Delhi High Court
Harjinder Singh Anand vs Daljeet Singh Anand on 15 July, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: July 06, 2015
Judgment Delivered on: July 15, 2015
+ RFA(OS) 141/2014
HARJINDER SINGH ANAND ..... Appellant
Represented by: Mr.Peeyoosh Kalra, Advocate with
Mr.Samyak Jain and Mr.Sudhendra
Tripathi, Advocates
versus
DALJEET SINGH ANAND ..... Respondent
Represented by: Mr.G.P.Thareja, Advocate with
Mr.Surinder Jain, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE MUKTA GUPTA
PRADEEP NANDRAJOG, J.
1. Harjinder Singh Anand : the appellant, and Daljeet Singh Anand : the
respondent are brothers. The name of their father is Kulwant Singh Anand.
In a suit filed by Daljeet Singh Anand, seeking partition of property bearing
Municipal No.B-1/37, Ashok Vihar, Phase II, Delhi - 110052, a preliminary
decree has been passed by the learned Single Judge vide impugned decree
dated March 27, 2014, declaring the share of the two brothers to be 50%
each.
2. Case pleaded by Daljeet Singh is simple. He and Harjinder Singh, by
virtue of a conveyance deed dated May 15, 1996 are the recorded joint
owners of the suit property, partition whereof was not being accepted by his
brother. Relations between the two had soured. Being a two storeyed
building, he was residing on the first floor and his brother on the ground
floor.
3. In the written statement filed by him, Harjinder Singh admitted that
the two brothers were occupying the ground floor and the first floor as
pleaded by his brother and that as per the registered conveyance deed the
two were the recorded joint owners of the property, but claimed that the real
owner was their father and that the conveyance deed was executed by
Daljeet Singh by playing fraud upon their father. He pleaded that the sale
consideration when the plot of land was purchased from one Sh.Harcharan
Singh was from the funds of a partnership. He pleaded that the sale was by
virtue of an agreement to sell and a power of attorney.
4. On the pleadings of the parties following issues were settled:-
"(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?"
5. It is apparent that since title to the suit property as per the registered
conveyance deed being in the name of the two brothers was admitted by
Harjinder Singh, defence had to succeed to non-suit Daljeet Singh and thus
issue No.1 was to be debated between the parties, onus whereof was on
Harjinder Singh inasmuch as he had set up the plea of the conveyance deed
recording he and Daljeet Singh to be the purchasers of the property being the
result of a fraud played upon the father by Daljeet Singh.
6. Overlooking said fact, learned counsel for Daljeet Singh Anand filed
an affidavit by way of evidence towards his examination-in-chief. Since
during admission/denial of the documents filed by the two brothers prior to
settlement of issues Harjinder Singh had admitted 14 documents filed by
Daljeet Singh they were exhibited as Ex.P-1 to Ex.P-14, in his affidavit by
way of evidence filed on January 23, 2009, Daljeet Singh referred to the said
documents as Ex.P-1 to Ex.P-14. He proved 12 more documents and
referred to them in his affidavit as Ex.PW-1/1 to Ex.PW-1/12. But, the said
documents were not formally exhibited because said affidavit by way of
evidence was ignored when it came to light that Harjinder Singh was
required to lead evidence in the affirmative at the first instance. After
Harjinder Singh examined himself and his father as DW-1 and DW-2,
during the deposition which was by way of filing affidavit by way of
evidence, no documents were proved, Daljeet Singh filed another affidavit
by way of evidence towards examination-in-chief on May 01, 2012 in which
apart from referring to the admitted documents as exhibits P-1 to P-14 he
made a reference to the documents Ex.PW-1/12 to which he had referred to
in his affidavit by way of evidence filed on January 23, 2009, he made
reference to a few other documents which had not been filed earlier and
were filed along with the affidavit. In this manner the exhibit marks referred
to in the second affidavit by way of evidence was Ex.PW-1/1 to Ex.PW-
1/16. Unfortunately when the second affidavit by way of evidence was
formally tendered the learned Joint Registrar before whom cross-
examination was recorded remained negligent and did not put the exhibit
mark on the documents. At the stage of final hearing, though not recorded
in any order sheet, but for the reason we would be hereinafter stating, it is
apparent that the exhibit marks put on the documents were as referred to in
the written submissions by learned counsel for Daljeet Singh. It would be
useful to put in a tabular form, the brief content of the document, its exhibit
mark referred to in the affidavit by way of evidence dated January 29, 2009,
the affidavit by way of evidence dated May 01, 2012 as also the written
submissions filed on February 03, 2014. It would be read as under:-
Documents- Referred in the Referred in the As per
evidence by way of evidence by way the mark
affidavit dated of affidavit on the
January 23, 2009 dated May 01, document
and also in written 2012 as- should
submissions dated be-
February 03, 2014
as-
Registered Exhibit P-1 Exhibit P-1
conveyance deed in
favour of the
appellant and
respondent dated
May 15, 1996
Perpetual lease deed Exhibit P-2 Exhibit P-2
dated April 29, 1978
Agreement for Exhibit P-3 Exhibit P-3
construction dated
August 04, 1978
executed by
Harcharan in favour
of appellant and
respondent.
