* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 241/1999
RFA No. 242/1999
% Reserved on: 23rd August, 2017
Pronounced on: 5th September, 2017
+ RFA No. 241/1999
NEELAM KAPOOR & ORS. ..... Appellants
Through: Mr. Sanjay Kapoor, appellant no.2 in
person.
versus
BHAG CHAND & ORS. ..... Respondents
Through: Mr. Manoj Sharma, Advocate with
Mr. Kapil Kaushik, Advocate for LRs
of respondent No.1.
Mr. Bhagwan Swarup Shukla, CGSC
for UOI.
Mr. Anuj Aggarwal, Advocate for
respondent No.5.
+ RFA No. 242/1999
NEELAM KAPOOR & ORS. ..... Appellants
Through: Mr. Sanjay Kapoor, appellant no.2 in
person.
versus
BHAG CHAND & ORS. ..... Respondents
Through: Mr. Manoj Sharma, Advocate with
Mr. Kapil Kaushik, Advocate for LRs
of respondent No.1.
RFA Nos. 241/1999 & 242/1999 Page 1 of 30
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
1.(i) These two Regular First Appeals filed under Section 96
of the Code of Civil Procedure, 1908 (CPC) are disposed of by this common judgment. It is noted that the impugned judgment of the trial court dated 16.1.1999 is a common judgment disposing of the two suits. One suit being Suit No. 116/98/82 was filed by Sh. Mohan Lal against his mother Smt. Assi Bai and brother Sh. Bhag Chand. Sh. Mohan Lal is the appellant in this appeal through his legal heirs. The second suit being Suit No. 115/98/89 was filed by Sh. Bhag Chand against Sh. Mohan Lal with his mother Smt. Assi Bai being the proforma defendant no.2 in the suit. The contesting respondent in these appeals is the legal heir of Sh. Bhag Chand. The suit property which is disputed is property no. B-IV/15 Amar Colony, Lajpat Nagar, New Delhi situated on a plot of 100 sq. yards. Since Sh. Mohan Lal, as also Smt. Assi Bai and Sh. Bhag Chand, have expired during the pendency of the litigation, and they are now represented by their legal RFA Nos. 241/1999 & 242/1999 Page 2 of 30 heirs therefore reference to these persons in this judgment will include, wherever the context so requires, either to the original parties or reference to their legal heirs.
(ii) Both the appeals are filed by the legal heirs of Sh. Mohan Lal, inasmuch as, by the impugned judgment of the trial court dated 16.1.1999, the suit filed by Sh. Bhag Chand was decreed and the suit filed by Sh. Mohan Lal was dismissed. Both the suits were consolidated before the trial court and the suit filed by Sh. Mohan Lal was treated as the lead suit. In the suit filed by Sh. Mohan Lal, he sought relief of possession of portion of the suit property which was in possession of Sh. Bhag Chand. Sh. Mohan Lal claimed that he was the owner of the entire property, inasmuch as, it was he who had paid the entire consideration of Rs.1500/- to the Ministry of Rehabilitation which had executed the lease deed dated 21.11.1967 in favour of Sh. Mohan Lal and Smt. Assi Bai in the ratio of 3/4 th to Smt. Assi Bai and 1/4th to Sh. Mohan Lal. Sh. Bhag Chand filed his suit seeking partition of the suit property by pleading that the mother Smt. Assi Bai was the owner of 3/4th share in the suit property and which 3/4th share RFA Nos. 241/1999 & 242/1999 Page 3 of 30 the mother had gifted in his favour (i.e Sh. Bhag Chand) by means of a registered Gift Deed dated 19.2.1982.
2. The facts of the two suits, shorn of those details which though pleaded but are not relevant for the disposal of these appeals, are that Sh. Mohal Lal filed his suit for possession of the portion of the suit property which was with Sh. Bhag Chand by pleading that parties were originally resident of West Pakistan. It was pleaded that the husband of Smt. Assi Bai and father of Sh. Mohan Lal and Sh. Bhag Chand had properties in Pakistan and in lieu of such properties a claim of Rs.2750/- was passed in favour of the family. Out of this amount of Rs.2750/- a sum of Rs.560/- had been adjusted for the consideration payable for the suit property to the Ministry of Rehabilitation under the lease deed dated 21.11.1967. It was pleaded by Sh. Mohan Lal that in the family only he was educated and in fact he had got a job with the Government of India because the Personal Assistant of Sh. Jawahar Lal Nehru, namely, Sh. M.O. Mathai took pains to ensure that Sh. Mohan Lal got education. It is also pleaded by Sh. Mohan Lal that by Sh. M.O. Mathai managed to get Sh. Mohan Lal‟s appointment as a clerk in the P.M Secretariat. Sh. Mohan Lal pleaded that he was the RFA Nos. 241/1999 & 242/1999 Page 4 of 30 only earning member in the family because his mother Smt. Assi Bai and his brother Sh. Bhag Chand were both illiterate and had no job, and therefore, only the monies of Sh. Mohan Lal were used for payment of consideration towards allotment of the suit property as also construction which was subsequently made in part of the suit property. Sh. Mohan Lal hence claimed that he was the sole owner of the suit property and he was therefore entitled to possession of part of the suit property which was in possession of Sh. Bhag Chand and Smt. Assi Bai.
3. The case pleaded by Sh. Bhag Chand in his suit for partition is that his mother Smt. Assi Bai was 3/4th owner of the suit property as stated in the lease deed dated 21.11.1967 executed by the Ministry of Rehabilitation and the 3/4th ownership of Smt. Assi Bai was gifted by her/Smt. Assi Bai to him/Sh. Bhag Chand in terms of the registered Gift Deed dated 19.2.1982. Sh. Bhag Chand therefore claimed 3/4th share in the suit property by partitioning of the same. RFA Nos. 241/1999 & 242/1999 Page 5 of 30
4. After pleadings were completed in the respective suits of Sh. Mohan Lal and Sh. Bhag Chand, issues were framed and these issues read as under:-
1. Issues in the suit of Sh. Mohan Lal (Suit No. 116/98/82) "1. Whether the plaintiff is owner of the property in suit?
O.P.P.
