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Rajasthan High Court · body

2005 DIGILAW 1349 (RAJ)

Dr. Rama Kant Joshi v. Dr. Laxmi Kant Joshi

2005-05-06

DALIP SINGH

body2005
Judgment Dalip Singh, J.-This is defendants first appeal filed against the Judgment and decree passed by the Additional District Judge No. 6, Jaipur City, Jaipur dated 012.1990 in civil suit No. 16/1989 which was filed for partition of property described in the plaint originally as plot No. B. I-2 in Bani Park, Jaipur. 2. The respondent No. 1, the plaintiff , the defendant appellant and respondents No. 2, all three of them are real brothers being sons of defendant No. 3 Hari Bux Joshi (since deceased), the defendant No. 4 Kamla Devi (since deceased) being the mother. 3. During the pendency of suit defendant No. 3 Hari Bux Joshi, the father, died and taking into consideration the Will left behind by the deceased defendant No. 3, the respondents No. 3 and 4 were impleaded as parties. The defendant No. 4 Smt. Kamla Devi also died during the pendency of suit before learned trial Court and respondents No. 5 to 7 who are three daughters were impleaded as parties. 4. Brief facts which have given arise to this appeal are that plaintiff respondent No. 1 filed a suit that plaintiff , defendants No. 1 and 2 brothers, defendant No. 3, their father and defendant No. 4 their mother all constituted a Joint Hindu Family and defendant No. 3, the father, was Karta of the said H.U.F. A plot bearing No. B.I-2 measuring 9,722 sq. Yards situated in Bani Park, Jaipur was purchased by the defendant No. 3 for a price of Rs. 4,961/-. Said sale-deed was registered on 06.02.1951. Other relevant facts are that defendant No. 1 constituted by incorporation and registration under the provisions of Jaipur Companies Act, 1942, a company by name and style of M/s. Hari Bux Joshi and Sons. It was the case that the property in dispute the plot in Bani Park, Jaipur was to be in the stock of company. Subsequently, the aforesaid company went into liquidation in the year 1959-60. Shri Vidhya Ram was appointed as Liquidator. During the course of liquidation proceedings, the disputed plot bearing No. B.I-2, Ghiya Marg, Bani Park, Jaipur was put to sale and the same was purchased in the name of plaintiff and defendants No. 1 and 2 for a consideration of Rs. 36,000/-on 17.02.1960. The aforesaid sale-deed came to be registered in favour of the plaintiff and defendants No. 1 and 2 on 28.03.1960. 36,000/-on 17.02.1960. The aforesaid sale-deed came to be registered in favour of the plaintiff and defendants No. 1 and 2 on 28.03.1960. It was further averred in the plaint that this plot was let-out to R.S.E.B. and from the rental income received as well as from other funds, improvements were carried out in the property and the rent was increased to Rs. 605/-per month in March, 1968. Thus, as per the plaintiff , the property in dispute being the property of H.U.F. consisting of plaintiff and defendants No. 1 to 4, all five of them had equal share in the said property and was liable to be partitioned equally among the plaintiff and defendants No. 1 to 4. 5. The defendant No. 1 submitted a written statement stating inter alia that in fact this property Plot No. B.I-2, Bani Park, Jaipur was purchased out of the funds given by Prabhat Devi, mother of defendant No. 3 who had also invested sufficient amount in the Company and this amount of Rs. 36,000/-was given by Prabhat Devi by Will to defendant No.1 and this plot was in fact to be purchased in the name of defendant No. 1-appellant alone. It was the case of defendant No. 1-appellant that in fact stamps were also purchased in the name of defendant No. 1-appellent and the sale-deed also was drawn up and drafted accordingly but subsequently by manipulating and by malafide and in collusion with one Vidhya Ram, the sale-deed was drawn in the name of all the three brothers and registered on 28.03.1960. In that view of the matter, defendant No. 1-appellant denied that property in disputed Plot No. B.I-2, Bani Park, Jaipur was a property of H.U.F. but in fact on the other hand alleged that it was exclusively his property which was not partible and neither plaintiff nor defendants No. 2 to 4 had any share in the said property. As such, the defendant No. 1-appellant denied the plaintiff s right for partition. 6. The defendant No. 2 to 4 i.e., brother, father and mother on the other hand admitted the plea of plaintiff and supported the case of plaintiff . 7. During the pendency of the suit, defendant No. 3 Hari Bux Joshi, the father, died on 04.01.1981 and it was alleged that he left a Will dated 28.03.1978. 