Santosh Kumar Jain vs Mehtab Singh Jain & Ors
2018 Latest Caselaw 2308 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of decision: 13th April, 2018

+                              CS(OS) 3139/1991

         SANTOSH KUMAR JAIN                                             ..... Plaintiff
                    Through:                    Plaintiff-in-person.

                                       Versus

         MEHTAB SINGH JAIN & ORS                                   ..... Defendants
                     Through: None.
                                       AND
                                CS(OS) 3371/1992

         SANTOSH KUMAR JAIN                                            .... Plaintiff
                    Through:                    Plaintiff-in-person.

                                       Versus
         KIRAN JAIN & ORS.                                   ..... Defendants
                       Through:                 Mr. Shekhar Nanavaty, Adv. for
                                                D-9.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

CS(OS) No.3139/1991

1.

The sole plaintiff instituted this suit for partition of 1/6 th share claimed by the plaintiff in (i) 7/23, Makhan Lal Street, Darya Ganj, New Delhi; (ii) 1/4th share in property no.1213 to 1216, Chandni Chowk, Delhi (sold by defendant no.1 for Rs.2,00,000/-); (iii) 1/5th share in property bearing no.301, Dariba Kalan, Delhi; (iv) property no.302 to

305, Dariba Kalan, Delhi; (v) half portion of property no.279/301, Dariba Kalan; and, (vi) plot at Rangmahal Co-operative Society, Pitam Pura, Delhi, and for rendition of accounts.

2. The case of the plaintiff as per the last amended plaint dated 19 th May, 2010 in Part-I file is, (i) that there exists a coparcenary comprising of defendant no.1 Mehtab Singh Jain and his three living sons i.e. defendant no.6 (Surender Kumar Jain), defendant no.7 (Yashodhar Kumar Jain) and the plaintiff and the grandsons i.e. sons of Subrat Das Jain and R.D. Jain, the two predeceased sons of defendant No.1 Mehtab Singh Jain; (ii) that there existed an ancestral business in the name of Mehboob Singh Ranjit Singh Jain Jewellers at 1734, Dariba Kalan, Delhi which was started with ancestral funds provided by the plaintiff's grandfather Shri Mehboob Singh Jain; this business was run by the defendant no.1 Mehtab Singh Jain and his brother Ranjit Singh Jain; (iii) that there was a partition between defendant no.1 Mehtab Singh Jain and his brother Ranjit Singh Jain in the year 1958; (iv) the defendant no.1 Mehtab Singh Jain since then started carrying on business under the name of Mehtab Singh Jain & Sons Jewellers and the plaintiff, in the year 1983, was taken as a partner in the said business by the defendant no.1; (v) in 1989, defendant no.1 Mehtab Singh Jain separated and relinquished his interest in the business as he was unable to work on account of advance age and was paid off by the plaintiff; (vi) the plaintiff since then is the sole proprietor of business in the name and style of Mehtab Singh Jain & Sons Jewellers; (vii) that the plaintiff's grandfather Mehboob Singh Jain had similarly set up his two other sons Bahadur Singh Jain and Daryao Singh Jain in the business of jewellery and they

were also carrying on business in the name and style of Mehboob Singh Jain & Sons at 1707, Dariba Kalan, Delhi; (viii) that the defendant no.1 Mehtab Singh Jain, out of his share of income of the business of Mehboob Singh Ranjit Singh Jain Jewellers, purchased land underneath and built property no.7/23, Makhan Lal Street, Darya Ganj, New Delhi and which property having been built by ancestral funds is property of Hindu Undivided Family (HUF) of defendant no.1 Mehtab Singh Jain and his sons; (ix) Mehtab Singh Jain & Sons also owned 1/4th share in property no.1213 to 1216, Chandni Chowk, Delhi which had come to late Shri Mehboob Singh Jain in family partition and the said 1/4th share in the property was of the HUF of defendant no.1 Mehtab Singh Jain; however defendant no.1 Mehtab Singh Jain sold his 1/4 th share in the said property without any legal necessity, for a sum of Rs.2,00,000/- only and for which he is liable account for; (x) that Mehtab Singh Jain HUF also owns 1/5th share in property no.301, Dariba Kalan, Delhi and properties no.302, 303, 304 and 305, Dariba Kalan, Delhi and half of building no.279/301, Dariba Kalan, Delhi; (xi) the defendant no.1 Mehtab Singh Jain executed and registered his last Will dated 2 nd January, 1998 in which he admitted (a) property no. 7/23, Makhan Lal Street; (b) 1/5th share in property no.301, Dariba Kalan, Delhi; (c) property no.302 to 305, Dariba Kalan, Delhi; and, (d) half portion of 279/301, Dariba Kalan, New Delhi to be ancestral and of the HUF; (xii) some portions of property no.7/23, Makhan Lal Street, Darya Ganj, New Delhi are in occupation of defendants, some other portions are lying vacant and the rest of the property is tenanted; (xiii) the plaintiff and some of the defendants are in possession of part of property no.301,

