Delhi High Court
Anil Vaswani & Ors vs Jyoti Ramesh Santani & Ors on 28 May, 2025
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ CS(OS) 561/2021, I.A. 8367/2023, CRL.M.A. 22001/2023,
I.A. 14023/2021 & I.A. 48419/2024
1. SH.ANIL VASWANI
S/O. SH. PRAKASH VASWANI
R/O. F-14/4, MODEL TOWN-II,
DELHI- 110009.
MOBILE: 9811994367.
2. SH.NITIN VASWANI
S/O. SH . PRAKASH VASWANI
R/O. F-14/4, MODEL TOWN-II,
DELHI- 110009.
MOBILE: 9871226302.
3. SH.GAUTAM VASWANI
S/O. SH. GHANSHYAM VASWANI
R/O. F-14/4, MODEL TOWN-II,
DELHI- 110009.
MOBILE: 9212288120.
....PLAINTIFFS
(Through: Mr. Asutosh Lohia, Mr. Sharan Mehata and Ms. Princy
Sharma, Advs.)
Versus
1. SMT. JYOTI RAMESH SANTANI
W /O. SH. RAMESH SANTANI
R/O. SA, SHREE KRISHNA KUNJ,
NEW COLONY, NAGPUR,
MAHARASHTRA- 440001.
Signature Not Verified Signature Not Verified
Signed By:DEEPAK Signed
BISSYAN
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 1 KUMAR KAURAV
2. SH.GHANSHYAM VASWANI
S/O. LATE SH. MOOL CHAND VASWANI
R/O. F-14/4, MODEL TOWN-II,
DELHI- 110009.
MOBILE: 9811278682.
MOBILE : 9373799005.
3. SH.PRAKASH VASWANI
S/O. LATE SH. MOOL CHAND VASWANI
R/O. F-14/4, MODEL TOWN-II,
DELHI- 110009.
MOBILE: 9212555698.
4. SH.GOVIND VASWANI
S/ O. LATE SH. MOOL CHAND VASWANI
R/O. F-14/4, MODEL TOWN-II,
DELHI- 110009.
MOBILE: 9873452802.
5. SH.SUNIL VASWANI
S/O. SH. GHANSHYAM VASWANI
R/O. F-14/4, MODEL TOWN-II
DELHI-110009.
MOBILE : 8700078291.
....DEFENDANTS
6. SMT. KAJAL DENGRA@KAJAL BHARTI VASWANI
W /O. SANJAY DENGRA
R/O. 947, NAPIER TOWN, JABALPUR,
MADHYA PRADESH
MOBILE : 9179170111.
7. SH.LOKESH VASWANI
S/O. SH. GHANSHYAM VASWANI
R/O. F-14/4, MODEL TOWN-II,
DELHI- 110009.
MOBILE: 9899475847.
....PROFORMA DEFENDANTS
Signature Not Verified Signature Not Verified
Signed By:DEEPAK Signed
BISSYAN
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 2 KUMAR KAURAV
(Through: Mr. Imran Ali and Mr. Asim Naeem, Advs for defendant nos. 2
and 4)
----------------------------------------------------------------------------------
% Reserved on: 06.05.2025
Pronounced on: 28.05.2025
-----------------------------------------------------------------------------------
JUDGMENT
The instant application is filed by defendant nos. 2 and 4 for rejection
of plaint under Order VII Rule 11 of Code of Civil Procedure, 1908 (CPC).
Lineage of Late Sh.Dhaman Das.
2. The present dispute relates to the descendants of Late Sh. Dhaman
Das, the great-grandfather of the plaintiffs. His son, Late Sh. Moolchand
Vaswani, was married to Late Smt. Godawari Vaswani. From this wedlock,
five children were born, namely, Sh. Govind Vaswani (defendant no. 4
herein), Sh. Prakash Vaswani (defendant no. 3 herein), Sh. Ghanshyam
Vaswani (defendant no. 2 herein), and Smt. Jyoti Vaswani (defendant no. 1
herein). Sh. Prakash Vaswani is the father of Sh. Anil Vaswani (plaintiff no.
