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2013 DAILYLAW 2698 (DEL)

Virender Kumar Garg v. Ravinder Kumar Garg

2013-08-29

S Muralidhar

body2013
JUDGMENT : S. Muralidhar, J. 1. This is a suit for declaration, partition, mandatory injunction and cancellation of documents. 2. The case of the Plaintiff, Mr. Virender Kumar Garg, s/o late Mr. Jagdish Narain Garg (J.N. Garg), is that he and Defendants 1 to 4 are the sons of late Mr. J.N. Garg. Defendant No.5 is their mother and Defendant No.6 is the wife of Defendant No.1. 3. The case of the Plaintiff is that late Mr. Ghamandi Lal, the grandfather of the Plaintiff, had acquired a number of properties during his lifetime. He was survived by two sons, Mr. Prem Narain and Mr. Laxmi Narain and three daughters. In para 3 of the plaint, it is stated that an oral family partition took place and the four properties listed therein in village Tihar, New Delhi fell to the share of late Mr. Laxmi Narain Garg. It is stated that he then sold the said properties at different points of time and out of those funds, bought on lease F-83, Naraina Vihar, New Delhi (hereafter the 'suit property') from the Delhi Development Authority. Thereafter, ground floor and one room on the first floor was constructed out of the joint family funds. It is stated that late Mr. J.N. Garg lived in the suit property till his death on 12th January 1986. 4. It is stated that on the death of Mr. Laxmi Narain the suit property and all other assets came to the share of the Plaintiffs father, late Mr. J.N. Garg, who was a government employee, having no other source of income. It is stated that the Plaintiff got married in 1984. As such, there was shortage of accommodation and the entire first floor was covered by raising additional construction and two rooms were constructed on the second floor in 1985-86. It is stated that the Plaintiff started his business and was contributing to the joint family funds which was used for the above additional construction as well as for the marriage of Defendants 1 to 4. Thus, the case of the Plaintiff is that the suit property was acquired out of the family funds by their father late Mr. J.N. Garg who held it in his name only in trust for use of the joint family and that the Plaintiff invested his own funds for the construction of the house only on this understanding. Thus, the case of the Plaintiff is that the suit property was acquired out of the family funds by their father late Mr. J.N. Garg who held it in his name only in trust for use of the joint family and that the Plaintiff invested his own funds for the construction of the house only on this understanding. The Plaintiff states that he got married in 1984 and the cash received at that time was utilised for the joint family's needs for raising the construction. 5. In para 9 of the plaint, it is stated that after the marriage of Defendant No.1 with Defendant No.6 in 1994 "Defendant No.1 and Defendant No.6 started poisoning Late Shri Jagdish Narain Garg and Defendant No.5." On this averment, a criminal complaint was filed for criminal defamation, which is stated to be pending. This led to the Plaintiff filing IA No. 10574 of 2010 seeking to amend the above averment to read "Defendant No.1 and Defendant No.6 started poisoning the mind of late Jagidsh Narain Garg and Defendant No.5 against the Plaintiff." 6. In para 10 of the plaint, the Plaintiff states that he was surprised to receive a notice dated 17th July 2000 from Mr. Anil Gupta, Advocate on behalf of Mr. J.N. Garg, which according to the Plaintiff, contained false allegations that the Plaintiff had sold the Tihar village properties, which he had acquired from late Mr. Laxmi Narain Garg. The Plaintiff denies the allegation that the considerable amount was given to the Plaintiff for raising construction and his business. The Plaintiff is stated to have replied to the said notice on 20th December 2000. 7. In para 11 of the plaint, it is claimed that in a family meeting, it had been reiterated that the property was a joint family property and that late Mr. J.N. Garg was holding the same in trust. It was agreed that the ground floor would be utilised by the parents of the parties, the first floor by Defendants 1 and 6 and the entire second floor by the Plaintiff. It is stated that the Plaintiff completed the construction of the entire second floor in 2001-2002, shifted there and continues to remain in possession of the entire second floor. 8. Mr. J.N. Garg expired on 17th May 2005. The Plaintiff states that despite his request, the Defendants deferred the issue of dividing the suit property. It is stated that the Plaintiff completed the construction of the entire second floor in 2001-2002, shifted there and continues to remain in possession of the entire second floor. 