Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.587/2010
nd
% 22 February, 2012
SANTOKH SINGH ..... Appellant
Through: Mr. Rajat Aneja with
Mr. Vaibhav Jairaj, Advs.
VERSUS
NARENDER SINGH ..... Respondent
Through: Ms. Kusum Lata Sharma, Adv.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal (RFA)
filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the
impugned judgment of the Trial Court dated 18.5.2010 dismissing the suit
filed by the appellant/plaintiff/father against the respondent/defendant/son.
The suit was a suit for possession with respect to one room and one shop in
the property No. C-129, Udey Vihar, Veer Bazar, Chander Vihar, Nilothi
Extension, New Delhi.
2. The facts as set out in the plaint by the
appellant/plaintiff/father was that the appellant/plaintiff/father was the
RFA No.587/2010 Page 1 of 11
owner of the suit property as the same was purchased out of his own funds
and construction was also raised on the same out of his own funds. It was
pleaded that the parents i.e. the appellant/father and his wife (mother of the
respondent) were aged parents and they have been ill-treated by the
respondent/defendant/son who has also been guilty of cruel behaviour with
them. It was pleaded that the appellant/plaintiff/father has disowned and
debarred the respondent/defendant/son from the suit property by getting a
notice published in the newspaper.
3. The respondent/defendant/son contested the suit and pleaded
that the suit property was actually purchased by the
appellant/plaintiff/father from the share which the respondent/defendant
had in the property no. WZ-443-E, M.S.Block, Hari Nagar, New Delhi. It
was pleaded that Sh. Bood Singh, father of the appellant/plaintiff owned
the property no.2599, Gali No.4, Main Bazar, Shadipur, New Delhi which
was sold by Sh.Bood Singh in the year 1972-73 and sale proceeds of which
property were divided equally amongst sons with their families i.e. of his
elder son Sh. Baldev Singh and his younger son-Sh.Santokh
Singh/plaintiff. On receiving the share from his father-Sh.Bood Singh,
the appellant/plaintiff purchased the property no.WZ-443/E, M.C.Block,
Hari Nagar, New Delhi admeasuring 150 sq. yds. in his own name. It was
RFA No.587/2010 Page 2 of 11
pleaded that the sons of the appellant/plaintiff were minors at that time. It
was further pleaded that the appellant/plaintiff had sold 50 sq. yds. of his
Hari Nagar’s property to pay his debts and had sold remaining 100 sq. yds.,
and out of the sale proceeds of 100 sq. yds., the appellant/plaintiff was said
to have given an amount of ` 2,25,000/- to each of his other two sons
namely Sh.Gopal Singh and Sh. Kuldeep Singh towards their share in the
said property, however, no share was given to the respondent/defendant as
he was unmarried and youngest at that point of time. The
respondent/defendant thus pleaded right in the suit property which was
purchased from ancestral funds i.e. funds of Sh. Bood Singh.
4. After the pleadings were completed, the Trial Court framed
the following issues:-
“1. Whether the plaintiff has no locus standi to file the present suit
as alleged in the preliminary objection 4 of the written
statement? OPD
2. Whether the plaint is liable to be rejected u/O.7 Rule 11 CPC as
alleged in the preliminary objection 7 of the written statement?
OPD
3. Whether the suit is bad for non joinder of necessary parties as
alleged in the preliminary objection 8 of the written statement?
OPD
4. Whether the plaintiff is entitled to vacant and peaceful
possession of the suit property form the defendant as prayed for?
OPP
5. Relief.”
RFA No.587/2010 Page 3 of 11
5. The main issue is whether the suit property is an HUF
property in the hands of the appellant/plaintiff or it is his individual
property/self-acquired property in his hands.
