Smt. Shanta L. Keshwani vs Smt. Pratima Keshwani & Ors.
2014 Latest Caselaw 967 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 21st February, 2014

+                                 CS(OS) No.804/2009

       SMT. SHANTA L. KESHWANI                    ..... Plaintiff
                    Through: Mr. Pawan Kumar Agarwal, Adv.

                                     Versus

    SMT. PRATIMA KESHWANI & ORS.             ..... Defendants
                 Through: Mr. Ranvir Singh & Mr. Robin Raju,
                           Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J
1.

The plaintiff has instituted this suit against the three defendants for the

reliefs of, (a) recovery of possession of the entire basement, second floor and

terrace floor of property No.5/30, Sarva Priya Vihar, New Delhi; and, (b)

recovery of damages/mesne profits, pendente lite and future @ Rs.25,000/-

per month, pleading:-

(i) the defendant no.1 is the widow, the defendant no.2 Ms.

Tejswani Keshwani is the daughter and the defendant no.3

Master Dhruv Keshwani is the son of Shri Ravi Keshwani, the

deceased son of the plaintiff;

(ii) that the husband of the plaintiff Shri L.H. Keshwani was the

owner of property No.A-4, Mayfair Garden, Hauz Khas Enclave,

New Delhi;

(ii) that the husband of the plaintiff Shri L.H. Keshwani died

intestate on 31st August, 2008 leaving the plaintiff as his widow,

the aforesaid Shri Ravi Keshwani (since deceased) as his son

and another son Shri Sanjay Keshwani (who is not a party to this

suit), as his only natural heirs;

(iii) that disputes arose between the plaintiff and her son Shri Sanjay

Keshwani on the one hand and Shri Ravi Keshwani on the other

hand over the division and enjoyment of the estate left by Shri

L.H. Keshwani and assets of Shri L.H. Keshwani (HUF);

(iv) that the plaintiff and her son Shri Sanjay Keshwani filed CS(OS)

No.984/2004 in this Court against Shri Ravi Keshwani for

partition of the said estate/assets;

(v) that a settlement was arrived at between the parties to the

aforesaid suit and CS(OS) No.984/2004 was decreed on 6th April,

2005 in terms of the compromise;

(vi) as per the aforesaid compromise, the property at Mayfair Garden

was agreed to be sold and the sale proceeds thereof divided

equally;

(vii) that the Mayfair Garden property was sold vide Sale Deed dated

13th March, 2006 for a sale consideration of Rs.6,75,00,000/-

which was received by the plaintiff and her sons Shri Sanjay

Keshwani and Shri Ravi Keshwani in equal shares i.e.

Rs.2,25,00,000/- each;

(viii) that the plaintiff, out of the sale consideration of her share,

purchased property at Sarva Priya Vihar, vide registered Sale

Deed dated 21st March, 2006, for a consideration of

Rs.65,00,000/- and let out the first floor of the said property and

herself occupied the rest thereof;

(ix) that soon thereafter Shri Ravi Keshwani and the defendant no.1

had marital discord and separated, with Shri Ravi Keshwani

being left with two minor children i.e. defendants no.2&3 herein;

(x) that the plaintiff, in these circumstances allowed Shri Ravi

Keshwani and his children defendants no.2&3 to temporarily

shift to the second floor of the property at Sarva Priya Vihar,

New Delhi;

(xi) that the defendant no.1 upon coming to know of the plaintiff

having allowed Shri Ravi Keshwani and the children to occupy

the second floor of the Sarva Priya Vihar house, came back and

started living with Shri Ravi Keshwani;

(xii) that the defendant no.1 also put her locks on the basement and

the terrace floor portion of the Sarva Priya Vihar property; and,

(xiii) that Shri Ravi Keshwani died on 17th November, 2007 but the

defendants continued to live on the second floor of the property

and continued to keep the basement and the terrace floor under

their lock and key,

accordingly the suit for the reliefs aforesaid of recovery of possession

and mesne profits has been filed.

