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Sunita Rekhi and Another Vs. Y.D. Puri and Others - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberI.A. No. 4929 of 2012 & I.A. No. 11311 of 2016 in CS(OS) No. 1789 of 2006
Judge
AppellantSunita Rekhi and Another
RespondentY.D. Puri and Others
Excerpt:
.....under: 25. as far as the admissions made on behalf of defendant no.2 by filing of joint original written statement are concerned, the same cannot be allowed to be withdrawn. the same have to be intact. however, the party cannot be refused to raise new grounds of defence or substitution of a new ground of the defence or taking inconsistent pleas in the written statement while considering the application for amendment and the parties raising the same has to prove it in evidence as per law. it is settled law that while considering the application for amendment, merit cannot be gone into. 27. the defendant no.2, under these circumstances, is not allowed to withdraw the said admissions already made in the original written statement. the same would be kept intact, however, the application.....
Judgment:

Manmohan Singh, J.

1. By order dated 2nd December, 2015, an application, being I.A. No.4929/2015, under Order VI Rule 17 CPC filed on behalf of the defendant No.2 Mrs.Raj Puri was partly allowed. The relevant paras 25 and 27 read as under:

25. As far as the admissions made on behalf of defendant No.2 by filing of joint original written statement are concerned, the same cannot be allowed to be withdrawn. The same have to be intact. However, the party cannot be refused to raise new grounds of defence or substitution of a new ground of the defence or taking inconsistent pleas in the written statement while considering the application for amendment and the parties raising the same has to prove it in evidence as per law. It is settled law that while considering the application for amendment, merit cannot be gone into.

27. The defendant No.2, under these circumstances, is not allowed to withdraw the said admissions already made in the original written statement. The same would be kept intact, however, the application for amendment is disposed of to the extent of allowing defendant No.2 to raise the alternative pleas in the amended written statement. The said proposed pleas raised by defendant No.2, however, have to be proved as per law in evidence. The Court is not expressing any opinion on the evidence filed in support of grounds of additional plea in the amendment application on merit.

2. The said order was challenged by Mr.Vinod Puri, the defendant No.3 in the present suit, before the Division Bench in appeal, being FAO (OS) 11/2016. The said appeal was disposed of with the following direction:

Thereafter, we are remitting this matter to the learned Single Judge to specifically point out as to which portions of the proposed amendments have been allowed and which portions have not been allowed. We are, consequently, disposing of this appeal and direct that the matter be placed before the learned Single Judge who had delivered the said judgment in the first instance on 22.01.2016.

The learned Single Judge shall clearly indicate as to which portions of the proposed amendments have been allowed and which portions have not been allowed. On such clarification being obtained, it would be open to the parties to file an appeal if they are aggrieved therefrom including the grounds which have been taken by the appellant in the present appeal.

3. Pursuant to order passed by the Division Bench, the defendant No.3 had handed over a chart to the Court on 22nd January, 2016 in order to identify the admissions made by the defendant No.1. It appears that subsequently, defendants No.4 and 5 also filed their respective applications under Order VI Rule 17 CPC to seek amendments in their respective written statements. At one stage, the matter was also sent to the Mediation Centre for settlement.

4. As far as fresh applications filed by the defendants No.4 and 5 are concerned, I am not inclined to decide the same. I am only inclined to deal with the original application i.e. I.A. No.4929/2012 in view of the order passed by the Division Bench. Rest of the applications will be considered by the Roster Bench.

5. Mr.G.L. Rawal, learned Senior counsel appearing on behalf of the defendant No.2, has made his submissions.

6. Even the defendant No.3 has filed a fresh application, being I.A. No.11311/2016 under Section 151 CPC, praying therein not to take on record the draft amended written statement dated 17th May, 2016 being in contravention of order dated 12th January, 2016 passed by the Division Bench. Counsel for the defendant No.3 stated that the amendments be allowed in original written statement filed by the defendant No.2 in accordance with order dated 12th January, 2016 and not otherwise.

7. As far as the submission of defendant No.3 in this regard is concerned, the arguments of the learned counsel for the contested defendant No.3 is that the applicant/defendant No.2 contrary to the earlier order passed has withdrawn all admission, made in the original written-statement and added new paragraphs which were never proposed.

