Delhi High Court
Satish Kumar Gupta vs Shanti Swaroop Gupta And Ors on 5 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th July, 2018
+ CS(OS) No.3/1992 & IA No.2489/2016 (for consolidation of
present suit with Test Cas No.92/2014)
SATISH KUMAR GUPTA ..... Plaintiff
Through: Tanmay Mehta, Ms. Mamta Mehra
& Ms Mukta Kapur, Advs.
Versus
SHANTI SWAROOP GUPTA AND ORS. .....Defendants
Through: Ms. Sarika Soam, Adv. for Mr.
Swaran Kamal Singh, Adv. for Mr.
Sunil Kumar Gupta.
AND
+ TEST.CAS. No.92/2014 & IA No.19564/2014 (u/O 39 R-1&2
CPC)
INTERNATIONAL SOCIETY FOR KRISHNA
CONSCIOUSNESS (ISKCON) TEMPLE ..... Petitioner
Through: Mr. Sudarshan Rajan, Mr. Arjun
Gadhoke and Mr. Rajeev, Advs.
Versus
STATE AND ORS ..... Respondents
Through: Tanmay Mehta, Ms. Mamta Mehra
& Ms Mukta Kapur, Advs. for R-4.
Mr. Vikas Mehta and Mr. Rajat
Sehgal, Advs. for R-8 to 9.
Ms. Sarika Soam, Adv. for Mr.
Swaran Kamal Singh, Adv. for Mr.
Sunil Kumar Gupta.
CS(OS) 3/1992 & Test.Cas.92/2014 Page 1 of 27
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. CS(OS) No.3/1992 has been filed by the plaintiff therein Satish
Kumar Gupta (Satish) against his father defendant No.1 Shanti Swaroop
Gupta (Shanti Swaroop) and against his brother defendant No.2 Sunil
Kumar Gupta (Sunil), for (i) declaration that Satish is the sole owner of the
first and second floors with terrace rights of property No.F-10, East of
Kailash, New Delhi; and, (ii) declaration that Satish is also the sole owner
of half of the ground floor, after partition of the same, pleading that (a)
Satish is the eldest and Sunil is the youngest son of Shanti Swaroop; (b)
family of Shanti Swaroop also comprises of his wife, another son Anil
Kumar Gupta (Anil) and a daughter Madhu Aggarwal (Madhu); (c) the wife
of Shanti Swaroop is invalid and Anil owns a house at 86, Kailash Hills and
was given Rs.2 lakhs by Satish from the account of Maharaja Exporters
(India) (now the sole proprietary of Satish) for purchase of 86, Kailash
Hills; (d) there are other properties of Shanti Swaroop which he intends to
give to Sunil and Madhu is happily married; (e) since Shanti Swaroop has
provided for Anil and Sunil, he promised to Satish exclusive ownership of
property No.F-10, East of Kailash, New Delhi, as Satish had put in his
labour and contributed towards the cost of purchase and construction of the
said property; (f) property No.F-10, East of Kailash, New Delhi was
purchased in or about the year 1978 and Satish had also contributed
substantial funds; the agreement to sell and sale deed were however
executed in the name of Shanti Swaroop, since he was the head of the
family; the physical possession of the property was handed over to Satish
and Shanti Swaroop on 21st May, 1978; (g) it is for said reason only that the
CS(OS) 3/1992 & Test.Cas.92/2014 Page 2 of 27
vendor/seller of the said property also executed two registered General
Power of Attorneys (GPAs) in favour of Satish, one on 22nd November,
1978 and the other on 1st October, 1980, authorising Satish to complete the
partly constructed building, modify the plan, apply for permissions etc.; (h)
GPAs were executed in favour of Satish at the behest of Shanti Swaroop,
since substantial funds have been contributed by Satish towards purchase
and further construction of the said property; (i) Satish, acting on the
representation of Shanti Swaroop that the entire property would be
transferred in name of Satish, raised funds for construction of first and
second floors of the property; (j) a portion of first floor of the property,
since the year 1981, is exclusively used for business of Maharaja Exporters
(India); (k) Satish even otherwise, being the eldest son, has always
shouldered the responsibility of the family and for this reason also Shanti
Swaroop admitted in his own handwriting and acknowledged orally that
Satish was instrumental in procurement of the house and had contributed
major cost of the house; (l) all the original title documents of the property
are also in possession of Satish; (m) Shanti Swaroop also signed a proposed
gift deed and indemnity bond dated 3 rd September, 1991 and two letters
also dated 3rd September, 1991 and 26th September, 1991 for obtaining
permission from Delhi Development Authority (DDA) for transfer of title
of the property to the name of Satish; and, (n) Shanti Swaroop is estopped
from contending otherwise.
