Jugal Kishore Khanna(D)Thr Lrs vs Sudhir Khanna

2024 INSC 224 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1591 OF 2020

JUGAL KISHORE KHANNA(D) THR LRS & ANR. … APPELLANTS A1: JUGAL KISHORE KHANNA (D) THR. LRs A1.1: PRABHAT KHANNA A1.2: ROHIT KHANNA A2: MANMOHAN KHANNA VERSUS

SUDHIR KHANNA & ORS. … RESPONDENTS R1: SUDHIR KHANNA R2: RAMAN KHANNA R3: SHYAMA KHANNA (D) THR. LRs R3.1: SUDHIR KHANNA R3.2: RAMAN KHANNA R3.3: GEETA SETHI WITH

CIVIL APPEAL NO.1592 OF 2020

JUGAL KISHORE KHANNA(D) THR LRS & ANR. Signature Not Verified … APPELLANTS Digitally signed by geeta ahuja Date: 2024.03.19 17:44:18 IST Reason: A1: JUGAL KISHORE KHANNA (D) THR. LRs A1.1: PRABHAT KHANNA 2

A1.2: ROHIT KHANNA A2: MANMOHAN KHANNA VERSUS

SUDHIR KHANNA & ORS. … RESPONDENTS R1: SUDHIR KHANNA R2: RAMAN KHANNA R3: SHYAMA KHANNA (D) THR. LRs R3.1: SUDHIR KHANNA R3.2: RAMAN KHANNA R3.3: GEETA SETHI

J U D G M E N T

AHSANUDDIN AMANULLAH, J.

Heard learned counsel for the parties.

2. The challenge in the present appeals is to the

common Judgment and Order dated 06.12.2013

(hereinafter referred to as the “Impugned Judgment”)1

passed by a learned Single Judge of the High Court of

Delhi (hereinafter referred to as the “High Court”),

wherein the appeal filed by the respondent no.1 in

1 2013:DHC:6299 | 2013 SCC OnLine Del 4916. 3

respect of the Kamla Nagar property2, i.e., RFA No.439

of 2008, has been allowed and the appeal filed by the

appellants in respect of the Malcha Marg property3,

i.e., RFA No.483 of 2008, has been dismissed.

FACTS IN BRIEF:

3. The parties are common descendants of Late Shri

Tek Chand Khanna (hereinafter referred to as “TCK”),

who had two sons, Shri Roop Kishore Khanna

(hereinafter referred to as “RKK”) and Shri Attar

Chand Khanna (hereinafter referred to as “ACK”). The

appellants are descendants of RKK whereas the

respondents are the successors of ACK. In the year

1941, RKK purchased a piece of land admeasuring 344

square yards and bearing No.15-D, Kamla Nagar, Delhi

- 110007 (hereinafter referred to as the “Kamla Nagar

property”) in the name of his father TCK and a

residential house was constructed thereupon in 1950.

Another property admeasuring 375 square yards bearing

No.D-56, Malcha Marg, Chanakyapuri, New Delhi - 2 Defined infra.

3 Defined infra.

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110021 (hereinafter referred to as the “Malcha Marg

property”) was also acquired by RKK and constructed

by the family in the name of Smt. Shyama Khanna, wife

of ACK. The claim of the appellants is that the

purchase and construction of the Malcha Marg property

was out of the funds provided by RKK and the income

of the family generated from Regal Cinema Business.

RKK died in the year 1978 and after that ACK claimed

share in the Kamla Nagar property claiming it to be

joint family property. The appellants claim that in

1979, in terms of an oral settlement between the

parties a sum of Rs.55,000/- (Rupees Fifty-Five

Thousand) was paid through cheques by the LRs of RKK

in favour of ACK for the purchase of the share of ACK

in the Kamla Nagar property. In 1983, upon ACK having

expired, his LRs filed two suits. One claiming

partition of the properties at Shimla and another

claiming partition of the Kamla Nagar property. The

Trial Court by order dated 28.07.2008 dismissed the

suit of the Respondent No.1 with regard to the claim

over the Kamla Nagar property. However, insofar as 5

the Malcha Marg property is concerned, the Trial

Court decided the issue of the suit being bad on

account of partial partition against the appellants,

on the ground that circumstances given by the

appellants are not sufficient to prove that the

Malcha Marg property was purchased out of joint

family funds. The Respondent No.1 challenged the

Trial Court order, so far as the same pertained to

the Kamla Nagar property, by filing RFA No.439 of

2008 before the High Court whereas the appellants

challenged the decision of the Trial Court pertaining

to the Malcha Marg property by preferring RFA No.483

of 2008.