2. Summons of the suit were issued and vide ex parte ad interim order

dated 4th May, 2009 the defendants were restrained from transferring, parting

with possession or otherwise creating third party rights in the basement,

second and terrace floors of the property at Sarva Priya Vihar. Subsequently,

vide order dated 27th July, 2009 the earlier ad interim order was made

absolute till the decision of the suit and vide order dated 9 th November, 2009

the defendant no.1 was appointed as the guardian of the defendants no.2&3.

During the pendency of the suit certain other interim arrangements with

respect to sharing of water and electricity bills of the premises were also

made.

3. The defendants contested the suit by filing a written statement, on the

ground:-

(a) that the defendant no.1 is an uneducated person who had married

Shri Ravi Keshwani at a young age of 18 years and after

marriage had started residing in the house at Mayfair Garden but

was harassed by her mother-in-law i.e. the plaintiff;

(b) that owing to being uneducated, the defendant no.1 did not

understand the transaction which took place while partitioning

the Shri L.H. Keshwani HUF, though she is aware of the filing

of the suit in the High Court and of some settlement therein and

the sale of the Mayfair Garden property and distribution of sale

proceeds amongst the plaintiff, Shri Sanjay Keshwani and Shri

Ravi Keshwani but is not aware of the details thereof;

(c) that immediately after the sale of the Mayfair Garden property,

Shri Ravi Keshwani, under some arrangement with his mother

i.e. the plaintiff, had purchase the Sarva Priya Vihar property in

the name of the plaintiff;

(d) thus the Sarva Priya Vihar property was in fact purchased

through a benami transaction by Shri Ravi Keshwani in the name

of the plaintiff, in trust as the plaintiff was in a fiduciary position

in the family;

(e) that the plaintiff and Shri Ravi Keshwani also had some joint

business under the name of M/s. Globe Vision;

(f) that Shri Ravi Keshwani was persuaded to purchase the property

in the name of the plaintiff, to save 2% stamp duty on such

purchase;

(g) that it was owing to Shri Ravi Keshwani having paid the

consideration for the purchase of the Sarva Priya Vihar property

that Shri Ravi Keshwani along with the defendants started living

in the said property;

(h) that though Shri Ravi Keshwani was the only owner of the

property but had earmarked the ground and first floors of the

house for his mother on account of her old age and he himself

with his family occupied the second floor and basement of the

house;

(i) that it was for the aforesaid reason only that the plaintiff also had

not objected to Shri Ravi Keshwani and the defendants

occupying the basement and the second floor of the property;

(j) that in fact Shri Ravi Keshwani was also in the process of getting

the ownership of the second floor and the basement transferred in

the name of the defendants, keeping in mind his own illness and

his mother‟s old age but died before he could accomplish the

same;

(k) denying that there was any marital discord between the defendant

no.1 and Shri Ravi Keshwani or that the defendant no.1 had ever

left Shri Ravi Kishwani or Shri Ravi Keshwani along with the

defendants no.2&3 only had initially occupied the second floor

of the property;

(l) that after almost one and a half years after the death of Shri Ravi

Keshwani in 2007, the plaintiff executed a Will dated 18th April,

2009 in favour of Shri Sanjay Keshwani and immediately

thereafter within two days on 20th April, 2009 the present suit

was filed at the instance of Shri Sanjay Keshwani; and,

(m) that the plaintiff in collusion with Shri Sanjay Keshwani is taking

advantage of the Sarva Priya Vihar house being in the name of

the plaintiff.

4. The plaintiff filed a replication, controverting the contents of the

written statement and denying that the plaintiff and Shri Ravi Keshwani were

carrying on any joint business in the name of M/s. Globe Vision or in any

other name and also denying that there was ever any talk of transfer of the

basement and the second floor to the name of the defendants and denying that

the suit was in collusion with Shri Sanjay Keshwani.

