Jawahar Lal Khanna Through Legal ... vs Jia Lal Khanna & Ors
2009 Latest Caselaw 2049 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS)1292/1992

%                                      Date of decision: 14.05.2009

JAWAHAR LAL KHANNA
THROUGH LEGAL REPRESENTATIVES                          .......         Plaintiff
                             Through: Mr. S.C. Singhal, Advocate

                                    Versus

JIA LAL KHANNA & ORS.                              .......    Defendants
                             Through: Mr. Vivek Sharma, Proxy counsel for
                             Mr. Ashish Makhija, Advocate for defendant No.1


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.    Whether reporters of Local papers may
      be allowed to see the judgment?   Not Necessary

2.    To be referred to the reporter or not?          Not Necessary

3.    Whether the judgment should be reported
      in the Digest?  Not necessary


RAJIV SAHAI ENDLAW, J.

1. Partition of House No.B-III/31, Lajpat Nagar, New Delhi and

commercial building bearing Municipal No.XIII/2407-15 (New)

Teliwara, near Sadar Bazar, Delhi is sought.

2. According to the plaint, the plaintiff and the defendants

No.1&2 are brothers; their father Sh. Panna Lal Khanna was the

owner of the aforesaid two properties; the father died on 29th July,

1975 leaving his widow and other children also besides the plaintiff

and the defendants No.1&2; that the father left a Will dated 1st May,

1973 bequeathing the aforesaid two properties to the plaintiff and

the defendants No.1&2 in equal shares after the demise of his wife

Smt. Bishan Devi; that Smt. Bishan Devi also died intestate on 29th

November, 1975; that the Will dated 1st May, 1973 of the father has

been probated by the court of the District Judge, Delhi vide order

dated 14th April, 1980. The plaintiff claims to be in possession of a

part of the house in Lajpat Nagar; the defendant No.1 is in

possession of another part of the said house; the remaining house as

well as the entire property at Teliwara are stated to be tenanted. The

cause of action for the suit was stated to be receipt of letter by the

plaintiff from the Asstt. Settlement Commissioner, Govt. of India

impleaded as defendant No.3 being the lessor of the land underneath

the Lajpat Nagar house, inviting objections, if any, of the plaintiff to

the application of the defendant No.1 for mutation of the Lajpat

Nagar house from the name of the father to himself.

3. The defendant No.1 contested the suit. The defence of the

defendant No.1 is that he had been issued letters of administration

with Will (Supra) annexed of the father; that the plaintiff as well as

the defendant No.2 had given affidavits in the said proceedings

stating that both the aforesaid properties had been constructed by

the defendant No.1 and all the expenses of construction had been

borne by the defendant No.1 and that the rent from the tenants in

both the properties were being realized by the defendant No.1 only,

even during the lifetime of the parents. The defendant No.1 also

pleaded that the defendant No.2 had also executed a relinquishment

deed dated 24th April, 1984 registered on 26th April, 1984 in his

favour and confirming that the defendant No.1 is the owner of the

properties in question. The defendant No.1 contends that the

properties were acquired by him only in the name of his father and

that he is the absolute owner thereof and the plaintiff or the

defendant No.2 have no share in the same.

4. The defendant No.2 was proceeded against ex-parte on 16th

January, 1996. The defendant No.3 (Asstt. Settlement

Commissioner) which is a proforma party was also proceeded against

ex-parte.

5. On 15th February, 2006, the following issues were framed:-

1. Whether the suit property is a joint property of plaintiff and

defendant Nos.1 & 2? OPP

2. Whether the defendant No.1 is the exclusive owner of the

suit property and superstructure erected over it? OPD

3. Whether the defendant No.1 has borne out the entire

expenditure and paid all the dues in respect of suit

property? OPD

4. Whether the plaintiff and the defendant No.2, stopped (SIC

are estopped) from challenging the title of defendant No.1

in respect of suit property in view of the execution of

affidavit and deed of relinquishment in favour of defendant

No.1? OPP

5. Whether the plaintiff is entitled to a decree of partition to

the extent of 1/3rd share in the suit property? OPP

6. Whether the plaintiff is entitled for rendition of accounts? If

yes, for which period and for what amount? OPP

7. Whether the suit is not maintainable as being barred by

limitation and hit by the law of estopple? OPD

8. Whether the suit is not maintainable in view of the letter of

administration granted by the successor Court as being a

judgment in rem and is not open for challenge to (SIC by)

the parties? OPP

9. Whether the suit is bad for non-joinder of the parties? OPP

10. Whether the suit has not been properly valued for the

purposes of court fee and jurisdiction? OPP

11. Relief.

6. On 8th May, 2006 an application of the plaintiff for restraining

the defendant from dealing with the two properties was for

consideration. The counsel for the defendant No.1 stated that he had

already made a statement to the effect that he will not sell the Lajpat

Nagar property. The defendant No.1 present in person also

informed that the Teliwara property had been sold more than ten

years ago. On 23rd August, 2006, the application of the defendant

No.1 for direction to the defendant No.3 L&DO to execute lease deed

of the Lajpat Nagar property in his exclusive name was dismissed.

