Delhi High Court
Brij Mohan Gupta vs Sona Devi (Since Deceased) & Ors. on 23 January, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 242/2018
% 23rd January, 2019
BRIJ MOHAN GUPTA ..... Appellant
Through: Mr. Subodh K. Pathak,
Advocate with Mr. Yash
Anand, Advocate, Mr. Adil
Alvi, Advocate and Ms. Pranita
Shekhar, Advocate (M.
No.9810025083).
versus
SONA DEVI (SINCE DECEASED) & ORS. .... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No. 3108/2019 (for reviving the appeal)
1. This application is allowed and the appeal is revived in
view of what is recorded in the order dated 12.03.2018.
C.M. stands disposed of.
C.M. No. 3109/2019 (for additional grounds)
2. This application is allowed and the appellant is allowed to
urge additional grounds and additional questions of law especially
challenge made to the order of the trial court dated 14.09.2018.
C.M. stands disposed of.
C.M. No. 3110/2019 (exemption)
3. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. No. 3111/2019 (for condonation of delay)
4. For the reasons stated in the application, delay of 18 days
in filing the appeal is condoned subject to just exceptions.
C.M. stands disposed of.
RFA No. 242/2018
5. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the plaintiff/brother (and
son of original defendant no. 1- the mother) impugning the Judgment
of the trial court dated 18.11.2017 by which the trial court has
dismissed the suit for declaration and partition filed by the
appellant/plaintiff with respect to property bearing no. A-19, Ashok
Vihar, Phase-1, New Delhi.
6. The case of the appellant/plaintiff in the plaint was that
the suit property was allotted by DDA to him but at the request of the
father/Sh. Sampat Rai, the perpetual Lease Deed dated 03.07.1972 of
the suit property was executed by the DDA in the name of the father,
Sh. Sampat Rai. It was however pleaded that the appellant/plaintiff
had paid the consideration for purchase of the property and some of
the consideration for the purchase of the property was paid out of the
HUF business. The suit property was pleaded to be an HUF property.
The lease of the plot was registered in the name of the father as the
father, Sh. Sampat Rai, was the karta and head of the family. The
appellant/plaintiff also by the subject suit impugns the Will dated
10.02.1993 executed by the father by which the appellant/plaintiff
was disinherited qua the suit property and the father gave the suit
property to defendant nos. 2 to 3 being his two other sons,
namely Sh. Satish Kumar Singhal and Sh. Prehlad Rai. In the suit
since one son (brother of plaintiff), Sh. Prehlad Rai, had expired, he
was represented by his son Sh. Nikhil Singhal who was sued as
defendant no. 2. Sh. Prehlad Rai had died during the pendency of
the said suit. The daughters of Sh. Sampat Rai were also made
party to the suit as defendants but it was pleaded that the daughters
had relinquished their shares in the suit property in favour of their
brothers i.e. sons of late Sh. Sampat Rai. The suit for partition was
therefore prayed to be decreed.
7. The suit was essentially contested by two family
members, and who were the defendant nos. 2 and 3 in the suit, legal
heir of the deceased Sh. Prehlad Rai namely Sh. Nikhil Singhal, and
Sh. Satish Kumar Singhal. The mother of the parties, Smt. Sona Devi,
who was sued as defendant no. 1 expired during the pendency of the
suit. The defence of the contesting defendants was that there was no
HUF. It was denied that the suit property was an HUF property. It
was denied that the appellant/plaintiff ever paid any amounts for
purchase of the suit property to the DDA. It was stated that the
appellant/plaintiff was posted as a Junior Engineer at PWD in Manipur
and he did not have enough money to rear his own family, what to talk
of giving funds to the father, Sh. Sampat Rai, for purchase of the
property. The father, Sh. Sampat Rai, had purchased the suit property
from his own funds. It was also pleaded by the contesting defendant
nos. 2 and 3 that the father had executed his Will dated 10.02.1993
bequeathing the suit property to the defendant nos. 2 and 3. It was
also the case of the defendant nos. 2 and 3 that in fact the
appellant/plaintiff had himself relied upon this Will dated 10.02.1993
because on the basis of this Will, the appellant/plaintiff had got his
name mutated with respect to the land situated at District Jind in
Haryana. The suit was accordingly prayed to be dismissed.
8. After the pleadings were complete, the trial court framed
the following issues:-
"(1). Whether the Will dated 10.02.1993 propounded by the
defendant nos. 1, 2 and 3 was validly executed by late Sh.
