Delhi High Court
Neelam Kapoor & Ors. vs Bhag Chand & Ors. on 5 September, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 241/1999
RFA No. 242/1999
% Reserved on: 23rd August, 2017
Pronounced on: 5th September, 2017
+ RFA No. 241/1999
NEELAM KAPOOR & ORS. ..... Appellants
Through: Mr. Sanjay Kapoor, appellant no.2 in
person.
versus
BHAG CHAND & ORS. ..... Respondents
Through: Mr. Manoj Sharma, Advocate with
Mr. Kapil Kaushik, Advocate for LRs
of respondent No.1.
Mr. Bhagwan Swarup Shukla, CGSC
for UOI.
Mr. Anuj Aggarwal, Advocate for
respondent No.5.
+ RFA No. 242/1999
NEELAM KAPOOR & ORS. ..... Appellants
Through: Mr. Sanjay Kapoor, appellant no.2 in
person.
versus
BHAG CHAND & ORS. ..... Respondents
Through: Mr. Manoj Sharma, Advocate with
Mr. Kapil Kaushik, Advocate for LRs
of respondent No.1.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J
1.(i) These two Regular First Appeals filed under Section 96
of the Code of Civil Procedure, 1908 (CPC) are disposed of by this
common judgment. It is noted that the impugned judgment of the trial
court dated 16.1.1999 is a common judgment disposing of the two
suits. One suit being Suit No. 116/98/82 was filed by Sh. Mohan Lal
against his mother Smt. Assi Bai and brother Sh. Bhag Chand. Sh.
Mohan Lal is the appellant in this appeal through his legal heirs. The
second suit being Suit No. 115/98/89 was filed by Sh. Bhag Chand
against Sh. Mohan Lal with his mother Smt. Assi Bai being the
proforma defendant no.2 in the suit. The contesting respondent in
these appeals is the legal heir of Sh. Bhag Chand. The suit property
which is disputed is property no. B-IV/15 Amar Colony, Lajpat Nagar,
New Delhi situated on a plot of 100 sq. yards. Since Sh. Mohan Lal,
as also Smt. Assi Bai and Sh. Bhag Chand, have expired during the
pendency of the litigation, and they are now represented by their legal
heirs therefore reference to these persons in this judgment will
include, wherever the context so requires, either to the original parties
or reference to their legal heirs.
(ii) Both the appeals are filed by the legal heirs of Sh. Mohan Lal,
inasmuch as, by the impugned judgment of the trial court dated
16.1.1999, the suit filed by Sh. Bhag Chand was decreed and the suit
filed by Sh. Mohan Lal was dismissed. Both the suits were
consolidated before the trial court and the suit filed by Sh. Mohan Lal
was treated as the lead suit. In the suit filed by Sh. Mohan Lal, he
sought relief of possession of portion of the suit property which was in
possession of Sh. Bhag Chand. Sh. Mohan Lal claimed that he was
the owner of the entire property, inasmuch as, it was he who had paid
the entire consideration of Rs.1500/- to the Ministry of Rehabilitation
which had executed the lease deed dated 21.11.1967 in favour of Sh.
Mohan Lal and Smt. Assi Bai in the ratio of 3/4 th to Smt. Assi Bai and
1/4th to Sh. Mohan Lal. Sh. Bhag Chand filed his suit seeking
partition of the suit property by pleading that the mother Smt. Assi Bai
was the owner of 3/4th share in the suit property and which 3/4th share
the mother had gifted in his favour (i.e Sh. Bhag Chand) by means of a
registered Gift Deed dated 19.2.1982.
2. The facts of the two suits, shorn of those details which
though pleaded but are not relevant for the disposal of these appeals,
are that Sh. Mohal Lal filed his suit for possession of the portion of the
suit property which was with Sh. Bhag Chand by pleading that parties
were originally resident of West Pakistan. It was pleaded that the
husband of Smt. Assi Bai and father of Sh. Mohan Lal and Sh. Bhag
Chand had properties in Pakistan and in lieu of such properties a claim
of Rs.2750/- was passed in favour of the family. Out of this amount of
Rs.2750/- a sum of Rs.560/- had been adjusted for the consideration
payable for the suit property to the Ministry of Rehabilitation under
the lease deed dated 21.11.1967. It was pleaded by Sh. Mohan Lal
that in the family only he was educated and in fact he had got a job
with the Government of India because the Personal Assistant of Sh.
Jawahar Lal Nehru, namely, Sh. M.O. Mathai took pains to ensure that
Sh. Mohan Lal got education. It is also pleaded by Sh. Mohan Lal that
by Sh. M.O. Mathai managed to get Sh. Mohan Lal‟s appointment as a
clerk in the P.M Secretariat. Sh. Mohan Lal pleaded that he was the
only earning member in the family because his mother Smt. Assi Bai
and his brother Sh. Bhag Chand were both illiterate and had no job,
and therefore, only the monies of Sh. Mohan Lal were used for
payment of consideration towards allotment of the suit property as
also construction which was subsequently made in part of the suit
property. Sh. Mohan Lal hence claimed that he was the sole owner of
the suit property and he was therefore entitled to possession of part of
the suit property which was in possession of Sh. Bhag Chand and Smt.
Assi Bai.
3. The case pleaded by Sh. Bhag Chand in his suit for
partition is that his mother Smt. Assi Bai was 3/4th owner of the suit
property as stated in the lease deed dated 21.11.1967 executed by the
Ministry of Rehabilitation and the 3/4th ownership of Smt. Assi Bai
was gifted by her/Smt. Assi Bai to him/Sh. Bhag Chand in terms of
the registered Gift Deed dated 19.2.1982. Sh. Bhag Chand therefore
claimed 3/4th share in the suit property by partitioning of the same.