6. Learned counsel for appellant/plaintiff has relied upon the
judgments of the Supreme Court reported as Commissioner of Wealth Tax,
Kanpur etc. v. Chander Sen AIR 1986 SC 1753 and Yudhishter v. Ashok
Kumar AIR 1987 SC 558 to argue that even if a male Hindu receives
property from his paternal ancestors, unless there exists an HUF, the
property which is inherited by a male Hindu from his paternal ancestors,
will be individual property/self-acquired property in his hands, of course
the inheritance should be after coming into existence of the Hindu
Succession Act, 1956. It is argued that since admittedly in the present case
the appellant/plaintiff received from his father-Sh.Bood Singh monies in
the year 1972-73, and therefore, when the appellant/plaintiff received
monies from his father-Sh.Bood Singh, the monies in his hands were self-
acquired property/individual property to which his children, including
respondent/defendant had no right. It is argued that the fact that the
appellant/plaintiff gave shares to other sons, was only in furtherance of the
appellant’s/plaintiff’s moral obligations, and moral obligations cannot be
equated with legal obligations. It is therefore pleaded that the
RFA No.587/2010 Page 4 of 11
appellant/plaintiff being the owner of the property, the suit for possession
was wrongly dismissed by the Trial Court simply because the
appellant/plaintiff had not filed any document of title with respect to the
suit property inasmuch as the suit property was admitted to have been
purchased in the name of the appellant/plaintiff.
Learned counsel for the respondent/defendant argued in reply
that the respondent/defendant was in fact a co-owner along with the
appellant/plaintiff in the suit property inasmuch as the suit property was
purchased from ancestral funds and also because the respondent/defendant
had spent moneys for construction in the suit plot.
7. Before I proceed to decide the merits of the case, it is
necessary to refer to the relevant findings and conclusions of the Trial
Court, and which read as under:
“It was for the plaintiff to prove that he is exclusive owner of the
suit property and he is competent to maintain the present suit
against the defendant. The plaintiff has not filed any document on
record regarding his title in the suit property. In the cross
examination he has deposed that suit property was purchased in the
year 1999. He further deposed that he is handicapped and doing no
work for the last 11 years which means that in the year 1999 he was
not doing any work. The only source of income to him was
` 1000/- received by him as Govt. pension for old persons and little
savings of ` 20,000/- to ` 30,000/-. Thus, it is evident that the
plaintiff was not having sound financial capacity in the year 1999
in order to purchase the flat.
It is also admitted by the plaintiff in his cross examination
that he purchased the property No. WZ-443/E, M.S.Block, Hari
RFA No.587/2010 Page 5 of 11
Nagar, Delhi built upon 150 sq. yards after receipt of his share from
the sale proceeds of Shadipur property from his father Sh. Bood
Singh. He also admits that after selling the aforesaid Hari Nagar
property he paid a sum of ` 2,25,000/- each to his other two sons
Gopal Singh and Sh. Kuldeep Singh towards their share in the suit
property. He has also admitted that he has executed agreements
dt.10.12.98 with Gopal Singh and Sh.Kuldeep Singh in this regard.
He further admits that after receipt of ` 2,25,000/- each his sons
Gopal Singh and Sh. Kuldeep Singh shifted to their separate
accommodation and the defendant continued to live with him and
his wife in the suit property. The plaintiff has admitted that he has
`
paid 2,25,000/- each to his sons Gopal Singh and Sh.Kuldeep
Singh in lieu of their respective shares in the property owned by
him. It is therefore evident that sons of the plaintiff including the
defendant had a share in the property at Hari Nagar which was sold
by the plaintiff in the year 1995-96. It is also established that the
plaintiff paid ` 2,25,000/- each to his other two sons Gopal Singh
and Sh. Kuldeep Singh in lieu of their share in the suit property but
did not pay anything to the defendant and the defendant continued
to stay with the plaintiff.
The plaintiff has also admitted in his cross examination that
after pay ` 2,25,000/- each to Sh. Kuldeep Singh and Sh.Gopal
Sing, he purchased the suit property from the remaining amount of
sale proceeds of Hari Nagar property.
