Kans Kumari vs Beli Ram Mehra And Ors.
1995 Latest Caselaw 282 Del

JUDGMENT

Usha Mehra, J.

1. Smt. Kans Kumari, wife of Sh. K.C. Khanna, filed a suit for declaration, possession and for recovery of Rs. 35,750/- against Sh. Beli Ram Mehra and Ors. Suit is based primarily on the facts that the plaintiff and late Smt. Leela Wati were the daughters of late Smt. Dhan Devi, wife of Sh. Karam Chand Kapur. Smt. Dhan Devi purchased, in public auction, a property No. XI/ 3874-75 and 1453-54 (New) Gali Nimwaji, Darya Gang, New Delhi. This property was purchased by Smt. Dhan Devi against the compensation payable to her in lieu of properties left in Pakistan. Smt. Dhan Devi had also been allotted a flat No. A-IV/97(Part-I), Lajpat Nagar, under the Displaced Persons (Compensation & Rehabilitation) Act (In short the "Act"). Smt.Dhan Devi was the sole owner of both these properties. Smt. Kans Kumari and late Smt. Leela Wati were the only legal heirs of Smt. Dhan Devi and late K.C. Kapur. Thus after the death of Smt. Dhan Devi, the plaintiff and Leela Wati acquired as equal shares in both these properties. Leela Wati died during the pendency of the suit. She was survived by defendant No. 1 her husband, defendant No. 2 her daughter and defendants 3 to 6 her sons. They were imploded as defendants. Plaintiff, being one half owner of the properties is entitled to realise the income out of these properties. Defendants, successor in interest of late Smt. Leela Wati, have been illegally holding possession of these properties. They are Realizing the income out of these properties but not sharing the same with the plaintiff. The rent which the plaintiff

estimates of Darya Ganj property comes to Rs. 500/- per month, half of which the plaintiff is entitled to. Defendants have also to render accounts and pay to the plaintiff her share. She put her claim at Rs. 35,750/-. Plaintiff being half owner entitled to partition of the properties and separate possession thereof.

2. Suit has been contested by the defendants, inter alia, on the grounds that property at Gali Neem Wali Darya Ganj was jointly purchased by Smt. Leela Wati and Smt. Dhan Devi. 51.03% share in the property at Darya Ganj belonged to Smt. Dhan Devi, and 48.7% to Leela Wati, after Leela Wati's death to the defendants her legal heirs. Therefore, so far as the share of Smt. Leela Wati is concerned the plaintiff has no right to claim in the same. So far as Lajpat Nagar property is concerned, Smt. Dhan Devi was owner to the extent of 10.34%, while defendant No. 1 is owner to the extent of 89.66%. Defendant No. 1 got the ownership rights in Lajpat Nagar property because of associating by placing his verified claims, with Smt. Dhan Devi. At best the plaintiff can claim one half share out of the share of late Smt. Dhan Devi in the property at Darya Ganj which comes to 25.06% and 5.17% interest in Lajpat Nagar plot. She can only claim this much share in these two properties. Plaintiff is not entitled to any rent or money as no rent is recovered from Lajpat Nagar property and the rent from Darya Ganj property is nominal. Replication was filed refuting these allegations. On the pleadings of the parties following issues were framed:--

1. What are the respective shares of the parties?

2. Is the plaintiff entitled to mesne profit in respect of properties in dispute? If so, how much?

3. Relief. Following additional issue was framed on 8th August, 1988:--

1. Whether the suit of the plaintiff is barred under the provisions of Displaced Persons (Compensation & Rehabilitation) Act, as stated in the preliminary objections?

3. I have heard the oral submissions made by learned Counsel for the defendant and perused the documentary and oral evidence placed on record. From the perusal of the same, my finding on the above issues are as under:--

4. The plaintiff has not been able to discharge the burden of this issue by proving that she was entitled to one half share in the properties situated at Darya Ganj and Lajpat Nagar. On behalf of plaintiff Sh. A.S. Mahato, clerk of the office of Rehabilitation Deptt and Mr. D.D. Bhatt, LDC, Department of Internal Security, Rehabilitation Division (Settlement), Jaisalmer House, New Delhi were examined as PW-2 and PW-3 respectively. Mr. K.C. Khanna, husband of Smt. Kans Kumari, also appeared as witness as PW-1 Statement of Mr. K.C. Khanna was recorded on commission. So far as Mr. A.S. Mahato, PW-2, is concerned he proved from his official file the lease deed Ex. PW-2/D1. The copy of the order dated 6.11.78 passed by Settlement Commissioner, Mr. Goswami, as Ex. PW-2/D2. Copy of the letter dated 4.11.79 addressed to Sh. Beli Ram and Smt. Kans Kumari

as Ex. PW-2/D3. So far as PW-3 is concerned he testified that property at Darya Ganj was auctioned on 19.4.59. Smt. Dhan Devi was the highest bidder. Her bid was accepted on 7.5.59. Photocopies of the record produced was exhibited as Ex. PW-3/1 to Ex. PW-3/18. The documents prove that Dhan Devi was the exclusive owner of these two properties. On the contrary the sale deed and mutation certificate duly proved on record show that both the ladies were joint owners of the house at Darya Ganj.

