Pratima Keshwani & Ors. vs Shanta L Keshwani
2014 Latest Caselaw 2032 Del

$~26
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Decision: April 23, 2014

+                        RFA(OS) 72/2014


      PRATIMA KESHWANI & ORS                             ..... Appellants
                  Represented by:            Mr.Sudhanshu Batra,
                                             Sr.Advocate instructed by
                                             Mr.Arvind Kumar Gupta,
                                             Mr.Abhishek Goyal,
                                             Mr.Saurabh Gupta,
                                             Ms.Apeksha Gupta, Advocates.
                         versus

      SHANTA L KESHWANI                                 ..... Respondent

                   Represented by:           None

CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG

CHIEF JUSTICE (ORAL)

CM No.6884-85/2014
      Allowed, subject to just exceptions.
RFA(OS) 72/2014

1. We have heard learned senior counsel who appears for the appellants. File of CS(OS) No.804/2009 which has been decreed by the learned Single Judge vide impugned judgment dated February 21, 2004 has been perused.

2. The respondent, Ms.Shanta L.Keshwani was blessed with two sons named Sanjay and Ravi. The appellants are the wife and children of Ravi.

3. Unfortunately, Ravi did not pull along well with the respondent and his brother Sanjay. The mother and son filed CS(OS) No.984/2004 impleading Ravi as a defendant and sought partition of property No.A-4, Mayfair Garden, Hauz Khas Enclave, New Delhi which was admittedly owned by Late Sh. L.H. Keshwani, the husband of the respondent, meaning thereby the father of Sanjay and Ravi. It was pleaded in the suit that Sh. L.H. Keshwani died intestate on August 31, 2008.

4. The suit was decreed on April 6, 2005. The share of the mother and her two sons was declared to be 1/3rd each. The property was directed to be sold and the sale proceeds to be divided equally amongst the mother and her two sons. On March 13, 2006, the property was sold for a consideration of `6,75,00,000/- (Rupees Six Crores and Seventy Five lakhs only). Thus, the respondent got `2,25,00,000/- (Rupees Two Crores and Twenty Five Lakhs Only). Likewise, Sanjay and Keshwani also got also got similar sum.

5. Property bearing Municipal No.5/30 Sarvapriya Vihar, New Delhi was purchased by the respondent thereafter on March 21, 2006 for a sum of `65,00,000/- (Rupees Sixty Five Lakhs only). She sued the appellants for a decree for possession and damages pleading that the appellant No.1 and Ravi Keshwani used to have frequent fights resulting in her son Ravi going to Assam leaving behind his wife and minor children. Since appellant No.1 was her daughter in law, purely on account of love and affection, she permitted appellant No.1 to live on the second floor of property No.5/30, Sarvapriya Vihar, New Delhi. She pleaded that soon thereafter her son Ravi came back and started residing on the second floor. She pleaded that the quarrel between appellant No.1 and her son would take aggravated forms of assaults and that she also became the target of assaults and abuses by

appellant No.1. She pleaded that her son Ravi died under mysterious circumstances. Pleading that the appellants were permitted to occupy the second floor as gratuitous licensees and that she had revoked the permission the suit was filed praying for a decree for possession and damages.

6. The appellants contested the suit pleading that Ravi Keshwani had paid the sale consideration when House No.5/30, Sarvapriya Vihar, New Delhi was purchased. Appellants pleaded that Ravi Keshwani purchased the house in the name of the respondent because in Delhi two percent stamp duty less was payable if the purchaser of immovable property was a female.

7. It is apparent that the issue between the parties on the rival pleadings was whether the respondent was a benamidar of the suit property.

8. Learned senior counsel for the appellants conceals that the respondent has proved paying the sale consideration when she acquired title to the suit property. The bank statement of account Ex.PW1/11 and Ex.PW1/12 pertaining to ABN Amro Bank and UCO Bank of the respondent would show debit of her accounts pertaining to the sale consideration paid by the respondent to the vendor of property No.5/30, Sarvapriya Vihar, New Delhi. The sale deed Ex.PW1/9 in favour of the respondent recording the sale consideration makes a reference to the cheque numbers by which the respondent paid the sale consideration to the vendor.

9. Learned counsel for the appellants urges that the property in question was purchased for a sum in access of `65 lakhs and that the amount in cash was paid by Ravi.

10. Now, Section 91 of the Indian Evidence Act would prohibit a plea to be urged that the actual sale consideration was other than the one recorded in a Sale Deed. Besides, the appellants have lead no evidence that Ravi

Keshwani had paid any amount in cash to the vendor.

11. Drawing our attention to the document marked 'M', which has been referred to as Ex.DW1/14 in the affidavit by way of examination in chief filed by appellant No.1, learned counsel would urge that the proof that Ravi Keshwani had to be the ultimate beneficiary of the house is the stamp paper value reflected in the document marked 'M'.

12. The document mark 'M', referred to as Ex.DW1/14, has rightly been treated as an unproved document. It consists of 24 photocopy sheets of a stamp paper(s) statedly purchased by Ravi Keshwani. Nothing has been scribed on the blank sheets.

13. Now, anyone can request a stamp vendor to temporarily handover blank and unused stamp papers and after photocopying the same return the originals.

14. Learned senior counsel for the appellants urges that since the Gift Deed was not executed by the respondent, the stamp papers were returned to the Collector of Stamps to obtain refund of the stamp value paid.

15. If this be so, the appellants could have led evidence to prove the same by summoning a witness from the office of the Collector of Stamps.

16. Having perused the record and having dealt with the submissions advanced by learned senior counsel for the appellants, no case is made out to even issue notice in the appeal to the respondent.

17. The appeal is dismissed in limine.

18. We note that the learned Single Judge has assessed damages against the appellants in sum of `25,000/- per month but has directed that decree relating to damages would not be executed if appellants surrender peaceful possession of the suit property to the respondent within three months.

19. Learned senior counsel for the appellants prays that since the impugned decree is dated February 21, 2014 and three months would expire on May 21, 2014, three more months may be granted to the appellants to surrender possession without incurring liability to satisfy the decree relating to damages.

20. It is apparent that the learned Single Judge has granted a relief to the appellants on humanitarian grounds. Extending the benefit of same humanism we declare that the decree pertaining to damages would not be executed by the respondents provided the appellants surrender vacant physical possession of the suit property to the respondents within a period of six months reckoned from February 21, 2014.

21. No costs.

CM No.6883/2014 (stay)

Dismissed as infructuous.

CHIEF JUSTICE

(PRADEEP NANDRAJOG) JUDGE APRIL 23, 2014 rb