2. Whether the plaintiff is entitled to possession of suit property which is in possession of defendant No.2? O.P.P.
3. Whether the plaintiff has paid the cost of the suit property?
O.P.P.
4. Whether the plaintiff constructed the building on the suit plot from his own fund? O.P.P.
5. Whether the defendant No.1 has no right to gift 2/3 share of suit property to deft. No.2? OPD.
6. Whether the defendant No.1 purchased the suit property from his own funds? O.P.D.
7. Whether suit of the plaintiff is malafide? O.P.D.
8. Whether the suit is within time and properly valued for the purpose of court fee and jurisdiction? O.P.D.
9. Whether the plaintiff is entitled to the relief prayed for?
O.P.D.
10. Relief."
2. Issues in the suit of Sh. Bhag Chand (Suit No. 115/98/89)
1. Whether plot No.B-15 Amar Colony Lajpat Nagar New Delhi was allotted to the defendant No.2 (Smt. Asi Bai now deceased) by the L&DO Department, in lieu of the compensation payable to the defendants and the plaintiff for property left in Pakistan as claimed?
2. Whether the defendant No.1 is a benami of defendant No.2?
3. Whether the defendant No.2 raised construction on the suit property?
4. Whether plaintiff is stopped by his own conduct acquiescence and waiving his ownership rights in the suit property?
5. Whether defendant No.1 has become owner of the suit property by virtue of adverse possession and prescription of time?RFA Nos. 241/1999 & 242/1999 Page 6 of 30
6. Whether defendant No.1 also paid the double storey rent to the Chief Settlement Commissioner which was deducted from the compensation claim from 1954 to 1959?
7. Whether the property cannot be partitioned as per lease and conveyance deed as alleged in the preliminary objection?
8. Relief."
5. Trial court has held that Sh. Mohan Lal could not prove that it was only he who had paid the entire consideration for the suit property to the Ministry of Rehabilitation. Trial court held that Sh. Mohan Lal had failed to prove payment of consideration because Sh. Mohan Lal only led oral evidence of payment of consideration and there was no documentary proof that Sh. Mohan Lal had paid the entire consideration. Trial court held that the receipts of payments made to the Ministry of Rehabilitation as consideration for execution of the lease deed show that these receipts Ex.PW3/A to Ex.PW3/D where in the name of the mother Smt. Assi Bai. Trial court also held that the lease deed dated 21.11.1967 executed by the Ministry of Rehabilitation was respectively in favour of Smt. Assi Bai and Sh. Mohan Lal in the ratio of ownership of 3/4:1/4, and this ownership ratio has never been challenged by Sh. Mohan Lal till filing of the suit by Sh. Mohan Lal in the year 1982 and therefore, the ownership of the suit property of Smt. Assi Bai and Sh. Mohan Lal in the ratio of 3/4: RFA Nos. 241/1999 & 242/1999 Page 7 of 30 1/4 has to be taken as final. In fact, in the suit itself also filed by Sh. Mohan Lal there was no challenge for seeking cancellation of the lease deed or a correction of the same to show that ownership in the suit property was exclusively to be of Sh. Mohan Lal. Sh. Mohan Lal pleaded complete ownership on the ground that the name of the mother to the extent of 3/4th ownership was shown as benami but it was Sh. Mohan Lal who was the exclusive owner of the suit property as he had paid the complete consideration but this stand of Sh. Mohan Lal has been rejected by the trial court. Trial court has also held that Sh. Bhag Chand and Smt. Assi Bai had deposed to earning money inasmuch as Smt. Assi Bai working in households and Sh. Bhag Chand carrying on small retail business of selling of eggs and bread etc.
6. The relevant issues as regards whether Sh. Mohan Lal was the exclusive owner and Smt. Assi Bai was only a benami owner of the 3/4th share as shown by her name in the lease deed dated 21.11.1967, were held in favour of the Sh. Bhag Chand and against Sh. Mohan Lal, in terms of the following discussion and reasoning contained in the impugned judgment by the trial court:- RFA Nos. 241/1999 & 242/1999 Page 8 of 30
"12. The basic facts in this case are undisputed. It is not disputed that when plaintiff migrated to India he was child. It is not disputed that his mother and his another brother had also migrated to India. It is also undisputed that Settlement Commissioner had assessed the claim in the name of the defendant No.1 Smt. Assi Bai and at the time of assessment of the claim the plaintiff and defendant No.2 both were minors. The disputed facts started from the plaint when plaintiff got the employment. The plaintiff had not stated his year of employment anywhere. However he has stated that he joined the P.M.Secretariat at the age of 19 years what would mean that he joined the service some time in 1957-58. He could have given the date of joining of his services but he has nowhere given it. It is no doubt that luck had favoured the plaintiff Mohan Lal and he got employment due to the fact that he was picked up as a child by M.O.Mathai, but no doubt that plaintiff‟s family was also living with the plaintiff after he had completed his matric, and he was not living separately from the family. It has also come in evidence that his mother used to work as domestic servant to maintain herself and family, although she was relieved of the burden of maintaining plaintiff Mohan Lal as child but she continued to be lawful guardian of Mohan Lal plaintiff and plaintiff was also considering his mother so. All were living amicably. Only because Mohan Lal become educated and his mother and brother remained uneducated the plaintiff Mohan Lal did not get any special rights over the compensation which was awardable to the mother