Dariba Kalan, Delhi and the remaining property is in possession of other owners thereof; (xiv) properties no.302, 303 and 304 are shops in the tenancy of different defendants who though enjoying the same are not paying rent thereof; (xv) property no.305, Dariba Kalan is in occupation of some of the defendants; (xvi) property no.279/301, Dariba Kalan, Delhi is also in occupation of some of the defendants; (xvii) defendant no.8 Kund Lata Jain is the unmarried daughter of defendant no.1 Mehtab Singh Jain and has been given a flat in Rangmahal Society, Pitampura, Delhi by the defendant no.1 Mehtab Singh Jain but payment for which flat was made out of joint family funds; this flat, though in the name of the defendant no.8 Kund Lata Jain, is also HUF property; (xviii) the defendant no.1 Mehtab Singh Jain is also in possession of jewellery, gold and silver which belong to the joint family; and, (xix) that the defendant no.1 Mehtab Singh Jain, taking advantage of his position as karta, had been flittering away the HUF assets.

3. The suit came up first before this Court on 10th October, 1991 when, while issuing summons thereof, vide ex parte order, the defendants were restrained from disposing of, selling, transacting, alienating or in any other way parting with the properties subject matter of the suit.

4. The defendant no.1 Mehtab Singh Jain filed a written statement to the plaint as originally filed, along with Counter Claim, pleading (i) that there was no joint Hindu family and he was thus not liable to render any account; (ii) that the plot at Rangmahal Co-operative Society, Pitampura, Delhi does not exist; (iii) that the suit claim was barred by Benami

Transactions (Prohibition) Act, 1988; (iv) that the suit, insofar as for properties which had been put in Mehtab Munisubrat Das Dharmarth Trust whose members had not been impleaded, was not maintainable; (v) that the defendant no.1 Mehtab Singh Jain had five sons and seven daughters; (vi) that the plaintiff, after living in USA till 1973, returned to India and claimed before the Police that he with others was in Engineering profession and was on his own and had not got anything from his father; (vii) that there is no coparcenary and joint Hindu family;

(viii) all the sons of defendant no.1 Mehtab Singh Jain had been living separately and messing separately and carrying on independent vocations and there was no trace of jointness whatsoever; (ix) Shri Ranjit Singh, younger brother of the defendant no.1 Mehtab Singh Jain, started his proprietary business of jewellery at 1634, Dariba Kalan, Delhi, as far back as in the year 1929, in the name and style of Mehboob Singh Ranjit Singh; (x) defendant no.1 Mehtab Singh Jain at that time was engaged in legal profession; (xi) subsequently, in the year 1931, the defendant no.1 Mehtab Singh Jain was taken as a partner by Ranjit Singh in the business of Mehboob Singh Ranjit Singh; (xii) Mehboob Singh did not provide any funds to Ranjit Singh or to the defendant no.1 Mehtab Singh Jain for the purposes of the said business; (xiii) that the partnership business in the name of Mehboob Singh Ranjit Singh was dissolved in the year 1958 and the defendant no.1 Mehtab Singh Jain since then was not doing anything; (xiv) denying that Mehboob Singh Jain, father of the defendant no.1 Mehtab Singh Jain, had settled the other two brothers of defendant no.1 Mehtab Singh Jain namely Bahadur Singh Jain and Daryao Singh Jain in business; (xv) the plot of land underneath the Darya Ganj

