Daljeet Singh Anand vs Harjinder Singh Anand
2014 Latest Caselaw 1659 Del

$~ 50.
*        IN THE HIGH COURT OF DELHI AT NEW DELHI
+        CS(OS) 482/2006

%                                          Judgment dated 27.03.2014

         DALJEET SINGH ANAND                 ..... Plaintiff
                  Through: Mr.G.P. Thareja, Advocate along with plaintiff.

                             versus

         HARJINDER SINGH ANAND       ..... Defendant
                 Through: Mr.Peeyush Kalra and Mr.Sundhindra Tripathi,
                           Advocates

         CORAM:
               HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL)
CS(OS)No.482/2006
1.

Plaintiff has filed the present suit for partition. Evidence stands concluded by the parties. As per the plaint, plaintiff and defendant are sons of Sh.Kulwant Singh Anand and are joint owners of the property bearing No.B-1/37, Ashok Vihar, Phase-II, Delhi, (hereinafter referred to as 'the suit property'). Plaintiff and defendant are in joint possession of the suit property. It is also the case of the plaintiff that they (plaintiff and defendant) are joint owners (50% share each) by virtue of a conveyance deed dated 15.5.1996 executed in their favour and duly registered with the office of Sub-Registrar, Delhi.

2. The suit property comprises of a two storeyed residential building built on a plot of land measuring 400 sq.yd. The plaintiff is in occupation and possession of the entire first floor of the suit property as per the site plan filed along with the plaint and the defendant is in occupation of the

ground floor, as detailed in the site plan. Both the parties are using the common areas in the nature of entry gate, drive way, stair-cases, open places on the front and rear side etc. As relations between the families were not cordial, the plaintiff called upon the defendant on 26.1.2006 that he did not wish to keep the property joint and wanted the property to be amicably divided amongst them equally by metes and bounds and further demanded the division of the common portions, but the defendant did not pay heed to the same, which has led to the filing of the present suit.

3. The written statement has been filed by the defendant wherein it has been denied that the parties are joint owners of the suit property or they are in joint possession of the same. The stand of the defendant is that the property belongs to the father of the parties and the parties are residing in the suit property, as per the permission granted by the father out of love and affection to occupy the same.

4. It is also the stand of the defendant that the constructive possession of the property is still with the father of the parties. The defendant has expressed ignorance about the conveyance deed dated 15.5.1996 in favour of the plaintiff and the defendant. It is submitted that the conveyance deed is a fraud played by the plaintiff upon his old and uneducated father, whereby he got the suit property transferred in the name of the plaintiff and the defendant. It is submitted that in the year 1996 plaintiff had been assigned the job of getting the property converted from lease-hold to free- hold by their father. All original documents were handed over to the plaintiff and on the pretext of getting the property converted the plaintiff got certain documents signed from his father. The defendant and the father went to the office of the DDA where the plaintiff was present and later on it was revealed that a conveyance deed was fraudulently got executed by the plaintiff in favour of the parties and in view thereof since

a fraud has been played, the transaction and the conveyance deed are liable to be declared void and cancelled.

5. The defendant in the written statement has also stated that the property in question was bought as a plot of land by Shri Kulwant Singh Anand (father) from one Shri Harcharan Singh, son of Shri Harnam Singh out of the partnership funds. Since the plot of land was a lease hold property, the owner had sold it by way of a power of attorney sale specifically authorizing Shri Kulwant Singh Anand to further sell / transfer the said plot of land. After buying the said plot of land, Shri Kulwant Singh Anand constructed a house on the said plot of land out of his own funds. It is also stated that till date, the property tax of the property is in the name of Shri Kulwant Singh Anand. Similarly, the electricity and water connections are also in the name of Shri Kulwant Singh Anand. It is also stated that the father of the parties, out of natural love and affection, had permitted the plaintiff and the defendant to occupy the said house and stay there with their families. The occupation of the property in question by the plaintiff and the defendant is a permissive occupation and the constructive possession of the property still remains with the father of the parties, Shri Kulwant Singh Anand.

6. On 3.3.2008 the following issues were framed:

(i) Whether defendant proves that any documents, as claimed by him, were procured through fraud, by the plaintiff?

(ii) Whether the plaintiff proves entitlement to any share in the property and, if so, to what extent?

(iii) Whether plaintiff proves that he is entitled to a decree for partition, as claimed?

