Shri Kulwant Singh vs Dr. Laljee Kent & Ors
2010 Latest Caselaw 2858 Del

$~2&3
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          DECIDED ON: 01.06.2010

+                              CS (OS) 77/2009
                               CRL. M.A. 5433/2009
                               I.A. Nos.6456-6457/2009
                                        &
                               CS (OS) 925/2009

       CS (OS) 77/2009

       SHRI KULWANT SINGH                                       ..... Plaintiff
                      Through: Ms. Amita Sehgal Mathur, Advocate.

                      versus

       DR. LALJEE KENT & ORS                                         ..... Defendants
                        Through: Mr. Rajesh Yadav with
                        Ms. Ruchira Arora, Advocates.


       CS (OS) 925/2009

       LALJEE KENT                                                      ..... Plaintiff
                               Through: Mr. Rajesh Yadav with
                               Ms. Ruchira Arora, Advocates.

                      versus

       KULWANT SINGH & ANR                                    ..... Defendants
                      Through: Ms. Amita Sehgal Mathur, Advocate.


       CORAM:
       MR. JUSTICE S. RAVINDRA BHAT

1.

     Whether the Reporters of local papers       YES
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?          YES

3.     Whether the judgment should be              YES
       reported in the Digest?

CS (OS) 77/2009 & CS (OS) 925/2009                                             Page 1
        MR. JUSTICE S.RAVINDRA BHAT (OPEN COURT)

%      The present order will deal with and dispose of rival contentions of the parties in

the two suits. In CS (OS) 77/2009, the plaintiff Kulwant Singh who is also the sole

defendant in CS (OS) 925/2009, sought decree for possession against the defendant, of

the entire ground floor portion of the property being C-31, measuring 500 Sq. Yds,

Greeen Park (Main), New Delhi (hereafter referred to as suit property). In the second

suit, i.e. CS (OS) 925/2009, Dr. Laljee Kent, the plaintiff seeks a decree for partition in

respect of the same property along with other consequential reliefs.

2. The undisputed position emerging from the pleadings in CS (OS) 77/2009 and CS

(OS) No.925/2009 are described briefly as follows. Shri Kulwant Singh was a member

of the Indian Audit and Accounts Services (IAAS). He acquired the suit property; in

support of this plea, he has placed on record series of documents, such as the original

Sale Deed dated 8.5.1958 and several receipts issued by Urban Improvement Housing

and Construction Company Ltd. dated 21.8.1955, 31.8.1955, 31.10.1955, 22.12.1955,

5.3.1956, 29.12.1956, 12.2.1957, 31.3.1958 and 10.12.1960. He has also produced the

permission of the Accountant General (Central Revenues), New Delhi dated 31.7.1970,

returning the insurance policy for Rs.25,000/-. Shri Kulwant Singh also relies upon the

permission sought for construction upon the suit property dated 2.2.1976.

3. According to Shri Kulwant Singh - who is father of Dr. Laljee Kent and Wiley

Singh - the second defendant in CS (OS) 925/2009 and also the father-in-law of Dr.

Vandana Kent and grandfather of Ashish Kent (arrayed as defendant Nos.2&3

respectively in CS (OS) 77/2009), the construction on the suit property was completed up

to the ground floor level, sometime in 1960 and he was in peaceful occupation and

CS (OS) 77/2009 & CS (OS) 925/2009 Page 2 enjoyment of the property. It is averred that after construction of the ground floor,

Kulwant Singh rented out that portion to different tenants who are described in paragraph

10 of the suit for the period 1961-74. It is alleged that in 1976, Kulwant Singh

constructed three bed rooms with attached bathrooms on the first floor out of his savings

and loans raised from his relatives. He also relies upon an application seeking

permission for putting up such construction, written to the Comptroller and Auditor

General of India dated 2.2.1976. A copy of that letter has been produced as Annexure

P/5.

4. Shri Kulwant Singh retired from service in 1978; his suit adverts to legal

proceedings, which were previously initiated against an erstwhile tenant and culminated

in decree of this Court in 1979. The suit also mentions about the ground floor and first

floor of the premises, which were rented out to different tenants at different intervals in

paragraph-13. Kulwant Singh contends that Dr. Laljee Kent solemnized his marriage in

1982, after which he worked abroad continuously, first in Saudi Arabia and thereafter in

different places. The suit also avers that Ashish, son of Dr. Laljee Kent continued to

reside in the premises, as his education took place in St. Columbus School, New Delhi.

