Kailash Chand & Anr vs Santosh
2019 Latest Caselaw 523 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        RFA No. 72/2019

%                                                  28th January, 2019


KAILASH CHAND & ANR.                                    ..... Appellants
                          Through:       Mr. C.S.S. Tomar, Advocate
                                         (Mobile No. 9810622816).

                          versus

SANTOSH                                                ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 3897/2019 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

C.M. Appl. Nos. 3898-99/2019 (for delays)

2. For the reasons stated in the applications the delays in

filing and re-filing the appeal stand condoned, subject to just

exceptions.

C.Ms. stand disposed of.

RFA No. 72/2019 and C.M. Appl. No. 3896/2019 (for stay)

3. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit

impugning the Judgment of the trial court dated 31.05.2018 by which

the trial court has decreed the suit for partition filed by the

respondent/plaintiff/sister of appellant no. 1 with respect to the suit

property bearing no. D-7/68, Dayal Pur, Delhi, on a plot admeasuring

100 sq. yards belonging to the father, Late Sh. Kishan Lal. Appellant

no. 2/defendant no. 2 is the wife of appellant no. 1/defendant no. 1/son

of Late Sh. Kishan Lal.

4(i). It is undisputed that the suit property belonged to the

father Late Sh. Kishan Lal. Respondent/plaintiff/daughter claimed

that the father Late Sh. Kishan Lal died intestate on 02.10.2001 and

the mother also expired intestate on 23.05.2002, and hence the parties

to the suit, respondent/plaintiff and the appellant no. 1/defendant no. 1,

being the daughter and son of Late Sh. Kishan Lal have both become

equal co-owners and have acquired half ownership interest in the suit

property, and therefore, the subject suit for partition was filed claiming

50% ownership rights in the suit property.

4(ii). The suit was contested by the appellants/defendants

asserting that the father, Late Sh. Kishan Lal had sold the suit property

to appellant no.1/defendant no.1 vide usual Documents being

Agreement to Sell, General Power of Attorney etc. dated 05.03.2001

and the appellant no.1/defendant no.1 had sold the property to his wife

being appellant no.2/defendant no.2 vide Documentation dated

14.09.2011. It was also pleaded that the respondent/plaintiff had

received her share of the suit property from the father being an amount

of Rs. 3,00,000/-.

5. After the pleadings were complete, the trial court framed

the following issues:-

"4. The plaintiff filed replication denied the assertions made in the WS and retreating the assertions made in the plaint. From the pleading of the parties the following issues were framed:-

1. Whether the plaintiff has ½ share in the suit property bearing no. D-7/68, Dayal Pur, Delhi, measuring 100 sq. yds., as alleged? OPP.

2. Whether the plaintiff is entitled to a decree of partition against the defendants in respect of suit property as claimed? OPP.

3. Whether the plaintiff is entitled to a decree of permanent injunction in respect of suit property against the defendants as claimed? OPP.

4. Whether the father of plaintiff and defendant no. 1 namely Sh. Kishan Lal has sold the property to the defendant no. 1 on 05.03.2001 and if so, to what effect? OPD-1.

5. Whether the plaintiff received Rs. 3 lacs in respect of her share in the suit property from her father before his death as claimed? OPD 1& 2.

6. Relief.

5. It is a matter of record that additional issue was framed on 23.02.2018 as follows:-

"Whether plaintiff is entitled to decree for declaration declaring documents dated 05.03.2001 by late Sh. Kishan Lal in favour of defendant no.1 and documents dated 14.09.2011 executed by Sh. Kailash Chand in favour of Smt. Saroj Devi as null and void? OPP"

6. The evidence which was led by the parties is recorded in

paras 6 to 17 of the impugned judgment, and these paras read as

under:-

"6. It is a matter of record that parties choose not to lead any additional evidence on the additional issue and stated that they had no objection, in case the evidence already on record was read as evidence on the above issue also.

7. To substantiate her case, plaintiff examined four witnesses i.e. she herself. as PW-1, Sh. Ram Pal as PW¬2, Sh. Rajesh Kumar, LDC from the office of Collector of Stamps as PW-3 & Sh. Rajeev Ranjan, UDC in the office of Divisional Commissioner, Treasury Branch as PW-4.

8. PW¬1 deposed on affidavit Ex.PW1/1 and relied upon documents viz. her voter ID card as Ex. PW1/A, electricity bill as Ex.PW1/B, site plan as Ex PW1/C, Mark A receipt regarding cremation of father of plaintiff , Mark B-copy of death certificate of mother of plaintiff and Mark C-certain photographs.

9. PW-2 deposed on affidavit Ex.PW1/2 and deposed along the lines of the plaint.

10. PW-3 filed copy of relevant entry as Ex. PW3/1.

11. PW 4 Sh. Rajeev Ranjan proved he relevant stam vendor sale register as Ex PW 4/1. Thereafter PE was closed.

12. Defendants examined five witnesses in support of their case i.e. Smt. Saroj/D¬2 as DW2, Sh. Kailash Chand/D¬1 as DW¬1 and Sh. Nand Kishore as DW-3 and Sh. Sandeep Kumar as DW¬4 and SH. Mahesh Sharma as DW5.

