Kuldip Harbans Singh vs Karuna Singh And Ors.
1994 Latest Caselaw 648 Del

JUDGMENT

Vijender Jain, J.

(1) I.A.4280/89 is an application filed by the plaintiff under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for grant of mandatory injunction directing defendant no.2 to hand over the flat bearing No-319,6, Bhikaji Cama Place, Ansal Chamber No. 1I, New Delhi to the plaintiff. Another prayer is to restrain defendant no.2 from handing over the possession of the aforesaid flat to any other person till the disposal of this application. Yet another prayer is to restrain defendant no.4 from handing over the possession of the flat no.404, Lakshmi Bhawan, 72, Nehru Place, New Delhi to defendant no.1 or to anyone else claiming through or under her pending disposal of the suit and further seeking directions directing defendant no.2 to pay monthly rent in respect of flat bearing no.404, Nehru Place, New Delhi to the plaintiff and to deposit arrears of rent received by defendant No.1 in respect of the said flat. Plaintiff is mother-in-law of defendant No.1. Defendant no.2 is Ansal Properties. Defendant no.3 is Indraprastha Builders and defendant no.4 is M/s East India Syntex Ltd. According to the plaintiff she is the sole proprietor of Sardar Harbans Singh Foundation constituted on 30.6.1982 between Sardar Anuranjan Singh deceased son of the plaintiff and the plaintiff. Defendant no.2 is the Builder/Promoter of property Bhikaji Cama Place including flat no. 319. Defendant no.3 is the Builder/Promoter of flat no.404, Nehru Place. Defendant no.4 is the tenant in the flat at Nehru Place. According to the plaintiff said Harbans Singh Foundation which was earlier a partnership and now a sole proprietory concern owns the aforesaid two properties. The case of the plaintiff is that flat at Bhikaji Cama Place was booked by one J.S.Bir on behalf of Sardar Anuranjan Singh HUF. The case of the plaintiff further is that Sardar Anuranjan Singh contributed the said flats at Bhikaji Cama Place and the flat at Nehru Place as his contribution towards the partnership titled Hanbans Singh Foundation. According to the learned counsel for the plaintiff as per the partnership agreement on the death of Sardar Anuranjan Singh on 21.1.85 the plaintiff became the sole proprietor of the foundation and thereby sole owner of two aforesaid flats.

(2) The case of the plaintiff with regard to flat no.404, Nehru Place is that the flat was purchased jointly by the husband of the plaintiff and the plaintiff and the said owners gifted their contribution in the said flat to Sardar Anuranjan Singh Huf and the said Huf became the sole proprietor of the said flat and as stated earlier the said flat was also thrown in the aforesaid partnership which was entered into between the plaintiff and Sardar Anuranjan Singh.

(3) After the death of Sardar Anuranjan Singh on 21.1.85 the plaintiff applied to defendant no.2 to transfer the flat at Bhikaji Cama Place in the name of the plaintiff. Defendant no.1 also applied to M/s Ansal Proper- ties and Industrial (P) Limited, inter alia, requesting the Promoter/Builder for transferring the said flat in the name of defendant no. 1. It is also argued by learned counsel for the plaintiff that as there was a dispute between plaintiff and defendant no. 1 Installments were not paid and defendant No.2 threatened to cancel the allotment. The Installments in respect of the said flat and all arrears were cleared by the plaintiff. The plaintiff also paid the ground rent and service charges to M/s Star Estates Management Pvt. Ltd. Property tax has also been paid for the year 1988- 89 by the plaintiff. In view of the disputes inter se between the parties the possession of the flat was not handed over and even mutation was not effected by the Municipal Corporation of Delhi.

(4) The dispute with regard to flat at Nehru Place is that after the death of Sardar Anuranjan Singh plaintiff sent a letter asking the tenant- defendant no.4 to pay rent to the plaintiff. However, defendant no.4 replied that it had started paying the arrears of rent and rent to defendant no.1. The case of the plaintiff is that she is the sole proprietor of Foundation and sole owner of the two flats and, therefore, prayers as stated hereinabove.

(5) On 2.6.89, this Court restrained defendant no.2 from handing over possession of Flat No-319,6, Bhikaji Cama Place to defendant no. 1 and defendant no.4 was similarly restrained from handing over the possession of Flat no-404, Nehru Place to defendant no. 1.

