Subhash Chander Kaushik & Ors. v. Kishni Devi @ Krishna Devi

1. This present appeal has been filed under Section 100 of the Code of Civil Procedure against the impugned judgment dated 17.08.2019, passed by District and Sessions Judge, South-West, New Delhi, in R.C.A. No. 15/2019 (RCA Civil DJ ADJ/48/2019), titled Subhash Chander Kaushik & Ors. vs. Kishni Devi @ Krishna Devi, whereby the learned appellate court upheld the judgment dated 13.03.2019, passed by the learned ACJ-cum-CCJ-cum-ARC (West), Tis Hazari Courts, Delhi.

2. The brief facts, as stated in the appellate court order dated 17.08.2019, are that the respondent instituted a suit asserting her title over property No. RZ-H-57, Main Mehrauli Road, Gali No.-10, Raj Nagar Part-II, Islam Colony, New Delhi, claiming to have purchased it through a General Power of Attorney, Agreement to Sell, Will, and other sale documents executed on 24.07.1985 by Smt. Ghoghari Devi, Sh. Shri Kishan, and Sh. Sukhbir Singh. She contended that the sale consideration was paid from her savings earned through her provision store and dairy business at her matrimonial home in Sonepat before shifting to Delhi.

3. The appellants contested the suit, questioning her financial capacity to purchase the property and asserting that she had no independent source of income, alleging instead that their deceased father had purchased the land ‘benami’ in her name. They further challenged the authenticity of the sale documents, arguing that they did not bear the plaintiff’s signatures or thumb impression. Furthermore, the appellants claimed ownership through adverse possession while denying that their possession was as licensees. They also asserted that a family settlement had taken place in 1997, pursuant to which they were in possession of their respective portions of the property.

4. Learned counsel for the appellants submits that the learned court below overlooked the crucial distinction between the de jure owner, their deceased father, and the de facto owner, the respondent, in whose name the title deeds exist. It is submitted that the respondent failed to establish her independent source of income or provide evidence of the purchase of the suit property, reinforcing the claim that it was acquired by their father as a benami transaction. Furthermore, the appellants assert that the learned court failed to consider the settlement deed dated 05.08.1997, which was undisputed by the respondent and reflected the true owner's intention to distribute the property among his children. Relying on Rajender Abbot v. Dr. Vijay Abbot & Ors.CS(OS) 2036/1994, and Kale v. Deputy Director of Consolidation & Ors.,1976 INSC 6, they emphasize that a family settlement does not require stamping and registration and should be admissible as evidence.

5. Learned counsel for the appellant submitted that their exclusive and uninterrupted possession of the suit property until 2005-2006 establishes their adverse possession, while the respondent failed to prove that they were mere licensees paying an annual fee. Lastly, they submit that the appellate court erred in failing to recognize that the respondent, despite claiming ownership, neither has her signature nor thumb impression on the sale documents, nor was she present during the execution of the sale deed, reinforcing her de facto rather than de jure ownership.

6. The respondent submits that a second appeal is not a matter of right and must be based on substantial questions of law, which the appellants have failed to establish. To seek possession, the respondent was required to prove exclusive ownership over the suit property, which she did by producing and exhibiting her title documents in deposition. The appellants challenged these documents as forged, arguing that the property was purchased by the respondent’s husband using his own funds and a loan from his brother. However, Hari Chand Sharma (DW[3]), a witness to the title documents, verified their authenticity, thereby proving the respondent’s ownership.

7. The appellants' claim that the respondent’s husband was the de jure owner was unsupported by any evidence, and they failed to prove the alleged sources of funds for the purchase, whereas registered receipts (Ex. PW3/A & Ex. PW3/B) established that the payment was made by the respondent. Their assertion of adverse possession based on an unregistered family settlement (Ex. DW1/1) is baseless, as the respondent, the registered owner, was neither a party to nor had endorsed the document, and they failed to prove hostile possession adverse to her knowledge. Moreover, the respondent’s deposition that the appellants were licensees in the property since 15.01.1998, and that their license was terminated on 11.09.2005 via legal notice dated 07.09.2005, remains unrebutted, and mere denial of service of notice is inconsequential, especially when the postal address was correct.