7. By an order dated 29.1.2009 the defendant was directed to lead evidence

first as onus to prove issue no.(i) was on him. Affidavit by way of evidence has been filed on behalf of defendant, Sh.Harjinder Singh Anand, Ex.DW-1/A. The defendant has deposed on the lines of his written statement. As per the evidence of DW-1 the suit property belongs to the father of the parties. The conveyance deed (Ex.P-1) executed in favour of the parties is a fraud played upon by the plaintiff on his old and uneducated father and the plaintiff betrayed the trust reposed by the father in him. The signatures were obtained by fraud and misrepresentation under the grab of getting the documents signed for conversion of the property from lease-hold to free-hold. It has also been testified that the suit property was bought as a plot of land by their father from one Shri Harcharan Singh son of Shri Harnam Singh out of the funds of the father. Being a lease-hold plot the owner sold it by way of power of attorney specifically authorizing Shri Kulwant Singh Anand [father], to further sell / transfer the said plot of land.

8. DW-1 has further testified that Shri Kulwant Singh Anand constructed the house on the said plot of land out of his own funds and resources and out of natural love and affection, allowed the parties to stay at the suit property along with their families. Defendant has admitted the water bill dated 28.7.2006, Ex.P-7, as a matter of record. It was clarified that the water connections in the name of the defendant and the plaintiff were got installed with the permission of their father. The plan submitted to the MCD, Ex.P-8 dated 21.10.1997 and letter dated 21.10.1997 Ex.P-12 from MCD granting sanction to construct the property was admitted. It has also been deposed by the defendant that Ex.P-9, Ex.P-10 and Ex.P-11 dated 17.6.1996 are the documents filed by the plaintiff relating to mutation of the suit property, which have also been admitted as a matter of record, however, the deponent has clarified that the work in relation to

the suit property was assigned by the father to the plaintiff, who used to keep all the papers. Same explanation has been rendered while admitting Ex.P-13 and Ex.P-14 being property tax returns of the suit property. This witness was cross-examined at length.

9. During cross-examination the defendant admitted that he was staying in the suit property, as a owner since the year 1983. During cross- examination, the defendant admitted his signatures on the documents but stated that the documents were signed by him on the asking of his father. He continued to state that the suit property was purchased out of funds of his father and he did not pay any money for the suit plot. He admitted as correct that his father never lived in the suit property. He further stated that he did not remember whether the DDA had issued a conveyance deed in his name and in the name of the plaintiff on 15.5.1996, although, he admitted his signatures as correct on Ex.P-1. He also admitted that at internal page 4 of the schedule to the conveyance deed at points 'A' and 'B' blanks were filled up by him in his own hand writing at the DDA office. A specific question was put, which is reproduced below:

Q. I put it to you that your allegation that your signatures were taken by fraud and misrepresentation in the grab of getting the property converted from lease to free hold is false.

A. I do not remember.

10. It may also be noticed that most of the questions put to this witness were answered by saying that he did not know. Affidavit by way of evidence was also filed by the father of the parties, wherein he testified that he is

the owner of the suit property and he had purchased the land from one Shri Harcharan Singh. After the plot was purchased, he constructed a house, out of his own funds and further he is paying property tax; and in the year 1996 he wanted to get the property converted from lease-hold to free-hold, but he never intended to execute the documents by which the conveyance deed was executed in favour of his sons. During the cross- examination, father DW-2 admitted that he never resided in the suit property; he could not recall when the suit property was purchased, he could not remember the name of the seller; he could not state as to how much amount was spent on the construction. He admitted that he had not filed the income-tax return showing the expenditure on construction.

11. Affidavit by way of evidence has also been filed by Daljeet Singh Anand, the plaintiff herein, who has also deposed on the lines of the plaint. He has deposed that the perpetual lease deed dated 29.4.1978 has been admitted by the defendant and has been exhibited as Ex.P-2 on 13.11.2006. Daljeet Singh Anand has deposed in his affidavit that the land under the suit property was allotted to one, Shri Harcharan Singh, son of Shri Harnam Singh, resident of 44, Pusa Road, New Delhi, by Delhi Development Authority under Perpetual Lease dated 29.4.1978 exhibited as Ex.P-2 on 13.11.2006. The said Shri Harcharan Singh (Original allottee) had executed agreement dated 04.09.1978 in his favour and in favour of defendant for construction of house on the said plot of land. The said agreement was duly registered in the Office of Sub- Registrar, Kashmere Gate, Delhi, exhibited as Ex.P-3 on 13.11.2006.

