Delhi High Court
Smt. Raj Bala & Anr. vs Smt. Kusum & Ors. on 10 May, 2016
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 225/2016 & I.A 5814/2016 (stay)
% 10th May, 2016
SMT. RAJ BALA & ANR. ..... Plaintiffs
Through: None.
versus
SMT. KUSUM & ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. No one appeared for the plaintiffs on the first call. Even on the
second call after exhausting the supplementary list when the matter is called out
for the second time, no one appears for the plaintiffs.
2. This suit for partition is filed by the two plaintiffs Smt. Raj Bala and
Smt. Kiran Bala who are the daughters of late Sh. Khem Chand. Defendant no.1
is the second wife of Sh. Khem Chand and defendant nos.2 to 5 are the children
from the second wife of Sh. Khem Chand. Plaintiffs are the two daughters from
the first wife of Sh. Khem Chand namely Smt Shanti Devi. Smt. Shanti Devi
expired in 1984 and thereafter Sh. Khem Chand married the defendant no.1 in
1985.
CS(OS) No.225/2016 Page 1 of 12
3. The cause of action as set up in the plaint is that the suit properties in
the hands of Sh. Khem Chand were ancestral properties and therefore, plaintiffs
have a right in these ancestral properties. Effectively, though it is not specifically
pleaded, plaintiffs plead that the suit properties are HUF properties because the
father Sh. Khem Chand inherited the same from his ancestors. These averments
have been made in paras 5 to 7 of the plaint and these paras read as under:-
"5. That the plaintiffs are the owners of 1/6th and 1/7th share respectively
in the property bearing Khasra no.487/38 and Khatoni No. 31/32
measuring about 354 square yards and house no.-SRS-132, New 63,
Near Toofani Chai wale ki Shop, village Peeragarhi, Delhi measuring
about 250 square yards as shown in the site plan by way of intestate,
being daughters of Shri Khem Chand (since deceased) who died on
11/02/2009 leaving behind the plaintiffs and the defendants who are
the legal heirs upon whom the property in question shall devolve upon
after the demise of the plaintiff father.
6. That the property bearing Khasra no. 487/38 and Khatoni no. 31/32
measuring about 354 square yards and house no.-SRS-132, New 63,
Near Toofani Chai wale ki Shop, village Peeragarhi, Delhi (herein
after mentioned as suit property) are ancestral property belonging to
Late Shri Man Singh the grandfather of the plaintiffs and defendants
No.2 to 5 who had acquired the property from his ancestors.
7. That the suit property given in Schedule of the petition is an ancestral
property where there was no valid partition was carried out by meter
and bounds among the legal heirs of the said Shri Khem Chand (since
deceased) and all of them had joint possession over the suit property."
4. It is also seen that in the plaint, plaintiffs talk of execution of
documents by Sh. Khem Chand in favour of his second wife/defendant no.1, and
which aspect is stated in para 10 of the plaint, but no date of execution of
documents is given. A reference however to the reply given by the defendants to
the legal notice of the plaintiffs shows that transfer by Sh. Khem Chand to the
CS(OS) No.225/2016 Page 2 of 12
defendant no.1 of the suit property was way back on 10.7.2000 i.e around 16
years before the filing of the suit.
5. In accordance with the aforesaid cause of action mentioned in the
plaint, the following prayer clauses have been made in the plaint.
"PRAYER
It is therefore, respectfully prayed that the Hon‟ble Court may be graciously
pleased enough to:
(a) Pass a decree for partition of the suit property equivalent to share of
the plaintiffs in favour of the plaintiffs and against the defendants, thereby
directing the defendants to hand over the peaceful and vacant share of the
plaintiffs out of the suit property bearing Khasra no.487/38 and Khatoni
no.31/32 measuring about 354 square yards and house No.-SRS-132, New
63, Near Toofani Chai wale ki Shop, village Peeragarhi, Delhi measuring 250
square yards more specifically shown in red colour in the site plan annexed.