5. According to Mr. K.C. Khanna, PW-1, after the death of his father-in-law Mr. Karam Chand Kapoor, his mother-in-law Smt. Dhan Devi acquired the right to receive income from the properties as maintenance, but the corpus of those properties fell into the share of her two daughters namely Leela Wati and Kans Kumari. The Court of Wards i.e. the Sr. Sub Judge Lahore (West Pakistan) passed order in this regard. He further stated that after the partition of the country, whatever properties were left in Pakistan, Smt. Dhan Devi and Smt. Kans Kumari and Leela Wati filed claims compensations. Applications were filed by these three ladies. Since the properties vested in the two daughters because of the order passed by the Court of Wards at Lahore dated 14.8.1916 which was upheld by Lahore High Court in 1934. The properties acquired by Smt. Dhan Devi against the verified claims regarding the properties left at Lahore (Pakistan) which belonged to her two daughters. According to him Smt. Dhan Devi filed claims of the properties left in Lahore on behalf of both the daughters. He denied the suggestion that Dhan Devi filed the claim in her exclusive name or that she filed the claim of Hafizabad property with her two daughters. He, however, admitted when subjected to cross examination that claims were verified in the name of Dhan Devi exclusively and not on behalf of her daughters. He admitted the order passed by the Claim Officer Jullandhar, as Ex.C-1, and the order passed by claims Commissioner dated 22.4.53 as Ex.C-2. He could not deny the suggestion that Beli Ram associated his compensation and verified claims and got adjusted his compensation claim with Smt. Dhan Devi for the purchase of Lajpat Nagar property. Against this association he admitted that he filed an appeal under Section 33 of the Act. He also gurglingly admitted that the said appeal he got it withdrawn. Nor could he deny the suggestion that his wife Kans Kumar filed revision petition under Section 24 of the Act. What happened to that revision he deliberately avoided to answer. He, however, could not deny the suggestion that, that revision petition was dismissed by the Chief Settlement Commissioner, New Delhi on 3.12.71. He also could not deny the fact that after the said order the Managing Officer decided the appeal in favor of defendant No. 1, Shri Beli Ram Mehra on 6.11.79. He had to admit that sale deed of the plot at Lajpat Nagar was issued on 15.3.80 and that neither he nor late Dhan Devi preferred any appeal against allotment of plot at Lajpat Nagar in the joint names of Dhan Devi and Beli Ram Mehra. The appeal filed by his wife Smt. Kans Kumari was also dismissed. She preferred another appeal. What happened to that appeal he could not tell. He admitted that Kans Kumari received compensation against the claim preferred by her but the verified amount amounting to Rs. 18,400/- was never utilised by her. Therefore, to my mind, he failed to prove that Smt. Kans Kumari associated her claim and compensation with Smt. Dhan Devi for the purchase of these properties. He tried to deny having sent legal notice through Sh. N.C. Kochar,

Advocate (as he then was) to defendant. But the said legal notice has, however, been proved on record from the testimony of Mr. N.C. Kochar as CW-1/1 AD card and reply sent by defendants through Mr. M.L. Wadhawan, Advocate, has been proved as Ex. CW-1/2. He also could not deny the suggestion that in a suit filed for eviction against the tenant both Smt. Dhan Devi and Smt. Leela Wati, co-owners were petitioners. Nor could he deny that Leela Wati got the decree of eviction against the tenant whereas Dhan Devi gave up her claim in that eviction petition. He admitted that sale deed of Darya Ganj property was issued jointly in the names of Smt. Dhan Devi and Smt. Leela Wati. When subjected to cross examination he had to admit that Smt. Kans Kumari filed an application against the joint allotment, under Section 33 of the Act but on his instructions it was withdrawn by his Counsel,

6. According to him Dhan Devi had no jewellary. She had deposited monies in the banks namely Oriental Bank of Commerce, Darya Ganj, and Punjab National Bank Darya Ganj. The said accounts were jointly operated with Lila Wati. Though money belonged to Dhan Devi, therefore, plaintiff has share in that money also.

