Uma Devi vs Smt. Vimla Devi
1998 Latest Caselaw 583 Del

ORDER

K. Ramamoorthy, J.

1. The point involved in the matter is a very very narrow one. The main suit is for partition and on 24.8.1980 this Court had passed preliminary decree granting 1/5th share to each of the parties except the 7th defendant. The 7th defendant claims tenancy rights. An issue was framed when the preliminary decree was passed in the following terms :-

"Whether defendant No.7 is a tenant of one shed, two rooms and a common bath room and lavatory in the suit property?"

The matter has been pending for a long time. As the 7th defendant is claiming the tenancy rights it is for the 7th defendant to prove the same. It is not disputed by the 7th defendant that there is no document evidencing the creation of tenancy. The 7th defendant asserts right of tenancy on the basis of some oral agreement.

2. In the back drop of the above prologue, I have to consider the case of the 7th defendant through Brij Krishan Gupta who claims to be a director of the 7th defendant. First defendant is the wife of Mr. Brij Kishan Gupta (D.W.1) duly supported the 7th defendant which is a family Company of Mr. Brij Krishan Gupta DW-1/1 Mr.Nanak Chand, who is stated to have been Chief Accountant of the 7th defendant. In the chief examination, he would state:-

"I am the Chief Accountant of defendant No.7. The registered office of defendant No. 7 is in the premises bearing No. 802, Joshi Road, New Delhi. Defendant No. 7 has its office in the said premises. Two rooms and a tin shed are in possession of defendant No. 7 in the property 802, Joshi Road, New Delhi.

Q. Has defendant No. 7 taken the above mentioned premises from anyone on rent?

Ans. The premises were taken on rent in 1973 from the owners of the property. The company was paying a rent of Rs.100/- per month.

Q. Have you brought the account books of defendant 7.

Ans. I had asked Shri Bal Kishan Dass, the Chairman of defendant No. 7 to give the books of the company but he refused to allow me to take the books.

Mr. Aggarwal states that in order to further examine the witness, it is necessary to have the ledger, cash book and Kacha Roker of defendant No. 7 for the period 1973 onwards. Mr. Aggarwal further states that books of account are in possession of Shri Bal Kishan Dass and he should be directed to produce the said books of account in the court. Counsel for defendant No. 7 states that the books of account are with the Chief Accountant. The witness states that the books of account are lying in the factory at Turkman Gate for the last two months. I direct that the witness shall bring the relevant books of account tomorrow. Shri Bal Kishan Dass shall allow the witness to bring the relevant books of account. Examination of the witness is postponed to tomorrow.)."

This witness was not produced for cross-examination as he was reported to have died.

3. Mr. Jaswant Singh was examined as D-7W1. He was working in the office of Competent Authority under the Urban Land (Ceiling & Regulation) Act. He had come to Court to give evidence on summons to produce records. He produced Ex.D-7W1/1 to D-7W1/4.

In the cross-examination he would state :-

"The Urban Land (Ceiling & Regulation) Act came into force in 1976. The Competent Authority under the said Act was constituted in the year 1976 and all the record brought by me pertain to the year 1976 and thereafter.

Q. From the entire record that you have brought, can you point out any signatures of 'Smt. Uma Devi w/o Mr. Hari Krishan'?

(Mr. Arun Mohan says that defendants No. 1 & 7 and their counsel may assist the witness to go through the record and answer the question put).

Ans. I have not brought the file of Smt. Uma Devi. The summoned record does not contain any signatures of Smt.Uma Devi."

4. One Mr. Mathura Pershad was examined as D-7W/2. It is stated that he was an employee of Victor Cable Corporation. In the chief examination he would state :-

"I was employee of M/s. Victor Cable Corporation from 1956 upto 1980. Mr. Hari Krishan,Mr.Brij Krishan, Mr. Chander Krishan, Mr. Gopal Krishan and Mr. Avtar Krishan were partners of the said firm. The suit property is owned by plaintiff and defendants No.1-3 and mother of defendant No. 5. The aforesaid partners had appointed me as a rent collector to collect rent in respect of Joshi Road property. I used to collect rent of Joshi Road property also. The receipts Ex.DW7W2/1 to Ex.D7W2/8 pertain to the tenant M/s. Panna Lal Girdhar Lal Pvt. Ltd. defendant No.7. The receipts are not signed by the owners of the property. I executed these receipts on behalf of the owners. The receipts pertain to a room in back portion of suit property."

