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2006 DIGILAW 1322 (DEL)

YOGESHWAR DAYAL v. MAHINDER DAYAL

2006-08-07

PRADEEP NANDRAJOG

body2006
PRADEEP NANDRAJOG, J. ( 1 ) PRESENT order disposes of IA No. 2118/2006 filed by defendant No. 6 praying that plaintiff and Smt. Prabha Mathur be restrained from encumbering, alienating or parting with property No. A-48, Friends Colony East, New Delhi. Further prayer made is to restrain plaintiff and Prabha Mathur from in any manner interfering with the peaceful use, possession and occupation of the said property. ( 2 ) IA No. 2118/2006 was listed for the first time before the Court on 23. 2. 2006. While issuing notice to the plaintiff, plaintiff was restrained from encumbering, selling, transferring or parting with possession of the said property. ( 3 ) VIDE IA No. 5291/2006, plaintiff prays that the injunction granted on 23. 2. 2006 be vacated. ( 4 ) TO appreciate the rival contentions it will be useful to briefly note the case pleaded in the plaint and the defence of defendant No. 6. But before that, I may note that defendant No. 3 is supporting defendant No. 6. ( 5 ) AS per the case set up by the plaintiffs, late Shri Pannu Lal had 4 sons, namely, Rameshwar Dayal, Maheshwar Dayal, Mahender Dayal and Yogeshwar dayal. Videsh Dayal is the son of Yogeshwar Dayal. ( 6 ) BOTH, father and son have joined as plaintiffs No. 1 and 2 respectively. ( 7 ) RAMESHWAR Dayal died on 15. 5. 1981. Maheshwar Dayal died on 22. 6. 1993. ( 8 ) RAMESHWAR Dayal was survived by his sons Umesh and Viresh impleaded as defendants No. 3 and 4 respectively. Kamleshwar, Dinesh and Rakesh defendants 5 to 7 are the sons of Maheshwar Dayal. Ashok Dayal, defendant No. 2 is the son of mahender Dayal who is impleaded as defendant No. 1. ( 9 ) STATING that Pannu Lal constituted a joint Hindu family which acquired various properties, details whereof have been stated in para 3 of the plaint, it is further pleaded that Pannu Lal acquired perpetual lease hold rights in respect of property No. 96, Babar Road. Building constructed thereon was from the funds of the HUF constituted by Pannu Lal consisting of self and his sons. ( 10 ) THAT Pannu Lal died in the year 1947, his four sons continued to remain joint. Being the oldest, Rameshwar Dayal became the karta of the HUF. Building constructed thereon was from the funds of the HUF constituted by Pannu Lal consisting of self and his sons. ( 10 ) THAT Pannu Lal died in the year 1947, his four sons continued to remain joint. Being the oldest, Rameshwar Dayal became the karta of the HUF. ( 11 ) IT is stated that Shri Rameshwar Dayal got property No. 96, Babar Road, new Delhi mutated in the record of Landdo on death of Pannu Lal, in name of rameshwar Dayal and Bros. HUF. However, while applying to Landdo, plaintiffs state that Rameshwar Dayal categorically stated that he was applying for mutation on the death of Pannu Lal, as karta of the joint Hindu family. ( 12 ) STATING that the properties referred to in para 3 of the plaint as also property No. 96, Babar Road are the properties of the joint family, plaintiffs seek partition and call upon this Court to separate their 1/4th share in the properties of the HUF. ( 13 ) AS per the written statement filed by defendant No. 6 it is stated that the family remained joint till 1989-90. That various companies and partnerships were formed and while doing so it was ensured that each branch of the 4 sons of lala Pannu Lal would be represented in the companies and partnerships. Names of the companies and partheships have been set out in para 8 of the written statement filed by defendant No. 6. ( 14 ) QUA property No. A-48 Friends Colony East, case pleaded by defendant no. 6 in IA No. 2118/2006 is that plaintiff No. 1 utilized the name of his sister-in-law, Smt. Prabha Mathur, to acquire perpetual lease hold rights in the property but funds for acquiring the lease hold rights in the land and construction of the super structure were from the accounts of the partnership firms, which in fact were the firms of the Joint Hindu Family. It is stated that Prabha Mathur accepted before the Income Tax Authorities that funds thereof came from the joint family of Late Lala Pannu Lal. ( 15 ) IN para 8 of the application details of the source of investment for acquiring lease