Delhi District Court
Sanjeev Bansal vs Nand Kishore & Ors. on 18 December, 2018
IN THE COURT OF SH. RAJINDER KUMAR, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 8046/16
Sanjeev Bansal
S/o Sh. Nand Kishore Bansal
R/o 1235-36, Chowk Shah Mubarak
Kucha Pati Ram, Sita Ram Bazar,
Delhi - 110006. .....Plaintif
Versus
1. Sh. Nand Kishore Bansal
S/o Late Sh. Ram Murti
2. Sh. Rajeev Bansal
S/o Sh. Nand Kishore Bansal
3. Sh. Vipin Bansal
S/o Sh. Nand Kishore Bansal
4. Smt. Suchita Bansal
W/o Sh. Vipin Bansal
5. Smt. Sunita Bansal
W/o Sh. Rajeev Bansal
All R/o 1235-36,
Chowk Shah Mubarak
Kucha Pati Ram, Sita Ram Bazar,
Delhi - 110006. ...... Defendants
Defendant no. 1
Also at : Shop No. 3772,
Chawri Bazar, Delhi - 110006
Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.1/13
Defendant no. 3
Also at :
Prop. M/s Sanket Metals
Shop No. 3772, Chawri Bazar,
Delhi - 110006.
Date of filing of the suit : 15.03.2008
Date of reserving judgment : 10.12.2018
Date of pronouncement : 18.12.2018
JUDGEMENT
1. Vide this judgment, I shall decide the present suit for declaration, partition and permanent injunction.
2. It is pertinent to mention here that vide order dated 01.02.2010, the application under Order 6 Rule 17 CPC for seeking amendment in the plaint was allowed and consequently, the amended plaint had been taken on record.
3. The brief facts of the suit as per the plaintif are that the defendant no. 1 is the father of the plaintif and the defendant no. 2 and 3 are the brothers and defendant no. 4 and 5 are the wives of the defendant no. 3 and 2 respectively. That the plaintif has been living in the premises i.e. 1235-36, Chowk Shah Mubarak, Kucha Pati Ram, Sita Ram Bazar, Delhi since birth, which is a joint family, headed by the defendant no. 1. That the plaintif and defendants are in joint possession Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.2/13of the same. That Late Sh. Ram Murti, grandfather of the plaintif, used to deal in the business of non ferrous metals under the name and style M/s Bankey Lal Ram Murti, from rented shop no. 3772, Chawri Bazar, Delhi from 1950 and the defendant no. 1 used to work with his father and was totally dependent upon him. That Late Sh. Ram Murti died in 1979, left behind his widow, the defendant no. 1 and his faimly. That after the death, the land lady of the said premises filed proceedings for recovery of possession. That during the said litigation, the said land lady passed away in 2005 and her LRs entered into the settlement with the defendant no. 1, who purchased the said house for Rs. 1,20,000/- vide sale deed dated 10.01.2007. That after the death of grand father of the plaintif, the defendant no. 1 inherited the business left behind his father. That till date, the defendant no. 1 is totally dependent on the said business and never created any other business on his own or any source of income independent of the said family business. That the defendant no. 1 purchased the said house from the income and fund of the above said joint family business. That the plaintif used to work with his father since his school days at the above said shop and even he was made authorised signatory by his father on behalf of the said firm. That the business of the said firm was converted into the unregistered partnership firm and accordingly, the plaintif and defendant no. 1 to 3 became its partners lasted for two years and thereafter, it again became proprietorship firm of the defendant no. 1. That the plaintif was removed as Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.3/13authorised signatory sometime in September 2002. That the defendant no. 1 got a public notice issued, through his Counsel, purportedly debarring the plaintif and defendant no. 2 and 3 from his all movable and immovable properties. That accordingly, the sale deed dated 21.03.2007 and 27.04.2007 be declared as null and void and the suit premises be partitioned by metes and bounds. That the defendant no. 4 and 5 be restrained from selling, alienating or creating third party interest in the suit property.
4. In the w.s. filed by the defendants, they have taken certain preliminary objections like that the suit is without cause of action, bad for misjoinder of the defendant no. 2 to 4, not been valued properly and the plaintif has no locus-standi to file the same. It is also pleaded by the defendants in para 12 (on merits) that the father of the defendant no.1, bequeathed the entire business in favour of defendant no.1 by Will dated 18.05.1979.
5. In the replications, the plaintif controverted the contentions raised in the written statement of the defendant no. 1, 3 to 5 and re-affirmed the averments made in the plaint.
