Delhi High Court
S.Gurdeep Singh vs S.Surjeet Singh & Ors. on 12 September, 2008
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI
+ RFA No.311/2004
S.GURDEEP SINGH ..... Appellant
Through: Mr. S.P.Pandey, Advocate
versus
S.SURJEET SINGH & ORS. ..... Respondents
Through: Ms.Maninder Acharya, Advocate
DATE OF DECISION:
% 12.9.2008
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice Sunil Gaur
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.(Oral)
1. Appellant, S.Gurdeep Singh sought partition of the
estate left behind by the father of the parties, Late S.Hakam
Singh. The defendants in the suit were brothers of S.Gurdeep
Singh namely S.Surjeet Singh and S.Gurmail Singh and their
sister Ms.Avtar Kaur. It was stated in the plaint that S.Hakam
Singh owned 4 immovable properties namely:-
i) House No.2294, Raja Park,
Shakur Basti, Delhi.
(single storey building on an area
measuring about 160 sq. yards)
RFA No.311/2004 Page No.1 of 7
ii) House No.2259, Raja Park,
Shakur Basti, Delhi.
(Double-storey building on an area
measuring about 140 sq. yards)
(iii) Plot of land bearing No.2345, measuring about
225 sq. yards situated just at the back side of
the property bearing No.2294,
Raja Park, Shakur Basti, Delhi.
(iv) Plot of land bearing no.2348/B-1 measuring
about 75 sq.yards in front of the above said
plot (hereinafter referred to as disputed
properties no.1 to 4 respectively).
2. There was no dispute between the parties qua the
ancestral nature of the 3 properties at serial No.i, ii and iv
above. The dispute was whether property bearing No.2345,
Raja Park, Shakur Basti was that of their late father. All the
defendants, in the respective written statements filed, stated
that said property was the self-acquired property of S.Surjeet
Singh.
3. Thus, on the pleadings of the parties the only
material issue which needed adjudication was whether
property bearing No.2345, Raja Park, Shakur Basti was owned
by defendant No.1. Needless to state each party having 1/4th
share in the estate of the father was not in dispute. Qua 3
properties it was not in dispute that being the properties of the
late father and the father having died intestate the same had
to be partitioned amongst the 4 siblings.
RFA No.311/2004 Page No.2 of 7
4. Vide impugned judgment and decree dated
12.4.2004, learned Trial Judge has held that property bearing
No.2345, Raja Park, Shakur Basti, Delhi was that of S.Surjeet
Singh and hence has excluded the same from being
partitioned.
5. The reasoning of the learned Trial Judge is as
under:-
(i) The sale deed of the property in question, Ex.DW-2/P-1, is
in the name of S.Surjeet Singh who was a major when the
property was purchased. The plea of the plaintiff that the
father purchased the said property in the name of S.Surjeet
Singh i.e. that S.Surjeet Singh was a benamidar has been
repelled holding that there was no reason why late S.Hakam
Singh purchased, the same in the name of his son. Learned
Trial Judge has found sustenance in reaching said finding from
the fact that S.Hakam Singh purchased the other 3 properties
in his own name.
(ii) Testimony of DW-4, S.Gurbachan Singh, the
maternal uncle of the wife of S.Surjeet Singh revealed that
Rs.510/- out of the sale consideration of Rs.1,000/- when the
property was purchased was the money gifted to S.Surjeet
Singh at the time of his engagement with the niece of DW-4
and that the balance amount was from the savings of S.Surjeet
RFA No.311/2004 Page No.3 of 7
Singh.
(iii) That the other brother and the sister supported the
case of S.Surjeet Singh was a relevant fact because the said
brother and the sister would lose a share in the property by
supporting S.Surjeet Singh.
