Vivek Gupta v. Vinod Gupta & Ors.

5. Sometime between 1972 and 1974, the construction of the suit property comprising of ground floor and first floor, aside from garage and a servant quarter, was completed at a total cost of Rs. 2,51,000/-. The construction cost of Rs. 2,51,000/- was raised by taking a loan of Rs. 1,00,000/- from LIC; Rs. 16,000/-from deposits by others and Rs. 1,35,000/was contributed by Shri Braham Vira Gupta from his individual funds. The Completion Certificate dated 09.03.1978 was obtained from the Municipal Corporation of Delhi.

6. The members of HUF occupied the ground floor, while the first floor was initially rented out in 1975 at a rent of Rs. 1,100/- per month. The first floor was given to tenants till 01.10.1990. The rental income from the first floor of the suit property had been utilised to meet the liabilities, like water, electricity, property and other taxes and to pay off partly the loans which mentioned above to raise construction of the suit property. Thereafter, in 1990, defendant No. 1-Vivek Gupta occupied a portion of it and continues to be in occupation thereof. However, the sum of Rs. 1,35,000/- that was paid by the plaintiff-Braham Vira Gupta in his individual capacity, remained outstanding in the HUF account.

7. Smt. Kamla Gupta, wife of the plaintiff-Braham Vira Gupta, died on 09.08.1988 and all her rights as a coparcener in HUF, got extinguished.

8. The plaintiff No. 1(a)-Vivek Gupta wrote a Letter dated 11.04.1991 addressed to plaintiff-Braham Vira Gupta, Karta of HUF, expressing his desire to effect a total partition of the assets of HUF, by metes and bounds. This letter had the effect of disrupting/severing the joint status and dissolution the HUF w.e.f. the said date, whereby converting the members of HUF from joint owners to co-owners as tenants-in-common. The plaintiff No 1(b)-Dr. Ved Gupta, being the unmarried daughter of the family, also became entitled to a share in the family property.

9. The plaintiff-Braham Vira Gupta also thought it proper to partition HUF properties by metes and bounds during his lifetime to maintain peace amongst the family members. He thus, proposed the partition of immovable property vide his Letter dated 20.04.1991, and intimated the plaintiff NO. 1(a)-Vivek Gupta about it, while the copies of the Letter were forwarded to the other members of the family i.e., defendant No. 1-Vinod Gupta and plaintiff No. 1(a)-Dr. Ved Gupta. The Partition Plan separately earmarking the portion of each family, was proposed in a manner to maintain the possession of different members of the family in their defined portions. To facilitate proper utilization and unhindered access to the respective portions, it was also indicated that plaintiff No.1(b)-Dr. Ved Gupta would construct a separate spiral staircase for her two rooms on the first floor, without passing through the portion allotted on the first floor, to defendant No. 1-Vinod Gupta.

10. The liabilities of HUF were to be borne proportionately. Besides dividing the said house, following moveable assets and liabilities were also partitioned: - Assets:

1. Balance in Indian Overseas Bank Darya Ganj Branch, A/c No. 10126 Rs. 12,403.74/-

2. National Saving Certificates (a) No. 448080 (face value) Rs.5,000.00 (b) No. 728206 dated 28.03.1987 Rs.1,000.00

(c) No. 665591 dated 18.03.1988 Rs.5,000.00

(d) No. 720079-80 dated 30.03.1989 Rs.2,000.00 Rs. 13,000.00

3. National Savings Scheme Deposit A/c in Lodhi Road Post Office Rs.25,000.00 Interest Rs. 01,100.00 Rs.26,100..00

4. SBI Mutual Fund Certificate No. 2006771611- 2006771740 dated 29.03.1989 Rs.13,000.00

5. CDS Rs.01,470.70 Total Rs.65,974.44 Liabilities: Deposit of Rs.1,35,000/- from Shri Braham Vir Gupta (as individual) along with interest. The figure after including interest at rates varying from 10% at the beginning to 20% now with quarterly rests should be about Rs.14.[5] lakhs today. This is the liability of the HUF and has to be paid to the plaintiff as an individual.

11. Sh. Braham Vira Gupta further stated that he was the absolute owner of the following properties: -

(i) Deposit with HUF, namely, B.V. Gupta & Sons along with interest about 14.[5] lakhs,

(ii) Deposit with Metropolitan Book Co Pvt Ltd. about Rs. 1 lakh,

(iii) Shares of Metropolitan Book Co Pvt Ltd 150 shares of Rs. 100

(iv) National Saving Certificates about Rs. 50,000/-,

(v) Deposit under National Saving Scheme about 50,000/-,

(vi) Jewellery about 10 tolas,

(vii) Household goods about Rs. 1 lakh,

(viii) Share of Mutual Funds about Rs. 30,000/-,

(ix) Bank balance about Rs. 1 lakh.

12. The plaintiff also stated that there are also tenancy rights in respect of the Darya Ganj property which was originally owned by him in his individual capacity and subsequently came to be held by Metropolitan Book Company Private Limited. However, the tenancy rights never became the HUF property.

13. Sh. Vinod Gupta, defendant No. 1 wrote a Letter dated 23.04.1991 expressing his disagreement with the Partition Plan and challenged the share of plaintiff No. 1(b)-Dr. Ved Gupta, daughter, and claimed a share for the grandson (his son), as coparcener by birth. The plaintiff tried to discuss the matter with him but Sh. Vinod Gupta remained adamant and refused to see reason. He disputed the partition and even attempted to take possession of the portions allotted to other members of the family, by using physical force. He hurt the plaintiff-Braham Vira Gupta the most by telling him that he was a guest for a few days and thereafter, the partition would be cancelled and the property divided in two equal shares between him and his brother, Vivek Gupta, plaintiff No. 1(a) while the daughter, Dr. Ved Gupta, plaintiff NO. 1(b), would be asked to leave and get the Government accommodation allotted to herself.

14. The Plaintiff asserted that defendant Nos. 3/ Master Rahul Gupta and 4/Master Pranav Gupta i.e. the minor sons of defendant No. 1/Sh. Vinod Gupta and defendant No. 7/ Master Vaibhav Gupta i.e. the minor son of defendant No. 5/ Sh. Vivek Gupta are not entitled to any separate share as the distribution of the property has to be effected per stirpes. They only have a share in the portion allotted to their respective father. Since defendant NO. 1-Vinod Gupta in his Letter dated 23.04.1991, had claimed a share for them, they have also been impleaded as a party in the present Suit.

