4? (OPD 1 to 4.)
5.Whether defendant no.1 had validly sold suit property to the defendant no.2 to 4? (OPD 1 to 4)
6.Whether the land as mentioned in para 2 of the plaint belong to joint Hindu Family of plaintiff and defendant no.5. If so to what effect? (OPP).
7.Whether plaintiff is entitled to declaration as sought?
8.Whether the plaintiff is entitled to the recovery of possession of the suit land?
9.Relief.
@contd 9
12.To prove his case, plaintiff examined himself as PW1 apart from examining PW2 Sh. Ashok Kumar from Income Tax Department and PW3 Sh. K.K.Gupta, Chartered Account. On the contrary defendant no.1 to 4 examined DW1 Satyapal from Archive Department of Sub Registrar Office, DW2 Sh. Jai Bagwan, Patwari, Vasant Vihar, DW3 Sh. SSP Sinha , Ahlmad from LD. ADJ's Court , DW4 Sh. Gajender Singh .
13.I have heard arguments of LD. Counsel Sh. Satya Parkash Gupta advocate for plaintiff , LD. Counsel Sh. Varun Goswami for Defendant no.1 to 4. Ld.Counsel Sh.Akhil Bansal advocate for defendant no.5. I have perused the case file carefully.
14.In his deposition as PW1 , plaintiff has deposed on the lines of plaint vide affidavit Ex. PW1/A. He has exhibited on record Wealth Tax document of the suit property as Mark A , B and C, certified copy of the impugned sale deed as Ex. PW1/4. Plaintiff was not cross examined by defendant no.5 at all. In his detailed cross examination done on behalf of defendant no.1 to 4, he has stated that he is not aware as to when the suit property was purchased by his @contd 10 father but as per him it was purchased around 30 years ago out of HUF funds. He expressed his unawareness about the title documents of the suit property or the person from whom it was purchased or the mode of payment through which the same consideration was paid. He also expressed his unawareness, if the title documents of the suit property has a mention that it is being purchased by his father out of HUF funds. He was not even aware as to in whose name the property stands mutated in the revenue record.
15.As per him the construction over the property was carried out 20 years ago out of the HUF funds but no document qua the same was placed on record. Importantly he even expressed his unawareness as to when the HUF, pleaded by him, came into existence or that whether the HUF is assessed to Income Tax. As per him he has not seen wealth tax return of HUF prior to 89 90 and after 9192. He accepted that he has no document to show that he is a member of HUF or any document to show that suit property was purchased out of the HUF funds. He expressed unawareness about any business run by the HUF or if any bank account qua it is maintained in the name of HUF. He @contd 11 accepted that he has never signed any document as a member of HUF. As per him M/s Ramji Lal Ram Swaroop is a partnership firm belonging to him , his defendant no.5 father apart from one Sh. Madan Lal Gupta and Sh. Jai Parkash Gupta. He accepted that he has not disclosed in his Income Tax return that he is a member of HUF even though as per him he is getting share from the income of HUF business.
16. He expressed his unawareness about pendency of civil suit filed by his father against the defendant no.1. As per him he was constrained to file the suit after his father refused to share the proceed of sale with him. However, he accepted that he neither served any notice to his father nor lodged any complaint in this regard. He even did not serve any notice upon the defendant no.5. As per him he was not having cordial relations with his father as his father does not like him since his childhood even though they are residing in the same property. He could not disclose any reason for lack of cordiality between him and his father. He accepted that he did not formally object to the sale of the suit property by his father in any manner apart from @contd 12 filing of this case. He accepted that he never contributed his personal income with HUF or if HUF ever purchased any other property or as to how much the HUF pays to its member. He is not even aware of number of members of the claimed HUF.
17.PW2 Sh. Ashok Kumar from the Income Tax Department exhibited PW2/1 to show that the summoned income tax record of the 198990 stood weeded out.
18.PW3 Sh. K.K.Gupta is Chartered Account of defendant no.5 Sh. Govind Pd. father of plaintiff . As per him defendant no.5 is his client and he has been filing wealth tax returns both individually as well as Govind Pd. HUF. He has exhibited on record copy of return March'1989 of HUF as Ex. PW3/A, of 1990 as Ex. PW3/B, of 1991 Ex. PW3/C. In his cross examination , he expressed his unawareness as to whether the suit property was purchased from HUF funds or as to what was the title documents qua the suit property. Upon being shown Ex. A1, certified copy of the title deed of the suit property in the name of defendant no.5, he could not say with certainty if this is the title document @contd 13 of the suit property since it was in Urdu. He accepted that document Ex. PW3/C had certain over writing which might have been done at his office. He placed on record personal wealth tax assessment of defendant no.5 in his individual capacity as Ex. PW3/DA for the year 199091. He expressed his unawareness if plaintiff and defendant no.5 had any property dispute between them. As per him status of HUF is that of partner of M/s Ramji Lal Ram Swaroop. He accepted that there is no document to show that the suit property was purchased from HUF funds. Even this witness was not cross examined by defendant no.5 at all.
