Surender Kamboj vs Virender Singh & Ors

Prateek Jalan, J

I.A. 15089/2016 in CS(OS) 1834/2014

This application has been filed by Smt.Indu Kamboj [defendant no.9 in the suit] for a direction upon the plaintiff to delete certain properties from the

schedule of properties in this partition suit. The applicant’s contention is that the property is her self-acquired property and is not susceptible to

partition at the instance of the plaintiff. Although the application is styled as one under Order VI Rule 16 of the Code of Civil Procedure, 1908

[hereinafter referred to as “the CPCâ€], Mr. Anupam Srivastava, learned counsel for the applicant, submits that it be treated as one for judgment

upon admission, under Order XII Rule 6 of the CPC. According to learned counsel for the applicant, the character of the properties in question as

self-acquired properties of the applicant, have been admitted by the plaintiff.

Facts

The applicant Smt.Indu Kamboj is the wife of Sh.Virender Singh Kamboj [defendant no.1 in the suit], who is the older brother of the plaintiff,

Sh.Surender Kamboj. The relief claimed by the plaintiff in the suit is principally for partition of various properties, which he contends were purchased

out of the joint family funds, earned out of the joint business of the parties. The plaintiff claims 1/3rd share in 19 properties [enumerated in prayer A of

the plaint] and 1/9th share in 3 other properties [enumerated in prayer B of the plaint]. Of the 22 properties included in the schedule of properties, the

applicant claims that the following properties are her self-acquired exclusive properties:

“i) 25/37, Gali No. 16, Viswas Nagar, Delhi

ii) First floor House No.2425, Tilak Gali, Pahar Ganj, New Delhi-110055

iii) K-217, South City-I, Gurgaon (Hayrana), Customer ID No. 8610641 Unitech Limited South City, Gurgaon.â€​

Although the applicant was not originally impleaded in the suit, she applied for impleadment by way of I.A. 12588/2015, which was allowed vide

order dated 08.10.2015.

Submissions

In support of this application, Mr. Srivastava contended that it is the admitted position that the properties stand in the name of the applicant. He

drew my attention to the documents filed in this regard, and submitted that the documents have been admitted by the plaintiff in the course of

admission/denial of documents. Mr.Srivastava argued that the plaintiff’s claim, characterizing the suit properties as joint family properties, is

untenable in light of Section 4 of the Benami Transactions (Prohibition) Act, 1988 [hereinafter referred to as “Benami Actâ€]. Although Section

2(9) of the Benami Act makes an exception in cases where fiduciary obligations arise, Mr. Srivastava argued that no pleading in this regard has been

made by the plaintiff qua the applicant. Learned counsel, with regard to the interpretation of the term “fiduciary relationshipâ€, referred to a

judgment of the Coordinate Bench of this Court in Sh.Amar N.Gugnani vs. Naresh Kumar Gugnani (through LRs) 2015 SCC OnLine Del 11248

[CS(OS) 478/2004, decided on 30.07.2015].

Mr. Srivastava’s second argument was based on the doctrine of limitation. Learned counsel submitted that the declaratory relief sought by the

plaintiff is covered by Article 58 to the Schedule of the Limitation Act, 1963, and at least one of the properties was purchased in 1981, while the suit

was filed on 02.06.2014 [subsequently amended on 25.09.2014]. It was therefore argued that the institution of the present suit was long after the

prescribed period of limitation of three years had lapsed. He cited the judgment of the Supreme Court in Khatri Hotels Private Limited & Anr. vs.

Union of India (UOI) & Anr. (2011) 9 SCC 126 [paragraph 27], to contend that the nature of the relief sought in the present case does not give rise to

multiple or continuing cause of action, and a suit based thereupon must be filed within three years of the cause of action first accruing.

The argument of Mr. Srivastava was supported by Mr. Aditya Shankar, learned counsel for defendant no.1, who cited the judgment of this Court in

Anil Kumar vs. Devender Kumar [CS(OS) 350/2018, decided on 02.09.2019] to argue that the alleged flow of funds from a joint business, for

purchase of a property in the name of one of the family members, would not entitle the other members of the family to a partition of the property so

purchased.