15. The plaintiff-Braham Vira Gupta thus, filed the present Suit for Partition by Metes and Bounds as per the Partition Plan drawn by him in his capacity as father and Karta/Manager of the HUF. He also sought the Injunction that the defendant No. 1-Vinod Gupta be also restrained from taking possession of any portion of the house allotted to other members of the family. The Declaration is also sought that the Partition of the suit property has been effected in accordance with the Partition Plan which had become final and binding. The directions are also sought to be given that the balance assets be partitioned and the liabilities of the HUF be cleared and in the event of a shortfall, declare the distribution of the liabilities.

16. The defendant Nos. 1 to 4 in their joint Written Statement have taken the Preliminary Objections that the plaintiff-Braham Vira Gupta has referred to many documents and accounts in his Plaint, but those documents have not been placed on record or supplied to the answering defendants. Further objection has been taken that the plaintiff No. 1(b)-Dr. Ved Gupta, being the unmarried daughter of the plaintiff-Braham Vira Gupta, is not entitled to any share, right, title and interest in the suit property, nor can she claim partition of the same. Without prejudice, it was asserted that a Flat has already been purchased in a prestigious colony in New Delhi, in the exclusive name of the daughter from which she is getting a good rental income. She has also other properties in and around Delhi. The joint property of the family is the nucleus of the HUF, and the properties in the name of the plaintiff No. 1(b)-Dr. Ved Gupta is also a joint family property.

17. It was further claimed that the present Suit is collusive and has been filed by the plaintiff-Braham Vira Gupta under the pressure and coercion of the defendant No. 6-Anita Gupta, plaintiff No. 1(a)-Vivek Gupta and plaintiff No. 1(b)-Dr. Ved Gupta, in order to deprive the answering defendants of their legitimate shares in the joint properties and assets.

18. Further objection was taken that the Suit has not been valued correctly for the purpose of court fee and jurisdiction which is payable ad valorem on the basis of the value put by the plaintiff-Braham Vira Gupta on the various assets.

19. It is also claimed that the Suit is misconceived and is not maintainable.

20. On merits, it was denied that the business of publishing and sale of books was owned by the plaintiff-Braham Vira Gupta in his individual capacity. It is claimed that it is a family business which was started and run with the ancestral funds. The grandfather of the defendant No. 1-Vinod Gupta had left huge capital. The ancestral property at Jalandhar was sold and funds therefrom had been utilised by the plaintiff-Braham Vira Gupta in the said business. The defendant No. 1-Vinod Gupta since his childhood while he was studying, had been assisting the plaintiff-Braham Vira Gupta in the said business which was subsequently converted into a Private Limited Company in which the uncles of the defendant No. 1-Vinod Gupta had also actively participated and major capital was invested by them. Shri O.P. Aggarwal was the Chairman of the Board of Directors of the aforesaid Company. The plaintiff-Braham Vira Gupta and another uncle of defendant No. 1-Vinod Gupta, namely, Shri D.V. Aggarwal were the Directors of the said Company. The defendant No. 1-Vinod Gupta was also associated with the aforesaid business even after it was converted into a Private Limited Company. The investment of the capital of the plaintiff-Braham Vira Gupta in the aforesaid business, was much less as compared to the other uncles of defendant No. 1-Vinod Gupta. Metropolitan Book Private Limited Company and other moveable properties of the family are the joint properties of the HUF.

21. The defendant No. 1-Vinod Gupta has further asserted that the loan had been taken from various relatives and friends; even he contributed financially to repay the loan of LIC and to increase the capital holdings of the plaintiff-Braham Vira Gupta and other family members over a period of time. In the process, the capital holdings of the plaintiff-Braham Vira Gupta and the family members increased to a point of consolidation in the aforesaid business. The net result is that none of the uncles of defendant No. 1-Vinod Gupta have any share in the said business.

22. The defendant No. 1-Vinod Gupta has claimed that he is a qualified Engineer, is a technical man and had taken higher education from America and obtained Masters Degree in Engineering and Management during the period from 1969 to April, 1974 on his own. Prior to going to America, he was employed in Philips India for a year and the entire income of about Rs. 12,000/- p.m. was given to the plaintiff-Braham Vira Gupta which was withdrawn by plaintiff-Braham Vira Gupta through Cheque dated 10.01.1974 under the signatures of defendant No. 1-Vinod Gupta. Despite all the efforts, the plaintiff-Braham Vira Gupta who is the eldest member of the family for whom the answering defendants have great respect, has deliberately not disclosed the complete and correct facts in the Plaint.

23. While defendant No. 1 was in employment in America, the father plaintiff-Braham Vira Gupta suffered a heart attack and he was asked to cut short his promising career and to return to India to help him in the business, etc. At that time, the suit property was under construction, which he got completed at the cost of his career. Alongside getting the construction completed, he also attended the business of the Company.

24. Subsequently, after the construction of the suit property was completed and also other matters were settled, the plaintiff-Braham Vira Gupta wanted defendant No. 1-Vinod Gupta to settle and accept a job in India. Thereafter, he joined BHEL, a Public Sector Company, in which he served from 1975 to 1978, as a Marketing Engineer. The substantial earnings of the defendant No. 1-Vinod Gupta were put at the disposal of the plaintiff-Braham Vira Gupta who utilised the same exclusively. All the earnings of the defendant No. 1-Vinod Gupta were withdrawn by the plaintiff-Braham Vira Gupta through Cheques signed by the defendant NO. 1-Vinod Gupta. The earnings during the aforesaid period was more than Rs. 90,000/-.

25. On one occasion, a Cheque of Rs. 17,000/- was issued by defendant No. 1-Vinod Gupta from his own earnings on the asking of the plaintiff- Braham Vira Gupta, to repay the instalment of LIC.

26. It is further asserted that the HUF was formed to save taxation burden and for the benefit of the male members of the family; only for this reason, it was named as “Braham Vira Gupta & Sons” instead of “Braham Vira Gupta & Family”. It is denied that the plaintiff-Braham Vira Gupta had taken out money from his individual accounts and put in the HUF hotchpotch. It is also denied that the plaintiff No. 1(b)-Dr. Ved Gupta, the unmarried daughter, ever became the member of HUF or that she is entitled to any share in the HUF properties.

27. It is denied that there was no coparcenary property. The business as well as the property in question, was claimed to be the coparcenary property.

28. The defendant No. 1-Vinod Gupta has asserted that only fault committed by him is that the parents of his wife, defendant No. 2-Anju Gupta did not give any impressive dowry at the time of marriage in 1978 and the plaintiff No. 1(b)-Dr. Ved Gupta, the daughter, is still unmarried.