19.On the other hand DW1 Sh. Satya Pal examined by the defendant produced original record of the title document of the suit property in the name of defendant no.5 which was registered on 3.7.68 at registered no.4236 additional book no.1, volume 2005 pages 1 to 6.
20.DW2 is Sh. Jai Bagwan, Patwari, of Vasant Vihar. He has exhibited on record certified copy of Karywahi Register and Khasra Girdawari of suit property as Ex.PW2/A and B. @contd 14
21.DW3 Sh. SSP Sinha, Ahlmad exhibited on record proceedings pertaining to suit between defendant no.5 and defendant no.1 as DW3/1 to DW3/4.
22.DW4 Sh. Gajender Singh deposed on the lines of WS of defendant no.1. As per him , he is real younger brother of defendant no.1 and he apprised the court that he is deposing on behalf of his brother because Sh. Pritam Singh was seriously injured in a road accident on 25.8.07 as a result of which he suffered head injury and is now mental infirm. DW1 was reportedly appointed guardian of defendantno.1 on 17.4.08 Under Order 32 CPC. He has exhibited the power of attorney as Ex. PW1/1, Will dated 9.1.2004 as Ex. PW1/2, the indemnity Bond dated 9.1.2004 as Ex. PW1/3, affidavit dated 9.1.2004 as Ex. PW1/4, possession letter dated 9.1.2004 as Ex.PW1/5, receipt dated 9.1.2004 as Ex. PW1/6, copy of suit no. 80 of 2004 titled as Govind Prasad Vs. Pritam Singh as Mark A, written statement as Mark B, copy of the order dated 30.7.2004 as Mark C, extract of revenue record of the year 1994195 in respect of the suit property as Mark D & E. @contd 15
23.He was cross examined at length by Ld. Counsel for defendant no.5 wherein he accepted the factum of pendency of the suit between defendant no.5 and defendant no.1 which is pending trial. In his cross examination done on behalf of plaintiff , he accepted that plaintiff has not signed any document as witness. He , however, denied that plaintiff did not accompany his defendant no.5 father at the time of execution of document. He accepted that plaintiff was not present at the time of execution of sale deed by defendant no.1 in favour of defendant no.2 to 4.
24.Now I shall dispose off individual issues framed in this case. ISSUE NO. 3
25.
3.Whether the suit is liable to be stayed under Section 10 CPC?
26.This issue was framed on the objection of defendant no.1 to 4. It ought to have been decided then and there by LD. Predecessor. Now, when the suit is being finally decided , there is no logic behind pressing a stay u/s 10 CPC. As prayed by LD. Counsel for defendants and upon no objection by LD. Counsel for plaintiff, this issue is hereby struck down.
@contd 16 ISSUE NO.1
27.
1.Whether the plaintiff has filed the present suit in collusion with defendant no.5 (OPD)
28.Plea of collusion between plaintiff and his defendant no.5 father is one of the main plank defences of defendant no.1 to 4 . As detailed supra , it is evident that defendant no.5 admittedly executed registered general power of attorney Ex. DW4/1 dated 9.1.2004 apart from executing registered Will 4.2.2002 coupled with agreement to sell , indiminty bond, affidavit and possession letter Ex. PW4/2 to PW4/5 respectively . He even admittedly recievd a sum of Rs.14,12,500/ on that day from defendant no.2 to 4. Admittedly in neither of these documents there is any whisper of change of title of the suit property from self purchased suit property of defendant no.5 to a jointly held HUF one . Having divested himself of all his rights , title, interest and possession of the suit property in favour of defendant no.1 to 4 upon receipt of due consideration, it is apparent that defendant no.5 tried to turn the table on the buyers of this property. In order to achieve his desire to usurp the sale @contd 17 consideration of more than Rs.14 lacs, to begin with he purportedly executed a deed of cancellation of power of attorney executed by him in favour of defendant no.1, following by an injunction suit seeking to restrain him from executing a sale deed. But this line of action of defendant no.5 failed since by that time the registered sale deed . Ex. PW1/4 was already executed by defendant o.1 in favour of defendant no.2 to 4.
