Divya Jyoti Kanal & Anr vs Sanjukta S J Bahadur & Anr
2016 Latest Caselaw 6807 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of decision: 4th November, 2016.

+        CS(OS) 131/2016 & IAs No.3506/2016 (u/O 39 R-1&2 CPC) &
         3507/2016 (u/O 2 R-2 CPC)

         DIVYA JYOTI KANAL & ANR                  ..... Plaintiffs
                      Through: Mr. Alok Mahajan and Mr. Abhay
                               Mahajan, Advs.

                                   Versus

    SANJUKTA S J BAHADUR & ANR                 ..... Defendants
                  Through: Mr. I.S. Alag, Mr. J.S. Lamba, Mr.
                           R.S. Bisht, Mr. Rajesh Kumar and
                           Mr. Ahmad Shahrooz, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

This suit for partition, declaration, rendition of accounts and for

permanent injunction is listed today for framing of issues.

2. The counsel for the plaintiffs states that applications for condonation

of delay in filing the replication and affidavit of admission/denial have been

filed.

3. The same are not found to have been listed.

4. The delay in filing the replication and affidavit of admission/denial of

documents on behalf of the plaintiffs is condoned and the replication and

affidavit stated to have been filed by the plaintiffs be taken on record.

5. The counsels, on enquiry, state that some documents filed by the other

party have been admitted by the parties. Exhibit marks thereon be put by the

Joint Registrar when the matter is posted next before him/her.

6. The counsel for the plaintiffs and the counsel for both the defendants

have handed over proposed issues and which have been perused.

7. However, on going through the pleadings, I do not find the need to

frame the issues, either as suggested by the plaintiffs or as suggested by the

defendants. Rather, I am surprised why the defendants have proposed as

many as eleven issues and want the suit to be put to trial.

8. Issues are to be framed only on substantial questions of law and facts

which cannot be adjudicated without trial. However, on perusal of the

plaint, it is found that even if all the contents thereof are to be believed, the

plaintiffs have no cause of action and the suit can be disposed of

immediately under Order XV of Code of Civil Procedure, 1908 (CPC).

9. The two plaintiffs, namely Mrs. Divya Jyoti Kanal and Mrs. Lalat

Jyoti Nanda, being the married daughters of the defendant No.1 and sisters

of the defendant No.2 Mr. Babbar Bahadur, have filed this suit seeking the

reliefs of:

       (I)    partition of:



               (a)    entire first and second floors and terrace rights of built up

property No.C-424, Defence Colony, New Delhi;

(b) any/all other property(ies) which have been acquired by

Sanjukta Bahadur HUF and are not to the knowledge of

the plaintiffs at the time of filing of the suit;

(c) bank account/s of Sanjukta Bahadur HUF wherein the

sale proceeds of Amritsar, Punjab and Dalhousie,

Himachal Pradesh properties have been

deposited/invested;

(d) income from the properties of Sanjukta Bahadur HUF;

(II) Declaration that the two plaintiffs together have half

share/interest in the aforesaid properties;

(III) Rendition of accounts; and,

(IV) Permanent injunction restraining the defendants from dealing

with the properties of Sanjukta Bahadur HUF.

10. It is the case of the plaintiffs:

(A) that the plaintiffs had instituted a suit for permanent injunction

being Suit No.926/1985 of this Court, against their father and his

brothers with respect to i) property No.C-424, Defence Colony, New

Delhi; ii) land (orchard) measuring 25.6 acres situated at Village

Jamalpur in Pathankot, Punjab; iii) Bungalow with Guest House in a

compound measuring 4.6 acres and compound area of 1.17 acres

situated at Village Dalhousie, Himachal Pradesh; and, iv) certain

properties situated in Amritsar, Punjab, on the basis of the Will dated

10th July, 1981 left by their paternal grandfather Wing Commander

Roopchand;

(B) that one of the paternal uncles of the plaintiffs also filed Suit

No.1893/1986 of this Court against the father of the plaintiffs

challenging the competence of the said Wing Commander Roopchand

to alienate HUF properties by testamentary disposition;

(C) that subsequent to the death of their father, the plaintiffs and the

defendants were substituted in his place in Suit No.1893/1986;

(D) that upon marriage, both the plaintiffs migrated to United States

of America (USA);

(E) that after death of the father, the defendant No.1 being the

mother of the plaintiffs, during the visit of the plaintiffs to India in

February, 1995 on the occasion of the wedding of the defendant No.2,

made the plaintiffs sign and register a document titled „Release Deed‟

on the pretext that the same was required for the pending litigation

and representing that the properties will remain of the HUF;

(F) that sometime in 2002 or 2003, the defendant No.1 being the

mother of the plaintiffs again approached the plaintiffs for giving a

power of attorney for the purposes of the said litigation;

(G) that the aforesaid litigation i.e. suit No.1893/1986 was settled

on 29th January, 2003 but the plaintiffs were not furnished any

particulars thereof;

(H) that the plaintiffs, on making enquiries in August, 2013,

became aware that a daughter of the brother of their father had filed a

suit for partition against her father and brother with respect to the

aforesaid properties;

(I) that upon learning of the same, the plaintiffs became alarmed

and asked the defendants for details and particulars of the properties

but the defendants avoided to give the same;

(J) that thereafter on making enquiries the plaintiffs became aware

that their mother the defendant No.1 had given more than the due

share to the brother of the father of the plaintiffs in the settlement

aforesaid;

(K) that subsequent to the settlement / compromise of 29th January,

2003, an entity by the name of Sanjukta Bahadur HUF was created,

purportedly out of an earlier HUF under the name and style of Wing

Commander Roopchand HUF;

(L) that the plaintiffs found that under the settlement dated 29th

January, 2003:

              (i)     50% share in 13 shops at Amritsar, Punjab;

              (ii)    50% share in summer house with guest house in „Alvely‟

              at Dalhousie, Himachal Pradesh; and,

(iii) entire first and second floors and terrace rights of

property No.C-424, Defence Colony, New Delhi.

had fallen to the share of the plaintiffs‟ branch of the family.

