Delhi High Court
Padam Chand & Anr. vs Lakshmi Devi (Since Deceased) ... on 17 September, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 13th September, 2010.
% Judgment Delivered on: 17th September, 2010.
+ R.S.A.No.237/1982
PADAM CHAND & ANR. ...........Appellants
Through: Mr.Pravir Kr.Jain, Advocate.
Versus
LAKSHMI DEVI (Since Deceased)
Through L.Rs. & ORS. ..........Respondents
Through: Mr.Girish K. Kaul, Advocate
for R-1.
AND
+ R.S.A.No.239/1982
PADAM CHAND & ANR. ...........Appellants
Through: Mr.Pravir Kr.Jain, Advocate.
Versus
LAKSHMI DEVI (Since Deceased)
Through L.Rs. & ANR. ..........Respondents
Through: Mr.Girish K. Kaul, Advocate
for R-1.
AND
+ RC.S.A.No.45/1982
PHOOL CHAND JAIN ...........Appellant
Through: Mr.Girish K. Kaul, Advocate
Versus
PADAM CHAND JAIN & ANR. ..........Respondents
Through: Mr.Pravir Kr.Jain, Advocate.
AND
+ RC.S.A.No.63/1982
PHOOL CHAND JAIN ...........Appellant
Through: Mr.Girish K. Kaul, Advocate
Versus
PADAM CHAND JAIN & ANR. ..........Respondents
Through: Mr.Pravir Kr.Jain, Advocate.
AND
RSA Nos.237 & 239 of 1982 & RC.S.A.Nos.45, 63, 64 & 65 of 1982 Page 1 of 29
+ RC.S.A.No.64/1982
PHOOL CHAND JAIN ...........Appellant
Through: Mr.Girish K. Kaul, Advocate
Versus
PADAM CHAND & ANR. ..........Respondents
Through: Mr.Pravir Kr.Jain, Advocate.
AND
+ RC.S.A.No.65/1982
PHOOL CHAND JAIN ...........Appellant
Through: Mr.Girish K. Kaul, Advocate
Versus
PADAM CHAND & ANR. ..........Respondents
Through: Mr.Pravir Kr.Jain, Advocate.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. This judgment shall dispose of two RSAs i.e.
(i) RSA No.237/1982 titled as Padam Chand Anr. Vs.
Smt.Lakshmi Devi & Ors. &
(ii) RSA No.239/1982 titled Padam Chand Vs. Lakhshmi Devi.
These second appeals have impugned the judgment and
decree dated 17.7.1982 which had set aside the finding of the Trial
Judge dated 6.2.1978. Vide judgment and decree dated 6.2.1978,
the suit of the plaintiff Lakshmi Devi had been dismissed. The
impugned judgment had allowed the appeals whereby Lakshmi
Devi was held entitled to a decree.
This judgment shall also dispose of four second appeals
against the orders of the Rent Control Tribunal (RCT) dated
5.1.1982 i.e.
(i) RC.S.A.No.45/1982 titled as Phool Chand Vs. Padam Chand,
(ii) RC.S.A.No.63/1982 titled as Phool Chand Vs. Padam Chand,
(iii) RC.S.A.No.64/1982 titled as Phool Chand Vs. Padam Chand
and
(iv) RC.S.A.No.65/1982 titled as Phool Chand Vs.Padam Chand.
The RCT modified the finding of the Rent Controller dated
30.1.1980 thereby holding that the appellants i.e. Padam Chand
Jain and Mahender Kumar are the owners/landlords of the disputed
premises. Cross objections of Phool Chand (husband of Lakshmi
Devi) were dismissed; his tenancy was endorsed.
2. Briefly stated the factual matrix of the case is as follows:
(i) Ram Rakha Mal (deceased) was married to Ram Piari.
He had three sons and two daughters; his three sons were
Padam Chand Jain, Madan Lal and Mohan Lal. His two
daughters were Lakshmi Devi (plaintiff) and Shakuntla Devi
(defendant). The disputed property comprised of a part of
house No.7059, Gali Tej Singh, Pahari Dheeraj, Delhi.
(ii) Lakshmi Devi was married to Phool Chand Jain in 1952;
she was living in this house with her husband.
(iii) As per the averments in the plaint on 18.3.1959 an oral
partition had taken place between the wife and the children
of Ram Rakha Mal. By virtue of this partition the disputed
premises had fallen to the share of Ram Piari mother of
Padam Chand Jain.
(iv) In December, 1973 Shakuntala Devi, sister of Lakshmi
Devi who was also occupying a portion of the house no.7059
left the premises; since then Lakshmi Devi was in occupation
of the entire disputed portion.
(v) On 3.3.1974 Padam Chand Jain and Mahender Kumar
(purchasers of the disputed portion from Shakuntla Devi)
attempted to dispossess the plaintiff from the premises.
Their contention was that they had purchased this property
from Shakuntla Devi vide sale deed dated 24.1.1974.
(vi) In March 1974, Lakshmi Devi came to know that the
disputed premises is being claimed by Shakuntla Devi as its
owner; her contention being that she had been gifted this
property by virtue of a registered gift deed dated 3.6.1969
executed by her deceased father Ram Rakha Mal.
(vii) The contention of the plaintiff was that as per the oral
partition dated 18.3.1959 the dispute premises had fallen to
the share of Ram Piari; Ram Rakha Mal not being the legal
owner had no authority to make a gift in favour of Shakuntla
Devi who in turn not being the legal owner had no authority
to sell this property to Padam Chand Jain and Mahender
Kumar.
(viii) In 1971 two eviction petitions were filed by Shakuntla
Devi against Phool Chand Jain (husband of Lakshmi Devi)
under Section 14(i)(a) of the Delhi Rent Control Act. On an
application under Order 22 Rule 10 of the Code of Civil
Procedure, the new owners Padam Chand Jain and Mahender
Kumar had been substituted in place of Shakuntala Devi.
These eviction petitions were dismissed on 30.1.1980. The
Rent Controller held that Phool Chand Jain is a tenant;
however, the ownership of Padam Chand Jain and Mahender
Kumar had not been established.
(ix) Padam Chand Jain and Mahender Kumar filed appeals
before the RCT against the orders of the Rent Controller.