29.Thereafter defendant no.5 came up with the separate independent suit with a story that he was made to sign the title documents qua sale of the suit property under the influence of liquor and as such he sought cancellation of the sale deed and recovery of possession. Even in this suit there was no mention that the nature of the suit property was ever changed from the self acquired one in that of HUF. Interim injunction application of defendant o,.5 in that suit was dismissed. When that suit was still pending trial the next salvo which was fired towards defendant no.1 to 4 is the suit in hand which is filed by son of the defendant no.5 i.e. plaintiff Sh. Mukesh Chand .
@contd 18
30.This time, as detailed supra, a totally new dimension to the efforts to disrob the defendant no.1 to 4 of the title and possession was put forth. The collusion between the plaintiff and his defendant no.5 father is evident from the fact that even in though in his earlier suits, defendant no.5 is totally silent on the HUF story , in his WS filed in this case , he accepted all the pleas of his plaintiff son in a parrot like fashion. So much so that in the concluding paragraph of the WS he has prayed for decreetal of the suit in favour of his son. Collusion is also apparent from the fact that when the plaintiff stepped into the witness box not even a single question was put to him by or on behalf of defendant no,.5 father, but when the witnesses of defendant no.1 to 4 were examined, they were cross examined at length on behalf of defendant no.5.
31.In order to shield collusion and portray that relations between the plaintiff and defendant no,5 father are strained, all that is said is that they are not in talking terms since plaintiff's childhood. This bald plea is falsified by the fact that both the plaintiff and defendant no.5 are living in the same house as @contd 19 stated by plaintiff in his cross examination. Even their Chartered Account namely PW3 Sh.K.K.Gupta is common and as per this witness he is not aware of any problem between both his clients i.e. plaintiff and defendant no.5 with relation to any property matter. Both son and father duo are admittedly partners in M/s Ramji Lal Ram Swaroop partnership firm which is in the business of nuts and bolts. It is also revealed from the record that initially plaintiff herein had no issue qua sale of the suit property by his father in favour of defendant no.1 to 4 and as such he admittedly did not make any attempt to become a party in the earlier two suits filed by his father. As per him when he came to know of the sale of the suit property, he demanded his share of money from his father . When his father refused to share the sale proceed with him, he decided to file this suit in hand. This clear admission by plaintiff in his cross examination goes to the root of the matter in so far as it clearly indicates that plaintiff never had any qualms qua the authority of his father to sell the suit property. It is rightly argued by LD. Counsel for the defendant that after this sale, the property prices escalated many folds in @contd 20 that area on account of announcement of Metro project and this led to filing of series of suits by the plaintiff and his father against the defendants.
rd However, this 3 litigation filed by the father and son duo also failed to fructify their designs to get the property back when plaintiffs' Order 39 r 1& 2 CPC application in the suit in hand was also dismissed by Ld. Predecessor vide a detailed order dated 30.8.06. In that order Ld. Predecessor categorically mentioned that plaintiff has not approached this court with clean hand and as such he is not entitled any discriminatory relief. These observations came on record while pressing for adinterim stay as plaintiff son concealed the factum of dismissal of a similar injunction application moved by the defendant no.5 in the other suit against the defendant 1 to 4.
32. Another startling and disturbing fact observed on record showing malafide and collusion on the part of plaintiff and defendant no.5 is that as per para 5 of the interim order dated 30.8.06 it is specifically mentioned that till that date, defendant no.5 had not filed any written statement but somehow, an anti dated WS was purportedly placed on record in a clandestine manner as if it @contd 21 was filed on 18.11.2005. Even during the course of final arguments, Ld. Counsel for plaintiff Sh.Gupta was time and again defending the case of defendant no.5 as if he holds brief of both the plaintiff and defendant no.5.
33.In view of the above discussion, I am of the considered view that there is more than enough material available on record to show that plaintiff and defendant no.5, the son and father duo are in collusion with each other. Their sole aim appears to be to grab the property back which was initially sold through registered documents against due consideration. This conclusion is further fortified by the fact that when in the earlier two suits filed by defendant no.5 father, he failed to get any interim relief on his story that he executed sale documents in drunken condition, a totally new story was propounded and a fresh suit was got filed through his plaintiff son and that too by concealing previous litigations. As such this issue is decided against the plaintiff and defendant no.5 and in favour of defendant no.1 to 4. ISSUE 2
34.
