Darshan Kumar Anand vs Krishan Lal Chadha & Anr.
2011 Latest Caselaw 5004 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RSA No. 29/2010

%                                                   12th October, 2011

DARSHAN KUMAR ANAND                            ...... Appellant
                  Through: Mr. Zafar Alam, Adv.


                             VERSUS

KRISHAN LAL CHADHA & ANR.                              ...... Respondents

Through: Mr. Mahesh Chaudhary, Adv. for respondent no.2.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

2. To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of Regular Second Appeal is to the two

concurrent judgments of the courts below, the first of the Original

Court dated 06.1.2006, and the second of the Appellate Court dated

12.1.2010, and by which judgments, the suit of the

respondents/plaintiffs for possession of the subject property has been

decreed.

2. The facts of the case are that the plot No.E-61, Amar Colony,

Lajpat Nagar, IV, New Delhi was purchased by one late Sh. Dharam Pal

Anand by a Sale Deed dated 16.9.1964. Construction was thereafter

raised by Sh. Dharam Pal Anand on this plot. The appellant/defendant

was residing in the subject property as a licensee being the son of Sh.

Dharam Pal Anand and Smit. Sudarshan Kumari Anand. The appellant

was the natural son of Sh. Dharma Pal Anand and the step-son of Smt.

Sudarshan Kumari Anand. Sh. Dharam Pal Anand before his death

executed a Will dated 17.8.1974, in favour of his wife Smt. Sudarshan

Kumari Anand, which Will was duly registered before the Sub-Registrar.

Pursuant to this Will, Smt. Sudarshan Kumari Anand became the owner

of the subject property. Smt. Sudershan Kumari Anand not only got

the property mutated in her name before the local authority, but also

thereafter, paid the property tax payable on the subject property. Smt.

Sudarshan Kumari Anand also let out one floor of the property to a

tenant, i.e. NTPC and received the rent from such tenant. Smt.

Sudarshan Kumari Anand before her death, executed a Will dated

03.4.1987 bequeathing the property to the respondents/plaintiffs, and

which Will was also duly registered in the office of Sub-Registrar.

3. The case of the respondents/plaintiffs was that since the

appellant/defendant was harassing Smt. Sudarshan Kumari Anand on

one pretext or the other, he was disinherited and the property was

bequeathed to the respondents/plaintiffs, the respondent no.2 being

the Institution for the Blinds. The further case, which was set up in the

suit was that the appellant/defendant was living as a licencee in the

first floor and, thereafter, forcibly occupied the Barsati floor of the suit

property. The subject suit for possession and mesne profits was filed

by the respondents/plaintiffs stating that the appellant/defendant

being only a gratuitous licencee had no right to remain in possession of

the property, which was bequeathed to the plaintiffs.

4. The appellant defended the suit by disputing the validity of both

the Wills dated 17.8.1974 and 03.4.1987. It was also the stand of the

appellant/defendant that though the Sale Deed of the property was in

the name of the father, Sh. Dharam Pal Anand, actually the appellant

was the owner and the father Sh. Dharam Pal Anand was only a

Benami owner of the property.

5. The only issue which was framed in the suit was with regard to

the entitlement of the respondents/plaintiffs for possession, mesne

profits and injunction.

6. The Will of Sh. Dharam Pal Anand dated 17.8.1974 was duly

proved and exhibited as Ex. PW3/1. The Will was proved through the

attesting witness, PW-5/Sh. Madan Lal Jain. The attesting witness

proved the signatures of Sh. Dharma Pal Anand on the Will dated

17.8.1974, Ex.PW3/1 at points 'X', 'Y', 'Z' and 'A'. The attesting

witness also proved his own signatures and the fact that he had gone

to the office of the Sub-Registrar at the time of registration of the Will

and he signed before the sub-Registrar at point 'C'. This witness also

deposed with regard to the sound state of mind of Sh. Dharam Pal

Anand. Though this Will was sought to be probated by Smt. Sudarshan

Kumari Anand, however, during the pendency of the petition, Smt.

Sudarshan Kumari Anand died, therefore, that petition could not be

pursued further.

7. The Will dated 03.4.1987 executed by Smt. Sudarshan Kumari

Anand in favour of the respondents/plaintiffs was got probated by the

respondents/plaintiffs and this probated Will was proved as Ex.PW1/1.

The judgment of the Probate Court qua the Will dated 03.4.1987, Ex.

PW1/1 has become final. The Trial Court has arrived at a finding of the

fact that the appellant/defendant did not file any documents to show

that he had contributed funds for purchase of the plot or for raising the

construction on the suit property. Accordingly, the Trial Court held

that the appellant/defendant failed to prove that the property was

owned by him and that allegedly the father-Sh. Dharam Pal Anand was

only a Benami owner.

