Smt.Rekha Khanna vs Sh.Joginder Pal Kohli & Ors
2009 Latest Caselaw 64 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


+                   RFA (OS) 2/2008 and CM 523/2008


%                                     Date of decision: 13.01.2009


SMT.REKHA KHANNA                                  ...APPELLANT

                           Through:   Mr.R.S.Sahni, Advocate.

                                  Versus

SH.JOGINDER PAL KOHLI & ORS                       ...RESPONDENTS

                           Through:   Mr.Arun       Khosla         and
                                      Mr.Shreeanka              Kakkar,
                                      Advocates for R-1.

                                      Mr.Mahipal      Singh         Dral,
                                      Advocate for R-6.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA, J.

1. Whether the Reporters of local papers may be allowed to see the judgment? No

2. To be referred to Reporter or not? No

3. Whether the judgment should be No reported in the Digest?

SANJAY KISHAN KAUL, J. (Oral)

1. One Sh. Ram Lal Kohli enrolled himself as a member of

the Refugees Cooperative Housing Society Limited. The

Society changed its name to Punjabi Bagh Cooperative

Housing Society Limited ('the Society' for short). Sh.

Ram Lal Kohli passed away in 1956 leaving behind his

widow Smt. Lajwanti, two sons and four daughters. He

had made a nomination in favour of his wife Smt.

Lajwanti and thus the membership of the society was

transferred to Smt.Lajwanti. The Society allotted plot

no.13 at Road No.60 measuring 279.55 sq.yards in

favour of Smt.Lajwanti in the land of the Society. The

title of Smt.Lajwanti was perfected by execution of a

sale deed in her favour on 16.04.1962 which was duly

registered on 27.04.1962.

2. Smt. Lajwanti executed a sale deed dated 26.03.1966 in

favour of her son Mr.Joginder Pal Kohli, which was duly

registered. A house was constructed on the said plot in

the year 1967. She passed away in the year 1968.

3. A suit came to be filed on the original side of this Court

being CS(OS)1440/2000 by Sh.Mela Ram, the other son

of Smt. Lajwanti impleading Sh. Joginder Pal Kohli as the

first defendant and the four sisters as defendant nos.2 to

5. The Society was impleaded as defendant no.6. The

suit filed was for partition, declaration and permanent

injunction. The case set up in the plaint was that

Smt.Lajwanti, though was a nominee and became a

member of the Society, held the property on behalf of

the legal heirs and each of the legal heirs was entitled to

1/7th undivided share in the plot. The plaintiff Sh.Mela

Ram claimed that he had contributed towards the

construction of the property and being the elder brother

got his sisters married off. The plaintiff and the sisters

were stated to be in constructive possession of the

property though the physical possession was solely with

Sh.Joginder Pal Kohli, defendant no.1.

4. It is admitted that no steps were taken to get the shares

separated till 01.07.2000 when the plaintiff claimed to

have derived knowledge that defendant no.1 was

negotiating for sale of the property as a whole. The

plaintiff alleged that he had claimed partition which was

declined and the plaintiff came to know of the execution

of the sale deed in favour of defendant no.1 by Smt.

Lajwanti only when the written statement to the suit was

filed by defendant no.1 whereafter the plaint was

amended. The competency of Smt.Lajwanti to execute

the sale deed was called into question.

5. The defence of defendant no.1 was that he was in open,

continuous and uninterrupted possession of the property

and the super structure since 1967 to the exclusion of

the other parties and the same was in pursuance to the

sale deed dated 26.03.1966 which had been executed

with the consent and concurrence of the other legal

heirs. The property also stood mutated in the name of

defendant no.1. Smt.Lajwanti was stated to have paid

the amounts towards the purchase of plot and became

absolute owner and her title was perfected by execution

of a sale deed in her favour which title was in turn

transferred in favour of defendant no.1. The sale deed

was also witnessed by defendant no.4, one of the sisters.

Defendant no.1 further claimed that defendant nos.2

and 3 got married during the lifetime of Smt.Lajwanti

who spent money for the same and defendant nos.4 and

5 lived with defendant no.1 after death of their parents

and it is defendant no.1 who looked after them.