Sampat Rai and is genuine Will of the testator Sh. Sampat Rai?
OPD
(2). Whether the father of the plaintiff was not entitled to execute
the Will dated 10.02.1993 as claimed by the plaintiff? OPD
(3). Whether the suit has not been properly valued for the
purpose of court fee and jurisdiction? OPD
(4). Whether the plaintiff is entitled to the partition of the
property as claimed by him? OPP
(5). Relief."
9. The appellant/plaintiff led evidence and filed his affidavit
by way of evidence as Ex.PW1/A, but during his cross-examination,
he flared up and left the court and did not want to be cross-examined
further. Accordingly, the affidavit of evidence of the
appellant/plaintiff was struck-off. This is recorded in paras 45 and 46
of the impugned judgment and these paras read as under:-
"45. It is pertinent to mention that to prove his case, plaintiff
tendered his affidavit in evidence as Ex. PW1/A and partly
cross-examined by Ld. Counsel for the defendant no. 3 but
during his cross-examination, it was observed by the Court that
"Witness is unnecessarily shouting and leveling allegations
against the opposite party. He is also started cursing the
opposite party without any provocation and reason. Witness is
warned and to behave properly. He is not even ready to listen
to his counsel. He is again warned to behave properly and to
maintain decorum of the court. The witness is not ready to
listen at all and has left the witness box stating that he does
not want to be examined any further. In these circumstances,
there is no other option left except to close the plaintiff's
evidence. The witness is discharged."
46. In view of the above reasons, vide detailed order dated
12.05.2016, Ld. Predecessor directed that testimony of PW-1
Sh. Brij Mohan Gupta will not be read in evidence. The plaintiff
vide separate statement closed his evidence in affirmative on
09.08.2016."
10. The respondents/defendants thereafter led evidence and
proved various documents. The respondent no. 3/defendant no. 3/Sh.
Satish Kumar Singhal, the third son appeared as D3W1. The
documents which were proved by respondent no. 3/defendant no. 3 are
numerous documents towards the suit property being owned by the
father, Sh. Sampat Rai, carrying on his business, etc. and these
documents are referred to in para 47 of the impugned judgment, and
this para 47 reads as under:-
"47. Defendant no. 3 Sh. Satish Kumar Singhal got himself
examined as D3W1, he tendered his evidence by way of
affidavit as Ex. D3W1/A and proved on record the documents
i.e. copy of Perpetual lease deed dated 03.07.1972 and
registration dated 26.07.1972 as Ex.D3W1/1(OSR), copy of
possession letter dated 03.07.1972 as Ex.D3W1/2(OSR), copy
of letter dated 05.07.1979 of DDA as D3W1/3(OSR),copy of
letter dated 18.07.1972 of DDA as Ex.D3W1/4(OSR), copy of
possession letter dated 24.08.1971 as Ex.D3W1/6(OSR), copy
of letter received on 02.03.1971 issued by Sh. Sampat Rai as
Ex.D3W1/7(OSR), copy of letter dated 03.08.1971 of DDA as
Mark D3W1/A, copy of letter dated 07.05.1970 of DDA as
Ex.D3W1/8(OSR), letter dated 19.04.1971 of DDA as
Ex.D3W1/9(objected), copy of letter dated 03.11.1987 issued by
sh Sampat Rai as Ex.D3W1/10(OSR), certified copy of
mutation as Ex.D3W1/11(OSR), Income tax clearance
certificate as Mark D3W1/B and Mark D3W1/C, copy of
assessment order dated 29.05.1962 as Ex.D3W1/15, copy of
assessment order dated Nov, 1980 as Ex.D3W1/16, four
Acknowledgments dated 19.09.1979 as Ex.D3W1/17, copy of
Assessment order dated 10.03.1972 as Ex.D3W1/18, copy of
assessment order dated 16.02.1963 as Ex.D3W1/19, copy of
letter issued by Sh. Sampat Rai as Ex.D3W1/20, copy of letter
dated 18.01.1979 of CPED as Ex.D3W1/21, copy of letter dated
01.01.1979 alongwith documents as Ex.D3W1/22(colly), copy
of five acknowledgments as Ex.D3W1/23(colly), seven copies
of house tax payment receipts of different years as
