Shri Ramesh Chand vs Shri Tek Chand And Ors.
2004 Latest Caselaw 1234 Del

JUDGMENT

Vikramajit Sen, J.

1. Succinctly stated, the case of the Plaintiff is that the suit property bearing Municipal No.15-C, Vijay Nagar, Delhi is joint Hindu family (HUF) property, having been acquired/adjusted against the value of properties left behind in Pakistan, as a consequence of the Partition. For this purpose reliance has been placed on a letter dated 8.12.1958 addressed by the father of the Plaintiff and Defendant No.1, namely, Late Shri Gosain Lachman Gir to the Settlement Commissioner, New Delhi in which he has inter alia stated that - '' the amount, equal to the value of House No.15-C, Vijay Nagar, Delhi-9 under occupation of my son Shri Tek Chand, may kindly be transferred in his name enabling him to purchase that house''. The Plaintiff asserts that being HUF property it is of little consequence that it stands in the exclusive name of his brother, Shri Tek Chand (Defendant No.1), and the Defendant is entitled to enforce his share thereto.

2. Defendant No.1 is the only brother of the Plaintiff and Defendants No.2 and 3 are their sisters, all the siblings being the children of the said Late Shri Lachman and Late Smt. Bhagwanti. The sisters claim no rights in the suit property but have supported and sided with their brother, Defendant No.1; and their counsel have prayed that the Suit be dismissed.

3. It is the common case that immediately upon Partition, the family migrated to India and had settled in Turkman Gate, Delhi. Defendant No.1 and his family, however, appear to have set up their residence to the suit property at least by 8.12.1958, initially as a tenant. The rest of the family continued to reside in Turkman Gate, Delhi. Learned counsel for the Defendants have explained that the Settlement Commissioner had effected an adjustment in respect of the suit property, whereas it ought to have been carried out in respect of the Turkman Gate property. In the letter dated 8.12.1958 authored by the father, namely, Shri Lachman and the subsequent letter of the Settlement Commissioner dated 19.12.1958 the sequence of events have been explained in this manner:

The Settlement Commissioner,

G.B.P. Jam Nagar House,

New Delhi.

Sub: CLAIM INDEX NO. P/RP-1/1309,

Registration No. 61188.

I am occupying House No.2251, Gali Dangot, Turkman Gate, Delhi. I deposited Rs.563/- in the Reserve Bank of India, the amount for which the house in my occupation was mortgaged by the Muslim evacuee, as per orders of the Competent Officer, and the balance of amount at which the house is valued is to be deducted from my above verified claim. I attach a copy of the judgment order herewith. I request that the amount, equal to the value of House No. 15-C, Vijay Nagar, Delhi-9 under occupation of my son Shri Tek Chand, may kindly be transferred in his name enabling him to purchase that house.

I may further add that I am a T.B. Patient (medical certificate attached) and that, after transferring the amount indicated above in the name of my son Shri Tek Chand, I may kindly be paid in cash the balance amount.

Yours faithfully,

Sd/-

(GOSAIN LACHMAN GIR)

H.NO.2251, Gali Dangot,

Turkman Gate, Delhi.

Dated: 8.12.1958

Gosain Lachman Gir S/o Gosain Gopal Gir,

H. No.2251, Gali Dangot, Turkman Gate, Delhi.

Sir/Madam,

Your application for compensation has been finalized with the following results:-

Index No. of Claim(s) Assessed value Total of each claim assessed value RP-1/1309 15890.00 15890.00

Amount of final compensation and Rehabilitation Grant due Rs.5699.00

Arrears of rent up to 30.9.95 for 15-C, Vijay Nagar Rs. 358.00

Arrears of rent for E.P. No.2251/1562/X Turkman Gate other recoveries (loans etc.) up to 31.12.57 Rs. 1296.75

V.C. for the both properties up to 31.12.57 Rs. 104.00

Net amount of final compensation and rehabilitation grant due Rs.3940.25.

You are at occupying Qr. No.15-C in colony Vijay Nagar New Delhi/Delhi which stands allotted to your son Shri Tek Chand final basis/purchase basis. The cost of the said property is adjustable against the compensation admissible to you and it has been ...

.......... to pay compensation in the form of that property.

