Nitin Mehta vs Suresh Mehta & Anr
2019 Latest Caselaw 6582 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                             Reserved on: 9th August, 2019
                                         Pronounced on: 17th December, 2019
+      CS(OS) 2895/2011 & I.A. 2481/2012
NITIN MEHTA                                                  ..... Plaintiff
                           Through:      Mr. Raj Shekhar Rao, Advocate with
                                         Mr. Akhil Suri, Mr. Ritik Malik and
                                         Mr. Karthik Sundar, Advocates.

                           versus

SURESH MEHTA & ANR                                          ..... Defendants

                           Through:      Mr. Gaurav Puri, Advocate with
                                         Mr. Sarthak Gupta, Advocate.



CORAM: JUSTICE SANJEEV NARULA
                           JUDGMENT

SANJEEV NARULA, J

1. By way of the present suit, Plaintiff seeks possession, mandatory injunction and mesne profits in respect of first floor of property bearing No. B-97, Defence Colony, New Delhi comprising of three bedroom, attached bathroom, drawing-dining room, kitchen and one room above the garage (hereinafter referred to as "the suit property").

Case of the Plaintiff

2. The Plaintiff claims to be sole, legal and exclusive owner of the suit property. Defendant No. 1 is the maternal uncle; and Defendant No. 2 is

maternal grandfather of the Plaintiff. No relief has been sought against Defendant No. 2, who has been arrayed as a pro-forma Defendant.

3. On 25th May 1953, as part of resettlement policy, a plot of land bearing no, B-97, Defence Colony, New Delhi admeasuring 271 sq mtrs., was allotted to proforma Defendant No. 2 on lease-basis by Ministry of Defence, Resettlement Section. Proforma Defendant No. 2 constructed a house on the said plot from his own funds by way of raising loan from Government of India. For this purpose, mortgage deed dated 16th September 1961 was executed. The loan was repaid and deed of re-conveyance was signed on 25th March 1971. The land was thereafter converted from leasehold to freehold on 12th March 1997. In 1994, Defendant No. 1 quoting strenuous financial conditions, requested Defendant No. 2 for permission to reside in the suit property. In this manner, Defendant No. 1, as a son, was granted a license to reside in the suit property, under an oral arrangement, purely as a permissive user. Defendant No. 1 time and again assured proforma Defendant No. 2 that he would vacate and handover the possession of the suit property immediately on demand being made by Defendant No. 2 and recognized his ownership and possessory rights in respect of the suit property. In the meantime, Defendant No. 2, out of love and affection, transferred all his rights, title and interest in the suit property in favour of the Plaintiff, vide registered gift deed dated 23rd May 2011, duly registered with the Sub Registrar vide registration No. 7618 in book No. 1, volume No. 11161 on pages No. 47 to 51 on 26th May 2011. Defendant No. 1 gained knowledge of the said transfer as he was informed about the same by Defendant No. 2 as well as the Plaintiff. In furtherance to the gift deed, Defendant No. 2 also

executed in favour of the Plaintiff, an affidavit, thereby declaring that the Plaintiff can get the suit property mutated in his own name in the municipal records. During the course of time, behavior of Defendant No. 1 worsened and, as a result Defendant No. 2 requested him to leave the property and handover peaceful and vacant possession of the suit property. The request was declined and he kept dilly-dallying the matter on one pretext or the other and continues to be in possession of the suit property, save one room above the garage which has been rented out by the Plaintiff vide rent agreement dated 8th October 2011. Plaintiff as the legal owner of the suit property, has been requesting Defendant No. 1 to vacate the same but such requests have not yielded any favorable result. On the contrary, Defendant No. 1 has advanced threat to life and property of Defendant No. 2 and the Plaintiff.

4. Defendant No. 2 issued a public notice in the newspaper „Times of India‟ whereby, he disowned, disclaimed and renounced Defendant No. 1 as his son and also filed a complaint dated 7th September 2011 before the SHO, Defence Colony, narrating the illegal threats extended by Defendant No. 1. A legal notice dated 8th September 2011 was issued calling upon him to handover the vacant possession of the suit property. In the said notice, he further contended that the failure on his part to deliver the possession would also entail liability of Rs. 5,000/- each day for unlawful retention and illegal user of the premises. The notice failed to deter Defendant No. 1, as he continues to be in illegal possession of the suit property, constraining the Plaintiff to file the present suit seeking recovery of possession of the suit property and also recovery of damages at the rate of Rs. 5,000/- per month

from 25th September 2011 to 24th October 2011.

5. Defendant No. 1 contests Plaintiff‟s title over the suit property and contends that there is no valid and proper gift deed in respect of the suit property. The gift deed relied upon by the Plaintiff shows that the donor while gifting the suit property to the donee has elected to keep the possession thereof with himself. Clause 3 of the gift deed provides that the donor shall enjoy uninterrupted possession of the property and since the physical possession of the suit property has not been handed over, the suit of the Plaintiff is premature. It is further contended the entire property bearing No. B-97, Defence Colony, New Delhi, including the suit property is liable to be partitioned, for which a separate suit bearing No. CS (OS) 425/2012 has been filed. Defendant No. 1, has invested monies in the construction of the suit property and, on that basis, he has a legal right in respect of the suit property. In the year 1987, Defendant No. 1 was called by Defendant No. 2 to reside with him and his wife Late Smt. Shanta Mehta (mother of the Defendant No. 1) as one joint family unit having a single kitchen on the ground floor of the property i.e. B-97, Defence Colony. Defendant No.1 in order to maintain the expenses of his parents and of their joint living started paying a monthly expenditure allowance by cheque to his father (Defendant No. 2). Initially, in the year 1987 Defendant No. 1 started paying an amount of Rs. 4000/- per month. This was eventually increased to Rs. 8000/- in the year 1998, Rs. 14,000/- from April 2006 till March 2007. The details of the cheques issued from 5th of January 1988 till March 2007 have been placed on record. Records pertaining to year 1987 to 1997, could not be made

available as money was paid from saving bank Account No. 8177 and 15256, pertaining to Central Bank of India NDSE II, New Delhi 110049, which has since been closed. He invested monies through Defendant No. 2 in one property at AWHO (Army Welfare Housing Organization) in the year 1997 via booking letter No. EC/EA/63875/SS/GNA/97 dated 8th December 1997. This property was booked by Defendant No. 2 at the behest of Defendant No. 1 and from the monies of Defendant No. 1 and his wife Mrs. Sunita Mehta. In the year 1999, Defendant No. 1 was the owner of two properties i.e. Plot No. 1542, Sector-45, Gurgaon, and Plot No. 138, Block No. - I, Delta Sector, Greater Noida. The second floor of B-97, Defence Colony, could be constructed only because of construction and renovation done by Defendant No. 1, who was made to invest and blend all his personal assets in the suit property. At the behest of Defendant No. 2, Defendant No. 1 invested to Rs. 3.13 (Three lacs and Thirteen Thousand) vide 9 cheques and further sum of Rs. 1,41,000/- (One Lakh and Forty-one thousand only) in cash, withdrawn from HSBC Bank. Additionally, Rs. 3,73,000/- (Three Lac and Seventy Three Thousand Only) was spent in cash for the construction and renovation of the suit property.