Registered receipt Exhibit P-4 Exhibit P-4
for sale
consideration of
`48,000/- dated
September 04, 1978
Registered Will Exhibit P-5 Exhibit P-5
dated September 04,
1978 executed by
Harcharan in favour
of the appellant and
the respondent.
Registered Power of Exhibit P-6 Exhibit P-6
attorney executed by
Harcharan in favour
of Kulwant Singh.
Original water bill Exhibit P-7 Exhibit P-7
for July 28, 2006.
Plan sanctioned by Exhibit P-8 Exhibit P-8
MCD in favour of
the appellant and
respondent dated
October 21, 1997.
Application for Exhibit P-9 Exhibit P-9
mutation of property
in favour of the
appellant and
respondent dated
June June 18, 1996.
Indemnity bond Exhibit P-10 Exhibit P-10
dated June 17, 1996
for mutation of the
suit property.
Affidavit by the Exhibit P-11 Exhibit P-11
appellant dated June
17, 1996 for
mutation of the suit
property.
Letter dated October Exhibit P-12 Exhibit P-12
21, 1997 by MCD
sanctioning
construction in the
suit property.
Property tax return Exhibit P-13 Exhibit P-13
filed by the appellant
for the year 2004-05,
2005-06 dated
March 17, 2006.
Property tax Exhibit P-14 Exhibit P-14
payment receipt in
favour of the
appellant for the year
2004-05, 2005-06
dated March 17,
2006.
Income tax Exhibit PW-1/1 Exhibit PW-1/3 Exhibit
assessment order PW-1/1
dated September 30,
1982 for the year
1979-80.
Water bill of Delhi Exhibit PW-1/2 Exhibit PW-1/4 Exhibit
Jal Board (DJB) in PW-1/2
the name of the
respondent for the
period June 08, 2002
to August 09, 2002.
Water bill of DJB in Exhibit PW-1/3 Exhibit PW-1/5 Exhibit
the name of the PW-1/3
respondent for the
period May 20, 2006
to July, 13, 2006.
Electricity bill for Exhibit PW-1/4 Exhibit PW-1/6 Exhibit
April 2003 in favour PW-1/4
of the respondent.
Electricity bill for Exhibit PW-1/5 Exhibit PW-1/7 Exhibit
August 29, 2006 in PW-1/5
favour of the
respondent.
Electricity bill for Exhibit PW-1/6 Exhibit PW-1/8 Exhibit
February, 2004 in PW-1/6
favour of the
appellant.
Property tax bill Exhibit PW-1/7 Exhibit PW-1/9 Exhibit
dated January 24, PW-1/7
1981 in favour of
Harcharan Singh.
Property tax Exhibit PW-1/8 Not referred Exhibit
payment receipt PW-1/8
dated November 14,
1990 in favour of
Harcharan Singh.
Property tax Exhibit PW-1/9 Exhibit PW-1/10 Exhibit
payment receipt PW-1/9
dated October 25,
1994 in favour of
Harcharan Singh.
Property tax Exhibit PW-1/10 Exhibit PW-1/11 Exhibit
payment receipt PW-1/10
dated March 08,
2006 in favour of
respondent.
Letter dated March Exhibit PW-1/11 Exhibit PW-1/1 Exhibit
15, 1983 written by PW-1/11
Harcharan Singh in
favour of the
appellant and
respondent.
Plaint of the suit Exhibit PW-1/12 Not referred
filed by the (not mentioned in the
plaintiff/respondent. written submissions.)
House tax receipt for Not referred Exhibit PW-1/12 Not
the year 2004-05. marked as
exhibit
House tax receipt for Not referred Exhibit PW-1/13 Not
a sum of ` 4,399/- marked as
dated March 07, exhibit
2006 for the year
2005- 2006.
Certified copy of the Not referred Exhibit PW-1/14 Not
Order refusing to marked as
grant interim exhibit
injunction against
the respondent dated
December 17, 2009
in case no. 583/2009.
Examination of Not referred Exhibit PW-1/15
Kulwant Singh 2009 (not on record)
in case no. 583/2009.
Certified copy of Not referred Exhibit PW-
Cross examination 1/15A
of Kulwant Singh (not on record)
2009 in case no.
583/2009.
