Bipin Gupta & Others vs Laxmi Narain Gupta & Others
2001 Latest Caselaw 880 Del

ORDER

Vijender Jain, J.

1. Along with the suit, this application was also filed for interim directions. The Court on 9.3.2000 granted ex parte stay in terms of the prayer made in the application. The prayer in the said application was to the following effect:

"(i) defendants be directed no to create any third party interest in the properties in dispute or any part thereof as shown in Schedule of Properties by way of mortgage or in any other manner. Further, the defendants be directed to maintain status quo."

2. Along with the plaint schedule of properties has also been filed by the plaintiff. Learned counsel for the defendant has contended that no stay could have been granted by the Court in relation to the property bearing House No. 12, Sadhna Enclave, Malviya Nagar, Delhi and property bearing House No. 34, Sadhna Enclave, Malviya Nagar, Delhi and shop bearing municipal No. 1142, Chandni Chowk, Delhi out of the said properties. Learned counsel for the defendants has contended that these properties were the property of the defendants in their own right, same having not been derived out of the joint fund of the Joint Hindu Family of late Ram Niwas Gupta or from the funds of Ram Niwas Gupta. It was contended that the suit is an abuse of the process of law as during the life time of late Ram Niwas Gupta the father of the plaintiff Manmohan Gupta was not living with the family of Ram Niwas Gupta as per the registered will of Ram Niwas Gupta in favor of his wife Smt. Lilawati. It was further contended that in relation to the property bearing No. 12, Sadhna Enclave, Malviya Nagar, Delhi initially member of the society was Munna Lal Gupta, who was the husband of defendant No. 7. Munna Lal Gupta transferred his share in the society in favor of Smt. Kapuri Devi and Smt. Kapuri Devi transferred the same in the name of Laxmi Narain Gupta, defendant no. 1. It was further contended that similarly property bearing no. 34, Sadhna Enclave, Malviya Nagar, Delhi is the property belonging to the father of defendants 2 to 6, late Naval Kishore Gupta and the lease deed was also executed in favor of late Naval Kishore Gupta. It was also contended that shot at Chandni Chowk was purchased by Naval Kishore Gupta, father of defendants 2 to 6 in the year 1974. It was contended before me by learned counsel for the defendant that from bare perusal of the Will it would be clear that it was only out of respect and reverence for his father that the name of the firm was Ram Niwas Naval Kishore, although Ram Niwas had no role in the shop in question.

3. Controverting the arguments of the learned counsel for the defendant, counsel for the plaintiff has contended that share certificate in the name of Munna Lal Gupta was also to circumvent the provisions of the Urban Land Ceiling Act and the money was paid out of the funds of family of Ram Niwas Gupta. It was also contended that it was simply a device to have the plot bearing no. 12, Sadhna Enclave, Malviya Nagar, Delhi in the name of family members as it would be evident from the share certificate that Munna Lal Gupta who sold his share on 2.12.1963 on the same day the share certificate was transferred in the name of Laxmi Narain Gupta, defendant no. 1 from Smt. Kapuri Devi. Counsel for the plaintiff further contended that the house-tax was paid in relation to the property no. 12, Sadhna Enclave, Malviya Nagar, Delhi by the firm Laxmi Narain Ram Niwas vide document at page 88 of the paper-book. Learned counsel for the plaintiff also contended that no reliance can be placed on the registered Will as on the face of it is clear that the same has been only produced by the defendants during the currency of the present proceedings, although the alleged Will is of November, 1967. It was further contended by counsel for the plaintiff that Ram Niwas Gupta died in August, 1967, although the Will has been registered in the month of November, 1967. Learned counsel for the plaintiff also contended that property no. 34, Sadhna Enclave, Malviya Nagar, Delhi was similarly purchased out of the funds of the joint family of Ram Niwas Gupta and, therefore, the plaintiff has got a share in the said property. Similar is the arguments advanced by counsel for the plaintiff with regard to the shop at Chandni Chowk.