Proceedings in the Suit

6. On the first date of hearing, while issuing summons in the suit, an ex- parte injunction was granted in favour of the Plaintiff and against Defendant No. 1, restraining him from creating any third-party interest in respect of the suit property. Later, on the basis of the pleadings, the following issues were framed:

"1. Whether the gift deed executed by defendant No. 2 in favour

of the plaintiff dated 23.05.2011 is legal and valid? OPP

2. Whether defendant No. 1 has any right, title or interest in the suit property, namely, first floor of B-97, Defence Colony, New Delhi. If the issue is answered in the affirmative, whether defendant No. 1 is entitled to seek partition of the suit property? OPD1

3. Whether the present suit for recovery is pre-mature? OPD1

4. Whether the plaintiff would be entitled to a decree for possession/mesne profits? If so, at what rate he can claim mesne profits? OPP

5. Relief."

Evidence led by parties

7. Plaintiff has examined two witnesses, himself as PW-1 and Col. J.B. Mehta as PW-2. Defendant No. 1 led three witnesses, DW-1, Mr. Bal Krishan, Senior Manager Indian Bank, DW-2, Mr. Sahil Suri, Manager HSBC Bank and he himself deposed as DW-3.

Issue No. 1: Whether the gift deed executed by Defendant No. 2 in favour of the Plaintiff dated 23.05.2011 is legal and valid.

8. The onus of proving the issue has been placed on the Plaintiff. However, if one would examine the pleadings, on the basis whereof, the issue has been framed, it can be discerned that it is Defendant No. 1 who has challenged the registered gift deed alleging it to be illegal and invalid. Therefore, it is for Defendant No. 1 to demonstrate as to how the gift deed in question is invalid or does not have the legal effect. Be that as it may, since the Plaintiff has contested the issue, as casted, till the final stage and parties have already led

evidence on this issue, I proceed to decide the same as framed.

9. The requirements of a gift deed are provided under Section 122 and 123 of the Transfer of Property Act. Section 122 defines a gift to be transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. It is further provided that the acceptance must be made during the lifetime of the donor and while he is still capable of giving consent. If the donee dies before acceptance, the gift is void. Section 123 stipulates that for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses. The gift deed is compulsorily required to be registered under Section 17 of the Registration Act, 1908. In terms of the definition of gift, referred above, the essential requisites for a valid gift deed are : (i) absence of consideration; (ii) donor ; (iii) donee ; (iv) subject matter ;(v) transfer, and (vi) acceptance.

10. The gift deed in question is a registered document whereby Defendant No. 2 has transferred all his rights, title and exhibits in respect of the suit property in favour of the Plaintiff. He has produced the original registered gift deed on record Ex PW- 2/1. The presumption of it‟s validity is in favour of the Plaintiff. The essential conditions of the gift deed are provided in the document and the same inter alia read as under:-

"Lt. Col, J.B Mehta {Retd.) aged 91 years, resident of 8-97,

Defence Colony, New Delhi, and by religion Hindu, hereinafter called the DONOR of the ONE PART (which expression shall mean and includes his heirs, successors, assigns, and legal representatives unless repugnant to the meaning and context thereof);

AND

Nitin Mehta aged 38 years S/o Maj. Gen Ramesh Metita R/o B- 97, 2nd Floor, Defence) Colony, New Delhi-110 024, hereinafter called the DONEE of the OTHER PART (which expression shall mean and includes his heirs, successors, assigns, and legal representatives unless repugnant to the meaning and context thereof);

WHEREAS, the donor is the owner and holder of all that property comprising of the entire First Floor (1st Floor) consisting of three bedrooms, attached bathroom, drawing-dining room/ kitchen and one room above the garage, at B-97, Defence Colony, New Delhi.

WHEREAS, the aforesaid property has been self-acquired and constructed by the Donor with his own funds.

AND

WHEREAS, the Donor is the grandfather of the Donee and has great love and affection for the said Donee and is desirous out of such natural love and affection of disposing of the property in the manner hereinafter appearing."

11. A perusal of the above recitals suggests that there is an absence of consideration and the gift has been accepted by the donee. The deed has been attested by two witnesses. Plaintiff has produced the author/doner of the gift deed i.e. Defendant No. 2 (PW-2), who in his examination-in-chief by of affidavit deposed to the following effect:

"5. I say that. I was the sole owner and in possession of the whole property bearing no. B-97, Defence Colony, New Delhi, before gifting the 2nd Floor and terrace rights to my Daughter- Mrs. Rekha Mehta and 1st Floor to my grandson- Nitin Mehta.

7. I say that my son-Suresh Mehta only lived with me in my house until his college education and thereafter only since the year 1995 he started living as a permissible user on the 1st Floor and for which I used to charge a monthly license fee/rent.

14. I say that after the gift deed in favour of Nitin Mehta in respect of floor, my grandson became the owner of the said floor and even though my son-Suresh Mehta was in full knowledge about how matter stands, he still refused to leave the property which led to the filing of the present suit.

16. I say that my son has never contributed towards any household expense or towards the construction of the house be it the 1st floor or the 2nd floor or any other construction/renovation/development carried out on my house ever since its purchase. I further say that except the nominal license fee/rent I was taking from him for the usage of my house, I have never taken any other money from him neither has he ever spent any money jointly with me or single handedly on any part of the property comprising B- 97, Defence Colony, New Delhi."

12. Further, during his cross-examination, his stand on the aspect of validity of gift deed, have remained uncontroverted. The relevant portion of the same reads as under:

"... ... It is further wrong to suggest that there is no valid and proper gift deed under which the property in dispute has been

transferred to the plaintiff. ... ..."

13. Infact the only cross examination disputing the validity is by way of above noted suggestion. It thus appears from the evidence on record that Defendant No. 1 has not disputed the execution of the gift deed, but rather raised a vague and unspecific plea about it‟s invalidity. There is no substantial challenge, except for giving a suggestion to the witness, which has been denied. Defendant No.1 has not led any affirmative or positive evidence to dispute or discredit the registered document and therefore the Gift Deed remains uncontroverted. The Plaintiff has successfully proved its execution and Ex. PW-2/1 fulfills all the legal requirements of a valid gift deed. Accordingly, it is held that the Registered Gift Deed executed by Defendant No. 2 in favour of Plaintiff is proved and it is a proper and valid in law. The challenge to the same deserves to be rejected, Issue No. 1 is decided in favour of the Plaintiff and against Defendant No. 1.

Issue No. 2: Whether Defendant No. 1 has any right, title or interest in the suit property, namely, first floor of B-97, Defence Colony, New Delhi. If the issue is answered in the affirmative, whether Defendant No. 1 is entitled to seek partition of the suit property.