of the plaintiff being legal guardian. Claim of the plaintiff that a sum of Rs. 362.94 paise was adjusted by Ministry of Rehabilitation from his compensation is propostries. How could he have a special right over the compensation debarring his other brother and sisters, only because he was employed in P.M.Secretariat. There is no document placed on record by the plaintiff Mohan Lal showing that he was held entitled to any compensation. The document showed that only his mother defendant No.1 was held entitled to compensation. The plaintiff was living in the property in dispute with his mother and defendant No.2. Whatever the income family was having, the family was being run by the plaintiff‟s mother. The payment to the Rehabilitation office for the purchase of the plot was made in the name of Assi Bai. Who contributed to this payment and how much, is a matter of dispute. While Assi Bai claimed that she had made the payment, the plaintiff stated that he had made the payment. The allotment of the plot was done in 1955. Lease deed was executed in 1967 after the payment had been made. The plaintiff got his name entered in the lease deed to 1/4th share. The name of the defendant No.2 was not entered although in 1967 the defendant No.2 had also attained the majority. If the plaintiff had a right over the property allotted against the compensation of property left in Pakistan the defendant No.2 had also a right, but it seems that plaintiff in lieu of the contribution made by him to the family fund got his name specifically entered in the lease deed as sharer to 1/4th part and RFA Nos. 241/1999 & 242/1999 Page 9 of 30 mother/defendant No.1 was entered as sharer as 3/4th part. This was done with the specific knowledge of the plaintiff and with the efforts of the plaintiff who was writing letters and getting D.O. written to the Rehabilitation department because he was in P.M‟s Secretariat. The plaintiff after 25 years of the allotment and after almost 15 years of the execution of the lease deed has come to the court asserting that he was absolute owner of the property and wants a declaration from the court to that effect Cause of action if any, arose in Nov. 1967 when the lease deed was executed and the plaintiff is one of the lessee who has signed. If he had any doubt in his mind about his share of ownership, he should have approached the court thereafter or atleast within a period of limitation. Limitation for getting of declaration is three years from the cause of action. The cause of action does not start when the quarrel takes place between the family or when the mother sought to exercise her rights. The cause of action started when the lease deed was executed. The plaintiff claims that his mother had no right over the ancestral property is absolutely false and untenable. Section 14 of the Hindu Succession Act reads as under:-
"14(1)Any property possessed by a female Hindu whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
(2) Nothing contained in sub-section(1) shall apply to any property acquired by way of gift or under a Will or any instrument or under a decree or order or a civil court or under an award where the terms of the gift will or other instrument or the decree, order or award prescribed a restricted estate in such property."
Thus the claim of the plaintiff that his widowed mother had no right to claim compensation or to own property is contrary to law.
13. It is immaterial, after such a long time, to find out as to who gave how much money to Assi Bai for making payment of the plot. What was the nature of this money given to Assi Bai because of her being mother or was it given to her as a gift or was it given to her as a contribution as a family fund is not relevant now. What is relevant is that the payment was made in the name of Assi Bai by Assi Bai to the Settlement Commissioner for the plot. The plaintiff has no right over 3/4th share which was held by Assi Bai as per lease deed. By payment of house tax or electricity bill nobody becomes owner of the property. Ownership is conferred only by a title deed.
14. The plaintiff has taken a stand that property was purchased by him benami in the name of his mother Assi Bai. This stand is belied from the fact that the property was not purchased. In fact the property was allotted to Assi Bai because she was refugee and it was allotted in lieu of another property at double storey quarters Lajpat Nagar and Assi Bai had to surrender that double storey house at Lajpat Nagar, after allotment of this RFA Nos. 241/1999 & 242/1999 Page 10 of 30 property. Cost already deducted in respect of the house of double storey Lajpat Nagar New Delhi was adjusted against the cost of this plot. The plaintiff has heavily relied upon the book of Mr. M.O.Mathai wherein at one place it is stated that help was extended to the plaintiff by Sh. M.O.Mathai and Sh. Nehru to build a small house on a tiny plot allotted by the Government to him as a refugee. The documents show that 100 sq. yards plot was allotted to Assi Bai defendant no.1. When the lease deed was executed it was executed for 25 sq. yards for plaintiff and 75 sq. yards was for the defendant No.1. As Sh. Nehru and Sh. Mathai had not become owner of the house by helping the plaintiff, similarly the plaintiff also cannot become the owner because he helped his mother and brother. If plaintiff is held benami owner of the property then he himself become benami of Mr. M.O.Mathai and Sh. Nehru (Pandit Jawahar Lal Nehru). The written arguments filed by the plaintiff make it absolutely clear that the moment the plaintiff was married, her mother was compelled to wash utensils at the other house in order to earn her livelihood.