1 herein), Sh. Nitin Vaswani (plaintiff no. 2 herein), and Smt. Kajal Dengra
(defendant no. 6 herein). Sh. Ghanshyam Vaswani is the father of Sh.
Lokesh Vaswani (defendant no. 7), Sh. Gautam Vaswani (plaintiff no. 3)
and Sh. Sunil Vaswani (defendant no. 5).
Brief facts of the case.
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 3 KUMAR KAURAV
3. As averred by the plaintiffs in their plaint, the facts of the case are as
follows: -
a) Late Sh. Moolchand Vaswani and his wife Late Smt. Godavari
Vaswani, the paternal grandparents of the plaintiffs, migrated to India
from Sindh, Pakistan. In lieu of the immovable properties in Pakistan,
owned by the father of the Late Sh. Moolchand Vaswani, they were
granted compensation by the Settlement Commissioner,
Rehabilitation Department.
b) With the funds derived from the aforesaid compensation, Late Sh.
Moolchand Vaswani purchased the property bearing No. F-14/4,
Model Town-II, New Delhi- 110009 admeasuring 436 sq. yards
(hereinafter referred to as suit property), in the name of his wife Late
Smt. Godavari Vaswani. Thereafter, Late Sh. Moolchand Vaswani
passed away intestate on 25.07.1998, whereas Late Smt. Godavari
Vaswani passed away on 24.11.1999. As per the plaint, the suit
property has been the place of residence of almost all the parties to the
present suit. Furthermore, according to the plaintiffs, over time, the
suit property has been developed using common and joint funds of the
family. The income derived from it is also used for the benefit of the
entire family, although the parties currently occupy separate portions
of the suit property.
c) Therefore, according to the plaintiffs, the suit property is ancestral in
nature and they, being coparceners, are seeking partition of the same,
along with the reliefs of rendition of accounts and permanent and
mandatory injunction by way of the instant suit.
Contentions advanced by the parties.
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 4 KUMAR KAURAV
4. Mr. Imran Ali, learned counsel for defendant nos. 2 and 4 contends
that the plaint does not disclose any cause of action. He further avers that the
claim of the plaintiffs is contrary to their plaint averments. According to
him, since the plaint states that the suit property was bought in the name of
Late Smt. Godavari Vaswani, the same should be deemed to be her own
property under the Benami Transactions Prohibition Act, 1988 (hereinafter
referred to as the Benami Act), and as per Section 14 of the Hindu
Succession Act, 1956 (hereinafter referred to as the Hindu Succession Act),
It is contended that Late Smt. Godavari Vaswani must be considered to have
been the absolute owner of the suit property, at the time of her death.
Learned counsel places reliance on the decision of this Court in Charanjeet
Singh and Anr v Harvinder Singh1 to augment his submission that the suit
property must be deemed to be the self-acquired property of Late Smt.
Godavari Vaswani. He further contends that the suit property was
bequeathed to defendant nos. 2 and 4 by Late Smt. Godavari Vaswani vide
Will dated 29.12.1992. Thus, as per learned counsel for defendant nos. 2 and
4, the suit property was never the ancestral property of the plaintiffs.
5. Moreover, learned counsel for defendant nos. 2 and 4 asserts that the
plaintiffs have admitted to an oral family settlement/understanding between
defendant nos. 2, 3, and 4, and hence, the present suit for partition is not
maintainable. Reliance is placed on the decision of the Supreme Court in
Kale and Others v. Deputy Director of Consolidation and Others2 in
support of this contention.
2023 SCC OnLine Del 3877
(1976) 3 SCC 119
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 5 KUMAR KAURAV
6. Further, Mr. Ali contends that since the sons (Class-I legal heirs) of
Late Smt. Godavari Vaswani and the fathers of the plaintiffs are alive, the
plaintiffs do not have any cause of action to claim partition during their
lifetime. He relies on the decision of the Supreme Court in Yudhishter v.