14. The onus of proving the issue is on Defendant No. 1. He has primarily made two-fold submissions to prove his ownership over the suit property. Firstly, ownership over the property is claimed on the ground that, he invested around Rs. 8.27 lacs, for construction of the entire suit property, by blending in the sale proceeds of three of his self-acquired immovable properties. Secondly, it is claimed that the plot including the superstructure

became a joint family property, when Defendant No. 2 accepted monies and used the same for constructing the superstructure of the first and second floor of the property. Besides, certain other alternate defences and grounds have also been raised, which have been traversed in the latter part of the judgment. Although the grounds are interconnected but for the sake of convenience they have been deliberated individually under separate headings.

A. Blending In Of Property

15. In the written statement Defendant No.1 has contended that his family along with Defendant No. 2 and his wife were residing in a common household with a common kitchen, since 1987. He claims to have invested monies for reconstruction of the suit property, by way of monthly payments/ installments made from 1999 to 2007. It is further averred that he was also making contribution on a monthly basis, towards purported common household, as allowance to Defendant No. 2, which was increased annually. Additionally, Defendant No. 1 claims that he liquidated his self acquired assets and blended them into common hotchpotch of the joint family. It is also his stand that he contributed the proceeds from the sale of his self acquired assets towards construction of the suit property and became its joint owner to the exclusion of all others, applying the doctrine of blending of its purported contributions towards the common hotchpotch and inception of an HUF comprising of himself and Defendant No. 1. On the strength of the above payments, Defendant No. 1 has claimed existence of a „joint family‟. Defendant No. 1 also contended that suit property was under joint ownership of him and his father.

16. In order to corroborate the above noted stand, the sole testimony is that of Defendant No. 1, who has examined himself as DW-3 and has deposed to the following effect in his examination-in-chief, by way of affidavit:

"3. I say that the Deponent has invested monies in the construction of the Property No. B-97, Defence Colony, New Delhi and has rights in the property. Hence, the property is liable to be partitioned as per the suit filed by the Deponent which is pending adjudication before the Hon'ble High Court vide CS (OS) No. 425 of 2012. .... .....

.... ..... The Deponent invested monies at the behest of Defendant No. 2, by liquidating his personal assets and investing the monies in the construction of the subject property by disposing off, property at AWHO (Army Welfare Housing Organization) in the year 1999 via booking letter No. EO/EA/63875/SS/GNA/97 dated 8.12.1997. This property was obtained in the name of Defendant No.2 at the behest of the Deponent and from the monies of Deponent and his wife Mrs. Sunita Mehta. ..... ......

...... ...... It was only due to construction and renovation done by Deponent, the second floor of the subject property could be constructed, thereby Defendant No. 2 made Deponent to invest and blend all his personal assets in the suit property. The Deponent at that point of time made investments up to Rs. 3.23 (Three lacs and Twenty Three Thousand only) lacs via 10 cheques and Rs. l,41,000/-(0ne Lakh and Forty one thousand only) cash withdrawal from HSBC apart from Rs. 3,73,000/- Three Lac Seventy Three Thousand Only) paid in cash for the construction and renovation of the Suit Property. The above mentioned monies were extended to Defendant No. 2 and is evident from the statements and documents, which have been filed on record of this Hon'ble Court.

4. I say that the Deponent is residing on the first floor of the suit property in his own capacity and right, as co-owner and thus was never liable to handover the possession to the Plaintiff as the House No. B-97, Defence Colony, New Delhi is a Joint Family property of Deponent and Defendant No.2 and Deponent's undivided interest to share cannot be gifted by Defendant No.2 vide a Gift Deed."

17. During cross examination, Defendant No. 1 deposed to the following effect, the relevant portion whereof is highlighted as under:

"The ground floor and first floor were constructed by my father Col. J. B. Mehta from the funds taken from my grandfather Late Sh. Chunni Lai Mehta and of my maternal grandfather Late Sh. B. C. Mehta along with that my mother selling of her jewellery to the tune of Rs. 5,000/- from the locker exchange program of the ornaments got from Pakistan. We do not have any records of the funds taken from my grandfather or my maternal grandfather or my mother as this pertains to 50's and 60's. This was communicated to me not only by my father but also by the family members. This was told to me in, 1962 when the construction took place. Approximately about 1400 to 1500sq feet was constructed on the ground floor and on the first floor a two bedroom set was constructed along with drawing cum dining with an open terrace of approximately 450sq. feet. I was bom in 1947. I did not contribute anything in the purchase of the plot or the construction in 1961-62 or 1967-68. My father had mentioned that he had taken a loan from the Government of India in 1961 but I do not know if the loan was for Rs. 24,600/-. I am not aware of any mortgage deed executed by my father with the Government of India. In the year 1999- 2000 the area constructed on the first floor was 450sq. feet approximately and on the second floor about 1600sq. feet apart from the renovation of the earlier constructed portions. I have all the records of all the payments made by me towards constructions in 1999-2000. The contractor was engaged by my father. I think his name was Mr. Charan Singh. The

construction in 1999-2000 started in April, 1999 and was completed by June-July, 2000. I did not make any payment directly to Mr. Charan Singh but I made direct payments to my own contractor. I made payments to my father who in turn made payments through the contractor Charan Singh. I had made payments for additional wood work. These payments were made by my wife Sunita Mehta. I gave money to my father as and when he desired but no receipt or acknowledgement was given by him. The payment was made to him by account payee cheques and in cash. I have not disclosed in my Income Tax Returns that I had carried out construction in B-97, Defence Colony because the property was in the name of my father.

My father had one brother and two sisters. I am not aware if my grandfather and his two sisters had given up their rights in respect of the property at Allahabad in favour of his brother. I am not sure but I think that it is correct that the property at Allahabad was transferred in favour of my father's brother. My father told me that he had created an HUF and that there was a legal document but I do not have that document. I do not have any Bank Account or Income Tax details of the said HUF as they would have been in the custody of my father. I do not remember the year in which the HUF created. The first floor was rented out after it was constructed till I shifted to the first floor in February, 1995. I cannot say if any lease deed of the first floor was in the name of the HUF as all the documents were with my father and I had not seen them.

The second floor was constructed by my father and I gave money whenever he asked for it. I also contributed a sum of Rs. 50,000/- by cheque for the re-enforcement structure without which the second floor could not have been constructed and also constructed the remaining 450sq. feet of open area on the first floor without which the second floor could not have been constructed. I am not aware of the total cost of re-enforcement structure.

I have no knowledge if the land in Defence Colony was allotted only to Serving Army Officers but this piece of land was allotted to my father in the Rehabilitation, compensation scheme of the land and properties of my grandfather Late Sh. Chunni Lai Mehta left behind in Pakistan for which all the necessary documents relating to this property from L&DO records have been filed.

