F. S. GILL

( 1 ) THE plaintiff has alleged that he and Kuldip Singh (defendant No. 1) jointly

owned plot of land (R-6) in Green Park, New Delhi, which was purchased from

Urban Improvement Housing and Construction Company Private Limited on or about

10th March, 1959. The plot measured 215 sq. yards. A sale deed in respect thereof

was duly executed in their favour.

( 2 ) AFTER the purchase of the plot or land, the plaintiff and defendant No. 1

decided to build a house thereon. A plan of the building was accordingly sent to the

Municipal Authorities. It was duly sanctioned.

( 3 ) IT is further added that the plaintiff and defendant No. 1 constructed a house

on the said plot. The expenditure on the construction was also borne in equal shares

as each one had one-half share. It is further added that the building was practically

completed in July, 1965 and a completion certificate was also obtained from the

Municipal Committee, Delhi in this behalf.

( 4 ) IT is further alleged that the plaintiff and defendant No. 1, who are the coowners

of the building in question, rented out the first floor of the house to the

Military Estate Officer, Delhi Cant with effect from 1st November, 1965 at Rs. 350.

00 per month. This rented portion was, however, allotted by the Military Estate

Officer to Major Jaswant Singh, defendant No. 2, who is the father of Kuldip Singh

defendant No. 1. At that time Major Jaswant Singh was serving in the Army and was

posted at Delh. The said portion was thus occupied by Major Jaswant Singh on the

basis of the allotment order. He continued the possession in this capacity till about

August, 1967.

( 5 ) IT is further stated that Kuldip Singh, defendant No. 1 had appointed is father,

Major Jaswant Singh and also is cousin Karamjit Singh, defendant to 3, as his

attorneys, representatives and agents, to act for and on his behalf and to manage

the affairs of the aforesaid building. Rents were collected from the tenants and were

deposited in the Bank where a joint account had been opened by the plaintiff and

Karamjit Singh. defendant No. 3, while acting as attorney and representative of

Kuldip Singh. Karamjit Singh was also allowed to operate the said account jointly

and severally.

( 6 ) IT is further averred that without the knowledge and consent of the plaintiff,

Karamjit Singh, defendant No. 3, under the instructions and at the instance of Kuldip

Singh, defendant No. 1, withdrew the entire amount of the rent which had been

deposited in the Bank. After withdrawal he appropriated the whole money according

to the instructions of Kuldip Singh and without the knowledge and consent of the

plaintiff. Defendants Nos. 1 and 3 also never informed the plaintiff about the

withdrawals.

( 7 ) IT is further added that apart from the first floor, two shops on the ground

floor, were also let-out by Karamjit Singh, defendant No. 3, under the instructions of

Kuldip Singh, defendant No. 1, and that from January, 1966 Karamjit Singh,

defendant No. 3, had alone been receiving or realising the rents of the said shops

from the tenants viz. M/s. Garcha Automobile Engineers and others. The rent of

each shop was Rs. 500. 00 per month and the same was realised by defendant No.

3.

( 8 ) ANOTHER portion of the house which was rented out was the Barsati on the

top floor. It is stated that the Barsati had been leased out by Kuldip Singh,

defendant No. 1 through his attorneys Major Jaswant Singh and Karamjit Singh,

defendants 2 and 3, with effect from 1-9-1966 at Rs. 120. 00 per mensem.

( 9 ) IT is also alleged that the said Barsati was vacated by the first tenant and was

let-out to another on 1-10-1967 at about Rs. 150. 00 per mensem. The second

tenant continued in occupation till 19-3- 1969.

( 10 ) IT is further added that Kuldip Singh, defendant No. 1, in collusion and

conspiracy with defendants Nos. 2 and 3, had, in order to cause unlawful loss to the

plaintiff and to have unlawful gain to himself, withdrawn all the amounts of rents

collected and deposited in the Bank. It is also stated that he has also been receiving

the rents from the various tenants directly and that he has appropriated all those

amounts to his own use and has failed to render any account to the plaintiff.

Defendant No. 1 had thus failed to pay the share of the plaintiff in respect of the

aforesaid rental income.

( 11 ) THE plaintiff has also stated that the house is assessed to house tax and that

he had been paying his share of the house tax to the Municipal authorities and that

the entire rent had been retained and appropriated by the defendants.

( 12 ) IT is accordingly submitted that the plaintiff is entitled to the rendition of

accounts of the various collections made and appropriated by the defendants.

( 13 ) THE plaintiff has further stated that Kuldip Singh, defendant No. 1, through

his attorneys and representatives. e. defendants 2 and 3, has acted wrongly,

illegally, and fraudulently and, therefore, he (plaintiff) was not interested in keeping

the property joint. He has further added that in spite of repeated requests, the

defendants have not partitioned the property and given his share to him nor they

have rendered the account of the income and expenditure. The plaintiff, therefore,

seeks a decree for the partition of the property and also for the rendition of the

accounts. A prayer for the appointment of Receiver has also been made.

