Sh. Bishan Chand vs Sh. Anil Kumar and Others

Reva Khetrapal, J.—The present suit is filed by the plaintiff praying for a decree of partition of property bearing No. IX/2391, Kailash Nagar, Delhi, the possession of 1/8th share therein, rendition of accounts, a declaration to the effect that the plaintiff has become a co-tenant of Shop No. 2210, Kinari Bazar, Delhi as also a decree of permanent injunction restraining the defendants No. 1 to 7 from selling, transferring or alienating the property No. IX/2391, Kailash Nagar, Delhi.

The relevant facts as set out in the plaint are as follows.

The plaintiff and the defendants No. 1 to 3 are the sons and the defendants No. 5 to 7 are the daughters of late Shri Ram Bahadur. The defendant No. 4 is the widow of late Shri Ram Bahadur. The defendants No. 8 and 9 are the owners/landlords of Shop No. 2210, Kinari Bazar, Delhi.

Late Shri Ram Bahadur was the owner of property No. IX/2391, Kailash Nagar, Delhi and also a tenant of a commercial premises bearing Municipal No. 2210, Kinari Bazar, Delhi, where he was running a goldsmith shop. He was also possessed gold and silver jewellery estimated by the plaintiff to be of the value of Rs. 1,50,000/-.

Late Shri Ram Bahadur died intestate on 5th March, 1988 and after his death the plaintiff, being one of the eight legal heirs, claims to be entitled to 1/8th share in the aforesaid property at Kailash Nagar as well as tenancy rights in the shop at Kinari Bazar, besides the rendition of accounts.

The defendants No. 1 to 4 filed a written statement (the other defendants being ex parte), challenging the claim of the plaintiff primarily on the ground that the plaintiff is not the son of late Shri Ram Bahadur and, as such, is not entitled to a share of his estate. It was further submitted that the property bearing No. IX/2391, Kailash Nagar, Delhi was in the name of one Shri Lal Chand, son of Shri Tula Ram, and that in fact the said property is owned by the defendant No. 4 by virtue of a will dated 16th March, 1970.

The plaintiff in the replication filed by him emphatically controverted the aforesaid allegations and specifically mentioned that he was born from the first wedlock of late Shri Ram Bahadur with Smt. Uma Devi, while the defendants No. 1 to 3 and 5 to 7 were born from the second marriage of late Shri Ram Bahadur with the defendant No. 4 Smt. Shanti Devi. The plaintiff also specifically submitted that the property at Kailash Nagar was purchased by late Shri Ram Bahadur somewhere in the year 1978 or 1979, which was later on mutated in the name of late Shri Ram Bahadur in the records of the Municipal Corporation. He categorically denied the averment made by the defendants that the property in dispute was owned by the defendant No. 4 by virtue of a will executed by the aforesaid Lal Chand, son of Shri Tula Ram.

On 11th March, 1996, the issues which emanated from the pleadings of the parties were framed for adjudication which are as follows:

Whether the plaintiff proves that he is son of Late Sh. Ram Bahadur?

Whether the plaintiff has got any share in the suit property? If yes, what is the share?

Whether the plaint is properly valued for the purpose of Court fee and jurisdiction?

Whether the plaintiff proves that the suit property was of the ownership of Late Sh. Ram Bahadur?

Whether the defendant proves that the property in question was owned by late Sh. Lal Chand, S/o Sh. Tula Ram?

Whether the defendants further prove that said Sh. Lal Chand has bequeathed the said property in favour of defendant No. 4 by will dated 16.3.70?

Whether the plaintiff proves that Late Sh. Ram Bahadur was running Shop No. 2210, Kinari Bazar, Delhi?

Whether the plaintiff further proves that the said shop and the business has come in the hands of defendants and that they are liable to give accounts of the said shop?

Whether the plaintiff is entitled to get partition and separate possession in the suit property?

What order and decree?

The parties adduced their respective evidence on the above issues. The plaintiff in order to substantiate his claim for partition examined four witnesses before closing his evidence in the affirmative, while the defendants No. 1 to 4 produced in the witness box three witnesses to counter the claim of the plaintiff.

Issues No. 1 and 2

Issues No. 1 and 2 are closely interlinked and interconnected, and are accordingly being dealt with together. The focal point of the entire controversy is as to whether the plaintiff is the son and legal heir of late Shri Ram Bahadur and, as such, has any share in the estate left behind by late Shri Ram Bahadur. The onus of proving the aforesaid facts was on the plaintiff and he has fully discharged the same through his oral testimony as well as through the documentary evidence proved on record by him.

