Upload
others
View
0
Download
0
Embed Size (px)
Citation preview
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT : SUIT FOR PARTITION
RESERVED ON: 26.04.2012
PRONOUNCED ON: 05.04.2013
RFA (OS) 27/1997
CM APPL.5201, 16364/2007 &
2641 & 2939/2009
JAI KRISHAN DASS ..... Appellant
Through: Mr. H.L. Tikku, Sr. Advocate with Ms. Yashmeet and Ms.
Renuka Arora, Advocates.
versus
HARI KISHAN DASS & ORS ..... Respondents
Through: Mr. Ravi Gupta, Sr. Advocate with Mr. Lalit Gupta,Mr. Ranjan
Grover and Mr. Nishant Prateek, Advocates for Resp-5&6.
Mr. N.K. Kantawala with Mr. Arvind Bhat, Advocates for Resp-1&8.
Ms. Sangeeta Jain, Advocates for LRs of Resp-2.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE S.P. GARG
MR. JUSTICE S.RAVINDRA BHAT
1. This appeal has been preferred against the judgment and order of the
learned Single Judge dated 11-07-1997 in Suit No. 235/1976. The appellant
(hereafter referred as “Jai Krishan”) was the first defendant in the suit for
partition filed by the first respondent, Hari Krishan (hereafter referred to as
“the plaintiff” and “Hari Krishan”).
2. The facts briefly are that the plaintiff and the appellant are brothers.
The suit originally impleaded the other brothers i.e. Brij Krishan, Gopal
Krishan, Avtar Krishan – their father, Balkrishan Das and their mother Ram
Kala Devi. Balkrishan Dass (the appellant’s father) was one of the five sons
of Girdhari Lal (i.e. grandfather of the plaintiff and the appellant). His other
brothers – uncles of the said two parties – were Babu Ram, Banwari Lal,
Murari Lal and Devi Charan. The parties’ grandfather Lala Girdhari Lal was
part of a joint Hindu family. He also had a business known as Panna Lal
Girdhari Lal (PLGL). PLGL was a joint family business. The appellant and
his two minor sons had filed a suit No. 317/1961 claiming that they were
members of joint family firm and were entitled to share in the business and
properties. That suit was transferred and registered as Suit No.154/1967
before the High Court. It was heard and dismissed sometime in 1979; the
appeal against that judgment was also met with the same fate. The appellant
preferred an appeal for special leave to the Supreme Court which too was
dismissed on 04.01.1984; the Supreme Court judgment is reported as Jai
Krishan & Others Vs. Nirmala Devi & Another, AIR 1984 SC 589. The
Supreme Court affirmed the finding of this Court that there was a general
disruption of the larger joint Hindu family of Girdharilal sometime in 1941-
1942.
3. In the meanwhile Balkrishan Dass had constituted a firm of which
some of his sons were partners. The present plaintiff Hari Krishan filed a
suit being 234/1976 seeking dissolution and rendition of accounts. The
appellant was not a party to that suit. He claimed to be a necessary party and
filed two applications i.e. IA No.2592/1976 and 1364/1981 for being
impleaded; they were rejected. By the second suit CS (OS) No. 235/1976 –
out of which the present appeal has arisen – Hari Krishan claimed partition
of joint family of Balkrishan Dass, who was its karta. The larger HUF, of
which Balkrishan Dass, father of the parties of the present suit was a
member, had already stood disrupted in 1941-42. All brothers i.e. the
appellant, the plaintiff as well as their brothers were made parties;
Balkrishan Dass and the parties’ mother Ram Kala Devi were also
impleaded as defendants. The parents i.e. Balkrishan Dass and Ram Kala
Devi died during the pendency of the suit as did Gopal Krishan Dass, one of
the brothers. In the light of the pleadings and after hearing counsel for the
parties, the learned Single Judge – N.N. Goswamy, J. by an order dated
17.5.1979 declared the share of each of the parties to be 1/8th in respect of
the 7 items of the properties mentioned in the suit. The said preliminary
decree and order dated 17.5.1979 reads as follows :
“GOSWAMY, J (oral)
This suit for partition has been filed by Shri Hari Krishan Gupta, plaintiff.
It is alleged in the plaint that the properties mentioned in schedule `A’ and
`B’ attached to the plaint are H.U.F. properties owned by M/s Balkrishan
Dass (H.U.F.) and as such a decree for partition of the said properties be
passed. The karta of H.U.F. namely Balkrishan Dass has filed a statement of
properties which were owned by Balkrishan Dass (H.U.F) as on3.4.1976. It
is agreed between the parties that a preliminary decree for partition in
respect of the properties mentioned as Serial Nos.1 to 7 passed to day and
for the other properties the parties will be free to make the submissions in
the suit. Accordingly, I pass a preliminary decree for partition of the
following seven properties mentioned in this suit at page 55:-
1. House No.3 Pusa Road, New Delhi
2. House No.37, Daryaganj, Delhi
3. House No.1002/1009 Bazar Sita Ram, Delhi
4. Kharpail No.3728 to 3732 Bagichi Bawaji Wali, Subzi Mandi, Delhi
5. Factory land & Building, Kuncha Mir Bhikari Turkman Gate, New Delhi
6. 1/10th share in shop Nos.3825 to 3945, Lahori Gate, Delhi
7. Shares
Tin Printing & Metal Works
Natioal Rolling & Steel Ltd.
Natioal Insulated Cables Ltd.
Modi Spinning & Weaving Ltd.
Delhi cloth & General Mills Ltd.
Bharat Nidhi Ltd.
Hindustan Motors Ltd.
It is not denied that the shares of the parties to the suit are 1/8th each and
accordingly I declare it as such. The parties will be free to make their
submissions in respect of any other property, of Balkrishan Dass (HUF).
The local commissioner to effect the partition will be appointed on the next
date of hearing. Let the matter be listed on 16.7.1979.
At this stage defendant No.1 states that since he had filed a suit
involving the same properties being suit No.154/1977, the present suit
should be stayed. This contention has to be rejected since there is no
application under section 10 of the Code of Civil Procedure by this
defendant and secondly. I am given to understand that the suit was already
been dismissed and for the present there is no appeal pending.