It is further stated that the Kulwant Singh's second son Wiley Singh got married in 1986.

The suit also mentions about further construction on the remaining portion of the first

floor sometime in 1986.

5. It is common ground that Dr. Laljee Kent and his wife decided to return to India

in 2002. Shri Kulwant Singh mentions that at that stage they requested for temporary

accommodation for six months. Various allegations about neglect by Dr. Laljee Kent

and his wife of their father Kulwant Singh have been leveled in the suit. It is alleged that

CS (OS) 77/2009 & CS (OS) 925/2009 Page 3 despite being asked to move out on several occasions, Dr. Laljee Kent and his family did

not do so. The suit allegations against Dr. Laljee Kent and his family highlight what are

termed as acts of neglect, which according to the plaintiff made living a hell in the

premises. Kulwant Singh also alleges that his younger son's wife is also a victim of the

mis-behaviour and misconduct of his elder son and his family.

6. In the suit, Kulwant Singh adverts to legal notices demanding that his elder son

Dr. Laljee Kent should vacate the premises, dated 20.05.2004, 5.7.2004 and 10.8.2004.

Copies of two of such notices have been produced as Annexures to the suit. The suit

also mentions about yet another notice, dated 29.12.2007 and a further incident which

impelled Kulwant Singh to approach the police authority, on 1.7.2008, through a

complaint. On the basis of these allegations Shri Kulwat Singh seeks a decree for

possession against Dr. Laljee Kent and the other defendants in CS (OS) 77/2009.

7. Dr. Kent (referred to as such in the present order) in his written statement, as well

as in the CS (OS) 925/2009, even while not disputing the manner in which the suit

property was acquired by Kulwant Singh, i.e. his father, the initial construction upon the

property in 1960 with the aid of Kulwant Singh's funds and the further circumstance that

he was employed abroad, disputes that Kulwant Singh is the exclusive owner of the

property. The case set up (in the written statement in CS (OS) 77/2009, as well as in his

suit - CS (OS) 925/2009) is that sometime in 1986, he (Dr. Kent), Kulwant Singh and his

younger brother Willey Singh entered into an oral family arrangement whereby it was

agreed that all the said three parties were entitled to 1/3rd ownership and interest in the

entire suit property. It is also contended by Dr. Kent in his suit that the money for

construction of the first floor and barsati portions on the suit property were given by him

CS (OS) 77/2009 & CS (OS) 925/2009 Page 4 to his father Shri Kulwant Singh and that he has, therefore, proprietary rights.

8. In support of the contentions that the parties had entered into an understanding

whereby the property was to be shared in the proportion of 1/3rd to each of them, i.e. the

father and two sons, Dr. Kent relies upon certain hand written documents exhibited

during the course of the proceedings, in the statements recorded by Shri Kulwant Singh

and Dr. Kent on 24.07.2009. The same are marked as Ex.P4/D1 and P5/D1. These

disclose that a sum of Rs. 1,58,000/- was acknowledged by Kulwant Singh as having

received from Dr. Kent. It is contended that besides this amount Dr. Kent advanced

further amount in cash to the extent of almost Rs.2 Lakhs. The averments in this regard

is that the total amount so advanced to Kulwant Singh was to the tune of Rs.3,58,000/-.

Dr. Kent argues in both the suits that to effectuate this oral family settlement, his father

Shri Kulwant Singh had acknowledged in house tax returns for the year 1994-95 that he

(Dr. Kent) was a co-owner, and a copy of such house tax return filed with the local

municipal authority, i.e., MCD has been produced along with the list of defendants'

documents.

9. Dr. Kent also relies upon counter foils of cheques received from the tenants and

deposited by Kulwant Singh into his account as evidencing the claim for oral family

settlement. These documents are dated 25.5.1999, 19.5.2000 and 19.4.2001. It is

specifically pointed out that on the reverse of each of these documents, the purpose, i.e.

deposit of rent received by Dr. Kent has been entered by Shri Kulwant Singh himself.

Besides these documentary material, Dr. Kent further relies upon the documents Exhibit

P4/D1 and P5/D1 to say that on five different dates, i.e. 15.7.1986, 1.9.1986, 3.10.1986,

12.11.1986 and 3.12.1986, specific amounts were withdrawn by Shri Kulwant Singh

CS (OS) 77/2009 & CS (OS) 925/2009 Page 5 from his (Dr. Kent's) account for the purpose of construction of the first floor and other

portions of the property.

