* Author
[2024] 3 S.C.R. 838 : 2024 INSC 224
Jugal Kishore Khanna (D) Thr. Lrs. & Anr.
v.
Sudhir Khanna & Ors.
(Civil Appeal No. 1591-1592 of 2020 )
19 March 2024
[Vikram Nath and Ahsanuddin Amanullah,* JJ.]
Issue for Consideration
Whether the High Court erred in finding without any evidence
that the amount alleged to have been paid as the value of
share in Joint Hindu Family property is not so but for some
other purpose.
Headnotes
Partition Suit – Predecessors of Appellants and Respondents
- the elder (“RKK”) and younger (“ACK”) brother respectively
– two properties purchased by RKK – (i) Kamla Nagar property
in the name of his father (ii) Malcha Marg property in the
name of ACK’s wife and constructed house out of Joint Hindu
Family Business, Regal Cinema - After RKK’s death ACK raised
claim in Kamla Nagar property – Oral Settlement between
Appellants and ACK and value of latter’s share fixed at Rs.
55,000/- (Fifty-five thousand only) – The same was paid – Suit
filed by Respondents to partition properties in Kamla Nagar
and Shimla- Appellants raised partial partition in respect of
Malcha Marg property – Trial Court partly decreed the suit by
only allowing the respondents’ claim in Malcha Marg property
– Both parties approached High Court with separate Appeals
– Both Appeals decided in favour of respondents – Thus, the
two instant Appeals.
Held: With respect to the Malcha Marg property, the concurrent
findings of the Trial Court and High Court that it belonged
exclusively to the Respondents was upheld, for lack of evidence
to prove that the same was purchased out of joint family funds
– Whereas, in regard to the Kamla Nagar property, both Trial
Court and High Court, from the evidence on record, found that
there was a payment of Rs. 55,000/- (Rupees fifty-five thousand
only) by appellants to the predecessor of respondents – It can
[2024] 3 S.C.R. 839
Jugal Kishore Khanna (D) Thr. Lrs. & Anr. v.
Sudhir Khanna & Ors.
also be seen from the evidence that the appellants exclusively
enjoyed the property from the date of its purchase, It is also true
that the property was let out and rent was collected entirely by
appellants – Wealth Tax Returns of ACK from 1964-1967 shows
valuation of Kamla Nagar property to be Rs. 38,000/- (Thirty-eight
thousand only) – In year 1979, the value ought to have increased
to Rs.1,10,000/- (One lakh ten thousand only) – As contended by
the appellants, there was nothing on record to indicate that the
payment of a hefty sum of Rs. 55,000/- in the year 1979, was for
the upkeep of the HUF or on some other account or to fulfil some
other purpose but towards value of the half right held by ACK in
the property. [Paras 18, 19-21]
List of Acts
The Registration Act, 1908.
List of Keywords
Partial partition; Oral settlement.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.1591 of 2020
From the Judgment and Order dated 06.12.2013 of the High Court
of Delhi at New Delhi in R.F.A. No.439 of 2008
With
Civil Appeal No.1592 of 2020
Appearances for Parties
Akshay Makhija, Sr. Adv., Arjav Jain, Adarsh Chamoli, Shashank
Shekhar, Ronak Baid, Chander Shekhar Ashri, Advs. for the
Appellants.
S. C. Singhal, Vibhav Mishra, Ms. Megha Gaur, Parmanand Gaur,
Tushar Bakshi, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Ahsanuddin Amanullah, J.
Heard learned counsel for the parties.
840 [2024] 3 S.C.R.
Digital Supreme Court Reports
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 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 - 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
1 2013 : DHC : 6299 | 2013 SCC OnLine Del 4916.
2 Defined infra.
3 Defined infra.
[2024] 3 S.C.R. 841
Jugal Kishore Khanna (D) Thr. Lrs. & Anr. v.
Sudhir Khanna & Ors.
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 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.
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 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,
842 [2024] 3 S.C.R.
Digital Supreme Court Reports
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 FiftyFive Thousand) to the LRs. In support of his contention, learned
counsel further submitted that 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 IncomeTax Department to show the same, which is another indicator that
ACK had not claimed any part 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 totally erroneous and presumptuous since
[2024] 3 S.C.R. 843
Jugal Kishore Khanna (D) Thr. Lrs. & Anr. v.
Sudhir Khanna & Ors.
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 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.
15. Learned counsel drew the attention of the Court to the crossexamination 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,
844 [2024] 3 S.C.R.
Digital Supreme Court Reports
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 that any document or transfer or assigning any
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;
(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
(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
[2024] 3 S.C.R. 845
Jugal Kishore Khanna (D) Thr. Lrs. & Anr. v.
Sudhir Khanna & Ors.
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 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:
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 FiftyFive 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.
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
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.’
846 [2024] 3 S.C.R.
Digital Supreme Court Reports
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., 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.
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
[2024] 3 S.C.R. 847
Jugal Kishore Khanna (D) Thr. Lrs. & Anr. v.
Sudhir Khanna & Ors.
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.
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.
Headnotes prepared by: Result of the case:
Swathi H. Prasad, Hony. Associate Editor Civil Appeal No.1591 of 2020
(Verified by: Liz Mathew, Sr. Advocate) allowed and Civil Appeal No.1592
of 2020 dismissed.