The plaintiff, who examined himself as PW2 in the witness box, categorically stated that Ram Bahadur was his father, and Ram Sarup was his grand father, and that he was born in House No. 2210, Kucha Alam Chand, Kinari Bazar, Delhi, in 1947-48. His mother''s name was Uma Devi, who died when he was 1-1/2 year old. After the death of his mother, his father married Smt. Shanti Devi (the defendant No. 4). The defendants No. 1 to 3 are the sons of Smt. Shanti Devi, and three daughters were also born to Smt. Shanti Devi (the defendants No. 5, 6 and 7).

In the course of his examination-in-chief, the plaintiff also produced the following documentary evidence, which unequivocally points to the fact that the plaintiff was the first born of late Shri Ram Bahadur and as such entitled to 1/8th share in the estate of late Shri Ram Bahadur:

(i) Certified copy of the Electoral Roll of the year 1984 of the East Delhi Constituency? Exhibit PW 2/1, which reflects that the plaintiff was the son of late Shri Ram Bahadur.

(ii) Copy of the licence granted by the Customs Department to the plaintiff for running a jewellery shop ? Exhibit PW 2/2, which shows that late Shri Ram Bahadur was the father of the plaintiff.

(iii) A photograph taken at the time of the marriage of the defendant No. 5 Usha Kiran, in which the plaintiff is offering sweets to Shri Ram Kishore, with whom his sister Usha Kiran was married ? Exhibit PW 2/3.

(iv) A photograph taken at the time of the marriage of the plaintiff''s sister Kusum Lata (the defendant No. 6) in which the plaintiff is offering sweets to Shri Anil Kumar Verma, to whom his sister Kusum Lata was married ? Exhibit PW 2/4.

(v) Certified copy of the mutation record of House No. 2391, Kailash Nagar, Delhi ? Mark D.

(vi) Site plan of the aforesaid house ? Exhibit PW 2/5.

In the course of the cross-examination of the plaintiff (PW2), none of the aforesaid documents were challenged by the defendants on the ground that they were not genuine and authentic documents. A half-hearted suggestion was put to the plaintiff that he was not the son of Ram Bahadur, which was categorically denied by him. No doubt, the plaintiff was asked to produce his birth certificate and a photograph of his father as well as a ration card to show that he had been residing with late Shri Ram Bahadur, to which the plaintiff replied that he did not have the aforesaid documents, but this, in my view, cannot belie the documents referred to hereinabove, the authenticity of which is not in dispute. I have, therefore, no hesitation in holding that the plaintiff is one of the sons of late Shri Ram Bahadur and hence entitled to 1/8th share in his estate.

I am fortified in coming to the above conclusion from the testimony of the paternal uncle of the plaintiff and the defendants No. 1 to 4 and 5 to 7. PW-4 Ram Kesh, son of Ram Sarup testified that Ram Bahadur was his elder brother, who had good relations with him and that Bishan Chand, the plaintiff herein, was the eldest son of Shri Ram Bahadur. He further stated on oath that late Shri Ram Bahadur had a house in Gali No. 12, Kailash Nagar and was working as a jeweller in Kinari Bazar, which was a tenanted premises. He categorically denied the suggestion put to him in the cross-examination that the plaintiff was not the son of Ram Bahadur. In further cross-examination, he stated that the Kailash Nagar house had been purchased in the name of Ram Bahadur in his presence, and that it was incorrect to suggest that the Kailash Nagar house was in the name of the defendant No. 4, Smt. Shanti Devi.

I am also buttressed in holding that the plaintiff is the son of late Shri Ram Bahadur from the testimonies of PW1 and PW3, both practicing Advocates of this Court. PW1 Shri J.D. Gupta proved in the witness box the copy of the notice dated 12th April, 1988 sent by registered A.D. post as Exhibit PW 1/1 and stated that the same had been drafted by him under instructions from the plaintiff and issued to the defendants No. 1 to 5. PW3 Shri J.C. Mahindroo, Advocate testified in the witness box that he had given a reply on 23rd April, 1988 to the notice dated 12th April, 1988 received from PW1 Shri J.D. Gupta, Advocate. He stated that copy of the reply was Exhibit PW 3/1.

