Bhim Singh vs Sukhbir Singh & Ors.
2008 Latest Caselaw 938 Del

             THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Judgment delivered on: 04.07.2008

+                        CS (OS) 1179/1997

BHIM SINGH                                                   ... Plaintiff

                                     - versus -

SUKHBIR SINGH & ORS.                                         ...Defendants

Advocates who appeared in this case:
For the Plaintiff     : Mr Uchit Bhandari
For the Defendants    : Mr N. S. Dalal

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED

     1.

Whether Reporters of local papers may be allowed to see the judgment ?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in Digest ?

BADAR DURREZ AHMED, J

1. This is a suit for partition and rendition of accounts. The

plaintiff claims that the following properties are joint family properties:-

             (i)     No. 47 (MCD No. 8497), Arakashan Road, Pahar
                     Ganj, New Delhi;

             (ii)    Shop No. 5, Chara Mandi, Zakhira, Delhi;

             (iii)   Shop known as Janta Dharam Kanta, Chara Mandi,
                     Zakhira, Delhi; and

             (iv)    Agricultural land along with built up house at village
                     Mattan,    District   Rohtak    (now   Bahadurgarh),
                     Haryana.

The plaintiff, at the time of filing of the suit claimed a 1/7th share in the said

properties which are hereinafter referred to collectively as ―the suit

properties‖. However, during the pendency of the suit the plaintiff's mother

(Mrs Sama Kaur), who was the defendant No. 5, passed away and

consequently the plaintiff now claims a 1/6th share in the suit properties.

2. The plaintiff and the defendants 1-4 and 6 are the sons and

daughter of late Mr Karan Singh and late Mrs Sama Kaur (erstwhile

defendant No.5). It is stated in paragraph 1 of the plaint that the parties to

the suit are legal heirs of late Mr Karan Singh who died on 26.03.1983 and

that they are the joint owners in possession of the suit properties. It has

been stated that agricultural land in village Mattan comprised in Khasra No.

176/164 Khatauni No. 300 and Khasra No. 319/306 Khatauni No. 450

comprise of 55 bighas and 11 biswas of land.

3. It is further averred in the plaint that after the death of Mr Karan

Singh, differences had arisen between the parties to the suit on account of

which it was not possible for the plaintiff to have the properties as joint

properties any further. It is alleged that the plaintiff requested the

defendants for partitioning of the suit properties by metes and bounds but

the defendants did not agree to the same. The plaintiff also allegedly sent a

notice seeking partition on 24.12.1996.

4. In paragraph 4 of the plaint it is alleged that property No. 47

Arakashan Road was purchased in the name of Mr Karan Singh from joint

family funds and that in or about 1947 the said Mr Karan Singh had

migrated from his village Mattan to Delhi and started his business of selling

fodder on commission basis at Pahar Ganj, New Delhi. It is averred that the

plaintiff was the eldest son and started working with his father from the age

of about 11 or 12 years. The plaintiff has further alleged that he used to go

to the customers in connection with the business of his father. It is further

alleged that the property bearing No. 47, Arakashan Road was purchased

from the joint funds derived from the family income which was earned out

of the crops grown on the joint family land at village Mattan and that the

super-structure on 47 Arakashan Road was also raised out of joint family

funds. It is also stated that the plaintiff is in possession of the portion

marked in red in the site plan annexed as Annexure-A to the plaint.

5. In paragraph 5 of the plaint it is averred that the forefathers of

the plaintiff and the defendants were agriculturists having about 55 bighas

of land at village Mattan and that the land was originally owned by late

Mr Bishan, who was the grandfather of late Mr Karan Singh, and other

members of the family. It is also averred that Mr Karan Singh and other

members of the family grew crops on their said land. And, out of the joint

funds and income from the agricultural produce, late Mr Karan Singh

purchased 47 Arakashan Road, New Delhi in which a hotel by the name of

Vandana and a public Dharam Kanta are being run. The hotel is run by

defendants 1-5 and the Dharam Kanta by the plaintiff.

