Delhi High Court
Mr. Ajay Batra vs Mr. Y.P. Batra & Ors on 18 September, 2013
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 18th September, 2013
+ CS(OS) 2154/2007
MR. AJAY BATRA ..... Plaintiff
Through: Mr. Abhinav Vashisht, Sr. Adv. with
Mr. Sacchin Puri, Ms. Kaadambari,
Ms. Namitha Mathews, Mr. Anuj
Malhotra and Ms. Monica Chugh,
Advs.
Versus
MR. Y.P. BATRA & ORS ..... Defendants
Through: Mr. Arvind Nayar, Mr. Vikas Kumar
& Mr. Zarkab Anwar, Advs. for D-2.
Mr. Gaurav Mitra, Mr. Rishabh
Maheshwari & Ms. Samreen, Advs.
for D-3 & 4.
AND
+ CS(OS) 571/2008
MS. AMBALIKA BATRA & ORS ..... Plaintiffs
Through: Mr. Anil Sapra, Sr. Adv. with Mr. Saket
Sikri, Advocate.
Versus
SH. AJAY BATRA & ORS ..... Defendants
Through: Mr. Abhinav Vashisht, Sr. Adv. with
Mr. Sacchin Puri, Ms. Kaadambari, Ms.
Namitha Mathews, Mr. Anuj Malhotra
& Ms. Monica Chugh, Advs. for D-1.
Mr. Arvind Nayar, Mr. Vikas Kumar &
Mr. Zarkab Anwar, Advs. for D-3.
Mr. Gaurav Mitra, Mr. Rishabh
Maheshwari & Ms. Samreen, Advs. for
D-4 & 5.
CS(OS) Nos.2154/2007 & 571/2008 & TEST.CAS. No.9/2009 Page 1 of 12
AND
+ TEST.CAS. 9/2009
GEETA BATRA ..... Petitioner
Through: Mr. Arvind Nayar, Mr. Vikas Kumar
and Mr. Zarkab Anwar, Advocates.
Versus
STATE & ORS. ..... Respondents
Through: Mr. Sacchin Puri, Ms. Kaadambari,
Ms. Namitha Mathews and Ms.
Monica Chugh, Advocates for
objector No-2.
Mr. Gaurav Mitra, Mr. Rishabh
Maheshwari and Ms. Samreen,
Advocates for D-3.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
I.A. No.6616/2010 in CS(OS) No.2154/2007 & I.A. No.907/2011 in CS(OS)
No.571/2008 (both u/O 12 R-6 CPC)
1. CS(OS) No.2154/2007 has been filed by the plaintiff against his father
(defendant No.1), mother (Mrs. Geeta Batra, defendant No.2), his sister
(Mrs. Jaya Batra defendant No.3) and against the daughter of his said sister
(Ms. Deeksha Laxmi Wadhera Batra defendant No.4) claiming,
(a) that the following eight properties i.e.
(i) C-173, Defence Colony, New Delhi-110 024.
(ii) Plot of land bearing No.1035, Sector 40, Gurgaon.
(iii) C-28, Defence Colony, New Delhi-110 024.
(iv) J-10, 2nd Floor, Saket, New Delhi. (Benamiholder
defendant No.4)
(v) Flat No.901B, Kukreja Center, Central Business District,
Belapur, Navi Mumbai.
(vi) Plot No.1029, Section 17B, Gurgaon.
(vii) Building No.3, Ground Floor, Resort Garden, Mashobra,
Shimla, Himachal Pradesh.
(viii) House No.8, Block F-1, Hauz Khas, New Delhi.
are the properties of Mr. Y.P. Batra HUF or properties purchased out
of HUF funds;
(b) relief of permanent injunction restraining the defendants from
dealing with the said properties;
(c) declaration that the Gift Deed of property No.C-173, Defence
Colony, New Delhi executed by the defendant No.1 in favour
of the defendant No.4 as void and in the alternative for
declaration that the said Gift Deed pertains only to the share of
the defendant No.1 in the property No.C-173, Defence Colony,
New Delhi;
(d) declaration that the plaintiff is the owner of 25% of property
No.C-173, Defence Colony, New Delhi in his individual
capacity and the remaining 75% share in the said property is to
be partitioned amongst the coparceners; and,
(e) partition of all the aforesaid properties.
2. CS(OS) No.571/2008 has been filed by the children of the plaintiff in
CS(OS) No.2154/2007 for the same reliefs as claimed in CS(OS)
No.2154/2007.
