Delhi High Court

Sudhir Khanna vs Jugal Kishore Khanna (Deceased ... on 6 December, 2013

Author: Rajiv Sahai Endlaw

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of decision: 6th December, 2013.

+                             RFA 439/2008
       SUDHIR KHANNA                                  ..... Appellant
                   Through:        Mr. S.C. Singhal, Adv.

                               Versus

       JUGAL KISHORE KHANNA (DECEASED THROUGH LRS)
       AND ORS.                        ..... Respondents
                   Through: Mr. Pravir K. Jain & Mr. Manoj
                            Chauhan, Advs.

                                  AND

+                             RFA 483/2008

       JUGAL KISHORE KHANNA (DECEASED THROUGH LRS)
       AND ANR.                               ..... Appellants
                   Through: Mr. Pravir K. Jain & Mr. Manoj
                            Chauhan, Advs.

                               Versus

    SUDHIR KHANNA & ORS.                    ..... Respondents
                  Through: Mr. S.C. Singhal, Adv.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. RFA No.439/2008 impugns the judgment and decree dated

28.07.2008 of dismissal of suit No.70/06/83 of the Court of Additional

District Judge (ADJ), Karkardooma Courts, Delhi filed by the appellant Sh.

Sudhir Khanna for partition of property bearing No.15-D, Kamla Nagar,

Delhi. RFA No.483/2008 has been preferred by the respondent No.1 Sh.

Jugal Kishore Khanna (since deceased) and respondent No.2 Sh. Man

Mohan Khanna in RFA No.439/2008 for setting aside of the finding on Issue

No.4 in the same judgment and decree dated 28.07.2008, pertaining to

property No.D-56, Malcha Marg, Chanakya Puri, New Delhi and claiming

the same to be a joint family property with the appellants (in RFA

No.483/2008) Sh. Jugal Kishore Khanna and Sh. Man Mohan Khanna

having one half undivided share therein.

2. Notice of RFA No.439/2008 was issued and vide ex parte ad-interim

order dated 12.11.2008 therein, the respondents therein were directed to

maintain status quo with regard to possession and title of property No.D-15,

Kamla Nagar, New Delhi. Vide order dated 24.08.2009, the name of the

respondent No.5 Sh. Shyam Kishore Khanna in the said appeal who had died

during the pendency of the suit and whose heirs were not brought on record,

was struck off from the array of parties and the appeal admitted for hearing.

The hearing of the appeal was expedited owing to the parties thereto being

senior citizens. Compromise / settlement attempted remained unsuccessful.

3. Notice of RFA No.483/2008 was also issued and the said appeal also

admitted for hearing on 24.08.2009 and ordered to be listed along with RFA

No.439/2008. Vide order dated 24.08.2009 therein, status quo was directed

to be maintained with respect to the property in question.

4. The interim orders in both the appeals have continued. The counsels

have been heard.

5. The appellant in RFA No.439/2008 Sh. Sudhir Khanna ("SK")

instituted the suit from which these appeals arise, pleading:

(i) that SK and defendants No.4&5 in the suit (and who are

respondents No.3&4 in RFA No.439/2008 and respondents

No.2&3 in RFA No.483/2008) Sh. Raman Khanna ( "RK") and

Smt. Shyama Khanna ("Sh.K") were the heirs of Late Sh. Attar

Chand Khanna ("ACK") and defendants No.1 to 3 in the suit

Sh. Ram Kishore Khanna, Sh. Jugal Kishore Khanna ("JKK")

and Sh. Man Mohan Khanna ("MMK") and of which JKK and

MKK are respondents No.1&2 in RFA No.439/2008 and are

appellants in RFA No.483/2008 were the sons of late Sh. Roop

Kishore Khanna ("RKK");

(ii) that RKK and ACK were the sons of Sh. Tek Chand Khanna

("TCK") who held several immovable properties including one

at 15-D, Kamla Nagar, Delhi as joint family property;

(iii) that after the death of TCK, his two sons i.e. ACK and RKK

became joint owners of the Kamla Nagar property with RKK as

the Karta of the family;