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

framed on 15th March, 2010:-

"(i) Whether the plaintiff is entitled to a decree of possession of the suit property shown in red colour in the accompanying site plan (Annexure A)? OPP

(ii) Whether the plaintiff is entitled to damages/mesne profits at the rate of Rs.25,000/- per month from the defendants? OPP

(iii) Whether the suit property was purchased by the husband of the defendant no.1 i.e., late Sh. Ravi Keshwani in the name of the plaintiff in a fiduciary i.e., as a benami? If so, to what effect? OPD"

6. The plaintiff examined herself only in support of her case. The

defendants, besides examining the defendant no.1 examined ASI from Police

Station Hauz Khas, New Delhi as DW-2, the Manager, UCO Bank, Hauz

Khas Branch as DW-3 and a private witness Shri Rohit Nanda as DW-4 and

closed their evidence. Vide order dated 17th September, 2013, in the light of

the plaintiff being a very old lady the suit was posted for final hearing on

actual date. The counsel for the plaintiff was heard yesterday and on the

request of the Advocate for the defendants, the suit posted for today for

hearing arguments of the counsel for the defendants. The counsels have been

heard today also.

7. The contention of the counsel for the plaintiff is that the onus of issue

No.(iii) was on the defendants and which the defendants have failed to

discharge and resultantly the plaintiff is entitled to a decree for recovery of

possession and for recovery of mesne profits. On enquiry whether there is any

evidence of the other properties, similar to the portion of the property in

occupation of the defendants, fetching a rent of Rs.25,000/- per month, the

counsel for the plaintiff fairly states that no such independent evidence has

been led.

8. The counsel for the defendants had opened his argument by stating that

a material witness remained to be examined by the defendants. However the

defendants have not filed any application in this regard inspite of the suit as

aforesaid having been posted for final hearing vide order dated 17 th

September, 2013. Upon the same being put to the counsel for the defendants,

he states that this Court in exercise of its inherent jurisdiction should grant

such an opportunity to the defendants. No such opportunity, in vacuum, can

be given.

9. Upon it being enquired from the counsel for the defendants as to how

the plea of the defendants of Shri Ravi Keshwani being the benami owner of

the entire property is entertainable inspite of the prohibition contained in the

Benami Transactions (Prohibition) Act, 1988, the counsel for the defendants

states that the present case falls in the exception to the said prohibition as

provided in Section 4(3)(b) of the Benami Act, as the plaintiff was the trustee

of and standing in a fiduciary capacity towards the late Shri Ravi Keshwani.

Upon it being further put to the counsel for the defendants that under which

law is a mother a trustee of her adult son and/or stands in a fiduciary capacity

vis-à-vis her adult son, though the counsel for the defendants could not cite

any law but contended that it was so in the present case owing to the peculiar

facts, of the late Shri Ravi Keshwani being joint in business with the plaintiff

and of Shri Ravi Keshwani suffering from health problems. Upon it being yet

further enquired from the counsel for the defendants as to why Shri Ravi

Keshwani could not purchase the property in the name of his wife i.e. the

defendant no.1 or his children i.e. the defendants no.2&3, if at all he wanted

to save stamp duty or for any other reasons did not want the property in his

own name, it is stated that since the defendant no.1 is an illiterate, Shri Ravi

Keshwani did not deem it appropriate to save 2% stamp duty by purchasing

the property in the name of the defendant no.1. On yet further enquiry from

the counsel for the plaintiff as to why, if Shri Ravi Keshwani was the benami

owner of the entire property, did he desire a Gift Deed of the basement and

the second floor only in the name of the defendants, the counsel contended

that since Shri Ravi Keshwani anticipated disputes after his lifetime, to avoid

the same he wanted the plaintiff to execute a Gift Deed of the basement and

the ground floor in favour of the defendants and had even purchased the

stamp papers for the same and which have been proved in evidence.

10. I will now proceed to discuss the evidence recorded, to adjudicate

whether the defendants, in evidence, have made good the contentions raised.