(b) Pass a decree for declaration of ownership upon extent of 1/6TH each
of share of the suit properties to the plaintiffs as shown in red colour in the
site plan;
(c) Pass a decree for possession upon extent of 1/6TH each shares of the
suit properties to the plaintiffs as shown in red colour in the site plan.
(d) Pass a decree for permanent injunction declaration of ownership upon
extent of 1/6TH each shares of the suit properties to the plaintiffs as shown in
red colour in the site plan
(e) Cost of the suit be also awarded in favour of the plaintiff and against
the defendants.
(f) Any other relief which this Hon‟ble Court may deem fit and proper be
also granted in favour of the plaintiff and against defendants."
6. In my opinion, the suit plaint as framed does not show existence of a
legal cause of action because inheritance of ancestral property no longer creates
HUF after 1956 and as held by the Supreme Court in its judgments in the cases of
Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and Commissioner of Wealth
Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567. In
CS(OS) No.225/2016 Page 3 of 12
these judgments the Supreme Court has held that Section 8 of the Hindu
Succession Act, 1956 has superseded the traditional concept of Hindu law
whereby if a person inherits a property from his paternal ancestors up to three
degrees, automatically an HUF comes into existence, and that after coming into
force of Section 8 of the Hindu Succession Act, inheritance of ancestral property
after 1956 does not create an HUF property and inheritance of ancestral property
after 1956 is a self-acquired property of the person who inherits the same. It is
seen in the plaint that the father Sh. Khem Chand, the husband of defendant no.1
and father of the plaintiffs, died on 11.2.2009 but when Sh. Khem Chand
inherited the property from his father namely Sh. Man Singh, ie the grandfather of
the plaintiffs, is not mentioned in the plaint. Since in law, inheritance after 1956
of an ancestral property does not result in creation of HUF property, it was
necessary for the plaintiff to state in the plaint that Sh. Man Singh died before
1956 and Sh. Khem Chand inherited the property from Sh. Man Singh prior to
1956, and which aspects are not pleaded/mentioned in the plaint. Therefore,
inheritance by Sh. Khem Chand from his father Sh. Man Singh will not result in
creation of HUF because it is not stated that inheritance is prior to 1956, and thus
inheritance by Sh. Khem Chand will have to be taken after 1956 resulting in the
ratios of the judgments of the Supreme Court in the cases of Chander Sen and
Others (supra) and Yudhishter (supra) applying and the suit property thus being the
self-acquired property of Sh. Khem Chand.
CS(OS) No.225/2016 Page 4 of 12
7. I have considered the ratios of the judgments of the Supreme Court
in the cases of Chander Sen and Others (supra) and Yudhishter (supra) in the case of
Surender Kumar Vs. Dhani Ram and Ors., 227 (2016) DLT 217 wherein I have
analyzed the different scenarios of pre 1956 and post 1956 position as to what
should be the averments made in the plaint for creating a cause of action of
existence of HUF and its properties inasmuch as after 1956 there is no automatic
creation of HUF by inheritance of ancestral property. The relevant paras of the
judgment in the case of Surender Kumar (supra) read as under:-
"4. Plaintiff claims that as a son of defendant no.1 and as a
grandson of late Sh. Jage Ram, plaintiff is entitled to his share as a coparcener
in the aforesaid suit properties on the ground that the properties when they
were inherited by late Sh. Jage Ram were joint family properties, and
therefore, status as such of these properties as HUF properties have continued
thereby entitling the plaintiff his rights in the same as a coparcener.