In response to these arguments, Ms. Anita Sahani, learned counsel for the plaintiff, referred to various paragraphs of the plaint [discussed in detail

hereafter] wherein the plaintiff has pleaded that the properties in question were purchased from joint family funds, in the names of various members of

the family including defendant no.1, his wife and children. With regard to the three specific properties, Ms. Sahani submitted as follows:-

i) The property bearing no. 25/37, Gali no. 16, Viswas Nagar, Delhi, was originally purchased jointly in the name of the applicant and one Sh.Narender

Kumar Kamboj, deceased brother of the plaintiff and the defendant no.1. Learned counsel referred to a sale deed dated 05.06.1984 in this regard.

ii) According to Ms. Sahani, First Floor, House no. 2425, Tilak Gali, Paharganj, New Delhi, was originally in the name of defendant no.1 and was

transferred to the applicant (his wife) only in May, 2014. She referred to a General Power of Attorney dated 04.06.2014 and an Agreement to Sell

dated 04.06.2014 between defendant no. 1 and his wife (the applicant).

iii) With regard to the property allotted by Unitech Gurugram [K-217, South City-I, Gurugram (Haryana), Customer ID No.8610641], Ms. Sahani

submitted to that the plot, claimed by the applicant to be hers, was one of several properties in the same neighbourhood purchased in the names of

different members of the family. She drew my attention to various documents including possession letters in this connection.

Ms. Sahani cited the judgments of the Privy Council in Rajani Kanta Pal & Ors. vs. Jaga Mohan Pal AIR 1923 PC 5G7, unna J.Krishnan & Ors.

vs. G.K. Rengachari & Ors. AIR 1965 Mad 340 and Purna Bai & Ors. vs. Ranchhoddas & Ors. AIR 1992 AP 270 in support of her contention that

the properties in question formed part of the “joint family propertiesâ€​ in the facts of this case.

With regard to limitation, Ms. Sahani’s submission was that the period of limitation would start running from the date on which the plaintiff

discovers his exclusion from the joint family property, in terms of Article 110 of the Schedule to the Limitation Act, 1963. Learned counsel therefore

submitted that the period of limitation for a suit such as the present one is 12 years from the date when the plaintiff’s exclusion from the joint

family property became known to him. Mr. Ashish Mohan, learned counsel appearing for defendant nos. 2 and 3, supported Ms.

Sahani’sarguments on limitation and placed reliance on the decision of this Court in Anita Anand vs. Gargi Kapur (2019) 256 DLT 84.

Analysis

The case made out in the plaint is that the plaintiff joined the business, commenced by his father in the year 1975, in which the defendant nos. 1

and 2 and late Sh.Narender Kumar Kamboj also participated. The expansion of the business resulted in the acquisition of various properties.

According to the plaintiff, the brothers did not maintain separate accounts and the properties were purchased by their father in the names of his

aforesaid sons. The releveant averments in this regard are as follows :

“14 That during the continuance of the business, none of the brothers used to maintain separate accounts. Late Shri Jitender Singh

Kamboj, the father of the parties purchased / booked several residential / commercial properties in the individual names of his sons namely

the Plaintiff, Defendant No. 1,2 and late Sh. Narinder Kumar Kamboj from their share of profit from the business. The properties as

mentioned herein after were booked / purchased from the funds of the joint business itself.

15 That after the demise of late Shri Jitender Singh Kamboj on 18.8.1998, his share in the business fell to the share of the four brothers in

equal four shares namely the Plaintiff, defendant no.1, defendant no.2 and late sh. Narinder Kumar Kamboj. The family house situated at

house no. 587 Kesri Mohall Jain Mandir Gali Shahadara Delhi, however fell to the equal share of all the brothers and sisters l/9th eaeh.

