Delhi District Court
Sh. Yash Kumar Sharma vs Smt. Rajbala Sharma on 13 September, 2022
: IN THE COURT OF :
Dr. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit No. 172/2016 (515989 / 2016)
In the matter of:
Sh. Yash Kumar Sharma,
son of Sh. M.L. Sharma,
R/o B87, Dashrath Puri,
New Delhi - 110 045
..... Plaintiff
VERSUS
1. Smt. Rajbala Sharma
W/o Sh. M.L. Sharma Madan Lal Sharma,
R/o House no. C68, New Palam Vihar,
Phase 3, Block C&A, Near Sai Baba Mandir,
Village Choma, Gurgaon,
Haryana.
2. Chinu @ Pratima
W/o Sh. Anuj Saini,
R/o House no. C68, New Palam Vihar,
Phase 3, Block C&A, Near Sai Baba Mandir,
Village Choma, Gurgaon,
Haryana.
....... Defendants
Date of institution of Suit : 12.01.2016
Date of reserving judgment : 03.09.2022
Date of pronouncement : 13.09.2022
Appearance:
(i) Sh. K.B.B. Singh, Advocate, ld. Counsel for plaintiff
(ii) Sh. R.D. Kaushik, Advocate, Ld. Counsel for defendants
CS no. 172/2016 (515989/2016)
Yash Kumar Sharma v. Raj Bala Sharma
page nos. 1 of 29
SUIT FOR POSSESSION, RECOVERY OF DAMAGES/MESNE
PROFITS FOR UNAUTHORISED USE AND OCCUPATION,
MANDATORY & PERMANENT INJUNCTION
J U D G M E N T:
1. The present suit has been filed by the plaintiff against defendants, seeking partition, permanent & mandatory injunction in respect of the property bearing no. A87 and B87, Dashrath Puri, Dabri Palam Road, New Delhi110045 (in short, the suit propertyI and the suit propertyII respectively) and the movable properties i.e. Gold Articles in a locker in SBBJ Bank, Janak Puri, (in short, the said Gold Articles) which is in the name of the Father of plaintiff. The brief fact as emanating from the plaint are as under :
(i) The plaintiff has filed the present suit for partition, permanent & mandatory injunction in respect of the suit propertyI and the suit propertyII as well as movable properties.
(ii) it is averred that Sh. ML Sharma, Father of the plaintiff (in short, the Father) went missing and he was having three legal heirs namely Rajbala Sharma(defendant no.1), Pratima Sharma(defendant no. 2) and Yash Kumar Sharma(plaintiff). That the Father was having two immovable properties i.e. one shop at Najafgarh which was owned by the grandfather of plaintiff, and after disposing off the said shop, the Father purchased plot no. B87 & A87, Dashrath Puri, New Delhi i.e. the suit propertyI and the suit propertyII and the said Gold Articles CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 2 of 29 which were kept in the locker of State Bank of Bikaner & Jaipur, Janakpuri.
(ii) That the Father was the only son of Late Sh Tek Chand, who was running a shop at Najafgarh where the Father used to help late Sh. Tek Chand and, later on, the Father got job in AIIMS, New Delhi.
the Father belonged to Najafgarh area where he had ancestral properties and after death of grandfather of plaintiff, the Father sold the ancestral properties at Najafgarh and out of the sale proceeds purchased a property at Chirag Delhi in the year 1980 where he resided alongwith his mother and defendant no.1 and out of the wedlock of the Father and defendant no.1, the plaintiff and his younger sister were born in the year 1983 and 1985 respectively.
(iii) It is further averred that grandfather of plaintiff was the owner of shop bearing No 839/1, Dichaun Road, Najafgarh and residential property bearing no. 830/M1 and after murder of the grandfather, dispute arose over the agricultural land at Najafgarh in the year 1979. The Father, on the advise of his mother Smt Khilya Devi, sold the said piece of land in year 1980 for a sum of Rs. 15,000/ and out of the sale proceeds, so received from the sale of the said piece of land, had purchased a property bearing no. C365, Chirag Delhi for Rs. 7200/ on 10.12.1980.
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 3 of 29
(iv) It is averred that, thereafter, the Father sold the property no. 830/M1, Najafgarh for a sum of Rs. 95,000/ on 17.05.1990 and due to dispute over the said property, Father of plaintiff sold the Chirag Delhi property for a sum of Rs. 1,60,000/ on 17.07.1992 and out of the sale proceed received for the sale of the said property, he purchased the suit propertyI for Rs. 45,000/, and the suit propertyII for Rs. 45,000/ and the property bearing no. A88, Dashrath Puri for Rs. 40,000/. Thereafter, the property no. A88 was sold out by defendant no.1 for paying the debts availed for the solemnization of the marriage of sister of plaintiff as well as for paying a sum of Rs. 4,00,000/ in the settlement/ compromise over a matrimonial dispute between the plaintiff and his wife.
