Shri Man Mohan Verma vs Ms. Sheela Sharma And Ors.
2007 Latest Caselaw 2246 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The plaintiff, Shri Man Mohan Verma was born out of the wedlock of late Shri G.V. Verma and Shrimati Durgawati Verma, defendant No. 3. The plaintiff has two other siblings - a brother, Mr. S.K. Verma, defendant No. 2 and a sister Shrimati Vimla Verma, defendant No. 4.

2. It is the case of the plaintiff that their late father was married only once to defendant No. 3. Defendant No. 3 has also passed away on 11.12.2004 and her legal heirs are already on record. The plaintiff further claims that all the aforesaid persons constituted a joint Hindu Family till the time their late father passed away on 17.1.1995 in USA. The joint Hindu Family is alleged to have owned various properties both movable and immovable including the property bearing No. E-12, Green Park, New Delhi, which was controlled by his late father.

3. It appears that there was one more sibling of the plaintiff Col. Sushil Kumar, who is stated to have passed away and his wife and son are stated to have left India and residing in USA and are not even heard of for the last 20 years prior to the filing of the suit. The plaintiff states that on the demise of his late father the ancestral property has devolved on the other parties.

4. The plaintiff alleges that his father was leading an immoral life having a live-in relationship with defendant No. 1. Family assets both movable and immovable are stated to have been transferred to various persons, including defendant No. 1, made Benami purchases etc. which are stated to be not binding on the plaintiff and defendants 2 to 4. One such property is the suit property of which defendant No. 1 was the registered owner when the suit was filed. Defendant No. 1 is stated to be an illiterate, divorced and destitute lady who came looking for work as Ayah to the family of his late father in 1944 and remained till 1945 when she was found to be having illicit relations with his late father. The illicit relation is alleged to have continued and his late father and defendant No. 1 in the year 1987 left for USA.

5. The plaint states that his late father was a displaced person from Pakistan and was so registered and was held entitled to claims. Late Shri G.C. Verma was allotted one big house in Rohtak City besides cash compensation. In paragraph 19 of the plaint, the properties are stated to have been allotted to late Shri G.C. Verma in lieu of his claims mentioned herein under:

A) 20 acre garden plot in Lahli Village, District Rohtak, along with 8 kanals house plot and 0.75 acre nursery plot.

B) 8 acres plot near Lahli Village on Lahli-Rohtak Road, Rohtak.

C) 5 acre garden on Civil Lines Rohtak.

D) 80 acre canal irrigated land in Sample Village Rohtak.

E) 10 marlas Haveli in Sample Village, District Rohtak.

6. The suit plot at E-12, Green Park, New Delhi is alleged to have been purchase Benami in the name of defendant No. 1 in the year 1952-57 by utilising the funds raised from selling of properties which in turn had been allotted in lieu of ancestral properties but that did not give any ownership rights in favor of defendant No. 1. Various properties are stated to have been sold by late Shri G.C. Verma.

7. In 1961 late Shri G.C. Verma is alleged to have agreed to transfer and hand over separate possession of the land at Lahli Garden Colony, Rohtak to his mother and brother but it is alleged that the same was really not given effect to. Defendant No. 1 is also alleged to be collecting rents from the suit properties.

8. The plaintiff has filed the suit for partition and rendition of accounts for the suit property by paying a fixed court fee with an undertaking to pay the balance court fee.

9. The suit as originally framed imp leaded one Shri Sudhir Mehta, defendant No. 5, who is stated to be the son born from the relationship of Shri G.C. Verma and defendant No. 1. Defendant No. 6 is stated to be the sister of defendant No. 1. At the stage when summons were to be issued in the suit on 9.11.1998, learned Counsel for the plaintiff sought deletion of the said defendants 5 & 6 as not necessary parties to the suit, which request was acceded to and thus defendants 5 & 6 were deleted from the array of parties.

10. The suit has been contested only by defendant No. 1. Defendant No. 1 claims to be the legally wedded wife of late Shri G.C. Verma and the registered owner of the suit property. Apart from other objections the said defendant has pleaded that the suit is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988 as the own case of the plaintiff is that defendant No. 1 is not a co-parcener. In substance the defense raised is that the property is acquired from the own funds of defendant No. 1 and the marriage took place between late Shri G.C. Verma and defendant No. 1 in the year 1946 at Lahore where they resided as husband and wife. Defendant No. 1 is stated to have lost contact with late Shri G.C. Verma during partition and contact was again established in the year 1948. It is only subsequently thereto that it came to light that late Shri G.C. Verma had already married defendant No. 3. Thus, defendant No. 1 claims that the said defendant and defendant No. 3 were cheated by late Shri G.C. Verma.