6. Referring to suit No. 1355/1984 titled Mr Bhim Singh v.

Mr Sukhbir Singh and others filed in this Court, it is stated that the suit was

disposed of on 19.03.1996 upon the direction ―that unless and until the

defendants 1-4 obtained letters of administration or probate, they shall not

produce the will‖ before any authority, with reference to the property, which

is the subject matter of the will. In this context it is stated that the plaintiff

had not received any notice from any Court with respect to the alleged will

and the plaintiff believes that the defendants have not filed any case for the

grant of letter of administration or probate in respect of the said will.

7. It is then alleged by the plaintiff that the defendants who are

running the hotel business are earning profits and income out of joint

properties in which the plaintiff has a 1/7 th share (now 1/6th) and that the

plaintiff was entitled for the said share out of the profits/ income/ rent

received by the defendants 1-5 and was entitled to ask for rendition of

accounts in respect thereof. It was alleged that the cause of action for the

filing of the suit accrued to the plaintiff at Delhi finally on or about

03.01.1997 when the defendants received the notice dated 29.12.1996 sent

by the plaintiff's lawyer demanding partition of the joint properties and

because the defendants refused to accede to such demand for partition. It is

in these circumstances that the plaintiff has approached this Court by way of

this suit for partition of the alleged joint properties and for rendition of

accounts in respect of the income/ rent/ tariff received by the defendants 1-5

from the hotel business which they were running in property No. 47

Arakashan Road, New Delhi.

8. The defendants jointly filed their written statement. They took

the preliminary objection that the suit of the plaintiff is false to the

knowledge of the plaintiff and that the same is evident from the fact that a

suit for partition was earlier filed by the plaintiff which was registered as

suit No. 622/1984 and which is pending disposal in this Court. That suit

was only in respect of partition of house No. K-95, Kirti Nagar, New Delhi.

According to the defendants, this fact alone knocks out the very sub-stratum

of the plaintiff's case inasmuch as it clearly indicates that the plaintiff was

aware of the fact that he had no claim whatsoever in other properties which

now form the subject matter of the present suit. It was contended that the

present suit is hit by the provisions of Order 2 Rule 2 of the Code of Civil

Procedure, 1908 (hereinafter referred to as the ‗CPC'). Under the head of

preliminary objections, the defendants also stated that all the suit properties

are subject matter of a will duly executed by late Mr Karan Singh on

11.03.1983 in favour of defendants 1-5 and that the defendants 2 and 4

herein have filed a petition under Section 276 of the Indian Succession Act,

1925 for the grant of probate (probate case No. 33/1997) in respect of the

said will and that the probate case is pending disposal before this Court.

9. In paragraph 1 of the written statement under the head ‗reply on

merits', it is admitted that late Mr Karan Singh died on 26.03.1983. It is

stated that the suit properties are the subject matter of the will referred to

above and cannot be made the subject matter of a suit for partition. It is also

stated that the plaintiff had conveniently not referred to the pendency of the

suit for partition registered as suit No. 622/1984 in respect of house No. K-

95, Kirti Nagar, New Delhi which is pending before this Court. It is stated

that in case the plaintiff had the slightest impression that he had a right, title

or interest in respect of the suit properties, he ought to have included

properties in the earlier suit for partition i.e. in suit No. 622/1984.

10. With regard to property No. 47 Arakashan Road, it is stated in

the written statement that the said property is the self-acquired property of

late Mr Karan Singh, who executed a will in respect of the said property and

the plaintiff has no right whatsoever in respect thereto. It is stated that the

said property has been entirely in the possession of the defendants except a

small portion measuring approximately 20 ft. x 30 ft. abutting the road in

front of the main building and a civil suit in respect thereof being suit No.

404/1983 is pending in Tiz Hazari Courts. Proceedings in that suit had been

adjourned sine die in view of the pendency of the plaintiff's earlier partition

suit bearing suit No. 1355/1984. It is further alleged that from the stage of

construction of the building on the said property, the defendants 1-5 have

been partners in the business carried out in the said premises under the name

and style of Hotel Vandana and the plaintiff has no concern whatsoever with

the said building or the business carried out by the said defendants.