8. In support of his submission, the counsel for the defendant No.3 has mentioned all the relevant details earlier as well as in the fresh application being I.A. No.11311/2016 filed under Section 151 CPC by way of comparative chart.

9. It is true at present that the scope of this Court is very limited as the Division Bench while passing the order dated 12th January, 2016 has remanded back the application to the extent to point out as to which portions of the proposed amendment were allowed and which portions have not been allowed. I agree with the submission of the learned counsel for the defendant No.3 that the admissions made in the original written-statement cannot be allowed to be withdrawn. Even the defendant No.2 is not entitled to add the new paragraphs in the original application which were not proposed earlier and the same was suggested by the defendant No.2 in the proposed draft written-statement.

10. In view of the submissions made by the parties and after having gone through the orders of the Division Bench, I specify the following details with regard to allowing the application for amendment of written-statement which shall remain intact:

i) In para 4 (4) of the original written statement the portion situated at 10-A, Ring Road, Lajpat Nagar-IV, New Delhi-110024 was purchased by Defendant No.1 from his own funds .

ii) In para 5 of the original written statement the portion the said property at 10-A Ring Road, Lajpat Nagar-IV, New Delhi-110024 was purchased by Defendant No.1 from his income in his individual name.

iii) In para 6 of the original written statement the portion the said property at 10-A Ring Road, Lajpat Nagar-IV, New Delhi-110024 was purchased by Defendant No.1 from his independent and individual earnings in his individual name and the portion property was purchased by defendant No.1 and was his exclusive property. Defendant No.1 had the exclusive right to deal with the said property and has dealt with the same by executing a Gift deed dated 10.10.2005 in favor of Defendant No.3 by virtue of which Defendant No.1 has gifted the said property exclusive to defendant No.3. Annexure -E is a copy of the gift deed and Annexure -F is a copy of letter dated 11th November 2005 received from the L and DO mutating the property in the name of defendant No.3 as per the wishes of defendant No.1 .

iv) In para 11 of the original written statement the portion It is submitted that Defendant No.1 has been assessed to Income Tax as an individual since 1945 being in service and has purchased property at 10-A Ring Road, Lajpat Nagar-IV, New Delhi - 110024 and raised the construction thereon from his own individual earnings. and the portion It is reiterated that property No. 10-A Ring Road, Lajpat Nagar-IV, New Delhi - 110024 and the construction raised thereon was from the independent income of Defendant No.1 and not any alleged joint family bbusiness.

v) In para 12(a) of the original written statement the portion The two shareholders then decided to go their separate ways and as an adjustment of the Company's accounts and assets, Kiran Cinema fell to the share of Defendant No.1 while the Cinema at Hissar fell to the share of Shri Rajeshwar Prasad.

vi) In para 16 of the original written statement the portion Defendant No.1, has out of his free will and in consideration of the support given to him by Defendant No.3 at all times during his old age has gifted the said property bearing No.10-A Ring Road, Lajpat Nagar-IV, New Delhi-110024 to his elder son Defendant No.3.

vii) In para 17 of the original written statement the portion Defendant No.1 who is the sole and exclusive owner of property bearing No.10-A Ring Road, Lajpat Nagar-IV, New Delhi-110024 has executed a registered Gift Deed in favour of his elder son Defendant No.3. The said gift deed is not unlawful or illegal as alleged. It is denied that property bearing No.10-A Ring Road, Lajpat NagarIV, New Delhi-110024 was purchased from joint family funds for the benefit of joint co-ownership of all members of the family. The said assertion is negated from the contents of the plaint and the documents filed by the plaintiff. The plaintiff is put to strict proof of the same. It is denied that the gift deed is a nullity or liable to be declared void and/or cancelled and /or set aside. The Gift Deed is binding on Defendant No.1 whose property it is and has been executed in favour of Defendant No.3 of his own will.

viii) In para 19 of the original written statement the portion Regarding Para 19 It is submitted that as the Plaintiffs have no right to the property at 10-A Ring Road, Lajpat Nagar-IV, New Delhi-110024, and the said property is the sole and exclusive property of Defendant No.3 by virtue of the Registered Gift Deed executed by Defendant No.1, the said Plaintiffs cannot claim any right or interest in the said property and Defendant No.3 as the rightful owner would be at liberty to deal with the same in any manner.

ix) In para 22 of the original written statement the portion It is submitted that the Gift Deed is a validly executed Registered Deed by an owner of the property (Defendant No.1) in favour of his eldest son (Defendant No.3) and as such cannot give rise to a cause of action as alleged.