(v) It is further averred that out of the remaining amount, Gold was purchased by the Father worth Rs. 1,00,000/, which was kept in the locker of State Bank of Bikaner & Jaipur in the presence of defendant no.1, which was in the name of the Father. It is further averred that since all the above said sale transactions regarding immovable and movable properties had been done out of the sale proceeds of the ancestral properties at Najafgarh, therefore, the plaintiff had every right and share for his use and enjoyment of the said properties.
(vi) It is further averred that the Father was a ClassIII employee in AIIMS so he had purchased the properties in the name of his wife/ defendant no.1 through unregisterd GPA and other sale documents, CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 4 of 29 however, entire consideration for both the plots were paid by the Father out of the sale proceeds, received from the sale of ancestral properties since defendant no.1 being a housewife has no source of income.
(vii) It is further averred that in the year 198889, defendant no.1 suffered intolerable severe pain in her stomach and for the treatment of the same, the Father spent a lot of money and took her to Balaji Mehandipur, Rajasthan for some supernatural treatment. Thereafter, the Father and defendant no.1 started frequently visiting Mehandipur Balaji due to which Father of plaintiff suffered mental and physical pressure being sandwiched between official work and disease of his wife. Thereafter, the Father went missing from Mehandipur Balaji leaving behind defendant no.1 alone and till date whereabout of Father of plaintiff is not known.
(viii) It is further averred that when plaintiff came to know about disappearance of the Father, he went to Mehandipur balaji to look after his mother in the year 2002, and remained there for about three years at a Dharamshala and, thereafter, for sustenance of the family, the ground floor of the suit propertyII was given on rent. The plaintiff and defendant no.1 came back to their home and plaintiff who was to appear for ICWA examination in the year 2002 had to give up his studies and started working for earning a livelihood for the family.
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 5 of 29
(ix) It is further averred that sister of plaintiff also joined ICICI Bank at Jhandewalan branch, where she came in contact with one Sh. Anuj Saini and she started pressuring for marriage and ultimately marriage of sister of plaintiff was solemnised with Anuj Saini on 10.02.2009. After marriage of his sister, plaintiff and defendant no.1 are living happily and in the next year, the marriage of plaintiff was solemnised on 06.02.2010 and wife of plaintiff joined her matrimonial home at the suit propertyII.
(x) It is averred that defendant no.1 was not happy on account of not getting demanded amount in dowry which she wanted to use for construction of the suit propertyI, yet plaintiff insisted his mother to accept the newly wedded wife of plaintiff and submits that he would earn himself and the family lived happily till July 2010.
(xi) Thereafter, under the instigation of defendant no.2, defendant no.1 started harassing and torturing wife of plaintiff, and in the absence of plaintiff, wife of plaintiff, was compelled to write on stamp paper that she was divorcing plaintiff. But since, plaintiff was unaware of the same, continued his cordial relations with his wife, and due to which defendant no.1 got annoyed and give public notice dated 17.08.2010 in local newspaper disowning both plaintiff and his wife from her movable and immovable properties. However, even after that plaintiff continued to live in the suit propertyII till February 2011 at the ground floor. Thereafter, defendant no.1 called the parents of wife of CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 6 of 29 plaintiff from Hissar, Haryana and asked them either to meet her demand or take their daughter back, on account of which hot arguments took place and police was called, and after intervention of police, the matter was settled and plaintiff agreed to bring back his wife to her matrimonial home within 15 days.
(xii) It is further averred that, thereafter, litigation started between plaintiff and defendant no.1 on one hand and with his wife on the other hand. On the complaint filed by wife of plaintiff, defendant no.1 and plaintiff had to seek relief of prearrest bail from the Hon'ble High Court of Punjab and Haryana, but plaintiff never wanted to break his marriage and on account of this reason, defendant no.1 got annoyed as she was preparing for second marriage of plaintiff with the hope of getting huge dowry. On 21.05.2011, both the defendants, physically thrashed him for not acceeding to their demands of divorcing his wife and on account of that fact, plaintiff left the house without intimating defendant no.1 and defendant no.1 lodged missing complaint at PS Sagarpur on 21.05.2011.
(xiii) It is further averred that plaintiff brought back his wife in December 2011, but defendant no.1 did not allow them to live and plaintiff took temporary shelter at Mansaram Park and started living there. Plaintiff, out of his wedlock, was blessed with a son. In the month of January 2012, husband of sister of plaintiff was arrested in a rape case and defendant no.1 shifted to the residence of her daughter CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 7 of 29 at Gurugram and since then, plaintiff has been made a pendulum by defendant no.1, who sometimes allowed by defendant no.1 to live in the suit propertyII and some time defendant no.1 has thrown him out even with the help of police. When defendant no.1 came to know about the birth of her grandson, she went to the hospital and met plaintiff and his wife and offered a shagun of ₹ 10,000 and also returned the car key and laptop and asked them to return home.
