Shri Sandeep Singh vs Shri Pratap Singh & Ors
2019 Latest Caselaw 1726 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Date of Pronouncement: 28.03.2019
+      CS(OS) 580/2017
       SHRI SANDEEP SINGH                               ..... Plaintiff
                     Through           Mr.P.S.Bindra, Adv.

                          Versus

       SHRI PRATAP SINGH & ORS               ..... Defendants
                     Through  Mr.A.K.Sen and Mr.Shyam Dutt,
                              Advs. for D-1 and D-2 alongwith
                              Sh.Pratap Singh in person.
                              Mr.S.K.Rout and Mr.Aman Mehrotra,
                              Advs. for D-3.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.

IA Nos.12407/2017 & 15204/2017

1. IA Nos.12407/2017 is filed seeking ex-parte ad-interim injunction. This court on 27.10.2017 had directed the parties to maintain status quo with regard to the possession and title of the four suit properties mentioned in para 3 of the plaint. IA No.15204/2017 is filed under Order 39 Rule 4 CPC by defendant Nos.1 and 2 for vacation of the ex-parte injunction order passed on 27.10.2017.

2. The plaintiff has filed the present suit for declaration , partition and permanent prohibitory injunction regarding the following agricultural properties:-

(i) Land admeasuring 12 Bigha and 1 Biswa falling in Khasra No. 22/5 Min (2-15), 31/1 Min (91/2), 32/4 (2-15,) 32/5 (4-6), 32-6/1 (1-15-1/2), situated in village Mehrauli, Tehsil Mehrauli, New Delhi.

(ii) Land admeasuring 23 Bigha and 19 Biswa (14 Bigha and 7 Biswa in the name of the defendant No.1 and 9 Bigha and 12 Biswa in the name of his wife, defendant No.2) falling in Mustatil No.36, Khasra No.1(4-15), 2 (4-

16), 3(4-11), 26 (0-5), Mustatil No. 29, Khasra No. 24 (4-16), & 25 (4-16) situated in Village Rawla Khanpur, Kapashera, Delhi.

(iii) Land admeasuring 28 Bigha and 19 Biswa faillign in Mustatil No.5, Khasra Nos. 19 South (4-16, 20 (4016), 21/1 (2-0, 22 (4-16), 23 (2-05), 12 (1-02), 11 (1-16), 18 (1-14), 21/2 (2-09) Mustatil No.6, Khasra No. 16/1 (2-

0), 15/2 (0-16) and 25/3 (0-09), in Village Issapur, New Delhi.

(iv) Land measuring 6 Bigha and 10 Biswa Falling in Mustatil No. 29, Khasra No. 29/2, situated in Village Pindwala Khurd, New Delhi.

3. When IA No. 12407/2017 filed under Order 39 Rules 1 and 2 CPC came up for hearing before this court on 27.10.2017, this court noted the submissions of the plaintiff that the suit properties were inherited by the father of the plaintiff, namely, defendant No.1 by virtue of sale deeds dated 10.11.1995, 05.12.1995 and 08.12.1995 and that as the properties devolved upon defendant No.1 by way of inheritance, the plaintiff cannot be ousted from the share of the plaintiff. Based on the above submissions, this court had, as noted above, passed directions to maintain status quo with regard to possession and title of the suit properties mentioned in para 3 of the plaint.

4. The plaintiff is the son of defendant No. 1, i.e. the father and defendant No. 2, i.e. the mother. Defendant No. 3 is his brother and defendants No. 4 to 6 are his sisters.

5. The plaint tries to create a web to entangle all the properties of the parents in the present litigation. The narration of the title to the properties starts from the plaintiff's forefather Sh.Ramji Lal who said to have owned 100 (perhaps acres) of land. After the death of Sh.Ramji Lal, great grandfather of the plaintiff, Sh. Lala Ram became the recorded owner of the said entire estate. Sh.Lala Ram expired somewhere in 1965. Thereafter, the grandfather of the plaintiff Sh.Prabhu became the recorded owner of the said properties. In 1978, a part of the properties were acquired by Union of India. However, land measuring 62 Bighas and 13 Biswas situated in the revenue state of Village Mehrauli, Tehsil Mehrauli, Delhi remained with the plaintiff's grandfather Sh.Prabhu.