4. By the common Impugned Judgement dated

06.12.2013, the High Court allowed the appeal filed

by the Respondent No.1 [RFA No.439 of 2008] and

dismissed the appeal filed by the appellants [RFA

No.483 of 2008]. The instant Civil Appeals emanate

therefrom.

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SUBMISSIONS BY THE APPELLANTS:

Re Kamla Nagar:

5. Learned senior counsel for the appellants

submitted that the judgment of the Trial Court [the

Additional District Judge, Karkardooma Courts, Delhi]

dated 28.07.2008 held that Kamla Nagar property

belongs solely to the appellants on very cogent

grounds i.e., the same was originally joint/ancestral

property between RKK and ACK having been bought in

the name of TCK and later the 50% share of ACK being

bought by the appellants in a family settlement. It

was pointed out that when suggestion was put to DW1

and DW2 being Defendant No.2 and LRs of deceased

Defendant No.1 respectively, in cross-examination,

payment of Rs. 55,000/- (Rupees Fifty-Five Thousand)

for betterment of Hindu Undivided Family (hereinafter

referred to as “HUF”) was admitted. Further, the

Trial Court had noted in its judgment that the

plaintiff (Respondent No.1) in his cross-examination 7

had admitted that the Kamla Nagar property was the

only joint family property.

6. Learned counsel submitted that the appellants,

who were defendants in the suit pertaining to the

Kamla Nagar property, had proved that there was an

oral settlement in the year 1979 after the demise of

RKK and in terms thereof, the LRs of RKK being

Defendants No.1, 2 and 3, being sons of RKK, as also

Ms. Lakshmi Khanna, wife of late RKK, had by 6

cheques paid an amount of Rs. 55,000/- (Rupees Fifty-

Five Thousand) towards the share of ACK in the Kamla

Nagar property.

7. Thus, it was contended that rightly the Trial

Court had held in favour of the appellants that the

the Kamla Nagar property no more remained joint

family property, as the 50% share of the ACK branch

was already bought by paying Rs. 55,000/- (Rupees

Fifty-Five Thousand) to the LRs. In support of his

contention, learned counsel further submitted that 8

ACK in his Wealth Tax Return of the year 1965-1967

had shown the value of the Kamla Nagar property at

around Rs.38,000/- (Rupees Thirty-Eight Thousand) and

thus, in the year 1979, the value being Rs.1,10,000/-

(Rupees One Lakh and Ten Thousand) was most

reasonable and 50% of their share being Rs.55,000/-

(Rupees Fifty-Five Thousand) having been paid, the

entire property belonged to the share of the LRs of

RKK.

8. However, it was contended that even the Trial

Court has held that in family settlements, it is

normal for the value to be slightly on the upper or

the lower side.

9. Learned counsel submitted that though ACK has

filed his Wealth Tax Returns for the years 1964-1965,

1965-66 and 1966-67, his Wealth Tax Returns from 1979

till his demise in 1983 were not brought before any

forum or Court nor any witness was called from the

Income-Tax Department to show the same, which is

another indicator that ACK had not claimed any part 9

of the Kamla Nagar property to be his so as to

require disclosure in his Wealth Tax Returns from

1979 till his death in 1983, which also proves the

fact with regard to the payment of Rs.55,000/-

(Rupees Fifty-Five Thousand) as per the family

settlement for buying the 50% share of ACK in the

Kamla Nagar property by the appellants, who were LRs

of RKK.

10. Learned counsel submitted that the High Court in

the Impugned Judgment in RFA No.439 of 2008 has taken

a view that the payment of Rs.55,000/- (Rupees Fifty-

Five Thousand) was “on some other account” and not

towards any claim against the Kamla Nagar property.