15. I, therefore, come to the conclusion that Mohan Lal, plaintiff was not the owner of the property in question (3/4th share) of property No.B- IV/15, Amar Colony, New Delhi. His ownership was restricted only to 25 sq. yards of area in this plot. It was defendant no.1 who purchased the property and she was owner of 75 sq. yards of the area." (emphasis added)
7. As regards the issue as to whether Sh. Mohan Lal constructed the suit property out of his own funds and if he had done so then what was the effect thereof was the subject matter of issue no.4 in the suit filed by Sh. Bhag Chand, and this issue was held against Sh. Mohan Lal in terms of paras 20 and 21 of the impugned judgment, and which paras read as under:-
"20. The plaintiff was owner of 1/4th share in the property. According to the plaintiffs own plaint, on 1/2 of the property only shabby and sub- standard construction was there. It was so because defendants were poor, while plaintiff was earning handsum amount. P.W.1 has stated only about the supply of building material for one room. He had no knowledge as to who put the roof. P.W 2 has stated that he gave Rs.450/- to the plaintiff as loan but there was no document of loan. He did not inform his department RFA Nos. 241/1999 & 242/1999 Page 11 of 30 about the loan. It is stated that loan was given in Nov, 1958 for construction, while the letter of defendant No. 1 to the settlement Commissioner and to the P.M‟s Secretariat shows that no construction was being undertaken because the lease was not being registered and the plot was having only tin shed. The testimony of P.W 1 and P.W. 2 seems to be given only because of friendship. Testimony of P.W 3 Mohan Lal is self supporting testimony. He did not place on record any proof showing that he had withdrawn amount from the bank for construction of house or he had taken any loan from the bank. Similarly P.W 5 has given oral testimony stating that defendant No. 1 and 2 did not work and remained at home. This testimony contradicts the plaintiff‟s submissions that defendant No. 1 used to do work of domestic helper and obviously defendant No. 2 was able bodied person and was not a child. P.W. 5 Smt. Vidya Wanti has stated that defendant started living separately in the year 1961 and they started washing „bartans‟ in the other houses. This goes to show that both the defendants were working although their income was not any way comparable to the plaintiff‟s income. Plaintiff must have constructed part of the property i.e property which fell in his share but plaintiff own plaint shows that rest of the property was left unconstructed and was in possession of defendant No. 1 and 2. If the plaintiff had put any construction at the property of defendant No. 1 and 2, he did so at his own risks knowing fully well that the property i.e. 75 sq. yard of land belonged to defendant No. 1 and 2 had separated from him in 1961 and defendant No. 1 and 2 despite the plaintiff and his wife being in service and earning handsome, had chosen to earn their livelihood by cleaning the utensils of others. If Mohan Lal made any construction deliberately and intentionally to grab the property of defendant No. 1, he did so at his own risk.
21. Mohan Lal Plaintiff made construction on his part of the property from his own fund but he made no construction worth living on the property of defendant No. 1. It seems he later on extended his construction on the part of the property of defendant No. 1 pushing the defendant No. 1 and 2 to only 50 sq. yards of land instead of 75 sq. yards of land. There is no consequence of this construction. The plaintiff cannot become owner by making construction on other property."
8. As regards the claim of ownership of Sh. Mohan Lal on account of adverse possession and which was the subject matter of issue no.5 in the suit filed by Sh. Bhag Chand, this issue was decided RFA Nos. 241/1999 & 242/1999 Page 12 of 30 by the trial court in terms of paras 25 to 28 of the impugned judgment, and these paras read as under:-
"25. Plaintiff Bhag Chand has claimed a decree for possession with regard to 3/4th share of the property. He has proved the gift deed by which he was gifted 3/4th of the property by Assi Bai. Gift deed was prepared by Assi Bai while living in the suit property with Bhag Chand. She handed over the possession of the suit property to Bhag Chand simultaneously with the execution of the gift deed. Bhag Chand, therefore, became absolute owner of 50% of the property i.e 50 sq. yards of land. She could not hand over the actual physical possession of the rest of the 25 sq. yard of land because that was in occupation of Mohan Lal but in the gift deed she had stated that she had handed over the possession of entire 3/4th share because by that time partition of the property had not taken place and she was owner of total undivided 3/4th share of the property. Since she was mother of both Bhag Chand and Mohan Lal and was living in the property, it can be safely stated that she was in constructive possession of entire share of her property while she was in actual possession of 50 sq. yards. Mohan Lal was enjoying the possession over 50 sq. yards of land because she had not pressed for partition by that time. Possession of Mohan Lal therefore, was only with the permission of Assi Bai. Plaintiff is entitled to decree for possession of 50 sq. yards of land of the back portion which comes to 1/2 of the share and he is also entitled to take value of the land of ½ of the front portion which was in occupation of defendant No. 1 Mohan Lal and after his death in occupation of his legal representative.
26. Paying of house tax, water and electricity charges does not make any one the owner of the property. The condition of the property was such that Mohan Lal was occupying front 1/2 portion of the property with building constructed on it and while Bhag Chand and Assi Bai were in occupation of back 50 sq. yards of the property with only two kotharis on it. If Mohan Lal was paying the house tax he was paying house tax of the house in which he was living in front portion. If he was paying water and electricity charges he was paying because he was consuming the water and electricity ownership goes by title and not by payment of water and electricity. Payment of the electricity and water charges by Mohan Lal is therefore, inconsequential.
27. The stand of Mohan Lal is contrary to his pleadings in suit No. 116/98/82. In this suit he has claimed possession of the portion which was in occupation of Bhag Chand and Assi Bai measuring 50 sq. yards contending that Assi Bai was benami owner. His wife appearing as PW6, has categorically stated that Assi Bai and Bhag Chand separated in 1961. It has also come in evidence that they were living separately from Mohan Lal RFA Nos. 241/1999 & 242/1999 Page 13 of 30 and maintaining themselves separately in 50 sq. yards of land. They had not consented to Mohan Lal becoming owner when Mohan Lal filed the suit for recovery of possession, it was contested by Bhag Chand and Assi Bai both. Assi Bai executed the gift deed in respect of her property in favour of Sh. Bhag Chand asserting her rights over the property. She wrote letter to L&Do department asking them to execute the sale deed so that loan could be taken by her for construction over the property. It was she who was given and held entitled for compensation. The question of her giving away rights over the property in favour of defendant No. 1 never arose nor she did any act waiving her rights over the property. The entire evidence of the Mohan Lal and his witnesses is silent about any single act of Assi Bai and Bhag Chand waiving their rights. Mohan Lal taking benefit of property of Assi Bai and Bhag Chand, instead of being satisfied with his 1/4th share made construction on ½ of the property while Assi Bai and Bhag Chand were compelled to live only in shabby kotharis which were put on the plot initially soon after allotment. Assi Bai in her statement has stated that Mohan Lal had nothing to do with the house. She herself used to pay the amount to Mohan Lal for depositing the same in the department. She herself used to work and Bhag Chand used to work. I, therefore, come to the conclusion that there was no such conduct of Assi Bai and Bhag Chand waiving the rights of ownership in the suit property.