2. The suit was entertained and vide ex-parte ad-interim order dated 2nd
January, 1992, while issuing summons of the suit, Shanti Swaroop was
restrained from creating third party interest in or parting with possession of
or alienating the property in any manner whatsoever. Shanti Swaroop and
CS(OS) 3/1992 & Test.Cas.92/2014 Page 3 of 27
Sunil, though appeared in response to the summons through advocate, did
not file written statement and also did not appear on 8 th April, 1994 and
were proceeded against ex-parte. Shanti Swaroop and Sunil thereafter
appeared on 21st November, 1995 and stated that an application for setting
aside of the order proceeding ex-parte against Shanti Swaroop and Sunil
had been filed. The suit was thereafter adjourned from time to time on the
representation that the parties were exploring possibility of amicable
settlement. On 28th October, 1999, it was informed that Suit No.2005/1999
between the same parties along with others, for partition was also pending
in this Court and observing that it was appropriate that both the suits are
tried together, the two suits were ordered to be listed together. The parties
thereafter, again continued to ask for adjournments and the suit was
adjourned from time to time. On 17th November, 2003, it was informed that
Shanti Swaroop had died and application for substitution of his legal
representatives (LRs) was to be filed. On enhancement in the minimum
pecuniary jurisdiction of this Court, vide order dated 5 th March, 2004, the
suit was ordered to be transferred to the District Court and so transferred.
Vide order dated 12th August, 2004 of the Additional District Judge, Anil,
Sunil and Madhu were substituted in place of Shanti Swaroop and the suit
was ordered to be sent back to this Court owing to the earlier order, of the
present suit to be consolidated with Suit No.2005/1999. On transfer back to
this Court, the game of adjournments again continued to be played and
finally on 25th February, 2008, the application for setting aside of the order
dated 8th April, 1994 proceeding ex-parte was allowed and the order dated
8th April, 1994 proceeding ex-parte against Shanti Swaroop and Sunil was
recalled and vide subsequent orders opportunity given to Sunil to file
CS(OS) 3/1992 & Test.Cas.92/2014 Page 4 of 27
written statement. Neither Sunil nor Anil nor Madhu filed any written
statement and vide order dated 14th January, 2009, their right to file written
statement was closed.
3. Vide order dated 29th January, 2009, on the application of Satish,
Anil, Madhu and Sunil were directed to remove any unauthorised
construction made on the property and restrained from making any further
construction or from otherwise dealing with the property.
4. International Society For Krishna Consciousness (ISKCON) filed IA
No.1850/2009 for impleadment in the suit and notice whereof was ordered
to be issued.
5. Satish filed yet another application to restrain Anil, Madhu and Sunil
from interfering with his access to the first and second floors of the
property and vide order dated 14th October, 2009, an arrangement with
respect thereto was made.
6. Vide order dated 9th December, 2010, application of ISKCON for
impleadment in the suit was allowed and ISKCON was impleaded as a
defendant in the suit and filed a written statement pleading (I) that Shanti
Swaroop was the exclusive owner of the property and executed a Will dated
11th September, 2000 desiring that the subject property be sold and 20% of
the sale proceeds go to ISKCON; (II) that it was further a clause in the Will
of Shanti Swaroop that if any of his sons create a problem in the sale or if
the executor failed to persuade Satish, Anil and Sunil to sell the property,
then the entire house will be donated to ISKCON Temple for making Guest
House for outstation devotees; and, (III) denying that Satish had any rights
CS(OS) 3/1992 & Test.Cas.92/2014 Page 5 of 27
in the property or that there can be any rights in favour of Satish in the
property in the manner pleaded in the plaint.
7. Vide order dated 17th December, 2012, the following issues were
framed in the suit:
"1. Whether the plaintiff is the owner of first and second
floor with terrace rights of the suit property bearing number F-
10, East of Kailash, New Delhi? OPP
2. Whether the plaintiff is entitled to the partition and
declaration sought by him? OPP
3. Whether the suit is barred by law, as alleged in the
written statement of defendant No.4? OPD-4"
and the present suit was clubbed with Test.Cas. No.31/2004 and it
was further ordered that since evidence was already being recorded in
Test.Cas. No.31/2004, Test.Cas. No.31/2004 would be treated as the main
case and the evidence recorded therein will be read for the purposes of the
suit as well.
8. On 12th July, 2016, this suit as well as CS(OS) No.2005/1999 were
listed before the undersigned when it transpired (A) that CS(OS)
No.2005/1999 was filed by Sunil and others for partition of as many as 21
properties; however vide order dated 9th December, 2010, 11 properties
were deleted and the suit remained with respect to 10 properties; issues
were framed in the suit on 4th November, 2011; however the plaintiffs in
CS(OS) No.2005/1999 had failed to tender any evidence and the evidence
of the plaintiffs was closed and since the onus of all the issues framed in the
suit was on the plaintiffs, the defendants in the said suit also closed their
evidence; (B) that ISKCON had also subsequently been impleaded as
defendant in CS(OS) No.2005/1999 but the counsel for ISKCON stated that
CS(OS) 3/1992 & Test.Cas.92/2014 Page 6 of 27
ISKCON had no role to play except with respect to property No.F-10, East
of Kailash, New Delhi, also subject matter of CS(OS) No.2005/1999 and
which property ISKCON claimed under the Will subject matter of Test.Cas.
No.92/2014 filed by ISKCON; (C) that the recording of evidence in
CS(OS) No.3/1992 had not begun as CS(OS) No.3/1992 was earlier
consolidated with Test.Cas. No.31/2004 which had since been dismissed;
(D) that an application for consolidation of CS(OS) No.3/1992 with
Test.Cas. No.92/2014 was pending.
9. Vide the said order dated 12th July, 2016, CS(OS) No.2005/1999 was
dismissed with costs of Rs.25,000/- to each set of defendants and CS(OS)
No.3/1992 and Test.Cas. No.92/2014 were ordered to be listed together.
