Shri Gajinder Pal Singh vs Shri Mahtab Singh And Ors.
2012 Latest Caselaw 3978 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI



+                     CS(OS) 374/1993



SHRI GAJINDER PAL SINGH                                    ..... Plaintiff
                   Through:               Ms. Mala Goel, Advocate.


                      versus


SHRI MAHTAB SINGH AND ORS.              ..... Defendants
                 Through: Mr. P.R.Chopra, Advocate for
                           defendant Nos.1, 3, 4 and 5.


%                              Date of Decision : July 09, 2012


CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL


                               JUDGMENT

: REVA KHETRAPAL, J.

1. The aforementioned suit for partition and rendition of accounts

has been filed by the plaintiff praying for partition of HUF

immovable properties, viz., B-13, Nizamuddin East comprising of a

plot of 200 sq. yards along with two storeyed super-structure and B-

22, East of Kailash, New Delhi comprising of a plot of 211 sq. yards

along with two and a half storeyed super-structure.

FACTS

2. The facts as delineated in the plaint are that one Prof. Parman

Singh, who was a „displaced person‟ from Pakistan, had come to

India leaving behind vast joint Hindu family immovable properties.

Prof. Parman Singh was the only surviving child of his father Lala

Behari Mal, who was a businessman and had extensive properties in

Rawalpindi (Pakistan). Prof. Parman Singh expired in Delhi on

17.09.1975. He was survived by his widow and two sons (i.e., the

defendant Nos.1 and 2) and grand sons (i.e., the plaintiff, the

defendant No.3 and the defendant No.4). The widow of Prof. Parman

Singh, namely, Smt. Balwant Kaur also expired on 16.06.1991

leaving behind the aforesaid persons and the aforementioned

properties, viz., B-13, Nizamuddin East and B-22, East of Kailash,

New Delhi.

3. It is asserted in the plaint that late Prof. Parman Singh after

coming from Pakistan had applied for the allotment of a house under

the Scheme for displaced persons under the Displaced Persons Act, to

the Ministry of Rehabilitation, Government of India. By a letter dated

26.02.1950, late Prof. Parman Singh was informed by the Ministry of

Rehabilitation, Government of India with reference to his aforesaid

application that several houses for displaced persons were under

construction and were likely to be completed by June, 1950. By

another letter dated 12.03.1950, late Prof. Parman Singh was

requested to deposit a sum of ` 5,000/- towards the allotment of the

house applied for by him. Thereafter, by letter dated 25.05.1950, the

Ministry of Rehabilitation, Government of India informed late Prof.

Parman Singh that one double room house in Nizamuddin Extension

(now known as Nizamuddin East) had been decided to be allotted to

him, the possession whereof would be handed over to him when it

was ready.

4. By another letter dated 23rd October 1953, late Prof. Parman

Singh was informed that the final figure of the actual cost of the

house was ` 5,946/- and since ` 5,000/- was already paid by him, the

balance of ` 946/- was to be paid. According to the plaintiff, since

Prof. Parman Singh had brought with him movable properties in the

form of cash and jewellery from Pakistan, which belonged to the

HUF and were given to him by his father etc., he paid ` 5,000/- to the

Ministry of Rehabilitation by depositing the same in the Treasury and

also paid ` 946/- from the same. Hence, the property allotted to him

at Nizamuddin was HUF property and continues to be so even today.

5. In 1960, Prof. Parman Singh applied to the MCD for sanction

to carry out construction in the said premises. Right from the

beginning, he had been keeping tenants in the said property and had

been receiving rent. Using this amount, he built extra and additional

structures on the property. After his death in 1975, his widow, Smt.

Balwant Kaur continued to stay there and receive rents and had her

bank account, including a joint account with the defendant No.1 used

for depositing HUF rents and withdrawing the same. All HUF

moneys were being handled by the defendant No.1. The defendant

No.2 Hari Singh (brother of the defendant No.1) had left India

somewhere in the late sixties and never returned to India thereafter.

6. The plaintiff further alleges that the defendant No.1 - father of

the plaintiff, making use of the HUF rents from the Nizamuddin

property purchased a plot at B-22, East of Kailash, New Delhi and

constructed a super-structure thereon. The nucleus of the said

property came from HUF money and thus the said property is also

HUF property. In the aforesaid property, the plaintiff is residing on

the ground floor, the defendant No.3 is residing on the first floor and

the defendant No.1 with his wife the defendant No.5 also resides in

one bed room on the ground floor of the said house. The defendant

No.4 is living in the ground floor of Nizamuddin house, which was

earlier let out to the Punjab and Sind Bank. The first floor of the

Nizamuddin house is let out on rent for the last many years.

7. The plaintiff claims that being the son of the defendant Nos.1

and 5, he has 1/10th share in both the aforesaid HUF properties. The

defendant Nos.1 and 2 are both entitled to one-half share each in the

said properties, and the defendant Nos.3 and 4 are entitled to 1/10 th

share each, i.e., as much as that of the plaintiff. Since, on partition,

defendant No.5 is also entitled to an equal share in the properties as

her sons, she is entitled to 1/10th share in the properties. In the event,

however, that the defendant No.2 Hari Singh does not claim any share

in the properties, the plaintiff and the defendants Nos.1, 3, 4 and 5 are

entitled to 1/5th share each of the aforesaid properties.

8. The cause of action for filing of the present suit arose in March,

1992 when the plaintiff demanded his separate share on account of

family disputes and the defendants failed to hand over the same to

him and again in September, 1992 when the defendants failed to hand

over his share. It again arose on 30th January, 1993 when the plaintiff

again asked for his share and was refused the same.

9. Apart from his share of the immovable properties, the plaintiff

claims rendition of accounts kept by the defendant No.1 assessed to

be in the sum of ` 60,000/- on the date of the institution of the suit.

WRITTEN STATEMENT

10. In the written statement filed by the defendant No.1 Shri

Mahtab Singh, the father of the plaintiff, it is categorically denied that

late Prof. Parman Singh had left behind him HUF immovable and

movable properties including B-13, Nizamuddin East, New Delhi and

B-22, East of Kailash, New Delhi. It is denied that the plaintiff has

any right to seek partition of the aforesaid properties or any share in

either of the aforesaid properties. It is asserted that the properties are

not HUF properties as alleged by the plaintiff and the plaintiff has no

share in the same. It is specifically denied that the plaintiff is in

possession of any of the properties directly or indirectly through the

tenants.

11. The facts as narrated in the written statement briefly stated are

that late Prof. Parman Singh‟s father, Lala Behari Mal lived in a small

village, Village Mochh, District Mianwali (now in Pakistan) in a

kutcha mud house and had a small shop. He was a small shopkeeper

and not a businessman as alleged by the plaintiff. He passed away in

the year 1935, his wife having pre-deceased him. He did not leave

behind any asset of substance or value. The mud house and the small

shop had to be abandoned because Prof. Parman Singh, the only

living heir, had at a very young age lived away from the village to

further his education and later for his employment and was not living

at Mochh at the time of death of his father. Prof. Parman Singh lived

at Shahpur and later at Rawalpindi. Here, he worked as a teacher, and

later as a professor. He constructed a house in Rawalpindi in 1946

out of his own funds, after 11 years of the death of his father in the

year 1935. He, however, had to abandon the said house upon

partition in 1947, when he was air lifted in a military plane from

Rawalpindi and to accommodate the maximum passengers (who

squatted on the chair-less floor of the airplane), no luggage was

allowed. He brought no cash and jewellery to India as alleged by the

plaintiff. The property at B-13, Nizamuddin East was his self-

acquired property and at B-22, East of Kailash, New Delhi was the

self-acquired property of defendant No.1. It is falsely alleged that the

said properties were acquired from HUF funds and the nucleus

thereof was HUF. The said properties are not HUF properties. There

never was any HUF of Prof. Parman Singh, nor is there any HUF of

defendant No.1. Plaintiff, therefore, has no right in the said properties

and his suit claiming partition is liable to be dismissed with costs.