29. It is submitted that the first floor of the suit property remained under the occupation of various tenants one after other from 1975 till 31.09.1990. The entire rent paid by the tenants was collected by the plaintiff-Braham Vira Gupta and utilised by him for meeting the liabilities of the suit property, to enhance the business and to increase his own capital holding in the family business. The entire suit property, except the first floor which remained in occupation of the different tenants, was enjoyed and occupied by him, plaintiff No. 1(a)-Vivek Gupta and plaintiff No. 1(b)-Dr. Ved Gupta since

1978. The rental income of the portion which remained in their occupation was more than Rs. 30,000/- to Rs. 40,000/- per month which has been enjoyed by them without single paisa credited to the account of the joint family, while the answering defendant Nos. 1 to 4 were made to leave the suit property. The plaintiff-Braham Vira Gupta along with Vivek Gupta and Dr. Ved Gupta, have not only enjoyed the joint property during this period, but have also made capital and increased the capital holding in the business and have also acquired additional properties in the name of plaintiff NO. 1(b)-Dr. Ved Gupta, plaintiff No. 1(a)-Vivek Gupta, defendant No. 5-Anita Gupta and defendant No. 6-Master Vaibhav Gupta, the wife and son of Sh. Vivek Gupta.

30. The Defendant along with his family, had to live in a rented accommodation from 1978 till September, 1990 for which the rent paid for this period by them, was more than Rs. 2,00,000/-.

31. The answering defendants Nos. 1 to 4 have claimed that this Suit has been filed only in respect of the one property i.e., the suit property. The Suit is not maintainable as all other properties and business are also liable to be made subject matter of the Suit and partitioned. The defendant No. 1-Vinod Gupta continues to have equity shares of Rs. 5,000/- only in the family business, whereas the shareholding of the plaintiff-Braham Vira Gupta and the plaintiff No. 1(a)-Vivek Gupta has substantially increased and has been consolidated. In fact, Vivek Gupta had no share at all and now he is holding a huge amount in the aforesaid business.

32. The defendant No. 1-Vinod Gupta has further claimed that the HUF has not been dissolved and continues to be in existence. The joint properties have not been partitioned till date and plaintiff No. 1(a)-Vivek Gupta and plaintiff No. 1(b)-Dr. Ved Gupta continue to be in possession of the joint properties, assets and business which is required to be partitioned properly and the share of the answering defendant Nos. 1 to 4 be paid to them. Moreover, the plaintiff No. 1(b)-Dr. Ved Gupta, being the unmarried daughter, has no right in the coparcenary properties belonging to HUF.

33. The defendants have further claimed that the partition that was proposed by the plaintiff/Sh. B.V. Gupta, was neither fair nor equitable and was outrightly rejected by defendant No. 1-Vinod Gupta, which fact is admitted by the plaintiff/Sh. B.V. Gupta. Therefore, the proposed partition has no existence in the eyes of law and is totally illegal, unlawful, invalid and unfair to the replying defendant Nos. 1 to 4. The proposed partition even otherwise, only relates to one property i.e., the suit property, with no reference to the other properties in the name of the plaintiff/Sh. B.V. Gupta and other defendants, which also are the properties of HUF.

34. The defendant Nos. 1 to 4 have denied that Rs. 14,50,000/- are due to the plaintiff-Braham Vira Gupta from the HUF. No such claim had been made by the plaintiff-Braham Vira Gupta in his Letter dated 20.04.1991 written to the defendant No. 1-Vinod Gupta. The defendant Nos.[1] to 4 are in possession of the first floor as well as the terrace. It is denied that the defendant Nos. 1 to 4 have ever tried to take possession from the other parties by force. On the other hand, it is the plaintiff-Braham Vira Gupta, plaintiff No. 1(a)-Vivek Gupta and plaintiff No.1(b)-Dr. Ved Gupta tried to forcibly dispossess him from the use of terrace.

35. The defendant Nos. 1 to 4 have thus, asserted that no declaration of partition can be given in favour of the plaintiff/Sh. B.V. Gupta, as no partition till date has taken place and all the properties and the assets continue to be HUF property.

36. It is, therefore, submitted that the Suit of the plaintiff/Sh. B.V. Gupta is vexatious and is liable to be dismissed.

37. The plaintiff No. 1(b)-Dr. Ved Gupta in her Written Statement (as she was initially impleaded as Defendant No.8 before transposition as plaintiff No. 1 (b) vide Order dated 29.09.2011) has supported the case of the plaintiff-Braham Vira Gupta. She has stated that the portion allotted to her which are rear two rooms with attached bath on the first floor and terrace floor, belongs to her. The defendant No.1-Vinod Gupta and his wife have been obstructing her from using this portion including the terrace, which is in her possession.

38. It is claimed that the partition by metes and bounds was effected by the father in a fair and proper manner. Even if for the sake of arguments, it is to be ignored, the entitlement of the plaintiff No. 1(b)-Dr. Ved Gupta as a daughter, cannot be denied and she is entitled to 1/4th share of the suit property. As a counter claim, the plaintiff No. 1(b)-Dr. Ved Gupta has asserted that the Declaration be given as she is the owner of two rooms on the rear side of the first floor and also the terrace with proportionate rights in the land underneath, in the Suit property.

39. The plaintiff-Braham Vira Gupta in his Replication has reasserted the assertions made in the Plant.

40. During the pendency of the Suit, the plaintiff-Braham Vira Gupta died on 19.10.2010, leaving behind a Will dated 20.04.1998, whereby he bequeathed his entire property, whether HUF or Individual, to the plaintiff No. 1(a)-Vivek Gupta. The defendants Nos. 5 Vivek Gupta and Defendant No.8, Dr. Ved Gupta, were transposed as plaintiffs No. 1(a) - & (b) vide Order dated 29.09.2011.

41. The plaintiff No. 1(a)-Vivek Gupta has, therefore, filed the TEST CAS. 62/2012 seeking Probate of the Will dated 20.04.1998.

42. The issues were framed in this case vide Order dated 05.12.2000, as below: 1: Whether suit has been properly valued for purposes of court fee and jurisdiction? OPP 2: Whether suit property is the joint family property of the HUF Brahm Kumar Gupta and sons? 3: What are the properties owned by the HUF Brahm Kumar Gupta and sons? 4: Whether the plaintiff is exclusive owner of properties mentioned in paragraph 32 of the plaint? 5: Whether the suit property was partitioned amongst the parties? 6: Whether the plaintiff was competent and authorised to partition of the property on the request of defendant No.5. If so, to what effect? 7: Whether defendant No.8 is entitled to a share in the suit property by way of maintenance and expenses of marriage? 8: Whether defendants 1 to 4 are entitled to share in the suit property? 9: Whether defendant No.1 has trespassed into any portion of the suit property? 10: Whether regular accounts of the expenditure are maintained by the HUF upto the date of resolution? 11: Relief?