(6) On 3.4.92 while considering applications Nos-4280/89, 2931/90 and 8482/91, this Court observed that as the title to these two flats was under dispute and both the parties were claiming rights in both the flats the Court had put to the counsel for the applicant as to what provision is sought to be made regarding the Installments paid by the plaintiff qua Bhikaji Cama Place flat to the builders, as also the charges which plaintiff claimed to have paid on account of property taxes and management charges towards the said flat. The Court also observed that though defendant no.1 claimed that certain payments had been made towards Bhikaji Cama Place flat yet prima facie it appeared that substantial payments towards this flat had been made by the plaintiff. Counsel for defendant no.1 sought time in deference to the observations recorded by the Court on 3.4.1992 to obtain instructions. As the dispute pertains to family members the Court granted further time to the parties. During the course of the hearing it was put to counsel for both the parties as to what amount of rent flat at Bhikaji Cama Place would fetch. It was stated that the flat would fetch rent about RS.10,000.00 per month and during one of such hearing on 29.4.94 counsel for the plaintiff made a statement that she had got an offer from a Public Sector Undertaking and the said tenant was. prepared to pay rent at the rate of Rs.20.00 to Rs.24.00 per sq. feet on super area. Again one more opportunity was given to Mr.Nigam to ascertain if he could let out the flat at higher rent than what had been stated by the counsel for the plaintiff. Ms.Luthra has stated time and again that the flat is lying vacant since 1990 and plaintiff being an old lady is being denied the rent of the said flat. Admittedly, defendant No.1 is receiving the rent in respect of Nehru Place flat which is approximately Rs.5000.00 per month.

(7) On the other hand, Mr.Nigam has vehemently argued that the partnership deed dated 30.6.82 was a fabricated document and the same was impounded by the Income Tax Officer, Calcutta in the assessment proceedings. He has further contended that the partnership deed cannot confer title to immovable property in derogation to the specific provision of Section 54 of the Transfer of Property Act. Another leg of his argument is that in any event even if it is assumed that the partnership was dissolved then after such dissolution the assets are to be divided amongst partners or the legal representatives of the deceased partners and continuing partner can never be the sole proprietor of partnership assets.

(8) Learned counsel for defendant No.1 has also argued that Late Sardar Anuranjan Singh as Karta of the Huf had no authority to alienate, assign or invest the same unless and until the same was in the interest and benefit of the Hindu Undivided Family and as the Late Sr.Anuranjan Singh had minor children at the relevant time, namely, Km.Bhavna, Master Ishan and Master Pravir he could not have transferred the property to the alleged partnership. Learned counsel for the defendant has also argued that fabricated partnership deed dated 30.6.82 is otherwise hit by Sec.23 of the Contract Act as by the said document the plaintiff alleged to have contracted for the transfer of immovable property contrary to the Transfer of Property Act and the Partnership Act. It is also contended that the minors were not made the parties to the suit. He has further argued that as per Sections 6 and 8 of the Hindu Minority and Guardianship Act, 1956 nothing could have been done without -the leave of the court to deal with the property in which minors have their interest and deceased Sardar Anuranjan Singh could not have entered into the said partnership deed. Mr.Nigam has further argued that as per Sec.126 of the Transfer of Property Act once the gift was made by the plaintiff and late husband of the plaintiff of flat at Nehru Place the gift was complete and the same. could not have been revoked. The main thrust of the argument of Mr.Nigam is that the partnership deed dated 30.6.82 is a bogus and fabricated document and some earlier partnership deed which was genuine has not been brought on record. It is also stated that accounts in relation to these properties in the returns filed by the plaintiff do not mention about these two flats.

(9) I have given my careful consideration to the various contentions raised by learned counsel for both the parties. From the perusasive of the partnership deed dated 30.6.82 it is clear that deed was drawn on non-judicial stamp paper worth Rs.l50.00 and prima facie it looks that deceased Sr.Anuranjan Singh the son of the plaintiff was not in a position to contribute capital out of his personal funds therefore flats were given as contribution on behalf of Sardar Anuranjan Singh Huf to the partnership. The order dated 20.5.86 on which Mr.Nigam placed much reliance of the Income Tax Officer was set aside by the Commissioner of Income Tax vide order dated 28.4.87 in which the Income Tax Officer was directed to complete fresh assessment of the partnership firm. Admittedly, no appeal was filed by defendant no.1 from the order of Commissioner of Income Tax. That being the situation at this stage when I have to decide the application of the parties taking a prima facie view of the Partnership Deed, two clauses of the said deed are important. The plaintiff who was running two schools known as Play House' and 'Central Model Prep School at Calcutta contributed proceeds of these two schools towards the capital of the said partnership and it has been mentioned in the said partnership that the party of the second part, i.e. Anuranjan Singh executed that partnership deed in his capacity as representing Huf family known as 'Anuranjan Singh HUF' contributed to the capital two flats at Nehru Place and Bhikaji Cama Place and further agreed to contribute a sum of Rs.l,00,000.00 within a period of three years. No such contribution of Rs.1,00,000.00 was made by the said Anuranjan Singh.

