RFA/454/2009 of ASHOK KUMAR Vs RAKESH KUMAR & ORS

*IN THE HIGH COURT OF DELHI AT NEW DELHIJudgment delivered on : September 22[nd], 2017

RAKESH KUMAR & ORSRespondents

CORAM:

HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

JUDGMENT

1.The appellant has filed two appeals being aggrievedby the common judgment and decree dated 26.08.2009 passed bythe learned Additional District Judge, Delhi whereby the Suitno.60 of 2004 filed by the respondent no.1-herein has beendecreed in his favour whereas Suit no.56 of 2004 filed by theappellant/plaintiff was dismissed.

2.It is apparent from the record that two suits werefiled by the parties against each other. Suit no.60/2004 was filedbytherespondent-RakeshKumaragainsttheappellant(defendant no.2) and other defendants, namely, Diwan Chand(defendant no.1), Naresh (defendant no.3), Sanjay (defendantno.4), Smt.Saroj Sharma (defendant no.5), Smt.Sharda Chadha(defendant no.6), Smt.Madhu Agnihotri (defendant no.7) andSmt.Poonam Bhaskar (defendant no.8). The said suit was filedfor declaration and partition with the prayer to declare thepartition deed dated 01.03.1993 and gift deed dated 09.02.1999as null and void and also to pass decree for partition declaringthe share of each of the member of the Hindu Undivided Family.Suit no.56/2004 was filed by the appellant-Ashok Sharma againstthe respondent-Rakesh Kumar and Rajat Sharma (defendantno.2). The said suit was filed for dissolution of partnership firm

and rendition of accounts.Both the suits were decided by acommon judgment under challenge.

3.The facts in brief are that the plaintiff/respondent-Rakesh Kumar is member of HUF with defendant no.1 (hisfather), defendant no.2/appellant to defendant no.4 are brothers,defendants no.5-8 are his sisters. After having migrated fromPakistan, out of the ancestral funds, property at West Patel Nagar(first property) and property at Gaffar Market (second property)were purchased in the name of defendant no.1–deceased father ofthe appellant. The parties were in fiduciary relationship witheach other being father and sons. The first property is being usedfor residential purposes and second property is being used for thefamily business of watches. The second property is the onlysource of income of the joint family. The plaintiff/respondentwascompletelyrelyinguponhisfatheranddefendantno.2/appellant in the matter of accounts and taxation purposes forthe shop. On the pretext of requirement for running of businessand taxation purposes, defendant no.2/appellant and defendantno.1 got certain blank papers signed by the plaintiff/respondent.Ill feelings developed with defendant no.2/appellant and hisfather who tried to exclude the plaintiff/respondent from thefamily business and had not even accounted for the earnings. On25.05.1999 plaintiff/respondent sought to talk to his father toenquire about the reasons for the behavior of defendantno.2/appellant when defendant no.1 asked him to vacate the shop

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and house and to look for his own livelihood and residence. Itwas further revealed by defendant no.1 that the entire propertiesof HUF had been partitioned as per the gift deed executed by himto the exclusion of all others and the copies of the same weregiven to the plaintiff/respondent. It was alleged that thedocuments were all false and fabricated and plaintiff had beencheated with respect to the same. Plaintiff/respondent requestedthe defendant no.2/appellant and his father for peacefulpartition of the property, but the same was not taken intoconsideration owing to the hostile attitude of all family memberstowards plaintiff/respondent no.1.

4.In the written statement filed on behalf of thedefendant no.2/appellant and defendant no.1, it was objected thatthe properties were sought to be partitioned by way of the suit inquestion, as they did not form part of the HUF. It was furtherstated that both the properties were acquired by the defendantno.1 (since deceased) out of his own income and in his individualname. The written statement further mentioned that both theproperties were put in the common pool of HUF of defendantno.1 for taxation purposes but from time to time, partition wascarried out. Deeds of confirmation for partition dated 12.08.1986and31.03.1993wasexecutedandthepropertiesstoodexclusively in the name of defendant no.1. It is further stated thata gift deed was also executed on 09.02.1999 for the first property

in question in favor of defendant no.2/appellant by the defendantno.1 to carry on the family business after him.

