Hari Ram Gupta & Anr. vs Madan Lal Gupta
2008 Latest Caselaw 2006 Del

*                 IN THE HIGH COURT OF DELHI

                      Judgment reserved on : October 17, 2008
%                   Judgment delivered on : November 14, 2008


+                      RFA 362/2007

HARI RAM GUPTA & ANR                      ..... Appellants
                  Through:        Mr. P.D.Gupta, Advocate
                                  Mr. Kamal Gupta, Advocate
                                  Mr. Abhishek Gupta, Advocate

                            Versus


MADAN LAL GUPTA                         ..... Respondent
                       Through:   Mr. B.L.Chawla, Adv. for R-1


CORAM:

Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha

1. Whether reporters of local papers may be allowed
   to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?


: PRADEEP NANDRAJOG, J.

1. Late Shri Govardhan Dass Gupta was blessed with

three sons, Madan Lal Gupta, Hari Ram Gupta and Rameshwar

Dass Gupta. He was blessed with a daughter Ms.Bishni Devi.

He was a prosperous man. He died on 22.11.1971. His

children and his wife Kesar Devi were the heirs.

2. Various properties standing in his name became the

subject matter of litigation in the family. Respondent No.1,

Madan Lal Gupta, unfortunately, appears to have fallen foul

with his brothers, his sister and his mother. He sued for

partition and rendition of accounts.

3. The suit filed by Madan Lal Gupta has resulted in

the impugned judgment and decree dated 21.4.2007 declaring

that he has 1/3rd share in property bearing Municipal No.91/9,

Block-C, Wazirpur Industrial Area, New Delhi and that his two

brothers Hari Ram Gupta and Rameshwar Dass Gupta have

1/3rd share each in the said property. Similarly, in respect of

property No.387, Block-D, Sabzi Mandi, Azadpur, finding

returned is that each brother has 1/3rd share in the said

property.

4. The suit for partition embraced other properties in

the State of Haryana in respect whereof the share of each

sibling i.e. the three brothers and the sister has been held to

be 1/4th each.

5. Hari Ram Gupta and Rameshwar Dass Gupta have

filed the instant appeal restricting challenge to the impugned

judgment and decree dated 21.4.2007 insofar it has

determined the share of Madan Lal Gupta as 1/3rd in the two

properties noted hereinabove situated in Wazirpur Industrial

Area and Sabzi Mandi, Azadpur. They alleged that share of

Madan Lal Gupta in the said two properties is 1/5 th and that

their share in the two properties is 2/5th each. Thus we need

not note the facts relating to the other properties.

6. To appreciate the contentions urged by the

appellants it is necessary to note the reasons which have

weighed with the learned Trial Judge to hold that the three

brothers have 1/3rd share each in the two properties in

question.

7. The land comprising property No.91/9, Block-C,

Wazirpur Industrial Area, New Delhi and Plot No.387, Block-D,

Sabzi Mandi, Azadpur, was demised under a perpetual lease

hold tenure by DDA in favour of Govardhan Dass Gupta. On

the death of Govardhan Dass Gupta, in the records of DDA, the

names of Madan Lal Gupta, Hari Ram Gupta and Rameshwar

Dass Gupta stand mutated as the perpetual lessees. In this

view of the matter, the finding returned by the learned Trial

Judge is as under:-

"When the property was mutated in the name of the plaintiff and defendants No.1 & 2, the other defendants had full knowledge about the property being mutated in the name of plaintiff and defendants No.1 & 2, now except the person mentioned in the mutation no other person is entitled to any share in the property."

8. The case of the appellants was that their mother

and their sister had executed a relinquishment deed dated

27.10.1972, Ex.DW-1/6, where under their mother and their

sister had relinquished their 1/5th share in the two properties in

their favour and in this manner the two brothers became

entitled to 2/5th share each in the two properties.

9. Now, if the wife of the deceased and the daughter

of the deceased did not relinquish their share in the said two

properties, the obvious conclusion has to be that on the death

of Govardhan Dass Gupta, his three sons, his wife and his

daughter each inherited 1/5th share in the said two properties.

10. The learned Trial Judge has discounted the

evidentiary value of the relinquishment deed Ex.DW-1/6 by

holding as under:

"I have seen the relinquishment deed dated 27.10.1972. This relinquishment deed is alleged

i.e. Smt. Kesar Devi and Smt. Bishni Devi. This relinquishment deed is not signed by Smt. Kesar Devi and Smt. Bishni Devi. Since the relinquishment deed is not signed accordingly, this relinquishment deed has no legal effect."

11. Unfortunately, the learned Trial Judge failed to

appreciate that the original relinquishment deed was

submitted to DDA when the three brothers sought mutation of

the lease hold rights in their name upon the death of their

father and Ex.DW-1/6 proved at the trial was the certified copy

of the relinquishment deed obtained by the appellants from

the office of the Sub-Registrar.