The plaintiff has also failed to prove that he disowned the
defendant. He has not filed any copy of notice got published in the
newspaper “Punjab Kesri” dated 7.9.2009 vide which he alleges to
have disowned and disherited the defendant. No reason has been
put forward for not filing the copy of the said documents.
On the other hand, the defendant has been able to prove his
contentions in his evidence. Noting contradictory has come out in
his cross examination. DW-1 and DW-3 have also fully supported
the case of the defendant and have also not stated anything
contradictory in their cross examination.
The plaintiff has, thus, failed to prove that he is exclusive
owner of the suit property and has disowned his con i.e. the
defendant. He has also failed to prove that the defendant has no
right or interest in the suit property.
I ,therefore, hold that the defendant is entitled to half of the
share in the suit property. He is in occupation of the portion shown
in colour red in the site plan Ex.PW1/7 in his own right and as
owner thereof. The plaintiff has no locus standi to file the present
suit against the defendant.”
RFA No.587/2010 Page 6 of 11
8. In my opinion, the Trial Court has fallen into an error in
holding that the suit must fail because the appellant/plaintiff failed to file
title deeds of his property. Learned counsel for the appellant/plaintiff has
pointed out that the pleadings, in fact, show that the respondent/defendant
admits that the suit property was in the name of the
appellant/plaintiff/father, and therefore, the Trial Court could not have
arrived at the finding that merely because the title deeds were not filed, the
suit for possession should be dismissed. In this case, I take on record the
argument as urged on behalf of the appellant/plaintiff that the original title
deeds of the property were taken away by the respondent/defendant, and
who was having a common mess with the appellant/plaintiff at one point of
time, and taking advantage of this fact, that he has the original title deeds,
this objection that original title deeds of the suit property were not filed,
was taken, and which amounts to a person taking advantage of his own
wrong. It may also be relevant to note that the old age of the parents of the
respondent/defendant, i.e. of the appellant/plaintiff/father and the mother
would be another reason as to why, along with the fact of a common mess,
that the respondent/defendant would have been able to take possession of
the title deeds of the suit property. In any case, the said aspect of filing the
title deeds is immaterial in the facts of the present case, inasmuch as the
RFA No.587/2010 Page 7 of 11
respondent/defendant claims ownership of the suit property on the ground
that the same is an ancestral property, i.e. it is purchased by the
appellant/plaintiff, but from the ancestral funds.
9. In view of the judgments of the Supreme Court in the cases of
Chander Sen (supra) and Yudhishter (supra) , it is no longer res integra
that even if the appellant/plaintiff did receive funds from his father, the
same were actually individual/self-acquired in the hands of the
appellant/plaintiff inasmuch as these funds were received in the year 1972-
73 i.e. after passing of the Hindu Succession Act, 1956. There is absolutely
no evidence on record that there ever existed any Hindu Undivided Family
as is legally known between the parties, and therefore, even if the
appellant/plaintiff receives ancestral funds, since the same were received
after passing of the Hindu Succession Act, 1956, the respondent/defendant
can have no right, title and interest in the funds which the
appellant/plaintiff received from his father, or the suit property purchased
from such funds.
10. Learned counsel for the respondent/defendant also argued that
the respondent/defendant spent funds for construction of the property,
however, considering that the respondent/defendant was just about 21 years
of age (and as per his best case he had been working only for three years
RFA No.587/2010 Page 8 of 11
prior to purchase of the suit property) and having no proved/established
source of income when the construction took place, I would not believe the
oral testimony of the respondent/defendant that he has spent funds on the
construction of the property. Also, the appellant-father had funds from the
sale of the Hari Nagar property, and which property was sold for ` 20.50
lacs. The documents being certain receipts exhibited as Ex.DW1/1 to
Ex.DW1/22, contain some receipts in the name of the
respondent/defendant, however, most of the receipts are only small slips of
paper containing no name . I have already noted above that at one point of
time both the parties were living together and having a common mess and
therefore, the respondent/defendant seems to have not only taken away the
title deeds of the property, but also, along with the title deeds, these
receipts also would have been taken by the respondent/defendant and
which are now filed as Ex.DW1/1 to Ex.DW1/22. What is really important
to note is that the respondent/defendant surely could not have at the age of
21 years earned so much so as to spend money for constructing an
immovable property. Of course, living with the appellant/plaintiff he
would have spent time and energy towards construction including going to
the market for purchase of the materials, and possibly for that reason some
receipts do contain his name, however, that does not necessarily mean that
RFA No.587/2010 Page 9 of 11
the respondent/defendant had funds with him so as to spend for
construction of the suit property.