6. Sh.Prabhu, grandfather of the plaintiff allegedly sold 4 Bighas 17 Biswas land out of the balance agricultural land left to different parties including M/s Agarwal & Agarwal Pvt.Ltd. and M/s Orbit Industries Ltd. It is pleaded that remaining agricultural land situated in Village Mehrauli was distributed by the grandfather Sh.Prabhu to his four sons, namely, Sh.Ishwar Singh, Sh.Pratap Singh, Sh.Mahender Singh and Sh.Gajender Singh. The division was effected by way of sale deeds in favour of his sons. To Sh.Pratap Singh and his wife, i.e. defendant Nos.1 and 2, the following land was allegedly sold:

"II. Land admeasuring 23 Bigha and 19 Biswa (14 Bigha and 7 Biswa in the name of the defendant No.1 and 9 Bigha and 12 Biswa in the name of his wife, defendant No.2) falling in Mustatil No.36, Khasra No.1(4-15), 2 (4-16), 3(4-11), 26 (0-5), Mustatil No. 29, Khasra No. 24 (4-16), & 25 (4-16) situated in Village Rawla Khanpur, Kapashera, Delhi."

7. 23 Bighas 19 Biswas land was transferred to defendant No.1. It is stated that no consideration was paid by the plaintiff's father defendant No.1 to Sh.Prabhu his father (grandfather of the plaintiff). Only cash transactions were shown in the sale deeds just to get the sale deeds registered for the purpose of family division. It is stated that though the aforesaid properties were purchased in the name of defendant No.l, but he holds the same as a Trustee in a fiduciary capacity for the benefit of his children. It is stated that the plaintiff's father was suffering from financial crisis at the time of registration of the sale deeds inasmuch as the plaintiff's father was not able to even pay the School Fee for the plaintiff and his sisters. The plaintiff and his sisters could not go to School due to non-payment of school fee. Plaintiff's father did not have the means to pay the consideration for purchase of the land. It is pleaded that to avoid disputes in future, partition was effected by way of sale deeds in favour of the sons, grandsons in such a manner that each branch through his sons got approximately 4 ½ acres. It is pleaded that it is an admitted fact that the sale deed dated 10.11.1995 were executed by the plaintiff's grandfather in favour of the plaintiff's father but no actual consideration was paid. The aforesaid sale deeds were executed on 09/10.11.1995. It is also stated that some of the lands were sold to outsiders for the purpose of arranging stamp duty and registration charges towards registration of the sale deeds.

8. Another lot of land is claimed stating that the grandfather Sh.Prabhu was married to Smt. Etwari Devi. In the name of the grandmother Sh.Prabhu, grandfather purchased land measuring 6 Bighas and 14 Biswas in Village Mehrauli, Tehsil Mehrauli, New Delhi.

9. Another lot of land is claimed stating that Sh.Prabhu and Smt.Etwari Devi (grandfather and grandmother of the plaintiff) had also purchased 81 Bighas 14 Biswas land alongwith his sons, daughter-in-laws and one Sh.Devinder. Though Khasra numbers and the areas of land purchased in this manner are stated in plaint but the plaint fails to state as to which Village this land was purchased.

10. It is further pleaded that out of 62 Bighas 13 Biswas as survived in Village Mehrali, New Delhi, Sh.Prabhu sold 5 Bighas 14 Biswas by a duly registered sale deed. He also transferred 6 Bighas 2 Biswas to one Sh.Malik Ram Solanki through duly registered sale deed dated 09/10.11.1995.

11. The grandmother of the plaintiff Smt.Etwari Devi sold her entire property during her life time. Thereafter, Sh.Prabhu partitioned his remaining estate.

12. It is further stated that out of the land falling to the share of the plaintiff's father Sh.Pratap Singh/defendant No.1 he sold approximately 2 acres and from the sale proceeds and purchased land in his name and in the name of his wife/defendant No.2 measuring 23 Bighas 19 Biswas in Village Relwa Khanpur, New Delhi and land measuring 28 Bighas 19 Biswas in Village Issapur, New Delhi and land measuring 6 Bighas 10 Biswas in Village Pindwala Khurd, New Delhi.