While doing so, this court observed that even though letters of

administration have been issued in favour of the defendant No.1 but

that did not make the defendant No.1 the exclusive owner of the

property.

7. The plaintiff died before giving evidence. His son and widow

were substituted in his place.

8. Though the legal heirs of the plaintiff had also filed the

affidavit by way of examination in chief of the defendant No.2 as a

witness of the plaintiff but he did not appear for his cross

examination; only Mr. Nishith Khanna son of the deceased plaintiff

was examined. He was cross examined by the counsel for the

defendant No.1. The defendant No.1 filed his affidavit by way of

examination in chief but failed to appear for cross examination

inspite of repeated opportunities. Ultimately, vide order dated 21st

July, 2008 the evidence of the defendant No.1 was closed.

9. The counsel for the plaintiff has been heard. The counsel for

the defendant No.1 has filed written agreements.

My issue-wise findings are as under:-

Re. Issue No.1 (Whether the suit property is a joint property of plaintiff and defendant Nos.1 & 2? OPP)

10. The admitted position is that the suit properties are recorded

in the names of the father of the plaintiff and the defendants

No.1&2. It is further the admitted position that the father of the said

parties left a Will. Letters of administration with copy of the said Will

annexed were ordered to be issued vide order dated 14th April, 1980

of the District Judge, Delhi. The said order has been proved as

Exhibit PW-1/2 and a certified copy of the Will dated 1st May, 1973

has been proved as Exhibit PW-1/1.

11. The Will dated 1st May, 1973 is of some significance and the

relevant portion thereof is reproduced herein below:-

"Whereas I bequeath my properties (i) No.B-III/31, Lajpat Nagar (residence house) (ii) No.XIII/2407-15 (New) Teliwara, Delhi in favour of my wife Smt. Bishan Devi after my death. I shall however, remain the owner of these properties during my lifetime. Whereas my wife Smt. Bishan Devi shall be the exclusive owner of the aforesaid properties during her lifetime. In case she does not make any Will during her lifetime, the aforesaid properties shall fall to my legal heirs namely (i) Jia Lal Khanna (ii) Din Dayal Khanna

(iii) Jawahar Lal Khanna in equal shares.

"Whereas the self properties are my self made properties out of my earnings and are not ancestral properties."

12. Exhibit PW-1/2 i.e. the order dated 14th April, 1980 of the

District Judge, Delhi ordering issuance of letters of administration

with Will annexed. It shows that the petition for letters of

administration was filed jointly by the plaintiff as well as the

defendants No.1&2 and letters of administration were vide the said

order granted jointly to the plaintiff and the defendants No.1&2.

The plaintiff has also filed certified copy of the petition dated 13th

October, 1976/9th February, 1977 on which the aforesaid order dated

14th April, 1980 was made. Though no Exhibit mark has been put on

the said petition but being a certified copy and being a undisputed

document and with an intent to appreciate the matter fully I deemed

it appropriate to read the same into evidence. In the said petition,

the plaintiff as well as the defendants No.1&2 have stated that the

properties mentioned in Schedule „A‟ to the petition were the

properties of the father Sh. Panna Lal Khanna. The properties

mentioned in Schedule „A‟ to the petition include the aforesaid two

properties with respect to which this suit has been filed. Thus as on

the date of the institution of the petition for grant of letters of

administration or even at the time of grant thereof the defendant

No.1 did not contend that in fact he was the sole owner of the said

two properties and his father had no right to make a Will with

respect thereto. On the contrary, the petition for grant of letters of

administration was filed jointly by the plaintiff and the defendants

No.1&2 claiming to have become entitled to the properties as equal

owners thereof on the demise of their parents.

13. At this stage, the two affidavits forming the main stay of the

case of the defendant No.1 may be considered. The said affidavits

are also undisputed. The son of the plaintiff appearing as the

witness admitted the signature of the deceased plaintiff on the

original of the said affidavit dated 10th November, 1976 filed before

the District Judge in proceeding aforesaid. The affidavit executed by

the deceased plaintiff is Exhibit PW-1/D-1. In the said affidavit the

deceased plaintiff has stated that the Lajpat Nagar house was

constructed by the defendant No.1 in the year 1953-54 and all

expenses incurred in construction etc. were borne by the defendant

No.1 and the defendant No.1 was also realizing rent from the

tenants from time to time, even during the lifetime of the parents.