10. This Court had after considering the averments and hearing the submissions of the

parties in an application - I.A.510/2009 in CS (OS) 77/2009, directed Dr. Kent and the

other members of his family to hand over one of the bed room in their possession closest

and proximate to the plaintiff's bed room and attached bathroom and give possession to

him within two weeks. The relevant discussion in this regard is as follows: -

―12. In this case, the plaintiff has been able to establish that he is the owner of the plot; he also built the ground floor, and also a part of the first floor- witnessed by the letter written to the government, seeking permission in that regard. The defendants also acknowledge these facts, particularly about ownership. Their plea is based on an ―oral partition‖ which is explained by the first defendant, in his statement to the court as having been achieved through a series of telephonic conversations, spread over a period of time. The details of this arrangement have not been revealed; besides, the question of an oral partition of the property, owned by one person, exclusively, conferring rights to others, who do not own it, is ex-facie unsound in law; it is apparently untenable. Such an arrangement to be recognized and enforced, prima facie are to be recorded in registered documents. It is also a matter of the record that the first two defendants do not reside in the ground floor portion which they have possession of; their son, the third defendant, is apparently likely to stay there - at the moment, he does not live there. The first defendant states that his son ―lived‖ in a portion, and he ―used to‖ study in St. Columbus School. His affidavit shows that when the common written statement was filed, he was not even in India; during a later visit in March, 2009, he affirmed the written statement, by an affidavit, admitting that he was studying a management course in the United Kingdom. Apparently, the first two defendants own other properties. The plaintiff and his wife are of advanced age; both are ailing from debilitating, even ailments. The plaintiff's wife suffers from Parkinson's disease. They have to depend on domestic help for their daily chores, and are residing in one portion of the ground floor; besides the common space, they have only one bed room. The defendants control the other two bedrooms.

               XXX                          XXX                            XXX



CS (OS) 77/2009 & CS (OS) 925/2009                                                    Page 6

14. In this court's opinion, all the circumstances discussed above reveal that the plaintiff has been able to demonstrate a strong prima facie case, of the kind required of in Warden, warranting an interim mandatory order. In the event of refusal of such order, the plaintiffs' prejudice would be irreparable, because having regard to his age, and that of his wife, and their medical complications, they are unlikely to live for long. The process of trial and their eventual success at a later stage, in the circumstances, might be no consolation, if either - or both- of them are not able to survive for that long.

15. In view of the above discussion, the defendants are directed, by an interim mandatory injunction, to handover one of the bedrooms in their possession, closest and proximate to the bedroom and attached bath, in possession of the plaintiff, to him, within two weeks from today. An undertaking to comply with the order, in the form of an affidavit, shall be filed within five days; the affidavit of compliance with these directions shall be filed within 20 days. I.A. No. 510/2009 is allowed in these terms. The defendants shall bear the costs of these proceedings, quantified at Rs. 30,000/- to be paid to the plaintiff, within two weeks.‖

11. The defendant in CS (OS) 925/2009, Shri Kulwant Singh, did not file written

statement. On 28.04.2010, it was contended by Shri Kulwant Singh that the pleadings

and materials on record were sufficient for the Court to decree his suit CS (OS) 77/2009

by virtue of provisions of Order-12, Rule-6 CPC. Dr. Kent, on the other hand, had

argued that such a decree on alleged admission could not be drawn and since Kulwant

Singh did not file any written statement in CS (OS) 925/2009, the consequences

mentioned in Order-8, Rule-10 CPC would have to follow and the Court would have to

make appropriate order or decree. The Court had, in addition, to this aspect, also

indicated that the parties had the effect of the Benami Transaction (Prohibition) Act,

1988. Learned counsel for the parties made their submissions on all the three aspects

indicated above today.