4. After pleadings were completed in the respective suits of
Sh. Mohan Lal and Sh. Bhag Chand, issues were framed and these
issues read as under:-
1. Issues in the suit of Sh. Mohan Lal (Suit No. 116/98/82)
"1. Whether the plaintiff is owner of the property in suit?
O.P.P.
2. Whether the plaintiff is entitled to possession of suit
property which is in possession of defendant No.2? O.P.P.
3. Whether the plaintiff has paid the cost of the suit property?
O.P.P.
4. Whether the plaintiff constructed the building on the suit
plot from his own fund? O.P.P.
5. Whether the defendant No.1 has no right to gift 2/3 share of
suit property to deft. No.2? OPD.
6. Whether the defendant No.1 purchased the suit property
from his own funds? O.P.D.
7. Whether suit of the plaintiff is malafide? O.P.D.
8. Whether the suit is within time and properly valued for the
purpose of court fee and jurisdiction? O.P.D.
9. Whether the plaintiff is entitled to the relief prayed for?
O.P.D.
10. Relief."
2. Issues in the suit of Sh. Bhag Chand (Suit No. 115/98/89)
1. Whether plot No.B-15 Amar Colony Lajpat Nagar New
Delhi was allotted to the defendant No.2 (Smt. Asi Bai now
deceased) by the L&DO Department, in lieu of the
compensation payable to the defendants and the plaintiff for
property left in Pakistan as claimed?
2. Whether the defendant No.1 is a benami of defendant No.2?
3. Whether the defendant No.2 raised construction on the suit
property?
4. Whether plaintiff is stopped by his own conduct
acquiescence and waiving his ownership rights in the suit
property?
5. Whether defendant No.1 has become owner of the suit
property by virtue of adverse possession and prescription of
time?
6. Whether defendant No.1 also paid the double storey rent to
the Chief Settlement Commissioner which was deducted
from the compensation claim from 1954 to 1959?
7. Whether the property cannot be partitioned as per lease and
conveyance deed as alleged in the preliminary objection?
8. Relief."
5. Trial court has held that Sh. Mohan Lal could not prove
that it was only he who had paid the entire consideration for the suit
property to the Ministry of Rehabilitation. Trial court held that Sh.
Mohan Lal had failed to prove payment of consideration because Sh.
Mohan Lal only led oral evidence of payment of consideration and
there was no documentary proof that Sh. Mohan Lal had paid the
entire consideration. Trial court held that the receipts of payments
made to the Ministry of Rehabilitation as consideration for execution
of the lease deed show that these receipts Ex.PW3/A to Ex.PW3/D
where in the name of the mother Smt. Assi Bai. Trial court also held
that the lease deed dated 21.11.1967 executed by the Ministry of
Rehabilitation was respectively in favour of Smt. Assi Bai and Sh.
Mohan Lal in the ratio of ownership of 3/4:1/4, and this ownership
ratio has never been challenged by Sh. Mohan Lal till filing of the suit
by Sh. Mohan Lal in the year 1982 and therefore, the ownership of the
suit property of Smt. Assi Bai and Sh. Mohan Lal in the ratio of 3/4:
1/4 has to be taken as final. In fact, in the suit itself also filed by Sh.
Mohan Lal there was no challenge for seeking cancellation of the
lease deed or a correction of the same to show that ownership in the
suit property was exclusively to be of Sh. Mohan Lal. Sh. Mohan Lal
pleaded complete ownership on the ground that the name of the
mother to the extent of 3/4th ownership was shown as benami but it
was Sh. Mohan Lal who was the exclusive owner of the suit property
as he had paid the complete consideration but this stand of Sh. Mohan
Lal has been rejected by the trial court. Trial court has also held that
Sh. Bhag Chand and Smt. Assi Bai had deposed to earning money
inasmuch as Smt. Assi Bai working in households and Sh. Bhag
Chand carrying on small retail business of selling of eggs and bread
etc.
6. The relevant issues as regards whether Sh. Mohan Lal
was the exclusive owner and Smt. Assi Bai was only a benami owner
of the 3/4th share as shown by her name in the lease deed dated
21.11.1967, were held in favour of the Sh. Bhag Chand and against
Sh. Mohan Lal, in terms of the following discussion and reasoning
contained in the impugned judgment by the trial court:-
"12. The basic facts in this case are undisputed. It is not disputed that
when plaintiff migrated to India he was child. It is not disputed that his
mother and his another brother had also migrated to India. It is also
undisputed that Settlement Commissioner had assessed the claim in the
name of the defendant No.1 Smt. Assi Bai and at the time of assessment of
the claim the plaintiff and defendant No.2 both were minors. The disputed
facts started from the plaint when plaintiff got the employment. The
plaintiff had not stated his year of employment anywhere. However he has
stated that he joined the P.M.Secretariat at the age of 19 years what would
mean that he joined the service some time in 1957-58. He could have given
the date of joining of his services but he has nowhere given it. It is no doubt
that luck had favoured the plaintiff Mohan Lal and he got employment due
to the fact that he was picked up as a child by M.O.Mathai, but no doubt that
plaintiff‟s family was also living with the plaintiff after he had completed
his matric, and he was not living separately from the family. It has also
come in evidence that his mother used to work as domestic servant to
maintain herself and family, although she was relieved of the burden of
maintaining plaintiff Mohan Lal as child but she continued to be lawful
guardian of Mohan Lal plaintiff and plaintiff was also considering his
mother so. All were living amicably. Only because Mohan Lal become
educated and his mother and brother remained uneducated the plaintiff
Mohan Lal did not get any special rights over the compensation which was
awardable to the mother of the plaintiff being legal guardian. Claim of the
plaintiff that a sum of Rs. 362.94 paise was adjusted by Ministry of
Rehabilitation from his compensation is propostries. How could he have a
special right over the compensation debarring his other brother and sisters,
only because he was employed in P.M.Secretariat. There is no document
placed on record by the plaintiff Mohan Lal showing that he was held
entitled to any compensation. The document showed that only his mother
defendant No.1 was held entitled to compensation. The plaintiff was living
in the property in dispute with his mother and defendant No.2. Whatever
the income family was having, the family was being run by the plaintiff‟s
mother. The payment to the Rehabilitation office for the purchase of the
plot was made in the name of Assi Bai. Who contributed to this payment
and how much, is a matter of dispute. While Assi Bai claimed that she had
made the payment, the plaintiff stated that he had made the payment. The
allotment of the plot was done in 1955. Lease deed was executed in 1967
after the payment had been made. The plaintiff got his name entered in the
lease deed to 1/4th share. The name of the defendant No.2 was not entered
although in 1967 the defendant No.2 had also attained the majority. If the
plaintiff had a right over the property allotted against the compensation of
property left in Pakistan the defendant No.2 had also a right, but it seems
that plaintiff in lieu of the contribution made by him to the family fund got
his name specifically entered in the lease deed as sharer to 1/4th part and
mother/defendant No.1 was entered as sharer as 3/4th part. This was done
with the specific knowledge of the plaintiff and with the efforts of the
plaintiff who was writing letters and getting D.O. written to the
Rehabilitation department because he was in P.M‟s Secretariat. The
plaintiff after 25 years of the allotment and after almost 15 years of the
execution of the lease deed has come to the court asserting that he was
absolute owner of the property and wants a declaration from the court
to that effect Cause of action if any, arose in Nov. 1967 when the lease
deed was executed and the plaintiff is one of the lessee who has signed.