The plaintiff alongwith the other brothers namely late Shri Narinder Kumar Kamboj and Shri Devender Kumar Kamboj treated the

Defendant No. 1 like their father and gave him all the respect that they paid to their father. They took his advice for all the purpose be it

business or otherwise and put him on the pedestal of their father late Shri Jitender Singh Kamboj. The family of the three brothers namely

plaintiff with Defendant no. 1-2 and Late Sh. Narinder Kumar Kamboj himself, lived in a joint family even after the demise of their father

late Shri Jitender Singh Kamboj and the Defendant No. 1 was put in the position of the head of the family. All the business remained joint

with every working brother putting his money and efforts to the running of the business concerns and getting a share out of the profits to

meet the Daily affairs while the rest of the profits was kept by the Defendant No. 1.

xxxx xxxx xxxx

20 That upon sale of the properties as mentioned herein above some more properties were purchased by the defendant no.l in different

names while assuring the plaintiff and defendant no.2 that he was purchasing all these properties for the benefit of the family and was

holding them trust for the entire family of the three brothers namely plaintiff, defendant no1 and 2. No amount was shares by the defendant

no.1 with the plaintiff nor any amount was paid to the plaintiff as his share upon sale of these properties.

xxxx xxxx xxxx

That in the year 2009, after the marriage of his daughter Ms. Sudha Kamboj, the Defendant No.1 suggested to brothers namely the

plaintiff and the defendant no.2 that they should now have a separate kitchen and therefore separate LPG gas connections were taken by

the Defendants No.1 and the Plaintiff. It is pertinent to mention here that until February, 2009, the parties were common in kitchen and in

worship and it was a joint family.

xxxx xxxx xxxx

27 That the defendant no. 1 had informed the plaintiff that they he had dissolved certain firms and that all the paper work was under his

control. The plaintiff along with his other brother who were in business continued to get the monthly expenses for their needs while the

kitchen of the parties was still common. The properties in different names of the brothers in possession of all of them were held in trust for

each other and for the benefit of each other in fiduciary capapcity as provided for in section 4(3)(b) of Benami Transactions (Prohibition)

Act 2008.

xxxx xxxx xxxx

38 That the properties owned by the parties today have been acquired from the joint family business and the proceeds have been paid from

the profits of the business.The residential properties purchased in the individual names of the parties however, have been purchased from

the share of profit of the parties together. They all are holding the properties in trust for each other and for the benefit of each other in

fiduciary capacity, even though the residential and commercial properties have been purchased from the profits of the joint business of

plaintiff and defendant and no. 1,2 and late Sh. Narinder Kumar Kamboj . The Plaintiff alongwith Defendant No. 1 and Defendant No. 2

are the sharers of the said commercial properties which are mentioned herein below. While the share of late Sh. Narinder Kumar Kamboj is

heritable by all the defendants along with the plaintiff being the brothers and sisters of the deceased brother.

xxxx xxxx xxxx

40 The plaintiff was always busy attending to the customers at all the premises where the business was conducted, entire documentation was

in the hands of Defendant No. 1 who used to distribute the expenses for running the house of the other three brothers i.e. plaintiff,

deceased brother Narinder Kumar Kamboj and defendant no.2 Devender Kumar. Rest of the money used to be invested in the properties.

Other than the properties which were purchased in the names of the Plaintiff and Defendant No. 2 specifically the rest of the properties

were purchased either in the name of the business or in the name of the Defendant No. 1, his wife or children. Since the business and the

family was joint, there was no occasion for the Plaintiff to ever doubt the intentions of Defendant No. 1. The trust of the Plaintiff is evident

from the conduct that the Defendant No. 1 was allowed to shift to his property in Gurgaon where the Defendant No. 1 is presently residing

with his family. It is stated that out of the said trust and respect for the Defendant No. 1, the Plaintiff and the Defendant No. 2 used to sign

on blank papers and hand them over to the Defendant No. 1 for the purposes of carrying on the business documentation effected. The

