Mrs. Shilpi Jain And Others vs M/S. Anil Kumar Bansal (Huf) And ...
2009 Latest Caselaw 1768 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) No. 1999/2006
%                     Date of Decision: April 30, 2009

# Mrs. Shilpi Jain & Ors.
                                                          ..... Plaintiffs

!                     Through: Mr. Rahul Gupta, Advocate

                               Versus

$ M/s Anil Kumar Bansal (HUF) & Ors.
                                                       .....Defendants

^                     Through: Mr. Girish Aggarwal for defendants
                               No. 1 & 2.
                               None for defendants No. 3 & 4.
                               Defendant No. 5 is ex-parte.

CORAM:

HON'BLE MR. JUSTICE S.N. AGGARWAL

1.

Whether reporters of Local paper may be allowed to see the judgment? YES

2. To be referred to the reporter or not? YES

3. Whether the judgment should be reported in the Digest? YES

S.N.AGGARWAL, J (ORAL) The plaintiffs have filed this suit against the defendants

seeking a declaration that the suit property bearing mustil No. 62,

Khasra No. (0-7) admeasuring 36 bigha, 8 biswa situated at village

and PO Kanganheri, Tehsil Najafgarh, New Delhi be declared a HUF

property owned by defendant No. 1 in view of sale deeds dated

22.07.1988 and 27.02.1989. The plaintiffs have further prayed for a

declaration to declare the agreement to sell dated 24.07.2006

between defendants No. 2 to 5 to be void.

2 Briefly stated the facts of the case relevant for disposal of this

suit are that defendant No. 2 is the father of the plaintiffs.

Defendants No. 3 and 4 are the mother and grand mother of the

plaintiffs. Defendant No. 2 being the father of the plaintiffs is the

karta of two HUFs namely Mr. Anil Kumar Bansal (HUF) and M/s Anil

Kumar Bansal & sons (HUF) (defendant No. 1 herein). The suit

property was purchased in the name of these two HUFs through its

karta (defendant No. 2) vide sale deeds dated 22.07.1988 and

27.02.1989.

3 On 24.07.2006, defendants No. 2 to 4 in their individual

capacity entered into an agreement to sell the suit property to

defendant No. 5 for a total sale consideration of Rs.3.90 crores and

have received Rs.39 lacs as advance. The plaintiffs who were the

members of the HUFs were not parties to the said agreement to sell

except that plaintiff No. 3 being minor at the time of agreement

was represented by his father, defendant No. 2 herein.

4 The plaintiffs, feeling themselves aggrieved by the designs of

defendants No. 2 to 4 in selling the suit property to defendant No.

5, filed the present suit for declaration and have prayed for a

declaration that the suit property be declared to be a HUF property

owned by defendant No. 1 and that agreement to sell dated

24.07.2006 entered into between defendants No. 2 to 5 be declared

null and void.

5 Two separate written statements have been filed in this suit,

one is by defendants No. 1 & 2 and the second by defendant No. 5.

Defendants No. 3 and 4 gave a statement to the Court on

20.02.2007 that they did not want to contest this suit. After

20.02.2007, nobody appeared on behalf of defendants No. 3 and 4.

Even defendant No. 5 stopped appearing in the suit after filing his

written statement. Defendant No. 5 was proceeded ex-parte vide

order passed by this Court on 11.08.2008. Thereafter, defendant

No. 5 filed an application under Order 9 Rule 7 CPC being IA No.

4633/2009 seeking setting aside of ex-parte order dated

11.08.2008 against him. This application was dismissed in default

for non-prosecution vide order passed by this Court on 08.04.2009.

Nobody is present on behalf of defendant No. 5 even today. Hence

written statement filed by defendant No. 5 does not merit any

consideration.

6 Defendants No. 1 & 2 in their written statement have not

disputed that the suit property is owned by the HUFs, namely

defendant No. 1 in this suit. Defendants No. 1 & 2 have further

admitted in their written statement that plaintiffs No. 1 & 2 were

not made parties to the agreement to sell as defendant No. 5 did

not want them to sign the said agreement. Defendants No. 1 & 2

have also admitted in their written statement that the plaintiffs

being the members of the HUFs have a share in the suit property

being the co-parceners of the HUFs. However, a plea has been

taken by defendants No. 1 & 2 in their written statement that

defendant No. 2 being the karta of the HUFs had a right to sell the

suit property and it is stated that if the plaintiffs have objection to

the sale, defendant No. 2 is ready and willing to return the advance

of Rs.39 lacs received by him from defendant No. 5 because the

property belongs to HUFs and cannot be sold if the plaintiffs have

objection to the same.