Sd/-N.N. Goswamy
Judge”
4. Continuing in the narrative, Hari Krishan also filed another suit
No.236/1976; impleaded some of the brothers, but not the present appellant;
in that he sought partition of another property being 0-2 Mohan Industrial
Area. His wife Uma Devi filed a suit No. 754/1979. The parties impleaded
were including Bimla Devi and the wives of other brothers – co-owners of
the suit property located at Joshi Road. Uma Devi’s suit sought for partition
of that property. In this suit too Jai Krishan sought for being impleaded as a
party; after the preliminary decree was drawn on 06.05.1980, Jai Krishan’s
application for being impleaded was dismissed on 22.02.1982. One of the
brothers of the parties, Chander Krishan filed yet another suit being
127/1980 before this court, for partitioning of property at Ratendon Road.
This impleaded the other brothers; Jai Krishan was not made a party. A
preliminary decree was drawn by an order of this Court in March 1980.
Like in the case of the other suits Jai Krishan’s application for being
impleaded was dismissed on 22.01.1982.
5. Undaunted by the repeated reverses that the appellant Jai Krishan was
subjected to, he filed a suit No.1007/1982 on 24.07.1982 for declaration and
partition of what were termed as a joint family properties of Balkrishan
Dass. In this all properties that were the subject matter of Suit Nos.235,
236/1976; 754/1979 and suit No.127/1980 were sought to be subjected to
partition. At the time this suit was filed, Jai Krishan’s appeal was pending
before the Supreme Court (CA No.717/1989). He had therefore, stated that
the suit was without prejudice to his contention in that appeal and in order to
protect his rights.
6. After the dismissal of the appellant’s application for being impleaded
in the other suits and after he filed Suit No.1007/1982, a list of properties
was sought to be included in suit No.235/1976, in which a preliminary
decree had been drawn on 17.05.1979. By an order dated 27.07.1982,
learned Single Judge noticed the previous position and inter alia observed
and directed as follows :
“The contention of the plaintiff however is that in case the objections to
the commissioner’s report are allowed to hand on, and ultimately the
Supreme Court vacates the stay, the decision of the pending objections in
this suit may further prolong the agony of the suit and its fruits reaching the
parties. However this aspect again as aforesaid is dependent upon the
determination of additional properties, if any, belonging to HUF. That
controversy has to be determined in terms of the preliminary decree. It is
not mentioned therein that such of the further properties can still asset
independently the existence of such HUF properties may require
consideration.
Before however this query is embarked upon, let each of the parties
submit its version of the existence of any other Balkishan Dass (HUF)
properties. This to be done within 10 days. Be listed on 9th August, 1982.”
7. The Court by an order dated 12.09.1982 noticed that during the
pendency of the suit and even at the time when preliminary decree was
directed to be drawn on 17.05.1979 none of the defendants had stated that
other properties were owned by Balkrishan Dass (HUF). The Court
bemoaned the fact that the plaintiff’s casual mention of other properties in
the suit resulted in a situation which was sought to be taken advantage of by
the defendants including the present appellant. In the light of these it was
observed and directed as follows :
“As a result of the order made on 27.7.1982, the defendant No.1 filed a
list of 15 properties which he claims, belong to Bal Kishan Dass Hindu
undivided family. He asserts that these properties should as well be
partitioned in terms of the preliminary decree passed on 17.5.1979. The
plaintiff who had in his plaint as well as two applications bearing I.A.
Nos.1147/76 and 109/78, been asserting that these were other properties of
the joint Hindu family apart from the seven properties specifically
mentioned in the plaint, has now taken the stand that there are no other joint
Hindu Family properties which call for partition under the preliminary
decree passed on 17.5.1979. Similar is the stand taken by the other
defendants. Rather those defendants at no stage asserted the existence of
such other properties. How much one would have wished that plaintiff had
not been caught in his own net laid in the plaint and the said applications by
making wide vague assertions of the existence of other joint Hindu family
properties. Now when the defendant No.1 has taken a positive stand about
those properties, and the disposal of the suit is likely to be considerably
prolonged, the plaintiff has come out with the sand that there are no other
joint Hindu family properties. Since the preliminary decree has itself left the
matter open with regard to other joint Hindu family properties, this aspect of
the controversy cannot be just brushed aside. This Court at this stage cannot
go behind the preliminary decree.
It can, of course, be with the parties to mutually agree if they like to proceed
with the partition with regard to the seven properties specifically mentioned
in the decree. In the absence of such mutual agreement, the preliminary
decree has to be given effect to.
The grievance of the defendants and the plaintiff that there are no particulars
given by the defendant No.1 in the list which he has filed, as to how he
claims that those properties are of the joint Hindu family of Bal Kishan
Dass. Their clarification has been given by him in the rejoinder which he
has filed to be replies which the defendants and the plaintiff have filed to
that list. Those defendants and plaintiff have no occasion to meet the
rejoinder.
In the circumstances, the proper course is that the defendant No.1
moves a self-contained application of how he claims that 15 properties
mentioned in the list are joint Hindu family of Bal Kishan Dass, and,
therefore, partition by metes and bounds in terms of the preliminary decree
should be granted qua them as well. The plaintiff and the other defendants
will thereafter reply to the application and set forth their case. It will be then
considered how far further enquiry or investigation about the respective
claims of the parties with regard to those properties should be embarked
upon.
Let the self-contained application be filed by the defendant No.1
within two weeks. Replies thereto be filed within 10 days next, and
rejoinders, if any, within a week thereafter. That application along with the
suit be listed before the Court on 19.1.1983.”
8. Consequent upon the above order Jai Krishan filed an application i.e.
IA 250/1983 seeking to include additional properties for which partition was
claimed. On 15.02.1985, learned Single Judge framed an issue “As to
whether the properties detailed in the list submitted by the appellant Jai
Krishan belonged to Balkrishan Dass (HUF)?” The court order also
observed that Jai Krishan Dass had filed another suit i.e. CS 1007/1982
which included the very same properties. In the light of that fact a
submission had been made by the counsel for that limited purpose of that
decision i.e. 15 items belonged to Balkrishan Dass (HUF), Suit
No.1007/1982 would be consolidated and that for the purpose of deciding
the other question of limitation the said later suit would stand alone.