8. Learned Trial Court from the pleadings of the parties, framed the following issues vide order dated 13.03.2019: “Issue No.-1:-Whether plaintiff is entitled for possession of property bearing No.-RZH-57, Main Mehrauli Road, Gali No.-10, Raj Nagar, Part-II, Palam Colony, New Delhi 110045? OPP Issue No.-2:-Whether plaintiff is entitled for mesne profit and damages, if yes at what rate and for which period? OPP Issue No.-3:-Whether there is no cause of action in favour of plaintiff and against defendant? OPD Issue No.-4:-Whether documents filed by the plaintiff are forged and fabricated as contended in written statement? OPD Issue No.-5:-Whether suit is barred by limitation as contended in para no.-9 of preliminary objection of written statement? OPD Issue No.-6:-Relief.”

9. The Learned Trial Court, in its judgment dated 13.03.2019, inter alia, held as under;

the present situation will fall under the Exception-iii to Section-2 (9) (A) (b) of the Benami Transactions (Prohibition) Act, 1988 and since the transactions are of 1985, defendant No.1 shall still be the de jure owner of it. It is the case of the plaintiff that the suit property has been purchased by her from her own income and the documents relied upon by her prima facie record her name as the beneficiary.

18. It has been held in Jayadayal Poddar Vs. Bibi Hazra, AIR 1979 SC 171 as under: "... It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an Inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot 'be, easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the, person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formula or acid tests, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances: (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 color; (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" Further, it has been held in Nand Kishore Mehra Vs. Sushila Mehra, AIR 1995 SC 215 as under: "...But, it has to be made clear that when a suit is filed or defence is taken in respect of such benami transaction involving purchase of property by any person in the name of his wife or unmarried daughter, he cannot succeed in such suit or defence unless he proves that the property although purchased in the name of his wife or unmarried daughter, the same had not been purchased for the benefit of either the wife or the unmarried daughter, as the case may be, because of the statutory presumption contained in sub-section (2) of Section 3 that unless a contrary is proved that the purchase of property by the person in the name of his wife or his unmarried daughter, as the case may be, was for her benefit". Reliance is also placed upon G. Mahalingappa Vs. G.M. Savitha, (2005) 6 SCC 441. The judgment relied upon by the defendant that is Yogita Dasgupta Vs. Kaustav Dasgupta, MAT.APP. (FC)7/2014 pronounced on 27.07.2016 by Delhi High Court reiterates that the aforesaid law.

19. Thus, in view of statutory presumption in favour of the plaintiff, the defendants have to by way of cogent and credible evidence rebut the presumption. Mere conjectures and surmises will not be sufficient to non-suit the plaintiff.

20. In the considered view of this Court, the defendants have failed to substantiate their claims by way of credible evidence. The defendants have taken mutually destructive pleas that the property had been purchased in the name of the plaintiff 'so that tomorrow she may not have any difficulty after the death of defendant No.1' (in paragraph No.2, reply on merits in the written statement filed by all the defendants in. CS No.8637/2016) and then that the property had been purchased for the benefit of all the family members by defendant No.1 (since deceased) out of his own income and loan taken from his brother. It has been asserted that defendant no, 1 was employed as a driver with DDA and out of his own salary and loan taken from his 1 brother, he had purchased the suit property in the year 1985. The plaintiff has successfully elicited responses from DW-1 which disprove that the father had made payment towards the consideration of suit property. Even though he admitted that there are some receipts, he failed to produce them or substantiate by way of credible evidence that the plaintiff had stolen them in the year 1997. Though he deposed that loan of Rs.20,000/- was taken by defendant No.1 (since deceased) from his brother Sh. D. R. Sharma, no documentary proof of the cheque vide which payment was made could be produced and he also denied to be a witness to the same. The witness also waivered as regards the time when the loan was taken. DW[1] was also controverted during cross examination regarding the provident fund which was allegedly withdrawn by defendant No.1 (since deceased) to raise funds for the purchase of the property. The plea of the defence that the receipts Ex. PW3/A and Ex. PW3/B do not provide the details of the property qua which it pertains to and who has paid it, once again cannot be sustained. These are documents which have been executed together with other documents in a transaction and cannot be read in isolation. Reliance is placed upon S. Chattanatha Karayalar Vs. The Central Bank of India Ltd. and Ors. AIR 1965 SC 1856. They clearly stipulate that the payment has been made by the plaintiff. Thus, the defendants have miserably failed to rebut the presumption.

21. The plea of adverse possession raised by the defendants was for them to prove by way of cogent and convincing evidence that. a hostile animus and possession adverse to the knowledge of the plaintiff existed since 1985 and thereafter, since 1997 when the family settlement was arrived at. Reliance is placed upon Thakur Kishan Singh Vs. Arvind Kumar (1994) 6 SCC 591, Gaya Parshad Dikshit Vs. Dr. Nirmal Chander & Anr. (1984) 2 SCC 286 and L.