Through him, Ex.D-7W/1 to D-7W2/8 stated to be receipts signed on behalf of the co-owners evidencing the payment of rent. In the cross-examination, he would state:-

"The dimensions of the room for which the receipts were given were approximately 15' x 20'. During the years 1974, 1975 and 1976 I was employee of M/s. Victor Cable Corporation which was a partnership firm. Upto the year 1975 S/Shri Hari Krishan, Brij Krishan, Gopal Krishan, Chander Krishan and Avtar Krishan were partners of the said firm. In the year 1975 Mr. Hari Krishan had retired from the partnership, but I do not know whether he filed any suit in that regard or not. Smt. Uma Devi is wife of Mr. Hari Krishan Gupta. I do not know whether for 2 or 3 years prior to the retirement of Mr. Hari Krishan any disputes were pending between Mr. Hari Krishan and his brothers. From the year 1972 onward Mr. Hari Krishan rarely used to come to the business premises of M/s. Victor Cable Corporation.

Q. Can you point out to any attorney or writing or authority of Smt. Uma Devi entitling you to issue the receipts in question?

Ans. I was not given any authority by her.

I did not take any cheque in the name of Smt. Uma ,Devi. The big hall which is situate on the right of the building when you enter, was not let out to M/s. Panna Lal Girdhar Lal Pvt. Ltd., defendant No.7. I never paid the rent received from defendant No. 7 to the ladies. There was no question of my obtaining receipts from the ladies as I never paid any amount of rent to them in respect of receipts Ex.D7W2/1 to Ex.D7W2/8. It is incorrect to suggest that I wrote the receipts on the asking of Mr. Brij Krishan Gupta. It is further incorrect to suggest that he asked me to execute these receipts by representing that the receipts were required for income-tax purposes."

A reading of the evidence would show that he has not been able to tell the Court truth and the documents marked through him have not at all been proved and they do not help the 7th defendant at all.

5. Mr. Brij Krishan Gupta was examined as D.W.1. His examination in chief was recorded on 1.9.1994. In the chief examination, after referring to the purchase of the property, he would state:

"In 1973 the said portion, which was handed over to the owners, was let out to the company M/s. Panna Lal Girdhar Lal Pvt. Ltd. by the owners at the rental of Rs. 100/- per month."

According to the witness, D-7W/2 Mr. Mathura Pershad was receiving the rent from the 7th defendant Company and also from other 13 tenants. He would state:-

"He was issuing receipts on behalf of the owners to all the tenants. Some of the receipts which Mathura Dass had issued are Exs.D7W3/2 to D7W3/6. I identify the signatures on those receipts as I am familiar with the signatures as the above said person was our employee in the firm-Victor Cables Corporation for a number of years. The rent so collected by Mathura Prasad used to be reflected in the books of accounts of Victor Cables Corporation and the account was opened in the books of accounts of the said partnership firm under the head "Joshi Road Property Account". The rent was being so deposited in such account in the books of accounts of the said firm earlier in the name of the previous firm since 1959 and thereafter in the name of the Victor Cables Corporation. I have brought the books of accounts of the Victor Cables Corporation in the years 1973-74 and 1974-75 which are cash books and entries do appear in the said books of accounts with regard to the deposit of said rent."

He also exhibited the order by the Company Court Ex.D7W3/7.

6. A reading of the cross examination would show that the witness is not prepared to tell the truth. He has not been consistent in what he has been saying and he has proved himself to a person whose evidence cannot at all be relied on. In the chief examination, he would state that the rent paid by the 7th defendant Company was reflected in the accounts. In the cross examination, he would admit that that is not correct. He would state :-

"Q. During the period 3.8.1973, till 31.3.1976, did defendant No. 7 company have any bank account?

Ans. Yes.

Q. Can you state any reason why the rent for the premises does not figure in any bank account?

A. The company used to pay the rent in cash on monthly basis and the same was collected by Mathura Prasad who was collecting the rents of the suit premises from the company Victor Cables Corporation and other tenants right from inception in the year 1957. These rents received were deposited in an account known as Joshi Road property account and which was an account opened in the books of Bhagwan Das Babu Ram, which was renamed as Victor Cable Corporation."

