Vijay Kumar Puri vs Rajinder Nath Puri (Since ...
2018 Latest Caselaw 6013 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    RFA Nos. 833/2018 & 831/2018

%                                                    4th October, 2018

+      RFA No. 833/2018

VIJAY KUMAR PURI

                                                           ..... Appellant

                               Through:   Mr. R.B.Singhal, Sr. Adv. with
                                          Mr. Siddharth Sengar and Mr.
                                          Anurag    Bindal, Advocates.
                                          (9868152850)

                               versus

RAJINDER NATH PURI (SINCE DECEASED) THR LRS

                                                        ..... Respondents

Through

AND

+ RFA No. 831/2018

VIJAY KUMAR PURI & ANR

..... Appellants

Through: Mr. R.B.Singhal, Sr. Adv. with Mr. Siddharth Sengar and Mr. Anurag Bindal, Advocates.

(9868152850)

versus

RAJINDER NATH PURI (SINCE DECEASED) THR LRS

..... Respondents

Through

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 41153/2018 (Exemption)

1. Exemption allowed subject to just exceptions.

CM stands disposed of.

CM No. 41154/2018 (delay in re-filing)

2. For the reasons stated in the application, delay in re-filing

is condoned.

CM stands disposed of.

RFA No. 833/2018 & CM No. 41152/2018 (stay)

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

of Civil Procedure, 1908 (CPC) is filed by the defendant/son in the

suit impugning the Judgment of the Trial Court dated 28.04.2018 by

which the trial court has decreed the suit for mesne profits filed by the

father, Sh. Rajinder Nath Puri, (since deceased and now represented

by his legal heirs), with respect to a portion of the property situated on

the ground floor of D-141, Kamla Nagar, Delhi-110007.

4. The facts of the case are that the plaintiff/father/Sh.

Rajinder Nath Puri filed the subject suit for mesne profits of the suit

property on the ground that he was the owner of the property bearing

no. D-141, Kamla Nagar, Delhi (hereinafter 'suit property') in terms of

the registered Sale Deed dated 07.01.1959. The appellant/defendant

being the son of the plaintiff/Sh. Rajinder Nath Puri was permitted to

stay as a gratuitous licensee in three rooms, one bathroom, two toilets

and one kitchen situated on the ground floor of the property. Since the

behavior of the appellant/defendant was cruel towards the

plaintiff/father, hence, the license of the appellant/defendant was

terminated, as also the other brother namely Sh. Shyam Sunder Puri (a

co-appellant in connected RFA No. 831/2018) vide Legal Notice

dated 06.02.2004. Thereafter, the subject suit was filed against the

appellant/defendant. The plaintiff/ father claimed mesne profits at Rs.

15,000/- per month from 01.03.2004 till 31.10.2006 amounting to Rs.

4,80,000/- along with interest. The subject suit was filed on

16.11.2006.

5. The appellant/defendant contested the suit and denied the

sole ownership of the plaintiff/father. It was contended by the

appellant/defendant that the suit property was an HUF property as it

was purchased with the funds accruing from ancestral property. The

appellant/defendant also pleaded that the stridhan of the mother was

used for the purchase of the property. The appellant/defendant also

pleaded that he had contributed funds for the purchase of the property.

The suit was therefore prayed to be dismissed.

6. At this stage, this Court would like to note that on the

death of the plaintiff/father (original plaintiff), the appellant/defendant

claimed that the father died intestate, and therefore, he being one of

the legal heirs, would also be one of the co-owners of the suit

property. Hence, the suit for seeking mesne profits cannot succeed on

the death of the father/plaintiff. However, it is noted that the father,

Sh. Rajinder Nath Puri, died leaving behind his registered Will dated

17.09.2004, and with respect to this registered Will of the father a

probate petition was filed, and this probate petition was allowed in

terms of the Judgment of the Probate Court dated 29.03.2011. A

challenge filed by the appellant/defendant and his other brother, Sh.

Shyam Sunder Puri, to the Will before this Court in FAO No.

338/2011 failed and the FAO was dismissed by the learned Single

Judge of this Court on 20.03.2018. Further, this challenge by the

appellant/defendant to the Judgment dated 20.03.2018 in FAO No.

338/2011 before the Supreme Court also failed and the Supreme Court

dismissed the SLP being SLP(C) No. 16950/2018 vide Order dated

24.07.2018. Therefore, the validity of the Will dated 17.09.2004

executed by the father, Sh. Rajinder Nath Puri, stands finally

established and hence the Will of the father dated 17.09.2004 will

operate.

