Delhi High Court
Dr. Suraj Munjal vs Chandan Munjal & Ors. on 30 January, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No. 682/2017 and I.A. No.15285/2017 (stay)
% 30th January, 2018
DR. SURAJ MUNJAL ..... Plaintiff
Through: Mr. D.K. Rustagi, Advocate.
versus
CHANDAN MUNJAL & ORS. ..... Defendants
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. When this suit came up for hearing for admission on
19.12.2017, the following order was passed:-
"IA No.15284/2017
1. Allowed, subject to just exceptions.
2. IA stands disposed of.
CS(OS) 682/2017 & IA No.15284/2017 (u/O 39, Rules 1&2 CPC)
3. In my prima facie opinion, the subject suit is not maintainable and
would be hit by the ratio of the judgment delivered by this Court in the
case of Surender Kumar vs. Dhani Ram, 227 (2016) DLT 217.
4. This Court is so observing because inheritance of ancestral
properties after 1956 does no longer create an HUF/Joint Hindu Family.
For a Joint Hindu Family/HUF to come into existence after 1956 for the
first time, it is necessary that an HUF is created by throwing the property
in common hotchpotch. The present plaint does not show creation of an
HUF by throwing into common hotchpotch of a property or properties
after 1956.
5. The only other way HUF could have come into existence was if
there was inheritance of ancestral property prior to 1956, i.e. prior to
passing of the Hindu Succession Act, 1956, and which Joint Hindu
CS(OS) No. 682/2017 Page 1 of 19
Family/HUF would have continued after 1956. Even this cause of action
is conspicuous by its absence in the present case.
6. A prima facie reading of the plaint shows that existence of HUF is
alleged on the ground of inheritance of ancestral properties, but
inheritance of ancestral properties after 1956 does not result in creation of
an HUF in view of the judgment of the Supreme Court in the case of
Commissioner of Wealth Tax vs. Chander Sen, (1986) 3 SCC 567 and
Yudhishter vs. Ashok Kumar, (1987) 1 SCC 204. I have applied the ratio
of the judgments of the Supreme Court in Sunder Kumar case (supra).
7. I am also of the prima facie opinion that besides the suit plaint not
disclosing any legal cause of action in view of the ratio of the judgments
of the Supreme Court in the cases of Chander Sen (supra) and Yudhisther
(supra), also, prima facie this Court does not seem to have territorial
jurisdiction because every immovable property with respect to which
relief is claimed in the present suit is situated in Haryana except one
property which is said to be a basement in E-82A, Greater Kailash, New
Delhi and with respect to which there will have to be some documentation
shown of either plaintiff being a co-owner of the same or with respect to
this Greater Kailash property being an HUF property. Self-serving
averments of a property being HUF will no longer help a plaintiff after
passing of the Benami Transaction (Prohibition) Act, 1988 and as
amended by the 2016 amendment thereof whereby the Act is now called
The Prohibition of Benami Property Transactions Act.
8. Learned counsel for the plaintiff states that he would like to
examine the factual and legal position.
9. At request, list on 30th January, 2018."
2. The plaintiff/Dr. Suraj Munjal has filed the present suit
for partition, declaration and injunction. As per the plaint and the
causes of action therein, there are three categories of properties which
are mentioned. First category of properties is stated in para 5(I) of the
plaint and which are HUF properties. In the second category of
property though the averment is that it is a jointly held property,
however, the same para seems to indicate that this second category of
property is in fact an HUF property. In my opinion the plaint para
CS(OS) No. 682/2017 Page 2 of 19
5(II) is not very happily worded with respect to the second category of
property and which is only one property being 9 acres of land in
village Bhampur, Rania Road, Sirsa, Haryana. The third category is
of the joint properties and which are essentially two in number with
first property being the control of the shareholding of the defendant
no.6 company M/s RC Healthcare (P) Ltd and secondly that plaintiff
has become the exclusive owner of the basement premises forming
part of the property E-82A, Greater Kailash-I, New Delhi.
3. With respect to the HUF properties, which are the four
properties in the first category, averments are made in paras 1 to 3 of
the plaint for such properties to be HUF properties and these paras 1 to
3 read as under:-
"1. That the Plaintiff is a medical practitioner as ophthalmologist and
is well known eye surgeon. The Defendant No.1 is the real brother of the
Plaintiff and the Defendant No.2 is the father of the Plaintiff and
Defendant No.1. That Defendant No.2 is also Karta of HUF which
comprised of beside himself Plaintiff and Defendant no.1 as coparcerner.
