Shri Kg Mal & Another vs Shri Sham Behari Mal (Dead) ...
2001 Latest Caselaw 90 Del

ORDER

A.K. Sikri. J.

1. Parties to this appeal are related to each other. The appellants, who were defendants in the Suit are brothers of respondent (plaintiff in the Suit). Respondent had filed Suit No. 2 of 1997 against appellants in the Court of District Judge, Delhi. This was s Suit for possession, injunction and recovery of damages in respect of ground floor of house No. B-172, East of Kailash, New Delhi. Suit was filed by the respondent/plaintiff on the averment that he was the owner of property No. B-172, East of Kailash, New Delhi as he had purchased the said plot from Delhi Development Authority. President of India executed perpetual lease deed for the plot of land on 8th August, 1969. The plaintiff had allowed his brothers to stay with him on the ground floor of the house when the same was constructed. At that time, respondent was in Madras. In 1980 he decided to shift his family from Madras to Delhi. At that time, first and second floor were constructed in the Suit premises and respondent shifted to first floor. Later relations between the three brothers became strained and the respondent asked the appellants to vacate the Suit property. As they did not vacate, the respondent filed the Suit for possession against the appellants. He also prayed for damages @ Rs.3000/- per month and claimed Rs.2000/- for unauthorised use an occupation for the period of 9th March, 1984 to 10th April, 1984. Suit was contested by the appellants. The main defense of the, appellants was that the house in question was purchased and built out of the common funds of the joint hindu family and from the income of joint business of the parties run at Madras and that the earnest money was paid from the sale proceeds of the gold ornaments belonging to the family which was deposited with the Imperial Bank of India, Bhawalpur State, Pakistan and subsequently received in India through Reserve Bank of India. It was further alleged in the written statement that property was purchased in the name of the respondent to bring him around, who was in bad society, living like a vagabond and he was not the real owner of the property. According to the appellants since it was a joint hindu family property and the appellants were also co-owners therof, the Suit filed by the plaintiff-respondent was not maintainable. Appellants also stated in the written statement that there was family settlement and the Suit property was partitioned as per which ground floor was given to defendant No.1 and first floor to plaintiff and second floor to defendant No.2. But despite the settlement, plaintiff was occupying both first and second floors. Replication was filed by the respondent-plaintiff denying the pleas raised by the appellants in their written statement who maintained that he was the sole proprietor of India Trade Emporium which was subsequently converted into partnership; payment for the plot was made by him form his own resources and construction was alone done by raising loans from Delhi Administration. He denied any family settlement.

2. It may be mentioned at this stage that in the written statement originally filed by the appellants, oral plea of family settlement and partition was taken. However, in 1986, written statement was sought to be amended by incorporating the plea that Memorandum of Partition was subsequently on 25th May, 1979. This amendment was allowed. In the amended replication the respondent took the stand that the alleged Memorandum was a fabricated document.

3. Following issuers were framed by the learned Trial Court:--

1. Whether the defendants are joint owners of the property in dispute?

2. If issue No. 1 is not proved, whether plaintiff is entitled to any damages? If so, to what amount?

3. Whether the plaint does not disclose any cause of action?

4. Whether the suit is not maintainable as alleged in the preliminary objection No.2?

5. Whether the property in question was partitioned between the parties earlier to the filing of the suit?

6. Relief.

3. After recording the evidence and hearing arguments impugned judgment and decree dated 17th April, 1999 has been passed by the learned Trial Court against which the present appeal is preferred. As per this judgment and decree the Suit is decreed with cost. Plaintiff is granted decree for the recovery of possession of the Suit property from defendants 1 and 2 as well as decree for Rs.2000/- towards damages for use and occupation of the Suit premises.

