Ajay Jain v. Anil Jain & Ors.

12. He submits that the unilateral transfer of the properties by impugned gift deeds by late Sh. Mahabir Prasad Jain, who was not the exclusive owner of the suit properties is, therefore, bad in law.

13. He submits that the two properties being shop 116 and 77 were sold by late Sh. Mahabir Prasad Jain, and properties as described at paras 1.[6] – 1.13 of the plaint, were acquired from the funds realized from the sale of the said properties and also from the nucleus of joint family funds in the hands of late Sh. Mahabir Prasad Jain that he got from the partition of 1995.

14. He submits that property received by the branch of Sh. Mahabir Prasad Jain and the subsequently acquired properties purchased from the corpus received after selling some of the ancestral properties, were having the character of ancestral property, therefore, Sh. Mahabir Prasad Jain was not the exclusive owner of the properties thereby making the transfer through impugned gift deeds as bad in law.

15. He further submits that the share in the ancestral properties acquired by a person in the partition are although separate properties qua his other relation but it is a coparcenary property insofar as his sons and grandsons are concerned. To buttress this proposition, he places reliance on the following decisions:

(i) Rohit Chauhan vs. Surinder Singh and Others (2013) 9 SCC

419;

(ii) Shyam Narayan Prasad vs. Krishna Prasad and Others

(iii) Govindbhai Chhotabhai Patel and Others vs. Patel

(iv) Angadi Chandranna vs. Shankar and Others, 2025 SCC

16. He further submits that late Sh. Mahabir Prasad Jain was suffering from dementia since at least August, 2021 with a history of progressive forgetfulness for past two years, and the defendant nos.[1] and 2 took undue advantage of deteriorating medical condition of late Sh. Mahabir Prasad Jain and got impugned gift deeds executed with respect to nearly his entire estate in their favour, to the exclusion of the plaintiff, despite being aware that Sh. Mahabir Prasad Jain was not the exclusive owner of the suit properties.

17. He submits that impugned transactions were executed within a short span of three months i.e. between December, 2021 to February, 2022 during which period he was not in sound disposing state of mind and lacked capacity to understand the nature and character of documents. To support his contention, he has invited attention of the Court to the medical prescription dated 28.08.2021 issued by Dr. Rajesh Gupta of MAX Hospital; invoice, as well as, tax invoice of the even date 28.08.2021, of the same hospital.

18. He also invites attention of the Court to the MoU dated 18.03.2014 to contend that though the plaintiff is not claiming any right that emanates from the said MoU, however, it is borne out from the same that late Sh. Mahabir Prasad Jain had acknowledged and accepted the joint rights of the plaintiff in the properties. He submits that impugned gift deeds are in direct contradiction to the declared intention of late Sh. Mahabir Prasad Jain as expressed in the said MoU.

19. He further submits that the impugned gift deeds are fraudulent is also evident from the fact that there was no reason or occasion for late Sh. Mahabir Prasad Jain for executing the same mainly in favour of defendant no.1 and a portion of only one property in favour of defendant no.2, to the exclusion of the plaintiff, and further not making any provision for his widowed wife.

20. Lastly, he submits that the plaintiff acquired knowledge of the impugned gift deeds on 26.05.2025 and thereafter he obtained the certified copies on 29.05.2025 and 03.06.2025, therefore, the suit is within limitation. Mr. Jain also contends that limitation being a mixed question of fact and law is a matter of trial and cannot be gone into at this stage of deciding the present application.

21. Per contra, Mr. Alok Kumar, learned Senior Counsel for defendant no.1 referring to Clause in the partition deed dated 03.02.1995, which has also been quoted in para 5 above, submits that the true import and meaning of the said clause, when read holistically, is that sons and wives of the head of each branch will not have any right, title and interest in the property of other branch. He submits that the said clause cannot be read selectively.

22. He further submits that the submission of the plaintiff that the suit properties in the hands of Late Mahabir Prasad Jain were ancestral is contradicted by the conduct of the plaintiff as the plaintiff himself claims to have purchased one floor of the suit property at para 1.[4] of the plaint. Elaborating further, he submits that if the plaintiff was co-sharer in the suit properties, there was no occasion for him to purchase a portion of one of the suit property from Late Mahabir Prasad Jain.