7. After the pleadings were complete, the trial court framed

the following issues:-

"(1) Whether the suit bad for want of cause of action? OPD (2) Whether the suit is bad for suppression of material fact? OPD (3) Whether the suit is bad under Order 2 Rule 2 CPC? OPD (4) Whether the plaintiff has no locus standi to file the present suit? OPD

(5) Whether the suit is liable to be stayed under section 10 CPC? OPD (6) Whether the plaintiff is entitled for recovery of mesne profits? If so, at what rate and for which period? OPP (7) Whether the plaintiff is entitled for interest? If so, at what rate and for which period? OPP (8) Relief."

8. The appellant/defendant had taken up two main defences

before the trial court. First, that the appellant/defendant was the owner

of the suit property as he had contributed funds for purchase of the

plot and second, that the suit property is an HUF property. These two

defences have been rejected by the trial court and the trial court has

noted that the appellant/defendant was born in the year 1958 and the

suit property was purchased in 1959, and therefore, the trial court has

effectively held that a one year old boy could not have contributed

funds for the purchase of the suit plot. The trial court has also rejected

the case of the appellant/defendant that there existed an HUF because

no documents, whatsoever, were filed and proved/exhibited, which

could have showed that the suit property is an HUF property. In law,

an HUF comes into existence only if a person inherits a property from

his paternal ancestors before passing of the Hindu Succession Act

1956, or if after 1956 a person throws his self acquired property into a

common hotchpotch. This is held by the judgment of the Supreme

Court in the cases of Commissioner of Wealth Tax, Kanpur and

Others v. Chander Sen and Others, (1986) 3 SCC 567 and

Yudhishter v. Ashok Kumar, (1987) 1 SCC 204. This Court has

examined the ratios of these judgments in depth while deciding the

case of Surinder Kumar v. Dhani Ram and Others, 227 (2016) DLT

217. The ratio of the judgment in Surinder Kumar (supra) has been

upheld by the Division Bench of this Court in the case of Sagar

Gambhir v. Sukhdev Singh Gambhir and Ors 241 (2017 )DLT 98;

2017 (162) DRJ 575. The relevant para of the Division Bench

judgment in Sagar Gambhir's case (supra) is para 10 which reads as

under:-

"10. In Chander Sen's case (supra), the Supreme Court held that after the promulgation of the Hindu Succession Act, 1956, the traditional view under the Hindu Law no longer remained the legal position. This decision was followed incase (supra) the Supreme Court held that after the promulgation of the Hindu Succession Act, 1956, the traditional view under the Hindu Law no longer remained the legal position. This decision was followed in Yudhishter's case (supra). We agree with the legal position noted by the learned Single Judge which flows out of the two decisions of the Supreme Court, which would be as under:-

"(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-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."

9. There are only vague averments of the father, Sh.

Rajinder Nath Puri, receiving ancestral funds, but no evidence which

can be believed has been led by the appellant/defendant, as to what

funds i.e. what amount was inherited by the father, Sh. Rajinder Nath

Puri, from his own father, prior to 1956, and nor was any evidence,

whatsoever was led much less documentary evidence, that the father,

Sh. Rajinder Nath Puri, inherited any immovable property from his

paternal ancestors prior to 1956. There is no pleading of the

appellant/defendant in his written statement stating any date on which

the said suit property was thrown into the common hotchpotch of the

HUF.

10. At this stage, I may note that the appellant/defendant

relied upon two documents to show the existence of an HUF. The first

being a Letter of the Income Tax Department dated 18.04.1990 and

the second being a Letter of the alleged tenants, Sh. Chunni Lal and

Sh. Satish Kumar, however, admittedly both these documents have not

been proved before the trial court and therefore the trial court has

rightly rejected the same and no reliance has been placed upon such

documents as they were neither exhibited nor proved. In any case, the

Letter of the Income Tax Department dated 18.04.1990 does not in

any manner show that the suit property is shown as an HUF property

in the Income Tax Records.

11. The trial court in my opinion was therefore completely

justified in rejecting the defences of the appellant/defendant that the

suit property was an HUF property or that the appellant/defendant had

spent funds towards purchase of the suit plot. This Court, therefore,

affirms the findings and conclusions given by the trial court that the

appellant/defendant has no right, title and interest in the suit property.

12. The only issue which is now required to be determined is

as to whether or not the appellant/defendant and his other brother, Sh.

Shyam Sunder Puri, who is the second appellant/defendant in the

connected RFA No. 831/2018, were or were not the legal heirs under

the Indian Succession Act, or they were beneficiaries under the

probated Will dated 17.09.2004 executed by the father, Sh. Rajinder

Nath Puri. In this regard, the contention of the appellant/defendant

and his brother, Sh. Shyam Sunder Puri, was that the Will states that

the disputed portions with the appellant/defendant and his brother, Sh.

