ASHOK KUMAR Vs. RAKESH KUMAR AND ANR.

JUDGEMENT

(1.) The appellant has filed two appeals being aggrieved by the common judgment and decree dated 26.08.2009 passed by the learned Additional District Judge, Delhi whereby the Suit no.60 of 2004 filed by the respondent no.1-herein has been decreed in his favour whereas Suit no.56 of 2004 filed by the appellant/plaintiff was dismissed.

(2.) It is apparent from the record that two suits were filed by the parties against each other. Suit no.60/2004 was filed by the respondent-Rakesh Kumar against the appellant (defendant no.2) and other defendants, namely, Diwan Chand (defendant no.1), Naresh (defendant no.3), Sanjay (defendant no.4), Smt. Saroj Sharma (defendant no.5), Smt. Sharda Chadha (defendant no.6), Smt. Madhu Agnihotri (defendant no.7) and Smt. Poonam Bhaskar (defendant no.8). The said suit was filed for declaration and partition with the prayer to declare the partition deed dated 01.03.1993 and gift deed dated 09.02.1999 as null and void and also to pass a decree for partition declaring the share of each of the member of the Hindu Undivided Family. Suit no.56/2004 was filed by the appellant-Ashok Sharma against the respondent-Rakesh Kumar and Rajat Sharma (defendant no.2). The said suit was filed for dissolution of partnership firm and rendition of accounts. Both the suits were decided by a common judgment under challenge.

(3.) The facts in brief are that the plaintiff/respondent-Rakesh Kumar is a member of a HUF with defendant no.1 (his father), defendant no.2/appellant to defendant no.4 are brothers, defendants no.5-8 are his sisters. After having migrated from Pakistan, out of the ancestral funds, property at West Patel Nagar (first property) and property at Gaffar Market (second property) were purchased in the name of defendant no.1-deceased father of the appellant. The parties were in a fiduciary relationship with each other being father and sons. The first property is being used for residential purposes and second property is being used for the family business of watches. The second property is the only source of income of the joint family. The plaintiff/respondent was completely relying upon his father and defendant no.2/appellant in the matter of accounts and taxation purposes for the shop. On the pretext of requirement for running of business and taxation purposes, defendant no.2/appellant and defendant no.1 got certain blank papers signed by the plaintiff/respondent. Ill feelings developed with defendant no.2/appellant and his father who tried to exclude the plaintiff/respondent from the family business and had not even accounted for the earnings. On 25.05.1999 plaintiff/respondent sought to talk to his father to enquire about the reasons for the behaviour of defendant no.2/appellant when defendant no.1 asked him to vacate the shop and house and to look for his own livelihood and residence. It was further revealed by defendant no.1 that the entire properties of HUF had been partitioned as per the gift deed executed by him to the exclusion of all others and the copies of the same were given to the plaintiff/respondent. It was alleged that the documents were all false and fabricated and plaintiff had been cheated with respect to the same. Plaintiff/respondent requested the defendant no.2/appellant and his father for a peaceful partition of the property, but the same was not taken into consideration owing to the hostile attitude of all family members towards plaintiff/respondent no.1.