13. It is reiterated that the land falling to the share of the plaintiff's father/defendant No.1 is by way of succession from his father and as far as the plaintiff is concerned ancestral property. It is stated that the said land was partitioned by way of sale deeds. The said land was and continues to be ancestral property. From the sale proceeds of the said land, defendant No.1 purchased land in his name and in the name of his wife/defendant No.2 in

Village Pindwala Khurd and other areas which are also ancestral properties. The properties though in the names of defendant Nos.1 and 2 were held in a fiduciary capacity for benefit of their children. Hence, it is claimed that every conceivable property owned by the parents of the plaintiff are ancestral property. Hence, the present suit.

14. In the written statement, defendant Nos.1 and 2 have denied the partition of land by Sh.Prabhu by way of sale deeds. The pleas of the plaintiff have been completely denied. It is denied that the plaintiff's father/defendant No.1 was suffering from financial crisis as alleged. So far as payment of school fee is concerned, the same was paid by defendant No.1 but the plaintiff discontinued his studies. Hence there was no occasion for non-payment of school fee. It is also stated that the eldest daughter studied from IGNOU, the second daughter did her studies through correspondence course and the youngest completed her LLB. The plea of lack of fund is denied. It has also been denied that the property in the name of defendant No.2 in Village Rewla Khanpur and Village Pindwala Khurd was purchased from the sale proceeds of the land at Village Mehrauli. The alleged sale of 2 acres of land in Village Mehrauli was from January, 1997 to May, 1997. On the other hand, the property in Village Rewla Khanpur and Village Pindwala Khurd was purchased on 15.12.1995 and 17.11.1995, i.e. much before the sale.

15. I have heard learned counsel for the parties.

16. The learned counsel for the plaintiff has reiterated his plea that the properties in question which are subject matter of the suit are all ancestral properties in which the plaintiff also has a share. It has been reiterated that the transactions shown as sale deeds are sham transactions only to effect the

partition of ancestral land. Learned counsel has strongly relied upon the judgment of the Supreme Court in Shyam Narayan Prasad vs. Krishna Prasad & Ors., (2018) 7 SCC 646 to plead that where a father acquires a property on partition, the same is a coparcenary property in so far as the sons and grandsons are concerned. Such property would retain the character of coparcenary property and the sons and grandsons would have a right to the said property.

17. Defendants No. 1 and 2 have strongly objected to the present suit and have pleaded that the injunction order be vacated. It has been pleaded by the learned counsel appearing for defendants No. 1 and 2 as follows:-

(i) He submits that as far as the property which is situated in the revenue estate of Issapur is concerned, the present suit seeking declaration of partition is barred by Schedule 1 of Section 185 of the Delhi Land Reforms Act.

(ii) He further submits that as far as the Mehrauli land is concerned which is said to have been sold by defendant No.1, sales have taken place in 1997 whereas the lands which are allegedly as per the plaintiff bought from the proceeds of the said sale were bought in 1995. It is pleaded that the lands situated at Village Rewla Khanpur, Kapashera, at Village Issapur and at Village Pindwala Khurd allegedly bought from the proceeds of the sale of the Mehrauli land were bought much before the sale of the Mehrauli land. Hence, the said lands cannot be termed to be ancestral land in any manner whatsoever. They are self acquired lands of defendants No.1 and 2 to which the plaintiff has no right whatsoever.

(iii) It is further stated that in 2009, the plaintiff also sold land measuring 1 acre which was transferred to him by the grandfather, namely, Sh.Prabhu.

Hence, it is pleaded that the plaintiff cannot claim that the sale deeds that were affected was a mechanism for partition of the lands as has been claimed.

(iv) It has further been pleaded that the inheritance in this case took place on the death of Sh. Lala Ram in 1965. It is further pleaded that the transfers of the lands took place in this case through sale deeds registered by Sh.Prabhu in favour of defendant No.1. Sale deeds were registered in 1995 whereas Sh. Prabhu died in the year 2000. The transfer did not come by way of inheritance. It is further stated that the properties in the hand of defendant No. 1 cannot be said to be ancestral properties. These properties were bought by defendant No.1.