2. That the actual HUF which was formed at the birth of the Plaintiff
on 05.11.1978 and then the Defendant No.1 became its member by birth in
1982. This HUF was formed out of funds acquired by share of ancestral
properties. This HUF instituted with funds available in the hands of
Defendant No.2 who duly acknowledged so in various statutory records.
Each of these records are in exclusive custody of the Defendant No.2.
These funds were invested only to purchase properties which has been in
joint names of all coparceners with exception of name of Defendant No.3.
This addition was made out of love and affection only. Since these
properties were acquired entirely from the HUF/Ancestral funds came in
hand with Defendant No.2 as Karta, the properties could include the name
CS(OS) No. 682/2017 Page 3 of 19
of the Defendant No.2 in the form of 20/30 acres of land and cloth shop in
Village Khuban in District Abohar, Punjab. This shop used to be run by
the grandfather of the Plaintiff. The grandfather made huge assets and the
Defendant No.2 acquired his share as member of this HUF. The
grandfather died intestate in 1967-68. Therefore, the inclusion of name of
the Defendant No.2 does not alter the actual ownership status i.e. in the
name of the Defendant No.2, Plaintiff and the Defendant No.1.
3. That the Defendant no.2 is a general medical practitioner since
1971 and now running a hospital in the name of "Munjal Hospital" at
Arya Samaj Road, Sirsa (Haryana). This building comprised of Ground
floor and First Floor superstructure. In Ground Floor, the Defendant No.1
is controlling the Hospital and the Defendant Nos.2 and 3 residing on the
First Floor portion. This building was constructed on a plot of land
measuring 450 sq. yds. This property was acquired and
constructed/renovated by the joint funds. This property is acknowledged
throughout as property of HUF by the Defendant No.2, who has been
receiving rental income into HUF account."
4. After mentioning about existence of HUF and its
properties in paras 1 to 3, para 5 divides the total properties, which are
subject matter of the suit, in three categories and as already stated
above. This para 5 reads as under:-
"5. That from the funds of the HUF, the defendant no.2 as Karta and
the plaintiff and the defendant No.1 are the three coparceners having 1/3rd
share each as the defendant No.3 has not been coparceners. The nature of
acquisition since been different, they are being segregated for description
purpose. The first category is those in joint name of four persons i.e the
Plaintiff, Defendant Nos.1,2 & 3. The second categories are which are in
joint names of two amongst these four persons of the family. The third
category of property which was acquired from funds without assistance of
joint funds but still in joint name. The following are 3 categories of such
properties:
I. FIRST CATEGORY OF JOINT PROPERTIES:
(i) Property bearing No.620, Phase-V in Udyog Vihar, Gurgaon built
on a land measuring 300 sq. yds. having superstructure of Basement,
Ground Floor, First Floor and Second Floor purchased in the year 2006.
This property individually referred to as "the industrial property". This
property is in joint name of the plaintiff and defendant No.1,2 & 3. This
premises has been let out from time to time to various tenants floor-wise
CS(OS) No. 682/2017 Page 4 of 19
and the rent proceeds are secured by having post-dated cheques in the
name of plaintiff, defendant No.1,2 & 3.
(ii) Another property of the HUF is situated at Arya Samaj Road,
Sirsa, which is built on a land measuring 450 Sq. Yds. of plot though
acquired in the name of the Defendant No.2 as Karta. The present claim is
only in respect of joint properties and income in the name of HUF. In the
superstructure, Defendant No.2 is running a Hospital, namely, Munjal
Nursing Home and on the First Floor, Defendant Nos.2 & 3 are residing.
(iii) The third property is the flat No. A-222, Second Floor, Spazedge
(The Mall), Sohna Road, which is measuring 1488 sq. ft. of area
purchased in the year 2008. This property is also jointly owned by all the
four persons, namely, Plaintiff, Defendant Nos.1,2 &3.
(iv) The fourth property is 1800 Sq. Yds. of land at Debwali Road,
Sirsa. This property is in the name of the Defendant No.3. This property
too acquired by ancestral funds and thereafter the devolution was shown in
the Defendant No.3.
Hereinafter the above properties of First Category shall be referred
to as "the HUF Properties" collectively.
II. SECOND CATEGORY OF JOINT PROPERTIES:
One which was acquired in 1982 in the joint names of the
Defendant No.2 and the Plaintiff. This property is the 9 acre of land in the
Village Bhampur, Rania Road, Sirsa. This property has devolved upon the
Plaintiff and the Defendant No.3 jointly but it was originally acquired by
funds belonging to above common ancestors of the parties hereto. This
property may be referred to as „jointly held property‟. The exact details of
above procedure are with the Defendant No.2 alone. With the acquisition
of HUF and jointly held properties, the funds stood exhausted as per
records of the said HUF. However, the same are subject to records
produced by the Defendant No.2 in this regard.