6. From the pleadings of the parties, following issues were framed on 01.09.2010 :-
1. Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction? OPD Sanjeev Bansal vs Nand Kishore & Ors.Suit No. 8046/16 Page no.4/13
2. Whether the plaintiff has no cause of action to file the present suit? OPD
3. Whether the plaintiff has no locus-standi to file the present suit? OPD
4. Whether the property no. 1235-36, Chowk Shah Mubarak, Kucha Pati Ram, Sita Ram Bazar, Delhi-110006 was purchased by the defendant no. 1 from Smt. Anjna Kumari Gupta vide sale deed dated 10.01.2007 from the funds of the joint family business? OPP
5. Whether M/s Bankey Lal Ram Murti was a joint family business? OPP
6. Whether the plaintiff was a member of joint Hindu Family? OPP
7. Whether the plaintiff is entitled to the relief of declaration, as prayed? OPP
8. Whether the plaintiff is entitled to decree of partition, as prayed? OPP
9. Whether the plaintiff is entitled to decree of permanent injunction, as prayed? OPP Sanjeev Bansal vs Nand Kishore & Ors.Suit No. 8046/16 Page no.5/13
10. Relief.
7. The plaintif got examined eight witnesses including himself as PW-1, his wife Smt. Seema Bansal as PW-2, Sh. Sandeep Gupta as PW-3, Sh. Balvinder Singh, PRI (Postal) as PW-4, Sh. Laxmi Naryan, Record Keeper as PW-5, Sh. Braham Prakash Bansal, Special Assistant as PW-6, Sh. Dinesh Pandey, Food and Supply Inspector as PW-7 and Sh. N. S. Rao, UDC from Food & Supply Department as PW-8.
During the examination-in-chief, the plaintif (PW-1) relied upon various documents i.e. Ex. PW1/1 to Ex. PW1/18 and Mark A and B. PE was closed on 21.09.2015.
The defendant no. 1 got examined himself as DW-1 in support of his pleadings. The other defendants have not examined any other witness and DE was closed on 01.07.2017.
Issue-wise findings are as under :
ISSUE NO. 1 :-
"Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction? OPD"
8. The onus to prove this issue was put upon the defendant. It is the plea by the defendants that the suit has not been properly valued for the purpose of Court Fee and Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.6/13jurisdiction and the same is not maintainable. Per contra, it is the plea of the plaintif that he has already paid the necessary/requisite Court Fee.
Law is well settled that for the relief of partition, while the joint owners is in possession, the court fees is calculated as per Section 7(iv) (b) of Court Fees Act and if not in possession, fixed court fees is payable. In the present case, the possession of the plaintif is duly admitted in the written statement by the defendants. This is a suit for declaration, partition and permanent injunction by valuing the suit at Rs. 2,20,000/- for the purpose of Court Fee and jurisdiction and the Court Fee of Rs.2540/- has already been affixed.
Accordingly, the issue is decided against the defendants and in favour of the plaintif.
ISSUE NO. 2, 3 & 6:-
"Whether the plaintiff has no cause of action to file the present suit? OPD"
Whether the plaintiff has no locus-standi to file the present suit? OPD Whether the plaintiff was a member of Joint Hindu Family?OPP"
9. All the issues are taken up together as the same inter-connected. The onus to prove the issue no. 2 & 3 was upon the defendants and that of issue no. 6 was upon the plaintif. It is pleaded by the defendants that the suit was not Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.7/13maintainable as the same is without legal or valid cause of action. It is also pleaded by the defendants that the plaintif has no Locus-standi as there is no Joint Family as alleged by the plaintif. It is pleaded by the plaintif that he is in possession of the part of the suit property and even the same is clearly admitted in the written statement by the defendants. The plaintif has claimed the relief of declaration of the Sale Deed dated 21.03.2007 & 27.04.2007 null & void, besides partition and permanent injunction on the grounds that the suit property is Joint Family property and he being the member of the said Joint Hindu Family can file a suit for declaration, partition and that the defendant no.1 has no right to sell of the joint property. The defendants did not dispute the fact that the plaintif was the son of the defendant no.1. The defendants also did not deny the relationship of the plaintif with the defendants as pleaded by the plaintif.
Accordingly, issue no. 2 & 3 are decided against the defendants and in favour of the plaintif and issue no. 6 is decided in favour of the plaintif and against the defendants.
ISSUE NO. 4, 5 & 7 to 9 :-
"Whether the property no. 1235-36, Chowk Shah Mubarak, Kucha Pati Ram, Sita Ram Bazar, Delhi- 110006 was purchased by the defendant no. 1 from Smt. Anjna Kumari Gupta vide sale deed dated
10.01.2007 from the funds of the joint family business? OPP Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.8/13"Whether M/s Bankey Lal Ram Murti was a joint family business? OPP Whether the plaintiff is entitled to the relief of declaration, as prayed? OPP Whether the plaintiff is entitled to decree of partition, as prayed? OPP Whether the plaintiff is entitled to decree of permanent injunction, as prayed? OPP"
10. The issues no. 4, 5 & 7 to 9 are being taken together as the same are interconnected. The onus to prove these issues was upon the plaintif. It is the plea of the plaintif that the property no. 1235-36, Chowk Shah Mubarak, Kucha Pati Ram, Sita Ram Bazar, Delhi was purchased by the defendant no. 1 from Smt. Anjana Gupta vide registered sale deed dated 10.01.2007 from the funds of the joint family business. It is also the plea of the plaintif that the business of M/s Bankey Lal Ram Murti was a joint family business.