12. It has further been deposed by the plaintiff that Shri Harcharan Singh (Original allottee) had received a sum of Rs.48,000/- (Rupees Forty eight thousand) contributed equally by the plaintiff and defendant on 04.09.1978 under registered receipt, exhibited as Ex.P-4. The said receipt

was duly registered in the Office of the Sub-Registrar, Kashmere Gate, Delhi, on 04.09.1978. The sum of Rs.48,000/- was paid by him and the defendant in equal shares by two pay orders/drafts of Rs.24,000/- each favouring Shri Harcharan Singh (Original allottee). He further deposed that the original income tax order showing the amount of Rs.24,000/- paid to Shri Harcharan Singh (the original allottee) by him from his own funds and resources, i.e. his Savings Bank A/c No.12587 with Bank of India, Kamla Nagar, Delhi-7.

13. Shri Harcharan Singh (Original Allottee) had executed a Will dated 04.09.1978 (Ex.P-5) in his favour. The said Will was duly registered in the Office of the Sub-Registrar, Kashmere Gate, Delhi. Shri Harcharan Singh (Original Allottee) had executed General Power of Attorney dated 04.09.1978 in favour of Shri Kulwant Singh Anand, father of the plaintiff and defendant. The said General Power of Attorney was duly registered in the Office of the Sub-Registrar, Kashmere Gate, Delhi (Ex.P-6). By virtue of the said Power of Attorney Shri Kulwant Singh Anand had to complete the sale of the plot of land under suit property in his favour and in favour of the defendant, if required. Thereafter he and the defendant constructed a double-storeyed house, in part, during the year 1980-1982 at a cost of Rs.1,72,500/- which was contributed by him and the defendant in equal shares. His share of the expenditure was duly shown by him in his income tax returns for those periods.

14. The aforesaid part of the construction was seen by Shri Harcharan Singh (Original Allottee) who was party to Ex.P-3, the construction agreement. He rejected the nature of construction and did not like to enter into obligation of any further financial help in the construction of house. He rejected the construction already made and told the parties that the plot of land be treated as sold to him and the defendant for a sum of Rs.48,000/-

which had already been paid by them as security. The aforesaid view of sale was confirmed by him in writing dated 15.3.1983. He identified his signatures on the said document which had been put at Point 'A' in his presence. The said document is exhibited herein as Ex.PW-1/1.

15. It has also been deposed by the plaintiff that thereafter he and defendant put up further construction on the said plot of land during the years 1999- 2000 at a cost of Rs.2,25,000/- with their personal funds contributed equally by both. The expenditure incurred by him was duly shown by him in the income tax returns of the relevant years. No part of the money spent on the construction of entire house in two phases had been routed through or paid by Shri Kulwant Singh Anand, the father. Shri Kulwant Singh Anand, father of the parties, was the attorney of Shri Harcharan Singh (Original Allottee) and he continued to act in that capacity whenever the necessity arose.

16. It has further been deposed by the plaintiff that after the completion of second phase of construction as per rules and sanctioned plans by Delhi Municipal Corporation, he and defendant decided that the plot of land, on which house was constructed, be got converted as freehold property from DELHI DEVELOPMENT AUTHORITY (Lessor). In pursuance of the said decision Shri Kulwant Singh Anand as attorney of Lessee Shri Harcharan Singh (Original Allottee) was to submit requisite application in the Office of DELHI DEVELOIPMENT AUTHORITY. Application to that effect duly signed by Shri Kulwant Singh Anand as attorney of Shri Harcharan Singh (original allottee) was submitted in the office of DELHI DEVELOPMENT AUTHORITY on 31.3.1993. The entire money paid to DELHI DEVELOPMENT AUTHORITY from the time of submitting the aforesaid application up to the date of conversion of the property as freehold was paid by him and defendant equally and directly to DELHI

DEVELOPMENT AUTHORITY.

17. It has also been deposed that a communication was received from DELHI DEVELOPMENT AUTHORITY to attend its office on 15.5.1996 for executing the freehold conveyance deed. The said communication was sent to Shri Kulwant Singh Anand who had submitted the application as attorney of Shri Harcharan Singh (Original Allottee). Sh.Kulwant Singh Anand confirmed with the plaintiff and the defendant about the date and time for reaching the Office of DELHI DEVELOPMENT AUTHORITY to complete the formalities.

18. It has further been deposed that on 15.5.1996, he reached the office of DELHI DEVELOPMENT AUTHORITY at the given time along with Shri Kulwant Singh Anand and the defendant. He, his father and the defendant went to the concerned officer who took out the file containing the relevant documents for conversion. In the Conveyance Deed dated 15.5.1996 Shri Kulwant Singh Anand voluntarily signed at the place meant for his signatures in his capacity as attorney of Shri Harcharan Singh (Original Allottee). Plaintiff and the defendant signed at the places meant for the purchasers. The defendant had filled up certain blank columns in his own handwriting which were required to be filled. The said fact has been admitted by him in his cross-examination. After completing these formalities document was delivered to the parties, being the purchasers for presentation of the same in the office of Sub-Registrar concerned.