23. He submits that all the suit properties except the property mentioned in para 1.[5] of the plaint were gifted by Late Mahabir Prasad Jain by virtue of gift deeds to defendant nos. 1 and 2. However, with regard to one portion (156 sq.yds) of property at para 1.12 of the plaint, a Will dated 23.06.2015 was executed by Late Mahabir Prasad Jain in favour of defendant no.1 and rest of the said property had been sold by him during his lifetime.

24. He submits that in the pleadings, it is not the case of the parties that the suit properties were HUF or ancestral properties. He further contends that as per the Hindu Law, after partition each party gets a separate and distinct share, which becomes their self-acquired property. To buttress his contention, he places reliance on para 17 of the decision in Angadi Chandranna (supra). He also places reliance on the decision of this Court in Lalsa Prasad Singh vs. Chanderwala & Anr., 2017 SCC OnLine Del 10961, to contend that HUF has to be specifically pleaded and proved.

25. He further submits that reliance placed by the plaintiff on the MoU dated 18.03.2014 signed on 22.03.2014 between plaintiff, defendant no.1 and their father Late Mahabir Prasad Jain is misconceived, inasmuch as none of the suit properties are mentioned in the said MoU, and the same is qua other properties. According to Mr. Kumar, even the MoU was not given effect to, therefore, the intention with which said MoU was executed is irrelevant.

26. He submits that the case of the plaintiff is that Late Mahabir Prasad Jain sold some of the properties which had fallen to his share through partition deed dated 03.02.1995 and thereafter, from the sale proceeds of the same, the properties at paras 1.[6] to 1.13 of the plaint were acquired, but this contention is untenable for the reason that the property at paras 1.8, 1.[9] and 1.12 of the plaint had been purchased even before the partition of 1995.

27. Further, the shop no. 77 with whose sale proceeds, Late Mahabir Prasad Jain is alleged to have purchased the properties at paras 1.[6] to

1.13 of the plaint is contrary to the record. He submits that a copy of the sale deed dated 11.03.2010 of Shop No. 77 which defendant no.1 has been able to obtain, would show that the said shop was sold after the purchase of properties mentioned at paras 1.6, 1.10, 1.11 and 1.13 of the plaint.

28. He submits that the medical documents on which the plaintiff has placed reliance to state that Late Mahabir Prasad Jain was suffering from dementia since 2019, do not pertain to Late Mahabir Prasad Jain, father of the parties. He contends that in the tax invoice dated 28.08.2021 issued by Max Hospital, the address of the patient is of Dehradun, Uttarakhand, whereas Late Mahabir Prasad Jain was residing in Najafgarh, New Delhi till his death. He further submits that the hospital ID mentioned on the said invoice does not belong to Late Mahabir Prasad Jain nor the mobile number stated therein pertained to him. He further submits that there is no pathological test report filed by the plaintiff on record which could prove the plea of dementia as pleaded by the plaintiff.

29. He further contends that weight of Late Mahabir Prasad Jain as mentioned in the medical record is 78 kg whereas the health vitals / parameters recorded by Late Mahabir Prasad Jain in the Diary on the same date i.e. 28.08.2021 mentions his weight as 58.[5] kg, which also goes to show that the medical record being relied upon by the plaintiff is not genuine.

30. He submits that Late Mahabir Prasad Jain was cross-examined in the suit being CS No. 9841/2016 before the Tis Hazari Courts on several dates from the year 2019-2025. Referring to the portion of the crossexamination conducted on 21.08.2023, he submits that the answers given by Late Mahabir Prasad Jain shows that the same are intelligent and cannot be labelled as an answers of a person, who is suffering from dementia.

31. He further contends that the gift deeds were executed between 24.12.2021 till 25.02.2022, therefore, the limitation period for challenging the said gift deeds expired between 24.12.2024 to 25.02.2025, but the suit came to be filed on 05.07.2025, therefore, the suit is barred by limitation.

32. He further submits that the stand taken by the plaintiff that he had engaged some consultant to search for the Will of Late Mahabir Prasad Jain and in the process, he came to know about the impugned gift deeds, is ex facie false. Elaborating further, he submits that Wills are Book-3 documents whereas gift deeds are Book-1 documents as per Section 51 of the Registration Act, 1908, therefore, if someone is engaged to search for the Will, he will inspect Book-3 and not Book-1, therefore, there was no occasion for the said consultant to chance upon the impugned gift deeds.

