G.R. Luthra, J.
(1) These three applications are being decided by the same order.
(2) The aforesaid applications are connected with Suit No. 498/83 filed by Ms. Sneh Lata Gupta. The suit is for partition of properties described in Schedules 'A' to 'C' attached with the plaint, rendition of accounts regarding income of those properties and appointment of receiver etc. These properties were left by B. D. Gupta who died on October 20, 1970 leaving behind three sons, four daughters and one widow. The plaintiff is one of the daughters of B. D. Gupta. Out of the remaining three, one was Mrs. Anita Kapur who died on 30th July, 1972 leaving behind a son Deepak Kapur and husband Suraj Kapur, defendants 13 and 12 respectively. The remaining two. daughters are Dr. (Mrs.) S. D. Singh and Ms. Prakash Gupta, defendants 10 and 11..
(3) Two of the sons are alive and they are defendants No. 1 and 2. The third son K. C. Gupta died on December 22, 1975 leaving behind defendant No. 5 as the widow and defendants 6 and 7 as sons and defendant No. 8 as daughter.
(4) Widow of B. D. Gupta is Smt. Vidyawati, defendant No. 9. Sons of S. K. Gupta, defendant No. 2, have been imp leaded as defendants 3 and 4.
(5) According to the plaintiff, she has l/8th share in the properties. She states that when her sister Mrs. Anita Kapur died, she left behind a Will in favor of her sister defendant No. 10, that thereforee, defendant No. 10 1/4th share in the properties. Her version is that both the remaining daughters have I '8th share and every one of the defendants 1, 2 and 9 have also l/8th share. Her allegations are that after the death of B. D. Gupta, all the heirs gave their power of attorney to defendant No. 1 Ramnik Gupta for managing the properties but that defendant betrayed the confidence reposed in him and started misappropriating the income of the properties aid that he had let out on a nominal rent of Rs 650.00 per month a very centrally located property at 1, Kasturba Gandhi Marg, New Delhi by way of changing hug premium (Pagree) although the rent was not less than Rs. 10,000.00 per month and that, thereforee, it is necessary that there should be partition of the properties as well as appointment of receiver. She also alleges that she is being threatened by defendant No. I that she would be thrown out of the portion of property No. 13, Jain Mandir Road, New Delhi where she is residing on account of which it is necessary that injunction should be issued for protecting her possession.
(6) I.A. 1546/83 is for appointment of receiver with the direction that the said receiver should take charge and control of all the properties mentioned in the Schedules A to C annexed to the plaint, for managing the said properties and depositing the rent in court. It is also prayed that the receiver should take charge of the business of M/s. Gupta Sports from defendants 1and 2, carry on the same and deposit the income in the court. The plaintiff further' prayed for issue of temporary injunction restraining defendants Nos. 1,2,6,7,9 and Ii from dispossessing her from the portion of house No. 13, Jain Mandir Road, New. Delhi. That portion has been shown as red in the plan attached with the plaint. The plaintiff also requests for issue of an injunction restraining the defendants from alienating or transferring the properties left by B. D. Gapta. The allegations contained in the said application are more or less the same as contained in the plaint. It is also alleged that defendant I is threatening to alienate the tenancy rights of the shop M/s. Gupta Sports House, F-25, Connaught Circus, New Delhi on charging heavy premium (pagree) and also he is misappropriating the income of the said shop.
(7) I.A. 2129/83, which was filed on May 9, 1983. is for issue of a temporary injunction restraining the defendants I to 6, 7, 9 and 11 from causing any interference in the fixation of a cooler in a window marked as 'B' in the plan prepared by the local commissioner and also restraining them from causing any obstruction to use of the telephone by the plaintiff or to the coming of the visitors, guests, colleagues and part-time servants.
(8) I.A. 3563/83 was filed by defendant No. 8, Ms. Chhaya Rani. It may be recalled that defendant No. 8 is daughter of late K. C. Gupta, one of the sons of late B. D. Gupta. This application is under Section 151 Civil Procedure Code . Defendant No. 8 was unmarried when her father K. C. Gupta died. She was about 14 years of age. She alleges that after the death of her father, she was forcibly evicted from a portion of 13, Jain Mandir Road, New Delhi, that since March 1980 she was residing with defendant No. 10 and that she had to seek employment to meet her expenses. She states that in order to marry and maintain herself, she had to incur the following loans :
2(i) To Mr. Hari Shankar Lal, 500, Desu Colony, Janakpuri, New Delhi. ... Rs. 4000.00 (ii) Dr. Rama Shankar, Lucknow ... Rs. 6000.00 (iii) To Dr. Hira Lal of Golf Links, New Delhi. ... Rs. 5000.00 (iv) To Dr. Ravindra Sachdeva of Darya Ganj, New Delhi. ... Rs. 10000.00 (v) To Sh. Vinod Juneja of Moti Nagar, New Delhi. ... Rs. 2500;- Rs. 27500.00
(9) She, thereforee, prays that defendants 1,2, 6 and 9 be directed that an accommodation either in 26, School Lane, New Delhi or 13, Jain Mandir Road, New Delhi, which are some of the properties left by her grand father B. D. Gupta, be provided to her and that further she should be paid a sum of Rs. 50,000.00 to be adjusted ultimately against her share.