Ex.D3W1/24(colly), copy of letter dated 16.08.1972 of DDA as
Ex.D3W1/25, copy of site plan as Ex.D3W1/26, copy of letter
dated 29.05.1988 of DDA as Ex.D3W1/27, copy of letter dated
03.04.1980 of DDA as Ex.D3W1/28, copy of letter dated
08.10.1980 as Ex.D3W1/29, copy of letter dated 14.10.1980 of
DDA as Ex.D3W1/30, copy of receipt of DDA dated
13.03.1981 as Ex.D3W1/31, copy of certificate of architect
dated 28.04.1981 as Ex.D3W1/32, copy of letter dated
29.04.1981 issued by Sh. Sampat Rai as Ex.D3W1/33, copy of
receipt of DDA dated 30.04.1981 as Ex.D3W1/34, copy of
receipt dated 18.11.1981 of DDA as Ex.D3W1/35, copy of letter
dated 18.11.1981 of DDA as Ex.D3W1/36, copy of receipt of
DDA bearing no. 370318 as Ex.D3W1/37, copy of letter dated
05.04.1982 as Ex.D3W1/38, copy of letter dated 15.05.1982 of
DDA as Ex.D3W1/39, copy of letter dated 06.07.1982 issued by
Sh. Sampat Rai as Ex.D3W1/40, copy of letter dated 25.05.1982
of DDA as Ex.D3W1/41, copy of letter dated 12.07.1982 of
DDA as Ex.D3W1/42, copy of letter of DDA with respect to the
letter of Sh. Sampat Rai dated 28.12.1982 as Ex.D3W1/43, copy
of letter of DDA dated 29.01.1983 as Ex.D3W1/44, copy of
receipt of DDA dated 09.05.1983 as Ex.D3W1/45, copy of
Form-C as Ex.D3W1/46, copy of letter dated 25.05.1983 of
DDA as Ex.D3W1/47, copy of Form-D as Ex.D3W1/48, copy
of receipts of payment of fees of sewer as Ex.D3W1/49, copy of
deposit voucher dated 27.08.1987 as Ex.D3W1/50, copy of
letter issued by Sh. Sampat Rai dated 03.11.1987 as
Ex.D3W1/51, copy of deposit voucher dated 15.02.1990 as
Ex.D3W1/52, copy of letter of DDA dated 23.07.1990 and
26.07.1990 as Ex.D3W1/53, copy of letter of DDA dated
12.03.1991 and 14.03.1991 as Ex.D3W1/54, copy of receipt of
cremation ground and death certificate of Sh. Sampat Rai as
copy of letter of DDA dated 23.07.1990 and 26.07.1990 as
Ex.D3W1/55, and Ex.D3W1/56, copy of application for
mutation as copy of letter of DDA dated 23.07.1990 and
26.07.1990 as Ex.D3W1/57, copy of deposit voucher dated
07.11.1994 as Ex.D3W1/58, copy of letter dated 29.12.1994 of
DDA as Ex.D3W1/59, copy of letter dated 20.02.2002 of DDA
as Ex.D3W1/60, copy of acknowledgment of DDA as
Ex.D3W1/61, copy of deposit voucher dated 16.01.2002 as
Ex.D3W1/62, copy of letter addressed to DDA dated
16.01.2002 as Ex.D3W1/63, copy of letter dated 15.01.1999
issued by Sh. Satish Kumar Singhal as Ex.D3W1/64."
11. The two attesting witnesses to the Will dated 10.02.1993
namely, Sh. Bharat Bhushan Jain and Sh. Sanjay Kumar Jain were
brought into the witness box on behalf of the respondents/defendants
and these persons deposed as D3W2 and D3W3 respectively. The
aspects with respect to deposition and cross-examination of these two
attesting witnesses are recorded in paras 56 to 60 of the impugned
judgment and these paras read as under:-
"56. D3W2 Sh. Bharat Bhushan Jain deposed that he has seen
original Will dated 10.02.1993 from the judicial record, which
is already exhibited as Ex. PW1/D3X5, the same bears his
signatures at point A already marked in red colour on page no.3.
He identifies signatures of Sh. Sampat Rai on the said Will
which are at points A, B & C already marked in blue colour on
all the pages of the said Will. He also identifies the signatures of
other attesting witness of the said Will at point B already
marked in red colour. He also identifies the signatures of
petition writer on the said Will at point X. They all signed the
said Will in the presence of each other.
57. D3W2 in his cross-examination deposed that deceased Sh.
Sampat Rai was having permanent residence at Dehradoon. He
knew him as he used to visit his son Sh. Prehlad Rai. He had
met him about 5-7 days prior to signing of the Will Ex.
PW1/D3X5. He expressed his desire to execute a Will. He told
him whatever his wish he get it typed from the petition writer.