7. On the other hand on behalf of defendants Justice N.C. Kochar was examined as witness on 10.2.89. He proved the legal notice sent by him on behalf of the plaintiff as Ex. CW-1 /1. He also admitted the AD card and reply notice as Ex. CW-1/2 and Ex. DW-1/1 respectively. In cross examination of Justice N.C. Kochar not even a suggestion was given that plaintiff never instructed him to issue this notice Ex. CW-1/1. Hence his statement that notice Ex. CW-1/1 was issued at the instance of the plaintiff remained unrebutted and uncontroverted on record. Reading of the notice Ex. CW-1/1 issued by plaintiff clearly shows admission of the fact that property at Darya Ganj was jointly purchased by Dhan Devi and Leela Wati. Defendants also examined Sh. Ami Chand as DW-1. He proved on record the letter dated 10.7.52 Ex. DW-1/1 (Ex. DW-1/1 twice shown) issued by his Department to defendant No. 5, i.e. Sh. R.K. Mehra. Copy of the recovery memo in respect of Leela Wati's claim for Rs. 13,502/- has been proved as Ex. DW-1 /2. The claim order in respect of Smt. Dhan Devi's compensation as DW-1/3. By the testimony of Sh. Anoop Singh, DW-2, defendant proved that property bearing No. 3874/75 and 1453-54, New Darya Ganj stood mutated in the names of Smt. Dhan Devi and Smt. Leela Wati in their respective share of Rs. 18,036/- and Rs. 15,064/- respectively. Bill forms issued to Smt. Dhan Devi has been proved as Ex. DW-2/1.

8. To support the testimony of these official witnesses Mr. R.K. Mehra, defendant No. 5, appeared as his own witness. His statement was recorded on commission. He testified that his mother Leela Wati received notice from the plaintiff Ex.CW-1/1. Smt. Leela Wati sent reply through Mr. M.L. Wadhawan her Advocate, vide Ex.DW-1/1. He also testified that property at Darya Ganj was purchased by Smt. Dhan Devi but since Smt. Dhan Devi was short of money, therefore, she associated her daughter Leela Wati. Smt. Leela Wati Along with Udho Dass polled their verified claims with Smt. Dhan Devi. Tenants in that property including defendant No. 1 were attorney to Smt. Dhan Devi and Smt. Leela Wati by the Department vide letters Exs.D-2 and D-3. The value of the

property at Darya Ganj in auction went up to Rs. 33,100/- therefore, Dhan Devi and Leela Wati got their claims of compensation adjusted against the price of this property. Dhan Devi had compensation claim of Rs. 15,905/-, while Leela Wati that of Rs. 15,064/-. Compensation claim for Rs. 2,128/- was purchased from Sh. Udho Dass. Balance Rs. 3 was paid in cash. Defendant No. 5, Sh. R.K. Mehra, further testified that Sh. Udho Dass relinquished his 3.02% share in this property in favor of Smt. Dhan Devi vide Ex. PW-3/7. After the relinquishment the sale deed was executed in the joint names of Smt. Dhan Devi and Smt. Leela Wati. As per the adjustment of their shares of compensation the share of Smt. Dhan Devi came to be51.3% whereas that of Smt. Leela Wati 48.7%. After the death of Smt. Dhan Devi on 22.6.69, her share was to be divided in equal proportion between Smt. Kans Kumari and Smt. Leela Wati.

9. Mr. R.K. Mehra defendant No. 5, further stated that Smt. Dhan Devi had cash and jewellary worth Rs. 1 lac. These are in the custody of the plaintiffs. So far as the property at Lajpat Nagar is concerned it has been proved from the testimony of official witnesses as well as of defendant No. 5 that this plot was allotted by Managing Officer in favor of Smt. Dhan Devi. But since Smt. Dhan Devi did not have the verified claim for paying the price of this plot hence she associated Mr. Beli Ram Mehra, her son-in-law and utilised his compensation towards the purchase price of this plot. Mr. Beli Ram Mehra defendant No. 1 had a certificate of compensation amounting to Rs. 14,034.57P. This he got adjusted towards the price of this plot. Defendant No. 5, Sh. R.K. Mehra further testified that Smt. Dhan Devi filed the claim against her property left at Lahore in her individual name. This claim was not filed by her on behalf of her daughters. Mr. R.K. Mehra DW 1 was not subjected to full cross examination inspite of the repeated opportunities having been given by the local Commissioner as well as by this Court. Hence the statement of Mr. R.K. Mehra, DW-1, remained unrebutted and uncontroverted on record.

