DELHI HIGH COURT

ASHOK SARDANA VS DROPADI DEVI & ORS ON

15 OCTOBER, 2012

Date: 15th Oct, 2012

CS (OS) No.2515/1991

1.   Plaintiff and defendants No.2 to 4 are brothers and sisters whereas Smt. Dropadi Devi (defendant No.1) was their mother who had died during the pendency of the suit.

2.   Plaintiff (the elder son of Dropadi Devi) filed the suit for partition seeking partition of (i) House No.B-39, Nizamuddin West, New Delhi (in short, called "Nizamuddin Property"), (ii) House No.A-82, New Friends Colony, New Delhi (in short, called "New Friends Colony Property") and

(iii)  Agricultural lands at Hisar (Haryana).

3.  It is averred in the plaint that the father of the plaintiff and defendants No.2 to 4, namely, Dr. R.N.Sardana was a doctor by profession and a specialist in Venereal diseases. He migrated from Karachi, Pakistan at the time of partition leaving behind his ancestral properties. After migration, he joined the then Municipal Committee as a Medical Officer. He also carried out a  lucrative and busy private practice. Dr. Sardana was allotted agricultural lands in Vill. Nangal, Distt. Hisar, Haryana and a 200 Sq. Yards plot at B-39, West Nizamuddin, New Delhi, in lieu of properties left behind in Pakistan. Dr. Sardana constructed a residential house on the land with his own funds. During his lifetime, he purchased large number of shares in various companies and held fixed deposits in companies as well as banks. Some of the shares and fixed  deposits were held by him individually in his own name and some were held jointly with his children. Dr. Sardana died on 2nd November, 1965. At the time of his death, the family was living in Nizamuddin property and the same was also let out to three tenants.

4.   It is further alleged in the plaint that though the plaintiff is the eldest son, the parties agreed that succession certificate would be obtained in the name of mother i.e. defendant No.1. The plaintiff and defendants No.2 to 4 consented to defendant No.1 for obtaining succession certificate in respect of all immovable properties of Dr. Sardana. The succession certificate was granted in favour of defendant No.1 by the competent Court on the basis of "No Objection Certificate" issued by the parties concerned. According to the plaintiff, defendant No.1 was holding the said suit properties in trust for and on behalf of all the members of the joint family. She was also receiving rents from the immovable properties. After the death of Dr.Sardana, defendant No.1 (the mother) acted for and on behalf of the joint family as a manager being the eldest member of the joint family, otherwise, she was a housewife without any source of income of her own. The plaintiff was carrying out practice in taxation. Defendant No.2 set up an industrial unit for manufacturing heating elements at 42, New Okhla Industrial Complex, Phase-II, New Delhi with joint family funds, whereas defendants No.3 & 4 were housewives.

5.   It is also averred by the plaintiff in the plaint that in the year 1972, the family decided to acquire another residential property, i.e. a plot allotted in the name of defendant No.1 in New Friends Colony. The entire payment of `25,000/- towards the cost of the plot was paid from the account of defendant No.1 which was derived from the funds received by her on the basis of succession certificate and which were held by her in trust for and on behalf of the members of the joint family. It is the case of the plaintiff that the entire cost of construction was also borne out from the sale of shares, realization of amounts of FDR and other resources of joint family. The plaintiff had also contributed towards the construction of the house but, no accounts in respect of the same were maintained. After the construction, the New Friends Colony house was let out. Defendant No.2 also shifted to a portion of New Friends Colony house in the year 1980.

6.   With regard to Nizamuddin property, other members of the joint family relinquished their right in respect of the same in favour of the plaintiff and defendant No.2. Thus, the plaintiff and defendant No.2 have a half share each in the said residential house. When the suit was filed, the plaintiff sought 1/5th share also in the property B-39, West Nizamuddin, New Delhi but later on, the plaintiff was allowed to amend the plaint whereby the plaintiff claimed 50% share in the said property.

7.   A common written statement was filed by defendants No.1 & 2 wherein they have admitted the relationships between the parties. 7.1 As regards the Nizamuddin property, it is stated in the written statement that the same is owned by the plaintiff and defendant No.2 in equal shares wherein defendant No.1 had constructed one room on the ground floor, one room on the first floor and a Barsati set after the death of her husband. The plaintiff is occupying the  ground floor whereas the first floor is occupied by defendant No.2. The second floor is on rent which is realized by the plaintiff.

7.2 All the defendants have no objection to the partition of Nizamuddin property between the plaintiff and defendant No.2 in equal shares. They have also no objection to the partition of agricultural land between the parties if, the Court holds that it has jurisdiction to do so. 7.3 As regards the land in Vill. Nangal, Tehsil Fatehabad, Distt. Hisar, it is stated in the written statement that the husband of defendant No.1, namely, Dr. R. N. Sardana was a resident of Karachi in Pakistan where they used to reside. After partition of the country in 1947, they migrated to India. Dr. Sardana joined service as Medical Officer with the Delhi Municipal Committee. He was not carrying on any private practice. The above said agricultural land was allotted to him. All revenues generated from the said land were collected by the plaintiff. However, he never rendered any account in respect of the income from the agricultural land either to defendant No.1 or to any of the other defendants. 7.4 Regarding property No.A-82, New Friends Colony, it is submitted by defendants No.1 & 2 that the father of defendant No.1, namely, Sh. Bulaqi Dass became a member of the New Friends Coop. House Building Society Ltd. (in short, called the "Society") by moving an application to the aforesaid society on 9th March, 1967. He died in 1967. During his lifetime, he executed his Will dated 27th February, 1966 whereby he had bequeathed his membership rights in respect of the land in the society in favour of defendant No.1, mother of plaintiff and defendants No.2 to 4. After the death of her father, the defendant No.1 became a member of the society who thereafter started making payment to the society towards the cost of the plot. According to her, she constructed building on the plot of land in the society from the funds raised from her daughter, Smt.Urmil Thusoo, defendant No.3 and her son, Pramod Sardana, defendant No.2, his wife, Shashi Sardana and through sale of some shares which were held jointly by her and defendant No.2 and also by way of withdrawal of amounts in FDs which were in her name. Defendant No.1 had a bank account with United Commercial Bank, Nizamuddin West, New Delhi which was in the joint names of herself, her daughter defendant No.3 and her son defendant No.2. The property constructed by her is single storeyed and only the servant quarter is double-storeyed.