(10) On April 6, 1983 on account of I.A. 1546/83, Leila Seth,J. issued a temporary injunction restraining the defendants from dispossessing the plaintiff from the portion of house No 13, Jain Mandir Road, New Delhi in which she was, at that time, residing and also from throwing away her goads. That injunction is still continuing.
(11) Defendants I to 5, 7, 9 and Ii filed a joint written statement to the plaint and reply to the aforesaid applications. They stated that all the properties were joint Hindu family ones and that they were not self acquired by B. D. Gupta According to them, thereforee, when B. D. Guptu died on October 20, 1970, he had only l/5th share which passed on by way of succession and that, thereforee, in that way share of the plaintiff was only l/40th. They cited the instance as to how defendant No. 10 Dr. (Mrs.) S.D. Singh acted upon the fact that the aforesaid properties were joint Hindu family once and applied for letter of administration for l/40th share of Ms. Anita Kapur on the basis of a Will and she got the same from the court of District Judge, Delhi. Their case is that every one of the three sons and widow of the deceased B. D. Gupta had 1/5 share and that B. D. Gupta in his life time had been assessed as member of Joint Hindu family for the purposes of income-tax and wealth-tax.
(12) They denied that defendant No. 1 abused his power as attorney or that he played fraud on the plaintiff or other heirs of B. D. Gupta, deceased. They also denied that defendant No. I indulged in any misappropriation of funds. They stated that on the other hand, defendant No.1 had well managed the properties and was able to save the property at 24, Curzon Road from having been entered into and taken possession of by the Land & Development Officer in respect of which B. D. Gupta had failed inspire of lot of expenditure incurred on litigation which went up to the Supreme Court. They add that the total gross rental income of the properties is about Rs. 32,000.00 per month, that after paying off house-tax, ground rent, income-tax and maintenance charges, the net income does not exceed to Rs. 15,000.00 per month which was all spent in the payment of the aforesaid income-tax dues, debts to creditors and meeting the loss in the sports shop in Connaught Circus. They allege that defendant No. I had also to spend Rs. 20.000.00 on the marriage of defendant No. 10. They denied that plaintiff was ever threatened of dispossession from 13, Jain Mandir Road, New Delhi. They, however, stated that plaintiff is not entitled to remain in possession of the entire portion alleged to be in her possession, that she is not entitled to lock the drawing room or to appropriate any one room exclusively for herself and that she can only place her necessary articles in one room. They also denied their liability to render accounts.
(13) The application of defendant No. 8 was at contested. They denied that defendant No. 8 incurred expenditure, as stated by her, or that she raised any loans. According to them, the present application by her had been filed at the instance of the plaintiff and defendant No. 10 to harass the remaining defendants. They also denied that she was forcibly evicted and they say that she is comfortably living with her husband in the house of her husband and that she is not entitled to any residence in the family house. According to them, defendant No. 8 before marriage was living with her brother in a room in 13, Jain Mandir Road, New Delhi and that she was not having an independent possession of any of the portions the said property.
(14) Defendant No. 10 supported the case of the plaintiff in its entirety. She filed an affidavit dated December 3, 1983. In that affidavit she admitted that she did file an application for grant of probate on the basis of Will of Mrs. Anita Kapur. She, however, explained as follows :
'SHRIRamnik Gupta falsely represented that Shri B. D. Gupta was assessed as member of the Huf and also represented that in case defendant No. 1O/deponent took the position that he was owner in his individual right and the other heirs had l/8th share each, in that event, Shri Indra Chand Jain, one of the tenants of the property who had an agreement of sale in respect of share of Shri S. K. Gupta, would be benefited. He also assured that so far as parties were concerned, there could not be any contusion that . they had l/8th share each. However, in order to safeguard the properties from outsider and in order to save income-tax, and estate duties, Shri B.D. Gupta should be shown as Karta of HUF. Deponent being not conversant with law was swayed away by the false representation of her brother Ramnik Gupta and filed the said application for grant of probate.'