Certified copy of Not referred Exhibit PW-1/16 Not
application dated marked as
March 03, 1993 to exhibit
the DDA for making
property freehold.
7. From Ex.P-3, Ex.P-4, Ex.P-5 and Ex.P-6 it becomes crystal clear that
the owner of the property Harcharan Singh had sold a plot of land bearing
Municipal No.B-1/37, Ashok Vihar, Phase II by executing documents under
which, to evade payment of unearned increase in the price of the land to the
Delhi Development Authority and to evade payment of stamp duty on a
sale-deed, the parties resorted to a stratagem of contrivance, which was very
popular in Delhi. Enter into an agreement to sell. Hand over possession of
the property agreed to be sold. Receive full sale consideration as so
recorded in the agreement to sell. Possession was therefore secured in the
hands of the purchaser who could set up a defence under Section 53-A of the
Transfer of Property Act which enables a party in possession having paid
full sale consideration to retain possession of an immovable property.
Further, an irrevocable power of attorney was obtained by the purchasers
either in their own name or in the name of a close trustworthy relative
empowering him to deal with the subject property.
8. So rampant was the misuse of law that, the Ministry of Urban
Development took a policy decision to regularize all such kinds of sales and
simultaneously conveying a free hold tenure. A conversion charge was
notified. If the original perpetual lessee came forward to pay the said
conveyance charge, on receipt thereof the perpetual lessor would convey a
free hold tenure in the name of the perpetual lessee. If the property had been
transferred under an agreement to sell, will and a power of attorney, upon
the beneficiary applying for conversion of the lease hold tenure to free hold
tenure and paying 33.33% additional conversion charges, the property would
be conveyed into a free hold tenure directly in the name of the purchaser.
Ex.P-1 and Ex.P-2 are evidence that the benefit of the conversion policy was
availed of by Harjinder Singh and Daljeet Singh in whose favour Harcharan
Singh had executed the agreement to sell. Their father Kulwant Singh
Anand in whose favour the power of attorney Ex.P-6 was executed by
Harcharan Singh had to sign the necessary documents. The superior lessor
i.e. the Delhi Development Authority executed the conveyance deed Ex.P-1.
9. Highlighting in the written statement filed by him, Harjinder Singh
merely pleaded that Daljeet Singh played a fraud on their father when Ex.P-
1 was registered, what were the acts done by Daljeet Singh which as per him
constituted fraud was not pleaded. In his deposition filed by means of an
affidavit by way of evidence he simply said that the aged father was taken to
the sub-Registrar's office with the information that his presence was
required for conversion, he deposed no more. Now, this would not be an act
of fraud for the reason indeed, presence of the father was required for the
purposes of conversion inasmuch as the power of attorney Ex.P-6 had been
executed by Harcharan Singh in favour of Kulwant Singh. No document
was proved by him to show that the sale consideration paid to Harcharan
Singh in sum of `48,000/- (Rupees Forty Eight Thousand only) was either
by the father or from the account of any partnership firm. Similarly
Kulwant Singh, except for stating that he was told to come along and visit
the office of the sub-Registrar for purposes of conversion, said no further
and proved no document evincing that either he or any partnership firm paid
the sale consideration to Harcharan Singh. Subjected to cross-examination,
Kulwant Singh evaded reply to specific questions putting fact to him by
generally responding that he did not remember.
10. As regards Daljeet Singh Anand, he deposed facts consistent with
pleadings in his plaint and apart from the 14 admitted documents exhibited
further documents, and relevant would it be to note that apart from the
documents which he had filed before issues were settled between the parties
he made a reference to Ex.PW-1/12, Ex.PW-1/13. Ex.PW-1/14, Ex.PW-15,
Ex.PW-1/15A and Ex.PW-1/16. None of these documents have been
exhibited and we find that the documents referred to as Ex.PW-1/15 and
Ex.PW-1/15A are not even a part of the judicial record.
11. With reference to the proved documents the learned Single Judge has
found that not only are the two brothers the recorded owners of the suit
property as per Ex.P-1 as also evidenced by Ex.P-8 the two were the ones in
whose joint names sanction was granted by the Municipal Corporation of
Delhi to erect a building as also evidenced from Ex.P-9 were the ones who
applied for the mutation of the property in their names in the records of the
Municipal Corporation of Delhi and they were the ones who had submitted
the indemnity bond Ex.P-10. With reference to the property tax returns
Ex.P-13 and Ex.P-14 as also the water bills, electricity bills and income tax
assessment orders Ex.P-1 to Ex.P-10, the learned Single Judge has
concluded that far from the defence discharging the onus, the positive
evidence led by Daljeet Singh warranting a finding to be returned that the
two brothers were the joint owners of the suit property, each having 50%
share therein, resulting in the impugned preliminary decree being passed.