11. Defendant No. 1 admits that defendant No. 5 was born on 30.1.1954 but is alleged to be born from the wedlock with late Shri G.C. Verma. The suit property was constructed upon and in view of the peculiar position, defendant No. 1 resided in the same along with her son till 1987 when she migrated to USA. The most material aspect is the allegations contained in paragraphs 24 & 25 of the preliminary submissions of the written statement that defendant No. 1 thus did not require the suit property and in September 1995 entered into an arrangement with M/s. Delhi Shelters Limited to demolish the existing construction and rebuild the same. Defendant No. 1 claims to have received a sum of Rs.21.10 lakh and the second floor rights of the building to be constructed thereon. The collaboration agreement in this behalf was executed on 15.2.1996 with M/s. Delhi Shelters Limited. The building is stated to have been re-constructed and the builder sold the rights of basement, ground and first floors. Defendant No. 1 appointed the attorney at the behest of the builder to execute the necessary sale documents in favor of the nominees of the builder. The possession of the second floor is stated to have been transferred to defendant No. 5 for a consideration of Rs.13.25 lakh and an agreement to sell dated 5.3.1997 was executed. Another aspect is the allegation that on 12.11.1965 the son born from late Shri G.C. Verma was given in adoption to Shri Anand Kumar Mehta and Shrimati Sushila Mehta. It is already mentioned that Shrimati Sushila Mehta is the sister of defendant No. 1.

12. Defendant No. 1 has contested the rights of the plaintiff to claim any share in the suit property and on the other hand the prayer clause state that it is she who is entitled to have share in the lands at Rohtak and the flat at Krishna Market, Lajpat Nagar, New Delhi being the 1/5th owner of the property as the legal heir of late Shri G.C. Verma.

13. It may be noticed at this stage that another suit being CS (OS) No. 750/1999 (later transferred to the District Court) was filed by defendant No. 1 against the plaintiff for recovery of damages on account of defamation. Such defamation is stated to have been carried out by the plaintiff herein by alleging illicit relationship between defendant No. 1 and late Shri G.C. Verma. The plaintiff (defendant No. 1 herein), however never stepped into the witness box to establish her claim and the suit was consequently dismissed on 8.2.2005.

14. In the present suit the plaintiff led the evidence by stepping into the witness box as PW-1 and with that closed his evidence. At the stage when the evidence of defendant No. 1 had to be led, it came to light that defendant No. 1 had already passed away on 4.9.2005. However, this fact is alleged to have been brought to the notice of the plaintiff only on 13.1.2007.

15. The plaintiff moved an application for impleadment of legal representatives of defendant No. 1 along with an application for condensation of delay in which notices were issued. Notice was issued to original defendant No. 5, who refused service and is thus deemed to have been served. It may be noticed that this application has been filed both under Order 22 Rule 4 as well as under Order 1 Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code). In the application it is alleged that defendant No. 5 should now be brought on record as a legal heir of defendant No. 1. as also be imp leaded as a party. Learned Counsel for defendant No. 1 on 20.11.2007 stated that as per his instructions, the said defendant is not survived by any legal heir nor is there anyone interested on behalf of the said defendant in contesting the suit. This plea is also stated to be based on the fact that in paragraph 20 of the replication the plaintiff has claimed that in view of the adoption of original defendant No. 5 by defendant No. 6 and her husband, all his rights stood forfeited upon such adoption. In view of this, it was found that the only order to be passed was of deletion of defendant No. 1 from the array of parties and the application was disposed of.

16. The position thus emerges from the aforesaid is that the suit property was registered in the name of defendant No. 1 and she dealt with the property much prior to the filing of the suit. This fact was brought to the notice of the plaintiff in the written statement filed on 6.4.1999, a copy of which was duly received by learned Counsel for the plaintiff on the same day.

17. In my considered view, the first aspect to be examined is that defendant No. 1 acquired title to the suit property vide sale deed dated 26.2.1959 from the Urban Improvement Housing & Construction Company (P) Limited, New Delhi. Defendant No. 1 entered into a collaboration agreement on 15.2.1996 in respect of the suit property whereby she acquired monies amounting to Rs.21.10 lakh and the right to the second floor. The rights to the second floor were transferred to erstwhile defendant No. 5 as noted above on 5.3.1997.