Cross appeal/objections had also been filed by Phool Chand
Jain; the objections of Phool Chand Jain had been dismissed.
(x) Phool Chand Jain filed four second appeals i.e. SAO
Nos.45/1982, 63/1982, 64/1982 and 65/1982 which are the
subject matter of the present proceedings.
(xi) In 1977 Lakshmi Devi (wife of Phool Chand) filed a suit
No.435/1977 against Padam Chand Jain and Mahender
Kumar with a prayer that they be restrained from creating
any third party interest in the disputed premises; her
contention being that she was had received this property in
an oral partition effected between the family on 18.3.1959.
(xii) Suit no.434/1977 was also filed by Lakshmi Devi
seeking a declaration that the gift deed dated 3.6.1969 in
favour of Shakuntla Devi by Ram Rakha Mal and the
subsequent sale deed dated 24.1.1974 executed by Shakuntla
Devi in favour of Padam Chand Jain and Mahender Kumar be
declared null and void.
(xiii) Suit No.433/1977 was filed by Padam Chand Jain and
Mahender Kumar against Phool Chand (husband of Lakshmi
Devi) seeking an injunction restraining him from raising any
unauthorized construction in the suit property.
(xiv) All the aforenoted suits i.e. suit nos.435/1977,
434/1977 and 433/1977 were clubbed together and disposed
of vide common judgment dated 6.2.1978. Vide this
judgment, the suits were dismissed; it was held that Ram
Rakha Mal being the owner of the suit property was
competent to gift the disputed property to Shakuntla Devi.
The registered gift deed dated 3.6.1969 was upheld. Both
the suits of Lakshmi Devi were dismissed. The suit filed by
Padam Chand Jain and Mahender Kumar was also dismissed,
vide the same judgment. It was held that no cause of action
has accrued in their favour.
(xv) Lakshmi Devi filed two appeals against the impugned
judgment dated 6.2.1978. They were disposed of by the first
Appellate Court vide impugned judgment dated 17.7.1982.
The appeals of Lakshmi Devi were allowed; the suits were
decreed in her favour; it was held that Lakshmi Devi was
validly claiming title through her mother Ram Piari; she was
in legal possession of the suit property; gift deed executed by
Ram Rakha Mal in favour of Shakuntla Devi was void; Ram
Piari had received this property in the oral family partition;
Ram Rakha Mal had no legal right to gift it to Shakuntla Devi.
(xvi) Padam Chand Jain and Mahender Kumar aggrieved by
the impugned judgment dated 17.7.1982 have filed two
regular second appeals i.e. RSA No.237/1982 and RSA
No.239/1982.
(xvii) The question involved in the two RSAs and the four
SAOs being similar, vide order dated 31.1.2000 all these
matters were directed to be heard together. They are
accordingly being disposed of by this common judgment.
3. In the regular second appeals substantial questions of law as
is the mandate had been formulated on 16.2.1983. The said order
reads as follows:
"The substantial question of law in this appeal is
whether the appellants, the purchasers of the property,
have acquired a valid title to the property in suit.
Flowing from this, other questions also arise which are
set out in the grounds of appeal at pages 9 to 11
(ground Nos.I to XIII) and similarly in other appeal
(R.S.A.No.239/82) the substantial questions of law are
set out in the grounds of appeal at pages 6 to 10
(grounds Nos.I to VIII). It is unnecessary to set out
those substantial questions of law here again."
4. The grounds of appeal at page 9 to 11 [Ground no.(i) to (xiii)]
in RSA 237/1982 read as follows:
I- The Lower Appellate Court has erred in relying upon
the documents PW-4/A, PW-4/B & PW-4/C and on their
basis it was held that a partition took place and the
property in suit fell to the share of Smt.Ram Piari,
Respondent No.3. While coming to this finding he has
totally ignored the fact that the property in suit and other
properties were neither joint Hindu family properties nor
were joint properties but Shri Ram Rakha Mal was the
absolute owner of the same, hence the question of
partition never arose. This aspect of the case has been
dealt with by the Lower Court in para 31 at page 19 of its
Judgment. The alleged partition if there be any must be
for collateral purposes as held by the Lower Court as
well as by the Rent Control Tribunal in its decision made
on 5.1.1982.
II- The Lower Appellate Court has seriously erred in
observing that PW-4/A, PW-4/B & PW-4/C were filed in a
suit for possession which fact is against the record. In
the decree PW-4/B the nature of suit is mentioned as
partition and not a suit for possession. The suit filed by
Smt.Ram Piari respondent no.3 for partition of the
property in which she claimed 1/6th share in all the
properties including the property in suit. During the
pendency of this suit a compromise is alleged to have
been made which is PW-4/A. Final decree in the partition
suit is PW-4/B. The said decree falls within the ambit of
Section 2 (15) of the Indian Stamp Act and is to be
stamped in accordance with Article 45 of the above Act.
Since the decree is not engrossed on a stamp paper, it
has no existence as a decree. Until it is engrossed on
proper judicial stamp & it is nullity it can be challenged
in any proceedings whatsoever.
III- The Lower Appellate Court has erred in overlooking
the fact that Smt.Lakshmi Devi Respondent No.1 in the
plaint of the suit has specifically stated that the
properties of the father were partitioned in suit
No.133/59 from the court of Shri R.L.Sehgal Sub Judge
1st Class Delhi vide order dated 23.3.1959. Respondents
4 to 7 sons of Shri Ram Rakha Mal in para 2 of their
written statement pleaded the above fact of partition as
alleged by Respondent No.1. On the above pleadings of
the parties the Trial Court framed in the present suit
No.436/77 issue no.4 which clearly pertains to the above
partition pleading and held that the partition of the later
date proved by PW-4/A to PW-4/C cannot be looked upon
as it was not pleaded but the Lower Court based its
judgment on the above documents PW-4/A to PW-4/C. In
doing so the Lower Appellate Court has transgressed the
well known principle of law that no amount of evidence
can be looked into upon the plea which was never put
forward in the pleadings.