11. The plaintiff in her affidavit by way of examination-in-chief inter alia

deposed that her husband Shri L.H. Keshwani died intestate leaving the

plaintiff, Shri Sanjay Keshwani and Shri Ravi Keshwani as his only legal

heirs and all of whom were also the members of L.H. Keshwani HUF; that

Shri L.H. Keshwani besides the Mayfair Garden property left Bank Accounts,

FDRs, shares, debentures and bonds either in his own name or in the name of

L.H. Keshwani HUF and all of which were jointly and equally inherited by

the plaintiff, Shri Sanjay Keshwani and Shri Ravi Keshwani. The plaintiff

also proved, the certified copies of the plaint, written statement and the

compromise arrived at in CS(OS) No.984/2004 as Ex.PW1/1 to Ex.PW1/7,

the Sale Deed of the Mayfair Garden property as Ex.PW1/8; the Purchase

Deed of the Sarva Priya Vihar property as Ex.PW1/9. The plaintiff also

proved payment of the sale consideration of Rs.65 lacs for the Sarva Priya

Vihar property, of Rs.40 lacs from her own bank account and of Rs.25 lacs

from the bank account of her son Shri Sanjay Keshwani. The plaintiff

otherwise supported her case in the plaint and deposed of the nuisance being

caused by the defendants to the plaintiff‟s residence on the ground floor of the

property. A site plan of the basement and second floor and terrace of the

Sarva Priya Vihar property qua which relief is claimed was proved as

Ex.PW1/16.

12. The Deed of Sale of the Mayfair Garden property shows the sale

consideration thereof to have been received equally by the plaintiff, Shri

Sanjay Keshwani and Shri Ravi Keshwani.

13. The contents of plaint in CS(OS) No.984/2004 show the relationship of

Shri Ravi Keshwani with the plaintiff and Shri Sanjay Keshwani to have been

acrimonious,with Shri Ravi Keshwani having also filed a suit for permanent

injunction against Shri Sanjay Keshwani; CS(OS) No.984/2004 was of

partition, not only of the Mayfair Garden property but also of the other estate

aforesaid left behind by Shri L.H. Keshwani as well as the assets of L.H.

Keshwani HUF.

14. The written statement filed by Shri Ravi Keshwani in CS(OS)

No.984/2004 shows that the said suit was not a collusive suit and there were

indeed disputes between the plaintiff and Shri Sanjay Keshwani on the one

hand and Shri Ravi Keshwani on the other hand.

15. As per the compromise arrived at in CS(OS) No.984/2004, the entire

estate of Shri L.H. Keshwani including the assets of L.H. Keshwani HUF

were equally distributed between the plaintiff, Shri Sanjay Keshwani and Shri

Ravi Keshwani.

16. In CS(OS) No.984/2014, in terms of the compromise/settlement a

preliminary decree was passed declaring the share of the plaintiff, Shri Sanjay

Keshwani and Shri Ravi Keshwani in the estate of late Shri L.H. Keshwani

and in L.H. Keshwani HUF as 1/3rd each and a final decree also passed in

terms of the settlement.

17. The plaintiff, in cross examination by the counsel for the defendants

denied the suggestion that the total purchase price of the Sarva Priya Vihar

property was Rs.1.5 crores and that besides Rs.65 lacs paid vide cheques, the

balance was paid in cash and further denied the suggestion that Shri Ravi

Keshwani had contributed in the purchase price of the Sarva Priya Vihar

property or that there was any understanding that in lieu thereof he would get

basement, second floor and terrace of the Sarva Priya Vihar property.

