Delhi High Court

Sanjay Bansal vs Tara Chand Aggarwal on 1 August, 2014

$~4

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      RFA 302/2014 and CM Appl. No. 11752/2014 (stay)

                                                 Decided on 1st August, 2014
       SANJAY BANSAL                                        ..... Appellant

                          Through      : Mr. Vijay K. Gupta, Adv.

                          versus

       TARA CHAND AGGARWAL                                 ..... Respondent

                          Through      :Mr. Dinesh Agnani, Sr. Advocate
                                       with Mr. Madan Lal Sharma and Mr.
                                       Varun Nischal, Advs.

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K.PATHAK, J.(ORAL)

1. Respondent is appellant's elder brother. Respondent - plaintiff filed a

suit for possession and recovery of damages/mesne profits against the

appellant - defendant before the trial court, wherein decree of possession

has been passed vide judgment and decree dated 29 th May, 2014, which has

been impugned in this appeal. Relief of mesne profits has been declined by

the trial court.

2. Respondent alleged in the plaint that he was a member of Naveen

Cooperative Group Housing Society Ltd. ("the Society", for short). The

Society constructed residential flats on Plot No. 13, Sector No. 5, Dwarka,

(Pappan Kalan), New Delhi. Respondent was allotted flat No. A-402

(hereinafter referred to as "flat in question") in the draw of lots conducted by

the officials of Delhi Development Authority and Registrar Cooperative

Societies on 19th April, 2000. Physical possession of the flat was handed

over to the respondent soon thereafter. In the month of April, 2001

respondent allowed the appellant to use and enjoy the flat in question on

licence basis and without payment of any licence fee. Subsequently,

behaviour of appellant became hostile towards the respondent. Accordingly,

respondent revoked the licence vide notice dated 1 st July, 2002 sent through

a lawyer by way of registered AD post, thereby called upon the appellant to

handover physical possession of the flat in question to respondent, on or

before 19th July, 2002. It was further stated therein that in case flat in

question was not vacated, appellant shall pay damages @ `500/- per day.

Appellant did not vacate the flat in question; instead he threatened that he

would sell the flat in question to a third party, hence the suit.

3. In the written statement, appellant admitted that respondent, being a

member of the Society, was allotted the flat in question. He further alleged

that flat in question was acquired by the respondent from the joint family

funds, as business of the family was common. Appellant pleaded that he

was adopted by the respondent on 17th October, 1986. Adoption ceremony

as per Hindu rites was performed. After adoption, appellant joined the

business run by respondent and other family members in the name and style

of M/s. Shyam Lal Pawan Kumar. All the family members used to reside at

House No. 257, Gali No. 7, Padam Nagar, Delhi (for short hereinafter

referred to as "said house"). In the month of March, 2001, an oral family

settlement arrived at between the respondent and appellant wherein it was

agreed that appellant would start his independent business and leave the said

house and in lieu thereof will be given the flat in question. It was agreed

that the flat in question would be exclusive property of appellant. Later, said

oral family settlement was confirmed by the respondent in writing on 28 th

April, 2001. The said family settlement dated 28 th April, 2001 was written

by the respondent in his own handwriting and was duly witnessed by his two

brothers. Thus, appellant was the owner of flat in question. It is alleged that

appellant and respondent, being son and father, had no embargo to enter into

an oral family settlement, which was, subsequently, confirmed by the

respondent in writing on 28th April, 2001. It was denied that appellant had

occupied the flat in question as a "licensee" of the respondent. It was

alleged that notice dated 1st July, 2002 was untenable in the above facts. It

was denied that appellant threatened that he would sell the flat in question to

a third party.

4. In the replication, respondent denied the contents of written statement

and reiterated the averments made in the plaint. It was denied that

respondent had adopted the appellant on 17th October, 1986. It was alleged

that as on 17th October, 1986 appellant was above the age of 15 years, thus,

under the law of adoption alleged adoption, otherwise was not legal and

valid. Respondent alleged that flat in question was his self acquired

property. It was denied that family settlement, as pleaded by the appellant,

ever took place. Respondent also took a plea that house at Padam Nagar

was a joint family property and respondent had no right to permit or

disallow the appellant to occupy or leave the said house. Regarding

document dated 28th April, 2001, it is alleged that respondent was suffering

from heart-problem in the year 1996 and was not able to manage his sole

proprietorship business, thus, had entrusted the affairs of his sole

proprietorship business run in the name and style of M/s. Shyam Lal Pawan

Lal to his brother Shri Babu Lal, who in collusion with appellant

misappropriated the funds of the said business and obtained the document

dated 28th April, 2001 from the respondent by playing fraud and undue

influence.

5. From the pleadings of the parties following issues were framed:-

"(i) Whether the defendant is the owner in possession of the suit property in view of family settlement and declaration of the plaintiff? OPD

(ii) Whether the plaintiff is entitled to a decree of possession in respect of the suit property? OPP

(iii) Whether the plaintiff is entitled to any mesne profits and if so, its quantum and period? OPP

(iv) Relief."