8. The aforesaid findings of the Trial Court have been upheld by the

Appellate Court. Before the Appellate Court, the respondent/plaintiff

had moved an application under Order 41 Rule 27, CPC for leading

additional evidence, which was allowed. One of the prayers in this

application was for production of the sale deed in favour of Sh. Dharam

Pal Anand, however, the appellant failed to avail of the opportunity

even before the Appellate Court and did not file this sale deed. The

Appellate Court has referred to the Wills, which have been exhibited as

Ex. PW3/1 and Ex. PW1/1 and also the factum of Smt. Sudarshan

Kumari Anand acquiring the title of the property as per the Will

Ex.PW3/1 of her husband, and the letting out thereafter of the property

by her to NTPC and her receiving rent from NTPC. Both the courts

below have also referred to the defendant taking forcibly possession of

the Barsati floor of the suit property

9. Learned counsel for the appellant argued the following aspects

before this Court:

(i) The suit was liable to be dismissed because the respondents had

failed to prove the title to the property.

(ii) The finding with respect to the property being owned by Sh.

Dharam Pal Anand and not that he was only a Benami owner, is

against the evidence led in the case and hence a perverse

finding.

(iii) The appellant is the owner because he has the title deeds of the

property in his possession, and also because he was also in

possession of the first floor of the house.

(iv) It is argued that the first Will Ex. PW3/1 is not validly proved.

(v) The finding of the Appellate Court that the forcible possession

has been taken by the appellant of the Barsati floor is a

perverse and illegal finding.

(vi) The appellant ought to have been allowed to place on record the

document/Sale Deed, as also the house tax receipts by allowing

the application filed in this Court under Order 41(27) CPC.

It is argued that the aforesaid questions are substantial

questions of law justifying interference under Section 100 CPC.

10. In my opinion, none of the arguments which have been raised on

behalf of the appellant have any substance whatsoever. In my opinion

no question of law, much less a substantial question of law, arises as

per the issues which have been argued on behalf of the appellant.

11. The argument that the respondents have failed to prove title of

the property, is a misconceived argument because the

appellant/defendant has himself alleged that the Sale Deed was in the

name of the father, Sh. Dharam Pal Anand. Once the Sale Deed of the

property was in the name of Sh. Dharma Pal Anand he in law is the

owner and the onus to prove that appellant is allegedly the real owner

and Sh. Dharam Pal Anand is only a Benami owner was very heavy

upon the appellant. The trial court has noted that no document

whatsoever was filed by the appellant to show that he contributed

funds either for purchase of the plot or for construction of the property.

Before the Appellate Court the appellant could have used the

opportunity to lead evidence when the application under Order 41 Rule

27, CPC was allowed, however, the appellant failed to lead evidence or

file the Sale Deed in favour of Sh. Dharam Pal Anand which is now

sought to be led in evidence.

In view of the above, the finding of the fact as arrived at by

the courts below that the father Sh. Dharma Pal Anand was the owner

and that the appellant/defendant was not the actual owner is a finding

of the fact which does not raise a question of law, much less a

substantial question of law.

12. So far as the arguments of the appellant having the possession

of the title deeds of the property and being in possession of two floors

in the subject property, and that there is a wrong finding of appellant

having forcible possession of Barsati floor, in my opinion such

arguments have no legs to stand upon, inasmuch as, once it is proved

that the respondents/plaintiffs were the owners of the property, they

would naturally be entitled to possession of the suit property. Both the

courts below have referred to the proved Wills Ex. PW3/1 executed by

late Sh. Dharam Pal Anand in favour of Smt. Sudarshan Kumari Anand

and Ex. PW1/1, the Will executed by Smt. Sudarshan Kumari Anand in

favour of the respondents/plaintiffs. In the chain of events of Sh.

Dharam Pal Anand being the owner and who executed the Will

Ex.PW3/1 in favour of Smt. Sudarshan Kumari Anand, and who further

executed the Will Ex.PW1/1 in favour of the respondents/plaintiffs, it

became abundantly clear that the respondents/plaintiffs were the

owners of the property entitling them to possession thereof. Merely

because the title deeds of the property are with the appellant or that he

is in possession of two floors in the property, the same cannot make a

difference because such possession of the floors or of the title deeds is

an illegal possession and which possession of floors or of the title deeds

was only because appellant was residing as a family member/son of

late Sh. Dharam Pal Anand and late Smt. Sudarshan Kumari Anand in

the suit property.

The argument that the Will Ex.PW3/1 of Sh. Dharam Pal

Anand has not been proved is an argument of desperation because the

Will has been proved and exhibited through the attesting witness Sh.

Madanlal Jain.

13. The final argument which was pressed on behalf of the appellant

was for allowing the application under Order 41 Rule 27 CPC, being C.M.

