Full Text
HIGH COURT OF DELHI
Date of order : 29th November 2022
SHRI NARENDER KUMAR GULATI ..... Plaintiff
Through: Mr. S.C. Singhal and Ms. Poonam Taneja, Advocates
Through: Mr. Abhay Mani Tripathi, Advocate for D-1
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant civil suit has been filed by the Plaintiff seeking partition and rendition of accounts in respect of the following properties:
1. Flat No. 60, Bhagat Singh Market, New Delhi – 01
2. Shop No.90, Bhagat Singh Market,New Delhi- 01
3. Shop No. 119, Bhagat Singh Market, New Delhi-01
2. The Plaintiff and the Defendants are real brothers and the parents of the parties, i.e. Late Sh. H.K. Gulati and Late Smt. Shanti Gulati, who died intestate on 20th July 1993 and 27th December 2001, respectively.
3. The Plaintiff claims that Late Sh. H. K. Gulati, the father of the parties, was the owner of the property bearing Flat No. 60, Bhagat Singh Market, New Delhi-01, while their mother Smt. Shanti Gulati was the owner of the shop bearing No. 90, Bhagat Singh Market, New Delhi. The Plaintiff submits that apart from the above properties, a shop bearing NO. 119, Bhagat Singh Market, New Delhi (hereinafter referred to as the ‘suit property’) was purchased by the father of the parties from one Shri Ramji Dass Chawla in the name of the Defendant No.1 vide a sale deed dated 1st January 1968.
4. The Plaintiff claims that the suit property for all intents and purposes was the property of their father and the Defendant No.1 was holding the suit property merely as a trustee for the entire family of Late Sh. H.K. Gulati and that at the time of the purchase of the said property, the Defendant No.1 was having no funds at his disposal to purchase the suit property.
5. In the written statement filed on behalf of both the Defendants, the claim of the Plaintiff with respect to the following properties was admitted:
1. Flat No. 60, Bhagat Singh Market, New Delhi – 01
2. Shop No.90, Bhagat Singh Market,New Delhi- 01
6. The relevant portion of the written statements is reproduced below: ―That the contents of Para 6 are only admitted to the exrtent that the Parties are equal share-holders in respect of the Property - Flat No. 60, Bhagat Singh Market, New Delhi. It is respectfully submitted that Defendant No.1 and Defendant No.2 are living in the said flat / suit premises along with their families on IInd and 1st floor of the flat for the last more than 30 years. It admitted that the Shop No. 90, Bhagat Singh Market, New Delhi was purchased in the name of Late Smt. Shanti Gulati the mother the parties vide Sale Deed and till date stand in her name. The said shop - 90, Bhagat Singh Market, New Delhi was given to Defendant No.1 for running his own business and profession.‖
7. An application bearing I.A. no 3198 of 2010 was filed by the Plaintiff seeking judgment on admission under Order XII Rule 6 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’) in view of the admissions made by the Defendants in their pleadings. Accordingly, vide order dated 24th November 2010 a judgment on admission was passed by a Coordinate Bench of this Court. The relevant portion of the judgment on admission is reproduced below: ―In so far as the aforementioned two properties are concerned, in my view, Mr Singhal is right that there is an admission in the paragraphs referred to hereinabove of the written statement, these being: paragraph nos. 3, 4, 5, 6&7 of the reply on merits of the written statement. The admission becomes clear when they are read in conjunction with the averments made in the corresponding paragraphs of the plaint. Accordingly, as prayed a preliminary decree in respect of the aforementioned two properties is passed to the extent of the plaintiffs claims of1/3''" share in the aforementioned properties. The application is allowed. The suit is decreed to that extent. Application stands disposed of.‖
8. Vide order dated 24th November 2017 and further rectified vide order dated 3rd January 2018; a final decree was passed in continuation of the order dated 24th November 2017 in respect of the properties other than the suit property. The relevant portion of the order dated 24th November 2017, is reproduced below: ―13. The possibility of the defendants offering a price for the plaintiffs one-third share in the two properties has also been explored but is found to be unworkable.
