Delhi High Court
Rajeev Chawla vs Deepak Chawla on 20 September, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:20th September, 2022
+ CS(OS) 1214/2014 & I.A. 2273/2018 (O-XIV R-5 of CPC), I.A.
16621/2021 (u/s 151 of CPC)
RAJEEV CHAWLA ..... Plaintiff
Through: Mr. Tanmaya Mehta and Mr. Manan
Batra, Advocates along with
Mr.Surinder Kumar Chawla, father of
the plaintiff
versus
DEEPAK CHAWLA ..... Defendant
Through: Ms. Shoba Ramamoorthy, Mr. Shilp
Vinod, Mr. M.A. Karthik, Ms. Ritika
Rao, Mr. Nawaz Sherif, Advocates
along with defendant in person
CORAM:
HON'BLE MR. JUSTICE AMIT BANSAL
AMIT BANSAL, J. (Oral)
I.A. 3676/2021 (O-XII R-6)
1. The present application has been filed under Order XII Rule 6 read
with Order VI Rule 4 of the Code of Civil Procedure, 1908 (CPC) seeking a
judgment in favour of the plaintiff on the basis of admissions made by the
defendant in his pleadings.
2. Notice in the present application was issued on 10th March, 2021 and
reply has been filed on behalf of the defendant.
3. Brief facts leading to the filing of the present application are set out
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
below:
i) The property bearing No.E-64 Greater Kailash Enclave-I, New
Delhi (suit property) was purchased in 1994 in the joint names of
the plaintiff, the defendant and their father, Shri Surinder Kumar
Chawla.
ii) Subsequently, the father of the parties transferred his 1/3rd share in
favour of the plaintiff vide Gift Deed dated 11th June, 2010.
Thereupon, the plaintiff became entitled to 2/3rd share in the suit
property.
iii) Accordingly, the present suit has been filed seeking relief of
partition of the suit property along with other consequential reliefs.
4. In the written statement filed on behalf of the defendant, the main
defence taken on behalf of the defendant is that:
i. A joint Hindu Undivided Family (HUF) exists, of which the plaintiff,
the defendant and their father, are coparceners.
ii. The suit property was purchased from the funds derived by selling
another ancestral property owned by the grandfather of the parties.
iii. The intention of the family was throughout that the suit property shall
be divided equally between the plaintiff and the defendant.
iv. There are other properties that are part of the HUF and have not been
included in the present suit.
v. The defendant reserves its right to challenge the Gift Deed dated 11th
June, 2010 executed by the father in favour of the plaintiff.
5. The defendant had earlier filed an application being I.A.
No.15084/2017 under Order VI Rule 17 of the CPC for amendment of the
written statement for seeking relief of partition in respect of Shop bearing
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
No.152, Bhagat Singh Market, Connaught Place, New Delhi and Shop
bearing No.F-71, Bhagat Singh Market, Connaught Place, New Delhi. The
said application was dismissed vide order dated 19th March, 2018.
6. Appeal against the said order was dismissed by the Division Bench
vide judgment dated 8th February, 2019. Even the Special Leave Petition
(SLP) against the order of the Division Bench was dismissed by the
Supreme Court vide order dated 26th July, 2019 with the following
observations:
"We are not inclined to interfere in this Special Leave Petition.
The Special Leave Petition is dismissed accordingly.
However, it will be open to the petitioner to persuade the Trial
Court that the written statement on record is comprehensive
enough to consider, granting of relief to the petitioner at the
end of the trial.
Pending applications, if any, stand disposed of."
7. I.A. 15083/2017 was also filed by the defendant for impleadment of
the parents of the parties. Relying upon the judgments of this Court in
Surender Kumar v. Dhani Ram and Ors, 2016 SCC OnLine Del 333, and
Rajeev Tandon & Anr. v. Rashmi Tandon, 2019 174 DRJ 158, a coordinate
bench rejected the application for impleadment vide judgment dated 11 th
February, 2020. The observations of the Court as contained in paragraph 13
of the judgment dated 11th February, 2020 are set out below:
"13. The clear legal position is that a particular property is joint
family property must specifically plead the origin of the HUF,
whether pre 1956 or post, 1956, and give sufficient particulars as
to the creation of the HUF as well as the ownership of the
property by the HUF. The pleadings contained in the written
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
statement in the present case are insufficient to meet this
standard even for the purposes of a prima facie determination.