33. He submits that the consultant had no authority for inspection to inspect Book-3 nor the search of Book-3 could be carried out by a private individual, in as much as under Section 57(4) of the Registration Act, 1908, the requisite search for entries in Book-III shall be made only by the Registering Officer.

34. In rejoinder, Mr. Ankit Jain submits that the plaintiff has placed on record three documents issued by Max Hospital viz., (i) invoice dated 28.08.2021, (ii) tax invoice dated 28.08.2021 against purchase of medicines, and (iii) prescription of Dr. Rajesh Gupta, the Neurologist. He submits that the first document i.e. invoice dated 28.08.2021 mentions correct address of Late Mahabir Prasad Jain. The second document i.e. tax invoice dated 28.08.2021 against which medicines were purchased, apart from the mentioning the correct address of Late Mahabir Prasad Jain, additionally mentions address of Uttarakhand which is apparently an inadvertent typing error, whereas the third document i.e. prescription by Dr. Rajesh Gupta, also mentions the correct name, age and other particulars but does not mention any address.

35. He submits that the record produced by the counsel for the Max Hospital also affirms the correctness of the medical record filed by the plaintiff. As regard the mobile number on the tax invoice, he submits that the said number belongs to the son of defendant no.1 which shows that the medical records filed by the plaintiff were always within the knowledge of defendant no.1.

36. He submits that the patient ID of Late Mahabir Prasad Jain has also been confirmed by the documents produced by the counsel for the Max Hospital. Referring to the cross-examination on which reliance was placed by Mr. Alok Kumar, he submits that it is apparent from the testimony of Late Mahabir Prasad Jain that he was suffering from medical problem of forgetfulness as he had stated that he do not remember where his affidavit was prepared and where he had signed it.

37. I have heard the learned Senior Counsels for the parties and have perused the record.

38. The stand taken by the plaintiff qua the properties is borne out from para 13.[4] of the plaint, wherein he has pleaded that all properties are ancestral properties. Para 13.[4] reads thus: 13.[4] That Late Sh. Mahabir Prashad Jain was not competent enough even otherwise to execute the gift deeds in favour of any person as he was not the sole owner of the properties in question. Property No.1.[1] to 1.[5] along with some other properties were received by him being the head of the family in the registered partition deed dated 03.02.1995 for the benefit of all concerned i.e. the parties herein. By selling some of the properties, Late Sh. Mahabir Prashad Jain, acquired the property No.1.[6] to 1.14. All the properties are ancestral properties having the common nucleus. The disposition of the properties completely by Sh. Mahabir Prashad Jain is totally bad and illegal in law.

39. In stark contrast, the defendant no.2 (plaintiff’s sister) in her written statement has taken a stand in para 4 of the preliminary objections/submissions that the suit properties are not liable to be partitioned as the same are not part of any joint family property or ancestral property, but were self-acquired properties of Late Mahabir Prasad Jain. Para 4 of the preliminary objections/submissions of defendant no.2’s written statement reads thus: “4. That the present suit was filed alleging that suit properties were ancestral and joint family properties. But the suit properties are not liable to be partitioned as the same are not part of any joint family property or ancestral property, but, was the self-acquired property of Late Mahabir Prasad Jain, father of the parties. The suit is misconceived, not maintainable in law or on facts, and, is liable to be rejected under Order VII Rule 11 of CPC.”

40. However, the defendant no.1, the main contesting defendant, in para 2 of the preliminary submissions of the written statement, has stated that in so far as the property at paras 1.[6] to 1.13 of the plaint are concerned, the same were exclusively self-acquired properties of Late Mahabir Prasad Jain purchased by him out of his own funds and resources during his life time. As regard the properties at paras 1.[1] to 1.[5] of the plaint, defendant no.1 has taken a stand that these properties lost their ancestral character and became absolute properties of the respective allotees upon execution of a registered partnership deed dated 03.02.1995. Paras 1 and 2 of the preliminary submissions in the written statement of defendant no.1 reads thus:

44. Likewise, in Rohit Chauhan (supra), the Hon’ble Supreme Court held that so long on partition an ancestral property remains in the hand of a single person, it would be his separate property, but the moment a male child is born, the property becomes the coparcenary property and the male child would acquire interest in that and become a coparcener. It was also clarified that the alienation of the property prior to the birth of male child cannot be questioned. The relevant extract from the said decision reads thus: “11......... In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.”