If he had any doubt in his mind about his share of ownership, he should
have approached the court thereafter or atleast within a period of
limitation. Limitation for getting of declaration is three years from the
cause of action. The cause of action does not start when the quarrel
takes place between the family or when the mother sought to exercise
her rights. The cause of action started when the lease deed was
executed. The plaintiff claims that his mother had no right over the
ancestral property is absolutely false and untenable. Section 14 of the Hindu
Succession Act reads as under:-
"14(1)Any property possessed by a female Hindu whether acquired
before or after the commencement of this Act, shall be held by her as full
owner thereof and not as a limited owner.
(2) Nothing contained in sub-section(1) shall apply to any property
acquired by way of gift or under a Will or any instrument or under a
decree or order or a civil court or under an award where the terms of the
gift will or other instrument or the decree, order or award prescribed a
restricted estate in such property."
Thus the claim of the plaintiff that his widowed mother had no right to claim
compensation or to own property is contrary to law.
13. It is immaterial, after such a long time, to find out as to who
gave how much money to Assi Bai for making payment of the plot.
What was the nature of this money given to Assi Bai because of her
being mother or was it given to her as a gift or was it given to her as a
contribution as a family fund is not relevant now. What is relevant is
that the payment was made in the name of Assi Bai by Assi Bai to the
Settlement Commissioner for the plot. The plaintiff has no right over
3/4th share which was held by Assi Bai as per lease deed. By payment of
house tax or electricity bill nobody becomes owner of the property.
Ownership is conferred only by a title deed.
14. The plaintiff has taken a stand that property was purchased by him
benami in the name of his mother Assi Bai. This stand is belied from the
fact that the property was not purchased. In fact the property was allotted to
Assi Bai because she was refugee and it was allotted in lieu of another
property at double storey quarters Lajpat Nagar and Assi Bai had to
surrender that double storey house at Lajpat Nagar, after allotment of this
property. Cost already deducted in respect of the house of double storey
Lajpat Nagar New Delhi was adjusted against the cost of this plot. The
plaintiff has heavily relied upon the book of Mr. M.O.Mathai wherein at one
place it is stated that help was extended to the plaintiff by Sh. M.O.Mathai
and Sh. Nehru to build a small house on a tiny plot allotted by the
Government to him as a refugee. The documents show that 100 sq. yards
plot was allotted to Assi Bai defendant no.1. When the lease deed was
executed it was executed for 25 sq. yards for plaintiff and 75 sq. yards was
for the defendant No.1. As Sh. Nehru and Sh. Mathai had not become
owner of the house by helping the plaintiff, similarly the plaintiff also
cannot become the owner because he helped his mother and brother. If
plaintiff is held benami owner of the property then he himself become
benami of Mr. M.O.Mathai and Sh. Nehru (Pandit Jawahar Lal Nehru). The
written arguments filed by the plaintiff make it absolutely clear that the
moment the plaintiff was married, her mother was compelled to wash
utensils at the other house in order to earn her livelihood.