III. THIRD CATEGORY OF JOINT PROPERTIES:
(i)(a) Basement premises of larger property no.E-82A, Greater Kailash-I,
New Delhi built on land measuring 632 sq. yds., hereinafter referred to as
"the basement premises",
(b) The Plaintiff has caused the acquisition of basement premises in
the larger property No.E-82A, Greater Kailash-1, New Delhi-110048.
This premises was purchased in the joint name of Defendant No.1 as one
of the co-owners in the Sale Deed dated 12.10.2011 for a total
consideration of Rs.1,02,00,000/- for a payment of said consideration a
loan was raised a sum of Rs.70,99,600/- from the OBC, Overseas branch,
Udyog Vihar Phase-V, Gurugram which was sanctioned 05.10.2011.
(c) Another amount of Rs.4,00,000/- was sanctioned for renovation
totaling the said loan amount Rs.75,00,000/-. This was done in loan
account of 09877025000719.
CS(OS) No. 682/2017 Page 5 of 19
(d) In this account a top-up of a sum of Rs.35,00,000/- was again
taken on 06.05.2013 on this account. The Plaintiff has caused complete
liquidation of this loan in May 2015.
(e) Out of total amount of Rs.1,44,45,574/- the Plaintiff has
contributed at Rs.1,24,61,474/- whereas the Defendant No.1 has
contributed Rs.19,84,100/- only. This too has been withdrawn from the
company itself and part of adjustments. Therefore, the Defendant No.1
never had any valuable interest in the basement premises except in title
documents.
(f) Thereafter, the company registered office has been changed after
acquisition as of this property from earlier address to this basement on
06.12.2011.
(ii)a) Joint Account No.09872151000168 as opened in September, 2007
with OBC. As per the banking instructions, this account was operated
individually by both the joint owners. However, Plaintiff has never
operated the said account under his sole signature. This account has been
operated since inception only under the sole signatures of the Defendant
No.1. The Defendant No.1 has never given any account of the
withdrawals from this account despite regular receipts of cheques by
tenants in the name of the Plaintiff being encashed. The details of tenants
with rental income since September 2007 till date are given in sheet
attached herewith as Schedule-I.
b) However, it is the defendant No.1 who has operated the said
account and all withdrawals were utilized by the defendant No.1 for his
individual benefit invariably. There may be one or two isolated
transactions where the withdrawals from this account were utilized for
joint interest of parties. There is not a single transaction where any
withdrawal was utilized for individual benefit of the Plaintiff. The
defendant No.1 as learnt now out of withdrawals from above joint account
only has acquired his present residence at E-161, Richmond Park, DLF,
Phase-IV, Gurgaon which is thus deemed to be "jointly held property"
for all intents and purposes and liable to declared so. the share of the
Plaintiff in the said account has been completely utilized in purchasing the
said property as such, the Plaintiff by operation of law acquired 1/2
undivided share therein. The title documents of this property are in sole
custody of the Defendant No.1."
5. In terms of the aforesaid causes of action and averments
in the plaint the following prayers have been made in the suit:-
"In view of the aforesaid, this Hon‟ble Court may kindly be pleased to:-
(a) pass a decree of declaration in favour of the Plaintiff and against
the Defendant Nos.1,2,3 & 4 thereby declaring the title deeds of each of
CS(OS) No. 682/2017 Page 6 of 19
the 4 HUF properties to be having the Plaintiff, Defendant Nos.1 & 2 as
co-sharers/co-owners having 1/3rd share each notwithstanding the recorded
shareholding of the Defendant No.3 therein, and/or;
(b) pass a decree of declaration in favour of the Plaintiff and against
the Defendant Nos.1, 2, & 3 thereby declaring the partial settlement as
reached between the parties which is detailed in para 6 and 7 above in
relation to the basement premises and also including the exclusive
valuable interest in Defendant No.6 Company and duly recorded in the
transfer deed dated 03.10.2017 as executed by the Defendant No.3 in
favour of the Defendant No.1, to be binding on all the parties to the
present suit, for all intents and purposes, and/or;
(c) pass a decree of permanent injunction in favour of Plaintiff and
against the Defendant Nos.1,2, & 3, their agents, representatives,
assignees from entering the basement premises of the larger property
no.E-82A, Greater Kailash-I, New Delhi on any account whatsoever being
having no valuable interest as shareholder or director after the partial
settlement duly acted upon and acknowledged in writing, including in the
transfer deed dated 03.10.2017, and/or;
(d) pass a preliminary decree of partition holding 1/3rd share each in
the Plaintiff and the Defendant Nos.1 & 2 in respect of the HUF properties
as described in para 5 I (i) to (iv) above and the Plaintiff to hold ½
undivided share in respect of the joint properties including the deemed
joint properties as mentioned in second and third categories of properties
as described in para 5 II and III above to be concluded and binding as
found by this Hon‟ble Court to be not enforceable for any reasons
whatsoever, and/or;
Any other or further order or direction, this Hon‟ble Court may
deem fit and proper may also be passed in the interest of justice."
