Sh. Gyan Chand & Ors. vs Sh. Ram Chander
2014 Latest Caselaw 1442 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No. 69/2014

%                                             19th March, 2014
SH. GYAN CHAND & ORS.                                    ......Appellants
                  Through:               Mr. Hem Chand Vashist, Adv.




                          VERSUS


SH. RAM CHANDER                                            ...... Respondent

Through:

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 4131/2014 (delay in refiling)

For the reasons stated in the application delay in re-filing is condoned.

CM stands disposed of.

Caveat No.221/2014

No one appears for the caveat. Caveat stands discharged.

RSA 69/2014 & CM Nos. 4129/2014 (U/o 41 R 27 CPC) & CM No. 4130/2014 (stay)

1. This second appeal is filed against the concurrent judgments of the

courts below; of the trial court dated 15.10.2011 and the first appellate court

dated 7.11.2013; by which the suit of the respondent/plaintiff/father for

permanent and mandatory injunction has been decreed with respect to the

property bearing no.B-12, Sawal Nagar, near Sadiq Nagar, New Delhi.

2. The subject suit was filed by the respondent/plaintiff/father on the

ground that the suit property is self-acquired and purchased by him by

means of a registered sale deed dated 28.5.1960. The appellants/sons were

harassing the father/plaintiff and had even threatened to part with

possession, and therefore the subject suit was filed.

3. Appellants/defendants in their written statement took a plea that the

property was an ancestral property which was purchased and built by the

father of the respondent-plaintiff one Sh. Jiwan Ram i.e the property was

owned by Jiwan Ram who is the grand-father of the appellants/defendants.

Appellants/defendants also relied upon a Will of grandfather Sh. Jiwan Ram

registered on 13.6.1975 to contend that the suit property was the property of

the grandfather. The appellants-defendants also took the defence that the

sale deed by which the suit property was purchased by respondent/plaintiff

was a benami transaction and actually it is the grandfather Jiwan Ram who

was the owner of the suit property and consequently, since the property is

ancestral property, appellants/defendants are also co-owners alongwith the

respondent/plaintiff/father.

4. After completion of pleadings, the following issues were framed:-

"(i) Whether the suit property Is not the self-acquired property of the plaintiff and is ancestral property? OPD

(ii) Whether the plaintiff has not paid the requisite court fees alongwith the plaint? OPD

(iii) Whether the plaintiff is entitled to the relief for permanent injunction as prayed for? OPP

(iv) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP

(v) Relief."

5. Issue no.1 has been held in favour of the respondent-plaintiff that the

respondent-plaintiff is the owner of the suit property in view of the sale deed

Ex.PW1/1. While discussing this issue, the trial court holds that the

appellants/defendants failed to prove that the property was a benami

property. The relevant observations with respect to issue no.1 are contained

in paras 6 to 8 of the trial court's judgment and which read as under:-

"Issue no.1:- That onus to prove this issue was on the defendants who have claimed that the suit property is the ancestral property. It is not disputed between the parties that the Sale Deed of the suit property Ex.PW1/1 is in the name of the plaintiff. DW4/defendant no.1 in his cross examination admits that the suit property is in the name of his father and the Sale Deed is also in his name. He also admitted that house-tax is assessed in the name of his father and the house tax was assessed as soon as the property was constructed. This fact means that as per the Sale Deed, plaintiff is the owner of the suit property and the onus was on the defendants to show that it was a benami transaction i.e., property purchased from the ancestral funds in the name of the plaintiff. In this regard, it has been suggested to PW1 in his cross examination that at the time of purchasing of property in 1960, he was working as a Khalasi at a monthly salary of Rs.35/- and therefore, it was not even possible for him to purchase the property from his own funds. These facts have been denied by the witness who has claimed that he was working as a fitter at that time and was having sufficient salary to purchase the property.

7. Ld. counsel for the defendants has strongly argued that through the testimony of DW1 and DW3, the witnesses from the office of plaintiff, it has been proved that at the relevant time plaintiff was working as a Khalasi and drawing a salary of Rs.35/- per month. Further was having a family of 11 members and therefore, it was not possible for him to purchase the property of his own and not only that the plaintiff has filed false affidavit in this regard for which defendants have also moved an application u/s 340 Cr.P.C, but also it has been proved that the property was purchased from the funds of the grand-father of the defendants and therefore, it is an ancestral property.