IV- The Lower Appellate Court has erred without any
evidence of any kind on the record that the alleged
partitions have been acted upon. There is no evidence of
any kind on the record in the above behalf. This finding
of the Lower Appellate Court is perverse and not at all
borne out from the record. The first suit decided from
the court of Shri R.L.Sehgal was filed on 20.3.1959 and
compromised on 23.3.1959. Similarly the other suit for
partition was filed on 16.4.1959 and decided on
11.5.1959. The Trial Court as well as the Rent Control
Tribunal both have held that the alleged partition were
not real but were made with oblique motives for income
tax or other purposes.
V- The Lower Appellate Court gave no finding on the
most important issue in the case which was No.7. The
Appellants purchased the property in suit after perusing
the relevant documents such as Gift Deed dated 3.6.1969
DW-3/1 executed by Shri Ram Rakha Mal in favour of
Respondent No.2. The rent notes D1 & D2 executed by
Shri Phool Chand husband of Lakshmi Devi Respondent
No.1 in favour of Shri Ram Rakha Mal, the statement
dated 1.6.1971 made by Smt.Ram Piari Respondent No.3
in the eviction case, the record of house tax of Municipal
Corporation of Delhi PW-5/1 to PW-5/4 were of the House
Tax & Water Department. Smt.Shakuntala Devi
Respondent No.2 was shown as owner of the property
and they thus acted in good faith after taking reasonable
care for ascertaining the fact that Respondent No.2 had
power to sell the house in suit and Section 41 of the
Transfer of Property Act applies to the facts of the
present case as held by the Lower Court. This aspect of
the case which was very important has been totally
ignored.
VI- The Lower Appellate Court has also not taken into full
consideration the Disclaimer Deed (Relinquishment
Deed) DW-2/1 executed by Smt.Ram Piari on the plea
that the same was not proved. This is against the record.
It stands fully proved from the statement of
Smt.Shakuntala Devi Respondent No.2 who is a party to
the Deed DW-3 and the Petition Writer. All these persons
were cross-examined but nothing came out. In this Deed
Smt.Ram Piari Respondent no.3 has clearly stated that
she never acquired any right, title or interest in the
property in suit and it belonged to Shri Ram Rakha Mal.
The gift is valid. Respondent No.2 had authority to sell
the same and she had rightly sold the same to the
Appellants. She has also mentioned in the said deed that
if it is considered that she had any right, title or interest
she relinquished the same. All these facts are mentioned
on the record but the Lower Appellate Court did not give
any legal finding in respect thereof.
VII- The Lower Appellate Court has erred in
overlooking the fact that Smt.Ram Piari Respondent No.3
was the most important witness which ought to have
been produced by Smt.Lakshmi Devi Respondent No.1 to
prove that she was the owner of the property in suit. On
the other hand the Lower Appellate Court held that the
Appellants should have produced Smt.Ram Piari. This
finding on the face of it is perverse and not at all tenable
in law.
VIII- The Lower Appellate Court has erred in law in
fastening ownership on Smt.Ram Piari Respondent No.3
when she has not come in the witness box to claim the
same.
IX- The Lower Appellate Court has erred in holding that
mere suit for injunction is maintainable when
Respondent No.1 has admittedly no right, title or interest
in the suit property. It overlooked the fact that it is
Smt.Ram Piari only could have filed injunction suit.
X- The Lower Appellate Court has erred in overlooking
the fact that relief for injunction has also been claimed by
Respondent No.1 against her mother Smt.Ram Piari who
she alleges to be the owner of the property in suit. This
shows collusion.
XI- The Lower Appellate Court has erred in overlooking
the fact that the possession of Respondent No.1 on
portion in suit was of a trespasser as such no injunction
could have been issued admittedly when criminal case
against Respondent No.1 and her husband in respect to
the portion in suit is pending in Criminal Court for
offences under Section 448 and 380 Indian Penal Code as
both of them committed criminal trespass and removed
the goods of the Appellants.
XII- The Lower Appellate Court has erred in
misreading the evidence of Tarsem Kumar. His evidence
is very clear that Smt.Shakuntala Devi Respondent No.2
and he himself remained in occupation of the portion in
suit till the same was sold and that the possession of the
premises in suit was never delivered to Respondent No.1
otherwise Respondent No.2 would not have given
possession to Respondent No.1 as litigation was going on
between Respondent No.2 and husband of Respondent
No.1 in the court of Additional Rent Controller, Delhi.
XIII- The Lower Appellate Court has violated the
well known principle of law that injunction can be issued
only in favour of a person who has some right of
ownership or other right in the property but not in favour
of a trespasser. Besides that mere suit for injunction is
not legally tenable when there is an obstacle of Gift Deed
and the Sale Deed in favour of the Appellants."
5. The grounds of appeal at page 6 to 10 [Ground no.(i) to (viii]
in RSA 239/1982 read as follows:
"I. That the suit No.434/77 filed by Respondent No.1 for
declaration is not at all maintainable. Section 34 of the
Specific Relief Act is not at all attracted to the facts of
the present suit in as much as admittedly Respondent
No.1 has no right whatsoever in the property.
II. The Lower Appellate Court has erred in relying upon
the documents PW-4/A, PW-4/B, PW-4/C and on their
basis it was held that a partition took place and the
property in suit fell to the share of Smt. Ram Piari
Respondent No.3. While coming to this finding he has
totally ignored the fact that the property in suit and other
properties were neither joint Hindu family properties nor
were joint properties but Shri Ram Rakha Mal was the
absolute owner of the same, hence the question of
partition never arose. This aspect of the case has been
dealt with by the Lower Appellate Court in para 31 at
page 19 of its judgment. The alleged partition if there be
any must be for collateral purposes as held by the Lower
Court as well as by the Rent Control Tribunal in its
decision made on 5.1.1982.
III. The Lower Appellate Court has seriously erred in
observing that PW-4/A, PW-4/B & PW-4/C were filed in a
suit for possession which fact is against the record. In
the decree PW-4/B the nature of suit is mentioned as
partition and not a suit for possession. The suit filed by
Smt. Ram Piari Respondent No.3 for partition of the
property in which she claimed 1/6th share in all the
properties including the property in suit. During the
pendency of this suit a compromise is alleged to have
been made which is PW-4/A. Final decree in the partition
suit is PW-4/B. The said decree falls within the ambit of
Section 2(15) of the Indian Stamp Act and is to be
stamped in accordance with Article 45 of the above Act.