6. A reading of the aforesaid relief/prayer clauses of the
plaint along with averments of the plaint with respect to HUF
properties show that so far as prayer paras (a) and (d) are concerned
plaintiff claims right in such HUF properties to the extent of 1/3rd
share with the balance 1/3rd share each being of defendant nos.1 and 2.
CS(OS) No. 682/2017 Page 7 of 19
7. It is now settled law in view of the ratios 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 after passing of the Hindu Succession Act, 1956 inheritance
of the ancestral properties by a person does not implant the character
of HUF property on the inherited properties. Inheritance by a person
of a property or properties from his paternal ancestors after the year
1956 results in inheritance being taken as a self-acquired property and
not as an HUF property. HUF property would be an HUF property
only if the properties were inherited by a person before coming into
force of Hindu Succession Act in the year 1956 and HUF continued
thereafter after the year 1956 with the second manner in which HUF
can come into existence if after the year 1956 a person throws his
property into common hotchpotch and consequently HUF is created.
8. I have had an occasion to refer to the ratios of the
judgments of the Supreme Court in the cases of Chander Sen (supra)
and Yudhishter (supra) in the judgment delivered in the case of
Surender Kumar Vs. Dhani Ram and Others, 227 (2016) DLT 217.
CS(OS) No. 682/2017 Page 8 of 19
The relevant paras of this judgment in the case of Surender Kumar
(supra) are paras 4 to 13 and these paras read as under:-
"4. Plaintiff claims that as a son of defendant no.1 and as a grandson
of late Sh. Jage Ram, plaintiff is entitled to his share as a coparcener in the
aforesaid suit properties on the ground that the properties when they were
inherited by late Sh. Jage Ram were joint family properties, and therefore,
status as such of these properties as HUF properties have continued
thereby entitling the plaintiff his rights in the same as a coparcener.
5. The Supreme Court around 30 years back in the judgment in the
case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander
Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu
Succession Act, 1956 the traditional view that on inheritance of an
immovable property from paternal ancestors up to three degrees,
automatically an HUF came into existence, no longer remained the legal
position in view of Section 8 of the Hindu Succession Act, 1956. This
judgment of the Supreme Court in the case of Chander Sen (supra) was
thereafter followed by the Supreme Court in the case of Yudhishter Vs.
Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated
the legal position that after coming into force of Section 8 of the Hindu
Succession Act, 1956, inheritance of ancestral property after 1956 does
not create an HUF property and inheritance of ancestral property after
1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the cases of Chander Sen
(supra) and Yudhishter (supra), in law ancestral property can only
become an HUF property if inheritance is before 1956, and such HUF
property therefore which came into existence before 1956 continues as
such even after 1956. In such a case, since an HUF already existed prior
to 1956, thereafter, since the same HUF with its properties continues, the
status of joint Hindu family/HUF properties continues, and only in such a
case, members of such joint Hindu family are coparceners entitling them
to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e before passing of
the Hindu Succession Act, 1956 and post 1956 i.e after passing of the
Hindu Succession Act, 1956, the same has been considered by me recently
in the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh &
Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I
have referred to and relied upon the ratio of the judgment of the Supreme
Court in the case of Yudhishter (supra) and have essentially arrived at the
following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956
and there is no HUF existing at the time of the death of such a person,
inheritance of an immovable property of such a person by his successors-
CS(OS) No. 682/2017 Page 9 of 19
in-interest is no doubt inheritance of an „ancestral‟ property but the
inheritance is as a self-acquired property in the hands of the successor and
not as an HUF property although the successor(s) indeed inherits
„ancestral‟ property i.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu
family can come into existence after 1956 (and when a joint Hindu family
did not exist prior to 1956) is if an individual‟s property is thrown into a
common hotchpotch. Also, once a property is thrown into a common
hotchpotch, it is necessary that the exact details of the specific
date/month/year etc of creation of an HUF for the first time by throwing a
property into a common hotchpotch have to be clearly pleaded and
mentioned and which requirement is a legal requirement because of Order
VI Rule 4 CPC which provides that all necessary factual details of the
cause of action must be clearly stated. Thus, if an HUF property exists
because of its such creation by throwing of self-acquired property by a
person in the common hotchpotch, consequently there is entitlement in
coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited
prior to 1956, and such status of parties qua the properties has continued
after 1956 with respect to properties inherited prior to 1956 from paternal
ancestors. Once that status and position continues even after 1956; of the
HUF and of its properties existing; a coparcener etc will have a right to
seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without
inheritance of ancestral property from paternal ancestors, as HUF could
have been created prior to 1956 by throwing of individual property into a
common hotchpotch. If such an HUF continues even after 1956, then in
such a case a coparcener etc of an HUF was entitled to partition of the
HUF property.
