Jai Bhagwan Gupta vs Smt. Bhago Devi And Others
2001 Latest Caselaw 502 Del

ORDER

A.K. Sikri, J.

1. The plaintiff has filed the Suit for partion and rendition of accounts. The plaintiff is the son of defendant no.1 who is his mother. Defendants 2 to 5 are brothers of the plaintiff and defendants 6 to 9 are the sisters of the plaintiff. The plaintiff and the defendants 1 to 9 are the legal heirs of Shri Balwant Rai who died at Delhi on 31st March. 1986. It is stated in the plaint that Shri Balwant Rai was the owner of two properties namely,

1. Property No.X/431 (old No.266) Ram Nagar, Gali No.1, Gandhi Nagar Delhi. This property was constructed on a plot of land admeasuring 80 sq.yds by Shri Balwant Rai after having purchased the same from the previous owner.

2. A house in village Deorah, Tehsil Kaithal (Haryana), constructed on a plot of land admeasuring 225 sq.yds.

2. It is further stated that Shri Sulekh Chand father of Shri Balwant Rai and grand father of the plaintiff and defendants No.2 to 9 and father-in-law of defendant no.1 was owner of two properties namely (a) two shopts constructed on an area of approximately 100 sq.yds.; and (b) a house constructed on an area of 250 sq.yds. in village Deorah, Tehsil Kaithal (Haryana). On the death of Shri Sulekh Chand these properties being ancestral properties came t o be owned by Shri Balwant Rai and his sons as coparceners. Thus, Shri Balwant Rai and his sons as coparceners Thus, Shri Balwant Rai had 1/6th undivided share in these ancestral properties while the remaining 5/6th share was ownerd by the plaintiff and defendants no.2 to 5 n equal individuate shares i.e. 1/6th share each in their own right. The said properties are jointly owned and possessed by the parties.

3. According to the plaintiff, Shri Balwant Rai died inteste and on his death his estated devolved upon the parties tot he Suit as they are Class I legal heirs in equal undivided shares.The plaintiff accordingly claims 1/10th share in the two properties left by Shri Balwant Rai as well as 1/10th undivided share in Balwant Rai's 1/6th undivided share in the ancestral properties at Village Deorah, Tehsil Kaithal (Haryana) as mentioned above.

4. The defendants filed their written statement and denied the various averments made by the plaintiff in the suit. It is alleged in the written statement that there is no joint family property and as such Suit for partition was not at all maintainable. The Suit was filed simply to harass the defendant no.1 who was 75 Years of age. Apart from number of legal objections to the maintainability of the suit, on merits it is stated that plaintiff is not at all in possession of any portion of the property and as such for a suit for partition he had to fix court-fee on the share, which he assesses to be his share. In the instant case the plaintiff has assessed his share to be Rs.1,00,000/- in the property and Rs.10,000/- in the income of the properties, so the court-fees was to be paid on Rs.1,00,000/- advalorem, but the plaintiff has affixed the Court-fee of Rs.40/- only and as such the plaint should be rejected on this ground alone.

5. In so far as the property in Delhi is concerned it is stated in the written statement that the same was never owned by Shri Balwant Rai and it was in fact purchased on 2nd day of July, 1973 by Shri Amar Chand, defendant no.5 with his own funds. Although sale deed was not registered at that time, all documents including agreement to sell, power of attorney, receipt, were executed by Smt. Lakshmi Devi and others in favor of Shri Amar Chand only. After the purchase of the said plot defendant no.5 even constructed two rooms, bath and Kitchen on the said property/land with his own funds. Further constructions were also done in stages by him on these funds. On 2nd June, 1988 the defendant no.5 sold the said property for his own bonafide needs to Shri Sri Ram-defendant no.2, shri Ram Kumar-defendant no.3, shri Veer Bhan-defendant no.4, and Smt. Kala Wati for a consideration of Rs.45,000/- and executed all necessary documents in their favor. Smt. Kala Wati, wife of defendant no.5 who sold her 1/4th share in favor of defendants 2 to 4 for a consideration of Rs.80,000/- on 28th January, 1991. These defendants (nos.2-4) became the owner of the property in question after purchasing that property from defendant no.5.