11. With regard to shop No. 5, Chara Mandi, Zakhira, Delhi, it is

stated by the defendants that the same is under the tenancy of defendants 3

and 4 who have been in possession of the said shop and are carrying on

business and paying rent in respect thereof. It is averred that the plaintiff

has no right whatsoever in respect thereto. With regard to the shop known

as Janta Dharam Kanta, Zakhira, Delhi, the defendants have stated that this

shop is also a tenanted premises and that the defendants 1 and 2 are the

tenants and have been paying rent to the MCD, which is the owner of the

shop. It is also stated that they have been carrying on their business from

the said premises and the plaintiff has no right whatsoever in respect

thereto.

12. With regard to the agricultural land at village Mattan, the

defendants have stated that the extent of the land is not 55 bighas and 11

biswas but is 10 kanals and 8.5 marlas. It has been denied that there is any

land in Khasra No. 176/168 Khatauni No. 300. It is specifically stated that

no money was ever received by late Mr Karan Singh or, after his death, by

any of his legal heirs and that the agricultural land has been in actual

possession of Mr Satbir, son of Mr Dig Ram, who had been dealing with the

said land and at no point of time, either late Mr Karan Singh or any of his

legal heirs have derived any benefit out of the said land.

13. In paragraph 4 of the written statement the defendants have

denied that the property No. 47, Arakashan Road was purchased in the name

of late Mr Karan Singh from the joint family funds. Though it is not

disputed that late Mr Karan Singh migrated from village Mattan to Delhi

and started his business at Pahar Ganj, New Delhi, it is denied that he did so

on or about 1947 or that his business was of selling fodder on commission

basis. It is also denied that the plaintiff rendered any assistance at the age of

11 or 12 years to late Mr Karan Singh. The defendants have also denied

that the said property No. 47, Arakashan Road was purchased from the joint

funds of family income which was earned out of the crops grown on the

joint family land at village Mattan or that the super-structure of property

No. 47, Arakashan Road was also raised out of the joint family funds. With

regard to the agricultural land and built up house at village Mattan the

defendants reiterated that the same were in the possession of Mr Satbir

Singh, son of Mr Dig Ram and no benefit have ever been enjoyed either by

late Mr Karan Singh or the defendants herein at any point of time from the

said properties.

14. The defendants have also denied that the plaintiff and the

defendants were agriculturists. It was submitted that while Mr Karan Singh

had been a commission agent, it was emphatically denied that any income

had been received at any point of time from the agricultural produce from

the land at village Mattan. It was specifically stated that the property No.

47, Arakashan Road was purchased and the building was raised thereon by

late Mr Karan Singh from his own funds and that the defendants have been

carrying on business under the name and style of Hotel Vandana from the

very inception of the said building. It is stated that the plaintiff had no

concern with the said property or the business carried on from the said

property and the property also stands duly mutated in the names of

defendants 1-5 and no objection till date had been raised by the plaintiff

even in the earlier suit filed by the plaintiff in respect of the property No. K-

95, Kirti Nagar, New Delhi.

15. The defendants denied that the plaintiff had a 1/7 th (now 1/6th)

share in the hotel business or any other business or in the rent/ tariff of

property No. 47, Arakashan Road. The defendants submitted that the suit

filed by the plaintiff is liable to be dismissed with costs and special costs as

provided under Section 35-A CPC inasmuch as the suit is false even to the

knowledge of the plaintiff.

16. In the replication filed by the plaintiff the averments made in the

plaint were reiterated. In respect of the suit No. 622/1984 it was stated that

the property in that suit, namely, K-95, Kirti Nagar, New Delhi was owned

by the plaintiff and the defendants 1-4 as owners and defendants 5 and 6

had nothing to do with the said property whereas in the present suit the

properties were acquired by late Mr Karan Singh from joint family funds

and the plaintiff and the defendants have joint inherited interests.

Consequently, it was contended that the suit was not hit by Order 2 Rule 2

CPC. It may also be noted that in paragraph 1 pertaining to the reply on

merits, the plaintiff has admitted the factum of possession with regard to

property No. 47, Arakashan Road as stated by the defendants in their written

statement.