4. Perusal of the judgment and decree shows that the learned Trial Court is the exclusive owner of the property in dispute. There was no partition of the property as alleged by the appellants and the Memorandum of Partition dated 25th May, 1979 was a fabricated document. While recording the aforesaid findings the judgment extensively discusses the circumstantial as well as documentary evidence. The oral evidence is also discussed at length. The reasoning given by the learned Trial Court can be summarised ad under:-

1. The Conveyance deed of the property in question is admittedly in favor of the respondent herein. Thus the plaintiff-respondent is recorded owner of the property in question. In view thereof onus was upon the appellants to prove that it was a joint property or that the property was purchased by appellants in the name of the respondent but the money was paid out of common funds of joint hindu family and from the income of the joint business of the parties run at Madras and from the sale proceeds of gold belonging to the family.

2. The appellants had failed to discharge the onus and to prove that the money for the purchase of the plot and construction of the house was spent out of common funds and the sale of gold ornaments belonging to the family as mentioned above.

3. Admittedly there was no documentary evidence on record from which it can be inferred that the initial payment for the land under the said property was made out of the joint family funds or to show that the subsequent payments were made either from the joint family funds or form the business of the parties carried out by them jointly.

4. In so far as oral evidence led by the appellants are concerned, the learned Trial Court found that various witnesses had given contradictory version in support of the story regarding amount having spent from joint family funds or by sale of gold ornaments.

5. The defendants could not produce any documentary proof regarding receipt gold in Delhi and payment out of business funds. No such efforts were made by the appellants. The relevant discussion in this respect in the impugned judgment and decree is as under:--

"No documentary evidence at all is produced to prove that the gold was received at the Reserve Bank of India from Imperial Bank of Pakistan. Such official record could be summoned form either of the two banks. Further, the banks must have given some kind of documents to the defendants in connection on this transaction. At least a receipt for bank charges must have been issued.

The entry of Rs.6500\- withdrawn from the business of Indian Trade Emporium could be a proof of payment of earnest money out of business funds. Even subsequent payments of Installments could be proved to have been made out of business funds by production of books of accounts. In fact the defendant no.1 himself says that the books can be produced. However, the defendant no.1 does not produce the books.

Thus the defendant could produce documentary proof both the facts, namely the receipt of family gold in Delhi and payment out of the business funds. There was documentary proof of sale which the defendant no.1 says was handed over to his uncle (Mr. M.L. Mukhi) which he cannot product. But surprising fact is that he does not even remember the name of the trader to whom the gold was sold. It could not have been casual transaction. It may, if serious matter for the defendant No. 1 who was displaced person and was struggling for a respectable living.

No satisfactory evidence could be produced by the appellants to show that the earnest money in the land/ property and subsequent Installments towards loan and later for construction of the said house were provided by the three bothers out of joint family fund or from the joint business. Therefore, appellants had failed to prove that they were joint owners of the Suit property.

6. The alleged Memorandum of Settlement dated 15th May, 1979 was fabricated document. In arriving at this finding the learned Trial Court has been persuaded by the following factors:--

A. In the written statement filed initially, the appellants projected oral partition and there is no reference made to the Memorandum of Partition dated 25th May, 1979.

B. In the unamended written statement date of alleged partition/settlement is conspicuously absent.

C. In the application for amendment filed by the appellants for incorporating the plea of Memorandum of Partition dated 25th May, 1979 it was alleged that the Memorandum of Partition was kept with one Mr. Notan Das and after his death this document was handed over by his son to defendant no.1. However, son of late Shri Notan Das appeared as a witness of the appellants/defendants and denied that he handed over this document to defendant no.1. He further stated that no one every demanded the document form him and he did not even heard about its execution.

D. The appellants did not explain as to why the document was treated as secret or guarded one. Normally such settlements should have been immediately presented to all concerned authorities and should have been acted upon by proceedings to get mutation in government and municipal records. Nothing of this kind was done.