property was purchased by the defendant no.1 Mehtab Singh Jain and his brothers Ranjit Singh and Daryao with their own funds and is the self acquired property of defendant no.1 Mehtab Singh Jain; (xvi) construction thereon also was made by defendant no.1 Mehtab Singh Jain from his own personal funds; (xvii) defendant no.1 Mehtab Singh Jain, since the very beginning, is assessed to Income Tax as an independent and has been dealing with his properties as exclusive owner thereof; (xviii) that the defendant no.1 Mehtab Singh Jain, when carrying on jewellery business in the name Mehtab Singh Jain & Sons Jewellers, had taken his son Surender Kumar Jain as an employee therein; however subsequently the said Surender Kumar Jain left and started his own business; (xix) the 1/4th share in property no.1213 to 1216, Chandni Chowk, Delhi was bequeathed to defendant no.1 Mehtab Singh Jain by his father, under a Will and the said 1/4th share in the property had since been given to a religions Trust known as Mehtab Munisubrat Das Dharmarth Trust which was functioning from the said property; (xx) the 1/4th share in property no.1213 to 1216, Chandni Chowk, Delhi having been received by defendant no.1 Mehtab Singh Jain under the Will of his father was the personal property of defendant no.1 Mehtab Singh Jain; even if it were HUF property, the defendant no.1 Mehtab Singh Jain as karta has done the right thing to create a charity and the plaintiff cannot question the same; a certified copy of the said Will of the father of the defendant no.1 Mehtab Singh Jain was being filed; (xxi) property no.301, 279 and four shops bearing no.302 to 305, Dariba Kalan, Delhi belonged to Mehboob Singh Jain who gifted 1/5th share therein to his son Bahadur Singh and partitioned the remaining 4/5th share amongst his

three sons including defendant no.1 Mehtab Singh Jain; this is how defendant no.1 Mehtab Singh Jain got 1/4th share in this property; the Deeds of Gift and partition were being filed along with the written statement; (xxii) thus, of the six properties subject matter of the suit, the first five properties were properties of defendant no.1 Mehtab Singh Jain only and the sixth property belonged to the defendant no.10 Kund Lata Jain; (xxiii) that the defendant no.10 Kund Lata Jain completed her MA and LL.B and had since then been doing tuition work to keep herself occupied and had become a member of Rangmahal Cooperative Group Housing Society as far back as in the year 1973 and in lieu of said membership had been allotted a flat and which was the personal property of the defendant no.10 Kund Lalat Jain; and, (xxiv) that the plaintiff is in wrongful occupation of a room and bathroom on the second floor of property no.279, Dariba Kalan, Delhi.

5. The defendant no.1 Mehtab Singh Jain along with his written statement made a Counter Claim against the plaintiff for recovery of possession of room and one bathroom on the second floor of property no.279, Dariba Kalan, Delhi and one large room in property no.301 and of shop 1734, Dariba Kalan, Delhi. However, the same was not registered and no notice thereof was issued and no pleadings completed thereon. Thus the said counter-claim has to be ignored.

6. The sons of Munisubrat Das Jain, predeceased son of defendant No.1 Mehtab Singh Jain are also found to have filed a written statement to the plaint as originally filed, though admitting the contents of the plaint but pleading that the suit was not for partition of all the joint

family properties. However the said written statement is found to have been signed and verified by Ravinder Jain alone.

7. Surender Kumar Jain, another son of defendant No.1 Mehtab Singh Jain is also found to have filed a written statement to one of the amended plaints, taking the same pleas as the defendant no.1 Mehtab Singh Jain.

8. The plaintiff is found to have filed replication to the written statement of the defendant no.1 Mehtab Singh Jain, to the written statement of the sons of Munisubrat Das Jain and to the written statement of Surender Kumar Jain. The plaintiff is also found to have filed replication to the written statement of the defendant no.10 Kund Lata Jain but the written statement of the defendant no.10 Kund Lata Jain is not found on record.

9. On the pleadings of the parties, the following issues were framed on 10th December, 2009:-

"1. Does the plaintiff prove entitlement to decree for partition, as claimed, in respect of the suit property?

2. Relief."

and the following additional issue is found to have been framed on 20th October, 2010:-

"1) Is the plaintiff entitled to decree for accounts; if so from whom and to what extent? OPP"

10. The plaintiff, in support of his case is found to have examined himself only on 12th March, 2013 by tendering his affidavit in

examination-in-chief. The plaintiff was not cross-examined by any of the defendants who were on that date recorded to be already ex parte.