17. On the basis of the pleadings, the following issues were framed

on 10.09.1999:-

1. Whether the suit property is joint family property? If so, to what effect? OPP

2. What is the area of the land in village Mattan, Distt. Rohtak and to what extent thereof is it joint family property? OPP

3. Whether the property in suit was purchased/ constructed from the individual funds of late Ch. Karan Singh? OPD

4. What effect, if any, the suit No. 622/1984 have on the present suit? OPD

5. Relief.

The plaintiff produced himself as PW1 and the defendant No. 2 (Pratap

Singh) came forth as DW1, being the sole witness on behalf of the

defendants. It is relevant to point out that Mr Ajit Singh (defendant No.4)

had also filed his affidavit by way of evidence but as he was not produced

for cross-examination, his affidavit has to be disregarded. No documents,

other than Exhibit PW1/2, were exhibited on behalf of the plaintiff.

However, on behalf of the defendants three documents were exhibited --

Exhibit DW1/P-1, Exhibit DW1/P-2 and Exhibit DW1/P-3.

Issue No.1: Whether the suit property is joint family property?

If so, to what effect? OPP

Issue No.2:What is the area of the land in village Mattan, Distt. Rohtak and to what extent thereof is it joint family property? OPP

Issue No.3:Whether the property in suit was purchased/ constructed from the individual funds of late Ch.

Karan Singh? OPD

18. These issues are taken up together as they involve common

points. The key issue, however, is issue No. 1 which requires a

determination of the question as to whether the suit properties are joint

family properties. The burden of establishing that the suit properties are

joint family properties is obviously on the plaintiff. The plaintiff in his

affidavit by way of evidence has stated that property No. 47 Arakashan

Road; shop No. 5, Chara Mandi, Zakhira, Delhi; Janta Dharam Kanta, Chara

Mandi, Zakhira, Delhi; and agricultural land measuring about 55 bighas out

of 176/164 Khatauni No. 450 in village Mattan, Tehsil Bahadur Garh,

District Rohtak, Haryana are joint properties of plaintiff and defendants.

The said witness (PW1) has further stated that property No. 47 Arakashan

Road, Pahar Ganj was purchased by his father from the income of joint

family. He has deposed that his father migrated from Mattan to Delhi in

1947 when he (PW1) was about 9 years of age and that his father started

business as a commission agent and of selling of chara in the market at

Pahar Ganj, New Delhi. It is stated that his father used to sell chara, which

was grown in the fields at Mattan by his grandfather and other members of

the family. It is also stated that theirs was a joint family and the income was

joint income.

19. In paragraph 2 of the same affidavit by way of evidence, the

plaintiff as PW1 stated that his grandfather Mr Sawal Singh had a huge

agricultural land in village Mattan. That his father and Mr Dig Ram were

brothers and they started a business of chara and commission agent in the

fodder market at Delhi in the year 1947. The witness further stated that his

uncle (chacha), obviously referring to Mr Dig Ram, used to grow fodder in

the field and his father (Mr Karan Singh) used to sell the same in the market

at Delhi. It was joint family business. It was stated that the plaintiff and the

defendants had joint agricultural properties at village Mattan to the extent of

14 kanals and 13 marlas.

20. The said witness, in paragraph 3 of the affidavit by way of

evidence, has stated that in 1952, his father purchased plot No. 47

Arakashan Road out of joint funds for a total consideration of Rs 14,500/-

and from the said premises the plaintiff started his public Dharam Kanta in

the year 1958-59 which is still running on the same plot. He further stated

that out of joint funds, a building was constructed on the said plot in the

year 1976-77 and that his brothers and sister have a joint right in the said

property at 47 Arakashan Road, Pahar Ganj, New Delhi.