9. The suit continued for ten years. An interlocutory appeal had been
preferred, which was disposed of by the Division Bench. Eventually, on 18-
04-1994, a learned Single Judge directed the parties to file an affidavit with
respect to each of the properties sought to be partitioned, including, date,
month and year of acquisition, date(s) of transaction, date of the title
documents and whether the title documents were in the possession of the
party concerned, etc. Ten days’ time was given to the parties. Affidavits in
compliance with this order were placed on record, with the relevant
materials. A later order recorded the parties’ unanimity and consent not to
lead or rely on oral evidence. However, during the proceedings, the
Appellant examined himself, and was subjected to cross examination. He
had served interrogatories during the proceedings; they were replied to.
Additionally, the oral evidence of a clerk from Allahabad Bank was also
recorded. After considering all these materials, the learned Single Judge, by
the impugned judgment, held that the Appellant could not establish his claim
that the 15 items of properties were part of the HUF assets of Balkrishan
Dass. The owners of these properties, either the other brothers individually,
or in some instances, jointly, and in some cases, the wives of those brothers,
had asserted that the properties belonged to them and had deposed as such in
their affidavits.
10. Mr. H.L. Tiku, learned Senior counsel argued that the appellant had
discharged the onus and had given sufficient details that the 15 properties
were HUF and arose from the funds of nucleus of the joint family. It was
urged that the Single Judge court fell into error because by preponderance of
probability the respondents had to lead their evidence to discharge their
onus. In view of the admitted details and evidence led by the appellant, it
was clear that the funding of the said 15 properties were HUF properties. It
was submitted that the appellant had exhibited documents and had stated by
leading positive evidence that his late father Bal Kishan Dass had executed a
deed of partial partition on 9th July 1960. Counsel also stressed that the
evidence revealed that PLGL was a partnership firm between Bal Kishan
Dass and his four brothers. Such brothers of the Appellant’s father
relinquished their respective right, interest, title and share during the course
of the years and Sh. Banwari Lal was the last brother who had retired. On
9th November 1973 the said firm exclusively fell to the share of the Bal
Kishan Dass and wife Ram Kala Devi and the appellant herein, namely, Jai
Kishan Dass. The other heirs of Balkrishan Dass had been exclulded since
they were paid their respective and due amount of Rs.22,000/- on 9th July
1960 by the said partial partition. Thus, on the partial partition which was
effected on 9th July 1960 it was stated categorically that the other heirs of
Lala Bal Kishan Dass, namely, the other brothers of the appellant had
nothing to do with the said properties as their share had been earmarked as
Rs. 22,000/- about and given and only the appellant and his parents were the
co-sharer. It is only on the death of Bal Kishan Dass and on the demise of
appellant’s mother that their share of 66% would devolve on the 6 sons, i.e.
11% each. The appellant’s share got enhanced by 11% and was 44% in all
whereas the other brothers had 11% share each. Ex.P-1 the partial partition
dated 9th July 1960 was on the record. These facts were overlooked by the
impugned judgment
11. It was submitted that the evidence before the Court showed that Bal
Kishan Dass had opened an account of PLGL which was his account as
proprietor of PLGL, which fell to his share. M/s. Victor Cable Corporation
was shown to have been introduced and its account opened on 24.4.73
substantiated the Appellant’s submission. This account had substantial
amounts.
12. Learned senior counsel faulted the impugned judgment for not
dealing with the appellant’s affidavit dated 17th May 1994 in which detailed
submissions were made and facts shown regarding the business concern of
Bhagwan Dass, the respective properties 1(a) and 1 (b), and the factory
under the name and style of Aggarwal Hosiery Mill. He stated that the onus
had been discharged by the appellant that the factory was purchased for
Rs.93,000/-. Similarly, the appellant had proved that the orchard and other
properties were purchased with monies of the HUF. Likewise, the counsel
submitted that there is no mention in the impugned order regarding the deed
dated 1.1.1958 where the capital contribution was made out of the joint
Hindu family of Lala Bal Kishan Dass. The appellant had shown and
substantiated his claim and the corresponding burden was not discharged by
the respondents
13. It was argued by Mr. H.L. Tiku, learned senior counsel that the
impugned judgment has not appreciated the true and full effect of the
documents and materials placed on the record. It was submitted that the
learned Single Judge failed to give any importance or credence to the
partnership deeds dated 30.12.1955 and 01.01.1958. These demonstrated
that the erstwhile Bhagwan Dass Babu Ram (which was later renamed as
“Victor Cable Corporation”) was entirely funded by the father of the parties,
i.e. Bal Kishan Dass. This was categorically stated by the appellant in I.A.
230/1983. None of the parties, i.e. the plaintiff or the other contesting
defendants/brothers ever stated that the erstwhile firm Bhagwan Dass Babu
Ram had not been acquired by Bal Kishan Dass through HUF funds. It was
also not their case that any or all of the other sons of Bhagwan Dass who
were made partners in the firm had made any capital contributions. Having
regard to these facts, every property mentioned in the appellant’s affidavit,
which had been acquired through the funds of Victor Cable Corporation, in
fact, became partible as it was joint family property. Arguing next about the
Property no. 4 – i.e. 38, Ratendeon Road, New Delhi, it was submitted that
the sale deed had been filed by the fourth defendant – Mr. C.K. Gupta. It
showed that the sale deed dated 01.02.1971 was filed. The property was
purchased for a consideration of Rs. 3,50,000/- in favor of the sons of Bal
Kishan Dass excluding the appellant. Learned counsel relied upon the
statement of account of Victor Cable Corporation maintained with the
Allahabad Bank and produced during the trial as Ex.DW-2/1, to say that the
funds had been paid out of the accounts of that firm. It was submitted that
similarly, Plot No. 2 at Block 2 Mohan Cooperative Industrial Estate
(MCIE) was acquired on 12.02.1963 in the name of Brij Krishan for
Rs.77,200/-. The relative statement of accounts, of Victor Cable
Corporation, maintained with the Allahabad Bank were produced as Ex.DW-
2/9 and DW-2/10. So far as Flat No. 401, Kanchanjunga Building, 18,
Barakhamba Road was concerned, the materials on record in the form of Flat
Buyer’s Agreement filed by the eighth defendant Uma Devi clearly
established that it was purchased for Rs.1,10,000/-. The statement of account
of Victor Cable Corporation placed on the record clearly revealed that Uma
Devi had withdrawn Rs.1,23,000/- during the period 1969-72. She also
admitted that she had received moneys from the firm; yet she stated that in
turn had been investing money with the firm. It was submitted that as far as
the business and factory – Alcon Power Cables Ltd. was concerned, the
affidavit of Mr. Chandra Krishan Gupta – the fourth defendant clearly
revealed that the amount of Rs.13,62,500/- had been received by him from
the sale proceeds of Victor Cable Corporation, which was sold on
01.04.1980. He used part of those funds in the acquisition of M/s. Alcan
Power Cables Ltd. This, it was submitted, clearly revealed that the said
properties too had to be included on account of their consideration being
traced to the capital and resources of Victor Cable Corporation.