12. It is further stated in the written statement that Prof. Parman

Singh, who was a displaced person, had lodged a claim with the

Government of India for compensation for his self-acquired house left

in Rawalpindi (presently in Pakistan) and in settlement of his claim

he received a sum of ` 4,486/- only, which he had perforce to use for

purchasing clothes and other personal articles for himself and his wife

Mrs. Balwant Kaur. With part of this compensation received by Prof.

Parman Singh for his self-acquired property and with further money

given to him by his son (defendant No.1, Mahtab Singh), who had

been in Government service in Delhi since 1942, Prof. Parman Singh

purchased the property B-13, Nizamuddin East. He got possession of

the said property only in 1951 and started living there and continued

to live there till his death in 1975. Prof. Parman Singh, therefore,

acquired the Nizamuddin property from his own sources and did not

inherit the same. By his Will dated 08.06.1972, he bequeathed his

property to his wife Smt. Balwant Kaur, excluding his sons, i.e., the

defendant No.1 and the defendant No.2 from his Will. On the basis

of the said Will executed by Prof. Parman Singh, the property was

mutated in the name of Mrs. Balwant Kaur vide letter dated

27.06.1981 by the Land and Development Officer, Government of

India. Mrs. Balwant Kaur later bequeathed the property to the

defendant No.1 vide her Will dated 25.01.1986, and the property was

thereafter mutated in the name of the defendant No.1 by letter dated

27.09.1991 by the Land and Development Officer. The defendant

No.1 asserts that the plaintiff knew about the Will of Prof. Parman

Singh and the consequent mutation of the property at the time of the

death of Prof. Parman Singh in 1975 and never objected to the same

and now after 18 years he is claiming his share in the said property,

falsely calling it HUF property. Even at the time of the second

mutation in 1991 on the death of Mrs. Balwant Kaur, the plaintiff did

not object.

13. As regards immovable property at B-22, East of Kailash, New

Delhi, the defendant No.1 has stated that the land in respect thereof

was purchased by him from the Delhi Development Authority in 1965

with his own resources including ` 7,000/- from his GPF account. He

constructed the house also from his own resources, including the

loans obtained by him from the Government of India against the

mortgage of the property and advances from his GPF account, loans

against LIC policies held by him, loan from cooperative society and

also from his friends. He categorically denied that the said property

was HUF property or that the defendant No.1 had used HUF funds for

the purchase or construction of the said property. The plaintiff‟s

prayer for a decree of partition and rendition of accounts, therefore, is

without cause of action and the suit liable to be dismissed with costs.

14. The defendant Nos.3, 4 and 5 adopted the aforesaid written

statement of the defendant No.1 by filing affidavits in reply and

stating that the plaintiff had no title or legal or statutory right to live

in or possess any part of the properties in question, which were not

ancestral properties but were the self-acquired properties of the

defendant No.1.

ISSUES

15. On the pleadings of the parties, the following issues were

settled on 07.01.2003:-

"1. Whether the suit property is a HUF property or not?

2. Whether the plaintiff is entitled to any share in the property and if so to what extent?

3. Whether the plaintiff is entitled for rendition of account claimed by him?"

16. On 25.04.2003, on the defendant‟s application, being IA

No.1273/2003, for the framing of additional issues, the following

additional issues were framed:-

"1. Whether the suit is bad for non-joinder of defendant no.2? OPD

2. Whether suit is barred by time? OPD"

17. On the same date, that is, on 25.04.2003, the additional issue:

"Whether the suit is bad for non-joinder of defendant No.2?" was

ordered to be treated as a preliminary issue. The said issue was

decided on 23rd September, 2003 by a detailed order of this Court,

whereby the defendant No.2 was held to be a necessary party and

ordered to be served. However, even after the said order, the

defendant No.2 was not served by the plaintiff with the result that an

order was passed on 7th April, 2004 deleting defendant No.2 from the

array of parties. It may be noticed that against the order dated 23rd

September, 2003, defendants had preferred an appeal bearing

FAO(OS) No.351/2003, which was disposed of on 25.11.2004 as

infructuous in view of the order dated 7th April, 2004 deleting

defendant No.2 from the array of parties.

18. By a subsequent order dated 18.10.2005 passed in IA

No.4154/2004 filed by the defendants under the provisions of Order I

Rule 9 and Order VII Rule 11 read with Section 151 CPC for

rejection of the plaint on account of the suit being barred by law, this

Court, after noting the stand of both the parties that the defendant

No.2 had not been heard of for well over 30 years, held, after

referring to the provisions of Sections 107 and 108 of the Indian

Evidence Act, 1872, that the presumption would have to be drawn

that the said defendant is no more. The application was accordingly

disposed of with the direction to continue the suit against the

impleaded defendants. The issue of non-joinder of defendant No.2,

therefore, does not survive for consideration and only four issues

survive for consideration on which evidence was adduced by the

parties.

EVIDENCE

19. In the course of evidence, the plaintiff examined himself as his

sole witness while the defendants produced in the witness box six

witnesses in support of their case including the defendant No.1

Mahtab Singh.

20. In support of their case, the defendants had filed affidavits of

Shri Jodh Singh, Shri Harnam Singh and Shri Santokh Singh Dua as

reflected from the list of documents filed by the defendants dated

08.02.1997. The first and second named witnesses were born and

lived in Mochh and in their affidavits deposed as to the poor

economic condition of Lala Behari Mal and the fact that the kutcha

mud house and the shop belonging to him were abandoned by Prof.

Parman Singh (who lived at Rawalpindi), the value of which during

those days was only a few hundred rupees. Shri Harnam Singh in his

affidavit also stated that Prof. Parman Singh after his matriculation

had become a school teacher and lived away from Mochh, notably in

Shahpur and Rawalpindi, whereas Lala Behari Mal continued to live

in village Mochh till his death in 1935. He further stated in his

affidavit that in 1946 Prof. Parman Singh, who by then had privately

passed M.A. and had become a college lecturer, constructed a small

house in Rawalpindi. Prof. Parman Singh came to Delhi in

September, 1947 virtually penniless as he admitted to him in Delhi.

He had come by air in the military plane. The third named witness,

namely, Santokh Singh Dua had lived in Rawalpindi and Delhi and

had personally known Prof. Parman Singh at both the places.

21. As is borne out from their affidavits, all three persons were

over 70 years of age in 1993 when the said affidavits were executed

by them. Shri Jodh Singh and Shri Harnam Singh passed away

during the pendency of the case and keeping in view the advanced

age of Shri Santokh Singh, who at the time of recording of his

evidence was 86 years of age, this Court had permitted the defendants

to produce him as DW1 before the plaintiff could lead his evidence.

22. DW1 Shri Santokh Singh Dua, who tendered in evidence his

affidavit as Ex.DW1/A proved that Prof. Parman Singh and his wife

came to Delhi from Rawalpindi in the first half of September, 1947

by a military aircraft and did not bring with them any luggage other

than the clothes they were wearing. Thereafter, Prof. Parman Singh

and his wife lived in the same house at Mahatma Niwas in Ram

Nagar in which their son Mahtab Singh was residing. The latter, the

witness stated, had come to Delhi in 1942 for the first time when he

(Santokh Singh) gave him accommodation in his rented house at

Mahatma Niwas in Ram Nagar, near New Delhi Railway Station.

Mahtab Singh continued to live in the said house upto 1951.