43. Submissions Heard and the record along with all the evidence perused.

44. The issue-wise findings are as follows: ISSUE NO. 1: Whether suit has been properly valued for purposes of court fee and jurisdiction? OPP

45. Mr. Vinod Gupta, the defendant No. 1 had died on December, 2013. The defendant Nos. 2 to 4 were legal heirs of the defendant No. 1, who were already a party and the name of the defendant No. 1 was deleted. The Suit thereafter has been contested by the defendant Nos. 2 to 4.

46. The defendant Nos. 2 to 4 in their Written Submissions, have stated that they are not pressing this Issue. Accordingly, it is disposed of as not pressed.

ISSUE NO. 2: Whether suit property is the joint family property of the HUF Brahm Kumar Gupta and sons? ISSUE NO. 3: What are the properties owned by the HUF Brahm Kumar Gupta and sons?

47. In the Written Synopsis of the defendants No.2 to 4, who are L.R's of defendant no. 1-Sh. Vinod Gupta, it is mentioned that the BV Gupta & Sons, the HUF, possesses and owns the following movable and Immovable properties: a. E-550 Greater Kailash Part II, New Delhi (which is in the name of said HUF); b. Plot of land D-2/4, DLF Model Town Sector 10, Faridabad (which is in the name of Ms. Ved Gupta) c. Flat in E-796 C.R.Park, New Delhi which is in the name of Ms. Ved Gupta. d. Amounts mentioned in paragraph 23 of the plaint; e. Properties mentioned in paragraph 32 of the plaint; f. Cosmopolitan Book Company Pvt. Ltd. assets and shareholdings thereof. E-550 Greater Kailash Part II, New Delhi (which is in the name of said HUF):-

48. All the parties to the Suit have admitted that the GK-II Property was owned by HUF, Mr. Braham Kumar Gupta and Sons. Amounts mentioned in paragraph 23 of the plaint:-

49. As regards properties mentioned in paragraph 23 of the Plaint, it has been claimed that there were other Moveable Assests and liabilities of HUF, Bharam Vir Gupta and Sons which are as under:- Assets:

1. Balance in Indian Overseas Bank Darya Ganj Branch, A/c No. 10126 Rs. 12,403.74/-

2. National Saving Certificates (a) No. 448080 (face value) Rs. 5,000.00 (b) No. 728206 dated 28.03.1987 Rs.1,000.00

(c) No. 665591 dated 18.03.1988 Rs. 5,000.00

(d) No. 720079-80 dated 30.03.1989 Rs.2,000.00 Rs. 13,000.00

3. National Savings Scheme Deposit A/c in Lodhi Road Post Office Rs.25,000.00 Interest Rs. 01,100.00 Rs.26,100..00

4. SBI Mutual Fund Certificate No. 2006771611- 2006771740 dated 29.03.1989 Rs.13,000.00

5. CDS Rs.01,470.70 Total Rs.65,974.44 Liabilities: Deposit of Rs.1,35,000/- from Shri Braham Vira Gupta (as individual) along with interest. The figure after including interest at rates varying from 10% at the beginning to 20% now with quarterly rests should be about Rs.14.[5] lakhs today. This is the liability of the HUF and has to be paid to the plaintiff as an individual.

50. At the outset, apart from a bald assertion of the Plaintiff, in paragraph 23 of the Plaint, that after dividing the said house the moveable assets and liabilities were also partitioned, there is nothing on record to show that these moveable assets and liabilities were of the HUF. No evidence has been led by any party to trace the source of these purported assets or liabilities of the HUF and no documents/ account books are filed to establish that these were ever the HUF assets.

51. So much so that even in the Reply on merits in the Written Statement of Defendant Nos. 1-4, the defendants have merely denied the contents of the above paragraph of the Plaint to submit that no deposit of Rs 1, 35,000/-was made by the plaintiff/Sh. B.V. Gupta in his individual capacity, or that the plaintiff was entitled to any amount. Pertinently, there are no pleadings even in the Replication to show the source/ownership of these assets as mentioned in the Plaint.

52. The fact that there were no other HUF properties, apart from the immovable GK property, is clearly discernible from the Letters exchanged between the father and his children, with respect to Partition of the HUF assets.

53. Firstly, the Ex-PW1/A - Letter seeking Partition dated 11.04.1991, addressed to Shri B.V. Gupta by Vivek Gupta, records that “I hereby express my desire that the total partition of the assets of the aforesaid H.U.F. namely Braham Vira Gupta & So

54. ns must be effected with immediate effect by metes and bounds.” Clearly, the only property/asset of the HUF is mentioned as the GK property.

55. Further, even Ex.-PW1/B, the Letter Proposing Partition dated 20.04.1991, by Sh. B.V. Gupta (father/Karta), whereby “the total partition of all assets of the HUF was effected from 11.04.1991” refers only to the immovable GK property as the only asset of the HUF and the Partition Plan annexed thereto shows a division of this immoveable property only. There is not a whisper of any movable assets or liabilities and thus, the only logical conclusion would be that there were no other HUF property existing at the time of Partition, apart from the immoveable GK Property.

56. This view is further supported by the contents of Ex. PW1/E, Letter of Objection to the partition of the HUF, dated 23.04.1991, addressed to Shri B.V. Gupta by Sh. Vinod Gupta. This letter records the objections of Vinod Gupta which are only with respect of the immoveable GK Property and that the division of the immoveable property is unfair. If there were other assets which were not divided, Sh. Vinod Gupta would have expressed his objection to the same as well or would have mentioned that a total partition has not been effected by his Father.

57. Lastly, the Ex.-PW1/D, the Letter dated 07.05.1991, addressed by Shri. B.V. Gupta to his children, records that “I would like to clarify that the division of property is made after considering everything and taking the interest of all children in account who are equal to me, I have made a fair division of house, the only asset of the HUF.”

58. Thus, it becomes more than evident that there were no other HUF properties/assets, either moveable or immovable, owned by the HUF B.V. Gupta and Sons. Plot of land D-2/4, DLF Model Town Sector 10, Faridabad (which is in the name of Ms. Ved Gupta); Flat in E-796 C.R.Park, New Delhi which is in the name of Ms. Ved Gupta:-

59. It has already been established that the only property owned by the HUF was the immoveable GK-II property.

60. However, the Defendants have stated that the properties of Defendant no. 8 have been purchased from the funds that accrued to the HUF from the rental income that HUF got from the 1st floor of the suit premises.