12. Contentions advanced by learned counsel for the appellant in appeal
were:-
(i) The learned Single Judge erred in reading in evidence Ex.PW-1/12,
Ex.PW-1/13 and Ex.PW-1/16 because these documents were not filed by
Daljeet Singh before issues were settled. He surreptitiously inserted the
documents in the judicial record by annexing the same when he filed the
affidavit by way of evidence on May 01, 2012.
(ii) That Daljeet Singh Anand led no evidence to prove the source
wherefrom `48,000/- (Rupees Forty Eight Thousand only) was paid to
Harcharan Singh the seller.
13. Learned counsel urged that under the circumstances the impugned
decree has to be set aside.
14. We deal with the second contention urged.
15. In his deposition, filed in the affidavit by way of evidence, Daljeet
Singh Anand has deposed that he paid `24,000/- (Rupees Twenty Four
Thousand only) utilizing the funds in his saving accounts No.12587 with
Bank of India, Kamla Nagar, Delhi - 110007; requiring his banker to issue a
pay order/demand draft in the name of the seller Harcharan Singh and
debiting his account. It may be true that Daljeet Singh Anand has not
examined any witness of the bank nor has he proved his bank statement of
account, but we find corroboration to his oral testimony on said aspect of the
matter in Ex.PW-1/1 which is the income tax assessment order dated
September 13, 1982 for the assessment year 1979-1980. The same duly
records that the assessee has shown to the satisfaction of the assessing
officer that his sharge towards the sale consideration i.e. `24,000/- (Rupees
Twenty Four Thousand only) was from out of funds lying to his credit in
saving account No.12587 with Bank of India, Kamla Nagar, Delhi - 110007.
Further, being the registered owner of the suit property evidenced by Ex.P-1,
the presumption of law would be that Daljeet Singh was the joint owner of
the property. The onus was on Harjinder Singh to displace the said
presumption. His word of mouth and that of the father of the parties has not
shifted the onus from him to his brother.
16. The second contention advanced in support of the appeal is thus
rejected.
17. Pertaining to the first contention advanced, as we have noted
hereinabove, documents referred to as Ex.PW-1/12 to Ex.PW-1/16 in the
affidavit by way of evidence filed on May 01, 2012 by Daljeet Singh, were
not filed by him before issues were settled between the parties and he never
took any permission from the Court to file the same. We find, as noted
above, that documents referred to as Ex.PW-1/15 and Ex.PW-1/15A are
actually not a part of the judicial record. Document referred to as Ex.PW-
1/14 has not been assigned any exhibit mark. Documents referred to as
Ex.PW-1/12, Ex.PW-1/13 and Ex.PW-1/16, are the three documents referred
to and relied upon by the learned Single Judge, but we find that no exhibit
mark has been put on the said three documents.
18. What has happened before the learned Single Judge is obvious. The
learned Joint Registrar before whom evidence was recorded did not bother
to put any exhibit marks on the documents other than the ones which were
admitted/denied during admission/denial. When written submissions were
filed learned counsel for Daljeet Singh confused the matter further by
referring to the exhibit marks on the documents with reference to the
affidavit by way of evidence filed on January 23, 2009 and for the three
documents relied upon by the learned Single Judge as Ex.PW-1/12, Ex.PW-
1/13 and Ex.PW-1/16, with reference to the affidavit by way of evidence
filed on May 01, 2012. Before the learned Single Judge a compilation was
filed and the learned Single Judge made a reference to the proved documents
with reference thereto.
19. Be that as it may, Ex.PW-1/12 and Ex.PW-1/13 are house tax receipts
for the year 2004-05 and the year 2005-06. The receipts are in the joint
names of Harjinder Singh and Daljeet Singh. They may be ignored. The
house tax receipts for the earlier years, water and electricity bills for the
earlier years proved as Ex.PW-1/2 to Ex.PW-1/10 would show that the two
brothers were paying house tax jointly. Ignoring Ex.PW-1/16 which is an
application filed to Delhi Development Authority for conversion of the
property, we note that Ex.P-1 is the registered conveyance deed executed by
Delhi Development Authority in the name of the two brothers.
20. For record, we note that the father Kulwant Singh had filed a suit
against his son Daljeet Singh in which he pleaded that he was the real owner
of the property. The suit was dismissed on merits. The number of the suit
being 583/2009 was filed before the learned Civil Judge. Appeal filed
against the judgment and decree dismissing the suit has also been dismissed.
21. There is no merit in the appeal which is dismissed with costs against
the appellant and in favour of the respondent.
(PRADEEP NANDRAJOG)
JUDGE
(MUKTA GUPTA)
JUDGE
JULY 15, 2015
mamta