No. 4913/2010 filed in this Court. By this application, once again the

appellant seeks to file on record the Sale Deed in favour of the father

Sh. Dharam Pal Anand to show that the consideration amount was of

the moneys of the appellant. The property tax receipts of the subject

property are also sought to be placed on record to show that the same

are in possession of the appellant and which aspect makes him the

owner.

14. In my opinion, this application under Order 41 (27) CPC is

misconceived and is liable to be dismissed because no litigant can lead

evidence at his leisure and pleasure. The first stage to lead evidence

on behalf of the appellant was before the trial court, but which

opportunity was not availed of by the appellant by filing the alleged

proof on record, which admittedly all along had been in his possession.

The second stage was when the application of the respondents under

Order 41 Rule 27, CPC was allowed by the appellate Court and which

application sought to lead evidence on two aspects, one of proving of

the Will Ex. PW3/1 and the second of filing of the very Sale Deed

executed in favour of Sh. Dharam Pal Anand. This application was

allowed by the Appellate Court, and evidence was led by the

respondent qua proving of the Will Ex.PW3/1. At this stage itself, the

appellant/defendant could have volunteered and filed the Sale Deed in

favour of Sh. Dharam Pal Anand, but once again this opportunity was

also not availed of by the appellant. Now the issue is whether at the

stage of a second appeal should the clock be set back by many years

by sending the case back to the trial court at the stage of leading of the

defence evidence and allowing the appellant to prove the Sale Deed

and the property tax receipts. In my opinion, if this application is

allowed, grave prejudice will be caused to the respondents in causing

delay to the finalization of the suit for possession and mesne profits

filed by the respondents/plaintiffs, and thus the same is dismissed.

15. (i) Let me now presume that the application under Order 41(27)

CPC is allowed and the documents being the sale deed and the house

tax receipts can be looked at. The argument of the learned counsel for

the appellant was that on the back of the second page of the Sale Deed

executed in favour of Sh. Dharam Pal Anand, there is an endorsement

with respect to the payment of money to the vendors by the appellant,

and consequently, it is the appellant who is the owner of the property

having paid the consideration for the sale deed. In order to satisfy my

judicial conscience, I have gone through the said endorsement

appearing at the back of the second page of the Sale Deed.

(ii) Any doubt which has been sought to be created on behalf

of the appellant to claim that he paid the consideration is removed

when we refer to the last page of the Sale Deed, which is page no.7.

This Sale Deed is not a document which is signed both by the buyer and

the seller i.e. the vendee Sh. Dharam Pal Anand was not present at the

time of execution of the sale deed. The Sale Deed is only signed by the

vendors of this document inasmuch as there is no requirement in law

for execution of a Sale Deed that the vendee of the Sale Deed had to be

present. Since the vendee of the Sale Deed i.e. the father, Sh. Dharma

Pal Anand was not present, therefore, the monies were given by the

appellant for and on behalf of the vendee Sh. Dharam Pal Anand.

Obviously the father who for some reason was not present at the time

of registration of the Sale Deed had given the moneys to the

son/appellant for being paid to the vendors and accordingly the moneys

are shown to have been paid by the appellant to the vendors. Thus it

cannot be said that the monies were of the appellant because, in fact, it

must be that the father Sh. Dharma Pal Anand had given the monies for

purchase of the property to the appellant/son and the monies were

given by the appellant/son to the vendors of the property. The

endorsement only records payment of monies by the appellant to the

vendors, however, that cannot mean that the monies were necessarily

and only of the appellant and not of the father. Therefore, in my

opinion, neither the additional evidence can be allowed at this stage nor

even if the same is looked into the same can alter the conclusion that

the father Dharam Pal Anand was the actual owner of the property

whose monies were, in fact, paid for purchase of the property.

(iii) Also, assuming that money is paid by the appellant would

not automatically mean that the transaction in question is a Benami

transaction. There are various reasons why someone else other than

the vendee may pay the money for purchase of a property. One such

reason is that it may be possible that the appellant may have wanted to

gift the money to his father. Further a benami transaction is with a

specific purpose/intention/object and it is only to achieve that a Benami

transaction is entered into. As per the record of this case I do not find

any object or intention or purpose as to why there should be a Benami

transaction and the father should not be the actual owner of the

property.

(iv) So far as the taking on record the house tax receipts, once

again, this evidence is irrelevant because merely because the property

tax receipts are in possession of the appellant, that cannot make him

the owner of the property, because in the property tax receipts the

owner of the property is shown to be late Sh. Dharam Pal Anand, i.e.

the father and not the appellant.

16. In view of the above, no substantial question of law arises. There

is thus no merit in the appeal, which is accordingly dismissed, leaving

the parties to bear their own costs.

OCTOBER 12, 2011                                 VALMIKI J. MEHTA, J.
KA