13. DW-1 deposed on affidavit Ex DW1/A and relied upon documents already exhibited as Ex.PW1/D1 and PW1/D6.

14. DW-2 deposed on affidavit Ex DW 2/A.

15. DW¬3 deposed on affidavit Ex. DW3/A and relied upon already exhibited documents such as Ex. PW1/D1 , D¬4 & D¬5.

16. DW-4 deposed on affidavit Ex. DW4/A and relied upon already exhibited documents such as Ex. PW1/D1 colly.

17. DW 5 Mahesh Sharma deposed on affidavit ExDW5/A and relied on documents already Ex PW 1/D1, D4, D5 and D6."

7. The trial court has held that the documents which are

relied upon by the appellant no.1/defendant no.1 in his favour dated

05.03.2001, and said to be executed by the father, are forged and

fabricated documents. For this purpose, the trial court has referred to

the fact that the appellants/defendants failed to prove the purchase of

the stamp papers from the concerned stamp vendor, inasmuch as the

License Number of the stamp vendor was No. 160 but the stamp

vendor from whom the impugned stamp papers were purchased was

holding License No. 164. Trial court has also referred to the

discrepancies in the statements made by the attesting witnesses for

disbelieving the case of the appellants/defendants. The trial court has

further concluded that since the appellant no.1/defendant no.1 was not

the owner of the suit property in terms of the Documentation dated

05.03.2001 alleged to have been executed in his favour, hence the

appellant no.1/defendant no.1 could not have further transferred the

suit property to his wife i.e. appellant no. 2/defendant no. 2 by the

subsequent Documentation dated 14.09.2011.

8. Ld. counsel for the appellants/defendants does not dispute

the findings of the trial court with respect to the illegality/invalidity of

the documents executed in favour of the appellant no.1/defendant no.1

by the father on 05.03.2001, and in my opinion even if this challenge

was laid, this challenge was liable to be rejected for the additional

reasons which I am giving in exercise of powers under Order XLI

Rule 24, CPC. The additional reasons for my opinion are that the

alleged Documentation dated 05.03.2001 in favour of the appellant

no.1/defendant no.1/son are not only unregistered documents, but the

fact of the matter is that the consideration is alleged to have been paid

to the father in cash, and no evidence has been led in order to establish

an actual payment of consideration by the appellant no.1/defendant

no.1/son to the father Late Sh. Kishan Lal i.e withdrawal/availability

of moneys with appellant no. 1/defendant no. 1 from/in his bank

accounts on crediting of the alleged sale consideration in the bank

account of the father. I may further note that no evidence has been led

by the appellants/defendants that the Documents dated 05.03.2001 and

14.09.2011 were acted upon, inasmuch as, the suit was filed on

26.11.2011 and from 05.03.2001 till the filing of the suit on

26.11.2011, there is no effort made to get the suit property mutated in

the name of the appellant no.1/defendant no. 1 in any public record, be

it the house tax record or the income tax record. The best proof of the

validity of the documents would be of the documents having been

acted upon, by relying on the same before any public authority, and in

this regard the appellants/defendants have miserably failed.

9(i). The only argument which is urged on behalf of the

appellants/defendants before this Court is by placing reliance upon the

judgment of the Hon'ble Supreme Court in the case of Prakash and

Others. v. Phulavati and Others, (2016) 2 SCC 36. It is argued on

behalf of the appellants/defendants that the '2005 Amendment' to

Section 6 of the Hindu Succession Act, 1956 is prospective in nature,

and therefore, the respondent/plaintiff/sister could not have claimed

rights in the suit property, inasmuch as, the father Late Sh. Kishan Lal

had expired on 02.10.2001.

9(ii). In my opinion, this argument urged on behalf of the

appellants/defendants is completely misconceived because the issue of

prospective applicability of the '2005 Amendment' to Section 6 of the

Hindu Succession Act would only have been relevant if it was the case

of the appellants/defendants that the property was not owned by the

father exclusively i.e. the property instead was not the self-acquired

property of the father Late Sh. Kishan Lal, and that the suit property

was an HUF property, and admittedly it is not the case of the

appellants/defendants that the suit property is/was an HUF property.

In fact the appellants/defendants claimed that the suit property

exclusively belonged to the father Late Sh. Kishan Lal, because the

appellant no.1/defendant no.1 claims to have purchased the suit

property from his father in terms of the Documentation dated

05.03.2001.

10. In view of the aforesaid discussion, there is no merit in

this appeal. Dismissed. All pending applications are also disposed of.

JANUARY 28, 2019                           VALMIKI J. MEHTA, J
AK