6. Defendant nos. 3 to 5 in their written statement

supported the claim of the plaintiff in respect of partition

of the property. On the pleadings of the parties, the

following issues were framed:

1. Whether the present suit is barred by the provisions of the Benami Transactions Act both on account of challenge to the sale deed dated 27.4.1962 in favour of Lajwanti Kohli and the sale deed dated 26.3.1966 in favour of defendant No.1? OPD

2. Whether the present suit is barred by limitation ? OPP

3. Whether the defendant No.1 is entitled to claim acquisition of ownership over the property by adverse possession in view of the defence taken in the written statement and, if so, its effect in view of pleadings in the present suit? OPD

4. Whether the plaintiff and all other defendants are estopped from questioning the legality and validity of the sale deed dated 16.4.1962 in favour of late Smt. Lajwanti Kohli on account of their consent in that regard? OPD

5. Whether the plaintiff and other defendants are estopped from questioning the legality and validity of the sale deed dated 26.3.1966 in favour of the defendant No.1 having received their share in the sum of Rs.8368.50 paid by defendant No.1 as sale consideration for the plot of land in question to the original owner, late Smt. Lajwanti Kohli? OPD

6. Whether the plaintiff has made any contribution towards the purchase of the plot in favour of Smt. Lajwanti Kohli and also made contribution for the construction of the building and, if so, to what effect? OPP

7. Werther the plaintiff has any share in the suit property and can seek partition thereof and, if so, what is the share of the plaintiff in the suit property? OPP

8. Whether the plaintiff and other defendants were not in the knowledge of the sale deed dated 26.3.1966 in favour of defendant No.1 till 1.7.2000 ? OPD

9. Whether the sale deed dated 26.3.1966 is a forged document and was not executed by the late Smt. Lajwanti Kohli in favour of the defendant No.1 in accordance with law, if so its effect? OPP

10. Whether the plaintiff and the defendants are entitled to partition of the suit property as claimed in the plaint and, if so, for what share the parties hereto are entitled to? OPP

7. The parties led their respective evidence and by

judgment and decree dated 06.11.2007, the suit of the

plaintiff has been dismissed with costs of Rs.50,000/-.

8. The plaintiff has apparently not agitated the matter any

further and the present appeal has been filed by the

original defendant no.3, one of the sisters, claiming that

in a partition suit all parties are plaintiffs and defendants

and since she was also claiming 1/7th share in the suit

property, as set out in her written statement, she has a

equal right to file the present appeal.

9. We have heard the learned counsel for the parties and

our findings on the issues are as under:

Issue No.1

Whether the present suit is barred by the provisions of the Benami Transactions Act both on account of challenge to the sale deed dated 27.4.1962 in favour of Lajwanti Kohli and the sale deed dated 26.3.1966 in favour of defendant No.1? OPD

10. The learned Single Judge has come to the finding that

Smt.Lajwanti had become a member of the Society in

her own right and paid the membership and demand

made by the Society for allotment of land to her.

Sh.Ram Lal Kohli had passed away in the year 1956,

prior to the allotment of any land and as per the

nomination, the membership stood transferred to

Smt.Lajwanti who made payments for the plot. The

provisions of Benami Transactions Act have been held

not to be applicable to the present case since the

membership was personal to Mr.Ram Lal Kohli which

stood transferred to his wife, Ms.Lajwanti, after his

death. The membership had not crystallized into a right

in the property at the time of the death of Sh.Ram Lal

Kohli.

11. The sole submission of the learned counsel for the

appellant is that the nomination in favour of Ms.Lajwanti

could not have deprived the other legal heirs of their

right of succession to the plot and in that behalf has

referred to the judgment of the Supreme Court in

Sh.Vishin N.Khanchandani & Anr. vs. Vidya Lachmandas

Khanchandani & Anr; JT 2000(9) 321. The said case

dealt with the effect of nomination in respect of the

National Savings Certificates which are governed by the

Government Savings Certificates Act, 1959. It was held

that the nomination was only to facilitate release of the

amount in favour of the nominee but the estate

devolved upon all the persons who are entitled to

succession under law. Thus the nominee was entitled to

receive payment but the amount thereafter was to be

disbursed among the legal heirs as there was no

alternative succession created.

