Captain Bhupinder Kumar Suri vs Naresh Kumar Suri & Ors
2017 Latest Caselaw 881 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 15th February, 2017.

+      CS(OS) No.2092/2013 and IA No.14295/2016 (of the plaintiff
       under Order XI Rules 1& 14 CPC)

       CAPTAIN BHUPINDER KUMAR SURI                ..... Plaintiff
                   Through: Mr. Harish Malhotra, Sr. Adv. with
                            Mr. Venancio D'costa and Ms. Astha,
                            Advs.

                                         Versus
    NARESH KUMAR SURI & ORS                     ..... Defendants
                  Through: Mr. M.R. Chawla and Mr. Aditya
                           Vaibhav Singh, Advs.
                           Ms. Pankhi proxy counsel for Mr.
                           Rajeev Kapoor, Adv. for D-2&3.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA No.6967/2014 (of defendant no.1 under Order VII Rule 11 CPC).
1.

The counsel for the applicant/defendant no.1 and the senior counsel for the plaintiff have been heard.

2. Besides the defendant no.1, only the counsel for the defendants no.2&3 appears and who are supporting the plaintiff.

3. The plaintiff has instituted this suit inter alia pleading:-

(i) that the father of the plaintiff and the defendants no.1 to 6 (defendants) namely Major Khemraj Suri was allotted plot of land ad measuring 267.22 sq. yds. in the colony now known as Defence Colony, New Delhi by virtue of being a Defence Officer and had raised construction thereon;

(ii) that the father of the plaintiff and the defendants, with intention to convert the said property into a Joint Hindu Family (HUF) property, executed a Declaration dated 25th February, 1969 whereby he constituted a HUF comprising of himself, his wife and the plaintiff and the defendants and assumed the capacity of Karta of the said HUF; Major Khemraj Suri had voluntarily and unilaterally thrown the property aforesaid into common stock of family property, thereby abandoning his separate claim therein;

(iii) that by virtue of the said declaration dated 25 th February, 1969, Major Khemraj Suri renounced his individual rights in the said property and all the members of the HUF had a right/share/interest in the property;

(iv) that the mother of the plaintiff and the defendants Smt. Shanta Kumari Suri died on 3rd December, 2009 and the father of the plaintiff and the defendants died on 5th January, 2011;

(v) that after the demise of the father, disputes and differences have arisen between the plaintiff and the defendants and the property is liable to be partitioned and the plaintiff is entitled to his 1/7th share therein;

(vi) that to the utter shock of the plaintiff, sometime in the year 2011, the plaintiff was for the first time made aware by the defendant no.1 about the existence of a Will dated 21 st June, 2005 whereby the deceased father late Major Khemraj Suri had allegedly bequeathed his entire estate including the suit property in favour of the defendant no.1; accordingly a dispute

arose between the parties;

(vii) that according to the terms of the Will, late Major Khemraj Suri had declared to sell off second floor of the said property without roof rights to a third party and the ground floor, first floor and the roof rights of the said property have been bequeathed solely to the defendant no.1 with full and absolute right over it;

(viii) it is therefore amply clear that the Will has been obtained by fraud, coercion and by undue influence mediated by the defendant no.1 over late Major Khemraj Suri who was under complete mercy of the defendant no.1;

(ix) even otherwise the said Will is void since it bequeaths the said property which late Major Khemraj Suri could not have done, it being an HUF property;

(x) that late Shri Major Khemraj Suri did not have the capacity to bequeath the said suit property in totality as the said property was property of HUF consisting of himself, Smt. Shanta Kumari Suri and the plaintiff and defendants herein as expressly declared vide Declaration dated 25th February, 1969; accordingly the Will dated 21st June, 2005 could not have been executed by late Major Khemraj Suri qua the suit property and with regard to the assets obtained by the income of the said property;