23. It may be noted that DW1 was extensively cross-examined but

his testimony remained unshaken. In the course of his cross-

examination, he stated that he was residing in Delhi since September,

1940. He knew defendant No.1 from Rawalpindi, that he was related

to the defendant No.1 as well as the plaintiff as his daughter‟s sister-

in-law (Nand) is married to the son of the defendant No.1 and brother

of the plaintiff and that for the first time he had met Prof. Parman

Singh in the year 1946 when Prof. Parman Singh had built a house by

the side of his sister‟s house in Akalgarh, Rawalpindi. His (DW1‟s)

family had come from Pakistan to Delhi in October, 1947. When

Prof. Parman Singh arrived at Safdarjung Airport with his wife, he

had nothing with him. He (DW1) was present at the airport to find

out the welfare of his family from the persons who were coming from

Pakistan, he was carrying nothing. About 60 persons had got down

from the military plane. They were carrying nothing with them.

24. The defendant No.1, who appeared in the witness box as DW2,

tendered in evidence his affidavit by way of evidence Ex.DW2/A and

exhibited documents Ex.DW2/1 to Ex.DW2/14, stating that he also

relied on exhibits D1 to D4, the admitted documents. He was

extensively cross-examined by the plaintiff himself on 02.04.2009,

25.04.2009, 25.07.2009 and 24.10.2009.

25. DW3 Mrs. Katyani Mathur, UDC, L&DO, Nirman

Bhawan, New Delhi appeared in the witness box with the original

record wherefrom she proved Ex.DW3/1 and Ex.DW3/2, i.e., the

letter of mutation in favour of Smt. Balwant Kaur dated 27.06.1981

and the letter of mutation dated 27.09.1991 in favour of the defendant

No.1 in respect of the Nizamuddin property.

26. DW4 Shri Ram Prakash Bhatia exhibited his affidavit in

evidence as DW4/A wherein he stated that he was related to the

defendants and the plaintiff. The defendant No.1 was the son of his

mother‟s sister and the plaintiff was the son of defendant No.1. He

further stated that Prof. Parman Singh, father of the defendant No.1

and grandfather of the plaintiff had passed away on 17.09.1975

leaving behind a Will dated 08.06.1972. On 20.09.1975, the

defendant No.1, Mahtab Singh had read the aforesaid Will in the

presence of all close relatives including the plaintiff and the defendant

Nos.3, 4 and 5, Late Harnam Das Bhatia, Late Smt. Balwant Kaur,

Late Madan Lal and Late Smt. Ram Bai. Plaintiff was about 22 years

old at that time. In cross-examination, DW4 stated that he was not

able to read English but was aware of the fact that by his Will

Ex.DW2/1 Late Prof. Parman Singh had left his properties to his wife

Smt. Balwant Kaur.

27. DW5 Shri Brahm Pal, Assistant, Ministry of Defence, was next

summoned in the witness box to prove letters relating to money raised

as loans and advances by the defendant No.1 from his office for the

purpose of construction of the property bearing no. B-22, East of

Kailash, Nizamuddin. He submitted his letter of authorization

Ex.DW5/A and informed that such old record stood destroyed under

the relevant rules Ex.DW5/B.

28. DW6 Shri Akbar Ali, UDC, LIG Section (Housing), DDA,

New Delhi, last appeared in the witness box and placed on record the

certified copy of the page No.57 of the Original Register of

Registration Record in respect of LIG Scheme of 1979 containing

Entry No.48624 Ex.DW6/A. He also proved Ex.DW6/B, the affidavit

of the plaintiff that he owned no property in Delhi (condition

precedent for entitlement under the aforesaid claim) with letter dated

19.05.1989. He also proved Ex.DW6/C, the possession letter dated

26.05.1989 issued by the DDA in favour of the plaintiff in respect of

the flat allotted to the plaintiff.

PLAINTIFF'S CONTENTIONS

29. Detailed submissions at the bar were addressed by Ms. Mala

Goel, Advocate on behalf of the plaintiff and Mr. P.R. Chopra,

Advocate on behalf of the defendant Nos.1, 3, 4 and 5. The evidence

adduced by the parties and the submissions of the parties are for the

sake of facility and in order to avoid prolixity being dealt with

hereunder issue-wise:-

30. ISSUE NO.1

"Whether the suit property is HUF property or not?"

31. At the outset, Ms. Mala Goel, the learned counsel for the

plaintiff contended that the documents produced by the plaintiff being

more than 30 years old, the presumption under section 90 of the

Evidence Act flows and, therefore, implicit reliance may be placed

upon the said documents by this Court. In order to prove that B-13,

Nizamuddin East was HUF property, Ms. Goel relied upon the

following documents tendered in evidence by PW1 Mr. Gajinder Pal

Singh, the plaintiff:-

(i) Certificate of payment of interim compensation issued

by the Government of India, Ministry of Rehabilitation

dated 07.05.1955 to Prof. Parman Singh - Ex.PW1/1

[Document was denied by the defendant on account of

being incomplete.].

(ii) Letter dated 26.03.1950 from the Government of India,

Ministry of Rehabilitation to late Prof. Parman Singh

with reference to his application dated 10th February,

1950 for allotment of a house to be constructed in

displaced persons colonies which were likely to be

completed by the end of June, 1950 - Ex.PW1/2 (also

Ex.P1). The said letter which is an admitted document

stipulated that the houses can be allotted to those

displaced persons who -

"(a) are registered in Delhi as displaced persons within

the prescribed dates, that is, 10.12.1947 in the case

of those who migrated from West Punjab and

29.02.1948 in the case of those who migrated from

other areas of Western Pakistan;

(b) are gainfully employed; and

(c) are prepared to pay in lumpsum ` 5,000/- as the

approximate price of the house."

It was further stated in the said letter that if the

aforesaid conditions were satisfied, the applicant was

required to deposit a sum of ` 2,000/- in the Imperial

Bank of India, Government Treasury. After deposit, the

Treasury receipt should be sent to the Ministry by 15th

April, 1950 stating in the covering letter the names of

colonies in order of preference where the applicant

would like to purchase the house. The remaining sum of

` 3,000/- was to be paid immediately on the allotment of

the house.

(iii) Letter dated 17.03.1950 from the Ministry of

Rehabilitation to Prof. Parman Singh requesting him to

deposit ` 5,000/- in the Government Treasury/Imperial

Bank of India towards the allotment of the house -

Ex.PW1/3 (also Ex.P4) and stating that his Cheque

No.451453 dated 03.04.1950 for ` 5,000/- was being

returned.

(iv) Letter dated 25.05.1950 from the Ministry of

Rehabilitation informing Prof. Parman Singh that the

Ministry had decided to allot to him one double roomed

house in Nizamuddin Extension against the sum of `

5,000/- deposited by him in the Treasury - Ex.PW1/4

(also Ex.P2).

(v) Letter dated 23rd October, 1953 whereby Prof. Parman

Singh was informed that the final figure of the actual

cost of the house was ` 5,946/- and since ` 5,000/- was

already deposited by him, the balance of ` 946/- was to

be paid by him within one month of the receipt of the

letter - Ex.PW1/5 (also Ex.P3).

(vi) Letter dated 04.03.1958 from the Ministry of

Rehabilitation, Government of India, whereby late Prof.

Parman Singh was asked to deposit the arrears of ground

rent, etc. amounting to ` 608.12 upto 31.03.1958 -

Ex.PW1/6.

(vii) Letter dated 28.10.1960 from the Municipal Corporation

of Delhi to late Prof. Parman Singh granting sanction to

carry out constructions in House No.13, Block B situated

at Nizamuddin, New Delhi - Ex.PW1/7.

(viii) Receipts dated 03.07.1960 for ` 40/- and 10.04.1961 for

` 500/- to show construction and repairs done by Prof.

Parman Singh in the aforesaid premises - Ex.PW1/8

and Ex.PW1/9 respectively.

(ix) Bill No.202 dated 05.01.1963 for ` 234/- in the name of

Prof. Parman Singh from M/s. Hoora Steel Furnishers -

Ex.PW1/10.