Pertinently, in the said reply notice dated 23rd April, 1988 (Exhibit PW 3/1), it is specifically mentioned that the same is issued in response to the notice dated 12th April, 1988 issued by Shri Bishan Chand and is addressed to Shri J.D. Gupta, Advocate. It is further submitted therein that the defendants had already paid the plaintiff his share when he separated from the joint family. In paragraph 3, it is stated:

It is further submitted that your client has only got 1/8th share in all the assets and liabilities.

This is a categorical admission by the defendants that the plaintiff, being one of the legal heirs of late Shri Ram Bahadur, is entitled to 1/8th share. Thus, the fact that the plaintiff is the son of late Shri Ram Bahadur has been proved to the hilt.

To rebut the testimony of the plaintiff''s witnesses, the defendants examined DW1 Anil Kumar Verma, the defendant No. 1, who stated in the witness box that he did not know the plaintiff and that the plaintiff had never attended any marriage in the family. However, on being cross-examined, he admitted that photographs (Exhibit PW 2/3 and Exhibit PW 2/4) pertain to the marriage of his sisters. Smt. Usha Kiran and Smt. Kusum, though he made a half-hearted attempt to deny that the person who was offering sweets was not the plaintiff.

The only other witnesses examined by the defendants were DW2 and DW3. DW2 Shri Dharam Dev merely proved certain vouchers on record with regard to the jewellery business transacted by late Shri Ram Bahadur with him (Exhibit DW 2/1 to Exhibit DW 2/9), while DW3 Shri Amar Nath apart from proving certain vouchers (Exhibit DW 3/1 to Exhibit 3/9) merely stated that he was not aware if Ram Bahadur had any son by the name of Bishan Chand. Thus, the testimony of these witnesses is of no avail to the defendants.

Issues No. 1 and 2 are accordingly decided in favour of the plaintiff by holding that the plaintiff is entitled to a share in the suit property by virtue of his being the son and legal representative of late Shri Ram Bahadur.

Issue No. 3

The onus of proving this issue was upon the defendants, which the defendants have miserably failed to discharge. In any event, the law is well settled that in respect of suits falling under Sub-section (iv) of Section 7 of the Court Fees Act, the amount stated by the plaintiff as the value of his claim has ordinarily to be accepted by the Court in computing the Court fees payable in respect of the said relief, the caveat being that the plaintiff cannot be allowed to value the relief claimed arbitrarily [see Abdul Hamid Shamsi Vs. Abdul Majid and Ors, and Commercial Aviation and Travel Company and Others Vs. Vimla Pannalal, ].

Issues No. 4, 5 and 6

Issues No. 4, 5 and 6 relate to the ownership of the same suit property and are accordingly being dealt with together.

In the context of property No. 2391, Gali No. 12, Kailash Nagar, Delhi, PW2 Bishan Chand (the plaintiff herein) categorically stated that the said property constitutes part of the estate of his late father, Shri Ram Bahadur. PW4 Shri Ram Kesh, the brother of late Shri Ram Bahadur, also stated in the witness box that the Kailash Nagar house had been purchased by Shri Ram Bahadur in his presence.

PW2 Bishan Chand also proved in the witness box the certified copy of the mutation record of the aforesaid house along with its site plan (Exhibit PW 2/5). Neither the mutation record nor the site plan were disputed by the defendants in the course of cross-examining PW2. Thus, in my opinion, it stands established on record that the Kailash Nagar property belonged to late Shri Ram Bahadur.

DW1 in his statement testified that property No. 2391, Gali No. 12, Kailash Nagar belonged to his father and his father had executed a will in the name of the defendant No. 4 prior to his death. In his cross-examination, however, he took a complete somersault and stated that House No. 2391, Gali No. 12, Kailash Nagar was purchased by his father from Mr. Lal Chand and that Lal Chand had executed a will in respect of this house in favour of his mother (the defendant No. 4). He further stated in the cross-examination that except the will, no other document was executed by Lal Chand. The payment of consideration, he stated, was made by his father.

