Kundan Singh vs Jasvinder Kaur
2012 Latest Caselaw 5185 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Decision: 31.08.2012

+                                RFA No.233/2012

       Kundan Singh                                              ...         Appellant

                                        versus

       Jasvinder Kaur                                             ...        Respondent

Advocates who appeared in this case:
For the Appellant         : Mr.Suresh C.Sati
For Respondent            : Mr.Pawan Kumar

CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

SUDERSHAN KUMAR MISRA, J.

1. In substance, only two grounds have been urged by counsel for the apellant. First, that the trial court has failed to appreciate the contention of his client that the property was purchased by his late father from one Shri Chandan Singh in the name of the respondent, who happens to be his sister, merely as a benami, and therefore, he was entitled to his proportionate share by partition of that property on the death of his father. Second, that the respondent had no money to pay for the property and nothing is proved to show that she did in fact pay for it.

2. Admittedly, not a single document has been proved on the record which shows Shri Chandan Singh as the previous owner who sold the property to the respondent. At best, in some of the documents, which have been proved, Chandan Singh has been shown as one of the witnesses to the documents, which in any case, have been executed in favour of the respondent.

3. Further, even the receipt allegedly executed acknowledging the final installment of the sale price for the property received by him from the parties' late father Shri Jaswant Singh, in the presence of one Mast Ram on 26.01.1997, mentioned in his affidavit by way of evidence by Chandan Singh, has also not been proved by the appellant in any manner.

4. Consequently, there is nothing to substantiate the claim that the previous owner of the property was Chandan Singh. The question, therefore, of the plaintiff's father having purchased the property from Chandan Singh or having paid Chandan Singh any amount for its purchase, does not arise.

5. I, therefore, do not find any infirmity in the conclusion reached by the trial court that the plaintiff has failed to prove his case that the property was, in fact, sold by Chandan Singh, to his late father Shri Jaswant Singh.

6. Furthermore, as regards the financial capacity of the respondent/defendant to purchase the property in question, counsel has also contended that since the respondent has admitted that she does not have any other document, except DW 1/A, to show that she paid the consideration of the said property to Shri Subbal, therefore, it must be presumed that she has not paid for the said property. In my view, this submission also does not have any substance for the reason that even according to counsel for the appellant, no specific question has been put to the respondent that she did not have the financial capacity to purchase this property or that she had no earning or savings or even that, in fact, she never paid for the property or that, in fact, her father late Shri Jaswant Singh had paid for the property. None of these questions were put to her at all.

7. To my mind, the aforesaid statement cannot be taken as an admission by the respondent that she did not pay for the property herself for another reason, which is that this statement was recorded in cross-examination in narrative form. It simply says that she does not have any other documentary evidence except DW 1/A to show that she paid for the property herself; It is in response to a question put by the appellant; and the manner in which the answer is framed and recorded, clearly bears out the question put to her. Obviously, the question itself would have been, `Is it not correct that 'except' or 'apart from' Exhibit DW 1/A, you do not have any other document to show that you paid for the property to Shri Subbal'? Such a question clearly indicates that even the appellant had no doubt that at least Ex DW 1/A did show that the suit property was paid for by respondent. Merely because the respondent said that she has no other document, apart from Ex. DW 1/A, cannot be taken to mean that she admits that she has no proof of payment at all.

8. Under the circumstances, there is no error in the learned trial court accepting the statement of respondent/defendant that she signed the purchase documents which evidenced payment of money by her as the purchaser to the seller.

9. No other point is raised by the counsel for the appellant.

10. Under the circumstances, the appeal is without merit and is dismissed in limine.

SUDERSHAN KUMAR MISRA, J.

AUGUST 31, 2012 rd