(xiv) It is further averred that when plaintiff along with his wife and the child and some household articles returned to the suit propertyII , the defendants called the police, at the instigation of defendant no.2, and asked the plaintiff to vacate the room in the suit propertyII and plaintiff, for the sake of peace in the family, vacated the room situated in the suit propertyII after giving in writing to the police on 06.12.2011. The defendant no.1, thereafter, about six months later, asked plaintiff to return home and plaintiff shifted to the suit propertyII and started living happily, but suddenly defendant no.1 again asked plaintiff to vacate the suit propertyII on account of the reason that wife of plaintiff lodged a complaint with the police.
(xv) It is averred that plaintiff came to know that, under the instigation of defendant no.2, defendant no.1 has decided to sell the suit propertyI and the suit propertyII. The defendant no.1, under the influence of defendant no.2, succeeded in lodging Kalandara under section 109/151 CRPC against plaintiff and his wife and aggrieved CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 8 of 29 with this fact plaintiff filed a suit against the defendants for permanent and mandatory injunction. Thereafter, defendant no.1 filed frivolous written statement and during the course of arguments, plaintiff came to know about the FIR that was lodged against plaintiff and his wife on the complaint of defendant no.1 before ld. Metropolitan Magistrate, Patiala House Courts, New Delhi. Plaintiff sought anticipatory bail in that FIR, but the said application was dismissed and the case is still pending investigation. Thereafter, plaintiff withdrew his suit with permission to file the suit for partition against the defendants.
(xvi) It is further averred that recently plaintiff and his wife received summons from the court of Ms. Pinki, ld. ADJ and aggrieved with the act of defendant no.1, who is bent to sell the suit propertyI and the suit propertyII to meet her illegal designs of punishing the plaintiff, who went against the wishes of his mother/defendant no.1 and brought back his wife after litigation, and on account of this fact, defendant no.1 could not get the demanded amount. The defendant no.1 never disclosed about the fact that a CBI case is pending against the Father and defendant no.1 continued to say that Father of plaintiff has been missing from Mehandipur Balaji due to pressure of illness and burdens of officials duties since 2003 and defendant no.1 relied upon the complaint lodged in the year 2005 regarding missing of the Father.
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 9 of 29 (xvii) It is further averred that the Father, who was one of the accused in CBI case, appeared in the court in the year 2006, which facts shows that defendant no.1 knew some secrets, which are well within the knowledge of defendant no.1 and due to which she is working under the guidance of defendant no.2 to spoil the life of plaintiff. Hence, plaintiff is constrained to seek partition of the suit propertyI and suit propertyII purchased out of sale consideration received after selling off ancestral properties by the Father as well as the Gold Articles.
2. The defendants were served with summons for settlement of issues and defendant no.1 and defendant no.2 filed a joint written statement and, inter alia, submitted that the suit filed by plaintiff is not maintainable in the present form and is liable to be dismissed. The plaintiff is not entitled to seek partition of the self acquired property of defendant no.1 i.e. the suit propertyI and the suit propertyII as well as the said Gold Articles lying in the locker, as there is no cause of action in favour of plaintiff, and thus the suit is liable to be dismissed.
3. It is submitted that the suit is based on a nefarious designs, ulterior motive and malafide of the plaintiff only to prejudice the sole, exclusive and absolute rights and interest of the defendant no.1 in the suit propertyI and the suit propertyII and the said gold jewellery. The plaintiff has relied upon a selfcreated document alleged to have been dictated by plaintiff in the year 2008. The document is created just to cause fictitious cause of action and the suit is to be dismissed with cost.
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 10 of 29
4. It is stated that the suit is bad in law as the affidavit in support of plaint is neither signed by plaintiff nor attested by Oath Commissioner. The plaint is not signed by the plaintiff and the same is liable to be rejected due to violation of Order VI rule 15 CPC. The suit is grossly undervalued and appropriate court fees has not been affixed and as such the suit is liable to be dismissed. The market value of the suit plot as on date is more than ₹ 1 crore, however, plaintiff has deliberately undervalued the same. The plaintiff has concealed material facts from this court, therefore, this plaint is wholly misconceived and devoid of any merits.
5. It is further stated that defendant no.1 was having savings from her business of milk dairy as she had been rearing buffaloes and the same was a source of her income, which was in the knowledge of plaintiff. It is also in the knowledge of plaintiff, that all the money used for purchasing the suit propertyI and the suit propertyII was from the savings of defendant no.1 kept by her from the business of milk dairy and the sale of her gold ornaments and also from the financial help extended by her brother. The husband of defendant no.1 went missing and his whereabouts could not be traced out till date. It is also well within the knowledge of plaintiff that the Father has been maintaining a bank locker where stridhan articles of defendant no.1 was kept. It is also in the knowledge of plaintiff that CBI had raided the house of defendant no.1 and had seized all the documents including title documents of the suit propertyI and the suit propertyII and defendant no.1 had got the documents released from the court. The plaintiff and CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 11 of 29 his wife Ritu Sharma had been cruel and rude towards defendant no.1 and had deserted her due to which she had disowned plaintiff from her self acquired movable as well as immovable properties and for that purpose, she got issued a public notice in newspaper Veer Arjun dated 17.08.2010
6. It is further stated that the parents of Ritu Sharma (wife of plaintiff) and plaintiff started harassing and pressurizing defendant no.1 to transfer the properties in the name of Ritu Sharma and when defendant no.1 refused to do so, plaintiff and his wife threatened her of dire consequences, as a result of which, defendant no.1 lodged a police complaint dated 07.03.2011 against plaintiff and his wife at police Station Sagarpur. Thereafter, the plaintiff along with his wife forcibly entered into the house of defendant no.1 in the month of December 2012 for which she made a police complaint on 06.12.2012 and on the intervention of police, plaintiff removed their goods from the house of defendant no.1/suit propertyII.