8. Mr. J.N. Garg expired on 17th May 2005. The Plaintiff states that despite his request, the Defendants deferred the issue of dividing the suit property. The Plaintiff claims that he was surprised to receive the notice dated 22nd August 2007 from the Advocate on behalf of Defendant No.6 asking him to vacate the second floor of the suit property. Thereafter, he also received summons in suit No. 329 of 2007 where Defendant No.6 had claimed that the entire first and second floor belonged to her on the basis of the Gift Deed dated 30th May 2001 executed by late Mr. J. N. Garg. The Plaintiff claimed that the said Gift Deed was never brought to the notice of the Plaintiff and on examining it, found it to be a sham document. The value of the gifted property is also alleged to be undervalued. 9. In para 13, the Plaintiff states that he also came to know that the ground floor portion had been gifted by late Mr. J.N. Garg to Defendant No. 1 by Gift Deed dated 20th February 2004, and that too was undervalued. According to the Plaintiff, both the Gift Deeds dated 30th May 2001 and 20th February 2004 in favour of Defendant No.1 were sham and void documents. In the above circumstances, the present suit has been filed. 10. The value of the properties, of which partition has been sought, is fixed at Rs. 3,00,00,000 and the Court fee is Rs. 200. The Gift Deed has been valued as per the value declared in the said documents and Court fee has been paid on that basis. The suit has been filed for declaration of the two Gift Deeds to be illegal and void and for a permanent decree of partition to be passed in favour of the Plaintiff and against the Defendants 1 to 5 holding them owner of 1/6th share each of the suit property. 11. In the written statement CWS) filed by Defendant No.1, it is stated that late Mr. J.N. Garg purchased the suit property from his own funds on 20th December 1964 in an open auction much prior to the sale of the Tihar Village properties. 11. In the written statement CWS) filed by Defendant No.1, it is stated that late Mr. J.N. Garg purchased the suit property from his own funds on 20th December 1964 in an open auction much prior to the sale of the Tihar Village properties. The details of the payments made by Mr. J N Garg for the suit property on 20th December 1964 (Rs. 3,030), on 27th April 1965 ( Rs. 6,045) and that the balance before 16th November 1966 have been set out in para 4 of the WS. It is further stated that it was Mr. J.N.Garg who had set up the business of the Plaintiff. He also got his daughter married out of his own funds. The entire payment in 1985-86 for the suit property was covered by Mr. J.N. Garg out of his own funds. Since the suit property was self-acquired property of late Mr. J.N. Garg, he was free to deal with it in any manner he liked and, therefore, the validly executed Gift Deeds are challenged in the suit. It is stated that the mutation in respect of the ground floor is in respect of Defendant No.1. It is further stated that the present suit filed in September 2008 for cancellation of the Gift Deeds is time-barred. 12. Similar pleas have been taken by Defendant No.6 and the other Defendants as well. The Defendants have also filed IA No. 361 of 2010 and IA No. 4419 of 2010, both under Order VII Rule 11 of the Code of Civil Procedure, 1908 ('CPC'). 13. Taking up the first application, IA No. 10574 of 2010 under Order VI Rule 17 CPC, the Court finds that the two amendments sought to be made to the plaint are in para 9, where the Plaintiff wants to state that Defendants 1 and 6 poisoned the "mind" of late Mr. J. N Garg and Defendant No.5 against the Plaintiff. While, this amendment, per se, cannot be said to be a material alternation of the plaint, it has to be seen in the context of the fact that this has been after the institution of the criminal complaint filed by the Defendants. It is perhaps, therefore, meant to overcome the criminal complaint. Para 10A is sought to be added in relation to the notice dated 17th July 2000 sent by Mr. It is perhaps, therefore, meant to overcome the criminal complaint. Para 10A is sought to be added in relation to the notice dated 17th July 2000 sent by Mr. Anil Gupta calling upon the Plaintiff to vacate the portion of the suit property, which was in his possession. While, in para 10A, which is sought to be added in the plaint there is a reference to this very notice, the averment sought to be made is that "on account of the discussions in the family, it was agreed that the property has been acquired out of the ancestral funds and it was decided that the plaintiff shall construct the second floor portion for his residence out of his own funds......" and that "the Plaintiff constructed the entire second floor by spending huge amount with the consent of the family members...." 