(iv) that after the death of RKK, ACK became the Karta of the joint

family;

(v) ACK also died in March, 1983 leaving behind SK, RK and

Sh.K as his only heirs;

(vi) that the property No.15-D, Kamla Nagar, Delhi was equally and

jointly owned by the heirs of RKK and ACK i.e. with SK, RK

and Sh.K having 50% share therein and Sh. Ram Kishore

Khanna, JKK and MKK having the other 50% share;

(vii) that the property stood in the municipal records in the joint

name of both the parties;

(viii) that part of the said property was in possession of Sh. Ram

Kishore Khanna, JKK and MKK and the remaining portion was

in the possession of the tenants;

(ix) during the lifetime of ACK, it had been agreed that the rent

receivable from the property would be utilized by Sh. Ram

Kishore Khanna, JKK and MKK for improvement of the

property; and,

(x) that after the death of ACK in March, 1983 there was tension

between the heirs of RKK on the one hand and the heirs of

ACK on the other hand and SK, RK and Sh.K demanded

partition of the Kamla Nagar property to the extent of 50% and

upon the same being denied by Sh. Ram Kishore Khanna, JKK

and MKK, the suit was being filed.

6. Sh. Ram Kishore Khanna, JKK and MKK (hereinafter called heirs of

RKK) contested the suit by, filing a joint written statement, on the grounds:

(A) that the Kamla Nagar property was neither a joint family

property nor were SK, RK and Sh.K (hereinafter called heirs of

ACK) in possession of any part or parcel thereof and the suit

had not been properly valued for the purpose of court fees and

jurisdiction;

(B) that the only property which was jointly owned by ACK with

RKK was plot No.D-56, Malcha Marg, Chanakya Puri, Delhi

which was built by them in the name of Sh.K in or about the

year 1955 with joint funds;

(C) that even if SK had any right to claim partition of the Kamla

Nagar property, if the same was held to be a joint family

property, SK having not included the Malcha Marg property

for partition, the suit was bad for partial partition;

(D) denying that the Kamla Nagar property belonged to TCK and

pleading that TCK had died in the year 1942 and the Kamla

Nagar property was built by RKK in or about the year 1950

with his own self earned funds and further pleading that TCK

did not leave behind any assets and RKK was the only earning

member of the family maintaining the household;

(E) however RKK out of respect for his father (TCK) had

purchased the plot underneath the Kamla Nagar property in the

name of TCK and had raised construction thereon with his own

financial resources; ACK was till then unemployed;

(F) RKK associated ACK in his business as a partner in equal share

though ACK had not contributed anything to the business;

(G) ACK settled at Shimla permanently and continued to be a

permanent resident of Shimla till his death;

(H) ACK had not contributed anything towards the costs of

construction of the Kamla Nagar property;

(I) denying that RKK and ACK were the joint owners of the

Kamla Nagar property;

(J) ACK and RKK were the Karta's of their own individual co-

parceneries and there was no joint family of RKK and ACK of

which RKK and ACK could be the Karta;

(K) though RKK was the exclusive owner of the Kamla Nagar

property but out of sheer love and affection for his brother ACK

had got the name of ACK entered into Conveyance Deed of the

land underneath the Kamla Nagar property;

(L) ACK during his lifetime did not claim any right, title and

interest in the Kamla Nagar property;

(M) it was only after the death of ACK that the heirs of ACK, with a

view to harass the heirs of RKK had started claiming share in

the Kamla Nagar property;

(N) that to maintain harmony and cordial relations and to avoid

unnecessary dispute and bickering, a settlement was made

between ACK and his family on the one hand and heirs of RKK

on the other hand, whereunder the heirs of RKK including his

widow who was then alive, paid a sum of Rs.55,000/- to ACK

in October, 1979 in full and final settlement of his alleged claim

in the Kamla Nagar property;

(O) at the time of said settlement, ACK represented that he was

interested in selling the Malcha Marg property and sharing the

sale proceeds thereof and assured that if he decided to retain the

Malcha Marg property, he will pay to the heirs of RKK,

prevailing market price thereof;

(P) however thereafter ACK died and the Malcha Marg property

remained unsettled and joint as before;

(Q) neither ACK nor any of his family members were at any point

of time in possession of the Kamla Nagar property and ACK

along with his family was living in the Malcha Marg property.