15. I, therefore, come to the conclusion that Mohan Lal, plaintiff was
not the owner of the property in question (3/4th share) of property No.B-
IV/15, Amar Colony, New Delhi. His ownership was restricted only to 25
sq. yards of area in this plot. It was defendant no.1 who purchased the
property and she was owner of 75 sq. yards of the area." (emphasis added)
7. As regards the issue as to whether Sh. Mohan Lal
constructed the suit property out of his own funds and if he had done
so then what was the effect thereof was the subject matter of issue
no.4 in the suit filed by Sh. Bhag Chand, and this issue was held
against Sh. Mohan Lal in terms of paras 20 and 21 of the impugned
judgment, and which paras read as under:-
"20. The plaintiff was owner of 1/4th share in the property. According
to the plaintiffs own plaint, on 1/2 of the property only shabby and sub-
standard construction was there. It was so because defendants were poor,
while plaintiff was earning handsum amount. P.W.1 has stated only about
the supply of building material for one room. He had no knowledge as to
who put the roof. P.W 2 has stated that he gave Rs.450/- to the plaintiff as
loan but there was no document of loan. He did not inform his department
about the loan. It is stated that loan was given in Nov, 1958 for
construction, while the letter of defendant No. 1 to the settlement
Commissioner and to the P.M‟s Secretariat shows that no construction was
being undertaken because the lease was not being registered and the plot
was having only tin shed. The testimony of P.W 1 and P.W. 2 seems to be
given only because of friendship. Testimony of P.W 3 Mohan Lal is self
supporting testimony. He did not place on record any proof showing that he
had withdrawn amount from the bank for construction of house or he had
taken any loan from the bank. Similarly P.W 5 has given oral testimony
stating that defendant No. 1 and 2 did not work and remained at home. This
testimony contradicts the plaintiff‟s submissions that defendant No. 1 used
to do work of domestic helper and obviously defendant No. 2 was able
bodied person and was not a child. P.W. 5 Smt. Vidya Wanti has stated that
defendant started living separately in the year 1961 and they started washing
„bartans‟ in the other houses. This goes to show that both the defendants
were working although their income was not any way comparable to the
plaintiff‟s income. Plaintiff must have constructed part of the property i.e
property which fell in his share but plaintiff own plaint shows that rest of the
property was left unconstructed and was in possession of defendant No. 1
and 2. If the plaintiff had put any construction at the property of defendant
No. 1 and 2, he did so at his own risks knowing fully well that the property
i.e. 75 sq. yard of land belonged to defendant No. 1 and 2 had separated
from him in 1961 and defendant No. 1 and 2 despite the plaintiff and his
wife being in service and earning handsome, had chosen to earn their
livelihood by cleaning the utensils of others. If Mohan Lal made any
construction deliberately and intentionally to grab the property of defendant
No. 1, he did so at his own risk.
21. Mohan Lal Plaintiff made construction on his part of the property
from his own fund but he made no construction worth living on the property
of defendant No. 1. It seems he later on extended his construction on the
part of the property of defendant No. 1 pushing the defendant No. 1 and 2 to
only 50 sq. yards of land instead of 75 sq. yards of land. There is no
consequence of this construction. The plaintiff cannot become owner by
making construction on other property."
8. As regards the claim of ownership of Sh. Mohan Lal on
account of adverse possession and which was the subject matter of
issue no.5 in the suit filed by Sh. Bhag Chand, this issue was decided
by the trial court in terms of paras 25 to 28 of the impugned judgment,
and these paras read as under:-
"25. Plaintiff Bhag Chand has claimed a decree for possession with
regard to 3/4th share of the property. He has proved the gift deed by which
he was gifted 3/4th of the property by Assi Bai. Gift deed was prepared by
Assi Bai while living in the suit property with Bhag Chand. She handed
over the possession of the suit property to Bhag Chand simultaneously with
the execution of the gift deed. Bhag Chand, therefore, became absolute
owner of 50% of the property i.e 50 sq. yards of land. She could not hand
over the actual physical possession of the rest of the 25 sq. yard of land
because that was in occupation of Mohan Lal but in the gift deed she had
stated that she had handed over the possession of entire 3/4th share because
by that time partition of the property had not taken place and she was owner
of total undivided 3/4th share of the property. Since she was mother of both
Bhag Chand and Mohan Lal and was living in the property, it can be safely
stated that she was in constructive possession of entire share of her property
while she was in actual possession of 50 sq. yards. Mohan Lal was enjoying
the possession over 50 sq. yards of land because she had not pressed for
partition by that time. Possession of Mohan Lal therefore, was only with the
permission of Assi Bai. Plaintiff is entitled to decree for possession of 50
sq. yards of land of the back portion which comes to 1/2 of the share and he
is also entitled to take value of the land of ½ of the front portion which was
in occupation of defendant No. 1 Mohan Lal and after his death in
occupation of his legal representative.
26. Paying of house tax, water and electricity charges does not
make any one the owner of the property. The condition of the property was
such that Mohan Lal was occupying front 1/2 portion of the property with
building constructed on it and while Bhag Chand and Assi Bai were in
occupation of back 50 sq. yards of the property with only two kotharis on it.
If Mohan Lal was paying the house tax he was paying house tax of the
house in which he was living in front portion. If he was paying water and
electricity charges he was paying because he was consuming the water and
electricity ownership goes by title and not by payment of water and
electricity. Payment of the electricity and water charges by Mohan Lal is
therefore, inconsequential.
27. The stand of Mohan Lal is contrary to his pleadings in suit No.
116/98/82. In this suit he has claimed possession of the portion which was
in occupation of Bhag Chand and Assi Bai measuring 50 sq. yards
contending that Assi Bai was benami owner. His wife appearing as PW6,
has categorically stated that Assi Bai and Bhag Chand separated in 1961. It
has also come in evidence that they were living separately from Mohan Lal
and maintaining themselves separately in 50 sq. yards of land. They had not
consented to Mohan Lal becoming owner when Mohan Lal filed the suit for
recovery of possession, it was contested by Bhag Chand and Assi Bai both.
Assi Bai executed the gift deed in respect of her property in favour of Sh.
Bhag Chand asserting her rights over the property. She wrote letter to
L&Do department asking them to execute the sale deed so that loan could be
taken by her for construction over the property. It was she who was given
and held entitled for compensation. The question of her giving away rights
over the property in favour of defendant No. 1 never arose nor she did any
act waiving her rights over the property. The entire evidence of the Mohan
Lal and his witnesses is silent about any single act of Assi Bai and Bhag
Chand waiving their rights. Mohan Lal taking benefit of property of Assi
Bai and Bhag Chand, instead of being satisfied with his 1/4th share made
construction on ½ of the property while Assi Bai and Bhag Chand were
compelled to live only in shabby kotharis which were put on the plot
initially soon after allotment. Assi Bai in her statement has stated that
Mohan Lal had nothing to do with the house. She herself used to pay the
amount to Mohan Lal for depositing the same in the department. She
herself used to work and Bhag Chand used to work. I, therefore, come to
the conclusion that there was no such conduct of Assi Bai and Bhag Chand
waiving the rights of ownership in the suit property.