12. It is argued by Ms. Amita Sehgal Mathur that all the essential ingredients, which

empower the Court to direct a decree on admission are present in this case. It is

CS (OS) 77/2009 & CS (OS) 925/2009 Page 7 submitted that the circumstances under which the suit property was acquired in 1958 out

of Shri Kulwant Singh's funds clearly point to its being self acquired property; that he

put up the ground floor construction in 1960 has not been denied. It is submitted that in

these circumstances, the so called dispute pertaining to the defendant (Dr. Kent)

acquiring 1/3rd share or interest in the property, based on his allegations that this asset

was always treated as HUF property, is untenable. It is argued that in order to sustain

such a claim, i.e. the self acquired property becoming joint family property, there should

be some clear indication of divesting such ownership or extent of such ownership,

through a registered document such as relinquishment deed or partition deed. Absent

that, says Shri Kulwant Singh, there is no question of the Court entertaining any plea, as

unlike in the case of an admitted joint family property where specific shares can be dealt

with through partition or recorded as a memorandum, herein argument of the defendant is

that of acquisition of entirely new share, which hitherto did not existed. Kulwant Singh

relies upon the written statement in CS (OS) 77/2009 to say that Dr. Kent was born in

1952 and, therefore, could not have laid claim to the suit property as HUF property,

acquired in 1958 by his father.

13. It is submitted that so far as the question of Dr. Kent claiming title through

estoppel evidenced by documents Ex.P4/D1 and P5/D1 and the house tax return for the

year 1994-95 (which disclosed Dr. Kent as co-owner) are concerned, the same do not, in

any way, deter the essential nature and character of the property as a self acquired and

absolute property of Kulwant Singh. It is submitted that at best, the defendant Dr. Kent

can claim that the money advanced by him - Rs.1.58 Lakhs or Rs.3.5 Lakhs has to be

returned to him but that cannot form the basis of a valid claim to have acquired a share in

CS (OS) 77/2009 & CS (OS) 925/2009 Page 8 the suit property. It is pointed out that the amounts were in fact returned as has been so

pleaded in the replication.

14. It is lastly argued that since there is no denial that the suit property stands in the

name of Kulwant Singh, no-one else - either Dr. Kent or any other member of the family

can lay a claim to a title. It is submitted that what essentially the defendant Dr. Kent is

contending is that even though he is 1/3rd owner of the property, the same continues to be

hold by Kulwant Singh - a plea which cannot be urged in view of Section 3 & 4 of

Benami Transaction (Prohibition) Act, 1988. It is submitted that in fact said plea has not

even been urged. Learned counsel emphasis that if the defendant's claim were to be

withheld, it is something which cannot be countenanced in law.

15. Mr. Rajesh Yadav, learned counsel for Dr. Kent submitted that the pleadings and

the evidence on the record should inhibit the Court from drawing any decree in CS (OS)

77/2009. It is submitted that once the defendant Dr. Kent has established that he made

contributions for acquiring the property, or constructing on it, the question as to whether

the parties had entered into an oral understanding dividing the property becomes one fact,

triable in the suit. It is also pointed out that there are several circumstances which the

Court should keep in mind in this regard such as the admitted position that Shri Kulwant

Singh was receiving rents in the name of Dr. Kent all of which are borne out by the three

receipts placed on the record. The two documents which were exhibited on 24.7.2009

and admitted by the plaintiff Shri Kulwant Singh. Importantly house tax returns for

1994-95, were acknowledged by Shri Kulwant Singh as being filed by him in the

statement recorded by the Court. It is submitted that the pleadings and documents, taken

as a whole, are sufficient to prevent the Court from exercising its discretion under

CS (OS) 77/2009 & CS (OS) 925/2009 Page 9 Order-12 Rule-6 as they raised triable issues on several aspects for which the defendant

Dr. Kent is entitled to lead evidence.

16. Mr. Yadav, Advocate relies upon the decision of the Supreme Court in Kale &

Ors v. Dy. Director of Consolidation & Ors. AIR 1976 SC 807, wherein it was held that

the Court should give sanctity and as far as possible uphold family arrangements even

though they might not be recorded or reduced in writing. Specific reliance is placed

upon the observation that family arrangements can even be oral in which case no

registration of documents is necessary. Learned counsel relied upon the judgment of the

Bombay High Court in Dr. Neelkanth Krishnarao Apte v. Dr. Ramchandra Krishanrao

Apte AIR 1991 Bombay 10, and submitted that under somewhat analogous and similar

circumstances, a property held by the father, portions of which were constructed upon

with the assistance of the sons' finances were held to be the part of the HUF property,

therefore, both the father and sons were declared entitled to one half share each in the

same.

17. It is lastly urged that as to whether the amount paid by Dr. Kent to his father was

a loan or a contribution can only be revealed in a full-fledged trial into the rival

allegations leveled by the parties.