7. Needless to state, SK filed a replication controverting the contents of

the written statement of heirs of RKK; the receipt by ACK of Rs.55,000/- in

settlement of his claim towards the Kamla Nagar property was also denied.

8. RK and Sh.K also filed a written statement supporting SK.

9. Sh. Ram Kishore Khanna (one of the heirs of RKK) died during the

pendency of the suit and Sh. Shyam Kishore Khanna was substituted as his

legal heir. Subsequently, as aforesaid, Shyam Kishore Khanna also died and

he was deleted from array of parties.

10. On the pleadings aforesaid of the parties, the following issues were

framed in the suit on 19.12.1991:

"1. Whether the suit is properly valued for the purpose of court fees and jurisdiction? OPD

2. Whether the property in question was owned by late Sh.

Attar Chand Khanna? OPD

3. Whether the plaintiff and the defendants No.4,5 and 6 are the joint owners of the suit property as alleged? If so, what are the shares? OPP

4. Whether the suit is bad on account of partial partition?

OPD

5. Whether there was a family settlement as alleged by the defendants? If so to what effect? OPD

6. Whether the plaintiff is entitled to rendition of account? If so, from whom and for which period? OPP

7. Relief."

11. The learned ADJ has in the impugned judgment, found / observed /

held:

(a) the heirs of RKK had not denied that Kamla Nagar property

was purchased in the name of TCK; their case however was that

it was RKK who had purchased the plot underneath the said

property with his own monies though in the name of TCK;

(b) that Issue No.2 had been wrongly framed and was covered by

other issues and there was thus no need to return any finding

thereon;

(c) that the land underneath the Kamla Nagar property was

admittedly acquired in the name of TCK; no positive evidence

had been led by heirs of RKK to prove that TCK was not doing

any work or had no means to purchase the said property or that

RKK had acquired the said property from his own monies; thus

the property had to be assumed to be ancestral in the hands of

RKK and ACK;

(d) that though SK in his replication had denied receipt of

Rs.55,000/- by ACK but in cross-examinations of JKK and

MKK gave a suggestion that the amount of Rs.55,000/- was

given for the betterment of HUF property and SK was thus

deemed to have admitted receipt of Rs.55,000/- by ACK;

(e) SK had however failed to prove, as to betterment of which

other property the said sum of Rs.55,000/- had been received by

ACK or as to how ACK during his lifetime had spent the

money so received by him in 1979 as ACK has died only in the

year 1983;

(f) SK had also not proved the income tax return of ACK. Though

ACK had in his wealth tax returns for the years 1964-65, 1965-

66 and 1966-67 shown half share of the Kamla Nagar property

in his wealth tax returns but had not shown himself to be the

owner of the Kamla Nagar property in the wealth tax returns

filed by him in the years 1979-83;

(g) if the Kamla Nagar property was being shown by ACK in his

income tax returns, the same would have been produced and

from non-production thereof, adverse inference had to be

drawn;

       (h)     law does not prohibit oral partition;


       (i)     JKK and MKK had thus successfully proved that oral partition

took place because of payment of Rs.55,000/- to ACK in the

year 1979 by the heirs of RKK;

(j) the oral partition of the year 1979 thus stood proved from the

pre-ponderance of evidence;

(k) SK had failed to prove that on the date of filing of the suit, he

or his brother RK or mother Sh.K had any share in Kamla

Nagar property and Issue No.3 was decided against them and

JKK and MKK had succeeded in establishing a settlement of

the year 1979 and Issue No.5 was decided in their favour;

(l) in view of the aforesaid finding, Issue No.6 was infructuous;

(m) in view of the aforesaid finding, Issue No.1 was decided in

favour of SK and against JKK and MKK;