10. Test.Cas. No.92/2014 has been filed by ISKCON seeking Letters of
Administration annexed with document dated 11th September, 2000 claimed
to be the validly executed last Will of Shanti Swaroop in respect of property
No.F-10, East of Kailash, New Delhi, pleading that Shanti Swaroop was a
devotee of ISKCON and had faith in Lord Krishna and on account thereof
executed his last Will and testament dated 11 th September, 2000 registered
with the Office of the Sub-Registrar-III, New Delhi on 14th September,
2000 as document No.2644 in Additional Book No.3, Volume No.1121 at
Pages 32 to 36.
11. The relevant portion of the document claimed to be the Will is as
under:
CS(OS) 3/1992 & Test.Cas.92/2014 Page 7 of 27
"WILL
I, S.S.Gupta aged 70 years, son of Late Shri Raghbar Dayal,
Resident of F-10, East of Kailash, New Delhi - 110065, do
solemnly affirm as under:-
1. That today, I am in perfect state of mind and heart and I
am writing this Declaration Deed-cum-WILL, without
any pressure or prejudice from any one of my heirs or
relatives or friends. In a sound disposing mind, I am
writing this Declaration Deed-cum-WILL in which I
attempt to do justice to all concerned, to the best of my
ability; this when no justice was done or respect shown to
me by my legal heirs which is due at my age, if nothing
else.
2. During the last ten years, my son Satish Kumar, desired
that the entire property may be given to him and as a
corollary he wanted that I and my other two sons should
vacate the house at F-10, East of Kailash. My son Anil
Kumar vacated the said house on his own and
constructed the house at 86, Kailash Hills. However,
Satish Kumar wanted that I should vacate the F-10, East
of Kailash house in his favour but this was neither
possible nor practicable as I did not have funds to buy
another property for myself or for Sunil Kumar.
Therefore, a dispute erupted and it even led to court
cases and police action. I don't want to elaborate here
the painful events which arose because of the stance of
Satish Kumar.
3. Now in April, 1999, I had angioplasty and was even
operated for prostate cancer. In view of financial
constraints I depended on borrowings and financial help
from Anil Kumar. He looked after me well during
hospitalisation and afterwards. During this period of
ailments, no help or support was given by Satish Kumar
and Sunil Kumar. I don't want to dwell on how much
they both cared for me - they never visited me (except
once) or even enquired about me on telephone. Here I
CS(OS) 3/1992 & Test.Cas.92/2014 Page 8 of 27
may add that during the illness of my wife neither of them
cared for her too.
4. Under the circumstances I suggested to the three sons to
sell off the house that was built by me from my own funds
at F-10, East of Kailash, New Delhi. But Satish Kumar
and Sunil Kumar were not very keen to sell, as both of
them were in occupation of the house. In case of sale
both unfairly demanded a lion's share in the sale
proceeds, leaving almost nothing for Anil Kumar or for
me or for my daughter.
5. In conclusion, in spite of my desire to sell the house in
view of my financial constraints, I am facing stiff
opposition from Satish Kumar and Sunil Kumar. They
are both well off so they don't bother. God Bless them.
But their intention to create trouble for me in my last
span of my life has created tension and it is the real
cause of my illness (heart trouble and other illness).
6. Taking into account the whole situation, my past
contribution to my sons in the form of shops and office,
the non-cooperative attitude from them, the insults by
Satish Kumar and Sunil Kumar to me on phone, on my
face and during discussions with friends and relatives
and after taking into consideration the present financial
strength of my sons, I hereby execute this Declaration
deed-cum-WILL, regarding my property at F-10, East of
Kailash after my death as under:-
As my sons won't be able to live or occupy a house
together, I suggest, wish and desire that the
property at F-10, East of Kailash may be disposed
off and the proceeds from the same shall be
distributed by the executors as under:-
a) 20% share of the proceeds will go jointly to
the eldest son, Satish Kumar, grandson
Ritwick and granddaughter Mayuri.
CS(OS) 3/1992 & Test.Cas.92/2014 Page 9 of 27
b) 14% share of the proceeds will go jointly to
Sunil Kumar, youngest son, and grandsons
Tushar and Kartik.
c) 26% share of the proceeds will go jointly to
Anil Kumar and his son Aditya and daughter
Mahak.
d) 10% share of the proceeds will go jointly to
daughter Mrs. Madhu and her children, viz.,
Harsh, Abhinav and Mansi.
e) 2% share of the sale proceeds will go to my
sister Mrs. Bimla Devi, Delhi.
f) 2% share of the sale proceeds will go to my
sister Mrs. Raj Rani of Ambala Cantt.
g) 20% of the sale proceeds will go to ISKCON
Temple, Sant Nagar, New Delhi.
h) 3% of the sale proceeds will go to Mr.
Surendra Goel and his sons, Delhi, as I am
under many obligations from Mr. Goel and I
have to repay for that.
i) 3% of the sale proceeds will go to Mr. Anil
Kumar Goel S/o Shri Om Prakash Goel, R/o
1855, Dampier Nagar Mathura as he has
been helping me in my day to day needs
(financially or otherwise).
7. A situation may arise where any or all the three sons
create a problem in the sale of house (F-10, East of
Kailash) and in case the executors fail to persuade the
three sons to sell the property (though I am hundred
percent confident that they will be able to perform the
duties given to them) within 6 months from the date of my
death, then the following will be the alternate solution :-
"The entire house will be donated to ISKCON,
Sant Nagar, New Delhi as donation, for making a
guest house for outstation devotees. A separate
agreement has/is being entered into with M/s
CS(OS) 3/1992 & Test.Cas.92/2014 Page 10 of 27
ISKCON, Sant Nagar, New Delhi for this
purpose."