Ashok Kumar3 and of this Court in Sunny and Others v. Raj Singh and
Others4 to support the aforesaid contention.
7. Finally, Mr. Ali contends that although the plaintiffs claim the suit
property to be of the parties' Hindu Undivided Family (hereinafter referred
to as HUF), they have not specified particulars as to how it came into
existence, and a mere bald plea in that regard is not sufficient. Reliance is
placed by the learned counsel on the decisions of this Court in Nikhil Batra
v. Diwakar Batra5 and Akshat Mittal and Others v. Renu Mittal and
Others6.
8. The aforesaid contentions are vehemently opposed by Mr. Asutosh
Lohia, learned counsel for the plaintiffs, who contends that the suit property
is the ancestral property of the plaintiffs, having been bought by their
grandfather in the name of the grandmother, using funds derived out of the
great-grandfather's property. As such, he argues, the suit property cannot be
deemed to be the separate property of their grandmother so as to attract
Section 14 of the Hindu Succession Act. Reliance is placed on the judgment
of this Court in Anita Anand v. Gargi Kapur7 in support of this assertion.
9. Furthermore, Mr. Lohia asserts that the question as to whether the suit
property was the self-acquired property of Late Smt. Godavari Vaswani or
(1987) 1 SCC 204
2015 SCC OnLine Del 13446
2019 SCC OnLine Del 8253
2023 SCC OnLine Del 1239
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 6 KUMAR KAURAV
an ancestral property is a question to be decided after trial and not at the
preliminary stage of an application under Order VII Rule 11 of CPC.
10. Therefore, it is the case of the plaintiffs that the plaint discloses a
material cause of action for the present suit.
11. I have considered the submissions made by the learned counsel for the
parties and have perused the record.
Analysis.
12. It is settled law that when considering applications under Order VII
Rule 11 of CPC, only the averments in the plaint along with documents
annexed with it have to be considered. If the plaint averments, if presumed
to be true, disclose a cause of action, the plaint cannot be rejected. Further,
the aforementioned provision mandates that the plaint shall be rejected in its
entirety, if, any of the enumerated grounds are satisfied.
13. Further, it is settled law that the Court must, for the purposes of such
determination, confine itself strictly to the averments in the plaint, and not
traverse beyond it or consider the defence raised in the written statement. In
Dahiben v. Arvindbhai Kalyanji Bhanusali , subsequently in Shri
Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh
Maharaj Bhonsle 9, and recently in Smt. Uma Devi & Ors. v. Sri Anand
Kumar & Ors.10, the Supreme Court reiterated that, if from a holistic
reading of the plaint it appears that the claim is barred by any law or is
founded on an illusory or misconceived cause of action, the entire plaint is
liable to be rejected at the threshold.
2018 SCC OnLine Del 11372
(2020) 7 SCC 366
2024 SCC OnLine SC 3844
2025 INSC 434
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 7 KUMAR KAURAV
14. This Court in Mrs. Pooja Wasal v. Sh. Ramesh Grover11 while
discussing the interplay of Order VII Rule 11 of CPC and Hindu law, held as
under: -
"41. Upon an observant consideration of the legal framework and the
elucidation of the decisions referred to hereinabove, it is apposite to
observe that, at the stage of adjudicating an application under Order
VII Rule 11 of CPC, it is sufficient if the plaintiff, in the plaint, pleads
that the suit properties are ancestral in nature and asserts that the joint
status of the properties have remained intact.
42. The threshold requirement under the CPC is the disclosure of a
cause of action, a mere assertion, duly supported by requisite pleadings
to the effect that the suit properties form a part of the joint family
corpus, is adequate to withstand preliminary rejection. The veracity or
otherwise of such a claim, namely, whether the property is indeed
ancestral or self- acquired property or has transmuted into self-
acquired property, is a matter that lies within the domain of contested
factual adjudication, and cannot be summarily adjudicated upon at the
inception without affording the parties an opportunity to lead evidence.