He accompanied him to the petitioner writer Sh. Umesh
Sharma. He knew Sh. Umesh Sharma who was working for
many years at Rohtak as petition writer. He along with deceased
Sampat Rai and one Sanjay Jain went to the petition writer. He
came from his house. Deceased Sampat Rai came from his own
house separately. Sh. Sanjay Jain already reached at petition
writer. He told him that he want to execute the Will on
10.02.1993. The deceased disclosed to him, his desire to execute
Will at the shop of Sh. Prehlad Rai. Sh. Prehlad Rai was also
present at that time. He did not discuss in whose favour he wish
to execute the Will. He did not disclose to him about any
previous Will executed by him. He denied the suggestion that
deceased Sampat Rai executed a Will dated 10.04.1990 prior to
present Will. The time was fixed to visit petition writer was
about 1.00 p.m.. Sh. Sanjay Jain was not present at the time of
fixing of the time. Sh. Prehlad Rai was the husband of sister of
father of Sh. Sanjay Jain ('Fufa'). He never met wife of deceased
Sampat Rai. He is Income Tax Advocate at Rohtak. He denied
the suggestion that the Will Ex. PW1/D3X5 has been fabricated
in collusion with Sh. Prehlad Rai and it does not bear the
signatures of deceased Sampat Rai.
58. D3W3 Sh. Sanjay Kumar Jain deposed that he has seen
original Will dated 10.02.1993 from the judicial record, which
is already exhibited as Ex. PW1/D3X5 The same bears his
signatures at point B on page no.3 already marked in red colour.
He identifies signatures of Sh. Sampat Rai on the said Will
which are at points A, B & C already marked in blue colour on
all the pages of the said Will. He also identifies the signatures of
other attesting witness of the said Will at point A already
marked in red colour. Hes also identify the signatures of petition
writer on the said Will at point X. They all signed the said Will
in the presence of each other. He also identify the signatures of
'Numbardar' on the said Will at point Y on the back side of the
first page of the said Will.
59. D3W3 in his cross-examination deposed that he has not
talked to Sh. Bharat Bhushan Jain during the lunch, who is the
other witness examined today before lunch. Sh. Prehlad Rai was
his 'Fufa' who has since expired. He can identify the signatures
of Sh. Prehlad Rai. He has seen the document Ex. D3W3/PX1.
The same is signed by Sh. Prehlad Rai at point A. He is not
conversant with the signatures of Sh. Satish Kumar, the other
brother of Sh. Prehlad Rai. Sh. Prehlad Rai was having motor
parts business in Rohtak at Hissar Road, Rohtak. He does not
know its number. He denied the suggestion that Sh. Prehlad Rai
was doing the business of sale of old motor parts on the Patri on
the road side and was not having any regular shop. He denied
the suggestion that he is not aware of the number because he
was not having any shop. There was no number of the shop of
Sh. Prehlad Rai at that time. Deceased Sampat Rai used to
reside at Dehradoon and sometime used to come to reside with
his son at Rohtak for 2-3 months at a time. His House was at a
distance of two 'Galies' from house of Sh. Prehlad Rai. He had
met deceased Sampat Rai on the day of execution of the Will
and thereafter he remained in Rohtak for two months when he
met him thereafter he never met him during his lifetime.
60. D3W3 in his cross-examination further deposed that
deceased Sampat Rai had disclosed his desire about 5-7 days
prior to execution of the Will. He was alone at that time. No
other person was present. He told him that after 2-4 days he will
get prepare the Will at Rohtak Tehsil. Deceased Sampat Rai told
him on 10.02.1993 to visit the Rohtak Tehsil for execution of
the Will. The Will was got prepared at Rohtak Tehsil. Deceased
Sampat Rai and myself went together at about 1 or 1.30 p.m. He
was present at the time of preparation of the Will. He told that
prior to this Will he had executed another Will. He was not
having the copy of the said earlier Will. Deceased was literate
person and told about the earlier Will to the petition writer. The
other attesting witness namely, Sh. Bharat Bhushan Jain came
there when the Will was already got typed. He does not
remember whether Sh. Bharat Bhushan Jain read the contents of
the Will or not. He does not remember whether he had read the
contents of the Will or not. He is graduate. He is doing transport
business. He denied the suggestion that on the day of execution
of Will he was selling old moter parts. Today he does not
remember the period for which deceased Sampat Rai stayed at
Rohtak. He admitted that in April, 1993 deceased Sampat Rai
got fracture in his leg and he was hospitalized for the said
treatment. Deceased Sampat Rai had not expressed any reason
to execute the Will stated by him. He denied the suggestion that
the Will Ex. PW1/D3X5 has been fabricated in collusion with
Sh. Prehlad Rai & Sh. Bharat Bhushan Jain and it does not bear
the signatures of deceased Sampat Rai."