28. A person can become owner by adverse possession only if he holds
possession of the property adverse to the interest of the owner in open and
hostile manner. Mohan Lal was son of Assi Bai. The property in question
was allotted to Assi Bai in lieu of compensation. Mohan Lal being
employed in P.M. Secretariat could exercise his influence in getting the
lease deed registered after the allotment. While getting the lease deed
registered he get 1/4th share registered in his own name. After that he
alongwith Assi Bai started living in the property. He constructed house over
50 sq. yards of land instead of 25 sq. yards for himself and his family i.e. his
wife, but not for his mother and brother. His mother and brother lived
separately in rest of the 50 sq. yards. Mohan Lal had constructed the house
on 50 sq. yards with consent and permission of Assi Bai who must have
thought that after her death the plot had to go to two brothers half, half. But
Mohan Lal ousted them from the 50% part over which he had made
construction that does not mean that they had acquiesced the adverse
possession of Mohan Lal. There was quarrel between mother and son after
the marriage and mother quietly started living separately in rest of 50 sq.
yards. If she had not taken steps to dispossess Mohan Lal, it is not because
she had permitted Mohan Lal to become owner of 25 sq. yards of land but
because she was incapable of going to Court due to illiteracy and poverty
and she did not think proper that she should ask Mohan Lal to remove his
house from 25 sq. yards. The possession of Mohan Lal was permissive.
Adverse possession among relatives cannot be inferred unless specific
notice is given by one relative to the other that he was not considering him
the owner of the premises and was stating himself as owner. Unless it is not
done the possession cannot be considered as adverse. Moreover, in this case
Bhag Chand and Assi Bai were in actual physical possession of 50 sq. yards
of land so question of adverse possession does not arise at all and even
about 25 sq. yards his possession was only permissive. Mohan Lal, during
the pendency of the suit filed by him, further forcibly occupied rest of
the 50 sq. yards and immediately on being dispossessed Bhag Chand
filed suit No. 115/98/89, therefore, the possession of Mohan Lal was not
in any circumstances adverse possession." (emphasis added)
9.(i) A reading of the aforesaid paras of the impugned
judgment of the trial court as regards who was the owner of the suit
property, whether on account of payment of consideration or on
account of construction being made or on account of adverse
possession claimed against Sh. Bhag Chand and Smt. Assi Bai, shows
that the trial court has rightly analyzed the facts of the case and
evidence led in the case. Trial court has rightly held that part of the
consideration for the suit property being a sum of Rs.560/- was
admittedly adjusted out of compensation received by the family for the
properties left in West Pakistan thus showing that such amount of
money as consideration were not out of the earnings of Sh. Mohan
Lal. Trial court has rightly held that original allotment of the suit
property was in the year 1955 and that age of Sh. Mohan Lal who
pleaded to have joined services in the year 1957-58 would be a minor
at the time of allotment in the year 1955. Also, trial court has rightly
found that though Sh. Mohan Lal claimed to have joined services in
the P.M. Secretariat at the age of 19 years, but he never gave what was
the exact date and year of joining of service. Trial court has rightly
held that Smt. Assi Bai had income because she was working as a
domestic servant to maintain herself and her family i.e herself, Sh.
Mohan Lal and Sh. Bhag Chand and which she continued even after
Sh. Mohan Lal started living separately in part of the plot after his
marriage. Trial court has also rightly held that once part of the
compensation of Rs. 362.94/- was out of compensation received for
the properties left at West Pakistan then how could Sh. Mohan Lal
have exclusive right on that compensation, inasmuch as, the
compensation was of the whole family. Trial court has in fact further
observed that the compensation for properties left in West Pakistan
was only assessed in the name of Smt. Assi Bai, however, in this
regard I may note that this finding would only have the effect that it
cannot be argued by Sh. Mohan Lal that he was the sole person
entitled to compensation. Trial court has further rightly held that once
consideration is paid to the Ministry of Rehabilitation for execution of
the lease deed in terms of receipts of payment which were not in the
name of Sh. Mohan Lal but were in the name of Smt. Assi Bai, then,
Smt. Assi Bai has to be the owner of the 3/4th share because Sh.
Mohan Lal except leading oral evidence did not prove that it was his
monies which went for payment of entire consideration of the suit
property to the Ministry of Rehabilitation. Trial court has also rightly
held that oral depositions of two witnesses of Sh. Mohan Lal, being
PW-4 Sh. A.N. Sahni and PW-5 Smt. Ram Diti Kapoor that Sh.
Mohan Lal had constructed the property and Sh. Mohan Lal had paid
money for consideration will not help Sh. Mohan Lal. Trial court has
also rightly disbelieved the testimony of PW-2 John Kajur that he lent
Rs.450/- for construction of the house because PW-2 neither
remembered the date of giving of the loan and nor had any documents
to show that he had paid the loan of Rs.450/- to Sh. Mohan Lal or how
that loan was returned as was the case of PW-2. Trial court has also
rightly disbelieved the testimony of the wife of Sh. Mohan Lal,
namely, Smt. Vidyawati that she was working with the Delhi Milk
Scheme and also doing business of sale of soft drinks because no
proof was filed that wife of Sh. Mohan Lal namely Smt. Vidyawati @
Neelam had ever worked with Delhi Milk Scheme and also as to how
she was allegedly doing business of sale of soft drinks and as
conceded to by her in her cross-examination conducted on 24.9.1986.