(xi) ―the plaintiff crave leave of this Hon'ble Court to intervene in the present dispute and declare the Will dated 21 st June, 2005 as null and void to the extent dealing with the said property which

was declared as a HUF property; it is submitted that a Joint Hindu Family consists of all persons lineally descending from a common ancestor i.e. late Major Khemraj Suri, as such the plaintiff being the co-parcener of the HUF has a subsisting interest and right over the said property‖; and,

(xii) that defendant no.1 was sharing residence with late Shri Major Khemraj Suri and Smt. Shanta Kumari Suri in the suit property; therefore as per the knowledge of the plaintiff all the original documents with respect to the suit property including the original Declaration dated 25th February, 1969 is in possession of defendant no.1; as such defendant no.1 has all the requisite documents to mala fidely alienate/transfer/part with possession of the suit property.

4. The plaintiff on the basis of the aforesaid pleas has sought the reliefs of (i) declaration of the Will dated 21st June, 2005 made by late Major (Retd.) Khemraj Suri as null and void to the extent of bequeathing the suit property i.e. A-345, Defence Colony, New Delhi to defendant no.1 i.e. Shri Naresh Kumar Suri; (ii) dissolution of the HUF and partition declaring the plaintiff to be the owner of 1/7th share in the property; (iii) permanent injunction restraining the defendants from dealing with the property; and,

(iv) a direction to the defendants to render accounts and to release the plaintiff's share of amount from the HUF account.

5. The defendant no.1 has sought rejection of the plaint, firstly by contending that the Declaration dated 25th February, 1969 relied upon by the plaintiff in the plaint was not acted upon.

6. I have enquired from the counsel for the applicant/defendant no.1

whether not the same would be a matter of evidence and as to how it can form a ground for rejection of plaint Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC).

7. The counsel for the applicant/defendant no.1 has not been able to demonstrate as to how the question, whether the document has been acted upon or not, can be the subject matter of Order VII Rule 11 of the CPC.

8. The gravamen of the contention of the counsel for the applicant/defendant no.1 is that no HUF could have been created by the act of the father of the plaintiff and the defendants. It is argued that HUF is a creature of law and only if an HUF existed could the father of the plaintiff and the defendants, as co-parcener or Karta of the same, could have blended his separate property in the said HUF. It is contended that without there being any HUF, and of existence whereof there is no plea, no HUF could have been created by the document dated 25 th February, 1969, creating a right in the property in favour of the plaintiff for the plaintiff to seek the relief of partition.

9. I have enquired from the counsel for the applicant/defendant no.1, whether not even in the absence of any HUF, the plaintiff as an heir of his father would have a share in the property particularly when it is not the case that the Will with respect whereto also reliefs are claimed has not been probated or proved in any proceeding till now.

10. The counsel for the applicant/defendant no.1 has contended that the challenge to the Will is not on the ground of the same having not been validly executed by the father of the parties but only on the ground of the father being not entitled to Will the entire property since it belonged to the HUF and not to the father exclusively.

11. The counsel for the applicant/defendant no.1 has in this regard also drawn attention to paras 14 to 18 of the order dated 11th November, 2016 in the suit which are as under:-

"14. It is the case of the plaintiff that the father of the plaintiff and the six defendants, upon allotment of the land underneath the property aforesaid, had executed a declaration dated 25th February, 1969 constituting a Hindu Undivided Family (HUF) comprising of himself, his wife and children namely the plaintiff and the defendants no.1 to 6 and the said property is thus an HUF property. The plaintiff in the plaint has pleaded that though the father has left a Will but the property being of the HUF, the father was not entitled to will the same.

15. I have enquired from the counsels, whether the plaintiff is disputing and challenging the Will.

16. The counsel for the defendant no.1 states that the plaintiff is not.

17. On a reading of the plaint also it is found that the claim of the plaintiff is only on the basis of the property being of the HUF and the plaintiff has otherwise not disputed or controverted the Will of the father, if the property was to be not of the HUF.