5.SuitNo.56/2004wasfiledbythedefendantno.2/appellant seeking dissolution of partnership and rendition ofaccounts for running the second property i.e. the shop at GaffarMarket.

6.Replications to the written statements were filed onbehalf of the defendants. On the basis of pleadings of the parties,following issues were framed by the Court below :

(1)Whether the suit property is self earnedproperty of defendant no.1? If so, its effect?(OPD1)

(2)Whether the HUF properties of parties werepartitioned by way of deed of confirmation ofpartition deed 12.08.1993 and 31.03.1993? If so,in what manner (OPD1)

(3) Whether plaintiff is entitled to decree ofdeclaration to the effect that the partition deeddated01.03.1993andgiftdeeddated09.02.1999 are null and void? (OPP)

(4)Whether plaintiff is entitled to decree ofpartition against the defendants? (OPP)

(5) Whether the plaintiff is entitled to renditionof accounts and dissolution of partnership firmcreated partnership deed dated 07.08.1997?(OPP)

(6) Whether defendant of suit no.56/04 isentitled to declaration that gift deed dated

09.02.1999 and mutation dated 19.05.1999 arenull and void? (OPD)

(7) Whether defendant no.1 had bequeathed thesuit property in favor of defendant no.2 by wayof will dated 09.12.1999? OPD

(8) Relief.

7.To prove his case, the plaintiff/respondent examinedhimself as PW1 and thereafter he closed his evidence. Defendantno.2/appellant examined himself as D2W1, Dumesh Chadda asD2W2, Babu Lal –D2W3, Deepa Verma-D2W4. Defendant no.3also appeared as witness –D4W1 and Parveen Chadha asD2W5.

8.Feeling aggrieved by the common judgment anddecree in the present suit, the present appeal has been filed.

9.Argument advanced by the counsel for the appellantis that partition deed dated 31.05.1975 was executed between theappellant, respondent-Rakesh Kumar and late Sh.Diwan Chandvide which the business of M/s Collegiate Watch Co. and rightsin shop no.90, Gaffar Market, New Delhi were transferred infavour of late Sh.DiwanChandwhile the appellantandrespondent-Rakesh Kumar were paid Rs.10,000/- each.Aconfirmation of deed of partition dated 12.08.1986 was executedbetween late Sh.Diwan Chand, Naresh Kumar, Sanjay Kumarand late Smt.Phula Rani vide which ownership rights of the saidshop were given up in favour of late Sh.Diwan Chand by all threeand they were paid Rs.10,000/- each. The business of Collegiate

Watch Co. was also taken over by late Sh.Diwan Chand.Aconfirmation of deed of partition dated 31.03.1993 was executedvide which house no.A-11-13, West Patel Nagar, New Delhi,shop no.90, Gaffar Market, New Delhi and business of CollegiateWatch Co. was taken over by late Sh.Diwan Chand from his wifeSmt.Phula Rani, appellant-Ashok Kumar, respondent-RakeshKumar, Sanjay Sharma and Akhil Sharma and they were paidRs.50,000/- each. gift deed dated 09.02.1999 was executed bylate Sh.Diwan Chand vide which he gifted all his rights withrespect to shop no.90, Gaffar Market, New Delhi in favour ofappellant-Ashok Kumar. will dated 09.12.1999 was executedby late Sh.Diwan Chand vide which he bequeathed all hismovable and immovable properties to the appellant-AshokKumar. Further, it was argued that the above documents wereadmitted documents by the respondent and the same were actedupon by using them for taxation. It was further argued that thedaughters of late Sh.Diwan Chand were not coparceners and thedocuments being oral did not require partition by metes andbounds.There was no necessity for registration of saiddocuments. It was further argued that the Court below erred inholding that the partition deed and gift deed were null and void.It was further argued that the Court below erred in holding thatthe properties in question were not the self acquired properties oflate Sh.Diwan Chand.