14. Mr. Tiku, dealing next with the Flat No. 1410, Chiranjit Towers,
Nehru Place, New Delhi (Property no. 11) said that this was acquired in the
name of Smt. Sheela Gupta for Rs.1,54,726/- on 01.10.1980. She had clearly
withdrawn sum of Rs.1,66,000/- during the period 1974-76. For this
purpose, learned counsel relied upon extract of an account of the firm for the
period. He also relied upon the averments of Smt. Gupta, who stated that she
had been receiving amounts from Victor Cable Corporation but that she had
been investing with the firm too. Dealing next with the property no. 6, i.e. D-
7, Kalindi Colony, New Delhi, it was submitted that the consideration paid
was Rs.48,000/- and the property was purchased through sale deed dated
03.06.1967 by the eighth defendant – Smt. Uma Devi. It was argued that the
said defendant, being a housewife did not have a separate income and,
therefore, the monies were traceable to that of her husband’s firm which in
turn belonged to the HUF. The property next dealt with was the land at
Meola Maharajpur, Ballabgarh, Gurgaon, acquired in the names of Uma
Devi, Vimla, Jaswanti, Sheela and Avtar. The total consideration was
Rs.37,510/-. Learned counsel relied upon the affidavit filed by the eighth
defendant, Smt. Uma Devi, before the learned Single Judge, and stated that
the funds were clearly traceable to accounts held in Allahabad Bank and,
therefore, the property belonged to the HUF of Bal Kishan Dass.
15. Learned senior counsel argued that the appellant had led evidence that
the father, Bal Kishan Dass had executed deed of partial partition. The
evidence also pointed to the firm PLGL and the respective shareholding in it.
Furthermore, it was revealed that by a series of relinquishment/release
deeds, the shares of that firm had devolved exclusively upon Bal Kishan
Dass; ultimately on 09.11.1973, the concern became that of Bal Kishan Dass
and Ram Kala Devi and the present appellant. The parties to the suit, i.e. the
plaintiff and the other brothers (who were excluded from that firm) were
paid Rs. 22,000/- at the time of partial partition on 09.07.1960. That partition
deed categorically stated that other heirs of Bal Kishan Dass had nothing to
do with the properties. The evidence on record also showed that Bal Kishan
Dass was the only individual who could operate the PLGL account. In these
surrounding circumstances, when Victor Cable Corporation had opened its
bank account on 24.04.1973, there was no question of the amounts paid for
acquiring the properties- that were subject matter of the suit-, belonging to
anyone other than Bal Kishan Dass or his HUF.
16. Learned counsel submitted that the impugned order is silent about the
capital contribution made to the firm on 01.01.1958 from the joint HUF of
Lala Bal Kishan Dass. Once this stood established, the respondents were
under a duty to discharge the onus and reveal that the source of funds for all
the properties, of which partition was sought, actually belonged to them.
Learned counsel submitted that the business of Bhagwan Dass Babu Ram
which later came to be renamed as Victor Cable Corporation was purchased
for Rs.93,000/- in October1955 from PLGL. Aggarwal Hosiery Mill was
acquired by Bhagwan Dass as karta of his HUF. The partnership deed dated
01.01.1958 relied upon by the appellant stated that the capital contribution of
Rs.93,000/- was made from joint family funds. In not taking all these into
consideration, the Trial Court fell into error in holding that the appellant had
not discharged the onus in proving that for acquiring each of the 15 items of
properties listed, belonged to Bhagwan Dass HUF; in holding otherwise, the
Trial Court fell into error.
17. Learned counsel for the respondents, and the plaintiff argued that at
no relevant point in time did the Appellant claimed that the properties
belonged to the HUF. It was pointed out that when the suit was filed, and the
defendants entered their defence, the plea that properties other than those
listed in the plaint ought to have been made the subject matter of the
partition was never taken by the appellant. The stray sentence in the plaint
referring to “other properties” of Balkrishan Das HUF, without specifying
what they were, was seized upon by the Appellant – more than seven years
after the suit was filed, and four years after the preliminary decree was
drawn, in 1979. The Appellant and the plaintiffs’ father, Balkrishan Dass,
during his life time never acquiesced or conceded that the 15 properties that
were sought to be included through IA 250/1983, could be subject to
partition.
18. Learned counsel submitted that the findings recorded by the learned
Single Judge were in consonance with reason, law and consistent with the
evidence on the record. The mere fact that a joint family had existed during
some time, did not automatically lead to any presumption that the properties
acquired by some of its members were from the joint family funds, or that
sufficient nucleus existed with the HUF to invest those assets with the
character of joint family properties. In order to be partible, the claimant had
to establish in some manner that there could be no other inference except
that the funds of HUF were used for the acquisition of the assets. In the
present case, all worthwhile assets were acquired during the period 1957 to
1959; the properties were owned by wives of the defendant/ respondents.
Each one of them had given an explanation about the source of funds,
initially with them, and later given in deposit to Victor Cable Corporation.
