Rohit Sethi & Ors. vs Shiv Charan Aggarwal
2017 Latest Caselaw 3853 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 676/2017

%                                                     2nd August, 2017

ROHIT SETHI & ORS.                                     ..... Appellants
                          Through:       Ms. Naghma Imtiaz, Advocate.

                          versus

SHIV CHARAN AGGARWAL                                    ..... Respondent

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. Appl. No. 27168/2017 (for condonation of delay)

For the reasons stated in the application, the delay of 11 days in

filing the appeal stands condoned.

C.M. stands disposed of.

RFA No. 676/2017 and C.M. Appl. No. 27169/2017 (for stay)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit

impugning the judgment of the trial court dated 16.2.2017 whereby the

trial court has dismissed the suit filed for partition and declaration

with respect to the property being WZ-105 and 106 (total 300 sq.

yards) Meenakshi Garden, Nazafgarh Road, New Delhi. As per the

plaint the case set up by the appellants/plaintiffs was that the suit

property was an HUF property. Suit was filed by two plaintiffs being

Sh. Rohit Sethi and Smt. Deepali Sethi, and who are two out of three

appellants before this Court. The third appellant before this Court was

the defendant no. 2 in the suit, namely, Sh. Vishal Sethi. All the three

appellants are the children of late Sh. Vinod Kumar Sethi. Late Sh.

Vinod Kumar Sethi is stated to have expired during the pendency of

the suit. Defendant no. 3 in the suit was one Smt. Sanjogta Devi and

who also has not been made a party in the present appeal because it is

stated that Smt. Sanjogta Devi had expired pendente lite. Effectively

therefore, the suit and the present appeal is for enforcing rights by the

children of late Sh. Vinod Kumar Sethi with respect to the suit

property pleading that the suit property was owned by their

grandfather namely late Sh. Madan Lal Sethi and was HUF property

as Sh. Madan Lal Sethi had got funds for purchase of the suit property

from his father Sh. Lakshmi Chand. The suit property is therefore

pleaded to be an HUF property only because Sh. Madan Lal Sethi is

said to have received funds for purchase of this property from his

father Sh. Lakshmi Chand.

2. It is further seen that the suit property no longer was

owned on the date of filing of the suit on 29.9.1995 either by Sh.

Vinod Kumar Sethi or late Sh. Madan Lal Sethi, inasmuch as, the suit

property was sold by means of agreements to sell and sale deeds

respectively dated 15.3.1979/24.12.1986 and 17.3.1987/23.3.1987

whereby the suit property was sold by late Sh. Madan Lal Sethi to the

defendant no. 4 in the suit, and who is the sole respondent in the

present appeal. The original suit filed did not contain any challenge to

the aforesaid transfer documents executed by late Sh. Madan Lal Sethi

in favour of the respondent herein (defendant no.4) being the aforesaid

agreements to sell and sale deeds, however, subsequently the suit plait

was amended and declaration was sought with respect to the

documents executed by late Sh. Madan Lal Sethi being forged,

fabricated and sham documents and therefore null and void. The relief

clauses in the amended plaint read as under:-

"In the present circumstances it is most respectfully prayed that this Hon'ble Court may most graciously be pleased to:-

a) Pass a preliminary decree of partition in respect of property described in para 2 of the plaint in favour of the Plaintiffs and against the Defendants.

aa) Pass a declaration decree thereby declaring that the documents i.e. agreement to sell dated 15.3.1979 and 24.12.1986, Power of Attorney 7.1.1987, sale deed dated 7.3.1987 and 23.3.1987 as filed by the defendant are void abinitio being false, fabricated and sham documents and are null and void, having no legal validity.

b) Appoint a Commissioner for ascertaining the mode of partition of the aforesaid property.

     c)       Pass a final decree of partition.
     d)       Pass such other and further orders as it may deem fit and just to this
     Hon'ble Court."

3. The court below has held that besides the fact that the

transfer documents with respect to the suit property stand duly

executed by late Sh. Madan Lal Sethi in favour of the

respondent/defendant no. 4 and were not forged and fabricated, but be

that as it may, trial court has further held that in order to succeed in the

suit to the claim of the suit property being an HUF property, the

appellant nos.1 and 2/plaintiffs had to prove that funds were given by

Sh. Lakshmi Chand to late Sh. Madan Lal Sethi for purchasing the

property and that there is not a shred of evidence led to show any

payment of funds by Sh. Lakshmi Chand to late Sh. Madan Lal Sethi.

Trial court accordingly and rightly held that the suit property cannot

be held to be an HUF property because it is not proved that the suit

property is purchased from the funds given by Sh. Lakshmi Chand to

late Sh. Madan Lal Sethi, the grandfather of the appellant nos. 1 and

2/plaintiffs, and who was the father of Sh. Vinod Kumar Sethi, the

father of the appellants. In fact on the facts as pleaded, even if they

were proved of giving of funds by Sh. Lakshmi Chand to late Sh.

Madan Lal Sethi, yet in law that would not have made the suit

property as an HUF property as discussed hereinafter.

4. In my opinion, there is another reason for dismissal of

this suit which was filed way back in the year 1995 pleading that the

suit property was an HUF property, inasmuch as, it is now settled law

in view of the 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 that inheritance of ancestral property after passing

of the Hindu Succession Act in 1956 will not make the properties as

HUF properties, but inheritance will be as a self acquired property and

it is noted that there is no pleading of the plaintiffs of inheritance by

Sh. Madan Lal Sethi prior to passing of the Hindu Succession Act.

