Sh.Ravish Chand Jain vs Smt. Raj Rani Jain & Ors.
2011 Latest Caselaw 4436 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.873/2003

%                                                 12th September, 2011

SH.RAVISH CHAND JAIN                                  ...... Appellant
                          Through:    Mr. Prakash Khandelwal, Adv.


                          VERSUS

SMT. RAJ RANI JAIN & ORS.                          ...... Respondents

Through: Mr.Randhir Jain with Mr. Dhananjai Jain, Advs.

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 and decree dated 8.9.2003, and by which judgment the Court

below dismissed the suit for partition filed by the appellant/plaintiff. In the

suit the appellant/plaintiff had sought 1/6th share of the house bearing No.

119, Bahubali Enclave, Delhi.

2. A reading of the pleadings of the appellant/plaintiff shows that

the appellant/plaintiff pleaded existence of an HUF. The appellant/plaintiff

thereafter further pleaded that the respondent no1/defendant no.2/mother in

whose name the property was, was not the real owner of the property

because she was only a housewife and funds for the purchase and the

construction on the same were provided for by the grandfather and also by

the appellant/plaintiff. The defendants/respondents contested the suit and

denied the existence of HUF and also as to the property being a joint family

property. It was denied that the plaintiff had any share in the property which

belonged to the respondent No.1 and it was prayed that the suit for partition

be dismissed.

2A. The Trial Court, after the pleadings were complete, framed the

following issues:-

"1. Was the property to suit purchased/acquired out of Hindu Undivided Family Funds?

2. If issue no.1 is proved, does plaintiff have a share in its? If so, how much?

3. Relief."

3. Before proceeding to analyze the evidence which has been led

before the Trial Court, as also the findings/conclusions of the Trial Court, it is

necessary to understand and appreciate as to how a Hindu undivided family

comes into existence before the enactment of the Hindu Succession Act,

1956 or thereafter. A Hindu undivided family before 1956 came into

existence if a male member inherited a property from any of his three

paternal ancestors. An HUF could also be created when no HUF was in

existence if a self-acquired property was thrown in a common hotchpotch.

After 1956, merely because a person inherited a property from any of his

three paternal ancestors would not automatically mean that an HUF comes

into existence. This is clear from two judgments of the Supreme Court being

Commissioner of Wealth Tax vs. Chander Sen Etc. AIR 1986 SC 1753

and Yudhishter vs. Ashok Kumar AIR 1987 SC 558. After enactment of

the Hindu Succession Act, 1956, an HUF can ordinarily come into existence

for the first time only if an individual throws his self-acquired property into

common hotchpotch by a declaration and thereafter the property is treated

as a property of the Hindu undivided family. Persons being joint in mess

would not automatically mean that there is an existence of an HUF property

i.e. even if there is an existence of an HUF, there is no automatic

presumption that HUF also owned properties. Keeping this position of the

law in mind, let us turn to the facts of the present case.

4. I put it to counsel for the appellant during the course of the

arguments as to whether even a single document was filed in the Trial Court

so as to prove the existence of an HUF, and, it is admitted that there is

absolutely no documentary evidence showing existence of an HUF. Neither

has the property as per the title deeds shown to have been purchased by the

HUF nor has the property been shown in the property tax records/municipal

records as an HUF property and nor have any income tax returns been filed

showing the property to be an HUF property. Further, it has also not been

proved by any form of documentary evidence that grandfather owned any

ancestral property and by selling of which ancestral property, the funds were

provided for the purchase of the plot and the construction of the property.

Therefore, there is only oral self-serving statement of the appellant/plaintiff

with regard to existence of HUF which cannot amount to discharge of onus

when the defendants denied the same in their evidence. Further, a property

can be an HUF property if the property stands in the name of any one male

co-parcener. A female member is not a co-parcener and existence of a

property in the name of a female member of the family would not mean that

the said property would be an HUF property, assuming an HUF is in

existence. There is also no documentary evidence of the property having

been thrown into common hotchpotch by the respondent no.2/mother and

therefore creation of an HUF by this form is also ruled out, and for which

purpose we are assuming that a female can create an HUF by throwing her

property into common hotchpotch, though in law the same is not possible.

