Indu Rani @Indu Rathi v. Pushpa & Ors.

SUBMISSIONS OF THE DEFENDANTS NO.1 AND 2

6. The defendants no.1 and 2 filed the present applications under Order VII Rule 11 of the CPC raising the following grounds:

Gopal stood settled and crystalized on 7th March, 1993 and the same cannot be unsettled on account of subsequent change of law i.e., the amendments to the Hindu Succession Act in 2005. The present suit is barred under Schedule 1 of Section 185 of the DLR Act. Provisions of the special act i.e. DLR Act shall prevail over a general act i.e. Hindu Succession Act.

SUBMISSIONS OF THE PLAINTIFF

7. Counsel appearing on behalf of the plaintiff has made the following submissions:

Succession Act, the rule of succession as contained in Section 50 of the DLR Act has been eclipsed and thus, after 9th September, 2005 provisions of the Hindu Succession (Amendment) Act, 2005 would have an overriding effect. The suit land was urbanised in the year 2006, and the rights of the parties over the suit land are governed by the Hindu Succession (Amendment) Act, 2005.

ANALYSIS AND FINDINGS

8. I have heard the counsels for the parties.

9. At the outset, it may be relevant to set out Section 50 of the DLR Act. Section 50 of the DLR Act is set out below:

14. Judgments of this Court in Hatti (supra) and Ram Mehar (supra) were followed by another Division Bench of this Court in Nathu v. Hukam Singh and Ors., AIR 1983 Delhi 216 where the Division Bench observed that the provisions of customary law relating to restrictions on transfer do not apply to the transfer of the Bhumidhari rights.

BANSAL

15. Now, a reference may be made to Section 4 of the Hindu Succession Act, as it stood prior to its amendment in 2005. The same is set out below:

16. Pursuant to the amendment, Sub Section (2) of Section 4 Hindu Succession Act was deleted. Further, Section 6 of the Hindu Succession Act, 1956 was amended so as to give a share to the daughter in the coparcenary property.

17. Counsel for the plaintiff has placed reliance on Nirmala & Ors. v. GNCTD & Ors., 2010 SCC OnLine Del 2232, where the Division Bench has held that in view of deletion of sub-section (2) of Section 4 of Hindu Succession Act, 1956 the rule of succession provided in the Hindu Succession Act would prevail over the rule of succession in Section 50 of the DLR Act.

BANSAL

18. Counsel for the plaintiff has also relied upon the judgment of the Supreme Court in Vineeta Sharma (supra) to submit that in view of the amendment of Section 6 of the Hindu Succession Act, 1956 with effect from 9th September, 2005, the plaintiff as a daughter would have the status of a coparcener and would have the same rights as a male coparcener by birth. Since, no partition has taken place in respect of the suit land, the plaintiff would have rights and interest in the suit land as a coparcener even though the father of the plaintiff had expired on 7th March, 1993.

19. In Vineeta Sharma (supra), the Supreme Court held that though the rights of a female coparcener under amended Section 6 of the Hindu Succession Act can be claimed from 9th September, 2005, the provisions are retrospective and would confer benefits based on antecedent events. Therefore, even if the father coparcener had expired before 9th September, 2005, the daughter can claim rights in the coparcenary property in the event no partition has taken place before 20th December, 2004.

20. The aforesaid judgment was considered by the Supreme Court in its subsequent judgment in Har Naraini Devi v. Union of India, 2022 SCC OnLine SC 1265, where the Supreme Court was seized with the constitutional validity of Section 50 of the DLR Act. Upholding the constitutional validity of Section 50 of the DLR Act, the Supreme Court made the following observations:

21. A specific plea was raised before the Supreme Court in Har Nariani Devi (supra) as to whether in light of the judgment in Vineeta Sharma (supra), the repeal of Sub Section (2) of Section 4 of Hindu Succession Act would relate back. In Har Naraini Devi (supra), as noted in paragraph 24 set out above, the father died in 1997, when Sub Section (2) of Section 4 of the Hindu Succession Act was part of the statute. Since, the succession had opened prior to 9th September, 2005, the Supreme Court held that the rights of lineal descendants under Section 50 stood crystalised and would be unaffected by the subsequent deletion of Sub Section (2) of Section 4 of the Hindu Succession Act, 1956. It was further observed that the observations in BANSAL the Vineeta Sharma (supra) with regard to retrospective application were only applicable to Section 6 of Hindu Succession Act as amended in 2005 not in respect of Sub Section (2) of Section 4 of Hindu Succession Act,

1956.