Since the decree is not engrossed on a stamp paper, it
has no existence as a decree. Until it is engrossed on
proper non judicial stamp & it is nullity it can be
challenged in any proceedings whatsoever.
IV. The Lower Appellate Court has erred in overlooking
the fact that Smt. Lakshmi Devi Respondent No.1 in the
plaint of the suit has specifically stated that the
properties of the father were partitioned in suit
No.133/59 from the court of Shri R.L. Sehgal Sub Judge
Ist Class Delhi vide order dated 30.3.1959. Respondents
4 to 7 sons of Shri Ram Rakha Mal in para 2 of their
written statement pleaded the above fact of partition as
alleged by Respondent No.1. On the above pleadings of
the parties the Trial Court framed in the present suit
No.435/77 issue No.4 which clearly pertains to the above
partition pleading and held that the partition of the later
date proved by PW-4/A to PW-4/C cannot be looked upon
as it was not pleaded but the Lower Court based its
judgment on the above documents PW-4/A to PW-4/C. In
doing so the Lower Court has transgressed the well
known principle of law that no amount of evidence can be
looked upon the plea which was never put forward in the
pleadings.
V. The Lower Appellate Court has erred without any
evidence of any kind on the record that the alleged
partitions have been acted upon. There is no evidence of
any kind on the record in the above behalf. This finding
of the Lower Appellate Court is perverse and not at all
borne out from the record. The first suit was decided
from the court of Shri R.L. Sehgal was filed on 20.3.1959
and compromised on 23.3.1959. Similarly the other suit
for partition was filed on 16.4.1959 and decided on
11.5.1959. The Trial Court as well as the Rent Control
Tribunal both have held that the alleged partition were
not real but were made with oblique motives for income
tax or other purposes.
VI. The Lower Appellate Court gave no finding on the
most important issue in the case which was No.7. The
Appellants purchased the property in suit after perusing
the relevant documents such as Gift Deed dated 3.6.1969
DW-3/1 executed by Shri Ram Rakha Mal in favour of
Respondent No.2, the rent notes D1 & D2 executed by
Shri Phool Chand husband of Lakshmi Devi Respondent
No.1 in favour of Shri Ram Rakha Mal, the statement
dated 1.6.1971 made by Smt. Ram Piari Respondent No.3
in the eviction case, the record of house tax of Municipal
Corporation of Delhi PW-5/1 to PW-5/4 were of the House
Tax & Water Department. Smt. Shakuntala Devi
Respondent No.2 was shown as owner of the property
and they thus acted in good faith after taking reasonable
care for ascertaining the fact that Respondent No.2 had
power to sell the house in suit and Section 41 of the
Transfer of Property Act applies to the facts of the
present case as held by the Lower Court. This aspect of
the case which was very important has been totally
ignored.
VII. The Lower Appellant Court has also not taken into
full consideration the Disclaimer Deed (Relinquishment
Deed) DW-2/1 executed by Smt. Ram Piari on the plea
that the same was not proved. This is against the record.
It stands fully proved from the statement of Smt.
Shakuntala Devi Respondent No.2 who is a party to the
Deed DW-3 and the Petition Writer. All these persons
were cross-examined but nothing came out. In this Deed
Smt.Ram Piari Respondent No.3 has clearly stated that
she never acquired any right, title or interest in the
property in suit and it belonged to Shri Ram Rakha Mal.
The gift is valid. Respondent No.2 had authority to sell
the same and she had rightly sold the same to the
Appellants. All these facts are mentioned on the record
but the Lower Appellant Court did not give any legal
finding in respect thereof.
VIII. That the Lower Appellate Court has erred in
overlooking the fact that necessary parties namely
mother and brothers of Respondent No.1 have not been
impleaded in the present suit against whom the relief of
cancellation of the gift and sale deed can be claimed.
Without impleading them the suit is not legally
competent."
6. As already aforenoted the four second appeals pending
before this court have impugned the order of RCT dated 5.1.1982;
two appeals have challenged the finding of the RCT wherein it had
been held that Phool Chand was a tenant and the latter two
appeals have challenged the finding of the RCT recognizing the
legal title of the appellants namely Mahender Kumar and Padam
Chand.
7. Arguments have been addressed at length by learned counsel
for the appellant who is appearing in the RSAs. He has challenged
the impugned judgment and decree dated 17.7.1982. It is
submitted that the findings in the impugned judgment are illegal
and arbitrary. A partition decree pursuant to a compromise and a
family arrangement arrived at between Ram Rakha Mal, his wife
Ram Piari, his four sons was allegedly made on 18.3.1959; the
relevant documents are Ex.PW-5/1, Ex.PW-5/2 and Ex.PW-5/3.
Thereafter for the first time PW-4 Mohan Lal one son of Ram Rakha
Mal when recalled for his evidence on 20.1.1977 produced a
partition decree of May, 1959; this was a compromise effected
between the same family members of Ram Rakha Mal i.e. between
himself, his wife Ram Piari and his four sons; the said documents
are Ex.PW-4/A, Ex.PW-4/B and Ex.PW-4/C. It is submitted that this
partition of May, 1959 was never pleaded in the pleadings. It had
seen the light of the day for the first time in January 1977; this was
a contrary plea set up by the plaintiff; the plaintiff himself not
being sure as to whether the partition had been effected in March,
1959 or in May 1959. The Trial Court had rightly rejected this
partition decree. Even otherwise, presuming that such a partition
had taken place under Section 2 (15) read with Article 45 of the
Indian Stamp Act, 1899 this partition decree was never engrossed
upon a stamp paper and for this reason cannot be looked into. It
was merely a paper decree; it was never acted upon and this had
rightly been held by the Trial Court after examining the evidence
led by the parties both oral and documentary. As per these
partition decrees both Ram Rakha Mal and Ram Piari were parties
to these court decrees; yet the registered gift deed Ex.DW3/1 dated
3.6.1969 was executed at a later date by Ram Rakha Mal in favour
of his daughter Shakuntala Devi and was witnessed by Ram Piari
herself. Ram Piari was an attesting witness to this document; this
evidences the fact that the partition decree was in fact never acted
upon.