6. Respondent examined himself as PW1. He proved ten documents.

Copies of share certificate and no dues certificate issued by the Society were

proved as Ex. PW1/1 and Ex. PW1/2, Allotment Letter dated 21st April,

2000 was proved as Ex. PW1/3, Passbook issued by the Society relating to

the payments made to the Society by the respondent was proved as Ex.

PW1/4, Possession Letter was proved as Ex. PW1/5, Site plan was proved as

Ex. PW1/6, Copy of legal notice together with postal receipts were proved

as Ex. PW1/7 to Ex. PW1/10. One Dr. S.K. Sood, Officer/Executive of the

Society was examined as PW3. He produced records of allotment of the flat

in question. One Ms. Pushpa Mittal, Clerk of the school of appellant was

examined as PW2 in order to prove the school records with regard to age

and parentage of appellant. One Mr. Murari Lal, Section Officer was

examined as PW4 and he produced the certificate of school examination of

the appellant. As against this, appellant examined himself as DW1. He also

examined his brothers Shri Anil Bansal and Shri Shyam Lal Aggarwal as

DW2 and DW3, respectively. They had witnessed the document dated 28th

April, 2001 and have deposed in this regard.

7. After hearing the counsel for the parties and scrutinizing the evidence

adduced on record, trial court has held that appellant had failed to prove his

ownership rights in the flat in question. It was held that appellant had failed

to prove that he was adopted by the respondent. As per school records as

well as certificate issued by the C.B.S.E., it was established that appellant

was more than 15 years of age as on 17th October, 1986, thus, no legal or

valid adoption can be said to have taken place in view of Section 10(4) of

the Hindu Adoption and Maintenance Act, 1956 which envisages that a

person, who is not under the age of 15 years, cannot be adopted by any

Hindu. As regards plea of family settlement is concerned, trial court has

held that the same has also remained unproved as appellant had failed to

disclose his pre-existing rights in the flat in question, subject matter of

settlement. Reliance was placed on Pushpa Saroha vs. Mohinder Kumar &

Ors. 157 (2009) Delhi Law Times 425 and A.C. Lakshumipathy vs. A.M.

Chakrapani Reddiar, AIR 2001 Madras 135. Trial court has held that

neither the respondent nor appellant had any pre-existing rights in the house

at Padam Nagar, thus, there was no question of any family settlement

between the appellant and respondent to swap the rights in the said house

with the flat in question. Trial court has observed that appellant, in his

cross-examination, had admitted that said house was jointly owned by the

wives of two brothers, that is, respondent and Shri Babu Lal who were not

even party to the family settlement, thus, it cannot be said that flat in

question could have been swapped with the said house. Though not pleaded,

but during the course of hearing appellant took a shifting stand and

contended that the document dated 28th April, 2001 (Ex. DW1/4) was, in

fact, a Gift Deed. This plea has also been negated by the trial court by

placing reliance on Wing Commander (Retd.) R.N. Dawar vs. Shri Ganga

Saran Dhama, AIR 1993 Delhi 19 wherein it has been held that a gift of

immovable property, which is not registered, is bad in law and cannot pass

any title to the donee, under Section 123 of the Transfer of Property Act,

1882 ("the Act", for short) which envisages that a gift of immovable

property can only be made by a registered instrument, signed by or on behalf

of the donor and attested by at least two witnesses. Admittedly, Ex.DW1/4

is an unregistered document. Trial court has concluded that appellant had

failed to prove his ownership rights in flat in question. As regards title of

respondent is concerned, same was not in dispute. Trial Court has held that

status of appellant in flat in question was that of a "licensee". Since license

was revoked by the respondent vide legal notice Ex. PW1/7, therefore,

appellant was liable to handover the physical possession of the flat in

question to respondent.

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

perused the material placed on record and do not find any illegality and

perversity in the impugned judgment and decree. Learned counsel for the

appellant has vehemently contended that decree of possession could not

have been passed in favour of respondent, since he had failed to prove his

ownership in respect of the flat in question. Even in an ex-parte matter, it is

incumbent upon the plaintiff to prove his ownership before seeking

possession. Respondent cannot take benefit of the weakness of defence. I

do not find any force in this contention of learned counsel. In this case,

ownership of the respondent was not disputed in the written statement,

inasmuch as appellant himself has claimed ownership rights flowing from

the respondent, inasmuch as no issue on this point was framed. If a fact is

admitted by the defendant, the same is not required to be proved by the

plaintiff. Even otherwise sufficient evidence was adduced by the respondent

that he was a member of the Society, which constructed the flats and allotted

to its members, in a draw of lots.

9. It has been vehemently contended by the learned counsel that

appellant had acquired ownership rights in the flat in question vide Ex.