(10) Clause 6 of the said Partnership Agreement is relevant, which reads as under:- "That the party hereto of the Second Part will contribute by way of capital the two house properties one known as Lakshmi Bhawan premises no.404 at 72, Nehru Place, New Delhi and the other Flat No.319 at No.6, Vickaji Kama Place, New Delhi at cost price and has further agreed to contribute a further sum of Rs.l,00,000.00 within a period of three years or within such other period as the party hereto of the First Part may allow. The capital of the Party hereto of the First Part shall be the capital contribution in the firm. The further capital required for the purpose of the business of this partnership shall be contributed arid/or arranged in such manner as may be decided from time to time. No interest shall be payable by the firm on the capital contributions of the parties hereto. It is clearly understood that in respect of the two house properties one known as Lakshmi Bhawan premises No-404 at 72 Nehru Place, New Delhi and the other Flat No.319 at No.6 Vickaji Kama Place, New Delhi, the party hereto of the Second Part shall be given credit only to the extent of the money actually paid by the party hereto of the Second Part for the said properties and the said properties will always remain and belong as property of this Partnership. "

(11) From the aforesaid clause it becomes apparent that the intention of the parties was to give credit to the extent of the money actually paid by the party of the Second Part for the aforesaid two flats otherwise the properties were to remain the property of the partnership.

(12) Another important clause is Clause 15, which reads as under:-

"THAT in the event of death or retirement of any party hereto all the assets and properties will belong to the remaining party and the retiring party or the legal heirs of the deceased will only have right and claim to get the credit balance in the accounts of such partner. Such credit balance may be paid as may be decided by the remaining or surviving party. The surviving party may also take such legal heirs of the deceased as partners as may be acceptable to the surviving party on such terms and conditions as may be decided by the surviving party."

(13) Thus, it would be seen that in the event of the death of any partner all the assets and properties belonged to the remaining party and a legal heirs had been given the right to claim credit balance in the accounts of such partner. That being the case it is not necessary for me to go into various contentions raised by learned counsel for the defendants. Whether this partnership is forged or genuine will depend on the evidence that will be led by the respective parties. As I have stated earlier prima facie in view of not filing any appeal against the order of the Income Tax Commissioner who has set aside the order of the Income Tax Officer pertaining to the partnership in question dated 30.6.82, this Court has to give credence at this stage to the partnership as put up by the plaintiff, may be ultimately the defendant may prove that partnership was not genuine that is the stage after trial. There is yet another aspect of the controversy. As observed earlier, the plaintiff had only one son Anuranjan Singh. After the death of Anuranjan Singh in any case defendant no.1 and the children of defendant no. 1 and deceased Anuranjan Singh are the beneficiaries qua the plaintiff. Plaintiff is about 80 years old. This Court already on 3.4.1992 had directed defendant no.2 to hand over the possession of the flat bearing no.319, 6, Bhikaji Cama Place, Ansal Chamber, New Delhi to the plaintiff and the said flat is lying vacant since 1990.

(14) Defendant No.1 has filed Ia 2931/90 seeking a prayer that flat at Bhikaji Cama Place be directed to be handed over to her and she may be permitted to let out the same on behalf of Sardar Anuranjan Singh HUF. In the said application she has further prayed that 50% of the net profit accruing there from shall be deposited by her in a bank which will be payable according to the order of this Court to be passed ultimately in the suit along with interest.

(15) Another application being Ia 8482/91 has been moved by the plaintiff for appointment of a Receiver qua the aforesaid flats.

(16) As I have stated earlier that taking a prima facie reading of the partnership deed gives the impression that after the death of any of the partners the assets and properties were to belong to the remaining partner and the legal heirs of the deceased had right to get the credit balance in the accounts of deceased partner. Whether Sardar Anuranjan Singh was the owner of the said flats? Whether flats could have been thrown into the partnership by Sardar Anuranjan Singh? Whether minors' interest was involved? Whether leave of the Court was to be obtained as minors' interest was involved? are some of the questions which are to be gone into at the time of the trial. As observed in the Order dated 3.4.1992 by this Court that prima facie it appeared that substantial payment towards Bhikaji Cama Place flat has been made by the plaintiff. No useful purpose will be served if flat at Bhikaji Cama Place is allowed to remain vacant. Admittedly, defendant No.1 is Realizing rent in relation to flat at Nehru Place. Balance of convenience is also in favor of letting out the flat by the plaintiff. Plaintiff will be put to irreparable injury if, in spite of partnership deed prima facie showing plaintiff as a sole owner of the said flat, she is deprived of the benefits of the said flat. It will be in the interest of justice that plaintiff be allowed to let out the said flat at Bhikaji Cama Place on rent subject to the final outcome of the suit. The plaintiff shall maintain the true and faithful account of the receipts as well as expenses which have to be incurred on account of payment of taxes and other statutory liabilities. Similarly, defendant No.1 shall maintain an account of receipts and expenses in relation to the rent received for flat at Nehru Place. Parties are directed not to alienate, transfer, part with or encumber or create third party interest in relation to the said two flats till the final disposal of the suit.

(17) All the above applications are disposed of in terms of the orders made above.