3. The plaintiff/s in the two suits seek decree on admission qua property
No.C-173, Defence Colony, New Delhi. It is contended that the contesting
defendants have in their written statement admitted to the rent of the said
property being credited in the account of Mr. Y.P. Batra HUF. It is thus
argued that there is no dispute at least of the said property being HUF
property and the same be partitioned declaring the share of different parties
in accordance with law. It is further contended that the plea of the
contesting defendants, of the said property also being the personal property
of Sh. Y.P. Batra and the rent being received in the name of Mr. Y.P. Batra
HUF only by way of tax planning without making the HUF the owner of the
said property, is of no avail. It is yet further contended that the said
defendants themselves had filed documents being returns of income tax of
Mr. Y.P. Batra HUFsigned by Sh. Y.P. Batra as Karta, also admitting the
said property to be of the HUF.
4. It is thus contended that the plaintiff/s are immediately entitled to a
preliminary decree for partition of C-173, Defence Colony, New Delhi and
of declaration of the Gift Deed by Sh. Y.P. Batra of the said property in
favour of Ms. Deeksha Laxmi Wadhera Batra as null and void.
5. Needless to state that Mrs. Jaya Batra & Ms. Deeksha Laxmi Wadhera
Batra and Mrs. Geeta Batra have contested the application. Sh. Y.P. Batra
has since died.
6. I have perused the written statement of the contesting defendants and
am unable to find any unequivocal and unambiguous admission therein.
There is however no need to elaborate further on the matter inasmuch as it is
also the plea in the written statement that there was ultimately a family
settlement in December, 2003 whereunder flat No.LCG-0204A, Laburnum,
Sector-28, Sushant Lok, Gurgaon, Haryana and plot of land ad-measuring
500 sq. yds., DLF, Phase-III, Gurgaon, Haryana in the joint names of Mr.
Ajay Batra and Mrs. Geeta Batra were vested exclusively in Mr. Ajay Batra
and a Power of Attorney was also executed by the defendant Mrs. Geeta
Batra in favour of Mr. Ajay Batra to enable him to exclusively deal with the
said properties and the Gift Deed of property No.C-173, Defence Colony,
New Delhi in the name of Ms. Deeksha Laxmi Wadhera Batra was executed
in terms of the Family Settlement only. The said plea of the contesting
defendants has to be put to trial and cannot be summarily dismissed at this
stage. Thus no case of granting any decree on admission is made out and
accordingly I.A. No.6616/2010 in CS(OS) No.2154/2007 & I.A. No.907/2011 in
CS(OS) No.571/2008 both under Order 12 Rule 6 of the CPC are dismissed.
I.A. No.4137/2011 in CS(OS) No.571/2008 (of D-2 to 4 u/O 7 R-11 CPC)
7. The contesting defendants in CS(OS) No.571/2008 seek rejection of
the plaint in that suit on the ground of the plaintiffs therein having not
valued the suit which is inter alia for the relief of possession properly and
having not paid the appropriate court fees thereon and on the ground that the
plaintiffs therein are not entitled to maintain a suit for partition during the
lifetime of their father Mr. Ajay Batra who has already instituted CS(OS)
No.2154/2007. Reliance in this regard is placed on S. Jasdeep Singh Vs. S.
Kehar Singh 111 (2004) DLT 441.
8. The senior counsel for the plaintiffs in CS(OS) No.571/2008 has on
the contrary referred to the judgment of the Division Bench of this Court in
Radhika Narang Vs. Kuldeep Narang 156 (2009) DLT 637 (DB).
9. As far as the rejection on the ground of CS(OS) No.571/2008 being
not properly valued for the purpose of court fees and jurisdiction and
appropriate court fees having not been paid thereon is concerned, the
plaintiffs in CS(OS) No.571/2008 have valued the suit for the purpose of
declaration and partition at Rs.6.69 crores and paid ad-valorem court fees on
their share of the property. The counsel for the applicants / defendants in
CS(OS) No.571/2008 has contended that the valuation of the properties is
not correct. The same cannot be determined at the stage of Order 7 Rule 11
of the CPC and has to be the subject matter of evidence and the plaint cannot
be rejected on this ground.
10. As far as the other ground of rejection is concerned, if it were to be
held that the properties qua which the suit is filed are indeed HUF
properties, the plaintiffs in CS(OS) No.571/2008 would acquire a right
therein by birth and their such right in my view is not dependent upon their
father Mr. Ajay Batra, plaintiff in the other suit.
11. Insofar as the reliance by the counsel for the applicants / defendant on
S. Jasdeep Singh supra is concerned, in my view, the counsel is
misconstruing the said judgment. A Full Bench of the Lahore High Court in
Lala Maha Deo Vs. Ranbir Singh AIR 1944 Lahore 220 held that a Hindu
son does not claim under his father within the meaning of Section 11 of the
CPC inasmuch as a son in a joint Hindu family becomes entitled in his own
right on birth. To the same effect is the judgment in (Kintali) Chandramani
Prushti Vs. Jambeswara Rayagaru AIR 1931 Mad. 550.
12. Thus I.A. No.4137/2011 under Order 7 Rule 11 of the CPC is also
dismissed.