6. The defendant No. 2 to 4 i.e., brother, father and mother on the other hand admitted the plea of plaintiff and supported the case of plaintiff . 7. During the pendency of the suit, defendant No. 3 Hari Bux Joshi, the father, died on 04.01.1981 and it was alleged that he left a Will dated 28.03.1978. In the said Will, the properties mentioned therein including those situated in Calcutta (Howrah), Gangiyasar, District Jhunjhunu were bequeath to the respondents No. 3 and 4. Similarly, on the death of defendant No. 4 the mother, three daughters who are respondents No. 5 to 7 were also impleaded as parties to the litigation. .8. The learned trial Court framed as many as 15 issues and after conclusion, the trial Court decreed the suit by passing a preliminary decree to the extent that all the original parties i.e., the plaintiff , his two brothers defendants No. 1 and 2, the father defendant No. 3 and the mother defendant No. 4 were held to be entitled to 1/5th share each. The shares of the defendants No. 3 and .4, the father and mother, were further apportioned and added to the respective claimants in terms of the Will. .9. Being aggrieved by the aforesaid Judgment and decree passed by the learned trial Court dated 012.1990, defendant No. 1 has preferred this appeal. .10. I have heard learned Counsel for the parties and perused the record. 11. During the course of hearing, parties were in agreement that the nature of the property as to whether it was the property of H.U.F. consisting of the father, mother and the three sons or the sole rights in respect of property were of the defendant No. 1-appellant as claimed by him or whether the nature of title should be determined in the light of sale-deed dated 28.03.1960 by which the property had been purchased jointly in the name of three brothers i.e., plaintiff and defendant No. 1 and 2 after the Company which was constituted by defendant No. 3 went into liquidation and this property was sold by Liquidator for discharging the liability of Company and distribution of the assets amongst the share-holders. Consequently, the evidence that has to be looked into is Exhibit-1, the sale-deed executed by Vidhya Ram who was the Liquidator of the Company, and the narration in the document itself which is at page-C/51/75 of the record of trial Court and it is in the light of narration of the terms of the sale-deed itself which in my opinion, would be relevant to determine the nature of the property. The relevant portion on page 2 of the documents is extracted as under:- Þ---vc eSa Hkkjr vk;oZqZqfnd QkesZlh fy-t;iqj dh mi;Dr lEifÙk ftldk iwjk fooj.k uhps fn;k tkrk gS 36000@& #- ¼NÙkhl gtkj ½ esaa Jh jekdkUrth Jh y{ehdkUrth o Jh JhdkUrth iq= Jh if.Mr gfjc[kthqtkskh tkfr czkã.k fuoklh xkaX;klj ft- >a>quwa ¼jktLFkku½ dks csprk g¡wAß Further recital in the sale-deed is as under:- Þ---vc Øsrk bl lEifÙk ds iw.kZr;k Lokeh gSa vkSj Øsrkvksa dks bl lEifÙk ij lEiw.kZLoRokf/kdkj izkIr gSaA-----ß 12. The learned trial Court on the basis of the pleadings framed Issues No. 2 and 3 which may be extracted:-Issue No. 2: Whether the plot No. B.I-2 alongwith the buildings thereof referred to in Para 8 of the plaint is the Joint Hindu Family property of the parties? Issue No. 3: Whether the suit property was purchased by defendant No. 1 in consideration of Rs. 36,000/-alleged to have been given to him under Will referred to in Para 7 of the written statement dated 12.07.1975? If so, whether the said Will had been properly executed?" 13. Learned Counsel for the defendant No. 1-appellant has contended that findings on Issues No. 2 and 3 given by the learned trial Court that the property in dispute was a H.U.F. property deserves to be set aside whereas in fact as per the case of the appellant, property belongs wholly to defendant No. 1-appellant. It is in this light that the evidence and the Judgment of the learned trial Court has to be seen as to whether defendant No. 1-appellant has succeeded in proving his case with regard to Issue No. 3. Defendant No. 1-appellnat has appeared in witness box as DW-1. He has stated and supported his case as contained in para No. 8 and 9 of the plaint that the sale-deed was originally in his sole name and it was drafted accordingly. Defendant No. 1-appellnat has appeared in witness box as DW-1. He has stated and supported his case as contained in para No. 8 and 9 of the plaint that the sale-deed was originally in his sole name and it was drafted accordingly. Perusal of the Judgment of the learned trial Court reveals that learned trial Court appreciated the entire evidence led by the defendant No. 1-appellant and found that