11. With regard to additional averments mentioned in the amended written statement in terms of I.A. No.4929/2012, the same is taken on record in the following manner:

a) In para 4(4) The property situated at 10-A, Ring Road, Lajpat Nagar-IV, New Delhi-110024 was purchased jointly by Defendant No.1 and 2 though sale deed was made in the name of Defendant No.1. It is stated that entire consideration amount of Rs.36.750/- was paid from joint account no. 8618 which Defendant No.1 and 2 were maintaining with Punjab National Bank, Minto Road. New Delhi."

b) In para 4(5) Defendant No.2 was earning her own income since 1955, amongst others by way of interest, insurance agency commission, share dividend, director fees and she was also involved in distribution business of pictures. Defendant No.1 was an income tax assessee since 1960-61 and was assessed and filed her returns as an individual and continues to do so. The said property at 10-A Ring, Road Lajpat Nagar-IV, New Delhi-110024 was purchased by Defendant No.1 and 2 jointly as stated above. The construction on the said plot was completed in 1963 and for the said purpose substantial funds were withdrawn from the aforesaid joint account. Defendant No.2 was and continues to be the owner of 50% share of the property bearing No.10-A, Ring Road, Lajpat Nagar-IV, New Delhi-110024."

c) In para 5 the family was supported from the individual an independent income of Defendant No. 1 and 2 who were earning and filing their individual returns since 1945 and 1960 respectively. Hereto annexed and marked as Annexure-C(Colly) are the Income Tax assessment forms of Defendant No.1 from the assessment Year 1945-46 to 1975-76. [Annexure-D (Colly) are the relevant wealth tax orders. Statutory returns/records of Defendant No.2 by way her income tax returns, assessment orders and otherwise are also placed on record. ]

d) In para 6 The allegation that the property at 10-A, Ring Road, Lajpat Nagar-IV, New Delhi-110024 was purchased by Defendant No.1 and 2 jointly as detailed here in above. The property was purchased by Defendant No.1 and 2 and was their exclusively property belonging to both Defendant No.1 and 2 in equal share. In these circumstances, Defendant No.1 did not have exclusive right to deal with the said property though no doubt to the extent of his 50% share. The alleged gift deed dated 10th October, 2005 executed in favor of Defendant No.3 is unlawful. In alternate it is submitted that Defendant No.1 did not have any right to gift the said built property over and above his 50% share as detailed above. Mutation in the name of Defendant No.3 has no legal footing as Defendant No.1 was owner equally with Defendant No.2 of the said property.

e) In para 7 Contents of para 7 need no reply. It is however denied that Defendant No.1 and 2 did not have any independent source of income or that the said Defendant No.1 and 2 were not an Income Tax Payee.

f) In para 11 was denied that the income from the partnership firm constituted joint family business of the Y. D. Puri Family. It is denied that the income from this partnership was the source of income of the alleged joint family. It is denied that Defendant No.1 and 2 did not have independent source of income. It is denied that Defendant No.1 and 2 were not Income Tax Payee. The Defendant No.1 and 2 were assessed to Income Tax in their individual capacity as stated above. The property at 10-A Ring Road, Lajpat Nagar-IV, New Delhi was purchased from the joint funds of Defendant No.1 and 2 as stated above and substantial amounts for construction thereupon were withdrawn from the joint account of Defendant No.1 and 2 as stated above. It is reiterated that the property No. 10-A, Ring Road, Lajpat Nagar-IV. New Delhi - 110024 and the construction raised thereon was from the income of Defendant No.1 and 2 as stated above and not from any alleged joint family business.