19. It has next been deposed that on 21.05.1996, plaintiff along with his father and defendant went to the Office of Sub-Registrar, Pitampura, Delhi for Registration of said Conveyance Deed dated 15.5.1996. The said document was presented in the office of Sub-Registrar, Pitampura, Delhi. Plaintiff, his father and defendant duly appeared before the Sub-Registrar

and Conveyance Deed was duly registered and was given to the purchasers, i.e., plaintiff and the defendant.

20. Plaintiff further deposed that the suit property is provided with two water connections bearing nos.946 and 947, out of which connection no.947 stands in the name of the plaintiff in the records of Delhi Jal Board and is meant for first floor. The said first floor has been and still is in his and his family's occupation since the date of construction in both phases. Water Connection No.946 is meant for ground floor which is in occupation of defendant and his family since the date of construction. The water charges claimed under Bill dated 28.7.2006 in respect of water connection No.946 were paid by the defendant. The said bill has been exhibited as Ex.P-7.

21. Plaintiff has further deposed that Shri Kulwant Singh Anand resides in H.No.D-13A/16, Model Town, Phase-II, Delhi, as owner and never lived in or occupied any portion of house No.B-1/37, Ashok Vihar, Phase-II, Delhi -110 052 which is the suit property. Building plans of the suit property were sanctioned in favour of the parties (Ex.P-8). The sanction letter of Municipal Corporation of Delhi has been exhibited as Ex.P-12.

22. Mr.Daljeet Singh Anand has also deposed that he and the defendant had filed an application under their signatures (Ex.P-9) in the Office of Municipal Corporation of Delhi for mutation. Parties had filed Indemnity Bond dated 17.6.1996 (Ex.P-10). Separate affidavits were also filed with Ex.P-9 which have been exhibited as Ex.P-11.

23. Plaintiff has also deposed that the defendant had filed self-assessment property-tax return (Ex.P-13) dated 17.3.2006 for ground floor of the suit property for the year 2004-2005 and 2005-2006 in the office of Municipal Corporation of Delhi. The said return was filed by defendant on his own as a Joint owner of suit property. The defendant paid property tax vide receipt No.437025 dated 17.3.2006 (Ex.P-14). Original Income Tax

Assessment Order dated 30.09.1982 (Ex.PW-1/3) for the Assessment Year 1979-80 in which consideration of Rs.24,000/- was paid by plaintiff to Shri Harcharan Singh has been placed on record.

24. The original water bills received by plaintiff from Delhi Jal Board in respect of water connection No.947 for the first floor and paid by plaintiff for the years 2002 and 2006, have been exhibited as Ex.PW-1/4 and Ex.PW-1/5, respectively. After getting electricity supply through K.No.32300123703D in the suit property, the original bill was received by plaintiff and paid by him (Ex.PW-1/6).

25. Plaintiff has also placed on record original property tax receipt dated 24.01.1981 for the land under the suit property in the name of Shri Harcharan Singh (Original Allottee), as exhibit Ex.PW-1/9. The amount of tax mentioned in the receipt had been paid by him and the defendant in equal shares.

26. PW-1 has further deposed that he had filed self-assessment property tax return for the first floor of the suit property for the year 2004-05 and 2005-06 in the office of Municipal Corporation of Delhi. The house tax receipt no.2277812 dated 7.3.2006 for the amount of Rs.4399.00 related to year 2004-05 in his name has been exhibited as Ex.PW-1/12.

27. The house tax receipt no.2277813 dated 7.3.2006 of the amount of Rs.4399.00 related to the year 2005-06 in his name is exhibited as Ex.PW-1/13.

28. Certified copy of record of DELHI DEVELOPMENT AUTHORITY in respect of application dated 31.03.1993 of Sh.Kulwant Singh Anand as attorney of Harcharan Singh (Original Allottee), for making the property free hold was also proved by showing him the original record summoned from the Office of DELHI DEVELOPMENT AUTHORITY. Sh.Kulwant Singh Anand had admitted his signatures on the application submitted by

him. The certified copy of that application is Ex.PW-1/16 (Colly).

29. The onus to prove issue no.(i) was fixed on the defendant. Issue no.(i) reads as under:

(i) Whether defendant proves that any documents, as claimed by him, were procured through fraud, by the plaintiff?