6. Learned counsel for the appellant, Sh.S.P.Pandey
has urged at the hearing today that S.Surjeet Singh got
married in the year 1960 and that the testimony of DW-4 did
not inspire any confidence for the reason, in cross-examination
he stated that his niece got married to S.Surjeet Singh in the
year 1962. Counsel urges that this belies the testimony of
DW-4 of witnessing the father-in-law of S.Surjeet Singh gifting
him Rs.510/- at the time of engagement. Second contention
urged is that the learned Trial Judge has gravely erred in
ignoring Ex.PW-1/13-A, Ex.PW-1/1, Ex.PW-1/2, Ex.PW-1/3,
Ex.PW-1/4, Ex.PW-1/5, Ex.PW-1/6, Ex.PW-1/7, Ex.PW-1/8,
Ex.PW-1/9, Ex.PW-1/10, Ex.PW-1/11, Ex.PW-1/12 and Ex.PW-
1/13, which document, according to learned counsel for the
appellant reveal a joint status of the family and that, during his
life time, S.Hakam Singh was realizing the rent of all the 4
properties, meaning thereby was acting as the owner of all the
properties, including the property in dispute.
7. It would be relevant to note that S.Surjeet Singh, in
RFA No.311/2004 Page No.4 of 7
his deposition, stated that he got engaged in the 2nd week of
May 1960. The sale deed Ex.DW-2/P-1 has been executed on
20th May, 1960. That DW-4 stated that the engagement took
place in 1962 is neither here nor there for the reason in the
preceding sentence he stated that his niece got married in the
summer month of the year 1960-65. It is obvious that the
marriage could not take place in the year 1960 as well as in
the year 1965. DW-4 deposed on 30.5.2000 and as per his
deposition was aged 80 years on said date. Being an old man
with failing memory nothing much turns on these minor
discrepancies.
8. He who asserts the plea of a property being benami
has a heavy onus to discharge that the real consideration was
paid by somebody else. The presumption is in favour of the
registered owner being the real owner of the property.
9. Normally, when a purchaser uses the name of
somebody else to purchase a property, effective control and
possession is exercised by he who finances the benami
purchase.
10. There is no evidence that during his life time
S.Hakam Singh exercised control over the property in dispute.
11. Ex.PW-1/1 to Ex.PW-1/13 and Ex.PW-1/13-A relied
upon by learned counsel for the appellant do not reveal that
RFA No.311/2004 Page No.5 of 7
S.Hakam Singh exercised ownership control over the property
in dispute.
12. Ex.PW-1/2 to Ex.PW-1/13 are a record of accounts
roughly maintained in the hand of late S.Hakam Singh. They
only reveal that the deceased used to maintain rough
accounts. They show no more. The documents, at best reveal
some kind of a family discord requiring S.Hakam Singh to show
what he was spending.
13. Ex.PW-1/1 is a memorandum recording that a total
rental income of Rs.18,000/- was accruing and the manner in
which it was being spent. The document is very inchoate and
does not record that the property in dispute was getting a rent
which formed part of Rs.18,000/-. Ex.PW-1/13-A is dated
11.5.1985. It records some kind of dispute between the
appellant and S.Surjeet Singh. It records that the two brothers
have agreed to a settlement within the community. Names of
9 persons have been recorded as the community members
who would resolve the dispute. It is important to note that
Ex.PW-1/13-A does not record that the subject property is in
dispute and that S.Surjeet Singh has agreed that the same be
adjudicated through the intervention of the community
members.
14. In the decision reported as AIR 1974 SC 170 Jai
RFA No.311/2004 Page No.6 of 7
Dayal Poddar Thr. Lrs Vs. Mst.Bibi Hazara & Ors it was held
that the burden of proving that a particular sale is benami and
that the apparent purchaser is not the real owner always rests
on the person asserting it to be so and this burden has to be
strictly discharged by adducing legal evidence of a definite
character which would either directly prove the fact of benami
or establish circumstances unerringly and reasonably raising
an inference of the fact. Similar view was expressed in 2 other
later decisions reported as Bhim Singh Thr. Lrs Vs. Kan Singh
AIR 1980 SC 727 and Prem Kumar Vs. Ved Prakash (49) 1993
DLT 695.
15. We find no merits in the appeal.
16. Dismissed.
17. Costs shall follow.
18. TCR be returned forthwith.
PRADEEP NANDRAJOG, J.
SUNIL GAUR, J.
September 12, 2008
mm