Q. You have claimed that for acquiring the land on lease and construction of the disputed property the funds were received from a family nucleus. Please show any document on record suggesting formation of any family nucleus and the payment made from such family nucleus? (Objected to as the case is of ancestral nucleus and blending and not funds from any family nucleus).

Ans. This land was allotted under the Rehabilitation and compensation scheme in lieu of the land and properties of my grandfather Chunni Lai Mehta left in Pakistan because my father was in his 20s and could not have bought any land and property in Pakistan. In the locker exchange program between India and Pakistan, jewellery had come from Pakistan which my mother had sold and given it to my father for construction along with funds were also given by my grandfather and my maternal grandfather for the construction. It may be please be noted that the document of the loan taken from the Government of India to the tune of Rs. 24,500/- was inadequate to do the construction of 1500sq. feet where as I clearly remember that the cost of construction was about Rs. 48000/-; There is no document on record but I am a coparcener. There is no document to show creation of any HUF."

(emphasis supplied)

18. It is easily noticeable that Defendant No. 1 has completely contradicted himself during the cross examination. He has been unable to sustain his stand on any of the issues. On being confronted with specific questions

regarding proof of payments, he has been unbale to back-up his statement with any documentary evidence. His stand is evasive and unspecific and lacks conviction. He has produced bank statements which were exhibited by DW-1 as Ex. DW-1/1 to DW-1/75. These transactions have been controverted by the Plaintiff, on the ground that the said monies were paid as monthly rent by Defendant No. 1 to Defendant No. 2 and that these transactions only prove that transfer of monies by Defendant No. 1 to Defendant No. 2. I agree with the Plaintiff‟s objection. The purpose for which these monies were paid or were used cannot be inferred from these transactions. The purported transactions made by Defendant No. 1 have been demonstrated to be payments made on account of rent, as the said payments appear periodically. To prove the utility of these payments, Defendant No. 1 should have adduced direct evidence to this effect. The onus of proving the alleged contribution rested on Defendant No.1, and he has not led any credible evidence to prove his statement. Pertinently, the allegation of co-

ownership of Defendant No. 1 in the suit property by blending of assets has no legal basis. It is trite law that a contributor to construction or purchase consideration of an immovable property does not acquire any right in the said property. The right of contributor is limited to the extent of seeking recovery of the said contributions made by him. Similar view has been reiterated by this Court in K.L. Garg v. Rajesh Garg, MANU/DE/0321/2013. In absence of any valid deed of conveyance in favour of Defendant No. 1, no title over the suit property can be claimed solely on the basis of the allegation that money has been invested in the construction and renovation of the suit property. Significantly, the evidence brought on record also does not support the stand taken by Defendant No. 1.

Therefore, I find no credibility in the stand of Defendant No. 1 that the sale proceeds of the properties has been utilized for the construction of the suit property. Moreover, as earlier discussed, mere contributions made by the Defendant No. 1 would not confer any ownership over the suit property. I thus reject this contention of Defendant No.1.

B. Existence of HUF

19. Defendant No.1 has also set up the defence of HUF. The law relating to HUF is well settled. The burden of proving existence of HUF is cast upon the party who claims, that such entity exists. To prove creation of an HUF, mere statements made by parties are not sufficient, the party alleging existence of an HUF must not only demonstrate its existence by providing specific details of properties but he must also prove existence of an ancestral nucleus which by itself is adequate to purchase the property in dispute on the date of its acquisition. It is no longer res integra that the burden of proving the existence of an HUF is initially cast upon the party claiming the existence of the same and it is for them to demonstrate that a particular asset or property was purchased from the common corpus of the purported joint family. This requires the Plaintiff to lead reliable evidence in order to satisfy the burden. The Supreme Court in the case of Achuthan Nair v. Chinnammu Amma has also held as under:-

7. ...Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the

law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well-settled proposition of law...."

[Emphasis supplied]

20. Further, also it would be worthwhile to refer to another decision of the Supreme Court in Lakkireddi Chinna Venkata Reddi and Ors. v.

Lakkireddi Lakshmama wherein it has held that:

"8....Law relating to blending of separate property with joint family property is well-settled. Property separate or self- acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein: but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other member of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordinarily be regarded as an admission of a legal obligation."

(Emphasis supplied)

21. The only exception to the aforesaid rule is by members making an express declaration of their intention to pool their self-acquired assets and throwing them in the common hotchpotch. Self acquired property of a member of joint Hindu Family may be impressed with the character of joint

family property if it is voluntarily thrown by the owner into the common stock, with the intention of abandoning their separate claims in such property. Post amendment of the Hindu Succession Act, 1956, property inherited from an ancestor does not ipso facto become property of an HUF, rather it is deemed to be self- acquired property in the hands of the person inheriting the same. [See: D.S. Lakshiaiah v. L. Balasubramanyam, (2007) 10 SCC 602, Achuthan Nair v. Chinnammu Amma, (1966) 1 SCR 454, Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshamma, (1964) 2 SCR 172 Sunny (Minor) v. Raj Singh, 2015 SCCOnline Del 13446].

22. In the instant case, Defendant No. 1 has premised the plea of HUF on the basis of alleged investments made by him and the blending in of assets of Defendant No. 1 and 2. It is claimed that an HUF was created for the purpose of reconstruction/construction of the first floor and second floor on the B-97, Defence Colony, New Delhi. Defendant No.1 has further challenged the entitlement of Defendant No. 2 to dispose of the suit property on the ground that the same was constructed from ancestral funds, and gives the property, the colour and character of a joint family property belonging to Defendant No. 1, his father (Defendant No. 2) and his grand-father (Father of Defendant No. 2). The above contention is specious and baseless. The pleading lay no foundation of creation and existence of HUF. There is also no evidence to support this contention. The concept of blending of assets and creation of HUF is thus baseless and hollow. Defendant No. 1 has failed to adduce any other kind of documentary or oral evidence to show existence of HUF. There is no material on record to draw any legal presumption regarding jointness in family in food, place of worship or estate. Defendant

No.1 has set up defense contrary to the documentary evidence placed on record by Plaintiff, which proves that the entire property was self-acquired by proforma Defendant No. 2. Therefore, I cannot declare that the suit property acquired the status or colour of an HUF property.

C. Investment By Father In Law

23. Defendant No. 1 adduced several other alternate arguments to substantiate existence of HUF and discharge the burden cast upon him to prove his ownership. In this backdrop, it will also be apposite to peruse the pleadings of Defendant No. 1. The relevant portion is extracted hereunder:

4. That Paragraph 4 is denied for want of knowledge, and in reply it is submitted that Defendant No. 2 only purchased the plot of land i.e. B- 97 Defence Colony, New Delhi from the monies then advanced by Late Major B.C. Mehta, the father in law of Defendant No. 2 and that the present plot of land was constructed upto the ground floor by Defendant No. 2 with the monies advanced from the father of Defendant No. 2 namely Late Sh. Chunni Lai Mehta as his share in ancestral properties in Pakistan, who had then obtained monies from Pakistan and from the gold and jewellery which came from Pakistan in an locker exchange program and was divided between the family and also by selling Defendant No. 2's wife's Jewellery, hence, property No. B-97, Defence Colony, New Delhi was actually acquired with ancestral nucleus. The first floor of the property was constructed and renovated by Defendant No. 1 by selling of all his immovable assets and his earnings thereby blending his assets and income in property No. B-97, Defence Colony, thereby changing the status of the above mentioned property as a joint family property.