.......
14. The names of the persons who are authorized to act as
executors:-
(1) Mr. Pramod Kumar, son of Late Shri Ved Prakash,
R/o Safdarjung Enclave, New Delhi.
AND / OR
(2) Mr. Subodh Kumar, son of Late Shri Ved Prakash,
R/o Kailash Hills, New Delhi.
AND / OR
(3) Mr. Ravinder, son of Late Shri Satya Palji, R/o
Maharani Bagh, New Delhi.
15. As yet I have not made any other registered or
unregistered WILL. If any one produces any other
fraudulent WILL, the same shall not be binding.
16. This deed and WILL shall be operative & applicable only
after my demise."
12. It is further the plea of ISKCON in Test.Cas. No.92/2014, (i) that
sons of Shanti Swaroop filed Test.Cas. No.31/2004 and wherein ISKCON
filed objections; (ii) however the sons of Shanti Swaroop who had filed
Test.Cas. No.31/2004 lost interest and did not pursue the same and
Test.Cas.31/2004 was dismissed in default on 30th April, 2014; (iii) that the
sons of Shanti Swaroop were unable to arrive at a settlement and as
provided in the document dated 11th September, 2000, the property has
devolved upon ISKCON to the exclusion of other beneficiaries; (iv) that
ISKCON, earlier did not apply for Letters of Administration/Probate
because of pendency of Test.Cas. No.31/2004 and have immediately after
dismissal in default thereof applied for Letters of Administration.
13. ISKCON, in the Test.Cas. No.92/2014 cited Satish, LRs of Anil,
Madhu and Sunil as well as sisters, grandchildren and friends of Shanti
Swaroop as close relatives.
14. Test.Cas. No.92/2014 was entertained and notice to close relatives
and citation thereof ordered to be issued.
15. Satish has filed objections in Test.Cas. No.92/2014 pleading that (a)
ISKCON as a Society is not entitled to seek Letters of Administration; (b)
the petition having been filed after nearly 11 years from the demise of
Shanti Swaroop, is barred by time; (c) though ISKCON had applied for
transposition as petitioner in Test.Cas. No.31/2004 but the said application
was dismissed in default; (d) Shanti Swaroop stood restrained by order
dated 2nd January, 1992 in CS(OS) No.3/1992 from creating third party
interest in the property and the alleged Will dated 11 th September, 2000 is
in violation of the said order; (e) Satish is the exclusive owner of first and
second floor of the property and Shanti Swaroop had no right to execute a
Will with respect thereto; (f) Shanti Swaroop was not a devotee of ISKCON
and did not have faith in Lord Krishna.
16. Sunil also filed objections in Test.Cas. No.92/2014 pleading (i) that
the petition is time barred; (ii) that ISKCON, a Society is not entitled to
maintain the petition; (iii) that ISKCON is also not entitled to maintain the
petition because it had allowed its application for transposition as petitioner
in Test.Cas. No.31/2004 to be dismissed in default; (iv) that the alleged
Will has not been executed by Shanti Swaroop out of his free will; (v) that
property No.F-10, East of Kailash, New Delhi is a joint family property and
Shanti Swaroop had no right to execute the Will with respect thereto and
CS(OS) No.2005/1999 for partition of the said property as well as several
other properties of the Joint Hindu Family was pending. The counsel for
Sunil, in his written arguments, qua the suit, has disputed the claim of
Satish of exclusive ownership of first and second floors with terrace and/or
of half ownership of ground floor.
17. None others is found to have filed objections in Test.Cas.
No.92/2014.
18. CS(OS) No.3/1992 and Test.Cas. No.92/2014 came before the
undersigned on 24th October, 2016, when the Advocate for LRs of Anil
stated that they were supporting the stand of Satish. None appeared for
Sunil on that date.
19. It was enquired from counsel for Satish on 24th October, 2016, as to
how the pleas taken in the plaint in CS(OS) No.3/1992 entitled Satish to
claim the relief of declaration of ownership. It was further enquired,
whether not the only remedy of the person who contributes to purchase
consideration of the property, is to recover the amount contributed from the
person in whose favour the purchase of the property is effected. It was yet
further enquired from counsel for Satish, whether not the claim of Satish in
CS(OS) No.3/1992 was barred by the Benami Transactions (Prohibition)
Act, 1988.
20. It was also enquired from counsels, including of ISKCON, whether
the clause 7 in the document dated 11th September, 2000, claimed to be the
validly executed last Will of Shanti Swaroop and qua which Test.Cas.
No.92/2014 was pending, was valid. It was prima facie observed that such
a clause would be invalid, inasmuch as for failure of the executor, the
beneficiaries could not be deprived of benefit under the Will.
21. Thereafter, on 2nd December, 2016, the following order was passed:
"1. The counsel for the plaintiff in CS(OS) No.3/1992 and the
counsel for International Society for Krishna Consciousness
(ISKCON) have been heard on the queries raised in the order
dated 24th October, 2016 as well as on the aspect of whether in
a probate proceeding the factual questions akin to those of title
in terms of Clause 7 of the document dated 11 th September,
2000 stated to be the Will of the deceased Shri Shanti Swaroop
Gupta can be gone into.