14. The Court is of the view that the above averments are only about the property being ancestral property and not the self acquired property of late Mr. J.N. Garg. The third amendment sought is to the prayer clause. Although prayer (a) seeks a decree of declaration that the two Gift Deeds are null and void, the amendment seeks for a declaration that the suit property "was acquired and was built up out of the ancestral funds/joint family funds and late Shri J.N. Garg had no right to git the said property to either defendant No.1 or Defendant No.6." The above amendment again is only to seek to support the stand of the Plaintiff that the property is an ancestral one. The amendment is really unnecessary. It is self-serving without any supporting documentation whatsoever. Consequently, this Court is not inclined to permit the Plaintiff to amend the plaint in the manner sought. 15. IA No. 10574 of 2010 is accordingly dismissed. 16. Now, turning to the two applications under Order VII Rule 11 CPC, it is seen that the Plaintiff acknowledges having received a notice dated 17th July 2000 from the Advocate of his late father. A perusal of the said notice dated 17th July 2000 shows that it was asserted even then that it is the Plaintiff who has sold the Tihar village property. It was stated in para 3 of the said notice that late Mr. J.N. Garg constructed the suit property "by purchasing the land with of his own funds. A perusal of the said notice dated 17th July 2000 shows that it was asserted even then that it is the Plaintiff who has sold the Tihar village property. It was stated in para 3 of the said notice that late Mr. J.N. Garg constructed the suit property "by purchasing the land with of his own funds. The said house is three storeyed house and is exclusively owned and possessed by my aforesaid client as his own self acquired property." In reply to the said notice, the lawyer for the Plaintiff stated as under: "3. Para No.3 of your notice is admitted to the extent that your client was in government service, but rest of the para is denied as being incorrect. The property No. F-83, Naraina Vihar, New Delhi was acquired and built out of the funds of the ancestral properties and it was not constructed or acquired with the funds of your client, and my client has a right and share in the said property. It is denied that the said property is exclusively owned and possessed by your client as his self acquired property. The said property is in joint ownership." 17. Despite knowing the claim raised by the father, way back in 2000, that the suit property was a self-acquired property, no attempt was made by the Plaintiff to seek any declaration in respect thereof, for at least eight years thereafter. The present suit appears to have been filed as a counterblast to the suit for possession filed against the Plaintiff by Defendants land 6. Consequently, this Court is of the view that the suit is barred by limitation since it is filed more than seven years after the Plaintiff became aware of the stand of the late father that the suit property was in fact a self-acquired property of his father late Mr. J.N. Garg. 18. The Court enquired of Mr. S.C. Singhal, learned counsel for the Plaintiff if there was any document whatsoever which would go to show that the suit property was not the self-acquired property of late Mr. J.N. Garg. Mr. Singhal was unable to point to any such document other than the Plaintiffs own self-serving statement made either in the reply to notices or the notice issued by him or in the plaint. J.N. Garg. Mr. Singhal was unable to point to any such document other than the Plaintiffs own self-serving statement made either in the reply to notices or the notice issued by him or in the plaint. The mere repetition of a statement in support of a claim will not give rise to a triable cause of action. The plaint, when read as a whole, does not give rise to any cause of action as regards the Plaintiffs claim to partition. 19. If, indeed, the suit property was not purchased out of the joint family funds and had no character of an ancestral property, then late Mr. J.N. Garg was free to deal with the suit property, which was a self acquired property, in any manner he pleased. He was entitled in law, therefore, to execute the Gift Deeds in favour of Defendants 1 and 6, without any bar in law. 20. In that view of the matter, the Court holds that the plaint does not disclose a cause of action for the Plaintiff to challenge the two Gift Deeds or seek partition. The Court is satisfied that the plaint does not disclose any cause of action for grant of reliefs prayed for by the Plaintiff. Consequently, these two applications are allowed and the plaint is rejected. The Suit and all the pending applications are dismissed. The interim order dated 1st October 2008 is vacated.