18. The counsel for the plaintiff also on specific query states "that the plaintiff is not challenging the Will of the father save to the extent of the entitlement of the father to make a Will with respect to the entire property as the property was/is of the HUF". The counsel for the plaintiff on further enquiry categorically affirms that "if the plaintiff fails in establishing the HUF then the suit will have to be dismissed and on the contrary if the plaintiff succeeds in establishing the HUF then the Will of the father would be with respect to the father's share only of the HUF".

12. The senior counsel for the plaintiff however draws attention to paras 19 to 21 of the order dated 11th November, 2016 supra which are as under:-

"19. However at the time when the order is being dictated, the counsel for the plaintiff, on prompting from the Advocate for

the defendants no.2&3 who are supporting the plaintiff, again changes his stand and states that the plaintiff in para 19 is challenging the Will and has drawn attention to para 19 of the plaint.

20. Finding para 19 to be ambiguous I have asked the counsel for the plaintiff whether the plaintiff now wants to claim partition independently of the claim of the HUF and wants to amend the plaint.

21. The counsel for the plaintiff states that he wants to sail or sink on the basis of the plaint as existing and will in future not claim amendment on the said aspect."

13. The senior counsel for the plaintiff has contended that the plaintiff, in the plaint as it stands, is also impugning the Will on the ground of the same having not been validly executed by the father, even if the father was the exclusive owner of the property.

14. Though on a reading of the plaint, in the order dated 11th November, 2016, I had observed that the challenge to the Will appeared to be on the ground only of the property being of the HUF but on further consideration of the plaint particularly the plea ―it is therefore amply clear that the Will has been obtained by fraud, coercion and by undue influence mediated by the defendant No.1 over Late Major Khemraj Suri, who was under complete mercy of the defendant No.1.‖ in para 20 of the amended plaint I am of the view that though the prayer para (i) in the plaint as under:

"declare the Will dated 21.06.2005 made by Late Major (Retd.) Khemraj Suri as null and void to the extent of bequeathing the Suit Property i.e. A-345, Defense Colony, New Delhi to defendant No.1 i.e. Shri Naresh Kumar Suri."

suggests that the challenge is not to the valid execution of the Will but only to the extent it bequeaths property No.A-345, Defence Colony, New Delhi but in the light of the plea of the document claimed to be the Will

being a result of fraud, coercion and undue influence exercised by the defendant No.1 for the reason of Late Major Khemraj Suri being at his mercy, I am of the view that it cannot be said that the plaintiff has admitted execution of the Will or is not disputing the Will if the property were to be held to be the exclusive property of the father and not of the HUF.

15. As far as the statements of the Advocate for the plaintiff as recorded in the order dated 11th November, 2016 supra are concerned, it would be evident from a bare reading thereof that the counsel was shifting his stand from time to time and thus the said statements cannot be said to be unequivocal so as to bind the plaintiff.

16. There is undoubtedly ambiguity in the pleas in the plaint with respect to the challenge to the document claimed to be the Will. Though at one place the Will is stated to be a result of fraud, coercion and undue influence, in the relief paragraph, though declaration of the document as null and void, is sought but only to the extent of bequeathing the Property No.A-345, Defence Colony, New Delhi. The Division Bench of this Court in Teva Pharmaceutical Industries Ltd. Vs. Natco Pharma Ltd. (2014) 210 DLT 591 has lamented that unfortunately the principles which the Privy Council had applied to mofussil pleadings in India have to be applied to the pleadings in the High Court also. The present is also a case of a similar nature. However the fact remains that for weakness/ambiguity in pleadings and which is attributable not to the litigant but the counsel, substantive rights of the litigants cannot be defeated.

17. Thus the suit, as per reading of the plaint is also for partition of the property even if it were the exclusive property of the father of the parties and the plaint cannot be rejected for this reason alone.