8. I have given my thoughtful consideration to this arguments but I do not find any force in it for the two reasons. First is that the plaintiff was a government servant as per Ex.DW1/2 w.e.f. 05.05.1944, which means that on the date of the purchase of the property, he was in a government service for the last almost 16 years and he may be earning a salary of only Rs.35/- but in facts and circumstances, that the father of the

plaintiff was also a government servant and was having a handsome salary, it can be possible that plaintiff had saved enough money in these 16 years to purchase the property. Secondly the the documents relied upon by the defendant Ex.DW2/1 i.e., Will of their grand-father shows that the grand- father has given in detail the particulars of the properties owned by him and the properties otherwise in possession of his two sons but he did not say anywhere that the suit property was purchased by the grand-father from his own funds. The grand- father in this Will Ex.DW2/1 has mentioned about the suit property but simplicitor says that this property was constructed by him, if the grand-father mentioned that property no.415/2, Jung Pura is his self-acquired property. The property no.P-42, Sawal Nagar is the property of his elder son namely Narayan Singh and property in dispute in this suit is constructed by him, he could have only well described that the suit property was purchased by him benami in the name of his son i.e., plaintiff before me. This Will is completely silent in respect of the ownership of the property in dispute which means that it was not purchased by grand-father of his own funds and was purchased by the plaintiff of his own as per the Sale Deed Ex.PW1/1. There is another aspect of the matter as to whether the property is ancestral even if purchased benami in the name of the plaintiff in the name of the plaintiff or not. The defendants have claimed that this property was purchased by their grand-father from his retirement benefits. It is not their case that this property is a coparcenary, HUF property or purchased from the funds of their ancestors. Even if it is presumed for the sake of the arguments that property was purchased benami in the name of the plaintiff by his father from his retirement benefits, which in any case are his personal earnings, then the grand-father became the owner of the property as his self-acquired property and is not an ancestral property. The grand-sons who are the defendants before me shall have a right in the property only if they prove that it is a HUF property or coparcenary or ancestral property. They do not have any right, title or interest in the property purchased by their grand-father as long as their own father alive except in a case when the grand-father has executed

the Will in their favour. Admittedly, Ex.DW2/1 does not bequeathed the suit property in favour of the plaintiff or defendants and is completely silent viz-a viz suit property, which means even if it is presumed that this property was purchased benami by the grand-father in the name of the plaintiff. In case the grand-father dies intestate, the suit property shall be inherited by his class I legal heirs as per their shares and defendants do not fall in that category. It is however, clarified that the defendants have failed to prove that property was purchased benami by the grand-father in the name of the plaintiff and therefore, the suit property is the self-acquired property of the plaintiff and not the ancestral property as claimed by the defendants and otherwise also cannot become the ancestral property, even if it was purchased by the grand- father from his own funds and also cannot be HUF or coparcenary property, nor is the case of the defendants. This issue therefore is decided against the defendants and in favour of the plaintiff." (emphasis added)

6. In my opinion, the entire discussion in the aforesaid paras was really

not necessary because after passing of the Benami Transactions Prohibition

Act, 1988, it was not open to the appellants/defendants to raise the plea of

benami. The plea of benami even if was raised, was legally barred from

being considered by virtue of Section 4 of the Benami Act. Therefore, once

the sale deed of the suit property was in the name of

respondent/plaintiff/father, respondent/plaintiff/father has to be held as the

owner of the suit property inasmuch as, it is not the case of the

appellants/defendants that there existed a Hindu Undivided Family (HUF)

between the grandfather Jiwan Ram and the respondent-plaintiff Sh. Ram

Chander. Also it is not the case of the appellants/defendants in the written

statement that the appellants/defendants formed an HUF with their

father/respondent/plaintiff. Further, in law, even assuming for the sake of

arguments, the respondent/plaintiff/father had inherited the suit property

from his father, mere inheritance cannot make the property as an HUF

property unless the property was inherited by the respondent/plaintiff from

his father prior to passing of the Hindu Succession Act, 1956 and which is

not the factual position as the grandfather Jiwan Ram died in 1976. An

ancestral property is not necessarily HUF property This has been held by the

Supreme Court in its judgments in the cases of Commissioner of Wealth

Tax, Kanpur etc. Vs. Chander Sen Etc. AIR 1986 SC 1753 and Yudhishter

Vs. Ashok Kumar AIR 1987 SC 558. Supreme Court in these judgments has

held that after passing of the Hindu Succession Act, 1956, if any property is

inherited by a male person from his paternal ancestor, he inherits the same as

a self -acquired property and not as an HUF property. Nothing has been

shown to me on behalf of the appellants that the appellants/defendants had

pleaded in the written statement that the suit property was inherited either by

Jiwan Ram or the respondent/plaintiff prior to 1956 for the property to

become an HUF property. Appellants/defendants also failed to show that

there was existing an HUF between the respondent/plaintiff and the

appellants/defendants. Therefore, in my opinion, the conclusion of the issue

no.1 is correct, however the real reasons are those which are additionally

given by me in the present judgment.

7. Once the respondent-plaintiff is the owner of the suit property, the

appellants/defendants would only be gratuitous licencees and the suit for

permanent and mandatory injunction would be maintainable against the

appellants-defendants in view of the judgment of the Supreme Court in the

case of Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332 wherein the

Supreme Court holds that it is only a matter of form of a plaint as to whether

the suit is for mandatory injunction or possession and a suit for mandatory

injunction will lie against a licencee by the owner of the property.

8. No other issue is pressed or argued before this Court except as

discussed above.

9. In view of the above, no substantial question of law arises for this

appeal to be entertained under Section 100 CPC and which is therefore

dismissed, leaving the parties to bear their own costs.

MARCH 19, 2014                                VALMIKI J. MEHTA, J.
ib