11. The suit, vide order dated 23rd April, 2014, was ordered to be listed in the category of 'Finals'. However before final arguments could be heard, the suit, on enhancement of minimum pecuniary jurisdiction of this Court, vide order dated 10th December, 2015, was ordered to be transferred to the District Court. The Additional District Judge to whom the suit was marked, however being of the view that notwithstanding the enhancement of minimum pecuniary jurisdiction of this Court, the suit had been wrongly transferred, vide order dated 27 th May, 2016 transferred back the suit to this Court. However vide order dated 2 nd August, 2016 it was clarified that the suit had been wrongly transferred back to this Court and was again transferred to the District Court. The plaintiff thereafter applied for amendment of plaint to enhance the valuation of the suit and which was allowed by the Additional District Judge and since as per the amended enhanced valuation the suit was beyond the maximum pecuniary jurisdiction of the Additional District Judge, the suit was again transferred to this Court. The suit thereafter came up before this Court on 28th March, 2017 along with CS(OS) No.3371/1992 when the plaintiff in person and only the Advocate for the defendant no.9 in CS(OS) No.3371/1992 appeared. The plaintiff appearing in person stated that the suit was ripe for final hearing and he had already filed his written submissions. Accordingly orders were reserved in the suit.

12. The plaintiff, in its ex parte evidence, in view of the written statement of defendant no.1 Mehtab Singh Jain contents whereof have been narrated hereinabove, was required to prove the existence of the HUF of which he was a member and further required to prove that the properties of which partition was claimed are of the HUF and on which basis the suit was filed. Only if the plaintiff in his ex parte evidence is found to have established so would the plaintiff be entitled to a decree for partition and rendition of accounts. Else, notwithstanding the defendants having not cross-examined the plaintiff and being ex parte, the suit will have to be dismissed. Though the defendant no.1 Mehtab Singh Jain has since died but the claim if any of the plaintiff to a share in the estate of his father Mehtab Singh Jain, as a son and natural heir of Mehtab Singh Jain, if the plaintiff were to fail in the case with which he has approached this Court, cannot be adjudicated in this suit, there being no pleadings and evidence with respect thereto. This is more so because the plaintiff himself in his last amended plaint aforesaid has pleaded a Will of his father Mehtab Singh Jain.

13. The plaintiff, in his affidavit by way of examination-in-chief tendered as PW1/A, besides repeating the contents of the plaint, has deposed i) that there existed ancestral business of bullion in the name of M/s Niranjan Das Hukum Chand in Gohana, Haryana and owned by great grandfather of plaintiff L. Hukum Chand Jain; ii) that L. Hukum Chand Jain shifted to Delhi and started a firm in the name and style of Hukum Chand Jagodharmal at 1213, Chandni Chowk, Delhi; iii) that Mehboob Singh, Jagodharmal, R.S. Amritlal and R.S. Ulfat Rai, being sons of L. Hukum Chand Jain, joined their father L. Hukum Chand Jain

as partners in aforesaid business; iv) that an Agreement dated 15th September, 1930 was arrived at between the grandfather of the plaintiff Mehboob Singh Jain and his three brothers viz. Jagodharmal, R.S. Amritlal and R.S. Ulfat Rai, certified copy of which obtained from the record of Suit No.281/1974 of this Court was tendered in evidence by summoning the file of Suit No.281/1974 of this Court and identifying the signatures of defendant no.1 Mehtab Singh Jain and his brother Ranjit Singh Jain as witnesses thereon; v) that the properties for which this suit for partition had been filed, originated from and / or were created from the funds obtained from ancestral business of Hukum Chand Jagodharmal and hence there existed a coparcenary of defendant no.1 Mehtab Singh Jain and his sons and grandsons; vi) that the ancestral nature of the business of the Mehboob Singh Ranjit Singh Jain is confirmed by agreement dated 15th September, 1930; vii) that the Relinquishment Deed filed by Surender Kumar Jain was tendered in evidence and the same also confirms the ancestral nature of the business in the name of Mehboob Singh Ranjit Singh Jain; viii) that the factum of the plaintiff becoming a partner in the business of Mehboob Singh Ranjit Singh was sought to be proved from carbon copy of a letter written by the plaintiff to his brother Munisubrat Das Jain by tendering the same as Exhibit PW1/2; ix) the documents executed between plaintiff and the defendant no.1 Mehtab Singh Jain of retirement of defendant no.1 Mehtab Singh Jain from the business of Mehtab Singh Jain & Sons were tendered in evidence; x) the autobiography of L. Hukum Chand Jain was tendered in evidence and in proof of ancestral nature of the business; xi) a Partition Deed dated 18th October, 1943 with respect to other properties

was tendered in evidence to demonstrate the ancestral nature of the business of Mehboob Singh Ranjit Singh Jain; xii) the plaintiff has similarly tendered in evidence several other documents filed by Surender Kumar Jain who supported the defendant No.1 Mehtab Singh Jain, to prove the existence of HUF.