8. Attention has been drawn to the testimony of Ram Piari
recorded as AW3 in the proceedings before the Rent Controller
wherein she had stated that she has no right, claim or title over the
disputed property; it was always owned by her husband Ram Rakha
Mal who had made a valid gift deed in favour of his daughter
Shakuntala Devi vide the aforenoted document Ex.DW-3/1.
9. Attention has also been drawn to the disclaimer deed Ex.DW-
2/1 dated 6.4.1974 which had been proved through the version of
DW-3 who was the deed writer of this document. He had
categorically stated that Ram Piari had disclaimed title if any in the
suit property in favour of Shakuntala Devi. This document was
registered with the Sub-Registrar on 8.4.1974. It is submitted that
Shakuntala Devi had become owner of the suit property by virtue
of this gift deed on 3.6.1969. Thereafter in 1971 she had filed two
eviction petitions against her brother-in-law Phool Chand who was
only a tenant in the suit property. These eviction proceedings were
contested by Phool Chand. It was in these proceedings that Ram
Piari who had been examined as AW-3 had made a statement that
Ram Rakha Mal was the owner of this property and he had made a
valid gift deed of it in favour of Shakuntala Devi. All these facts
were well within the knowledge of Lakshmi Devi whose husband
Phool Chand was contesting these petitions. Further this gift deed
was not challenged right upto 1975 when Lakshmi Devi filed a suit
for declaration seeking a cancellation of this document; Lakshmi
Devi has slept over the matter for this entire period. It is pointed
out that in the proceedings before the Rent Controller the status of
Phool Chand husband of Lakshmi Devi, had been established as a
tenant; Ex.D1- and D-2 were the rent receipts executed by Phool
Chand in favour of Ram Rakha Mal his father-in-law dated
14.6.1965 and 30.6.1965 evidencing the tenancy of Phool Chand in
the suit property. These rent receipts Ex.D-1 and D-2 had been
proved both in the suit as also before the Rent Controller; in the
suit proceedings they had been proved through the version of DW-
1 who was the deed writer of these rent notes. Attention has been
drawn to the version of DW-5 Shakuntala Devi; she had proved
Ex.DW-5/1 to Ex.DW-5/4 which were the house tax receipts issued
by the Corporation in her name evidencing her legal status to the
suit property. Learned counsel for the appellant has also placed
reliance upon Section 41 of the Transfer of Property Act. It is
submitted that under this statutory provision it is clear that there
was an implied consent of Ram Piari; in June 1969 when the gift
deed had been executed by the ostensible owner Ram Rakha Mal in
favour of his daughter Shakuntala Devi; the consideration was love
and affection in favour of his daughter.
10. Attention has been drawn to that part of the statement of
DW-5 Shakuntala Devi and her husband DW-3 Tarsem Sen Gupta
wherein both have stated that they were residing in the suit
property upto February 1974 when they had executed a sale deed
in favour of Mahender Kumar and Padam Chand on 24.1.1974
handing over the suit property to them. This document was
registered on 28.2.1974. Entire gamut of events show that the
Mahender Kumar and Padam Chand had stepped into the shoes of
Shakuntala Devi through this registered document of sale executed
in their favour; Shakuntala Devi had legal title to the suit property;
the gift deed dated 3.6.1969 had been executed by her father in
her favour wherein her mother was an attesting witness; the
partition decree relied upon by the first appellate court dated
18.3.1959 Ex.PW-5/1 to Ex.PW-5/3 was never acted upon; it was
only a paper decree; this is clear from the fact that Ram Piari who
was a party to this partition decree was herself an attesting
witness to the subsequent gift deed thereby evidencing the fact
that Ram Piari had recognized the legal title of her husband Ram
Rakha Mal to gift this property to their daughter Shakuntala Devi.
11. Arguments have been countered by learned counsel for the
respondent. It is submitted that the rent notes Ex.D-1 and Ex.D-2 at
best only establish a relationship of landlord-tenant; the contents of
the document are however not proved. Reliance has been placed
upon AIR 1968 Bombay 112 Sir Mohammed Yusuf and Anr. vs. D &
Anr.; it is pointed that in this judgment it was held that even if a
document is formally proved, it does not amount to a proof of the
truth of the contents of the document. It is submitted that Ex.PW-
4/A to Ex.PW-4/C are in consonance and in conformity with the
earlier partition decree dated 18.3.1959 Ex.PW-5/1 to Ex.PW-5/3;
as such the finding of the trial judge that this fact had not been
pleaded is incorrect as Ex.PW-4/A to Ex.PW-4/C had only endorsed
a finding which had earlier been recorded in Ex.PW-5/1 to Ex.PW-
5/3. This evidence could not be held to be beyond the pleadings of
the parties. It is submitted that such a family arrangement is
exempt from payment of stamp duty. For this proposition reliance
has been placed upon a judgment of Punjab and Haryana High
Court reported in LPA No.291/1976 decided on 16.7.1981 titled as
Ram Niwas and Anr. vs. Rakesh Kumar. It is submitted that the
decree dated 18.3.1959 could not have been ignored. It was a
valid and subsisting partition decree evidencing a partition
between the family members. It was not an oral partition and as
such the plea of the appellants that it was not acted upon has no
relevance. Reliance has been placed upon AIR 1996 Delhi 108
Chaman Lal Jain vs. Arun Kumar Jain and Ors., wherein it was held
that a compromise decree is a valid and subsisting document and
unless it is set aside the same does not stand frustrated.
12. Learned counsel for the respondent has drawn attention of
this court to certain subsequent facts; it is pointed out that on
16.7.2010 and 16.8.2010 certified copies of certain documents
have been placed on record which evidence the fact that this oral
partition dated 18.3.1959 had in fact been acted upon. Further on
1.6.1968 Ram Piari had executed a will in favour of Lakshmi Devi
bequeathing 50 % of her share in the suit property to Lakshmi
Devi; letters of administration have since been granted in terms of
the judgment dated 13.5.1994. Ram Piari having acquired title to
this property in terms of the partition decree dated 18.3.1959 had
validly executed this will in favour of Lakshmi Devi. Lakshmi Devi
has now acquired a legal title to the suit property. These
documents establish this factum.