7. It is further submitted that there are many instances when plaintiff tried to trespass the suit propertyII and defendant no.1 instituted a suit seeking possession, recovery of damages, mesne profits for unauthorised use and occupation, mandatory injunction as well as permanent injunction against the plaintiff and his wife on 17.08.2015 bearing CS no. 132/2015 and the same is pending in the court of learned additional District Judge, Dwarka, Delhi. The plaintiff, in order to grab the self acquired properties of defendant no.1, has instituted frivolous suit bearing no. 253/2014 seeking only permanent CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 12 of 29 and mandatory injunction against defendant no.1 without seeking any relief of declaration or partition and the same was withdrawn vide order dated 27.08.2015. The present suit has been filed only as a counter blast to the suit filed by defendant no.1. The plaintiff has no right in the suit plot owned by defendant no.1. The plaintiff was residing at D1/21A, Mansa Ram Park, Uttam Nagar, New Delhi till 08.10.2014 and when plaintiff broke open the locks of two rooms of the first floor situated in the suit propertyII, he had stolen the belongings of defendant no.1, which were lying there and till date the same has not been vacated by plaintiff, therefore, defendant no.1 has instituted the above suit.
8. It is further stated that police complaint has been made by defendant no.1 against the plaintiff but police did not take any action and hence a complaint under Section 200 CrPC r/w 156(3) CrPC was filed before the ld. Metropolitan Magistrate at Patiala House Courts and an FIR no. 424/2015 was registered on 02.06.2015 against the plaintiff with PS Sagarpur and the anticipatory bail application moved by plaintiff was dismissed vide order dated 02.09.2015. The other contents of the plaint has been vehemently denied and it is prayed that the suit may be dismissed
9. On the basis of pleadings of the parties, following issues were framed on 28.03.2022:
1. Whether the plaintiff is entitled to 1/3rd share in respect of properties bearing no. A87 and B87, Dashrath Puri, Dabri CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 13 of 29 Palam Road, New Delhi each measuring 100 sq.yds (in short, the suit propertyI and suit propertyII respectively)? OPP
2. Whether the plaintiff is entitled to 1/3rd share in Gold Articles lying in the locker maintained with State Bank of Bikaner and Jaipur, Janakpuri bearing locker no.503? OPP
3. Whether the plaintiff is entitled to the permanent and mandatory injunction as prayed for? OPP
4. Whether the suit propertyI already stood transferred in the name of defendant no.2 by defendant no.1 and, therefore, could not be partitioned? OPD
5. Whether the plaintiff is entitled to the preliminary decree of partition of suit property no.I & the suit property no.II? OPP
6. Whether the suit propertyI & the suit propertyII were purchased by Father of plaintiff in the name of his wife/defendant no.1, therefore, both the said properties are ancestral properties? OPD
7. Whether the defendant no.1 is the exclusive owner of suit propertyI & the suit propertyII? OPD
8. Whether the plaintiff is entitled for the final decree of partition in respect of suit propertyI & the suit propertyII? OPP
9. Whether the amount of 1 lac of gold found in the said locker exclusively belonged to defendant no.1? OPD
10. Whether the suit is not maintainable?
11. Relief.
10. Thereafter, the matter was listed for recording of plaintiffs evidence.
11. In order to prove its case, the plaintiff Yash Kumar Sharma stepped into the witness box and has relied upon the following documents:
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 14 of 29
1. Documents i.e. GPA, Agreement to sell, affidavit, receipt dated 10.12.1980 executed by Smt.Chanderwati in favour of Sh.M.L.Sharma and Lal Dora Certificate dated 09.01.1981 of property measuring 42 sq.yds situated at village Chirag Delhi is Ex.PW1/1,
2. Documents i.e. GPA, Agreement to sell, affidavit, receipt dated 02.05.1990 executed by Smt.Khiliyani Devi in favour of Sh.M.L.Sharma in respect of property measuring 125 sq.yds situated at village Najafgarh Delhi is Ex.PW1/2,
3. Sale deed dated 27.05.1992 excuted by Sh.M.L.Sharma in favour of Sh.Harbans Singh Chauhan in respect of property measuring 42 sq.yds situated at village Chirag Delhi is Ex.PW1/3,
4. Documents i.e. GPA, Agreement to sell, affidavit, receipt dated 02.03.1993 executed by Smt.Rekha Sharma in favour of Smt.Rajbala in respect of property bearing plot no.85 & 86 measuring 100 sq.yds out of kila no.11/1 Village Dabri abadi known as Dashrathpuri presently known as B87 Dashrathpuri, New Delhi are Mark X2.