61. Admittedly, the properties are in the name of Dr. Ved Gupta and the only ground of contest is that the property had been purchased using HUF funds. Pertinently, there is no evidence led to show how payments for purchase of those properties were made and there are no accounts in respect of the manner of utilization of the amounts/monies received /recovered from the tenants of the suit property by the defendants. The contesting Defendants have not even filed any counterclaim for rendition of accounts of HUF. No evidence by way documentary proof or otherwise has been led to show that the nucleus of the HUF was sufficient to have acquired any properties whatsoever; let alone the properties stated to have been held by Dr. Ved Gupta in her own name.

62. In the evidence of Sh. B.V. Gupta, only a suggestion was put to him that the immovable properties in the name of Ved were purchased from the funds of the joint family, which was categorically denied by him.

63. It is also established by Late Sh. B.V. Gupta that the rent from the first floor was Rs. 1,200/- per month which was utilised in the maintenance of the property i.e. to pay the water and electricity charges and for paying taxes etc.

64. Dr. Ved Gupta had filed her Additional Affidavit in compliance of Order dated 12.09.2012 and had filed documents therewith including bank statements /allotment letters received, conveyance deeds and loan accounts to show how she had purchased the properties in question.

65. She had deposed that the property No. E-796, CR Park, New Delhi and plot of land at Faridabad being No. D-2/4, DLF, Model Town, Sector 10, Faridabad are both her self- acquired properties.

66. The purchase of plot of land at D-2/4, DLF Model Town, Sector 10, Faridabad is from her own funds is sufficiently proved by the following documents:a) Receipt dated 26.10.1979 (Annexure A[1]) whereby she paid to DLF a sum of Rs.2,000/- in cash and Rs.4,000/- by account payee cheque No.0012021 dated 24.10.1979 drawn on Bank of India; b) Receipt issued by DLF dated 21.11.1979, (Annexure A-

2) recording the Payment of a sum of Rs.38,000/- vide Bank draft No.0012100 dated 21.11.1979 drawn on Bank of India, CR Park Branch, New Delhi. c) Registered Final Conveyance Deed dated 01.08.1992 (Annexure A[3]); d) Statement of payments made to DLF along with photocopy of my bank passbook [ Annexure A-4 (Colly.)]

67. It has further come on record that the House No. E-796, CR Park, New Delhi, was bought from the sale proceeds of another flat she had purchased while she was working in the Parliament House and applied for a Flat in the Rajya Sabha Secretariat Employees Co-operative Group Housing Society Ltd. Consequently, an Agreement dated 06.01.1990 (Annexure A-5) was signed just prior to handing over of possession. The Group Housing Society had raised loan on behalf of its members, the Certificates (Annexure A-6 (Colly.)) certify that the recoveries were made from the account of Dr. Ved Gupta. This is also supported by the Passbook evidencing payments placed on record as Annexure A-7 and Annexure A-8 (Colly). This Flat was sold vide Agreement to Sell dated 06.05.1999 and the Flat No. E-796, Ground Floor, C.R. Park, New Delhi was acquired, from M/s Anshit Builders and Homfin Co. Pvt. Ltd., for a total sale consideration of Rs. 8 Lakhs which was paid by way of two cheques i.e. Rs. 2 lakhs dated 5 May, 1999 and Rs.[6] lakhs dated 06.05.1999 [Annexure A-9 (Colly.] and the same is also reflected from the statement of payments and bank passbook [Annexure A- 10 (Colly.)].

68. Admittedly, Dr. Ved Gupta was a government doctor by profession and was earning Rs. 50,000/- per month. She is not married and therefore, by the own admission of Defendants No. 1 & 4 that she did not need to spend anything on maintaining a family, it is established that Ved had sufficient income to have created the properties in her name.

69. Thus, in light of the limited material placed on record and in the absence of any evidence coming forth from the contesting defendants to rebut the evidence adduced by Dr. Ved Gupta, it becomes evidently clear that these 2 properties were never purchased from the HUF funds and were self-acquired properties of Dr. Ved Gupta. Cosmopolitan Book Company Pvt. Ltd. assets and shareholdings thereof:-

70. It has been already established above that there were no other HUF properties apart from the suit property.

71. However, it has been claimed by the contesting defendants that even the Metropolitan Book Private Limited Company is a joint property of the HUF. It has been claimed that the business of publishing and sale of books was not the individual business owned by the plaintiff/Sh. B.V. Gupta but was a family business which was started using the ancestral funds. The grandfather of the defendant No. 1-Vinod Gupta had left huge capital. The ancestral property at Jalandhar was sold and funds therefrom had been utilised by the plaintiff/Sh. B.V. Gupta in the said business. The said business was subsequently converted into a Private Limited Company in which the uncles of the defendant No. 1-Vinod Gupta had also actively participated and major capital was invested by them. Shri O.P. Aggarwal was the Chairman of the Board of Directors while the plaintiff-Braham Vira Gupta and another uncle Shri D.V. Aggarwal, were the Directors of the said Company. The investment of the capital of the plaintiff-Braham Vira Gupta in the aforesaid business was much less as compared to the other uncles.

72. The defendant No. 1-Vinod Gupta has further asserted that the loan had been taken from various relatives and friends; even he contributed financially to increase the capital holdings of the plaintiff/Sh. B.V. Gupta and other family members, over a period of time. In the process, the capital holdings of the plaintiff/Sh. B.V. Gupta and the family members increased to a point of consolidation in the aforesaid business. The net result is that none of the uncles of defendant No. 1-Vinod Gupta have any share in the said business.

73. As already discussed above, there is no evidence forthcoming from the defendants to prove that there was any ancestral funds which were utilized by Sh. Brahm Vir Gupta for setting up the Publishing business or that the shareholdings were increased overtime by utilizing HUF Funds. Sh. Vinod Gupta, aside from making bald assertions of there being ancestral funds, has neither been able to give ang specific source or give any details or furnish any document in support of his assertions. Rather, he himself stated that he used to help his father in the business in the initial years, while he was still studying.

74. In compliance of Order dated 12.09.2012, Mr. Vivek Gupta also filed his Affidavit along with supporting documents, to show as to how M/s Metropolitan Book Co. Pvt. Ltd. is an asset of the HUF. Admittedly, the Company that was run by their father, was in fact, set up by him and when it was converted into a Private Limited Company, his brothers joined him. As Chairperson and the Directors. No evidence whatso ever has been led even. By examining the uncles, to prove that the business of publishing House was set up by the plaintiff by utilizing the money of the forefathers. The said Company was formed in the year l949; whereas the HUF was established in the year 1968.