Further, as mentioned hereinabove, the defendant in the written
statement has specifically reserved his right to initiate action in
respect of the gift deed dated 11.06.2010, and the two properties
being Shop No.F-71 and Shop No. 152. This has in fact been
reiterated in paragraph 6 of the preliminary submissions extracted
above, as well as in paragraphs 5 and 8 of the reply on merits. The
defendant's attempt to expand the scope of the present suit by
impleadment of the parents is inconsistent with this reservation
contained in the written statement, of which amendment has been
specifically disallowed."
8. The aforesaid judgment was challenged by the defendant before the
Division Bench. The appeal was dismissed by the Division Bench vide order
dated 16th November, 2021 with the following observations:
"Learned counsel for the appellant, at the very outset states that
the appellant does not challenge the entirety of the impugned order
and has a limited grievance in respect of observations made by
learned Single Judge in para 13 of the impugned order, wherein,
the learned Single Judge has recorded the legal position as
understood by him and thereafter made observations with regard
to the appellant's pleading in his written statement. She submits
that these observations would hurt the cause of the
appellant/defendant in the trial of the suit and the final disposal
thereof. She also submits that the cost of Rs.30,000/- imposed upon
the appellant may be waived.
....
We have heard the submissions of learned counsels. We dispose of
this appeal by observing that the observations made by the learned
Single Judge in para 13 of the impugned order have been made in
the context of the application under Order I Rule 10 CPC decided
by him and it shall be open to the parties to advance their
submissions on merits of their respective cases at the final hearing
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
of the suit post trial."
9. On the basis of the aforesaid pleadings and proceedings in the suit, the
counsel appearing on behalf of the plaintiff has made the following
submissions:
i. The entire defence of the defendant in the written statement is based
on the suit property being an HUF property. However, no details have
been provided about the creation of the HUF, such as, who founded
the HUF, who are its members/coparceners, who is the Karta, the date
of its creation.
ii. The observations made by the Court in its judgment dated 11 th
February, 2020 as set out above are fully applicable to decide the
present application as well.
iii. The registered Gift Deed dated 11th June, 2010 executed by the father
in favour of the plaintiff has till date not been challenged by the
defendant.
iv. Reliance is placed on the judgment of this Court in Surender Kumar
(supra) and Rajeev Tandon (supra) where in similar cases, the Court
was pleased to pass a decree under Order XII Rule 6 of the CPC.
v. Reliance is also placed on the judgment of the Division Bench in
P.P.A Impex Pvt. Ltd. v. Mangal Sain Mittal, 166 (2010) DLT 84 to
submit that if a defence amounting to moonshine has been presented,
it should be summarily dismissed by not granting leave to defend and
by decreeing the suit forthwith under the Order XII Rule 6 of the
CPC.
10. Counsel for the defendant has made the following submissions:
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
i. The written statement in the present suit was filed on 10th November,
2014, before the legal position with regard to HUF was propounded
by this Court in Sunny (minor) v. Raj Singh, 225 (2015) DLT 211.
ii. The present application has been filed belatedly on behalf of the
plaintiff.
iii. Challenge as to the validity of the aforesaid Gift Deed has been made
in the written statement filed on behalf of the defendant. Therefore,
trial would be required to prove the validity of the Gift Deed.
11. I have heard the counsels for the parties.
12. The issue to be decided in the present suit is whether clear and
categorical admissions have been made on behalf of the defendant in the
written statement, so as to amount to admissions for grant of decree in favor
of the plaintiff. In this regard, reference may be made to paragraph 6 of the
written statement, which is set out below:
"6. That there exists a joint Hindu undivided family. That the
suit property was purchased from the funds derived by selling
ancestral property bearing no. B-54, Kalkaji, New Delhi of the
grandfather of the parties namely Late Sh. TC. Chawla, further
Late Sh. TC. Chawla left over the jewellery, cash etc. all of these
funds came into the HUF. That the intentions of the parties were
through out to be undivided family for that purpose the property
was purchased in the joint name further in order to get the tax
benefits. That the nucleus of the family always existed as the
property was of joint name. The father of the parties was given the
agency of Bombay region but to keep the family intact the father
came back to Delhi and purchased the property bearing no. 152
Bhagat Singh Market, Connaught Place New Delhi out of the
Hindu Undivided family funds to run the family business of
lotteries. That it is also worth to state that the property was
purchased in the name of the plaintiff whereas the agency was in
the name of the defendant and the name of the agency was Deepak
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
agency.