( 14 ) DEFENDANTS Nos. 1 to 3 filed their joint written statement and alleged that

the plaintiff was not in possession of any part of the property and, therefore, ad

valorem court-fee was payable on his one-half share of the value of the suit

property. Pleas regarding mis joinder and cause of action have also been taken. It

has been contended that Amarjit Kaur alias Harpreet Kaur, widow of Tarlok Singh

Mann was a necessary party as she owned one-half share. It was further stated that

the plaintiff had no share in the plot R-6, Green Park, New Delhi nor the

construction had been made by him. It is also averred that Major Jaswant Singh

wanted to purchase the plot in question for his son and daughter but the plaintiff

insisted that half of the share in the plot should either be in the name of his son T.

S. Mann or in his own name and not in the name of Amarjit Kaur as purchasing the

property in the name of the female would cause great insult to him and his family. It

is stated that to satisfy the whim of the plaintiff, half of the share in plot No. R-6,

Green Park was shown in the plaintiffs name. He was to be a sheer benamidar for

Amarjit Kaur, daughter of Major Jaswant Singh. It is further alleged that the whole

material for the construction of the building was purchased by Amarjit Kaur and

Kuldip Singh, defendants and that the entire investment had also been made by

them, whereas nothing had been spent by the plaintiff. With these submissions it

was stated that the suit be dismissed.

( 15 ) IN his replication, the plaintiff re-asserted his averments and denied that

Amarjit Kaur was the real owner and that he was only a benamidar.

( 16 ) THE plaint was later amended on the application of Amarjit Kaur alias

Harpreet Kaur and she was impleaded as defendant No. 4. She filed her written

statement and alleged that she was the real owner of one-half share in the plot and

the building standing thereon as she had spent the whole amount herself, whereas

the plaintiff was only a benamidar.

( 17 ) FROM the pleadings of the parties, the following issues were framed:1.

Whether the plaintiff is in possession of any portion of the property in suit and the

suit is properly valued for the purpose of court-fee and jurisdiction 2. Whether the

suit is bad for multifariousness 3. Whether the plaintiff is only benamidar of the

property in suit to the extent of one-half share 4. If issue No. 3 is proved, whether

Smt. Amarjeet Kaur defendant No. 4 is the real owner of the property in suit to the

extent of one-half share along with the defendant No. 1 and whether she is in

possession of any part of the property in suit 5. Whether the plaintiff is entitled to a

decree for rendition of accounts If so, for what period and against whom 6. What

directions, if any, should be issued to the local Commissioner in the matter of the

rendition of accounts 7. Whether the plaintiff had authorised defendant No. 3 to reimburse the rental income withdrawn from the bank or received otherwise to

defendant No. 1 and defendant No. 4 8. Relief. Both the parties have produced oral

as well as documentary evidence in support of their respective assertions. The same

will be discussed presently.

( 18 ) ISSUE No. 1. The valuation for the purposes of court fee and jurisdiction is to

depend on the question whether the plaintiff is in possession of any portion of the

property in dispute. The plaintiff has stated that he has been in possession of a

portion of this property much before the filing of the suit. This fact has been denied

in the written statements.

( 19 ) TO prove his possession, the plaintiff has examined Balwant Singh, P. W. 1,

Karmainder Singh, P. W. 2, Harihar Parshad, P. W. 3, Ram Phal Singh, P. W. 4,

Gurdial Singh, P. W. 5, H. C. Bhoop Singh, P. W. 6, and has himself appeared as P.

W. 7 Balwant Singh, P. W. 1 is a neighbour of the plaintiff, who lives at a distance of

about 300 yards. He has stated that the plaintiff lives in a part of the house in

dispute. Karminder Singh is also a neighbour and lives in R-11, Green Park. He has

stated that the plaintiff resides in House No. R-6, Ex. Public Witness 3/1 is the

Directory of the Residents published in 1970. It has been proved by Harihar Prasad,

P. W. 3. The name of the plaintiff appears in this directory against House No. R-6.

( 20 ) RAM Phal, P. W. 4, is a clerk in the Municipal Corporation, Delh. On the basis

of the assessment register of 1965, he has stated that Captain Fauja Singh and

Kuldip Singh were shown in self occupation of R-6, Green Park. Gurdial Singh, P. W.

5, was a tenant in 1967. He has stated that he had taken the house on rent from

the plaintiff and Major Jaswant Singh and had returned the possession to them on

vacation. H. C. Bhoop Singh, P. W. 6, has proved a complaint made by Major

Jaswant Singh, in the police station. A copy thereof is Ex. Public Witness 6/1. It was

stated by Jaswant Singh in the complaint that Captain Fauja Singh was in possession

of a room in the Barsati from 26-2-1969. This fact was even admitted by Kuldip

Singh Garcha (defendant No. 1), who has appeared as D. W. 15. The possession of

the plaintiff in the Barsati, at the time of filing the suit in October, 1969, is also

admitted by Major Jaswant Singh in his statement made as D. W. 17. The

defendants have not produced any evidence to show that the plaintiff is not in

possession of a part of the property in question. In fact they have admitted his

possession in their statements.