12. The aforesaid judgment would not apply to the facts of

the present case as at the time of demise of late Ram

Lal Kohli in 1956, there was only a membership of the

Society. Membership was transferred in favour of his

wife Smt.Lajwanti and no one else claimed a right to the

membership. The payments of the plot of land which

came to be allotted subsequently were made by

Smt.Lajwanti and the sale deed was executed in her

favour in the year 1962 which perfected her title. Thus

Smt.Lajwanti alone became the owner of the property in

question and was thus competent to transfer the rights

by a registered document in favour of any party which

would include defendant no.1, her other son.

13. Learned counsel for the appellant in court has stated

that the appellant was born in the year 1940. She

would thus have attained majority in the year 1958 and

never claimed any right in the membership of the

Society. The plot came to be allotted much later. None

of the legal heirs raised any issue till the year 2000 i.e.

for 38 years after the sale deed was executed in favour

of the mother and for 34 years after the sale deed was

executed in favour of defendant no.1 who remained in

exclusive possession of the property.

14. Learned counsel for the appellant has not been able to

show us why this finding on issue no.1 should be

disturbed and we thus reject any challenge to the said

finding.

Issue No.4

Whether the plaintiff and all other defendants are estopped from questioning the legality and validity of the sale deed dated 16.4.1962 in favour of late Smt. Lajwanti Kohli on account of their consent in that regard? OPD

15. The stand of the original plaintiff and the supporting

defendants was that Smt.Lajwanti was holding the

membership and the property as a trustee on behalf of

all the legal heirs of late Sh.Ram Lal Kohli and deposed

to that effect. Defendant no.4, in fact, stated that she

was not even aware that her mother had become a

member of the Society and thus she had no occasion to

object at any stage. She was, in fact, devoid of any

knowledge as is apparent from her cross examination

and the learned Single Judge has found that her answers

were evasive during cross examination. She claims to

have developed interest in the property only at the time

of its sale. Defendant no.3, appellant herein, deposed

that she had not objected to the execution of the sale

deed in favour of her mother since she was a nominee of

her father, but she expressed her ignorance about when

the payment was made for the plot and who incurred

expenses for construction over the plot. It has come on

the record that the plaintiff had sold away shops left

behind by the father. The plaintiff admitted that he had

not made payments in respect of the plot but the

payments were made by Smt.Lajwanti who did all that

was necessary including applying for making

construction and for completion. In fact, the plaintiff

claimed that he was not even on talking terms with the

family of the defendant no.1 for 50 years. The

deposition also showed that the plaintiff started running

business and suffered losses. He disposed of the shops

and separated from the family some time in the year

1962-63. He contributed not a penny towards the plot or

the construction. In fact, nobody other than the

Smt.Lajwanti did so.

16. The learned Single Judge has rightly held that it does not

lie in the mouth of the plaintiff or any of the defendants

to claim ownership of property jointly or otherwise after

40 years especially when the plaintiff had separated

from the family taking away entire business of his father

and was not even on talking terms with his

brother/defendant no.1. Defendant no.1, being the

other son, was living with his mother and the mother

decided to sell the property to him for which the money

passed through cheque. The conclusion has thus rightly

been reached that Smt.Lajwanti alone was the exclusive

owner of the property.

17. Learned counsel for the appellant in fact did not even

make a serious endeavour to assail the finding and could

say nothing in support of the appellant.

Issue No.5

Whether the plaintiff and other defendants are estopped from questioning the legality and validity of the sale deed dated 26.3.1966 in favour of the defendant No.1 having received their share in the sum of Rs.8368.50 paid by defendant No.1 as sale consideration for the plot of land in question to the original owner, late Smt. Lajwanti Kohli? OPD

Issue No.9

Whether the sale deed dated 26.3.1966 is a forged document and was not executed by the late Smt. Lajwanti Kohli in favour of the defendant No.1 in accordance with law, if so its effect? OPP

18. There could be no impediment in Smt.Lajwanti in selling

the property once she is held to be the exclusive owner.