5. Documents i.e. GPA, Agreement to sell, affidavit, receipt dated 20.01.1995 executed by Sh.Virender Kumar in favour of Smt.Rajbala in respect of property bearing plot no.A87 measuring 100 sq.yds out of khasra no.29/15, Village Dabri abadi known as Dashrathpuri are Mark X3.
6. Statement of sale purchase transactions dictated by defendant no.1 before the marriage of defendant no.2 written by plaintiff is Mark X4,
7. Death certificate of grand Father is Mark X5,
8. Ration card of Father of plaintiff pertaining to Chirag Delhi property is Mark X6,
9. Ration card of Father of plaintiff pertaining to property no.B87, Dashrathpuri, New Delhi is Mark X7, CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 15 of 29
10. Election card of Father of plaintiff pertaining to property no.B87, Dashrathpuri, New Delhi is Mark X8,
11. Documents of Khanna Xray Clinic showing treatment of defendant no.1 of 2001 is Mark X9,
12. Three receipts of Balaji Guest Home when plaintiff stayed for looking after the defendant no.1 are Mark X10,
13. Letters of Fatherof plaintiff written to AIIMS Administration for information about wife illness are Mark X11,
14. Missing complaint dated 17.11.2005 lodged by defendant no.1 at PS:Manpur, Dausa, Rajasthan along with pamphlet are Mark X12,
15. Non traceable certificate obtained by defendant no.1 from PS:Manpur is Mark X13,
16. FIR No.RCDLI19900012 dt.04.01.1999 against 5 accused including Father of plaintiff is Mark X14,
17. Order dt.22.11.2006 passed by CBI Court showing presence of Father of plaintiff is Mark X15,
18. List of documents seized by CBI showing all documents seized on 05.03.1999 is Mark X16,
19. List of gold jewellery in the locker no.503, SBBJ Janakpuri is Mark X17,
20. Non traceable report obtained by defendant o.1 regarding husband from PS:Manpur, Dausa is Mark X18,
21. Letter from CBI regarding released of seized documents applied for by defendant no.1 is Mark X19,
22. Forcibly got written stamp paper by defendants from the wife of plaintiff is Mark X20,
23. Newspaper cutting showing disowning of plaintiff and his wife by defendant no.1 dt.17.11.2010 is Mark X21,
24. Missing report filed by defendant no.1 on 21.05.2011 regarding missing of plaintiff at PS:Sagarpur is Mark X22,
25. Birth certificate of son of plaintiff is Mark X23, CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 16 of 29
26. Complaint dt.30.09.2014 lodged by plaintiff against defendant no.1 at PS:Sagarpur against DD No.26B is Mark X24,
27. Complaint by defendant no.1 at PS:Sagarpur dated 10.10.2014 and by tenant along with medicals (MLC) to the Secretary MHA dt.13.10.2014 are Mark X25,
28. Copies of kalandara under section 107/151 issued against plaintiff and his wife notice u/s 311 Cr.PC are Mark X26 (colly),
29. FIR No.424/2015 lodged against plaintiff and his wife at PS:Sagarpur and certified copy of bail order dt.02.11.2015 are Mark X27,
