Delhi High Court
Shri Kulbhushan Dania vs Shri Ashok Kumar Dania & Anr on 21 May, 2015
Author: Indermeet Kaur
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 21.5.2015
+ CS(OS) 1117/2008
SHRI KULBHUSHAN DANIA
..... Plaintiff
Through Mr.Sumit Kumar Khatri and
Mr. Siddharth Choudhary,
Advocates
Versus
SHRI ASHOK KUMAR DANIA & ANR.
..... Defendants
Through None.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J. (oral)
1 Plaintiff has filed the present suit for partition, rendition of
accounts and permanent injunction. Plaintiff is the son of Shyam
Sunder Dania arrayed as defendant no.2. Defendant no.2 has two
sons namely the plaintiff and defendant no.1. He also has two
daughters. They have not been arrayed as a party.
2 Plaint discloses that defendant no.2 had acquired a plot of
land measuring 200 sq. yards bearing Khasra No.445, House
No.7, New Hari Nagar, Mandawali Fazalpur, Illaqa Shahdara,
Delhi in his own name the year 1967. The cost of the plot was
Rs.2700/-. Defendant no.1 had constructed a small room in the
aforenoted suit property and thereafter the whole family shifted to
that property on 30.5.1969.
3 The eldest daughter of defendant no.2 was employed as a
teacher.
4 Plaintiff acquired a shop bearing no. D-4/495-A, Aruna
Park, Main Market, Shakarpur Extension, Delhi on rent in March
1973. This shop was taken in the name of his father. Plaintiff
was a Government employee. Defendant no.2 was employed
with M/s Mahattas and Company in Connaught Place, New Delhi
and the plaintiff was managing all the affairs of the business in
the aforenoted shop. Plaintiff thereafter enlarged his business and
acquired another shop on tenancy. In both these shops the
business was being conducted by the plaintiff upto 1980.
Thereafter defendant no.2 left his job and joined the aforesaid
joint family business. All family members enjoyed the dwelling
house jointly and lived with love and affection having only one
common kitchen up to year 1994. Over the passage of time
defendant no.1 shifted to Maitri Apartments and the room which
was in his occupation was given to his younger sister who needed
an independent room. Thereafter relations between plaintiff and
defendant no.1 became strained and defendant no.1 tried every
method to turn out the plaintiff from the suit property. Plaintiff's
room was in dilapidated condition and he made all efforts to
repair it. In 1994 plaintiff shifted to a Government
accommodation. On 26.4.2008, plaintiff learnt that defendant
no.2 in collusion with defendant no.1 had sold and transferred one
of the aforenoted tenanted shops for a consideration of Rs.6-8
lacs. There was every apprehension that the defendant no.2 may
create a third party interest in the family business. Defendants
were adamant not to partition the suit property. They were also
liable to render accounts.
5 Accordingly, the present suit has been filed seeking a
preliminary decree of partition to be followed up by a final decree
of partition qua 1/3rd share in the suit property (i.e. 200 sq. yards
bearing Khasra No.445, House No.7, New Hari Nagar,
Mandawali Fazalpur, Illaqa Shahdara, Delhi) more specifically
shown in red colour in the site plan.
6 Defendant no.1 was served by publication. He chose not to
appear. He was proceeded ex parte on 20.5.2011. Defendant
no.2 was earlier represented by counsel but since he also not
chose to appear he was also proceeded ex parte on the same date.
7 Ex parte evidence by way of affidavit had been led by the
plaintiff. The suit of the plaintiff stood dismissed on 16.4.2013.
It was noted that plaintiff has filed the suit during the lifetime of
his father when admittedly the property was in the name of the
father. There was no document to show that any part of the
purchase money or construction was contributed by the plaintiff.
Plaintiff having failed to show that the suit property is in the joint
name of the family members and that the suit property was
acquired by defendant no.2 out of the family funds and the Court
having arrived at a conclusion that the property was in fact a self-
acquired property of the father of the plaintiff (defendant no.2)
the suit was dismissed.
8 In appeal, the Division Bench had remanded back the
matter to this Court taking into account the submission of the
appellant that the testimony of the witnesses had not been
discussed and only the documentary evidence had been examined.
9 Arguments have been heard afresh.
10 Written submissions filed by the plaintiff have also been
perused.
11 PW-1 was the plaintiff himself. He has reiterated the
averments made in the plaint. He has proved documents
Ex.PW-1/1 to Ex.PW-1/106. A perusal of these documents
shows that none of the documents substantiate the stand of the
plaintiff that he had contributed any monies for the purchase of
the suit property or in the construction of the said property.
