ROHIT SETHI AND OTHERS Vs. SHIV CHARAN AGGARWAL

JUDGEMENT

(1.) C.M. Appl. No. 27168/2017 (for condonation of delay) For the reasons stated in the application, the delay of 11 days in filing the appeal stands condoned. C.M. stands disposed of. RFA No. 676/2017 and C.M. Appl. No. 27169/2017 (for stay) This Regular First Appeal under section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit impugning the judgment of the trial court dated 16.2.2017 whereby the trial court has dismissed the suit filed for partition and declaration with respect to the property being WZ-105 and 106 (total 300 sq. yards) Meenakshi Garden, Nazafgarh Road, New Delhi. As per the plaint the case set up by the appellants/plaintiffs was that the suit property was an HUF property. Suit was filed by two plaintiffs being Sh. Rohit Sethi and Smt. Deepali Sethi, and who are two out of three appellants before this Court. The third appellant before this Court was the defendant no. 2 in the suit, namely, Sh. Vishal Sethi. All the three appellants are the children of late Sh. Vinod Kumar Sethi. Late Sh. Vinod Kumar Sethi is stated to have expired during the pendency of the suit. Defendant no. 3 in the suit was one Smt. Sanjogta Devi and who also has been made a party in the present appeal because it is stated that Smt. Sanjogta Devi had expired pendente lite. Effectively therefore, the suit and the present appeal is for enforcing rights by the children of late Sh. Vinod Kumar Sethi with respect to the suit property pleading that the suit property was owned by their grandfather namely late Sh. Madan Lal Sethi and was HUF property as Sh. Madan Lal Sethi had got funds for purchase of the suit property from his father Sh. Lakshmi Chand. The suit property is therefore pleaded to be an HUF property only because Sh. Madan Lal Sethi is said to have received funds for purchase of this property from his father Sh. Lakshmi Chand.

(2.) It is further seen that the suit property no longer was owned on the date of filing of the suit on 29.9.1995 either by Sh. Vinod Kumar Sethi or late Sh. Madan Lal Sethi, inasmuch as, the suit property was sold by means of agreements to sell and sale deeds respectively dated 15.3.1979/24.12.1986 and 17.3.1987/23.3.1987 whereby the suit property was sold by late Sh. Madan Lal Sethi to the defendant no. 4 in the suit, and who is the sole respondent in the present appeal. The original suit filed did contain any challenge to the aforesaid transfer documents executed by late Sh. Madan Lal Sethi in favour of the respondent herein (defendant no. 4) being the aforesaid agreements to sell and sale deeds, however, subsequently the suit plait was amended and declaration was sought with respect to the documents executed by late Sh. Madan Lal Sethi being forged, fabricated and sham documents and therefore null and void. The relief clauses in the amended plaint read as under:-

(3.) The court below has held that besides the fact that the transfer documents with respect to the suit property stand duly executed by late Sh. Madan Lal Sethi in favour of the respondent/defendant no. 4 and were forged and fabricated, but be that as it may, trial court has further held that in order to succeed in the suit to the claim of the suit property being an HUF property, the appellant nos. 1 and 2/plaintiffs had to prove that funds were given by Sh. Lakshmi Chand to late Sh. Madan Lal Sethi for purchasing the property and that there is a shred of evidence led to show any payment of funds by Sh. Lakshmi Chand to late Sh. Madan Lal Sethi. Trial court accordingly and rightly held that the suit property cannot be held to be an HUF property because it is proved that the suit property is purchased from the funds given by Sh. Lakshmi Chand to late Sh. Madan Lal Sethi, the grandfather of the appellant nos. 1 and 2/plaintiffs, and who was the father of Sh. Vinod Kumar Sethi, the father of the appellants. In fact on the facts as pleaded, even if they were proved of giving of funds by Sh. Lakshmi Chand to late Sh. Madan Lal Sethi, yet in law that would have made the suit property as an HUF property as discussed hereinafter.