24. From the above, it becomes evident that the contention of Defendant No. 1 is that the property was purchased with the monies advanced by Late Major B.C. Mehta, the father in law of Defendant No. 2. If this was the situation, then certainly the character of the property would not be that of ancestral property under any circumstances. This self-contradictory plea does not assist Defendant No.1 and is unsustainable and is rejected.

D. Ancestral Property and Rehabilitation Scheme

25. During the course of trial and cross-examination, Defendant No. 1 has also set up an alternate case that the property had been allotted to Defendant No. 2 in lieu of the purported ancestral properties left behind in Pakistan by way of rehabilitation scheme. Defendant No. 1 has placed reliance on the fact that the lease deed executed by Defendant No. 2 has been done in consonance with Appendix XI, Rule 40(3) of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. The said rule for the sake of convenience has been extracted herein below:-

"40. Adjustment of compensation against purchase price of Government built property and plots. -

(1) A purchaser of a Government built property or a Government plot may adjust the net compensation payable to him against the purchase price of the property or the plot, as the case may be.

(2) Where the Government built property has been purchased on instalment basis or hire-purchase basis, the arrears of instalments, if any, shall be deducted from the gross compensation. After deduction of such instalments and public dues and other dues, the present value of the remaining

instalments including shall be set of against the present value of the remaining instalments, including interest the ownership of the superstructure and the site if it consists of free hold land, shall be transferred to the purchaser. If the site was held by the purchaser under lease, it shall be demised to him on such terms and conditions as may be determined by the Settlement Commissioner.

(3) Where the present value of the remaining instalments of the purchase price including interest, exceeds the amount of the net compensation payable to the purchaser, the number of instalments and the amount of each instalment may by agreement which the purchaser be revised. As soon as the full price (including interest, if any), has been paid, the ownership of the superstructure shall be transferred to the purchaser. If the site on which the superstructure stands consists of freehold land the site shall also be transferred to the purchaser. If the site is held on a lease, the purchaser shall hold the site on such terms and conditions as may be determined by the Settlement Commissioner.

Explanation - In the case of the urban area of the town of Delhi the terms and conditions of the lease shall be as in Appendix XI but the purchaser shall have the option to continue to hold the site on the terms and conditions originally agreed upon by him as in Appendix XII or XIII.

(4) Where the Government built property was purchased otherwise than on instalment basis or hire-purchase basis and the entire price has not been paid, the balance of the purchase price shall be set off against the net compensation payable to the purchaser.

(5) Where the purchaser of a Government built property on instalment basis or otherwise does not agree to the compensation payable to him being adjusted against the balance of the purchase price due from him, he may continue to pay the purchase price upon the terms originally agreed upon, but in

such a case the payment of compensation to him shall be postponed to such a date as the Central Government may, by general or special order, specify."

[Emphasis supplied]

26. There is no factual foundation of this plea in the pleadings. Infact Defendant No. 1 has not led any evidence in support thereof; moreover Defendant No. 1‟s cross-examination demonstrates that the plea has been contrived without any underlying foundation. The relevant portion of the cross examination on this aspect is as under:-

"The Plot B-97, Defence Colony was allotted to Col. J. B. Mehta under the rehabilitation compensation scheme by Resettlement Commissioner somewhere around 1950. ...

The ground floor and first floor were constructed by my father Col. J. B. Mehta from the funds taken from my grandfather Late Sh. Chunni Lal Mehta and of my maternal grandfather Late Sh. B. C. Mehta along with that my mother selling of her jewellery to the tune of Rs. 5,000/- from the locker exchange program of the ornaments got from Pakistan. We do not have any records of the funds taken from my grandfather or my maternal grandfather or my mother as this pertains to 50‟s and 60‟s. This was communicated to me not only by my father but also by the family members. This was told to me in 1962 when the construction took place.

...

As far as I remember Sh. C. L. Mehta died in 1966 or 1967. After shifting from Pakistan Late Sh. C. L. Mehta resided at Allahabad. I have no record of my grandfather having given any declaration that he had not received any compensation under the rehabilitation scheme.

.....

My father had mentioned that he had taken a loan from the Government of India in 1961 but I do not know if the loan was

for Rs. 24,600/-. I am not aware of any mortgage deed executed by my father with the Government of India. ...

It is correct that Late Sh. C. L. Mehta had a house in Allahabad. It is incorrect to suggest that the house in Allahabad was received against compensation for property left by him in Pakistan. My father has given a declaration that no one else has taken compensation for properties left in Pakistan and only he had taken the compensation for which B-97, Defence Colony was allotted to him. I am not aware in whose name the properties were in Pakistan. Again said, it has to be in the name of my grandfather Late Sh. C. L. Mehta.

As far as I remember Sh. C. L. Mehta died in 1966 or 1967. After shifting from Pakistan Late Sh. C. L. Mehta resided at Allahabad. I have no record of my grandfather having given any declaration that he had not received any compensation under the rehabilitation scheme. I think I had filed an RTI with respect to the details of the Allahabad property. I am not aware that the declaration under the rehabilitation scheme regarding non-receipt of compensation has to be given by the person in whose name the property was left in Pakistan. My father had one brother and two sisters. I am not aware if my grandfather and his two sisters had given up their rights in respect of the property at Allahabad in favour of his brother. I am not sure but I think that it is correct that the property at Allahabad was transferred in favour of my father‟s brother. ...

I have no knowledge if the land in Defence Colony was allotted only to Serving Army Officers but this piece of land was allotted to my father in the Rehabilitation, compensation scheme of the land and properties of my grandfather Late Sh. Chunni Lal Mehta left behind in Pakistan for which all the necessary documents relating to this property from L&DO records have been filed.

Q. Can you show any document from the record that the land was allotted to Col. J. B. Mehta in lieu of properties left by Late Sh. Chunni Lal Mehta in Pakistan?

Ans. The documents are Ex. DW3/A-1 (Colly). Q. You have claimed that for acquiring the land on lease and construction of the disputed property the funds were received from a family nucleus. Please show any document on record suggesting formation of any family nucleus and the payment made from such family nucleus? (Objected to as the case is of ancestral nucleus and blending and not funds from any family nucleus).