The value of the property (including premises for 99 years household rights in respect of the site with liability to pay a nominal ground rent of Rs.1/- per 100 sq. yards, or fraction thereof and reject to the other condition as detailed in Appendix XI o f the replaced persons (Compensation and Rehabilitation) ....... 1995 is Rs.8265.00 (Rs. eight thousand two hundred sixty five only)

As the net compensation due to you falls short of the value the property by Rs.___________, the difference has been partly made by adjusting Rs.__________ being the cash value of _________ ............... admissible to against your agricultural land and claims ............. Index No._________ to the extent of __________ standard ................

It leaves a balance of Rs.4324.75 (Rupees Four thousand three hundred twenty four/75. N.P. Only), still to be recovered from one exceeding Seven years the installment are due on 15.12.1958.

(i) (ii)

(iii) (iv).

..... Under Rule No.26:-

If the amount is paid within two years No interest

If the amount is paid within three years One percent

If the amount is paid within four years Two percent

If the amount is paid within seven years 4 +

....... execute when to

....... paid by you. Till then ........

.........vested in the Government of India.

(ii).......... will be charged with effect from the 1st ..................

(iii) It will not be open to seal or mortgage or otherwise the property.

(iv)You may not make any addition or alterations without prior permission from the office and

(v) You will be responsible for keeping the property in ............ repair and for payment of all taxes, cases etc.

Please note that if you fail to pay any installments by due you will be liable to ejectment and the property may be allotted or sold to some other reason by this office.

Yours faithfully,

(A.S. Lokanathan) Regional Settlement Commi.......

Assistant Settlement Comm........

Office of Regional Settlement.........

NEW DELHI

Copy forwarded for information and necessary action to:

1. The Housing and Rent Officer, Gokhale Market, Delhi

2. The Executive Engineer, CPWD, Rehabilitation Division No.__________.

3. Records Branch, _______________.

Certified to be true copy.

Sd/-

(S.P. MADAN)

Section Officer,

Ministry of defense.

4.The Lease Deed in respect of the suit property is dated 10.6.1982 and is in the favor of Defendant No.1 only. It has been contended by learned counsel for the Defendants that there is a distinction between Joint Hindu Family and jointly owned property; in the former case a clear intention to treat the property as HUF property or to throw it in a hotchpotch must be evident, and that this is palpably manifested by joint mess and worship. It has further been strenuously submitted that the suit is hopelesly barred by time.

5. Defendant No.5 is the Union of India, Ministry of Urban Development and Poverty Alleviation. Its relevance is that it has been admitted in its Written Statement that the Lease Deed had been executed in favor of Defendant No.1 consequent upon the afore mentioned letter dated 8.12.1958. It may be recorded here that a statutory notice under Section 80 of the Code of Civil Procedure had admittedly not been served on the Union of India prior to the filing of this Suit and Leave to continue with the proceedings has also not been prayed for or received.

6. Defendant No.4 is the Builder/Developer who is involved/engaged in the construction of a two-storied building on the suit property, consequent upon an Agreement entered into with it by Defendant No.1. Demolition of suit property is stated to have commenced on 15.12.2003; foundation was laid on 13.1.2004; RCC roof slab of the Ground Floor was laid in March 2004 and this Suit was filed as late as on 13.4.2004 by which time the RCC/roof slab of the First Floor had also been laid.

7. I have considered the rival contentions of the parties. Section 4 of the Benami Transactions (Prohibition) Act, 1988 bars the enforcement or adjudication of a right to any property on the grounds that it is held Benami. The exception to this legal obstacle is that the embargo would not apply where the person in whose name the property is held is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners in the family. I am of the prima facie view that the prohibition contained in Section 4 of the Benami Transactions (Prohibition) Act, 1988 applies against the Plaintiff since there is no cogent evidence on record showing the formation of a Hindu Undivided Family of which the Plaintiff and Defendant No.1 were/arcoparceners. It is trite to state that every property held jointly does not get transformed into an HUF property. In the case in hand Defendant No.1 had resided in the suit property separately from the rest of the family, that is, Plaintiff and their father, Late Lachman, who had set-up residence in Turkman Gate, Delhi. It has not even been argued by learned counsel for the Plaintiff that there was any joint messing or worship, or any other fact which would indicate the existence or emergence of a Hindu Undivided Family.

