Dr. G.M Singh v. Dr. Trilochan Singh & Others

Delhi High Court · 20 Oct 2022 · 2022:DHC:4435

Amit Bansal

CS(OS) 2430/2014

2022:DHC:4435

civil appeal_allowed Significant

AI Summary

The Delhi High Court dismissed the suit for partition of a property held in defendant’s name due to absence of pleadings establishing it as HUF property and barred under the Benami Act.

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2022/DHC/004435

CS(OS) 2430/2014
HIGH COURT OF DELHI
Date of Decision: 20th October, 2022.

CS(OS) 2430/2014
DR. G.M SINGH ..... Plaintiff
Through: Mr.Vaibhav Mehra, Advocate.

VERSUS

DR. TRILOCHAN SINGH & OTHERS ..... Defendants
Through: Mr.Rajat Aneja and Ms.Chandrika Gupta, Advocates for D-1.
Mr.Akshay C. Shrivastava and Mr.Abhinav Mukerji, Advocates for
D-3.
Ms.Nitika Bhutani, Advocate for D-4.

CORAM:

HON'BLE MR. JUSTICE AMIT BANSAL

JUDGMENT

AMIT BANSAL, J.

(Oral)

I.A. 13628/2019 (O-VII R-11(a) & (d) of CPC)

1. The present application has been filed on behalf of the defendant no.1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint.

2. Notice in this application was issued on 30th September, 2019. No reply has been filed on behalf of the plaintiff.

3. The present suit has been filed on behalf of the plaintiff seeking relief of declaration, partition and possession in respect of following three immovable properties: i. Property bearing No. 3/24, West Patel Nagar, New Delhi- 110008, admeasuring 200 square yards; ii. Cottage No. 8, West Patel Nagar, New Delhi-110008 admeasuring 350 square yards; and iii. Property bearing No. 2644, Sadar Thana Road, Delhi admeasuring about 707 square feet.

4. Plaintiff and the defendants no.1 to 3 are brothers, the defendant no.4 is their sister and the defendants no.5 and 6 are the children of another predeceased sister. All the parties are descendants of late Dr. Harnam Singh, who expired on 8th September, 2001. The plaintiff seeks partition of the aforesaid three properties on the ground that the said properties were joint family properties.

5. The ground for seeking rejection of the plaint, as set out in the application, is in respect of one of the aforesaid properties, being Cottage No. 8, West Patel Nagar, New Delhi-110008 admeasuring 350 square yards (subject property), which is claimed to be the exclusive and self-acquired property of the defendant no.1, having purchased the same by way of a registered Sale Deed dated 26th April, 1974. Counsel for the defendant no.1 submits that there are no pleadings in the plaint with regard to the creation, existence or continuity of an Hindu Undivided Family (HUF) and therefore, the subject property cannot be made subject matter of the present suit on the basis that it is an HUF property.

6. The counsel for the defendant no.1 has relied upon the judgment of a Co-ordinate Bench of this Court in Surender Kumar Khurana v. Tilak Raj Khurana & Ors., 2016 (155) DRJ 71 (DB), wherein this Court, while deciding an application under Order VII Rule 11 of the CPC, held that there have to be clear pleadings in the suit with regard to existence and creation of an HUF, 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.

7. The observations of the Court as contained in paragraph 7 of the judgment are set out below:

“7. On the legal position which emerges pre 1956 i.e before

passing of the Hindu Succession Act, 1956 and post 1956 i.e

after passing of the Hindu Succession Act, 1956, the same has

been considered by me recently in the judgment in the case

of Sunny (Minor) v. Sh. Raj Singh, CS (OS) No. 431/2006

decided on 17.11.2015. In this judgment, I have referred to and

relied upon the ratio of the judgment of the Supreme Court in

the case of Yudhishter (supra) and have essentially arrived at

17,038 characters total

the following conclusions : -

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits ‘ancestral’ property i.e a property belonging to his paternal ancestor.

(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.

(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc. will have a right to seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property.”

8. In Surender Kumar Khurana (supra), the Court was dealing with an application filed by the defendant under Order VII Rule 11 of the CPC and the Court also invoked provisions of Order XII Rule 6 of the CPC to observe that in view of the admitted facts as pleaded in the plaint, no HUF and its properties are found to exist. Based on the aforesaid legal provisions, the conclusion of the Court, as contained in paragraph 9 of the judgment, is set out below:

“9. Accordingly, the following conclusions are arrived

at:-

(i) The plaint only talks of ‘joint funds’, ‘joint properties’ and ‘working together’ without the necessary legal ingredients averred to make a complete existence of a cause of action of joint Hindu family/HUF with its properties and businesses.

