* IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No.2711/2015 % 28 th October, 2015 SH. DEEPAK AGGARWAL Through:... Plaintiff Mr. Bhupesh Narula, Advocate. versus SH. RAJ GOYAL AND ORS. Through:... Defendants CORAM: HON BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL) I.A. No.18670/2015 (condonation of delay) 1. For the reasons stated in the application, delay of 61 days in refiling is condoned. I.A. stands disposed of. I.A. No.18669/2015 (exemption) 2. Exemption allowed subject to just exceptions. I.A. stands disposed of. I.A No. /2015 (under Order VI Rule 17 CPC) (Be registered) 3. This application is allowed. Amended plaint is taken on record. CS(OS) No.2711/2015 Page 1 of 14
+ CS(OS) No.2711/2015 and I.A. No.18668/2015 (stay) 4. This suit is coming up today at the admission stage for the fourth time. For the first time the suit came up on 7.9.2015 and on the second time the suit came up on 1.10.2015. On these dates it was observed that the suit may have to be dismissed at the stage of admission itself because the requisite ingredients of cause of action of existence of HUF properties were not mentioned in the plaint and therefore the suit would be barred by the Benami Transactions (Prohibition) Act, 1988. The Orders dated 7.9.2015 and 1.10.2015 read as under:- Order dated 7.9.2015 CS(OS) 2711/2015, I.A. Nos.18669/2015 (Exemption), 18670/2015 (Condonation of delay in re-filing) & 18668/2015 (Stay) 1. No one appeared for plaintiff in the first call. No one appears for the plaintiff even in the second call. It is noticed that in this suit which is for partition, the averments which are made with respect to a HUF, are not sufficient in law to make a complete cause of action of existence of HUF and its properties for the plaintiff to seek reliefs of partition, rendition of accounts etc. In fact the suit, consequently, will be barred by The Benami Transactions (Prohibition) Act, 1988. 2. Since no one appears for the plaintiff, in the interest of justice this suit is re-notified, however, if no one appears on the next date of hearing appropriate orders will be passed. 3. List on 1 st October, 2015. Order dated 1.10.2015 1. A plaint has to have clear cut averments as to on which cause of action plaintiff claims ownership rights and hence partition of a suit property. Firstly, the prayer clause states that the properties stated in the CS(OS) No.2711/2015 Page 2 of 14
plaint be partitioned without stating what are the properties of which partition is sought in terms of the prayer clause and the plaint contains quite a few properties, and that too in different names. The plaint is also totally vague as to how plaintiff is claiming to be the owner as to whether the properties have devolved upon the plaintiff and which properties were owned by the predecessor of the plaintiff or if properties are HUF properties then how the properties are HUF properties and how and when the HUF came into existence. 2. In law, there have to be clear cut channels and chapters of causes of action with respect to the reliefs claimed, and which are conspicuous by their absence in the present plaint. 3. I have already adjourned the matter on 7.9.2015 when none was present for the plaintiff and which order also notes that the suit may possibly be barred by The Benami Transactions (Prohibition) Act, 1988. Counsel for the plaintiff states that he will take steps to amend the plaint and which plaint must necessarily specify exactly and in which manner qua which property rights arise in favour of the plaintiff with details as to how and when such rights arose. 4. List on 20 th October, 2015. 5. It is made clear that in case necessary steps are not taken before the next date of hearing, appropriate orders will be passed in the suit on the next date of hearing. 5. As per the amended plaint filed, plaintiff seeks the relief of partition for a total of 16 immovable properties which are contained at serial nos.1(1) to 1(7), 1(9), 1(11) to 1(16), 1(18) and 1(19) of the prayer clauses of the plaint. Properties at serial nos.1(8) & 1(17) are shares and bonds, serial nos.1 (10) & 1(20) pertains to sale proceeds of immovable properties already disposed of and the property at serial no.1(21) is of family jewellery. These 21 properties, CS(OS) No.2711/2015 Page 3 of 14