2.Whether plaintiff is guilty of concealment of material facts and has approached the court with clean hands? (OPD) @contd 22 rd
35.As discussed in detail, supra, the suit in hand is 3 litigation in row filed by plaintiff and defendant 5 son and father duo against defendant no.1 to 4. Admittedly there is not even a whisper of previous two litigations launched by father of plaintiff i,.e. defendant no.5 , in the plaint in hand. Although Ld. Counsel for plaintiff tried to make out the case that plaintiff was not aware of earlier two litigations but this plea is absolutely unbelieveworthy and is contrary to evidence available on record. As mentioned supra, both the father and son live in the same house and are doing the same business as partners. They also have same chartered accountant looking after their accounts and income tax matters. As admitted by the plaintiff in his cross examination , had his father shared the sale proceed with him, he would not have filed this suit. As per him the sole reason why this suit was filed is that proceed of sales was not shared with the plaintiff. If the grievance was simply non sharing of proceeds , then the remedy lie in suing of defendant no.5 by plaintiff for his claimed share in the sale proceeds. However, admittedly , plaintiff neither lodged any civil criminal or for that matter of any other nature @contd 23 complaint against his father even though as per him , he was coowner of the suit property.
36.It is unbelieveworthy that while living in the same house and doing same partnership business , a son was ignorant that his father has filed two litigations qua a property which is claimed to be bone of contention between them as well. It is specific case of the defendant no.1 to 4 that when the entire transaction took place between them and defendant no.5, plaintiff was through out present as his son. This fact has no where been denied by defendant no.5 either in the pleadings or in the cross examination of either of the defendant's witnesses. This suit in hand as framed by plaintiff son is thoroughly marred by untrue facts. Right in the first para of the plaint it is mentioned that the claimed HUF was a duly constituted one. During the course of arguments it is conceded that there is absolutely no evidence documentary or otherwise to show whether the claimed HUF was ever formally constituted. Such has been the demenor of the plaintiff that not even date, month, year or even decade of the alleged constitution of the claimed @contd 24 HUF was put forth despite a specific query during the course of final arguments. Rather it was conceded that contents of para 1 are factually wrong in this regard.
37. Similarly in the second para of the plaint it is mentioned that the claim Govind Pd. HUF has several immovable and movable properties. But it was conceded not only in the final arguments but also in the cross examination of the plaintiff by him that there is no such other immovable property. In this para itself it is pleaded that the suit property was purchased from the HUF funds. Even this plea was accepted to be incorrect during the course of final arguments and even in the cross examination of plaintiff . Likewise, para 3 of the plaint says that suit property was constructed out of HUF Funds. This fact was also found and accepted to be incorrect in the cross of plaintiff .
38.Moreover, it would not be out of place of mention there that in the suit filed by defendant no.5 against the defendant o.1 to 4 , certified copy of which is available on record as Ex. DW3/1 , defendant no.5 also concealed many material facts and documents including execution of registered Will, @contd 25 Agreement to Sell , indemnity bond, affidavit , possession letter and money receipt qua full and final consideration of Rs.14,12,500/ from defendant no.2 to 4 , proved on this record as Ex. DW4/2 to Ex. DW4/6 respectively. It is astonishing to observe that when all these documents were pleaded and confronted by defendant no.1 to 4 in that suit filed by defendant no.5, he admitted execution thereof but came up with a totally new story that he did so in drunken condition.
39.It is at that juncture that the story of drunken disposition was propounded and brought on record for the first time by defendant no.5 herein which he repeated in the WS of this case. It is unbelieveworthy that had there been an iota of truth in the story , he would have mentioned the same in the plaint of first suit. Such is the deceitful courage of defendant no.5 that he is coming up with this story qua those documents which are registered before LD. Sub Registrar and a great sense of legal sanctity and finality is attached to registered title documents. Not only this the execution of title documents in favour of defendant no.1 to 4 was followed by the actual delivery of original @contd 26 registered old deed of the suit property through which defendant no.5 purchased it on 29.06.1968. Also till date there is nothing on record to show that father of plaintiff who received Rs. 14,12,500/ as sale consideration of the suit property from remaining defendants ever returned back this money or even offered to return the same. This money was paid to plaintiff's father by three cheques worth Rs. 14,00,000/ and Rs. 12,500/ in cash, as indicated in the registered sale deed Ex. PW 1/ 4.
40.Although in hyper technical view factual concealments done by defendant no. 5 in his other two plaints cannot be attributed to the plaintiff herein but since all these three litigations are so closely interwoven and inter connected that this situation calls for a comprehensive macro view of the matter. The legacy of approaching the courts with unclean hands marred with strategic concealment of facts set rolling by his father, has been carried forward by his plaintiff's son in this suit. As such in view of the above discussion I have no hesitation in concluding that plaintiff is guilty of concealment of the facts and has not approached this court with clean hands. It is a settled legal @contd 27 preposition that one who seeks equity must also do equity. The lis of a party which has approached the court with unclean hands can be brought to an end on this score itself . But I would proceed to decide other issues as well so that in the factual pleas of the parties are taken to their logical conclusion and decided finally.
41. ISSUE NO. 6
Whether the land as mentioned in para 2 of the plaint belongs to Joint Hindu Family of plaintiff and defendant no.5. If so to what effect? (OPP).