7 From the pleadings of the parties, following issues were

framed in the suit on 11.08.2008.

1. Whether the suit property is owned by HUF the defendant No. 1? OPP.

2. Whether the agreement to sell dated 24th July, 2006 between the defendants No. 2 to 4 and the defendant No. 5 is void? OPP.

3. Relief.

8 The plaintiffs in their evidence have filed only one affidavit of

plaintiff No. 1 to prove their case stated in the plaint. No evidence

has been produced by any of the defendants.

9 I have heard the arguments of Mr. Rahul Gupta, learned

counsel appearing on behalf of the plaintiffs and of Mr. Girish

Aggarwal appearing on behalf of defendants No. 1 & 2. I have also

gone through the entire case file with utmost care. My findings on

the above issues are as follows:-

10 The plaintiffs claim that the suit property is a HUF property

owned by defendant No. 1. They have proved the sale deeds of the

suit property and they are Ex. P-1 and Ex. P-2. A perusal of these

two sale deeds makes it clear that the suit property was purchased

in the name of the HUFs being defendant No. 1 herein. In fact

defendant No. 2 who is the karta of the HUFs has admitted in his

written statement that the suit property is a HUF property. No

evidence has been placed by the defendants on record to rebut the

fact that the suit property was purchased in the name of the HUFs

and that as on date, the said property is owned by the HUFs. I,

therefore, hold that the suit property is owned by defendant No. 1

(HUFs).

11 This issue is decided in favour of the plaintiffs and against the

defendants.

12 It is not disputed that the plaintiffs are the members of the

HUFs (defendant No. 1) and that they are entitled to have a share in

the suit property being the members of the HUFs. Defendants No. 1

& 2 in their written statement have admitted that at least plaintiffs

No. 1 & 2 were not associated or made parties to the agreement to

sell dated 24.07.2006 entered into between defendants No. 2 to 5.

Defendant No. 2 has taken a stand in his written statement that he

was competent to sell the suit property and this stand taken by

him, in my view, is not tenable in law because the law is well

settled that the karta of a HUF can sell the property owned in the

name of HUF only in case of legal necessity for family needs. There

is no evidence on record to show that defendant No. 2 being the

karta of the HUFs had agreed to sell the suit property to defendant

No. 5 for any family need and therefore the alleged transaction of

sale by him at least to the extent of the plaintiffs' share in the suit

property has to be declared null and void. The Court has been

informed that defendant No. 5 who had agreed to purchased the

suit property from defendants No. 2 to 4 has already filed a suit for

specific performance of agreement to sell dated 24.07.2006 and

that suit filed by him is stated to be pending in this Court. The

legality and validity of the right of defendants No. 2 to 4 to sell their

share in the suit property will be considered by the Court in the suit

for specific performance filed by defendant No. 5. However, the

agreement to sell dated 24.07.2006 is void to the extent of the

plaintiffs' share in the suit property as they are admittedly the

members of the HUFs and were not made parties to the said

agreement to sell.

13 In view of the above, I hold that the agreement to sell dated

24.07.2006 is void to the extent of the plaintiffs' share in the suit

property. This issue is decided accordingly in favour of the plaintiffs

and against the defendants.

RELIEF

14 In view of my findings on the above issues, this suit is decreed

in the following terms:-

1 The suit property bearing mustil No. 62, Khasra No. (0-

7) admeasuring 36 bigha, 8 biswa situated at village and PO Kanganheri, Tehsil Najafgarh, New Delhi is declared to be a HUF property owned by defendant No. 1 and

2 The sale agreement dated 24.07.2006 between defendants No. 2 to 4 and defendant No. 5 is declared void to the extent of the plaintiffs' share in the suit property.

15 In the peculiar facts of this case, the parties are left to bear

their own costs.

April 30, 2009       S.N.AGGARWAL
a                         [JUDGE]