14. The documents on which exhibit marks are purported to have been put in the ex-parte evidence of plaintiff and referred to in the written note of arguments of the plaintiff were however, at the time of perusing this file and dictating the judgment not found in either of the four files of this suit and the Restorer informs that there are no other records of the present suit. As aforesaid, when the order/judgment was reserved in the suit, the plaintiff had appeared in person and none had appeared for the defendants and this fact was not pointed out and did not come to the fore at that time. The written note of arguments of the plaintiff also contains no explanation, though the affidavit in examination-in-chief of the plaintiff, with reference to some of the documents on which exhibit marks were put, refers to the list of documents under which the said documents were filed. However there is no Part III file. However, on pursuing with the Registry, an entire 'basta' of files has been found. Obviously the endorsement made, of the file comprising of four volumes only, by whosoever, is faulty. The Registry to, in future ensure that the entire file is sent and if it is voluminous, a notation is made in bold on Part I about the remaining files.

15. The documents so found have been perused.

CS(OS) No.3371/1992

16. This suit has been filed by the same plaintiff as in the aforesaid suit, impleading inter alia the same defendants as in the aforesaid suit and in addition impleading Mehtab Singh Munisubrat Das Jain Dharmarth Trust as defendant No.8 and Krishna Devi as defendant No.9, for the reliefs of declaration that the dedication and transfer of 1/4th share in property No.1213 to 1216, Chandni Chowk, Delhi by Mehtab Singh Jain in favour of Mehtab Singh Munisubrat Das Jain Dharmarth Trust is illegal and bad and for declaration of the Sale Deed dated 3 rd May, 1991 executed by Mehtab Singh Jain in favour of Krishna Devi as illegal and for setting aside of the same. The pleas in the plaint in this suit are the same as in the suit aforesaid and in addition, it is pleaded (I) that since Mehtab Singh Jain in his written statement filed in the aforesaid disclosed creation of Mehtab Singh Munisubrat Das Jain Dharmarth Trust and handing over of 1/4th share in property No.1213 to 1216, Chandni Chowk, Delhi along with a flat, garage and roof in properties No.4495/1 and 7/23, Makhan Lal Street, Darya Ganj, Delhi to the said Trust and since the dedication of the properties to the Trust is illegal and bad in law because Mehtab Singh Jain could not have created any such Trust in respect of the properties which are ancestral, it has become incumbent upon the plaintiff to institute this suit for declaration as null and void of the dedication and transfer of the properties to Mehtab Singh Munisubrat Das Jain Dharmarth Trust as illegal; (II) that the trustees of the said Trust never received and took possession of the properties and thus no Trust came into existence in the eyes of law; (III) that Mehtab Singh Jain acting as the Trustee of the Trust had also sold the said 1/4th

share in the property No.1213 to 1216, Chandni Chowk, Delhi to Krishna Devi and which fact also had come to the knowledge of the plaintiff when some changes were being carried out in the property and hence the need to set aside said sale also.

17. This suit came up before this Court first on 28th September, 1992,when while issuing summons thereof, status quo was directed to be maintained with respect to 1/4th share in property No.1213 to 1216, Chandni Chowk, Delhi.

18. Written statement to the suit is found to have been filed by Surender Kumar Jain, defendant in this suit also. None of the other defendants are found to have filed written statement.

19. The following issues were framed in the suit on 23 rd October, 2007:

"1. Whether the plaintiff is entitled for a declaration that the sale deed dated 3rd May, 1991 executed by M/s. Mehtab Singh Munisubrat Das Jain Dharmarth Trust is bad and illegal? OPP

2. Whether the plaintiff is entitled for declaration without seeking cancellation of sale deed dated 3rd May, 1991?

OPP

3. Whether the properties Nos.1214-1216, Chandni Chowk, Delhi were the self-acquired properties of late Shri Mehtab Singh Jain as alleged by defendant, if so, to what effect? OPD

4. Relief."

and Issue No.2 was ordered to be treated as a preliminary issue.