( 21 ) FROM the above evidence, it is clearly proved that the plaintiff is in possession

of a part of the property in dispute. The plaintiff has, therefore, rightly valued the

suit for the purposes of court-fee in accordance with S. 7 (4) (b) read with Art. 17 of

Schedule II of the Court-fees Art. He is not enjoined to pay ad valorem court-fee.

Issue No. 1 is, therefore, decided in favour of the plaintiff and against the

defendants. Issue No. 2.

( 22 ) THE learned counsel for the defendants has not pressed this issue regarding

multifariousness of the suit. Nor there is any substance in the allegation. This issue

is, therefore, decided against the defendants. Issues 3 and 4.

( 23 ) BOTH these issues are intermingled. They will, therefore, be discussed

together. The allegation of the defendants is that the plaintiff is only a benamidar of

one-half share in the property in dispute and that the real owner is Smt. Amarjit

Kaur, defendant No. 4. Whether or not the plaintiff is a benamidar is the most vital

question requiring determination in this suit.

( 24 ) THE onus, therefore, heavily lies on Amarjit Kaur defendant to prove that she

is the real owner of one-half share in the house in dispute, whereas the plaintiff is

only a benamidar. The law on the point has been very lucidly laid down in Jaydayal

Poddar v. Mst. Bibi Hazra, AIR 1974 SC 171 [LQ/SC/1973/314] . The relevant portion is reproduced

below (at p. 172):"it is well settled that the burden of proving that a particular sale

is benami and the apparent purchaser is not the real owner, always rests on the

person asserting it to be so. This burden has to be strictly discharged by adducing

legal evidence of a definite character which would either directly prove the fact of

Benami or establish circumstances unerringly and reasonably raising an inference of

that fact. The essence of a benami is the intention of the party or parties concerned;

and not unoften such intention is shrouded in a thick veil which cannot be easily

pierced through. But such difficulties do not relieve the person asserting the

transaction to be benami of any part of the serious onus that rests on him, nor

justify the acceptance of mere conjecture or surmises, as a substitute for proof.

Though the question, whether a particular sale is Benami or not, is largely one of

fact, and for determining this question, no absolute formulae or acid test,

uniformally applicable in all situations, can be laid down, yet in weighing the

probabilities and for gathering the relevant indicia, the courts are usually guided by

these circumstances; (1) the source from which the purchase money came, (2) the

nature and possession of the property, after the purchase, (3) motive, if any, for

giving the transaction a benami colour, (4) the position of the parties and the

relationship, if any, between the claimant and the alleged benamidar, (5) the

custody of the title- deeds after the sale and (6) the conduct of the parties

concerned in dealing with the property after the sale. The above indicia are not

exhaustive and their efficacy varies according to the facts of each case. Nevertheless

No. 1, viz. the source whence the purchase money came, is by far the most

important test for determining whether the sale standing in the name of one person,

is in reality for the benefit of another. "keeping the above principles in view, the

evidence of the parties will be presently gauged.

( 25 ) FIRST of all I will consider the evidence about the purchase of the plot (R-6)

on which the house has been built. To begin with Shri T. S. Mann son of the plaintiff

had booked plot No. W-14 and also plot No. R-6 or R-7 with promoter. e. Urban

Improvement and Construction Company Limited. Ex. D-46 is a provisional receipt

dated 7-8-56 for Rs. 10. 00 issued by the Company in favour of Tirlok Singh Mann

towards the booking of plot No. 14-W, Green Park; whereas Ex. D-48 is the

provisional receipt for Rs. 15. 00 issued by the same Company in the name of Tirlok

Singh Mann about the booking of plot No. 6 or 7-R, Green Park, New Delhi.

( 26 ) FOR Plot No, 14-W a sum of Rupees 2,755 was paid by Tirlok Singh Mann on

8-8-56 towards the entire sale price (see receipt Ex. D-47 ). In Ex. D-47 there is also

a mention of the provisional receipt issued earlier. For the same plot. e. 14w,

another sum of Rs. 117. 80 Annas was paid by T. S. Mann on 8-8-56 towards the

registration charges (c. f. Ex. D-50 ). Thus Tirlok Singh Mann had absolute interest

in plot No. W-14.

( 27 ) NOW regarding plot No. R-6. Receipt Ex. D-49 issued on 16-8-56 shows that a

sum of Rs. 1,548. 00 had been paid by Captain Ajaib Singh and Captain Jaswant

Singh towards the price of this plot. The area mentioned in this receipt is 344 sq.

yards. It may be stated that originally this plot was registered by Tirlok Singh Mann

but this receipt shows that the payment of the price was made by Captain Ajaib

Singh and Captain Jaswant Singh to the Urban Improvement and Construction

Company Private Ltd. Another sum of Rs. 2064. 00 was paid by Captain Ajaib Singh

and Captain Jaswant Singh on 24-9-56 towards the price of the same plot (Ex. D-

2 ). Yet one more instalment of Rupees 2,064 was paid by the same persons,

namely, Captain Ajaib Singh and Captain Jaswant Singh on 8-11-56 and receipt Ex.

