Yash Pal Saini vs Pushpa Saini And Ors.
2013 Latest Caselaw 1830 Del

$~R-4/R-5

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     RFA No. 187/2011 and CM Appl. No. 6326/2011 (stay)

                                       Judgment reserved on 11th April, 2013

                                      Judgment delivered on 23rd April, 2013

      YASH PAL SAINI                                     ..... Appellant
                    Through            : Mr. Y.D. Nagar, Adv.

                   Versus

      PUSHPA SAINI AND ORS.                             ..... Respondents

                            Through    :Mr. Sanjeev Sindhwani, Sr. Adv.
                                       With Mr. Ananya Mehta, Advs. for
                                       R-1
                            AND

      RFA No. 149/2011

      B.R. SAINI                                          ..... Appellant

                            Through    : Mr. Y.D. Nagar, Adv.

               Versus
      PUSHPA SAINI AND ORS.                             ..... Respondents

                            Through    :Mr. Sanjeev Sindhwani, Sr. Adv.
                                       with Mr. Ananya Mehta, Advs. for R-

CORAM:
Hon'ble Mr. Justice A. K. Pathak

1. Both the above appeals are in similar facts, inasmuch as, arise from

same judgment and decree passed by the trial court and are being disposed

of together.

2. Trial court has passed a decree of possession in favour of plaintiff

(respondent no.1) and against the defendant nos. 1 and 2 (appellants) in

respect of portions in their possession as shown in the site plan Ex PW1/1

besides restraining them from alienating and creating any third party interest

or parting with possession of the property bearing House no. 2979/XI,

Kuncha Neel Kanth, Darya Ganj, New Delhi (for short hereinafter referred

to as "suit property"). A decree of mesne profits/damages has also been

passed; whereby appellants have been directed to pay 4,000/- (Rupees Four

Thousand Only) each with effect from 1st May, 2006 till the possession of

suit property is handed over to respondent no.1.

3. Plaintiff filed a suit for possession mesne profits and permanent

injunction against defendant no. 1 (husband) and defendant no. 2 (son). She

also impleaded her other two children as defendant nos. 3 and 4 but no relief

was claimed against them. During pendency of the appeal, defendant no. 1

passed away and his legal representatives have been brought on record, vide

order dated 7th March, 2012. Plaintiff alleged in the plaint that she was 74

years old woman; she was owner of suit property consisting of ground floor,

first floor and barsati floor. Suit property was purchased by her mother,

namely, Smt. Mangli Devi, vide a registered Sale Deed dated 17th January,

1958. Smt. Mangli Devi died on 27th December, 1967. Her father Master

Basma Ram passed away on 4th January, 1968. Upon death of her parents,

plaintiff became sole and absolute owner of the suit property, which was

duly mutated in her name in the records of Municipal Corporation of Delhi

(MCD). Defendants were living in the suit property with the plaintiff in

different portions. Rooms in possession of the plaintiff at the ground floor

were shown in blue colour in the site plan; rooms in occupation of defendant

no. 1 were shown in orange colour; similarly rooms in possession of

defendant no. 2 and his family were shown in green colour; rooms in

possession of defendant nos. 3 and 4 were shown in yellow colour. With the

passage of time, relations between the plaintiff and defendant nos. 1 and 2

became estranged. Relations between defendant nos. 1 and 2 on one side

and defendant nos. 3 and 4 on the other also became estranged, as a result

whereof defendant no. 4 was forced to leave the suit property. While

leaving, defendant no. 4 handed over possession of rooms which he was

occupying to the plaintiff. However, defendant no. 1 forcibly took

possession of the said rooms in the absence of plaintiff. With the passage of

time, relations between the plaintiff and defendant nos. 1 and 2 further

deteriorated. Therefore, on 31st January, 2006 plaintiff asked the defendant

nos. 1 and 2 to vacate the suit property within three months but to no effect.

Defendant no. 2 was owner of a DDA flat bearing no. D-15/30, Sector 7,

Rohini, Delhi, which he had let out on a monthly rent of 5,000/- (Rupees

Five Thousand Only) to someone else. Since suit property was not vacated

by the defendant nos. 1 and 2, hence the suit.