When a question was put to him whether he could point out a single document granting lease to 7th defendant by the plaintiff Smt. Uma Devi, he would give an evasive reply.

"Q. Can you point out a single rent receipt or lease document signed by the defendant (Uma Devi) either granting defendant No. 7 the tenancy, or herself receiving any rent?

A. All the receipts were issued to all the tenants duly authorised by the five co-owners and later in the name of five co-owners to all the tenants."

He would further assert :-

"Q. Mr. Brij Krishan, my question remained answered please point out to any document signed by the plaintiff (Uma Devi) either granting a lease to defendant No. 7 or herself receiving any rent from defendant No. 7?

A. The tenancy was oral and there was no documents of lease. And further, no receipts were signed by her, i.e. by the plaintiff. I can say that receipts were never signed by the co-owners, but were signed by Mathura Prasad, who was the authorised person. There was no direct payment to Uma Devi."

The claim of 7th defendant that the rent was Rs.100/- and that was agreed by the co-owners is proved to be absolutely false. D.W.1 would say:-

"Q. Kindly see para 22 of your reply to IA 1105/82 at pp2:077, are the words `the rent of Rs.100/- included the amenity of electricity, consumed also', correct?

A. There was hardly any consumption, of electricity in the two rooms given to the defendant No. 7 company and the rent of Rs.100/- which was paid to the co-owners at Rs.100/- per month was inclusive of all electricity consumed.

Q. What about water charges, were they also included?

A. Yes, but there was hardly any water to be consumed.

Q. Victor Cable Corporation was paying what rate of rent in 1958?

A. Rs. 340.50p per month.

Q. And in 1968.

A. The same rent continued.

Q. And in the year 1978.

A. The same rent continued."

It can also be noticed that there is no evidence of surrender by Victor Cable Corporation, who was the old tenant, to the co-owners. When question was put about the assessment of Income Tax, Wealth Tax and House Tax Authorities, he would say:-

"Q. Can you deny the suggestion that in the Income tax and wealth tax assessment of each of the five co-owners (including Viola Devi) for the period 1968 to 1973, no part of Joshi Road property ever figured as being `Self Occupied'?

A. I cannot say about the co-owners.

Q. Can you deny the suggestion that in the House Tax assessment of the property during the period 1968 to 1973 no part of the Joshi Road property ever figured as being 'owner O UPIED'?

A. I do not know. I cannot say anything.

The witness has also not been able to say about the business activity:-

"Q. Can you refer to any official record of the owners carrying on any activity at Joshi Road during the period 1968 to 1973?

A. I cannot refer to any record."

The 7th defendant had also produced a receipt, alleged to have been issued by Jaswanti Devi on 29.6.1974, when she had expired in 1973 itself. When confronted, he would rattle, and would say :-

"Kindly examine the first alleged Rent receipt Ex.D-7 W2/1 (pp 3:039) for the period 1.4.1974 to 30.6.1974, and sate where was Smt. Jaswanti Devi residing on the date of this receipt (29.6.1974)?

A. She died in 1973.

Q. I put it to you that the receipt was issued in the dead person's name, because when you fabricated this as an ante-dated document, you forget to co-relate the date of Jaswanti's death?

A. I deny the suggestion."

About the creation of tenancy, he would say:-

"Q. You claim the creation of the alleged tenancy on what date and which place?

A. From August, 1973, but the exact date I do not remember. As far as the place is concerned, I also do not remember."

He was also not in a position to give straight forward answers :-

"Q. The rent for the month of August 1973, you claim to have paid, to who and how, and against what document?

A. The company paid the rent in cash to Mathura Prasad who was the authorised person by the five co-owners. Eldest son of late Mrs. Jaswanti Gupta who issued the receipts in favour of the company and the same is entered in the books of account of the company, i.e. defendant No. 7company. The plaintiff has also shown the rent received in her income tax returns which were filed by way of affidavit in suit No. 235/76 before this Hon'ble Court."