18. The suit has been filed solely for partition without seeking any declaration to set aside the Sale Deed executed in favor of defendant No. 1. It is trite to say that the rights to an immovable property arise from a registered document. Such a registered document has been executed in favor of defendant No. 1 alone. If it is the case of the plaintiff that the corpus for acquiring this property had flown from the funds of HUF. In my considered view, the plaintiff was required to seek a declaration in that behalf since defendant No. 1 was not stated to be a member of HUF. It is the own case of the plaintiff that defendant No. 1, is a third party, alleged to be having a live-in relationship with late Shri G.C. Verma, father of the plaintiff. No such relief was prayed.

19. The plaintiff also did not lead any satisfactory evidence to show as to why the plaintiff was unaware of such acquisition earlier or did not take steps for years together to challenge the acquisition of the property by defendant No. 1 till filing of the suit in 1998, almost 40 years after the execution of the registered document in favor of defendant No. 1.

20. The registered owner had almost three years prior to the institution of the suit already dealt with the property. Third party rights had been created. No portion of the property vested with defendant No. 1 other than the monies realised. The second floor was also transferred to the erstwhile defendant No. 5, the son born from late Shri G.C. Verma who was given in adoption to the sister of defendant No. 1, which adoption in a way has been accepted by the plaintiff by alleging in their replication that the same has deprived the said person of any rights in the properties. This was possibly consciously done as even if the son was illegitimate, he would have a share in various properties. Thus, on the one hand the plaintiff was seeking to take advantage of the stated adoption of the erstwhile defendant No. 5 while on the other hand seeks to deprive the erstwhile defendant No. 5 of the property which is now acquired for consideration from defendant No. 1.

21. The plaintiff after being duly informed of the various rights created in favor of third parties chose not to amend the plaint or implead such third parties which would be a pre-requisite, if any relief was sought against title and for recovery of possession, which is the subject matter in the present suit. Learned Counsel for the plaintiff made a valiant attempt to plead that the plaintiff had, in fact, originally imp leaded defendant No. 5 as a party but he was deleted from the array of parties on 9.11.1998. The said fact is true but then if the plaintiff rightly had no knowledge of these transactions earlier at the stage of the institution of the suit, such knowledge was certainly derived when a copy of the written statement of defendant No. 1 was received on 6.4.1999. For the last more than 8 years, the plaintiff took no steps in this matter.

22. Learned Counsel for the plaintiff in the alternative contends that on the demise of defendant No. 1 endeavor has been made to implead the said erstwhile defendant No. 5 as a party and such a request under Order 1 Rule 10 of the said Code can be made at any stage of the proceedings. In this behalf learned Counsel has relied upon the judgment of the Constitution Bench of the Supreme Court in Kanakarathanammal v. V.S. Loganatha Mudaliar and Anr. . Learned Counsel contends that thus at any stage of the proceedings a party can be so added.

23. At a first blush the argument may seem to have some merit but on a closer scrutiny it has to be rejected for the reason that if the plaintiff does not seek to challenge the title stated to have been transferred by defendant No. 1 to erstwhile defendant No. 5 for 8 years after knowledge, the plaintiff cannot be permitted to bring the claim for any relief against the immovable property. This would amount to giving a license to the plaintiff to seek a relief, which would be time barred today and thus the bar of limitation would block any such relief for the plaintiff.

24. Learned Counsel for the plaintiff, in fact, stated that if all the properties have been dealt with the plaintiff should be entitled to get a share in the monies realised by defendant No. 1. That is not the relief claimed for in the suit apart, of course, from the fact that the plaintiff also does not know of any such monies lying there when a query is posed in this behalf by this Court to the plaintiff. This is just to state that apart from the legal impediment there appears to be a fruitless exercise in carrying forth this suit which primarily flows from an aggrieved son on account of his father having gone wayward.

25. It is not as if the plaintiff and other children of late Shri G.C. Verma have been deprived of the ancestral properties. Late Shri G.C. Verma in case of partition would have been entitled to a share in all the properties. Such properties came to be enjoyed by his wife and children. He chose to leave the company of his wife and children and settled down in USA with defendant No. 1. That was his personal decision. Even if some funds flowed from him to defendant No. 1 for acquisition of the suit property, the lapse of time in the plaintiff seeking any relief in the suit property and the property having been dealt with in the mean time would negate the grant of any relief to the plaintiff.

26. In view of the aforesaid facts there is no option but to dismiss the suit leaving the parties to bear their own costs.