5. The Supreme Court around 30 years back in the judgment in
the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander
Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu
Succession Act, 1956 the traditional view that on inheritance of an immovable
property from paternal ancestors up to three degrees, automatically an HUF
came into existence, no longer remained the legal position in view of Section 8
of the Hindu Succession Act, 1956. This judgment of the Supreme Court in
the case of Chander Sen (supra) was thereafter followed by the Supreme
Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein
the Supreme Court reiterated the legal position that after coming into force of
Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property
after 1956 does not create an HUF property and inheritance of ancestral
property after 1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the cases of Chander
Sen (supra) and Yudhishter (supra), in law ancestral property can only
become an HUF property if inheritance is before 1956, and such HUF
property therefore which came into existence before 1956 continues as such
even after 1956. In such a case, since an HUF already existed prior to 1956,
thereafter, since the same HUF with its properties continues, the status of joint
Hindu family/HUF properties continues, and only in such a case, members of
such joint Hindu family are coparceners entitling them to a share in the HUF
properties.
CS(OS) No.225/2016 Page 5 of 12
7. On the legal position which emerges pre 1956 i.e before
passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of
the Hindu Succession Act, 1956, the same has been considered by me recently
in the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh &
Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I have
referred to and relied upon the ratio of the judgment of the Supreme Court in
the case of Yudhishter (supra) and have essentially arrived at the following
conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and
there is no HUF existing at the time of the death of such a person, inheritance
of an immovable property of such a person by his successors-in-interest is no
doubt inheritance of an „ancestral‟ property but the inheritance is as a self-
acquired property in the hands of the successor and not as an HUF property
although the successor(s) indeed inherits „ancestral‟ property i.e a property
belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family
can come into existence after 1956 (and when a joint Hindu family did not
exist prior to 1956) is if an individual‟s property is thrown into a common
hotchpotch. Also, once a property is thrown into a common hotchpotch, it is
necessary that the exact details of the specific date/month/year etc of creation
of an HUF for the first time by throwing a property into a common hotchpotch
have to be clearly pleaded and mentioned and which requirement is a legal
requirement because of Order VI Rule 4 CPC which provides that all
necessary factual details of the cause of action must be clearly stated. Thus, if
an HUF property exists because of its such creation by throwing of self-
acquired property by a person in the common hotchpotch, consequently there
is entitlement in coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited
prior to 1956, and such status of parties qua the properties has continued after
1956 with respect to properties inherited prior to 1956 from paternal ancestors.
Once that status and position continues even after 1956; of the HUF and of its
properties existing; a coparcener etc will have a right to seek partition of the
properties.
(iv) Even before 1956, an HUF can come into existence even without
inheritance of ancestral property from paternal ancestors, as HUF could have
been created prior to 1956 by throwing of individual property into a common
hotchpotch. If such an HUF continues even after 1956, then in such a case a
coparcener etc of an HUF was entitled to partition of the HUF property.
8. The relevant paragraphs of the judgment in the case of Sunny
(Minor) (supra) are paragraphs 6 to 8 and which paras read as under:-
"6. At the outset, it is necessary to refer to the ratio of the
judgment of the Supreme Court in the case of Yudhishter Vs. Ashok
CS(OS) No.225/2016 Page 6 of 12
Kumar, (1987) 1 SCC 204 and in para 10 of the said judgment the
Supreme Court has made the necessary observations with respect to when
HUF properties can be said to exist before passing of the Hindu
Succession Act, 1956 or after passing of the Act in 1956. This para 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 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." (emphasis is mine)
7(i). As per the ratio of the Supreme Court in the case of
Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the
position which traditionally existed with respect to an automatic right of a
person in properties inherited by his paternal predecessors-in-interest from
the latter‟s paternal ancestors upto three degrees above, has come to an
end. Under the traditional Hindu Law whenever a male ancestor inherited