2. The counsel for the legal heirs of Mr. Anil Kumar Gupta
states that Mr. Anil Kumar Gupta was ex parte in the suit.
3. Ms. Sarika Soam, Advocate appears for the respondent
no.10 but does not know who respondent no.10 is. As per the
memo of parties in the Test. Cas. Mr. Sunil Kumar Gupta is the
respondent no.10. She seeks adjournment on the ground of Mr.
Swaran Kamal Singh, Advocate for the respondent no.10 Mr.
Sunil Kumar Gupta is unwell.
4. The matters are already 26 years old and cannot be kept
pending. Moreover the said Mr. Swaran Kamal Singh, Advocate
is not even found to have been appearing on the earlier dates.
5. Liberty is granted to the counsel to the said Mr. Swaran
Kamal Singh, Advocate to if so desires file written arguments by
7th December, 2016.
6. It is deemed appropriate to, in this order dictated in
presence of counsels, record some of the submission made.
7. The contention of the counsel for the plaintiff in CS(OS)
No.3/1992 is that he is not basing his claim on the plaintiff
being the Benami owner of the property as the same would be
barred by Benami Transactions (Prohibition) Act, 1988 and
in terms of the judgment of the Supreme Court in R.
Rajagopal Reddy Vs. Padmini Chandrasekharan (1995) 2
SCC 630 but that the title in the property stood released by the
defendant no.1 in favour of the plaintiff in the facts pleaded in
the plaint.
8. It is further the contention that release by the Benamidar
of right, title and interest in the property in favour of the actual
owner, prior to coming into force of the Benami Act, was not
necessarily required to be by a registered document.
9. Alternatively, the proposition is that the plaintiff is the
owner of the superstructure.
10. The counsel for the plaintiff in CS(OS) No.3/1992 also
seeks to file written submissions.
11. The same be filed by 7th December, 2016.
12. The plaintiff in CS(OS) No.3/1992 to also file an affidavit
by 7th December, 2016 disclosing:-
(i) Since when he is an income tax assessee.
(ii) How in his Income Tax Returns he has been
showing the monies which are claimed to have
been spent in acquisition and construction of the
property.
(iii) Whether he has been declaring any rights in the
property in his Income Tax Returns.
(iv) Whether he has in any other taxation or
governmental records declared himself as owner of
the property.
(v) Whether he was earlier a Wealth Tax assessee and
if so whether he was showing the subject property
in the list of assets.
13. The counsel for ISKCON is also at liberty to file written
submissions by 7th December, 2016.
14. Orders reserved."
22. Written submissions have been filed by counsel for ISKCON, by
counsel for Satish, by counsel for Sunil and by counsel for LRs of Anil in
Test.Cas. No.92/2014 as well as in CS(OS) No.3/1992 and which have been
perused.
23. I will first take up the aspect of maintainability of CS(OS)
No.3/1992.
24. Satish, in the plaint in CS(OS) No.3/1992, has admitted the
ownership/title of Shanti Swaroop to property No.F-10, East of Kailash,
New Delhi by pleading, (I) the agreement to sell and sale deed with respect
thereto having been executed in favour of Shanti Swaroop; (II) Shanti
Swaroop having shown desire and intent to transfer title in the property to
Satish; (III) Shanti Swaroop, in pursuance thereto, having got GPAs from
the earlier owner of the property executed in favour of Satish and having
signed an unregistered gift deed in favour of Satish; (IV) Shanti Swaroop
having declared to all, his intention to transfer/gift the property to Satish.
25. There is also on record, a certified copy of the sale deed dated 29th
August, 1984 of the property in favour of Shanti Swaroop. The registered
GPAs in favour of Satish, got executed by Shanti Swaroop from the person
from whom he had agreed to purchase the property and who ultimately
executed sale deed in favour of Shanti Swaroop, are of a date prior thereto
i.e. 22nd November, 1978 and 1st October, 1980. The said GPAs, after the
executant thereof transferred title to Shanti Swaroop vide sale deed dated
29th August, 1984, are of no consequence.
26. It is not the plea in the plaint that there is any registered document
executed by Shanti Swaroop, conveying title in property No.F-10, East of
Kailash, New Delhi or any part thereof, in favour of Satish. Though the
Division Bench of this Court in Asha M. Jain Vs. Canara Bank (2001) 94
DLT 841 had taken judicial notice of title to immoveable property, land
whereunder was leasehold, being created by mode of agreement to sell,
GPA, Will etc., but Supreme Court in Suraj Lamp & Industries (P) Ltd.
Vs. State of Haryana (2009) 7 SCC 363 & (2012) 1 SCC 656 expressly
overruled the dicta of the Division Bench of this Court and held that in the
absence of a registered document, there can be no title to the property.
27. What remains to be seen is, whether Satish would be entitled to a
declaration of ownership as claimed in the suit, even if succeeds in proving
(A) that he had made a contribution to the purchase price of the property;
(B) that he had, with his own monies, completed the construction of the
property which was semi-constructed at the time of purchase; and (C) that
Shanti Swaroop declared his intention to transfer title in the property to
Satish and in pursuance thereto signed a gift deed or any other writing. If
the answers to the said questions were to be in the negative, no purpose
would be served in relegating CS(OS) No.3/1992 to trial, as, even in the
event of Satish proving what he has pleaded in the plaint, he would not be
entitled to the relief of declaration.