6. Following issues were framed on the basis of pleadings:-

1. Whether Balwant Rai was the owner of property No.X/431 (Old No.266), Ram Nagar, Gali No.1, gandhi Nagar?

2. Whether the said property no.X/431 was purchased by defendant no.5 from Smt. Laxmi Devi and others on 2.7.73 and he raised construction thereon with his own funds as alleged?

3. Whether defendant no.5 sold said property no.X/431 to defendants 2,3 &k 4 and Smt. Kalawati on 22.6.88 and Smt. Kalawati further sold her 1/4th share to defendants 2,3 & 4 on 28.1.91, as alleged?

4. Whether the ancestral as well as the properties owned by Balwant Rai in village Deorah, Tehsil Kaithal (Haryana) were sold with the consent of he plaintiff and defendants 2 to 5 to perform the marriage of defendant no.9 in 1989, as alleged?

5. Whether proper court fee has not been paid by the plaintiff?

6. Whether the plaintiff separated himself from the family during the life time of Balwant Rai and received his share in ancestral property in cash?

7. Whether the suit is bad for non-joinder of the parties?

8. Relief.

7. Thereafter when the case was listed for admission and denial of documents, defendants stopped appearing and were proceeded ex-parte by Order dated 17th February, 1999. Plaintiff led evidence by filling affidavit.

8. At the time of arguments, learned counsel for the plaintiff submitted that since properties at Village Deorah, Tehsil Kaithal, Haryana have been sold to third persons he was not pressing his claim in respect of those properties and confined the claim to the share in the property at Delhi namely, property no.X/431 (old No.266) Ram Nagar, Gali No.1 Gandhi Nagar, Delhi.

9. The plaintiff has claimed that Shri Balwant Rai, husband of defendant no.1 and father of plaintiff and defendants 2-9 was the owner of this property. On the other hand, the defendants in the written statement have averred that this property was purchased by defendant no.5 out of his own funds and were subsequently sold to defendants 2 to 4 and Smt. Kala Wati for valid consideration. It may be mentioned that the defendants filed photocopies of certain documents as per which the previous owner of the Suit property namely, Smt. Lakshmi Devi entered into agreement to sell this property with defendant no.5. Shas has executed affidavit dated 9th July, 1973 to this effect. There is a receipt of Rs.10,000/- which is dated 2nd July, 1973 as per which the plot in question has been sold to defendant no.5. Documents like agreement to sell, general power of attorney, affidavits, will etc,are executed in favor of defendant no.5. However, these documents are not proved by means of any evidence.

10. In any case, when the plaintiff claims that his father Shri Balwant Rai was the owner of the Suit property, the burden was on the plaintiff to prove the same. The plaintiff has filed photocopies of tax assessments of the Suit property as per which the name of "owner or tax payee" is shown to be Shri Balwant Rai i.e. father of the plaintiff. However, these are only photocopies of the documents. Plaintiff has led no evidence to prove these documents or summon records from the Municipal Corporation of Delhi. Significantly, even in his affidavit, apart from an averment to the effect that Shri Balwant Rai was the owner of the property in question, no reference is even made to these documents. Therefore, plaintiff has miserably failed to prove that Shri Balwant Rai was the owner of the property in question. The aforesaid discussions lead to the following findings against each issue:-

Issue No.1.

The Plaintiff ha not been able to prove that Shri Balwant Rai was the owner of the Suit property No. X/431 (Old No.266) Ram Nagar, Gali No.1, Gandhi Nagar, Delhi. This issue is therefore decided against the plaintiff.

Issue Nos.2,3,5,6&7

The onus to prove this issue was no the defendant. They have however led no evidence and therefore these issues are decided against the defendants.

Issue No.4

In view of the plaintiff not pressing his claim in respect of properties of Village Deorah, Tehsil Kaithal (Haryana) no findings are required to be given on this issue.

Issue no.8

In view of the findings on Issue no.1 above, the Suit of the plaintiff fails. He is not entitled to any relief. The suit is accordingly dismissed. Since defendants were proceeded ex-parte, the shall be no order as to costs.