It was held by the High Court that the LRs of ACK had

50% share in the same and further the aspect of

benami was specifically not pressed at the time the

RFA was heard by the High Court, as noted in

Paragraph 12 of the Impugned Judgment. Even the

finding that the payment of Rs.55,000/- (Rupees

Fifty-Five Thousand) was “on some other account” is 10

totally erroneous and presumptuous since it is based

only on surmises without there being any discussion

to show as to what was the other purpose and in the

absence of such “other account”, there was no

material to prove its authenticity and genuineness.

11. Learned counsel submitted that right from 1979

till his demise in 1983, ACK never raised any claim

with respect to the Kamla Nagar property which was in

the exclusive possession of the appellants.

12. Learned counsel also contended that the payment

of Rs.55,000/- (Rupees Fifty-Five Thousand) was

received by ACK in his personal account and not his

business account, which would clearly show that it

was in terms of the family settlement and not for

some other account/purpose.

Re Malcha Marg:

13. On the Malcha Marg property, learned counsel

submitted that though both the Courts below have

given concurrent findings that it was not joint 11

family property, the appellants who were Defendants

had only taken a preliminary objection in the Written

Statement to the suit being bad for partial partition

as the Malcha Marg property was not part of the said

suit. However, no serious effort was made to claim

partition/ownership of full or part of the Malcha

Marg property.

SUBMISSIONS BY THE RESPONDENTS:

14. Per contra, learned counsel for the respondents

submitted that the Trial Court had rightly decided

the issue qua the Malcha Marg property being

exclusively that of the respondents but had erred in

accepting the story of family settlement and payment

of Rs.55,000/- (Rupees Fifty-Five Thousand) for the

share of the respondents in the Kamla Nagar property

and the wrong has rightly been corrected by the High

Court vide the Impugned Judgment. It was submitted

that the Trial Court findings re the Malcha Marg

property was rightly upheld.

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15. Learned counsel drew the attention of the Court

to the cross-examination of DW1, in which he has

stated that no valuation was done from any valuer and

there were no documents to show that Rs.55,000/-

(Rupees Fifty-Five Thousand) paid to ACK was towards

a full and final settlement of his share in the Kamla

Nagar property. Thus, it was submitted that in the

absence of there being any proof of either settlement

or payment in lieu of the share of the respondents,

rightly the High Court has held that the appellants

have only 50% share in the property.

16. On the legal aspect, it was submitted that

Section 17 of the Registration Act, 19084 provides

4 ‘17. Documents of which registration is compulsory.—(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been examined on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely —

(a) instruments of gift of immovable property;

(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

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that any document or transfer or assigning any right

or extinguishing any right regarding title and

interest in an immovable property valued at more than

Rs.100/- (One Hundred) has to be done through a

document which requires registration and the same not

(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt, from the operation of this sub-section any leases executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

(1-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), shall be registered if they have been executed on or after the commencement of the Registration and Other Related Laws (Amendment) Act, 2001 and, if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said Section 53-A. (2) Nothing in clauses (b) and (c) of sub-section (1) applies to—

(i) any composition-deed; or

(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or

(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) any endorsement upon or transfer of any debenture issued by any such Company; or

(v) any document other than the documents specified in sub-section (1-A) not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; or

(vii) any grant of immovable property by the Government; or

(viii) any instrument of partition made by a Revenue Officer; or 14

having been done, the presumption in law would be

that no such settlement existed between the

appellants’ side and the respondents’ side.

17. On the aspect of the Malcha Marg property, it

was submitted that both the Courts below have

concurrently held in favour of the respondents and

thus, there being absolutely no evidence whatsoever

to show the same to have been bought by joint family

funds, no interference was required with such

finding(s).

ANALYSIS, REASONING AND CONCLUSION:

(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (26 of 1871), or the Land Improvement Loans Act, 1883 (19 of 1883); or

(x) any order granting a loan under the Agriculturists Loans Act, 1884 (12 of 1884), or instrument for securing the repayment of a loan made under that Act; or (x-a) any order made under the Charitable Endowments Act, 1890 (6 of 1890), vesting any property in a Treasurer of Charitable Endowments of divesting any such Treasurer of any property; or

(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.

