SURESH CHAND GUPTA Vs. MAN MOHAN GUPTA

JUDGEMENT

(1.) The plaintiffs have filed suit for partition of immovable property No. A-44, Inder Puri, New Delhi, constructed over land admeasuring about 200 Sq.Yds. Briefly stated, the plaintiffs case is that the property in suit namely A-44, Inder Puri, New Delhi was owned by Sh. Shambhu Mal Gupta. Construction on the said plot was raised by Sh. Shambhu Mal Gupta in the year 1967-68. Shri Shambhu Mal Gupta had four sons namely Sh. R.M.Gupta (since deceased now represented by his LR s who are plaintiff Nos. 4 (a) to (c), Sh. M.M.Gupta, defendant No.1, Sh. Suresh Chand Gupta, plaintiff No.1, Sh. Mahesh Gupta, plaintiff No.2 and one daughter Smt. Raj Rani Garg who is plaintiff No. 3 in the suit. Sh. Shambhu Mal Gupta had been realizing rent from tenant. Defendant No. 1 had also admitted the ownership of Shri Shambhu Mal in respect of the said property. In this regard he had executed a Release Deed dated 11.2.71 declaring that he (defendant No.1) has no right, title or interest whatsoever in the said property. The said Release Deed was registered in the office of Sub-Registrar as document No. 1259 in the Addl. Book No. 1, Volume No. 1361 on pages 141 and 142 on Feb. 1971. Sh. Shambhu Mal Gupta died intestate on 15.11.1986 and after his death his widow Smt. Kapoori Devi started realizing rent from the tenant with the consent of all the brothers. However, in the receipt issued on behalf of Smt. Kapoori Devi name of the owner was described as Shambhu Mal Gupta. In para 5 of the plaint, the plaintiff has given one specific instance of the receipt issued by Smt. Kapoori Devi for the month of May, 1988. The said receipt was signed by defendant No.1 for and on behalf of his mother Smt. Kapoori Devi and in the said receipt the name of the owner was described as late Sh. Shambhu Mal Gupta. Smt. Kapoori Devi has been missing since 13.4.1993 and has not been heard of since then. At that time she was aged about 85 years. It is claimed that plaintiffs and defendant No. 1 are the only legal heirs of the deceased Sh. Shambhu Mal Gupta and they are entitled to one fifth share each in the said property. Defendant No. 2 is only proforma party. No relief has been claimed against him. The plaintiffs have filed suit for partition and separation of their one fifth share each in the suit property.

(2.) Defendant No. 1 Sh. Man Mohan Gupta has contested the suit. His defence is that the plot underneath the property in question was purchased by him from his own funds from Engineering and Industrial Corporation Limited for a total sale consideration of Rs.1867-8 annas vide Sale Deed dated 11.7.54. He also raised construction on the said plot from his own funds in the year 1967 and for this purpose he had raised a loan of Rs.10,000.00 from the Assistant Commissioner (Loans) Delhi Administration by mortgaging the plot in question and in this regard a registered mortgage deed dated 22.9.67 was executed by him. Thus according to the defendant No. 1 he is the exclusive owner of the property in question. As regard execution of Release deed of 11.2.71, the defendant's case is of complete denial. His case is that he never signed any such document purporting to be Release Deed disclaiming his right, title and interest in favour of Sh. Shambhu Mal or anybody else. According to him the said document purporting to be Release Deed is a forged document which appears to have been manipulated by the plaintiff and late Sh. Shambhu Mal Gupta to get the property mutated in the name of Sh. Shambhu Mal Gupta. It is further pleaded by the defendant that said property was got mutated by Sh. Shambhu Mal Gupta in municipal records without obtaining any NOC from him (defendant No.1). This fact was never brought to his notice during the life time of Sh. Shambhu Mal Gupta. It is the contention of the defendant No.1 that since the title of the property already vested in him, the realization of rent by Sh. Shambhu Mal Gupta on his behalf has no meaning. It is admitted that after the death of Sh. Shambhu Mal Gupta all the heirs thought it proper that the rent realized from the property in question be paid to Smt. Kapoori Devi so that she can lead a better life. Defendant No. 1 admits having singed the receipt issued to the tenant for the month of May 1988 wherein Sh.Shambhu Mal Gupta was described as owner of the property but according to him the blanks in the receipt were filled in by somebody else and in any case the description of deceased Sh.Shambhu Mal Gupta as owner in this receipt has no meaning as he had no title in property in question. In nut shell defendant's case is that property in question is exclusively owned by him and the alleged Released Deed dated 11.2.1971 is forged document which he never signed. The plaintiffs have no right, title and share in property in question and therefore no right to claim partition thereof.

(3.) In replication, the plaintiffs have denied that property in question was acquired by defendant No.1 from his own funds. The plaintiff has reasserted the genuineness of the Release Deed dated 11.2.1971 which contains specific affirmation from the side of the defendant No.1to the effect that his father Lala S. Mal had purchased the plot out of his own funds but the sale Deed was got registered in the name of defendant No.1 as benamidar and that the construction thereon was also raised by their father in the year 1967 onwards. The allegation regarding manipulative execution of the Release Deed dated 11.2.1971 and mutation in the municipal records in the name of Sh. Shambhu Mal Gupta is denied.