28. A person can become owner by adverse possession only if he holds possession of the property adverse to the interest of the owner in open and hostile manner. Mohan Lal was son of Assi Bai. The property in question was allotted to Assi Bai in lieu of compensation. Mohan Lal being employed in P.M. Secretariat could exercise his influence in getting the lease deed registered after the allotment. While getting the lease deed registered he get 1/4th share registered in his own name. After that he alongwith Assi Bai started living in the property. He constructed house over 50 sq. yards of land instead of 25 sq. yards for himself and his family i.e. his wife, but not for his mother and brother. His mother and brother lived separately in rest of the 50 sq. yards. Mohan Lal had constructed the house on 50 sq. yards with consent and permission of Assi Bai who must have thought that after her death the plot had to go to two brothers half, half. But Mohan Lal ousted them from the 50% part over which he had made construction that does not mean that they had acquiesced the adverse possession of Mohan Lal. There was quarrel between mother and son after the marriage and mother quietly started living separately in rest of 50 sq. yards. If she had not taken steps to dispossess Mohan Lal, it is not because she had permitted Mohan Lal to become owner of 25 sq. yards of land but because she was incapable of going to Court due to illiteracy and poverty and she did not think proper that she should ask Mohan Lal to remove his house from 25 sq. yards. The possession of Mohan Lal was permissive. Adverse possession among relatives cannot be inferred unless specific RFA Nos. 241/1999 & 242/1999 Page 14 of 30 notice is given by one relative to the other that he was not considering him the owner of the premises and was stating himself as owner. Unless it is not done the possession cannot be considered as adverse. Moreover, in this case Bhag Chand and Assi Bai were in actual physical possession of 50 sq. yards of land so question of adverse possession does not arise at all and even about 25 sq. yards his possession was only permissive. Mohan Lal, during the pendency of the suit filed by him, further forcibly occupied rest of the 50 sq. yards and immediately on being dispossessed Bhag Chand filed suit No. 115/98/89, therefore, the possession of Mohan Lal was not in any circumstances adverse possession." (emphasis added)
9.(i) A reading of the aforesaid paras of the impugned judgment of the trial court as regards who was the owner of the suit property, whether on account of payment of consideration or on account of construction being made or on account of adverse possession claimed against Sh. Bhag Chand and Smt. Assi Bai, shows that the trial court has rightly analyzed the facts of the case and evidence led in the case. Trial court has rightly held that part of the consideration for the suit property being a sum of Rs.560/- was admittedly adjusted out of compensation received by the family for the properties left in West Pakistan thus showing that such amount of money as consideration were not out of the earnings of Sh. Mohan Lal. Trial court has rightly held that original allotment of the suit property was in the year 1955 and that age of Sh. Mohan Lal who pleaded to have joined services in the year 1957-58 would be a minor RFA Nos. 241/1999 & 242/1999 Page 15 of 30 at the time of allotment in the year 1955. Also, trial court has rightly found that though Sh. Mohan Lal claimed to have joined services in the P.M. Secretariat at the age of 19 years, but he never gave what was the exact date and year of joining of service. Trial court has rightly held that Smt. Assi Bai had income because she was working as a domestic servant to maintain herself and her family i.e herself, Sh. Mohan Lal and Sh. Bhag Chand and which she continued even after Sh. Mohan Lal started living separately in part of the plot after his marriage. Trial court has also rightly held that once part of the compensation of Rs. 362.94/- was out of compensation received for the properties left at West Pakistan then how could Sh. Mohan Lal have exclusive right on that compensation, inasmuch as, the compensation was of the whole family. Trial court has in fact further observed that the compensation for properties left in West Pakistan was only assessed in the name of Smt. Assi Bai, however, in this regard I may note that this finding would only have the effect that it cannot be argued by Sh. Mohan Lal that he was the sole person entitled to compensation. Trial court has further rightly held that once consideration is paid to the Ministry of Rehabilitation for execution of RFA Nos. 241/1999 & 242/1999 Page 16 of 30 the lease deed in terms of receipts of payment which were not in the name of Sh. Mohan Lal but were in the name of Smt. Assi Bai, then, Smt. Assi Bai has to be the owner of the 3/4th share because Sh. Mohan Lal except leading oral evidence did not prove that it was his monies which went for payment of entire consideration of the suit property to the Ministry of Rehabilitation. Trial court has also rightly held that oral depositions of two witnesses of Sh. Mohan Lal, being PW-4 Sh. A.N. Sahni and PW-5 Smt. Ram Diti Kapoor that Sh. Mohan Lal had constructed the property and Sh. Mohan Lal had paid money for consideration will not help Sh. Mohan Lal. Trial court has also rightly disbelieved the testimony of PW-2 John Kajur that he lent Rs.450/- for construction of the house because PW-2 neither remembered the date of giving of the loan and nor had any documents to show that he had paid the loan of Rs.450/- to Sh. Mohan Lal or how that loan was returned as was the case of PW-2. Trial court has also rightly disbelieved the testimony of the wife of Sh. Mohan Lal, namely, Smt. Vidyawati that she was working with the Delhi Milk Scheme and also doing business of sale of soft drinks because no proof was filed that wife of Sh. Mohan Lal namely Smt. Vidyawati @ RFA Nos. 241/1999 & 242/1999 Page 17 of 30 Neelam had ever worked with Delhi Milk Scheme and also as to how she was allegedly doing business of sale of soft drinks and as conceded to by her in her cross-examination conducted on 24.9.1986. It was admitted by the wife of Sh. Mohan Lal in her cross-examination that she had no proof of her earning from sale of soft drinks and nor she had any proof that she gave monies to her husband Sh. Mohan Lal.