g) In para 12(a) Contents of the para under reply are incorrect and are denied. True and correct position is that M/s Jai Hind Picture Co (Private) Ltd initially was the owner of Raj Cinema (which was earlier known as Kiran Cinema). On 28th October, 1960 Defendant No 2 had purchased 16 shares of the said company for a consideration of Rs. 4,800/- from Sh. Rajeshwar Prashad by withdrawing money from her personal bank account No. 8863 which she had with Punjab National Bank, Minto Road, New Delhi Defendant No.2 otherwise was rich women as she belonged to rich family even prior to her "marriage and was given substantial dowry. Even otherwise Defendant No.2 was earning her personal income since l955-56, amongst others by way of interest, insurance agency commission, share dividend, director fee and she was also involved in the distribution business of pictures. Defendant No.2 sold the said 16 shares to Smt Yeshwant Kumari for Rs.1,15,555.52/- on 14th March, 1967 in cash on which she earned capital gain. The said transaction was duly reflected in her individual income tax return for the year ending 31st March, 1967. The Defendant and she was earning interest thereupon, which is reflected from her tax returns/assessment orders. Defendant No.2 encashed the said deposits and received Rs.42,167.74/- on 14th March, 1967. Accordingly on 14th March, 1967 Defendant No.2 received in all Rs.1.57 Lacs (approx). Defendant No.2 purchased Raj Cinema with land there under for Rs 1.50 Lacs from her own income as stated above. Defendant No. 2 purchased Raj Cinema with land there under by means of Sale Deed dated 14 th March, 1967 which was registered with concerned Sub Registrar on 14th March, 1967 itself. In the Income Tax Return of 1967-68 (Financial Year) of Defendant No.2 it is duly reflected/explained that Defendant No. 2 had purchased Raj Cinema detailed herein above by selling her shares and encashment of her deposits."

h) In para 12(b) Contents of the para under reply are incorrect and are denied. True and correct position is that the Defendant No. 2 has purchased the said 15 bighas of land at Gurgaon vide sale Deed dated 28th July, 1970 from her funds only. The Defendant No.2 was having substantial income which was duly reflected in her statutory returns which were filed in the capacity of an individual. The Defendant No.2 has always been the owner of Raj Cinema and 15 bhigas land at Gurgaon as the same are herself acquired and absolute properties which she purchased from her own funds only."

i) In para 16 As stated above, the subject Lajpat Nagar property was purchased jointly by Defendant No. 1 and 2. The alleged gift deed dated 10th October, 2005 executed in favour of Defendant No.3 is unlawful. In alternate, it is submitted that Defendant No.1 did not have any right to gift the said built property over and above his 50%share. Even otherwise the said gift deed is a result of manipulations done by Defendant No.3".

j) In para 17 Regarding para 17, it is submitted that Defendant No.1 and 2 have been the sole and exclusive owner of the property bearing No. 10-A,Ring Road, Lajpat Nagar IV. New Delhi-110024. The alleged gift deed dated 10th October, 2005 executed in favour of Defendant No. 3 is unlawful. In alternate it is submitted that Defendant No. 1 did not have any right to gift the said built property over and above his 50% share as detailed above. Detailed submissions made herein above are reiterated.

k) In para 19 Contents of para 19 are incorrect and denied. In reply to the contents of this para detailed submissions made herein above in respect to the subject Lajpat Nagar property are reiterated."

l) In para 22 Contents of para 22 are incorrect and denied. In reply to the contents of this para detailed submissions made herein above in respect to the subject Lajpat Nagar property are reiterated.

12. The said averments and contents may be included in the amended written statement and the same is to be proved by the defendant No.2 in accordance with law despite of admissions made in the original written statement.

13. With regard to additional pleas taken in the draft written statement filed in July, 2016, I agree with the submission of the learned counsel for the defendant No.3 that the same cannot be added/incorporated in the amended written statement unless the defendant No.2 seeks further amendment by way of incorporation of such details. As and when such application is filed in that respect, the same has to be considered on merit. Without seeking amendments in the said portions, the additional averments made in the draft written statement cannot be allowed.

14. Under these circumstances, the defendant No.2 is allowed to file the written statement in accordance with the above said paras. The application, being I.A. No.4929/2012, is disposed of.

15. In view of order passed in I.A. No.4929/2012, the application, being I.A. No.11311/2016, filed by the defendant No.3 is also disposed of.

CS(OS) No.1789/2006

List before the Roster Bench on 9 th November, 2016. In the meanwhile, defendant No.2 is allowed to file the written statement in terms of the order passed by the Court.


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