Maha Singh vs Shri Anand Singh Mann
2004 Latest Caselaw 1409 Del

JUDGMENT

Vikramajit Sen, J.

1. By these Orders I shall decide two Objections that have arisen touching upon the maintainability of the suit. Mr.Rana, learned counsel appearing for the Plaintiff has placed reliance on the following judgments such as AIR 1936 Patna 231, AIR 1956 Hyderabad 118, AIR 1932 Allahabad 485, AIR 1926 Rangoon 71, AIR 1975 SC 1810, AIR 1967 SC 436, AIR 1977 Karnataka 173, AIR 1930 Allahabad 446, AIR 1954 Madras 83, AIR 1977 SC 1823, AIR 1918 Bombay 188, (1908) 35 Cal. 551, AIR 1929 Cal, 588, AIR 1968 SC 534 AIR 1971 MP 172, AIR 1950 Privy Council 68, 1994 (1) CCC 94, 1998 (8) SCC 623, AIR 1988 Allahabad 303, 1994 (4) SCC 396, 59 (1995) DLT 667, 1981 (2) RLR 278, AIR 1979 MP 153, 1987 RLR 262, AIR 1987 Delhi 165, AIR 1995 AP 423, AIR 1992 Delhi 118, 67 (1997) DLT 576, AIR 1980 Punjab and Haryana 25, AIR 1956 Punjab 230, AIR 1960 AD 535, 1992 DLT 530, AIR 1960 SC 335, AIR 1982 Delhi 520, AIR 1964 SC 497, 1971(1) SCC 597, AIR 1991 JandK 1, 1997 (III) AD Delhi 626, 1991 (3) Delhi Lawyer 350, 1991 RLR 239, 1998(44 DRJ 502, AIR 2000 Delhi 92, 2004 (1) AD (SC) 406.

2. I shall restrict discussions to Sanjay Kaushish Versus Kaushish and others, , since learned counsel for the Plaintiff has not been successful in showing the relevancy of several cases mentioned by him and because a number of decisions have been considered in this judgment. In most of the cases the decisions proceed on the basis that the properties in question were joint family (HUF properties). This question is hotly in dispute in the present case rendering those judgments to reduced relevance. I shall also accept that the normal rule is that averments made in the Plaint must be taken at their face value until the final disposal of the suit.

3. So far as the factual matrix in the Kaushish's case (supra) is concerned, a reading of the judgment leave no manner of doubt that it was not in contest that the properties belonged to the joint family. The dispute was between the father/Defendant No.1 and his sons. The father was admittedly the Karta of the HUF. It is in that context that the observations in paragraph 43 must be viewed. The learned Judge has stated that ''the well settled principle of law is that if a particular document or decree is void the person affected by the said document or decree can very well ignore the same and file a suit seeking substantive relief which may be available to him without seeking any declaration that the said decree or document is void or any consequential relief of cancellation of the same.'' Mr.Rana had also drawn my attention to a decision where it had been held that a person need not seek a Declaration in respect of a Sale Deed which was executed while that person was a minor and that the Supreme Court has gone into the question of validity of the Relinquishment Deed without insisting on the filing of the suit for Declaration. These decisions would not caste any light on the conundrum which has arisen in this case, namely, where property stands in the exclusive name of one person, is it not mandatory for any other person seeking to enforce a titular right in that property to pray for a Declaration which tantamounts to annulling the Title Deed.

4. The property in question is 30, Community Centre, Ashok Vihar, Delhi which is owned exclusively by Defendant No.1 who is the younger brother of the Plaintiff. It is not controverter that the bid of Defendant No.1 for Rs.36,200/- was accepted by the Delhi Development Authority and a Perpetual Lease Deed of the plot was registered on 5.7.1972 solely in his favor. The asseveration that the super-structure thereon was constructed pursuant to the sale of the property of the wife and son of Defendant No. must be disregarded at this stage as it is a matter which perforce can be established after the Trial. The same principle would apply to averments contained in the Plaint, with the exception that the Court is not precluded from refusing to consider statements of fact which in its view are wholly unsubstantiated. The Court is not an idle, docile and mindless spectator which is powerless to bring frivolous litigation to a early end. The Court is also not a slave of procedure being helplessly bound to permit protracted and time-consuming litigation to come to an end only on the delivery of a final judgment. It is true that mini trials have to be abjured but that is in respect of assertions of fact which contain germs of possible success after Trial.