(ii) To the findings and conclusions of the trial court that Sh. Mohan Lal was not the exclusive owner of the suit property and that the suit property was not benami in the name of the mother Smt. Assi Bai to the extent of 3/4th share, but that Smt. Assi Bai was owner of 3/4th share as shown in the lease deed dated 21.11.1967, this Court notes that test of the property being benami is that the benami transaction is shown to have been entered into for a reason/need. Payment of monies in itself will not create benami transaction unless the transaction is so intended to be a benami transaction. In the present case, there was no need for the transaction to be benami transaction to the extent of 3/4th in the name of the mother Smt. Assi Bai, inasmuch as, Sh. Mohan Lal claimed that he paid the monies as consideration for the suit property basically out of his pay earned from RFA Nos. 241/1999 & 242/1999 Page 18 of 30 Government service and thus there was no bar for Sh. Mohan Lal to have got the sale deed executed in his own exclusive name but he did not do so. Therefore even assuming that some monies were paid by Sh. Mohan Lal, he would have treated and agreed that the mother Sh. Assi Bai will be the 3/4th owner on account of the mother‟s position in the family and also the fact that it was the mother who brought him from West Pakistan when he was a minor and took care of him. In any case, once no reason exists because no such reason is pleaded to exist for the transaction to be a benami transaction, the transaction of grant of lease deed to the extent of 3/4th of share in the suit property to Sh. Assi Bai will not become a benami transaction under law. This is all the more so because Sh. Mohan Lal never, till filing of the suit in the year 1982, ever in any manner questioned the execution of the lease deed dated 21.11.1967 giving him only 1/4th share and the mother Smt. Assi Bai 3/4th share. If Sh. Mohan Lal‟s case was that he was the sole owner and not only 1/4th owner then nothing prevented him in the year 1967 itself firstly to get the entire lease deed executed in his name or in any case from the years 1967-1982 and only whereafter the suit was filed by him. Sh. Mohan Lal never filed any RFA Nos. 241/1999 & 242/1999 Page 19 of 30 legal proceedings nor wrote to the Ministry of Rehabilitation to get the lease deed amended/corrected for the suit property to be exclusively shown as being owned by him. In fact, as already stated above, even in the subject suit filed by Sh. Mohan Lal no relief is claimed of cancellation of lease deed dated 21.11.1967 executed by the Ministry of Rehabilitation in favour of Sh. Assi Bai and Sh. Mohan Lal in the ratio of 3/4:1/4, and once this is the factual position, trial court rightly took as final and binding the shares of the parties in the suit property as 3/4th of Smt. Assi Bai and 1/4th of Sh. Mohan Lal. Trial court has also further in this regard rightly held that fifteen years after execution of the lease deed in the year 1967 i.e. by filing of the suit by Sh. Mohan Lal in the year 1982 there cannot be a valid challenge to the finality of the lease deed of the year 1967 and which challenge in the year 1982 would be time barred.
10.(i) Trial court has also, in my opinion, in the paras quoted above rightly held that mere payment of property tax or water bills or electricity bills cannot change ownership of the property. This is more so because a person who is using the property would maintain the property and pay charges payable for user thereof. The reasoning of RFA Nos. 241/1999 & 242/1999 Page 20 of 30 the trial court is unimpeachable. Trial court has also in this regard further rightly observed that again for the sake of arguments if construction on part of the suit property took place at the cost of Sh. Mohan Lal, then Sh. Mohan Lal by incurring such costs would not become owner of the suit property because Sh. Mohan Lal constructed it at his risk and cost knowing that as per the lease deed dated 21.11.1967 he was only 1/4th owner of the suit property with 3/4th share being of mother Smt. Assi Bai.
(ii) To the aforesaid reasoning of the trial court I would like to add that merely because Sh. Mohan Lal would have incurred monies for construction would not make him the owner except to the extent of 1/4th share because ownership in an immovable property has necessarily to pass by means of a registered document in terms of Section 17(1)(b) of the Registration Act, 1908 and therefore, if any cost was incurred by Sh. Mohan Lal for construction of part of the suit property, then that was for the purpose of user of the same and at the risk and cost of Sh. Mohan Lal but such act of construction does not pass ownership of the complete property to Sh. Mohan Lal once as per RFA Nos. 241/1999 & 242/1999 Page 21 of 30 the lease deed Sh. Mohan Lal is only 1/4th owner of the property with mother Smt. Assi Bai being 3/4th owner.
11.(i) The appellants who argued their case in person argued that the letter dated 24.5.1961 which was issued by Ministry of Rehabilitation was in the name of Sh. Mohan Lal and therefore Sh. Mohan Lal should be taken as the owner, however, this argument is misconceived and unsustainable because of the fact that by merely showing of a letter in the name of Sh. Mohan Lal, Sh. Mohan Lal will not become sole owner of the suit property because the lease deed which is executed on 21.11.1967 is the final document with respect to ownership and which lease deed showed that Sh. Mohan Lal was only 1/4th owner of the suit property. This argument of the appellants is therefore rejected.
(ii) On behalf of the appellants it was also argued that in one of the receipts Ex.PW3/A to Ex.PW3/D there is an endorsement in hand of Sh. Mohan Lal and thus it is proved that monies were paid by Sh. Mohan Lal, however, once again this argument is without any substance, inasmuch as, some notations in hand on a receipt will not RFA Nos. 241/1999 & 242/1999 Page 22 of 30 show that monies have been paid by Sh. Mohan Lal because the receipt was admittedly issued in the name of Smt. Assi Bai and the notation in hand will only mean that Sh. Mohan Lal had gone to deposit the money qua the receipt on which his notation appears. This argument of the appellants is also therefore rejected.
