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DELHI HIGH COURT
Sanjeev Narula, J.
Nitin Mehta —Appellant
versus
Suresh Mehta and Anr. —Respondents
Civil Suit (O S) No.2895 of 2011, Interlocutory Application No.2481 of 2012
Decided on 17.12.2019
(A) Property Law – Acquisition of Title in Property – A contributor to construction or purchase consideration of an immovable property does not acquire any right in property – Right of contributor is limited to the extent of seeking recovery of said contributions made by him – In absence of any valid deed of conveyance in favour of Defendant No. 1, no title over suit property can be claimed solely on the basis of allegation that money has been invested in construction and renovation of suit property – Evidence brought on record also does not support stand taken by Defendant No. 1 – No credibility in stand of Defendant No. 1 that sale proceeds of properties has been utilized for construction of suit property – Mere contributions made by Defendant No. 1 would not confer any ownership over suit property. (Para 18)
(B) Hindu Law – HUF – Burden of proving existence of HUF is cast upon party who claims, that such entity exists – To prove creation of an HUF, mere statements made by parties are not sufficient – Party alleging existence of an HUF must not only demonstrate its existence by providing specific details of properties but he must also prove existence of an ancestral nucleus which by itself is adequate to purchase property in dispute on the date of its acquisition – Burden of proving existence of an HUF is initially cast upon party claiming existence of same and it is for them to demonstrate that a particular asset or property was purchased from common corpus of purported joint family – This requires Plaintiff to lead reliable evidence in order to satisfy the burden. (Para 19)
(C) Transfer of Property Act, 1882 – Section 122 – Gift-deed – Plaintiff has accepted gift made in his favour – Delivery of physical possession of gifted property is not an essential requirement for making a valid gift – Necessary requirement is transfer of ownership in property – Retention of right to use property during lifetime of donor does not in any way affect transfer of ownership in favour of donee – In present case, gift has been accepted, its execution and registration has been proved – Plaintiff has become rightful owner upon execution of registered gift deed by Defendant No. 2 in his favour and is entitled to have suit property vacated. (Para 38)
(D) Civil Procedure Code, 1908 – Order XX Rule 12 – Mesne Profit – Computation of – Usually, enquiry under Order 20 Rule 12, CPC has to be made by Court for determining amount of mesne profits to be paid – However, since mode and manner of inquiry has not been provided in Code, inquiry can be through examination of parties on the aspect of prevailing rates, taking into account admissions of parties, or through judicial guess work. (Para 41)
Result: Appeal dismissed.
JUDGMENT
Sanjeev Narula, J.—By way of the present suit, Plaintiff seeks possession, mandatory injunction and mesne profits in respect of first floor of property bearing No. B-97, Defence Colony, New Delhi comprising of three bedroom, attached bathroom, drawing-dining room, kitchen and one room above the garage (hereinafter referred to as “the suit property”).
Case of the Plaintiff
2. The Plaintiff claims to be sole, legal and exclusive owner of the suit property. Defendant No. 1 is the maternal uncle; and Defendant No. 2 is maternal grandfather of the Plaintiff. No relief has been sought against Defendant No. 2, who has been arrayed as a pro-forma Defendant.
3. On 25th May 1953, as part of resettlement policy, a plot of land bearing no, B-97, Defence Colony, New Delhi admeasuring 271 sq mtrs., was allotted to proforma Defendant No. 2 on lease-basis by Ministry of Defence, Resettlement Section. Proforma Defendant No. 2 constructed a house on the said plot from his own funds by way of raising loan from Government of India. For this purpose, mortgage deed dated 16th September 1961 was executed. The loan was repaid and deed of re-conveyance was signed on 25th March 1971. The land was thereafter converted from leasehold to freehold on 12th March 1997. In 1994, Defendant No. 1 quoting strenuous financial conditions, requested Defendant No. 2 for permission to reside in the suit property. In this manner, Defendant No. 1, as a son, was granted a license to reside in the suit property, under an oral arrangement, purely as a permissive user. Defendant No. 1 time and again assured proforma Defendant No. 2 that he would vacate and handover the possession of the suit property immediately on demand being made by Defendant No. 2 and recognized his ownership and possessory rights in respect of the suit property. In the meantime, Defendant No. 2, out of love and affection, transferred all his rights, title and interest in the suit property in favour of the Plaintiff, vide registered gift deed dated 23rd May 2011, duly registered with the Sub Registrar vide registration No. 7618 in book No. 1, volume No. 11161 on pages No. 47 to 51 on 26th May 2011. Defendant No. 1 gained knowledge of the said transfer as he was informed about the same by Defendant No. 2 as well as the Plaintiff. In furtherance to the gift deed, Defendant No. 2 also executed in favour of the Plaintiff, an affidavit, thereby declaring that the Plaintiff can get the suit property mutated in his own name in the municipal records. During the course of time, behavior of Defendant No. 1 worsened and, as a result Defendant No. 2 requested him to leave the property and handover peaceful and vacant possession of the suit property. The request was declined and he kept dilly-dallying the matter on one pretext or the other and continues to be in possession of the suit property, save one room above the garage which has been rented out by the Plaintiff vide rent agreement dated 8 th October 2011. Plaintiff as the legal owner of the suit property, has been requesting Defendant No. 1 to vacate the same but such requests have not yielded any favorable result. On the contrary, Defendant No. 1 has advanced threat to life and property of Defendant No. 2 and the Plaintiff.
4. Defendant No. 2 issued a public notice in the newspaper “Times of India” whereby, he disowned, disclaimed and renounced Defendant No. 1 as his son and also filed a complaint dated 7 th September 2011 before the SHO, Defence Colony, narrating the illegal threats extended by Defendant No. 1. A legal notice dated 8th September 2011 was issued calling upon him to handover the vacant possession of the suit property. In the said notice, he further contended that the failure on his part to deliver the possession would also entail liability of Rs. 5,000/- each day for unlawful retention and illegal user of the premises. The notice failed to deter Defendant No. 1, as he continues to be in illegal possession of the suit property, constrain
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