(v) Reliance is placed on the judgment of the Supreme Court in Yudhishter vs. Ashok Kumar, AIR 1987 SC 558 to claim that in view of Section 8 of the Hindu Succession Act, the properties inherited by the sons would not partake the character of an undivided family.

18. Defendant No. 3 who is the brother of the plaintiff has supported the contentions of the plaintiff.

19. There appears to be some uncertainty on the part of the plaintiff regarding the inheritance of HUF property. The Supreme Court in Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen & Ors., (1986) 3 SCC 567 had clarified the same as follows:-

"15. It is clear that under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the coparcenary. His right accrues to him not on the death of the father 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. But the question is: is the position affected by Section 8 of the Hindu Succession Act, 1956 and if so, how? The basic argument is that Section 8 indicates the heirs in respect of certain property and Class I of the heirs includes the son but not the grandson. It includes, however, the son of the predeceased son. It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually. Under Section 8 of the Hindu Succession Act, 1956 the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family. On the other hand, the Gujarat High Court has taken the contrary view.

......

22. In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and vis-à-vis son and

female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc."

20. The legal position that follows from the above is that after The Hindu Succession Act, 1956, on the death of a father intestate, the property is inherited by Class 1 legal heirs. Class 1 legal heir inherits the property in their individual capacity and not in the capacity of a joint Hindu family or as a Karta of HUF property. It is only in cases where HUF was in existence prior to the enactment of the Hindu Succession Act, 1956 which HUF has continued in operation that the Mitakshra Law continues to be applicable.

21. The averments made in the plaint must plead existence of an HUF and give relevant material facts. In this context reference may be had to the judgment of a Coordinate Bench of this Court in Sagar Gambhir Vs. Sukhdev Singh Gambhir 231 (2016) DLT 247. In the said case the coordinate bench while relying upon another judgment dated 05.05.2016 being CS(OS) 683/2007 titled Mrs. Saroj Salkan Vs. Mrs. Huma Singh & Anothers quoted from the said judgment as follows:

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:-

.......

7(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 i.e. 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. ....

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.

....

8. I have already reproduced above paras 2 and 3 of the plaint. As per Order VI Rule 4 of the Code of Civil Procedure, 1908 (CPC) and the ratios of the judgments in the cases of Surender Kumar (supra), Sunny (Minor) & Anr. (supra) and Mrs. Saroj Salkan (supra), it was necessary for the plaintiff to state as to how HUF exists specifically either because of the pre 1956 or the post 1956 position. If HUF and its properties are stated to exist because of the pre 1956 position, then, what are the specific properties with their details which were inherited by defendant no.1 had to be mentioned and only on inheritance by the defendant no.1 of such ancestral properties prior to 1956 would defendant no.1 have HUF properties and its funds in his hands. This aspect is conspicuously silent in the plaint. I may note that it is not the case of the plaintiff in the plaint that HUF and its properties were created post 1956 by the defendant no.1 by throwing the properties into a common hotchpotch. Also, at this

stage, it is relevant to refer to the observations made in the judgment in the case of Surender Kumar (supra) wherein reference is made to passing of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) and observed that once a property is found to be in the ownership of a particular person by title deeds (and that particular person being the defendant no.1 in the present case as regards the Rajinder Nagar property and the Faridabad property), it is hence the defendant no.1 who would be the owner of such properties and a suit for claiming rights in such properties would be barred by Section 4(1) of the Benami Act. Exceptions to Section 4(1) of the Benami Act are stated under Section 4(3) of the Benami Act and which are firstly of existence of an HUF or secondly of the property being purchased as a trustee/in fiduciary relationship. Since the provision of Section 4(3) of the Benami Act is in the nature of exception to the provision of Section 4(1), this aspect read with Order VI Rule 4 CPC which requires all necessary particulars to be mentioned in the plaint, plaintiff had to set up a clear cut case by pleading in the plaint as to how HUF and its properties have come into existence and as to how the suit properties are HUF properties once the title deeds of the properties are admittedly in the name of the defendant no.1."