28. The counsel for Satish, in his written submission qua CS(OS)
No.3/1992, has contended (i) that Satish, on the date of filing of the suit, is
not asserting a right of being benami owner of the property or any part
thereof; (ii) prior to coming into force of the Benami Act, benami
transactions were very much legal within India; (iii) that the intention of the
parties, when the property was purchased in the year 1978 and when the
property was subsequently constructed prior to 1988, was that the property
or at least the first, second and half of the ground floors with proportionate
right in the land will belong to Satish; (iv) that the said intention can be
gathered from (a) contribution of substantial funds for purchase as well as
subsequent construction of the property by Satish; (b) acknowledgement by
Shanti Swaroop in his own handwriting; (c) exclusive possession of Satish
of portions of the property; (d) title deeds of the property being in custody
of Satish; and, (e) writing of letters by Shanti Swaroop to DDA, seeking
permission for transfer of property to Satish and preparation of a draft of a
gift deed for execution by Shanti Swaroop in favour of Satish; (v) that the
aforesaid also constitute acknowledgement by Shanti Swaroop, of Satish
being the real owner of the property; (vi) that Satish is not claiming to be
the benami owner but the real owner of the property; (vii) that the property
must be considered and deemed to be released in favour of Satish by Shanti
Swaroop; (vii) that the ownership of land is different from ownership of
building; (viii) that even if Satish is not held entitled to ownership of land,
nevertheless, Satish would be entitled to declaration of ownership of
superstructure.
29. The counsel for Satish has placed reliance on (A) Binapani Paul Vs.
Pratima Ghosh (2007) 6 SCC 100; (B) S. Satjit Singh & Sons Vs. Union
of India 1995 IV AD (Delhi) 646; (C) Rattanlal Vs. Kishorilal AIR 1993
Cal 141; and, (D) Controller of Estate Duty, Lucknow Vs. Aloke Mitra
(1981) 2 SCC 121.
30. I have considered the aforesaid contentions.
31. Supreme Court, in Binapani Paul supra, in paras 26 to 28 of the
judgment and to which attention was invited, referred to the earlier
decisions of the Court in Thakur Bhim Singh Vs. Thakur Kan Singh
(1980) 3 SCC 72 and Jaydayal Poddar Vs. Bibi Hazra (1974) 1 SCC 3,
examined the law as prevalent in India prior to the coming into force with
effect from 5th September, 1988 of the Benami Transactions (Prohibition)
Act, 1988. However, the reliance by the counsel for Satish on the said
judgment is to contend that since purchase of the subject property is of a
date prior to coming into force of Benami Act, the Benami Act would not
apply. The counsel for Satish, inspite of his attention being drawn to the
fact that while the suit from which Binapani Paul supra arose was
instituted in or about 1964 i.e. prior to the coming into force of the Benami
Act, the subject suit was filed after the coming into force of the Benami
Act. Section 4 of the Benami Act provides, that no suit, claim or action to
enforce any right in respect of any property held benami, against the person
in whose name the property is held or against any other person shall lie by
or on behalf of a person claiming to be the real owner of such property.
Satish, on the date of institution of CS(OS) No.3/1992 i.e. 2nd January,
1992, was prohibited by Section 4 of the Benami Act from instituting the
suit. Supreme Court in Binapani Paul supra did not consider the Benami
Act in accordance with the well settled doctrine, that the decision of the lis,
even if, after coming into force of a change in substantive law, has to be in
accordance with law as prevalent on the date of institution of the suit.
Satish can by no stretch of imagination rely upon Binapani Paul supra and
the argument of the counsel for Satish is strictly in the teeth of prohibition
contained in the benami law.
32. The same is the position with respect to S. Satjit Singh & Sons
supra, which was a Writ Petition seeking direction to Land & Development
Office to mutate the leasehold land underneath the property in the name of
the petitioner on the basis of a declaratory decree dated 8 th January, 1969 of
the Civil Court. The Court, again holding that on the date of passing of the
decree, there was no bar to the declaration as contained in the decree, issued
the mandamus.
33. R. Rajagopal Reddy supra, relied upon by the counsel for Satish
during the hearing on 2nd December, 2016, clarified the position that the
Benami Act is not retrospective and would not apply to pending
proceedings.
34. I reiterate, that CS(OS) No.3/1992 was not pending on the date of
coming into force of the Benami Act.
35. R. Rajagopal Reddy supra, rather than being in favour of Satish, is
against Satish. The counsel, while relying thereon, glossed over para 11
thereof, as under, which puts the matter beyond a pale of doubt:
"11. Before we deal with these six considerations which
weighed with the Division Bench for taking the view that
Section 4 will apply retrospectively in the sense that it will get
telescoped into all pending proceedings, howsoever earlier they
might have been filed, if they were pending at different stages in
the hierarchy of the proceedings even up to this Court, when
Section 4 came into operation, it would be apposite to
recapitulate the salient feature of the Act. As seen earlier, the
preamble of the Act itself states that it is an act to prohibit
benami transactions and the right to recover property held
benami, for matters connected therewith or incidental thereto.