45. In Rohit Chauhan (supra), the Hon’ble Supreme Court also relied upon its earlier decision in M. Yogendra v. Leelamma N., (2009) 15 SCC 184, in which it was held as under:

46. In view of the above clear expositions, this Court prima facie finds that property at paras 1.[1] to 1.[5] of the plaint, as admitted by defendant no.1 to be ancestral properties prior to partition, will retain their character as ancestral properties in the hands of Late Mahabir Prasad Jain, upon execution of registered partition deed dated 03.02.1995, in which the plaintiff, as well as, defendant no.1 shall continue to have interest as coparcener, rendering Late Mahabir Prasad Jain as not competent to execute the gift deeds in respect thereof.

47. The reliance placed by Mr. Alok Kumar on para 17 of Angadi Chandranna (supra) is misconceived. No doubt in para 17 of the said decision the Hon’ble Supreme Court has observed that as per Hindu law, after partition, each party gets a separate and distinct share and this share becomes their self-acquired property and they have absolute rights over it with the rights to sell, transfer, or bequeath it as they wish, but this observation has to be seen in the light of various earlier decisions of the Apex Court cited in paras 14 and 15 of Angadi Chandranna (supra), wherefrom it is clear that such property remains separate property only when it remains in the hands of a single person and he is entitled to dispose of the same treating it to be his separate property. However, if a son is subsequently born, the property again acquire the status of coparcenary property. But if person getting share in the ancestral property is not a single person and already has male issue(s), then the property in his hands will continue to be the ancestral property and his son(s) will take interest in it.

48. In so far as the properties at paras 1.[6] to 1.13 of the plaint are concerned, again there is divergent stands taken by the parties. Though, the plaintiff alleges that the said properties were purchased from the sale proceeds of some of the ancestral properties but at the same time it is the case of defendant no.1 that some of the properties, particularly, the properties at paras 1.8, 1.[9] and 1.12 of the plaint were purchased even before the partition deed dated 03.02.1995.

49. Likewise, it was also argued on behalf of defendant no.1 that the defendant no.1 has been able to obtain a copy of the sale deed dated 11.03.2010 of shop no.77, the sale proceeds of which have purportedly been used, as contended by the plaintiff, to purchase the properties at paras 1.[6] to 1.13 of the plaint, which would show that the said shop was sold even after purchase of properties mentioned at paras 1.6, 1.10, 1.11 and 1.13 of the plaint.

50. In any case, there is no direct evidence to establish that the properties at paras 1.[6] to 1.13 of the plaint were purchased from the sale proceeds of Shop nos. 116 and 77, Main Bazar, Najafgarh, New Delhi, therefore, at this stage it difficult to form an opinion, even prima facie, that the said properties are also ancestral properties, having been purchased from the common nucleus.

51. Even if the said properties at paras 1.[6] to 1.13 of the plaint are held to be self-acquired properties, the plaintiff may still have a share in that, in case the plaintiff succeeds in proving its alternative plea that Late Mahabir Prasad Jain was not in sound disposing state of mind and lacked capacity to understand the nature and character of documents (i.e. gift deeds/relinquishment deed). As regards the said submission of plaintiff as articulated by Mr. Jain, this Court prima facie finds some merit in the same, in as much as the medical prescription of Late Mahabir Prasad Jain dated 28.08.2021 issued by Dr. Rajesh Gupta of Max Hospital reveals that Late Mahabir Prasad Jain was diagnosed to be suffering from dementia with history of forgetfulness of 02 years and disease being progressive.

52. Incidentally, the defendant no.1 has denied the existence of any such medical prescription or diagnosis and has contended that said medical prescription is a forged document and does not belong to Late Mahabir Prasad Jain as the address mentioned in the tax invoice dated 28.08.2021 issued by Max Hospital against purchase of medicine mentions the address of “Dehradun, Nada, Uttarakhand” which had no concern with Late Mahabir Prasad Jain.

53. The Court has perused the three documents filed by the plaintiff viz.

(i) invoice dated 28.08.2021 generated at 02:22 pm, (ii) the prescription of Dr. Rajesh Gupta dated 28.08.2021 generated at 02:58 pm, and (iii) tax invoice dated 28.08.2021 generated at 03:00 p.m. The document at serial no.(i) i.e. invoice dated 28.08.2021 issued at 02:22 p.m. shows that apart from registration charges, the fee of consultant i.e. Dr. Rajesh Gupta has also been charged. The said invoice mentions the address of Late Mahabir Prasad Jain as 558, Chara Mandi, Najafgarh, which address has not been disputed by defendant no.1. The prescription of Dr. Rajesh Gupta at serial no.