Defendant No. 1 at his own will and whims created documents with signatures of the Plaintiff and Defendant No. 2 whereby various

partnership businesses were established while the others were wound up either by way of Dissolution Deeds or other such documents. All

such documentation remained in power and possession of the Defendant No. 1 since he was exerting all the powers of the head of the family

on to the parties.â€​

(Emphasis supplied)

The aforementioned averments make out that the properties were purchased in the names of one or the other member of the family, for the

benefit of the entire family. Although Mr. Srivastava is right in saying that the plea with regard to the fiduciary capacity in paragraph 27 of the plaint is

in respect of the brothers of the plaintiff, paragraph 40 of the plaint clearly indicates that the properties were purchased inter alia in the name of the

applicant, who is the wife of defendant no.1. The averment in paragraph 38 of the plaint that the parties are holding the properties in trust of each

other, is also relevant in this regard.

Whether the applicant is entitled to the relief claimed in terms of Order XII Rule 6 of the CPC must be decided on a meaningful and holistic

reading of the pleadings, or other documents in which the plaintiff is alleged to have admitted the applicant’s defence. To entitle a party to a

decree in terms of Order XII Rule 6 of the CPC, the admission must be categorical, unconditional and unequivocal. The judgments of the Supreme

Court in Jeevan Diesels And Electricals Limited vs. Jasbir Singh Chadha (HUF) & Anr. (2010) 6 SCC 60 1[paragraphs 10-19] and Himani Alloys

Limited vs. Tata Steel Limited (2011) 15 SCC 273 [paragraph 11] make this position clear. The Court, inter alia in Himani Alloys (supra), has also

emphasized the discretionary nature of the power under Order XII Rule 6 of the CPC.

In the face of the aforementioned pleadings, even if the plaintiff has admitted the existence of title in favour of the applicant, that cannot per se

dis-entitle him to an opportunity to prove his case at trial. There is no unequivocal or categorical admission in favour of the applicant in the facts and

circumstances of this case. The judgment in Anil Kumar (supra), cited by Mr. Aditya Shankar, is distinguishable as there was no plea of a

coparcenary/joint family in that case. In contrast, the present case, there are clear pleadings regarding the existence of a joint Hindu family and the

share of the plaintiff. Reliance for this purpose may be placed on another coordinate Bench decision of this Court in Aarshiya Gulati (Minor) Thr.

Next Friend and Ors. vs. Kuldeep Singh Gulati & Ors. (2019) 257 DLT 550:-

“52. However, if sufficient nucleus/income of Hindu Joint Family is shown and property had been purchased from the said nucleus, then

even if ownership stands in the name of one of its members, it can be presumed that property is owned by the Hindu Joint Family. Even in

the judgment of Appasaheb Peerappa Chamdgade (supra) cited by the plaintiffs, there were Hindu Joint Family properties and the business

was started from the Hindu Joint Family funds. The said judgment categorically holds that proof of nucleus/sufficient income of a Hindu

Joint Family as well as purchase from the said nucleus is a must.

In Ms. Ilaria Kapur v. Sh. Rakesh Kapur (supra), it was also held that if nucleus whereof was generation of funds from Hindu joint

family business for the purchase of properties, then it is immaterial whether the name of one of the family members appears on a document

by which the said property was purchased by the joint family.â€​

In view of my finding as aforesaid, it is not necessary to consider the judgments of the Privy Council, and of the High Courts of Madras and

Andhra Pradesh cited by Ms. Sahani, with regard to the definition of joint family property. The rights of the parties in this regard are reserved for

adjudication at trial.