30. The stand taken by the defendant is that the suit property was purchased by the father of the parties out of his funds and resources, construction was carried out by the father by his funds and resources and the plaintiff and defendant are residing in the suit property with the permission of their father. It is also the stand of the defendant that a conveyance deed was issued in favour of the plaintiff and the defendant jointly and the plaintiff breached the trust reposed in him by the father. The father was made to sign the documents without explaining to him the contents of the documents.

31. On careful examination of the evidence of the defendant and the father of the parties, who has supported the stand of the defendant, I find that their testimonies are not reliable on the face of the documentary evidence placed on record by the plaintiff. It is not in dispute that as per the conveyance deed dated 15.5.1996 the plaintiff and the defendant are the joint owners of the suit property. It is not in dispute that the suit property was purchased way back in the year 1978 from one Sh.Harcharan Singh, by means of an agreement which was duly registered in the office of Sub- Registrar, Kashmere Gate, Delhi (Ex.P-3) for a sum of Rs.48,000/-. The receipt, Ex.P-4, was also registered in the office of Sub-Registrar on 4.9.1978 by both the parties, which is evident upon reading of the admitted document, Ex.P-4. The plaintiff has deposed that 50% of

Rs.48,000/- i.e. Rs.24,000/- was paid by him from his savings bank account No.12587, Bank of India, Kamla Nagar, New Delhi. A Will was executed by the seller in favour of the plaintiff duly registered with the Sub-Registrar on 13.11.2006 (Ex.P-5). Construction was jointly carried out by the plaintiff and the defendant. The plaintiff also reflected the costs and expenditure on construction in his income-tax returns. The plaintiff has also deposed that after the house was constructed, application was made for conversion of the property from lease-hold to free-hold. The application was signed by the father of the parties, although the amount for conversion was paid by the parties jointly. The DDA informed the father of the parties, who had made the application for conversion being the GPA holder, to attend its office on 15.5.1996, when the parties jointly visited the office along with their father. The father of the parties signed the relevant documents, the defendant filled up the blank columns in his own hand writing, which is admitted by him during cross-examination. It has also been testified that on 21.5.1996 the parties along with their father went to the office of the Sub-Registrar, Pitampura for registration of the conveyance deed, which was duly presented. The documents on record further reveal that two water connections were provided in the suit property in the name of the parties; the water bills have been admitted. The parties jointly sought sanction of building plan (Ex.P-8) and the sanction letter (Ex.P-12) was received. Both the parties made an application under their signatures to the office of Municipal Corporation of Delhi for mutation of the property (Ex.P-9); parties signed indemnity bond dated 17.6.1996 (Ex.P-10); the affidavit dated 17.6.1996 duly attested by Notary Public for mutation of the property (Ex.P-11). The defendant had filed his self-assessment of property-tax for the years 2004-05 and 2005-06. The property-tax return has been admitted by the

defendant as Ex.P-13. Receipt of the tax paid has been admitted as Ex.P-

14. The plaintiff has also proved the income-tax assessment order dated 30.9.1982 with respect to the assessment year 1979-80, in which consideration of Rs.24,000/- was paid by him to the seller (Shri Harcharan Singh) Ex.PW-1/3. Water bills and electricity bills have also been proved by the plaintiff. Plaintiff has been able to prove that he has been paying the house-tax and the house-tax was assessed by him in his individual capacity.

32. Although the defendant and his father have claimed that the property was purchased by the funds of the father and the construction was also carried out by the father out of his funds and resources, not a single document has been placed on record in support thereof.

33. It may also be noticed that the father of the parties had filed a suit No.583/2009 for declaration and permanent injunction with respect to the suit property. The father had sought a declaration that the conveyance deed dated 15.5.1996 issued in favour of his son be declared as null and void. The aforesaid suit was dismissed on 21.1.2013, to which no appeal has been filed. Thus the aforesaid decision has attained finality.

34. In the light of the documents, as detailed above and in contrast bald assertions made by the defendant, in my view the defendant has been unable to discharge the onus fixed on him to prove issue (i). The stand of the defendant is unacceptable and unbelievable. Evidence also shows that both the parties are in exclusive settled possession of their respective portions. Both parties have separate water and electricity connections. Both parties are separately assessed to house tax and all payments are being made by them. Documents placed on record also prove that the building plans were sanctioned on an application jointly made by the parties and construction was carried out by them. Since the defendant has

failed to prove issue no.(i) and in the light of the documents placed on record, the plaintiff has successfully discharge the onus fixed on him, to prove issue no.(ii). Accordingly, a preliminary decree is passed defining the shares of the parties as 50% each.

35. List on 10.07.2014 for further proceedings and for appointment of a Local Commissioner to suggest the mode of partition.

(G.S.SISTANI) JUDGE MARCH 27, 2014 ssn