18. The counsel for the applicant/defendant no.1 in support of his contention that no HUF could have been created by a document, as Declaration dated 25th February, 1969 pleaded to have been executed by the father of the parties, has drawn attention to Sathyaprema Manjunatha Gowda Vs. Controller of Estate Duty, Karnataka (1997) 10 SCC 684 and to Sushant Vs. Sunder Shyam Singh (2014) 206 DLT (DB).

19. However on a perusal of the former I find that the observation therein to the effect, that Joint Hindu Family is purely a creature of law and cannot be created by act of parties save insofar as by adoption or marriage, is in the context of assessment for the purposes of estate duty on the property and of whether persons who have succeeded to the property but are not members of HUF can take a plea of succession being by way of HUF. Supreme Court in that case was not concerned with the issue as has arisen herein. Similarly in the latter of the aforesaid two judgments the observations to the same effect were in the context of whether a grandson acquires a share in the individual properties left behind by his grandfather who dies after coming into force of the Hindu Succession Act, 1956. Neither of the said judgments can thus be said to be a judgment on the proposition for adjudication herein.

20. Similarly, the observation about throwing of individual property in common hotchpotch in Goli Eswariah Vs. Commissioner of Gift Tax, Andhra Pradesh (1970) 2 SCC 390 to which the senior counsel for the plaintiff has drawn attention are qualified by the words ―the existence of a co-parcenary is absolutely necessary‖ and the issue as has arisen here did not arise therein also.

21. The question for consideration herein is, whether any HUF came into existence by the Declaration dated 25th February, 1969, inasmuch as, if it

were to be held that no HUF could in law have come into existence by the said declaration, the question of the property ceasing to be the individual property of Late Major Khemraj Suri and becoming the property of the HUF, would not arise.

22. The senior counsel for the plaintiff in this regard has drawn attention to Gundlapalli Mohan Rao Vs. Gundlapalli Satyanarayana (1972) 84 ITR 685, one of the questions framed for adjudication wherein was as under:-

"whether, even if there was no sufficient ancestral nucleus which could have formed the basis for the acquisition of the properties shown in A to D schedules, the first defendant by his conduct and action, impressed the suit properties with the character of joint family properties so as to entitle the plaintiff to a share in the suit properties?"

and which was answered by the Andhra Pradesh High Court by

holding as under:-

"The next question to be considered is whether the 1 st defendant, at any time subsequently, either by his declaration or other acts, impressed the suit properties with the character of joint family properties. Mr. Subbareddi placed great reliance on exhibits A-8 and B- 89 to press his point that the suit properties are impressed with the character of coparcenary property by reason of the declarations made therein. Exhibits A-8 and B-89 are the assessment orders passed on the returns submitted by the 1st defendant for the assessment years 1949-50 and 1950-51. It is manifest from what is contained in those two assessment orders that till the assessment year 1948-49, the returns were filed by the 1st defendant as an individual, but in these two assessment years, the returns were filed showing the status of the family as Hindu undivided family with two major sons,

who constituted the joint family."

Reference with approval was made by the Andhra Pradesh High Court to a judgment of the Division Bench of the Madras High Court in R. Subramania Iyer Vs. Commissioner of Income Tax (1955) 28 ITR 352 as under:-

". . . there was nothing to prevent the assessee from impressing upon any self-acquired property belonging to him the character of joint family property. No formalities are necessary in order to bring this about and the only question is one of intention on the part of the owner of the separate property to abandon his separate rights and invest it with the character of joint family property. The declaration in the partnership deed is unambiguous in its terms and is to the effect that the assessee was entering into the partnership as the manager of the undivided Hindu family of the assessee and his minor son."

23. The senior counsel for the plaintiff has also referred to Commissioner of Gift-Tax, Mysore Vs Marutrarao Nayakoji Kadam (1967) 65 ITR 15 but which proceeds on the existence of HUF and a member throwing his self acquired property into common hotchpotch of HUF and is not germane to the issue for consideration in this suit.