13. Arguments have been rebutted by the learned counsel for the
appellant. It is pointed out that documents which have not seen
the light of the day either in the trial court or before the first
appellate court cannot now be pressed into service. Even
otherwise, the procedure for placing documents on record before
the second appellate court i.e. by resorting to the provisions or
Order 41 Rule 27 of the CPC has not been adhered to. These
documents cannot be looked into. It is pointed out by the learned
counsel for the appellant that the entire family has in fact colluded
with one another to oust the appellants who are the outside
purchasers and alien to the family. It is pointed out that
Shakuntala Devi having received the sale money from the present
appellants is in fact no longer interested in the litigation. This
purported will dated 1.6.1968 has in fact been set up by the other
members of the family to protect the right of Lakshmi Devi against
the appellants who are being maligned and harassed only in order
that the property continues to be retained within the family. Even
otherwise, these documents have to be ignored for the reasons as
afore submitted. Reliance has been placed upon AIR 1930 Privy
Council 57(2) Atta Mohammad vs. Emperor as also upon another
judgment of the Supreme Court reported in AIR 1966 SC 1861
Bhagat Singh & Ors. vs. Jaswant Singh to support a submission
that the partition decree produced by the appellant of May, 1959
Ex.PW-4/A to Ex.PW-4/C was rightly rejected by the trial court as it
was an evidence beyond the pleadings. It is pointed out that in the
aforenoted judgments it was held that where a claim had never
been put forward in defence no amount of evidence can be looked
into on such a plea.
14. The judgment impugned in the two second appeals is the
judgment and decree dated 17.7.1982. This judgment and decree
had emanated from the three suits which were filed before the civil
court; two of which had been filed by Lakshmi Devi. Suit
No.434/1977 had been filed by Lakshmi Devi; it was a suit for
declaration; the prayer was that the gift deed dated 3.6.1969
executed by Ram Rakha Mal in favour of Lakshmi Devi be declared
null and void; further the sale deed dated 24.1.1974 executed by
Shakuntala Devi in favour of the present appellants namely
Mahender Kumar and Padam Chand Jain also be declared null and
void. Suit No.435/1976 was filed by Lakshmi Devi against Padam
Chand Jain and Mahender Kumar. This was a suit for injunction.
The prayer was that the defendant be restrained from creating any
third party interest in the suit property; submission of Lakshmi
Devi was that her mother Ram Piari had received this property in
an oral partition which had formed the subject matter of a decree
dated 18.3.1959 Ex.PW-5/2. The third suit i.e. suit No.433/1977
was filed by the present appellants Padam Chand Jain and
Mahender Kumar against Phool Chand, husband of Lakshmi Devi.
This was a suit for injunction; prayer was that the defendant be
restrained from raising any unauthorized construction in the suit
property.
15. All the aforenoted suits had been disposed of by a common
judgment; suits had been dismissed. Against this dismissal two
appeals had been filed by Lakshmi Devi. No appeal had been filed
by Padam Chand Jain and Mahender Kumar. The impugned
judgment dated 17.7.1982 had allowed the appeals of Lakshmi
Devi and suits were decreed in her favour. Gift deed executed by
Ram Rakha Mal in favour of Shakuntala Devi was held to be illegal;
Ram Piari in terms of the compromise decree Ex.PW-5/2 dated
18.3.1959 was the legal owner of the suit property; Ram Rakha Mal
had no authority to gift this property to Shakuntala Devi.
16. Trial judge had framed 13 issues in suit No.435/1977; four
issues in suit No.434/1977 and five issues in 433/1977. Common
evidence was led on all the issues. The plaintiff in terms of her
pleadings had proved documents Ex.PW-5/1 to Ex.PW-5/3 dated
18.3.1959 evidencing a partition decree between Ram Rakha Mal,
Ram Piari and their four sons. This was in a suit for partition.
Being a decree passed in a partition suit, it necessarily required to
be engrossed on a stamp paper which was not done. Provisions of
Section 2 (15) read with Article 45 of the Indian Stamp Act clearly
state that an instrument of partition whereby the co-owners of any
property divide or agree to divide their property in severalty must
bear a stamp duty for the amount of the value of the separated
share or shares of this property. It is not in dispute that this
partition decree was never stamped or engrossed on stamp paper.
A subsequent partition document Ex.PW-4/A to Ex.PW-4/C was also
placed on record; this document had seen the light of the day for
the first time when PW-4 Mohal Lal had been recalled for his
examination. This was on 20.1.1977. The said documents had
been proved in his version as Ex.PW-4/A to Ex.PW-4/C. Assuming
the statement of learned counsel for the respondent to be correct
that there is no contrary plea taken in the document Ex.PW-4/A to
Ex.PW-4/C qua the earlier documents Ex.PW-5/1 to Ex.PW-5/3 yet
admittedly these subsequent documents i.e. Ex.PW-4/A to Ex.PW-
4/C which relate to a partition decree of May, 1959 had never been
pleaded in the suit proceedings; as such the trial court had rightly
rejected these documents being beyond the pleadings of the
parties. In the judgment of Atta Mohammad (supra) and Bhagat
Singh (supra) it has been reiterated that no amount of evidence can
be looked into a plea which had not been put forward in the
pleadings.
17. Finding of the trial court that Ex.PW-5/1 to Ex.PW-5/3 was
only a paper decree and was never acted upon is correct; this
finding of fact which was reversed by the first appellate court was
a mis-appreciation of the evidence. PW-2 Padam Chand, one son of
Ram Rakha Mal was unaware of which portion of the property had
fallen to his share; PW-3 had also given evasive answers; he could
not state as to what was the respective portion of the shares of the
members of the family. PW-4 a third son of Ram Rakha Mal and
the brother of PW-2 was also not sure as to whether the sisters had
also got any share in the partition or not. Admittedly, these
properties were the self-acquired properties of Ram Rakha Mal;
they were not joint family properties. No paper work was done
pursuant to this decree dated 18.3.1959. It was not as if the
parties were already living in the respective portions which had
been allocated to them; in fact, Lakshmi Devi and her husband
Phool Chand continued to live in the disputed property which
clearly goes to show that this partition was in fact never acted
upon and this decree dated 18.3.1959 Ex.PW-5/3 was only a decree
on paper, never meant or intended by the parties to have been
acted upon. This is also evidenced by the fact that another tenant
in this suit property namely Pawan Kumar Jain even after
18.3.1959 continued to occupy this property as a tenant and to pay
rent to Ram Rakha Mal. This fact has been elicited in the cross-
examination of PW-3. The mutation of the property also continued
in the name of Ram Rakha Mal during his lifetime. As per this
partition decree, the disputed property had fallen to the share of
Ram Piari. The rent notes Ex.D-1 and Ex.D-2 executed by Phool
Chand, husband of Lakshmi Devi in favour of Ram Rakha Mal dated
14.6.1965 and 30.6.1965 show that this rent was received by Ram
Rakha Mal; had Ram Piari become the owner of this property in
terms of this oral partition, she should have received this rent as a
landlady and not her husband Ram Rakha Mal.