12. The trial court has accordingly held that there did not
exist any HUF and that it was the father, Sh. Sampat Rai, who was the
owner of the suit property because the title documents were executed
by the DDA in his favor. The trial court has also held that the
appellant/plaintiff failed to lead any documentary evidence to show
that he had made any contribution for the purchase of the suit
property. The trial court has also held that appellant/plaintiff has failed
to prove, much less by documentary evidence, that any HUF was
existing of which the father, Sh. Sampat Rai, was the karta. On the
basis of the evidence of the two attesting witnesses to the Will dated
10.02.1993 executed by Sh. Sampat Rai, the trial court has held the
Will as proved.
13. So far as the reasoning and conclusion of the trial court
that there exists no HUF, the same is consolidated and stated in para
79 of the impugned judgment and this para 79 reads as under:-
"79. On the other hand, plaintiff averred that there was HUF and
he had invested the money on the instructions of his father in
purchase of the suit property. However, no document proved on
record by the plaintiff. He has not examined even a single
witness to prove his plea that he invested in the purchase of
properties in the name of his father. There is no documentary or
oral evidence proved on record that there was existence of HUF
and the suit property belongs to HUF. On the other hand,
contesting defendants proved on the basis of above discussed,
cogent, coherent evidence and DDA official's record that late
Sh. Sampat Rai was the exclusive owner of the suit property.
Hence, in my considered opinion, being the owner of the self
acquired suit property, late Sh. Sampat Rai was competent to
execute Will especially the Will Ex. PW1/D3X5 dated
10.02.1993. On the basis of above observation and discussion,
issue no. 2 is decided in favour of contesting defendants and
against the plaintiff."
(Underlining Added)
14. At this stage, this Court would like to note that after
passing of the Hindu Succession Act, 1956, inheritance by a person of
a self-acquired property from his paternal ancestors upto three degree
above will not result in the creation of an HUF. The only way in
which an HUF can be said to exist after 1956 is if a person before
1956 had inherited the property from his paternal ancestors or if after
1956 a person throws his individual property into common hotchpotch
for creating an HUF. This is the subject matter of the ratios of the two
judgments of the Hon'ble Supreme Court in the cases of
Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen
and Others, (1986) 3 SCC 567 and Yudhishter v. Ashok Kumar,
(1987) 1 SCC 204. I have relied upon the ratios of these two
judgments in the case of Surinder Kumar v. Dhani Ram and Others,
227 (2016) DLT 217 and held that after 1956, an HUF can only come
into existence in two circumstances, first, the property being inherited
by a person from his paternal ancestors prior to 1956 and second, if no
HUF was existing prior to 1956 then an HUF can only be created by
throwing the property into common hotchpotch. Even with respect to
the creation of the HUF by throwing the property into common
hotchpotch, this Court in the subsequent judgment in the case of Mrs.
Saroj Salkan v. Mrs. Huma Singh and Ors. in CS(OS) No. 683/2007
decided on 05.05.2016 has held that in view of Order VI Rule 4 CPC,
there should be specific pleadings and specific averments as to when
the HUF was created after 1956 by throwing the property into
common hotchpotch. The principles of law laid down by this Court in
the cases of Surinder Kumar (supra) and Mrs. Saroj Salkan (supra),
and by reference to the ratios of the aforesaid two judgments of the
Hon'ble Supreme Court have been reiterated by a Division Bench of
this Court in the case of Sagar Gambhir v. Sukhdev Singh Gambhir
(Since Deceased) Thr His Legal Heirs & Anr., 241 (2017 ) DLT 98;
2017 (162) DRJ 575, and the relevant para of this judgment is para 10
and which reads as under:-
"10. In Chander Sen's case (supra), the Supreme Court held that after the
promulgation of the Hindu Succession Act, 1956, the traditional view
under the Hindu Law no longer remained the legal position. This
decision was followed incase (supra) the Supreme Court held that after
the promulgation of the Hindu Succession Act, 1956, the traditional view
under the Hindu Law no longer remained the legal position. This
decision was followed in Yudhishter's case (supra). We agree with the
legal position noted by the learned Single Judge which flows out of the
two decisions of the Supreme Court, which would be as under:-
"(i) If a person dies after passing of the Hindu Succession Act, 1956 and
there is no HUF existing at the time of the death of such a person,
inheritance of an immovable property of such a person by his successors-
in-interest is no doubt inheritance of an 'ancestral' property but the
inheritance is as a self-acquired property in the hands of the successor
and not as an HUF property although the successor(s) indeed inherits