Ans. This land was allotted under the Rehabilitation and compensation scheme in lieu of the land and properties of my grandfather Chunni Lal Mehta left in Pakistan because my father was in his 20s and could not have bought any land and property in Pakistan. In the locker exchange program between India and Pakistan, jewellery had come from Pakistan which my mother had sold and given it to my father for construction along with funds were also given by my grandfather and my maternal grandfather for the construction. It may be please be noted that the document of the loan taken from the Government of India to the tune of Rs. 24,500/- was inadequate to do the construction of 1500sq. feet where as I clearly remember that the cost of construction was about Rs. 48000/-. ...

It is wrong to suggest that suit property was purchased not as a compensation but as a Army Officer who had served in the British Army and joined the Indian army.

(emphasis supplied)

27. The above testimony clearly brings out that, the contention raised by Defendant No.1 has no lawful or factual basis. Defendant No. 1 has essentially based his stand on Ex. DW 3/A-1 (Colly), claiming that it is Transfer Certificate dated 27.01.1961, i.e. Ex. DW 3/A-1 issued by the Office of the Settlement Commissioner (Govt. Built Property) to the Sub-

Registrar, Parliament Street, New Delhi, in accordance with Rule 90(15) of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955. It is

also claimed that, the aforesaid exhibit records that all sums due and payable in respect of the Lease Deed executed by Defendant No. 2 and the President of India, had been paid by him. However, on perusal of the aforesaid piece of evidence, it appears that, the plot was allotted to Defendant No. 2 by the Ministry of Defence as part of the resettlement policy and not in the capacity of a refugee who had relocated to India after the partition of undivided India, or on account of any ancestral property having been allegedly left behind in Pakistan. Defendant No. 2 made payments due and payable in respect of the allotment made by Ministry of Defence, which is also borne out of the documents produced by Defendant No. 1.

28. Pertinently, I find no evidentary support relating to the stand of Defendant No. 1 that there was an adjustment of compensation by the Resettlement Commissioner in respect of the allotment made to Defendant No. 2. I cannot decipher any such adjustment in Ex. DW 3/A-1 (Colly). On 30th August 1999, Defendant No. 2, paid Rs. 51,888/- to the Land and Development Office, pursuant to which a Conveyance Deed dated 12th March 1999, was executed in his favour granting the freehold rights over the plot upon which the superstructure including the Suit Property was constructed. In light of this, the feeble attempt made by the learned Counsel for Defendant No. 1 to draw reliance upon the fact that the Lease Deed executed by Defendant No. 2 and the President of India has been executed in terms of Appendix XI, Rule 40(3) of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, is wholly misplaced.

29. Significantly, the concerned officials of the Land & Development Office

were not produced before the Court. This also manifests that the Defendant No. 1 was not serious about the plea taken as no effort was made to make good this defence. Besides, the plea is premised on a misconceived notion that the rehabilitation scheme by itself is sufficient to establish the existence of ancestral nucleus. In absence of any pleadings and evidence brought on record to prove the same, the plea advanced remains unsubstantiated. In these circumstances, Court has no hesitation to reject this plea as well.

30. Defendant No. 1 had also contended that the monies were received by way of gold and jewellery which came from Pakistan in a locker exchange program, however, no evidence has been led in support of such claim. Further, the Defendant‟s assertion that the monies were obtained by selling Defendant No. 2‟s wife‟s jewellery has also not be demonstrated by any evidence. Moreover, such a plea would also not further the argument of Defendant No. 1 that, the property was purchased with the monies obtained by way of sale of ancestral property, since the property was conveyed in the name of Defendant No. 2 alone.

31. Similarly, Defendant No. 1‟s assertion that ground floor of the superstructure constructed by Defendant No. 2 on the property was by way of "monies advanced from the father of Defendant No. 2 namely Late Sh. Chunni Lal Mehta as his share in ancestral properties in Pakistan, who had then obtained monies from Pakistan", remains uncoroborated and does not give the suit property a colour of „joint family property‟.

32. Defendant No. 1 has also failed to get Defendant No. 2, with whom the

purported HUF exists to depose as to its validity. To the contrary Defendant No. 2 is his cross- examination deposed as under:

"This house allotted to me around 1950-60 under the rehabilitation scheme. I did not take any financial assistance from my father or my father in law for this house. I did not inherit anything from my father, not even a gun.

It is correct that my son and his family reside on the first floor. My son used to pay me rent. I do not know if he received rent from his employer. It is incorrect to suggest that the rent paid by my son was used for running the house hold. Vol.(That replaced the rent I was getting from the tenant). The rent paid by my son was used by me for expenses as I liked. I do not remember exactly what was the rent paid by him but it was around Rs. 7,000/- later on. The rent increased ever year by Rs. 1,000/-. It never decreased.

It is incorrect to suggest that both these properties were sold by defendant No.l and the money was invested by him in construction of this House No. B-97 Defence Colony.

Q.9 Please see Ex. D-4, Ex. D-5, Ex. D-6, Ex. D-7, Ex. D-8, Exv D-9, Ex. D- 10 and Ex. D-11, and state for what purpose you received this cheque?

Ans. I do not remember having received any such cheque. No jewellery was sold by my wife for the construction of this house after the plot was purchased by me. I had constructed the house by taking loan from the Government and with my own money.

It is wrong to suggest that the defendant No. I has invested Rs. 3.13 lacs vide 9 cheques drawn on HSBC Bank for the construction of the suit property. It is further wrong to suggest that Rs. 1.41 lacs was withdrawn from HSBC Bank and paid in cash for construction and renovation of the suit property. It is further wrong to suggest that defendant No. l invested a total

sum of Rs. 8 27100 for the construction and renovation of the suit property. It is further wrong to suggest that defendant No. l used to pay monthly expenses for the house hold which have been disclosed to the Tax Authorities as rent.

It is further wrong to suggest that property No. B-97 Defence Colony was purchased and constructed from front received from my father, father in law or from the proceeds received after selling the jewellery of my wife. It is further wrong to suggest that as I do not get along with my daughter in law hence I want to oust the defendant No. 1 from the suit property. It is further wrong to suggest that I had booked a flat with AWHO at the behest of the defendant No.l and his wife, and later cancelled the booking obtained the refund and gave the proceeds to defendant No. 1."

33. The above testimony contradicts the stand of Defendant No. 1. Material facts or documents must be proved by leading the best evidence available. In the present case, Defendant No. 1 sought to plank his case on the fact that, owing to the existence of the HUF between Defendant No. 1 and 2, the property could not have been disposed of by Defendant No. 2, in a manner averse to the interest of Defendant No. 1. To prove the alleged fact, the best evidence would have been the unequivocal testimony or deposition of Defendant No. 2, affirming the existence or creation of HUF, comprising of Defendant No. 1 and 2. However, since Defendant No. 2 has deposed to the contrary, it is held that no HUF existed between the two Defendants; Thus, the alternate pleas advanced by Defendant No. 1 are not proved.