8.   After the construction of the New Friends Colony property, it was assessed to house tax and defendant No.1 started paying the same. Therefore, she was the absolute and exclusive owner of the said property. The plaintiff or his wife did not contribute anything either towards the acquisition of plot in New Friends Colony or in construction of the building thereon. The plaintiff and defendants No.2 to 4 have no right of any kind in respect of the said property. It is further stated in the written statement that a portion of the aforesaid property in New Friends Colony was let out by defendant No.1 in the year 1979-80 @ `1450/- per month which so remained upto about 1992. After having remained vacant for about six months, a portion thereof was again let out @ `8,000/- per month for three years. Thereafter, the portion thus vacated was again let out @ `10,000/- per month. After about two years when it was vacated, the portion remained vacant for a long time and has been rented out in the year 2007 @ `15,000/- per month.

9.   It was specifically averred in the written statement that the plaintiff and defendants No.2 to 4 were not earning members at the time of death of Dr. Sardana, husband of defendant No.1. Defendant No.1 had her stridhan and had also some money given to her by her late father Sh. Bulaqi Das. She performed the weddings of defendant No.4, the plaintiff and defendant No.2 after the death of her husband who never formed any HUF. The plaintiff or his wife never handed over any income to defendant No.1. Defendant No.2 also had a separate kitchen since 1974 the year he got married. Defendant No.1 used to mess with him since then. Her husband never had any joint bank account either with her or with the plaintiff or with any of the other defendants. There were no joint family funds or joint family account.

10.   Though defendant No.3 filed her separate written statement, however, it appears from the pleadings of defendant No.3 that she is supporting the case of defendants No.1 & 2.

11.   Defendant No.4 has also filed her written statement separately. She has supported the case of the plaintiff and has no objection if a decree for partition as prayed for in the plaint is passed.

12.   From the pleadings, the following issues were framed vide order dated 10th February, 1999:

1.   Whether the plot No.A-82, New Friends Colony was acquired by the parties in the name of defendant No.1 being the head of the family as alleged in para No.8 of the plaint?

2.   Whether the plaintiff and his wife made substantial contribution towards the construction of the House No.A-82, New Friends Colony, New Delhi?

3.   Whether the plaintiffs claim with regard to the property bearing No.A-82, New Friends Colony, New Delhi is barred under Section 4 of Benami Transaction Prohibition Act?

4.   Whether the present suit for partition of the agricultural lands in Haryana is outside the cognizance of this Court?

5.   Whether the suit properties are liable for partition? If so, what is the share of parties?

6.   Whether the defendants are liable to render accounts to the plaintiff in respect of the rental income collected by the defendants in respect of the suit properties?

7.   Relief and costs.

13.   The plaintiff examined eight witnesses in all. He filed his affidavit of evidence dated 18th October, 2002 which is marked as Ex.PW-1/A and further affidavit dated 18th February, 2005 which is Ex.PW-1/B wherein the plaintiff has deposed that he has inspected the records and after doing so, he has filed the true copies of the documents, the details of which are given in para 4 of the additional affidavit. Besides himself, the plaintiff examined Sh. Ajay Prakash Narain, posted in Delhi Flour Mills Company Limited as PW-2, Sh. M.S.Kaushik, a Clerk from Bank of India, Asaf Ali Road Branch, New Delhi as PW-3, Sh.O.N.Khanna, Account Officer with the Motors and General Finance Ltd. as PW-4, Sh. Brij Mohan Sharma, Office Superintendent of Modi Spinning & Weaving Mills Company Ltd. as PW-5, Sh. Nakul Chand, Superintendent of New Friends Cooperative House Building Society Ltd., New Delhi as PW-6, Mohd. Nazar Ali Khan, a tenant of Nizamuddin property in dispute as PW-7 and Sh. R.K. Sanghar, Special Assistant in State Bank of India, Darya Ganj Branch as PW-8. PW-1 and PW-6 were recalled for further cross-examination later on.

14.   In support of her case, defendant No.1, Smt. Dropadi Devi filed her own affidavit in evidence as DW-1 on 11th January, 2008. However, she could not be cross-examined by the learned counsel for the plaintiff, as during the pendency of the suit and after filing her affidavit in evidence, defendant No.1 expired on 5th July, 2009. It was informed by the parties that the said defendant No.1 during her lifetime executed her Will dated 8th September, 1988 by which she bequeathed the New Friends Colony property in favour of defendants No.2 & 3 in respect of which probate petition has been filed by defendant No.2 and others and the parties are appearing in the said proceedings. They have also provided the details and status of Probate No.79/2010 when the matter was listed for direction for seeking the details. It appears that the said probate proceedings are now listed on 19th December, 2012 before Joint Registrar for PE.

15.   Defendants No.2 & 3 in support of their case produced on record the affidavit of defendant No.2, Sh. Pramod Sardana in evidence which has been exhibited as Ex.D2W1/A on 15th October, 2008. Defendant No.4 Smt. Nirmal also produced on record her affidavit in evidence which has been exhibited as Ex.D4W1/A on 2nd September, 2008.