the alleged draft of the sale-deed which the defendant No. 1-appellant claimed to be a draft of the sale-deed in his sole name which was produced as Exhibit A-1 was not a draft of sale-deed but in fact a draft of a family settlement which the defendant No. 1 appearing as DW-1 in his cross-examination subsequently admitted. In addition to the aforesaid fact that it is not a draft of original sale-deed, it may also be stated here that had it being a draft of the original sale-deed it could not have opened in words Þvkt rkjh[k & vizs y 1972ß as the sale-deed in question was executed on 17.02.1960 and registered on 28.03.1960. If the original idea was to purchase the property in the sole name of the defendant No. 1-appellant, the date of April, 1972 could not have been mentioned in Exhibit A-1. The learned trial Court further found after examining the record from the office of Sub-Registrar that there is no interpolation in the record which may give rise to the fact that there is a change in the document so as to suggest that the original document has been tampered with so as to incorporate the name of plaintiff and defendant No. 2 alongwith the name of defendant No. 1-appellant. In coming to the conclusion that property was purchased originally as per Exhibit-1 dated 17.02.1960 in the name of plaintiff and defendant Nos. 1 and 2, the learned trial Court has taken recourse to Exhibits-3 and 4 for corroboration which are power of attornies executed by defendant No. 1-appellant alongwith his brother and which is duly attested by the Presidency Magistrate of Calcutta prior to the purchase of property. Exhibit-4 has been jointly executed by defendant No. 1-appellant Dr. Rama Kant and Shrikant, respondent No. 2. Exhibit-4 has been jointly executed by defendant No. 1-appellant Dr. Rama Kant and Shrikant, respondent No. 2. The said document is with regard to the purchase of property in dispute and, therefore, it cannot be gainsaid from the side of the appellant that originally the plot in dispute was to be purchased in his sole name. From the evidence it is clear that the fact that property in dispute was to be purchased jointly in the names of brothers as was in fact done and this fact was within the knowledge of the defendant-appellant even prior to the actual purchase when he executed said power of attorney in November, 1959 i.e., immediately preceding the sale i.e., 17.02.1960. Thus, the case of the appellant defendant No. 1 that sale in favour of the three brothers was manipulated by incorporating the name of defendant No. 2 and the plaintiff in the sale-deed has not been found to be correct by the trial Court and I find no error in the aforesaid findings of the learned trial Court, as such, so far as issue No. 3 is concerned, I hold that learned trial Court rightly decided the same against the defendant No.1, appellant that the suit property was purchaed by the defendant No. 1 for a consideration of Rs. 36,000/-. On the contrary, it is amply proved that property in dispute i.e., plot No. B.I-2, Ghiya Marg. Bani Park, Jaipur was purchased vide Exhibit-1 jointly in the name of plaintiff -respondent No. 1, defendant No. 1, appellant and defendant No. 2-respondent No. 2 i.e., three sons of Hari Bux Joshi. 14. Apart from the above, learned trial Court also held that question regarding the execution of Will by Parwati Devi in favour of defendant No. 1, appellant is also not proved and the fact that she bequeath the amount Rs. 36,000/-in favour of the defendant No. 1, appellant. The learned trial Court considered the evidence led by the appellant in this behalf . The defendant No. 1, appellant while entering the witness box as DW-1 stated that the Will was executed in September, 1958 by Parwati Devi at Calcutta and was drafted by Shri S.N. Sharma and Devi Dutt and Laxmi Narain were the attesting witnesses. The learned trial Court considered the evidence led by the appellant in this behalf . The defendant No. 1, appellant while entering the witness box as DW-1 stated that the Will was executed in September, 1958 by Parwati Devi at Calcutta and was drafted by Shri S.N. Sharma and Devi Dutt and Laxmi Narain were the attesting witnesses. DW-2 Devi Dutt entered the witness box and did not corroborate the testimony of defendant No. 1, appellant and instead stated that the Will was prepared by one Baijnath Sharma, Advocate. Thus, regarding the drafting and preparation of the Will, there was contradictory evidence from the side of defendant No. 1, appellant. Learned trial Court also took into consideration that while asking for further and better particulars by moving an application under