75. A perusal of the Cross-examination of Mr. Vinod Gupta shows he did not know in which year M/s Metropolitan Book Co. Pvt. Ltd. was incorporated and he is not even aware of the respective shareholding of his uncles or father. He has not been aware that the larger shareholding belonged to his uncle, Shri O. P. Aggarwal who was the Chairman of the company. Thus, Sh. Vinod Gupta led no positive evidence to show that Metropolitan Book Co. Pvt. Ltd. belonged to the HUF. It rather stands established that the Company was set up by his father.

76. It is therefore, concluded from the evidence that only the GK property has been established to be the HUF property.

77. The Issue Nos. 2 and 3 are accordingly, decided.

78. The plaintiff, Mr. B.V. Gupta now represented by his son, Mr. Vivek Gupta (who was originally the defendant No. 5) and Dr. Ved Gupta, daughter, who was originally defendant No. 8, had taken a plea that the properties as mentioned in paragraph 32 of the Plaint, were his absolute properties. The paragraph 32 of the Plaint reads as under:- “32. Just to complete the narrative, the following properties are the properties of the plaintiff as an absolute owner and none of the defendants have any right, title or interest therein: i. Deposit with HUF, namely, B.V. Gupta & Sons along with interest about 14.[5] lakhs, ii. Deposit with Metropolitan Book Co Pvt Ltd. about Rs. 1 lakh, iii. Shares of Metropolitan Book Co Pvt Ltd 150 shares of Rs. 100 each, total face value Rs. 15,000/-, iv. National Saving Certificates about Rs. 50,000/v. Deposit under National Saving Scheme about 50,000/-, vi. Jewellery about 10 tolas, vii. Household goods about Rs. 1 lakh, viii. Share of Mutual Funds about Rs. 30,000/-, ix. Bank balance about Rs. 1 lakh. There is also the “tenancy rights” of Darya Ganj property. They were originally owned by the plaintiff as an individual capacity and then came to be held by the Metropolitan Book Company Private Limited. These tenancy rights never were, nor are, HUF property.”

79. From the aforesaid averments, it is evident that the plaintiff was claiming the money in the HUF Account and NSCs, jewellery, household articles and other properties as mentioned in paragraph 32 as his absolute property. The defendants Nos. 2 to 4 have not pressed this Issue and therefore, it is not accordingly decided as not pressed.

80. Therefore, the Issue is decided accordingly.

ISSUE NO. 5: Whether the suit property was partitioned amongst the parties? ISSUE NO. 6: Whether the plaintiff was competent and authorised to partition of the property on the request of defendant No.5. If so, to what effect?

81. Undeniably, the HUF Braham Vira Gupta and Sons was created by Late Sh. Braham Vira Gupta and the GK-II house was part of the HUF hotch potch. Mr. Vivek Gupta made the request for partition of the HUF House, in his Letter dated 20.04.1991, Ex.PW-1/B, which was accepted by Sh. Braham Vira Gutpa, the karta.

82. Historically, the Karta has held significant authority over the joint family matters, including the power to manage family assets, conduct business and make decisions that effected the entire family. This also included the special power to initiate or effectuate partition of the family property, either by distributing the shares to the coparceners or by exercising managerial control over the division.

83. In the case of P.N. Venkatasubramania Iyer And Ors. vs P.N. Easwara Iyer AIR 1966 MAD 266, it was observed that “even assuming that the partition made by the father was ineffective when challenged on grounds of partiality, inequality and fraud, still it has brought about a division between the members of the family. The father had power to effect the division in status and by metes and bounds. The shares had been allotted. The question is not whether there has been acceptance of the division by all the members, but whether there is in law separation in estate and interest. It may be that the allotments may not stand scrutiny and there may have to be readjustment, but the legal effect of the partition as altering the status of the family cannot be undone. After the division in status the joint family with its incidents comes to an end, erstwhile coparceners become tenants in common and the approach to the character of the acquisition has to be from the perspective.

84. Thus, the power of the father as karta of a joint family property to divide the joint family property during his lifetime, amongst his heirs in proportionate shares is well established and it is also no more res-integra that the consent of all the members is not necessary for the exercise of this power as the right to sever himself and sons, being a part of partriae potestas, is also recognized under Hindu Law. The same may be challenged later and the shares allotted may be re-adjusted, but the same effects severance of status of the family, which does not continue to remain “joint”.

85. Late Sh. B.V. Gupta being the karta of the HUF, had partitioned the Suit property i.e. GK-II House vide Letter dated 20.04.1991, in the manner provided in Ex.PW-1/1, the Site Plan that was annexed. However, in this Letter itself, it was written that while the request of partition made by Mr. Vivek Gupta vide his letter dated 11.04.1991-Ex.-PW1/A was accepted and the property was partitioned, but the partition by metes and bounds, was proposed to be done in accordance with the Site Plan, which was annexed along with the letter partitioning the suit property.

86. It is evident from the Letter itself that the partition of HUF was agreed to and the shares of each of the members of HUF i.e. deceased Mr. B.V. Gupta, Mr. Vivek Gupta, Dr. Ved Gupta and Mr. Vinod Gupta, the defendant No. 1 (now represented by the defendant Nos. 2 to 4), were held entitled to 1/4th share each in the GK-II (HUF property). However, the proposed partition by metes and bounds was not acceptable to the members of the HUF.In the present case, Mr. Vivek Gupta proposed the partition of the Suit Property by metes and bounds in accordance with the Site Plan that was annexed with the Letter Ex-PW1/B, but defendant No. 1 expressed his dissatisfaction to the proposed division vide Letter dated 23.04.1991, Ex.PW- 1/C and 07.05.1991, Ex.PW-1/D.

87. It is evident from the evidence and the supporting documents that though Mr. Braham Vira Gupta, the karta, had partitioned the HUF property as demanded by the Defendant No.1, leading to severance of HUF status, but partition by metes and bound never materialised.

88. Therefore, though the only aspect that remains is division of the HUF property of GK, by metes and bounds.

89. Issue No. 5 & 6 are decided accordingly.

ISSUE NO. 7: Whether defendant No. 8 is entitled to a share in the suit property by way of maintenance and expenses of marriage? OPP

90. The main question which requires consideration is who were the members of HUF and to which share each is entitled. According to Mr. Braham Vira Gupta, he had created the HUF which comprised of himself as Karta and his two sons, Mr. Vivek Gupta and Mr. Vinod Gupta. He had also asserted that his wife and his daughter, Dr. Ved Gupta, were also the members of coparcenary. Late Mr. Braham Vira Gupta, as well his, wife, have already died.