These monies were later used to finance the asset acquisition. The property
tax, income tax and wealth tax assessments of these properties showed that
they were self-acquired properties of such ladies. The Appellant was well
aware of all these aspects, and even chose to question the status of these
properties, seeking a declaration that they did not belong to their ostensible
owners, but to the larger joint family. In that suit, he lost before the Single
Judge, Division Bench, and even suffered an adverse judgment by the
Supreme Court. This showed his awareness and knowledge as to who were
owners of the properties. He did not chose to question the ownership of
those assets, as not belonging to the ladies. Hence, in the guise of seeking a
partition, through an enlarged proceeding, he could not be allowed to obtain
a declaration or a cancellation of the title deed.
19. It was argued on behalf of the plaintiff and the other contesting
defendants that the appellant could not establish through any credible
materials on the record that the assets which he sought partition to, belonged
to HUF of which he was a member. Elaborating on this, it was submitted
that as on 1.10.1955, Bal Kishan Dass formed a partnership firm with three
sons, i.e., Brij Kishan, Gopal Kishan and Hari Kishan. These sons were
highly qualified technically and were taken on as working partners in the
firm M/s Bhagwan Das Babu Ram. The erstwhile Board of Bhagwan Dass
Babu Ram comprised of Bal Kishan Dass as one of its partners. On account
of continuing losses, the firm was wound up and Bal Kishan Dass took over
the entire business. It was thereafter that the firm of four partners including
Bal Kishan Dass was formed. Each partner had 1/4th share. The venture
engaged itself in manufacturing of electric wires and cables and was duly
registered under the Income Tax Act. It was submitted subsequently that the
Bal Kishan Dass as Karta of his HUF effected the partial partition of the
assets and interest of Bal Kishan Dass HUF in the firm of Bhagwan Dass
Babu Ram which at that stage was Rs.1,24,817/-. The coparceners including
the first defendant were allotted 1/8th share. The first defendant/appellant
received his share and with that the matter ended. With effect from
1.1.1958, M/s Bhagwan Das Babu Ram was reconstituted and two new
partners, i.e., Chander Krishan Gupta and Avtar Krishan Gupta were added.
Each one of them had 10% share. Bal Kishan Dass’ share was reduced to
5%. This firm was duly registered again with the income tax authorities. A
re-composition of the firm took place once again on 25.6.1960 when Bal
Kishan Dass retired from the firm. The remaining five partners became
equal shareholders to the extent of 20%. On 14.7.1961, the name of the firm
was changed to Victor Cable Corporation. All these were consistently
averred and pleaded in all the proceedings including the first suit instituted
by the appellant seeking a declaration that the erstwhile larger family of
Panna Lal Girdhari Lal had existed. Counsel for the respondents urged that
this history of the creation and business firm M/s Bhagwan Dass Babu Ram
and its later transformation into Victor Cable Corporation was consistently
maintained in all the pleadings by all contesting defendants as well as the
plaintiff except the present appellant. It was highlighted that the appellant
never worked as a partner; all other brothers were technically qualified and
had used their expertise for the augmentation of the firm’s business and
progress. Learned counsel submitted that the accounts of the firm and the
copies of the income tax returns filed by the firm with details of the income
expenditure and the entries standing in the name of Late Bal Kishan Dass as
well as his sons in their individual capacity and wherever they are partners,
in that capacity were reflected in the suit as well as in the previous
proceedings. As a result the onus was heavily on the appellant who asserted
that the money used by the owners of the several properties to acquire them
in fact emanated from the coffers of the HUF.
20. Learned counsel for the respondents argued that the firm Panna Lal
Girdhari Lal existed with reduced number of partners till 1973. Bal Kishan
Dass’ share, in that firm, as Karta of the HUF was the subject matter of the
partial partition in 1960. In fact the assets of that HUF were correctly
reflected in the schedule to Suit No.235/1976 when the first respondent
initially filed it. The appellant was correctly awarded 1/8th share from
amongst those assets. Since he has sought to include 15 other items, 6 of
which were in the name of the wives of his brothers, there was a clear cut
onus upon him to establish that acquisition of such assets by the wives was
from out of the joint family funds of which he was a member. The mere
circumstance that a joint family existed did not lead to any presumption that
properties acquire individually was in the name of certain individual
members of the HUF in fact belonged to the joint family. On the contrary,
argued the counsel, the fact that wives of some of the coparceners - except
the plaintiff- were owners or co-owners of properties, raised a presumption
of facts that they were real owners and not ostensible owners. If the logic
behind the appellant’s assertion and arguments were to be correct, even the
properties held in the name of his son, his wife and by him separately, or
individually should have been included in the list supplied by him. This
aspect was put to him during the cross examination to which he reacted that
those properties were acquired separately and were not part of the joint
family funds. Learned counsel, therefore, emphasis that on application of
similar logic, there was nothing to prevent other coparceners or their family
members from acquiring their own assets which could never be termed as
joint family property.
21. The judgment of the Supreme Court in Surjit Lal Chhabra v
Commissioner of Income Tax AIR 1976 SC 109 is authority for the
proposition that even if an asset, otherwise self-acquired property of a male
member is thrown into the common hotchpot, it does not alter the situation
and that
“in the eye of Hindu Law, is really his. He can deal with it as a full owner,
unrestrained by considerations of legal necessity or benefit of the estate. He
may sell it, mortgage it or make a gift of it. Even a son born or adopted after
the alienation shall have to take the family hotchpot as he finds it. A son
born, begotten or adopted after the alienation has no right to challenge the
alienation.”
There is a body of authority, in the form of decisions of various High Courts
(Manikrao v. Deorao A.I.R. 1955 Nag. 290, Radha Gobinda Roy v.
Durgarani Dassi I.L.R. (1955) 1 Cal. 207, 213 and Nagayasami Naidu &
Ors. vs Kochadai Naidu & Ors (1970) 1 MLJ 105; Dasrath Prasad v
Daswanti Kaur ILR (1976) 55 Pat 161) etc. that merely because the husband
possessed considerable properties raises no presumption that the property
found in the possession of the females and widow belonged to him (the
husband) and that it is for the person making the claim to adduce evidence as
to the source from which the property was acquired. If no account is given,
it has to be held that the property belongs to her. This line of distinction
between properties standing in the name of a male member and those
standing in the name of a female member of the family, whether she is the
wife, or the daughter-in-law or the daughter, is well settled.
