Sat Pal Sharma & Anr. vs Nirmal Sharma
2008 Latest Caselaw 1641 Del

10
*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      RFA No.909/2003

                       Date of decision: 12th September, 2008
%
SAT PAL SHARMA & ANR.                  ..... Appellant
                  Through : Mr. Pankul Nagpal, Adv.

                  versus

NIRMAL SHARMA                                ..... Respondent
                        Through : Sunil Malhotra, Adv.

CORAM :-
THE HON'BLE MR.JUSTICE PRADEEP NANDRAJOG
THE 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 the judgment should be
         reported in the Digest?


Pradeep Nandrajog, J. (Oral)

1. Heard learned counsel for the parties.

2. Trial Court Record has been perused.

3. The appeal is being disposed of finally.

4. Vide Ex.P.W.1/5 (a sale deed dated 12.12.1966) suit

property therein Municipal No. X/191 (Old No.290/3), Tagore

Gali, Gandhi Nagar, Delhi ad-measuring 100 sq.yds. was

purchased in the name of Smt. Amrato Rani wife of Gobind Ram

and Smt. Vidyawati wife of Sat Pal Sharma.

5. Smt. Amrato Rani died on 27.04.1997.

6. Ms. Nirmal Sharma claimed that she was the adopted

daughter of Amrato Rani and Gobind Ram. She further claimed

that her mother Amrato Rani had executed a will in her favour

being the will Ex.P.W.8/1 dated 04.04.1997. She additionally

stated that to secure her i.e. Nirmal Sharma, her mother

Amrato Rani had executed an agreement to sell, Power of

Attorney, document, etc. Ex.P.W.1/6 to Ex.P.W.1/10. She

stated that under the will and the documents, Ex.P.W.1/6 to

Ex.P.W.1/10, share of Amrato Rani in the property was

bequeathed to her.

7. She claimed that after her mother died she was in

possession of half share in the property and that Satpal Sharma

and Smt. Vidyawati had dispossessed her.

8. Satpal Sharma is the husband of Smt. Vidyawati.

9. It is, thus, obvious that Nirmal Sharma was the plaintiff

and Satpal Sharma and Smt. Vidyawati were the defendants in

the suit filed by Nirmal Sharma claiming possession.

Alternatively, she sought a decree for partition.

10. Vide impugned judgment and decree dated 06.11.2003,

Learned Trial Judge has held that Nirmal Sharma is half owner

of the suit property. Preliminary decree in her favour has been

passed holding her to be having ½ share and the matter has

been listed for further proceedings to partition the property by

metes and bounds.

11. We note that Nirmal Sharma's claim for damages/mesne

profits has been dismissed.

12. We note that Nirmal Sharma has not filed any cross-

objections or a cross-appeal.

13. The case of Satpal Sharma and Smt. Vidyawati was that

Satpal Sharma had paid the entire sale consideration when the

property was purchased and that he had got recorded Amrato

Rani's name and the name of his wife as the purchasers

because they were mere name lenders. Thus, the defence was

that the property was purchased benami by Satpal Sharma.

14. The claim of Nirmal Sharma to be the adopted daughter of

Amrato Rani and Gobind Ram was disputed.

15. Needless to state, two main issues which arose between

the parties, were whether the suit property was owned by

Amrato Rani and Vidyawati as co-owners thereof, each having

50% share; and whether Nirmal Sharma was the adopted

daughter of Amrato Rani and Gobind Ram and whether Amrato

Rani had executed the will Ex.P.W.8/1.

16. Nirmal Sharma produced 8 witnesses, PW-1 to PW-8. The

defence produced 5 witnesses DW-1 to DW-5.

17. With reference to the testimony of PW-5, who stated that

he was present when the sale deed Ex.P.W.1/5 was executed

and that the sale consideration was paid by Gobind Ram,

Learned Trial Judge has returned a finding against the

defendants.

18. In a nutshell, the Learned Trial Judge has held that he

who alleges that a property was purchased benami has to lead

cogent evidence to establish that he had funded the purchase

and that the presumption would be in favour of the recorded

owners of the property to have paid the sale consideration.