(ii) above bears the time 02:58 p.m. which is in the correct sequence i.e., after the payment of registration charges as well as his fee, vide above said invoice generated at 02:22 pm. Further, the Patient ID in the said invoice, as well as, the prescription of Dr. Rajesh Gupta is also the same. Besides that Mr. Jain had also stated that the mobile number given in the invoice is of the son of defendant no.1, which position was again not disputed on behalf of defendant no.1. Therefore, this Court is prima facie of the view that the prescription of Dr. Rajesh Gupta, wherein he has recorded the provisional diagnosis as dementia, as well as, chief complaints to the effect that the patient suffering from forgetfulness for 02 years – progressive - tends to forget recent events with preserved memory for past events associated with decreased interaction and irritability, does not appear to be forged document, and the same pertains to Late Mahabir Prasad Jain, the father of the plaintiff and defendant no.1.

54. In so far as the mention of “Dehradun, Nada, Uttarakhand - 248124” on tax invoice dated 28.08.2021 generated at 03:00 p.m. is concerned, it is to be noted that said invoice also clearly records the address of the patient as 558, Chara Mandi, Najafgarh, though it additionally mentions “Dehradun Nada Uttarkhand”, which prima facie appears to be a typographical error, especially when the hospital ID on the said tax invoice is the same as mentioned on the other invoice dated 28.08.2021, as well as, on the doctor’s prescription of the even date. That apart, the tax invoice also bears the same mobile number as given in the other invoice, which is stated to be the number of defendant no.1’s son, which submission of plaintiff has remained uncontroverted.

55. Thus, the plaintiff has made out a prima facie case that Late Mahabir Prasad Jain was suffering from dementia since at least August 2021 with the history of progressive forgetfulness for past 02 years. Therefore, the submission of the plaintiff that Late Mahabir Prasad Jain was not in sound disposing state of mind and lacked capacity to understand the nature and character of documents (i.e. gift deeds/relinquishment deed) which he executed within a short span of three months i.e. December 2021 to February 2022, cannot be negated at this stage.

56. Now coming to the objection of defendant no.1 as regards the limitation, it is to be noted that though the impugned gift deeds/rectification deed were executed between December 2021 to February 2022 but in the plaint the plaintiff has claimed knowledge of the said documents on 26.05.2025, when the consultant namely, Sh. Rakesh Sehrawat hired by the plaintiff informed him about the impugned documents on 26.05.2025, which was followed by obtaining of certified copies on 29.05.2025 and 03.06.2025.

57. On the above aspect, the contention put forth by the defendant no.1 is that the said consultant was hired only to look for Wills which are Book-3 documents, therefore, he could not have chanced upon the gift deeds which are Book-1 documents. In response, Mr. Jain had contended that though the consultant was hired to find out about the existence of any Will but he undertook a comprehensive search about any documents that may have been executed by Late Mahabir Prasad Jain and discovered about the execution of impugned gift deeds. On simple reading of averments in the plaint, the suit does not appear to be patently barred by limitation, rather in the factual matrix of the present case, the limitation appears to be a mixed question of fact and law, requiring trial and cannot be decided summarily.

58. Likewise, the intention which the plaintiff wants this Court to gather from the MoU dated 18.03.2014 is also a question of fact requiring leading of evidence. Since this Court is otherwise, inclined to grant interim relief to the plaintiff, contention of the plaintiff based on the MoU is left open for deliberation at the time of final arguments after conclusion of evidence.

59. Bearing in mind, the holistic conspectus of the case, this Court is of the view that the plaintiff has made out a prima facie case for grant of interim relief.

60. The present suit has been filed impugning the gift deeds and claiming partition of the suit properties. If an interim relief is not granted and the suit properties are alienated during the pendency of the suit, then in the event of plaintiff succeeding in the suit, nothing would be available for partition. Therefore, the balance of convenience is in favour of the plaintiff. Further, I am also of the view that the plaintiff will suffer an irreparable loss, in case the interim relief is not granted.

61. Accordingly, the defendants are restrained from selling, alienating or in any other manner creating third party interest in the suit properties, during the pendency of present suit.

62. The application is allowed and disposed of in the above terms.

VIKAS MAHAJAN, J JULY 08, 2026 N.S. ASWAL/dss