11. I may note that during the course of hearing, considering that
the present dispute is a family matter I endeavoured my best to see that a
settlement is arrived at. Various proposals were very fairly given on behalf
of the appellant/plaintiff/father, without prejudice to his rights in
furtherance of his moral obligation, for giving a portion of the property or
an amount to the respondent/defendant/son, however, the
respondent/defendant/son insisted that he will not take anything else less
than at least 35% of the suit property besides also the only commercial
portion/shop in the property (which would be approximately around 45% to
50% value of the property). Accordingly, no compromise could be arrived
at.
12. In view of the above, appeal is accepted. Impugned judgment
and decree dated 18.5.2010 is set aside. Suit of the
appellant/plaintiff/father is decreed as against the respondent/defendant/son
for one room and one shop which is in possession of the
respondent/defendant/son in the suit property bearing no. C-129, Udey
Vihar, Veer Bazar, Chander Vihar, Nilothi Extension, New Delhi shown in
RFA No.587/2010 Page 10 of 11
red in the site plan filed with the plaint, Ex.PW1/7. Parties are left to bear
their own costs. Decree sheet be prepared. Trial Court record be sent back.
VALMIKI J. MEHTA, J
FEBRUARY 22, 2012
ak
RFA No.587/2010 Page 11 of 11
+ RFA No.587/2010
nd
% 22 February, 2012
SANTOKH SINGH ..... Appellant
Through: Mr. Rajat Aneja with
Mr. Vaibhav Jairaj, Advs.
VERSUS
NARENDER SINGH ..... Respondent
Through: Ms. Kusum Lata Sharma, Adv.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular First Appeal (RFA)
filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the
impugned judgment of the Trial Court dated 18.5.2010 dismissing the suit
filed by the appellant/plaintiff/father against the respondent/defendant/son.
The suit was a suit for possession with respect to one room and one shop in
the property No. C-129, Udey Vihar, Veer Bazar, Chander Vihar, Nilothi
Extension, New Delhi.
2. The facts as set out in the plaint by the
appellant/plaintiff/father was that the appellant/plaintiff/father was the
RFA No.587/2010 Page 1 of 11
owner of the suit property as the same was purchased out of his own funds
and construction was also raised on the same out of his own funds. It was
pleaded that the parents i.e. the appellant/father and his wife (mother of the
respondent) were aged parents and they have been ill-treated by the
respondent/defendant/son who has also been guilty of cruel behaviour with
them. It was pleaded that the appellant/plaintiff/father has disowned and
debarred the respondent/defendant/son from the suit property by getting a
notice published in the newspaper.
