Delhi High Court
Shri Gulab Singh vs Shri Dal Chand Lowadia & Ors. on 28 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.82/2013
% 28th January, 2014
SHRI GULAB SINGH ......Appellant
Through: Mr. Ashok Gurnani, Advocate.
VERSUS
SHRI DAL CHAND LOWADIA & ORS. ...... Respondents
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal is filed under Section 100 of Code
of Civil Procedure, 1908 (CPC) impugning the judgments of the courts
below; of the trial court dated 3.8.2009 and the appellate Court dated
22.12.2012; by which the suit of the appellant/plaintiff for declaration and
injunction with respect to property bearing Municipal No.3738, Gali No.17,
Rehghar Pura, Karol Bagh, Delhi-110005 was dismissed. In the suit,
RSA No.82/2013 Page 1 of 4
declaration was prayed that the registered sale deed dated 28.3.1990
executed by the father of the appellant/plaintiff late Sh. Panna Lal in favour
of the defendant is illegal and void because the property was an HUF
property and not the exclusively owned property of the father.
2. Both the courts below have held that the appellant/plaintiff has
failed to prove existence of any HUF whatsoever. In this Court, I put a
query to the counsel for the appellant as to what documentary evidence the
appellant/plaintiff has led to prove existence of HUF and to which query it is
admitted that not a single document has been filed to show the existence of
HUF between the appellant/plaintiff and father late Sh. Panna Lal. It is only
argued before this Court that the father late Sh. Panna Lal was carrying out a
business in which appellant/plaintiff was helping and therefore the property
purchased from the funds of that business had become HUF property.
3. The argument urged on behalf of the appellant/plaintiff is a
totally misconceived argument because HUF does not come into existence
merely because a son helps his father in business. HUF is a specific creation
of law whereby either the same comes into existence for the first time when
member of HUF throws property into common hotch-potch or if the property
inherited is by a male from his parental ancestors before the passing of the
Hindu Succession Act, 1956. I may note that Supreme Court in the
RSA No.82/2013 Page 2 of 4
cases of Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen
and Ors. AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar AIR 1987
SC 558 has held that after passing of the Hindu Succession Act, 1956 merely
because a person inherits property from his parental ancestors, the inherited
property will not be an HUF property in the hands of the person who inherits
the same, unless and until an HUF is shown to be existing on the date of
death of the ancestor. In these judgments, Supreme Court has held that if a
property is inherited prior to the passing of the Hindu Succession Act, 1956
from the parental ancestors only then in such circumstances by the mere
factum of inheritance the property becomes HUF property, but that is not the
legal position after passing of the Hindu Succession Act, 1956.
4. In the present case, the defendant is a purchaser for valuable
consideration by means of a registered sale deed. On a far fetched claim of
existing of an HUF, which is not at all shown to be existing by any
documentary evidence, valuable rights in the property cannot be got
extinguished by the appellant/plaintiff. I may note that the sale deed in
favour of the defendant no.1 executed by the father Sh. Panna Lal is dated
28.3.1990 and has been proved and exhibited in the court below as
Ex.DW1/B.
RSA No.82/2013 Page 3 of 4
5. In view of the above, no substantial question of law arises and
the appeal is therefore dismissed, leaving the parties to bear their own costs.
JANUARY 28, 2014 VALMIKI J. MEHTA, J.
Ne