D-3 was issued in their favour.

( 28 ) LATER the area of plot No. R-6 was reduced from 344 to 215 sq. yards.

Captain Ajaib Singh then decided to withdraw and transfer his share to Captain

Fauja Singh plaintiff. This was to be with the consent of the other co-sharer. e.

Major (then Captain) Jaswant Singh. To compensate Major Jaswant Singh. T. S.

Mann son of the plaintiff agreed to induct Jaswant Singh in plot No. W-14 by

transferring his one-half share in favour of Jaswant Singh. This would be evident

from the following documentary evidence.

( 29 ) EX. P-15 is a letter sent by Captain Fauja Singh to the Secretary, Urban

Improvement and Construction Co. Ltd. , on 13th January, 1957. It also bore an

endorsement made by Captain Jaswant Singh. It seems very relevant to reproduce

this letter:"the Secretary, Urban Improvement Housing and Construction Co. Ltd.

Subject: Plot No. R-6 in Green Park. With ref. to letter dated 10th Jan. 1957

addressed to you by Capt. Ajaib Singh, I hereby undertake to purchase the share of

Capt. Ajaib Singh in plot No. R-6 and accept Capt. Jaswant Singh as my partner. I

hereby pay my share of the plot paid by Capt. Ajaib Singh. Capt. Jaswant Singh is

willing to take me as my partner. Sd/- Fauja Singh C/o. Sardar T. S. Mann C. A.

Section L. Block CPWD Dated: 13th Jan. 57 NEW. I Concur with the above proposal.

Sd/- Jaswant Singh No. 3 Wireless- Experimental Company Barrackpore D/- 13th

Jan. 57. W. Bengal. "

( 30 ) EX. P-16 is another letter, which shows that Captain Jaswant Singh had

transferred his own share to his son Kuldip Singh with the concurrence of the

Company. This letter was also confirmed by Captain Fauja Singh, plaintiff, indicating

that he had no objection to the transfer and taking Kuldip Singh as a partner.

( 31 ) THE transfer of the share in favour of Captain Fauja Singh is amply explained

by the fact that T. S. Mann, son of Captain Fauja Singh was the sole- owner of plot

No. W-14 and he had inducted Captain Jaswant Singh in that plot as joint owner on

the condition that his father Captain Fauja Singh would be inducted in plot No. R-6.

A letter to that effect was written by T. S. Mann to the Secretary, Urban Housing

and Construction Company Limited on 13th January, 1957. It has been exhibited as

P-17 and reads as under:"t. S. Mann C. A. Section L. Block CPWD New Delh. D/-

13th Jan. 57. To The Secretary, Urban Housing and Construction Co. Ltd. New Delh.

Subject: Registration plot No. W-14. Dear Sir, This is to request you to register the

abovementioned plot on the joint names of Capt. Jaswant Singh s/o S. Ram Singh

(No. 3 Wireless Experimental Company, Barrackpore) and myself instead of myself

alone. My reason for the same is that my father Capt. Fauja Singh is getting R-6

registered jointly with him and we are adjusting the amount of payment for both

plots. e. W-14 and R-6 mutually. Yours faithfully Sd/-

( 32 ) FROM the narration of the above facts it is evident that Jaswant Singh or Ajaib

Singh had never come to book any of the plots and that it was T. S. Mann only who

had booked them. In his statement Captain Ajaib Singh deposed that he does not

know anything about plot No. W-14. From the above correspondence it is also

evident that it is factually wrong that plot R-6 had been registered in the sole name

of Major Jaswant Singh. Statement of Smt. Amarjit Kaur defendant in this behalf is a

deliberate lie the time of the booking or purchasing the plot, Amarjit Kaur was not

even married. The assertion of the defendants that Captain, Fauja Singh did not

want the plot to be purchased in the name of Amarjit Kaur is not correct. It is a

fantastic story that the plaintiff was dead against the induction of a female as a

partner in the plot. She had not been married at that time. If Major Jaswant Singh

could transfer his share in the plot in the name of his son, there was no impediment

in his way to transfer his interest in the name of his daughter. No credence can

therefore, be given to such a fabricated story.

( 33 ) IT is thus proved that half share in plot No. R-6 had been purchased by

Captain Fauja Singh, plaintiff and that he had also made the payment for the same.

This fact was duly intimated to the Company in writing, which was also consented to

by Major Jaswant Singh. Thus the plaintiff had one half share in the plot in question.

( 34 ) BEFORE the evidence about the actual construction of the house is

considered, I would like to find out the financial position of Major Jaswant Singh,

defendant No. 2, who is the father of Smt. Amarjit Kaur, defendant No. 4. The

object in doing so is to see whether he was in a position to help his daughter as

alleged by him.