24. The counsel for the applicant/defendant no.1 has additionally referred to (i) Mallesappa Bandeppa Desai Vs. Desai Mallappa @ Mallesappa AIR 1961 SC 1268; (ii) Neelam Vs. Sada Ram MANU/DE/0322/2013; (iii) T. Arivandandam Vs. T.V. Satyapal (1977) 4 SCC 467; (iv) Commissioner of Wealth Tax, Kanpur Vs. Chander Sen (1986) 3 SCC 567; and (v) Yudhishter Vs. Ashok Kumar (1987) 1 SCC 204 but which either do not address the issue as has arisen herein.

25. I have in Google Inc. Vs. Competition Commission of India 2015 SCC OnLine Del 8992 (DB) relying on Bhavnagar University Vs. Palitana Sugar Mill P. Ltd. (2003) 2 SCC 111, Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate (2005) 2 SCC 489 and Inderpreet Singh Kahlon Vs. State of Punjab AIR 2006 SC 2571 held that a judgment is a precedent on what falls for adjudication and not what can be logically deduced or inferred therefrom. In none of the aforesaid judgments relied upon by the counsel for the applicant/defendant no.1, the question as was framed in Gundlapalli Mohan Rao supra which has been extensively re-produced, was raised, discussed and adjudicated. Inferences cannot be drawn of a proposition of law from words used in a judgment in which the question for adjudication had not arisen.

26. The question, whether a HUF could have been created by the document titled declaration dated 25th February, 1969 or not, is no longer res integra.

27. In Surjit Lal Chhabda Vs. The Commissioner of Income Tax, Bombay (1976) 3 SCC 142, Surjit Lal Chhabda had income from profits of two partnership firms, interest from bank accounts and rent from an immovable property. All these were his self acquired properties and until the assessment year 1956-57, he used to be assessed as an individual in respect of the income thereof. On 26th January, 1956 he made a sworn declaration before a Presidency Magistrate in Bombay that he had thrown the immovable property into the family hotchpotch in order to impress that property with the character of joint family property and that he would be holding that property as the Karta of the joint Hindu family consisting of himself, his wife and one child namely an unmarried daughter. In the

assessment proceedings for 1957-58, he contended that he had abandoned all separate claims to the income from immovable property and the income from immovable property should be assessed in the status of Hindu undivided family. This contention was not accepted by the Income Tax Authorities holding that in the absence of nucleus of joint family property, there was nothing with which he could mingle his separate property and that there could not be a Hindu undivided family without there being undivided family property. It was held by the Supreme Court i) that the expression ‗Hindu undivided family' must be construed in the sense in which it is understood under the Hindu law; ii) there is no substance in the contention of the Income Tax department that in the absence of an antecedent history of jointness, a Hindu cannot constitute a joint Hindu family with his wife and unmarried daughter; iii) joint and undivided family is the normal condition of Hindu society - the presumption therefore is that the members of a Hindu family are living in a state of union, unless the contrary is established; iv) generally speaking, the normal state of every Hindu family is joint; v) under the Income Tax Act a Hindu undivided family, not a coparcenary, is a taxable unit - a Hindu coparcenary is a much narrower body than the joint family; it includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great- grandsons of the holder of the joint property for the time being; vi) outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family; vii) a joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters; viii) the joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of

sapindaship arising by birth, marriage or adoption; ix) absence of an antecedent history of jointness between the appellant and his ancestors is no impediment to the Hindu, his wife and unmarried daughter forming a joint Hindu family - the Hindu's wife becomes his sapinda on her marriage with him; the daughter too, on her birth, becomes a sapinda and until she leaves the family by marriage, the tie of sapindaship will bind her to the family of her birth; x) that Surjit Lal Chhabda was not, by contract, seeking to introduce in his family strangers not bound to the family by the tie of sapindaship - they were not becoming his wife and daughter by agreement;

xi) a Hindu male can be the stock of a fresh descent so as to be able to constitute an undivided family with his wife and daughter; xii) thus the contention of the department that in the absence of a pre-existing joint family Surjit Lal Chhabda could not constitute a Hindu undivided family with his wife and unmarried daughter, must fail; xiii) Surjit Lal Chhabda by declaration of 26th January, 1956 threw the immovable property into the family hotchpotch, abandoning all separate claims to that property.