8. As has already been mentioned above the Lease Deed (Title Document) is in the exclusive name of Defendant No.1 and has been registered over twenty years ago, on 10.6.1982. This being the position, the Plaintiff ought to have filed a Suit for Declaration within three years of this event, that is, before 9.6.1985. Article 58 of the Limitation Act, 1963 prescribes this, the only possible controversy which may remain when the right to sue had first accrued. Reliance has been placed by Mr.Mehta, learned Senior Counsel for the Plaintiff on the decision of the Hon'ble Division Bench of this Court in Nanak Chand and others vs. Chander Kishore and others, where it had been opined that Article 113 of the Limitation Act would apply to a Suit or Partition seeking a separation from Joint Family and de facto division into specific shares of joint property. This decision is of no avail to the Plaintiff for the reason that there is not even a smattering of evidence that the Suit Property was Join Hindu Family property. There would scarcely have been any need to to pray for a declaration if the property avowedly was Joint Hindu Family property, and the Plaintiff and Defendant No.1 were coparcener therein. Learned counsel for the Defendants have dawn my attention to Articles 106, 109 and 110 of the Limitation Act, 1963 which prescribe that action must be initiated within twelve years of a legacy or share becoming payable or an alienee take possession of ancestral property illegally alienated by the father; or when the Plaintiff is excluded from a share of Joint Family property. This period has also expired many years prior to the filing of the Suit. Prima facie, therefore, the Suit is not maintainable since it appears to be barred by limitation.

9. Even so far as the factual matrix is concerned equities are not in favor of the Plaintiff. There are documents on record disclosing that the Plaintiff's mother and the other siblings, Defendants No.1 to 3, had relinquished all their rights in favor of the Plaintiff in respect of Turkman Gate property. This property has admittedly been sold by the Plaintiff several years ago. Mr. Mehta has eloquently and vociferously contended that it is palpably inequitable that the younger brother (Plaintiff) shoulreceive a property of meager dimensions, whereas the other brother should have received a two hundred square yards plot. In the first place the value of the Turkman Gate property was higher than that of the Suit Property at the time of the Settlement and, therefore, a disparity between the two properties is only illusory. Secondly, the documents on the record indicate that Defendant No.1 had paid a part of the price of the Turkman Gate property because of the adjustment carried out by the Settlement Comissioner in respect of the Suit Property, whereas it ought to have been carried out in respect of the Turkman Gate property. Moreover, the siblings have been residing separately for several decades. It is not the Plaintiff's case that any of them have shared the sale proceeds of the Turkman Gate property with the Plaintiff.

10. Mr. Mehta has contended that a Court is not expected to carry out a mini trial at this stage. Equally, the Court cannot mechanically pass an injunction order merely because of an ipse dixit or self-serving averment contained in the pleadings of a particular party. What the Court should invariably do is to assess the respective cases in order to come to the conclusion whether even a prima facie case, in contradistinction to a preponderant case, has been made out. In the present instance I find that there are serious and possibly insurmountable obstacles in the way of the decreeing of the Suit. Normally the Court insists that party seeking discretionary relief should approach it with utmost dispatch and promptitude. In this case, far from filing this action with timely diligence, the Suit may be liable for dismissal on the grounds of prescription. A party who has slept over its rights dis-entitles itself from gaining discretionary relief from the Court. It is far too incredulous to believe that whils the Plaintiff had acquired total rights over the Turkman Gate property he was oblivious of the execution of the Lease Deed in respect of the suit property on 10.6.1982. If both properties belonged to the HUF the mother and sisters would have relinquished their rights in favor of both the brothers. No explanation worth acceptance is available to justify the delay of four months in filing the Suit since the Plaintiff would have learnt of all the facts of which he claims ignorance upon the demolition of the property in December 2003. The application is not only belated but is also mala fide. Having appropriated the sale proceeds from the Turkman Gate property the Plaintiff has termed his avarice towards his brother's land. It may be possible that the value of the suit property has escalated in leaps and bounds when compared to that in Turkman Gate, but that is fate.

11. Mr. Mehta has also contended that the balance of convenience is in favor of the Plaintiff since otherwise the Suit would become infructuous. There are two answers to this argument. Firstly, that the doctrine of lis pendens would apply and secondly where even a prima facie case has not been disclosed, the balance of convenience would lie in favor of the Defendant who may otherwise run the risk of embarrassment or jeopardy of valuable proprietary rights, keeping in perspective the long duration of pendency.

12. For all these manifold reasons I am of the view that the Plaintiff is not entitled to an ad interim injunction prayed for. Application seeking vacation of ex parte injunction is allowed. Interim Orders dated 20.4.2004 are recalled and the application is dismissed with costs of Rs.2,000/-.

CS(OS) No.394/2004 and IAs No.4800/04, 7074/04

13. Renotify on 7.12.2004