Full Judgment Text
34
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of Decision : 25 March, 2008
+ CS(OS) 1135/1997
SURESH KUMAR AGGARWAL ..... Plaintiff
Through Mr. S.S.Panwar, Advocate.
versus
KISHAN KUMAR AGGARWAL ..... Defendant
Through Mr. Manmohan Gupta, Advocate.
CORAM:
MR. JUSTICE S. RAVINDRA BHAT
1. Whether reporters of local papers may be
allowed to see the judgment? YES
2. To be referred to the Reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
Mr. Justice S. Ravindra Bhat (Open Court)
IAs 4896/1997, 10690/1998, 2111/2000, 1547/2004, 1434/2001
& 4388/2001
1. The plaintiff, in this case, seeks a decree for partition,
injunction and rendition of accounts in respect of the property being
SU–218, Pitam Pura, Delhi – 34. The plaintiff – applicant claims
one-fifth ownership rights in respect of the said property.
2. With the consent of learned counsel for the parties, all the
pending applications being IA No.4896/1997, 10690/1998, 2111/2000,
and 1547/2004 were heard together. Similarly IAs No. 1434/2001,
CS(OS) 1135/1997 1 of 9
under Order XXXIX Rules 1 & 2 and IA 4388/2001, under Order XL
Rule 1 were also heard.
3. According to the averments, one Mr.Kanshi Ram Aggarwal
had three sons, i.e. Phool Chand Aggarwal, Mahabir Prasad Aggarwal
and Prahlad Rai Aggarwal. The plaintiff alleges that the property is
owned by Shri Kanshi Ram Aggarwal and submits that he also owned
two residential houses in Haryana at village Barwa Tehsil Siwani,
District Hissar (Haryana). It is further alleged that these properties
acquired the character of joint family properties. It is further alleged
that during his life time, the said Kanshi Ram Aggarwal effected
partition of the two residential houses.
4. The plaintiff further avers that after partition of residential
houses, an entry was made in the records. Shri Mahabir Prasad
Aggarwal constitutes a Hindu Undivided Family (HUF) along with his
sons, i.e. the plaintiff, defendants No.1, 4 and 5. Defendant No.2 is
the wife of defendant No.1 and defendant No.3 is Shri Mahabir Prasad
Aggarwal. It is further averred that the original ancestor Shri Kanshi
Ram Aggarwal had died in 1977.
5. Defendant No.3 was the Karta of the HUF known as
“Mahabir Prasad and Sons”, paid 25% of the bid amount at an auction
conducted by Delhi Development Authority for the property SU-218,
Pitam Pura, Delhi – 34. It is not denied that the bid was in the name
CS(OS) 1135/1997 2 of 9
of defendant No.1; a sum of Rs.86,000/- being 25% of the total amount
was paid to the DDA out of the said alleged HUF funds. It is claimed
that balance of the bid amount, i.e. Rs.2,58,016/- was thereafter paid
towards consideration from the joint family funds. It is further
averred that according to the DDA's policy, the bid would be accepted
in the name of a particular person, if the name of the wife were also
indicated in the perpetual lease deed; the defendant No.2's name was,
therefore, included. However, according to the plaintiff, the said
property continued to be that of the HUF.
6. In support of the plaint that the property acquired a
character of HUF property, the plaintiff has relied upon the photocopy
of Statement of Accounts filed along with the suit as well as passbook
issued by the Oriental Bank of Commerce, bearing Account No.8520,
in favour of Mahabir Prasad and Sons. A particular entry of 19.6.2007
discloses a balance of Rs.86,127/-. Reliance has been placed on a
Passbook bearing the account No.8520, for which the account holder
is Mahabir Prasad. The plaintiff further relies upon the copy of the
letter dated 30.3.1988 addressed to the Commissioner, Income Tax
(IV), New Delhi, and a certificate in Form 53 addressed to that
official, to say that though the property stands in the name of
defendant No.1, the intention of the parties all along was that it
actually belonged to a joint family. The plaintiff has further relied
CS(OS) 1135/1997 3 of 9
upon copies of Statement of Accounts for the years 1983 to 1992, the
said too have been filed with the Income Tax Authority. In these
circumstances, the plaintiff claims an ad interim injunction to restrain
the defendants from disposing of the suit property.
7. During the initial stage of the suit, the Court had granted
an ex-parte injunction. The same was, however, vacated on
13.4.1999. The plaintiff carried the order in an appeal to the Division
Bench which disposed it of on 15.9.1999. The Division Bench was of
the opinion that this Court had vacated the ex-parte injunction
without disclosing any reason or without going into the merits of the
case. Therefore, it required reconsideration of submissions of the
parties. As an interim measure, the Division Bench directed that:-
".........In view of these statements at this
stage we pass no injunction restraining the
Respondents from mortgaging or inducing any
tenant in the suit premises. It is however
clarified that the Appellant will be entitled to
press for these reliefs in the pending
Applications by showing that statements are
not correct. Also the Appellant will be at
liberty to adopt appropriate proceedings,
including contempt proceedings against the
st nd
1 and 2 Respondents if it is proved that the
mortgage was created or tenant inducted
th
after 27 May, 1997.
The Appeal stands disposed of
accordingly.”
