Gurnam Singh & Anr v. Manohar Singh & Ors

3. The counsel for the applicant I defendant No.3 has argued that though defendant No.1 Sh. Manohar Singh had vide Sale Deed dated 11.08.2006 sold the property to defendant No.2 Sh. Gulshañ Chanana and it was recorded in the said Sale Deed that vacant physical possession had been delivered but defendant No.1 Sh. Manohar Singh had expressed difficulties in vacating and in the circumstances a Lease Deed of letting out of the property by defendant No.2 Sh. Guishan Chanana to Sh. Manohar Singh was executed and registered. It is further informed that the Sale Deed dated 08.06.2007 of the property by defendant No.2 Sh. Gulshan Chanana in favour of the applicant / defendant No.3 Sh. Deepansh Malhotra is witnessed by Sh. Manohar Singh who had then also undertaken to deliver possession within one month. It is further informed that upon the failure of defendant No.1 Sh. Manohar Singh to deliver, possession, the applicant / defendant No.3 Deepansh Malhotra detennined the tenancy and instituted a suit in the District Court for ejectrnent of defendant No.1 Sh. Manohar Singh and which was decreed. RFA No.113/2010 preferred against the said decree is stated to have been dismissed on 06.0 1.2011. It is yet further infonned that in the execution of the said decree for ejectrnent, first defendant No.1 Sh. Manohar Singh filed objections which were dismissed and thereafter the plaintiffs herein filed objections and which were also dismissed and it is only thereafter that the present suit has been filed setting up the plea of the property belonging to a Hindu Undivided Family (HUF) of defendant No.1 Sh. Manohar Singh and the plaintiffs having a share therein by birth. The counsel for the applicant/defendant No.3 Sh. Deepansh Malbotra contends that in pursuance to an order dated 09.12.2011 in the present suit, the plaintiffs were asked to file documents in support of their otherwise unsubstantiated plea of existence of HUF and though have filed the said documents but the said documents also do not make out a case of any HUF. On this ground rejection of the plaint is claimed. On enquiry as to whether in the objections to the execution petition aforesaid, the plaintiffs took the plea of the property belonging to an HUF of which they were members, the / counsel for the applicant / defendant No.3 Sh. Deepans Maihotra states that no such plea was taken. The appearing counsels have been heard. The sole question to be adjudicated in the present suit is whether the property can be said to be of an HUF in which the plaintiffs as the children of defendant No.1 Sh. Manohar Singh can be said to be having a share. If it is not so, the plaintiffs do not have any right to the property to claim partition thereof The setting aside of the Sale Deeds executed by defendant No.1 Sh. Manohar Smgh and the subsequent Sale Deed is also sought on the said basis only and not on any other grounds. To appreciate whether on the averments in the plaint any case of the property belonging to an HUF is made out, it is deemed appropriate to set out paras 1 and 3 of the plaint which are as under: "1. That the piainq[f no.] and 2 are coparceners in the coparcenary of which defendant no.] is the Karta being the head of the family and father of piaintff no.] and 2. The plaintff no.] is the son of/he defendant no.1 and plaintiff no.2 is the minor daughter of defendant no.] and has attained the I ~ status of coparcener by virtue of The Hindu Succession (Amendmen) Act 2005. The plaintiff no.2 is being represented by her brother Plaintiff no.] as her next friend and being her eider brother. Plaint iff no. 1 has no interest adverse to that of plaintiff no.2 and is agitating for the legitimate rights of plaintff no.2 as well. However, by way of abundant caution and by virtue of Hindu adoption and maintenance Act and provisions qf OrderVX II C.P.C., application for appointing him as guardian ad-litem has been filed separately along with the present plaint.