(ii) Joint funds, joint businesses or working together etc. do not mean averments which are complete and as required in law for existence of HUF and its properties have been made, and, joint funds and joint properties do not necessarily have automatic nexus for they being taken as with joint Hindu family/HUF properties.

(iii) In view of the specific bar contained in Sections 4(1) and (2) of the Benami Act, once properties in which rights sought by the plaintiff are not by title deeds/documents in the name of the plaintiff but are in the name of defendants, the plaintiff is barred under Section 4(1) of the Benami Act from claiming any right to these properties and the only way in which the right could have been claimed was if there was an existence of an HUF and its properties, but, the plaint does not contain the legally required ingredients for existence of HUF and its properties.

(iv) With respect to the properties lacking in exact details with the complete address, no reliefs can be claimed or granted with respect to the vague properties. 10. In view of the above, the suit plaint does not contain the necessary averments as required by law for existence of joint Hindu family/HUF properties and its businesses and thus in fact the suit plaint would be barred by Section 4(1) of the Benami Act as the necessary facts to bring the case within the exceptions contained in Section

4(3) of the Benami Act are not found to be pleaded/existing in the plaint.”

9. A Division Bench of this Court in Suraj Munjal v. Chandan Munjal And Ors., (2019) 257 DLT 597 (DB) also upheld the invocation of Order XII Rule 6 of the CPC to dismiss the suit insofar as certain properties in the said suit were concerned, on the ground that pleadings with regard to the said properties being part of the HUF were not made in the plaint. The relevant observations of the Division Bench are set out below:

“8. Having heard the learned counsel for the parties, there is no dispute on the proposition of law that inheritance by a person of a property from his parental ancestors after the year 1956 results in inheritance as a self-acquired property and not as an HUF property. There is no dispute that the grandfather of the appellant i.e father of the respondent No. 2 died in the year 1967. The properties were inherited by the respondent No. 2 and the same shall be self-acquired properties. This we say so, as the appellant was not even born in the year 1967. He was born in the year 1978. 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 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.

10. Insofar the judgments in the case of Sejal Glass Ltd. (supra) and Satya Pal Gupta (supra) are concerned, the said judgments were with regard to application filed under Order 7 Rule 11 unlike the case in hand where the learned Single Judge has invoked the principles underlying Order 7 Rule 11 read with Order 12 Rule 6 CPC.

XXX XXX XXX

13. We agree with the submission made by Mr. Datta by relying upon the judgments of the Supreme Court and this Court relating to Order 12 Rule 6 CPC in support of proposition of law that there is wide discretion of Court to pass a judgment at any stage of a suit on the basis of an admission made in the pleadings or otherwise, without waiting for determination of other questions arising between the parties, so as to nip in the bud any claim sought to be raised in the plaint, which is vexatious and without any merit in the sense, not disclosing a clear right to sue.”

10. At this stage, it may be relevant to note the pleadings in the plaint vis- à-vis the subject property:

“2. That late Dr. Harnam Singh had been practising along with his father late Dr. Harbans Singh in Jhagawali, Village, Lyallpur, West Pakistan and that after partition, different properties were allotted in the name of late Dr. Harnam Singh. 3. That after partition and migration of Dr. Harnam Singh to Delhi, Plaintiff and Defendants 1and 2 had been working jointly with their father, late Dr. Harnam Singh. Property

bearing No.3/24, West Patel Nagar, New Delhi admeasured 200 sq. yards had been allotted by the Ministry of Rehabilitation to the evacuees who had migrated from West Pakistan. Late Dr. Harnam Singh had also purchased Cottage No.8, admeasuring 350 sq. yards out of joint family funds but in the name of Defendant N0.[1] i.e. Dr. Trilochan Singh along with the property at Sadar Thana, Delhi. 6(d) That the Cottage plot No.8 admeasuring a total of 350 sq. yards had been purchased out of joint family income by Dr. Harnam Singh but in the name of the petitioner Dr. Trilochan Singh. This house is also liable to be partitioned amongst the legal heirs of Late Dr. Harnam Singh. 6(f) Late Dr. Harnam Singh had executed a will dated 16.10.1990 which apart from being signed by him had also two independent witnesses, namely Sh. Rawall Singh and Sh. Narender Nath Seth. In para 3 of the said Will Dr. Singh had made the following deposition;- "The Third house no. 8, West Patel Nagar Is already registered in the name of my son Trilochan Singh. He shall have no concern or claim over the above two houses numbered 3/24 and 3/5, West Patel Nagar because he already stands compensated by virtue of the ownership rights over No.8, West Patel Nagar."