CS(OS) 1135/1997 4 of 9
CHIEF JUSTICE
S.K.MAHAJAN, J.
SEPTEMBER 15, 1999”
8. The above order was modified instead of the words “after
27.5.1997, the Division Bench directed the substitution of the words
“during period the injunction order was operating.”
9. The plaintiff further seeks direction that the defendant
should not let out the premises; injunctive relief in that regard is
sought; likewise the plaintiff seeks directions under Order 39 Rule 1
and 2 CPC since the defendant had let out the property for a period of
11 months, and subsequently without permission of the Court.
10. The defendants' stand in its written statement is one of
denial. The defendant No.3 also claims that he is the exclusive
owner of the suit property and had paid for it out of his own funds. It
is also claimed that defendants No.1 and 2 are in exclusive possession
of the suit property. As far as payment of the sum of Rs.86,000/- as
earnest money is concerned, the defendant states that the same was
deposited in cash and receipt was issued. As far as balance 75% is
concerned, the defendants No.1 & 2 admit that the same was given by
defendant No.3 for making the balance payment to DDA.
11. The contention of the learned counsel is that defendant
No.3, after discussing thoroughly with the other defendants and the
CS(OS) 1135/1997 5 of 9
plaintiff, proposed that defendants No.1 and 2 should leave the family
house and reside separately since there was a shortage of space.
Defendants No.4 and 5 did not want to reside together with defendant
No.1. It is claimed that defendant No.3 stated that he would buy a
house and the total construction cost would be borne by the Hindu
Undivided Family and the same would be divided among the HUF. It
is, therefore, stated that the amount of Rs.2,58,011/- paid by
defendant No.1 for the balance consideration and for raising
construction was, therefore, adjusted from his share in the HUF and
the joint family properties.
12. It is further submitted that with this arrangement
Defendants No.1 and 2 parted company with the plaintiff and other
members of the HUF. In support of this contention, the said
defendants place reliance on the house tax receipts for the period
1994 onwards till 2004 as also Statement of Accounts and original
copies of the Certificate from the Union Bank of India, evidencing that
the amount paid as house tax was debited from the said defendants'
accounts. The defendants also rely upon Exhibit D-1, a copy of the
Perpetual Lease Deed to contend that the plaintiff was witness to the
document, which stands in the name of defendants No.1 and 2.
13. Learned counsel for the plaintiff and defendants relied
upon the materials. Counsel for defendant also relied upon the
CS(OS) 1135/1997 6 of 9
Exhibit D-14 which is a copy of the challan paid to the Delhi
Development Authority towards conversion charges, to evidence the
payment of conversion charges for converting the property into
freehold in the name of the defendants No.1 and 2. Further, it is
urged that charges were paid from the said defendant's accounts.
Defendants No.1 and 2 have also produced copy of the assessment
orders in respect of the property tax which are on the record and
which have not been denied. Learned counsel for the parties relied
upon the materials as well as the pleadings in support of their
submissions.
14. From the above discussion, it is apparent that the
plaintiff's case is that although the suit property stands in the name of
defendants No.1 and 2, it is, in reality, joint family property. They
have primarily relied upon the deposit of amounts to the DDA and in
that regard, relied upon income tax returns and copies of accounts
said to have been filed with the Income Tax Authority. On the other
hand, defendants allege otherwise and in support, have relied upon
the Statement of Accounts issued by Banks to say that ever since the
first defendant came into possession, property tax and all the charges
including ground rent etc. were exclusively borne by him. The
originals of the documents are on the record. The said defendants
No.1 and 2 relied upon the payment of conversion charges and the
CS(OS) 1135/1997 7 of 9
fact that property stands in their name in the registered lease deed.
The plaintiff was witness to the document of title.
15. At the stage of considering interlocutory applications, the
Court cannot conduct a mini trials. Although the plaintiff's case is
that suit property does not exclusively belong to defendants No.1 and
2 and, in reality, is a joint family property yet the fact that from 1992
onwards and consistently all documents show that the defendants
were in possession; they have produced original documents, as well as
the title of defendants No.1 and 2, which cannot be ignored.
Furthermore, the documents of the plaintiff are not originals. The
documents sought to be relied upon are photocopies of the Statement
of Accounts, have been denied by the defendants. On the other hand,
the defendants' documents at least those pertaining to the Bank,
Municipal Tax Returns and title documents are prima facie credible.
16. At this stage, the Court has to consider the broad
probabilities. Possibly, in the trial the plaintiff might prove his case;
yet the available materials do not show that the plaintiff intended the
property to be a joint family asset. The money for the property was
paid by defendants No.1 and 2; they maintained the property, and
paid taxes. They are in possession, and the title is in their names.
17. On an overall conspectus of this case, the Court is of the
opinion that the plaintiff has not been able to establish a prima facie
CS(OS) 1135/1997 8 of 9
case for the grant of injunction and other reliefs sought in these
applications. In the circumstances, IAs No.4896/1997, 10690/1998,
2111/2000, 1547/2004, 1434/2001 and 4388/2001 are rejected.
CS(OS) 1135/1997
th
List before Joint Registrar on 9 April, 2008, the date
already fixed.
S. RAVINDRA BHAT,J
MARCH 25, 2008
'sn'
CS(OS) 1135/1997 9 of 9