21. In cross-examination PW1 has stated that his father came to

Delhi for work and that in the year 1947 there were about 50-56 bighas of

land belonging to their joint family in their village. It is further stated by

PW1 that his uncle Mr Digram used to look after the property of 12-1/2

bighas belonging to his father and that it was incorrect to suggest that the

said uncle retained all the income from that property, rather the income also

used to come to his father. He stated further that as Mr Dig Ram has since

passed away, the sons of Mr Dig Ram are presently tilling the land at village

Mattan that came to his father's share. The witness (PW1) admitted that

from 1947 onwards, since the time his father came to Delhi, it was his uncle

Mr Dig Ram or his sons who had been tilling the land at village Mattan and

had looked after the same. The witness also admitted that there had been no

partition of the property belonging to his grandfather Mr Chattar Singh till

date. The witness has also stated that he had not seen the share of his

father's land because he had never gone there and his uncle's son is looking

after the same. PW1 also admitted that he never asked for any share of the

village land from his uncle nor from his uncle's sons. He stated that earlier

income from that land was being sent but not any longer and it is for this

reason that he asked for the income from his brothers (defendants 1-4) and

mother (erstwhile defendant No.5) and his sister (defendant No. 6) as the

said defendants were receiving income from that land. He further stated that

his father expired on 26.03.1983 and he never asked for his share of land at

village Mattan from his uncle. The witness also stated that he did not know

what is the income from the land in village Mattan as on date. He, however,

stated that during his father's life time there was an annual share of income

of approximately Rs 2500-3000-5000 that was received by his father in

respect of that land. The said witness also admitted that his father and

younger brother had started Vandana Guest House and that the plaintiff

continued with the Dharam Kanta business. Significantly, the witness has

admitted that he has no documentary proof to show that the said property

was purchased from the joint funds brought from the village. With regard to

shop No. 5, Chara Mandi, Zakhira, the witness stated in cross-examination

that MCD is the owner of the said property and that he did not know as to

who is paying the rent of the premises. He also admitted that till date he had

not paid any rent of the said premises. With regard to the shop known as

Janta Dharam Kanta, Chara Mandi, Zakhira, Delhi, PW1 admitted that the

same is in the possession of Mr Balbir Singh after the death of his father and

that Mr Balbir Singh pays the rent of the shop. He has also admitted that he

had never been in possession of the properties, that is, shop No. 5 and the

shop known as Janta Dharam Kanta.

22. As against the evidence of PW1, the defendants have filed the

affidavit (Exhibit DW1/A) of defendant No. 2 (DW1) by way of evidence.

In paragraph 5 of the said affidavit, DW1 has stated that property No. 47

Arakashan Road, Pahar Ganj, New Delhi was the personal and self-acquired

property of his father and that he (the father) had already executed a will in

respect of the said property in his favour as well as in favour of his other

brothers excluding the plaintiff. DW1 also stated that the said property No.

47 has been in his possession and that of his other brothers excluding the

plaintiff, except a small portion measuring 20 ft. x 30 ft. abutting the road in

front of the main building. DW1 has further stated that right from the

construction of the building, he and the other defendants have been partners

in the said business carried on in the said premises under the name and style

of Hotel Vandana and that the plaintiff has no concern whatsoever with the

said building or the said business. DW1 has also stated that shop No. 5,

Chara Mandi, Zakhira was under the tenancy of defendants 3 and 4, who

have been in possession of the same and are carrying on business from the

said premises and are paying rent in respect thereof. The plaintiff has no

concern with that shop. DW1 further stated that so far as Janta Dharam

Kanta, Zakhira, Delhi is concerned, it was also a tenanted premises and

defendants 1 and 2 were the tenants therein and had been paying rent to the

MCD.

23. As regards the agricultural land, it was stated by DW1 that

the extent of the same was only 10 kanals and 8.5 marlas . He stated

that no money was ever received by his father either during his life time

or by any of his legal heirs after his death from any person in respect of

the land at village Mattan. He also stated that land in the said village

was in possession of Mr Satbir Singh, son of Mr Dig Ram. He stated

that no benefit whatsoever was derived by late Mr Karan Singh or any

of his legal heirs from the said land at village Mattan. It was stated that

the said land was not sufficient even to meet the needs and requirements

of Mr Satbir Singh. He stated that his father was so poor and that in

search of livelihood he left the village and came to Delhi and that the

properties of the father in Delhi are his personal properties out of his

own earnings and not out of any benefit derived from the agricultural

land at village Mattan. In his cross-examination also DW1 has

reiterated what he has stated in his affidavit and what has been stated in

the written statement. However, it is noteworthy that he has admitted

that his father never told him about his income. He also stated that his

father had not brought a single penny from the village when he came to

Delhi and that firstly he had done a job in Lahore and thereafter in

Delhi. He denied the suggestion that the properties were purchased by

his father out of the income from the joint family properties and that

none of his properties were self-acquired.