Explanation.—A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.

(3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.’ 15

18. Having considered the matter, the Court finds

that the Impugned Judgment of the High Court needs

interference. As far as the Malcha Marg property is

concerned, the Court has no hesitation to uphold the

concurrent findings of the Trial Court and the High

Court that there is nothing, even remotely, to

indicate that the said property was bought out of

joint family funds, and thus, rightly it has been

held to be the exclusive property of the

respondents. As such, it has to rightly devolve on

the LRs of ACK exclusively.

19. Moving on to the Kamla Nagar property, the

Court finds that the findings, unearthed during

trial indicate that Rs.55,000/- (Rupees Fifty-Five

Thousand) was paid by the appellants’ side to the

respondents’ side. There is nothing on record to

indicate that it was paid for the upkeep of the HUF

or on some other account or to fulfil some other

purpose.

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20. The plea of the respondents that the said

amount was for the upkeep of the HUF does not stand

to reason for it is the admitted position that the

respondents or their ancestors were never living in

the Kamla Nagar property. Hence, there was no

occasion for the appellants to contribute a heavy

amount of Rs.55,000/- (Rupees Fifty-Five Thousand)

in the year 1979 for the upkeep and/or maintenance

of the said property to the respondents, when the

same was exclusively being enjoyed by the

appellants, who alone would be liable for its

maintenance. Moreover, there being disclosure by ACK

in his Wealth Tax Returns of the years 1964-1967

showing the valuation of the property to be around

Rs.38,000/- (Rupees Thirty-Eight Thousand) and

payment having been made in 1979 of Rs.55,000/-

(Rupees Fifty-Five Thousand) does not indicate that

it was undervalued as there has been a marked

increase in the valuation from Rs.38,000/- (Rupees

Thirty-Eight Thousand) to Rs.1,10,000/- (Rupees One

Lakh Ten Thousand) and payment made of 50% i.e., 17

Rs.55,000/- (Rupees Fifty Five Thousand), in 1979,

that too in a family settlement between ACK and RKK

cannot be labelled a totally sham consideration.

21. Further, the appellants having enjoyed

possession right from the time the property was

purchased and even letting out the premises to

tenants and collecting/taking rent from the tenants

without any claim raised at any point of time, would

also support the claim that ACK had not claimed any

right or title over any portion of the Kamla Nagar

property during his lifetime. Had that been the

case, there was no occasion for him not to take or

lay a claim to a 50% share in the rent given by the

tenants, which is clear from the finding recorded by

the High Court that there were tenants also in the

Kamla Nagar property; but the respondents never

claimed any share in such proceeds/ rent from the

tenants. The issue was agitated for the very first

time only by filing the suit before the Trial Court

in 1983.

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22. Thus, on an overall circumspection of the facts

and circumstances and upon going through the records

and submissions with the aid of learned counsel

appearing for the respective parties, the Impugned

Judgment inasmuch as it relates to the Kamla Nagar

property viz. RFA No.439 of 2008 stands set aside

and the Judgment and Decree passed by the the

Additional District Judge, Karkardooma Courts, Delhi

in Suit No.70/06/83 dated 28.07.2008 relating to the

Kamla Nagar property stands restored. It is further

held that the appellants are the exclusive owners of

the Kamla Nagar property described hereinbefore. The

Impugned Judgment insofar as it relates to RFA

No.483 of 2008 is upheld. Accordingly, Civil Appeal

No.1591 of 2020 is allowed and Civil Appeal No.1592

of 2020 is dismissed. Interim order(s) of status quo

stand vacated. Registry to draw up the Decree Sheet

accordingly.

23. The parties are left to bear their own costs. 19

24. IA No.59678 of 2023 for Early Hearing preferred

by the appellants in Civil Appeal No.1591 of 2020

does not subsist for consideration in view of the

aforesaid and is dismissed as infructuous.

....................J. [VIKRAM NATH]

....................J. [AHSANUDDIN AMANULLAH]

NEW DELHI MARCH 19,2024