16.   Let me now discuss the matter issue-wise.

17.   All these issues are inter-linked. Therefore, the same are being decided together. Burden of proof of these issues lies on the plaintiff. Evidence of the Plaintiff

18.   In support of his case, the plaintiff has alleged in his evidence which has been produced by way of affidavit, almost the similar statements to the effect that he used to invest various amounts from time to time in the name of his family members jointly or individually as the family was joint and his father, Dr. R.N.Sardana was running the joint Hindu family as its head. The joint accounts were held jointly or individually in the names of his wife, defendant No.1 and his daughters but the funds deposited therein always remained joint funds of the family headed by his father. His mother was always a housewife and did not ever have any employment or business of her own from where she could get any independent income of her own. He further deposed that after the death of his father, his mother i.e. defendant No.1 was receiving the rent from the tenants as a head of the family and the income is to be treated as joint family income. 18.1 PW-1 further deposed in his affidavit Ex.PW1/A that in the year 1974, it was decided that the Nizamuddin property should come to the shares of the two sons of the family, i.e. the plaintiff and defendant No.2. The mother and the sisters i.e. defendant No.1 and defendants No.3 & 4 executed deed of relinquishment in respect thereof. A fresh lease was executed on 27th September, 1974 in their names accordingly and both are equally the owners the extent of 50% each. However, the rent continued to be received by the mother from the tenant of the Barsati floor and the first floor when the family shifted to the ground floor in the said house.

18.2 PW-1 further stated that as far as the land of the society in New Friends Colony is concerned, the entire amount paid to the society in the years 1969-72 during the period when the defendant No.1 acquired membership and when the plot was allotted in her name, were made from the amounts lying in the Bank of India, Ajmeri Gate, Delhi and State Bank of Patiala, Darya Ganj, Delhi, which defendant No.1 held jointly with his wife. The money in the said account was being deposited in the account even after the death of his father, from the funds which their family used to receive from the agricultural income as also realization of other deposits that were getting matured from time to time. The deposits were held in the joint names of his mother (defendant No.1), his sisters (defendants No.3 & 4), his brother (defendant No.2) and his wife. Even after the total payment of about `25,000/- paid for acquiring the plot at New Friends Colony, there existed sufficient funds belonging to the joint family. 18.3 The construction of residential house at the said plot at New Friends Colony was undertaken from the said fund left behind by his father from various investments made by him, as gratuity amount, agricultural income, constant dividends from the shares, interest from FDRs and also substantial amounts had been received from the sale of portion of agricultural land owned by the family in Distt. Hisar which was allotted to the family in lieu of claims filed by his father.

As regards Sh. Bulaqi Das Chabra, PW-1 deposed that he was the maternal grandfather of the plaintiff. He died in the year 1967. According to PW-1, said Sh. Bulaqi Das was a man of ordinary means and he himself was never a member of the society at New Friends Colony and he could not have left substantial amount to be inherited by the mother of the plaintiff or for that matter his other children. The property of New Friends Colony is the joint family property belonging to all the parties to the suit, being heirs of Dr. R. N. Sardana. All have equal shares therein.

As far as the property i.e. the agricultural land at Distt. Hisar is concerned, PW-1 deposed in the affidavit (Ex.PW1/A) that all the brothers, sisters and the mother are equal shareholders in the said property. The plaintiff is also entitled to rendition of accounts received by defendants No.1 and 2 and a share therein. He is also entitled to 1/5 th share in rent from the Nizamuddin property up to September, 1974 and thereafter 50% share therein, while he is also entitled to share of 1/5th in the entire rent collected from the New Friends Colony property and also 1/5th share in the income derived by defendants No.1 & 2 from the agricultural land besides in the dividend income from other shares and FDRs left behind by his father.

PW-1 was cross-examined by defendants No.2 & 3 on many dates. 18.6 In cross-examination on 6th December, 2005 in the first para of cross-examination towards the end, PW-1 has admitted that:

"It is correct that my father did not have any joint account with Ms.Dropadi Devi (defendant No.1). I do not remember but probably my mother had a Bank Account being Bank Account no.2604 with Bank of India."

He further deposed as under:

"I am a Tax Consultant. I started my practice somewhere in 1968/69. As far as I recollect I started filing income tax return somewhere in 1968-69 itself. I do not remember what was my income at that time. I have not maintained accounts. Whatever I used to earn I used to give to my mother. Whenever we needed money we took it from our mother.

My wife has a joint account with my mother. We have pass book of these accounts. These accounts are in operation since 1970 and my account is in operation even prior thereto. Sometimes, we used to deposit money in our bank account. I and my wife paid money to my mother up to 1978-79.

72 shares of Escorts were purchased from the joint account and they are still with me. I have shares of  Escorts Ltd. and Modi Spinning &  Weaving Ltd. with me. It is correct that one room on the ground floor, one room on the first floor and two rooms on the Barsati were constructed by my mother after the death of my father somewhere in 1965."

In cross-examination on 11th July, 2007, plaintiff stated that:

"It is correct that my mother had performed the marriage of my sister Nirmal Arora......The family pension was exclusively in the name of my mother.     It is correct that I was married in the year 1970 which was performed by my mother. The expenses were incurred from joint family funds. The marriage of my brother Pramod was also performed by my mother in 1974.    It is correct that Pramod was studying in HBTI during the period 1968-73.  My mother shifted to A-82, New Friends Colony either in 1979 or in the year 1980. At the time of shifting the residence by my mother from property bearing No.B- 39, Nizamuddin West, New Delhi to A-82, New Friends Colony, the ground floor of Nizamuddin West remained in my occupation.  I do not remember as to since when I have been receiving the rent from Mr.Nazar (tenant). I can produce the record of receiving the rent. It is correct that Lala Bulaqi Das was my maternal grandfather. It is not in my knowledge that he was a Tehsildar.