18. The defendant no.1 in her affidavit by way of examination-in-chief,

besides reiterating the contents of the written statement, deposed that though

she had lodged several complaints against the plaintiff and Shri Sanjay

Keshwani but was always persuaded to, in the interest of the family, withdraw

the same; she referred to number of documents primarily showing possession

of the property and the passbook of the bank account of Shri Ravi Keshwani

and the photocopies of the stamp paper bought by Shri R.K. Keshwani for

execution of a Gift Deed for transfer of the basement and second floor of the

property in the name of the defendants but while tendering the affidavit into

evidence merely stated "I rely upon the documents which are mentioned in

my affidavit" and did not prove or give exhibit marks to any of the

documents. The learned Joint Registrar, in order dated 23rd November, 2012

observed that except for one Police complaint dated 2 nd March, 2005, all other

documents referred to in the affidavit by way of examination-in-chief were

photocopies and accordingly gave the Police complaint Ex.DW1/1 and

marked the other documents as mark „A‟ to mark „M‟. In cross examination

the defendant no.1 deposed (i) that her husband Shri Ravi Keshwani had paid

various cash amounts to the plaintiff for purchase of the Sarva Priya Vihar

property and the plaintiff had issued cheques in the name of the vendor of the

said property out of the said monies given in cash by Shri Ravi Keshwani (she

however admitted that this fact had not been disclosed in the plaint); (ii) that

Shri Ravi Keshwani had given an amount of Rs.80 lacs in cash to the plaintiff

in her presence but could not give the date thereof and admitted that she had

not conveyed so to her Advocate at the time of drafting the written statement;

(iii) that the said cash had been received by her husband as his share of the

cash consideration received for the sale of the Mayfair Garden property.

19. DW2 ASI from Police Station Hauz Khas, New Delhi proved the

complaint dated 2nd March, 2005 as Ex.DW1/1. DW3 Manager from UCO

Bank proved that Shri Ravi Keshwani had made payment of Rs.35 lacs and

Rs.25 lacs vide cheques dated 13th March, 2006 to M/s Ambience Projects

Ltd. The witness, to examine whom the counsel for the defendants wanted an

opportunity was in fact disclosed to be the Director of M/s Ambience Projects

Ltd. namely Shri Raj Singh Gehlot, who according to the counsel for the

defendants had agreed to in lieu of cheques of Rs.35 lacs and Rs.25 lacs

received by M/s Ambience Projects Ltd. from Shri Ravi Keshwani, give and

had given cash of equivalent amount to Shri Ravi Keshwani and which cash

according to the counsel for the defendants, Shri Ravi Keshwani had given to

his mother. DW4 Shri Rohit Nanda deposed that he was a friend of Shri Ravi

Keshwani and Shri Ravi Keshwani had told him that he wanted to transfer the

second floor and basement of the Sarva Priya Vihar house in the names of the

defendants no.2&3 and that he had also purchased the stamp papers for the

said purpose. In cross examination he admitted he had not seen whether Shri

Ravi Keshwani was the owner of the said floors.

20. I may mention that though the counsel for the defendants was not

aware but the defendants had filed a list of witnesses and the said Shri Raj

Singh Gehlot is mentioned therein.

21. As the a narrative itself would be sufficient to show, the defendants

have utterly failed to prove that the plaintiff was the trustee of Shri Ravi

Keshwani or otherwise standing in a fiduciary capacity vis-à-vis Shri Ravi

Keshwani or that the plaintiff was holding the Sarva Priya Vihar property for

the benefit of Shri Ravi Keshwani. Not only so, the defendants have also

failed to prove the reason given for the plaintiff being the trustee or standing

in a fiduciary capacity vis-à-vis her adult son Shri Ravi Keshwani. The

defendants have failed to prove that the plaintiff and Shri Ravi Keshwani

were joint in business. The defendants have failed to prove that there was any

trustee or fiduciary relationship owing to Shri Ravi Keshwani having any

health problems. The defendants no.1 in her cross examination admitted to

have studied till the VIIIth class. Illiteracy is different from understanding.

There is no presumption that an illiterate person is incapable of looking after

his or her affairs or lacks in understanding sufficient for holding, owning and

enjoying the property. The defendant no.1, from a perusal of her cross

examination, does not come across as a person lacking in such understanding.

The 2% saving in stamp duty on account of acquiring the property in the

name of a woman, cannot be said to be a reason for Shri Ravi Keshwani

acquiring the property in the name of the plaintiff. The said stamp duty could

have been saved even by acquiring the property in the name of the defendant

no.1.

22. The plea of "trusteeship" and "fiduciary relationship" is also

demolished from the acrimonious relationship between the plaintiff and Shri

Ravi Keshwani as borne out from the pleadings in CS(OS) No.984/2004 as

aforesaid noticed. The plaintiff and Shri Ravi Keshwani along with the

defendants, though were residing together in the Mayfair Garden house but

the same was sold owing to the differences between them. So much so that

the HUF which existed was disrupted and its assets partitioned. When the

plaintiff and Shri Ravi Keshwani had parted on such a note, is unbelievable

that Shir Ravi Keshwani would even then acquire a property in the name of

the plaintiff.

