Full Text
HIGH COURT OF DELHI
Date of Decision: 23rd May, 2019
CPC), 5075/2016 (of D-1 u/O XXXIX R-4 CPC), 5076/2016 (of
D-1 u/O VII R-11 CPC), 7213/2016 (of D-4 to 9A u/O I R-9&10
CPC), 7215/2016 (of D-4 to 9A u/O VII R-11 CPC), 7650/2016
(of D-2&3 u/O VII R-11 CPC) & 8882/2016 (of D-2&3 u/O I R-
9&10 CPC)
NEERU DHIR AND ORS ..... Plaintiffs
Through: Mr. Rakesh Mukhija and Mr. Rajiv Singh Pilania, Advs.
Through: Mr. Nilava Banerjee and Ms. Swati Singh, Advs. for D-1.
Mr. Lakshay Dhamija and Mr. Sunav Rastogi, Advs. for D-2 to 9.
JUDGMENT
1. The three plaintiffs, namely (a) Neeru Dhir; (b) Nipun Dhir; and, (c) Vatsala Dhir, being the widow, son and daughter of late Anil Kumar Dhir, have instituted this suit for partition of Property No.C- 324, Vivek Vihar, Delhi – 110 095 and for permanent injunction restraining the defendants from alienating, encumbering or parting with possession of the said property, against the four brothers, three sisters and heirs of another two sisters, of Anil Kumar Dhir pleading that (i) R.P. Dhir father of Anil Kumar Dhir and defendants no.1 to 7 was a government servant and his family was a Hindu Undivided Family (HUF); (ii) during his service period the said R.P. Dhir was living in government accommodation along with his wife and 2019:DHC:2827 children; (iii) R.P. Dhir, in the year 1966, from his own resources and earnings, “for the welfare and benefit of the family” purchased the land underneath the suit property from Delhi Development Authority (DDA) and in the year 1977 built a single storeyed house thereon; (iv) however at the time of allotment and execution of documents, R.P. Dhir and the defendants decided that “for the convenience sake the title documents/allotment etc. be got executed in the name of the eldest son namely K.K. Dhir i.e. defendant no.1”; (v) thus the suit property was got allotted in the name of defendant no.1; (vi) the defendant no.1 from time to time, in various letters has admitted the said fact; (vii) R.P. Dhir died intestate on 20th December, 1993, leaving five sons and five daughters; (viii) however Anil Kumar Dhir predecessor of the plaintiffs and two of the daughters of R.P. Dhir have also since expired; (ix) the defendants no.1 to 3 have been residing abroad and the defendant no.4 has been residing in government accommodation and the defendants no.5 to 9A have been residing in their matrimonial homes; (x) the three plaintiffs alone are residing in the property and paying charges for electricity, water and telephone therein; (xi) the defendant no.1 had written letters to the DDA as well as Delhi Municipal Corporation that the land underneath the property was purchased by R.P. Dhir in the name of defendant no.1 and construction thereon had also been made by R.P. Dhir from his own funds and that after the demise of R.P. Dhir all his sons were co-owners of the property; (xii) upon the defendant no.1 applying to DDA for converting the leasehold rights in the land underneath the property into freehold in his own name, the plaintiffs objected; and,
(xiii) the plaintiffs together have 1/10th share in the property.
2. The suit came up before this Court first on 29th February, 2016 when summons thereof ordered to be issued and vide ex parte ad interim order, status quo with respect to title of the property ordered to be maintained.
3. The defendant no.1, defendants no.2&3 and defendants no.4 to 9A have filed written statements and to which replications have been filed by the plaintiffs.
4. IA No.5076/2016 (of defendant no.1), IA No.7215/2016 (of defendants no.4 to 9A) and IA No.7650/2016 (of defendants no.2&3), all under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) are for consideration.