On the question of applicability of the Benami Act, Mr.Srivastava cited the judgment of this Court in Amar Gugnani (supra), wherein this Court

distinguished the judgment of the Supreme Court in Marcel Martins vs. M. Printer & Ors. (2012) 5 SCC 342 .This Court noted that in Marcel Martins

(supra), the property had been transferred in the name of one of the legal heirs of the deceased tenant on account of the policy of the Municipal

Corporation. Absent such third party intervention, this Court held that voluntary purchase by a person in the name of another attracts the provisions of

the Benami Act and does not fall within the exception. While it is not necessary, at this stage, to render a final finding on this point, I am prima facie of

the view that the present case is distinguishable from the facts and circumstances in which Amar Gugnani (supra) was decided. The plaintiff in Amar

Gugnani (supra) claimed to have deposited various sums of money with his father, and to have agreed to a property being acquired therefrom in the

name of his father. In contrast, the plaintiff’s case herein is that the decision making about the purchase of properties and the name in which the

transactions would be effected, were made first by the father of the parties and then by defendant no.1, being the oldest brother. The facts of this

case, in fact, appear to be closer to the decision in Sarabjit Singh Anand & Ors. vs. Manjit Singh Anand & Ors. (2008) 106 DRJ 37,7 wherein an

application for rejection of the plaint on similar grounds was dismissed. The decision of the learned Single Judge was affirmed in appeal in Sh. Manjeet

Singh Anand vs. Sarabjit Singh Anand & Ors. 2009 SCC OnLine Del 1968 [FAO (OS) 83 & 84/2008, decided on 16.07.2009]. The Division Bench

held inter alia that a pleading in respect of a joint Hindu family, where property is held as a trustee for all family members, could not be decided at the

stage of an application for rejection of plaint and ought to be taken to trial.

Turning now to the point of limitation, it may be noted at the outset that, in addition to the declaratory relief of shares in the properties, the plaintiff

also claims a decree of partition. In this context, the decision of this Court in Anita Anand (supra) cited by Mr.Mohan is relevant. That judgment holds

as follows:-

“30. Hence, it was argued this suit is primarily a case of declaration and not of partition and the limitation for such a relief would start

on 15.12.1987 from the death of Joginder Nath Kapur. It is submitted the claim raised by the plaintiff would only succeed if she gets a

declaration that Joginder Nath Kapur is the real owner of this property and she could have got such declaration either during the lifetime

of her father or within 3 years of his death and now this suit is barred by limitation. In fact it is argued the plaintiff need to seek a

declaration the suit property exclusively belong to her father and also he died intestate and is now she is a co-owner of the property.

I am afraid the contention of the plaintiff has no force since a suit for partition would, even otherwise, be maintainable as in order to

grant a prayer of partition the Court will nonetheless shall decide the property is being capable of partitioned and hence a separate relief

of declaration would be superfluous as held in Vakil Chand Jain v. Prakash Chand Jain, 2009 SCC OnLine Del 2769 as under:

“15. On the basis of the pleadings the following issues were framed by this Court on 15th April 2005:

1-3. xxxx

Whether the suit pertaining to prayer 3 is barred by limitation? OPD

5-7. xxxx

Viewed from another angle, the relief of declaration as sought for by the plaintiff is actually superfluous. Even if one were to omit this

relief from the prayers in the suit, in order to succeed in the prayer for partition, the plaintiff would nevertheless have to prove:

(a) that the property is capable of being partitioned;

(b) that the plaintiff has a share in the property;

(c) that such share can be ascertained and granted either by metes and bounds or by sale of the property.

Therefore, in effect, the Court will have to decide whether the plaintiff has any right, title or interest to a share in the property as

claimed by him. This Court, therefore, does not find any inconsistency in the pleas for a decree of declaration and a decree for partition

sought for by the plaintiff in the instant case.â€​

The present suit falls in the same category. The relief of declaration sought in prayers A and B are questions that would in any effect fall for

consideration while adjudicating the question of partition. It therefore cannot be held that, on the admitted facts, the plaintiff’s claims are barred by

virtue of Article 58 to the Schedule of the Limitation Act, 1963. Limitation being a mixed question of law and fact, the point is therefore reserved for

final adjudication in the suit.

Conclusion

In view of the aforesaid, I do not consider this to be an appropriate case for grant of the discretionary relief sought by the applicant under Order

XII Rule 6 of the CPC. The application is therefore dismissed. However, it is made clear that the observations contained in this order are not intended

to prejudice the case of the parties at the final adjudication of the suit.