I am aware that some of the land of my maternal grandfather was acquired by the Government. It is not in my knowledge as to when Lala Bulaqi Das became member of New Friends Cooperative Group Housing Society. I am not aware if my maternal grandfather had executed a Will in favour of my mother.

It is correct that my mother became a member of New Friends Cooperative Group Housing Society after the demise of Lala Bulaqi Das. There was no HUF account.

However, the said amount was paid through A/c Payee cheques drawn on Bank of India, Branch Ajmeregate, Delhi.

I do not remember the exact dates of making payment. I do not have any account for contributing the amount to my mother for construction. I cannot give even estimate of that amount. We paid the amount through cheques as well as in cash to my mother. The said cheques were issued from the account of State Bank of Patiala, Darya Ganj, Delhi. I do not have the counterfoils of the relevant cheques. Sometimes, I myself went to collect the returns of our agricultural land from tillers of Village Nangal."

In the cross-examination, plaintiff stated:

 "It is correct that since when the property No.A-82, New Friends Colony was constructed, my mother Dropadi Devi has been paying house tax for the same."

In his affidavit filed as evidence, plaintiff has stated that funds received from agricultural income were invested in joint name of defendant No.1 or in joint names. When asked about details, he could not give any.

In cross-examination of 29th November, 2007, PW-1 has admitted that, "It is correct that some ITRs were filed by mother through me." When asked specifically that in ITRs filed through him the mother Dropadi Devi always showed the property as her exclusive property, the answer is "I have no knowledge." He admits that the amount of pension kept on increasing from time to time. He admitted owning a flat measuring 635 sq.ft. in Madhuban Building at Nehru Place purchased from Ansal properties. This flat was acquired in 1972 for `71,755/-. He further admits acquiring a standard Herald Car in 1972 but says it was in the name of his wife. He further admits that his daughter and son were admitted to Mater Dei School and DPS in 1974-75 and 1976-77 respectively. He could not tell how much money he had given to his mother.

Besides, plaintiff also produced PW-2 Ajay Prakash Narain, a clerk of Delhi Flour Mills Company Ltd. who stated about three FDRs, one for `2,000/- in the name of Dropadi Devi (defendant No.1), one for `1500/- in the name of Dropadi Devi (defendant No.1) and Pramod Kumar (defendant No.2) and an FDR for `1000/- in the name of Dropadi Devi, all dated 2nd June, 1979, 3rd September, 1979 and 6th October, 1979 respectively. 18.9 PW-3 M.S.Kaushik from Bank of India, Asaf Ali Road Branch stated that summoned record of 38 years was not available. PW-4 O.N.Khanna from MGF Ltd. stated that summoned records were not available. 18.10 PW-5 Brij Mohan Sardana, Office Superintendent, Modi Spinning & Weaving Mills Co. Ltd. stated that there was no FDR in the name of Dropadi Devi or Pramod Sardana (defendants No.1 & 2). 18.11 PW-6 Nakul Chand, Superintendent, New Friends Cooperative House Building Society Ltd. on 1st February, 2006 stated in examination- in-chief that Dropadi Devi had applied for membership on 17th March, 1969 by making an initial payment of `110/-. A sum of `17,050/- was deposited vide cheque No.0078118 dated 31st May, 1969 by Smt. Dropadi Devi.

Payment of `3000/- was also made by her vide cheque No.124185 on 7th April, 1972. Further, a payment of `972/- was also made by her by virtue of cheque No.514243 dated 15th February, 1978. He placed on record the Photostat copy of the entries of payments as Ex.PW-6/1.

In cross-examination by the learned counsel for defendants No.1 to 3 on 1st February, 2006, this witness stated that originally, Sh. Bulaqi Das son of Mool Chand became the member of New Friends Cooperative Group Housing Society Ltd. by moving an application on 9 th March, 1967. He proved on record copy of the said application as Ex.PW-6/D1. After the death of Bulaqi Das, membership of the said society was transferred in the name of Smt. Dropadi Devi (defendant No.1) vide letter No.F.Z-(F.1)/3.53/L&H dated 6th February, 1969. Photocopy of the said letter is Ex.PW-6/D2. On becoming the member of the society, the said Smt. Dropadi Devi started making payment of the balance amount. Original receipts were shown to this witness which he admitted as correct and the same are marked as Ex. PW6/D3 to Ex. PW6/D6. Original possession letter was marked as Ex. PW6/D7 and the original allotment letter is Ex. PW6/D8.

18.12 An application was allowed to re-examine the said PW-6, who was re-examined and cross-examined on 28th February, 2007. He stated in examination-in-chief stated that:

"1) Pursuant to the application dated 9th March, 1967 (wrongly typed as 87) Mr. Bulaqi Das was enrolled as a member of the society vide DDA letter dated 26th December, 1968 and his membership No.1465 and no share certificate was issued to said Sh.Bulaqi Das.

2) Dropadi Devi was asked to submit fresh application for membership of New Friends Cooperative House Building Society Ltd. and share certificate was issued in her favour."

In cross-examination by the learned counsel for defendants No.1 to 3, this witness stated that, "It is correct that the share certificate could not be issued to Mr.Bulaqi Das as he had passed away on 8.4.1967." 18.13 PW-7 is Mohd. Nazar Ali Khan who was tenant and was residing in B-39, Nizamuddin West, New Delhi at the relevant time. In the cross-examination by the learned counsel for defendants No.1 to 3, it has come out that:-

"(i) Brought with him the rent receipts (12 in number), but none of them issued by Pramod (defendant No.2), receipts are marked as Ex.PW7/D1 to Ex.PW7/D12.
(ii)   Rent receipt Ex.PW7/D2 is signed by Smt.Santosh wife of Ashok Sardana (Plaintiff) and rest are signed by R. N. Thusoo.
(iii)   Initially, premises taken @ `215/- per month.