24. An examination of the pleadings and the oral testimonies of

PW1 and DW1 reveals the following admitted position:- Late Mr Karan

Singh, father of the plaintiff and the defendants 1-4 and 6 shifted to

Delhi around 1947. In 1952 late Mr Karan Singh purchased the

property bearing No. 47, Arakashan Road for a sum of about Rs

14,500/- in his own name. There is land in the village Mattan, the

extent of which is not at all clear, which is jointly owned by the plaintiff

and the defendants as well as other descendants of late Mr Chattar

Singh (father of late Mr Karan Singh) and late Mr Bishan, grandfather

of late Mr Karan Singh. Those other persons include the uncle of the

plaintiff as well as defendants 1-4 and 6, namely, late Mr Dig Ram and

now his legal heirs including Mr Satbir Singh. The extent of the land at

village Mattan cannot be established on the basis of evidence available

on record. While at one point of time the plaintiff has stated that the

land was to the extent of 55 bighas, at another point of time the land has

been stated by the plaintiff himself to be of a lesser extent. DW2 has

stated the extent of the land to be 10 kanals and 8.5 marlas. However,

as I have indicated above, it cannot be conclusively determined as to

what the extent of the land was/ is in village Mattan. This much is clear

that there is some joint family land at village Mattan in which there are

other co-sharers other than the parties in the present suit.

25. It has also emerged from the pleadings and the evidence on

record that the land in Mattan was throughout in the possession of the

plaintiff's uncle Mr Dig Ram and after his death of his son Mr Satbir Singh.

However, neither Mr Dig Ram nor Mr Satbir Singh have been made parties

in the present suit. It has also been established that the building standing on

plot No. 47 Arakashan Road was constructed by the plaintiff's father late

Mr Karan Singh in 1976. The evidence also establishes that late Mr Karan

Singh, inter alia, had the business of a commission agent and sale of fodder

in Delhi since about 1947. Late Mr Karan Singh died on 26.03.1983. Suit

No. 622/1984 was filed by the plaintiff in respect of K-95, Kirti Nagar

seeking partition of the same amongst the plaintiff and defendants 1-4. The

said suit is now pending before the Additional District Judge, Delhi. The

plaintiff has claimed co-ownership as the property had been purchased in

the name of all the five brothers i.e. plaintiff and defendants 1-4. It has also

been established that after 1976 the plaintiff has his own business and the

defendants have their own businesses. While in the plaint the plaintiff had

claimed possession in respect of all the suit properties, it is now established

that the plaintiff is only in possession of a 20 ft. x 30 ft. portion of property

No. 47 Arakashan Road. He does not have any possession in respect of the

said shop No. 5, Chara Mandi, Zakhira or the other shop Janta Dharam

Kanta or the land at village Mattan. There is no evidence whatsoever to

indicate that shop No. 5, Chara Mandi, Zakhira, Delhi was ever a part of

joint family property. The same is the situation with regard to the shop

known as Janta Dharam Kanta. Admittedly, those properties are tenanted in

respect of which defendants 3-4 are tenants in one and defendants 1 and 2

are tenants in the other, the plaintiff having no right, title or interest in

either.