42.While opening his arguments on this issue , it is categorically conceded by LD. Counsel for the plaintiff that even though in para 2 of the plaint, it is specifically pleaded that the suit land was purchased out of HUF Funds but neither there is any documentary or any other evidence to show this . It has been conceded by PW1 in his cross examination as well that he has no evidence whatsoever to support his this plea. LD. Counsel for plaintiff further conceded that even though in para 1 of the plaint, it is specifically pleaded that the HUF by the name of Govind Pd. was constituted by defendant no.5, there is neither any documentary nor any oral evidence to show as to on @contd 28 which date of which month and what year this HUF was constituted. Plaintiff and his Ld. Counsel could not even specify the decade when the claimed HUF was constituted. It is further conceded by LD. Counsel for plaintiff that the suit property was purchased by defendant no.5 in his own name on 1.7.1968 and there is nothing on record to show that on that day the claimed HUF by the name of Govind. Pd. was in existence in any manner. It is also conceded that there is no mention of any HUF whatsoever in the entire registered sale deed Ex. A1 through which defendant no.5 purchased the suit property in his individual name. It is also conceded that since 1.7.1968 till date defendant no.5 has never executed any document of any nature which under Transfer of Property Act or Under Section 17 of Registration Act could have legally changed the title or ownership of the suit property from defendant no.5's self owned to jointly held property of HUF.
43. Admittedly the whole case of the plaintiff rests on three purported wealth tax returns Ex. PW 3/A to C. Record shows that plaintiff had summoned a witness from Income Tax Department as PW2 Sh.Ashok Kumar. As per this witness @contd 29 record older than five years are weeded out. Even though a competent person who was a Tax Assistant was present in the court he was not shown the above three purported tax returns. It is claimed by the plaintiff in the plaint that the suit property was assessed to income tax in the return of HUF but as per record copy of return was placed on record on 21.11.08 when PW2 from Income Tax Department was examined. Instead of showing this purported returns to the witness plaintiff found it convenient to put exhibits over these returns through his chartered account PW3 Sh. K.K. Gupta.
44.This witness claimed that he had filed wealth tax returns of defendant no. 5 client in his individual capacity apart from as Govind Pd. HUF, upto March'91. This witness Exhibited the return of 8990 as Ex. PW 3/A even though it does not bear his signatures. The mode of proof was validly objected to by Ld. Counsel for defendant no. 1to 4. These purported acknowledged forms are said to be bearing signatures of defendant no. 5 but either defendant no. 5 was confronted with these documents nor he was produced in the witness box to depose about their genuineness. This witness has nowhere stated that @contd 30 these returns were filled in his handwriting or that it was signed by defendant no. 5 in his presence although he claimed that he filed these returns but admittedly there is no endorsement or mark to show that this witness actually did so.
45.There is a big questions mark as to the genuineness and believeworthiness of these documents since admittedly one of the returns Ex.PW3/C is admittedly full of over writings and alterations. These returns are said to be in two sheets qua each year but the first sheet over which a stamp purportedly belonging to Assesee Officer is appended does not contain any reference of the suit property. The accompanying carbon copy, where there is a bald mention of "Agricultural Land at Bijwasan", neither contains any rubber stamp to show that it was the same annexure which was filed with the income tax authority nor particulars of the suit property namely khasra number and raqba are mentioned. The annexed document is also unbelieveworthy for the reason that it opens with reference of partnership firm M/s Ramji Lal Ram Swaroop, Hauz Quazi, Delhi6 wherein plaintiff and defendant no.5 are admittedly @contd 31 partner apart from two other partners.
46.Record shows that the purported assessment for the next financial year 1990 91 is almost carbon copy of the previous purported assessment and this one too suffers from all the above infirmities. Had there been any genuineness in the claim of plaintiff that after his father purchased the suit property in his own individual name and apparently out of his own personal funds, at any point of time he changed its nature to HUF one, he would have definitely executed some document in this regard. A businessmen family which claims to be so much legally aware that they file regular income tax returns, can not be expected to change the legal stature of big piece of immovable property from self owned to HUF one without absolutely any evidence oral or documentary. It is not expected that such a family would not be aware of the date, month year or even decade of such transition of that property for self owned to HUF one.
47.Although mere reference of some agricultural land at Bijwasan does not co relate to the suit property but the above referred purported annexure to the @contd 32 Wealth Return shows that this land was fetching Rs.55,000/ annual income to its owner. This income was purportedly an agricultural income as it is claimed to be exempted from income tax .