91. An objection had been taken by the defendants that the defendant NO. 8, Dr. Ved Gupta (now the plaintiff), being an unmarried daughter was not recognised as a co-parcener under the Traditional Hindu Law and could not claim partition or a share in the HUF properties, on partition. Under the Traditional Hindu Law, a coparcenary constituted of the male head and the male members of the family upto the third generation. The daughter and the mother were not recognised as co-parceners. Even though, deceased Mr. Braham Vira Gupta had stated that his wife and his daughter, were also members of coparcenary, but there is no document produced on record to show that they were included in the HUF.

92. However, a significant change in Law was brought by way of Amendment in 2005 in Section 6 of the Hindu Succession Act wherein a daughter was recognised as a co-parcener. Section 6 of the Hindu Succession Act, 1956 reads as under:- “6. Devolution of interest of coparcenary property- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener; Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or interstate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and..”

93. In the case of Vineeta Sharma vs. Rakesh Sharma (2020) 9 SCC 1, the Apex Court, while explaining the concept of “coparcenary”, opined that a Joint Hindu family is a larger body than a Hindu coparcenary. The prior consists of all persons lineally descending from a common ancestor and included their wives and unmarried daughters. A Joint Hindu family is one in worship and holds joint assets. After separation of assets, the family ceases to be joint.

94. However, the Hindu coparcenary is a much narrower body which consists of propositus and three lineal descendants. Before 2005, it included only those persons like sons, grandsons and great-grandsons who are the holders of joint property. Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great-grandfather. Property inherited from others, is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners. Coparcener heirs get right by birth.

95. Earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted Section 6 with effect from 9-9-2005 daughters are recognised as coparceners in their rights, by birth in the family like a son.

96. The Apex Court in the case of Vineeta Sharma (supra) also clarified the extent of daughters' rights to ancestral property in Hindu Undivided Families. It was observed that the daughters have the same rights and liabilities in a coparcenary as sons. The Hindu Succession (Amendment) Act, 2005, granted daughters the right to be coparceners in the ancestral property, whether they were born before or after the amendment. The rights of a daughter to inherit ancestral property as a coparcener are not contingent on whether the father was alive on the date of the amendment (i.e., the 2005 Amendment). The Amendment applies to all daughters, regardless of whether the father was alive when the amendment came into force. Daughters are thus, treated as coparceners with the same rights as sons in relation to the ancestral property. The rights of daughters to the coparcenary property arise at the time of their birth, and therefore, the provisions of the 2005 Amendment would apply retrospectively. This means that even daughters born before the Amendment came into effect, are entitled to coparcenary rights. Thus, it was reinforced that a daughter has the right to demand partition of the coparcenary property, just as a son does and also has the right to claim a share in the property upon partition. It is therefore, abundantly clear that the woman/ daughters have the equal status as a male coparcener and have same rights and entitlements.

97. Pertinently, it has been fairly conceded that in view of the Amendment, 2005 in the Hindu Succession Act and the Law as propounded by the Apex Court, a daughter is entitled to be a co-parcener in an HUF and also to a share in the HUF Property in case the partition has not been effected.

98. The question which now arises is whether after the Amendment, 2005, though the daughter becomes a coparcener, can she be held entitled to a share in HUF Property, which is already partitioned. In this context, proviso to sub-section 1 (c) to S.[6] is relevant, which provides that the daughter as a coparcener would become disentitle only if the partition has been effected a) by way of a registered Partnership Deed or b) by a decree of the Court.

99. This aspect was considered by the Apex Court in the case of Ganduri Koteshwaramma & Anr. vs. Chakiri Yanadi & Anr., (2011) 9 SCC 788 wherein it was observed that for the purpose of new Section 6 of the Hindu Succession Act, the partition means any partition made by execution of a Partition Deed duly registered under the Registration Act, 1908 or partition effected by the decree of the Court.

100. In the light of the clear provisions and the explanation appended to sub-Section 5 or Section 6 for determining the applicability of the Section, it becomes significant to find out whether before 20.12.2004, the partition had been effected in the manner as stated in the Explanation.

101. In the case of Vineeta Sharma (supra) while referring to S. Sai Reddy vs. S. Narayana Reddy & Ors., (1991) 3 SCC 647, it was further explained by the Apex Court that where only that in a Suit for Partition where the Court has passed only a preliminary decree and the property is not divided by metes and bounds, then it does not amount to a finalisation of a partition decree. In the interregnum i.e. after the passing of preliminary decree and before the final decree, the events and supervening circumstances may necessitate change in shares for which there is no impediment for the Court, to amend the Preliminary Decree or to re-determine the rights and interest of the parties having regard to the change situation. A Preliminary Decree of partition only determines the rights and interest of the parties. It is only final after the immovable property of HUF is partitioned by metes and bounds. The passing of a preliminary decree does not result in culmination of a Suit of Partition.

102. In the context of amended new Section 6, the Apex Court in the case of Vineeta Sharma (supra) observed that the intendment of amended Section 6 is to ensure that the daughters are not deprived of their rights to obtain share in the coparcenary property by setting up a frivolous defence of oral partition and or recorded in a unregistered Memorandum of partition. It is only genuine partitions that have taken place under the prevailing Law, which are to be recognised under Section 6 of the Act.

103. The Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma, (2009) 9 SCC 1 followed by Danamma @ Suman Surpur vs. Amar Singh, (2018) 3 SCC 343 held that Section 6 conferred full rights upon the daughter as a coparcener who was entitled to claim the partition in a coparcenary property. These judgments were referred to by the Apex Court in the recent Case of Prasanta Kumar Sahoo & Ors. vs. Charulata Sahu & Ors., (2023) 9 SCC 641.

104. In the present case, there is no challenge that while the partition was effected by Late Mr. B.V. Gupta, the karta, which resulted in severance of the HUF status, and could to held to be in the nature of preliminary decree, no final partition by metes and bounds, has taken place. Therefore, by virtue of the Amendment Section 6 of the Hindu Succession Act, the daughter has become entitled to 1/4th share in the property, which is not disputed by any of the parties.

105. The Issue is also not contested by the defendants since the daughter is now entitled to equal share along with the other co-parceners in the HUF Property.

106. The daughter, Ms. Ved Gupta, being the daughter, is held entitled to 1/4th share in the GK property.

107. The defendant No. 1 had claimed that since his minor sons, defendant Nos. 3/ Master Rahul Gupta and 4/Master Pranav Gupta were also the members of the coparcenary, they are also entitled to equal share in the suit property.