43. It is also observed that the delineation hereinabove affirms that the
character of the property, whether ancestral or self-acquired,
constitutes a quintessential triable issue. The power contemplated
under Order VII Rule 11 of CPC is of a narrow and exceptional nature,
strictly confined to instances where, on a demurrer, the plaint discloses
no cause of action or is barred by law. In the presence of specific
pleadings averring the ancestral character of the suit property and the
continuance of joint status, the plaint cannot be interdicted at the
threshold only on a rival claim by the opposite party. The
determination of the true nature of the property must necessarily await
the outcome of a full-fledged trial, wherein the rival claims of the
parties shall be tested on the anvil of evidence adduced before the
Court."
15. Upon explication of the legal position, a perusal of the averments
made in the plaint is necessitated. The plaintiffs aver that their grandfather
purchased the suit property, albeit in his wife's name, using money derived
from the plaintiff's great-grandfather's property. Assuming the averments
in the plaint to be correct, the question as to whether the suit property
2025: DHC 3507 passed in CS(OS) 567/2023
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 8 KUMAR KAURAV
constitutes ancestral property raises a bona fide and substantive issue of fact,
which warrants adjudication upon leading of evidence. The objection raised
by defendant nos. 2 and 4 to the effect that in light of the Benami Act, the
suit property must be deemed to be the exclusive property of Late Smt.
Godavari Vaswani, thereby attracting the provisions of Section 14 of the
Hindu Succession Act is also misconceived.
16. Section 2(9)(A)(b)(i) of the Benami Act is extracted below:
"(9) "benami transaction" means,--
(A) a transaction or an arrangement--
(a) XXXX
(b) the property is held for the immediate or future benefit, direct or
indirect, of the person who has provided the consideration, except when
the property is held by--
(i) a Karta, or a member of a Hindu undivided family, as the case may be,
and the property is held for his benefit or benefit of other members in the
family and the consideration for such property has been provided or paid
out of the known sources of the Hindu undivided family;
(ii) XXXX
(iii) XXXX
(iv) XXXX"
17. It is noted that in terms of the exclusion under the aforesaid provision,
any property held by a Karta or a member of an HUF, for the benefit of such
member or other members of the family, and where the consideration has
been provided from the known sources of the HUF, shall not fall within the
ambit of a benami transaction. Accordingly, if the plaintiffs are able to
establish that the suit property, though purchased in the name of Late Smt.
Godavari Vaswani, was acquired from HUF funds and intended for the
collective benefit of the family, such a transaction would fall within the
statutory exception and would not attract the bar under the Benami Act.
Consequently, the applicability of Section 14 of the Hindu Succession Act
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 9 KUMAR KAURAV
would not arise. In view of the above, the question as to the character of the
suit property involves disputed questions of fact and law, and constitutes a
triable issue, cannot be determined at the preliminary stage and must be
adjudicated upon leading of evidence.
18. In Anita Anand, while dealing with a similar application, the Court
held that the question, whether property purchased in the name of a woman
would be considered her own, under Section 3 of the Benami Act, and
whether she would be its absolute owner under Section 14 of the Hindu
Succession Act, would be subject to trial. The relevant portion of the
judgment is extracted herein.
"24. By amending the old Act by the Benami Transactions (Prohibition)
Amendment Act, 2016, the legislators while recognizing and maintaining
the said exception contained in Section 3(2) and 4(3) of the Old Act, for
abundant clarity, by virtue of Section 2(9)(A)(b)(ii) and Section
2(9)(A)(b)(iii) of the amended Act, specifically excluded transactions of the
nature pleaded by the plaintiff from the very definition of Benami
Transactions. Given this position and there not being any disharmony
between the provisions of the Old Act and the amended Act insofar as the
aforesaid exception is concerned, the ratio decendi of the Hemant Sati
case (supra) will, apply proprio vigore, to cases covered by the amended
Act as well. In view of the above, the argument of the defendants the wife
of the father of the parties had become the absolute owner of the suit
property when the same was purchased in her name by virtue of Section
14 of the Hindu Succession Act, 1956 would be subject to trial."