10.In support of the above submissions, learned counselhas relied upon the judgments in the case of Prakash & ors. v.Phulavati & ors (2016) 2 SCC 36, Mukesh & Ors. v. BharatSingh & Ors. 149 (2008) DLT 114, Sparsh Builders Pvt. Ltd. v.Maharishi Ayurveda Products Pvt. Ltd. (2009) 163 DLT 411,Nani Bai v. Gita Bai Kom Rama Gunge 1959 SCR 479, Kale &Ors. v. Deputy Director of Consolidation and Ors (1976) 3 SCR202, Chanderwati v. Lakhmi Chand & Ors. AIR 1988 Del 13,Nitin Jain v. Anuj Jain & Ors. 2007 (96) DRJ 335and RoshanSingh & Ors. v. Zile Singh & Ors. AIR 1988 SC 881.

11.On the contrary, counsel for the respondent-RakeshKumar has argued that the entire transaction by way of partitiondeed and deed of confirmation was the result of undue influenceby the appellant and father being in position to dominate theyounger brothers with view to usurp the entire property of thefamily.The family was joint and carrying on joint familybusiness in the shop in question. Business was controlled by thefather and eldest son i.e. appellant and for smooth running ofbusiness and taxation purpose, they had been getting thesignatures of respondent-Rakesh Kumar and other brothers onblank papers.The appellant had miserably failed to show onrecord that the alleged partition deeds were without any undueinfluence.The documents relied upon by the appellant weresham and bogus.It was further argued that the partition deeddated 31.05.1975 was inadmissible being unregistered and the

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consequent confirmation of deed of partition dated 12.08.1986and 15.05.1993 were vitiated.In the partition deed dated31.05.1975, the daughters were referred to as constituents ofHUF having share in all the assets, whereas in documents dated12.08.1986 and 15.05.1993, they were not given any share in theassets of HUF.

12.In support of the above submissions, judgments inthe case of Krishna Mohan Kul @ Nani Charan Kul and Anr. v.PratimaMaityandOrs.MANU/SC/0690/2003,R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P.Temple and Anr. MANU/SC/0798/2003, Mohan Lal Bhatnagarv. Kamlesh Kumar Bhatnagar & ors. MANU/DE/4422/2011,Jagdish Rai v. Tek Chand and Ors. MANU/DE/1111/2001,Chanderwati and Ors. v. Lakhmi Chand MANU/DE/0466/1987and Manoj Jain v. Krishna Jain & ors. (CS(OS) 2413/2007decided by this Court on 04.10.2012) have been relied upon.

13.I have heard the arguments advanced by the counselfor the parties and have gone through the record available onrecord.

14.The main grouse of the appellant is that the Courtbelow erred in holding that the properties in question were notthe self acquired properties of late Sh.Diwan Chand and that thedocuments executed in the present case are null and void. Caseof the appellant is that the properties which were sought to bepartitioned by the respondent-herein were not part of HUF and

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the same cannot be partitioned as the same were acquired by lateSh.DiwanChand.Theleasedeeddated28.04.1962Ex.D2W1/D1 was produced on record. Perusal of this lease deedshows that it was executed between the President of India andlate Sh.Diwan Chand.Conveyance deed Ex.DW1/D2 is dated26.12.1984. perusal of this conveyance deed shows that thesame was made as per Section 8 of the Displaced Persons(Compensation and Rehabilitation) Act, 1954.It is apparentfrom the record that the suit properties were allotted to lateSh.Diwan Chand out of the compensation pool for payment ofcompensation and rehabilitation grants being displaced personin lieu of his property in Pakistan.In view of the lease deedEx.D2W1/D1, both the properties i.e. house and shop in questionwere allotted to late Sh.Diwan Chand as compensation and itcannot be said that the same were his self acquired properties. Itis apparent from the deposition of the appellant-Ashok Kumarthat both these properties were put in the common hotchpot ofHUF of late Sh.Diwan Chand. Since it is the admitted case of theappellant himself that the said properties were put in the commonhotchpot of HUF, then the same became part of joint property ofall the coparceners and members of joint family.