18. To this Court's mind, the following facts and circumstances are admitted and

established: -

(i) Kulwant Singh purchased the suit property from his exclusive funds in

1958. The defendant i.e. Dr. Kent was merely six years then. His

younger brother was also a minor.

CS (OS) 77/2009 & CS (OS) 925/2009                                                 Page 10
        (ii)    The initial construction i.e. up to the ground floor level on the suit

property was put up similarly with the aid of Kulwant Singh's earnings as

a Central Government employee.

(iii) Dr. Kent, after completing his education and marriage, went abroad in

1982 and remained there for the next 20 years.

       (iv)    Kulwant Singh retired in 1978.

       (v)     The existing portions of the property were let out from time to time to

several tenants. One such tenant did not vacate the premises; this led to

Shri Kulwant Singh approaching this Court for a decree of possession

which was granted in 1979. Even thereafter the premises were being let

out to one concern or the other.

(vi) In 1986, the other existing portions of the property i.e. first floor and part

of the second floor was built.

(vii) Dr. Kent concededly gave Rs.1.58 Lakhs to Shri Kulwant Singh during the

period 1986-88.

19. The chronology and sequence of events after 1986 and the circumstances in which

the construction of the further portions of the property was made is a subject matter of

dispute. Shri Kulwant Singh contends that the amount given by Dr. Kent was to be

treated as a loan and that he had returned the same. Dr. Kent, on the other hand, submits

that there was no question of loan (even in his statement recorded by the Court, he

pointedly stated that no son would give a loan to his father). Dr. Kent, on the other

hand, states that the amount was given as his contribution towards his share of the

CS (OS) 77/2009 & CS (OS) 925/2009 Page 11 construction in the property - some kind of a quid pro quo for the entitlement to the 1/3rd

undivided share of the property.

20. The question that the Court would have to consider, therefore, is whether on these

admitted pleadings and documents, decree can be drawn. This is linked with the other

two questions, i.e., whether the suit - CS (OS) 925/2009 can be decreed since the

defendant Kulwant Singh neglected and defaulted in filing the written statement. The

last question which this Court has to address is whether the plea of Dr. Kent amounts to

an assertion of benami ownership and is thus prohibited.

21. The provisions of Order-12, Rule-6 CPC have been interpreted time and again.

Broadly speaking the Court is entitled to pass a decree or direct such decree as can be

conveniently drawn on the basis of pleadings and such other materials as may exist on the

record. As to what is the appropriate standard to be applied is no longer a matter of

debate. The Supreme Court in the judgment reported as Uttam Singh Duggal and Co.

Ltd. v. Union Bank of India and Ors AIR 2000 Supreme Court 2740 stated as follows: -

―12. As to the object of the Order XII, Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that ―where a claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. ―We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed.‖

Textually, there is nothing in Order-12, Rule-6 which limits the powers of the Court to

await the application of the party seeking a decree. It has thus been held (refer Nicholas

CS (OS) 77/2009 & CS (OS) 925/2009 Page 12 Piramal India Ltd. v. B.N. Chadha (deceased) through LRs & Ors. 133 (2006) DLT 573

(DB) that a decree can be conveniently and expeditiously drawn even in the absence of

an application by the party seeking it and if the requisite condition spelt out in the

provision exists.

22. The standard applicable, as noticed earlier, is that the admission should be of such

a nature as to be unambiguous. At the same time, the Courts have also clarified that it is

not every defence in a suit which would entitle the party to trial but such defence as is

tenable or sustainable in law (Sunrise Construction v. Veena Wahi 2009 (111) DRJ 710).

In a previous decision of this Court in Vijaya Myne v. Satya Bhushan Kaura 142 (2007)

DLT 483 (DB), the Court held as follows: -

"The admission can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored.

23. Having regard to the above established law, this Court has to first examine

whether the existing materials on record would necessitate the trial as is urged by the

defendant Dr. Kent or whether the pleadings and materials including the documents and

statements of parties are sufficient for drawing a decree in both the suits.

24. The materials on record clearly point to the suit property been having acquired by

CS (OS) 77/2009 & CS (OS) 925/2009 Page 13 Shri Kulwant Singh out of his earnings. While there is no dispute that upon the birth of

sons to a Hindu family, an undivided family is deemed to have been created. There is no

presumption or assumption that every property owned by one or other member of the

family is a part of the joint family property. This aspect was clarified in Srinivas v.

