Anil Jain vs Paritosh Jain & Anr.
2022 Latest Caselaw 2042 Del

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                                 Reserved on: 25th May, 2022
                                                           Decided on: 07th July,2022

                          +                   CS(OS) 243/2021

                                 ANIL JAIN                                                    ..... Plaintiff

                                                     Through:     Ms. Anjali Sharma, Mr. Deepa Bashta
                                                                  & Mr. S.K. Sagar, Advocates.
                                                     versus

                                 PARITOSH JAIN & ANR.                                     ..... Defendants

                                                     Through:     Mr. Rajeev Mishra, Mr. Anirudh
                                                                  Bakhru, Mr. Vidit Garg & Mr. R.N.
                                                                  Arora, Advocates.
                          CORAM:
                          HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

                                              J U D G E M E N T

I.A. 14007/2021 (Under Order 1 Rule 10 read with Section 151 of CPC for impleading Smt. Anita Jain being the legal heir and a coparcener of late Justice J.D. Jain and his HUF as proposed defendant No. 3 in the present suit)

1. This application has been filed under Order 1 Rule 10 read with Section 151 of the CPC, 1908 on behalf of the applicant/proposed defendant No. 3 seeking impleadment of Ms. Anita Jain, legal heir/ daughter of late Justice J.D. Jain, (Retd.) claiming to be a coparcener of late Justice J.D. Jain, HUF as proposed defendant No. 3 in the present suit. I.A. 13998/2021 (Under Order 1 Rule 10 read with Section 151 of CPC for impleading Sh. Rajneesh Chopra & Sh. Divyang Chopra as proposed defendant Nos. 4 & 5 of late Justice Aruna Suresh, Retd. in the present suit)

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00

1. This application has been filed under Order 1 Rule 10 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC, 1908) on behalf of the applicants Sh. Rajneeh Chopra and Sh. Divyang Chopra, both sons of the legal heir of late Justice Aruna Suresh, (Retd.), being legal heir/ daughter of late Justice J.D. Jain, (Retd.) seeking impleadment as proposed defendant Nos. 4 and 5 in the present suit. I.A. 13998/2021 & I.A. 14007/2021

1. By virtue of the two applications, daughter-Anita Jain and LRs Rajneesh Chopra and Divyang Chopra, sons of deceased daughter-late Justice Aruna Suresh, daughter of late Justice J.D. Jain have sought impleadment as parties to the suit on the ground that late Justice J.D. Jain had constituted J.D. Jain, HUF of which suit property was a part. In the light of Section 6 of the Hindu Succession Act, 1956 as amended in 2005, recent judgement in Vineeta Sharma vs. Rakesh Sharma (2020) 9 SCC 1 (decided on 11th August, 2020), the properties are recognized as members of HUF. Even Justice J.D. Jain had expired in 2009f. Smt. Anita Jain and late Justice Aruna Suresh were, therefore, the members of HUF and are necessary and proper party in the present suit for partition in respect of HUF property.

2. Submissions heard. My observations are as under:

3. In order to understand the claim of the applicants, it would be pertinent to refer to the factual matrix as has emerged from the pleadings and submissions of the parties. Plaintiff-Anil Jain has preferred the present suit for partition of the land and residential bungalow at 43/1-D, Rajpur Road, Civil Lines, Delhi (hereinafter referred to as 'suit property') for

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00 determination of the shares of the parties and also for division of the property by metes and bounds in equal shares.

4. Facts in brief, as disclosed in detail in the Written Statement of defendant Nos. 1 and 2 and not denied by the plaintiff, are that Sh. Jagan Nath Jain (Paternal Grandfather of the parties to the suit) was the Karta in the Joint Hindu Family and his three sons, namely, Justice J.D. Jain (Retd.), Sh. S.P. Jain and Sh. A.K. Jain were coparceners along with two other persons, namely, Dr. K.C. Jain and Mr. S.C. Jain.