18. Relevant would it be to state that the proceedings before the
Rent Controller also show that this partition had in fact never been
acted upon. Two eviction petitions had been filed by Shakuntala
Devi under Section 14 (1) (a) of the Delhi Rent Control Act against
Phool Chand, her brother-in-law and the husband of Lakshmi Devi.
These were hotly contested petitions. Before the Rent Controller
Ex.D-1 and Ex.D-2 the aforenoted rent notes had been proved as
Ex.AW1/1 and Ex.AW5/1. Rent was paid by Phool Chand to Ram
Rakha Mal and not to Ram Piari. Ram Piari had come into the
witness box as AW-3. Her statement is categorical to the effect
that she was never the owner of the disputed property. This
property is owned by her husband Ram Rakha Mal; he had made a
valid gift deed dated 3.6.1969 of this property in favour of his
daughter Shakuntala. This was a registered document. Ram Piari
was an attesting witness to this document. As AW-3 she had
deposed that the Sub-Registrar had come to their house; Ram
Rakha Mal, her deceased husband was in a sound disposition of
mind; he had thumb-marked the gift deed in her presence; she has
also signed as an attesting witness; Ganga Saran was another
attesting witness. Ex.DW-3/1 stood proved. Contention of learned
counsel for the respondent that Ex.D-1 and Ex.D-2 have not been
property proved has no force. Shakuntala Devi AW-9 had
corroborated the version of Tarsem Kumar, her husband examined
as AW-7 in these proceedings before the Rent Controller. She had
identified the signatures of Phool Chand on Ex.AW-1/1 and
Ex.AW5/1. Stand of Lakshmi Devi, the wife of Phool Chand that
her husband was living as a tenant but her mother had later on
given this suit property to her for her residence; her husband had
never executed any rent note was repelled. Scribe of the rent
notes Hem Chand had been examined as AW-5; he had deposed
that these rent notes Ex.AW-1/1 and Ex.AW-5/1 had been prepared
by him at the instance of Phool Chand; attesting witness of these
rent notes had also been examined as AW-1, AW-2; AW-6 had
produced the record from the office of Collector of Stamps. These
documents had been adequately proved. It was thus established
that even in June, 1965 Phool Chand continued to be a tenant in
the suit property. The partition decree was never acted upon.
19. In a judgment reported in AIR 1965 SC 825 Potti Lakshmi
Perumallu vs. Potti Krishnavenamma, the Supreme Court in the
context of a family arrangement has held as below:
"9. No doubt, a family arrangement which is for the benefit of
the family generally can be enforced in a court of law. But
before the court would do so, it must be shown that there was
an occasion for effecting a family arrangement and that it was
acted upon. It is quite clear that there is complete absence of
evidence to show that there was such an occasion or the
arrangement indicated in the will was acted upon. The letter
Ex.B-12 upon which reliance was placed before the High Court
on behalf of the defendant has not been found by it to be
genuine. The defendant had also pleaded that the provision
under the will were given effect to but no satisfactory evidence
has been adduced to prove that the plaintiff was in enjoyment
of the properties, allotted to her under the will. We cannot,
therefore, accept the second contention of Mr.Desai."
20. The relinquishment deed/disclaimer document dated
6.4.1974 was a registered document. This document is in Hindi. It
is described as a „Dastbardari‟; the literal english translation of
which reads as a „deed of disclaimer‟. This document was proved
through the version of the scribe of this document. In the suit
proceedings, he had been examined as DW-2. This document was
an affirmation and confirmation by Ram Piari that she was not the
owner of the disputed property; the owner of the property was her
husband Ram Rakha Mal who had made a valid gift deed in favour
of Shakuntala Devi vide a registered gift deed dated 3.6.1969; if at
all she had any right in the property, the same stood divested in
favour of Shakuntala Devi. The finding of the first appellate court
on this score as recorded in para 16 of the impugned judgment is a
faulty finding and clearly calls for an interference. This document
cannot be read to recite that Ram Piari had admitted herself to be
the owner of the disputed property. The document has to be read
in the plain and simple language in which it has been worded;
nothing can be added or subtracted therefrom as the intention of
the executant was clearly worded. It clearly recited that Ram Piari
had no interest or title in the suit property; in case, she had any,
the same stood disclaimed by her in lieu of the fact that her
husband had made a valid registered gift deed in favour of their
daughter on 18.3.1969. On this score, submission of learned
counsel for the appellant that this document had only reasserted
the aforenoted facts is forceful as this document had even
otherwise been executed on 6.4.1974 i.e. almost two months after
the disputed property had already been sold by Shakuntala Devi to
the appellants vide a registered sale deed dated 18.2.1974 Ex.DW-
5/5.
21. The contentions of the plaintiff Lakshmi Devi were contrary.
Her contention was that she was living in the suit property since
1952; her husband was living as a tenant; thereafter with the
permission of her mother who had received this property in terms
of a partition decree dated 18.3.1959; she continued to retain the
suit property. In the course of proceedings as aforenoted a second
partition of May, 1959 also saw the light of the day. This was for
the first time on 20.1.1977 when PW-4 appeared in the witness box
on being recalled. As noted supra testimony of the witnesses of the
plaintiff were evasive, ambiguous; they were doubtful about the
shares of the property which had fallen to each of them in the
proceedings Ex.PW-5/1 to Ex.PW-5/3. None of the brothers of
Lakshmi Devi knew which share had been allocated to him. They
were also not sure as to whether the sisters had also been
allocated a share or not. This was purportedly in March, 1959.