19. In Charanjeet Singh, the plaintiffs therein had sought partitioning of
the suit property, which was bought in the name of the female defendant
therein. The Court, while rejecting the plaint under Order VII Rule 11 of
CPC, held that the suit property was the separate property of the female
defendant and hence could not be partitioned in the suit. However, since in
the present case, there are specific averments in the plaint that the suit
property was bought by the grandfather of the plaintiff using funds derived
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 10 KUMAR KAURAV
out of his father's property, in the name of his wife, and has been used for
the benefit of the whole family, they must be allowed to prove the same
with evidence during the trial.
20. The second contention of defendant nos. 2 and 4 is that the plaintiffs
have admitted an earlier partition of the suit property through an oral
understanding/settlement between defendant nos. 2 and 4, and hence, the
present suit is not maintainable. However, the plaintiffs have specifically
pleaded that the parties have been in joint and constructive possession of
the suit property in paragraph no. 14 of the plaint. Therefore, they cannot be
said to have categorically admitted an earlier partition of the suit property.
The said paragraph is extracted below for reference:
"14. That the parties to the lis have been living together in the same
property as a joint unit. Each of the Plaintiffs hereto are in joint and
constructive possession of each and every portion of the suit property (and
intentionally so)."
21. Moreover, whether the suit property has already been partitioned
through oral understanding is a question to be decided after evidence is led
by the parties.
22. The third contention of defendant nos. 2 and 4 that the fathers of the
plaintiffs being alive, the plaintiffs cannot seek partition of the suit property
is based on the premise that the suit property is no longer ancestral property
since it has devolved on defendant nos. 2-4 through intestate succession
under Section 8 of the Hindu Succession Act. This contention too is devoid
of merit and cannot be sustained. The plaint, on a prima facie reading,
discloses assertions indicating the coparcenary character of the suit
property. If it is established that the suit property was acquired from funds
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 11 KUMAR KAURAV
sourced from the immovable and movable assets of the paternal great-
grandfather of the plaintiffs, the same may partake in indicating the
character of the suit property. However, such determination is contingent
upon the adducing evidence by the plaintiffs in support thereof. Learned
counsel for defendant nos. 2 and 4 has relied upon the judgment of the
Supreme Court in Yudhishter, wherein the Court, while considering its
judgment in Commissioner of Wealth Tax, Kanpur and Others v. Chander
Sen and Others12, held that property inherited by a son after the death of
his father is held as his absolute property even in respect of his sons and not
as an ancestral property. The relevant portion of the judgment is extracted
below for reference:
"This question has been considered by this Court in Commissioner of
Wealth Tax, Kanpur and Others v. Chander Sen and Others, [1986] 3 SCC
567 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 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 section8 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, 15thEdn.
pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages
918919. 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
(1986) 3 SCC 567
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 12 KUMAR KAURAV
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 fight in holding that the respondent
was a licensee of his father in respect of the ancestral house. But as
mentioned hereinbefore, even if we proceed on the assumption that the
respondent was a member of the HUF which owned the ancestral house,
having regard to his share in the property and having regard to the need
of other sons of the father who were living in the ancestral house along
with their families, the appellate authority was, still right in holding that
the need of the respondent was bona fide."
23. In Sunny, this Court relied on the decision in Yudhishter and also
held that property inherited by a son under Section 8 of the Hindu
Succession Act would be his self-acquired property. The relevant extract of
the said judgment is reproduced below:
"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 up to 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 up to three degrees above him,
then his male legal heirs up to 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....."
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 13 KUMAR KAURAV
24. The aforementioned precedents are distinguishable on facts and do
not govern the present case, wherein the plaintiffs have asserted their claim
in the suit property in their capacity as coparceners. It is a settled position
of law that, upon the demise of a coparcener, the property devolving under
Section 8 of the Hindu Succession Act is limited to the share that such
deceased coparcener would have been entitled to, had a notional partition of
the coparcenary property been effected immediately prior to his death. This
proposition finds support in the decision of the Supreme Court in Uttam v.