30. Order dt.27.08.2015 of the court of Sh.Vishal Gogne, Ld.SCJ/RC/South West Dwarka, New Delhi is Mark X28,
31. Affidavit showing change of name of plaintiff is Mark X29,
32. Salary slip and I card showing the employment/working status of plaintiff are Mark X30,
33. ID proof of plaintiff of address B87 Dashrathpuri is Mark X31.
12. No other witness was examined by the plaintiff and matter was listed for recording of defendants evidence.
13. Defendant no.1 was examined herself as PW1 in "CS No. 515550/2016 titled as Rajbala Sharma v. Yash Kumar Sharma", and has deposed in terms of affidavit Ex. PW1/A, and on the basis of statement of defendant no.1 recorded in her suit no. 515550/2016, the said testimony of defendant no.1 in that suit has to be read as evidence for and on behalf of defendants as defendants evidence in the present suit, and defendant no.1 has relied upon the following documents:
1. Original site plan is Ex.PW1/A,
2. Copy of complaint to SHO dated 07.03.2011 is Ex.PW1/B, CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 17 of 29
3. Copy of complaint dated 10.10.2014 is Ex.PW1/C,
4. Copy of list of articles is marked as Mark A,
5. Copy of complaint dated 10.10.2014 is Ex.PW1/E,
6. Copy of MLC dated 12.10.2014 is Ex.PW1/F,
7. Copy of complaint dt.13.10.2014 is Ex.PW1/G,
8. Copy of notice in the newspaper dt.17.08.2010 is Ex.PW1/H,
9. Copy of complaint dt.06.12.12 is Ex.PW1/I,
10. Copy of complaint dt.06.12.2012 is Ex.PW1/J,
11. Copy of order dt.17.05.2011 is Ex.PW1/K,
12. Copy of six electricity bills is Ex.PW1/L,
13. Copy of water bills gas connection receipt and receipt of water bills are Ex.PW1/M,
14. Copy of two MTNL bills (colly) are exhibited as Ex.PW1/N,
15. Copy of deed of agreement dt.19.07.1979 is Ex.PW1/P,
16. Copy of receipt dt.19.07.1979 is Ex.PW1/Q,
17. Copy of WILL dated 19.07.1979 is Ex.PW1/R,
18. Agreement to sale and purchase dt.19.08.1987 is Ex.PW1/S,
19. Special power of attorney dt.19.08.1987 is Ex.PW1/T,
20. Affidavit dated 19.08.198 is Ex.PW1/U,
21. Affidavit dated 19.08.1987 is Ex.PW1/V,
22. Agreement to sale and purchase dt.02.03.1993 is Ex.PW1/W,
23. Affidavit dated 02.03.1993 is Ex.PW1/X,
24. Receipt dated 02.03.1993 is exhibited as Ex.PW1/Y,
25. General Power of Attorney dated 02.03.1993 is Ex.PW1/Z,
26. Aadhaar Card is Ex.PW1/AA,
14. I have heard Ld counsels for the parties and have carefully gone through the record as well as written arguments filed by them.
15. My issuewise finding in the matter is as under :
Issue no. 1,2,3,4,5,6 & 7 All these issues are overlapping each other and, therefore disposed off by this common order. In order to prove its case the plaintiff has appeared as PW1 and has deposed in terms of evidence CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 18 of 29 affidavit ex. PW1/A. PW1 submitted that he has filed the documents Ex. PW1/1 to Ex. PW1/3 at the later stage. PW1 admitted that his father is not dead, however, he is missing. PW1 admitted that CBI has registered a case against his father in the year 1999 and has also raided the suit propertyII. He has denied the suggestion that his father has no money to purchase the suit propertyI and the suit propertyII. PW1 has also denied the suggestion that his mother was running a milk dairy in the suit propertyI and the suit propertyII. He admitted that his mother/defendant no.1 had registered a FIR no. 424/2015 against him and his wife and has also disowned him from the suit propertyI and the suit propertyII, by way of publication in the newspaper. He has denied the suggestion that he was residing in Mansa Ram Park before entering in the suit propertyII. PW1 has also denied the suggestion that the documents filed by him are forged and fabricated one. He has also denied the suggestion that the properties mentioned in Ex. PW1/1 to Ex. PW1/3 were sold by his father before purchasing of the suit propertyI and suit propertyII. PW1 has also denied the suggestion that his father has not used the sale proceeds of the properties mentioned in Ex. PW1/1 to Ex. PW1/3, to purchase the suit propertyII. He has also denied the suggestion that he does not have any share in the suit propertyI and suit propertyII. He was not aware as to whether the CBI has released the documents of the suit propertyI and the suit propertyII to his mother/defendant no.1.
16. The plaintiff has sought partition of the suit propertyI and suit propertyII as well as the Gold Articles claiming to be the property CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 19 of 29 purchased in the name of defendant no.1 by the father after selling of the ancestral properties/self acquired properties. Therefore, the suit propertyI and the suit propertyII and the said gold artiles are joint Hindu Family properties and plaintiff is entitled to seek partition of the same.
17. Per contra, ld. Counsel for the defendants has contended that the suit propertyI and suit propertyII as well as the said Gold Articles were purchased by defendant no.1 out of her saving saved from her business and plaintiff has no right, title or interest in the self acquired properties of defendant no.1, otherwise, the claim of the plaintiff is barred by provisions of The Prohibition of Benami Property Transaction Act, 1988 (in short, the Old Act) in as much as even if, no issue has been framed regarding the claim regarding the suit propertyI and the suit propertyII, barred by the provisions of the Act, this is a question of law and can be agitated at any stage. Therefore, the suit for partition, viewed from any angle, is not maintainable and the same deserves to be dismissed.
18. It may be noted that plaintiff has himself placed on record the sale documents executed by Smt. Rekha Sharma, the vendor of suit propertyI and suit propertyII in favour of defendant no.1 in terms of document Mark P1. The defendant no.1 has also proved sale documents in respect of the suit propertyI and the suit propertyII, which have not been controverted by plaintiff during crossexamination CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 20 of 29 of defendant no.1. Therefore, admittedly, defendant no.1 is owner of the suit propertyI and suit propertyII.