3. The respondent/defendant/son contested the suit and pleaded
that the suit property was actually purchased by the
appellant/plaintiff/father from the share which the respondent/defendant
had in the property no. WZ-443-E, M.S.Block, Hari Nagar, New Delhi. It
was pleaded that Sh. Bood Singh, father of the appellant/plaintiff owned
the property no.2599, Gali No.4, Main Bazar, Shadipur, New Delhi which
was sold by Sh.Bood Singh in the year 1972-73 and sale proceeds of which
property were divided equally amongst sons with their families i.e. of his
elder son Sh. Baldev Singh and his younger son-Sh.Santokh
Singh/plaintiff. On receiving the share from his father-Sh.Bood Singh,
the appellant/plaintiff purchased the property no.WZ-443/E, M.C.Block,
Hari Nagar, New Delhi admeasuring 150 sq. yds. in his own name. It was
RFA No.587/2010 Page 2 of 11
pleaded that the sons of the appellant/plaintiff were minors at that time. It
was further pleaded that the appellant/plaintiff had sold 50 sq. yds. of his
Hari Nagar’s property to pay his debts and had sold remaining 100 sq. yds.,
and out of the sale proceeds of 100 sq. yds., the appellant/plaintiff was said
to have given an amount of ` 2,25,000/- to each of his other two sons
namely Sh.Gopal Singh and Sh. Kuldeep Singh towards their share in the
said property, however, no share was given to the respondent/defendant as
he was unmarried and youngest at that point of time. The
respondent/defendant thus pleaded right in the suit property which was
purchased from ancestral funds i.e. funds of Sh. Bood Singh.
4. After the pleadings were completed, the Trial Court framed
the following issues:-
“1. Whether the plaintiff has no locus standi to file the present suit
as alleged in the preliminary objection 4 of the written
statement? OPD
2. Whether the plaint is liable to be rejected u/O.7 Rule 11 CPC as
alleged in the preliminary objection 7 of the written statement?
OPD
3. Whether the suit is bad for non joinder of necessary parties as
alleged in the preliminary objection 8 of the written statement?
OPD
4. Whether the plaintiff is entitled to vacant and peaceful
possession of the suit property form the defendant as prayed for?
OPP
5. Relief.”
RFA No.587/2010 Page 3 of 11
5. The main issue is whether the suit property is an HUF
property in the hands of the appellant/plaintiff or it is his individual
property/self-acquired property in his hands.
6. Learned counsel for appellant/plaintiff has relied upon the
judgments of the Supreme Court reported as Commissioner of Wealth Tax,
Kanpur etc. v. Chander Sen AIR 1986 SC 1753 and Yudhishter v. Ashok
Kumar AIR 1987 SC 558 to argue that even if a male Hindu receives
property from his paternal ancestors, unless there exists an HUF, the
property which is inherited by a male Hindu from his paternal ancestors,
will be individual property/self-acquired property in his hands, of course
the inheritance should be after coming into existence of the Hindu
Succession Act, 1956. It is argued that since admittedly in the present case
the appellant/plaintiff received from his father-Sh.Bood Singh monies in
the year 1972-73, and therefore, when the appellant/plaintiff received
monies from his father-Sh.Bood Singh, the monies in his hands were self-
acquired property/individual property to which his children, including
respondent/defendant had no right. It is argued that the fact that the
appellant/plaintiff gave shares to other sons, was only in furtherance of the
appellant’s/plaintiff’s moral obligations, and moral obligations cannot be
equated with legal obligations. It is therefore pleaded that the
RFA No.587/2010 Page 4 of 11
appellant/plaintiff being the owner of the property, the suit for possession
was wrongly dismissed by the Trial Court simply because the
appellant/plaintiff had not filed any document of title with respect to the
suit property inasmuch as the suit property was admitted to have been
purchased in the name of the appellant/plaintiff.
Learned counsel for the respondent/defendant argued in reply
that the respondent/defendant was in fact a co-owner along with the
appellant/plaintiff in the suit property inasmuch as the suit property was
purchased from ancestral funds and also because the respondent/defendant
had spent moneys for construction in the suit plot.
7. Before I proceed to decide the merits of the case, it is
necessary to refer to the relevant findings and conclusions of the Trial
Court, and which read as under:
“It was for the plaintiff to prove that he is exclusive owner of the
suit property and he is competent to maintain the present suit
against the defendant. The plaintiff has not filed any document on
record regarding his title in the suit property. In the cross
examination he has deposed that suit property was purchased in the
year 1999. He further deposed that he is handicapped and doing no
work for the last 11 years which means that in the year 1999 he was
not doing any work. The only source of income to him was
` 1000/- received by him as Govt. pension for old persons and little
savings of ` 20,000/- to ` 30,000/-. Thus, it is evident that the
plaintiff was not having sound financial capacity in the year 1999
in order to purchase the flat.
