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TMI Blog2009 (9) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... hu Ram Jain also started earning. According to the Plaintiff, all the sons handed over to their respective incomes to their father because the family was a joint Hindu family. 3. The father of the parties established a hosiery factory to begin with, in the residence and later shifted the factory to a residential flat in Kamla Nagar, Delhi. The Plaintiff states that while still pursuing his studies he helped his father part-time in the business. Later the Plaintiff took up employment with the National Physical Laboratory. 4. It is stated that in 1953 the eldest brother Tilak Chand Jain was made a member of the Vardhman Co-Operative House Building Society ( Society‟) by the father of the parties for the purposes of obtaining a residential plot. The father late Shri Badri Nath Jain also paid for another plot in the Society. This amount was credited to the account of Tilak Chand Jain. It is stated that Badri Nath Jain died of heart attack in February 1957 and till then the payments for the two plots in the Society were made by him. The family of the Plaintiff remained a joint one till the year 1962 when the Plaintiff‟s only sister got married. By then all the brothers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 10th April 1992 towards membership of the Society. It is claimed that the Plaintiff thus contributed more than the Defendant in making payment for the Society plot. The Society allotted a plot bearing No. 11, Arihant Nagar, Delhi-110026. According to the Plaintiff, both he and the Defendant decided to jointly build a house thereon. The building plan submitted to the Delhi Development Authority ( DDA‟) was for two equal and vertically symmetrical portions in the anticipation that both the Plaintiff and the Defendant would be living in their respective portions. The DDA, however, did not sanction this plan and made changes in it in order to make the building asymmetrical. According to the Plaintiff, the building was nevertheless constructed in a symmetrical manner in violation of the approved plan. 7. It is stated that the Plaintiff took active part in the construction, contacted the building contractors, material suppliers, the Delhi Vidyut Board, and made most of the payments to the chowkidars, contractors and casual labourers. It is stated that the Plaintiff on getting his retirement dues, made further payments to the Defendant by means of four cheques dated 17th August ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... malities was replied by the Defendant on 30th July 2000 with a refusal, the Plaintiff filed a suit bearing Suit No. 204 of 2000 in the court of the learned District Judge, Delhi. In that suit, the Plaintiff filed an application for withdrawal with permission to file a fresh suit before an appropriate court on the same cause of action. This was on the ground that the said court did not have the pecuniary jurisdiction to try the case. By an order dated 18th May 2001, the learned Additional District Judge ( ADJ‟) dismissed the suit as withdrawn with the liberty as prayed for. The Plaintiff was asked to pay the Defendant the costs of ₹ 1500. Thereafter the present suit was filed on 15th September 2001 seeking: (a) a decree of declaration that the Plaintiff is a joint owner of the property at 11, Arihant Nagar, Delhi-110026 (suit property) with equal share of the membership of the Society as the absolute owner of the right portion of the suit property as depicted in the site plan enclosed with the plaint measuring 87 sq. yards as well as a joint owner in common use and enjoyment of the green colour portion measuring 26 sq. yards. (b) for a permanent decree of partitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for additional reliefs. 13. On merits, it is denied that the property was a joint family property as alleged. The money received by the Defendant from the Plaintiff as detailed in para 9 of the plaint is stated to be in the nature of reimbursement of the expenses incurred by the Defendant in buying household goods. As regards the payment of ₹ 4 lakhs, while the Defendant states that the Plaintiff helped him as his elder brother in the construction of the building, and gave the said sum of ₹ 3 lakhs in the form of a loan which stood repaid by the Defendant subsequently. As regards the Plaintiff staying in one half portion of the suit property, the Defendant contends that the Plaintiff who was in dire need of shelter had assured the Defendant that he would be residing the property for a short period and would shift therefrom although he had been paid back the entire amount which he had lent to the Defendant towards the completion of the construction. As regards the draft gift deed submitted on 10th August 1998 to the DDA, the Defendant claims that he had signed it hastily in an emotional state of mind and he had no intention of gifting half of the property to the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion directing the Defendant to execute a gift deed in terms of the draft gift deed submitted to DDA on 10th August 1998. However, since in any event the Defendant could not be compelled to execute a gift deed in respect of the property which was self-acquired, such a relief could not be granted. According to Mr. Jain, since the Plaintiff himself states that the partition of the family took place during the life time of the mother in September 1963 itself, the question of the Plaintiff and Defendant thereafter being the joint owner of the plot in the Society thereafter cannot and did not arise. 