(iv)   Started paying `1000/- per month since January, 2007.

(v)   Started paying rent in respect of tenanted premises to Ashok Sardana @ `667/- per month since July, 2002.

(vi)   Presumed, there was joint mess.

(vii)   Cannot say if there were two kitchens on the ground floor.

(viii)   Dropadi Devi and Pramod Sardana left the house in the year 1978-79.

18.14 PW-8 R. K. Sanghar (recorded on 28.02.2007) is from State Bank of India, Darya Ganj Branch. He had brought the record of Saving A/c No.4228/33 in the joint names of Smt. Santosh Sardana (wife of plaintiff) and Smt. Dropadi Devi (defendant No.1). The said account was opened in 1971. In cross-examination by the learned counsel for defendants No.1 to 3, he stated that, "Saving A/c referred to above stood closed on 14th January, 1974. He could not tell who had operated the said account."

19.     The plaintiff has exhibited the following documents:-

Ex.PW-2/1 Photocopy of entries of ledger for 1979 showing a total of `6000/- in the name of  Dropadi Devi (defendant No.1) and Pramod Kumar (defendant No.2) Ex.PW-3/1 Certificate dated 18.11.2005 from Bank of India that they do not have old record Ex.PW-4/1 Letter from MGF that they do not have summoned record Ex.PW-6/1 Photostat copy of payment of entries of N. F. C. showing a total of `21,382/- paid by Dropadi Devi on various dates

Ex.PW-7/D1  Original rent receipts of portion of B-39, to D12 Nizamuddin West, New Delhi.

Ex.P4 Copy of affidavit of Dropadi Devi regarding B-39, Nizamuddin West, New Delhi.

Ex.P6 Letter of intimation from MGF to Dropadi Devi.

Ex.P7 Lease Deed of B-39, Nizamuddin West, New Delhi

20.   Defendant No.2 (Pramod Sardana) filed his affidavit of evidence dated September, 2008 Ex.D2W1/A. He proved the Will of Bulaqi Das - his maternal grandfather which is Ex.D2W1/1. One attesting witness is dead and the other lives in USA. He bequeathed his membership rights in New Friends Colony society to his daughter Dropadi Devi, defendant No.1.

He proved the original receipts of payments Ex.PW-6/D3 to Ex.PW6/D6, original allotment letter Ex.PW6/D7 and the original possession letter Ex.PW6/D8, all in the name of Dropadi Devi. Original perpetual lease in respect of New Friends Colony property is Ex. D2W1/2 which is signed by the plaintiff as a witness at point X. It is defendant No.1, Dropadi Devi who constructed superstructure from her own funds raised from her daughter defendant No.3, defendant No.2 and his wife Shashi Sardana (who is a University Lecturer) and by withdrawal of amounts in FDR in her name. Dropadi Devi (defendant No.1) had a Bank A/c with UCO Bank, Nizamuddin West, New Delhi in the joint names of defendant No.3 (Urmil Thusoo) and self (defendant No.2). Original passbook is Ex.D2W1/3. Moneys were drawn from this account for the construction of the house. House tax receipts are Ex.D2W1/4 & 5. Assessment order is Ex.D2W1/6 Dropadi Devi disclosed her source of investment to the ITO in a statement which is Ex.D2W1/7. Ex.D2W1/8 is letter dated 19.11.1965 from Dy. Housing Commissioner to Bulaqi Das. Ex.D2W1/9 is a letter dated 23rd February, 1967 from New Friends Cooperative House Building Society to late Bulaqi Das. Ex.D2W1/10 is copy of letter dated 11 th March, 1967 from defendant No.1 to the Secretary of New Friends Colony society.

He further stated that defendant No.1 was the absolute and exclusive owner of the New Friends Colony property. He deposed that neither the plaintiff nor his wife contributed anything towards acquisition of plot or construction of the said property. His father, Dr. R. N. Sardana was not carrying on any private practice. His father was allotted some agricultural land at Hisar. All the revenues generated from the said land are collected by the plaintiff, for which no  accounts are rendered by him. Defendant No.1 performed the weddings of the plaintiff and defendant No.4 after the death of Dr. R. N. Sardana.

DW-2 has admitted that the Nizamuddin property is owned by himself and the plaintiff. The plaintiff occupies the ground floor of the said property and realizes all rents for which no account is given. DW-2 had his separate kitchen since 1974 and the mother (defendant No.1) used to mess with him. There was no HUF. Dr. R. N. Sardana never had any joint account with the plaintiff and defendant No.1 or with any other defendants. Neither plaintiff nor his wife ever handed over their incomes to defendant No.1. In the cross-examination, nothing has come out from this witness (defendant No.2). The entire cross-examination on various dates is directed towards Lala Bulaqi Das. The plaintiff was not able to demolish the case of defendants No.1 to 3 pleaded in the written statement.

21.  The defendants No.1 to 3 produced and proved the following documents: 

Ex.D2W1/2 Perpetual Sub lease Deed of A-82, New Friends Colony dated 18.12.1972 in favour of Dropadi Devi where plaintiff has signed as a witness. Ex.D2W1/3 Pass book of United Commercial Bank of Dropadi Devi, Urmil Thusoo and Pramod Sardana.

Ex.D2W1/4&5          House tax receipts of A-82.

Ex.D2W1/1                      Will of Late Bulaqi Das

Ex.D2W1/6                     Assessment of 1979-80 of Dropadi Devi dated 29.1.1981.