It was admitted by the wife of Sh. Mohan Lal in her cross-examination
that she had no proof of her earning from sale of soft drinks and nor
she had any proof that she gave monies to her husband Sh. Mohan Lal.
(ii) To the findings and conclusions of the trial court that Sh.
Mohan Lal was not the exclusive owner of the suit property and that
the suit property was not benami in the name of the mother Smt. Assi
Bai to the extent of 3/4th share, but that Smt. Assi Bai was owner of
3/4th share as shown in the lease deed dated 21.11.1967, this Court
notes that test of the property being benami is that the benami
transaction is shown to have been entered into for a reason/need.
Payment of monies in itself will not create benami transaction unless
the transaction is so intended to be a benami transaction. In the
present case, there was no need for the transaction to be benami
transaction to the extent of 3/4th in the name of the mother Smt. Assi
Bai, inasmuch as, Sh. Mohan Lal claimed that he paid the monies as
consideration for the suit property basically out of his pay earned from
Government service and thus there was no bar for Sh. Mohan Lal to
have got the sale deed executed in his own exclusive name but he did
not do so. Therefore even assuming that some monies were paid by
Sh. Mohan Lal, he would have treated and agreed that the mother Sh.
Assi Bai will be the 3/4th owner on account of the mother‟s position in
the family and also the fact that it was the mother who brought him
from West Pakistan when he was a minor and took care of him. In
any case, once no reason exists because no such reason is pleaded to
exist for the transaction to be a benami transaction, the transaction of
grant of lease deed to the extent of 3/4th of share in the suit property to
Sh. Assi Bai will not become a benami transaction under law. This is
all the more so because Sh. Mohan Lal never, till filing of the suit in
the year 1982, ever in any manner questioned the execution of the
lease deed dated 21.11.1967 giving him only 1/4th share and the
mother Smt. Assi Bai 3/4th share. If Sh. Mohan Lal‟s case was that he
was the sole owner and not only 1/4th owner then nothing prevented
him in the year 1967 itself firstly to get the entire lease deed executed
in his name or in any case from the years 1967-1982 and only
whereafter the suit was filed by him. Sh. Mohan Lal never filed any
legal proceedings nor wrote to the Ministry of Rehabilitation to get the
lease deed amended/corrected for the suit property to be exclusively
shown as being owned by him. In fact, as already stated above, even in
the subject suit filed by Sh. Mohan Lal no relief is claimed of
cancellation of lease deed dated 21.11.1967 executed by the Ministry
of Rehabilitation in favour of Sh. Assi Bai and Sh. Mohan Lal in the
ratio of 3/4:1/4, and once this is the factual position, trial court rightly
took as final and binding the shares of the parties in the suit property
as 3/4th of Smt. Assi Bai and 1/4th of Sh. Mohan Lal. Trial court has
also further in this regard rightly held that fifteen years after execution
of the lease deed in the year 1967 i.e. by filing of the suit by Sh.
Mohan Lal in the year 1982 there cannot be a valid challenge to the
finality of the lease deed of the year 1967 and which challenge in the
year 1982 would be time barred.
10.(i) Trial court has also, in my opinion, in the paras quoted
above rightly held that mere payment of property tax or water bills or
electricity bills cannot change ownership of the property. This is more
so because a person who is using the property would maintain the
property and pay charges payable for user thereof. The reasoning of
the trial court is unimpeachable. Trial court has also in this regard
further rightly observed that again for the sake of arguments if
construction on part of the suit property took place at the cost of Sh.
Mohan Lal, then Sh. Mohan Lal by incurring such costs would not
become owner of the suit property because Sh. Mohan Lal constructed
it at his risk and cost knowing that as per the lease deed dated
21.11.1967 he was only 1/4th owner of the suit property with 3/4th
share being of mother Smt. Assi Bai.
(ii) To the aforesaid reasoning of the trial court I would like to add
that merely because Sh. Mohan Lal would have incurred monies for
construction would not make him the owner except to the extent of
1/4th share because ownership in an immovable property has
necessarily to pass by means of a registered document in terms of
Section 17(1)(b) of the Registration Act, 1908 and therefore, if any
cost was incurred by Sh. Mohan Lal for construction of part of the suit
property, then that was for the purpose of user of the same and at the
risk and cost of Sh. Mohan Lal but such act of construction does not
pass ownership of the complete property to Sh. Mohan Lal once as per
the lease deed Sh. Mohan Lal is only 1/4th owner of the property with
mother Smt. Assi Bai being 3/4th owner.
11.(i) The appellants who argued their case in person argued
that the letter dated 24.5.1961 which was issued by Ministry of
Rehabilitation was in the name of Sh. Mohan Lal and therefore Sh.
Mohan Lal should be taken as the owner, however, this argument is
misconceived and unsustainable because of the fact that by merely
showing of a letter in the name of Sh. Mohan Lal, Sh. Mohan Lal will
not become sole owner of the suit property because the lease deed
which is executed on 21.11.1967 is the final document with respect to
ownership and which lease deed showed that Sh. Mohan Lal was only
1/4th owner of the suit property. This argument of the appellants is
therefore rejected.
(ii) On behalf of the appellants it was also argued that in one of the
receipts Ex.PW3/A to Ex.PW3/D there is an endorsement in hand of
Sh. Mohan Lal and thus it is proved that monies were paid by Sh.
Mohan Lal, however, once again this argument is without any
substance, inasmuch as, some notations in hand on a receipt will not
show that monies have been paid by Sh. Mohan Lal because the
receipt was admittedly issued in the name of Smt. Assi Bai and the
notation in hand will only mean that Sh. Mohan Lal had gone to
deposit the money qua the receipt on which his notation appears. This
argument of the appellants is also therefore rejected.