22. As far as the first properties standing in the name of the wives of the
other brothers of the Appellants are concerned (i.e. land at Meola
Maharajpur, Ballabhgarh, Haryana; 785-809, Joshi Road, Karol Bagh, D-7
Kalindi Colony; Flat No. 401, Kanchenjunga, New Delhi, Flat No. 1410,
Chiranjiv Tower, Nehru Place, the South Extension property and Shop No.
5775, Sadar Bazar) all co-owners filed their affidavits pursuant to the orders
of Court. They also produced documents, such as income tax assessments,
Bank account statements, etc. Their claim is that these assets were acquired
by them independently of the monies generated by the HUF. In the case of
one property, the eighth respondent was able to show account and ledger
entries that disclosed that she maintained deposits with Victor Cable
Corporation. In the light of these documents, and the materials, even if there
were no presumption and arguendo there were some merit in the Appellant’s
contention that such women must have acquired the properties with the help
of their husband’s share in the HUF, such presumption stood rebutted, and
the onus of proving that the assets were acquired out of HUF funds was
upon the Appellant. He did not lead any contrary evidence; he did not also
insist on cross examining any of the witnesses, who deposed through their
affidavits regarding the assets and the source of their acquisition. As a result,
the learned Single Judge’s findings that the properties did not belong to any
HUF, and that he could not lay claim for partitioning them, is sound. The
Appellant’s arguments to the contrary are meritless.
Property Nos 7 to 13
23. The other properties of which the Appellant sought partition were:
(1) Plot of land in Mohan Co-operateive Industrial Area;
(2) 38 Ratendon Road (Amrita Shergill Marg)
(3) The business concern Bhagwandass Babu Ram (later renamed Victor
Cables Corporation);
(4) The business concern Pannalal Girdharilal (PLGL);
(5) The business Alcan Power Cables;
(6) The Krisha Gold and Silver Thread Mills
(7) The business Alka International.
24. The Appellant’s submission in regard to his entitlement to share in
these assets, and for accounting of these businesses, is premised on the
existence of his father’s HUF, Balkrishan Dass HUF. There is no doubt that
Balkrishan Dass HUF existed. Equally, however, the material on record
shows that this firm was represented through the father, Balkrishan Dass, as
a partner in PLGL, to the extent of 20%. The Appellant did not establish
through any objective material that the firm/concern Bhagwandass Babu
Ram was a family concern of Balkrishan Dass. The pleadings in the
affidavits of parties reveal that the firm was reconstituted in 1955 when
Balkrishan Dass and his three sons including the plaintiff were partners to
the extent of 25% each. The Appellant was aware of this fact, and had
agitated that this concern was part of the larger joint family, in the previous
suit. His plea was rejected right up to the Supreme Court. The firm was
again re-organized in 1958, when the father, Balkrishan Dass became
partner to the extent of 5% and the sons, except the Appellant also became
share-holders. The business of this firm was manufacture and sale of cables;
yet another re-organization took place in 1961 when Balkrishan Dass walked
out of the partnership, and the remaining sons (except the Appellant) became
equal partners to the extent of 20% each.
25. The ultimate fate of PLGL appears to have been that the entire
concern went into the hands of Balkrishan Das, in 1973. However, before
that, he seems to have effected a partition – of his HUF’s share in that
concern (PLGL) and made over the shares to his sons, including the present
Appellant. The accounts produced under oath, by the brothers of the
Appellants, show clearly that the sum of Rs.15,602/19 was credited to each
son, including the Appellant Jaikishan Dass during the accounting year
1957-58 (assessment year 1959-60); the amount of Rs.15,602/19 was
transferred to Balkrishan Das’s personal account. The assessment order,
dated 14-8-1960, records the partial partition of Balkrishan Dass’s assets in
the firm as karta, and the further reconstitution of the firm (Bhagwandass
Babu Ram). Registration of the firm under Section 26-A of the (repealed)
Income Tax Act, 1922 was recorded. Thus, it is clear from the materials on
the record, placed by the contesting parties that even though Balkrishan
Dass’s HUF continued, till the suit (out of which the present appeal arises)
was filed by the plaintiff, some partial partitions took place at early stages,
resulting in the share of that firm, in Bhagwandass Babu Ram, itself being
partitioned, as far back as in 1957. Before that Balkrishan Dass held a 25%
share, which at best could be in his capacity as karta of his joint family.
However, as far as the 75% share of the three other sons, including the
plaintiff was concerned, there is no material to suggest that they belonged to
the HUF. In fact, the common case of all the brothers, except the Appellant
(even the two other brothers, Chander Krishan and Avtar Krishan who were
not partners originally, in Bhagwandass Baburam) was that the said three
partner-brothers were inducted on account of their knowledge, expertise and
education in the trade. By all accounts, this knowledge and expertise helped
the business, which grew. The Appellant was under a duty to show that the
entire firm (Bhagwandass Babu Ram, later known as Victor Cables
Corporation) remained a HUF property right up to the filing of the suit. He
could not prove that; on the other hand, his attempt to say that it was part of
the larger HUF of Girdharilal, his grandfather, miserably failed, in all courts,
right up to the Supreme Court.
26. In this context, it would be relevant to extract some of the discussion
and findings of the learned Single Judge, in the impugned judgment. They
are as follows:
“35. When asked about Pusa Road property and Darya Ganj property that
they had been included in assessment of Bal Kishan Das HUF, defendant
No. 1 would admit that they were assessed in the name of Balkishan Das
HUF. Therefore, the witness was fully aware of the assessment being made
in respect of the properties of the joint family and properties assessed
belonging to the other defendants. He was also asked that Joshi Road or
Kalindi properties were not included in the assessment he gives a reply
which shows desperateness for him. He says that he was never associated
and, therefore, he did not know. He admits that he made complaints to the
Income Tax Department.