10. From the documentary evidence as well as from the oral testimony, it is amply clear that so far as the property at Darya Ganj is concerned, the same was purchased in the public auction by Smt. Dhan Devi. Smt. Leela Wati was associated by Smt. Dhan Devi. They both became co-owners of this property.

Copy of the sale certificate amply proves joint ownership of Smt. Dhan Devi and Smt. Leela Wati. In this regard reference can be had to Ex. PW-3/10. This certificate depicts the respective shares of Smt. Dhan Devi and Smt. Leela Wati as joint owners. Moreover, letter written by Smt. Dhan Devi, Ex.PW-3/2 and Ex.PW-3/3 clearly show that Smt. Dhan Devi had requested the Department to allow her to associate Smt. Leela Wati in the purchase of Darya Ganj House. Beside these consent letters joint ownership stand proved from the affidavit of Smt. Dhan Devi Ex.PW-3/1. These documents read with certificate of sale clearly prove that the property was purchased by Srnt. Dhan Devi by associating her daughter Smt. Leela Wati and by utilising Smt. Leela Wati's compensation worth Rs. 15,064/-towards the sale price.

11. As against the price of this house i.e. Rs. 33,100/- Smt. Dhan Devi contributed 48.1 %, whereas Smt. Leela Wati contributed 45.5.% and Sh. Udho Dass 6.4%. Their respective shares have been shown in the schedule of shares in the

letter issued by the office of the Regional Settlement Commissioner. The document in this regard is Ex.PW-3/11. Their respective shares have been shown against their names. Subsequent thereto Sh. Udho Dass relinquished his interest in the property. From the perusal of relinquishment deed Ex.PW-3/7 and his affidavit and consent letter Ex.PW-3/4 it is quite clear that he relinquished his interest in this property in favor Smt. Dhan Devi and not in favor of Smt. Leela Wati. Hence from the oral and documentary evidence which has come on record it is amply clear that Smt. Dhan Devi after the purchase of Sh. Udho Dass' share became owner of 54.05% and Smt. Leela Wati that of 45.55% share respectively in this property. The indemnity bond filed by Smt. Dhan Devi before the appropriate authorities proved on record as Ex.PW-3 /18 and the letter to the Settlement Officer communicating that she associated Lila Wati in the purchase of this property vide Ex. PW-3/17. Lila Wati also wrote a consent letter for the association and adjustment of her claim for the purchase of Darya Ganj property vide Ex.PW-3/ 10. From the letters/documents referred to above and discussed, it becomes amply clear that Smt. Dhan Devi was not the exclusive owner of Darya Ganj property.

12. As regards Lajpat Nagar property, conveyance deed to the extent of 89.66% was registered by the Department in favor of Sh. Beli Ram Mehra. Hence Smt. Dhan Devi and Sh. Beli Ram Mehra became co-owner of this plot. Srnt. Dhan Devi in order to pay the price of this plot sought the permission of the appropriate authority to form association under Section 20 of the Displaced Persons Act. For this purpose she associated Sh. Beli Ram Mehra, defendant No. 1 herein. She formed an association with him. Sh. Beli Ram Mehra, as has come on record from the testimony of official witness as well as of defendant No. 5 that defendant No. 1 associated his share with Smt. Dhan Devi and that is the reason the said plot was jointly allotted in the names of Smt. Dhan Devi as well as Sh. Beli Ram Mehra. Sh. Beli Ram Mehra's share in this plot came to 89.66% whereas that of Smt. Dhan Devi 10.34%. Plot was allotted on 15.3.80 whereas lease deed regarding this plot was registered with the Sub-registrar on 7.4.1980 vide Ex.PW-2/D1. This document clearly show that Sh. Beli Ram Mehra associated for the purchase of this plot Along with Smt. Dhan Devi. That is why the Rehabilitation Department registered the conveyance deed in defendant No. 1's favor. As already observed above the testimony of Sh. R.K. Mehra since not subjected to cross examination hence relying on his unrebutted testimony, it can safely be said that share of Sh. Beli Ram Mehra in this property was to the extent of 89.66%, whereas that of Smt. Dhan Devi 10.34%. Sh. Beli Ram Mehra got his claim amounting to Rs. 14,034.57 paise adjusted against the price of this plot. Therefore, on the basis of documentary evidence which has come on record coupled with the fact that the decision of the Rehabilitation Department thereby allowing association of defendant No. 1 having not been challenged, now plaintiff cannot be allowed to challenge the same byway of a civil suit. Plaintiff's remedy if any was under this Act and not by way of civil suit. Moreover, the plaintiff or her attorney Mr. K.C. Khanna could not challenge the matter of association of Smt. Leela Wati in the house at Darya Ganj or Mr. Beli Ram Mehra for the plot at Lajpat Nagar. Therefore, it can easily be presumed that she acquiescence her right to challenge the association. Further more declaration seeking association as bad has already been rejected by the