The said affidavit does not concern the other property at Teliwara.

14. The case of the defendant No.1 is that owing to the said

affidavit the plaintiff is estopped from claiming any share in the

properties. In the written arguments filed by the counsel for the

defendant No.1 it is contended that the said affidavit constitutes a

judicial estopple against the plaintiff. The contention of the

defendant No.1 is not found tenable. The affidavit nowhere admits

the defendant No.1 to be the owner of the property and does not

negate the rights of the father of the parties and in exercise of which

right the Will had been made. Shortly, prior to the date of the said

affidavit, all parties had stated in the petition for letters of

administration that the property was of the father. A statement that

the property was constructed by the defendant No.1 and that the

expenses of construction were borne by the defendant No.1 and that

the rent was being realized by the defendant No.1 does not

constitute the defendant No.1 as the owner of the property. The

affidavit does not state that the father of the parties had permitted

the defendant No.1 to raise construction in exercise of rights as

owners. Merely because a son constructs at his own expense the

structure over the land in the name of the father, does not constitute

the son as the owner of the property. The principle of accretion

applies, in the absence of any contract. Similarly, mere realization of

rent from the tenants by the son, of the property in the name of the

father, does not make the son the owner of the property.

15. Another relevant aspect is in that notwithstanding the said

affidavit, the petition for letters of administration was pursued and

the letters of administration ordered to be issued jointly in the name

of the plaintiff and the defendants No.1&2. Had the purport of filing

the said affidavit been to extinguish the rights, if any, of the plaintiff

and the defendant No.2 in the property, the prayer in the petition for

letters of administration would have been amended thereafter and

the letters of administration sought in the name of the defendant

No.1 only.

16. The defendant No.1 has filed before the court the photocopy of

the letters of administration dated 28th May, 1990 ultimately issued

pursuant to the order dated 14th April, 1980 (Supra). The said letters

of administration is in the name of the defendant No.1 only. The

said document has not been proved, the defendant No.1 having not

led any evidence. Ordinarily, the letters of administration ultimately

issued ought to have been in consonance with the order directing

the same to be issued. The photocopy of letters of administration

even if read in evidence, shows the same to have been issued to the

defendant No.1 only, though pursuant to order dated 14th April, 1980

(Supra). There is no explanation whatsoever as to why the letters of

administration was issued in favour of one of the persons only

instead of three persons in whose favour it was ordered to be issued.

Again, that would still not make the defendant No.1 the owner of the

property. Administration was granted to him to administer the estate

in accordance with law. The law of succession in this case being the

Will aforesaid annexed to the letters of administration and

whereunder the properties had been bequeathed equally to

defendant No.1, plaintiff and the defendant No.2. Thus the issuance

of the letters of administration in the name of the defendant No.1

does not take away the joint character of the properties. The

defendant No.1 even as the sole administrator is to distribute the

properties according to the Will.

17. The defendant No.1 has also filed a photocopy of a registered

relinquishment deed stated to have been executed by the defendant

No.2 of his share in the aforesaid two properties in favour of the

defendant No.1. The said relinquishment deed again has not been

proved. Even if it were to be read, the same is qua the share of the

defendant No.2 only and not the share of the plaintiff.

18. I had during the hearing, inquired from the counsel for the

plaintiff as to the language of the Will aforesaid. It was felt that

under Will Sh. Panna Lal Khanna bequeathed to his wife Smt. Bishan

Devi the properties absolutely; Shri Panna Lal Khanna had no right

to bequeath the properties after the demise of his wife to the

plaintiff and the defendants No.1&2. It was put to the counsel for

the plaintiff as to how the suit for partition was maintainable when

admittedly there were other heirs also of Smt. Bishan Devi. The

principle as enshrined in Mauleshwar Mani Vs. Jagdish Prasad

AIR 2002 SC 727 being that once the testator has given a absolute

right to a devisee, it is not open to the testator to further bequeath

the same property in favour of second set of persons. The testator

cannot create successive legatees in his Will.

