Anil Kaushik v. Swaran Kala Kaushik & Anr

PRADEEP NANDRAJOG, J.

J.R.MIDHA, J. November 03, 2008 MM

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Order : 03.11.2008 + RFA 577/2007 ANIL KAUSHIK ..... Appellant Through: Ms. Purnima Maheshwari, Advocate versus SWARAN KALA KAUSHIK & ANR. ….. Respondents Through: Mr. Rupesh Sharma, Adv. for R- 1& 2 CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE J.R.MIDHA 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether judgment should be reported in Digest? : PRADEEP NANDRAJOG, J.(Oral) 1. Anil Kaushik son of Swaran Kala Kaushik is in dispute with his mother with respect to property bearing No.A-300, Majlis Park, Delhi. The same was purchased by Swaran Kala Kaushik vide sale deed dated 23.2.1996 Ex.DW-1/A. It records that Swaran Kala Kaushik has paid a total sale consideration of Rs.1,60,000/- (Rupees One Lac Sixty Thousand) to the seller, being Rs.16,000/- (Rupees Sixteen Thousand) paid in cash as advance and the balance sum paid by 3 cheques in sum of Rs.48,000/- each, dated 5.2.1996, drawn on her account maintained with Punjab National Bank, Azadpur, Delhi. 2. Case of Anil Kaushik is that property No.A-300, Majlis Park, Delhi was purchased by his mother from out of the sale proceeds received by her when she sold property No.A-254, Majlis Park, Delhi belonging to his father. So stating, Anil Kaushik claims 1/3rd share in the house for the reason he alleges that the remaining 2/3rd share belongs 1/3rd each to his mother and his brother Sunil Kaushik. 3. The defence of Swaran Kala Kaushik is that property No.A-254, Majlis Park, Delhi was sold on 22.11.1995 for a sale consideration of Rs.3,60,000/- (Rupees Three Lac Sixty Thousand). Rs.2,10,000/- (Rupees Two Lac Ten Thousand) from out of the sale proceeds was utilized in the marriage of her daughter and balance sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) was distributed by her amongst her two sons, three daughters and self i.e. each family member getting Rs.25,000/- (Rupees Twenty Five Thousand). 4. At the trial Anil Kaushik examined himself as his sole witness and deposed on the lines pleaded in the plaint. Suffice would it be to note at this stage that Anil Kaushik led no evidence to prove that the deposits made in the Punjab National Bank, Azadpur, Delhi wherefrom cheques were issued by his mother when the subject property was purchased were augmented when property No.A-254, Majlis Park, Delhi was sold. 5. Swaran Kala Kaushik examined herself as DW-1. She examined the clerk from the Sub-Registrar's office as DW-2 to prove the sale deed in her name. She examined her son Sunil Kumar as DW-3. She examined her daughter Rita as DW-4. 6. Swaran Kala Kaushik, her son Sunil Kumar and her daughter Rita, deposed in harmony with the defence taken by Swaran Kala Kaushik. They stated that when House No.A-254, Majlis Park was sold for Rs.3,60,000/- (Rupees Three Lac Sixty Thousand), Rs.2,10,000/- (Rupees Two Lac Ten Thousand) was spent on the marriage of the daughter of Swaran Kala Kaushik and that balance sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand) was divided as stated by Swaran Kala Kaushik. 7. Noting that the onus lies on the person, who urges atransaction to be benami, to prove the source of funds for acquisition of the property; holding that Anil Kaushik failed to establish that the funds to acquire the subject property were the ones which were realized when property No.A-254, Majlis Park, Delhi was sold and noting that Swaran Kala Kaushik was the registered owner of the property and had paid the sale consideration from out of a bank account maintained by her; further noting her testimony that she used to earn money by doing tailoring work, learned Trial Judge has dismissed the suit filed by Anil Kaushik. 8. At the hearing held today, learned counsel for the appellant has urged that the evidence of Swaran Kala Kaushik that she was having independent income by doing tailoring work is unsubstantiated by any evidence save and except her s