4. Defendant nos. 1 and 2 filed separate written statements. In the

written statements defendants have taken similar pleas. Defendant no. 1

claimed his independent right in the suit property being husband of plaintiff.

It was alleged that suit was filed at the behest of defendant nos. 3 and 4 to

disrupt the joint family and to harass the defendant no. 1, who was a Senior

Citizen. It was a collusive suit. It was not disputed that the suit property was

purchased by Smt. Mangli Devi, mother of plaintiff in the year 1958. It was

alleged that suit property was purchased by Smt. Mangli Devi for 10,000/-

(Rupees Ten Thousand Only) a sum of 1,000/- (Rupees One Thousand

Only) was spent on stamp duty etc. Smt. Mangli Devi paid 7,000/-

(Rupees Seven Thousand Only) by selling her agricultural land situated in

Haryana. The property was mortgaged with one Late Shri Marey Singh

against a sum of 4,000/- (Rupees Four Thousand Only). Subsequently,

mortgage was got redeemed by the defendant no. 1 by paying money from

his personal resources. In the year 1958 suit property was a dilapidated tin

shed. It is the defendant no. 1 who made the property inhabitable by

spending huge amounts in the year 1958 itself. Even thereafter defendant

no. 1 constructed pacca rooms in the year 1964-65 by spending money from

his pocket. After few years, defendant no. 2 joined as a Clerk with State

Bank of India and renovated the suit property by spending huge sums. In

nutshell, their plea is that the construction was raised by the defendant no. 1,

inasmuch as, certain portions were later renovated by the defendant no. 2,

thus, by virtue of expenditure incurred by them they had acquired

independent rights in the suit property. It was alleged that defendant no. 1

was a lawyer and financially well off and had resources to raise construction

from time to time. It was not denied that suit property was mutated in the

name of plaintiff after the death of her parents. It was further alleged that

defendant nos. 1 and 2 were occupying the suit property in their own rights

being members of joint Hindu undivided family. Shortly after marriage of

defendant no. 2 in the year 1982, on account of some misunderstandings,

defendant no. 2 and his wife were asked to leave the suit property,

accordingly, they shifted to Dev Nagar, Karol Bagh, New Delhi. In the

month of December, 1986 a family arrangement/ settlement was arrived at

the instance of plaintiff and defendant no. 1, pursuant whereof defendant no.

2 along with his wife and his new born son shifted back to the suit property.

It was settled that defendant no. 2 and his family would continue to live in

the suit property as members of the joint family forever. It may be noted

that initially plea of family settlement was not taken in the written

statements. It is by way of amendment, which was permitted vide order

dated 21st August, 2007, the plea of family settlement was added in the

written statement(s). It was not disputed that defendant no. 1 owned a DDA

flat in Rohini. It was prayed that suit be dismissed.

5. Plaintiff filed replication (s) whereby allegations as contained in the

written statement (s) were denied and averments made in the plaint were

reiterated.

6. On the pleadings of parties trial court framed following issues:-

(1) Whether there was family settlement between the parties, if so, to what effect? OPD 1 & 2 (2) Whether defendant no. 1 had spent his personal fund for the construction and improvement of property in dispute, if so to what extent? OPD 1 (3) Whether the plaintiff is entitled for decree of possession as prayed for? OPP (4) Whether plaintiff entitled for the decree of

mesne profits, if yes, at what rate and for what period? OPP (5) Whether plaintiff is entitled for the decree of permanent injunction? OPP (6) Relief.

7. Plaintiff examined herself as PW1. She also examined her son

Rakesh Kumar Saini (defendant no. 4) as PW2. As against this, defendant

no. 1 examined himself as DW1. Defendant no. 2 stepped in the witness box

as DW2. Trial court scrutinized the entire material on record and held that

no family arrangement/settlement could be established by the defendants.