19. The counsel for the plaintiff has contended that the estate

given to Smt. Bishan Devi under the Will is a lifetime estate only and

not absolute estate and thus Sh. Panna Lal Khanna was competent to

Will the properties after the lifetime of his wife. Reliance in this

regard has been placed on Sadhu Singh Vs. Gurdwara Sahib

Narike (2006) 8 SCC 75 and T.K. Subhash Vs. Kamla Bai AIR

2008 Andhra Pradesh 169.

20. It is also the contention of the counsel for the plaintiff that the

property has always been treated as the property of the plaintiff and

defendants No.1&2 only and on this basis only the other legal heirs

of Sh. Panna Lal Khanna and Smt. Bishan Devi had given their no

objection to the grant of letters of administration. Observations in

this regard in the order dated 14th April, 1980 granting letters of

administration have also been made.

21. Even though I had raised the query aforesaid but on further

consideration I do not deem it appropriate to enquire into it further.

The question involves interpretation of Will, i.e. whether thereunder

Smt. Bishan Devi was given a life estate or absolute estate and even

if life estate, the impact of Section 14 of Hindu Succession Act,

thereon. If life estate was given, then Sh. Panna Lal Khanna was

competent to, after the demise of Smt. Bishan Devi bequeath the

properties to plaintiff and defendants No.1&2 only. However, if the

properties were bequeathed absolutely to Smt. Bishan Devi, then

Shri Pana Lal Khanna was incompetent to thereafter bequeath the

properties to plaintiff and defendants No.1&2 only and in which case

on demise of Smt. Bishan Devi not only plaintiff and defendants

No.1&2 but her other natural heirs will also have a share in the

property. The suit has already been pending since 1992. It appears

that the other heirs have not made any claim to the property till

now. It is basically the plaintiff and the defendant No.1 only who are

litigating with respect to the same. Neither of the courses, either

impleading the other heirs as parties to this suit or of dismissing the

suit for this reason are in the circumstances found feasible. I,

therefore, proceed to adjudicate the suit on the premise of plaintiff

and defendants No.1&2 only getting the properties under the Will

aforesaid.

More so when the decision in the present suit would not affect

the rights, if any, of any other heirs in any case.

22. The issue No.1 is thus decided in favour of the plaintiff and

against the defendant No.1 and it is held that the suit properties are

the joint properties of the plaintiff and the defendants No.1&2.

Re. Issue No.2 (Whether the defendant No.1 is the exclusive owner of the suit property and superstructure erected over it? OPD).

23. In view of the findings on issue No.1, this issue necessarily has

to be decided against the defendant No.1. Even otherwise the

defendant No.1 has not led any evidence whatsoever of being the

exclusive owner of the properties. Reference in this regard may also

be made to the provisions of the Benami Transfer Prohibition Act,

1988, after the promulgation whereof the present suit has been filed.

The plea of the defendant No.1 of being the owner, in the face of the

property being in the name of the father is in the teeth of the said

law.

Re. Issue No.3 (Whether the defendant No.1 has borne out the entire expenditure and paid all the dues in respect of suit property? OPD)

24. The defendant No.1 has not led any evidence of having borne

the expenditure or of having paid the dues of the property. However

as far as bearing expenditure in construction of the property is

admitted in affidavit Exhibit PW-1/D1 of the deceased plaintiff, the

same would still not constitute the defendant No.1 as the sole owner

of the property. The issue is thus decided against the defendant No.1

and in favour of the plaintiff.

Re. Issue No.4 (Whether the plaintiff and the defendant No.2, stopped from challenging the title of defendant No.1 in respect of suit property in view of the execution of affidavit and deed of relinquishment in favour of defendant No.1? OPP)

25. I have in issue No.1 already held that the execution of the

affidavit dated 10th November, 1976 does not constitute estopple

against the plaintiff from claiming share in the property. Even

otherwise, the rights in immovable property cannot be extinguished

by estopple except under Section 41 of the Transfer of Property Act.

As far as the deed of relinquishment is concerned, there is no plea of

the plaintiff having executed any deed of relinquishment. The plea of

the defendant No.1 is of the defendant No.2 only relinquishing his

share in the property. Even though, the defendant No.2 has in the

relinquishment deed (which as aforesaid has also not been proved)

stated that the property belonged to the defendant No.1 only but the

same would not be binding on the plaintiff. Thus the claim of the

plaintiff to a share in the property would not be affected by the

affidavit or by the deed of relinquishment. The issue is decided in

favour of the plaintiff and against the defendant No.1.

Re. Issue No.5 (Whether the plaintiff is entitled to a decree of partition to the extent of 1/3rd share in the suit property? OPP)

26. Axiomatically, the plaintiff is found entitled to a decree for

partition to the extent of his 1/3rd share in the properties. The issue

is decided in favour of the plaintiff and against the defendant No.1.