37. He was specifically asked about the payments made by the HUF for 38,
Retandon Road property. He asserted that it was Balkishan Das HUF which
purchased and financed for the property. It was renamed as Victor Cables
Corporation and that there was no other source from which anybody could
have purchased the property. If this is the nature of the evidence to claim
immovable properties, I am afraid, the first defendant is trying to establish
law of his own. From the earlier proceedings, it came to light that the first
defendant had filed a petition under the Delhi Shops & Establishment Act,
1954, against Panna Lal Girdhar Lal as he was an employee therein. One
would expect him to either admit the fact and also give us the details about
the petition so that this Court could appreciate the jural relationship between
Panna Lal Girdhar Lal and the first defendant. But what he would say is that
he does not remember and that has nothing to do with the partition sought
for in this suit. Therefore, the evidence of such a person cannot be taken
without a pinch of salt. He was asked about the properties in his name and in
the name of his son Raj Krishan Das, he became very furious and would say
that he purchased from his own funds and his son purchased his property
from his own money and these items were not subject matter of the suit.
What is sought to be elicited from him is that if he is claiming properties in
the names of the wives of other brothers and other brothers the properties in
his names and in the names of his son and daughter should also be brought
into the hotchpot, if his theory of purchases from out of the common funds
of the family is true.
38. When he was asked about the total income tax paid by him between
1950 to 1960 and 1970 to 1980, the answer is that he does not remember. He
was asked about the proof of his claim, he would again state that the
interrogatories are the answer.
Q.83. Apart from your oral statement do you have any other proof in support
of your claim that properties being claimed by you, are that all HUF and
were purchased from the funds of the HUF?
Ans. I again repeat that I have given the proof in the interrogatories served
on them which they have not answered so far in spite pf repeated orders of
this Hon'ble Court. Secondly I have filed an application that the parties,
plaintiff and other defendants, who are in possession of the original
documents they should file and produce those documents in court whereas I
have filed the list of documents some of these are certified copies rest
uncertified copies and these are in the court record. List of documents and
documents are in court file part III. So on my part I have filed the documents
whether they are certified copies or un-certified copies.
39. Mr. S.P. Aggarwal, learned senior counsel for Brij Krishan Gupta, the
second defendant, asked few questions in the cross examination in his
attempt to get some material in favour of the first defendant and the second
defendant. The first defendant could not appreciate and gave again answers
which could not be understood by anybody.
40. Mr. M.N. Krishnamani, learned senior counsel cross-examined Jai
Krishan Das on behalf of defendants No. 3A, 5 and 6. He admits that about
Joshi Road property he gave a complaint and that was rejected by the
Income Tax Department, even though the suggestion was denied by him. He
would even go to the extent of denying his filing an application in suit No.
412/75 which related to the firm Victor Cables Corporation and which was
rejected.
41. Then Mr. J.P. Gupta, learned counsel for defendants 4 and 9 cross-
examined the witness. He would admit that for the first time after his being
isolated in 1961 he claims that partnership belonging to HUF and he admits
that suit No. 154/67 was dismissed upto the Supreme Court.
42. On 11.3.1996, 4th defendant Chander Krishan Gupta filed an affidavit
filing list of accounts books of Bhagwan Das Babu Ram/Victor Cables
Corporation and photostat copies of the Mundi Scripts relating to Uma Devi,
Vimla Devi, Jaswanti Devi, Sheela Devi and Swarn Devi. These documents
have been filed to show that the ladies were depositing monies in Bhagwan
Das Babu Ram/Victor Cables Corporation and the firm used to deduct
income tax at source on the interests paid to them. On the same date, the
second defendant Brij Krishan Gupta filed an affidavit along with the list of
documents. He filed photostat copies of the partnership deed dated 30th day
of December 1955 and partnership deed dated 30th of April 1973. The
document is of 1955 prior to 1961 and the 1973 documents have been
considered by this Court in the earlier orders and these documents filed by
the second defendant do not throw any light to come to any decision about
the character of the 15 items under consideration.
43. The first defendant sought to examine some telegram and he sought to
examine Om Pal Singh, Town Inspector, Department of Posts & Telegraph.
He said that he was not able to get any document because no particulars are
given. I noted the following on that date :-
"The learned counsel for the first defendant when seeking to issue summons
to the witness to the Superintendent Incharge, DTO, Delhi mentioned as
witness No. 14 in the summons, has written "Clerk concerned records
pertaining to telegram, Kashmere Gate, Delhi."
This shows how without any regard for the Court and just for the purpose of
asking for time the first defendant had taken out summons.
44. On 12.3.1996 the first defendant sought to examine D.W.2 who ha come
to Court but not available for examination. In the list of witnesses given by
the first defendant, the serial number is 13. To find out how the first
defendant had described about D.W.2 and what sorts of documents he
wanted D.W.2 to produce I perused the list. This also shows how vague the
summons is. This only demonstrates that the first defendant was not really
interested in getting relevant documents. He was fully aware that no
document would be available. I noted the following on that date with
reference to D.W.2 :-
"Learned counsel for the first defendant, when seeking to issue summons to
the witness No. 13, it is mentioned as follows :-
"Clerk concerned, Mohan Cooperative Industrial Estate Limited, Mohan
Singh Building, Shankar Market, Connaught Place, New Delhi."
The learned counsel for the first defendant seeks to have it on some other
day for examination on his behalf."
45. Sh. Dhanbir Singh, Cashier-cum-clerk, Allahabad Bank was examined as
D.W.3 on 12.3.1996. The photostat copies of certain statements of accounts
and the following documents were marked through him :-
1. Ex.DW3/1 statement of account relating to the year 1971.
2. Ex.DW3/2 statement of account for the year 1959 relating to Mrs. Urmila
Devi.
3. Ex.DW3/3 statement of account relating to Gopal Krishan Gupta for the
year 1973.
4. Ex.DW3/4 statement of account relating to Urmila Devi for the year 1957.
5. Ex.DW.3/5 statement of account relating to the year 1957 in respect of
Bhagwan Dass Babu Ram.
6. Ex.DW.3/6 statement of account relating to Hari Krishan Dass relating to
1957. The second sheet in Ex. DW.3/6 would relate to the year 1958.
7. Ex.DW.3/7 relates to Brij Krishan Gupta for the year 1957.
8. Ex.DW3/8 relates to Brij Krishan Gupta for the year 1958.
9. Ex.DW.3/9 relates to Bhagwan Dass Babu Ram for the year 1959.
10. Ex.DW.3/10 is in relation to Uma Devi for the year 1957.
11. Ex.DW.3/11 in relation to Uma Devi is for the year 1957.
12. Ex.DW3/12 a copy of the ledger account of the firm Panna Lal Girdhar
Lal of the opening sheet dated 11.9.73.
