IMPORTANT POINT
A person cannot be a trustee of his brother or standing in a fiduciary capacity towards his brother.

Rajiv Sahai Endlaw, J.—The appeal impugns the judgment and decree dated 30.04.2004 of the Court of Additional District Judge, Delhi of dismissal of suit No.350/03/90 filed by the appellant for declaration that he is the owner of residential premises bearing Flat No.8762, Pocket-8, Sector-C, Vasant Kunj, New Delhi to the extent of 40% share therein and for putting him into joint possession thereof along with the defendant No.1.

2. The appeal was admitted for hearing and vide ex parte ad interim order dated 11.08.2004 the respondents/defendants were restrained from selling the property. The counsel for the respondent/defendant No.1 on 06.10.2006 informed that the suit property had been sold by the respondent/defendant No.1 even before the filing of the present appeal. The respondent/defendant No.1 died during the pendency of the appeal. On application of the appellant/plaintiff, vide order dated 24.01.2008 the purchaser from the respondent/defendant No.1 of the property was impleaded as respondent No.3 and the said respondent No.3 was also restrained from creating third party interest in the property during the pendency of the appeal. The legal heirs of the respondent/defendant No.1 were substituted in his place vide order dated 19.01.2011, 28.03.2011 & 16.07.2013. The counsel for the appellant/plaintiff, the appellant/plaintiff in person, the counsel for the legal heirs of the respondent/defendant No.1 and the counsel for the respondent No.3 have been heard. None has appeared for the respondent/defendant No.2 DDA.

3. Though the appellant/plaintiff along with the memorandum of appeal has filed a copy of the plaint as amended vide order dated 10.09.1993 but I am unable to find on the Trial Court record any amended plaint. However since the counsel for the respondents/defendants have not disputed the same to be the amended plaint, the same is taken into consideration. The case of the appellant/plaintiff therein was:

(i) that the property aforesaid was allotted by the respondent/defendant No.2 DDA on 20.01.1984 in the name of R.M. Buckshee who was the step brother of the appellant/plaintiff;

(ii) that the appellant/plaintiff was also allotted a flat of his own in Vasant Kunj by the respondent/defendant No.2 DDA;

(iii) that it was subsequently mutually agreed upon between the appellant/plaintiff and his step brother R.M. Buckshee that the appellant/plaintiff shall surrender the individual flat allotted to him by the respondent/defendant No.2 DDA in pursuance of the common understanding reached between them and in accordance with which the appellant/plaintiff and the said R.M. Buckshee were to jointly utilize the flat allotted in the name of the said R.M. Buckshee for the purpose of joint accommodation and living and in consideration of this the appellant/plaintiff shall pay the second and third installments accruing towards the flat allotted in the name of R.M. Buckshee;

(iv) that their existed a HUF of which R.M. Buckshee was the Karta and the appellant/plaintiff was the coparcener and which was also a factor to occasion the existence of a fiduciary relationship between the said R.M. Buckshee and the appellant/plaintiff;

(v) that the appellant/plaintiff in pursuance of the aforesaid understanding, on 13.02.1984 surrendered the flat allotted to him, and paid the second and third installments of Rs.49,600/- and Rs.62,000/- respectively to the respondent/defendant No.2 DDA of the said flat allotted in the name of R.M. Buckshee;

(vi) that the amount of second and third installments paid by the appellant/plaintiff constituted 40% of the total purchase value of Rs.2,48,000/- of the said flat;

(vii) that R.M. Buckshee died on 13.12.1985 and after his death, the respondent/defendant No.1 who was the brother of R.M. Buckshee (who was unmarried) and step brother of the appellant/plaintiff wrongly succeeded to the said flat in the capacity of legal heir of R.M. Buckshee though knowing fully well that substantial payment o