any property from any of his paternal ancestors upto three degrees above
him, then his male legal heirs upto three degrees below him had a right in
that property equal to that of the person who inherited the same. Putting it
in other words when a person „A‟ inherited property from his father or
grandfather or great grandfather then the property in his hand was not to
be treated as a self-acquired property but was to be treated as an HUF
property in which his son, grandson and great grandson had a right equal
to „A‟. After passing of the Hindu Succession Act, 1956, this position has
undergone a change and if a person after 1956 inherits a property from his
paternal ancestors, the said property is not an HUF property in his hands
and the property is to be taken as a self-acquired property of the person
who inherits the same. There are two exceptions to a property inherited by
such a person being and remaining self-acquired in his hands, and which
will be either an HUF and its properties was existing even prior to the
passing of the Hindu Succession Act, 1956 and which Hindu Undivided
Family continued even after passing of the Hindu Succession Act, 1956,
and in which case since HUF existed and continued before and after 1956,
the property inherited by a member of an HUF even after 1956 would be
HUF property in his hands to which his paternal successors-in-interest
upto the three degrees would have a right. The second exception to the
property in the hands of a person being not self-acquired property but an
HUF property is if after 1956 a person who owns a self-acquired property
throws the self-acquired property into a common hotchpotch whereby such
property or properties thrown into a common hotchpotch become Joint
Hindu Family properties/HUF properties. In order to claim the properties
in this second exception position as being HUF/Joint Hindu Family
properties/properties, a plaintiff has to establish to the satisfaction of the
court that when (i.e date and year) was a particular property or properties
thrown in common hotchpotch and hence HUF/Joint Hindu Family
created.
(ii) This position of law alongwith facts as to how the properties
are HUF properties was required to be stated as a positive statement in the
plaint of the present case, but it is seen that except uttering a mantra of the
properties inherited by defendant no.1 being „ancestral‟ properties and thus
the existence of HUF, there is no statement or a single averment in the
plaint as to when was this HUF which is stated to own the HUF properties
came into existence or was created ie whether it existed even before 1956
or it was created for the first time after 1956 by throwing the
property/properties into a common hotchpotch. This aspect and related
aspects in detail I am discussing hereinafter.
8(i). A reference to the plaint shows that firstly it is stated that Sh.
Tek Chand who is the father of the defendant no.1 (and grandfather of Sh.
Harvinder Sejwal and defendants no.2 to 4) inherited various ancestral
properties which became the basis of the Joint Hindu Family properties of
the parties as stated in para 15 of the plaint. In law there is a difference
between the ancestral property/properties and the Hindu Undivided Family
property/properties for the pre 1956 and post 1956 position as stated above
because inheritance of ancestral properties prior to 1956 made such
properties HUF properties in the hands of the person who inherits them,
but if ancestral properties are inherited by a person after 1956, such
inheritance in the latter case is as self-acquired properties unless of course
it is shown in the latter case that HUF existed prior to 1956 and continued
thereafter. It is nowhere pleaded in the plaint that when did Sh. Tek
Chand father of Sh. Gugan Singh expire because it is only if Sh. Tek
Chand father of Sh. Gugan Singh/defendant no.1 had expired before 1956
only then the property which was inherited by Sh. Gugan Singh from his
father Sh. Tek Chand would bear the character of HUF property in the
hands of Sh. Gugan Singh so that his paternal successors-in-interest
became co-parceners in an HUF. Even in the evidence led on behalf of the
plaintiffs, and which is a single affidavit by way of evidence filed by the
mother of the plaintiffs Smt. Poonam as PW1, no date is given of the death
of Sh. Tek Chand the great grandfather of the plaintiffs. In the plaint even
the date of the death of the grandfather of the plaintiffs Sh. Gugan Singh is
missing. As already stated above, the dates/years of the death of Sh. Tek
Chand and Sh. Gugan Singh were very material and crucial to determine
the automatic creation of HUF because it is only if Sh. Tek Chand died
before 1956 and Sh. Gugan Singh inherited the properties from Sh. Tek
Chand before 1956 that the properties in the hands of Sh. Gugan Singh
would have the stamp of HUF properties. Therefore, in the absence of any
pleading or evidence as to the date of the death of Sh. Tek Chand and
consequently inheriting of the properties of Sh. Tek Chand by Sh. Gugan
Singh, it cannot be held that Sh. Gugan Singh inherited the properties of
Sh. Tek Chand prior to 1956.