28. This Court also in Dr. Kewal Krishan Mayor Vs. Kailash Chand Mayor ILR (1977) 1 Delhi 97 was concerned with the plea of a Hindu and his wife attesting an affidavit throwing their immovable property into common hotchpotch of their Hindu undivided family consisting of themselves and their two sons. One of the sons of the said Hindu filed the suit for partition of the property. The other son contested the suit denying the declaration throwing the property into common hotchpotch and pleading a Will in his favour. It was held i) Goli Eswariah supra does not lay down that a separate property could not be impressed with the character of joint Hindu family property in the absence of the existence of a joint family or co-

parcenary property; ii) the existence of joint family property is not necessary before a member of the family throws his self-acquired property in the common stock; iii) the existence of a joint estate is not an essential requisite to constitute a joint family and a family which does not own any property, movable or immovable, may, nevertheless be joint; iv) if the existence of the coparcenary property is considered as a pre-requisite for throwing the property into the common hotchpotch or common stock, then, only those joint families who are already possessed of ancestral property can receive self-acquired properties of coparceners; v) if the argument is taken to its logical conclusion, it will lead to absurdities or a situation that no joint Hindu family which does not own any ancestral property can ever acquire any property from any individual coparcener who intends to impress the self-acquired property with the character of a joint family property; vi) the term ‗blending' may suggest the existence of a nucleus but that does not mean that it is not possible to conceive of coparceners impressing their self- acquired properties with the status of the joint family property unless it is shown that the joint Hindu family is already possessed of a nucleus or ancestral stock or ancestral property; vii) the absence of an antecedent history of jointness between the father and his ancestors is no impediment in the father forming a joint Hindu family with his sons, wife or unmarried daughters - in such cases the father may throw his self-acquired properties into the family hotchpotch, abandoning all separate claims to those properties.

29. However, the Division Bench, in appeal reported as Kailash Chand Mayor Vs. Kewal Krishan Mayor 95 (2002) DLT 115, held (i) that the assumption of law by the learned Single Judge that law does not lay down

that a separate property could not be impressed with the character of Joint Hindu Family in the absence of the existence of joint family or coparcenary property and that the existence of joint family property is not necessary before a member of the family throws his self acquired property in the joint stock, is erroneous; (ii) that it was not the case of the plaintiff Dr. Kewal Krishan Mayor that the immovable properties were ancestral properties; (iii) rather, his case was that they were separate properties of the father which were thrown by the father into the common coparcenary stock by declaration made by the father; (iv) that the law is well settled that such a separate or self acquired property by operation of the doctrine of blending, becomes the joint family property, if it has been voluntarily thrown into the common stock with the intention of abandoning all separate claims upon it--however, the basis of the doctrine is the existence of coparcenary property as well as existence of separate property of a coparcener; (v) reliance in this regard was placed on Mallesappa Bandeppa Desai supra and which in turn had approved the opinion of the Privy Council in Rajanikantha Pal Vs. Jagmohan Pal AIR 1923 PC 57; (vi) that the basic requirements of the doctrine of blending, namely, existence of coparcenary or coparcenary property as well as existence of separate property, were reiterated by the Supreme Court in Goli Eswariah supra; (vii) that the same principles were reiterated by the Supreme Court in Lakkireddi Cbinna Venkata Reddi Vs. Lakkireddi Lakshmama AIR 1963 SC 1601, K.V. Narayanan Vs. K.V. Ranganadhan (1977) 1 SCC 244 and Pushpa Devi Vs. The Commissioner of Income Tax, New Delhi (1977) 4 SCC 184; (viii) that thus, the pre- requisite of the doctrine on blending being existence of coparcenary or coparcener property, in case of the said basic requirement lacking, there

would be no question of applicability of the doctrine of blending; (ix) rather, it was the specific case of the plaintiff that HUF was formed in the year 1963 and before 1963, the two properties belonged to the father and that at the relevant time when the properties were put in the common hotchpotch, there was no other properties of HUF existing at that time; (x) that the father of the plaintiff could not have by the declaration constituted the HUF as Hindu Family is not a creation of contract; (xi) that on the date when the declaration was made, there was no coparcenary or Joint Hindu Family property with which the properties of the father could have been blended.