(x) Labour rates stated to be procured by Prof. Parman

Singh from one Ishar Singh, a building contractor for

construction of B-13, Nizamuddin East - Ex.PW1/11.

As regards the purchase of the plot known as B-22, East of

Kailash, New Delhi and construction of a super-structure thereon

stated by the plaintiff to be HUF property, reliance was placed upon

the following documents:-

(i) Central Bank of India Pass Book Joint Account

No.12278 of Smt. Balwant Kaur and Shri Mahtab Singh

(defendant No.1) from 02.06.1984 to 03.06.1986.

(ii) Central Bank of India Pass Book Joint Account No.

12278 from 03.04.1986 to 22.03.1988 (Ex.PW1/12

Colly.).

(iii) Central Bank of India, Deposit Slips (41 in number)

relating to Joint Saving Account No. 12278 from

02.04.1986 to 15.04.1987 (Ex.PW1/13 Colly.).

32. The contention of the learned counsel for the plaintiff was that

the documents at Serial Nos.(i) to (x) taken cumulatively conclusively

show that Prof. Parman Singh had himself registered in the category

of displaced persons with the Ministry of Rehabilitation, had applied

on 10th February, 1950 for allotment of a house in the aforesaid

category, had been registered within the prescribed period, that is,

period intervening 10.02.1947 and 29.02.1948 and had paid a sum of

` 5,946/- for the allotment of the house.

33. Ms. Goel further relied upon document Ex.D2 dated

01.12/02.12.1959 produced by the defendant No.1. The said

document purports to be a Certificate of Payment of Compensation

issued by the office of the Regional Settlement Commissioner to Prof.

Parman Singh, resident of B-13, Nizamuddin East, New Delhi,

whereby, the total assessed value of his claim(s) or share was

taken to be ` 12,316.62 under Column 5 thereof. Clauses 6(f), 7

and 8(c) on which specific reliance has been placed read as under:-

Clause 6(f)

"6(f) Particulars of rehabilitation benefits received:- B-13, Nizamuddin, Delhi."

Clause 7

"7.Amount of net compensation paid - Already Rs.4,486/-."

Clause 8(c)

"8.Deductions made from gross compensation.

(a) .......................

(b) .......................

(c) Arrears of Rent Rs.288/- partly adjusted towards the arrears of ground rent."

34. Ms. Goel vehemently contended that Ex.D2, which has

emanated from the defendant No.1 himself, conclusively shows that

B-13, Nizamuddin East was not the self-acquired property of the

defendant No.1 and was given to him as rehabilitation benefit. She

further contended that by virtue of the provisions of Section 114 of

the Evidence Act, this Court ought to take judicial notice that

displaced persons/refugees from Pakistan brought with them assets,

such as moneys and jewelleries concealed and hidden on their

persons. No displaced person coming from Pakistan would disclose

the assets brought by him on his person for fear of being looted and

killed. Heavy looting and killing, she contended, was admitted even

by DW2 Mahtab Singh (the defendant No.1) in the course of his

cross-examination.

35. Ms. Goel contended that in such circumstances Prof. Parman

Singh and his wife had come from Rawalpindi with the money and

jewellery hidden on their person.

36. Next, Ms. Goel relied upon the following excerpts from the

evidence of PW1 G.P. Singh:-

"My grandmother till she was alive in 1992, she confided me that her husband's family had a large house in the village and a large business property, a shop with a godown and some landed property, all in the village. The family business of wholesale of household products. My grandmother always told me the truth and besides her telling me, there is no other sources, from which I knew of the said properties.

.....................The name of my great grandfather is Lala Bihari Mal. It is correct that the business that I have referred above was the business run by my great grandfather. The village in which the said properties were located was known as Mochh, District Mianwali, now in Pakistan.

.....................I am not aware what amount was realized from the sale of properties in the village Mochh.

.....................My grandparents came to India to Delhi in the year 1947. My grandparents came by air. They came with 20 Kgs. of valuable luggage, which was the permissible limit. My grandparents told me this fact. They came by a military aircraft."

37. Ms Goel contended that documents Ex.PW1/1 [Certificate

dated 09.05.1955 of payment of interim compensation], Ex.PW1/2

[letter of the Ministry dated 26.03.1950 to Prof. Parman Singh on his

application dated 10th February, 1950 for allotment of house in

colonies for displaced persons] and Ex.PW1/4 [letter dated

25.05.1950 showing allotment of a house to Prof. Parman Singh in

Nizamuddin Extension on the amount of ` 5,000/- already deposited

by him in the Treasury] demonstrate beyond an iota of doubt that

Prof. Parman Singh was allotted B-13, Nizamuddin East as

compensation upon his coming to Delhi as a refugee from West

Pakistan. She pointed out that the contention of the defendant No.1 in

his written statement that Prof. Parman Singh had come to India

penniless and for the property B-13, Nizamuddin he had paid from his

earnings, was wholly false. Prof. Parman Singh could not have paid

for the aforesaid property from his earnings which the defendant No.1

(DW2 Mahtab Singh) on oath stated to be ` 1,500/- per month in

1947 as lecturer in Delhi University. The pay-scale of a lecturer of

Delhi University in 1948 was ` 500 - 800/- per month and in 1961 it

was revised to ` 700 - 1,100/- per month. Thus, the statement made

by the defendant No.1 on oath that the income of Prof. Parman Singh

as a lecturer was ` 1500/- per month was false. To substantiate the

said contention, Ms. Goel referred to the following judgments:-

(i) J.S. Khanna and Ors. vs. University of Delhi and Ors.. ILR

1980 Delhi 1404.

(ii) Prof. C.D. Tase vs. University of Bombay and Ors., AIR 1989

SC 829.

(iii) Shital Prasad Tyagi vs. The Principal, Central Institution of

Education, Delhi and Others, ILR 1969 Delhi 1184.

38. Ms. Goel thus contended that the property B-13, Nizamuddin

was in fact purchased from the money and jewellery brought by Prof.

Parman Singh and his wife from Pakistan; and it was a rehabilitation

benefit for properties left in Pakistan. The father of Prof. Parman

Singh (Lala Behari Mal) died in 1935 leaving behind property in

Mochh valued by the defendants themselves at a few hundred rupees.

Prof. Parman Singh had shifted to Rawalpindi where he had built a

house in 1946. It is submitted that the money from the sale of the

ancestral house at Mochh and the compensation provided for the

property at Rawalpindi were used by Prof. Parman Singh for the

purchase of the property in Nizamuddin, and thus the Nizamuddin

property was not the self-acquired property of Prof. Parman Singh.

39. Referring to the evidence of the defendant No.1 (Mahtab

Singh), who appeared in the witness box as DW2, it was submitted by

Ms. Goel that the defendant No.1 had falsely claimed on oath that B-

13, Nizamuddin was the self-acquired property of Prof. Parman

Singh. She specifically referred to the admission made by DW2 in

his cross-examination that NOC from Hari Singh (the defendant

No.2) was submitted to L&DO for mutation of B-13; and the further

admission made by DW2 that he did not pay any amount to his father

for the purchase of the property bearing No.B-13 and that mutation of

the said property to his name was conditional. Ms. Goel contended

that the plea of the defendants that ` 4,486/- received as

compensation was spent by Prof. Parman Singh for clothes, etc. for

himself and for his wife was totally unbelievable. A person who did

not even have a roof over his head and who had valued his claim for `

12,316.62 could not be expected to spend ` 4,486/- for clothes, etc.

40. Ms. Goel contended that B-22, East of Kailash, New Delhi was

also HUF property as it had been derived from the rents of B-13,

Nizamuddin. The records of the joint account of the defendant No.1

with Mrs. Balwant Kaur, wife of Prof. Parman Singh (Ex.PW1/12 and

Ex.PW1/13) were sufficient to establish the same. The defendants in

any case, she contended, had been unable to prove that B-22, East of

Kailash was the self-acquired property of the defendant No.1 as

claimed by them.