'ancestral' property i.e. a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family
can come into existence after 1956 (and when a joint Hindu family did
not exist prior to 1956) is if an individual's property is thrown into a
common hotchpotch. Also, once a property is thrown into a common
hotchpotch, it is necessary that the exact details of the specific
date/month/year etc. of creation of an HUF for the first time by throwing
a property into a common hotchpotch have to be clearly pleaded and
mentioned and which requirement is a legal requirement because of
Order VI Rule 4 CPC which provides that all necessary factual details of
the cause of action must be clearly stated. Thus, if an HUF property
exists because of its such creation by throwing of self-acquired property
by a person in the common hotchpotch, consequently there is entitlement
in coparceners etc. to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited
prior to 1956, and such status of parties qua the properties has continued
after 1956 with respect to properties inherited prior to 1956 from paternal
ancestors. Once that status and position continues even after 1956; of the
HUF and of its properties existing; a coparcener etc. will have a right to
seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without
inheritance of ancestral property from paternal ancestors, as HUF could
have been created prior to 1956 by throwing of individual property into a
common hotchpotch. If such an HUF continues even after 1956, then in
such a case a coparcener etc of an HUF was entitled to partition of the
HUF property."
15. In the present case, when we refer to the plaint, there is
no averment made by the appellant/plaintiff as to how the HUF came
into existence i.e. whether because of the father, Sh. Sampat Rai,
inheriting property from his paternal ancestors before 1956 or if Sh.
Sampat Rai created an HUF after 1956 by throwing the property into a
common hotchpotch on a specific date, month and year. The relevant
pleadings made by the appellant/plaintiff in the plaint with respect to
the HUF are stated in paras 4,5,6,7 & 5 and 6 (repeated), and which
show inadequate pleadings with respect to the existence of an HUF,
and these paras read as under:-
"4. That in the aforesaid year of 1959, the salary of the plaintiff,
income from agricultural land, income from HUF business was the
only source of income of the family of the father of the plaintiff.
The money received from the salary of plaintiff, the agricultural
land which was HUF and from HUF business was used and
utilized for the purchase of property No A-19, Ashok Vihar,
Phase-I, Delhi to meet out the liabilities and expenditures and also
to perform the marriages of the daughters of late Shri Sampat Rai.
5. That the family was joint. Plaintiff had been sending the
money to his father and all the income in the hands of the father
was of HUF income either from the agricultural land, business or
the amount made available by the plaintiff.
6. That in the year 1959, the plaintiff was posted in PWD at
Manipur Imphal as Junior Engineer and from there he used to send
2/3rd of his income to his father.
7. That on or about 1967, the plaintiff participated in the
auction held by the DDA in respect of property No. A-19, Ashok
Vihar, Phase-I, Delhi. The bid of the plaintiff was accepted. He
was declared successful bidder in the said auction by the DDA and
the plaintiff became entitled to the allotment of the said property.
The auction money was deposited by the plaintiff. Since the
plaintiff was a member of HUF and, as such, to avoid any
misunderstanding in the family to maintain cordial relations, he
got the said property leased in the name of his father who was
Karta and manager of the HUF. The perpetual lease was obtained
in the name of the father of the plaintiff, even though the entire
cost of the plot was borne by the plaintiff alone. The payments
were made by various cheques to the D.D.A. by the plaintiff from
his peraonal account. The said amount was received by the
plaintiff from his employer CPWD. The plaintiff deposited Rs.
18,500/- by means of cheques bearing no.159861 dated
10.11.19967(1967) drawn on Punjab National Bank, R.K. Puram,
New Delhi, another cheque no. 513871 dated 30.7.1967
(30.7.1967) for a sum of Rs. 9260/- was also deposited by the
plaintiff with the DDA from his account No. 417 maintained by
him in State Bank of India, R.K. Puram, New Delhi. The plaintiff
also deposited Rs. 6937/- which includes penalty and interest. He
also paid the stamp and registration charges for the registration of
lease deed.
5. (numbering repeated) That in fact the plaintiff was the
owner of the property in question as he has made the entire
investment/payment from his own account received by him from
his employer. Even as per rules of the DDA, it is the plaintiff
alone who was entitled for the allotment of plot as he has given the
bid in his own name and he has deposited the entire amount
including the bid amount and the balance amount from his own
income and the HUF business and its income has nothing to do
with the same.