Ex.D2W1/7                     Letter dated 17.12.1980 from Dropadi Devi to

ITO giving sources of her funds:

Proceeds from Goodwill 7500/- R. L. Thussoo           1,11,250/-

Sale of shares            MGF 21000/- Through Urmil

18000/- from Modi Spg 10000/- Thusoo      33750/- FDRs Parmod

Shashi            39000/-

Dropadi         56000/-

Ex.D2W1/10 Letter dated 11.3.67 from Dropadi Devi to NFC Society.

Ex.D2W1/9   Letter dated 2.9.66/23.2.67 from NFC to Bulaqi Das.

Ex.D2W1/8   Letter dated 19.11.65 from Dy. Housing

Commissioner, Delhi Administration to Bulaqi Das recommending his name to NFC.

Ex.PW-6/D1 Letter from Secy. Land & Building to Secy. NFC Society Saying Bulaqi Das has died and plot he was entitled to be allotted to his daughter Dropadi Devi.

Ex.PW-6/D2 Letter dated 06.02.1969 from Secretary, Delhi Land & Building Admn. to New Friends Cooperative House Building Society Ltd. Ex.PW-6/D3 Receipt dated 17.5.69 from NFC for `110/- in favour of Dropadi Devi.

Ex.PW-6/D8 Letter from NFC to Dropadi Devi allotting plot to her. Ex.PW-6/D4 Receipt for `972/- in favour of Dropadi Devi from NFC.

Ex.PW-6/D5 Receipt for `1705/- from Dropadi Devi to New Friends Cooperative House Building Society Ltd.

Ex.PW-6/D7  Receipt of Possession. Ex.PW-6/D6   Temporary receipt of above.

Ex.PW-1/D1  Receipt of rent for `667/- for July, 72 issued by Ashok Sardana.

Ex.PW-1/X1  Receipt for `4000/- issued by Ashok Sardana in respect of agricultural land.

22.  Defendant No.4, Smt. Nirmal produced the evidence by way of her own affidavit which was marked as Ex.D4W1/A. As already mentioned, she has supported the case of the plaintiff. She has reiterated in her affidavit that the defendant No.1 had no income whatsoever of her own and each and every property was purchased by defendant No.1 with the income of her husband, late Dr. R.N.Sardana and the investment made by her in FDRs and shares which were all joint family funds, as well as from the rental income received by her from the Nizamuddin property. In para-5 of the affidavit, she has made the additional statement of case that the New Friends Colony property was constructed with the help of joint family funds, and the already constructed portion is considered as falling to the share of defendants No.2 & 3. However, there was an understanding between the family members that either the plaintiff or defendant No.4, as and when required, could raise construction with their own funds.

However, defendants No.1 & 2 resiled from this understanding and therefore, the plaintiff has filed the suit for partition.

In her cross-examination, this witness admitted that at the time of retirement of her father, his salary was `700-800/- per month. She also admitted that after the death of her father, her mother i.e. defendant No.1 started getting the family pension. She admitted that her mother used to realize the rent from the Nizamuddin property till last 6-7 years back. She made the statement that her mother told her that the New Friends Colony property was constructed out of the joint family funds. She is not aware, whether defendants No.1 & 2 had disposed of some shares in their joint names in order to raise construction over the said property.

As far as the understanding between the parties as mentioned in the affidavit, she admitted that the said understanding was not in writing nor she was able to give the date, month and year when the said understanding was reached. She also stated that she was not aware, as to whether her maternal grandfather was a member of New Friends Colony Cooperative Group Housing Society Ltd. She states that in case the payment towards the cost of the land was made to the said society by her mother, the same must be from the joint funds of her mother and her father.

23.  After having gone through the pleadings of the parties and the documents proved by them as well as testimonies of witnesses, the following facts are emerged from the matter which are outlined as under:-

(a)  Originally, the father of defendant No.1 became a member of the society on 9th March, 1967 (Ex.PW-6/D-1). Before his death in the same year, he executed his Will dated 27th February, 1966 (Ex.DW- 1/1) which was attested by two witnesses, i.e. Sh.J.D.Jain (who was dead at the time of trial) and Sh.R.L.Thusoo, husband of defendant No.3. The father of defendant No.1 bequeathed his membership rights in respect of the New Friends Colony property in favour of defendant No.1 who identified his signatures as well as that of Sh.R.L.Thusoo. There is no contrary evidence produced by the plaintiff.

(b)  After the death of late Sh. Bulaqi Das, father of defendant No.1, the membership was transferred in the name of defendant No.1 who made the payment towards the cost of the plot. The original receipts of payment have been proved as Ex.PW-6/D-3 to Ex.PW-6/D-6. Ex.PW-6/D-7 is the original possession letter issued by the society.

(c)  Ex.PW-1/D-8 is the allotment letter and original perpetual sub-lease deed dated 18th December, 1972. It was signed by the plaintiff as a witness. PW-6 Nakul Chand has proved beyond any doubt that the entire payment was made by defendant No.1. The details of payment are mentioned in his statement.

(d)  Defendant No.1 constructed the building on the said land bearing No. A-82, New Friends Colony, New Delhi. Before tendering her affidavit, defendant No.1 passed away, though by that time she already filed her affidavit as evidence dated 8th January, 2008 wherein she made the specific statement that she constructed the said building from her own funds raised from her daughter Smt. Urmil Thusoo, defendant No.3 and her son, Pramod Sardana, defendant No.2 and his wife, Smt. Shashi Sardana as well as through sale of shares which were held jointly by her and by way of withdrawal of amounts in FDRs which were in her name. Documents i.e. original passbook of United Commercial Bank Account No.2745 is proved by defendant No.2 as Ex. D2 W1/3 and D2 W1/4 and 5, Ex. D-2 W1/6, D2 W1/7 to 10 which includes the record of assessment orders of Income Tax Department of Bulaqi Das also. DW-2 confirmed the statement of mother that his father Dr. R. N. Sardana never had any HUF with the family members. The plaintiff and his wife never handed over their income or earning to defendant No.1. He had a separate kitchen since 1974. The defendant No.1 used to mess with him. There was never any joint Hindu family as alleged by the plaintiff. His father never had any joint bank account with defendant No.1 or any party to the suit. No amount was inserted by the plaintiff and his wife.