Defendants had failed to prove that they had raised constructions and made

improvements in the suit property from time to time by spending their

personal funds as was alleged in the written statement(s). Though defendants

had alleged that they had spent lacs of rupees in construction but had failed

to produce any documentary evidence to substantiate this plea, inasmuch as

it had come on record in the cross-examination of defendant no. 1 that he

had taken up a job in 1950 as a Clerk with the Ministry of Labour, Govt. Of

India but resigned from the said job in 1952 and started his own business as

an independent contractor. Later he started practicing as an Advocate. He

admitted that he did not file any income tax returns between 1952 - 1958,

though he claimed that he filed tax returns in the year 1960 onwards.

However, he could not produce any document in this regard. He also failed

to produce any document to show that mortgage money of 4,000/- (Rupees

Four Thousand Only) was paid by him from his personal fund. He even

failed to produce and prove any document on record to substantiate his plea

that construction was raised by him by spending huge amounts. Defendant

no. 2 also failed to produce any document to show that he spent any amount

for making improvements in the suit property. Defendants had admitted that

original owner was Smt. Mangli Devi and upon her death plaintiff became

the sole and absolute owner of suit property being only legal heir of Smt.

Mangli Devi, inasmuch as, her name was mutated in MCD records and the

house tax receipts were also in her name. No evidence could be led by the

defendants to show that the property was a joint family property. Merely

because all the family members were living in the property by itself was not

sufficient to convert the status of the property to a joint family property.

Defendant nos. 1 and 2 were living in property with the permission of

plaintiff as licencees without any payment of licence fee and after revocation

of licence by the plaintiff, they had no right to remain in the suit property. It

was further held that they were liable to pay mesne profits for their

continued stay after termination of licence.

8. I have heard learned counsel/ Senior Counsel for the parties,

considered written submissions and have perused the trial court records and

do not find any illegality or perversity in the impugned judgment and decree,

which in my view is in consonance with the evidence adduced by the

parties. It is not in dispute that suit property was purchased by Smt. Mangli

Devi vide a registered sale deed and after the death of her parents plaintiff

acquired ownership rights, inasmuch as, property was mutated in the MCD

records in the name of plaintiff without any objections from any quarters.

The plea taken by the contesting defendants primarily is that property was

mortgaged by Smt. Mangli Devi with Late Shri Marey Singh against a loan

of 4,000/- (Rupees Four Thousand Only) and it is the defendant no. 1 who

got the mortgage redeemed by making payment. However, no cogent

evidence has been led by either of the defendants to prove that 4,000/-

(Rupees Four Thousand Only) was paid by the defendant no. 1, inasmuch as

there is no evidence that suit property was mortgaged by the plaintiff. That

apart, this plea would not be sufficient to hold that defendant no. 1, by

getting the mortgage redeemed, acquired any ownership rights in the suit

property. The plea of defendants is that the suit property at the time of its

purchase was in a dilapidated condition and was only a tin shed.

Subsequently, entire suit property was constructed by defendant no. 1 by

investing his personal funds, inasmuch as, defendant no. 2 had also spent

huge amounts on renovation, thus, had acquired independent ownership

rights in the suit property. However, contesting defendants have miserably

failed to prove this plea which has remained unsubstantiated by

documentary evidence. Defendant no. 1 has failed to produce documents to

show that he was earning well and was having sufficient funds to raise

construction. He has failed to show that he was an income tax payee as he

failed to produce income tax returns. Though he claimed that he was an

income tax assesee in the year 1960 and thereafter, but in his cross -

examination he stated that he cannot produce income tax returns.

Defendants have also not produced any documents on record to support their

version that the construction was raised by them in the suit property. No

receipts regarding purchase of construction material could be produced and

proved. In absence of the documentary evidence in this regard this plea has

remained unsubstantiated. Accordingly, trial court has rightly concluded

that defendants had failed to prove that they had spent any money on raising

the construction, which otherwise, in my view, would not give any joint

ownership rights to them in the suit property. Defendants have also not

adduced any evidence to show that the suit property was a joint family

property.

9. In Sandeep Chandra vs. R.S. Chandra, 2010 (116) DRJ 327, a

Division Bench of this Court has held that there is no presumption of

property being a joint Hindu property on account of existence of a joint

Hindu family. One who asserts that it is so has to prove that the property is

a joint family property.