DEFENDANTS' CONTENTIONS

41. Rebutting the aforesaid contentions of Ms. Goel, the learned

counsel for the defendants, Mr. P.R. Chopra contended that the

properties in question were not HUF properties as alleged by the

plaintiff. There was never any HUF of Prof. Parman Singh nor is

there any HUF of the defendant No.1, Mahtab Singh. The plaintiff

has no right in the said properties and his suit claiming partition was

liable to be dismissed with costs. The property at Nizamuddin was

the self-acquired property of Prof. Parman Singh, father of the

defendant No.1. He bequeathed the said property to his wife Smt.

Balwant Kaur vide Will dated 8th June, 1972, (Ex.DW2/1) and it was

mutated in her name on 27th June, 1981 vide mutation letter

(Ex.DW2/2). Smt. Balwant Kaur, in turn, bequeathed the said

property by Will dated 25.01.1986 (Ex.DW2/12) to the defendant

No.1 and the same now stands mutated in the name of the defendant

No.1 vide mutation letter dated 27.09.1991 in the record of the

L&DO (Ex.DW2/13). As regards the property at East of Kailash, the

plaintiff‟s contention that the same is HUF property is also wholly

false as is borne out from the fact that the defendant No.1 had paid the

full consideration for the said property to the DDA upon allotment of

the land to him and had raised money by way of loans from his office

and other agencies for the said purchase and to raise the super-

structure thereon. There was voluminous documentary evidence to

bear out that the defendant No.1 was all through in Government

service and retired as Joint Secretary; and it was from his income and

the loans raised by him that the East of Kailash property was acquired

by him. Documents Ex.DW2/3 to Ex.DW2/11 proved by the

defendant No.1 were sufficient to show that the said property was the

self-acquired property of the defendant No.1 and built out of his own

resources.

42. The learned counsel next contended that the onus to prove

Issue Nos.1, 2 and 3 was on the plaintiff, but the plaintiff had failed

to produce any documentary proof in support of the alleged HUF of

Prof. Parman Singh or even of his own father, Mahtab Singh (the

defendant No.1). In fact, the admitted documents Ex.P1 and Ex.P2,

letters dated 26th March, 1950 and 25th May, 1950 respectively from

the Ministry of Rehabilitation to Prof. Parman Singh, in relation to

the allotment of Nizamuddin property, state that he was eligible to

purchase the said property if (i) he was a displaced person from

Pakistan, (ii) he was gainfully employed, and, (iii) he was prepared to

pay the consideration for the property in lumpsum, i.e., ` 5,000/-,

proving thereby that the said property was not purchased out of

the claims or compensation.

43. He pointed out that in his cross-examination on 03.03.2006, the

plaintiff (PW1) admitted that Prof. Parman Singh was employed as a

Lecturer in the Camp College upon coming to Delhi and was later

appointed as a Special Magistrate. Thus, on his coming to India in

1947, he started earning immediately and the payment of the

Nizamuddin property was made out of his own savings/earnings.

Clearly, the said property was not paid out of compensation, as

alleged by the plaintiff. This is also evident from the fact that the

plaintiff has produced the original Compensation Card issued by the

Ministry of Rehabilitation (Ex.PW1/1) to Prof. Parman Singh at the

time of payment of interim compensation. The said card is dated

07.05.1955. This was so, because the Displaced Persons

(Compensation and Rehabilitation) Act was passed in 1954 and the

rules thereunder promulgated in 1955. Thus, quite clearly, the

Compensation Card (Ex.PW1/1) was issued five years after the

purchase of the Nizamuddin property. Thus, on the own showing of

the plaintiff, no compensation element could possibly have been

utilized for the purchase of the suit property five years earlier in

1950, when the said property was purchased and paid for.

44. Emphasizing that there was no question of any HUF and that

the plaintiff‟s contention that Prof. Parman Singh and his wife had

brought valuables/cash from Pakistan was wholly false, the learned

counsel submitted that it is borne out from the record that Prof.

Parman Singh and Smt. Balwant Kaur had come empty handed in a

military aircraft. It was so stated by DW1 Santokh Singh in his

affidavit in evidence and reiterated in his cross-examination. The

statements/admissions made by the plaintiff in his cross-examination,

which was conducted on several dates, i.e., on 07.02.2006,

03.03.2006, 21.04.2006, 14.03.2008, 08.07.2008, 01.08.2008 and

18.09.2008, were also relied upon. The following are the excerpts

relevant to the present case.

(A) On the aspect of HUF, PW1 in his cross-examination recorded

on 03.03.2006 stated:-

"I am not aware if any HUF was legally created by Prof. Parman Singh. Vol. But since the property allotted to him by the Ministry of Rehabilitation, Government of India, were paid for out of the funds received as compensation in lieu of property surrendered in Pakistan, HUF automatically stands created."

(B) On the aspect of income-tax returns of Prof. Parman Singh,

PW1 stated in his cross-examination recorded on 03.03.2006:-

"While in service, Prof. Parman Singh was an income-tax payee. I do not have the copy of his income-tax returns................. It is correct that defendant No.1 my father was already employed when Prof. Parman Singh came to India."

(C) On the aspect of utilization of compensation for the purchase of

B-13, Nizamuddin East and the Compensation Card issued to

Prof. Parman Singh dated 07.05.1955, PW1 in his cross-

examination recorded on 03.03.2006 admitted:-

"I cannot say whether this document (Ex.PW1/1) is related to the Nizamuddin property or not because it is not mentioned in the document."

(D) Admitting that Prof. Parman Singh and his wife were air lifted

from Rawalpindi to Delhi, PW1 in his cross-examination

recorded on 07.02.2006, stated:-

"My grandparents came to India to Delhi in the year 1947. My grandparents came by air."

(E) On the aspect of valuables brought from Pakistan by Prof.

Parman Singh, PW1 in his cross-examination on 3.03.2006 was

compelled to state as follows:-

"I am not aware as to what did my grandparents do with the valuables they brought from Pakistan. Vol. I was not born at that time. It is correct that I am not aware as to how much was realized from the sale of the valuables or as to how the said money was utilized."

(F) On being asked if he had raised any objection to the mutation

of the Nizamuddin property in the name of his grandmother,

late Smt. Balwant Kaur, in 1981, the plaintiff in his cross-

examination on 03.03.2006 said:-

"I did not raise any such objection and have not written to L&DO to make a claim of

ownership/share since this property was always HUF." (It is not in dispute that the plaintiff was 27/28 years old at that time and living with the family, i.e., his parents and brothers, now defendants.)

(G) As regards the earnings of his grandfather, the plaintiff was

compelled to admit in his cross-examination on 03.03.2006:-

"My grandfather already had a job when he arrived in Delhi. He was a Lecturer with Camp College, a constituent of Punjab University. He was appointed as a Special Magistrate, being a Lecturer of Camp College. I cannot tell whether my grandfather was performing the duty of Special Magistrate simultaneously alongwith his lecturership in Camp College. I am not aware of the UGC pay scales at that time. I am not aware as to what was the income of my grandfather at that time.....................It is correct that defendant No.1 my father was already employed when Prof. Parman Singh came to India."