(15) I have heard counsel for the parties. There are strong indications. that all the properties were self acquired of B. D. Gupta. It is well settled law that if a property stands in the name of a person, the same is to be treated as his self acquired property and it is for the person alleging the same to be that of Huf, has to prove that fact.
(16) The defendants (other than defendant No. 10) rely upon an affidavit of Smt. Vidyawati, defendant No. 9, who is widow of B.D. Gupta. is that affidavit, defendant No. 9 stated that she was informed by her husband as to the history of acquisition of properties and his family as follows. Rattan Sain, father of B.D. Gupta, was member of a joint Hindu family along with his brothers. The business of that joint family was commission , and trading in food grains in village Gangoh, district Saharanpur. Rattan Sain died at an early age. At the time of his death.. his two brothers were minor. They had been separated by Rattan Sain during his life time. Elder brother of B.D. Gupta joined service. When B.D. Gupta died, none of his brothers was living with him and only his mother was with him. After marriage B.D. Gupta and defendant No. 9 shifted to Panchkuin Road, which was the residence of father of defendant No. 9. Then B.D. Gupta started the business of sports goods under the name M/s. Gupta Sports House at New Delhi and also the business of exhibition of films at Delhi. These businesses were started with the help of joint family funds, and with the help of his father-in-law (father of defendant No. 9). In due course of time B.D. Gupta was able to establish a unit of manufacturing sport goods- at Syalkot (now in Pakistan) and retail sale shops at New Delhi, Dehra Dun and Mussoorie. With the help of joint family funds, he acquired immoveable properties at various places including New Delhi. thereforee, all the properties whether moveable or immoveable and the aforesaid sport business belonged to joint Hindu family.
(17) The aforesaid affidavit was contradicted by affidavit dated 8th December, 1983 of Dr. (Mrs.) S.D. Singh, defendant No. 10. She stated that Rattan Sain was a very poor man, that he had very large family to support and that he did not own any shop. It is averred that Rattan Sain was. a petty broker and used to earn very meagre income which was not even sufficient to make both ends meet, that when he died he left behind 3 sons, one daughter and a widow and that B.D. Gupta was merely a student of 8th or 9th class at the time of death of his father. According to her, on account of poverty neither B.D. Gupta nor his brothers could get proper education. She narrates that B.D. Gupta was employed with some building contractor and there were no joint family funds with him and that it was on account of his own individual earnings that he acquired the properties from time to time and that the title deeds in respect of the immoveable properties were all in his name.
(18) Smt. Vidyawati, defendant No. 9, again filed an affidavit dated 4th January, 1984 as a rejoinde, to the affidavit of Dr. (Mrs.) S.D.Singh. In that affidavit it has been repeated that it was with the aid of joint Hindu family funds that B.D. Gupta was able to establish his business and acquired properties. It was admitted that B.D. Gupta studied up to 8th or 9th class but explained that the education up to that class only was available at village Gangoh where he was residing with his parents and, thereforee, he could not get further education.
(19) It is apparent that Smt. Vidyawati does not have any personal knowledge. She depends upon information received from her husband B.D. Gupta. It is doubtful if that statement is relevant and admissible in evidence. Statements of persons who cannot be called as witnesses on account of death etc. are relevant under Sections 32 and 33 of the Evidence Act. But none of those provisions applies. Then the information alleged to have been received by defendant No. 9 from B.D. Gupta is very vague and indefinite. It does not specify exactly what were the joint family funds. Then, statement of Widya Wati to the effect that she and her husband B.D. Gupta shifted to her parents' house and started business of sports with financial help of her parents gives an indication that it were her parents who made B.D. Gupta to establish himself in the business and otherwise he had nothing ancestral to depend upon.
(20) The plaintiff has placed on record a number of documents for the purpose of showing that immediately after the death of B.D. Gupta, the defendants were treating the properties as self acquired of the deceased and were claiming equal shares in the said properties. I am only mentioning important out of such documents. First of all, three powers of attorney are worthy of mention. The first power of attorney seems to be dated 2nd November, 1970. Vide that defendant No. I was authorised to collect rents and to carry on litigation in respect of properties left by B. D. Gupta. There is no mention at all that the properties were joint Hindu family properties. All the sons other than defendant No. I, daughters including the plaintiff and the widow describe themselves as heirs of B.D. Gupta. Then there are two other powers of attorney. One is dated 16th March without mentioning any year and in the other no date of execution is mentioned. In both these it is stated that all the aforesaid heirs had equal shares in the properties left by B.D. Gupta. The shares could be equal only if the properties were self acquired. Then there is a deed of mortgage dated 23rd May, 1955 in respect of property No. 1, Curzon Road, New Delhi. In the said deed there is a recital which reads as under :-
'WHEREAS the Mortgagor has erected superstructures on the said plot with his own money and is absolute owner thereof, free of all incumbrances, except as hereinafter mentioned.'