16 of which are immovable properties of which partition is sought, as stated in the prayer clause are as under:- S. NO. PARTICULARS OF PROPERTY SHARE OF PLAINTIFF 1. Flat No.8262-8263, New Anaj Mandi, Filmistan, Delhi 2. H. No.4522, Jai Mata Market, Tri Nagar, Delhi- 35 (136 sq. yards) having plot number 73 out of khasra no.165 Village Chowkri Mubarkabad, Delhi, abadi known as ram nagar, Tri Nagar Delhi-110035. 3. H. No.2790 Onkar Nagar, Tri Nagar, Delhi-35 (100 sq. yards) earlier plot No.4 out of Khasra No.627/170, Village Chowkri Mubarkabad, Delhi, colony known as Onkar Nagar, Tri Nagar, Delhi. 4. Flat No.8260-8261, New Anaj Mandi, Filmistan, Delhi-6 5. H. No.3359, Jai Mata Market, Tri Nagar, Delhi (100 sq. yards) 6. 160 Harsh Vihar, Pitampura, Delhi-34 (200 sq yds) 7. C-402, Karan Vihar, Part-III, forming part of plot No.5 Khasra no.525, Suleman Nagar, Kirari, Delhi-86. One by sixteen One by sixteen One by sixteen One by forty eight One by sixteen 8. Shares and bonds of around Rs.5 lakhs 9. Shop No.8288/1, New Anaj Mandi, Filmistan, Delhi-110006. 10. Sale proceed of 6 lacs of tenancy right 8399, New Anaj Mandi Bara Hindu Rao Filmistan CS(OS) No.2711/2015 Page 4 of 14
Delhi and 11 machinery and goodwill 11. B-371, Hari Enclave, Part-II, out of Khasra no.525, Kirari, Suleman Nagar, Delhi-110086 admeasuring about 110 sq. yds. (Plot no.16, Khasra no.525, Kirari, Ex-2, Delhi). 12. Plot no.c-415, Karan Vihar, Part-III, out of plot no.233, khasra no.534, Kirari, Suleman Nagar, Delhi-110086 admeasuring about 110 sq. yds. 13. Plot no.17 out of khasra No.528, Kirari, Suleman Nagar, Ex-2, Delhi-110086 admeasuring about 200 sq yds. 14. Plot no.32 out of Khasra No.526, Kirari, Suleman Nagar, Delhi-110086 admeasuring about 200 sq yds. 15. Plot no.c-21, Khasra no.45, Budh Vihar, Phase- II, Delhi admeasuring about 200 sq. yds. 16. Plot no.o-1/33, Khasra no.83, Budh Vihar, Phase-I, Delhi admeasuring about 100 sq. yds. present market value of the property is about Rs.75 lakhs 17. Shares and bonds of about 10 lakhs 18. Plot No.B-388, Hari Enclave, Part-II Out of Khasra No.525, Kirari Suleman Nagar, Delhi-86 (200 sq. yards). 19. One plot out of Khasra No.528, Kirari Suleman Nagar, Delhi-86 (200 Sq. yards). 20. Sale proceeds of two plots bearing number G- 27/149-150, Sector-3, Rohini, Delhi-110085 for around 49 lakhs, and another plot no.246 out of khasra no.159 at Sheeshmahal Enclave, Kirari admeasuring 250 sq. yds. for around 68 lakhs One by sixteen One by sixteen 21. Family jewellery valuing about Rs.1 crore CS(OS) No.2711/2015 Page 5 of 14
6. So far as the immovable properties falling between serial nos.1(11) to 1(16) are concerned, they are admittedly purchased, as per averments made in the plaint, by means of title documents in the name of defendant no.2/smt. Shakuntala Devi and who is the mother of the plaintiff. Once title documents exist in favour of a particular person i.e Smt. Shakuntala Devi/defendant no.2, it is Smt. Shakuntala Devi who would be the owner of such properties unless it is averred in the plaint as to how an HUF existed or was created. However, there are no averments in the plaint as to how an HUF existed or was created, and which aspect in detail is dealt with hereinbelow. 7. As per the facts of the present case, grandfather of the plaintiff is Sh. Tulsi Ram, and who admittedly died on 26.2.1983 i.e after passing of the Hindu Succession Act, 1956. It is now settled law that if a person dies after passing of the Hindu Succession Act, 1956, and properties owned by the deceased are inherited by his male successors-in-interest, then, the male successors-in-interest take the properties as self-acquired properties and not as HUF properties. The only exception to this position is that an HUF being created for the first time after 1956 by throwing property or properties in common hotchpotch. This is the law in view of the ratio laid down in the CS(OS) No.2711/2015 Page 6 of 14
two judgments of the Supreme Court in the cases of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567 and Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204. The relevant para of the judgment in the case of Yudhishter (supra) reads as under:- 10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. MANU/SC/0265/1986MANU/SC/0265/1986 : [1986]161ITR370(SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which developed upon the father CS(OS) No.2711/2015 Page 7 of 14