108. In Sunny (Minor) v. Raj Singh, (2015) 225 DLT 211, this Court considered the judgments of the Apex court in Yudhister (supra) and Commissioner of Wealth Tax, Kanpur (supra) and succinctly enumerated the principles relating to HUF property/self-acquired property and its inheritance as under: “(i) …

(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 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. …”

109. Hence, it emerges that in the pre-1956 era when the customary Hindu was prevalent, a coparcenary with HUF properties, which came into existence prior to passing of the Hindu Succession Act, 1956 and continued even after the passing of Hindu Succession Act, 1956, then the property belonging to the HUF would be HUF property in the hands of the coparceners as the status of Joint Hindu Family/HUF properties continues.

110. Thus, post-1956, HUF is created only when the HUF is expressly created and properties/self-acquired property in the hands of a person are expressly thrown by him into a common hotchpotch, with an intention to make them HUF properties.

111. The intestate or testamentary succession vide Section 8 or 30 of HSA Act, 1956 (as amended in 2005) became the only mode of devolution.

112. Since in the present case, there is nothing on record to show that any testamentary instrument was left by Late Sh. Vinod Gupta to govern the division his share in the suit property, the rules of intestate succession would apply. Section 8 of the Hindu Succession Act, 1956, pertaining preferential rights/Order of succession, provides for the General rules of succession in case of males and states that the property of a Hindu male dying intestate shall devolve firstly, upon the surviving Class 1 heirs.

113. Furthermore, Section 19 of Hindu Succession Act, 1956, prescribes the mode of succession in case of two or more heirs and provides that the persons (per capita and not per stirpes) shall receive their respective shares as an individual and not as a generational benefactor/ guardian and would be tenants in common and not joint tenants.

114. In the present case, admittedly, the suit property is the HUF property, which has been partitioned. There are four members of the HUF namely, Mr. B.V. Gupta (deceased), Mr. Vivek Gupta, Mr. Vinod Gupta/defendant No.1 and Dr. Ved Gupta, who all are entitled to 1/4th share each in the Suit Property. Their Children can claim the share only from the share of their father and do not become entitled to an independent share in the HUF property, in terms of S.19 Of the Hindu Succession Act. The sons of Defendant No. 1 – Vinod Gupta, being his class 1 heirs, can only exercise their right qua the 1/4th share of their father and not in the entire corpus of the HUF property.

115. To conclude, when the HUF property stood partitioned, Sh. Vinod Gupta acquired the portion in the property in his individual capacity. Since, Sh. Vinod Gupta has expired, Defendant No. 2-4 have an equal right in his 1/4th share as his class 1 heirs, in terms of S.8Hindu Succession Act.

116. The Issue is accordingly, answered.

117. The case of the plaintiff in the Plaint was that in the year 1990 when the tenant, Mr. Jhunjhunwala vacated the first floor of the HUF property i.e. GK-II, the defendant No. 1 connived with the tenant and directly took the keys of the first-floor portion and forcibly entered into it.

118. However, the said Issue is not being pressed by the parties and is accordingly disposed of.

119. The first aspect, which needs to be highlighted is that there is no prayer made in the Plaint or in the respective Written Statement, by any of the parties for rendition of accounts. Secondly, to be able to seek rendition of accounts of HUF, it had to be necessarily proved that there were accounts being maintained in the name of HUF.

120. The defendant Nos. 1 and 4, who are the main contesting defendants, had claimed that aside from the GK-II property, the properties that were mentioned in paragraph 32 of the Plaint, were purchased from the funds of the HUF and were, therefore, HUF properties. However, no evidence to this effect had been led by the defendants. Admittedly, the only asset of HUF was the GK-II property. Furthermore, PW-1 had clarified in his crossexamination that the defendant Nos. 1 to 4 got advantage of the HUF and all his account books were taken away by the defendant No. 1, forcibly. There is no counter-evidence led by the defendants, on this aspect. There is no evidence to show that the accounts were being maintained of HUF of which the rendition of accounts could be sought. Moreover, the only contribution to the HUF that was sought to have been made was the rent that was recovered in respect of the GK-II property, from 1979 to 1990. It was suggested that there was rental income of more than Rs.11,00,000/- but nothing has been proved. It cannot be overlooked that HUF stood dissolved in 1991 by Mr. B.V. Gupta, the Karta, and all the assets were distributed except the GK-II property, which was sought to be partitioned by metes and bounds.

121. Since there is no evidence of there being any accounts of HUF subsisting or there being any amounts in the HUF Account, there can be no rendition of accounts.

122. This Issue is decided accordingly. RELIEF:

123. In view of the findings on the aforesaid issues, it is held that the status of HUF was severed w.e.f. 11.04.1991 whereby Sh. Brahm Vira Gupta partitioned the HUF property equally amongst himself, Sh. Vivek Gupta, Ved Gupta and Sh. Vinod Gupta and each member became entitled to 1/4th share of HUF property.

124. The Testamentary case Test. Cas. 62/2012 titled Vivek Gupta vs. State & Ors. has been decided on 29.10.2025 in favour of Mr. Vivek Gupta and Probate of the Will dated 20.04.1998 has been granted in his favour, according to which late Sh. B.V. Gupta bequeathed his share in the Suit Property in favour of Mr. Vivek Gupta. Accordingly, the 1/4th share of late Sh. B.V. Gupta in the Suit Property is also apportioned in favour of Mr. Vivek Gupta.

125. It is hereby declared that the suit property was partitioned in status by Sh. B. V. Gupta during his lifetime w.e.f. 11.04.1991 vide his letter dated 20.04.1991. Thus, the final shares in the suit property of the parties is to the following effect:

(1/4th share was bequeathed to Vivek Gupta) ii. Mr. Vivek Gupta 1/2nd share (1/4th his share + 1/4th share from B.V. Gupta) iii. Late Mr. Vinod Gupta (represented by Defendant Nos. 2/ Smt. Anju Gupta; Defendant No. 3/ Sh. Rahul Gupta and Defendant No. 4/Sh. Pranav Gupta) 1/4th share iv. Dr. Ved Gupta 1/4th share

126. The parties have not proved that there were any other moveable assets and liabilities of the HUF and thus, they are not entitled to any relief in this regard.

127. A Preliminary Decree declaring the shares of the parties, is passed accordingly.

128. Decree sheet be prepared, accordingly.

129. The Parties are to bear their own cost.

130. Be placed before the Roster Bench on 03.12.2024 for partition of the property by metes and bounds and for passing of the final decree.

JUDGE OCTOBER 29, 2024 S.Sharma/RS