13. Ex.DW.3/13 is the cash credit current account of Panna Lal Girdhar Lal.
14. Ex.DW.3/14 again cash credit ledger account of Panna Lal Girdhar Lal.
It is noted that all these documents marked today are photostat copies and
the learned counsel for the first defendant represented that the certified
copies re on record in suit No. 154/67 which has been disposed of. It is not
shown as to how these documents are of any help to the first defendant with
reference to the 15 items.
46. On 22.3.1996 Dhanbir Singh, a clerk from Allahabad Bank, Basandra
Enclave, New Delhi was examined as D1W2. It appears the same man
D.W.3 has again been examined. The first defendant marked Ex.D1W2/1 to
D1W2/13. The marking of these documents were opposed. In the summons
issued, it was not specified what are the documents to be brought by the
witness. In the cross-examination, the witness would admit that he was not
in a position to identify the signatures because he joined the bank only in
1986. Documents Ex.D1W2/1 to D1W/13 do not throw any light on the
question on issue.”
27. Ultimately, after discussing the relevant law, the impugned judgment
concluded that:
“48. In the context to the evidence adduced by the first defendant, the
conclusion is irresistible that the first defendant had indulged himself in a
very vexatious claim without any regard for truth. The other defendants Nos.
3A, 4, 5, 6, 8 and 9 and the plaintiff have filed documents which go to show
that their claims are true. On a perusal of the documents filed by them would
show that they had acquired their respective properties from their own
resources without any detriment to any joint family members.
49. The first defendant having failed upto the Supreme Court in the earlier
suit, has again attempted to resuscitate the dead claims without any
justification whatsoever. The documents filed by him and the evidence given
by him do not satisfy the requirements of law as laid down by the Privy
Council and Their Lordships of the Supreme Court.”
28. This court notices that the learned Single Judge relied on the Privy
Council ruling in Appalaswami v. Suryanarayanamurti & Ors., A.I.R. 1947
PC 189 where it was held that:
“Proof of the.existence of a joint family does not lead to the presumption
that property held by any member of the family is joint, and the burden rests
upon anyone asserting that any item of property is joint to establish the fact.
But where it is established that the family possessed some joint property
which from its nature and relative value may have formed the nucleus from
which the property in question may have been acquired, the burden shifts to
the party alleging self-acquisition to establish affirmatively that the property
was acquired without the aid of the joint family property”
29. Much later, analyzing the above ruling, and subsequent decisions, the
Supreme Court, in D.S. Lakshmaiah & Anr. Vs. L. Balasubramanyam & Anr
2003 (10) SCC 310, held that:
“In Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh
[(1969) 1 SCC 386], noticing the observations of Sir John Beaumont in
Appalaswami's case (supra), it was reiterated that the burden of proving that
any particular property is joint family property in the first instance is upon
the person who claims it to be so. But if the possession of a nucleus of the
joint family property is either admitted or proved, any acquisition made by a
member of the joint family is presumed to be joint family property. This is,
however, subject to the limitation that the joint family property must be such
as with its aid the property in question could have been acquired. It is only
after the possession of an adequate nucleus is shown, that the onus shifts on
to the person who claims the property as self-acquisition to affirmatively
make out that the property was acquired without any aid from the family
estate. We are unable to accept the contention of learned counsel for the
respondents that the aforesaid later observations have been made without
reasons or that the Privy Council's decision does not hold so. The
observation that only after possession of adequate nucleus is shown that the
onus shifts also get support from Srinivas Krishnarao Kango's case (supra)
where, while considering the question of shifting of burden, it has been held
that the important thing to consider is the income which the nucleus yields.
In Baikuntha Nath Paramanik (dead) by His L.Rs. & Heirs v. Sashi Bhusan
Pramanik (dead) by his L.Rs. & Ors. [(1973) 2 SCC 334], this Court again
held that when a joint family is found to be in possession of nucleus
sufficient to make the impugned acquisitions then a presumption arises that
the acquisitions standing in the names of the person who were in the
management of the family properties are family acquisitions. In Surendra
Kumar v. Phoolchand (dead) through LRs & Anr. [(1996) 2 SCC 491], this
Court held that where it is established or admitted that the family which
possessed joint property which from its nature and relative value may have
formed sufficient nucleus from which the property in question may have
been acquired, the presumption arises that it was the joint property and the
burden shifts to the party alleging self-acquisition to establish affirmatively
that the property was acquired without the aid of the joint family funds.”
30. The Appellant/first defendant, being the only one claiming that the
properties which he sought partition of, were impressed with the character of
HUF assets, was under an onus to establish that a joint family with sufficient
funds, to acquire the said assets, existed. The materials on record on the
other hand reveals that the firm Bhagwandass Babu Ram was never treated
as a family concern; initially only a few sons were inducted as partners. The
father, Balkrishan Dass, effected a partition of his share in that concern after
which he joined as a minor partner, in his individual capacity; two other sons
became partners with 10% share each. Later, the firm was reorganized and
Balkrishan Dass was no longer partner; others – except the first defendant,
became equal partners. The assets belonging to the HUF of Balkrishan Dass,
to the extent they remained intact and undivided were concededly made the
subject matter of the suit, out of which the present appeal has arisen, i.e.,
Suit No. 235/1976. Each of the other brothers who continued in Victor Cable
Corporation, worked in their individual capacity, having gained experience,
qualifications and expertise in the business and trade. The Appellant, on the
other hand, was never part of that business; he did not seek inclusion, at any
appropriate stage. He has not been able to show also that the HUF
Balkrishan Dass had funds sufficient to acquire all the rest of the properties
that were the subject matter of the list submitted by the Appellant. He clearly
failed to discharge the burden which lay upon him to prove that the
properties – of which claimed partition were acquired out of HUF funds, and
that sufficient funds for acquiring such assets existed.
31.In view of the above discussion, this Court is of the opinion that the
Appeal is devoid of any merit. It fails and is accordingly dismissed, without
any order as to costs.
Sd/-
S. RAVINDRA BHAT
(JUDGE)
Sd/-
S.P.GARG
(JUDGE)
APRIL 5, 2013