Narayan, AIR 1954 SC 379 where it was held as follows:-

i) Proof of existence of joint family does not lead to a presumption that property held by any Member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish that fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question have been acquired, the burden shifts to the party alleging self-acquisition to establish that property was acquired without the aid of joint family funds.

ii) The mere proof of existence of joint family nucleus out of which acquisitions should have been made is not sufficient. The important thing to consider is whether the income which the nucleus yields is sufficient to lead to an inference that acquisitions were made with that income. A building in the occupation of the members of a family yielding no income could not be a nucleus out of which acquisitions could be made even through it might be of considerable value.

25. This decision was again reiterated and implied in M. Girimallapa v. R.

Yellappagouda AIR 1959 SC 906. Again in Rukhmabai v. Laxminarayan AIR 1960 SC

335, it was held as follows: -

"...there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu Family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property."

CS (OS) 77/2009 & CS (OS) 925/2009 Page 14 On an application of the above principle, it would be apparent that acquisition of the suit

property in 1958 did not mean that it became HUF property to which Dr. Kent and his

younger brother could lay claim as is sought to be urged now. This position was not

disputed by Dr. Kent whose counsel submitted that the plea set up is that the family

treated the suit property as joint family asset and that the rights in respect of the same got

crystallized after 1986.

26. While there is no dispute that the Courts have to lean in favour of a family

settlement or arrangement and as far as possible honour them without looking into

minutae the rights and liabilities of coparceners at the same time, the Court has to be

mindful of the circumstances of each case. In Kale's decision (which has been relied

upon by Dr. Kent) the Court did not rule out creation of new rights, by the family

arrangement or settlement. In the present case, Dr. Kent does not dispute the

circumstances in which his father acquired the property. On an application of the

principle declared by the Supreme Court, the property thus was the absolute and self

acquired asset of Kulwant Singh. The matter can be looked up from another angle also.

According to the Hindu Gains of Learning Act, 1937, the acquisition of a Hindu male on

account of a profession, calling or vocation in which he is engaged, would not be deemed

a joint family asset. This is clear from the following provisions of the Act, which are as

follows: -

               XXX                                    XXX                             XXX

       (b)     ―gains of learning‖ means all acquisitions of property made substantially

by means of learning, whether such acquisitions be made before or after

CS (OS) 77/2009 & CS (OS) 925/2009 Page 15 the commencement of this Act and whether such acquisitions be the ordinary or the extraordinary result of such learning; and

(c) ―learning‖ means education, whether elementary, technical, scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or a vocation in life.

3. Gains of learning not to be held not be separate property of acquirer merely for certain reasons.-- Notwithstanding any custom, rule or interpretation of the Hindu Law, no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by reasons of--

(a) his learning having been, in whole or in part, imparted to him by any member, living or deceased, of his family, or with the aid of the joint funds of his family, or with the aid of the funds of any member thereof, or

(b) himself or his family, having, while he was acquiring his learning, been maintained or supported, wholly or in part, by the joint funds of his family, or by the funds of any member thereof.‖

Thus, the legal character of the suit property always remained one as absolute and self

acquired property of Kulwant Singh.

27. The question, therefore, is whether the oral partition or family arrangement set up

by Dr. Kent, based upon the exhibited documents and the house tax receipts placed on the

record, are sufficient to draw the presumption of such asset being self acquired property

of his father.

28. Now it is well settled that a party claiming a right or interest in any immovable

property which is not HUF property (as in the present case) has to disclose by positive

evidence that title was in fact conferred upon him. Such title can be created either by

relinquishment deed, gift deed or any other instrument amounting to a valid conveyance.

The statement of Dr. Kent recorded on 24.7.2009 clearly concedes that there is no

documentary evidence to support the plea for oral partition. In fact, Dr. Kent answered

CS (OS) 77/2009 & CS (OS) 925/2009 Page 16 to specific questions declining that any correspondence between him and his father with

regard to such oral family arrangement existed. He, however, asserted that such a

partition or family arrangement took place through telephonic conversation and verbal

assurances. In the opinion of this Court, the plea of such oral partition in the facts of this

case has to fail. As held earlier, the property being the exclusive and self acquired

property of Kulwant Singh there was no question for him to treat the same as joint family

property in the absence of any document much less the registered document. Had the

intention of the parties been to create any legally binding relationships, (having regard to

their status in the society), there would have been an effort to reduce it into writing and

ensure that it is enforceable, by having it registered.