....That through out the intention of the family was that the
present suit property will be given fifty - fifty to both the plaintiff
and defendant.
...Apart from the above facts, it is also pertinent to point out that
the property bearing No. E-64, Greater Kailash-I, New Delhi was
renovated, constructed & free hold out of the efforts & funds
exclusively provided by the Defendant herein and neither the
Plaintiff, nor the father of the parties, Sh. Surinder Kumar Chawla
had made contribution towards renovation construction & free
hold on the suit property. That the plaintiff and the father of the
parties admitted in the alleged gift deed that the present property
is undivided property. Thus the property being undivided from the
undivided family can not be gifted without the consent of the
defendant. The gift deed itself is null and void ab intio and can
not be relied upon. That the defendant reserve its right to initiate
the action against the gift deed and these two properties i.e. F-71
Bhagat Singh Market, Connaught Place New Delhi a 152
Bhagat Singh Market, Connaught Place New Delhi . That the
present suit is also barred by order 2 rule 2 CPC as the relief qua
these properties were not demanded by the plaintiff. That the sale
deed in the name of the mother is hit by the Benami transaction
prohibition act 1988."
13. As is evident from the paragraph extracted above, the entire defence
of the defendant is premised on the existence of an HUF and the suit
property being owned by the said HUF. The issue with regard to the
pleadings required to be made in support of the existence of a HUF is no
longer res integra.
14. The observations of this Court in the judgment in Sunny (minor)
(supra) have been reiterated and reaffirmed in a number of judgments. In
fact, while rejecting the I.A. No.15083/2017 under Order I Rule 10 of the
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
CPC filed on behalf of the defendant, the predecessor Bench of this Court
had placed reliance on paragraph 7 of the judgment in Surender Kumar
(supra), wherein the observations of this Court in Sunny (minor) (supra)
have been reiterated. Paragraph 7 of Surender Kumar (supra) is set out
below:
"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) v. Sh. Raj Singh,
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-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
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
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."
15. The legal proposition that emerges from a reading of the aforesaid
paragraph is that a party setting up an HUF has to plead and give details in
respect of the date when the HUF was created, who were its
members/coparceners, who was the Karta and if the HUF was created after
1956 and when was the property put into the common hotchpotch of the
HUF.
16. It is clear from the reading of the written statement that no such
averments have been made in the written statement filed on behalf of the
defendant. Only vague and unsubstantiated pleas with regard to the suit
property being part of the HUF have been made without any particulars or
documents in support thereof. Admittedly, the suit property was purchased
after 1956, yet no details have been given as to when the property was
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
thrown into the hotchpotch of HUF.
17. Though the counsel for the defendant contends that when the written
statement was filed, the legal position with regard to the pleadings required
for making a case of HUF had not been elucidated. In my view, this cannot
be a ground for the written statement not containing the aforesaid pleadings.
Nothing prevented the defendant from amending the written statement after
the legal position became clear in light of the judgments in Sunny (minor)
and Surender Kumar (supra). In fact, the defendant did seek an amendment
in the written statement so as to bring other properties within the ambit of
the suit. However, the said amendment was declined right up to the Supreme
Court.
18. As regards the contention with regard to delay in filing the present
application, it is a settled position of law that an application under Order XII
Rule 6 of the CPC can be filed at any stage, as the purpose of the same is to
cut short the trial and pass a judgment on those aspects, wherein the parties
are not at issue.
19. A Division Bench of this Court in P.P.A Impex (supra) has observed
that the approach to be taken under Order XII Rule 6 of the CPC is akin to
that to be taken while considering a leave to defend application in an Order
XXXVII suit. If a defence amounting to moonshine has been presented, it
should be summarily dismissed by not granting leave to defend and by
decreeing the suit forthwith.
20. In Rajeev Tandon (supra), a Co-ordinate Bench of this Court has
observed that for the purposes of passing a decree under Order XII Rule 6 of
the CPC, the admissions can be in the pleadings or in the documents filed on
behalf of the parties. The admissions can also be constructive admissions,
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
which can be inferred from the vague and evasive denial in the written
statement.
21. It has been submitted on behalf of the defendant that even if the suit
property is not taken to be an HUF property, the plaintiff would still be
required to prove the Gift Deed dated 11th June, 2010 in favour of the
plaintiff in the trial.