Re. Issue No.6 (Whether the plaintiff is entitled for rendition of accounts? If yes, for which period and for what amount? OPP)

27. The plaintiff having been found entitled to the relief of

partition and the defendant No.1 having claimed to have sold one of

the properties, the plaintiff is also found entitled to the relief of

accounts against the defendant No.1. The defendant No.1 as co-

owner is found liable to account to the plaintiff as other co-owner

particularly when the defendant No.1 admittedly has been dealing

with the properties. The plaintiff has claimed accounts w.e.f. 3 years

prior to the institution of the suit and the said claim is found to be

valid. This issue is decided in favour of the plaintiff and against the

defendant No.1.

Re. Issue No.7 (Whether the suit is not maintainable as being barred by limitation and hit by the law of estopple? OPD)

28. The cause of action for a suit for partition is the denial of claim

therefor. In the present case, the denial by the defendant No.1 of the

right of the plaintiff to a share in the properties was only by applying

to the L&DO for mutation of the property in his name only. The

L&DO informed the plaintiff of such claim of the defendant No.1 vide

its letter dated 24th April, 1992. The suit was filed immediately

thereafter and is thus found to be within time. The counsel for the

defendant No.1 in written arguments has contended that the plaintiff

has approached after 17 years; probably from date of demise of Smt.

Bishan Devi in 1975. However, as aforesaid letters of administration

were jointly applied for in 1976, ordered to be jointly issued in 1980.

Even if the date of issuance of letters of administration in 1990 is to

be reckoned, the suit was filed within two years therefrom. Merely

because the defendant No.1 alone pursued for letters of

administration would not bar the plaintiff‟s relief of partition. The

plea of estopple of the defendant has already been dealt herein

above. The issue is decided in favour of the plaintiff and against the

defendant No.1.

Re. Issue No.8 (Whether the suit is not maintainable in view of the letter of administration granted by the successor Court as being a judgment in rem and is not open for challenge to the parties? OPP).

29. The grant of administration to the defendant No.1 does not

constitute the defendant No.1 as the sole owner of the property of

which administration has been granted to him. In this case, the

letters of administration is with a copy of the Will annexed. Under

the said Will the property has been bequeathed equally to the

plaintiff and the defendants No.1&2. Such was the case of the

defendant No.1 also in the petition for grant of letters of

administration. The order dated 14th April, 1980 also provides for

grant jointly to the plaintiff and the defendants No.1&2. Thus the

ultimate grant even if in the name of the defendant No.1 only is no

bar to the present suit.

Re. Issue No.9 (Whether the suit is bad for non-joinder of the parties? OPP)

30. In the light of discussion under Issue No.1 above, the suit is

held to be not bad for non-joinder of parties. Even otherwise under

Order 1 Rule 9 CPC, no suit can be defeated for the reason of non-

joinder of parties. This issues is decided in favour of the plaintiff and

against the defendant No.1.

Re. Issue No.10 (Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPP)

31. The plaintiff was admitted to be in possession and enjoyment

part of the property. In the circumstances, fixed court fee was

payable on the plaint. The suit is found to have been properly valued

for the purposes of court fee and jurisdiction. This issue is also

decided in favour of the plaintiff.

Re. Issue No.11 (Relief).

32. Even though, in view of my findings herein above, the

preliminary decree declaring the plaintiff and the defendants

No.1&2 to be having 1/3rd undivided share each in the property

follows, but considering long length of time the litigation has already

remained pending in the first court and further considering that the

defendant No.2 has chosen not to contest the suit, even though the

defendant No.1 has failed to prove the relinquishment deed executed

by the defendant No.2 of his 1/3rd share in the properties in favour of

the defendant No.1, I am inclined to believe the same. Declaring the

defendant No.2 also to be having 1/3rd share would further delay the

final decree in the suit. Thus, (i) a preliminary decree for partition of

the properties aforesaid is passed declaring the plaintiff to be having

1/3rd and the defendant No.1 to be having 2/3rd share therein.

(ii) a decree for accounts is also passed in favour of plaintiff and

against defendant No.1 directing the defendant No.1 to render

accounts with respect to aforesaid two properties, with effect from

three years prior to institution of suit.

Decree sheet be drawn up.

33. The defendant No.1 has on a frivolous and vexatious defence

held up disposal of this suit for nearly 17 years. I, therefore, burden

the defendant No.1 with exemplary costs of Rs.50,000/- payable to

the plaintiff. However, if the defendant No.1 is not found delaying

disposal of the proceedings post preliminary decree, the cost today

imposed shall be entitled to be waived.

RAJIV SAHAI ENDLAW (JUDGE) May 14, 2009 PP