19. It is relevant to observe that the plaintiff has claimed that the ancestral properties were purchased and sold in the name of the Father in terms of the sale documents Ex. PW1/1 to Ex. PW1/3, and the sale proceeds so received were used for purchasing the suit propertyI and the suit propertyII. It is further the contention that the suit propertyI and the suit propertyII had been purchased from the sale proceeds so received by the father after disposing off his ancestral properties/self acquired properties, as such defendant no.1 cannot claim to have indefeasible rights in the joint family property i.e. the suit propertyI and suit propertyII, which joint family consist of the father, defendant no.1, defendant no.2 and the plaintiff. However, no evidence has been led that the suit propertyI and the suit propertyII had been purchased from the funds so received by the Father, after disposing off the immovable properties detailed in the sale documents Ex. PW1/1 to Ex. PW1/3. Therefore, in the absence of any link evidence to connect that the suit propertyI as well as the suit propertyII were purchased from the sale proceeds received by the Father after disposing off his property at Najafgarh and Chirag Delhi as incorporated in the sale documents Ex. PW1/1 to Ex. PW1/3, it can be safely concluded that the suit propertyI, suit propertyII as well as the said Gold Articles were purchased by the plaintiff from her own funds.
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 21 of 29
20. Even if, for the sake of arguments, though not admitted, it is presumed that the suit propertyI and the suit propertyII were purchased by the Father from his own funds, in the name of defendant no.1/ his wife, even then the claim of the plaintiff is barred by the provisions of the Old Act in as much as only the Father could have agitated the said defence that the suit propertyI and the suit property II and the said Gold Articles were purchased by him in the name of his wife/defendant no.1 not for the benefit for his wife, but for the benefit of his family.
21. In this regard, before proceeding, further I would like to reproduce the relevant provisions of the Old Act and The Benami Transactions (Prohibition) Amendment act, 2016, (hereinafter referred to as the Amended Act) which are as under :
"The relevant provisions of the Old Act, read as follows:
"3. Prohibition of benami transactions. (1) No person shall enter into any benami transction.
(2) Nothing in subsection (1) shall apply to
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;
(b) the securities held by a
(i) depository as registered owner under subsection (1) of section 10 of the Depositories Act, 1996
(ii) participant as an agent of a depository. Explanation The expressions "depository" and "Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of subsection (1) of section 2 of the Depositories Act, 1996. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 22 of 29 (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non cognizable and bailable.
"Section 4 of the Old Act reads as under: "4. Prohibition of the right to recover property held benami (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.
(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
(3) Nothing in this section shall apply,
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or
(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
22. It is relevant at the outset to state that Section 4(3) of the Old Act as it stood was replaced in terms of the Amended Act which came into force with effect from 01.11.2016 and what was contained in the same part of sub sections (3) of Section 4 of the Old Act as originally stood was incorporated in the definition of "Benami Transaction" as found in Section 2 (9) of the Amended Act. Relevant provision of the Section 2(9) of Amended Act is as under :
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 23 of 29 "2. Definition: In this Act, unless the context otherwise requires, (1) to (8) xxxxx (9) "benami transaction" means, (A) a transaction or an arrangement
(a) where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and
(b) the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration, except when the property is held by
(i) xxxxx
(ii) xxxxx
(iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual;
(iv) xxxxx"
23. It may be relevant to mention here that in terms of Section 4(1) no suit shall lie in respect of any property held benami against the person in whose name the property is held or against any other person by or on behalf of a person claiming to be the real owner of such property. Further, there cannot be any suit in respect of a property held benami against a person in whose name such property is held or any other person, if such proceeding is initiated by or on behalf of a person claiming to be the real owner thereof, prior to the coming into force of Section 4(1).Section 4 (2) bars a claim or defence permitting the "real owner" of such property and has been held from saying that the property is benami. It may be relevant to mention here that the bar contained in the Old Act, prior to its amendment and now the Amended Act, bars a suit, claim or action, to enforce any right in CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 24 of 29 respect of any property held benami against the person in whose name the property is held or any other person, by or on behalf of a person claiming to be the real owner of such property. 'Benami transaction' in the Act, prior to its amendment, was described as 'any transaction in which property is transferred to one person for a consideration paid or provided by any another person'. The Amended Act defines 'benami property' as meaning any property which is the subject matter of a benami transaction and describes a 'benami transaction' as meaning a transaction or an arrangement "where a property is transferred to, or is held by, a person, and the consideration for such property has been provided, or paid by, another person; and the property is held for the immediate or future benefit, direct or indirect, of the person who has provided the consideration.
24. At this stage I will deal with the controversy whether the Old Act or the Amended Act is applicable to the facts of the present suit, in this regard it may be noted that Hon'ble High Court of Delhi in Judgment Neeru Dhir & Ors. v. Kamal Kishore Dhir, in RFA No. 73/2019 in para 12, has observed as under :
"12. The plea taken by Mr. Chawla, learned counsel for the appellants that the bar placed under Section 4 of the Benami Act would not apply retrospectively, is no longer res integra. The said proposition had come up before the Supreme Court in R. Rajagopal Reddy (dead) by LRs and Ors. vs. Padmini Chandrasekharan (dead) by LRs reported as (1995) 2 SCC 630, wherein Justice S.B. Majmudar, speaking for the other members of a three Judge Bench had arrived at a conclusion that Section 4(1) of the Benami Act does not have any retrospective application. By the same analogy, any CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 25 of 29 amendment to the said enactment by virtue of Act 43 of 2016, that came into effect on 01.11.2016, cannot acquire retrospectivity in a case like the present one where the suit was instituted by the appellants well before the said date, in February, 2016. We therefore have no hesitation in accepting the submission made by learned counsel for the appellants that the amended Benami Act, wherein subsection (3) of Section 4 was omitted, would not apply to the instant case. Instead, the Old Act, which included sub section (3) to Section 4, would govern the case."