of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house. 8. Therefore, once the grandfather Sh. Tulsi Ram died on 26.2.1983 and the father of the plaintiff Sh. Duli Chand died on 20.8.1991, inheritance by Sh. Duli Chand of the properties of Sh. Tulsi Ram would be as self-acquired properties by Sh. Duli Chand, and these properties would not be HUF properties in the hands of Sh. Duli Chand for the male successors-in-interest of Sh. Duli Chand to have a right in the same by birth. Plaintiff therefore can claim no rights in the properties of his father Sh. Duli Chand allegedly on the ground of HUF properties once these properties would be self-acquired properties in the hands of Sh. Duli Chand as they have been inherited by Sh. Duli Chand from Sh. Tulsi Ram only in the year 1983 i.e after passing of the Hindu Succession Act, 1956 and as read with the ratios of the judgments of the Supreme Court in the cases of Chander Sen and Others(supra) and Yudhishter (supra). 9. Let us now examine the general averments of the plaint as to whether it is stated that Sh. Tulsi Ram or Sh. Duli Chand created an HUF for the first time by throwing properties in common hotchpotch. It is sine qua non upon the plaintiff to aver in the plaint of creation of an HUF by CS(OS) No.2711/2015 Page 8 of 14
throwing the properties in common hotchpotch and only on which basis an HUF can come into existence after passing of the Hindu Succession Act in 1956. General averments that properties are family properties or that businesses were carried out for the benefit of the family cannot in law result either in averments constituting a cause of action of HUF properties or in creation of an HUF, and which is only created/pleaded to exist on the mentioning of a specific date/month/year when an HUF is created for the first time by throwing the properties in common hotchpotch. The plaint is conspicuously silent as regards any averments of either Sh. Tulsi Ram or Sh. Duli Chand creating an HUF after the year 1956 by throwing the properties into common hotchpotch. The only averment is that businesses were carried on for the benefit of the family members and properties were purchased for the benefit of family members and which averments in law do not create or show a cause of action existing of an HUF being created by throwing the properties in common hotchpotch. Also, there are no averments in the plaint as to the properties being shown as HUF properties either in the house tax record or in income tax record or any other public record whatsoever. 10. In view of the above, so far as the properties which are purchased by means of title papers in the name of defendant no.2 or the CS(OS) No.2711/2015 Page 9 of 14
defendant no.2 jointly with Sh. Brijesh Garg/defendant no.14 or any other defendant are concerned, these properties would be the properties of these persons and plaintiff cannot claim any rights to these properties. The suit seeking partition and possession of these immoveable properties is therefore dismissed. 11. The aforesaid discussion will cover immovable properties falling within serial nos.1(4) to 1(7), 1(9), 1(11) to 1(16) and 1(18) and 1(19) of the prayer clause in the plaint. Properties nos.1(11) to 1(16) are of the mother/defendant no.2 and in whose name the title papers exist as per the averments in the plaint and the two properties being at serial nos.1(18) and 1(19) of the prayer clause in the plaint are owned by the defendant nos.2 and 14 and in whose name the property papers exist as per the plaint. Accordingly, the suit seeking the relief of partition of these properties is dismissed as plaintiff does not have any right to these properties inasmuch as no HUF is shown to exist. 12. That takes us to the properties which were purchased by the father Sh. Duli Chand jointly with the defendant no.8/sh. Kanwar Sain and which properties are at serial nos.1(1) to 1(3) of the prayer clause in the plaint. The discussion given above with respect to non-existence of an HUF CS(OS) No.2711/2015 Page 10 of 14