5. The property in question i.e., Plot No. 43/1, Rajpur Road, Civil Lines, Delhi, admeasuring 2554.08 square yards was purchased by the HUF vide registered Sale Deed dated 17th March, 1969.

6. As per the mutual agreement arrived at between the parties, Justice. J.D. Jain and his brothers, Sh. S.P. Jain and Sh. A.K. Jain became the owners of one half share of the property, while Dr. K.C. Jain and his brother, namely, Sh. S.C. Jain were owners of other half. By way of an oral partition, an area of 1150.53 square yards fell to the shares of late Justice J.D. Jain and his brothers, while the other half share admeasuring 1140.55 square yards fell to the share of Dr. K.C. Jain and Sh. S.C. Jain and an area of 248 square yards was left as a common passage, as per the mutual understanding. Subsequently, due to some misunderstanding between the parties, late Justice J.D. Jain and his brothers filed a Suit bearing No. O.S. No. 354/1971 before this Court and a consent decree of partition was passed vide Order dated 14th December, 1971. A formal partition was thereafter effected and the property was duly mutated in the revenue records of Municipal Corporation of Delhi. The sub-divided portions of the plot were accordingly allotted different property numbers i.e., 43/1A, which fell to the share of Dr.

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00 K.C. Jain and Sh. S.C. Jain, while 43/1B was allotted to the share of late Justice J.D. Jain, Mr. S.P. Jain and Mr. A.K. Jain, though the identity of the entire plot continued to be Plot No. 43/1, Rajpur Road, Civil Lines, Delhi, since, the bye-laws do not permit sub-division of the plot.

7. In June, 1972, an oral partition of the HUF property took place between Sh. Jagan Nath Jain (Karta) and his three coparceners, namely, late Justice J.D. Jain, Sh. S.P. Jain and Sh. A.K. Jain and the half portion of the property owned by the HUF fell to the share of three brothers in equal share. A partial partition was done between the families and was duly acted upon and eventually, was reduced to writing on total partition and a Memorandum was executed amongst the coparceners and the Karta on 05th March, 1973.

8. On partition of the properties on 05th March, 1973 of the HUF, late Justice J.D. Jain formed his HUF on 05th March, 1973 and the properties received by him by way of partition, were put in common pool i.e., Sh. J.D. Jain (HUF), of which late Justice J.D. Jain and his three sons were the members. They ceased to be the coparceners of Sh. Jagan Nath Jain after the partition.

9. In the year, 1980, Sh. A.K. Jain filed a suit for partition bearing Case No. 53/1980 before the Additional District and Sessions Judge Delhi on the strength of an oral partition that had taken place between the three brothers, namely, Sh. J.D. Jain, Sh. S.P. Jain and Sh. A.K. Jain in regard to Plot No. 43/1 B Rajpur Road, Civil Lines, Delhi by metes and bounds in the year 1975. The suit was decreed on mutual consent vide the Judgement dated 19th August, 1980 and the shares of each of the parties were demarcated along with common appurtenant passage etc. The sub-divided Plot No. 43/1 B, Rajpur Road, Civil Lines, Delhi was duly mutated and allotted different

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00 property numbers vide Municipal Corporation of Delhi Letter dated 21st February, 1983. 43/1 D was a number given to the plot which came to the share of late Justice J.D. Jain.

10. Daughters of late J.D. Jain, namely, Smt. Aruna and Smt. Anita Jain got married on 25th June, 1973 and 06th July, 1976 respectively. Both the daughters were not the members of J.D. Jain, HUF as per the then prevailing law.

11. In 1988-89, J.D. Jain, HUF was dissolved and an oral settlement arrived at between all the members and the properties belonging to late Justice J.D. Jain were partitioned amongst four coparceners i.e., late Justice J.D. Jain and his three sons. The vacant plot of 43/1 D came to the share of the three sons, while late Justice J.D. Jain was given immoveable properties at Zira, Punjab in lieu of share in the Civil Lines property. The oral settlement was duly documented on 24th March, 1990 in Schedules of partition, which were signed by all the four coparceners, including Karta on 24th March, 1990, authenticating the same and was witnessed by Sh. Adish Kumar Jain, Advocate. Later in the month of November, 1990, all three brothers got their affidavits prepared regarding the said partition and accepting it in toto, duly attested to the knowledge of late Justice Aruna Suresh,(who was then the ADJ) and with her cooperation, the necessary documentation was executed.