The aforesaid recital clearly shows that B.D. Gupta acquired the property with his own funds and not with the funds of H.U.F.
(21) All the heirs of B.D. Gupta including defendant No. 1 brought a petition for eviction of tenant from 1, Curzon Road, New Delhi. Photostat copy of that petition is Ex. PI. That petition was filed on 12th May, 1971 in the Court of Rent Controller, Delhi. In the petition there is no mention that the property was joint Hindu family property and the 8 heirs at that time described themselves as owners of the property. Had the properties belonged to the joint family, Karta could have very well brought the eviction petition.
(22) On the other hand, the defendants I to 4, 6,7,9 and 11 relied upon a copy of the petition filed by defendant No. 10 for obtaining probate of a Will dated 9th June, 1971 of Smt. Anita Kapur. In that defendant No.10 stated that A'lita Kapur had l/40th share in the properties left by B.D.Gupta. Reliance is also on photostat copy of an order dated 3rd August, 1973 of Appellate Assistant Commissioner of Income-tax and copies of assessment orders of Income-tax Officer. It has already been mentioned that according to defendant No. 10, it was on account of misrepresentation and fraud that in the aforesaid application for grant of probate, share of Mrs.Anita Kapur was mentioned as l/40th. There is great probability of the truth of that Explanationn. thereforee, in the absence of circumstances already mentioned, this admission on the part of one of the co-sharer cannot be sufficient to hold the property as belonging to Huf, and not self acquired of B.D. Gupta.
(23) The reliance of the contesting defendants is on an order dated 3rd August, 1973 of Appellate Assistant Commissioner of Income-tax (ShriR. M. Bhagat). One of the grounds raised before the said Appellate. Assistant Commissioner was that it had been wrongly found by the Income-tax Officer that status of B. D. Gupta was individual and that correct status was that of HUF. It was held that the said contention was correct. The afore said order rather goes against the contesting defendants because the said order was passed three years after the death of B. D. Gupta and by that time defendant No. I might be manoeuvring to get such order passed.
(24) Then in some of the wealth-tax returns the status of B. D. Gupta is mentioned as HUF. Reliance is also on release-deed dated 18th June,1973. The wealth-tax returns cannot have much importance having regard to the admission of equal shares of the sons, daughters and widow of B. D. Gupta in the powers of attorney in favor of defendant No. 1. The contesting defendants have placed on record photostat copies of some powers of attorney dated 13th October, 1976 and 30th September, 1976. Very execution of the powers of attorney by the co-sharers indicate that there was an admission that defendant No. I had no right to manage and that his contention that he is Karta of Huf is wrong.
(25) Under these circumstances, plaintiff has prima facie case and without prejudice to the decision of the case on merits she has l/8th share in the properties. Defendant No. 10, without prejudice to the decision of the case ultimate on merits, has 2/8th share. Actually, the plaintiff has prima facie case otherwise also because it is admitted case that she is a share-holder in the properties in dispute and the dispute is as to extent of share.
(26) The complaint of the plaintiff and defendant No. 10 is that inspire of good income from the properties nothing is being paid to them by defendant No. 1 who is managing the entire properties and business. According to defendant No. I, nothing could be paid because lot of funds were required for the purpose of liquidating the income-tax and sales-tax dues and debts due from B. D. Gupta. But he should have at least given account to the co-sharers before spending so much when as mentioned in para 14 of the written statement there is a gross total income of Rs. 32,000.00 per annum from the rent alone. It is stated in that paragraph of the written statement that after paying ground rent, house-tax, income-tax and maintenance charges, the income does not exceed Rs. 15,000.00 per annum but it is hardly conceivable that a sum of Rs. 17,000.00 per annum is spent on those items. Under these circumstances it is necessary that the interest of all the co-sharers in this respect is looked after. Then, it is not disputed that a portion of I, Curzon Road, (Now called as Kasturba Gandhi Marg) was let out on a rent of Rs. 650.00 p.m. The allegation of the plaintiff is defendant No. 1 received huge amount of premium for letting out that valuable property on a nominal rent. Without prejudice to the decision of the case ultimately on merits it appears that. the rent is quite nominal and there is probability that defendant No. I must have some ulterior considerations, may be acceptance premium (pagree) for letting out that property. Hence, it is necessary to appoint a receiver for protecting the interest of all the co-sharers. It is very important to note that, as has been prima facie found above, the plaintiff and defendant No. 10 by themselves constitute co-sharers to the extent of 3/8th share which is a little less than half.