CS(OS) No.2154/2007, CS(OS) No.571/2008 & TEST.CAS. No.9/2009
13. With the consent of the counsels, the three proceedings are
consolidated for the purpose of trial.
14. All the three suits are ripe for framing of issues and proposed issues
were also handed over at the time of hearing.
15. However while going through the records, I find that of the eight
properties supra for partition of which CS(OS) No.2154/2007 and CS(OS)
No.571/2008 are filed, it is the plea of the contesting defendants in the suits:
(i) that property No.C-28, Defence Colony, New Delhi was
purchased by Mrs. Jaya Batra and the Sale Deed thereof is in
her name;
(ii) that property No. J-10, 2nd Floor, Saket, New Delhi was
acquired by Mr. Y.P. Batra in the name of Ms. Deeksha Laxmi
Wadhera Batra and the Sale Deed thereof is also in the name of
Ms. Deeksha Laxmi Wadhera Batra (the plaintiff/s also in the
plaint have admitted the property to be in the name of Ms.
Deeksha Laxmi Wadhera Batra but pleaded her to be a benami
owner of the property);
(iii) that Flat No.901B, Kukreja Center, Central Business District,
Belapur, Navi Mumbai was acquired by Mr. Y.P. Batra for the
benefit of his wife Mrs. Geeta Batra and the title thereof is also
in the name of Mrs. Geeta Batra;
(iv) that plot No.1029, Section 17B, Gurgaon was purchased by Mr.
Y.P. Batra for the benefit of Ms. Jaya Batra and the title thereof
is in her name;
(v) that building No.3, Ground Floor, Resort Garden, Mashobra,
Shimla, Himachal Pradesh was purchased by Mrs. Geeta Batra
and the Sale Deed thereof is in her name; and,
(vi) that house No.8, Block F-1, Hauz Khas, New Delhi was
purchased by Mrs. Geeta Batra and the Sale Deed thereof is in
her name.
16. I have wondered as to how the plaintiff/s can maintain the suit for
declaration and partition of properties which are in the name of either Mrs.
Geeta Batra or Mrs. Jaya Batra or Ms. Deeksha Laxmi Wadhera Batra and
the title whereof is in their names, even if it is the admitted position that the
sale consideration thereof flowed from Mr. Y.P. Batra.
17. The senior counsel for the plaintiffs in suit No.571/2008 had during
the hearing also invited attention to the amended written statement of the
defendants No.2 to 5 in the said suit containing an admission in paras No.10
& 11 of the preliminary objections therein of Mr. Y.P. Batra acquiring the
six properties aforesaid from his own income in the name of Mrs. Geeta
Batra, Mrs. Jaya Batra and Ms. Deeksha Laxmi Wadhera Batra and had
contended that the said properties were thus from funds of the HUF.
18. Though the contesting defendants do not appear to have taken
objection but the reliefs claimed by the plaintiff/s with respect to the
aforesaid six properties tantamount to the plaintiff/s enforcing rights therein
against Mrs. Geeta Batra, Mrs. Jaya Batra and Ms. Deeksha Laxmi Wadhera
Batra in whose name the properties are held, claiming them to be benami
owners for the reason of the consideration paid for the property having
flown from the HUF funds.
19. The Benami Transactions (Prohibition) Act 1988 vide Section 4(1)
thereof prohibits such a suit. Though section 4(3)(a) of the Act makes the
said prohibition inapplicable to the case 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 of the family, however
neither could Mrs. Geeta Batra, Mrs. Jaya Batra & Ms. Deeksha Laxmi
Wadhera Batra be said to be coparceners of Mr. Y.P. Batra HUF nor is there
any plea in the plaint to the said effect nor is it pleaded that the property was
held for the benefit of the coparceners of the family. Thus the claim of the
plaintiff/s qua the aforesaid six properties cannot be said to be exempt from
the prohibition contained in the Benami Act.
20. Not only so, Section 3 of the Benami Act makes the prohibition
contained therein against entering into a benami transaction inapplicable to
purchase of property by a person in the name of his wife or unmarried
daughter and also provides that the property shall be presumed to have been
purchased for the benefit of the wife or the unmarried daughter. The
plaintiff/s having not pleaded any case for rebutting the said presumption.
21. I am therefore of the prima facie view that the plaint in both the suits,
insofar as claiming reliefs with respect to the aforesaid six properties, is
liable to be rejected and the trial should not be burdened with the evidence
with respect to the said six properties.
22. However, since the contesting defendants have not taken the aforesaid
objection in their application under Order 7 Rule 11 of the CPC and the
counsels for the plaintiff/s having not been heard on the said aspect, it is
deemed appropriate to give them an opportunity to address on the said
aspect before issues are framed.
23. List before the Roster Bench for the said purpose on 23rd October,
2013.
RAJIV SAHAI ENDLAW, J
SEPTEMBER 18, 2013
'gsr'