30. The attention of the Division Bench was not drawn to Surjit Lal Chhabda supra.

31. I have also gone through the judgments which were relied upon by the Division Bench and do not find any of the said judgments of the Supreme Court to be directly concerned with the issue as has arisen herein. The observations relied upon by the Division Bench from the said judgments of, ―the basis of the doctrine (of blending) is the existence of coparcenary and coparcenary property‖ were in a different context altogether. In Mallesappa Bandeppa Desai supra, the said observations were made to repel a plea of, a property held by a Hindu female as a limited owner having blended in the coparcenary property. It was held that a Hindu female is not a coparcener and as such has no interest in the coparcenary property; she was holding the property as a limited owner and on her death the property had to devolve on the next reversioner. In Lakkireddi Cbinna Venkata Reddi (supra), the question was whether the property inherited by a member of the joint family under a Will had blended with the joint family property. It was held that from the mere fact that other members of the family were allowed to use the

property jointly or that the income of the separate property was utilised to support persons whom the holder was not bound to support or from the failure to maintain separate accounts, abandonment could not be inferred. Thus, a finding of fact of the separate property having not blended with the joint family was returned. In Goli Eswariah supra, the question was whether the declaration by which the assessee had impressed the character of Joint Hindu Family property on the self-acquired properties owned by him amounted to a transfer so as to attract the provisions of the Gift-tax Act, 1958. The assessee in that case was the Karta of his joint family property. On an interpretation of Section 3 of the Gift-tax act, it was held that since the act of the assessee was a unilateral act and the definition of gift in Section 2 required the transaction of gift to be between two parties, the said unilateral act did not amount to gift, to attract the provisions of the Gift-tax Act. Pushpa Devi supra also held that a Hindu female who is a member of an undivided family cannot blend her separate property in the joint family property as she is not a coparcener. It was observed that a Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest of the joint or coparcenary property. Lastly, in K.V. Narayanan supra also the question was, whether the properties remaining out of the properties given to Karta under a partition deed to discharge family debts on his own responsibility, were the properties of the joint family or individual property of the Karta. It was held that the said properties were the separate properties of the Karta and as a result on facts it was held that they had not been blended again in the joint family properties.

32. It would thus be seen that none of the judgments on which the

Division Bench in Kailash Chand Mayor relied were concerned with the question as had arisen in that case before the Division Bench and as has arisen here. Per contra, Surjit Lal Chhabda supra was directly concerned therewith. Though a special leave petition preferred against the judgment of the Division Bench was granted and registered as Civil Appeal No.4885/2002 titled Kewal Krishan Mayor Vs. Kailash Chand Mayor but was disposed of as compromised on 18th January, 2012.

33. I highlight (though it is already the reasoning in Surjit Lal Chhabda as well as of the learned Single Judge in Kewal Krishan Mayor supra) that in the present case Major Khemraj Suri by the Declaration dated 25 th February, 1969 constituted the HUF comprising of himself, his wife and his sons. It is not as if HUF was constituted with any strangers. The HUF was created with his wife and sons and daughters, with whom as per law, there could be a HUF. The act of creation of HUF was a unilateral act of declaration by Major Khemraj Suri and not a contract with his wife and sons and daughters. Mulla, in 21st Edition (2010) on Hindu Law in Chapter XII in paragraph 212 titled ―Formation of coparcenary‖ has authored that ―the conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from, and inclusive of, such ancestor (or three degrees exclusive of the ancestor). No coparcenary can commence without a common male ancestor, though after his death, it may consist of collaterals, such as brothers, uncles, nephews, cousins, etc.‖ and that ―no female can be a coparcener, although a female can be a member of a joint Hindu family‖. I also do not find any basis to hold that a Hindu male living jointly with his wife, sons and daughters, even if there is no joint family property and no

jointness in law in the name of HUF, cannot form a Joint Hindu Family or a Hindu Undivided Family with his wife, sons and daughters or that to be able to so, he has to wait to have grandsons and great grandsons.