concerned department. Even the appeals filed by plaintiff were decided against her. This shows that plaintiff Kans Kumari exhausted all the remedies available under the statute. Apparently documents which have been issued by the concerned departments show that the property so far as of Darya Ganj is concerned, vested 54.5% to Dhan Devi and 45.5% to Lee la Wati. As regards Lajpat Nagar property Dhan Devi had 10.34% share whereas Mr. Beli Ram Mehra 89.66%. After the death of Smt. Dhan Devi, Smt. Kans Kumari being the legal heir would naturally become entitled to one half share from the share of Dhan Devi. Thus plaintiff would be entitled to 27.2-1/2% in Darya Ganj property i.e. one half share of Dhan Devi's share and 5.17% in Lajpat Nagar Property i.e. one half share of Smt. Dhan Devi's share. This issue is decided accordingly.

13. Mr. K.C. Khanna appearing as an attorney of plaintiff Kans Kumar could not prove that the rent of Darya Ganj property was Rs. 500/- or Rs. 700/- per month. Whereas defendants from the testimony of Departmental witnesses proved on record the rent which this property was fetching at the time of its sale to Smt. Dhan Devi. The attornment letters to tenants have been exhibited as D-2 and D-e and DW-1/1. Letter issued by the Accounts Officer of the office of Regional Settlement Commissioner, Jam Nagar House, Ex.DW-1/2 shows that in this property there were five tenants and also that rate of rent they were paying. Smt. Savitri Bai was in occupation of portion of this premises w.e.f. February,1952 and was paying rent @ Rs.10/- per month. Sh. Sohan Lal was tenant in part of this premises since 1950 at a monthly rent of Rs. 6/- and Rs. 4/- respectively. Sh. Roop Daman Singh was tenant w.e.f. October 1952 at a monthly rent of Rs. 18.50 paise. One Fiaz Hussain was tenant from February,1951 at monthly rent of Rs. 20/-. The DW-1 /2 further indicate that M/s. Indira Film were also tenant in this premises. But Ex.DW-1/2 does not indicate from which date and at what rate. Be that as it may, the fact remains that on an average Smt. Dhan Devi and Smt. Leela Wati would have been getting rent approximately at the rate of Rs. 100/- per month from all the tenants of this premises. On the fact of the documentary evidence, it cannot be said that Smt. Leela Wati or for that matter Smt. Dhan Devi were fetching rent at the rate of Rs. 500/- or Rs. 700/- per month as alleged by the plaintiff. Hence so far as this property at Darya Ganj is concerned after the death of Smt. Dhan Devi the plaintiff would be entitled to one half share of the rent used to be received by Smt. Dhan Devi. How much was that rent the plaintiff has miserably failed to prove.

14. As regards Lajpat Nagar property it has come on record that Smt. Dhan Devi purchased it as a plot. No evidence has been led to establish that thereafter any building was constructed on the same or it is or was in occupation of a tenant. In the absence of any proof as to whether any rent was received by Smt. Dhan Devi no decree for mesne profit can be passed in favor of the plaintiff.

Additional Issue

15. Mr. K.C. Khanna stated before this Court that Smt. Kans Kumari filed revisions and appeal challenging the association of Sh. Beli Ram and Smt. Leela Wati by Smt. Dhan Devi in the purchase of these properties. It has also come on record that those appeals and revisions were dismissed or got withdrawn, Hence

the remedy so far as cancellation of those associations of compensation are concerned, the plaintiff fully exhausted the remedies available under the Act. But that itself is no ground to debar the plaintiff from seeking partition of these properties, so far as the share of late Smt.Dhan Devi is concerned. By this suit plaintiff has sought declaration that she is entitled to one half share in the property of Smt. Dhan Devi. It be partitioned and separate possession be given to her. To my mind such a suit is admissible because under the Displaced Persons (Compensation and Rehabilitation) Act, she could not have asked for the partition of the properties and for possession. This right she could only exercise before a Civil Court which will determine how much share plaintiff is entitled to. Therefore this issue is decided against the defendant.

Relief

In view of my finding on issue No. 1 it is held that plaintiff is entitled to one half share from the share of late Smt. Dhan Devi which comes to 27.2-1/2% in Darya Ganj property and 5.17% in the Lajpat Nagar property. Decree be prepared accordingly. Parties are left to bear their own cost.