(ii) In fact, on a query put to the counsels for the parties, counsels
for parties state before this Court that Sh. Gugan Singh expired in the year
2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek Chand
died in 1982, inheriting of properties by Sh. Gugan Singh from Sh. Tek
Chand would be self-acquired in the hands of Sh. Gugan Singh in view of
the ratio of the Supreme Court in the case of Yudhister (supra) inasmuch
as there is no case of the plaintiffs of HUF existing before 1956 or having
been created after 1956 by throwing of property/properties into common
hotchpotch either by Sh. Tek Chand or by Sh. Gugan Singh/defendant
no.1. There is not even a whisper in the pleadings of the plaintiffs, as also
in the affidavit by way of evidence filed in support of their case of PW1
Smt. Poonam, as to the specific date/period/month/year of creation of an
HUF by Sh. Tek Chand or Sh. Gugan Singh after 1956 throwing
properties into common hotchpotch.
(iii) The position of HUF otherwise existing could only be if it was
proved on record that in the lifetime of Sh. Tek Chand a Hindu Undivided
Family before 1956 existed and this HUF owned properties include the
property bearing no.93, Village Adhichini, Hauz Khas. However, a
reference to the affidavit by way of evidence filed by PW1 does not show
any averments made as to any HUF existing of Sh. Tek Chand, whether
the same be pre 1956 or after 1956. Only a self-serving statement has been
made of properties of Sh. Gugan Singh being „ancestral‟ in his hands,
having been inherited by him from Sh. Tek Chand, and which statement,
as stated above, does not in law mean that the ancestral property is an
HUF property."
9. I would like to further note that it is not enough to aver a
mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists.
Detailed facts as required by Order VI Rule 4 CPC as to when and how the
HUF properties have become HUF properties must be clearly and
categorically averred. Such averments have to be made by factual references
qua each property claimed to be an HUF property as to how the same is an
HUF property, and, in law generally bringing in any and every property as
HUF property is incorrect as there is known tendency of litigants to include
unnecessarily many properties as HUF properties, and which is done for less
than honest motives. Whereas prior to passing of the Hindu Succession Act,
1956 there was a presumption as to the existence of an HUF and its properties,
but after passing of the Hindu Succession Act, 1956 in view of the ratios of the
judgments of the Supreme Court in the cases of Chander Sen (supra) and
Yudhishter (supra) there is no such presumption that inheritance of ancestral
property creates an HUF, and therefore, in such a post 1956 scenario a mere
ipse dixit statement in the plaint that an HUF and its properties exist is not a
sufficient compliance of the legal requirement of creation or existence of HUF
properties inasmuch as it is necessary for existence of an HUF and its
properties that it must be specifically stated that as to whether the HUF came
into existence before 1956 or after 1956 and if so how and in what manner
giving all requisite factual details. It is only in such circumstances where
specific facts are mentioned to clearly plead a cause of action of existence of
an HUF and its properties, can a suit then be filed and maintained by a person
claiming to be a coparcener for partition of the HUF properties.
10. A reference to the plaint in the present case shows that it is
claimed that ownership of properties by late Sh. Jage Ram in his name was as
joint Hindu family properties. Such a bald averment in itself cannot create an
HUF unless it was pleaded that late Sh. Jage Ram inherited the properties from
his paternal ancestors prior to 1956 or that late Sh. Jage Ram created an HUF
by throwing his own properties into a common hotchpotch. These essential
averments are completely missing in the plaint and therefore making a casual
statement of existence of an HUF does not mean the necessary factual cause of
action, as required in law, is pleaded in the plaint of existence of an HUF and
of its properties.