14. In this view of the matter, as far as property Flat No.F-60, Double Storey Building, Bhagat Singh Market, New Delhi and the Shop No.90, Bhagat Singh Market, New Delhi are concerned and with respect to which a preliminary decree for partition was passed as far back as on 24th November, 2010, a final decree for partition thereof by sale thereof and distribution of sale proceeds amongst the parties as per their respective shares declared in the preliminary decree, is passed.
15. A decree is also passed in favour of the plaintiff and
(i) against the defendant no. l for recovery of mesne profits for use and occupation of ground floor and second floor of flat no. 60, Bhagat Singh Market, New Delhi @ Rs.30,000/- per month; and, (ii) against the defendant no.2 for recovery of mesne profits for use and occupation of the first floor of flat no.60, Bhagat Singh Market, New Delhi @ Rs. 10,000/- per month, both with effect from the date of preliminary decree i.e. 24th November, 2010 and till the date of sale of the property and delivery of vacant peaceful physical possession thereof to the purchaser. The mesne profits so due from the defendants to the plaintiff, if not paid, shall be deducted from the sale proceeds of the two properties of the share of the two defendants."
16 The said arrears of mesne. profits with effect from today shall also incur interest, @7% per iannum and the future mesne profits shall incur interest at the said rate with effect from the end of the month for which the mesne profits are due till the date of payment.
17. It is also directed that vacant peaceful possession of the aforesaid two properties shall be delivered by the defendants to the purchaser/s thereof and if the defendants fail to vacate, they shall be liable to be dispossessed therefrom as in execution of a decree for possession.
18. A final decree for partition in above terms with respect to Flat No; F-60, Double Storey Building, Bhagat Singh Market, New Delhi and the Shop No.90, Bhagat Singh Market, New Delhi be drawn up.‖
9. Vide order dated 24th November 2017, the following issues were framed by the Co-ordinate Bench of this Court for further adjudication in the captioned suit: ―(i) Whether the consideration for purchase of Shop No. 119, Bhagat Singh Market, New Delhi in the name of defendant no. 1 had flown from the father of the parties and if so, whether the said property is to form part of the estate of the father of the parties? OPP
(ii) Whether the Shop No.l 19, Bhagat Singh Market,
New Delhi is held by defendant no.l in a fiduciary capacity as a trustee earlier for his father and after the demise of the father, for the benefit of all the heirs of the father and if not, to what effect? OPP.
(iii) Relief.‖
10. The Plaintiff in the instant suit was examined as PW-1 and his examination-in-chief was tendered by way of his affidavit Ex.PW-1/A. The Plaintiff in his examination-in-chief has deposed that the suit property was purchased by the father of the parties in the name of the Defendant No.1 only to ensure that the Defendant No.1 acts as a trustee of the suit property for the benefit of the family members. The Plaintiff further deposed that the Defendant No.1 had no funds of his own to purchase the said suit property and no part of the sale consideration was paid by the Defendant No.1.
11. In his cross-examination, PW-1 has maintained his testimony and denied that the funding of the suit property was by the Defendant No.1 from his own sources of income. He has also denied that the Defendant No.1 was employed in the year 1968 when the suit property was purchased by the father of the parties. He has also denied the factum of any loan having been given to the Defendant No.1 by his maternal uncle, Mr. R.K. Dawar. The Plaintiff has pleaded ignorance with respect to the filing of the income tax returns by his father in the year 1968, when the suit property was allegedly purchased.
12. The Defendant No.1 was examined as DW-1 and his evidence was tendered by an affidavit Ex.DW-1/A. The Defendant No.1 has deposed that in the year 1967, the Defendant No.1 was working with M/s Malhotra Publications at Regal Building, New Delhi and was getting a salary of approximately Rs.800/- per month. He further deposed that the suit property was purchased by him on 1st January 1968 with the financial help of his maternal uncle for a total consideration of Rs.15,000/- vide a sale deed which was duly registered in the office of Sub-Registrar, Asaf Ali Road, New Delhi. As the Plaintiff failed to cross-examine DW-1 despite numerous opportunities given, the right of the Plaintiff to cross-examine DW-1 was forfeited and the Defendant’s evidence was closed. Issues (i) and (ii):
13. I have perused the registered sale deed dated 1st January 1968 executed in favour of the Defendant No.1. At the outset it is not the case of the Plaintiff that the sale deed has been forged and fabricated and he has been kept out of the suit property as a result of conspiracy between the parties to the above-mentioned sale deed. Even otherwise it is a settled principle of law that a registered document is presumed to be genuine and the onus is on the party who pleads to the contrary.