5. The defendants seek rejection of the plaint, pleading that (i) R.P. Dhir had a fixed salary with a family of ten children and the defendant no.1 being the eldest son was supporting the father since joining employment in the year 1961;(ii) the defendant no.1, in the year 1963 shifted to United Kingdom (UK) and continued to help the father to meet the expenses of education and marriage of his children;
(iii) R.P. Dhir had no sufficient means to acquire the land underneath the property or to raise construction thereon; (iv) it was the defendant no.1 who had applied to the DDA and was the successful bidder and who was allotted the land and who had raised construction thereon; (v) however since the defendant no.1 was residing in UK, he had executed a General Power of Attorney (GPA) in favour of his father R.P. Dhir for the said purpose and all documents relating to the property also remained in the custody of R.P. Dhir and which documents are being illegally withheld with the plaintiffs; (vi) R.P. Dhir retired from employment in the year 1975; (vii) Anil Kumar Dhir was unemployed and was struggling to find gainful employment after graduation and was supported by defendants no.1,2&3 to start a business and though initially acquired a house with the gains of the business but subsequently suffered loss compelling him to sell the house and continued to be supported by his brothers; (viii) R.P. Dhir had no property and no HUF; (ix) even if it were to be believed that the property was purchased by R.P. Dhir in the name of defendant no.1, the claim of the plaintiffs in the present suit would be barred by Benami Transactions (Prohibition) Act, 1988 and the plaint is liable to be rejected; (x) the suit is also barred by limitation inasmuch as the plaintiffs admittedly had knowledge for more than three years prior to the institution of the petition that the property was in the name of the defendant no.1 and the defendant no.1 was getting the leasehold rights in the land converted into freehold; (xi) Article 113 of the Limitation Act, 1963 is applicable and which provides for limitation of three years; and, (xii) the plaintiffs have not given any particulars or filed any document to show the existence of any HUF.
6. The defendants no.2 to 9A support the defendant no.1.
7. The counsels were heard on 24th April, 2019, when the counsel for the plaintiffs admitted that under the Prohibition of Benami Property Transactions Act, 1988, the plaintiffs have no right.
8. I had in the order dated 24th April, 2019 recorded that in my opinion even under the unamended Benami Transactions (Prohibition) Act, 1988, as it existed prior to amendment with effect from 11th August, 2016, the plaintiffs had no right. It was also observed that the plaintiffs, being in exclusive control and possession of the property, in the event of the suit being dismissed would also be liable for mesne profits/damages for use and occupation.
9. However in the facts and circumstances of the case and considering that the parties were members of family, amicable settlement was explored and the plaintiffs through counsels also stated that they were willing for settlement as may be proposed by the Court. Accordingly, on 24th April, 2019 the proceedings were adjourned requesting the counsel for the defendant no.1 to take instructions from the defendant no.1 whether some reasonable monetary amount could be paid to the plaintiffs against the plaintiffs delivering vacant peaceful physical possession of the property.
10. Thereafter on 3rd May, 2019 and 15th May, 2019 further parleys for settlement were held and the proceedings adjourned to today.
11. Today it is reported that no settlement has been arrived at between the parties. Though the plaintiffs no.1 and 3 also present in person seek another adjournment but the counsels for the defendants state that though reasonable amount has been offered to the plaintiffs but the plaintiffs are now acting greedy.
12. The counsel for the plaintiffs has not addressed any arguments inspite of being told that the applications under Order VII Rule 11 of the CPC would be allowed and the suit dismissed.
13. Inspite of the aforesaid, being duty bound I proceed to give my reasons.
VII Rule11 of the CPC are concerned, the same are outside the domain of Order VII Rule 11 of the CPC. Similarly, though grounds have also been taken in the applications as to valuation and limitation but no arguments have been addressed thereon. The applications for rejection of the plaint have been argued solely on the premise of the suit claim being barred by the Benami law.