(n) JKK and MKK had relied upon two payments of Rs.10,000/-

and Rs.50,000/- in support of their plea of the Malcha Marg

property being a joint family property acquired from joint

family funds;

(o) that Sh.K in whose name the Malcha Marg property stood, had

no source of income of her own;

(p) ACK had no other source of income except the joint family

business of cinema at Shimla;

(q) thus any property purchased by ACK becomes the joint family

property;

(r) circumstances given by JKK and MKK were not sufficient to

prove the fact that Malcha Marg property was purchased out of

joint family funds; and,

(s) accordingly, Issue No.4 was decided against JKK and MKK

and in favour of SK.

12. Mr. Pravir K. Jain, Advocate for JKK and MKK (being heirs of RKK)

has argued that he is not pressing that TCK or ACK were benami owners of

the property / half of the Kamla Nagar property and that RKK was the

real/sole owner of the property and is confining his case to ACK having not

been left with any share in the Kamla Nagar property upon receipt of

Rs.55,000/- against the same. He has further argued that adverse inference

from non appearance in the witness box of Sh.K, in whose name Malcha

Marg property stands, to prove the source from which she had acquired the

Malcha Marg property, should be drawn.

13. Mr. S.C. Singhal, Advocate for SK. RK and Sh.K (being the heirs of

ACK) has argued:

(I) that he is not controvering the receipt by ACK of Rs.55,000/-;

(II) that there can however be no extinguishment of rights in

immovable property without documents; oral partition can be of

several properties and not with respect to one property only;

(III) that the parties were admittedly having joint business and thus

exchange of monies should not raise the presumption of the

same being against a share in the property; and,

(IV) that it was for JKK and MKK to establish as to on what account

the said amount of Rs.55,000/- was paid;

(V) that no record to substantiate settlement of 1979 has been

proved;

(VI) that the mutation of the Kamla Nagar property in the joint

names of RKK and ACK was not changed after 1979.

14. The decision of this appeal entails, adjudication of rights in two

properties i.e. one at Kamla Nagar and the other at Malcha Marg.

15. The Kamla Nagar property as per the documents, is in the joint names

of RKK and ACK. Though JKK and MKK, being the heirs of RKK, had

also set up a case of benami earlier, of RKK being the real owner thereof but

have now not pressed the same. The only question which is to be adjudicated

is whether there was be any settlement with respect to the said property in

the year 1979 in which ACK received Rs.55,000/- against his 50% share in

the said property, making the same the exclusive property of heirs of RKK.

The learned ADJ has found in favour of heirs of RKK and which finding is

under challenge in RFA No.439/2008.

16. As far as the Malcha Marg property is concerned, the same is in the

name of Sh.K being the widow of ACK. JKK and MKK, being the heirs of

RKK claim the same to be a joint family property acquired from joint family

funds. The learned ADJ has found against them and which finding is under

challenge in RFA No.483/2008.

KAMLA NAGAR PROPERTY

17. I am unable to agree with the learned ADJ and do not find JKK and

MKK to have proved that there was any settlement in the year 1979

whereunder the 50% share of ACK in the said property stood transferred to

the heirs of RKK against payment of Rs.55,000/- to ACK, for the following

reasons:

(A) the heirs of RKK in their written statement verified on

09.07.1984/09.09.1984 to the suit for partition took a plea of

RKK being the real owner of the property and TCK being the

benami owner of the property and after the death of TCK, ACK

being the benami owner of half of the property;

(B) though upon coming into force on 19th May, 1988 of the

Benami Transaction (Prohibition) Act, 1988, such pleas are

barred but as per the dicta in G. Mahalingappa Vs. G.M.