8. The relevant paragraphs of the judgment in the case of Sunny
(Minor) (supra) are paragraphs 6 to 8 and which paras read as under:-
"6. At the outset, it is necessary to refer to the ratio of the judgment of
the Supreme Court in the case of Yudhishter Vs. Ashok Kumar,
(1987) 1 SCC 204 and in para 10 of the said judgment the Supreme
Court has made the necessary observations with respect to when HUF
properties can be said to exist before passing of the Hindu Succession
Act, 1956 or after passing of the Act in 1956. This para reads as
under:-
'10. This question has been considered by this Court in
Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and
Ors. MANU/SC/0265/1986MANU/SC/0265/1986 :
[1986]161ITR370(SC) where one of us (Sabyasachi Mukharji, J)
observed that under the Hindu Law, the moment a son is born, he
gets a share in father's property and become part of the
coparcenary. His right accrues to him not on the death of the father
CS(OS) No. 682/2017 Page 10 of 19
or inheritance from the father but with the very fact of his birth.
Normally, therefore whenever the father gets a property from
whatever source, from the grandfather or from any other source, be
it separated property or not, his son should have a share in that and
it will become part of the joint Hindu family of his son and
grandson and other members who form joint Hindu family with
him. This Court observed that this position has been affected
by Section 8 of the Hindu Succession Act, 1956 and, therefore,
after the Act, when the son inherited the property in the
situation contemplated by Section 8, he does not take it as Kar
of his own undivided family but takes it in his individual
capacity. At pages 577 to 578 of the report, this Court dealt with
the effect of Section 6 of the Hindu Succession Act, 1956 and the
commentary made by Mulla, 15th Edn. pages 924-926 as well as
Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji
relied on the said observations of Mayne on 'Hindu Law', 12th Edn.
at pages 918-919. This Court observed in the aforesaid decision
that the views expressed by the Allahabad High Court, the Madras
High Court the Madhya Pradesh High Court and the Andhra
Pradesh High Court appeared to be correct and was unable to
accept the views of the Gujarat High Court. To the similar effect is
the observation of learned author of Mayne's Hindu Law, 12th Edn.
page 919. In that view of the matter, it would be difficult to
hold that property which developed on a Hindu under Section
8 of the Hindu Succession Act, 1956 would be HUF in his hand
vis-a-vis his own sons. If that be the position then the property
which developed upon the father of the respondent in the instant
case on the demise of his grandfather could not be said to be HUF
property. If that is so, then the appellate authority was right in
holding that the respondent was a licensee of his father in respect
of the ancestral house." (emphasis is mine)
7(i).As per the ratio of the Supreme Court in the case of Yudhishter
(supra) after passing of the Hindu Succession Act, 1956 the position
which traditionally existed with respect to an automatic right of a
person in properties inherited by his paternal predecessors-in-interest
from the latter‟s paternal ancestors upto three degrees above, has come
to an end. Under the traditional Hindu Law whenever a male ancestor
inherited any property from any of his paternal ancestors upto three
degrees above him, then his male legal heirs upto three degrees below
him had a right in that property equal to that of the person who
inherited the same. Putting it in other words when a person „A‟
inherited property from his father or grandfather or great grandfather
then the property in his hand was not to be treated as a self-acquired
property but was to be treated as an HUF property in which his son,
grandson and great grandson had a right equal to „A‟. After passing of
the Hindu Succession Act, 1956, this position has undergone a change
and if a person after 1956 inherits a property from his paternal
ancestors, the said property is not an HUF property in his hands and
the property is to be taken as a self-acquired property of the person
who inherits the same. There are two exceptions to a property
inherited by such a person being and remaining self-acquired in his
hands, and which will be either an HUF and its properties was existing
even prior to the passing of the Hindu Succession Act, 1956 and which
Hindu Undivided Family continued even after passing of the Hindu
Succession Act, 1956, and in which case since HUF existed and
continued before and after 1956, the property inherited by a member of
an HUF even after 1956 would be HUF property in his hands to which
his paternal successors-in-interest upto the three degrees would have a
right. The second exception to the property in the hands of a person
being not self-acquired property but an HUF property is if after 1956 a
person who owns a self-acquired property throws the self-acquired
property into a common hotchpotch whereby such property or
properties thrown into a common hotchpotch become Joint Hindu
Family properties/HUF properties. In order to claim the properties in
this second exception position as being HUF/Joint Hindu Family
properties/properties, a plaintiff has to establish to the satisfaction of
the court that when (i.e date and year) was a particular property or
properties thrown in common hotchpotch and hence HUF/Joint Hindu
Family created.