45. In relation to property at B-22, East of Kailash, the learned

counsel argued that the falsity of the allegation of the plaintiff that the

land was purchased and construction made out of the HUF rents and

other moneys, etc. was evident from a bare look at the documents on

record. The defendant No.1 Mahtab Singh and the defendant No.5

Smt. Raminder Kaur (wife of the defendant No.1) had placed ample

documentary evidence on record to prove that no part of the said

property, land or construction, was contributed by Prof. Parman

Singh. The said house was constructed in the year 1970 by the

defendant No.1, Mahtab Singh. In the course of his cross-

examination, the plaintiff admitted that Prof. Parman Singh had

retired in 1959 from the Delhi University and was not doing anything

after his retirement. The plaintiff himself stated in his affidavit in

evidence that Prof. Parman Singh was a cancer patient. He also

admitted that the defendant No.1, his father, was already employed

when Prof. Parman Singh came to India. Further, in his cross-

examination, the plaintiff admitted:-

"So far as defendant No.1 is concerned, it is correct that there was no need or any reason for Prof. Parman Singh to pay any sum to him."

46. Apart from the above, Mr. Chopra has drawn my attention to

the following excerpts from the cross-examination of the plaintiff

recorded on 21.04.2006, which, according to him, prove beyond any

shadow of doubt that the property purchased and constructed at East

of Kailash by the defendant No.1 is his self-acquired property:-

(a) "There is no document on record to substantiate my statement that Prof. Parman Singh contributed towards purchase of land at East of Kailash."

(b) "It is correct that my grand-father Prof. Parman Singh did not have any joint account with defendant No.1."

(c) "It is correct that the joint account referred by me in the last Vol. statement pertains to the account which was opened in year 1984."

47. The learned counsel pointed out that the said joint account

relied upon by the plaintiff came into existence after about 14 years of

the construction of the property at East of Kailash, and the said

account was in fact joint between the defendant No.1, Mahtab Singh

and Smt. Balwant Kaur; and was opened 9 years after the death of

Prof. Parman Singh.

48. Mr. Chopra next pointed out that the plaintiff had admitted in

Ex.D4, which was an affidavit filed by him in Matrimonial Petition

No.269/1987 titled "Mrs. Indra K. Singh vs. Gajinder Pal Singh" that

he had no rights in either the Nizamuddin property or the property at

East of Kailash. Apart from this, the plaintiff had sworn an affidavit

to the DDA that he owned no immovable properties in Delhi, a

condition precedent for entitlement to the allotment of a flat under the

LIG Scheme of 1979, floated by the DDA at the relevant time.

Reference in this context was made by him to the testimony of DW6

Shri Akbar Ali, who was summoned with the record from the DDA to

prove the certified copy of the registration of the flat in the name of

the plaintiff at Entry No.48624 on Page 57 (Ex.DW6/A); and the

affidavit of the plaintiff that he owned no property in Delhi submitted

by the plaintiff to the DDA with his covering letter dated 19.05.1989

(Ex.DW6/B). He also proved on record Ex.DW6/C, the possession

letter of the DDA flat in favour of the plaintiff. The learned counsel

urged that the Delhi Development Authority (Management and

Disposal of Housing Estates) Regulations, 1968 and, in particular,

Regulation No.7 thereof provides for the allotment of a dwelling unit

only to such persons who do not own in full or in part any residential

plot or house in the urban area of Delhi/New Delhi. For the sake of

facility and ready reference, the said Regulation is reproduced

hereunder:-

Regulation No.7 of the Delhi Development Authority (Management and Disposal of Housing Estates) Regulations, 1968

"7. A dwelling unit or flat in the Housing Estates of the Authority shall be allotted only to such person who or his wife/her husband or any of his/her dependents relations including unmarried children does not own in full or in part on free hold or lease hold basis a

residential plot or house in the urban area of Delhi, New Delhi and Delhi Cantonment."

49. Mr. Chopra contended that the defendant No.1 who appeared in

the witness box as DW2 to tender in evidence his affidavit in

evidence dated 17.12.2008 as Ex.DW2/A and to prove documents

Ex.DW2/1 to DW2/14 had withstood the test of extensive cross-

examination conducted, as stated earlier, by the plaintiff himself on

several dates of hearing, i.e., on 02.04.2009, 25.04.2009, 25.07.2009

and 24.10.2009. On 07.11.2009, the opportunity to further cross-

examine DW2 was closed. He proved on record the following

relevant documents to show that the Nizamuddin property was not

HUF property and it now stands mutated in his name, i.e., in the name

of the defendant No.1:-

(1) Ex.DW2/1 - Will dated 08.06.1972 of Prof. Parman Singh in

favour of Smt. Balwant Kaur,

(2) DW2/2 - L&DO‟s letter dated 27.06.1981 mutating the

Nizamuddin property in the name of Smt. Balwant Kaur,

(3) Ex.DW2/12 - Will dated 25.01.1986 of Smt. Balwant Kaur in

favour of defendant No.1, and

(4) Ex.DW2/13 - L&DO‟s letter dated 27.09.1991 mutating the

Nizamuddin property in favour of the defendant No.1.

50. DW1 Mahtab Singh also proved on record documents

Ex.DW2/3 to DW2/11, to show that the property at B-22, East of

Kailash was his self-acquired property and built out of his own

resources, the particulars whereof are as follows:-

(i) Ex.DW2/3 is the Certificate dated 13th February, 1970

issued by Shri G.L. Goswami, Advocate, Government Pleader

to certify that the East of Kailash property is the absolute

property of Shri Mahtab Singh, son of Prof. Parman Singh

and of Mrs. Raminder Mahtab Singh, wife of Shri Mahtab

Singh and is not joint family property.

(ii) Ex.DW2/4 is the abstract of cost for the building at B-22, East

of Kailash certified by Shri G.G. Bhatia, Gazetted Valuer for `

70,620/- issued to Shri Mahtab Singh (the defendant No.1) and

Mrs. Raminder Mahtab Singh (the defendant No.5).

(iii) Ex.DW2/5 is the Government of India letter

No.3(107)/65/10470/D(Est-2) dated 17.12.1965 for grant of

non-refundable advance of ` 7,000/- to Mahtab Singh,

Under Secretary, Ministry of Defence (the defendant No.1)

from his GPF Account for the purchase of a residential plot.

(iv) Ex.DW2/6 is letter No.2381/70/D(Est-2)/G dated 13.03.1970

communicating the sanction of non-refundable advance to

Shri Mahtab Singh from his GPF Account for ` 9,300/- and

certifying therein that he had withdrawn ` 7,000/- for the

purchase of the plot and proposed to apply for a loan of `

35,000/- under the House Building Advance Scheme.

(v) Ex.DW2/7 is letter No.3(37)/70/D(Est.2) dated 25.04.1970

from the Ministry of Defence, Government of India to the

Accountant General, Central Revenue, New Delhi conveying

sanction of loan of ` 35,000/- to Shri Mahtab Singh.

(vi) Ex.DW2/8 is the Certificate dated 05.07.1971 issued by

Assistant Director, Postal Services, Delhi Circle, New Delhi

regarding sanction of ` 5,273/- to Shri Mahtab Singh as the

surrender value of his PLI Policy No.41113-C.

(vii) Ex.DW2/9 is the attested letter dated 02.06.1970 from Life

Insurance Corporation of India to Shri M. Singh sending

therewith cheque bearing No. 169433 for ` 3,286.41 as loan

against the policy.

(viii) Ex.DW2/10 is the Certificate dated 22.06.1971 from the

Secretary, The Sikh Co-operative Thrift & Credit Society Ltd.

regarding loans advanced to Shri Mahtab Singh.

(ix) Ex.DW2/11 is the original memo dated 05.06.1970 from Shri

Mahtab Singh with remarks thereon of the officials of Ministry

of Defence that Government's permission for raising loan of

` 3,000/- from Sardar Tarlok Singh by Shri Mahtab Singh

was not necessary.

51. In the above context, the learned counsel pointed out that

though DW5 Shri Brahm Pal, Assistant, Ministry of Defence was

summoned to prove the letters relating to money raised as loans and

advances from his office by the defendant No.1, Shri Mahtab Singh

for the construction of the East of Kailash property, DW5 submitted

his letter of authorization DW5/A and informed that such old record

stood destroyed.