4. I have given my careful consideration to the arguments advanced by learned counsel for the parties. Prima facie, I do not find any force in the arguments advanced by counsel for the plaintiff in relation to property no. 12, Sadhna Enclave, Malviya Nagar, Delhi and property no. 34, Sadhna Enclave, Malviya Nagar, Delhi. When the plaintiff has alleged that those properties were purchased by Ram Niwas Gupta, plaintiff ought to have placed on record certain material which could indicate prima facie that property was purchased by Ram Niwas Gupta from the joint funds of the family. On the contrary nothing has been placed either on record or has been shown to me which would, prima facie, indicate that property no. 34, Sadhna Enclave, Malviya Nagar, Delhi was purchased by Ram Niwas Gupta in his own name or in the name of somebody else for the use and enjoyment of the family out of the family funds. Now reverting back to the property no. 12, Sadhna Enclave, Malviya Nagar, Delhi on which argument and counter arguments have been addressed by counsel for the parties, the share certificate is in the name of Munna Lal Gupta. Munna Lal Gupta is the husband of defendant no. 7, Smt. Satyawati who was the daughter of Ram Niwas Gupta. Once a share certificate is in the name of a person and there is nothing on record to show contrary, the presumption is that it was Munna Lal Gupta who was the member of the society and would have ultimately and lawfully could have transferred his membership to any person. In the instant case he transferred the membership as per the documents on record first in favor of Smt. Kapoori Devi and on the same day in favor of Smt. Kapoori Devi and on the same day in favor of Laxmi Narain Gupta, defendant no. 1. The ownership of Laxmi Narain Gupta has not been challenged by anybody from 1963 till date except for the first timed in the present suit. As far as payment of house-tax is concerned by M/s. Laxmi Narain Ram Niwas which according to the plaintiff was a firm that stand was controverter before me by the defendants that there is no such firm in existence as name of municipal record has incorrectly shown as Laxmi Narain Ram Niwas. It ought to have been Laxmi Narain s/o Ram Niwas. As I am dealing with the matter without any admission/denial of the documents and just to dispose of the interim application, prima facie, from this receipt it cannot be held that property bearing no. 12, Sadhna Enclave, Malviya Nagar, Delhi was a property of joint family. As a matter of fact it gives more credence to the stand taken by defendant. Once Laxmi Narain Gupta became the owner of the plot after the same having been transferred, the house-tax was paid by Laxmi Narain Gupta whether in his name or in the name of the defendant. There is nothing on record to show that even if it is assumed that Laxmi Ram Niwas is a firm, plaintiff has any share in it. Therefore, judging from any angle, I do not find any substance in the arguments of the learned counsel for the plaintiff on this score.

5. Coming to the last arguments which was also a bone of contention between the parties, the execution of Will by late Ram Niwas Gupta in favor of his wife who did not leave any Will. Ram Niwas Gupta died in the year 1967, his wife died in the year 1977. The effect and the genuineness shall be seen after the issues are framed, documents are admitted and denied and evidence is led by the parties.

6. Chandni Chowk property which is a shop where the business of Ram Niwas Nawal Kishore is being carried out according to counsel for the defendant the same was the sole proprietary-ship concern of Nawal Kishore Gupta, who died in 1999 and thereafter it is the concern of sons of Naval Kishore Gupta and plaintiff has nothing to do with the same. As I am not relying upon the Will, at this stage, it will be interest of justice that the interim order of not creating any third party interest in the shop at Chandni Chowk be maintained.

7. Nothing said earlier would be an expression of opinion on merits of the case of either party. I modify the order passed on 9.3.2000 in relation to property bearing no. 12, Sadhna Enclave, Malviya Nagar, Delhi and 34, Sadhna Enclave, Malviya Nagar, Delhi only and the interim order granted in relation to property being shop at Chandni Chowk as well as other properties as indicated in the schedule filed along with the plaint are confirmed till the disposal of the suit.

8. Parties to appear before Joint Registrar for admission/denial of documents on 8.10.2001.

9. List this matter in Court for framing of issues on 26.11.2001.