(e)  Whatever statement made by the plaintiff and in his affidavit produced by way of affidavit dated 1st October, 2002, he failed to prove his case in evidence. It is merely a statement made by him but no direct evidence was produced by him to establish that he contributed towards the payment as cost of land of the society or at the time of construction of the building his or his wifes money was spent. He also failed to establish that property at A-82 New Friends Colony, New Delhi is the joint family property belonging to all the parties and all have equal shares. He was also not able to prove that Sh.Bulaqi Dass was a man of ordinary means and was not a member of the society and could not have left amount to be inherited by his mother. He also failed to establish that the money paid by the defendant No.1 as cost of the land as well as cost of construction was spent by defendant No.1 from the amount received as rent from the Nizamuddin property by his mother. The witnesses produced by PW-1 were not able to prove the case set up by the plaintiff.

From the evidence, it is proved that plot No.A-82, New Friends Colony was purchased by defendant No.1 and she was member of the society. She carried out construction from her own funds. She gave the source of her funds and was assessed way back in 1979-80 by the income tax office as she was paying house tax and dealing with the properties. No doubt, in Hindu families in India, sons and daughters always contribute and pay some amount from their income or otherwise on many occasion to their parents in order to respect them but it does not mean that it becomes HUF. In order to establish the same, cogent evidence has to be produced before the court particularly when the property is in the name of female member of the family.

24.  It is argued by the plaintiffs counsel that there was no question of any amount belonging solely to his mother to be spent in construction of the house in New Friends Colony. Since at the time of construction of the house at New Friends Colony, he and his wife were also earning, they used to handover their income to his mother and she used their funds also in the ongoing construction of the house which was being looked after by the husband of his sister i.e. defendant No.3, namely, Sh. R.L.Thusoo who was a Chartered Accountant and was keeping the account of the source of money as well as expenses. PW-1 has admitted that he has not in his possession the detailed account as to how much he contributed at various points of time towards the construction of the said house, as he and his wife both used to give substantial part of their income to his mother regularly which she handed over to Sh. Thusoo who was looking after the construction of the house.

25.  The learned counsel for the plaintiff also argues that a Hindu family is normally presumed to be joint i.e. joint in food, worship and estate. Defendant No.1 was the Manager of the immovable properties acquired by her, which were purchased by her from the help of joint family funds of which she was in possession and in-charge. Therefore, it is for the defendant No.1 to prove the same by clear and cogent evidence about her plea that the said property was purchased by her from her separate funds.

Onus of proof must be placed upon the Manager and not on the coparcener. He referred the following judgments:

(a)  Mallesappa Bandeppa Desai & Anr. vs. Desai Mallappa alias Mallesappa & Anr., reported as AIR (1961) SC 1268. In para-15 thereof, the Supreme Court has held:-

"......In our opinion there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchased money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparcener."

(b)  Parma Nand vs. Sudama Ram, reported in AIR 1994 HP 87 wherein it was held as under :-

"Hindu Law - Joint family - Manager - purchasing property in his individual name - not claiming that family nucleus was insufficient to purchase property - initial onus lies on him to prove that property was purchased from his income - Absence of such proof property has to be deemed to be purchased from family nucleus - Plaintiff coparceners failure to prove sufficient family nucleus is immaterial."

(c)  Dandappa Rudrappa Hampali & Ors. vs. Renukappa alias Revanappa and Ors, reported in AIR 1993 Karnataka 148. In para 17.2, it was held as under:-

". in the case of the manager of the joint family or any other member who was in

management of the family affairs or in possession of sufficient joint family assets, it is likely that the joint family property or part thereof, found the nucleus from which he acquired other assets and in such a case, burden will be on him to prove that the acquisition by him was without the aid of the joint family property."

26.  As far as proposition of law and decisions referred by him are concerned, there is no dispute that incase the manager of joint family who was managing the matters or in the possession of joint family assets, burden would lie upon him to prove that he has acquired the property without the aid of the joint family property. But, the situation in the present case is entirely different in view of case proved by the defendant No.2. And on the other hand the plaintiff failed to discharge his burden by way of evidence.

27.  Section 14 of the Hindu Succession Act, 1956 reads as under:-

"14. Property of a female Hindu to be her absolute property. - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation - In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2)Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."

28.  When a property is purchased in the name of a female member even though there is sufficient nucleus the presumption that the said property is joint family property does not arise. Such a presumption would be available in the case of a male member of the family but not female member. Reliance can be placed on the judgment passed in Santanu Kumar Das & Ors. vs. Bairagi Charan Das & Ors., reported in AIR 1995 Orissa 300, the relevant para of which reads as under:-

"10.  The contention of Mr. Murty that a female can also be a member of the joint family is not disputed. What we are concerned presently is about drawing of a presumption in respect of the property purchased by a female member. A female may continue to be a member of the joint family, but the point as decided above is, if any property purchased in her name even though there may be sufficient nucleus, there can be no presumption that the property is joint family property."

29.  The plaintiff in the present case has failed to adduce evidence as mentioned above, on the other hand the defendant No.2 has established on record that the property bearing No.A-82, New Friends Colony, New Delhi was purchased by defendant No.1. In view of the above, it is clear that unless the presumption is rebutted by showing that property in question is a separate property of a particular member or members in whose name/names the property stand or was acquired. There is no such presumption in the name of female member in the latter case, it is for the party who claims property as joint family property to establish the same by adducing necessary evidence. Incase such party failed to adduce evidence, the female member must be held to be the owner of the property in question. She was a member of the society. She carried out construction from her own funds. The perpetual lease deed is in her name. Family members including the plaintiff might have given some amount to defendant No.1 for her love and affection but it does not mean that she was not the owner of the property and the construction was not carried out by her from the funds.