Not being satisfied with projecting a receipt by a dead person, the 7th defendant would go to the extent of stating that a minor was party to an oral agreement:-

"Q. Now, tell us on 1.8.1973, was Jaswanti's son Balraj was a minor?

A. I do not know.

Q. I put it to you that your brother's son Balraj whose mother was Jaswanti,his date of birth is 27.9.1957?

A. I cannot say anything.

Q. I put it to you that Balraj was a minor on 1.8.1973, and there was no question of letting on behalf of a minor. Do you wish to say anything in this regard?

A. The lettings were conducted even after the death of Jaswanti and subsequently all the receipts were issued in the name of four ladies and one son of Jaswanti Devi."

It was also put to the witness that the trade name Victor Cable Corporation was being used by the 7th defendant and there was no sales tax number obtained by the 7th defendant for carrying of business:-

"Q. Can you deny the suggestion that during the period 3.8.1973, till the filing of the suit, the letter head of PLGL (P) Ltd. defendant No. 7 company showed the telegraphic address as VICTORCABL?

A. No.

Q. Can you state in whose name this telegraphic address was allotted?

A. It was in the name of Victor Cable Corporation.

Q. Can you deny that for the last 10 years, there is no sales tax number or any other official license/ permission in respect of any business of which PLGL may have carried on at Joshi Road?

A. As far as I can remember, it has not been cancelled so far."

His way of answering questions would also give an idea about the veracity of his evidence. He would say:-

"Q. Can you deny that the Auditor's report of Defendant 7 Company for the period ending 30.6.1976 records that the company has not maintained proper record to show full particulars and situation of its assets?

A. I do not know.

Q. Can you point out any U.L. (C & R)Act return signed by Uma Devi which acknowledges the grant of the alleged tenancy to defendant 7 Company?

A. I do not know."

He would also admit :-

"Q. Are you claiming any direct payment of any rent at any time to Uma Devi, if so, give details?

A. No. No direct payment was made.

About the affairs of the Company, he would say:-

"Q. The latest (last) balance sheet and Annual Return of PLGL that has been filed with the ROC is for which year? (Last audited balance sheet is dated 30.6.1987).

A. I do not remember at present.

Q. What has been the annual turn over of defendant 7 Company from the year 1988 onwards?

A. I do not know."

He would also admit that he informed the Sales Tax Department that no business was being done by the 7th defendant Company :-

"Q. I put it to you that you informed the sales tax department that no business was being carried at Joshi Road, what do you say?

A. I did inform at the stage when V.C.C. was sold."

It was suggested to him that 7th defendant was never inducted as a tenant at the Joshi Road premises.

7. On behalf of defendants 3 and 5, Mr. M.N. Krishnamani, the learned senior counsel, cross examined D.W.1. He would even feign ignorance about the remuneration of the directors :-

"Q. How much remuneration the Directors are drawing in the last 10 years approximately?

A. All the Directors were having their own shares as per the directions of the company."

He is not able to say the number of employees and the salaries received by them :-

"Q. How many employees are working in your company now?

A. A couple of employees would be there. The manufacturing had been stopped long ago.

Q. What are the salaries they are getting now?

A. I do not know."

A question was put to him about the collection of rent after 1980, the witness would say:-

"Q. After Mathura Prasad left V.C.C. on 1980, in the last 17 years, who is collecting the rents are paid?

A. Nobody is collecting rent from any tenant, whatsoever, because the dispute is going on because the suit is still pending from 1979."

8. It was submitted by Mr. Arun Mohan, the learned counsel for the petitioner that it is well known that creation or existence of tenancy rights at a nominal rent, greatly denudes the value of the property in the hands of the owner. It is difficult to believe that a co-owner would create a tenancy of valuable property in favour of a private limited company controlled by another co-owner without executing a single document. The submission is not without force.

9. On a consideration of the evidence, I am very clear in my mind that the 7th defendant has not produced any evidence to prove the tenancy. Accordingly, the claim of tenancy by the 7th defendant is rejected.

10. Under these circumstances, the issue is answered against the 7th defendant and the plaintiff shall be at liberty to apply for passing of a final decree. The plaintiff shall be entitled to pende-lite mesne profits and interest against the 7th defendant. The plaintiff shall be entitled to make appropriate application in this behalf.