20. It is further submitted that the Benami Act precludes the filing of a suit by a person who claims that although the title documents to the property are not in his name, he should be recognized as a joint owner since the person in whose name the property stands was holding it on behalf of the claimant as well. As regards the prayer for recovery of money, it is submitted that since even according to the Plaintiff the last of the payments was made in 1995 by the Plaintiff, the suit filed in 2001 was barred by limitation. Mr. Aggarwal submits that the earlier Suit No. 204 of 2000 did not r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f took active part in the constructions, made payments to the contractors and that the Defendant took money from the Plaintiff by cheques during construction time, was paying for construction work, was also mentioned. 25. The grounds on which the Plaintiff sought to withdraw that suit was that the Court of the learned ADJ did not have pecuniary jurisdiction to try it. By an order dated 18th May 2001 the suit was dismissed as withdrawn with permission to the Plaintiff to file a fresh suit in an appropriate court of law on the same cause of action. The cause of action paragraph in both plaints indicates that the cause of action arose on 10th August 1998 when the Defendant sent a request to the DDA to permit him to gift half of the sub- lessee rights to the Plaintiff and thereafter but did not complete the formalities as required by the DDA. 26. Order II Rule 2 CPC requires, however, the earlier suit to include the whole of the claim which the Plaintiff is entitled to make in respect of the cause of action . The Plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. Under Order II Rule 2(2) CPC where a Plaintiff omit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 2001 in Suit No.204 of 2000 shows that the suit has hardly progressed. Soon after the written statement was filed, the Plaintiff realised that the court of the learned ADJ lacked the jurisdiction to try the suit. In those circumstances, the Plaintiff applied to withdraw the suit reserving the liberty to file a fresh suit. In the considered view of this Court, neither the principle of constructive res judicata nor res judicata is attracted to the present case. The principles governing Order II Rule 2 CPC would also not bar the Plaintiff in the present case from claiming the relief of declaration or injunction in addition to the relief of partition. 29. Viewed from another angle, the relief of declaration as sought for by the Plaintiff is actually superfluous. Even if one were to omit this relief from the prayers in the suit, in order to succeed in the prayer for partition, the Plaintiff would nevertheless have to prove: (a) that the property is capable of being partitioned; (b) that the Plaintiff has a share in the property; (c) that such share can be ascertained and granted either by metes and bounds or by sale of the property. 30. Therefore, in effect, the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the suit property were made to the Society out of the joint family funds. He has further pleaded that the property was held for his benefit in the name of the Defendant. Under Section 4(3) (b), a second exception has been carved out. Where the person in whose name the property is held is a trustee for another person standing in a fiduciary capacity, and the property is held on behalf of the claimant for whom he is such a trustee or towards whom he stands in such capacity, then Section 4(1) would not constitute a bar to seeking a declaration as to title. 36. In order that the Plaintiff is able to show that any of the exceptions to Section 4 as contained in Section 4(3) are attracted, he will have to lead evidence. For instance, the Plaintiff claims that the payments made by him to the Defendant were part payments to the Society for the membership which was to be in their joint names. The Defendant pleads that the money paid to him by the Plaintiff for the construction of the house was for reimbursement of the expenditure incurred by him. There is no documentary evidence placed on record by either party to substantiate these submissions. Therefore, in order to prove eith ..... X X X X Extracts X X X X X X X X Extracts X X X X
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