( 35 ) BOTH oral as well as documentary evidence on the record shows that the

financial position of Major Jaswant Singh was far from satisfactory and he had no

ability to render any financial assistance to her. Jagmal Singh, DW 2, who is the

cousin of Major Jaswant Singh, has stated that Jaswant Singh had borrowed a sum

of Rs. 3000. 00 from him during the course of the construction of the house. Lt. Col.

Avtar Singh Mann, DW 4, is a friend of Major Jaswant Singh. He has deposed that

he had advanced a loan of Rs. 3000. 00 to Major Jaswant Singh on four different

occasions (Rs. 700. 00 on 28-7-65, Rs. 700. 00 on 30-7-65, Rs. 600. 00 on 31-7-65

and Rs. 1000. 00 on 9-7-67 ). He has deposed that Major Jaswant Singh required

this money for the construction of the house and for paying his creditors. Dr. N. S.

Grewal, DW 9, has stated that Major Jaswant Singh had taken a loan of Rs. 999. 00

from him in 1965 as he needed the money for the construction of his house. This

witness is also a friend of Major Jaswant Singh. Hari Singh, DW 10, has deposed

that ha had advanced a loan of Rs. 2000. 00 to Major Jaswant Singh in 1965 as he

wanted the same for the construction of the house. Patwari Sukhdev Singh, DW 12,

is the first cousin of Major Jaswant Singh. He has stated that in June or July, 1965

Major Jaswant Singh had asked him for financial help and that he had advanced a

sum of Rs. 2000. 00 to him. He has further added that on his inability to repay the

loan, he had transferred to him a piece of his land for the consideration of the loan.

( 36 ) FROM the above statements of the close relatives and friends produced by the

defendants themselves, it is proved that Major Jaswant Singh had secured a loan of

Rs. 11,000. 00 from them for the construction of the house. Obviously Major

Jaswant Singh had no funds of his own.

( 37 ) EX. P. 25 is a letter which had been sent by Major Jaswant Singh defendant to

the plaintiff on 3-12-1966. In this letter he had asked the plaintiff to pay his share of

the Municipal taxes amounting to Rs. 807. 30 P. In this letter he categorically stated

that he was not in a position to make the payment of the plaintiffs share. The

following portion of the letter is very significant as it speaks volumes of Major

Jaswant Singhs financial position:"since I still owe Rs. 12,558. 00 to friends/lic and

Gurdwara fund, I am not in a position to pay your share. You are, therefore,

requested to remit a draft of Rs. 807. 30p. payable to Karamjit Singh Grewal at

State Bank of India, Parliament Street, New Delhi forthwith or send by money order.

"

( 38 ) THE above dismal financial position of Major Jaswant Singh disclosed on 3rd

Dec. , 1966 leaves no manner of doubt about his helpless condition. The Learned

counsel for the plaintiff has submitted that Major Jaswant Singh was not in a happy

position to help anybody else in the construction of the house, so much so, he

himself was obliged to appropriate the Gurdwara funds which obviously were with

him as trust money. He must, however, have been forced by the circumstances to

resort to take such an action. In short, Major Jaswant Singh was in poor financial

condition and was not in a position to help his daughter Amarjit Kaur.

( 39 ) NEXT I deal with the construction of the house on plot R-6, Green Park. It is

admitted by the parties that the marriage of T. S. Mann, son of the plaintiff was

solemnised with Amarjit Kaur, defendant No. 4, daughter of Major Jaswant Singh, in

Oct. , 1958. T. S. Mann however, died on 10-7-1965. The construction of the house

had actually started during the lifetime of T. S. Mann. e. in October/november,

1964. It was, however, completed after his death and had taken about one year.

The first floor of the house was given on rent to the Military Estate Officer from

October, 1965, which in turn was allotted to Major Jaswant Singh.

( 40 ) THE case of the plaintiff is that he had spent half of the amount on the

construction of the house and the other half was spent by Kuldip Singh through his

father Major Jaswant Singh. On the other hand Amarjit Kaur, defendant No. 4, has

alleged that half of the expenditure on the entire house was incurred by her and not

by the plaintiff. According to her the name of the plaintiff appears in the records

only as a benamidar.

( 41 ) THE learned counsel for the plaintiff has submitted that after the death of T.

S. Mann, the only son of his client, Amarjit Kaur had re-married and that she and

her father Major Jaswant Singh have contrived to grab the share of the plaintiff. T.

S. Mann died on 10-7-65 when most of the construction work had been completed.

On 30-7-65 Amarjit Kaur defendant wrote letter Ex. P34 to the plaintiff and

intimated about the details of the expenditure incurred on the house. She gave the

details as under :"1. Amount spent by the plaintiff for the construction of the house.

Rs. 12,530. 00 2. Loans taken from various persons amounting to Rs. 8800. 00

were: From Gurdial Singh Rs. 2800. 00 From Karamjit Singh Rs. 1200. 00 From

Harbail Singh Rs. 1800. 00 From Gurbachan Singh Rs. 3000. 00 3. The amount

which had been spent from the savings (obviously meant savings made by T. S.