(ii) This position of law alongwith facts as to how the properties are
HUF properties was required to be stated as a positive statement in the
plaint of the present case, but it is seen that except uttering a mantra of
the properties inherited by defendant no.1 being „ancestral‟ properties
and thus the existence of HUF, there is no statement or a single
averment in the plaint as to when was this HUF which is stated to own
the HUF properties came into existence or was created ie whether it
existed even before 1956 or it was created for the first time after 1956
by throwing the property/properties into a common hotchpotch. This
aspect and related aspects in detail I am discussing hereinafter.
8(i).A reference to the plaint shows that firstly it is stated that Sh. Tek
Chand who is the father of the defendant no.1 (and grandfather of Sh.
Harvinder Sejwal and defendants no.2 to 4) inherited various ancestral
properties which became the basis of the Joint Hindu Family
properties of the parties as stated in para 15 of the plaint. In law there
is a difference between the ancestral property/properties and the Hindu
Undivided Family property/properties for the pre 1956 and post 1956
position as stated above because inheritance of ancestral properties
prior to 1956 made such properties HUF properties in the hands of the
person who inherits them, but if ancestral properties are inherited by a
person after 1956, such inheritance in the latter case is as self-acquired
properties unless of course it is shown in the latter case that HUF
existed prior to 1956 and continued thereafter. It is nowhere pleaded
in the plaint that when did Sh. Tek Chand father of Sh. Gugan Singh
expire because it is only if Sh. Tek Chand father of Sh. Gugan
Singh/defendant no.1 had expired before 1956 only then the property
which was inherited by Sh. Gugan Singh from his father Sh. Tek
Chand would bear the character of HUF property in the hands of Sh.
Gugan Singh so that his paternal successors-in-interest became co-
parceners in an HUF. Even in the evidence led on behalf of the
plaintiffs, and which is a single affidavit by way of evidence filed by
the mother of the plaintiffs Smt. Poonam as PW1, no date is given of
the death of Sh. Tek Chand the great grandfather of the plaintiffs. In
the plaint even the date of the death of the grandfather of the plaintiffs
Sh. Gugan Singh is missing. As already stated above, the dates/years
of the death of Sh. Tek Chand and Sh. Gugan Singh were very
material and crucial to determine the automatic creation of HUF
because it is only if Sh. Tek Chand died before 1956 and Sh. Gugan
Singh inherited the properties from Sh. Tek Chand before 1956 that
the properties in the hands of Sh. Gugan Singh would have the stamp
of HUF properties. Therefore, in the absence of any pleading or
evidence as to the date of the death of Sh. Tek Chand and
consequently inheriting of the properties of Sh. Tek Chand by Sh.
Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the
properties of Sh. Tek Chand prior to 1956.
(ii) In fact, on a query put to the counsels for the parties, counsels for
parties state before this Court that Sh. Gugan Singh expired in the year
2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek
Chand died in 1982, inheriting of properties by Sh. Gugan Singh from
Sh. Tek Chand would be self-acquired in the hands of Sh. Gugan
Singh in view of the ratio of the Supreme Court in the case of
Yudhister (supra) inasmuch as there is no case of the plaintiffs of
HUF existing before 1956 or having been created after 1956 by
throwing of property/properties into common hotchpotch either by Sh.
Tek Chand or by Sh. Gugan Singh/defendant no.1. There is not even a
whisper in the pleadings of the plaintiffs, as also in the affidavit by
way of evidence filed in support of their case of PW1 Smt. Poonam, as
to the specific date/period/month/year of creation of an HUF by Sh.
Tek Chand or Sh. Gugan Singh after 1956 throwing properties into
common hotchpotch.
(iii) The position of HUF otherwise existing could only be if it was
proved on record that in the lifetime of Sh. Tek Chand a Hindu
Undivided Family before 1956 existed and this HUF owned properties
include the property bearing no.93, Village Adhichini, Hauz Khas.