6. (numbering repeated) That, however, since the plaintiff was
having faith and interest in the family, as desired by his father, he
got the lease of the plot registered in the name of his father being
the Karta and head of the family. The father of the plaintiff was
head of the family and he used to act and hold things for and on
behalf of his family which consisted of the plaintiff and other
family members. The plaintiff, thus, have right and interest in the
plot No. A-18, (A-19), Ashok Vihar, Phase-I, Delhi, the
agricultural land, HUF business and various lands held in the
name of his father, the mother being the head of the family."
16. Therefore, there were not even sufficient pleadings made
by the appellant/plaintiff as required by law for the existence of an
HUF. In any case, and as observed by the trial court in para 79 of the
impugned judgment, that no documentary evidence, whatsoever, has
been filed by the appellant/plaintiff to show the existence of an HUF.
On the contrary, the respondents/defendants have filed various Income
Tax Assessment Orders of the father, Sh. Sampat Rai, and in these
Income Tax Orders show assessment of Sh. Sampat Rai only as an
individual i.e. there is no existence shown of any HUF. These
documents are already referred to in para 47 of the impugned
judgment, and this para has already been reproduced above. In my
opinion, therefore, the trial court has committed no error in rejecting
the case of the appellant/plaintiff that there did not existed any HUF
and that the suit property was not an HUF property.
17. So far as the issue of the father having left behind his
Will dated 10.02.1993, and which was proved through the two
attesting witnesses and exhibited as Ex.PW1/D3X5 is concerned, once
again, in my opinion, the trial court was completely justified on the
basis of the deposition of the two witnesses for holding that the father,
Sh. Sampat Rai, did execute his Will dated 10.02.1993. The trial court
has also held that the Will is also to be taken as proved as against the
appellant/plaintiff because the appellant/plaintiff himself relied upon
this Will for the purpose of getting mutation of the agricultural land at
District Jind, Haryana. These aspects are observed by the trial court in
paras 83 and 84 of the impugned judgment, which read as under:-
"83. It is pertinent to mention here that deceased testator late Sh.
Sampat Rai in the Will Ex. PW1/D3X5 specifically revoked the
earlier dated 06.04.1990. The Will is in regard to complete
immovable estate of deceased including agricultural land at
Safidon, Jind (Haryana). Although plaintiff did not got himself
presented in the witness box and his cross-examination could not
be completed. However, defendants in their evidence brought
more vital fact with regard to admission of Will Ex. PW1/D3X5
by the plaintiff and he acted upon the same to get mutation of
agricultural land at Safidon, District Jind, Haryana in his name on
the basis of said Will Ex. PW1/D3X5. D3W7 Sh. Sanjay Kumar,
Halqa Patwari from Revenue Department, Safedon appeared and
proved revenue record as Ex. Pw1/D3X2 having entry no. 6944
and sale deed dated 28.03.2013 proved by D3W8 Sh. Chetan,
Registry Clerk as Ex. D3W8/1. As per Ex.D3W6/A, revenue
record, the plaintiff applied for mutation.
84. There is a specific observation and submission of a copy of
registered Will dated 10.02.1993 by the plaintiff with the revenue
authorities for getting the mutation of the agricultural land in his
favour as per Will. The revenue authorities accordingly mutated
the agricultural land as per share of the plaintiff in his name. The
plaintiff himself admitted and acted upon the registered Will Ex.
PW1/D3X5 of his father late Sh. Sampat Rai. His averment in the
suit comes out to be false and there is a concealment of this vital
and important fact by the plaintiff. The fact is further corroborated
by the sale deed Ex.D3W8/1, which was executed by plaintiff
himself by selling 3 Kanal 13.6 Marla of agricultural land, of
which he become the owner after mutation on the basis of Will
dated 10.02.1993. These documents established beyond
reasonable doubt that plaintiff had full knowledge of the Will in
question and also taken benefit being the beneficiary."
18. Therefore, in my opinion, the trial court was completely
justified in holding that the deceased father, Sh. Sampat Rai, died
leaving behind his Will dated 10.02.1993 and the same was proved as
Ex.PW1/D3X5.