The relevant witness from the office of the Sub Registrar

has proved the registration of the sale deed. The

witness from the Land and Building Department has

proved that defendant no.1 executed a bond and availed

of a loan for construction of the house. Thus the source

of money for construction of the house by defendant

no.1 has been established. Once again, the findings in

favour of defendant no.1 cannot be assailed and, in fact,

have really not been assailed by the counsel for the

appellant.

Issue No.6

Whether the plaintiff has made any contribution towards the purchase of the plot in favour of Smt. Lajwanti Kohli and also made contribution for the construction of the building and, if so, to what effect? OPP

19. The plaintiff, and for that matter, the supporting

defendants, other than a bald allegation in the pleadings

have failed to establish any contribution towards the plot

or the construction. As noticed above, the plaintiff had

taken over the business of his father including shops and

ruined the same. Defendant no.1 has been able to

establish that he took a loan and constructed on the plot

and the payment for the plot was made by Smt.Lajwanti

who had a registered sale deed in her favour which in

turn was again transferred to defendant no.1 vide a

registered sale deed for valuable consideration. No fault

can be attributed to the findings in favour of defendant

no.1 on these issues.

Issue No.7

Whether the plaintiff has any share in the suit property and can seek partition thereof and, if so, what is the share of the plaintiff in the suit property? OPP

Issue No.10

Whether the plaintiff and the defendants are entitled to partition of the suit property as

claimed in the plaint and, if so, for what share the parties hereto are entitled to? OPP

20. The appellant cannot claim partition unless she has a

share in the estate. The plea is predicated on the plea

of nomination not conferring any right. The learned

Single Judge has come to the conclusion that mere

membership of the Society is a not a propriety right and

the transfer of membership would be dependent on the

rules of the Society. The only person eligible to become

a member of the Society was Smt.Lajwanti. No one else

took any interest in the plot which came to be ultimately

allotted in pursuance to the membership and the

construction was made by defendant no.1. The findings

once again in favour of the defendant no.1 cannot be

faulted.

Issue No.8

Whether the plaintiff and other defendants were not in the knowledge of the sale deed dated 26.3.1966 in favour of defendant No.1 till 1.7.2000? OPD

21. The testimony on record shows that the plaintiff

separated from the family in 1963 while the sisters took

a stand that they had nothing to do with the property at

the relevant stage of time.

22. One of the sisters was even a witness to the sale deed

and there is a contradictory evidence of the plaintiff and

defendant no.3, one of the sisters, as to whether the

sale deed was signed as a witness by her. The fact

remains that a sale deed was duly executed and

registered. No one took any interest in the plot or the

construction thereon and the litigation in question is

purely speculative to somehow extract some money on

account of astronomical increase in prices of land of

which judicial notice can be taken. The other parties

cannot claim jointness of title or constructive possession

with defendant no.1 and the issue has been rightly

decided by the learned Single Judge to which once again

there has been no substantial plea raised by the learned

counsel for the appellant.

Issue No.2 Whether the present suit is barred by limitation ? OPP

23. Learned Single Judge, in our considered view, has rightly

found that the suit is barred by time. The plaintiff

separated in 1963. The sisters took no interest for all

this period of time. No one claimed any right as a

member in the Society or contributed a penny towards

the plot. The construction on the plot was raised by

defendant no.1 as far back as in 1967 after availing of a

loan. Smt.Lajwanti died in 1968 and no suit was filed for

a period of 32 years after her death. It can, in fact,

hardly be said that the suit is within time.

Relief

24. The suit has been rightly dismissed with costs of

Rs.50,000/-. We would have imposed further costs for a

frivolous appeal but for the fact that the parties are

brothers and sisters and costs of Rs.50,000/- already

stands imposed by the learned Single Judge. We hope

better sense now prevails on the remaining parties as

also the appellant who have initiated and prosecuted a

frivolous suit and appeal, which is in the nature of an

extraction/speculative litigation.

25. The appeal and the application are dismissed leaving the

parties to bear their own costs.

SANJAY KISHAN KAUL, J.

JANUARY 13, 2009 SUDERSHAN KUMAR MISRA, J. dm