30.  The plaintiff has also failed to establish that there existed any coparcenary in which the plaintiff and defendants were coparceners or there existed any HUF of which the defendant No.1 was a Karta. The defendant No.1 had acquired the membership of the society with respect of plot as an individual and not as Karta of his own family. Therefore, the plaintiff cannot claim any right as coparceners nor the property fall into the pool of the Hindu Undivided Family.

31.  The plaintiff has failed to establish his case as pleaded in the plaint and in evidence. It was merely a statement made by him in the plaintiff otherwise the case of the plaintiff is not proved within the four corners of law. The property is also not barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988, as alleged by the plaintiff.

32.  The other submission of the plaintiff qua the New Friends Colony property is that the same is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988. Section 4 of the said Act reads as under:

"4.  Prohibition of the right to recover property held benami. - (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2)  No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply, -

(a)  where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b)  where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."

33.  The present suit was filed in 1991. Dropadi Devi showed the property in her individual capacity in her IT Return. She always paid the house tax and dealt with it as her own. The perpetual sub lease deed Ex.DW1/2 is witnessed by the plaintiff. The latter never ever claimed that the property was joint family property and he had a share therein. This fact by itself shows her to be the absolute owner of the property.

34.  In view of Section 3 of the Benami Transaction (Prohibition) Act, 1988 no person can claim that property in the name of Dropadi Devi was her/her Benami property. Reference is made to a judgment passed by this Court in Leena Mehta vs. Vijay Myne and others, CS(OS) No.2118/2006, decided on 9th November, 2009. There was never any coparcenary or joint family. Coparcenary or joint family cannot be presumed. The entire argument of the plaintiff is based on the assumption that there was a coparcenary and that Dropadi Devi was the Manager which is wrong. Two sons and one daughter were married by her after the death of her husband. She was also getting pension after her husbands death. Thus, the plaintiff has failed to establish his stand on this issue also.

35.  All the three issues No.1 to 3 are decided against the plaintiff. Issue No.4

36.  Pertaining to property i.e. agricultural land at Hisar, Haryana, separate issue No.4 has been framed. In case, pleadings of defendants and evidence are read in a meaningful manner, it is revealed that the defendants have no objection for the same. However, it is argued by the learned counsel for defendants No.1 to 3 that the suit for partition of the agricultural land situated in Hisar (Haryana) is not maintainable in this Court, and it can only be partitioned by the competent Court having jurisdiction under the Land Revenue Act. The civil suit in this Court is not maintainable.

37.  Reliance in this regard can be placed upon the decision in the case of Sri Kishan vs. Shri Ram Kishan and Ors., 159 (2009) DLT 470. Relevant para 9 reads as under:-

"9. From the perusal of the Annexure A & B, it is apparent that the properties, except item No. 6 in Annexure A i.e. House No. 1584A/25 Thana Road, Najafgarh, built on 250 sq.yards area and the moveable properties, are agricultural lands. A suit for partition of agricultural land will not be maintainable in a civil court."

Issue No.4 is decided accordingly. As this Court has no competent jurisdiction, a decree for partition cannot  be  passed.  However,  liberty  is  granted  to  any  co-owner  to  initiate  the  appropriate proceedings in accordance with law for seeking a formal decree for partition of the agricultural land as per details given in para 15(a)(3) of the amended plaint in view of statement made by them.

Issue No.5

38.  As regards one of the suit properties, i.e. B-39, Nizamuddin West, New Delhi is concerned, the same has to be partitioned between the plaintiff and defendant No.2, in view of the evidence produced before the Court coupled with Ex.P-4, P-6 & P-7 and admission made by the defendants, it has been established that it is joint property of the plaintiff and defendant No.2 in equal share of 50% each. Therefore, it is not necessary to discuss further with regard to this property and a decree for partition is to be passed. As regards the prayer with regard to two other properties, the same is rejected, as for the reasons given earlier, the property No.A-82, New Friends Colony, New Delhi cannot be partitioned. The relief sought by the plaintiff in this regard is rejected. Issue No.6

39.  As regard this issue, in view of the findings arrived on issues No.1 to 3, I am of the view that the defendants are not liable to render any accounts to the plaintiff in respect of the rental income claimed by the plaintiff, as the plaintiff has failed to adduce any cogent evidence in this regard. Further, defendant No.1 is already passed away who was allegedly receiving the rental income. It has brought on record that the plaintiff had been receiving substantial amount in the form of revenues generated from the agricultural land at Hisar which was not shared by him with the other family members at any point of time. Thus, this issue is also decided against the plaintiff.

Issue No.7

40.  The suit of the plaintiff is accordingly disposed of. A preliminary decree for partition is passed declaring the specific division of the plaintiffs share as ½ in the property bearing No.B-39, Nizamuddin West, New Delhi and the other ½ share therein in favour of defendant No.2. The other reliefs sought by the plaintiff for partition in respect of the New Friends Colony property and the agricultural land at Hisar are rejected.

41.  Mr. Vivekanand, Adv., L-II/55, Lajpat Nagar, New Delhi-110024, (Mob. 9810149231) is appointed as a Local Commissioner to verify the suit property in dispute and to file a report with regard to mode and manner in which the suit property can be partitioned and also to report the present status of the property before the next date of hearing i.e. 15th February, 2013 before the Roster Bench. The fee of the Local Commissioner is fixed at the first instance at Rs.80,000/- which shall be shared by the parties.

42.  No order as to costs.

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