However, a reference to the affidavit by way of evidence filed by PW1
does not show any averments made as to any HUF existing of Sh. Tek
Chand, whether the same be pre 1956 or after 1956. Only a self-
serving statement has been made of properties of Sh. Gugan Singh
being „ancestral‟ in his hands, having been inherited by him from Sh.
Tek Chand, and which statement, as stated above, does not in law
mean that the ancestral property is an HUF property."
9. I would like to further note that it is not enough to aver a mantra,
so to say, in the plaint simply that a joint Hindu family or HUF exists.
Detailed facts as required by Order VI Rule 4 CPC as to when and how
the HUF properties have become HUF properties must be clearly and
categorically averred. Such averments have to be made by factual
references qua each property claimed to be an HUF property as to how the
same is an HUF property, and, in law generally bringing in any and every
property as HUF property is incorrect as there is known tendency of
litigants to include unnecessarily many properties as HUF properties, and
which is done for less than honest motives. Whereas prior to passing of the
Hindu Succession Act, 1956 there was a presumption as to the existence
of an HUF and its properties, but after passing of the Hindu Succession
Act, 1956 in view of the ratios of the judgments of the Supreme Court in
the cases of Chander Sen (supra) and Yudhishter (supra) there is no such
presumption that inheritance of ancestral property creates an HUF, and
therefore, in such a post 1956 scenario a mere ipse dixit statement in the
plaint that an HUF and its properties exist is not a sufficient compliance of
the legal requirement of creation or existence of HUF properties inasmuch
as it is necessary for existence of an HUF and its properties that it must be
specifically stated that as to whether the HUF came into existence before
1956 or after 1956 and if so how and in what manner giving all requisite
factual details. It is only in such circumstances where specific facts are
mentioned to clearly plead a cause of action of existence of an HUF and
its properties, can a suit then be filed and maintained by a person claiming
to be a coparcener for partition of the HUF properties.
10. A reference to the plaint in the present case shows that it is claimed
that ownership of properties by late Sh. Jage Ram in his name was as joint
Hindu family properties. Such a bald averment in itself cannot create an
HUF unless it was pleaded that late Sh. Jage Ram inherited the properties
from his paternal ancestors prior to 1956 or that late Sh. Jage Ram created
an HUF by throwing his own properties into a common hotchpotch.
These essential averments are completely missing in the plaint and
therefore making a casual statement of existence of an HUF does not mean
the necessary factual cause of action, as required in law, is pleaded in the
plaint of existence of an HUF and of its properties.
11. I may note that the requirement of pleading in a clear cut manner
as to how the HUF and its properties exist i.e whether because of pre 1956
position or because of the post 1956 position on account of throwing of
properties into a common hotchpotch, needs to be now mentioned
especially after passing of the Benami Transaction (Prohibition) Act, 1988
(hereinafter referred to as „the Benami Act‟) and which Act states that
property in the name of an individual has to be taken as owned by that
individual and no claim to such property is maintainable as per Section
4(1) of the Benami Act on the ground that monies have come from the
person who claims right in the property though title deeds of the property
are not in the name of such person. An exception is created with respect
to provision of Section 4 of the Benami Act by its sub-Section (3) which
allows existence of the concept of HUF. Once existence of the concept of
HUF is an exception to the main provision contained in sub-Sections (1)
and (2) of Section 4 of the Benami Act, then, to take the case outside sub-
Sections (1) and (2) of Section 4 of the Benami Act it has to be
specifically pleaded as to how and in what manner an HUF and each
specific property claimed as being an HUF property has come into
existence as an HUF property. If such specific facts are not pleaded, this
Court in fact would be negating the mandate of the language contained in
sub-Sections (1) and (2) of Section 4 of the Benami Act.
12. This Court is flooded with litigations where only self-serving
averments are made in the plaint of existence of HUF and a person being a
coparcener without in any manner pleading therein the requisite legally
required factual details as to how HUF came into existence. It is a sine qua
non that pleadings must contain all the requisite factual ingredients of a
cause of action, and once the ratios of the judgments of the Supreme Court
in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the
pre 1956 position and the post 1956 position has to be made clear, and
also as to how HUF and its properties came into existence whether before
1956 or after 1956. It is no longer enough to simply state in the plaint
after passing of the Hindu Succession Act 1956, that there is a joint Hindu
family or an HUF and a person is a coparcener in such an HUF/joint
Hindu family for such person to claim rights in the properties as a
coparcener unless the entire factual details of the cause of action of an
HUF and each property as an HUF is pleaded.