(27) According to defendant No. I there are losses in the business of M/s. Gupta Sports House. Connaught Circus, New Delhi. thereforee, that business will have to be taken over aid managed under the supervision of the receiver. I am told that defendant No. I is merely supervising that business and actually day to day business is being done by some trusted employees. thereforee, it will be easy for the receiver to manage by way of looking into the accounts and ensuring that there is no pilferage. However, it may be mentioned that it will be open to the receiver to bring about any change in the employees and sport business, of course, with the permission of the court.
(28) Now I take up application of defendant No. 8. Her marriage must have cost substantial amount. The case of the contesting defendants is that she did not spend anything but that is hardly believable.
(29) However, the question is, can lump sum be awarded to defendant No. 8 and who is to be made liable for the same. Learned counsel for the defendant relied upon a judgment of the Delhi High Court in Chander Kishore and others v. Nanak Chand and others, : AIR1975Delhi175 . The proposition of law laid down in that case is that an unmarried daughter of a Hindu is entitled to be maintained and also paid by her father reasonable expenses of her marriage under Section 20 of the Hindu Adoption and Maintenance Act and that such a relief can be given to her as an interim treasure in exercise of inherent powers of the court under Section 151 of the Code of Civil Procedure during the pendency of a partition suit. That judgment, was followed by me in my judgment dated November 3, 1983 in Sachin Gupta & others v. B.S. Gupta, Suit No. 727/83. But the aforesaid judgments are applicable only to a claim of a daughter against her father. There are not applicable to claim of a female against her male or female relatives. The reason is that those authorities are based on Section 20 of the Hindu Adoption and Maintenance Act which only describes the obligation of the parents. There is no other law which prescribes the liability of female or male relatives qua the property. There is no doubt that defendant No. 8 is entitled to her share in the income of the properties but no directions can be given that she should be paid lump sum as claimed by her. Under these circumstances the application is liable to be dismissed.
(30) I, thereforee, dismiss the application of defendant No. 8, being I.A. 3563/83 and that application stands disposed of. However, it is made clear that she is entitled to her share in the income of the properties.
(31) I accept both the remaining applications which are I.A. Nos. 1546 and 2129 of 1983 and direct appointment of receiver. The receiver will be named on February 21, 1984. He will have to collect the rent from all the tenants, maintain accounts and make disbursement regarding expenditure of the property. There will also be quarterly distribution of the net income in accordance with undisputed shares of the parties and the said distribution shall be subject to the final determination of shares to be made in the preliminary decree. The extent of shares in respect of which there is no dispute is as under: Defendant No. I Defendant No. 2 for himself and his sons, defendants 3 & 4 Every one of defendant Nos. 5 to 8 Defendant No. 9 Defendant No. 10 Defendant No. 11 The receiver shall render quarterly accounts, l/8th share l/8th share l/32nd share l/8th share 2/40th share . l/40th share
(32) Defendant No. 1 shall hand over the names of all the tenants and names of the employees of the sport business at Connaught Circus by February 21, 1984. He (defendant No. 1) shall not take away any goods from the sport business at Connaught Circus. With a view to stop his taking away the goods or the account books I appoint Shri B.L. Anand, Advocate as the local commissioner for going to the said shop (M/s. Gupta Sports House, F25, Connaught Circus, New Delhi), making inventory of the goods and account books lying there and signing the first and last page of the account books after paging them and making a report to the court by the aforesaid date. The local commissioner shall also report about the cash in hand,
(33) The fee of the local commissioner is fixed at Rs. 750.00 . For the present that amount shall be paid by the plaintiff but that will be reimbursed to her if there is a margin to get that money from the shop or on receipt of income from the properties and this re-imbursement of the plaintiff will take place as top most priority expenditure.
(34) The injunction already issued on the basis of I.A. 2129 of 1983 is made absolute till the decision of the suit, because that is absolutely necessary for the residence of the plaintiff. 34 All the applications (I.A. Nos. 1546, 2129 and 3563 of 1983) stand disposed of. Suit No. 498183 List it for further proceedings on 21st February, 1984.