25. The Hon'ble Supreme Court in case Mangathai Ammal v. Rajeswari, in CA No. 4805/2009 in para no. 12 has observed that :
"It is required to be noted that Benami Transaction came to be amended in the year 2016 as per section 3 of the Benami Transaction Prohibition Act 1988, there was a presumption that the transaction made in the name of wife and children is for their benefit. By Benami Amendment Act, 2016, Section 3(2) of the Benami Transaction Act, 1988, the statutory presumption, which was rebuttable has been omitted. It is the case on behalf of the respondent that therefore in view of the omission of section 3(2) of the Benami Transaction Act the plea of statutory transaction that the purchase made in the name of wife and children is for their benefit would not be available in the present case. Aforesaid cannot be accepted. As held by this court in case of Binapani Paul (supra) The Benami Transaction (Prohibition) Act would not be applicable retrospectively. "
26. From the above discussion it can be safely concluded that the Amended Act is not applicable retrospectively, however the old Act is applicable w.e.f. 01.11.2016 and the suit has been filed on 12.01.2016, therefore, what will govern the parties is the Old Act and not the Amended Act.
CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 26 of 29
27. It may be noted that the superior court spelt out the following six circumstances which can be taken as a guide to determine the nature of the transaction :
(1) the source from which the purchase money came ;
(2) the nature and possession of the property, after the purchase ;
(3) motive, if any, for giving the transaction a benami colour ;
(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar ;
(5) the custody of the title deeds after the sale ; and (6) the conduct of the parties concerned in dealing with the property after the sale.
28. The above said circumstances are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless, the source from where the purchase money came and the motive why the property was purchased benami are by far the most important tests for determining whether the sale standing in the name of one person, is in reality for the benefit of another.
29. It may be noted that, had the father being a party as a plaintiff in the present suit, he would have any defence to plead that the suit propertyI and the suit propertyII, were purchased by him from his own CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 27 of 29 funds, for his own benefit, in the name of his wife/defendant no.1, in case, any such material would have been on record, but plaintiff viewed from any angle, has no claim which he can be agitated under the provisions of the Old Act, in as much as his claim is barred by the provision of the Old Act. Therefore, apart from the fact that the suit propertyI and suit propertyII, are owned and possessed by defendant no.1 and the suit propertyI has already been disposed off by defendant no.1 to her daughter/defendant no.2 and the said sale deed has not been challenged by plaintiff at any stage of proceedings, either in the present suit or otherwise, the plaintiff has neither pleaded that the suit propertyI and the suit propertyII as well as the said Gold Articles were joint family properties and were brought into the common hotchpotch by defendant no.1. Therefore, plaintiff is not entitled to seek partition of the suit propertyI the suit propertyII and the Gold Articles.
30. From the above said discussion, it can be safely concluded that plaintiff is owner and possession of the suit propertyI, the suit propertyII and the Gold Articles. There is no evidence on record that the the suit propertyI and the suit propertyII were purchased by the Father for his benefit in the name of defendant no.1, therefore, plaintiff is neither entitled to seek partition of the suit propertyI, the suit propertyII and the said Gold Articles, nor is the claim of plaintiff maintainable under the provisions of Old Act. In addition to it, the suit propertyI already stood transferred by defendant no. 1 in favour of defendant no.2 and there is no challenge to the such sale documents CS no. 172/2016 (515989/2016) Yash Kumar Sharma v. Raj Bala Sharma page nos. 28 of 29 in the present suit. These issues are accordingly decided in favour of the defendants and against the plaintiff.
Issue no. 7,8,9 & 10
31. These issues are overlapping each other and are disposed off by this common order. In view of the findings recorded on the issue nos. 1 to 7, the defendant no.1 is held to be the owner in possession of the suit propertyI, the suit propertyII and the said Gold Articles, and no evidence to the contrary has been led. Therefore, these issues are also decided in favour of the defendants and against the plaintiff.
Relief
32. In view of the findings on the issues aforesaid, plaintiff has not been able to prove its case. The suit filed by the plaintiff is accordingly dismissed.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signedAnnounced in the open court on VIJAY by VIJAY
KUMAR
13th day of September, 2022 KUMAR DAHIYA
Date:
DAHIYA 2022.09.26
16:27:48 +0530
(V.K. DAHIYA)
ADDL. DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
CS no. 172/2016 (515989/2016)
Yash Kumar Sharma v. Raj Bala Sharma
page nos. 29 of 29