23. Even otherwise the pleas of the defendants are replete with

inconsistencies. A case was made out as if Shri Ravi Keshwani was the

benami owner of the entire Sarva Priya Vihar property and had paid the entire

sale consideration therefor. Subsequently it was stated that he had paid Rs.80

lacs therefor. The proof sought to be given is of 60 lacs only. The defendants

have failed to prove payment of any monies by Shri Ravi Keshwani for

purchase of the Sarva Priya Vihar property; on the contrary the plaintiff has

proved the payment of the entire purchase consideration of Rs.65 lacs thereof

from her own bank account and from the bank account of her other son Shri

Sanjay Keshwani. The defendant no.1 herself shied from deposing that Shri

Raj Singh Gehlot, Director of M/s Ambience Projects Ltd. had given cash to

Shri Ravi Keshwani in lieu of cheques of Rs.35 lacs and Rs.25 lacs credited in

the account of M/s Ambience Projects Ltd. from the cheques issued on the

bank account of Shri Ravi Keshwani. Had she herself deposed so, she could

have been cross examined whether Shri Ravi Keshwani or the defendants had

made any claim against M/s Ambience Projects Ltd. with respect to the said

monies. All that can be observed though not argued by the counsel for the

defendants is that the sale by the plaintiff, Shri Sanjay Keshwani and Shri

Ravi Keshwani of the Mayfair Garden property was to Smt. Sheela Gehlot

wife of Shri Raj Singh Gehlot. It is well nigh possible that Shri Ravi

Keshwani, besides the transaction of sale of the Mayfair Garden property had

other transactions also with the said Shri Raj Singh Gehlot. Even otherwise,

this Court cannot take cognizance of such contentions without any basis of

cash having been received in lieu of payments made in cheque.

24. The plaintiff otherwise has proved that she is the owner of the entire

Sarva Priya Vihar property. The defendants pleaded having right to the said

property as benami owners but have failed to prove the same. The plaintiff is

thus entitled to a decree for recovery of possession of the basement, second

floor and terrace of 5/30, Sarva Priya Vihar, New Delhi as shown in red

colour in the site plan Ex.PW1/16.

25. As far as the claim for mesne profits is concerned, though undoubtedly

no independent evidence of the prevalent rates of rent in the locality has been

led by the plaintiff but at the same time the defendants in their evidence are

also quiet in this respect. Judicial notice can be taken of Sarva Priya Vihar

being a prime residential colony of South Delhi and of the rents prevailing in

such localities for the basement and second floor being not less than

Rs.25,000/- per month in all, if not separately for each of the said floors. The

plaintiff is thus found entitled to a decree for recovery of mesne profits at the

said rate of Rs.25,000/- per month also w.e.f. the date of the institution of the

suit i.e. 29th April, 2009 till the date of delivery of possession. However in an

attempt to make the defendants who are none other than the widow and the

children of the deceased son of the plaintiff still see reason, it is made

expedient to make the said decree for recovery of mesne profits conditional

upon the defendants not vacating the said basement, second floor and terrace

within three months from today.

26. Accordingly, a decree is passed in favour of the plaintiff and against the

defendants (i) for recovery of possession of basement, second floor and

terrace of property No. 5/30, Sarva Priya Vihar, New Delhi as shown in red

colour in the site plan Ex.PW1/16; (ii) for recovery of Rs.25,000/- per month

w.e.f. 1st May, 2009 till the date of delivery of possession; (iii) however if the

defendants vacate and deliver vacant peaceful physical possession of the said

basement, second floor and terrace to the plaintiff within three months from

today, the decree for recovery of mesne profits shall stand satisfied and shall

not be executable by the plaintiff; and, (iv) if the defendants vacate the

premises as aforesaid within three months, the plaintiff would not be entitled

to any costs, else the plaintiff shall also be entitled to costs of the suit.

Counsels fee assessed at Rs.25,000/-.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J'

FEBRUARY 21, 2014 pp ..