34. At this stage, it would be relevant to refer to a decision of this Court in Neera Chopra and Anr. v. Deepa Bhardwaj and Ors., 2019 SCC OnLine Del 7834, wherein it has been held that an allotment or a piece of land

granted to a displaced person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, is in the nature of a grant and therefore, does not retain the characteristics of properties left behind in Pakistan. The relevant paragraphs of the said decision have been extracted for ready reference:

"20. It is settled law that land granted to a displaced person is in the nature of grant and grant is always self-acquired. This Court in Aarshiya Gulati (Minor) through next best v. Kuldeep Singh Gulati, 2019 SCC OnLine Del 6867 has held as under:--

"54. In the opinion of this Court, land granted to a displaced person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is in the nature of a grant and does not retain the characteristics of properties left behind in Pakistan. A grant is always self- acquired. In Pohla Singh alias Pohla Ram (D) by LRs v. State of Punjab, (2004) 6 SCC 126, the Supreme Court held: "This clearly shows that a displaced person on account of his migration to India after partition did not get the same property which he had in the area which became Pakistan, but he got monetary compensation though it was possible that some property out of compensation pool could be sold or transferred to him out of the said compensation amount. The consequence is that the land which Dhanna Singh got in village Budhlada, in District Bhatinda is not the same land which he had got by way of military grant in Sind. It is an altogether different land purchased out of compensation amount which was payable to him or could have been transferred to him by setting off the valuation of the property against the compensation payable to him."

55. „Grant‟ according to Mulla on Hindu Law, 21st

Edition, para 228 is:--

"228. Separate Property- Property acquired in any of the following ways is the separate property of the acquirer, it is called "Self-Acquired", and is subject to the incidents mentioned in Para 222 above:--

1) xxxxx

2) xxxxx

3) Government Grant-Property granted by government to a member of a joint family is the separate property of the donee, unless it appears from the grant that it was intended for the benefit of the family....."

(emphasis supplied)

56. The same has also been authoritatively concluded in Mayne's Hindu Law and Usage, 16thEdition:--

"308. - Government Grant - Estate conferred by Government in the exercise of their sovereign power become the self-acquired property of the donee, whether such gifts are absolutely new grants, or only the restoration to one member of the family of property previously held by another but confiscated, unless members of his family show that they treated it as joint family property."

(emphasis supplied)

57. Consequently, a bare perusal of the above commentaries clearly shows that a Grant under Displaced Persons (Compensation and Rehabilitation) Act, 1954 is the „self-acquired property‟ of the donee.""

(Emphasis supplied)

35. From the analysis of the testimony of the witness, extracted above, it manifests that Defendant No. 1 has not produced any cogent evidence to

demonstrate the existence of an HUF, or a nucleus thereof from which it can be said that the property has been purchased. Defendant No.1 has also not been able to establish the plea of „doctrine of blending‟ premised on the contention that the contributions in respect of the construction and renovation of the suit property in the year 1999-2000 makes Defendant No.1 a joint owner in respect of the suit property. In absence of any adequate evidence to establish the existence of joint family or common stock of assets, it can only lead to conclusion that the burden of proving the existence of HUF has not been discharged by the Defendant No. 1. Resultantly, it is held that Defendant No. 1 has no right or interest in the suit property and therefore cannot seek a decree of partition in respect of the same. Thus, this issue is decided in favour of the Plaintiff and against Defendant No. 1.

Issue No. 3: Whether the present suit for recovery is premature.

36. The onus of proving the issue was placed on Defendant No. 1. The basis for framing the aforesaid issue is spelt out in the written statement as under:

"2. ... The present suit of the Plaintiff is pre-mature and hence it is liable to be dismissed. A perusal of the Gift Deed shows that the donor while gifting the subject property to the donee has selected to keep the possession of the subject property with himself as per clause 3 of the Gift Deed and has also stated that the donor shall enjoy uninterrupted passage on the property, the donor as per the terms of the Gift Deed has not handed over the physical possession of the subject property hence the Plaintiff has pre maturely filed the present suit for possession against Defendant No. 1. It is pertinent to mention here that the Plaintiff should have waited in terms of the Gift Deed to seek possession as the donor impliedly never wanted the Plaintiff to be in possession of the property during the life time of the

7. ... ... ... Defendant No. 2 has expressly stated in the Gift Deed that he shall have absolute possession of the suit property till his life time. Hence, the Plaintiff has pre-maturely filed the present suit."

37. The contention of Defendant No. 1 that since the donee had intended to retain the possession of the gifted property, he did not desire the plaintiff to be in possession thereof during his lifetime, is a misconceived and untenable premise for claiming the suit to be premature. The gift deed was executed on 23rd May 2011 and was later registered on 26th May 2011 by Defendant No. 2 at the Office of Sub-Registrar V, New Delhi. The intention to gift the suit property in favour of Plaintiff to the exclusion of Defendant No. 1 is manifest from the wording of the gift deed itself to the following effect:-

"that the donor shall have the right of usage and residence of the property during his lifetime and shall enjoy uninterrupted passage on the lproperty".

38. Though it was strongly pleaded that the gift deed contravenes Section 122 of the Transfer of Property Act, however, no legaly sound arguments were made to supplement the same. In the gift deed it has been specifically stated that the symbolic and legal possession in respect of the suit property is being given to Plaintiff. The Plaintiff has accepted the gift made in his favour. The delivery of physical possession of the gifted property is not an essential requirement for making a valid gift. The necessary requirement is transfer of ownership in the property. The retention of right to use the

property during lifetime of the donor does not in any way affect the transfer of ownership in favour of the donee. In the present case, the gift has been accepted, its execution and registration has been proved. The Plaintiff has become the rightful owner upon the execution of the registered gift deed by Defendant No. 2 in his favour and is entitled to have the suit property vacated.

39. I also find support for my conclusion from the views expressed by the Supreme Court in Renikuntla Rajamma v. K. Sarwanamma, (2014) 9 SCC 445, wherein it has been held as under:

"18. We are in respectful agreement with the statement of law contained in the above passage in K. Balakrishnan case [(2004) 1 SCC 581]. There is indeed no provision in law that ownership in property cannot be gifted without transfer of possession of such property.

19. The above decision in Maganlal Thakker case [(1997) 2 SCC 255] clearly rests on the facts of that case. If the gift was conditional and there was no acceptance of the donee it could not operate as a gift. Absolute transfer of ownership in the gifted property in favour of the donee was absent in that case which led this Court to hold that the gift was conditional and had to become operative only after the death of the donee. The judgment is in that view clearly distinguishable and cannot be read to be an authority for the proposition that delivery of possession is an essential requirement for making a valid gift.

20. In the case at hand as already noticed by us, the execution of registered gift deed and its attestation by two witnesses is not in dispute. It has also been concurrently held by all the three courts below that the donee had accepted the gift. The recitals in the gift deed also prove transfer of absolute title in the gifted

property from the donor to the donee. What is retained is only the right to use the property during the lifetime of the donor which does not in any way affect the transfer of ownership in favour of the donee by the donor.