Mann and Amarjit Kaur) Rs. 3168. 10 The total amount spent by the family of the

plaintiff was Rs. 24,498. 10p. "on the date of the writing of the letter the entire

amount spent on the construction was mentioned to be Rs. 56,931. 64p. It was

stated that a sum of Rs. 3967. 72 had been spent in excess by the co-sharer. e. by

Kuldip Singh through his father. This excess amount had been mentioned to be

payable to Major Jaswant Singh.

( 42 ) MAJOR Jaswant Singh has stated that he was building the house for his son

(defendant No. 1) and daughter (defendant No. 4 ). If that was so, then his

daughter would not have written to the plaintiff (her father-in-law) that a sum of Rs.

3967. 72 P. was payable to Major Jaswant Singh. If the plaintiff was not financing

the construction, Amarjit Kaur could have simply informed him that he was not

entitled to demand any account as e was herself meeting the expenditure from her

own resources and was being helped by her father. On the other hand she did not

take up this position, but categorically stated that a sum of Rs. 3967. 72 was

payable to Major Jaswant Singh on account of overspending than his share. The

story of Major Jaswant Singh that he was building the house for his daughter is

belied by the evidence on record. Gurbachan Singh, Public Witness 11 is the brother

of the plaintiff. He has stated that he had advanced a loan of Rs. 3000. 00 to T. S.

Mann and the same was repaid by the plaintiff. Similar is the statement made by

Gurdial Singh, Public Witness 15. He has deposed that the loan amount of Rs. 2800.

00 was advanced by him to the plaintiff through his son T. S. Mann and that the

same was repaid to him by the plaintiff. Gurdial Singh has contradicted Amarjit Kaur

that she had repaid the loan.

( 43 ) THE plaintiff has given the following details of the expenditure incurred by

him in the construction of the house. This statement appears at page 251 of his

statement.

In her statement Smt. Amarjit Kaur has deposed that she had spent the amount

from the following sources:

1. Personally spent by

the plaintiff from time to

time Rs. 15830. 00

2. Sent to T. S. Mann

for the construction of the

house Rs. 3168. 00

3. Received from LIC Rs. 11328. 00

4. Loans raised

From Gurbachan Singh Rs. 3000. 00

From Gurdial Singh Rs. 2800. 00

From Karamjit Singh Rs. 1200. 00

Total Rs. 37,326. 00

1. Received from LIC Rs. 11,328. 00

2. On raising loans Rs. 11,450. 00

Details of the loans are as below:

(a) From Karamjit Singh Rs. 1500. 00

Gurbachan Singh and Gurdial Singh have stated that they had given the loan to the

plaintiff through his son T. S. Mann and that the plaintiff had repaid them Amarjit

Kaur is, therefore, clearly contradicted by them.

( 44 ) A sum of Rs. 11,328. 00 was paid by Life Insurance Corporation to Amarjit

Kaur on the authority letter of Captain Fauja Singh, plaintiff. Both of them assert

their right to receive the same. The amount was admittedly spent on the

construction. Let us find out who was entitled to this amount.

( 45 ) T. S. Mann son of the plaintiff and husband of Amarjit Kaur, defendant No. 4,

had a life insurance policy The plaintiff was the nominee in the insurance policy. T.

S. Mann died on 10-7-65. It has been stated on behalf of the plaintiff that the

insurance amount of Rs. 11,328/ was payable to the plaintiff, being a nominee,

whereas it is alleged on behalf of defendant No. 4 that this amount was payable to

the widow being a legal heir. In this connection it has to be seen whether such an

amount is payable to a nominee or to an heir.

( 46 ) IT may be observed here that Smt Amarjit Kaur, defendant No. 4 is not the

sole legal heir of her deceased husband. The deceased had also left behind a

daughter and his mother. The estate of the deceased had devolved on these three

legal heirs. It has been argued on behalf of the plaintiff that if it is held that the

nominee of the policy had no right, Amarjit Kaur could at the most claim l/3rd share

(b) From Harbail Singh Rs. 3000. 00

(c) From Gurbachan Singh Rs. 3000. 00

(d) From Gurdial Singh Rs. 2800. 00

(e) From School Friends Rs. 1150. 00

3. Income from Land Rs. 8500. 00

4. Provident Fund Rs. 1106. 00

5. Gratuity Rs. 226. 00

6. Savings from Nov. , 1964

to July, 1964. Rs. 3200. 00

in the estate of the deceased and not the entire estate. There is no dispute about

this legal position. It is, however, contended that the plaintiff was entitled to the

whole insurance amount, being a nominee. In this connection Shri L. R. Gupta, the

learned counsel for the plaintiff, has relied on sub-secs. (1) and (6) of S. 39 of the