12. Due intimation was given to the Wealth Tax Officer of Range 17 (6), New Delhi on 14th January, 1991 along with submission of Wealth Tax Returns and relevant schedules, affidavits etc. The partition was thus effected by late Justice J.D. Jain as per the law prevailing at that time, to the satisfaction of all the three coparceners and the Karta. Late Justice Aruna

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00 Suresh and Smt. Anita Jain were already married at the time of partition and were not the members of HUF.

13. The plaintiff in his plaint, while stating about the partition of the property in question by late Justice J.D. Jain and also dissolution of HUF, has asserted that by the arrangement arrived at in the year 1990, the plot of land bearing Municipal No. 43/1-D, Rajpur Road, Civil Lines, Delhi jointly and in an undivided condition, came to the share of the plaintiff and the two defendants, thus making them owners of 1/3rd share in the plot and the building and other structures construed thereon. Somewhere in the year 1998, the residential Bungalow, which stands on the plot today, was constructed by the parties. It was asserted that the suit property is in joint possession of plaintiff and the two defendants. The construction has been done on approximately 35 to 40% of the plot area, while the rest of the land is still an open area. The construction consists of a basement, ground floor and first floor. The plaintiff thus, sought the division of the suit property into three shares by metes and bounds.

14. In response to this aspect of whether the separate portions of plaintiff and the defendants are yet to be identified, the defendants have asserted in their respective Written Statement that in terms of the partition arrangement, each son of late Justice. J.D. Jain was to construct his independent floor from his own funds, which was to become his independently owned floor with one dwelling unit each. The defendant No. 1 accordingly constructed his portion from his own funds, being the basement and ground floor in the year 2000-01. The defendant No. 2 constructed one dwelling unit from his own funds, i.e. the first floor in the year 2000 and completed it in the year 2015. The plaintiff, despite being in

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00 possession and ownership of his portion i.e., the terrace floor with the right to construct his second floor, has not constructed it till date. Each floor is independent, having separate entrance and access through common stairs. There is also a provision for installing a common lift.

15. It was claimed that the Family Settlement arrived at between the three brothers was finalized by their father, late Justice J.D. Jain and was acted upon by the parties with ownership given in distinctive portions and each was put in their exclusive possession in terms of the settlement. The plaintiff took possession of the terrace floor through late Justice J.D. Jain in first week of January, 2001. The suit property is, therefore, a residential house with independent floors and not one bungalow as is claimed by the plaintiff.

16. It is further asserted that the plaintiff never resided in the property in question because he never built his dwelling unit i.e., second floor with building right. The plaintiff cannot now claim his share in the portions owned and in exclusive possession of the defendant Nos. 1 and 2 by claiming the property to be a bungalow. The share in the land underneath is already determined to be in the share of 1/3rd each.

17. From the admitted facts, what emerges is that late Justice J.D. Jain had inherited a plot admeasuring 357 square yards by way of partition of the Joint Hindu Family property and he had put the same in his HUF (J.D. Jain, HUF) comprising of himself as Karta and his three sons, namely, Sh. Anil Jain, Sh. Paritosh Jain and Sh. Pradeep Jain. Further, admittedly the HUF was dissolved and the HUF property was divided/partitioned in the year 1990 amongst the Karta and the Coparceners who are the parties to the present suit, and their shares were determined to be 1/3rd each. There is no

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00 dispute in regard to the partition amongst the three brothers or about their respective share being 1/3rd in the suit property. The only dispute which has been raised is whether the partition by metes and bounds has already been done as claimed by the defendants or the property in question would be divided equally in 1/3rd shares as has been claimed by the plaintiff. The shares of the three brothers in the property in question stand determined and the only issue is in regard to the physical identification of the three shares.