52. The learned counsel submitted that in view of the aforesaid, it

stood clearly established on record that the suit properties were not

HUF properties and that the plaintiff had filed a false suit. There was

not an iota of evidence on record to the contrary. The suit, therefore,

deserved to be dismissed forthwith as the very basis on which the suit

had been predicated, namely, that the suit properties were HUF

properties had not been proved by the plaintiff. Reliance was placed

by him upon the following decisions:-

(i) Pratap vs. Shiv Shanker, 2009 (113) DRF 811 - The case of

the appellant, as set out in the plaint, was that the suit property

was an ancestral property, which the respondent had got in

partition amongst his other brothers and that the appellant,

being the son of the respondent, was the coparcener in the suit

property and thus entitled to a decree of partition to the extent

of half share therein. It was held by the High Court that the

trial court had not erred in arriving at a conclusion that upon

the demise of his father, grandfather of the appellant, the suit

property devolved on the respondent in his individual capacity

and thus, had to be treated as self-acquired property in his

hands. The appellant had failed to establish that there existed

any coparcenary, in which the appellant and the respondents

were coparceners or there existed any HUF of which the

respondent was a Karta. The appeal was accordingly

dismissed.

(ii) Commissioner of Wealth-tax, Kanpur, etc. etc. vs. Chander

Sen etc., AIR 1986 SC 1753 - In this case, there was a partition

of joint family business between a father and his only son.

Thereafter, they continued the business in the name of a

partnership firm. The son formed a joint family with his own

sons. The father died and the amount standing to the credit of

the deceased father in the account of the firm devolved on his

son. It was held by the Supreme Court that the son had

inherited the property as an individual and not as Karta of his

own family. Hence, it could not be included in computing the

assessee‟s wealth. [1983 Tax LR 1370 (Andhra Pradesh), AIR

1979 Madras 1 (Full Bench) and 1983 Tax LR 559 (Madhya

Pradesh), Approved.]

(iii) Rahul Behl and Others vs. Smt. Ichayan Behl and Anr., DRJ

1991 (21) 205 - In this case, the plaintiff Rahul Behl and

Others filed a suit for declaration against Smt. Ichayan Behl

and Dr. Surender Nath Behl on the ground that House No.R-20,

Greater Kailash Part I, New Delhi was the self-acquired

property of Dr. Brij Nath Behl, father of the defendant No.2

and the grandfather of the plaintiffs and the plaintiffs had 1/6 th

share in the same. A learned Single Judge of the Delhi High

Court held that the express language of Section 8 of the Hindu

Succession Act, 1956 excludes sons of son though includes

sons of a pre-deceased son. Applying the provisions of the said

Section to the facts of the case, it was clear that on the date of

the death of the father, the property in question devolved on the

son, not as Karta but in his individual capacity, and the

plaintiffs being the sons of the son cannot claim any right as

coparceners nor the property fell into the pool of the Hindu

Undivided Family. It was further observed that when a

property devolves upon a Hindu under Section 8 of the Hindu

Succession Act, 1956 it would not be HUF property in his own

hands vis-à-vis his own sons.

FINDINGS

53. The Court after having heard the respective contentions of the

parties and scrutinized the oral and documentary evidence on record,

all of which is more than 30 years old, is constrained to hold that the

plaintiff has miserably failed to prove the existence of any HUF and

there being no HUF, the question of the suit property being HUF

property does not arise as alleged or at all. The defendant has

admitted the following documents:-

(i) Ex.P1 (also Ex.PW1/2) dated 26.03.1950 from the Ministry of

Rehabilitation to Prof. Parman Singh.

(ii) Ex.P2 (also Ex.PW1/4) dated 25.05.1950 from the Ministry of

Rehabilitation to Prof. Parman Singh.

(iii) Ex.P3 (also Ex.PW1/5) dated 17.10.1953 from the Ministry of

Rehabilitation to Prof. Parman Singh.

54. Admitted documents Ex.P1 and P2, letters dated 26th March,

1950 and 25th May, 1950 respectively from the Ministry of

Rehabilitation to Prof. Parman Singh, in relation to the allotment of

Nizamuddin property, state that he was eligible to purchase the said

property if (i) he was a displaced person from Pakistan, (ii) he was

gainfully employed, and, (iii) he was prepared to pay the

consideration of ` 5,000/- in lump-sum for the suit property. The

aforesaid documents thus clearly show that the said property was

purchased by Prof. Parman Singh from his own resources and not out

of the claims or compensation. The Court is fortified in coming to the

aforesaid conclusion from the fact that the plaintiff, in his cross-

examination, has categorically admitted that Prof. Parman Singh was

gainfully employed as soon as he came to India from West Pakistan

in the year 1947 as a Lecturer in the Camp College and was

subsequently appointed as a Special Magistrate. Clearly, therefore,

the said property was purchased by Prof. Parman Singh from his own

funds. Even otherwise, the plaintiff has failed to establish the

existence of any HUF of which Prof. Parman Singh was the Karta,

and in the course of his cross-examination candidly admitted that he

was not aware whether any HUF had been legally created by Prof.

Parman Singh. The plaintiff was also compelled to admit that he did

not have copies of the income-tax returns of Prof. Parman Singh, who

was an income-tax payee, to substantiate his contention that Prof.

Parman Singh was the Karta of an HUF which had purchased the

property in question.

55. The plaintiff also proved on record the original Compensation

Card issued by the Ministry of Rehabilitation (Ex.PW1/1) to Prof.

Parman Singh, which is dated 07.05.1955, and was apparently issued

5 years after the purchase of the property at Nizamuddin East, which

admittedly was purchased in the year 1950. Thus, on the own

showing of the plaintiff, no compensation element could possibly

have been utilized for the purchase of the property five years in

advance of the receipt of the compensation, in 1950, when the said

property was purchased and paid for. Even assuming the same was

acquired with the funds generated from the claims of Prof. Parman

Singh, the property would have nevertheless remained the self-

acquired property of the father of the defendant No.1, namely, Prof.

Parman Singh [See Chander Sen (Supra)].

56. The whole story concocted by the plaintiff that Prof. Parman

Singh and his wife had brought valuables and jewellery with them

and were carrying 20 kgs. of luggage is also not borne out from the

record. The plaintiff himself in his cross-examination was compelled

to admit that he was not born at that time nor he was aware as to what

his grandparents had done with the valuables they had brought from

Pakistan nor he was aware as to how much was realized from the sale

of the said valuables nor as to how the said money was utilized. In

direct contrast, DW2 Mahtab Singh categorically stated in the witness

box that Prof. Parman Singh and his wife were air lifted from

Rawalpindi to Delhi in a military plane with 60 other passengers and

had come empty handed. DW1 Santokh Singh, a close relative of the

plaintiff and the defendants, corroborated this fact by deposing that he

was personally present when Prof. Parman Singh and his wife arrived

at the Safdarjung Airport in the year 1947 empty handed. It may be

noted that the testimony of this witness withstood the test of cross-

examination and nothing emerged therefrom to discredit the witness

in any manner.

57. There is also on record the registered Will and testament of

Prof. Parman Singh dated 08.06.1972 (Ex.DW2/1) in favour of his

wife Smt. Balwant Kaur bequeathing to her House No.13, Block B,

Nizamuddin East and the resultant mutation of the property in her

favour by L&DO‟s letter dated 27.06.1981 (Ex.DW2/2). There is

also on record the Will of Smt. Balwant Kaur in favour of the

defendant No.1, Mahtab Singh (Ex DW2/12) and the resultant

mutation of the property in favour of Mahtab Singh by L&DO‟s letter

dated 27.09.1991 (Ex.DW2/13). Then there is the testimony of DW4

Shri Ram Prakash Bhatia, which establishes that the Will of Prof.