Shyam Sunder Puri, were in their possession and distributing such

portions will be decided upon once the possession of these portions is

received from the appellant/defendant and his brother, Sh. Shyam

Sunder Puri, and therefore, it is argued that there is no bequest by the

Will dated 17.09.2004 by the father, Sh. Rajinder Nath Puri, qua the

portions in possession of the appellant/defendant and Sh. Shyam

Sunder Puri. It is further argued that once there is no bequest of the

disputed portions, hence, the father, Sh. Rajinder Nath Puri, is deemed

to have died intestate qua the portions in possession of the

appellant/defendant and his brother, Sh. Shyam Sunder Puri. In the

opinion of this Court, this issue has, however, been rightly rejected by

the trial court by specifically referring to the language of the Will

dated 17.09.2004 which specifically disinherited/disavowed the

appellant/defendant and also his brother (other son of Sh. Rajinder

Nath Puri) Sh. Shyam Sunder Puri. Once the appellant/defendant and

Sh. Shyam Sunder Puri were specifically disinherited by the father

vide Will dated 17.09.2004 from his properties, then resultantly the

appellant/defendant and his brother, Sh. Shyam Sunder Puri, will not

have any right, title and interest in the suit property. Therefore,

merely because the father, Sh. Rajinder Nath Puri, left the issue to be

decided by his legal heirs, after possession is received from the

appellant/defendant and his brother, Sh. Shyam Sunder Puri, of the

portions in their illegal possession, the same will not mean that the

appellant/defendant and his brother, Sh. Shyam Sunder Puri, will

become the owners by intestate succession of the portions in their

illegal possession.

13. No other issue has been urged or argued before this Court

except as discussed above.

14. Unfortunately, this litigation is symptomatic of the delays

which are caused in the litigations in this country. The

appellant/defendant and his brother, Sh. Shyam Sunder Puri, first of

all, had gumption, nerve and dishonesty to refuse to vacate the

portions of the property owned by the father, and the father was,

therefore, forced to file two suits against the appellant/defendant and

his brother, Sh. Shyam Sunder Puri, one being the subject suit for

mesne profits and the second suit for a mandatory injunction asking

the appellant/defendant and his brother Sh. Shyam Sunder Puri to

vacate the portions in their illegal possession which is the subject

matter of RFA No. 831/2018. As is the ways of the world in today's

age, on the death of the father, the appellant/defendant and his brother,

thereafter, had no compunction to claim ownership of the property in

their possession on the ground that the father died intestate. This plea

of the appellant/defendant and his brother, Sh. Shyam Sunder Puri,

that their father died intestate was also rejected when the probate was

granted by the probate court of the registered Will of the father dated

17.09.2004, and this position has been sustained right till the Supreme

Court. Therefore, clearly the defences of the appellant/defendant and

his brother, Sh. Shyam Sunder Puri, as also the two appeals filed are

an abuse of the process of law, and have only been filed for taking

undue advantage of the delay in completion of the process of courts.

15. There is no merit in the appeal. Since the appeal is an

abuse of the process of law, the present appeal is dismissed with costs

of Rs. 1,00,000/-, and such costs shall be deposited by the

appellant/defendant with the website www.bharatkeveer.gov.in

within a period of four weeks from today. In case the costs are not

deposited by the appellant/defendant within four weeks, and the

receipt for the same is not filed in this Court within one week

thereafter, the Registry will list the matter before this Court for

proceeding appropriately against the appellant/defendant.

RFA No. 831/2018

CM No. 41147/2018 (Exemption)

16. Exemption allowed subject to just exceptions.

CM stands disposed of.

CM No. 41148/2018 (delay in re-filing) & CM No.41149/2018 (delay)

17. For the reasons stated in the applications, delays in re-

filing and filing are condoned.

CMs stands disposed of.

RFA No. 831/2018 & CM No. 41146/2018 (stay)

18. Adopting the reasoning given while deciding RFA No.

833/2018, this appeal will also stand dismissed noting that this appeal

arises from the impugned Judgment dated 27.04.2018 filed by the

father, Sh. Rajinder Nath Puri (since deceased and now represented by

his legal heirs) seeking mandatory injunction against Sh. Vijay Kumar

Puri, the appellant/defendant in RFA No. 833/2018, and the other

brother, Sh. Shyam Sunder Puri, with respect to the portions in illegal

possession of Sh. Vijay Kumar Puri and Sh. Shyam Sunder Puri in the

Kamla Nagar Property. All the issues which arise in this appeal are

already discussed and decided in terms of the judgment passed in RFA

No. 833/2018. This appeal is also therefore being an abuse of the

process of law is dismissed with costs of Rs. 1,00,000/- to be

deposited with the website www.bharatkeveer.gov.in within four

weeks. In case the costs are not deposited by the appellant/defendant

within four weeks, and receipt for the same is not filed in this Court

within one week thereafter, the Registry will list the matter before

Court proceeding appropriately against the appellant/defendant.

OCTOBER 04, 2018/ib                        VALMIKI J. MEHTA, J