MADAN LAL KAPUR Vs. SUBHASH LAL KAPUR

JUDGEMENT

(1.) The Plaintiff has prayed for the partition of property bearing No.R-565, New Rajinder Nagar, New Delhi (hereafter referred to as the `suit property') on the grounds that he along with Defendant No.1 are the joint and equal owners thereof. It has been averred that the Plaintiff and Defendant No.1 had purchased the undivided half-share each in the said property vide two Sale Deeds dated 21.11.1977. All the parties hereto are brothers. The plaint discloses that Defendant Nos.1 to 4 are working in partnership in the name and style of Messrs. Nawab Packers, New Delhi. Defendant No.1 is stated to have invested the funds of the firm for purchasing the half-share in the suit property and that Defendant Nos.2 to 4 are claiming interest in the said property on the premise of the said investment having been made from the funds of the firm. It is further averred in the plaint that the Plaintiff and Defendant No.1 got the Plans sanctioned from the MCD on 27.7.1978 and started rebuilding the property immediately, after demolishing the existing structure. These two parties had agreed to share the cost of construction in equal proportion. The structure of the building was almost complete by July, 1979. Defendant No.1 had incurred the initial cost of construction and it was agreed between him and the Plaintiff that the latter will pay his fifty per cent share of the cost of construction after the completion of the entire building. However, in July, 1979, after the structure had nearly been completed, Defendant No.1 stopped further construction and started demanding from the Plaintiff his share of the cost of construction. Defendant Nos.2 to 4, being partners of the firm also started intervening and claiming interest in the property. The Plaintiff was forced to enter into an unreasonable Agreement of Construction by Defendants on 9.8.1979. However, despite this Agreement the Defendants failed to complete the building and abandoned the project. The Plaintiff thereupon moved into fifty per cent of the first floor portion in the incomplete building and is in possession till date. Thereafter (as pleaded in the plaint) in March, 1981 the Plaintiff and the Defendants raised a loan from the New Bank of India towards the cost of construction of the entire building. It is averred that the "Plaintiff agreed to that effect with a view to resolve all disputes with the Defendants.". The said Bank advanced a loan of Rs.6 lakhs and also agreed to take part of the premises on loan for five years on a monthly rent of Rs.19,950.00. It is pleaded that before signing the loan documents with the Bank on 30.9.1981 the parties entered into an Agreement, the salient feature of which are that the Defendants will complete the construction in all respects and that the rent proceeds will be distributed in the ratio of thirty-five per cent for the Plaintiff and sixty-five per cent for the Defendants; and that the Plaintiff will pay thirty-five per cent of the cost of construction upon completion. The Agreement states that it supersedes all the previous agreements. From the loan of Rs.6 lakhs, Rs.2,08,588.50 was received by the Plaintiff and the remainder by the Defendants. Out of said amount of Rs.2,08,588.50 the Plaintiff paid to the Defendants a sum of Rs.1,60,000.00 towards the cost of construction, even though this amount was payable only on the completion of the construction. Despite this, the Defendants have not completed the construction till date. It is further pleaded that the Defendants had received a sum of Rs.5,51,411.50 which is much more than the amounts invested by them in the building. In the plaint it is further averred that the Agreement dated 30.9.1981 is a building contract, and is not a registered instrument. Since the construction was not completed, the Plaintiff had terminated the contract on 14.5.1981. The Plaintiff has claimed for a decree of rendition of account pertaining to the cost of construction in regard to Defendant Nos.1 to 4; decree of partition; and a permanent injunction against the Defendants restraining them from interfering with the right, title, interest and possession of the Plaintiff in the suit property.

