High Court Ashok Sardana Vs Dropadi

Delhi High Court

Ashok Sardana vs Dropadi Devi & Ors on 15 October,

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 D-12,
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 motheri.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.

MANMOHAN SINGH, J.

CA ANIL K JAIN

High Court Ashok Sardana Vs Dropadi

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