26. This leaves for discussion the property of 47 Arakashan Road. It

has been alleged by the plaintiff that it was acquired from funds derived

from the land at Mattan which was joint family property. The onus of

proving this fact is on the plaintiff. In my view that burden has not been

discharged by the plaintiff. It was attempted to be argued on behalf of the

plaintiff that the Finance Act, 1948 prescribed that up to an annual income

of Rs 1,500/- no income tax was payable. Since there is no income tax

record with regard to the plaintiff's father (late Mr Karan Singh), it was

sought to be contended that his income was below the taxable limits. In

other words, it is sought to be inferred that Mr Karan Singh's income was

less than Rs 1,500/- per year. If this were to be so, then even assuming that

the entire income was used for the purchase of the property in 1952, the

only available funds with the plaintiff's father would have been Rs 7,500/-

(Rs, 1,500/- x 5; for the years 1947- 1952). It was contended that it is

obvious that the entire sum could not have been spent for the purchase of

the plot inasmuch as some amount must have been spent on the upkeep of

the family. A reference was made to PW1's statement in cross-examination

that a sum of Rs 5,000/- was brought by late Mr Karan Singh from the

village and a further sum of Rs 5,000/- was brought by his uncle Dig Ram.

Consequently, it is sought to be inferred that a sum of Rs 10,000/- was

availed from the rural land income. Therefore, a major portion of the sum

of Rs 14,500/-, which was spent for the purchase of the property, came from

the joint family funds derived from the joint family property at village

Mattan. The decision in the case of Appasaheb Peerappa Chandgade v.

Devendra Peerappa Chandgade & Ors.: AIR 2007 SC 218 was also

pressed into service by the learned counsel for the plaintiff to submit that if

it is shown that a family possesses joint family property, the burden shifts

on the defendants. Reliance was also placed on M. R. Rajasekharappa v.

H. N. Siddananjappa: ILR 1990 KAR 2303 to submit that jointness is a

normal condition of Hindu Society and that if the nucleus is formed by joint

family then the presumption is of joint family. It was contended that Rs

10,000/- was the nucleus which was derived from the land in the village

and, therefore, the presumption of a joint family property can be drawn.

27. With regard to the argument based on the factum that there is no

income tax record of the plaintiff's father (late Mr Karan Singh), I may

observe straightaway that it is too inferential and based on far too many

surmises. It is not necessary that if there is no income tax record of the

plaintiff's father, that, in point of fact, the plaintiff's father did not pay any

income tax. In any event, it cannot be inferred that because the plaintiff's

father does not have an income tax record, his income was necessarily

below the taxable limit. He may have defaulted in payment of income tax.

Furthermore, the statement of PW1 in his cross-examination with regard to

the sums of Rs 5,000/- brought from the village and by his uncle Dig Ram

do not find any mention in the pleadings. There is nothing to show that

what he has stated is in fact the truth or that it is even inferentially the truth.

The fact of the matter is that the plaintiff has not been able to discharge the

burden of establishing that property No. 47 Arakashan Road was a joint

family property.

28. It is also important to note that while the village land is stated to

be joint family property, not all the members of the joint family have been

included in the present suit. Admittedly, the village land also belonged to

other members of the family such as Mr Dig Ram and his legal heirs as also

to all descendants of late Mr Bishan and late Mr Chattar Singh, who were

the grandfather and father of late Mr Karan Singh respectively. The learned

counsel for the defendant is right in saying that if the suit properties are

claimed to be joint family properties, then why have the other descendants

of the grandfather not been made parties? It is clear that in a partition suit

all the co-sharers are necessary parties. In the absence of any necessary

party, no effective order or decree can be passed. In view of the provisions

of Order 1 Rule 9 it is clear that non-joinder of a necessary party would be

fatal to the suit. This aspect of the matter has also to be borne in mind. The

plaintiff has not been joined necessary parties and has taken the risk by not

doing so. In the absence of necessary parties, no effective order or decree

can be passed and the plaintiff must bear the consequences of his adventure.

Non-joinder of necessary parties in a partition suit is fatal.

29. It must also be noted that the stand taken by the plaintiff in the

legal notice dated 24.12.1996 (Exhibit PW1/2) and that in the present suit

are contradictory. In paragraph 2 of the said notice dated 24.12.1996

(Exhibit PW1/2) it is stated that :-

―2. In or about 1947, Mr. Karan Singh came to Delhi and my client being the eldest son, helped and started doing business with his father who was a Commission Agent at the start of the business. By the joint efforts of Mr. Karan Singh and my client they developed business and expanded the same, by the result, apart from village property, they purchased property No.47, Arakashan Road, Pahar Ganj, New Delhi in 1952 and constructed a Hotel in 1976.