Also in the present plaint it is not the case of the plaintiffs that the

property of Sh. Lakshmi Chand was inherited by late Sh. Madan Lal

Sethi because the case pleaded is not inheritance of property by late

Sh. Madan Lal Sethi but the case pleaded is that late Sh. Lakshmi

Chand gave funds for purchase of the property to his three sons which

included one son namely, Sh. Madan Lal Sethi being the father of Sh.

Vinod Kumar Sethi, the father of the appellants. Even assuming for

the sake of arguments that the appellants proved that the money was

paid by Sh. Lakshmi Chand to his three sons for purchase of the

property in their names, however in law this will not mean that the suit

property will become an HUF property.

5. The suit plaint is also defective and the suit was ex-facie

liable to be dismissed in the initial stage itself in view of the ratios of

the judgments of the Supreme Court in the cases of Commissioner of

Wealth Tax (supra) and Yudhishter (supra) because all that was

pleaded in para 3 of the plaint was that the suit property was

purchased in the year 1956 jointly by late Sh. Madan Lal Sethi and his

brothers Sh. Roshan Lal and Sh. Joginder Lal, and that the brothers

Sh. Roshan Lal and Sh. Joginder Lal in the year 1979 relinquished

their rights in the suit property in favour of late Sh. Madan Lal Sethi.

It is only and only on this count that the suit property is pleaded to be

an HUF property in the hands of late Sh. Madan Lal Sethi and which

in law does not make the suit property as HUF property. In order to

understand that the complete lack of pleadings or completely defective

pleadings and which were required to be pleaded for HUF property to

at all come into existence, para 3 of the plaint is reproduced as under:-

"3. The property at Meenakshi Garden was purchased in the year 1956, jointly by late Madan Lal Sethi and his brothers Shri Roshan Lal and Shri Joginder Lal. The respective rights in respect of the said property were relinquished in the year 1979 by Joginder Lal and by the legal heirs of late Shri Roshan Lal. That the said property was purchased by Shri Madan Lal out of funds provided by this father Shri Lakshmi Chand who retired from the post of Guard in the Indian Railways. In the said circumstances, said property was HUF property. Right from the beginning and co-parceners had interest in the same family, being governed by Mitakshra Law. In any case. After the death of late Shri Madan Lal the said property is HUF property in the hands of defendant no. 1 as against the plaintiffs since the said property has devolved upon the defendant no. 1 from his father. The said property is presently in occupation of defendant no. 4 who is an alleged tenant put in possession by late Karta Shri Madan Lal. In the said circumstances the defendant no. 4 is proper and necessary party to the present suit."

6. In my opinion, therefore, clearly the court below has

rightly held that the suit property was not an HUF property and that

the suit property is owned by and thus belonged to

respondent/defendant no. 4 and who had purchased the suit property

from late Sh. Madan Lal Sethi in terms of the agreements to sell dated

15.3.1979/24.12.1986 and the consequent sale deeds dated

17.3.1987/23.3.1987.

7. I would also like to add at this stage that late Sh. Madan

Lal Sethi in his life time never challenged execution of the documents

executed by him with respect to the suit property in favour of

respondent/defendant no. 4, and once late Sh. Madan Lal Sethi never

challenged the documents, I fail to understand as to how his

grandchildren, being the appellants, can challenge the transfer

documents in favour of the respondent/defendant no. 4. Also,

inheritance by Sh. Vinod Kumar Sethi/defendant no. 1 of the suit

property from late Sh. Madan Lal Sethi, assuming late Sh. Madan Lal

Sethi has not sold the same to respondent/defendant no. 4, would have

made the property as self acquired property on Sh. Vinod Kumar

Sethi/defendant no. 1, and Sh. Vinod Kumar Sethi/defendant no. 1

himself never challenged the transfer documents executed by his

father, namely, late Sh. Madan Lal Sethi in favour of the

respondent/defendant no. 4. The appellants therefore can have no

locus standi to plead that respondent/defendant no.4 is not the owner

because the suit property is HUF property inasmuch as neither Sh.

Madan Lal Sethi nor Sh. Vinod Kumar Sethi ever filed legal

proceedings to challenge the ownership of the respondent/defendant

no.4 that the suit property was an HUF property.

8. I therefore hold that neither their existed pleadings for

holding that the suit property is an HUF property, or that even as per

the pleadings if Sh. Lakshmi Chand is proved to have given moneys to

his three sons for purchase of the property then giving of funds would

not create an HUF because an HUF would have been created only if

immovable property is inherited prior to passing of the Hindu

Succession Act. The suit property also cannot be an HUF property

unless it was pleaded and proved that the suit property was inherited

by late Sh. Madan Lal Sethi from Sh. Lakshmi Chand prior to 1956

and which is not the case as laid out in the plaint. Finally, taking

everything in favour of the appellants, yet, appellants could have only

succeeded if it was shown that Sh. Lakshmi Chand had given funds

for purchase of the suit property to his three sons including late Sh.

Madan Lal Sethi, and as rightly held by the trial court, this burden is

not discharged by the appellant nos. 1 and 2/plaintiffs inasmuch as

there is no evidence whatsoever led in this regard, much less credible

evidence in the form of documents, that any funds were paid by Sh.

Lakshmi Chand to late Sh. Madan Lal Sethi for purchase of the suit

property.

9. There is no merit in the appeal. Dismissed.

AUGUST 02, 2017                            VALMIKI J. MEHTA, J
AK