19. Ld. counsel for the appellant/plaintiff could not refer to
this Court any document to show that the appellant/plaintiff ever in his
income tax return or any other private document showed existence of
the suit property as an HUF property. In fact, in my opinion, since the
appellant/plaintiff was a Government servant, therefore it cannot be
said that in such a situation that an HUF was existing because for an
HUF business to exist, in which the appellant/plaintiff is a coparcener,
the appellant/plaintiff must participate in the HUF business, which
surely he could not have because he was a government servant. This
Court, therefore, uphold the findings of the trial court that there did
not exist an HUF and that the suit property was not an HUF property. I
also accept the reasoning, finding and conclusions of the trial court
with respect to the father leaving behind his Will dated
10.02.1993/Ex.PW1/D3X5 inasmuch as this Will was proved by both
the attesting witnesses who stood the test of cross-examination, and
this aspect has to be taken with the fact that the appellant/plaintiff
himself relied upon the Will for getting the agricultural land situated at
District Jind in Haryana mutated in his name. Though the ld. counsel
for the appellant/plaintiff argued that as per the Will dated 10.02.1993,
the agricultural land at District Jind, Haryana was to fall 1/3rd to the
share of the appellant/plaintiff, however, this fact cannot take away
from the fact that the appellant/plaintiff himself relied upon the Will
of the father dated 10.02.1993, and therefore, there remains no doubt
with respect to the validity of the Will dated 10.02.1993 executed by
the father, Sh. Sampat Rai.
20(i) Finally, this Court would like to note that when this
appeal had originally come up for hearing and admission on
12.03.2018, the appeal was disposed of with liberty to revive the same
after the decision in an application under Order XVIII Rule 3 which
was proposed to be filed by the appellant/plaintiff before the trial
court. This application under order XVIII Rule 3 CPC was filed by
the appellant/plaintiff before the trial court and the trial court has
dismissed the same vide its Order dated 14.09.2018, and the same has
been annexed to the application of the appellant/plaintiff being C.M.
No. 3109/2019, which has been allowed today. The appellant/plaintiff
has questioned this order by arguing that the trial court has wrongly
dismissed the application for leading rebuttal evidence because the
appellant/plaintiff had, before the respondents/defendants had led
evidence, only closed his evidence in affirmative, and once onus of
issues was on defendant nos. 2 and 3 in the suit, the trial court was
legally bound to fix the case for rebuttal evidence of the
appellant/plaintiff after the completion of evidence of defendant nos. 2
and 3.
20(ii). However, in my opinion, the trial court has rightly
rejected this argument by observing that it was not as if that the suit
was decided immediately after the defendants' evidence was closed,
but in fact, there were two dates which were fixed for final arguments
and the suit was thereafter decided and that if the appellant/plaintiff
really wanted to lead rebuttal evidence, the appellant/plaintiff would
have made such a prayer, whether by an application in writing or
orally before the trial court, and before the suit was decided by the
impugned Judgment dated 18.11.2017, however, no such request had
been made, and the trial court has now held by passing the Order dated
14.09.2018 that the appellant/plaintiff is estopped from claiming that
he wanted to lead rebuttal evidence. In my opinion, the trial court has
also rightly observed in the impugned Order dated 14.09.2018,
dismissing the application under Order XVIII Rule 3 CPC, that the
appellant/plaintiff has not filed his list of witnesses and also has not
averred what evidence and of which persons has to be led with respect
to the rebuttal evidence which was proposed to be led by the
appellant/plaintiff. I have also noted above that the appellant/plaintiff
did lead his evidence-in-chief originally, but on account of
acrimonious attitude of the appellant/plaintiff in leaving the court in
the middle of his cross-examination, his evidence was closed and his
affidavit by way of evidence filed prior to leading of evidence by the
defendant nos. 2 and 3 in the suit was thus not read as evidence in the
absence of lack of complete cross-examination. Even before this
Court, no averment has been made by the appellant/plaintiff with
regard to what documents the appellant/plaintiff will now file to show
the existence of the HUF, with the fact that so far as the Will dated
10.02.1993 of the father is concerned, the appellant/plaintiff has
himself relied upon this Will and therefore accepted the validity of the
Will of the father, and which in any case was proved through both the
attesting witnesses.
21. Ld. counsel for the appellant/plaintiff in an act of
desperation, has sought to claim rights in the suit property by alleging
settlement between the brothers, however, it is noted that no such
issue was got framed, and therefore even if such a plea was taken by
the appellant/plaintiff in his pleadings, such a plea would be deemed
to be abandoned.
22. In view of the aforesaid discussion, there is no merit in
the appeal. Dismissed. All pending applications are also disposed of.
JANUARY 23, 2019 VALMIKI J. MEHTA, J
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