12. The relinquishment deed is dated 27.10.1972 and

as explained by learned counsel for the appellants in said year

the Sub-Registrar's office was not equipped with a photocopy

machine. Whosoever applied for certified copies of the

registered documents, the Sub-Registrar gave a true copy

thereof to be prepared by use of a typewriter. The certified

copy of the document was drawn on a non-judicial stamp

paper of Rs.2/-.

13. Indeed, Ex.DW-1/6 is the certified copy of the

relinquishment deed executed by Smt. Kesar Devi and Smt.

Bishni Devi. Obviously, at the place where the two ladies

affixed their signatures as also the place where the witnesses

affixed their signatures the Sub-Registrar could not copy the

same. Thus, the place where Bishni Devi has signed has been

marked with the notation:-

"Sd/-

Bishni Devi"

The place where Kesar Devi has affixed her thumb impression,

the Sub-Registrar has recorded:-

"LTI Kesar Devi"

14. Thus, ex-facie the learned Trial Judge has given

factually incorrect reasons to hold that the relinquishment

deed has no legal effect. The learned Trial Judge failed to

appreciate that the relinquishment deed Ex.DW-1/6 was a

certified copy obtained by the appellants from the office of the

Sub-Registrar. The original was in the record of DDA. The

same was submitted to DDA when mutation was got effected.

15. Ex.DW-1/6 clearly records that Kesar Devi and

Bishni Devi have relinquished their 1/5th share each in the two

properties in favour of the appellants.

16. In this connection it would be relevant to note that

the appellants had examined as DW-3 Shri Girish Kumar, UDC

from the Land Sale Brach of DDA who deposed:

"I have seen the relinquishment deed dated 27.10.1972 which is in our file executed by Smt. Kesar Devi and Bishni Devi. The said relinquishment deed is already Ex.DW-1/6."

17. It would also not be out of place to record that

Kesar Devi filed a written statement in which she supported

the appellants by pleading in para 10 of the written statement

that she and her daughter had executed a relinquishment

deed in favour of the appellants.

18. Looked at from any angle, the learned Trial Judge

has committed a serious procedural irregularity by treating as

if Ex.DW-1/6 was the original relinquishment deed. The learned

Trial Judge has ignored the testimony of DW-3 who stated that

the original relinquishment deed was in the file of DDA and

was executed by Kesar Devi and Bishni Devi and that Ex.DW-

1/6 was a copy thereof.

19. As noted above the learned Trial Judge has given

two reasons against the appellants. The first is that the

relinquishment deed does not bear the signatures of the

executants. The second is that the property stands mutated in

the name of the three brothers.

20. We have given our reasons hereinabove to negate

the first reasoning by the learned Trial Judge.

21. Pertaining to the second reasoning, suffice would it

be to state that a mutation entry is never treated as proof of

title. See Navalshanjar Ishwarlal Dave & Ors. vs. State of

Gujarat & Ors. AIR 1994 SC 1496, Sawarni vs. Inder Kaur &

Ors. AIR 1996 SC 2823, Sankalchan Jaychandbhai Patel & Ors.

vs. Vithalbhai Jaychandbhai Patel & Ors. (1996) 6 SCC 433 and

Balwant Singh & Ors. vs. Daulat Singh AIR 1997 SC 2719.

22. What has happened in the instant case is that

processing the case for mutation on death of Govardhan Dass

Gupta and taking cognizance of the relinquishment deed

executed by Kesar Devi and Bishni Devi, DDA has merely

made an entry in its record that the three sons of Govardhan

Dass Gupta have inherited the perpetual lease hold rights.

23. Obviously, DDA excluded Bishni Devi and Kesar

Devi as the successor-in-interest of Govardhan Dass Gupta

because of the relinquishment deed executed by them. The

inevitable conclusion has to be that the benefit of the relief

must enure to the beneficiary named in the relinquishment

deed i.e. the appellants.

24. The appeal succeeds as prayed for.

25. Maintaining the impugned judgment and decree

dated 21.4.2007 insofar it relates to the other properties, we

modify the same pertaining to the property No.91/9, Block-C,

Wazirpur Industrial Area, New Delhi and Plot No.387, Block-D,

Sabzi Mandi, Azadpur by holding that the share of the

appellants in the said two properties is 2/5th each and that of

respondent No.1 is 1/5th.

26. Since the impugned judgment and decree is a

preliminary decree declaring respective shares of the parties

we direct the learned Trial Judge to proceed ahead for

finalization of the claim for partition in light of the judgment

and decree passed by us today.

27. No costs.

PRADEEP NANDRAJOG, J.

J.R.MIDHA, J.

NOVEMBER 14, 2008 rk