14. In Prem Singh & Ors. vs. Birbal & Ors., (2006) 5 SCC 353, the Hon’ble Supreme Court held as follows: ―27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.‖ (emphasis supplied) In view thereof, in the present cases, the initial onus was on the plaintiff, who had challenged the stated registered document.”
15. The burden of proof is on the Plaintiff to show that the sale consideration was paid by the father of the parties and not the Defendant No.1. It is pertinent to refer to Section 101 of the Indian Evidence Act, 1872, which envisages that the burden of proof is on the party who desires the Court to give a judgment as to any legal right or liability dependent on the existence of facts which he asserts. The provision is reproduced below: ―101. Burden of proof. –– Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.‖
16. This section shows that the initial burden of proving a prima facie case in his favour is cast on the Plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce evidence in rebuttal to meet the case made out by the plaintiff.
17. In the present case, the plaintiff has miserably failed to substantiate his contentions that the sale consideration was paid by the father of the parties and not by the Defendant No.1 and has merely submitted that at the relevant time in the year 1967-68 the Defendant No.1 was aged 22-23 years and was not having any independent source of income. Not only this, the Plaintiff has failed to cross-examine Defendant No.1 to cast aspersions on the claims of the Defendant No.1 that he was employed in the year 1967 and had received a loan from his maternal uncle to purchase the suit property.
18. A fortiori is that, the present suit is barred by Section 4 of the Prohibition of Benami Property Transaction, 1988 because it is the Plaintiff himself who has submitted that the suit property was purchased by the father of the parties but in the name of the Defendant No. 1. In Union of India vs. Moksh Builders and Financiers Ltd., (1971) 1 SCC 60, it was held by the Hon’ble Supreme Court that: ―16. The burden of proof is, however not static, and may shift during the course of the evidence. Thus while the burden initially rests on the party who would fail if no evidence is led at all after the evidence is recorded, it rests upon the party against whom judgment would be given if no further evidence were adduced by 'either side, i.e. on the evidence on record. As has been held by this Court Kalwa Devadattam v. The Union of India that where evidence has been led by the contesting parties on the question in issue, abstract considerations of onus and out of place, and the truth or otherwise of the case must. always be adjudged on the evidence led by the parties. This will be so if the court finds that there is no difficulty in arriving at a definite, conclusion. It is therefore necessary to weigh the evidence in this case and to decide whether, even if it were assumed that there was no conclusive evidence to establish or rebut the "benami" allegation, what would, on a careful assessment of the evidence, be a reasonable probability and a legal inference from relevant-and admissible evidence.‖
19. It is pertinent here to refer to the Section 4 of the Prohibition of Benami Property Transaction Act, 1988 (hereinafter referred to as ‘Benami Property Act’). ―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.‖
20. The present suit accordingly, falls within the mischief of Section 4(1) of the Benami Property Act as it is clearly covered by the prohibition contained under Section 4.
21. It is thus held that the Plaintiff has no interest in the suit property and the Plaintiff has failed to discharge the burden of proof to substantiate that the sale consideration had flown from the father of the parties and that the suit property was held by the defendant no.l in a fiduciary capacity as a trustee, earlier for his father and after the demise of the father, for the benefit of all the heirs of the father.
RELIEF
22. In view of the findings on the issues discussed above, it is held that the present suit is barred by Section 4(1) of the Benami Property Act and the Plaintiff is not entitled to any relief as sought by him qua the suit property.
23. Accordingly, the instant suit is dismissed. Parties are directed to bear their own costs.
JUDGE NOVEMBER 29, 2022 Dy/mg Click here to check corrigendum, if any