11. I may note that the requirement of pleading in a clear cut
manner as to how the HUF and its properties exist i.e whether because of pre
1956 position or because of the post 1956 position on account of throwing of
properties into a common hotchpotch, needs to be now mentioned especially
after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter
referred to as „the Benami Act‟) and which Act states that property in the
name of an individual has to be taken as owned by that individual and no
claim to such property is maintainable as per Section 4(1) of the Benami Act
on the ground that monies have come from the person who claims right in the
property though title deeds of the property are not in the name of such person.
An exception is created with respect to provision of Section 4 of the Benami
Act by its sub-Section (3) which allows existence of the concept of HUF.
Once existence of the concept of HUF is an exception to the main provision
contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to
take the case outside sub-Sections (1) and (2) of Section 4 of the Benami Act
it has to be specifically pleaded as to how and in what manner an HUF and
each specific property claimed as being an HUF property has come into
existence as an HUF property. If such specific facts are not pleaded, this Court
in fact would be negating the mandate of the language contained in sub-
Sections (1) and (2) of Section 4 of the Benami Act.
12. This Court is flooded with litigations where only self-serving
averments are made in the plaint of existence of HUF and a person being a
coparcener without in any manner pleading therein the requisite legally
required factual details as to how HUF came into existence. It is a sine qua
non that pleadings must contain all the requisite factual ingredients of a cause
of action, and once the ratios of the judgments of the Supreme Court in the
cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956
position and the post 1956 position has to be made clear, and also as to how
HUF and its properties came into existence whether before 1956 or after 1956.
It is no longer enough to simply state in the plaint after passing of the Hindu
Succession Act 1956, that there is a joint Hindu family or an HUF and a
person is a coparcener in such an HUF/joint Hindu family for such person to
claim rights in the properties as a coparcener unless the entire factual details of
the cause of action of an HUF and each property as an HUF is pleaded.
13. In view of the above, actually the application filed under Order
VII Rule 11 CPC in fact is treated as an application under Order XII Rule 6
CPC, inasmuch as, it is observed on the admitted facts as pleaded in the plaint
that no HUF and its properties are found to exist. There is no averment in the
plaint that late Sh. Jage Ram inherited property(s) from his paternal ancestors
prior to 1956. In such a situation, therefore, the properties in the hands of late
Sh. Jage Ram cannot be HUF properties in his hands because there is no
averment of late Sh. Jage Ram inheriting ancestral property(s) from his
paternal ancestors prior to 1956. There is no averment in the plaint also of late
Sh. Jage Ram‟s properties being HUF properties because HUF was created
after 1956 by late Sh. Jage Ram by throwing properties into a common
hotchpotch. I have already elaborated in detail above as to how an HUF has to
be pleaded to exist in the pre 1956 and the post 1956 positions and the
necessary averments which had to be made in the present plaint. The suit
plaint however grossly lacks the necessary averments as required in law to be
made for a complete cause of action to be pleaded for existence of an HUF
and its properties."
8. A reference to the present suit plaint alongwith the ratio of the
judgment in the case of Surender Kumar (supra) shows that the plaint is
conspicuously silent of inheriting of the property by Sh. Khem Chand from Sh.
Man Singh prior to 1956, and therefore, the suit properties cannot be said to be
HUF properties. Also, there are no averments in the plaint of Sh. Khem Chand
creating an HUF post 1956 by throwing the properties into common hotchpotch
and which is the only other way in which HUF and its properties could have been
created. Therefore, merely because properties in the hands of Sh. Khem Chand
are ancestral properties, plaintiffs do not have a right to claim that the properties
are HUF properties, and in which they have a share being coparceners, and which
they can seek by filing of the present suit of partition etc.
9. In view of the discussion and the facts as stated in the plaint, no legal
cause of action arises, and therefore the suit is dismissed. Since the suit is
dismissed, all pending applications will stand disposed of accordingly.
MAY 10, 2016 VALMIKI J. MEHTA, J.
ib