Savitha (2005) 6 SCC 441, plea of benami taken in a pleading

filed prior thereto is not barred;

(C) the heirs of RKK persisted with the said plea before the Trial

Court as well as in this appeal and have not pressed the same

only at the time of hearing of this appeal;

(D) it is further the case of the heirs of RKK that though ACK

during the lifetime of RKK did not claim any right in the

property but after the death of RKK in the year 1978, started

pestering the heirs of RKK, claiming a share in the property and

goaded the heirs of RKK to agree to some family arrangement;

that in pursuance thereto, the settlement of 1979 was made;

(E) had this been the position and had the heirs of RKK in 1979

paid Rs.55,000/- to ACK to settle his claims against the Kamla

Nagar property even though according to heirs of RKK, ACK

had no right thereto, in the normal course of human behavior, a

proper documentation would definitely have been made;

admittedly, there is no documentation;

(F) the version of the heirs of RKK of having paid Rs.55,000/- to

ACK to settle his claim which in fact did not exist and yet

getting no document in writing from ACK in confirmation of

his not having any such claim or the said claim having been

settled, is improbable and unbelievable and against the

preponderance of probabilities;

(G) the inescapable conclusion is that the said payment of

Rs.55,000/- was not towards any such claim against the

property but was on some other account which did not require

any writing to be made with respect thereto; had the heirs of

RKK in the year 1979 felt coerced into make payment of

Rs.55,000/- in settlement of claim of ACK against the property

and which claim according to the heirs of RKK was not

legitimate, the heirs of RKK would not also have believed the

verbal assurances of ACK with respect to the Malcha Marg

property and which representations and assurances are part of

the settlement pleaded of 1979; for this reason also, the plea of

heirs of RKK of the 1979 settlement is unbelievable;

(H) had there been any such settlement of 1979 and as per which

ACK had assured and represented to the heirs of RKK that the

Malcha Marg property would be sold or else he would pay heirs

of RKK their share with respect thereto, the heirs of RKK

would have chased ACK for the same; they however did

nothing of that sort; it is not their case that they at any point of

time demanded that ACK should take a call with respect to the

Malcha Marg property or demanded their share with respect

thereto since ACK had not proceeded to sell the same; the said

plea was taken for the first time in the written statement filed in

July, 1984 in response to the suit filed by SK in or about 1983;

(I) had monies been due to heirs of RKK from ACK towards their

share in the Malcha Marg property, there was no occasion for

the heirs of RKK to pay to ACK Rs.55,000/- towards the share

claimed by ACK in the Kamla Nagar property;

(J) had the heirs of RKK been compelled to pay Rs.55,000/- to

ACK towards his illegitimate claim on the Kamla Nagar

property, they would at least have thereafter got the name of

ACK deleted with respect to the said property; it was not done;

the only inference is that the payment of Rs.55,000/- was not

against the Kamla Nagar property;

(K) during the hearing, instance has been given of other litigation

between the parties with respect to property at Shimla; though

partial family settlement is permissible in law but the same is

generally done for the mutual benefit of all the parties; where

one part of the family considers the demand of another with

respect to one of the properties to be illegitimate, generally all

joint properties / business are settled or at least proper

documentation made of the state of affairs; non-happening of

any such thing belies the claim of heirs of RKK of any

settlement in the year 1979;

(L) the heirs of RKK have not proved / established as to how the

payment, of Rs.55,000/- which they claim to have made in

settlement of share claimed by ACK in the Kamla Nagar

property, has been treated by them in their income tax / wealth

tax returns and it is not their case that after the said date they

started showing themselves to be the absolute owners of the

Kamla Nagar property;

(M) though the witnesses examined by the plaintiff SK from the

house tax department deposed that though earlier the property

was in the names of RKK, ACK and TCK but was subsequently

being shown in the name of RKK only, but without any

application on record as to why the names of ACK and TCK

were dropped; it is thus not as if after the settlement of 1979

any steps were taken for removal of the name of ACK;

(N) the onus to establish the settlement of 1979 is on the heirs of

RKK; and,

(O) no basis whatsoever also, for arriving at the valuation of the

property at Rs.1,10,000/- of which Rs.55,000/- was half, has

been disclosed.

