Surinder Malik vs Asha Verma
2011 Latest Caselaw 5164 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          RFA No.110/2011

%                                                 20th October, 2011

SURINDER MALIK                                        ...... Appellant
                           Through:   Mr. Ramesh Malhotra, Adv.


                           VERSUS

ASHA VERMA                                              ...... Respondent

                           Through:    Mr. N. Prabhakar, Adv.

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 this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment of the Trial Court dated 12.7.2010 which has decreed the suit for

partition filed by the respondent/plaintiff/daughter against the

appellant/defendant/brother.

2. The facts of the case are that father/Sh.Inder Kishan Malik

owned a property namely the residential house at F-52, Naraina Vihar, New

Delhi. The father admittedly died intestate. Sh.Inder Kishan Malik on his

death left behind four legal heirs, i.e. his widow/Smt. Raj Malik, two

daughters/Smt.Santosh Malik and Smt. Asha Verma/plaintiff and one

son/Sh.Surinder Malik/defendant. Smt. Santosh Malik, the daughter was

working in NAFED, a Government of India Undertaking, and she too

acquired ownership of the property bearing No.JG-III/177-C, Vikas Puri, New

Delhi. Smt. Santosh Malik did not marry and she also died intestate.

3. All the aforesaid facts are admitted between the parties. The

net effect of the admitted facts is that there are two properties, one at

Naraina Vihar and the other at Vikas Puri. The Naraina Vihar's property

was owned by the father/Sh.Inder Kishan Malik and the Vikas Puri's

property was owned by the daughter/Smt.Santosh Malik, and who is the

sister of the parties to the present suit. The parties to the suit therefore

being the legal heirs of the father/Sh.Inder Kishan Malik and Smt. Santosh

Malik, are entitled to equal ownership in both the properties.

4. On behalf of the appellant/defendant, it was pleaded in the

Trial Court that there was a family settlement as per which the

respondent/plaintiff had got various amounts, and whereby the

respondent/plaintiff is stated to have relinquished her share in both the

properties in favour of the appellant/defendant. Admittedly, this alleged

family settlement is not a documented fact. Neither any written family

settlement was filed on record by the appellant/defendant nor was any

other document filed to show that such a settlement ever took place

between the parties. Accordingly, the Trial Court decided this relevant

issue no.1 in favour of the respondent/plaintiff by observing as under and

with which findings I agree:-

"Issue no.1:

Whether there was any settlement between the parties as claimed for by the defendant in preliminary objection No.1 and in para 5 of his written statement if the answer of this question is in the affirmative, then whether any payment had been made by the plaintiff to the defendant in terms with the said settlement? OPD

The onus of proving the issue No.1 was on defendant. The defendant deposed in hi s evidence that the elder family members of both the parties amicably settled the dispute and in lieu of the sane defendant paid a sum to account of the plaintiff and thereafter plaintiff is left with no claim. He further deposed that amount was transferred to the plaintiff as full and final payment against all claims. The defendant failed to adduce any documentary evidence for the same.

In the cross examination, Defendant admitted that neither he has filed any family settlement document with regard to the suit property or he has filed any bank statement of his individual account to show that any money was given by him to the plaintiff's sister in pursuance of the family settlement.

The plaintiff averred that as an after though, the defendant has come forward with the vague, un specific and concocted plea of "some documents" having been executed by the sister of the plaintiff on an un certain date in favour of the defendant.

Therefore, the defendant failed to prove his contentions. Hence, the issue does not hold any merit."

5. Learned counsel for the appellant has argued that this finding

with respect to issue no. 1 of the Trial Court is required to be set aside

inasmuch as the family settlement is proved by virtue of payments which

are received by the respondent/plaintiff as stated in para 8 of the affidavit

by way of evidence filed on behalf of the appellant/defendant in the Trial

Court. This para 8 reads as under:-

"That the plaintiff from inception from her marriage started raising the unlawful demands and parents of the deponent as well sister namely Ms. Santosh Malik paid a huge amount from their bank account to the plaintiff and, even then the demands of the plaintiff were not stop. In order to settle the unlawful demands raised by the plaintiff once for all due to intervention of the family members and friends it was settled that deponent will pay a agreed sum and thereafter the plaintiff shall not raise any demand/claim from the deponent on any account and in acting upon the same, deponent through her mother and from other account transferred the amount in the name of the plaintiff as such plaintiff do not have any claim over the deponent on any account. Hence, on this ground alone this suit should be dismissed in lamini. That the detail of payment is given below:-

Punjab National Bank A/C No.11332 of Mrs. Raj Malik Date Cheque Amount In Favour No.

