Sh. Harminder Khullar vs Mrs. Swaran Kanta Juneja & Ors.
2013 Latest Caselaw 3042 Del

                 *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of decision: 18th July, 2013

+                           RFA No.42/2008
       SH. HARMINDER KHULLAR                   ..... Appellant
                   Through: Mr. Sandeep Sharma, Adv.

                                   Versus
    MRS. SWARAN KANTA JUNEJA & ORS.          ..... Respondents
                  Through: Mr. Jaykant Prasad, Adv. for R-1to4.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This first appeal under Section 96 of the CPC impugns the judgment

and decree dated 14th December, 2007 of the Court of Addl. District Judge,

Delhi dismissing Suit No.119/2006 filed by the appellant/plaintiff. Notice of

the appeal was issued and vide ex parte order dated 5th February, 2008 status

quo was directed to be maintained. Vide subsequent order dated 7 th May,

2008 the appeal was admitted and Trial Court record requisitioned and the

interim order made absolute during the pendency of the appeal. On

application of the respondents that they are senior citizens, hearing was

expedited. The counsels have been heard.

2. The suit from which this appeal arises was filed by the

appellant/plaintiff pleading:-

(i). that Smt. Shanti Devi Khullar being the paternal grandmother

of the appellant/plaintiff and mother of the respondents no.1&2

Ms. Swaran Kanta Juneja and Ms. Vijay Lakshmi was the

owner of immovable property No.D-11/1, Model Town, Delhi

admeasuring 250 sq. yds.;

(ii). that the said Smt. Shanti Devi Khullar vide Will dated 20th

February, 1991 bequeathed the said Model Town property in

favour of the appellant/plaintiff subject to the rider that

respondent no.2 Ms. Vijay Lakshmi who was/is unmarried, if

chooses to marry, her marriage expenses shall be borne by the

appellant/plaintiff and if she remains unmarried, she would be

maintained by the appellant/plaintiff;

(iii). that the respondent no.2 remained unmarried;

(iv). that Smt. Shanti Devi Khullar died in the year 1996 and under

her Will aforesaid the appellant/plaintiff became the owner of

the said Model Town property;

(v). that the respondent no.1 though married, was deserted by her

husband within three months of her marriage and had been

residing with the mother Smt. Shanti Devi Khullar in the Model

Town Property along with her son respondent no.3 Shri Rajesh

Juneja and under the Will aforesaid, the appellant/plaintiff was

to also provide for lodging and boarding of respondent No.1;

(vi). that upon the marriage of the respondent no.3 Shri Rajesh

Juneja with the respondent no.4 Ms. Simmi Juneja, disputes and

differences arose and which forced the appellant/plaintiff to sell

the Model Town property on 13th July, 1998 for a sale

consideration of Rs.10,50,000/-;

(vii). that from the consideration received from the sale of the Model

Town property, another property No.A-39, Derawal Nagar,

Delhi was purchased, with the Sale Deed of the ground floor

thereof being in favour of respondent no.2 Ms. Vijay Lakshmi,

the Sale Deed of the first floor and roof rights of the said

property being in favour of the appellant/plaintiff and the Sale

Deed of the second floor of the said property being in the

names of respondents no.1,3&4;

(viii). that since the appellant/plaintiff was the sole and absolute

owner of the Model Town property with the respondents

no.1&2 only having rights of lodging and boarding therein

during their lifetime, the Derawal Nagar property also belonged

to the appellant/plaintiff only with the respondents no.1&2 only

having right of residence therein during their lifetime;

(ix). that the parties however could not live harmoniously in the

Derawal Nagar property also and which was sold in the year

2002 and from the said sale proceeds thereof, with an intent to

make separate dwelling units for the sake of peace, second floor

of property No.1226 Dr. Mukharjee Nagar, Delhi was

purchased in the name of the respondents no.1,3&4, the ground

floor of property No.C-176, Prashant Vihar, Delhi was

purchased in the name of the respondent no.2 and the second

floor of the property No.C-176, Prashant Vihar, Delhi was

purchased in the name of the appellant/plaintiff;