Parman Singh was read out to the family members, including the

plaintiff and the other defendants on 20th September, 1975, four days

after Prof. Parman Singh had passed away. The witness was

extensively cross-examined by the plaintiff, but nothing could be

elicited from him in his cross-examination to discredit his aforesaid

statement on oath. The plaintiff himself admitted in his cross-

examination that he had not raised any objection to the aforesaid

mutations of the Nizamuddin property in favour of Smt. Balwant

Kaur and, subsequently in favour of the defendant No.1, and had not

written to the L&DO to make a claim of ownership/share in the said

property.

58. There are also on record the affidavits filed by the plaintiff in

Matrimonial Petition No.269/1987 stating that the deponent did not

own any immovable property in Delhi or anywhere else in India.

There is also on record the testimony of DW6 Akbar Ali from the

office of the Delhi Development Authority, who has placed on record

the affidavit of the plaintiff with the supporting documents

(Ex.DW6/A to Ex.DW6/C) to show that the plaintiff had sworn an

affidavit before the DDA that he owned no property in Delhi, a

condition precedent for entitlement of a flat in respect of the LIG

Scheme of 1979 floated by the Delhi Development Authority.

59. As regards the property at East of Kailash, there is ample

documentary evidence on record to conclusively establish that the

said property was the self-acquired property of the defendant No.1,

Mahtab Singh. As noted above, documents Ex.DW2/3 to DW2/11,

proved on record by DW2, the defendant No.1, sufficiently establish

that the plot for the aforesaid property was purchased by the

defendant No.1 and the building thereon constructed by the defendant

No.1 from the loans and advances generated by the office of the

defendant No.1, i.e., the Ministry of Defence, from time to time.

There is also on record the Certificate of the Government of India to

show that the said property was the self-acquired property of the

defendant No.1 and his wife, the defendant No.5. The plaintiff has

been wholly unable to challenge the aforesaid documentary evidence

on record. The oral evidence too is tilted in favour of the defendants,

in that according to the plaintiff‟s own admissions in his affidavit by

way of evidence and cross-examination, no funds were given by Prof.

Parman Singh to the defendant No.1 for the construction of House

No.B-22, East of Kailash. Prof. Parman Singh, according to the

plaintiff, had retired in 1959 from the Delhi University, whereas the

property in question was acquired and built in the year 1970. Prof.

Parman Singh was a cancer patient and the plaintiff in his cross-

examination admitted that there was no need or reason for Prof.

Parman Singh to pay any sum to the defendant No.1. He also

admitted that Prof. Parman Singh did not have any joint account with

the defendant No.1. To be noted at this juncture that the joint account

relied upon by the plaintiff was a joint account of Smt. Balwant Kaur

and the defendant No.1, which admittedly was opened in the year

1984, i.e., 14 years after the construction of the property at East of

Kailash and, therefore, has no bearing on the matter in issue.

60. In view of the aforesaid overwhelming evidence on record, oral

and documentary, the inevitable conclusion is that it must be held that

neither Prof. Parman Singh nor the defendant No.1 Mahtab Singh had

created any HUF and the properties acquired by them respectively

cannot, therefore, partake of the nature of HUF properties.

61. The Hon‟ble Supreme Court in the case of Yudhishter vs.

Ashok Kumar, AIR 1987 SC 558 has laid down that after the

amendment of the Hindu Succession Act, 1956 and in view of Section

8 of the said Act, when the son of a male Hindu inherits the property

in the situation contemplated by Section 8, he does not take the said

property as Karta of his own HUF assuming that the same exists, but

takes it in his individual capacity. Thus, when a property devolves on

a Hindu under Section 8 of the Hindu Succession Act, 1956, it would

not be HUF property in his hands vis-à-vis his own sons, but would

partake the character of self-acquired property of his predecessor-in-

interest.

62. It is also well established that though under the old Hindu Law,

the son would have inherited the property of his father as Karta of his

own family, the Hindu Succession Act has modified the aforesaid rule

of succession. In the case of Chander Sen (supra), the Hon‟ble

Supreme Court has dwelt on this aspect of succession at some length,

observing that the Act lays down the general rules of succession in

the case of males which must prevail over the old Hindu Law of

Succession. The first rule is that the property of a male Hindu dying

intestate shall devolve according to the provisions of Chapter II and

Class I of the Schedule provides that if there is a male heir of Class I

then upon the heirs mentioned in Class I of the Schedule. The

Schedule indicates that the heirs in Class I only includes son/s and

does not include son‟s son, but does include son of a pre-deceased

son. It is thus not possible to say that when the son inherits the

property in the situation contemplated by Section 8, he takes it as a

Karta of his own undivided family. As observed by the Supreme

Court, if a contrary view is taken, it would mean that though the son

of a pre-deceased son and not the son of a son who is intended to be

excluded under Section 8 to inherit, the latter would by applying the

old Hindu Law get a right by birth in the said property contrary to the

scheme outlined in Section 8. The express words of Section 8 as held

in Chander Sen's case (supra) cannot be ignored and must prevail.

Thus, the defendant No.1 in the instant case must be held to have

inherited the property of Prof. Parman Singh as an individual and not

as a Karta of his own family, even assuming there was an HUF

created by the defendant No.1, though in the instant case it stands

established that no HUF was created by the defendant No.1.

63. Accordingly, it must be held that the plaintiff has failed to

establish that either of the two properties mentioned hereinabove were

HUF properties. Issue No.1 is accordingly decided against the

plaintiff.

"2. Whether the plaintiff is entitled to any share in the property and if so to what extent?

3. Whether the plaintiff is entitled for rendition of accounts claimed by him?"

65. In view of my findings on Issue No.1 that the suit properties

are not HUF properties, it must be held that the plaintiff is not entitled

to any share in the said properties. The plaintiff is also not entitled to

rendition of accounts of rent as claimed by him.

66. Issue Nos.2 and 3 are accordingly decided against the plaintiff.

ISSUE NO.4

"Whether suit is barred by time?"

67. The onus of proving this issue is upon the defendants, but in

view of my findings on Issue Nos.1, 2 and 3, Issue No.4 does not

survive for consideration.

68. It may, however, be noted that only the defendant Nos.1 and 2

could have contested the Will dated 8th June, 1972 (Ex.DW2/1) of

Prof. Parman Singh being his only legal heirs, other than his wife

Smt. Balwant Kaur. The cause of action to challenge the said Will

arose on 17.09.1975, i.e., the date of death of Prof. Parman Singh and

at any rate on 20th September, 1975 when the said Will was read out

in the presence of all concerned. There was no contest to the Will of

Prof. Parman Singh and the said property was accordingly mutated in

the name of Smt. Balwant Kaur. The limitation to contest the said

Will expired on 16.09.1987, i.e., at the end of 12 years from

17.09.1975. Thus, the present suit filed by the plaintiff/grandson in

the year 1993 is clearly barred by limitation and liable to be dismissed

on this short ground.

69. It also deserves to be noted that while the suit in respect of the

property at Nizamuddin is barred by time for the reasons stated

hereinabove, the cause of action for the filing of the suit in respect of

the property at East of Kailash has not yet arisen, the said property

being the self-acquired property of the defendant No.1, who is still

alive. It is settled law that a son or daughter can ask for partition of

HUF property from the father during his lifetime, but not of self

acquired property.

CONCLUSION

70. In view of the findings rendered on Issue Nos.1 to 4, it is held

that the plaintiff is not entitled to the partition of the suit properties

and to the rendition of accounts in respect thereof. The suit fails and

is accordingly dismissed. The defendants having contested the case

from the year 1993 onwards are held entitled to costs throughout.

71. CS(OS) No.374/1993 stands disposed of accordingly. All

interim orders stand vacated.

REVA KHETRAPAL (JUDGE) July 09, 2012 km