Insurance Act, 1938. These provisions are in following terms :" (1) The holder of a

policy of life insurance on his own life may, when effecting the policy or at any time

before the policy matures for payment, nominate the person or persons to whom

the money secured by the policy shall be paid in the event of his death: (6) Where

the nominee or, if there are more nominees than one, a nominee or nominees

survive the person whose life is insured, the amount secured by the policy shall be

payable to such survivor or survivors. "it is submitted that under the above

provisions the whole insurance amount was payable to the plaintiff, being the

nominee. In support of his contention Shri Gupta has relied on Matin v. Mahomed

Matin, AIR 1922 Lah 145 in which it was held that nomination in an insurance is like

a will. It is submitted that the right to secure the amount vests in the nominee. He is

not a trustee. Another case relied on by Shri Gupta is Kesari Devi v. Dharma Devi,

AIR 1962 All 355 [LQ/AllHC/1961/235] . In this case the assured died but before the policy amount could

be obtained by the nominee, he too died. It was held that the heirs of the nominee

and not that of the assured were entitled to the payment under the policy.

( 47 ) THE learned counsel for the defendants has relied on Life Insurance

Corporation of India v. United Bank of India Ltd. , AIR 1970 Cal 513 [LQ/CalHC/1970/85] , where it was

held that the proceeds of policy though payable to nominee do not vest in him.

Reliance was placed on sub-sections (1) to (5) of Section 39, but sub-section (6)

was not considered and discussed. It is sub-sec, (6) which applies in such cases. It

clearly states that the nominee is not merely a trustee or collector of the insurance

policy amount but is the real person entitled to the same.

( 48 ) THUS, Amarjit Kaur, defendant No. 4 cannot bank on this amount of the

insurance policy as the plaintiff and not she, was entitled to this sum. The mere fact

that the plaintiff had authorised her to collect the said amount from the Insurance

Company had not taken away his right in the money. He was the sole person

entitled to this amount.

( 49 ) IT is the case of both the parties that this amount was used for the

construction of the house in question. The amount will, therefore, be considered to

have been spent by the plaintiff after its collection through defendant No. 4.

Moreover, as already pointed out, Smt. Amarjit Kaur is not the sole heir of the

deceased. The daughter and mother of the deceased were also there and they too

had l/3rd share each in the estate of the deceased. The insurance amount was,

however, payable to the nominee alone and, therefore, it belonged to the plaintiff. It

will be deemed to have been spent by the plaintiff.

( 50 ) FURTHER, Major Jaswant Singh has stated that he had given Rs. 5100. 00 in

cash to the plaintiff at the time of the marriage of his daughter. He has admitted

that three cheques were issued. One was issued in the name of the plaintiff, which

was for Rs. 2100. 00, the others were for Rs. 1500. 00 each in the names of T. S.

Mann and Amarjit Kaur. Major Jaswant Singh has not produced his bank pass-book

to show as to who had encashed them. It is stated by the plaintiff that two cheques

for Rs. 1500. 00 were never received by him and that the amounts were

appropriated by T. S. Mann and Amarjit Kaur after encashment. The defendants

have stated that the sum of Rs. 5100. 00 given at the time of marriage was utilised

by the plaintiff for the purchase of the land in the name of T. S. Mann and the

income derived therefrom was spent in the construction of the house. The receipt of

the entire amount by the plaintiff is not proved. It is contended by the learned

counsel for the plaintiff that the land was purchased in the name of T. S. Mann as

he was the only son of the plaintiff, who had retired from the Army. The story of

purchasing the land with the money of Major Jaswant Singh is not proved. The

source of income from the land, therefore, cannot be taken into account while

considering the financial ability either of Amarjit Kaur or of her deceased husband.

( 51 ) ADMITTEDLY T. S Mann was a low paid employee. So was Amarjit Kaur,

defendant No. 4. From their meagre salaries they could hardly make any saving for

the construction of the house. It has been stated by Amarjit Kaur in her letter Ex. P.

34 written to the plaintiff that she and her husband had been paying Rs. 65. 00

each to Major Jaswant Singh during their stay with him and ever after the death of

T. S. Mann, Amarjit Kaur had been paying Rs. 70. 00 per mensem to her father.

Paying of the mess expenses to her father, more especially when she had become a

widow, shows that Major Jaswant Singh was in bad financial position. It was for this

reason that he had not shirked getting mess charges from his daughter even after

she had become a widow. I find force in the contention of Shri Gupta that Major

Jaswant Singh, who was getting mess charges from his daughter after T. S. Manns

death, could not be expected to help his daughter in the construction of the house.

This fact alone seems to be sufficient to show that Major Jaswant Singh had not at

all helped in the construction of the house.

( 52 ) THE other source of income stated by Amarjit Kaur is from tuition. The

evidence produced by her in this regard is most scanty and unplausible. The same is

accordingly rejected.

( 53 ) THE plaintiff has stated that the account of the construction was maintained

by his son T. S. Mann and that at the time of his death at Delhi all the receipts

showing the purchase of building material were in his house. He has further stated

that after his death, all those receipts and other documents had been taken away by

Amarjit Kaur. It is submitted that since those receipts were in the name of the

plaintiff and Kuldip Singh jointly, they have, therefore, been deliberately withheld

from the Court, No receipt has been produced by the defendants about the

purchase of bricks. cement, or other building material. Only two books (one diary

and the other an exercise book) have been produced where the account is

mentioned. They are Exs. D4 and D5. They are not authentic accounts. These

account books had been produced on 14-11-75. e. long after the filing of the written

statements by the defendants. They seem to have been fabricated in order to

support the present case. In my view no value can be attached to such accounts.