15.So far as the contention whether the properties ofHUF were partitioned by way of deeds dated 12.08.1986 and31.03.1993, it is apparent from the record that partition deeddated 31.05.1975 Ex.PW1/D1 was executed in which late

Sh.Diwan Chand, appellant-Ashok Kumar and Smt.Phoola Raniwere the parties of the first part, whereas respondent-RakeshKumar was party of the second part.In this partition deedEx.PW1/D1, there is no mention of the daughters of lateSh.Diwan Chand and the same also do not bear their signatures.It is also apparent that at the time of execution of this partitiondeed, daughters were unmarried. It is pertinent to mention thatthis partition deed was not registered document. There is nomention of portion of defendant no.5 to 8 i.e. daughters of lateSh.Diwan Chand in the said partition deed. It is settled law thatwhile entering into partition, all the parties connected theretoare either to give up their share or their share has to be mentionedtherein. It appears that this partition deed was executed with thepurpose of filing tax and thus had no value in the eyes of lawbeing sham.16.Confirmation of deed of partition dated 12.08.1986is Ex.D2W1/D4.A perusal of this deed also shows that theposition remained the same. There is no mention of defendantno.5 to 8 in this deed also.This deed was executed infurtherance of partition deed Ex.PW1/D1. In Ex.D2W1/D4, thebusiness of watches and shop in question was taken over by lateSh.Diwan Chand being Karta of smaller HUF.Since it hasalready been observed that this deed which was executed infurtherance of the partition deed Ex.PW1/D1 was shamdocumentand not admissible inthe eyes of law being

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unregistered, the right of appellant and respondent no.1 hereincould not have extinguished. Similar is the situation with regardtoconfirmationofdeedofpartitiondated31.03.1993Ex.PW1/D2 in which also no share of defendant no.5 to 8 hasbeen mentioned.

17.InallthesethreedocumentsEx.PW1/D1,Ex.D2W1/D4 and Ex.PW1/D2, there is no mention of rights andshares of defendant no.5 to 8 i.e. daughters of late Sh.DiwanChand nor do they bear their signatures. It is also apparent fromthe record that since the partition deed Ex.PW1/D1 was not aregistered document too, it creates suspicion in the mind of thecourt that it was executed in the manner as pleaded by theappellant.It is an admitted fact that Ex.D2W1/D4 andEx.PW1/D2 were executed in furtherance of Ex.PW1/D1 whichitself was false fabricated document, so the other documentswere did not have any legal sanctity in the eyes of the law.Contention of the appellant that since the partition deed was oraland need not be registered, is not acceptable as it has duly beenestablished on the record that the properties in question were notpartitioned by metes and bounds and it was an oral arrangement.It has also been established that all the above three deeds weresham documents as they did mention about the share and portionof all the coparceners of the HUF. Therefore, the judgments inthe case of Prakash & ors. v. Phulavati (supra), Mukesh & Ors.v. Bharat Singh & Ors. (supra), Sparsh Builders Pvt. Ltd. v.

Maharishi Ayurveda Products Pvt. Ltd. (supra), Nani Bai v.Gita Bai Kom Rama Gunge (supra), Kale & Ors. v. DeputyDirector of Consolidation and Ors (supra), Chanderwati v.Lakhmi Chand & Ors. (supra), Nitin Jain v. Anuj Jain & Ors.(supra) and Roshan Singh & Ors. v. Zile Singh & Ors. (supra)are of no consequence and of no help to the appellant.

18.In view of the fact that the partition deed and giftdeed were null and void being sham documents, nothing remainsin the suit filed by the appellant that gift deed dated 09.02.1999and mutation dated 19.05.199 were null and void since theproperties in question were found to be part of undivided sharesof all the coparceners of HUF and the same were not partitionedby legally permissible document and the documents placed onrecord were found to be sham and bogus.

19.In view of the above discussion, this Court does notfind any fault in the findings returned by the Court below whileallowingthesuitoftherespondent-RakeshKumaranddismissing the suit of the appellant-Ashok Kumar. There is noillegality or infirmity in the impugned judgment and decree.Same is accordingly upheld.Both the appeals are accordinglydismissed.

20.No order as to costs.

SEPTEMBER 22, 2017/dd

(P.S.TEJI)JUDGE

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