Noting that there was no evidence led by the respondents to

prove that Satpal Sharma had paid the sale consideration when

the sale deed Ex.P.W.1/5 was executed, finding returned is that

Amrato Rani and Vidyawati were the owners of the property.

19. The Learned Trial Judge has also referred to the Municipal

House Tax record which shows that the two ladies i.e. Amrato

Rani and Vidyawati had been paying the property taxes in

relation to the property.

20. On the issue whether Nirmal Sharma was the adopted

daughter of Amrato Rani and Gobind Ram, Learned Trial Judge

has referred exhibits i.e. Ex.P.W.1/1 to Ex.P.W.1/3, being the

school certificates of Nirmal Sharma, which record her father's

name as Gobind Ram. The second evidence considered by

the Learned Trial Judge is the testimony of Smt. Satya Rani

who appeared as PW-4. Smt. Satya Rani, the biological mother

of Nirmal Sharma deposed that her daughter Nirmal Sharma

was given in adoption at the age of six.

21. The third evidence taken note of by the Learned Trial

Judge is a complaint Ex.D.W.1/3 made by Satpal Sharma, the

defendant no.1, to the local police i.e. PS Shalimar Bagh, when

a dispute qua the possession of the property surfaced. In

Ex.D.W.1/3, he stated that Nirmal Sharma, the adopted

daughter of Amrato Rani and Gobind Ram was trying to meddle

with the possessory rights of the property.

22. From the aforesaid documentary and oral evidence, the

Learned Trial Judge has returned a finding that Nirmal Sharma

has successfully proved that she was the adopted daughter of

Amrato Rani and Gobind Ram.

23. With reference to the testimony of the attesting witnesses

of the will, Ex.P.W.8/1, Learned Trial Judge has held that the

will was proved.

24. The Learned Trial Judge has also considered the

alternative, that even if the will is not proved and there being no

other will propounded, Nirmal Sharma would still be entitled to

inherited the interest of Amrato Rani being her adopted

daughter.

25. Learned counsel for the appellant could not show to us

any document wherefrom it stands established that Satpal

Sharma paid the money when the suit property was purchased

in the joint names of Smt. Vidyawati and Amrato Rani. In that

view of the matter, the presumption in favour of the purchasers

of the sale deed having paid the valuable consideration would

stand, meaning thereby, that the plea of benami fails.

26. Having perused the testimony of PW-5, who we note was

present when the sale deed Ex.P.W.5 was executed, we are

reassured that Gobind Ram, the husband of the Amrato Rani

paid the proportionate sale consideration.

27. Pertaining to the plea whether Nirmal Sharma was the

adopted daughter of Amrato Rani and Gobind Ram, suffice

would it be to state that the complaint, Ex.D.W.1/3, made by

defendant no.1 to the police contains admissions fatal to the

defence; being the admission that Nirmal Sharma was the

adopted daughter of Amrato Rani and Gobind Ram.

28. The biological mother of Nirmal Sharma, namely, Satya

Rani who appeared as PW-4 proved the fact of her daughter

being given in adoption. Further, the school certificates

Ex.P.W.1/1 to Ex.P.W.1/3 conclude the issue conclusively in

favour of the Nirmal Sharma.

29. At this stage, learned counsel for the appellants states

that he has just now been instructed by the son of the

appellants, namely, Shri Sudesh Kumar Sharma that the

appellants are prepared to pay to the respondents 50% value of

the suit property.

30. The respondent, Nirmal Sharma who is present states that

she is prepared to take Rs. 30 lakhs as her half share in the

suit property, provided the amount is paid to her within three

months from today.

31. Learned counsel for the appellants on instructions from

the son of the appellants states that the appellants would be

convinced by their son to pay Rs. 30 lakhs to Nirmal Sharma.

32. Since final partition of the property by metes and bounds

has yet to be effected and the present appeal lays a challenge to

the preliminary decree, we dismiss the appeal sustaining the

preliminary decree.

33. The Learned Trial Judge would consider the offer of the

respondent as accepted by the son of the appellants so that the

respondent can be given her half share in the suit

property by giving half value thereof in money.

34. No costs.

35. Trial Court Record be returned.

PRADEEP NANDRAJOG, J.

J.R. MIDHA, J.

SEPTEMBER 12, 2008 aj