3. That the family histoiy relevant for the present proceedings as acquired by the plaintiff no.] from various 1-4 sources and relatives, is pleaded herein. The grand father of the plain tiffs, Sh. Piara Singh had purchased the entire property bearing no.43/43, Punjabi Bagh, New Delhi alongwith his brother Sh. Hazara Singh. The grandfather of the plaintiffs Sh. Piara Singh and his brother Sh. Hazara Singh had underwent a partition among themselves whereby the larger property bearing no. 43/43, Punjabi Bagh, New Delhi was divided into two equal shares. By virtue of the partition, Sh. Piara Singh became the absolute owner of the property falling into his share admeasuring 140.46 sq. yds. and later identfIed and ascribed no.43/43-A, Punjabi Bagh, New Delhi ('hereinafier referred as suit property,). Sh. Piara Singh had died intestate on 21.08.1995, leaving behind the defendant no.], five daughters and the plaintiffs as his legal heirs. The five paternal aunts have relinquished their rights in the suit property. By virtue of relinquishment, the plaintiffi and the defendant no.] thereafter constituted the coparcenary and the defendant no.] being the father and head of the family became the Karta of the coparcenaly. The pedigree table is annexed as Annexure-A." None of the other paragraphs are found to be relevant for the present purpose. / 5 It has been enquired from the counsel for the plaintiffs as to how according to the plaintiffs, the property is a property of the HIJF of defendant No.1 Sh. Manohar Singh. The counsel for the plaintiffs has argued that since the said property along with another portion thereof, was originally acquired in the year 1967 by the father of defendant No.1 Sh. Manohar Singh viz. Sh. Piara Singh and his brother Sh. Hazara Singh and was subsequently partitioned between them and the defendant No.1 Sh. Manohar Singh inherited the same on the demise of his father on 21.08.1995, the property in the hands of defendant No.1 Sh. Manohar Singh is ancestral and according to the Hindu law his children viz, the plaintiffs would also have a share therein. It is unfortunate that inspite of the coming into force of the Hindu Succession Act, 1956 (HSA) more than half a century ago, the concepts of the ancient Hindu law, as prevalent prior to the coming into force of the said Act, continue to fonn the basis for a large number of litigations. What has been argued by the counsel for the plaintiffs may have been good law prior to the coming into force of the HSA. The said Act made a significant change and under Section 8 thereof as interpreted by the Supreme Court in Commissioner of Wealth Tax, Kanpur, Vs. Chander Sen (1986) 3 SCC 567 and Yudhister Vs. Ashok Kumar (1987) 1 SCC 204 the property inherited by a male after the coming into force of the HSA from his father is held by the said male, as his personal individual property and in which his sons have no right. The counsel for the plaintiffs himself has given the date of demise of the father of defendant No.1 Sh. Manohar Singh as of 21.08.1995. Thus the property inherited by defendant No.1 Sh. Manohar Singh fi'orn his father would be personal individual property of defendant No.1 Sh. Manohar Singh and his children viz, the plaintiffs would not have any right therein, as is sought to have been made out. The Supreme Court in Bhanwar Singh Vs. Puran (2008) 3 SCC 87 held that having regard to Sections 8 & 19 of HSA, the properties cease to be joint family properties. Similarly, in Makhan Singh Vs. Ku/want Sing/i (2007) 10 SCC 602 it was held that a son who inherits his fathers assets under Section 8 of HSA, does so in his individual capacity and not as Karta of HUF. This Court has also thereafter followed the said judgment in Master Daijit Singh Vs. S. Dara Singh AIR 2000 Delhi 292, Bharat Bhushan Maggon Vs. Joginder La! MANU/DE/5332/2012 and Pratap Vs. Shiv Shanker 164 (2009) DLT 479. Another Single Judge recently in Mrs. Premwati Vs. Mrs. Bhagwati Devi MANTJ/DE/4784/20 12 has specifically held that no H1JF comes into existence upon a Hindu male inheriting the property on the demise of his father after the coining into force of the HSA. In this regard, it may be noticed that though the plaintiffs have described themselves as coparceners and the defendant No.1 Sh. Manohar Singh as the Karta but from the pleadings and the arguments addressed, it is clear that the HUF / coparcenary is stated to have come into