(M) that the plaintiffs approached the defendants for partition but

the defendants avoided;

(N) that the plaintiffs are co-parceners in Sanjukta Bahadur HUF,

being the members of Sanjukta Bahadur HUF;

(O) that the plaintiffs till now have been acting out of the natural

love and affection for their mother and brother, the defendants herein;

(P) that the plaintiffs also learnt that the properties of Amritsar,

Punjab and Dalhousie, Himachal Pradesh have been sold by the

defendants.

11. A perusal of the registered relinquishment deed, though not filed by

the plaintiffs themselves but filed by the defendants along with their

documents and execution whereof the plaintiffs as aforesaid admit, shows

that the plaintiffs thereunder released their "unidentified definite share" in

property No.C-424, Defence Colony, New Delhi and in the properties at

Pathankot, Amritsar and Dalhousie which were HUF properties and which

were subject matter of Suit No.926/1985 and Suit No.1893/1986 aforesaid in

favour of the defendant No.1 out of natural love and affection for the

defendant No.1.

12. The plaintiffs though in the plaint have pleaded that their mother

defendant No.1 had got executed and registered the said Release Deed from

the plaintiffs in a hurry and without even allowing the plaintiffs to read the

contents thereof but have not claimed any relief for declaration of the said

Release Deed as void or null or ineffective on the said ground or on any

other ground or for cancellation thereof.

13. I have thus enquired from the counsel for the plaintiffs that the

plaintiffs having released and relinquished their shares in the aforesaid

properties vide Relinquishment Deed dated 21st February, 1995, how can the

plaintiffs claim partition of their share in the said properties.

14. The counsel for the plaintiffs states that the plaintiffs are claiming

partition of the said properties as members of Sanjukta Bahadur HUF in

which the said properties vested as per the settlement/compromise dated 29th

January, 2003. Attention in this regard is invited to photocopy of IA

No.851/2003 under Order XXIII Rule 3 of CPC filed in Suit No.1893/1986

aforesaid.

15. I have however further enquired from the counsel for the plaintiffs as

to how the plaintiffs can be treated as the members of Sanjukta Bahadur

HUF which according to the counsel for the plaintiffs also came into

existence only on 29th January, 2003. The plaintiffs as married daughters

could not be a part of HUF created after their marriage and after nearly

twelve years from the death of their father in the year 1991.

16. The counsel for the plaintiffs has no answer.

17. Section 6 of the Hindu Succession Act, 1956, as it stood prior to the

amendment of the year 2005, provided for devolution of interest of a male

Hindu in a Mitakshara Coparcenery Property, by survivorship upon the

surviving members of the Coparcenery and not in accordance with Section 8

of the said Act, thereby saving the Customary Hindu Law. However even

under the Customary Hindu Law, the plaintiffs as married daughters would

not have any share in an HUF of their mother and brother which has come

into existence after the marriage of the plaintiffs. In fact, I have enquired

from the counsel for the plaintiffs, whether HUF is such an entity which can

be created by contract and for instance, whether an HUF can be created

between him and the counsel for the defendants.

18. The counsel for the plaintiffs fairly agrees that HUF is a creature of

Customary Hindu Law and cannot be so created.

19. Section 6 supra was amended by the Hindu Succession (Amendment)

Act, 2005 to provide that w.e.f. thereafter i.e. from 9th September, 2005, in a

Joint Hindu Family governed by Mitakshara Law, the daughter of a

coparcener shall become coparcener in her own right in the same manner as

the son and shall have the same rights in the coparcenery property as a son.

However the proviso thereto provides that nothing contained therein will

affect or invalidate any disposition or alienation of property which had taken

place prior to 20th December, 2004.

20. The plaintiffs have already, by a registered document, as far back as

in 1995, relinquished their right, title, interest, claim and share in the

properties of which partition is sought in favour of the defendant No.1. The

said deed, besides by the plaintiffs, is found to have been executed by

defendant No.2 also, releasing his share in favour of defendant No.1.

21. Thus, the question of the plaintiffs, under the amendment aforesaid of

the year 2005 also becoming entitled to anything does not arise. In any case

the plaintiffs are claiming rights in the properties not since the lifetime of

their father but on creation of Sanjukta Bahadur HUF in the compromise

effected in Suit No.1893/1986 on 29th January, 2003. In fact the plaintiffs

have not even disclosed the outcome of Suit No.926/1985 filed by them.

22. The need to put this suit to trial does not arise, as the plaint, on the

averments therein, does not disclose a cause of action for the plaintiffs to sue

for partition.

23. The counsel for the plaintiffs then states that the proceedings be

adjourned to enable the plaintiffs to make necessary amendments to the

plaint.

24. Once the suit is found to be stillborn, such adjournments cannot be

granted. Moreover, if the plaintiffs are entitled in law to claim any relief by

pleading differently, the plaintiffs would always be entitled thereto and need

to perpetuate such stillborn suits is not felt.

25. The counsel for the plaintiffs then contends that Preceding Judge of

this roster issued notice of the suit after being satisfied of maintainability

thereof.

26. Merely because notice has been issued does not come in the way of

dismissal of the suit, if at the stage of framing of issues it is found that the

plaint does not disclose a cause of action.

27. The plaint is thus rejected, leaving the parties to bear their own costs.

28. Needless to state that the interim orders are vacated.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 04, 2016 bs