22. The above judgment of the Single Bench of this court was upheld by the Division Bench of this court in an appeal titled as Sagar Gambhir vs. Sukhdev Singh Gambhir, 2017 (162) DRJ 575. The Division Bench noted as follows:-

"13. In the decision reported as 2011 (6) SCALE 677 Ramrameshwari Devi vs.Nirmala Devi in para 52(a) the Supreme Court highlighted that pleadings are foundation of the claim by a party and it is the bounden duty and obligation of every trial Judge to carefully scrutinize the pleadings and the documents on which the pleadings are predicated. In the decision reported as AIR 1999 SC 1464 D.M.Deshpande vs. Janardhan Kashinath Kadam, the Supreme Court highlighted the relevance of pleading material facts. In the decision reported as AIR 1982 Bom. 491

Nilesh Construction Co. vs. Gangu Bai, with reference to a plea of tenancy, the Bombay High Court highlighted that pleadings must disclose the details with reference to the day when the tenancy was created and the exact nature thereof. In the decision reported as AIR 2006 SC 1828 Mayar (HK) Ltd. & Ors. vs. Owners & Parties Vessel MV Fortune Express, the Supreme Court highlighted the requirement to read pleadings meaningfully in view of the relied upon documents and see whether the same are not illusory or vexatious."

23. A perusal of the plaint here shows that there is no explanation as to how the HUF came into being. Narration in the plaint presumes that the property in question is HUF property. It is only in para 6 of the plaint that a vague plea is made that the properties in question were transferred by Sh.Prabhu grandfather of the plaintiff in favour of his son defendant No.1 by way of sale deed, was not a sale transaction but was a partition of the property and that defendant No.1 holds the said property as a trustee in a fiduciary capacity for the benefit of his children. After a further long narration of facts, finally in para 18 of the plaint an averment is made that the land at Village Mehrauli was and continued to be ancestral land. It is further stated that since out of the sale proceeds of the said land, defendant No.1 purchased land in the name of his wife in Village Pindwala Khurd that property was also ancestral property. The plaint hence presumes that the properties in the name of defendants No.1 and 2 are HUF properties. When was the HUF formed is not stated. In the revenue and other records is the property shown as HUF is not stated. The existence of HUF is just presumed.

24. Further as noted above, the land at Village Mehrauli has been transferred in favour of defendant by means of registered sale deeds duly

showing consideration. Lands were transferred by sale deeds in 1995. Now in 2017 the plaintiff has woken up to claim that these were not a sale but a partition of property. The plea is prima facie misplaced and misconceived as it is obvious from the sale deed that they have been executed for valuable consideration. Prima facie there is no reason to believe otherwise. As the properties have been bought by defendants No.1 and 2 via sale deeds for valuation consideration they cannot prima facie said to be HUF properties.

25. Apart from the property at Mehrauli, the plaintiff's mother defendant No.2 bought the properties at Village Issapur, Village Rewla Khanpur and Pindwala Khurd. It is a matter of fact that 2 acres of land in question at Village Mehrauli was sold. As noted in the written statement the 2 acres was sold in 1997. However, the property in Village Rewla Khanpur and Village Pindwala Khurd was purchased in 1995 even prior to the sale of the Mehrauli property. In the light of these facts, the contentions of the plaintiff that the said properties at Village Pindwala Khurd and Rewla Khanpur bought by defendant No.2 are ancestral property prima facie is misplaced and misconceived.

26. I may come to the judgment of the Supreme Court relied upon by the learned counsel for the plaintiff in the case of Shyam Narayan Prasad vs. Krishna Prasad & Ors., (supra). A perusal of the said judgment would show that in that case the Supreme Court was dealing with properties where the trial court had recorded a finding that the properties were ancestral properties. The said property was partitioned on 31.07.1987. It was in those facts that the Supreme Court had noted as follows:-

"16. Therefore, the properties acquired by Defendant 2 in the partition dated 31-7-1987 although are separate properties qua

other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31-7-1987. The property which had fallen to the share of Defendant 2 retained the character of a coparcenary property and the plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the plaintiffs was not maintainable."

The said judgment is not applicable to the facts of this case.

27. The plaintiff has failed to make out a prima facie case. Accordingly, I dismiss this application being IA No.12407/2017 and allow the application being IA 15204/2017. The interim order of this court dated 27.10.2017 stands vacated.

(JAYANT NATH) JUDGE MARCH 28, 2019/rb