29. So far as the documents relied upon by Dr. Kent i.e. Ex.P4/D1 and P5/D1 and

house tax returns for the year 1994-95 are concerned, this Court is of the opinion that at

best Dr. Kent can assert that some amounts were advanced to his father which were used

for constructing other portions of the property. Ex.P4/D1 and P5/D1, therefore, are of no

assistance as at best they can only establish that such amounts were advanced and utilized

for construction. So far as the house tax return is concerned, it has been settled that such

municipal or revenue documents can never be a proof of title and that in any event they

did not create any interest in the property (ref. Nedunuri Kameswaramma v. Sampati Subba

Rao AIR 1963 SC 884). Significantly enough beyond relying upon the house tax return

for a solitary year, there is no further evidence to establish that for any previous or later

period Kulwant Singh has disclosed Dr. Kent as co-owner of the property. In view of the

above discussion, it is held that the defence raised by Dr. Kent are not of such a kind as to

warrant trial and that pleadings on the record are sufficient for the Court to draw a decree

CS (OS) 77/2009 & CS (OS) 925/2009 Page 17 in both the suits.

30. The second question as to whether the failure of Kulwant Singh to file a written

statement in CS OS) 925/2009 would impel the Court to render judgment in favour of the

plaintiff Dr. Kent. Here, it would be necessary to notice the text of Order-8, Rule-10

CPC as follows: -

"8. XXX

10. Procedure when party fails to present written statement called for by Court - Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up."

Facially, the provisions itself indicates that the Court is not bound to render a judgment in

the absence of a written statement but is invested with a discretion to pass the appropriate

orders as the circumstance may warrant. In the given facts of the case, the material on

record may be sufficient for the Court to decree the suit in full or in part. Equally, it is

possible that having regard to the totality and nature of the claim the Court may be

satisfied that the suit is not tenable.

31. For the reasons spelt out in the earlier part of the judgment, it has been concluded

that Dr. Kent's claim that he is a 1/3rd undivided owner of the suit property, cannot be

countenanced. This Court holds that the claim for partition is also not tenable.

32. The third question which this Court has to address is itself as to the applicability

of the Benami Transaction (Prohibition) Act, 1988. Linked with this is also the question

whether in the circumstances of this case and under similar circumstances there can be a

presumption of the property being joint. Shri Kulwant Singh had relied upon a Division

CS (OS) 77/2009 & CS (OS) 925/2009 Page 18 Bench ruling of this Court in Krishan Dev Sharma & Ors. v. Som Dutt Sharma 58 (1995)

DLT 424 (DB) wherein it has been held as follows: -

"Defendants also pleaded that the pot on which the house was built was purchased in the name of the plaintiff as Karta of HUF out of the money arranged by HUF. Defendants have examined as many as 19 witnesses including most of them appearing as their own witnesses including most of them appearing as their own witnesses. But we do not find any evidence that there was any HUF of the parties of which either Shanti Devi was the Manager of the plaintiff was the Karla. The evidence however, does show that after the death of Kundan Lal all the family members did live together as on unit and the plaintiff being the eldest son and earning member was liking after the interest of the family, and so also the first defendant to an extent and other sons as ant when they started earning though at the time of death of Kundan Lal they were studying. All this, however, does not make the family member5s as members or the HUF, as alleged by the defendants. Simply because after the death of their father children were living together and were sharing common kitchen did not mean that there was any HUF which owned the property. There is no such presumption. Mere multiplicity of witnesses does not prove the point in issue. We may even believe the evidence of the defendants that all the brothers and even perhaps their mother, contributed their might in buying the leasehold rights of the plot and constructing the house thereon by the plaintiff. But that again will not make the house and the plot a HUF property. By contributing various amounts in the construction of the house in the name of the plaintiff, the defendants do not any right, title or interest in that property. They can at best say that the property was purchased and built benami by them in the name of the plaintiff, but then this plea would admittedly be barred by Benami Transactions (Prohibitions) Act, 1988, and on that account Mr. Makhija, learned counsel for the defendants rightly did not advance any claim on Benami transaction. His stress was that the plaintiff in whose name the property was held was a coparcener in a Hindu Undivided Family and that the property was held for the benefit of the coparceners in the family (see Sub-section (3) of Section 4 of the Act).