It is also admitted by the plaintiff in his cross examination
that he purchased the property No. WZ-443/E, M.S.Block, Hari
RFA No.587/2010 Page 5 of 11
Nagar, Delhi built upon 150 sq. yards after receipt of his share from
the sale proceeds of Shadipur property from his father Sh. Bood
Singh. He also admits that after selling the aforesaid Hari Nagar
property he paid a sum of ` 2,25,000/- each to his other two sons
Gopal Singh and Sh. Kuldeep Singh towards their share in the suit
property. He has also admitted that he has executed agreements
dt.10.12.98 with Gopal Singh and Sh.Kuldeep Singh in this regard.
He further admits that after receipt of ` 2,25,000/- each his sons
Gopal Singh and Sh. Kuldeep Singh shifted to their separate
accommodation and the defendant continued to live with him and
his wife in the suit property. The plaintiff has admitted that he has
`
paid 2,25,000/- each to his sons Gopal Singh and Sh.Kuldeep
Singh in lieu of their respective shares in the property owned by
him. It is therefore evident that sons of the plaintiff including the
defendant had a share in the property at Hari Nagar which was sold
by the plaintiff in the year 1995-96. It is also established that the
plaintiff paid ` 2,25,000/- each to his other two sons Gopal Singh
and Sh. Kuldeep Singh in lieu of their share in the suit property but
did not pay anything to the defendant and the defendant continued
to stay with the plaintiff.
The plaintiff has also admitted in his cross examination that
after pay ` 2,25,000/- each to Sh. Kuldeep Singh and Sh.Gopal
Sing, he purchased the suit property from the remaining amount of
sale proceeds of Hari Nagar property.
The plaintiff has also failed to prove that he disowned the
defendant. He has not filed any copy of notice got published in the
newspaper “Punjab Kesri” dated 7.9.2009 vide which he alleges to
have disowned and disherited the defendant. No reason has been
put forward for not filing the copy of the said documents.
On the other hand, the defendant has been able to prove his
contentions in his evidence. Noting contradictory has come out in
his cross examination. DW-1 and DW-3 have also fully supported
the case of the defendant and have also not stated anything
contradictory in their cross examination.
The plaintiff has, thus, failed to prove that he is exclusive
owner of the suit property and has disowned his con i.e. the
defendant. He has also failed to prove that the defendant has no
right or interest in the suit property.
I ,therefore, hold that the defendant is entitled to half of the
share in the suit property. He is in occupation of the portion shown
in colour red in the site plan Ex.PW1/7 in his own right and as
owner thereof. The plaintiff has no locus standi to file the present
suit against the defendant.”
RFA No.587/2010 Page 6 of 11
8. In my opinion, the Trial Court has fallen into an error in
holding that the suit must fail because the appellant/plaintiff failed to file
title deeds of his property. Learned counsel for the appellant/plaintiff has
pointed out that the pleadings, in fact, show that the respondent/defendant
admits that the suit property was in the name of the
appellant/plaintiff/father, and therefore, the Trial Court could not have
arrived at the finding that merely because the title deeds were not filed, the
suit for possession should be dismissed. In this case, I take on record the
argument as urged on behalf of the appellant/plaintiff that the original title
deeds of the property were taken away by the respondent/defendant, and
who was having a common mess with the appellant/plaintiff at one point of
time, and taking advantage of this fact, that he has the original title deeds,
this objection that original title deeds of the suit property were not filed,
was taken, and which amounts to a person taking advantage of his own
wrong. It may also be relevant to note that the old age of the parents of the
respondent/defendant, i.e. of the appellant/plaintiff/father and the mother
would be another reason as to why, along with the fact of a common mess,
that the respondent/defendant would have been able to take possession of
the title deeds of the suit property. In any case, the said aspect of filing the
title deeds is immaterial in the facts of the present case, inasmuch as the
RFA No.587/2010 Page 7 of 11
respondent/defendant claims ownership of the suit property on the ground
that the same is an ancestral property, i.e. it is purchased by the
appellant/plaintiff, but from the ancestral funds.