(x). that since the Dr. Mukharjee Nagar property and the ground

floor of the Prashant Vihar property were bought out of funds

received originally from the sale of Model Town property of

which the appellant/plaintiff was the sole owner, the

appellant/plaintiff continued to be the owner of the said two

properties also with the respondents only having a right of

residence therein; and,

(xi). that the respondents no.3&4 threw out the respondent no.1 from

the Dr. Mukharjee Nagar property and the respondent no.1

thereafter has also been residing along with the respondent no.2

on the ground floor of the Prashant Vihar property.

The appellant/plaintiff thus sought the relief:-

(a). of declaration that he is the owner of the Dr. Mukharjee Nagar

property and the ground floor of the Prashant Vihar property

and that the respondents have no right title or interest therein;

and,

(b). for permanent injunction restraining the respondents from

alienating, encumbering or parting with possession of the said

two properties.

3. The respondents/defendants filed a joint written statement contesting

the suit inter alia on the grounds:-

A. that the appellant/plaintiff had no right over the said two

properties;

B. denying the Will dated 20th February, 1991 supra of Smt. Shanti

Devi Khullar but at the same time pleading that upon Smt.

Shanti Devi Khullar in her lifetime coming to know that the

appellant/plaintiff had fabricated her Will dated 20th February,

1991, she had sought to cancel the same and the

appellant/plaintiff had got her signatures again on blank papers

assuring her that the same were for cancellation of the Will

dated 20th February,1991;

C. that the appellant/plaintiff thus after the demise of Smt. Shanti

Devi Khullar did not become the owner of the Model Town

house;

D. that in fact the respondents no.1&2 were the owners of the

Model Town property;

E. that the disharmony in the house was created by the

appellant/plaintiff and his wife;

F. that the parties wanted to get rid of the family dispute and the

legal remedy decided was an oral family settlement to sell the

Model Town Property and thereafter purchase another house

and make such arrangement that all should get separate

accommodation;

G. that the purchase consideration of the portions of the Derawal

Nagar property Sale Deeds of which were in favour of the

respondents, was paid by the respondents from their personal

savings;

H. that the respondents purchased the ground floor of Prashant

Vihar property and the Dr. Mukharjee Nagar property out of

sale proceeds of their portions of the Derawal Nagar property;

I. that the appellant/plaintiff being a practicing Advocate has filed

the suit to harass the respondents.

4. The appellant/plaintiff filed a replication to the written statement

aforesaid but need is not felt to advert thereto.

5. On the pleadings of the parties, the following issues were framed in

the suit:-

"1. Whether the suit has not been properly valued for the purpose of Court fee? OPD

2. Whether the suit is without any cause of action?

OPD

3. Whether the plaintiff is entitled to decree of declaration as prayed for? OPP

4. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP

5. Relief.

6. The appellant/plaintiff examined himself and closed his evidence. The

respondents/defendants No.1,2&3 examined themselves as DW-1 to DW-3

and closed their evidence. No evidence was led by the appellant/plaintiff in

rebuttal.

7. The learned Addl. District Judge by the impugned judgment dismissed

the suit of the appellant/plaintiff finding/observing/holding:-

a. that though the case of the appellant/plaintiff was based on the

Will dated 20th February, 1991 of Smt. Shanti Devi Khullar and

on certified copy thereof the appellant/plaintiff in his

examination-in-chief had put Ex.PW1/A but the

appellant/plaintiff had neither placed the original Will before

the Court nor examined any attesting witness thereof; Will

could have been proved only by examining the attesting witness

thereof and same having not been done, the Will remained

unproved;

b. that the existence of the Will dated 20th February, 1991 of Smt.