Thus it was enacted to efface the then existing rights of the real
owners of properties held by others benami. Such an act was
not given any retrospective effect by the legislature. Even when
we come to Section 4, it is easy to visualise that Sub-section (1)
of Section 4 states that no suit, claim or action to enforce any
right in respect of any property held benami against the person
in whose name the property is held or against any other shall
lie by or on behalf of a person claiming to be the real owner of
such property. As per Section 4(1) no such suit shall thenceforth
lie to recover the possession of the property held benami by the
defendant. Plaintiff's right to that effect is sought to be taken
away and any suit to enforce such a right after coming into
operation of Section 4(1) that is 19-5-1988, shall not lie. The
legislature in its wisdom has nowhere provided in Section 4(1)
that no such suit, claim or action pending on the date when
Section 4 came into force shall not be proceeded with and shall
stand abated. On the contrary, clear legislative intention is seen
from the words "no such claim, suit or action shall lie",
meaning thereby no such suit, claim or action shall be
permitted to be filed or entertained or admitted to the portals of
any Court for seeking such a relief after coming into force of
Section 4(1). In Collins English Dictionary, 1979 Edition as
reprinted subsequently, the word 'lie' has been defined in
connection with suits and proceedings. At page 848 of the
Dictionary while dealing with Topic No. 9 under the definition
of term 'lie' it is stated as under :-
"For an action, claim appeal etc. to subsist; be
maintainable or admissible".
The word 'lie' in connection with the suit, claim or action
is not defined by the Act. If we go by the aforesaid dictionary
meaning it would mean that such suit, claim or action to get any
property declared benami will not be admitted on behalf of such
plaintiff or applicant against the defendant concerned in whose
name the property is held on and from the date on which this
prohibition against entertaining of such suits comes into force.
With respect, the view taken that Section 4(1) would apply even
to such pending suits which were already filed and entertained
prior to the date when the Section came into force and which
has the effect of destroying the then existing right of plaintiff in
connection with the suit property cannot be sustained in the
face of the clear language of Section 4(1). It has to be
visualised that the legislature in its wisdom has not expressly
made Section 4 retrospective. Then to imply by necessary
implication that Section 4 would have retrospective effect and
would cover pending litigations filed prior to coming into force
of the Section would amount to taking a view which would run
counter to the legislative scheme and intent projected by
various provisions of the Act to which we have referred earlier.
It is, however, true as held by the Division Bench that on the
express language of Section 4(1) any right inhering in the real
owner in respect of any property held benami would get effaced
once Section 4(1) operated, even if such transaction had been
entered into prior to the coming into operation of Section 4(1),
and henceafter Section 4(1) applied no suit can lie in respect to
such a past benami transaction. To that extent the Section may
be retroactive. To highlight this aspect we may take an
illustration. If a benami transaction has taken place in 1980
and suit is filed in June 1988 by the plaintiff claiming that he is
the real owner of the property and defendant is merely a
benamidar and the consideration has flown from him, then such
a suit would not lie on account of the provisions of Section 4(1).
Bar against filing, entertaining and admission of such suits
would have become operative by June, 1988 and to that extent
Section 4(1) would take in its sweep even past benami
transactions which are sought to be litigated upon after coming
into force of the prohibitory provision of Section 4(1); but that
is the only effect of the retroactivity of Section 4(1) and nothing
more than that. From the conclusion that Section 4(1) shall
apply even to past benami transactions to the aforesaid extent,
the next step taken by the Division Bench that therefore, the
then existing rights got destroyed and even though suits by real
owners were filed prior to coming into operation of Section 4(1)
they would not survive, does not logically follow."
The claim in the suit for declaration of title to property is thus barred
by the Benami Act.
36. Else, an intent, as pleaded of Shanti Swaroop, to transfer property to
Satish cannot confer title and even if proved, cannot be the basis for a declaration
of title having been created in favour of Satish and the only remedy of
Satish, on the basis of the said intent, was to file a suit for specific
performance, if maintainable in law for enforcement of the said intent and
which has not been done. If it were to be held that merely by execution of
proposed gift deed or by handwritten documents, titles in immoveable
property could be transferred or a plea of estoppel become available against
the true owner, the same would sound the death knell of the law of transfer
of property and be also to the detriment of the State revenue collected
through enforcement of the Stamp Act, 1899 and the Registration Act,
1908. Even otherwise, there can be no estoppel against statute.
37. I have, in K.L. Garg Vs. Rajesh Garg 2013 SCC OnLine Del. 323,
also held that the only claim of a contributor to the purchase consideration
of the property can be for recovery of the said purchase consideration and
the contribution to the purchase consideration does not create any title or
interest in the property in favour of the person so contributing.
38. It is thus but to be held that CS(OS) No.3/1992 filed by Satish, for
declaration of his ownership/title to first and second floors and terrace of
property No.F-10, East of Kailash, New Delhi does not disclose any cause
of action and has no chance of success and no purpose will be served in
putting the same to trial.
39. The only other relief claimed in CS(OS) No.3/1992 is of declaration
of Satish as owner of half of the ground floor of the property, after partition
of the same. The said declaration of ownership of half of the ground floor
is also claimed on the same pleas on which the declaration was claimed
with respect to the first and second floors of the property with terrace and
the suit for said declaration with respect to half of the ground floor also has
to fail.
40. I may notice that though Shanti Swaroop, who was defendant No.1 in
CS(OS) No.3/1992 has died and has been substituted as aforesaid by
Madhu and Anil, but Satish, even after the demise of Shanti Swaroop, has
not claimed partition of the said property as an heir of Shanti Swaroop.