12. Before going to the next chapter of decision of these
appeals I would like to state at this stage that this Court sitting as a
first appellate Court under Section 96 CPC can interfere with the
judgment of the trial court only if the judgment of the trial court is
illegal or is against the facts of the case or is perverse. If two views
are possible from the facts of the case and the evidence led therein,
and the trial court has taken one possible and plausible view, then this
Court would prefer not to interfere, even assuming that this Court was
to take the alternative view. This is all the more so in the present case
because this litigation has now gone for last 35 years no less, and in
my opinion, the facts of the present case require that a quietus be
achieved with respect to the rights of the parties especially in view of
the fact that not only the lease deed of the year 1967 gave 3/4th share
to the mother Smt. Assi Bai but also that compensation of amount of
Rs.362.94 assessed for properties of the families left in West Pakistan
was adjusted against the price of Rs.1500/- which was paid as
consideration to the Ministry of Rehabilitation.
13. The aforesaid discussion would not lead to disposal of
appeals because there is an off shoot which is required to be decided.
This off shoot is because both Smt. Assi Bai and Sh. Bhag Chand have
expired. Sh. Bhag Chand died as a bachelor. The present respondents
in the appeals claim rights of Sh. Bhag Chand in the suit property on
account of their placing reliance upon the registered Will dated
26.1.1999. When these appeals came up for the first time for
arguments before this Court on 14.3.2011 a detailed judgment was
passed requiring that the contesting respondent had to prove the Will
of Sh. Bhag Chand dated 26.1.1999 and only whereafter the
respondent could claim rights to the suit property. In accordance with
Order XXII Rule 5 CPC therefore on the aspect of existence and proof
of the registered Will dated 26.1.1999 claimed by Sh. Jagdish Lal Dua
this matter was remanded to the trial court for deciding this limited
issue after allowing parties to lead evidence. Trial court has then
allowed the parties to lead evidence as regard the Will of Sh. Bhag
Chand, and the trial court has by its judgment dated 22.2.2016 has
held that the respondent/Sh. Jagdish Lal Dua has been successful in
proving of the registered Will dated 26.1.1999 executed by Sh. Bhag
Chand in his favour. Trial court in this regard has held that the Will is
proved as Ex.DW1/1 in view of the testimony of the attesting witness
Sh. Charanjeet Singh, Advocate. The relevant findings and
observations as regards the Will dated 26.1.1999 being proved as
Ex.DW1/1 are contained in para 26 of the judgment of the trial court
dated 22.2.2016 and this para 26 reads as under:-
"26. DW1 Smt. Krishna Devi, wife of Sh. Jagdish Lal Dua relied upon
the original Will dated 26.01.1999, registered on 26.02.1999, executed by
Sh. Bhag Chand @ Subhash Chand bequeathing his 3/4th share in property
no. BIV/15, Amar Colony, Lajpat Nagar, New Delhi, out of total area of 100
sq. yds. in favour of Sh. Jagdish Lal Dua. Sh. Charanjit Singh, DW3
testified that he had drafted the said Will, whose certified copy is Ex DW1/1
and whose original was shown by Smt. Krishna Devi in evidence. DW3 Sh.
Charanjit Singh, stated on 29.01.2016 that he was of age 67 years, a Law
graduate and practicing Advocate, residing in Tilak Nagar, New Delhi. DW-
3 Sh. Charanjit Singh deposed that at about 12.00 noon on 26.01.1999, the
Will Ex DW1/1 was executed in his chamber no. 441, Western Wing, Tis
Hazari Courts, Delhi, where first of all testator Sh. Bhag Chand @ Subhash
Chand had signed after which he (DW3) and thereafter Sh. D.P. Bajaj,
Advocate had signed the Will, in presence of each other. Later on
26.02.1999, the said Will was registered before Sub-Registrar, Karol Bagh,
New Delhi and office of Sub-Registrar was then at First Floor of Tis Hazari
Court premises. As per DW3, the said Will was typed in his chamber by
typist Sh. Mahinder Singh Sachdeva and contents of the Will in vernacular
were explained to Testator Sh. Bhag Chand @ Subhash Chand in Punjabi.
Otherwise Testator Sh. Bhag Chand @ Subhash Chand was having
knowledge of English and he could read, write and understand English. PW-
3 had conducted the present cases of Testator several times and had seen the
Testator several times reading and writing English. As per DW3, since he
had to stand witness, he had not mentioned in the Will that it was drafted by
him. DW3 identified signatures of Testator on Ex DW1/1 at portions
encircled A, B and C on three sheets and his own signatures at page3 as
attesting witness and signatures of other attesting witness of Will namely,
Sh. D.P. Bajaj, Advocate at page no3 of said Will. Also, DW3 stated that at
the time of registration of the Will, he (DW3), Sh. D.P. Bajaj Advocate and
Testator had signed on the back of first page of Will for the purpose of
registration."
14. In my opinion, the trial court has committed no error in
holding the Will dated 26.1.1999 of late Sh. Bhag Chand as duly
proved because the relations between Sh. Bhag Chand and Sh. Mohan
Lal were indeed very bad. Sh. Mohan Lal and Sh. Bhag Chand were
at logger heads as the litigation between the parties is pending since
the year 1982. The Will dated 26.1.1999 Ex.DW1/1 was executed by
Sh. Bhag Chand in favour of Sh. Jagdish Lal Dua during the pendency
of this litigation and the Will records the bad relations between the
parties for Sh. Bhag Chand not giving his share in the suit property to
Sh. Mohan Lal. The Will also records that Sh. Jagdish Lal Dua who is
the son-in-law of one sister of Sh. Bhag Chand, had taken care of
him/Sh. Bhag Chand in old age, and that Sh. Jagdish Lal Dua had been
spending monies towards Sh. Bhag Chand‟s upkeep and therefore the
Will was duly executed by Sh. Bhag Chand in favour of Sh. Jagdish
Lal Dua. This Will dated 26.1.1999 is reproduced as under:-
"Will
Nobody knows when one‟s ultimate destined end may come. Therefore, I,
Bhag Chand alias Subhash Chand, son of late Shri Roop Chand aged about
52 years, resident of 1289, Gobindpuri, Gali No 8, New Delhi - 110019,
with my sound disposing mind and to avoid conflicts and dissension, after
my demise, about inheritance or taking over of my properties (immoveable
and moveable), intend leaving a note.