48.Even if this plea is believed , then there must have been corresponding Girdawari entries in the corresponding Khasra / Girdawari Revenue Records to show as to what crops were sown and by whom . Failure of the plaintiff and for that matter defendant no.5 as well to bring and prove on such revenue records calls for drawing of an adverse inference against them U/s 114 (g) of Evidence Act. It would not be out of place to mention that such revenue records are not weeded out by Revenue Department. Production of these documents would have also thrown light on as to whether Bhoomidhari rights of the claimed agricultural land was ever changed from the name of defendant no.5 to the name of the claimed HUF. If such a mutation is not carried out in Revenue records , then the agricultural income of a recorded Bhoomidhar can not be assessed in the ITR of a different person with no Bhoomidhari rights. As such, for foregoing reasons, in my considered view @contd 33 not only the above ITRs are not properly proved on record but even if they are looked into , they do not corelate to the suit property. As such they can not be relied in any manner to arrive at the conclusion that the suit property ever belonged to Govind Pd. HUF and not to Govind Pd. , Defendant no.5. As such mere marking of exhibits on a document does not tantamount to proving of the same .
49.In case titled LIC OF INDIA VS. RAM PAL SINGH JT 2010 (2) SC 54, Hon'ble Supreme Court ruled :
" Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act can not be relied upon by the Court Contents of the document can not be proved by merely filing in a court."
50. In case titled R.V.E. Venkatachala Gounder Vs. A.V. and V.P. Temple reported in AIR 2003 Supreme Court 4548 it has been held that :
"Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be @contd 34 classified into two classes (i) an objection that the document which is sought to be proved is itself inadmissible in evidence and (ii) where the objection does not dispute the admissibility of document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case merely because a document has been marked as "an exhibit" an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence is tendered and once the document has been admitted to be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, it taken at the appropriate point of time would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. the omission to object becomes fatal because by this failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof."
51. M/s Unimode Overseas Limited VS. J & K Cargo Movers 2002 (3) RCR Civil 816, Hon'ble Delhi High Court observed that :
" mere marking of exhibit on a document does not mean that the document has also been proved ."
@contd 35
52.On the contrary as per record, it is the defendants who brought the relevant revenue record to be belie the case of plaintiff. Karywahi Register and Khasra Girdawari of village Bijwasan, Tehsil Vasant Vihar Ex.DW2/ A and B categorically shows that after the suit property was purchased the by the defendant no,.5 in the 1968 , in continues to be in his individual name and it was never converted into a HUF one . The only mutation carried out after 1968 was in the name of defendant no.2 to 4 after it was sold them by virtue of Registered Documents.
53.Since the belated plea of the suit property being HUF was raised by the plaintiff for the first time in the suit, as per settled legal proposition ,the onus of proving the same by cogent and convincing evidence ,that property was bought out of HUF funds rested on the shoulders of plaintiff and for that matter on his defendant no.5 father.
54.In the latest case titled Lt. Colonel R.R.Chandra Vs. Sandeep Chandra 166 (2010) DLT 50 while dealing with issue of individually held property and joint Hindu Family property in a Hindu Family , Hon'ble High Court observed: @contd 36 ......... There is no presumption that property owned by any member or members of the joint family is Hindu undivided family property. The members asserting so ( that the property is joint family property) has to prove by cogent and convincing evidence that he , or other members acquired the assets by investing joint family funds or nucleus . "
55.In another case titled Rukhma Bai Vs. Laxmi Narain AIR 1996 SC 335 , the Supreme Court held that:
".....there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that said property has been acquired without any assistance from the joint family property."
56.In another case titled Makhan Singh Vs. Kulwant Singh JT 2007 (5) Supreme Court 288 while dealing with the same issue, Hon'ble Supreme Court observed:
"The legal principal, therefore, is that there is no presumption of a property being a joint family property only on account of existence of a joint Hindu family. The one @contd 37 who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and onus would shift on the person who claims it to be selfacquired property to prove that he purchased the property with nucleus that was available."
57.In another landmark judgment K.V.Narayan Swami Iyer Vs. K.V.Rama Krishna Iyer (1964) 7 SCR 490, Hon'ble Supreme Court ruled:
" there is no presumption in law that a property purchased in the name of a member of a family had ipso facto the character of joint Hindu family property unless it could be shown that the family possessed a nucleus for the purchase of the same . "
58.Coming back to the facts of the case in hand, it is admitted case of the parties that there is nothing to show that the claimed HUF was in existence on 1.7.1968 when the suit property was purchased by defendant no.5 in his individual name . Similarly, also there is nothing to show that there was any nucleus or common corpus of the claimed HUF which could have been used to purchase the property and also anything to show that after its purchase, the property was thrown into the common pool of HUF properties. In the absence @contd 38 of any such material and in view of above discussion I have no hesitation in concluding that suit property never belonged to claimed the HUF at any point of time. The suit property remained a self owned property of defendant no. 5 since 1968 upto 2005 when he sold the same through registered documents to defendant no. 1 to 4 against due consideration received by cheques. As such this issue is decided in favour of plaintiff and against defendant no. 1.