Learned counsel for the plaintiff has drawn attention of this Court
to Ex.PW-1/22 (Colly) showing the payment of certain electricity
bills during the period of April,1994 to September, 2003. These
documents have been perused. These electricity bills reflect that
the suit property is in the name of defendant no.2 i.e. in the name
of the father of the plaintiff. Not even a single document in this
Colly (PW-1/22) shows that any payment of electricity charges
has been made by the plaintiff. Learned counsel for the plaintiff
also placed reliance upon Ex.PW-1/86 to Ex.PW-1/87 which
show certain white washing/painting charges having been made
qua the suit property. These are hand written documents on a
note sheet where again there is a reference to "Dania" which is
the surname of the both the plaintiff and defendant no.2 and
which does not have any reference to the plaintiff. Learned
counsel for the plaintiff has lastly relied upon the document
Ex.PW-1/88 and Ex.PW-1/89. His submission is that
Ex.PW-1/89 is a disconnection notice; it had been served upon
him by the Electricity Department qua the suit property. Plaintiff
on 1.10.2003 had paid Rs.1850/- as the reconnection charges.
Ex.PW-1/88 has been perused. It shows a payment of Rs.1850/-
paid to the BSES Yamuna Power Limited. It, however, does not
state as to for which property this payment had been made. This
document is also not in correlation to the disconnection notice
(Ex.PW-1/89) in which charges of Rs.12222.99 have been
imposed upon defendant no.2. The notice is dated 30.6.2003 and
payment on 01.10.2003 (six months later) for a sum of Rs.1850/-
which is not in tune with the sum of Rs.12222.99 (in terms of
Ex.PW-1/89) also does not support the case of the plaintiff.
12 PW-2 was an employee of PW-1 from 1975 to 1990 and his
affidavit was proved as Ex.PW-2/A. He was working as a trainee
with the plaintiff. His statement was also reiteration of the
statement of PW-1 but relevant would it be to note that not being
a family member and being only trainee and employee of PW-1
his testimony is by and large a hearsay. PW-3 and PW-4
confirmed that a criminal complaint had been lodged pursuant to
which an FIR and kalandra proceedings had been ordered
between the plaintiff and defendant nos.1 and 2. These
documents establish the acrimony between the plaintiff his
brother as also his father. Plaintiff was thus at all times at cross
terms with his father.
13 There is not a single document on record by way of any
bill, voucher, or income tax return which substantiates the stand
of the plaintiff that he had at any time in any manner contributed
to the purchase or construction of the suit property. The plaintiff
at the time of the purchase of the suit property was in fact only 14
years of age. He was also an employee of the Government and
had his case been honest he could have easily filed his statement
of account showing the expenditure which he had incurred from
his accounts in the construction of the suit property. The burden
was upon the plaintiff to have established this. He has failed to
discharge the onus. He has failed to show that the suit property is
a joint family property or that the same was acquired in the name
of his father out of the joint funds and joint money of the Hindu
Family.
14 Learned counsel for the plaintiff submits that the Supreme
Court has time and again reiterated that if the property had been
purchased and developed out of the joint family funds in the name
of father it can be divided between the legal heirs of the father
and as such he is entitled to a 1/3rd share in the suit property.
15 Reliance by learned counsel for the plaintiff on the
judgments JT 2007(6) SC 164 M.Venkataramana Hebbar (D) by
L.Rs. Vs. M.Rajagopal Hebbar and Ors. and 171 (2010) DLT
743 Smt. Asha Kapoor Vs. Shri Hari Om Sharda to substantiate
an argument that in ex parte proceedings averments made in the
plaint should be deemed to be admitted and correct is not the ratio
of these judgments. The judgment of M.Venkataramana clearly
qualifies that the Court in its discretion may require a party to
prove any such fact which is liable to be proved.
16 The facts of the instant case clearly require a proof of the
pleadings sought to be set up by the plaintiff. His whole case is
premised on the admitted fact that the suit property is in the name
of defendant no.2 (since deceased). This property had been
purchased by defendant no.2 in the year 1967 for a sum of
Rs.2700/-. Nothing has been substantiated by the plaintiff either
orally or through documentary evidence to show that he had
contributed for the purchase of the suit property or in its
construction. He is not entitled to a partition qua the suit
property. This Court has also been informed that a probate
petition qua the will of deceased defendant no.2 has been filed by
his daughter seeking probate of the will of their father in which
the plaintiff has filed objections.
17 This suit cannot succeed. It appears that plaintiff has filed
this suit malafidely. It is dismissed with cost quantified at
Rs.25,000/-.
INDERMEET KAUR, J
MAY 21, 2015
ndn