But then we have seen above that there is no Hindu Undivided Family of which the plaintiff and defendants could be the members. The learned Additional District Judge had considered all the relevant evidence on this issue No.4 and he rightly came to the conclusion that in view of the established facts that the plaintiff gave bid of the plot; that perpetual lease deed was executed in his name; that the plaintiff took loan in his personal name from the Government for construction of the house and got the plans sanctioned for construction of the house and also raised several amounts for the construction of the house himself and coupled

CS (OS) 77/2009 & CS (OS) 925/2009 Page 19 with the facts that the defendants had themselves acquired properties in their own names and had also motor vehicles and on that account there was no allegation that those properties were also Joint Hindu Family properties; it had to be held that it was the plaintiff who was the owner of the property. He also observed that it appeared that plaintiff took certain loans from the defendants which he did not pay and as such the defendants and other common relations came forward to depose against the plaintiff due to his dishonest intention is not paying those amounts nevertheless he held that would not make the property a HUF property and held issue No.4 against the defendants."

33. Relevant provisions of Benami Transaction (Prohibition) Act, 1988 is extracted as

below: -

―Definitions. - In this Act, unless the context otherwise requires, -

(a) ―Benami transaction‖ means any transaction in which property is transferred to one person for a consideration paid or provided by another person;

(b) ―prescribed‖ means prescribed by rules made under this Act;

(c) ―property‖ means property of any kind, whether movable or immovable tangible or intangible, and includes any right or interest in such property.‖

3. Prohibition of benami transactions. - (1) No person shall enter into any benami transaction.

       (2)    Nothing in sub-section (1) shall apply to -
              (a)     the purchase of property by any person in the name of his wife or

unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;

              (b)     the securities held by a -
                      (i)     depository as registered owner under sub-section (1) of
                      Section 10 of the Depositories Act, 1996
                      (ii)    participant as an agent of a depository.

       (3)    Whoever enters into any benami transaction shall be punishable with

imprisonment for a term which may extend to three years or with fine or with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable.

4. Prohibition of the right to recover property held benami. - (1) No suit, claim or action to enforce any right in respect of any property held benami

CS (OS) 77/2009 & CS (OS) 925/2009 Page 20 against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

       (3)     Nothing in this section shall apply, -
               (a)     where the person in whose name the property is held is a

coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.‖

34. Now, the plea of Dr. Kent of being 1/3rd undivided owner besides being

unsupported by any documentary evidence, also in the opinion of the Court is hit by the

mischief of Section-3. Right from 1986, despite the ownership exclusively being that of

Kulwant Singh, Dr. Kent asserts 1/3rd undivided ownership. Although not stated overtly,

the inarticulate premise here also appears that a certain amount - being a sum of Rs.3.5

Lakhs was paid for the purpose of construction and perhaps as a consideration for the

1/3rd share (in the alleged family settlement) asserted in the suit - CS (OS) 925/2009 and

as the defence in CS (OS) 77/2009. If this Court were to proceed with the trial, the

prohibition from entertaining the claim that would be negated and the trial would provide

a platform to someone claiming to be real owner as against the benami owner. The well

known principle of law is that what cannot be achieved directly, cannot be done

indirectly. Although, Dr. Kent does not assert that he is a benami owner, the trial if

proceeds, would involve an enquiry whether he is the real owner of 1/3rd share though the

absolute owner is his father Kulwant Singh.

35. For these reasons, this Court is of the opinion that the suit CS (OS) 925/2009 is

CS (OS) 77/2009 & CS (OS) 925/2009 Page 21 also hit by the provisions of Section 3 & 4 of the Benami Transaction (Prohibition) Act,

1988. The defence in CS (OS) 77/2009 is not maintainable so far as it asserts the 1/3 rd

ownership or share in the suit property. In view of the above discussions, the Court is

satisfied that the suit - CS (OS) 77/2009 has to succeed. For the same reasons, CS (OS)

925/2009 has to be rejected.

36. Accordingly, CS (OS) 77/2009 is decreed in its terms and CS (OS) 925/2009 is

dismissed.

37. In the circumstances of the case, the defendant in CS (OS 77/2009 shall bear the

cost quantified at Rs.25,000/- and in addition counsel fee quantified as Rs.25,000/- for

each set of proceedings.

                                                               S. RAVINDRA BHAT
                                                                    (JUDGE)
JUNE 01, 2010
/vd/




CS (OS) 77/2009 & CS (OS) 925/2009                                              Page 22