DW1/4, which was executed in terms of the oral family settlement and/or in

the alternative, by virtue of the gift, thus, no decree of possession could

have been passed against the appellant, since he was occupying the flat in

question in his own rights and not as a "licensee" of respondent. Relevant it

would be to refer to the contents of Ex. DW1/4 which is on `2/- stamp paper

and reads as under:-

"Main Tarachand S/o Shri Late Ganga Ram R/o 257 Padam Nagar, Gali-7, Delhi-7 ka rahne wala hun. Maain Papankal Coop. Naveen Society ka Flat no. A-402 jo ki mere naam hai. Uprokt flat ko main aaj dinak 28/04/2001 ko Shri Sanjay Bansal S/o Shri Tarachand ke naam kar raha huan. Aaj ke baad jo bhi uprokt flat mein kisi kism ka bakaya hoga uski dendari main karunga. Aage ki dendari Sanjay Bansal S/o Tarachand ki dendari ki jimmewari hogi.

Uprokt shapth patra poore hosh hawaash me likh kar de raha huan. uprokt Plot no. A-402 se mera koi lena dena nahi hoga.

Date 28/04/2001

Sd./-

Tara Chand S/o Late Shri Ganga Ram

257, Padam Nagar, Gali-7,

Delhi-7"

10. A perusal of Ex. DW1/4 makes it clear that there is no mention of any

family settlement therein. Rather, the word "sapath patra" used in Ex.

DW1/4, clearly indicates that the same is nothing but an affidavit and is not

sufficient to transfer ownership rights of an immovable property in favour of

appellant. That apart, there is no mention of any other property much less

the house in Padam Nagar, Delhi in lieu whereof the flat in question was

allegedly given to appellant. As per the written statement, flat in question

was given to appellant in lieu of his rights in the house at Padam Nagar.

Sufficient evidence has already come on record, which has been discussed

by the trial court in detail that appellant had no right in the said house which

was in the joint names of wives of two brothers. Accordingly, even

respondent had no rights to swap the flat in question in lieu of the said

house, inasmuch as appellant had no property rights in the above properties.

In absence of any pre-existing rights of appellant, no family settlement could

have taken place. It is trite law that for a family settlement to take place,

there has to be a pre-existing right in the property subject matter of

settlement in favour of the family members or all the family members part of

the settlement. By a family settlement, such rights can be restricted or given

up or rights of others can be expended to the extent of making them the

absolute owners of a property which but for the settlement would have

belonged to all. However, by a family settlement no fresh or new rights can

be created in favour of a family member, who otherwise had no rights to the

property. Reference is also made to Pushpa Saroha (supra) and A.C.l

Lakshumipathy (supra). Finding of the trial court, in this regard, is in

conformity with the settled position of law on this point.

11. First of all, plea of the appellant that flat in question was gifted to him

vide Ex. DW1/4 cannot be entertained, since no such plea was taken in the

written statement. Even otherwise, Ex. DW1/4 cannot be termed as a Gift

Deed nor it qualifies to be a Gift Deed, in view of Section 123 of the Act,

which envisages that for the purpose of making a gift of an immovable

property, the transfer must be effected by a registered instrument signed by

or on behalf of the donor, and attested by at least two witnesses. In this

case, admittedly, Ex. DW1/4 is not a registered document, thus, trial court

has rightly held that Ex. DW1/4 was not sufficient to vest ownership rights

in the appellant. Ownership rights in an immovable property could have

been transferred by the appellant in favour of respondent either by way of

sale within the meaning of Section 54 of the Act or by way of gift under

Section 123 of the Act. Ex. DW1/4 cannot either be termed as document of

sale, since ownership has not been transferred in exchange for a price paid

or promised or part-paid and part-promised. As already held above

Ex.PW1/4 also does not qualify to be a Gift Deed within the meaning of

Section 123 of the Act.

12. Learned counsel for the appellant has next contended that possession

of the appellant is protected under Section 53-A of the Act. This argument

needs to be rejected straightway being fallacious. Section 53-A of the Act

reads as under:-

"53-A. Part performance - Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: provided that nothing in this section shall affect the rights of a

transferee for consideration who has no notice of the contract or of the part performance thereof."

13. A bare perusal of aforesaid provision makes it clear that to attract

Section 53-A of the Act: (a) there must be a contract to transfer for

consideration an immovable property; (b) the contract must be in writing

signed by the transferor or by someone on his behalf; (c) the writing must be

in such words from which the terms necessary to construe the transfer can be

ascertained; (d) the transferee must, in part performance of the contract, take

possession of the property or of any part thereof; (e) the transferee must

have taken some act in furtherance of the contract and (f) the transferee must

have performed or be willing to perform his part of contract. After

commencement of registration and other related laws and Amendment Act,

2001, which has been made effective from 24th September, 2001 another

requirement is to be fulfilled that such document has to be registered