22. The present case is squarely covered by the aforesaid dicta of Har Naraini Devi (supra). In the present case, the father of the plaintiff expired in 1993, when Sub-Section (2) of Section 4 of the Hindu Succession Act was still in existence. Devolution of interest in respect of the suit land would be determinable in accordance with the law prevailing at the time of the death of the father of the plaintiff. Therefore, rule of succession in terms of Section 50 of the DLR Act, would prevail in the present case and the brothers of the plaintiff would acquire interest in the Bhumidari rights of their father in the suit land. The subsequent deletion of Sub-Section (2) of Section 4 of the Hindu Succession Act would not affect the same.

23. There is yet another aspect of the matter. Section 6 of Hindu Succession Act would apply only if there is an existence of a Joint Hindu Family and a coparcenary property. It has specifically been noted in Vineeta Sharma (supra) that coparcenary must exist on 9th September, 2005 to enable the daughter of a coparcener to enjoy the rights conferred on her. Paragraph 69 of the aforesaid judgment is set out below:

24. Therefore, the plaint filed in the present case would have to be examined to see if a case of existence of coparcenary/ coparcenary property has been set up or not.

25. In Surender Kumar v. Dhani Ram, 2016 SCC OnLine Del 333, the Court while deciding an application under Order VII Rule 11 of the CPC held that there have to be clear pleadings in the plaint with regard to existence and creation of an HUF. The relevant observations are set out below: “9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter(supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse BANSAL dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties. …

11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-Section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub-Sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the BANSAL mandate of the language contained in sub-Sections (1) and (2) of Section 4 of the Benami Act.

12. This Court is flooded with litigations where only selfserving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded.”

26. The aforesaid observations in Surender Kumar (supra) were followed by a Coordinate Bench of this Court in Ansh Kapoor v. K.B. Kapur, 2021 SCC OnLine Del 510. Similar view was also expressed by a Division Bench of this Court in Suraj Munjal v. Chandan Munjal And Ors., (2019) 257 DLT 597 (DB). The relevant observations of the Division Bench are set out below: “9. The plea of Mr. Rustagi that the actual HUF, which was formed at the birth of the appellant on November 05, 1978 and then on the birth of respondent No. 1, who became a Member by birth in 1982 has to be read in conjunction with other averments in the plaint that the HUF was instituted with funds available in the hands of respondent No. 2, who duly BANSAL acknowledged the same in various statutory records, which records are stated to be in the exclusive custody of respondent No. 2. In other words, the funds were invested only to purchase the properties, which have been in the joint names of all the co-parceners with exception of name of respondent NO. 3, is without any merit, for the simple reason, what was required to be pleaded by the appellant was that the properties were inherited before the year 1956 or the HUF being created after the year 1956 by throwing the properties into common hotchpotch, which plea admittedly has not been taken. In fact, this aspect had weighed with the learned Single Judge to conclude that the claim as HUF properties (under first and second category), was unsustainable. We agree with the said conclusion arrived at by the learned Single Judge.”

27. The position which emerges from a reading of the aforesaid judgments is that specific pleadings have to be made in the plaint with regard to existence and/or creation of an HUF, i.e., the date on which the HUF was created, whether it was created after 1956, who were and are its coparceners and karta and in the event the HUF was created after 1956, when was the property claimed to be an HUF property, put in the common hotchpotch.

28. The dicta of the aforesaid judgment is squarely applicable in the facts of the present case. There is no averment in the plaint that late Shri Ram Gopal, father of the plaintiff inherited the property from his paternal ancestors prior to 1956 and hence, the suit land cannot be a HUF property in his hands. It has also not been pleaded that the HUF was created after 1956 by late Shri Ram Gopal by throwing the suit land into a common hotchpotch. The plaintiff has simply referred to the suit land as an ancestral property in the plaint without giving any basis for the same. While deciding an application under Order VII Rule 11 of the CPC, the issue to be BANSAL considered is not whether the plaintiff has a cause of action to file the suit, but as to whether the plaint, read as a whole, has disclosed a cause of action. In the present case, there is no cause of action which is found to exist in the plaint with respect to existence of an HUF and/or coparcenary property. The plaintiff has failed to plead a case of existence of an HUF and/or coparcenary property and therefore, the plaintiff is not entitled to benefit of the judgment passed in Vineeta Sharma (supra).

29. In view of the discussion above, no cause of action has been established by the plaintiff in her favour which ought to be considered in trial. Hence, the applications are allowed and the plaint is rejected under provisions of Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC).

30. The suit along with all pending applications stands disposed of. AMIT BANSAL, J. DECEMBER 01, 2022 BANSAL