10. In Srinivas vs. Narayan, AIR 1954 SC 379, Supreme Court held as

under:-

i) Proof of existence of joint family does not lead to a presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish that fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question have been acquired, the burden shifts to the party alleging self- acquisition to establish that property was acquired without the aid of joint family funds.

ii) The mere proof of existence of joint family nucleus out of which acquisitions should have been made is not sufficient. The important thing to consider is whether the income which the nucleus yields is sufficient to lead to an inference that acquisitions were made with that income. A building in the occupation of the members of a family yielding no income could not be a nucleus out of which acquisitions could be made even though it might be of considerable value.

11. Similar is the view expressed by the Supreme Court in M.

Girimallappa vs. R. Yellappagouda AIR 1959 SC 906 in the following

terms:

".... there is no presumption that any property, whether movable or immovable, held by a member of a joint Hindu Family, is joint family property. The burden lies upon the person who asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleus from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property."

12. In view of the above discussions I do not find any force in the

contentions of contesting defendants that the suit property is a joint family

property.

13. As regards to plea of existence of family settlement, same also has no

force. No cogent evidence has been led by the contesting defendants that

family settlement was arrived at vesting independent rights in the contesting

defendants to retain the portions in their possession. It has been admitted

by the defendant nos. 1 and 2 in their cross-examinations that family

settlement was not reduced in writing. As regards to plea of oral family

settlement, same does not inspire confidence as I do not find DW1 and DW2

to be trustworthy and reliable witnesses. Even otherwise, merely because

defendant no. 2 was permitted to rejoin the family in the year 1986 by the

plaintiff out of love and affection by itself does not give any independent

right in his favour to continue to hold on the possession forever. The

defendants have admitted that in the year 1982 plaintiff had asked the

defendant no. 2 to leave the house along with his wife because of their ill

behaviour and thereafter they left the house and started living in Dev Nagar,

Karol Bagh on rent. In the year 1986, plaintiff permitted defendant no. 2 to

come back and start living with their family members, on the assurance of

good behaviour. It appears that in the year 1986 defendant no. 2 was

permitted by the plaintiff to stay in the house subject to his behaving well.

This accommodation extended by the plaintiff cannot be said a family

settlement in order to claim the rights in the suit property; this simply shows

that plaintiff permitted the defendant no. 2 to live with her in her house as a

licensee, without payment of licence fee. So called family arrangement in

no manner vests any independent rights in favour of defendant no. 2 in the

suit property.

14. In Ajit Singh vs. Smt. Prakashi Devi 2007 V AD (Delhi) 289 mother

had filed a suit for possession against her son. Son had claimed independent

right in the suit property of his mother on the basis of Family Settlement

Deed, which could not be produced by him. Since son had failed to prove

family settlement, it was held that he was liable to vacate the property

owned by his mother. In Arjan Dev vs. Sh. Om Parkash, AIR 1992 Delhi

202, plaintiff had allowed his brother to live in the property owned by him.

A defence was set up that property was a joint family property. However,

said plea remained unproved. Accordingly, decree of possession was passed

against the defendant, who was also ordered to pay damages.

15. Counsel for the appellant has placed reliance on Hari Shankar

Singhania & Ors. Vs. Gaur Hari Singhania & Ors. AIR 2006 (4) Scale 74,

Tek Bahadur Bhujil, vs. Debi Singh Bhujil and Ors. AIR 1966 SCC 292, Mt.

Sodhan and Another vs. L. Khushi Ram and Others, AIR (87), 1950 (East)

Punjab 261, Latifannessa Bibi and Others vs. Abdul Rahaman and Others,

AIR 1934 Calcutta 202 and Sahu Madho Das & Ors. Vs. Pandit Mukand

Ram & Anr. 1955 (2) SCR 22. I have perused these judgments carefully

and I am of the view that the same are in context of different facts and are

not applicable to the present case, inasmuch as, in this case plea of family

settlement has remained unsubstantiated.

16. For the foregoing reasons, both the appeals are dismissed. No order

as to costs. Miscellaneous application is disposed of as infructuous.

A.K. PATHAK, J.

APRIL 23, 2013 rb