34. The contention that, a Hindu male cannot create a Joint Hindu Family or a Hindu Undivided Family along with his wife, sons and daughters, if has no existing Joint Hindu Family / coparcenary / Hindu Undivided Family or existing joint Hindu property or coparcenary property or Hindu Undivided Family property, cannot be accepted also for the reason that it is the settled principle of law that even after partition amongst members of the coparcenary / Joint Hindu Family or Hindu Undivided Family, whereafter, there is no Joint Hindu Family / Hindu Undivided Family / coparcenary in existence, they can reunite and a Hindu Undivided Family / Joint Hindu Family / coparcenary can again come into existence. Reference, if any in this regard can be made to Bhagwan Dayal Vs. Reoti Devi AIR 1962 SC 287 and Anil Kumar Mitra Vs. Ganendra Nath Mitra (1997) 9 SCC 725.

35. I find a coordinate bench also to have in Surender Kumar Vs. Dhani Ram AIR 2016 Del 120 held that the only way in which a HUF / Joint Hindu Family can come into existence after the coming into force of the Hindu Succession Act is if an individual's property is thrown into a common hotchpotch.

36. No merit is thus found in the ground (for rejection of plaint) that no HUF could have come into existence vide Declaration dated 25th February, 1969.

37. The counsel for the applicant/defendant no.1 has then contended that though the plaintiff has claimed for rendition of accounts but has neither led any foundation therefor in the pleadings nor valued the suit for the said

relief. Reliance in this regard is placed on para 7 of Abdul Hamid Shamsi Vs. Abdul Majid AIR 1988 SC 1150 and paragraphs 7, 24 and 25 of Commercial Aviation and Travel Company Vs. Vimla Pannalal (1988) 3 SCC 423.

38. I have enquired from the counsel for the applicant/defendant no.1, whether not Order XX Rule 18 of the CPC empowers the Court to, in a suit for partition, while passing a preliminary decree, even in the absence of any relief directing the party found to be in possession of the assets in which others have been found a share, to render accounts. Reference in this regard can be made to Sonjoy Chatterjee Vs. Solil Chatterjee 2013 SCC OnLine Del 3003.

39. No judgment to the contrary has been cited.

40. Though the counsel for the applicant/defendant no.1 in the synopsis has also urged a ground, of claim for declaration being barred by limitation but the counsel for the applicant/defendant no.1 states that he is not pressing the same at this stage.

41. Yet another ground urged is, of the plaintiff having paid the fixed court fees on the relief for partition though admittedly not in occupation.

42. The plaintiff in para 29 of the plaint has pleaded being in joint possession as a co-owner. Though a Single Judge of this Court in a voluminous judgment in Sonu Jain Vs. Rohit Garg (2006) 128 DLT 633 covering nearly the entire law on the subject till then had held so but the said judgment was reversed by the Division Bench vide judgment dated 2nd February, 2012 in FAO(OS) 183/2006 titled Sonu Jain Vs. Rohit Garg holding that unless in the plaint a case of ouster of the plaintiff from the property is made out or admitted, no ad valorem court fees can be required

to be paid at the initial stage and the pleading in the plaint only can be seen at this stage. The said judgment applies squarely.

43. No merit is found in the application.

44. Dismissed.

RAJIV SAHAI ENDLAW, J.

FEBRUARY 15, 2017 ‗pp/gsr/bs'..

(corrected & released on 27th February, 2017)