(2.) The Defendants, i.e. the four brothers of the Plaintiff, have filed a Written Statement in which a Counter-Claim has also been lodged. It is averred by them that the property already stood partitioned in the ratio of thirty- five per cent with the Plaintiff and sixty-five per cent with the Defendants. A wall separating the first floor in this ratio had been erected and the Plaintiff's portion had been thereby demarcated and separated from the rest. The second floor was similarly separated. The basement, ground floor and mezannine floors have been jointly let out to the New Bank of India as per Lease Deed dated 30.9.1981 and the rent has been apportioned in the said ratio of thirty-five per cent for the Plaintiff and sixty-five per cent for the Defendants. It is pleaded that the parties are co-owners of the suit property in the ratio mentioned above. The Defendants have admitted the averments pertaining to the partnership Nawab Packers as also investments mentioned in paragraph 5 of the plaint. It has been categorically denied that the Plaintiff and Defendant No.1 agreed to share the cost of construction in equal shares instead of ratio mentioned above. The Defendants have asserted that the Plaintiff invested only Rs.1,00,000.00 comprising fifty per cent from his own funds and fifty per cent from borrowings from the Laxmi Commercial Bank. The entire expenditure on the construction was incurred by the Defendants. The construction was continuing in August, 1979 by which time the Defendants had spent a sum of Rs.2,70,000.00 till 9.8.1979. It has been denied that the Plaintiff was forced to enter into the Agreement dated 9.8.1979 of which he has taken advantage and benefit, and is thus bound by its terms. It has been denied that the Defendants had failed to complete the building or had abandoned the project. Instead, it is stated that the entire building has been completed and is presently yielding a monthly rent of Rs.23,000.00 as a branch of New Bank of India is in operation in the basement, ground and mezannine floors. It is averred that the Plaintiff did not let the Defendants complete the erection of the wall whereby the first floor was divided in the said ratio, "nor did the plaintiff allow the Defendants to demolish the wall originally erected or constructed". Thereupon a notice dated 9.2.1981 was issued by the Defendants and was replied to by the Plaintiff in terms of his letter dated 3.3.1981 whereby the Agreement dated 30.9.1981 was terminated by the Plaintiff. It has also been pleaded that after the filing of the plaint on 15.5.1981 a Local Commissioner visited the site on 27.5.1982 and found the wall separating the thirty-five per cent of the First floor and of the Barsati to be in existence. Reliance has been placed on the Plaintiff's letter dated 30.9.1981 authorising Defendant No.2 to hand over possession of the Plaintiff's thirty-five per cent of building to the Lessee namely New Bank of India. From the loan of Rs.2 lakhs, a sum of Rs.70,000.00 was credited to the Plaintiff's account while Rs.1,30,000.00 was credited to the Defendant's account. Thereafter the possession of the demised portion was handed over to the Bank on 10.11.1981 and the parties borrowed a sum of Rs.6 lakhs and executed sundry documents on 16.11.1981. The disbursements have been made in the said ratio of thirty-five per cent to the Plaintiff and the rest to the Defendants. Reliance has been placed on the Agreement dated 30.9.1981 between the parties in which the Plaintiff had agreed to pay a sum of Rs.1,50,000.00 to the Defendants to be adjusted towards part payment of the cost of construction. The Written Statement highlights that the Plaintiff had admitted ownership to the extent of thirty-five per cent in the Lease Deed with the Bank, and the sharing of the rent in this very ratio. Although paragraph 16 of the plaint has been denied, the receipt of the sum of Rs.1,60,000.00 stands admitted by the Defendants. It has also been pleaded that Rs.16,000.00 was accepted by the Plaintiff from the Defendants in full and final settlement of the amounts spent till that date on the construction and other miscellaneous expenses pertaining to the suit property. Paragraph 17 of the plaint, in which it has been mentioned that a sum of Rs.5,51,411.15 had been received by the Defendants towards the cost of construction, has been denied. It is pleaded that since accounts upto 30.9.1981 having been mutually settled between the parties they cannot be reopened and the Defendants are not liable to render accounts upto that period. It has been further pleaded that a sum of Rs.4,10,000.00has been spent by the Defendants on the construction of the property over and above their sixty-five per cent share and that the Plaintiff had admitted that this sum was due from him as on 30.9.1981 and interest at the rate of sixteen per cent per annum has been claimed by the Defendants. It has been categorically denied that the Agreement dated 30.9.1981 is a "building contract", and that the Defendants have failed to perform their obligations, and that the unilateral termination of the Agreement is absolutely illegal and void. It has been asserted that the market value of property on the date of the filing of the suit is not less than Rs.40 lakhs, and that the Plaintiff is liable to pay only thirty-five per cent of the total cost of construction and not fifty per cent as claimed by him. It has been pleaded that, so far as rent is concerned, the Plaintiff is in a position to ascertain and claim a specific amount and he is liable to pay ad valorem court-fee thereon. The valuation of plaint has been objected to.

(3.) The case of the Defendant Nos.1 to 4 is that the Plaintiff and the Defendants, being real brothers, were at the relevant time residing jointly in House No. B-4/175, Safdarjung Enclave New Delhi. The suit property, which was old and dilapidated, was purchased by them from Shri N.N. Seth, each having 20 per cent undivided share therein. But at the instance of the mother of the parties the Plaintiff's share in the said property was enhanced from twenty per cent to thirty-five per cent and the remainder sixty-five per cent belonged to Defendant Nos.1 to 4 jointly. The sale in favour of the Plaintiff and Defendant No.1 was benami for and on behalf of and for the benefit of all the five brothers. The Plaintiff invested only Rs.1 lac and the remaining entire amount for acquiring, demolishing and reconstructing the said property was incurred and spent by Defendant Nos.1 to 4 from their personal sources as well as from the funds of their partnership firm Messrs. Nawab Packers.