18. From the pleadings, it is shown that the partition, which took place in the year 1990, stood implemented and the property came to the share of three brothers, which was to the knowledge of the two sisters, namely, late Justice Aruna Suresh and Smt. Anita Jain. The legal representatives of late Justice Aruna Suresh and Smt. Anita Jain have sought to be impleaded as defendants on the premise that HUF of late Justice J.D. Jain has continued till his demise on 22nd February, 2009 and, therefore, in the light of the Amendment in Section 6 of the Hindu Succession Act, 1956, on 9th September, 2005 the two daughters have become the coparceners and entitled to a share in HUF property. Reliance has also been placed on the recent judgement of the Hon'ble Supreme Court in Vineeta Sharma vs. Rakesh Sharma (supra).

19. According to the applicants, no partition has been effected while from the narration in the pleadings as detailed above, it is admitted case of the plaintiff and the defendants that the suit property belonged to J.D.Jain, HUF which was dissolved and oral partition took place amongst the Karta and the coparceners. The properties of HUF were divided as per the settlement recorded in the schedules of properties and also in the returns before the Wealth Tax Officer in the year 1990. Late Justice J.D. Jain , on partition got

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00 the property in Zira while the suit property came to the three brothers who are party to the present suit. It may also be noted that duly documented partition which happened in the year 1990. In the circumstances, it cannot be said that late Justice J.D. Jain continued to have any interest suit property as it had come to the share of the three brothers thereby making the three brothers owners of 1/3rd share each in the suit property and they were also put in possession. Once Late Justice J.D. Jain ceased to be the owner of the suit property on partition, which took place in 1990, there remains no corpus in the name of Late J.D. Jain in which the two sisters/applicants can claim any share. The fact of partition having been effected in 1990 was never challenged by the sisters even after the Amendment to Section 6 of the Hindu Succession Act, 1956 made effective from 9th September, 2005 during the life time or after the demise of Late Justice J.D. Jain on 22nd February, 2009. The partition had not been challenged either by Smt. Anita Jain or by late Justice Aruna Suresh during her lifetime, till the filing of the present application by her legal heirs. In fact, the applications are absolutely silent in regard to the partition.

20. There being no challenge ever to the partition till date, the applicants have no ground to stand on. The applicants are seeking right in the property in question through their father-late Justice J.D. Jain but once the HUF itself got dissolved and late Justice J.D. Jain himself ceased to have any ownership in the property in question way back in 1990 by virtue of the partition which was duly acted upon by the parties, the applicants have no locus to claim any right, title or interest in the property in question.

21. It may also be observed that though the relief in the suit may not be couched in appropriate words but from the pleadings it is evident that the

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00 parties are not seeking partition for determination of their respective shares by way of present suit, but are only seeking demarcation of their respective shares of 1/3rd each by metes and bounds, since till date, according to the plaintiff, the property has not been divided and his possession continues to be joint with the defendants.

22. The entire basis of the present application is the recent judgement of the Hon'ble Supreme Court in the case of Vineeta Sharma (supra). However, it has been clarified in the said judgement itself that the rights of the daughters as coparceners would not be revived in respect of the properties which have already been partitioned. It reads as under:

"137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

23. In the present case, since the partition has already been effected way back in 1990 and was duly acted upon as documented in Wealth Tax Returns and affidavits, the applicants cannot agitate a share as fully clarified by the Hon'ble Supreme Court in Vineeta Sharma (supra).

24. The applicants have not been able to show any locus to be impleaded as parties in the present suit. The applications are accordingly dismissed in the above terms.

(NEENA BANSAL KRISHNA) JUDGE

JUNE 07, 2022 S.Sharma

Digitally Signed By:NIRMLA TIWARI Signing Date:07.07.2022 17:12:00