5. Further, it is worth noting that the case of the appellant/plaintiff

was in a way mutually destructive because on the one hand it was claimed

that the property was of the HUF and on the other hand it was claimed that

the appellant/plaintiff was the co-owner because he had paid monies towards

purchase of the plot and for construction thereon. Surely, if ownership is

claimed in the property because of payment of monies for the purpose of

purchase of plot and construction thereon, the same would only mean a

claim of co-ownership of the property by payment of consideration and not

because there is an HUF. In fact, even this aspect of payment of

consideration and co-ownership and at best assuming the same to be an

HUF, have not been proved because there is no payment by crossed cheque

to the respondent no.1/mother by the appellant/plaintiff and also there are

no receipts showing any payment made to the respondent No.1/mother of

amounts in cash. What was relied upon by the appellant in the Trial Court

was a copy of his bank account showing repeated withdrawals totaling to a

sum of about Rs.1,00,000/- and which was claimed to have been paid and

entries therein were alleged to be reflective thereof amounts paid to the

respondent No.1/mother. Firstly, the statement of account was not proved

and exhibited on record and the same is only marked and hence cannot be

looked at. Also, withdrawals by a person from his account cannot

automatically mean that the said amounts were also paid further to the

respondent no.1/mother. After all the withdrawals would/could have been

used by the appellant for himself also. Therefore, there is absolutely no proof

whatsoever of any payment being made by the appellant/plaintiff to the

respondent no.1/defendant no.2/mother.

6. Even on the aspect of payments by the grandfather for purchase

of the plot and for construction of the property again there is not a single

documentary evidence on record except the self-serving statement of the

appellant/plaintiff. Even if we assume that the grandfather made certain

payments towards purchase of the plot and construction thereon, yet, that

would at best mean some gifts of payments by the grandfather to the

respondent no.1/mother, and which in any case I have already stated above

has not been established at all.

7. Therefore for all the aforesaid reasons of there not existing a

single sheaf of paper to show the existence of HUF whether in public records

or private records, any proof especially of any payments of money by the

grandfather to the respondent no.1/mother and further also no proof

whatsoever of any payments made by the appellant/plaintiff to the

respondent no.1/mother, the Trial Court has rightly held that it cannot be

said that the property was an HUF property or that the appellant/plaintiff had

any share in the same. Some of the relevant observations and findings of

the Trial Court are contained in paras 12 to 14 of the impugned judgment

and which read as under:-

"12. The fate of this case primarily hinges on the evidence of the plaintiff and of defendant no.2(DW-2). After having carefully gone through the evidence of defendant no.2, I find that she has categorically stated in her evidence that she and her husband alone had constructed the suit property. It has come in her evidence that her husband (Defendant NO.1) took loan of Rs.60,000/- fro his provident fund account for construction of the suit property and she had also taken loan from Punjab national Bank by pledging jewellery of defendant no.2. Apart from this, it is evident from the evidence of defendant no.2 that she possessed sufficient assets in the shape of immovable property in the name and she had sold some of her properties of which details are given by her in her evidence. In judgment reported in 2002 (2) Recent civil Reports 749, the Division Bench of Hon'ble High Court has held that there is no presumption that joint family possesses joint property only and merely because family is joint, it cannot be said that the property held by its members is joint family property and the burden is on the person who asserts so. NO judgment to the contrary has been cited before me nor plaintiff has been able to distinguish the above-cited judgment. In view of the above- referred legal position, I proceed to examine the evidence of the plaintiff referred to above.