( 54 ) ADMITTEDLY Major Jaswant Singh had occupied the first floor of the house as

a tenant of the plaintiff and defendant No. 1 through the Military Estate Officer.

After his retirement, Major Jaswant Singh has continued staying there. T. S. Mann

died on 10-7-65 and Amarjit Kaur had remarried in March, 1968 (see statement of

Public Witness 13 at p. 257 ). The plaintiff had come to Delhi and had started living

in the Barsati of the house. It is stated by the learned counsel for the plaintiff that

the endeavour of the defendants was to oust him from there as he was demanding

his one half share in the property. Reports had been lodged with the police. The

relations had certainly become very strained after Amarjit Kaurs re-marriage.

Naturally the defendants are keen to turn out the plaintiff from the house and have

complete possession.

( 55 ) IT is pointed out by Shri Gupta that in their written statement, jointly filed by

defendants 1 to 3, the plea of benami had not been taken and that it was only an

afterthought. Amarjit Kaur was arrayed as a defendant in the suit at a later stage

after the amendment of the plaint. It was she, who alleged that she was the real

owner, whereas the plaintiff was only a benamidar.

( 56 ) IT is contended on behalf of the plaintiff that never before the filing of the

written statement by Amarjit Kaur. the plea of benami had been taken. On the other

hand all through the plaintiff was acknowledged to be the owner of one half share in

the house. It was on that account that he was pressed to send one half share in the

taxes payable to the Municipal Corporation. Major Jaswant Singh had been writing

time and again to pay the Municipal taxes for the preservation of the property. The

taxes were accordingly paid by the plaintiff to the extent of his one half share. That

itself shows that the plaintiff was never treated by the defendants as a benamidar

but as the real owner. The account in the Bank where the rent was to be deposited

was also opened in the name of the plaintiff and Karamjit Singh, attorney of Kuldip

Singh.

( 57 ) IT is also stated by the plaintiff that he had supervised the construction of the

house and that some of the building material was purchased by him and receipts

were issued in his name. Since all the records were taken away by Amarjit Kaur

after the death of T. S. Mann, he could, therefore, not produce the receipts. It is

pertinent to observe that no receipt issued in the name of Amarjit Kaur, Kuldip Singh

or Major Jaswant Singh before the death of T. S. Mann has been produced.

Documents Exs. P18, P22, P23, P25, P27 to P31, P34, DW16/2 and DW16/3 clearly

show that Amarjit Kaur had clearly admitted in her letters that the plaintiff was real

owner and that is why she rendered the detailed account to him. Jaswant Singh had

also been asking that the plaintiff should pay the taxes. Moreover, when the house

was rented out permission of the plaintiff was also obtained. Jaswant Singh had

failed to pay the liability of the taxes and had threatened the plaintiff that if he

would not pay in time, the penalty which would be imposed on Kuldip Singhs share

would also be paid by him. Jaswant Singh had been paying only the share of his

son.

( 58 ) FROM the evidence discussed above and also from the conduct of the parties

and the admissions made by the defendants, it is abundantly proved that the

plaintiff has one half share in the plot and also in the house constructed thereon.

The expenditure was also incurred by the plaintiff to the extent of his share. The

allegation of Amarjit Kaur that the plaintiff is only a benamidar and that she is the

real owner, has remained unsubstantiated. She has palpably failed to discharge the

onus. Issues Nos. 3 and 4 are accordingly decided against the defendants and in

favour of the plaintiff. Issue No. 5.

( 59 ) THE plaintiff has one half share in the house in dispute. He is, therefore,

entitled to the rendition of accounts from all the defendants from the date of its

completion.

( 60 ) ISSUE No. 7. There is no evidence to show that the plaintiff had authorised

defendant No. 3 to reimburse the rental income withdrawn from the bank or

received otherwise by defendant No. 1 and defendant No. 4. This issue is. therefore,

also decided against the defendants. Relief.

( 61 ) AS a result of the above findings, it is held that the plaintiff is the owner of

one half share in the house in dispute (R-6, Green Park) and that he is entitled to

the partition thereof. He is also entitled to a decree for rendition of accounts.

( 62 ) I accordingly grant a preliminary decree for the partition of the house in

dispute and also for rendition of accounts in favour of the plaintiff and against the

defendants. Costs to follow the final event.

( 63 ) SHRI Arun Kumar, Advocate is appointed as Local Commissioner who will

suggest the mode of partition and also submit his report taking the accounts from

the defendants. Commissioners fee is tentatively fixed at Rupees 1,000. 00 to be

borne by the parties in equal shares. The Commissioner shall go into the accounts

and submit his report regarding the same. The report be submitted within three

months.