11. During his examination in chief, the plaintif (PW-1) re-iterated and re-affirmed the contents of the plaint but while under his cross-examination, it was deposed by him on 03.03.2011 at page no. 2 that he was not in possession of the original Ration Card. It was also admitted to be correct that he was having a separate kitchen. It was also admitted to be correct on the very same page that the shop of M/s Banke Lal Ram Murti was under the proprietorship of his grandfather Sh.
Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.9/13Ram Murti till his death in the year 1979. It was also admitted to be correct by him that after the death of Sh. Ram Murti, his father took over the business of the firm as its proprietor. It was also deposed by him that he was not aware whether he continues as proprietor of the said firm. At para no. 3, it was admitted to be correct by him that his grandfather executed his Will but it cannot be said if it was executed on 18.05.1979.
12. During his subsequent cross-examination dated 05.12.2012 at page no. 2, it was deposed by him that his father was proprietor of M/s Bankey Lal Ram Murti. It was further deposed by him that a partnership deed was executed amongst defendant no. 1 to 3 with respect to the firm M/s. Bankey Lal Ram Murti but he cannot produce the same. It was also deposed by him that he has placed on record the documents showing that an account was opened in Punjab National Bank for a partnership firm. It was also deposed by him that the alleged partnership firm was never dissolved. It was also deposed by him that he does not know whether any record was sent to Income Tax Department or Sales Tax Department regarding the conversion of the partnership into proprietorship.
It was further admitted to be correct by him that he had not taken any legal action against the defendants in the year 2002 when he was removed as Authorised Signatory of the said firm.
Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.10/13
13. During his subsequent cross-examination dated 13.02.2013, it was also admitted to be correct by plaintif (PW-
1) that the tenancy of the shop no. 3772, Chawri Bazar, Delhi was originally in the name of Sh. Ram Murti, who is his grandfather. It was further deposed that he cannot say in whose name the tenancy of the shop exist presently. It was also deposed by him that he cannot show any document where the disputed properties have been described as joint family properties.
14. Smt. Seema Bansal (PW-2) also during her examination in chief supported the contents of the plaint but during her cross-examination, it was deposed that her husband has a separate business other than the business of the defendant no. 1. It was also deposed by her that her husband had been working till the year 2001 in the Bankey Lal Ram Murti Firm. It was also deposed by her that she had never seen any document pertaining to the said firm in relation to her husband. It was also deposed by her that she was brought to the Court by her husband.
15. The plaintif did not place on record any document to show that the business of M/s Bankey Lal Ram Murti was a joint family business. However, it is the plea of the plaintif that since he was Authorised Signatory in the said firm, the business of the said firm was of a joint family. As per the contents of the para no. 15 of the plaint, the business was Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.11/13 converted into an unregistered partnership firm. In para no. 15 at page no. 10, it is the plea taken by him that unregistered partnership firm lasted for two years and it again became proprietorship firm of the defendant no. 1. Since, as per the contents of the plaint itself, the business of the firm has been converted to a proprietorship firm of the defendant no. 1, then the defendant no. 1 was fully empowered to keep any one as Authorised Signatory on his behalf in the said firm.
16. Admittedly, the plaintif is not possessing any document, wherein the disputed properties are described as Joint Family Properties. The plaintif has failed to place on record any material or document nor did he get any witness examined to prove that the property no. 1235-36 was purchased by the defendant no.1 from the funds of Joint Family Business. As per the deposition of plaintif (PW-1), he is not aware whether his father continues as Proprietor of the said firm. It is pleaded by the defendant no. 1,3 & 4 in para 12 of the w/s that the father of the defendant no.1, bequeathed the entire business in his favour by Will dated 18.05.1979. The plaintif did not dispute nor denied the execution of the said Will. Even, during his cross-examination, it was deposed that he was not aware about the date of the execution of the said Will. Law is well settled that a property obtained through Will, is the sole property of the beneficiary and all the income derived out of the said property, will be considered to be the income of the beneficiary.
Sanjeev Bansal vs Nand Kishore & Ors.
Suit No. 8046/16 Page no.12/13 At one point of time the plaintif (PW-1) says that his father was Proprietor of M/s Bankey Lal Ram Murti and on the other side, he states that a Partnership Deed was executed amongst defendant no.1 to 3.
17. The plaintif himself is supposed to prove his case by standing on his own legs. The plaintif did not dispute the execution of the Will by the father of the defendant no.1 in favour of defendant no.1.
Hence, on the basis of the pleadings and the evidence brought on record, the court has no hesitation in holding that the plaintif has failed to prove the same.
Accordingly, all the issues are decided in against the plaintif and in favour of the defendants.
Relief.:-
18. In view of above discussion and findings of the issues, the plaintif is not found entitled to any relief. Suit is dismissed.
Decree sheet be prepared accordingly.
Announced in the open Court RAJINDER
today the 18th December, 2018
KUMAR
Digitally signed
by RAJINDER
KUMAR
Date: 2018.12.19
15:18:38 +0530
Sanjeev Bansal vs Nand Kishore & Ors.
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