will also similarly apply so far as these properties not being HUF properties are concerned and therefore the relief seeking partition of these properties on the ground that these properties are HUF properties would stand rejected and the suit dismissed. 13. The only other way in which plaintiff could have claimed a share to the properties which were owned jointly by his father Sh. Duli Chand with any other person was if Sh. Duli Chand had died intestate i.e without leaving behind a Will. Admittedly, the father Sh. Duli Chand expired long back on 20.8.1991 and there is no whisper/averment in the plaint that the father Sh. Duli Chand died intestate without leaving behind any Will. Though counsel for the plaintiff today on the fourth date of admission states that actually some other suit is filed by defendant no.2 in which it is stated by the defendant no.2 that her husband and the father of plaintiff died intestate, but so far as averments in this plaint with respect to the plaintiff being an owner on account of the father having died intestate and hence plaintiff having a share are concerned, the same are conspicuous by their absence and therefore the plaint does not disclose a cause of action of the entitlement of the plaintiff to claim a share in the properties owned by the father and the plaint so far as these three properties are concerned is thus CS(OS) No.2711/2015 Page 11 of 14
rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for lacking in averments with respect to a cause of action of the plaintiff having ownership of these properties by inheritance. Plaintiff, of course, will have liberty in accordance with law for filing a fresh suit with respect to these properties because rejection of the plaint under Order VII Rule 11 CPC will not prevent the plaintiff from filing a fresh suit as Order VII Rule 13 CPC allows filing of a fresh suit on a proper cause of action being averred. 14. The discussion given above with respect to the properties jointly in the name of Sh. Duli Chand and defendant no.8/sh. Kanwar Sain will equally apply to the properties which are standing in the name of the grandmother Smt. Parvati Devi (who has since expired on 5.5.1990) and Sh. Anil Aggarwal/defendant no.10. Also, Smt. Parvati Devi being the grandmother of the plaintiff, therefore on her death the properties of Smt. Parvati Devi will be inherited by Sh. Duli Chand as self-acquired properties and therefore plaintiff would not in any case have a right to any properties owned by Sh. Duli Chand as inherited by him from his mother Smt. Parvati Devi, unless of course it is found that Sh. Duli Chand died without leaving behind any Will and with respect to which aspect liberty has also been given CS(OS) No.2711/2015 Page 12 of 14
as stated above to the plaintiff to file an appropriate suit for seeking rights to the suit properties owned by the father of the plaintiff Sh. Duli Chand if Sh. Duli Chand has died without leaving behind any Will. I may note that the same reasoning will also apply with respect to property no.3359, Jai Mata Market, Tri Nagar, Delhi which is said to have been purchased in the name of Sh. Duli Chand and Smt. Saroj Bala/defendant no.9. 15. The reliefs with respect to any other movable properties which were owned by Sh. Duli Chand and to which if plaintiff has a right, as stated above, the plaintiff will have to file an appropriate suit making the requisite averments constituting the cause of action for seeking share in the properties of the father Sh. Duli Chand. 16. In view of the above, the suit is dismissed so far as the cause of action seeking partition on the ground that the properties are family properties is concerned, inasmuch as there is no concept of family properties and an HUF does not exist as required by law for the plaintiff to claim a right in the properties on the ground that these properties are HUF properties. So far as the properties which are said to have been owned by the father Sh. Duli Chand are concerned, the plaintiff on making averments with respect to a complete cause of CS(OS) No.2711/2015 Page 13 of 14
action, the plaintiff will be entitled in accordance with law to file a fresh suit. Suit is dismissed and disposed of in terms of the aforesaid observations. OCTOBER 28, 2015 Ne VALMIKI J. MEHTA, J CS(OS) No.2711/2015 Page 14 of 14