Order 6 Rule 5, CPC, on 08.04.1976 in response to the aforesaid, the defendant No. 1, appellant submitted a reply that the Will was executed in September, 1959 and the attesting witnesses were Shivdutt Saravgi and Hanuman Das Mohta. Thus, the trial Court while appreciating the evidence led on behalf of the appellant took into consideration that there was contradictory evidence and stand of the appellant in regard to the alleged Will executed by Smt. Parwati Devi in his favour was different between what has been stated by the appellant in the Court in response to the application under Order 6 Rule 5, CPC, and the evidence that was led in the Court. Further, the trial Court also found that the fact that an amount of Rs. 36,000/-was credited in the name of Smt. Parwati Devi in the account of Bharat Ayurvedic Pharmacy is not proved as per the material available on the record whereas as per the averments made in the plaint an amount of Rs. 22,752/-alone was alleged to have been invested in the name of Smt. Parwati Devi. Thus, taking into consideration, the entire evidence, the learned trial Court came to the conclusion that stand of the defendant No.1, appellant that the property was his exclusive property is not proved and further the stand of the defendant No. 1, appellant that it was originally decided that property would be purchased in the sole name of defendant No. 1, appellant and the funds came on account of Will executed by Smt. Patwati Devi in his favour is also not proved. Thus, I find no error in the Judgment of the learned trial Court so far the findings of the issues No. 3 are concerned. 15. The question that arises is whether the property was a Joint Hindu Family property consisting of all the five members or the property of three brothers as has been mentioned in the sale-deed Exhibit-1. To determine this question, the first and piece of evidence is the document Exhibit-1 which has be taken into considered. As has been extracted above, the document sale-deed Exhibit-1 dated 17.02.1960 has been executed in favour of the plaintiff and defendant Nos. 1 and 2 jointly by the Liquidator Vidhya Ram. There is no mention as to the property being one purchased for the Hindu Undivided Family consisting the father, mother and three sons. There is also no mention in the document as to who paid the consideration. 16. So far as the pleadings in the plaint are concerned, it is pleaded that it belongs to the Joint Hindu Family and all the five members have 1/5th share each and the plaintiff sought partition to the extent of his 1/5th share. The defendant No. 1, on the other hand, claimed the entire property to be his own property and the defendants No. 2 to 4 supported the case of the plaintiff . Oral evidence was led that the money was paid by the father of defendant No. 3 out of the funds of HUF but there is no evidence on the record to corroborate this fact that the consideration for the purchase of this property in dispute came out of the funds of the HUF. Admittedly, the family was being assessed for the purposes of income tax as an HUF and the best evidence which could have been led by the plaintiff and the defendants No. 2 to 4 who claimed this property to be HUF property was by producing the account books or the assessment made by the Income Tax Authorities whereby it could have been shown that in the account of HUF, the amount of Rs. 36,000/-was debited for the purchase of this property. This was a fact within the special knowledge of the defendant No. 3 and the defendant No. 3 failed to produce any material alongwith his written statement in support of the aforesaid. 36,000/-was debited for the purchase of this property. This was a fact within the special knowledge of the defendant No. 3 and the defendant No. 3 failed to produce any material alongwith his written statement in support of the aforesaid. Failure on the part of the plaintiff and the defendants No. 2 to 4 to produce the account books of HUF or any record of the Income Tax Department goes to show that either no such entry existed in the said account of HUF which leads to a presumption against the plaintiff and defendants No. 2 to 4 that the property was not purchased out of the funds of HUF as claimed by them or in the alternative that the aforesaid fact was not reflected in the accounts of the HUF or in its Income Tax Returns. 