hold rights in plot No. A-48 Friends Colony East have been disclosed as coming from the accounts of M/s. Dayal Brothers, M/s. Raghubar dayal Pannu Lal, M/s. Dayal Fertilisers and M/s. New India Paper Mart. ( 15 ) IN para 8 of the application details of the source of investment for acquiring lease hold rights in plot No. A-48 Friends Colony East have been disclosed as coming from the accounts of M/s. Dayal Brothers, M/s. Raghubar dayal Pannu Lal, M/s. Dayal Fertilisers and M/s. New India Paper Mart. ( 16 ) VIDE IA No. 5291/2006 plaintiff explained that the withdrawals from the accounts of the 4 firms were duly accounted for by debiting the capital account of plaintiff No. 1 and therefore seeks to plead that acquisition of property no. A-48 Friends Colony East has to be treated as the individual asset of plaintiff No. 1. ( 17 ) SHRI Ajay Verma, learned counsel for the plaintiff urged that since acquisition of the property in question was way back in the year 1969 and construction commenced in December 1970 and completed in December 1972, it would be difficult for the plaintiff No. 1 to produce accounts of the 4 firms to show that capital account of plaintiff No. 1 was debited. However, counsel stated that silence of the defendants for over 25 years to challenge acquisition of the property in name of Prabha Mathur shows that every thing was done with the knowledge and consent of the defendants. ( 18 ) I am afraid, if submission of the plaintiff No. 1 qua property No. A-48 friends Colony East is to be accepted, it would also have to be accepted that all businesses done and accounts settled were to the knowledge and were with the consent of plaintiff No. 1 and in said eventuality there would no occasion for plaintiff No. 1 to seek mesne profits or rendition of accounts from defendant no. 1. ( 19 ) PRIMA facie case has to be seen in the context of the concept of joint family property and, in case of dispute, in what manner onus has to be discharged. ( 20 ) IN the report published AIR 2003 SC 3800 , D. S. Lakshmaiah and Anr. Vs. L. Balasubramanyam and Anr. , it was held that he who asserts has to prove that the property is a joint family property. ( 20 ) IN the report published AIR 2003 SC 3800 , D. S. Lakshmaiah and Anr. Vs. L. Balasubramanyam and Anr. , it was held that he who asserts has to prove that the property is a joint family property. However, if the person so asserting establishes that there was a joint nucleus from which the property was purchased, there would be a presumption of the property being joint and the onus would shift on the person who claims it to be self acquired property. Similar view was taken in the report published as AIR 1954 SC 379 , Srinivas Krishnarao kango Vs. Narayan Devi Kango. ( 21 ) PLAINTIFF No. 1 has not disputed that his sister-in-law Prabha Mathur acknowledged before the income tax authorities that she was not the real owner of the property. Plaintiff No. 1 does not dispute that funds for acquiring the property came from M/s. Dayal Brothers, M/s. Raghubar Dayal Pannu Lal, M/s. Dayal fertilisers and M/s. New India Paper Mart all of which were the firms of the joint family. Therefore, defendant No. 6 has prima facie established the joint character of property No. A-48, Friends Colony East. Plaintiff No. 1 has to establish the case pleaded by him, that when amounts were withdrawn from the 4 firms his capital account was debited. Plaintiff No. 1 can establish the same from the books of accounts maintained by the 4 firms. Plaintiff No. 1 can also establish the same with reference to the income tax returns filed by him in his personal capacity as also the income tax returns filed by the 4 firms. ( 22 ) NEEDLESS to state that in a suit for partition, each plaintiff is a defendant and each defendant is a plaintiff. All joint properties have to be preserved, to be available at the time of final partition. ( 23 ) NOTING that save and except for the plaintiffs and their other family members, none of the defendant is at present in possession of the property at A-48 Friends Colony East. IA Nos. 2118/2006 and 5291/2006 stand disposed of confirming the injunction granted on 26. 2. 2006 but clarifying that this would not mean a licence for the defendants to interfere with the possession of the plaintiffs qua the said property. No costs.