13. After having analysed the evidence of the plaintiff in detail, I find that except his bald statement, there is no concrete evidence in respect of joint family nucleus of the suit property. Plaintiff has failed to prove on record the contributions alleged to have been made by his grand father in the purchase or construction of the suit property. Plaintiff claims to have himself contributed in the construction of the suit property and relies upon statement of his bank account mark A which is not duly proved on record. Otherwise, also statement of bank account mark A of the plaintiff is of no avail to the case of the plaintiff because plaintiff has not stated in his evidence as to on which dates he had withdrawn particular amount from his bank account for construction of the suit property. In fact plaintiff has admitted in his cross-examination that he had never made any payment by cheque to his father towards construction of the suit property. Plaintiff has also admitted in his cross- examination that properties at East Moti Bagh, Sarai Rohilla are in the name of defendant no.2 and one plot at Bhola Nah Nagar are in the joint name of defendant no.2 and Anuj Jain. Plaintiff has not got examined aforesaid Anuj Jain to prove that above-said properties were purchased in the name of defendant no.2 by his grand father. On the other hand, there is categoric evidence of defendant no.2 that the sale proceeds of Loni land (which was in her name) were utilized for purchase of the suit property. Not only this, defendant no.2 has stated in her evidence that house in East Moti Bagh, Sarai Rohilla (which was in her name) was sold by her for Rs.1,25,000/- and the sale proceeds were utilized in the construction of the suit property. Aforesaid evidence of defendant no.2 remains unchallenged in her cross- examination.

14. In view of what is observed above, I hold that the plaintiff has failed to prove that the suit property was purchased out of Hindu Undivided Family Funds. This issue is accordingly decided against the plaintiff." (underlining added)

8. Learned counsel for the appellant sought to argue that the

respondent no.1/defendant no.2/mother was only a housewife and therefore

having no funds, it should be held that the property was an HUF property or

that the appellant/plaintiff was in any case a co-owner by virtue of having

made payments. Firstly, I may note that no payments at all have been

proved to have been made which are stated to have been made by the

appellant/plaintiff to the respondent No.1/mother and in my opinion

argument of learned counsel for the appellant that it was for the respondent

no.1/mother to prove that the property was not an HUF property is

misconceived. Admittedly, the title deeds of the property were in the name

of the respondent No.1/mother and it was also accordingly acted upon in the

public records and the onus of proof therefore that the property was not of

the mother/respondent no.1 but was an HUF property or co-owned property

was on the appellant/plaintiff and not otherwise as is sought to be argued on

behalf of the appellant. The appellant, as already discussed above, has

miserably failed to discharge the onus of proof of there existing an HUF or of

his having made the payments to the mother/respondent no.1 or of the

grandfather having made payments to the respondent no.1/mother.

9. Learned counsel for the appellant then argued that though in the

examination-in-chief of the appellant he had said that grandfather had paid

monies and there was no cross-examination on this aspect and consequently

it should be held that the property was purchased by the funds of the

grandfather. No doubt, not giving a suggestion in the cross-examination, can

in certain cases lead to an inference of existence of a fact, however, it is

settled law that the entire evidence has to be considered as a whole

alongwith the other documentary evidence and also the depositions of the

other witnesses. In a case such as the present, a mere failure to give a

suggestion, in my opinion cannot lead to a conclusion that it should be held

that the grandfather in fact had paid monies towards the purchase of this

plot or construction thereon. In this regard, I would seek to refer to paras 10

and 11, and more particularly para 11 of the impugned judgment which

shows evidence which was led that the grandfather did not contribute for the

plot and the father of the appellant/plaintiff/Sh. Prem Chand Jain who

deposed as DW1, stated in his evidence that the property was constructed

by him from his own income and loan and selling of plots of the mother,

details of which were given in the evidence.

10. A civil case is decided on balance of probabilities. Where

valuable interests in an immovable property are concerned, mere oral

statement cannot lead to discharge of onus of proof once the case is

vehemently contested and evidence in rebuttal is also led. The facts of the

present case negate the existence of an HUF or of the plaintiff being a co-

owner on account of having paid monies towards purchase of plot or for

construction thereon. The Trial Court has discussed in detail the evidence in

the case and thereafter has arrived at a possible and plausible view. Unless

that view is illegal and perverse, this Court would not interfere with the

same. I do not find any illegality or perversity in the impugned judgment nor

does the impugned judgment cause injustice which calls for this Court to

interfere in the appeal so as to set aside the impugned judgment.

10. In view of the above, I do not find any merit in the appeal which

is accordingly dismissed, leaving the parties to bear their own costs. Trial

Court record be sent back.

SEPTEMBER 12, 2011                            VALMIKI J. MEHTA, J.
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