5. The Plaintiff's case is that he along with Defendant No.1 comprised a joint family and that the suit property was purchased from joint family funds. However, beyond this ipse dixit, there is no evidence available to support this assertion. I am fully mindful that at this stage of the proceedings, it would be improper for me to chose between to plausible cases. The unsurmountable obstacle in the way of the Plaintiff is that the suit must fail even at this stage on legal grounds. In the Plaint it has been stated that the suit property was purchased in 1969 from ancestral funds and was owned jointly. Ancestral agricultural land was, however, mutated in the individual/separate names of the brothers, even though no partition had taken place. Despite the Plaintiff being the elder brother, he kept requesting for a partition which request fell on deaf ears, eventually necessitating the issuance of a legal notice. A reading of the prayer clause shows that the relief was directed only towards the Ashok Vihar property despite the Plaintiff's stand that all properties are jointly owned by the brothers. It is beyond the pale of dispute that their grandfather left behind approximately 400 bighas of land which were divided equally between their uncle (Tau) and their father. Upon the enforcement of the Delhi Reforms Act, 1954 ownership of agricultural land vanished. Consolidation of the agricultural holding resulted in 110 bighas coming to the share of the Plaintiff and approximately 66 bighas falling to the Defendant's share which the latter has sold and in which sale the Plaintiff has not claimed or received any share.

6. The following admission on the part of the Plaintiff is contained in IA No.8966/1987 ''that it is significant to submit here that the suit property, namely, 30, Central Market, Ashok Vihar, Delhi was purchased out of the Joint Hindu Family funds belonging to the Joint Hindu Family of the plaintiff and the defendant. That the said H.U.F. property belonging to the plaintiff and the defendant in equal shares was rented out to the Bank of Baroda comprising of basement, ground floor and mezzanine floor at a monthly rental of Rs.11,500/- w.e.f. September, 1973. The defendant since the inception of the said tenancy has been Realizing the rents and is appropriating to himself to the exclusion of the plaintiff..'' A reading of this application will disclose that it is replete with statements to the effect that the Plaintiff has been totally excluded from the benefits/usufruct of the suit property since 1973.

7. The present suit has been filed in May, 1986 and came up before Court for the first time on 13.5.1986. The Plaint bears the date 7.5.1986. Therefore, if the cause of action had arisen for the first time on a date, twelve years prior thereto the suit would be barred by time. Reverting back to the Plaintiff's filing in IA No.8966/1987, there can be no gainsaying that the cause of action first arose in September, 1973 on the exclusion of the Plaintiff from a share in the rental of a portion of the suit property. It is certainly arguable that the cause of action arose prior thereto when the suit property was purchased in the exclusive name of Defendant No.1 who, at no point of time, was the Karta of the HUF which existed according to the Plaintiff. I am taking into consideration the assertions of the Plaintiff himself and therefore, no mixed question of law and fact arises which must be decided only after evidence is received.

8. I have given the matter careful thought but I am convinced that the Plaintiff ought to have prayed for a Declaration to the effect that although the property stands in the exclusive name of Defendant No.1, it is joint family property in which the Plaintiff enjoys an equal share. If this prayer had to be made, it would have to be within three years of the execution of the Lease Deed in favor of Defendant No.1 unless of course the benefits/income/usufruct of the immovable property was jointly enjoyed by the parties. It is only in such an event that the cause of action may have arisen on some other or later date i.e. whenever that status quo was altered by Defendant No.1. It is for this reason that all the precedents relied upon by learned counsel for the Plaintiff, that the cause of action can arise from time to time, is of no avail or benefit to the Plaintiff. It is legally untenable to contend that where the cause of action recurs from month to month or time to time, it would have the effect of obiterating the first date on which the cause of action has arisen. That date remains indelibly and implacably fixed. In contradistinction, if property stands in the name of the Karta of the HUF, this fact would not defeat or detract from its possible character as HUF property. It is undeniably permissible in law for members of HUF to individually own properties also. This is the ratio of the Kaushish case (supra), as I understand it. In this analysis, therefore, it was imperative for the Plaintiff to have prayed for the passing of a decree Declaring that the suit property was jointly owned by the Plaintiff and Defendant No.1. As already mentioned beyond the ipse dixit and self serving pleading of the Plaintiff, which has been expressed for the first time in the Plaint, there is no direct or indirect evidence presented or mentioned by the Plaintiff indicating prima facie that the suit property was treated as a joint property. Great store has been laid by the Plaintiff on a letter dated 4th August, 1976 but for it to attain legal significance it should contain an admission on the jointness of the suit property, which it does not. Families can reside jointly without joint ownership of all immovable properties.

9. In these circumstances, the suit is dismissed as being time barred. It is also dismissed since the Plaintiff has failed to pray for the passing of a decree declaring the suit property to be joint family or joint property.

10. All pending applications also stands disposed of accordingly.