Thereafter the same persons who were parties to this partition
decree i.e. Ram Rakha Mal being the head of the family and his
wife Ram Piari had executed a registered gift deed on 3.6.1969 in
favour of Shakuntala Devi. Ram Piari was a witness to this
document. Testimony of Ram Piari AW-3 recorded on 1.6.1971 in
the proceedings in the eviction petitions is clear and categorical.
This version of Ram Piari had been proved before the Trial Court in
the present proceedings as Ex.DW-3/1. Ram Piari had clearly
stated that her husband had gifted this property to Shakuntala
Devi; she had no right or title in the suit property. This stand of
Ram Piari continued right upto April, 1974 when she had executed
the document of disclaimer dated 6.4.1974 where she again
disclaimed her rights, if any, in this suit property stating that this
property stood gifted by her late husband to her daughter
Shakuntala Devi. This was also a registered document.
22. Meanwhile Shakuntala Devi pursuant to the registered gift
deed dated 3.6.1969 had filed two eviction petitions against her
brother-in-law Phool Chand; this was in the year 1971. Status of
Phool Chand as a tenant was proved both before the Rent
Controller as also before the Rent Control Tribunal. Ex.D-1 and
Ex.D-2 were the rent notes dated 14.6.1965 and 30.6.1965
executed by Phool Chand in favour of his father-in-law Ram Rakha
Mal. As discussed supra these rent notes stood proved. This fact
finding calls for no interference.
23. Section 41 of the TPA has no application. To attract this
statutory provision there must a transfer by the ostensible owner
for consideration. A gift deed does not contemplate payment of any
consideration or compensation. A gift is a voluntary transfer of
property without consideration; it is a parting by the owner of
property without any pecuniary benefit. A „gift‟ has been defined
under Section 122 of the TPA. It is a transfer of an existing
movable or immovable property voluntarily without consideration
by the donor to the donee. In 1 (2008) SLT 212 Ashokan vs.
Lakshmikutty & Ors. the Supreme Court had reiterated that a gift
does not contemplate any payment of compensation or
consideration. This concept is unknown in the case of a gift.
24. The question of Ram Piari not having been brought into the
witness box for which an adverse inference had been drawn by the
first appellate court against the present appellant is a mis-
interpretation; it was an erroneous finding. As per the oral
versions of PW-2, PW-3 and PW-4, their mother Ram Piari was
living with them. The appellants were strangers to this family; they
were the subsequent purchasers of this suit property who had
entered into the family scene only in February 1974. Adverse
inference for not producing Ram Piari could not have been drawn
against the defendants/appellants.
25. The subsequent documents sought to be produced by the
respondents which have been filed on the record of this court on
16.7.2010 and 16.8.2010 cannot be read. The submission of
learned counsel for the respondent that these documents have
been placed on record only to bring to the notice of this court that
certain subsequent events had taken place between the parties.
One such event was a will which had been executed by Ram Piari
on 1.6.1968 in favour of Lakshmi Devi bequeathing 50 % of this
property in favour of Lakshmi Devi who was thus a legal owner.
The other documents evidence the partition decree of 18.3.1959
had been acted upon by the other family members i.e. brothers of
the plaintiff Lakshmi Devi. Counsel for the respondent has
vehemently opposed the reading of these documents.
26. This is a second appeal. This is not a third fact finding court.
The facts have already been delved into in detail by the two fact
finding courts below. Even at the second appeal level there is a
procedure for placing documents on record. Provisions of Section
41 Rule 27 of the CPC have not been adhered to. No application
has been filed to place these documents on record. They
necessarily have to be ignored.
27. The aforenoted discussion leads to only one conclusion which
is an inevitable conclusion.
28. Shakuntala Devi had acquired a legal title to the suit
property in terms of the registered gift deed dated 3.6.1969
executed by her late father in her favour. This document was
attested by her mother Ram Piari. The oral partition in terms of
the decree dated 18.3.1959 Ex.PW-5/1 to Ex.PW-5/3 was only a
paper decree. It not having been acted upon, it was non est, the
subsequent registered gift deed dated 3.6.1969 is evidence of this
factum. Phool Chand the husband of Lakshmi Devi was a tenant in
the suit property. He had no other status. Rent notes Ex.D-1 and
Ex.D-2 dated 14.6.1965 and 30.6.1965 executed by Phool Chand in
favour of his father-in-law had been duly proved. Shakuntala Devi
being the legal owner of this property had sold the same to the
appellants Padam Chand and Mahender Kumar vide a valid
registered sale deed of February, 1974. Rights of Ram Piari if any
in the suit property were disclaimed by her by a subsequent
registered document dated 6.4.1974. This documentary evidence
coupled with the oral versions of the witness as discussed supra
has substantiated these findings. Finding of the trial judge in the
suit proceedings was the correct appreciation of the fact and law.
Lakshmi Devi having been left with no other status in the suit
property except that of a rank trespasser could not have filed a suit
either for injunction or for declaration. None of the aforenoted
suits were maintainable by her. They were rightly dismissed by the
trial court. The findings in the judgment of the first appellate court
dated 17.7.1982 clearly call for an interference. They are set aside.
29. Findings in the second appeals i.e. of the Rent Control
Tribunal dated 5.1.1982 call for no interference. Phool Chand was
rightly held to be a tenant in terms of the rent notes Ex.D-1 and
Ex.D-2. The present appellants Mahender Kumar and Padam
Chand had been substituted in place of Shakuntala Devi on an
application under Order 22 Rule 10 of the CPC. They had validly
and legally stepped into the shoes of Shakuntala Devi. This finding
of the RCT also calls for no interference. Title of Shakuntala Devi
having been established, she had rightfully passed it on to the
present appellants vide sale deed dated February, 1974.
30. The end result is; appeal is allowed. Finding of the first
appellate court dated 17.7.1982 are set aside. Findings of the RCT
dated 5.1.1982 call for no interference; they are endorsed. Regular
second appeals and second appeal against orders are disposed of
accordingly.
INDERMEET KAUR, J.
SEPTEMBER 17, 2010
rb