E. Had Memorandum of Settlement been in existence it would have been set up as the principal defense since the case of the appellants rested on this document with according to them was a proof not only of the alleged partition but also of the joint ownership. In such a situation behavior of the appellants in not pleading about the document and not producing the same at the very initial stage and also not acting upon the document in getting mutation etc. done clearly indicates that the document was not in existence in 1979.

F. The Trial Court also examined and analysed the reports of the hand writing experts produced by both the parties. Since respondent had denied the signatures on the document onus was on the appellants to prove it. However cross-examination of the hand-writing expert would clearly reveal that it could not be relied upon. Learned Trial Court has reproduced the cross-examination of hand-writing expert (DW-4) wherein he has admitted that the certain points of the alleged signatures heavy deposit of ink is there. He has also admitted that such heavy deposit of ink is not there at photographs of the admitted signatures. He has also admitted that signatures on dispute documents shows hesitant, halty motions giving impression of the double pen pause therein. Thereafter, the Trial Court did the exercise of comparing the disputed signatures with admitted signatures and recorded the following observations.:--

"I have carefully examined the enlarged photos of the disputed and admitted signatures. The halty motions giving impression of the double pen pause in the disputed signatures is not at all similar to pen pauses referred to by the expert in the photo A-21. The discontinuity and halting motions in the disputed signature are quite prominent. The halting motion at point 7 on the photo. A makes the signature entirely different from all the admitted signatures. Another important feature of the disputed signature is the heavy deposit of ink at the very beginning of the signature suggesting pause and hesitation just when the writer put the pen on the paper.

7. The learned Trial Court also decided the question as to whether any partition settlement was ever arrived at. It found that various witnesses produced by the defendants have deposed contradictory to each other. To arrive at this conclusion the learned Trial Court has referred to para 10 of the written statement containing one story about the alleged partition and the version of other witnesses containing entirely cntradictory/different story relating to the plea of partition.

5. Learned counsel for the appellants during argument could not discredit the aforesaid findings and reasonings. His only plea was that since the parties were living together ever since the ground floor on the plot in question was constructed and since there was a joint business of the parties, there was circumstantial evidence to suggest that it was a joint property although purchased in the name of plaintiff to bring him round who was in bad society. Apart from making faint plea that there was no evidence led by the respondent to show that property was purchased by him out of his own funds, the learned counsel could not put forth any argument to show as to how the aforesaid findings recorded by the learned Trial Court, based on evidence on record was erroneous. In fact, there was hardly any argument put forth to shake the credibility of the judgment and decree in appeal.

6. On the other hand, apart from what is discussed in the impugned judgment, there are some more factors which would justify the conclusion recorded by the learned Trial Court. The appellants had moved an application dated 5th September, 1985 before the learned Trial Court for summoning witnesses and "to direct them to produce, if any, document(s) regarding family settlement among above parties". This application being exhibit DW 1/5, name of Shri Sat Prakash Mal, S/o Notan Das is mentioned. Thus, as per this application Shri Sat Prakash Mal was to produce documents regarding family settlement suggesting that this document was still in the possession of Shri Sat Prakash Mal on 5th September, 1985. On the other hand, DW 1 in his testimony has stated that he received this document (i.e. Memorandum of Partition dated 25th May, 1979) form Shri Sat Prakash Mal on 23rd May, 1985. If the document had been received from him on 23rd May, 1985 then where was the question of seeking to get this document produced form Shri Sat Praksah Mal on 5th September, 1985? Moreover, a reading the language of the alleged Memorandum of Partition shows that as if the partition has taken by that very document. This belies the story of the appellants that there was an oral partition which was recorded in the said Memorandum of Patition. Had that been so, some recital to that effect would have existed in the document. Further, when the reading of the document suggests that partition has taken place by that very document, this document pertaining to immovable property required compulsory registration. However, it is neither stamped nor registered and therefore even be looked into in evidence.

7. Result of the aforesaid discussion is that this appeal, which is without any merit, fails and the same is dismissed with costs.