ISSUE NO. 5:
59.
Whether defendant no.1 had validly sold suit property to the defendant no.2 to 4? (OPD 1 to 4)
60.In view of the decision of above issue I see no illegality in sale of the suit property by defendant no. 5 to defendant no. 2 to 4 through defendant no.1. As regards the validity of sale deed executed by defendant no.1 in favour of defendant no. 2 to 4 i.e. Ex. PW1/4, record shows that he executed it as attorney of Defendant no.5 against consideration received by defendant no.5 from defendant no.2 to 4. Interestingly it is observed that although this suit calls for cancellation of the sale deed but it does not contain any relief qua @contd 39 cancellation of other registered documents executed by defendant no,5 in favour of deendantno.2 to 4 i.e. registered Will, Agreement to Sell , indemnity bond, affidavit , possession letter and money receipt qua full and final consideration of Rs.14,12,500/ from defendant no.2 to 4 , proved on this record as Ex. DW4/2 to Ex. DW4/6 respectively. Rather the plaint is totally silent about any of these documents and it also doe not talk of purported deed of cancellation of attorney executed by defendant no.5. Even otherwise this unilateral attempt to cancel the power of attorney Ex. DW1/4 is per se in consequential since admittedly at the time of execution thereof it was executed as irrevocable in nature and also because it was against consideration of Rs.14,12,500/ received from codefendants, which was never returned by the executor defendant no.5. As such this issue is decided against the plaintiff and in favour of defendant no.2 to 4. ISSUE NO. 4
61. Whether the plaintiff was present with defendant no.5 at the time of execution of POA, Will etc. in favour of defendant no.1 to 4? (OPD 1 to 4.) @contd 40
62.It has come on record as per defendant no.2 to 4 that plaintiff herein was present in his capacity as son of defendant no.5, when defendant no.5 executed series of documents in favour of defendant no.1 to 4. As discussed supra, although plaintiff has denied this but there is no denial qua this from the side of defendant no.5. Even otherwise, as concluded supra, once it is held that the suit property of defendant no.5 was personally owned which he legally sold to defendant no.2 to 4 through defendant no.1 , presence or otherwise of plaintiff at that time is in consequential and has no direct bearing on the merits of this suit. This issue stands disposed off accordingly . Relief
63. In view of decision of all the above issues, I have no hesitation in concluding that suit of the plaintiff is absolutely devoid of even a fragment of any merit whatsoever. Same is accordingly dismissed with cost. However, before parting with the suit , since in the decision of issue no.1 a collusion between plaintiff and defendant no.5 , son & father duo , was found apart from finding in decision of issue no.2 that plaintiff is guilty of concealing material facts and @contd 41 he has pleaded wrong facts in this suit which is filed with unclean hands, he deserves to be not only reprimanded but also burdened with penal cost. It is a settled legal proposition in various judgments passed by Hon'ble Apex Courts that non disclosure of relevant facts and material and pleading false facts in the court to obtain advantage amounts to playing fraud on court.
64.In case title S. P. CHENGALVARYA NAIDU vs. JAGANNATH (1994) 1 SCC 1 Hon'ble Supreme Court ruled : " The Courts of Law are meant for imparting judgment between the parties. One who comes to the court must come with clean hands. A person , whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation ................. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to other side then he would be guilt of playing fraud on the court as well as on the opposite party."
@contd 42
65.In case titled B.D.Paralakar VS. State of Maharashtra (2005) 7 SCC 605 Hon'ble Supreme Court ruled : "Suppression of material document would amount to fraud on the Court .... It is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intending to get an advantage ....... Fraud vitiates every solemn act. Fraud and justice never dwell together..... It is also well settled that misrepresentation itself amounts to fraud.... It is a fraud in law if a party makes a representation which he knows to be false ...... An act of fraud on Court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others to a property would render the transaction void ab initio ."
66.In another case which is factually more close to the case in hand titled Alka Gupta Vs. N.K.Gupta 159 (2009) DLT 344 Hon'ble Delhi High Court observed that :
"the question which arises for adjudication is whether a litigant can be permitted to take a stand in the court, diametrically opposes to the stand of that litigant elsewhere . . .. Should the Court permit such stands to be taken in the course of judicial proceedings ..... Litigant can not be permitted to take different stands before different Foras."