12. Before going to the next chapter of decision of these appeals I would like to state at this stage that this Court sitting as a first appellate Court under Section 96 CPC can interfere with the judgment of the trial court only if the judgment of the trial court is illegal or is against the facts of the case or is perverse. If two views are possible from the facts of the case and the evidence led therein, and the trial court has taken one possible and plausible view, then this Court would prefer not to interfere, even assuming that this Court was to take the alternative view. This is all the more so in the present case because this litigation has now gone for last 35 years no less, and in my opinion, the facts of the present case require that a quietus be achieved with respect to the rights of the parties especially in view of the fact that not only the lease deed of the year 1967 gave 3/4th share to the mother Smt. Assi Bai but also that compensation of amount of RFA Nos. 241/1999 & 242/1999 Page 23 of 30 Rs.362.94 assessed for properties of the families left in West Pakistan was adjusted against the price of Rs.1500/- which was paid as consideration to the Ministry of Rehabilitation.
13. The aforesaid discussion would not lead to disposal of appeals because there is an off shoot which is required to be decided. This off shoot is because both Smt. Assi Bai and Sh. Bhag Chand have expired. Sh. Bhag Chand died as a bachelor. The present respondents in the appeals claim rights of Sh. Bhag Chand in the suit property on account of their placing reliance upon the registered Will dated 26.1.1999. When these appeals came up for the first time for arguments before this Court on 14.3.2011 a detailed judgment was passed requiring that the contesting respondent had to prove the Will of Sh. Bhag Chand dated 26.1.1999 and only whereafter the respondent could claim rights to the suit property. In accordance with Order XXII Rule 5 CPC therefore on the aspect of existence and proof of the registered Will dated 26.1.1999 claimed by Sh. Jagdish Lal Dua this matter was remanded to the trial court for deciding this limited issue after allowing parties to lead evidence. Trial court has then allowed the parties to lead evidence as regard the Will of Sh. Bhag RFA Nos. 241/1999 & 242/1999 Page 24 of 30 Chand, and the trial court has by its judgment dated 22.2.2016 has held that the respondent/Sh. Jagdish Lal Dua has been successful in proving of the registered Will dated 26.1.1999 executed by Sh. Bhag Chand in his favour. Trial court in this regard has held that the Will is proved as Ex.DW1/1 in view of the testimony of the attesting witness Sh. Charanjeet Singh, Advocate. The relevant findings and observations as regards the Will dated 26.1.1999 being proved as Ex.DW1/1 are contained in para 26 of the judgment of the trial court dated 22.2.2016 and this para 26 reads as under:-
"26. DW1 Smt. Krishna Devi, wife of Sh. Jagdish Lal Dua relied upon the original Will dated 26.01.1999, registered on 26.02.1999, executed by Sh. Bhag Chand @ Subhash Chand bequeathing his 3/4th share in property no. BIV/15, Amar Colony, Lajpat Nagar, New Delhi, out of total area of 100 sq. yds. in favour of Sh. Jagdish Lal Dua. Sh. Charanjit Singh, DW3 testified that he had drafted the said Will, whose certified copy is Ex DW1/1 and whose original was shown by Smt. Krishna Devi in evidence. DW3 Sh. Charanjit Singh, stated on 29.01.2016 that he was of age 67 years, a Law graduate and practicing Advocate, residing in Tilak Nagar, New Delhi. DW- 3 Sh. Charanjit Singh deposed that at about 12.00 noon on 26.01.1999, the Will Ex DW1/1 was executed in his chamber no. 441, Western Wing, Tis Hazari Courts, Delhi, where first of all testator Sh. Bhag Chand @ Subhash Chand had signed after which he (DW3) and thereafter Sh. D.P. Bajaj, Advocate had signed the Will, in presence of each other. Later on 26.02.1999, the said Will was registered before Sub-Registrar, Karol Bagh, New Delhi and office of Sub-Registrar was then at First Floor of Tis Hazari Court premises. As per DW3, the said Will was typed in his chamber by typist Sh. Mahinder Singh Sachdeva and contents of the Will in vernacular were explained to Testator Sh. Bhag Chand @ Subhash Chand in Punjabi. Otherwise Testator Sh. Bhag Chand @ Subhash Chand was having knowledge of English and he could read, write and understand English. PW- 3 had conducted the present cases of Testator several times and had seen the Testator several times reading and writing English. As per DW3, since he RFA Nos. 241/1999 & 242/1999 Page 25 of 30 had to stand witness, he had not mentioned in the Will that it was drafted by him. DW3 identified signatures of Testator on Ex DW1/1 at portions encircled A, B and C on three sheets and his own signatures at page3 as attesting witness and signatures of other attesting witness of Will namely, Sh. D.P. Bajaj, Advocate at page no3 of said Will. Also, DW3 stated that at the time of registration of the Will, he (DW3), Sh. D.P. Bajaj Advocate and Testator had signed on the back of first page of Will for the purpose of registration."
14. In my opinion, the trial court has committed no error in holding the Will dated 26.1.1999 of late Sh. Bhag Chand as duly proved because the relations between Sh. Bhag Chand and Sh. Mohan Lal were indeed very bad. Sh. Mohan Lal and Sh. Bhag Chand were at logger heads as the litigation between the parties is pending since the year 1982. The Will dated 26.1.1999 Ex.DW1/1 was executed by Sh. Bhag Chand in favour of Sh. Jagdish Lal Dua during the pendency of this litigation and the Will records the bad relations between the parties for Sh. Bhag Chand not giving his share in the suit property to Sh. Mohan Lal. The Will also records that Sh. Jagdish Lal Dua who is the son-in-law of one sister of Sh. Bhag Chand, had taken care of him/Sh. Bhag Chand in old age, and that Sh. Jagdish Lal Dua had been spending monies towards Sh. Bhag Chand‟s upkeep and therefore the Will was duly executed by Sh. Bhag Chand in favour of Sh. Jagdish Lal Dua. This Will dated 26.1.1999 is reproduced as under:- RFA Nos. 241/1999 & 242/1999 Page 26 of 30
"Will Nobody knows when one‟s ultimate destined end may come. Therefore, I, Bhag Chand alias Subhash Chand, son of late Shri Roop Chand aged about 52 years, resident of 1289, Gobindpuri, Gali No 8, New Delhi - 110019, with my sound disposing mind and to avoid conflicts and dissension, after my demise, about inheritance or taking over of my properties (immoveable and moveable), intend leaving a note.
