HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 30 Case :- SECOND APPEAL No. - 776 of 2011 Petitioner :- Shiv Prakash An D Another Respondent :- Krishna Kumar Vemra And Another Petitioner Counsel :- V.P. Shukla,Awadhesh Kumar Respondent Counsel :- D.P. Singh Hon'ble Sibghat Ullah Khan,J.
Heard learned counsel for the defendants appellants at the admission stage. Learned counsel for the respondent No.1 who has filed caveat is also present.
Both the appellants are real brothers and sons of respondent No.2, Hori Lal Verma. Plaintiff respondent No.1, Krishna Kumar Verma is real brother of Hori Lal Verma. Krishna Kumar instituted O.S. No.1073 of 2001 against both the appellants and their father Hori Lal who was defendant No.3 in the suit. Civil Judge, Senior Division Kanpur Nagar dismissed the suit of the plaintiff and decreed the counter claim of defendant appellant No.1 Shiv Prakash against plaintiff and defendant No.3, i.e. against his uncle and father and declared him to be co-owner and co-sharer in House No.107/199, Nehru Nagar, Kanpur Nagar. Plaintiff respondent No.1 filed Civil Appeal No.136 of 2009 against the said judgment and decree. A.D.J. Court No.10, Kanpur Nagar through judgment and decree dated 17.05.2011 allowed the appeal, set aside the judgment and decree passed by the trial court and decreed the suit of the plaintiff against defendants No.1 & 2 (present appellants) and directed the defendants to vacate the portion of the house in dispute shown by red colour in the plaint map (part of first floor) within three months and handover the possession of the same to the plaintiff. Rs.1000/- were awarded as damages for use and occupation and Rs.500/- per month as pendente lite/ future damages. Counter claim was also rejected. Defendants No.1 & 2 have filed this second appeal against the judgment and decree passed by the lower appellate court.
The house in dispute was purchased by Smt. Ram Lali, mother of Hori Lal and Krishna Kumar (grand-mother of the appellants). Sri Bal Govind was husband of Smt. Ram Lali, i.e. grand-father of appellants. The case set up by Shiv Prakash, appellant No.1 was that the house had been purchased by Bal Govind benami in the name his wife Ram Lali from Joint Hindu Family Fund hence he (appellant No.1) had birth right in the said house. The case set up in the plaint was that Smt. Ram Lali was sole exclusive owner of half eastern portion of the house in dispute as she had purchased it for Rs.1000/- through registered sale deed dated 22.07.1949; thereafter her name was mutated in the Nagar Mahapalika records and thereafter the western half portion of the house was numbered as 107/199-A. Smt. Ram Lali died on 01.08.1978 and after her death her husband Sri Bal Govind and both of her sons, i.e. Hori Lal and Krishna Kumar became co-owners of the house in dispute and after the death of Bal Govind both the sons i.e. Hori Lal and Krishna Kumar became co-owners and their names were mutated in the Nagar Mahapalika records. It was further pleaded in the plaint that oral partition took place between Hori Lal and Krishna Kumar on 02.06.2001 regarding which a memorandum was prepared on 01.09.2001 according to which ground floor came in the share of Hori Lal, first floor fell in the share of Krishna Kumar plaintiff and that he gave a part of the first floor as licence to defendant No.1, Shiv Prakash. (Third and fourth floors were divided in equal specified shares between Hori Lal and Krishna Kumar) Defendant appellant No.2, Vijay Singh filed written statement stating that his father and uncle were in collusion. He supported the case of defendant No.1 and stated that his father and uncle wanted to illegally dispossess defendant No.1. However he accepted the case taken in the plaint that defendant No.1 had gone to Haidergarh, District Barabanki, the house of his wife. He further stated that Shiv Prakash had executed power of attorney in his (defendant appellant No.2) favour.
Written statement on behalf of Shiv Prakash, defendant No.1 was filed by Vijay Singh, defendant No.2 as his attorney, copy of which is Annexure-II to the affidavit filed in support of stay application in this second appeal.
The case of the plaintiff was that defendant No.1 was the licencee and he had shifted to his wife's house at Haidergarh, District Barabanki and had unauthorisedly permitted Vijay Singh to occupy the same.
Counter claim was also filed by Vijay Singh on behalf of his brother Shiv Prakash seeking declaration that defendant appellant No.1 was co-owner of the house in dispute.
Defendant No.3, Hori Lal father of the appellants filed written statement supporting the case of his brother plaintiff.
The trial court had recorded the finding that in the sale deed of 22.07.1949, it was not mentioned that Smt. Ram Lali had purchased the property from her stri dhan hence it would be presumed that it was purchased by Bal Govind in the name of Smt. Ram Lali.
The executant of the sale deed Bhagwati Prasad mentioned in the sale deed that he had taken Rs.1000/- as loan from Smt. Ram Lali and he had no means to repay the loan hence he was selling the house in dispute to Smt. Ram Lali. Learned counsel for the appellants has categorically stated that in the year 1949 none of the appellants had born. The lower appellate court after thorough examination of oral statement of Vijay Singh, defendant No.2 held that he had admitted that house tax was paid in the name of Smt. Ram Lali till her death. Lower appellate court held that in his oral examination Vijay Singh failed to prove that the deed of 22.07.1949 was a benami transaction. Defendant No.1 never appeared in the court accordingly adverse inference was drawn against him in view of Supreme Court authority reported in "Vidhyadhar v. Mankikrao" AIR 1999 SC 1441.
There is absolutely no error in the findings recorded by the lower appellate court. Appellants were not even born when property was purchased by their grand-mother Smt. Ram Lali. They could not prove that Smt. Ram Lali was not having any independent income or Stridhan.
For more than 50 years appellants never asserted that the sale deed of 1949 was benami. A sale deed in the name of a woman cannot be declared as benami on the mere presumption that women in India have no money of their own. A sale deed can be declared to be benami only on the basis of evidence and in this regard absolutely no evidence was adduced by the appellants. They only banked upon the presumption that their grand-mother in the year 1949 would not be having any money of her own.
It is very strange that Vijay Singh, defendant appellant No.2 asserted that as the sale deed in the name of his grand-mother was benami, hence his brother Shiv Prakash defendant appellant No.1 had birth right in the property, however Sri Vijay Singh did not say that he also had birth right in the house.
Petitioners are illustrious sons who are virtually abusing their father and asserting that he is in collusion with his brother (their uncle) and is acting against interest of his sons i.e. the appellants. Absolutely no reason has been given for the same. In normal course no father ever supports his brother against his own sons. The case set up by the appellants is not only untenable but unethical and an act of dishonesty also. They have attempted to uproot their own family roots. Sri Hori Lal deserves all praise for taking an upright stand even against his sons. Persons like appellants do not deserve any share in the family property. However, the law is otherwise hence after the death of their father they would be inheriting share of their father in the house left behind by their grand-mother.
For the aforesaid reasons the appeal is dismissed under Order XLI Rule 11, C.P.C.
Order Date :- 19.9.2011 NLY