@contd 43
67.In case titled "C.B. Aggarwal Vs. P. Krishna Kapoor" AIR 1995 Delhi 154 Hon'ble High Court observed:
"It is true that in a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be used. It is used properly when it is invoked for vindication for men's right an enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end."
68.In case titled Surya Parkash Tyagi Vs. Lt. Governor of Delhi 2009 (160) DLT 42, Division Bench of Hon'ble High Court observed:
" The petitioner is also guilty of making false averments and allegations in the Writ Petition. The petitioner has clearly not approached this court with clean hands and has not stated the correct facts ................. the conduct of the petitioner is resorting to the aforesaid misstatements, false averments and suppression of material facts is gross abuse of the process of court. A person who makes false averements and does not come @contd 44 to the court with clean hands is liable to be thrown out at the threshold and appropriate action initiated against him in accordance with law. The present petition is clearly motivated by private malice and vested interest.
The writ is liable to be rejected at the threshold with exemplary cost.
69.Critically apprising the conduct of the plaintiff , in the light of above land mark judgments , who in collusion with his defendant no.5 father constrained the defendants to undergo rigors of trial for more than 5 years apart from two other litigations calls for imposition of heavy penal cost upon him. As such penal cost of Rs.1 lac is imposed upon the plaintiff to be paid by way of draft of sum of Rs.25,000/ each in favour of defendant no.1 to 4. These drafts shall be placed on record within 6 weeks from today. Decree sheet be prepared accordingly and file be consigned to Record Room. ANNOUNCED AND DICTATED IN OPEN COURT ON : 24.4.2010 (SURINDER S. RATHI) ADDL.DISTRICT JUDGE CENTRAL 07/DELHI @contd 45 DECREE IN SUIT FOR POSSESSION (Order XX Rule 7 of the Code of Civil Procedure) IN THE COURT OF SHRI SURINDER S. RATHI, ADJ/CENTRAL-7 DELHI.
ID NO: 02401CO346122005 CS NO:84/05 MUKESH CHAND S/o Sh. Govind Prasad R/o D-23, Panchsheel Enclave, New Delhi. .......... Plaintiff vs.
1. PRITAM SINGH S/o Sh. Ishwar Singh R/o A-44, Mahipalpur, New Delhi-37.
2. Smt. VED WATI W/o Sh. Ishwar Singh R/o A-44, Mahipalpur, New Delhi-37.
3. Smt. SUDESH W/o Sh. Narinder R/o V& PO Bharthal, New Delhi.
4. Smt. MAYA W/o Sh. Jai Parkash R/o V& PO Bharthal, New Delhi.
5. Shri GOVIND PRASAD S/o Sh. Ram Swaroop R/o 373 to 377, Bazar Sita Ram, Delhi. ........... Defendants DATE OF INSTITUTION : 27.04.2005 DATE OF FINAL HEARING : 22.04.2010 DATE OF FINAL JUDGMENT : 24.04.2010 SUIT FOR SEEKING DECLARATION AND CONSEQUENTIAL RELIEF OF POSSESSION This suit coming for final disposal before me in the presence of Ld. Counsel Sh. Satya Parkash Gupta Advocate for plaintiff and Ld. Counsel Sh. Varun Goswami Advocate for defendant. The suit of the plaintiff is dismissed on merits with cost apart from additional cost of Rs.1 lac to be paid by plaintiff by way of draft of sum of Rs.25,000/- each in favour of defendant no.1 to 4. These drafts shall be placed on record within 6 weeks from today.
@contd
46
Costs of the suits
Plaintiff Defendant
Stamp for plaint NIL Stamp for power NIL
Stamp for power NIL Stamp for exhibits NIL
Stamp for exhibits NIL Stamp for petition NIL
Pleader's fee NIL Pleader's fee NIL
Subsistence for witness NIL Subsistence for witness NIL
Commissioner's fee NIL Commissioner's fee NIL
Service of process NIL Miscellaneous NIL
Miscellaneous NIL
Total NIL Total
Given under my hand and the seal of this court, Dated 24.04.2010.
SEAL ADDL. DISTRICT JUDGE
CENTRAL-07,DELHI
@contd
47
CS NO:84/05
MUKESH CHAND
vs.
PRITAM SINGH
24.4.2010
Pr: Ld. Proxy counsels for both the parties
Vide a separate judgment of the day The suit of the plaintiff is dismissed on merits with cost apart from additional cost of Rs.1 lac to be paid by plaintiff by way of draft of sum of Rs.25,000/- each in favour of defendant no.1 to 4. These drafts shall be placed on record within 6 weeks from today. Decree sheet be prepared accordingly and file be consigned to record room.
(Surinder S. Rathi) ADDL. DISTRICT JUDGE CENTRAL-07,DELHI @contd