MALCHA MARG PROPERTY

18. I concur with the finding of the learned ADJ, of the heirs of RKK

having failed to establish that they have any right, title, claim or interest in

this property, admittedly in the name of Sh.K, for the following reasons:

(i) the claim of the heirs of RKK to the said property, though made

by averring the said property to be a joint family property, but

in fact and in law is a claim of benami, as Sh.K in whose name

the said property stands, being the wife of ACK, cannot be said

to be a coparcener or a member of any HUF;

(ii) the averments of SK in the plaint, of a joint family of which

earlier RKK was the Karta and after the death of RKK, ACK

was the Karta, were denied by the heirs of RKK in their written

statement; the claim of the heirs of the RKK, for a share in the

Malcha Marg property, was made subject to acceptance of the

plea in the plaint of the Kamla Nagar property belonging to

such joint family;

(iii) the claim of the heirs of ACK to the Kamla Nagar property has

been upheld, not on a finding of the said property belonging to

any joint family but on a finding of ACK and RKK being the

co-owners of the said property and on further finding of

negating the claim of the heirs of RKK of having paid

Rs.55,000/- in settlement of the share of ACK in the Kamla

Nagar property;

(iv) since no finding of the existence of any joint family has been

returned, the claim of the heirs of RKK to the Malcha Marg

property, which was predicated on a finding of existence of a

joint family, in any case does not survive;

(v) the plea, in the written statement of the heirs of RKK, was of

RKK having purchased the said property in the name of Sh.K

being the wife of his brother ACK;

(vi) mere providing of sale consideration or financing for purchase

of property, even if that were found to be a case, does not make

the provider of such consideration or the financer, the owner of

the property and the right / claim of such financer / provider of

finance is only of seeking refund of the finances so provided

with interest if any proved to payable;

(vii) for a case of benami to be proved and established, as was

permissible prior to coming into force of the Benami

Transaction (Prohibition) Act, 1988, not only was payment of

consideration for purchase required to be proved but it was

further required to be proved and established that the purchase

was for the benefit of the provider of such consideration,

though in the name of another and that it is the said actual/real

owner who has always dealt with the property as owner and not

the benami owner;

(viii) neither have the heirs of RKK been able to disclose any reason

for the benami purchase if any nor have they been able to plead

or prove RKK or after the demise of RKK his heirs, having

exercised any rights of ownership with respect to the property;

(I have recently in judgment dated 18th September, 2013 in

RFA No.329/1997 titled Chanan Kaur Vs. Ajit Singh, also

dealing with the aspect of benami, have held motive to be an

important circumstance to hold a case of benami to be made

out.)

(ix) a claim for the said property is pleaded to have been made for

the first time in the year 1979 upon ACK making a false claim

with respect to the Kamla Nagar property;

(x) however the settlement of the year 1979 as pleaded and which

included a settlement qua this property also has not been

believed for the reasons stated against the Kamla Nagar

property;

(xi) even after the alleged settlement of 1979, no claim with respect

this property was made until the filing of written statement to

the suit for partition of the Kamla Nagar property;

(xii) the onus to prove that this property was the benami property of

Sh.K and that RKK was the real owner thereof or that the said

property was the property of any joint family was again on the

heirs of the RKK and which onus they have miserably failed to

discharge; and,

(xiii) again absolutely no evidence has been led of any joint family

accounts or of any such joint family having been declared in the

taxation to which the parties were subject or RKK or heirs of

RKK having shown themselves as having any interest in this

property.

19. Resultantly, RFA No.439/2008 filed by SK against the judgment and

decree dismissing his suit for partition of the Kamla Nagar property is

allowed and RFA No.483/2008 filed by JKK and MKK impugning the

finding on Issue No.4 with respect to the Malcha Marg property claiming the

relief of partition of the Malcha Marg property is dismissed.

20. Axiomatically, the suit filed by SK for partition of the Kamla Nagar

property has to be decreed and cannot be said to be bad for the reason of

being for partial partition for non-inclusion of Malcha Marg property. So far

as the shares of the respective parties are concerned, the same are not in

dispute. Admittedly, RKK and ACK were equal owners of the property.

Their respective shares are to devolve on their respective heirs. It is thus

declared that SK, RK and Sh.K together and in equal shares are the owners