40. Moreover, the interpretation that Defendant No. 1 has sought to give to the gift deed, does not appease to the Court in view of the categorical stand of Defendant No. 2 who has expressed no intention of imposing any restriction, on the suit property. During cross-examination of Defendant No. 2, Defendant No. 1 has not been able to bring out his intention of making a conditional gift. Plaintiff‟s title is to the exclusion of Defendant No. 1 and is entitled to institute the present suit against the said Defendant. Accordingly, the issue is decided against Defendant No.1 and in favour of the Plaintiff.

Issue No. 4: Whether the plaintiff would be entitled to a decree for possession/mesne profits? If so, at what rate he can claim mesne profits? OPP

41. In view of the findings on Issue Nos. 1, 2 & 3, it is held that Plaintiff is entitled to a decree of possession of the suit property. The pleas of co- ownership, the suit property being a joint family property etc raised to contest the suit were all attempts to retain the possession of the suit property. Having failed in his effort, Defendant No. 1 is held liable to pay the mesne profits. Usually, an enquiry under Order 20 Rule 12, CPC has to be made by the Court for determining the amount of mesne profits to be paid. However, since the mode and manner of inquiry has not been provided in the Code, inquiry can be through examination of parties on the aspect of prevailing rates, taking into account admissions of the parties, or through judicial guess

work, as held by this Court in Ajit Gogna v. Jitender Gogna, 2019 SCCOnline 7517. The relevant extract of Ajit Gogna (supra) reads as under:

"31. Civil law does not confer on a litigant a right to remain silent, putting the onus on the opposite party to prove. On the contrary, the procedure relating to civil disputes as contained in the CPC expressly requires pleadings to be specific and also provides for deemed admission of what is not specifically not denied. Civil law further provides, for serving interrogatories which the parties at whom interrogatories are directed can be compelled to answer and if refuse to answer, for deeming of admissions and/or drawing of adverse inference. Thus, it was/is not open to the defendant No. 1 to, simply deny the averment in the plaint of the rate of letting value at Rs. 40,000/- per month, without stating that if the letting value is not Rs. 40,000/-, how much it is. No such right of silence and/or "no knowledge" was available while filing the written statement or on 31st January, 2018 or today.

40. Else, with respect to determination of mesne profits, it has been held in Udayan Sinha v. Fertilizers & Chemicals Travancore, 2016 SCC OnLine Del 3247, Madhvi Singh v. Pavik Lifestyle Ltd., 2016 (232) DLT 11 (SLP(C) No. 32071/2016 preferred whereagainst was dismissed vide order dated 11th November, 2016), Consep India Pvt. Ltd. v. CEPCO Industries Pvt. Ltd., 2010 SCC OnLine Del 1349, Sakata Inx (India) Ltd. v. Pooja Aggarwal, 2012 SCC OnLine Del 916 (SLP(C) No. 17896/2012 preferred whereagainst was dismissed vide order dated 12th October, 2012), Inder Sain Bedi v. Chopra Electricals, 2012 SCC OnLine Del 5180 and Chander Kirti Rani Tandon v. VXL Lodging N. Boarding Services Pvt. Ltd., (2013) 197 DLT 266 that computation of mesne profits of residential properties entails some element of genuine, intelligent and honest guess work. In M.R. Sahni v. Doris Randhawa, AIR 2008 Del 110 (SLP(C) No. 13820/2008 preferred whereagainst was dismissed vide order dated 26th October, 2010), it was held that

there is an element of guess work and it was further held that as long as there is some evidence to sustain the same, the finding cannot be faulted. Mention may also be made of Nina International Pvt. Ltd. v. Saraswati Industrial Syndicate Ltd., (1999) 78 DLT 524 on the manner of making such judicial guess work and of Suman Verma v. Sushil Mohini Gupta, 2013 SCC OnLine Del 5081 dealing with National Radio & Electronic Co. Ltd. supra.

42. ... ... ... On the contrary, the defendant No. 1 is choosing to rely on doctrine of onus of proof and which itself in Murugesam Pillai v. Manickavasaka Desika Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6, Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413 and Citi Bank N.A. v. Standard Chartered Bank, (2004) 1 SCC 12 : AIR 2003 SC 4630 has been held to be an abstract doctrine which cannot be stretched to illogical conclusions and which in any case loses its value at the final stage. Framing an issue at this stage, in the circumstances, would only amount to yielding to the desire of the defendant No. 1 to use the process of this Court for perpetuating his possession of the flat. Had the conduct of the defendant No. 1 been bona fide, he himself would have been interested in expeditious disposal of the suit, to enable him to have a clean title to the flat and deal with the flat as may be his desire."

42. In the present case, plaintiff has claimed mesne profits @ 5000/- per day and has also claimed Rs. 1.50 lakh towards damages from 25th September 2011 till 24th October 2011, however no material evidence has been led on this aspect. Nevertheless, I am of the view that a local commissioner should be appointed for conducting an enquiry on this issue. Accordingly, Mr. K.S. Khurana (Retd. Addl. District Judge) Mobile: 9810257327, is appointed as the Local Commissioner. He will conduct an enquiry under Order XX Rule 12 of the Code of Civil Procedure, 1908, and submit his report; whereupon

the final decree for mesne profits shall be passed. The fees of the local commissioner shall be fixed by him in consultation with the parties. Parties are directed to appear before the local commissioner as and when notified. The issue is decided in favour of the Plaintiff and against Defendant No. 1 in the above terms. I may also note that Defendant No. 1 had been paying a monthly amount of Rs. 14,000/- to Defendant No. 2, as admitted in the written statement. The said payouts should be considered determinative of use and occupation charges. Taking judicial notice of this fact and also that, lease rentals are ordinarily subject to enhancement @ ten per-cent annually, it is held that as an interim measure, Defendant No. 1 is liable to pay a mesne profit @ Rs. 14,000/- per month from the date of institution of the suit i.e. 22nd November 2011 till the date of handing over of the property, with annual increase of ten per-cent from the said date. The aforesaid amount is being awarded as an interim measure and shall be payable forthwith and is subject to final determination of mesne profits.

Issue No. 5: Relief

43. In view of the above discussion, following reliefs are granted: (i) Decree of possession is passed in favour of the Plaintiff and against Defendant No. 1 for the suit property being the First Floor of the property No. B-97, Defence Colony, New Delhi as is marked in the site plan annexed with documents. (ii) Decree of permanent injunction is passed in favour of the Plaintiff and against Defendant No. 1, thereby restraining him, his agent, servant or any representative from creating any third-party rights or interest in the suit property. (iii) Preliminary decree is passed awarding mesne profits to the Plaintiff, to be paid by Defendant No. 1 in the aforestated

terms, which shall be executable forthwith.

44. The Plaintiff is entitled to the cost of the suit alongwith professional fee assessed at Rs. 3 lakhs, which shall be paid by Defendant No. 1 to the Plaintiff. Decree sheet be drawn up. Final decree for mesne profits shall be passed in terms stated above.

SANJEEV NARULA, J.

DECEMBER 17, 2019 nk