Shanti Devi Khullar had not been accepted by the

respondents/defendants and it was thus necessary for the

appellant/plaintiff to prove the Will by producing the attesting

witness thereof;

c. that the appellant/plaintiff had thus failed to prove that he

acquired absolute ownership rights in the Model Town

property;

d. that even if in view of certain admissions of the respondents

no.1&2 in their cross examination, the existence of the Will

dated 20th February, 1991 of Smt. Shanti Devi Khullar is to be

believed, the appellant/plaintiff had not led any evidence to

show that he carried out the last Will of the deceased in letter

and spirit;

e. that the appellant/plaintiff had failed to prove that he provided

maintenance to the respondent no.2 or that he provided

boarding and lodging to the respondents no.1&2;

f. that the Model Town property was sold on 5th June, 1998 by

three separate Sale Deeds though executed by the

appellant/plaintiff as seller but to which the respondents no.1&2

were the confirming parties; that the said Sale Deeds contained

a recital that after the death of Smt. Shanti Devi Khullar the

appellant/plaintiff as well as the respondents no.1&2 had

inherited the said property;

g. that the Sale Deeds of purchase of the Derawal Nagar property

also showed that after the Model Town property was sold, the

appellant/plaintiff and the respondents purchased separate

portions of Derawal Nagar property by three separate Sale

Deeds;

h. that the aforesaid supported the plea of the respondents in their

written statement of oral settlement pursuant to which Model

Town property was sold and thereafter separate portions were

purchased by the respective parties;

i. that it appeared that instead of providing maintenance in terms

of the Will, the appellant/plaintiff had given shares to the

respondents no.1&2 towards their claim of lodging and

boarding and maintenance;

j. that after the properties were purchased by the respective

parties through their respective Sale Deeds in their respective

names, they acquired independent right, title and interest in

their respective portions of the Derawal Nagar property;

k. that the parties had similarly sold their respective portions of

the Derawal Nagar property through separate sale deeds and

had thereafter purchased Dr. Mukharjee Nagar property and the

floors aforesaid of the Prashant Vihar property and they thus

had independent right, title and interest in the said properties in

terms of Section 54 of the Transfer of Property Act, 1882; and,

l. that in the face of the Sale Deeds the appellant/plaintiff cannot

claim ownership rights in the properties Sale Deeds whereof are

in the name of the respondents.

8. In the aforesaid state of affairs, it has been enquired from the counsel

for the appellant/plaintiff as to what is the right in law claimed by the

appellant/plaintiff in the ground floor of the Prashant Vihar property in the

name of the respondent no.2 and in the Dr. Mukharjee Nagar property in the

name of the respondents no. 1, 3&4.

9. The counsel for the appellant/plaintiff has contended that since under

the Will dated 20th February, 1991 of Smt. Shanti Devi Khullar, the Model

Town property vested solely in the name of the appellant/plaintiff and

further since the sale consideration for the purchase of the ground floor of

the Prashant Vihar property and the Dr. Mukharjee Nagar property has

flown from the sale proceeds of the Model Town property and which sale

proceeds belonged to the appellant/plaintiff alone, the appellant/plaintiff is

the owner of the ground floor of the Prashant Vihar property and the

Derawal Nagar property and is entitled to the reliefs claimed of declaration

of his title and injunction restraining the respondents from dealing with the

said properties.

10. It has next been enquired from the counsel for the appellant/plaintiff

whether not the aforesaid claim of the appellant/plaintiff is prohibited/barred

by Section 4 of the Benami Transactions (Prohibition), Act, 1988.

11. I may mention that Section 2(a) of the Benami Act defines a "benami

transaction" as a transaction in which property is transferred to one person

for a consideration paid or provided by another person. The claim of the

appellant/plaintiff of being the owner of the ground floor of the Prashant

Vihar property and the Dr. Mukharjee Nagar property for the reason of

having paid the purchase consideration thereof is clearly in the teeth of the

Benami Act. Section 4 of the said Act provides that no suit, claim or action

to enforce any right in respect of any property held benami against the

person in whose name the property is held shall lie by or on behalf of a

person claiming to be the real owner of such property.