Lease hold property No B-15, Amar Colony, Lajpat Nagar, New Delhi comprising of an area of 100 square yards, in records stands substituted in favour of two persons viz late Smt. Assi Bai and late Sh. Mohan Lal, respectively mother and elder brother of the Testator. 3/4th of the lease hold rights vest in favour of Smt. Assi Bai and 1/4th in favour of Shri Mohan Lal. Testator‟s late mother, in respect of her 3/4th share of the property had got registered a Gift Deed in Testator‟s favour to the exclusion of all of her other legal heirs - other legal heirs being late Shri Mohan Lal and two sisters of the Testator.
Testator‟s late elder brother did not behave well with other members of the family and left mother, Testator and two sisters of the testator to fend for themselves. Disputes therefore, arose, late brother of the Testator was on one side and other members of the family against him. Testator filed a suit for partition claiming his 3/4th share in the property and his late brother also filed a suit for declaration, possession and permanent injunction against the testator, his late mother and others claiming himself to be the owner of the whole of the property.
Both the aforesaid suits, by orders of the learned District Judge, were assigned to one court for trial. Shri S.N. Dhingra, Additional District Judge, Delhi, on 16.1.1999, passed judgment and decrees in the said suits. The suit of the Testator was decreed granting to the testator all prayers in his suit and the suit of late brother of the Testator was dismissed. Testator is a patient of cancer, he therefore, in his sound state of mind, has felt the need, to bequeathed his properties to lay at rest controversies after his demise about the same.
The Testator therefore, hereby devises and bequeathed that after his demise, his 3/4th share in Lajpat Nagar, New Delhi property detailed above, and any other properties left by the Testator, after him shall absolutely vest in Shri Jagdish Lal Dua son of late Shri Jaswant Rai resident of 599, Janta Flats, Site-I, Vikas Puri, New Delhi to the exclusion of any body else. The testator is a spinster. In his failing health, lean days and without any evocation, aforesaid Shir Jagdish Lal Dua came to the rescue of testator and helped him for food, medicine and other family needs. Therefore, testator, out of love and affection for the said legatee, who treated him more than even a son, has made this will in his favour. Any objection to this will of the testator, the only will, by any body, shall be treated as null and void. I also bequeathed that for the purposes of completing the execution process of the suit decreed RFA Nos. 241/1999 & 242/1999 Page 27 of 30 by Sh. S.N. Dhingra, Additional District Judge, Delhi, in testator‟s favour, after testator‟s demise shall be the only person to be arrayed in his place as plaintiff and as a party in any other suit/appeal/revision etc that ensues. IN WITNESS WHEREOF, the testator has put his hand to this will on this 26th day of January 1999.
Sd/-
TESTATOR We the under mentioned witnesses and the testator, have put our respective hands to this will, in the presence of each other, at one place and simultaneously." (underlining added)
15. In my opinion, therefore, there cannot be doubt as to Sh. Bhag Chand having executed the Will dated 26.1.1999 in favour of Sh. Jagdish Lal Dua and that the Will has been rightly held to be proved in view of the deposition of the attesting witnesses. In fact, since the Will is registered there is an additional reason to believe this Will dated 26.1.1999. As already stated above, there was no reason why Sh. Bhag Chand would give his share to Sh. Mohan Lal or his legal heirs because the two sides of the family were at complete logger heads since the year 1982.
16. Appellants argued that the deposition of DW-3/attesting witness/Sh. Charanjeet Singh could not be believed because he is an interested witness, however, appellants who are laymen and who have argued the appeals do not understand the meaning of having personal RFA Nos. 241/1999 & 242/1999 Page 28 of 30 interest because it is seen that by the Will the attesting witness Sh. Charanjeet Singh has not received any right to any of the property of late Sh. Bhag Chand. This argument of the appellants is rejected.
17. Appellants then argued that if there is active participation of the propounder in making of the Will and hence the Will should be discarded, and to which aspect this Court would like to observe that no evidence has been led by the appellants to show as to how Sh. Jagdish Lal Dua actively participated in making of the Will in the sense that Sh. Jagdish Lal Dua controlled the mind of Sh. Bhag Chand in an unnatural way for the Will to be made in his favour. In fact and on the contrary the Will is perfectly natural and genuine because Sh. Bhag Chand could not be expected to give his share to persons with whom he was at logger heads, i.e Sh. Mohan Lal and his family, and he gave his share to Sh. Jagdish Lal Dua who was the son-in-law of the sister of Sh. Bhag Chand and who had taken care of Sh. Bhag Chand in his old age.
18. Appellants then argued that the Will was executed on Republic Day and which could not have been done, however, as the RFA Nos. 241/1999 & 242/1999 Page 29 of 30 trial court has noted that there is no bar to execution of the Will on a Republic Day, and the Will was however registered only one month later i.e on 26.2.1999. This argument of the appellants is therefore misconceived and rejected.
19. In my opinion, the trial court vide its judgment dated 22.2.2016 has rightly held the Will dated 26.1.1999 of Sh. Bhag Chand to be duly proved as Ex.DW1/1.
20. In view of the above discussion, there is no merit in these appeals and the same are therefore dismissed.
SEPTEMBER 5, 2017 VALMIKI J. MEHTA, J
ib/AK
RFA Nos. 241/1999 & 242/1999 Page 30 of 30