20. The plaintiff sought amendment of the plaint to get over the preliminary issue and which was allowed vide order dated 1 st September,

2010 and resultantly the preliminary issue did not survive and the plaintiff relegated to leading evidence.

21. The plaintiff is found to have on 2nd February, 2013 tendered in evidence his affidavit by way of examination-in-chief and none cross- examined him with notation that the defendants were ex-parte vide order dated 28th September, 2012.

22. I may however notice that prior thereto, vide order dated 20th July, 2012, the plaintiff was put to notice that prima facie the suit, on the pleas therein was not found to be maintainable in view of judgments of the Supreme Court in Commissioner of Wealth Tax Etc. Etc. Vs. Chander Sen Etc. AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar AIR 1987 SC 558, inasmuch as after passing of the Hindu Succession Act, 1956, any person who receives property from his paternal ancestors receives so as his self-acquired property and not as property of his HUF and that the plaint did not show any reference to existence of HUF. However, several adjournments were taken thereafter and applications moved from time to time, which led to the said aspect being lost and the plaintiff having led his ex-parte evidence.

23. This suit also faced the same fate as the aforesaid suit, with being transferred, transferred back, again transferred and yet again transferred back to this Court.

24. Thereafter, this suit along with the aforesaid suit was listed on 28th March, 2017 when only the counsel for Krishna Devi appeared and the plaintiff stated that this suit had been filed for setting aside of sale of portion of one of the properties for partition whereof, earlier suit had

been filed. It was enquired from the plaintiff and the counsel for Krishna Devi on 28th March, 2017, as to what was the need to proceed with the present suit. It prima facie appeared that if the suit for partition were to be allowed and decreed, Mehtab Singh Munisubrat Das Jain Dharmarth Trust and Krishna Devi, as assignees of Mehtab Singh Jain, notwithstanding the assignment/sale in their favour, could get only the share of their assignor and nothing more and there was thus no need to set aside the sale/assignment. The plaintiff however stated that the property was ancestral and the plaintiff wanted the property to remain in family fold and that is why has applied for setting aside of the sale deed. However, on further enquiry, it was informed that the property which had been sold to Krishna Devi is commercial and not residential. Though it was observed in the order dated 28th March, 2017 that this suit shall be considered after judgment in the aforesaid suit but on going through the files and having found that the outcome of the present suit depends on the outcome of the aforesaid suit, it is not deemed appropriate to keep this suit for consideration, after decision of aforesaid suit and it is deemed expedient to adjudicate the same along with the aforesaid suit.

25. The ex-parte evidence of the plaintiff in this suit, needless to state, is on the same lines as the ex-parte evidence in the aforesaid suit. The documents referred to in the ex-parte evidence and purported to have been proved are however found on record of the present suit and have been perused.

CS(OS) No.3139/1991 & CS(OS) No.3371/1992

26. The only question for adjudication, as aforesaid, is whether a coparcenary/HUF, as claimed by the plaintiff and denied by his father Mehtab Singh Jain, exists and whether the six properties of which partition is claimed are proved to be properties of such coparcenary/HUF of Mehtab Singh Jain and his sons and grandsons. If it is so proved, plaintiff as son of Mehtab Singh Jain would be a coparcener in the said coparcenary/HUF and would be entitled to a share therein. Else, the suits are liable to be dismissed.

27. For the following reasons, I hold that the plaintiff has been unable to prove the existence of the coparcenary/HUF or the properties to be of such coparcenary/HUF:

(A) Merely because the ancestors of the plaintiff have been carrying on business, does not prove the existence of a coparcenary or HUF.

(B) Rather the business is deposed as being carried on not as a Joint Hindu Family firm but as a partnership and which negates the existence of any Joint Hindu Family inasmuch as had there been any Joint Hindu Family, the business would have been carried on as a business of the Joint Hindu Family and/or as a business of a Joint Hindu Family Firm and not in partnership.

(C) It is the deposition of the plaintiff that his great grandfather Hukum Chand Jain was carrying on business in partnership with his sons including the grandfather of the plaintiff. It is also the deposition of the plaintiff that the grandfather of the plaintiff along with his brothers was also carrying on business in partnership. In a

share of a partner in a partnership business, the sons and grandsons of the partner do not have any right, title share of interest.