The aforesaid shifting stands taken by DW1 in the cross of his evidence throw a shadow of doubt on the veracity of his claim with regard to the will executed in the name of defendant No. 4. Apart from the fact that contradictory stands were taken by DW1 Anil Kumar with regard to the authorship of the will (his stand in the examination-in-chief being that late Shri Ram Bahadur had executed a will in favour of the defendant No. 4 and his stand in the cross-examination being that Lal Chand had executed a will in favour of the defendant No. 4), there is yet another aspect of the matter. In paragraph 2 of the written statement filed by the defendants, it is categorically denied that late Shri Ram Bahadur was the owner of the Kailash Nagar property. It is further stated as follows:

The property in question was in the name of Shri Kanhya Lal for property tax purposes in the record of Municipal Commissioner of Delhi. The alleged assessment in the name of Shri Ram Bahadur appears to be the result of manipulation on the part of the plaintiff. The answering defendants are in possession of the property in dispute. The plaintiff has no concern whatsoever. Shri Ram Bahadur held the property as an attorney. The attorney stood cancelled and extinguished on his death. Even if Shri Ram Bahadur got the property assessed to property tax in his own name, it may be only as an attorney. In fact the property in suit is owned by defendant No. 4 by virtue of a Will dated 16.5.1970 executed by Shri Lal Chand s/o Shri Tula Ram, resident of house No. D-63, Haqiqat Rai Nagar, Adarsh Nagar, Delhi. The correctness of the site plan alleged to have been filed by the plaintiff is not admitted.

The nature of the relationship between Shri Lal Chand/Kanhya Lal and the defendant No. 4 is not set out in the pleadings or evidence nor the will has seen the light of the day. In fact, the defendants have not placed on record a single document to establish the execution of any will executed either by Lal Chand in favour of the defendant No. 4 or by late Shri Ram Bahadur in favour of the defendant No. 4. The defendant No. 4 has also not been produced in the witness box to state that a will had been executed in her favour, either by her late husband or by Shri Lal Chand. Interestingly, in cross-examination, DW1, while stating that a will had been executed by Shri Lal Chand in favour of the defendant No. 4, in the same breath stated that the said property had been purchased by his father from Mr. Lal Chand.

Issues No. 4, 5 and 6 are accordingly decided against the defendants and in favour of the plaintiff.

Issue No. 7

As regards Shop No. 2210, Kinari Bazar, Delhi, it is admitted by DW1 Shri Anil Kumar Verma in his evidence that late Shri Ram Bahadur was running shop No. 2210, Kinari Bazar, Delhi. DW3 Shri Amar Nath also testified that late Shri Ram Bahadur was running the business in Kinari Bazar, apart from PW4 Shri Ram Kesh, who deposed that Ram Bahadur was a jeweller working in Kinari Bazar, which was a tenanted premises.

It is also not in dispute that the defendants have taken over the aforesaid running business of late Shri Ram Bahadur. Issues No. 7 and 8 are accordingly decided in favour of the plaintiff.

Issues No. 9 and 10

The inevitable result is that the plaintiff must be held entitled to one-eight share of the suit property and separate possession thereof. Accordingly, a preliminary decree for partition of the property bearing No. IX/2391, Kailash Nagar, Delhi is passed in favour of the plaintiff and against the defendants No. 1 to 7. A decree of declaration that the plaintiff has become a co-tenant of Shop No. 2210, Kinari Bazar, Delhi is also passed. Further, a decree of permanent injunction restraining the defendants No. 1 to 7 from selling, transferring or alienating property No. IX/2391, Kailash Nagar, Delhi and parting with possession of the whole or any part thereof as well as restraining the defendants No. 8 and 9 from transferring the tenancy rights of the shop in dispute exclusively in favour of the defendants No. 1 to 7 or any other person, is passed. The plaintiff is also held entitled to a decree for rendition of accounts, directing the defendants No. 1 to 3 to render true and correct accounts of the business run in Shop No. 2210, Kinari Bazar, Delhi for the period of three years prior to the death of late Shri Ram Bahadur and after rendition of accounts, the plaintiff shall be entitled to 1/8th share therein. Shri S.P. Singh Premi, Deputy Registrar of this Court is appointed as Commissioner for the purpose of partition of the suit property, rendition of accounts and all other related matters. He shall tentatively be paid a fee of Rs. 80,000/-, one- eighth share of which shall be paid by the plaintiff and the remaining by the other legal representatives of late Shri Ram Bahadur in proportionate shares. The Commissioner shall, if possible, partition the property by metes and bounds and in case the same is not found feasible, shall submit his report with regard to the feasibility of the sale thereof and division of the sale-proceeds thereafter.

List the case on 20th April, 2009 before the Roster Bench for awaiting the report of the Commissioner.