Saubhag Singh and Others13. The relevant portion of the said decision is
extracted below for reference:
"15. On application of the principles contained in the aforesaid decisions,
it becomes clear that, on the death of Jagannath Singh in 1973, the proviso
to Section 6 would apply inasmuch as Jagannath Singh had left behind his
widow, who was a Class I female heir. Equally, upon the application of
explanation 1 to the said Section, a partition must be said to have been
effected by operation of law immediately before his death. This being the
case, it is clear that the plaintiff would be entitled to a share on this
partition taking place in 1973. We were informed, however, that the
plaintiff was born only in 1977, and that, for this reason, (his birth being
after his grandfather's death) obviously no such share could be allotted
to him. Also, his case in the suit filed by him is not that he is entitled to this
share but that he is entitled to a 1/8th share on dividing the joint family
property between 8 co-sharers in 1998. What has therefore to be seen is
whether the application of Section 8, in 1973, on the death of Jagannath
Singh would make the joint family property in the hands of the father,
uncles and the plaintiff no longer joint family property after the devolution
of Jagannath Singh's share, by application of Section 8, among his Class I
heirs. This question would have to be answered with reference to some of
the judgments of this Court."
25. Whether the suit property in the present case is indeed coparcenary in
nature and whether the plaintiffs, as coparceners, are entitled to a share
AIR 2016 SC `1169
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 14 KUMAR KAURAV
therein, are questions of fact that necessitate adjudication upon a full-
fledged trial.
26. The final contention on behalf of defendant nos. 2 and 4 is that the
plaintiffs' failure to specify particulars of when the HUF, claimed by them,
came into existence is fatal to their case, and therefore, the present suit is
not maintainable. This contention too, is misconceived. The plaintiffs,
having averred that the suit property was bought by their paternal
grandfather using funds obtained in lieu of his father's properties, have,
prima facie, made out the joint nature of the suit property. Thus, although
the plaintiffs claim that the property is an HUF property in parts of their
plaint, a holistic reading of the plaint would suggest that their primary case
is that the suit property is their ancestral coparcenary property. Therefore,
the failure to prima facie establish the existence of a HUF in their plaint
cannot be deemed fatal to the case of the plaintiffs. The judgments relied on
by defendant nos. 2 and 4, Nikhil Batra and Akshat Mittal, do not apply to
the facts of the present case since the plaintiffs therein claimed solely as
members of an HUF, which is not the case in the present suit.
27. Therefore, in view of the elucidation hereinabove, it is evident that at
the stage of considering an application under Order VII Rule 11 of the
CPC, an assertion that the property is ancestral or coparcenary in nature,
coupled with supporting factual pleadings, is sufficient to indicate that the
plaint discloses a cause of action, as the true character of the property
constitutes a triable issue of fact and law requiring adjudication through
evidence.
28. More importantly, the questions i.e., (i) whether the suit property is a
benami property held in the name of Late Smt. Godavari Vaswani, (ii)
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 15 KUMAR KAURAV
whether it constitutes coparcenary or an HUF property entitling the
plaintiffs to a share therein, and (iii) whether a prior partition between
defendant nos. 2, 3, and 4 has already taken place in respect of the suit
property, are all contested issues that cannot be summarily determined and
must necessarily be adjudicated subsequent to a trial.
29. Accordingly, the present application stands dismissed.
30. Nothing stated hereinabove shall amount to an expression on the
merits or demerits of the case, and the same shall be subject to trial.
CS(OS) 561/2021, CRL.M.A. 22001/2023, I.A. 14023/2021 & I.A.
31. In view of the order passed hereinabove, let the instant suit to
proceed before the Joint Registrar on 22.07.2025, for taking up further
necessary steps in accordance with the extant rules.
32. Thereafter, list before the Court on the date to be assigned by the
Joint Registrar.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
MAY 28, 2025/amg/mj
Signed By:DEEPAK Signed
By:PURUSHAINDRA
Signing Date:30.05.2025
13:53:35 16 KUMAR KAURAV