9. That as per the said Holographic Will dated 17.08.2001 defendant No.1 was held to be owner of Cottage Plot No.8, whose nick name was Veer Sahib…

13. That it is the further case of the Plaintiff in alternative that if there was no Will i.e. the alleged Will dated 31.08.2001 and 17.08.2001, the properties acquired by Late Dr. Harnam Singh out of partly joint family funds, on his coming from West Pakistan on partition of the country, would have been acquire by all his Legal Heirs in equal shares. Thus, the case of the Plaintiff that Cottage No. 8, admeasuring 350 sq. yards located in West Patel Nagar, New Delhi; Property No.3/24, West Patel Nagar, New Delhi consisting of ground floor, first floor and second floor as well as Property No. 2644, Sadar Thana Road, Delhi were owned or acquired by Late Dr. Harnam Singh out of joint family funds and all these three properties are required to be distributed in accordance with Law of Succession as if there was no Will of Late Dr. Harnam Singh.”

11. As is evident from the aforesaid paragraphs of the plaint, the case set up by the plaintiff is that the subject property was purchased out of joint family funds, even though the said property was purchased in the name of defendant no.1. It is pertinent to note that the other two suit properties are registered in the name of the father of the parties, late Dr. Harnam Singh. In the Wills of late Dr. Harnam Singh propounded by the plaintiff also, it has been noted that the subject property is registered in the name of the defendant no.1 and shall go to him.

12. A reading of the entire plaint would also show that there is no reference to the existence or creation or continuity of an HUF either prior to 1956 or post 1956. Further, there is no pleading in the plaint with regard to the subject property being put into the common hotchpotch at any point of time since 26th April, 1974, the date of execution of the sale deed for the subject property. Therefore, the dicta of the aforesaid judgments are fully applicable to the facts of the present case.

13. It is admitted in the plaint that the subject property is in the name of the defendant no.1 by virtue of a registered sale deed. Plaintiff has not made any pleading in the plaint that the subject property was owned by an HUF. The plaint is also barred under the provisions of Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 (Benami Act), as it existed on 1st November, 2016 inasmuch as the subject property is in the name of the defendant no.1. No pleadings have been made in the plaint to bring the subject property within the exceptions contained in Section 4(3) of the unamended Benami Act.

14. At this stage, reference may be made to the judgment of the Supreme Court in Raveesh Chand Jain v. Raj Rani Jain, (2015) 8 SCC 428, wherein it has been held that Order XII Rule 6 of the CPC confers wide discretion on the Court to pass judgment on admissions, at any stage, which leads to the conclusion that more than one decree may be passed at different stages of a suit. The relevant observations of the Supreme Court are as under: “…The bare perusal of the aforesaid provision makes it clear that it confers wide discretion on the court to pass a judgment at any stage of the suit on the basis of admission of facts made in the pleading or otherwise without waiting for the determination of any other question which arose between the parties. Since the Rule permits the passing of judgment at any stage without waiting for determination of other questions, it follows that there can be more than one decree that may be passed at different stages of the same suit. The principle behind Order 12 Rule 6 is to give the plaintiff a right to speedy judgment so that either party may get rid of the rival claims which are not in controversy.”

15. In view of the above, invoking provisions of Order XII Rule 6 of the CPC and the principles laid down in the aforesaid judgments, the suit is dismissed in respect of the reliefs sought with regard to the property being Cottage No. 8, West Patel Nagar, New Delhi-110008 admeasuring 350 square yards.

16. Decree sheet be prepared accordingly.

17. The suit shall continue so far as the other two properties are concerned. CS(OS) 2430/2014, I.A. 26057/2014 (O-VI R-17 of CPC), I.A. 9991/2020 (u/S 151 CPC) and I.A. 16064/2021 (O-XXII R-4 of CPC)

18. List for consideration of the pending applications on 13th February,

2023. AMIT BANSAL, J OCTOBER 20, 2022 sr

Dr. G.M Singh v. Dr. Trilochan Singh & Others

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