17. The other set of evidence which has been taken into consideration by the learned trial Court is that of the Income Tax Assessment Orders. So far as the Income Tax Assessment Orders are concerned, the same relate to assessment of the income for the purposes of determining the liability of tax. It cannot be said that any mention in the said assessment orders with regard to the ownership of the property conclusively determine the title of the property as the Income Tax Authorities have no jurisdiction to determine the title of the property when the document contains a recital that it is purchased in the name of three brothers and there is no evidence to prove that it was purchased out of the funds of the HUF. Apart from that the income that has been assessed vide Exhibit-10 and other orders is the rental income from the property. There is, however, no mention in the Exhibit-10, Exhibit-11 and Exhibit-12 which are the orders in respect of the HUF regarding the details of the property. Thus, from the aforesaid three documents which were taken into consideration by the learned trial Court, no inference can be drawn that this property Plot No. B.I-2 belongs to HUF. There is, however, no mention in the Exhibit-10, Exhibit-11 and Exhibit-12 which are the orders in respect of the HUF regarding the details of the property. Thus, from the aforesaid three documents which were taken into consideration by the learned trial Court, no inference can be drawn that this property Plot No. B.I-2 belongs to HUF. At the best it can be said that since the three sons were the members of HUF, income from the rent of the property was put by them in the common pool of HUF and the rental income of the property was being assessed for the purposes of liability of tax of HUF as the income of the HUF but that does not determine the fact that property became the property of HUF. Merely because its rental income was put in the common pool as HUF income by three members. Exhibit-13 and Exhibit-14 are the assessment and appellate orders of individual Dr. Laxmi Kant Joshi who is the plaintiff . Exhibit-13, assessment order states as under:- "In this case property at Jaipur stands in the name of Shri Rama Kant brother of the assessee, Shri Hari Bux father of the assessee and the assessee himself . This property was purchased on 17.02.1960." In has further been stated therein that the asseesse explained that income of this property was not show in his return as the same belong to HUF consisting of himself , his father and brother. The learned Court below has failed to properly appreciated the aforesaid documents. Firstly, the terms of document run counter to the terms of Exhibit-1 Sale-deed itself . The assessee, i.e., the plaintiff in this case Dr. Laxmi Kant, respondent No. 1 stated before the assessing authority that property was in the name of Ramakant and Hari Bux and himself (plaintiff) whereas Exhibit-1 Sale-deed dated 17.02.1960 is not in the name Hari Bux, the father, defendant No. 3 but in the name of all the three brothers including Srikant the three sons of Hari Bux whose name has not been mentioned by the plaintiff . Thus, no reliance can be placed upon such assessment orders or any so called admission that might have been made by a party contrary to the terms of the documents or the recitals contained in the documents. Thus, no reliance can be placed upon such assessment orders or any so called admission that might have been made by a party contrary to the terms of the documents or the recitals contained in the documents. Thus, so far as, the findings of learned trial Court on issue No. 2 are concerned which are based upon the appreciation of the Income Tax returns and the assessment orders, Exhibits-10 to 14 deserve to be set aside. As these orders have not taken into account the actual recital in the documents but are contrary to the same. In that view of the matter, the actual text of the documents has to be seen and as has been extracted above the narration in Exhibit-1 is clear and unambiguous that the property has been jointly purchased by the plaintiff and defendants No. 1 and 2 and consequently all the three are the co-owners of the property and the finding of the learned trial Court that property was a HUF property consisting of father, mother and the three sons plaintiff and defendants No. 1 and 2 is consequently liable to be set aside. 18. It is, therefore, held that the property in dispute plot No. B.I-2, Ghiya Marg, Bani Park, Jaipur was not the property of HUF but on the contrary that of the plaintiff and defendants No. 1 and 2 who are the joint owners of the same and defendants Nos. 3 and 4 had no right, title or interest over the said property. 19. The question that then arises is as to what is the share of each of the three owners i.e., plaintiff and the defendants No. 1 and 2. To answer the aforesaid question, the provisions contained in Section 45 of the Transfer of Property Act, 1882 provides the necessary guideline. 