13. In view of the above, actually the application filed under Order VII
Rule 11 CPC in fact is treated as an application under Order XII Rule 6
CPC, inasmuch as, it is observed on the admitted facts as pleaded in the
plaint that no HUF and its properties are found to exist. There is no
averment in the plaint that late Sh. Jage Ram inherited property(s) from
his paternal ancestors prior to 1956. In such a situation, therefore, the
properties in the hands of late Sh. Jage Ram cannot be HUF properties in
his hands because there is no averment of late Sh. Jage Ram inheriting
ancestral property(s) from his paternal ancestors prior to 1956. There is no
averment in the plaint also of late Sh. Jage Ram‟s properties being HUF
properties because HUF was created after 1956 by late Sh. Jage Ram by
throwing properties into a common hotchpotch. I have already elaborated
in detail above as to how an HUF has to be pleaded to exist in the pre
1956 and the post 1956 positions and the necessary averments which had
to be made in the present plaint. The suit plaint however grossly lacks the
necessary averments as required in law to be made for a complete cause of
action to be pleaded for existence of an HUF and its properties."
9. I have already reproduced above the relevant paras of the
plaint and which paras of the plaint are paras containing the cause of
action of existence of HUF and its properties. These paras do not in
any manner talk of inheritance of the property prior to the year 1956
for the properties becoming HUF properties and in the plaint there is
no averment whatsoever as to in which month and year were the four
properties which fell in the Category I were made into HUF properties
by throwing them into common hotchpotch. Therefore what is
required by law to be pleaded for existence of HUF properties, viz of
properties being inherited before the year 1956 or of the HUF being
created after the year 1956 by throwing the properties into common
hotchpotch, such averments are conspicuous by their absence as per
the averments made in the plaint. These observations made of a cause
of action of HUF and its properties existing will apply to both the first
and the second category of the properties noting that the second
category is actually only one property situated in village Bhampur,
Rania Road, Sirsa, Haryana, and further noting that para 5(II) of the
plaint is drafted in such a way that it is really not understood as to
whether this second category of property is claimed as an HUF
property or that the plaintiff claims a share in the second category
property on account of being a co-owner in terms of the title deed.
Therefore in view of the admitted averments of the plaint and applying
the principles of Order VII Rule 11 CPC read with Order XII Rule 6
CPC, so far as the properties which fall in the first category and
second category, as stated in paras 5(I) and 5(II) of the plaint, the suit
plaint does not contain the necessary averments of legal causes of
action of these properties being HUF properties and consequently the
suit plaint is rejected or the suit is taken to be dismissed on account of
lacking necessary averments of the properties being HUF properties. I
may however hasten to add, and this is noted in view of the statement
of the counsel for the plaintiff that with respect to some of the
properties as mentioned in the first category and second category of
properties, the plaintiff is a co-owner by means of title deeds, and if
that be so, though the suit would stand rejected on the cause of action
of HUF, however, the plaintiff can amend the plaint so as to seek
partition of the properties or any of the properties mentioned in the
first two categories on the ground that plaintiff is the co-owner by
title deeds and in such plaint the plaintiff will have to clearly set out as
to the details of the title deeds by which plaintiff claims co-ownership
in the properties, and to what extent.
9. So far as the third cause of action in the suit plaint of
plaintiff being entitled to the ownership of the defendant no.6
company and also having become absolute owner of the basement of
the property at Greater Kailash, since this entitlement and cause of
action is claimed on the basis of the settlement which the plaintiff
pleads has been arrived at with some or all the defendants in the suit,
consequently, since contents of the plaint at this stage have to be
deemed to be correct, qua this cause of action, summons have to be
issued in the suit. Summons however will only be issued after plaintiff
files the amended plaint removing the averments of causes of action of
existence of HUF in the properties stated above, and in the amended
plaint the plaintiff will only claim partition of the properties of which
plaintiff is a co-owner in terms of the specific title deeds.
10. In view of the above discussion, plaint is rejected so far
as the first category of properties mentioned as HUF properties in para
5(I) of the plaint and also of the second category of property being one
property in para 5(II) of the plaint being the property situated at Sirsa
in Haryana, with of course liberty to the plaintiff to seek partition of
any of the properties which have been mentioned in the first or second
category in case the plaintiff is co-owner of any of such properties in
terms of the specific title deeds and as already discussed above. Issue
of summons in the suit and consideration of interim application will be
after the plaintiff amends the plaint pursuant to the present judgment.
Let the plaintiff file the amended plaint in terms of the present
judgment within a period of one week from today.
List on 8th May, 2018.
JANUARY 30, 2018/Ne VALMIKI J. MEHTA, J