12. The counsel for the appellant/plaintiff contends that no such defence

was taken by the respondents and the learned Addl. District Judge also has

not dismissed the suit of the appellant/plaintiff on the said ground.

13. Though undoubtedly so, but the legislature having enacted the Benami

Act, the Courts, even if the parties fail to take a plea with respect thereto,

cannot be oblivious thereto and if find the claim to be in the teeth of the

prohibition contained in the Benami Act, are obliged to reject/dismiss the

same.

14. Faced therewith the counsel for the appellant/plaintiff has contended

that the appellant/plaintiff is covered by the exceptions to the prohibition

contained in Section 4(3) of the said Act. Section 4(3) makes the prohibition

inapplicable.

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."

15. However it is neither the case of the appellant/plaintiff that the

respondents in whose name the ground floor of Prashant Vihar and the Dr.

Mukharjee Nagar properties are held are coparceners in any Hindu

Undivided Family or are holding the said properties for the benefit of the

coparceners in the family nor is it the case that the respondents are the

trustees or otherwise standing in a fiduciary capacity towards the

appellant/plaintiff.

16. The counsel for the appellant/plaintiff then draws attention to Marcel

Martins Vs. M. Printer (2012) 5 SCC 342.

17. Though undoubtedly the Supreme Court in the said case held that in

determining whether a relationship is based on trust or confidence, relevant

to determine whether they stand in a fiduciary capacity, the Court shall have

to take into consideration the factual context in which the question arises but

in the present case as aforesaid neither in the pleadings nor in the evidence is

there any case of trust or confidence or fiduciary relationship pleaded or

established. Moreover Marcel Martin turned on its own facts, in that case

the common predecessor of the parties had valuable tenancy rights in a

property and which on her demise and for the reason of the landlord,

municipality having a procedure to mutate the same in the name of one of

the family members only, were mutated in the name of one of the heirs only

though all charges thereof were paid by all the heirs together. It was in these

circumstances that a relationship of trust and fiduciary capacity was found.

The same is not the position here.

18. Here as per the own case of the appellant/plaintiff, the respondents

no.1&2 in the Will dated 20th February, 1991 of Smt. Shanti Devi Khullar

under which the appellant/plaintiff claims to have become the sole owner of

the Model Town property, had a right of residence for their lifetime therein.

The relevant clauses of the said Will are as under:

"As well as by these presents and deed in sound state of mind and body before the two witness witnessing the execution of those presents/deed, I bequeath and give my total immovable property described in three portions in para 3 above to my only grand son Shri Harminder Khullar aged 25 years son for Shri R.C. Khullar enjoined with Miss Vijay Laxmi upto her life time to provide maintenance to her by Shri Harminder Khullar but in case she chooses to marry herself then the whole expenses for marriage shall be incurred by my grandson Harminder Khullar and thereafter the immovable property aforesaid shall be exclusively held, owned and enjoyed by him alone.

That my daughter Smt. Swaran Kanta Juneja, due to her ill health had been living with me and I had been providing for her lodging and boarding. After my death my grandson shall provide to her viz. Swaran Kanta Juneja during her life time, the lodging and boarding as before."

The appellant/plaintiff thus could not have sold the Model Town property

during the lifetime of the respondents no.1&2, without their consent. The

right of residence of the respondents no.1&2 during their lifetime in the said

Model Town property was in the nature of an encumbrance to the right of

ownership of the appellant/plaintiff of the said property.

19. The Sale Deeds of the Model Town Property executed by the

appellant/plaintiff as Vendor and Respondents/Defendants 1 and 2 as

Confirming Parties, contain the following recitals.