            11.01.2001     667372        2,00,000       Asha Verma
            17.07.2001     669783        10,000         Asha Verma

Punjab National Bank A/C No.121643 of Mrs. Raj Malik 05.08.1999 426842 10,000 Ghansham Lal Verma 28.11.2002 426847 5,000 Asha Verma 23.03.2005 426853 50,000 Asha Verma 05.04.2005 426854 1,00,000 Asha Verma 26.04.2005 426856 10,000 Asha Verma 26.04.2005 426855 30,000 Ghansham Lal Verma Indian Bank A/c No.23032 of Mrs. Raj Malik

05.08.2004 263203 75,000 M.K.Verma Union Bank of India A/c No.9153 Joint Account of Mrs. Raj Verma & Mr. Surinder Malik 06.09.1993 172544 20,000 Asha Verma

Copy of Passbooks of said accounts are Ex.CW-1/2- A to 2-F.

6. In my opinion, no fault can be found with the findings of the

Trial Court on issue no.1 inasmuch as if valuable share in two immovable

properties is sought to be taken away from the respondent/plaintiff by the

appellant/defendant, the family settlement had to be proved beyond

doubt. Besides the fact that there is no documentary evidence to prove

the family settlement, it is admitted by counsel for the appellant in the

course of the arguments before this Court that the details of the payments

which are shown in para 8 of the affidavit by way of evidence are not

payments made by the appellant/defendant to the respondent/plaintiff, but

these are withdrawals made by the respondent/plaintiff from an account

which was held jointly by the respondent/plaintiff with her mother. Surely,

withdrawal by a person from an account in which she is a joint holder,

cannot be taken as a proof of a family settlement, which seeks to deprive

the respondent/plaintiff from 50% ownership share of the two immovable

properties at Naraina Vihar and Vikas Puri. Further, there would have been

any credibility on the issue of family settlement, if the respondent/plaintiff

would not have been entitled to receive the amounts in the account with

her mother. In addition to the fact that the respondent/plaintiff was a joint

holder of the account, even assuming that these amounts were received

by the respondent/plaintiff, at best these would be amounts received by

the respondent/plaintiff with respect to the amounts/property of the

mother, and to which she was equally entitled along with the

appellant/defendant/son. Therefore, to the monies of the mother, taking

the case of the appellant at best, both the parties would have equal rights,

and therefore, it cannot be said that withdrawal of the amounts by the

respondent/plaintiff from the accounts stated in para 8 of the affidavit by

way of evidence can, in any manner, show any family settlement. It is also

admitted during the course of the arguments that it is not as if the entire

amount in the account as shown in the para 8 of the affidavit by way of

evidence filed on behalf of the appellant/defendant was the only amount

lying in the account of the mother.

7. I accordingly, hold that the Trial Court was justified in finding

that there was no family settlement between the parties as was the claim

of the appellant/defendant.

8. A civil case is decided on balance of probabilities. The balance

of probabilities, i.e. the preponderance of probabilities shows that there is

no family settlement as was alleged by the appellant/defendant. If on such

flimsy evidence, as is put-forth by the appellant/defendant, a family

settlement can be said to have been proved, then, it would have

catastrophic effect on valuable rights in immovable properties which have

accrued to the respondent/plaintiff. This Court is not entitled to interfere in

appeal merely because the Trial Court has taken one plausible and

possible view, unless that view causes grave injustice and prejudice. I do

not find that the conclusions of the Trial Court cause any grave injustice or

prejudice to the appellant/defendant and in fact, if the impugned judgment

is set aside, grave prejudice and injustice will be caused to the

respondent/plaintiff.

9. In view of the above, there is no merit, which is accordingly

dismissed, leaving the parties to bear their own costs.

CM No.3525/2011 & CM No.3526/2011(for stay)

10. In view of the order passed in the appeal, no orders are

required to be passed in these applications and which are accordingly

dismissed.

October 20, 2011                                VALMIKI J. MEHTA, J.
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