(D) Merely because the business of the partnership firms from time to time was the same, though may lead to the family members referring to it as ancestral business, but does not create a HUF or coparcenary, in law.

(E) The plaintiff has similarly also deposed that he was taken in as a partner by his father defendant no.1 Mehtab Singh Jain in the business being carried on by him. Had the business been of family, the question of plaintiff being taken in as a partner therein would not have arisen as the plaintiff from birth would then have had a share therein.

(F) The relationship of the plaintiff with his father defendant no.1 Mehtab Singh Jain with respect to the said business would thus be governed by the Partnership Act, 1932 and not by the ancient Hindu law pertaining to coparcenary, Hindu Undivided Family and Joint Hindu Family Firm.

(G) It is also the evidence of the plaintiff himself that on his father Mehtab Singh Jain ceasing to be a partner, the firm in the name and style of which the plaintiff and his father Mehtab Singh Jain were carrying on business was dissolved and accounts thereof settled. It would not have been so had the business been of a coparcenary or Joint Hindu Family. The other brothers of the

plaintiff and their sons also would then have been concerned and having a share in the business, and which is not the plea.

(H) Mere mention in the documents, of the business of jewellery which the members of the family in partnership had been carrying from time to time, as ancestral business would not change the nature and character of the business from that of a partnership, governed by Partnership Act to the business of a Joint Hindu Family or Joint Hindu Family Firm, governed by ancient hindu law.

(I) If the pleas of existence of HUF/Joint Hindu Family/Ancestral business were to lead to existence of such HUF, all the sons of L. Hukum Chand Jain and their families would also be members of such HUF in as much as no partition therewith is pleaded and proved. The factum of the plaintiff not pleading so and not making them parties to the suit and not including properties held by such family members in this suit, negates the pleas of existence of HUF/Joint Family Business.

(J) It has come in evidence that the family members were filing income tax returns. Even otherwise, the business being carried on from time to time must have been assessed to various taxations and there must be records of holding and assessments of several properties. It is not the plea that anywhere there is any mention of HUF, as would have been if the income and properties were of HUF/Joint Hindu Family Business or coparcenary. Adverse inference has to be drawn against the plaintiff therefrom.

(K) The plaintiff, in his ex parte evidence, has relied heavily on admissions of his brother Surender Kumar Jain. Surender Kumar Jain, though filed written statement supporting the father Mehtab Singh Jain, is in the same position as plaintiff and merely because he may have at sometime also pleaded/claimed coparcenary or HUF would not bind the father Mehtab Singh Jain in whom the title to the properties as sole owner vested.

(L) Once the existence of any Joint Hindu Family or Joint Hindu Family Firm or coparcenary has not been established, the evidence of the properties having been acquired from the earnings of coparcenary/Joint Hindu Family Business does not arise and the properties would not be of the HUF or of coparcenary.

(M) The paternal grandfather of the plaintiff Mehboob Singh Jain died after coming into force of the Hindu Succession Act, 1956 and thus what was inherited by Mehtab Singh Jain father of the plaintiff from his father Mehboob Singh Jain was not ancestral or coparcenary property in the hands of Mehtab Singh Jain but was personal property of Mehtab Singh Jain and in which the plaintiff as son of Mehtab Singh Jain has/had no share.

(N) This Court in order dated 20th July, 2012 in CS(OS) No.3371/1992 rightly expressed a prima facie opinion of the claim of the plaintiff in both the suits being not maintainable in view of Chander Sen and Yudhishter supra.

28. Thus Suit No.3139/1991 for partition, on the premise of existence of an HUF/coparcenary and the properties of which partition is sought

therein being of the HUF/coparcenary and the plaintiff as a coparcener of the HUF/coparcenary having a share therein and being entitled to partition, fails.

29. Once CS(OS) No.3139/1991 fails, the plaintiff in CS(OS) No.3371/1992 cannot have any basis for declaration as bad of the alienations or dispositions of the property made by his father Mehtab Singh Jain in whose name admittedly title to such properties vested and in which the plaintiff has not been found to have any share. Resultantly, CS(OS) No.3371/1992 also fails.

30. The suits are thus dismissed.

However no costs.

Decree sheets be drawn up.

RAJIV SAHAI ENDLAW, J.

APRIL 13, 2018 'pp/gsr/bs'..