"AND WHEREAS Shrimati Shanti Devi executed a Will on 20.2.1991 which is registered in the Office of Sub-Registrar, Delhi as Document No. 5270 I Additional Book No.III, Volume No. 953 on pages 37 to 41 dated 20.2.1991, bequeathing the said Property in favour of her grandson Shri Harminder Khullar i.e., the Vendor to this sale deed and the Confirming Parties i.e., Shrimati Swaran Kanta acquired the rights for lodging and boarding and Miss Vijay Laxmi being unmarried the life interest upto her marriage. Miss Vijay Laxmi is still unmarried.

AND WHEREAS Shrimati Shanti Devi died on 27.11.1995 so by virtue of her last Will dated 20.2.1991, Shri Harminder Khullar, Shrimati Swaran Kanta and Miss Vijay Laxmi inherited the abovesaid Property in the manner described above."

20. Even though humans may lie but the position which emerges from the

registered Will and the registered sale/purchase documents executed by the

parties from time to time is that the parties at the contemporaneous time did

not consider the appellant / plaintiff to be the sole owner of the Model Town

property or having exclusive right to the sale proceeds thereof and

understood the appellant / plaintiff as well as the respondents / defendants

no.1&2 to be together having rights therein including right to convey title to

the said property; out of the sale consideration of the Model Town property

three different properties (being different portions of the Derawal Nagar

property) were purchased, one in the name of the appellant/plaintiff, second

in the name of respondents no.2 and 3 and the third in the name of appellant

/ plaintiff and the respondents no.2 &3. The purchase consideration of the

said three properties even if flowed from the sale price of the Model Town

property, in the facts aforesaid it cannot be said that the appellant alone was

entitled thereto. The respondents no.1&2 as aforesaid were acknowledged to

be having rights in the Model Town property and were joined in sale deeds

thereof and the purchase of the Derawal Nagar properties in the names of the

respondents no.2 and son of respondent no.1, even if out of the sale

consideration of Model Town property, was in lieu of the rights of

respondents no.1&2 in the Model Town property. Again, though in one of

the three Derawal Nagar properties, the appellant / plaintiff had 50% share

and the respondents no.2&3 other 50% share but when the said properties

were sold, the ground floor of Prashant Vihar property was purchased in the

name of respondent no.2 alone and the Dr. Mukharjee Nagar property in the

names of respondents no.3&4 being the son and daughter-in-law of

respondent no.1, without any mention of the appellant / plaintiff having right

therein. The appellant/plaintiff thus cannot even claim that the sale

consideration received for Model Town property belonged to him and

cannot, de hors the Benami Act also, claim any right thereto.

21. The appellant/plaintiff has thus not been able to make out any legal

right to the properties qua which he claims declaration of title.

22. As far as the findings of the learned Addl. District Judge are

concerned, though undoubtedly the appellant/plaintiff did not examine any

attesting witness to the Will dated 20th February, 1991 of Smt. Shanti Devi

Khullar but from the written statement of the respondents as well as the

cross examination of the respondents the respondents are found to have

admitted the existence of the said Will. The said Will is a registered one and

it is not the case of the respondents that the Will dated 20th February, 1991

of which they admitted the existence, is anything other than as produced by

the appellant/plaintiff.

23. Not only so, the respondents no.1&2 as confirming parties to the Sale

Deed of the Model Town property also admitted therein the existence of the

said Will bequeathing the Model Town property in favour of the

appellant/plaintiff only subject to the rights of lodging and boarding of the

said respondents. I am therefore unable to concur with the finding on which

the learned Addl. District Judge has non-suited the appellant/plaintiff.

24. Be that as it may, having found the claim of the appellant/plaintiff to

be barred by the Benami Act and otherwise untenable in law, the appeal fails

and is dismissed. Though the claim of the appellant/plaintiff is fantastic and

without any basis in law and inspite of the appellant/plaintiff being a lawyer

himself, I refrain from imposing any costs on the appellant/plaintiff in the

hope that good sense will prevail upon him and he would desist from any

such attempt in future.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J JULY 18, 2013 pp