22. At this stage, it may be relevant to refer to the averments made in the
written statement with regard to Gift Deed:
"6. .... The gift deed itself is null and void ab initio and cannot
be relied upon. That the defendant reserves its right to initiate the
action against the gift deed...
....
8. That the present suit is not maintainable and is liable to be
dismissed as the plaintiff has mentioned that he allegedly acquired
one third share in the property from his father by virtue of an
alleged Gift Deed dated 11.06.2010. It is an admitted fact that the
father namely Sh. SurinderKumar Chawla is a senior citizen, who
has every right to cancel the alleged Gift Deed by virtue of Senior
Citizen Act, 2007.
23. A perusal of the aforesaid paragraphs of the written statement would
show that the defendant was conscious of the fact that the aforesaid Gift
Deed, which is a registered Gift Deed executed on 11th June, 2010, had to be
challenged by the defendant by way of a separate suit. Admittedly, no such
suit has been filed on behalf of the defendant till date. If any such suit is
filed at this stage, the same would be clearly barred by limitation.
24. Nevertheless, to satisfy the conscience of the Court, this Court has
examined Shri Surinder Kumar Chawla, the father of the plaintiff and the
defendant, on oath under Order X of the CPC and his statement has been
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
recorded, wherein he has admitted that the Gift Deed dated 11 th June, 2010
has been executed by him in respect of the suit property in favour of the
plaintiff and to the exclusion of the defendant. It has also been admitted by
the father of the plaintiff and the defendant that the said Gift Deed was
executed out of his own free will and volition and the same was duly
registered.
25. In view of the aforesaid discussion, the defendant has failed to make
out a case of the suit property being an HUF property or that the Gift Deed
executed by the father of the plaintiff and the defendant in favour of the
plaintiff, being invalid.
26. The averments made in the written statement with regard to existence
of an HUF and the suit property being owned by the HUF, are vague and
unsubstantiated. No useful purpose would be served by sending the matter
for trial. Therefore, the plaintiff is entitled to a preliminary decree of
partition in terms of Order XII Rule 6 of the CPC.
27. The application is allowed.
CS(OS) 1214/2014
28. Accordingly, a preliminary decree is passed in favour of the plaintiff
and against the defendant declaring the share of the plaintiff and the
defendant as 2/3rd and 1/3rd respectively in the suit property.
29. Counsels for the parties submit that the property cannot be physically
divided by metes and bounds.
30. In view thereof, a final decree of partition is passed directing sale of
the suit property and distribution of the sale proceeds between the parties as
per their shares declared above. It is further ordered that the parties shall
have the option of making inter se bids for purchase of share of each other in
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
respect of the suit property. The party bidding the highest would be entitled
to acquire the share of the other party by making payment of the value of the
share of the other party against execution of the transfer deed.
31. Decree sheet be drawn.
32. All pending applications stand disposed of.
AMIT BANSAL, J.
SEPTEMBER 20, 2022
dk
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
CS(OS) 1214/2014
Statement of Sh. Surinder Kumar Chawla, S/o Late Sh. T.C. Chawla,
aged about 86 years, resident of E-64, Greater Kailash Enclave-I, New
Delhi-110048 on S.A.
Q. How old are you?
A. I am 86 years old.
Q. Where do you reside?
A. I reside in E-64, Greater Kailash Enclave-I, New Delhi
Q. Have you executed any Gift Deed in respect of the said property in
favour of your son Rajeev Chawla, the plaintiff herein?
A. Yes.
Q. Is it correct that you executed this Gift Deed dated 11 th June, 2010 in
favour of one of your sons, Rajeev Chawla, to the exclusion of other
son i.e. defendant?
A. Yes, it is correct.
Q. Does this Gift Deed bears your signatures? (Mr. Surinder Kumar
Chawla is shown the Gift Deed)
A. Yes, it bears my signatures.
Q. Whether the said Gift Deed has been executed by you out of your own
free will and volition?
A. Yes, the said Gift Deed was executed by me without any pressure and
out of my free will.
Q. Did you get the said Gift Deed registered?
A. Yes, I went to the office of the Sub-Registrar at Mehrauli to get the
said Gift Deed registered in the year 2010.
RO&AC
AMIT BANSAL, J.
20.09.2022
Signature Not Verified
Digitally Signed By:AMIT
BANSAL
Signing Date:26.09.2022 12:37:38