existence only for the reason of the property having been inherited by defendant No.1 Sh. Manohar Singh fi-om his father and not otherwise. There is yet another important factor. It is the case of the plaintiffs themselves that after the demise of the father of defendant No.1 Sh. Manohar Singh, the sisters of defendant No.1 Sh. Manohar Singh released the share inherited by them from the father in favour of defendant No.1 Sh. Manohar Singh. If there was any HIJF/coparcenaiy since the life time of father of defendant No.1 Sh. Manohar Singh, the question of the sisters of defendant No.1 Sh. Manohar Singh inheriting any share in the property or relinquishing the same in favour of defendant No.1 Sh. Manohar Singh did not arise. The right of the daughters in an HUF came into existence only pursuant to the amendment of the year 2005 to the HSA and at the time of demise of the father on 21.08.1995, had there been any HUF there would have been no question of execution of the registered Relinquishment Deeds. It is in any case the case of the plaintiffs that the property was the self acquired property of the father of defendant No.1 Sh. Manohar Singh. Thus from the avennents made in the plaint, the plaintiffs have failed to make out any cause of action. The suit is accordingly dismissed. The plaintiffs are also burdened with costs to be assessed in accordance with law. Advocate's fee is assessed at Rs.30,000/-. Decree sheet be drawn up. As far as the claims of the defendant No.5 are concerned, the same are not for adjudication in the present suit and thus no observation with respect thereto is made. CS(OS)3105/2011 This suit is for specific perfonnance of an Agreement dated 09.09.2011[1] of sale of the same property. The Agreement to Sell of which special performance is claimed of a date subsequent to the Sale Deed by defendant No.1 Sh. Manohar Singh in favour of Sh. Gulshan Chanana.

18. Vide exparie order dated 13.12.2011 in this suit, interim order sought was granted subject to the plaintiffs depositing the balance sale consideration of Rs.60,00,000/- by way of an FDR in this Court. None has appeared for the plaintiffs today. On the last several dates also, none has been appearing for the plaintiffs. The office noting is that the FDR has not been filed. The plaintiffs are apparently not interested in pursuing the suit. In any case, the non deposit of the FDR also shows the non readiness and non willingness of the plaintiffs to perform the' part of the contract and which performance is fatal to a suit of specific perfonnance. With the observation aforesaid, the suit is dismissed for nonprosecution. CS(OS) 200/2012 This suit is filed by one of the sisters of Sh. Manohar Singh for partition. As observed above, the said sister of Sh. Manohar Singh along with other sisters relinquished the share inherited by them from their father in the property in favour of Sh. Manohar Singh. Though Sh. Deepansh Malhotra ordered on 25.07.2012 to be impleaded as the defendant in this suit has filed photocopy of the said Relinquishment Deed, it has emerged that the original thereof is in possession of M/s Associate India Financial Services Pvt. Ltd. defendant No.5 in CS(OS) No.283/2010 and whose counsel states that the original Relinquishment Deed has been filed in the arbitration proceeding pending before Sh. G.S. Jugti, Additional District Judge (Retd.), Delhi. The counsel for the plaintiff on enquiry as to whether the plaintiff admits her signature on the Relinquishment Deed states that the plaintiff is not present in the Court today. The plaintiff is directed to appear in person before this Court on 251h Februaiy, 2013. The original arbitration record containing the Relinquishment Deed is requisitioned. The counsel for M/s Associate India Financial Services Pvt. Ltd. to infonn Mr. G.S. Jugti, Additional District Judge (Retd.) of today's order and who is requested to send the arbitration record containing the registered Relinquishment Deed in this Court on that date. Copy of this order be given to the counsel for M/s Associate India Financial Services Pvt. - Ltd. for ensuring compliance by Mr. G.S. Jugti, Additional District Judge (Retd.). It is clarified that the order of status quo in this suit shall not come in the way of execution of the decree for ejectment of Sh. Manohar Singh from -4 the property at the instance of Sh

28. List on 25th February, 201: FEBRUARY 15,2013 'gsr'.. NDLAW, J 7/