19. The question that then arises is as to what is the share of each of the three owners i.e., plaintiff and the defendants No. 1 and 2. To answer the aforesaid question, the provisions contained in Section 45 of the Transfer of Property Act, 1882 provides the necessary guideline. Since, no evidence has been led to show either the respective shares in the property nor have they been mentioned in the document Echibit-1, sale-deed, or the respective amount of consideration that might have been paid, Section 45 of the Transfer of Property Act provides the following guideline:- "In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property." Accordingly in the property i.e., plot bearing No. B.I-2, Ghiya Marg, Bani Park, Jaipur, the plaintiff -respondent No. 1, the appellant-defendant No. 1 and the respondent No. 2-defendant No. 2 who are co-owners of the same on account of sale-deed Exhibit-1 dated 17.02.1960 being in their favour, they are held entitle to equal shares of 1/3rd in the said property. 20. Since, the defendants No. 3 and 4 have not been held entitled by the above Judgment to any share in the property on account of findings on issues No. 2 and 3 and the original suit was in respect of the said property situated at Jaipur i.e., plot No. B.I-2, Ghiya Marg, Bani Park, Jaipur and it was only on account of the death of defendant No. 3 and Will executed by him that the defendants No. 3/1 and 3/2 were impleaded as parties and on account of the death of defendant No. 4, that the defendants No. 4/1 to 4/3 were impleaded as parties and since it was held by the trial Court that defendants No. 3 and 4 a share in the property at Jaipur, a decree was passed in favour of the defendant No. 3/1, 3/1 (sic) and defendants No. 4/1 to 4/3. However, in view of the findings given above that defendant No. 3 and 4 have no share in the property in dispute situated at Jaipur, the Judgment and decree passed by the learned trial Court enlarging the scope of this suit to the other property which was the subject matter of HUF and under the Will executed by the defendant No. 3 deserves to be set aside. 21. It has been brought to the notice of the Court that between the parties an original suit for partition was filed in the Court of Civil Judge (Senior Division)-2nd Court, Howrah being suit No. 61 of 1977 in which a preliminary decree for partition was passed on 24.07.2000 and in which even the final decree has been passed which includes some of the property other than the disputed property situated at plot No. B.I-2, Ghiya Marg, Bani Park, Jaipur. The parties are at liberty to agitate their respective claims with regard to the properties of HUF other than the property situated at plot No. B.I-2, Ghiya Marg, Bani Park, Jaipur whether it be situated at Kolkata (Howrah) or village Gangiyasar or elsewhere independently and unfettered by the decision given in this appeal. 22. This appeal is accordingly disposed of and it is hereby ordered that the property situated at plot No. B.I-2, Ghiya Marg, Bani Park, Jaipur is the joint property of plaintiff and defendants No. 1 and 2 i.e., Dr. Ramakant Joshi appellant (Defendant No. 1) and Dr. Laxmi Kant Joshi and Shri Kant Joshi respondents No. 1 and 2 as opposed to being HUF property. It is further declared that the defendants No. 3 and 4 Hari Bux Joshi (since deceased) and Smt. Kamla Devi (since deceased) being the father and mother respectively had no right, title or interest over the suit property Plot No. B.I-2, Ghiya Marg, Bani Park, Jaipur and consequently the defendants No. 3/1, 3/2 and defendants No. 4/1 to 4/3 are not entitled to any share in the said property. 23. So far as the defendants No. 3/1, 3/2 and 4/1 to 4/3 are concerned they are at liberty to seek their remedy with regard to the share in any HUF property unfettered and unaffected by this decision. 24. 23. So far as the defendants No. 3/1, 3/2 and 4/1 to 4/3 are concerned they are at liberty to seek their remedy with regard to the share in any HUF property unfettered and unaffected by this decision. 24. The respective shares of the plaintiff -respondent No. 1, defendant No. 1-appellant and defendant No. 2-respondent No. 2 are declared as 1/3rd each in the property situated at Plot No. B.I-2, Ghiya Marg, situated in Scheme E, Bani Park, Jaipur measuring 9722 Sq. Yds. as described in para No. 4 in the plaint. The Judgment and decree passed by the learned trial Court dated 012.1990 in Civil Suit No. 16/1989 stands accordingly modified. 25. In the facts and circumstances of the case, there shall be no order as to costs.