9. In view of the judgments of the Supreme Court in the cases of
Chander Sen (supra) and Yudhishter (supra) , it is no longer res integra
that even if the appellant/plaintiff did receive funds from his father, the
same were actually individual/self-acquired in the hands of the
appellant/plaintiff inasmuch as these funds were received in the year 1972-
73 i.e. after passing of the Hindu Succession Act, 1956. There is absolutely
no evidence on record that there ever existed any Hindu Undivided Family
as is legally known between the parties, and therefore, even if the
appellant/plaintiff receives ancestral funds, since the same were received
after passing of the Hindu Succession Act, 1956, the respondent/defendant
can have no right, title and interest in the funds which the
appellant/plaintiff received from his father, or the suit property purchased
from such funds.
10. Learned counsel for the respondent/defendant also argued that
the respondent/defendant spent funds for construction of the property,
however, considering that the respondent/defendant was just about 21 years
of age (and as per his best case he had been working only for three years
RFA No.587/2010 Page 8 of 11
prior to purchase of the suit property) and having no proved/established
source of income when the construction took place, I would not believe the
oral testimony of the respondent/defendant that he has spent funds on the
construction of the property. Also, the appellant-father had funds from the
sale of the Hari Nagar property, and which property was sold for ` 20.50
lacs. The documents being certain receipts exhibited as Ex.DW1/1 to
Ex.DW1/22, contain some receipts in the name of the
respondent/defendant, however, most of the receipts are only small slips of
paper containing no name . I have already noted above that at one point of
time both the parties were living together and having a common mess and
therefore, the respondent/defendant seems to have not only taken away the
title deeds of the property, but also, along with the title deeds, these
receipts also would have been taken by the respondent/defendant and
which are now filed as Ex.DW1/1 to Ex.DW1/22. What is really important
to note is that the respondent/defendant surely could not have at the age of
21 years earned so much so as to spend money for constructing an
immovable property. Of course, living with the appellant/plaintiff he
would have spent time and energy towards construction including going to
the market for purchase of the materials, and possibly for that reason some
receipts do contain his name, however, that does not necessarily mean that
RFA No.587/2010 Page 9 of 11
the respondent/defendant had funds with him so as to spend for
construction of the suit property.
11. I may note that during the course of hearing, considering that
the present dispute is a family matter I endeavoured my best to see that a
settlement is arrived at. Various proposals were very fairly given on behalf
of the appellant/plaintiff/father, without prejudice to his rights in
furtherance of his moral obligation, for giving a portion of the property or
an amount to the respondent/defendant/son, however, the
respondent/defendant/son insisted that he will not take anything else less
than at least 35% of the suit property besides also the only commercial
portion/shop in the property (which would be approximately around 45% to
50% value of the property). Accordingly, no compromise could be arrived
at.
12. In view of the above, appeal is accepted. Impugned judgment
and decree dated 18.5.2010 is set aside. Suit of the
appellant/plaintiff/father is decreed as against the respondent/defendant/son
for one room and one shop which is in possession of the
respondent/defendant/son in the suit property bearing no. C-129, Udey
Vihar, Veer Bazar, Chander Vihar, Nilothi Extension, New Delhi shown in
RFA No.587/2010 Page 10 of 11
red in the site plan filed with the plaint, Ex.PW1/7. Parties are left to bear
their own costs. Decree sheet be prepared. Trial Court record be sent back.
VALMIKI J. MEHTA, J
FEBRUARY 22, 2012
ak
RFA No.587/2010 Page 11 of 11