Similarly Shop and Dharam Kanta are the joint properties of all the legal heirs left behind Late Karan Singh.‖

There is no whisper of joint funds from agricultural land in the said notice.

The tenor of the notice is that since the plaintiff and his father Mr Karan

Singh did business jointly and through their joint efforts they purchased the

property No. 47 Arakashan Road, the plaintiff was entitled to the same both

on account of the joint efforts put in by him as well as being a legal heir of

late Mr Karan Singh. The thrust of the pleadings in the suit as well as the

evidence which has sought to be led on the part of the plaintiff is that

property No. 47 Arakashan Road was purchased out of funds derived from

the income from agricultural land at village Mattan. The two are clearly

contradictory. There are other contradictions in the plaintiff's case. For

example, in paragraph 2 of the affidavit by way of evidence of PW1 it is

stated that the plaintiff's father and Mr Dig Ram started business in 1947.

However, this is not mentioned in the plaint. Then it has been stated by

PW1 that his uncle used to look after his father's land but neither Mr Dig

Ram nor any member of his family has been produced in the witness box.

30. Upon a consideration of the pleadings, the evidence and the

arguments advanced on behalf of the parties, as discussed above, I decide

issues 1, 2 and 3 as under:-

Issue No. 1: Whether the suit property is joint family property?

If so, to what effect? OPP

No, insofar as the property No. 47 Arakashan Road; shop No. 5, Chara

Mandi, Zakhira, Delhi; and the shop known as Janta Dharam Kanta are

concerned. As regards the land in village Mattan, the same has been

considered in issue No. 2 below.

Issue No. 2: What is the area of the land in village Mattan, Distt.

Rohtak and to what extent thereof is it joint family property? OPP

There is some land in village Mattan which is joint family property but the

area cannot be determined on the basis of the evidence on record.

Moreover, all the members of the joint family property pertaining to that

land have not been made parties to the present suit.

Issue No. 3: Whether the property in suit was purchased/

constructed from the individual funds of late Ch. Karan Singh? OPD

This issue, apparently, pertains to property No. 47 Arakashan Road. It has

been held that the plaintiff has not been able to establish that the same was

purchased out of joint family funds. Therefore, it has to be held that the

property was purchased from individual funds of late Mr Karan Singh.

Consequently, all the three issues are decided against the plaintiff.

Issue No. 4: What effect, if any, the suit No. 622/1984 have on the present

suit? OPD

31. This issue has been framed at the instance of the defendants on

the plea taken on the basis of the provisions of Order 2 Rule 2 CPC. Suit

No. 622/1984 is a partition suit in respect of property No. K-95, Kirti Nagar,

New Delhi. According to the defendants since the plaintiff had the

purported right to seek partition of other properties which now form the

subject matter of the present suit, the plaintiff ought to have included those

properties in the said suit No. 622/1984 and claimed partition in respect

thereof also. The fact that the plaintiff did not do so and also did not take

any leave of the Court for filing a separate suit in respect of the present suit

properties, the plaintiff cannot be permitted to file the present suit. The plea

taken by the plaintiff is that suit No. 622/1984 is not based upon joint family

property under Hindu law. It is contended that the properties in the said suit

was purchased jointly by the plaintiff and the defendants 1-4 in their names.

The cause of action in that suit is different from the cause of action in the

present suit.

32. In my view this issue does not call for determination because of

the view taken by me on issue Nos. 1, 2 and 3. The suit has to fail on the

conclusions arrived at in respect of the issue Nos. 1, 2 and 3 and, therefore,

this issue would become redundant.

Issue No. 5: Relief.

33. In view of the conclusions arrived at in respect of issue Nos. 1, 2

and 3, the plaintiff is not entitled to any relief. The suit is dismissed with

costs.

BADAR DURREZ AHMED (JUDGE) July 04, 2008 SR