Lease hold property No B-15, Amar Colony, Lajpat Nagar, New Delhi
comprising of an area of 100 square yards, in records stands substituted in
favour of two persons viz late Smt. Assi Bai and late Sh. Mohan Lal,
respectively mother and elder brother of the Testator. 3/4th of the lease hold
rights vest in favour of Smt. Assi Bai and 1/4th in favour of Shri Mohan Lal.
Testator‟s late mother, in respect of her 3/4th share of the property had got
registered a Gift Deed in Testator‟s favour to the exclusion of all of her
other legal heirs - other legal heirs being late Shri Mohan Lal and two
sisters of the Testator.
Testator‟s late elder brother did not behave well with other members of the
family and left mother, Testator and two sisters of the testator to fend for
themselves. Disputes therefore, arose, late brother of the Testator was on
one side and other members of the family against him.
Testator filed a suit for partition claiming his 3/4th share in the property and
his late brother also filed a suit for declaration, possession and permanent
injunction against the testator, his late mother and others claiming himself to
be the owner of the whole of the property.
Both the aforesaid suits, by orders of the learned District Judge, were
assigned to one court for trial. Shri S.N. Dhingra, Additional District Judge,
Delhi, on 16.1.1999, passed judgment and decrees in the said suits. The suit
of the Testator was decreed granting to the testator all prayers in his suit and
the suit of late brother of the Testator was dismissed.
Testator is a patient of cancer, he therefore, in his sound state of mind, has
felt the need, to bequeathed his properties to lay at rest controversies after
his demise about the same.
The Testator therefore, hereby devises and bequeathed that after his demise,
his 3/4th share in Lajpat Nagar, New Delhi property detailed above, and any
other properties left by the Testator, after him shall absolutely vest in Shri
Jagdish Lal Dua son of late Shri Jaswant Rai resident of 599, Janta Flats,
Site-I, Vikas Puri, New Delhi to the exclusion of any body else. The testator
is a spinster. In his failing health, lean days and without any evocation,
aforesaid Shir Jagdish Lal Dua came to the rescue of testator and helped him
for food, medicine and other family needs. Therefore, testator, out of love
and affection for the said legatee, who treated him more than even a son, has
made this will in his favour. Any objection to this will of the testator, the
only will, by any body, shall be treated as null and void. I also bequeathed
that for the purposes of completing the execution process of the suit decreed
by Sh. S.N. Dhingra, Additional District Judge, Delhi, in testator‟s favour,
after testator‟s demise shall be the only person to be arrayed in his place as
plaintiff and as a party in any other suit/appeal/revision etc that ensues.
IN WITNESS WHEREOF, the testator has put his hand to this will on this
26th day of January 1999.
Sd/-
TESTATOR
We the under mentioned witnesses and the testator, have put our respective
hands to this will, in the presence of each other, at one place and
simultaneously." (underlining added)
15. In my opinion, therefore, there cannot be doubt as to Sh.
Bhag Chand having executed the Will dated 26.1.1999 in favour of
Sh. Jagdish Lal Dua and that the Will has been rightly held to be
proved in view of the deposition of the attesting witnesses. In fact,
since the Will is registered there is an additional reason to believe this
Will dated 26.1.1999. As already stated above, there was no reason
why Sh. Bhag Chand would give his share to Sh. Mohan Lal or his
legal heirs because the two sides of the family were at complete logger
heads since the year 1982.
16. Appellants argued that the deposition of DW-3/attesting
witness/Sh. Charanjeet Singh could not be believed because he is an
interested witness, however, appellants who are laymen and who have
argued the appeals do not understand the meaning of having personal
interest because it is seen that by the Will the attesting witness Sh.
Charanjeet Singh has not received any right to any of the property of
late Sh. Bhag Chand. This argument of the appellants is rejected.
17. Appellants then argued that if there is active participation
of the propounder in making of the Will and hence the Will should be
discarded, and to which aspect this Court would like to observe that no
evidence has been led by the appellants to show as to how Sh. Jagdish
Lal Dua actively participated in making of the Will in the sense that
Sh. Jagdish Lal Dua controlled the mind of Sh. Bhag Chand in an
unnatural way for the Will to be made in his favour. In fact and on the
contrary the Will is perfectly natural and genuine because Sh. Bhag
Chand could not be expected to give his share to persons with whom
he was at logger heads, i.e Sh. Mohan Lal and his family, and he gave
his share to Sh. Jagdish Lal Dua who was the son-in-law of the sister
of Sh. Bhag Chand and who had taken care of Sh. Bhag Chand in his
old age.
18. Appellants then argued that the Will was executed on
Republic Day and which could not have been done, however, as the
trial court has noted that there is no bar to execution of the Will on a
Republic Day, and the Will was however registered only one month
later i.e on 26.2.1999. This argument of the appellants is therefore
misconceived and rejected.
19. In my opinion, the trial court vide its judgment dated
22.2.2016 has rightly held the Will dated 26.1.1999 of Sh. Bhag
Chand to be duly proved as Ex.DW1/1.
20. In view of the above discussion, there is no merit in these
appeals and the same are therefore dismissed.
SEPTEMBER 5, 2017 VALMIKI J. MEHTA, J
ib/AK