(i) Letter dated 27th April, 1987 of the defendant no.1 to the Delhi Municipal Corporation as under:- “Dear Sir, My father Shri R.P. Dhir had purchased a plot No.C-324, Vivek Vihar from D.D.A. in 1966 when I was in the U.K. On the basis of power of attorney given by me in 1968 to him, he constructed the house with his own funds. I have my own house in the U.K. and have settled there with my family. I have requested D.D.A. to transfer the plot in the name of my father as he has no other house in Delhi in his name or in the name of his deceased wife. I understand from him that D.M.C. has not yet assessed the house tax of the house. I would request you to finalise the tax and get the recovery from him. I am settled in the U.K. and would not be able to make the payment. After the death of our father, we the five brothers, K.K. Dhir, H.K. Dhir, Subhash Dhir, Ashok Dhir and Anil Dhir will be the owners of the house and Anil Dhir, settled in Delhi, will make the payments of house tax on our behalf.”
(ii) Letter dated 27th April, 1987 of the defendant no.1 to the Delhi Development Authority as under:- “In supersession of my previous letter for giving House No.C-324, Vivek Vihar, Delhi in my name to my father Shri R.P. Dhir as a gift, I am to say that though the plot was purchased by my father in my name in 1966 when I was in the U.K., the construction has been made by my father with his own savings and hence the plot may be transferred to the name of my father who has no other house in Delhi in his name or in the name of his deceased wife. I have my own house in the U.K. and I have settled there permanently. I had given Power of Attorney to my father in 1968 on the basis of which he constructed the house with his own savings. After his death the above house will be in the name of five brothers, viz. K.K. Dhir, H.K. Dhir, Subhash Dhir, all settled in the U.K., and Dr. Ashok Dhir and Anil Dhir who are settled in Delhi.”
(iii) Document dated 13th February, 1993 executed by the defendants no.1,2&3 as under:-
(iv) Letter dated 12th March, 2001 written by defendant no.1 to his brothers and sisters as under:- “Anil Dhir 205 Kings Road Harrow Middlesex UK 12/3/2001 Dear Brothers and Sisters, I hope and pray this letter finds you in the best of health. Because of the unnecessary delay in sorting out the problem of our family property in Vivek Vihar, I am writing a common letter to you all. I have come to know of the baseless accusations and malicious gossip against me and my intentions. I did not remove from Vivek Vihar any deeds or papers relating to this property on any of my visits to India. Despite the fact that the Vivek Vihar property is in my name, it is our ancestral home and family property and I have no selfish interest in it. I provided a number of documents in the past to support this and respected father had full control and authority to do what he liked with the property. Soon after respected father’s death, and in the absence of any WILL, it was decided by mutual consent to authorize Ashok & Anil to repair and renovate the ground floor and proceed with the construction of an additional one and a half storeys, out of money left by respected father with further funds to be provided by Ashok and Anil. They were both to be given legal ownership of one floor each and the half storey on the second floor was to remain family property. However, to date no progress has been made on this issue and I do not accept any responsibility for the delay. Except for a draft power of attorney sent to me by Anil through Sushma in 1994, which was rejected with full explanation and notified to all the brothers, no other documents have been presented to me for signature, either by post or in person on my last visit to India in 1998. Anil has vowed not to write to me or reply to my letters; but Ashok has written to me on the subject and I am still waiting for a reply and positive reaction to my previous two letters posted last year. The matter was discussed with Ashok and Anil on my visit in 1998, but there has been no subsequent initiative from them. A number of options are available and as soon as appropriate legal documents appertaining to the option favoured by all of you are ready, I shall make plans to visit India and complete the formalities. Remember, I do not want to replace one problem with another, and I want to review draft of the documents before I come to India. I am sending by post a copy of this letter to all my brothers and sisters at their home address. With love and best wishes. Your brother Kamal”
14. The applications under Order VII Rule 11 of the CPC thus succeed. The plaintiffs, on the averments in the plaint and documents filed therewith have not made out any cause of action in law for the relief claimed of partition of the property.
15. The suit is accordingly dismissed. However, no costs. Decree sheet be drawn up.