Thus, the need to put CS(OS) No.3/1992 to trial, for partition of the
property amongst Satish, Anil, Sunil and Madhu as heirs of Shanti
Swaroop, who admittedly was the sole owner of the property, is not felt.
41. Thus, CS(OS) No.3/1992 is dismissed.
42. In Test.Cas. No.92/2014, ISKCON as aforesaid, has sought Letters of
Administration, with copy of the document dated 11th September, 2000
stated to be the validly executed last Will of Shanti Swaroop annexed
thereto, with respect to estate of Shanti Swaroop comprising of on the basis
of the said property No.F-10, East of Kailash, New Delhi, under the Will
having stood bequeathed to ISKCON. A reading of the document dated
11th September, 2000, even if proved to be the validly executed last Will of
Shanti Swroop, shows Shanti Swaroop therein, with respect to said
property, having willed, (i) that the property be disposed of and the
proceeds be distributed by the executors as prescribed therein, with 20% of
the sale proceeds being directed to be distributed to ISKCON; (ii) that if his
sons create a problem in sale and the executors fail to persuade the sons to
sell the property within six months from the date of death, then "the entire
house will be donated" to ISKCON "as donation". Shanti Swaroop, under
the aforesaid document, appointed Pramod Kumar, Subodh Kumar and
Ravinder as executors of the Will, to act jointly and severally.
43. What troubled me was, that a reading of Clause 7 of the document
dated 11th September, 2000 as reproduced above indicates that Shanti
Swaroop thereunder imposed an obligation on the executors appointed by
him, to persuade Satish, Anil and Sunil to sell the property and reposed
100% confidence that the executors will be able to so persuade his three
sons within six months. What further troubled me was, whether for failure
of executor/s to so persuade Satish, Anil and Sunil to sell the property or
whether for resistance by anyone of the said sons of Shanti Swaroop also,
all the other persons to whom bequest of sale consideration is made under
the document, could be deprived of the same by vesting the property
exclusively in ISKCON.
44. The counsel for ISKCON, in his written arguments has referred to
Sections 82, 85, 87, 128, 130, 131 and 137 of the Indian Succession Act,
1925 and to Chapter 54 of Gopalkrishnan‟s Law on Wills 9th Edition, 2015
and relied upon Tincouri Dassee Vs. Krishna Bhabini (1893) ILR 20 Cal.
15.
45. However, Tincouri Dassee supra was a case of forfeiture of bequest
for an act done by the legatee. Here, we are concerned with forfeiture of a
bequest owing not because of any act of the legatee but owing to the act of
the executors.
46. Written submissions of the Advocate for LRs of Anil and of the
Advocate for Sunil on the said aspect are of no assistance.
47. The counsel for Satish, in his written submissions, while
controverting the reliance by the Advocate for ISKCON on Section 137 of
the Succession Act, has contended that Clause 7 of the Will would be
invalid in view of Sections 138, 139 & 118 of the Succession Act. Reliance
is also placed on Madhuri Ghosh Vs. Bebobroto Dutta (2016) 10 SCC 805
and on Sadaram Suryanarayana Vs. Kalla Surya Kantham (2010) 13 SCC
147.
48. However, I must admit that it remained to be considered, while also
posting Test.Cas. No.92/2014 along with CS(OS) No.3/1992 for
consideration, that the Court, while exercising testamentary jurisdiction,
does not interpret the document of which Letters of Administration/Probate
is sought and does not decide the inter se rights between the legatees under
the Will. The Court, while exercising testamentary jurisdiction, is
concerned only with the fact, whether the document annexed wherewith
Letters of Administration/Probate is sought, is the validly executed last Will
of the deceased. Reference in this regard can be made to Krishna Kumar
Birla Vs. Rajendra Singh Lodha (2008) 4 SCC 300 and Sarla Gupta Vs.
The State 2017 SCC OnLine Del 12689. Thus, though considerable time
has been lost in the Test.Cas. No.92/2014 by reserving orders thereon, it is
not deemed appropriate to return any finding on the aspect on which the
orders were reserved or on which the counsels have filed their written
submissions.
49. What perhaps prevailed, while reserving order was, if it were to be
held that ISKCON, under the document, is not entitled to the entire
property, it is not entitled to seek Letters of Administration. However, it
was lost sight of that even if ISKCON were to be not entitled to the entire
property, it is in any case entitled to 20% share in the sale proceeds of the
property and since none of the other beneficiaries under the document have
sought Letters of Administration, ISKCON, even as one of the
beneficiaries, is entitled to apply therefor.
50. Test.Cas. No.92/2014 thus has to proceed.
51. I would however implore the counsel for ISKCON to consider,
whether in view of aforesaid aspects, a proceeding seeking Letters of
Administration is the most appropriate proceeding for adjudication thereof
or some other expeditious proceeding, where adjudication of all such
aspects can be made, is to be initiated, so that valuable time is saved. Even
if the document is proved to be the Will of Shanti Swaroop, another
proceeding should not be required to determine the aforesaid aspects.
52. Resultantly, CS(OS) No.3/1992 is dismissed, however without any
costs, since the defendants therein have been equally guilty of delay as the
plaintiff therein.
53. Decree sheet be drawn up.
54. List Test.Cas. No.92/2014 on 14th August, 2018.
RAJIV SAHAI ENDLAW, J.
JULY 05, 2018
„bs‟
