Full Text
HIGH COURT OF DELHI
SUKRUTI DUGAL ..... Plaintiff
Through: Mr. Akshay Makhija, Mr. Devender Verma, Ms. Kirti Awasthi, Mr. Ankit Tyagi, Advs. with Plaintiff.
Through: Mr. Sunil Chaudhary, Adv. for D-1.Mr. Amit Bansal and
Mr. Aman Rewaria, Advs. for D-2.
Mr. Suhil Dutta, Sr. Adv. with Mr. Mandeep Singh Vinaik, Ms. Anjali Sharma, Mr. Deepak Bashta, Mr.Shashwat Bhardwaj, Mr. Abhimanyu Gupta and
Ms. Ragini Vinaik, Advs. for D- 3 to 5.
JUDGMENT
Order 7 Rule 11 CPC )
1. This judgment shall dispose of the two applications, one filed by the Plaintiff [IA No. 3975/2019-under Order 6 Rule 17 CPC read with 2019:DHC:4834 Section 151 CPC for amendment of the plaint] and another one filed by Defendant No. 3 [I.A No. 3976/2019-under Order 7 Rule 11(a) read with Section 151 CPC seeking rejection of the plaint]
2. The present suit seeks relief of partition, rendition of accounts and permanent injunction. As per the facts narrated in the plaint, the case of the Plaintiff is that Late Sh. Somnath Dandona was the Karta of the Hindu Undivided Family (hereinafter referred to as “HUF”) and the parties to the present suit are the members/coparceners of the HUF who were living under a common roof. The assets of the HUF comprise of the following immovable properties:- (a) House No. 275, ground floor, Kailash Hills, New Delhi. (b)House No. E-25, Vasant Marg, Vasant Vihar, New Delhi.
(c) Plot No. 77, Karanpur Road, Dehradun, Uttaranchal.
3. It is contended that Late Sh. Somnath Dandona expired on 25th March 2008 and his widow Late Smt. Shyam Kumari Dandona died on 5th February 2019. During their lifetime, the family existed as an HUF. Both of them died intestate, and are survived by Janhavi Duggal (Defendant No. 1-mother of Plaintiff) and Sh. Paresh Dandona (Defendant No. 3-maternal uncle of the Plaintiff). Defendant No. 2 is the brother of Plaintiff. Defendant No. 4 and Defendant No. 5 are sons of Sh. Paresh Dandona (cousin brothers of Plaintiff). Plaintiff claims that being a member of the HUF, she is entitled to share in the properties noted above. It is contended that in the month of August- September 2018, Plaintiff requested the Defendants for partitioning the HUF properties. In October 2018, Defendants assured the Plaintiff that a family settlement would be drawn up, however later, despite persistent requests, it was never done. Defendant No. 1 refused to give Plaintiff her share in the HUF properties. Subsequently, Plaintiff came to know that the properties are being sold and accordingly, the present suit was filed to protect her interest. In the written statement, Defendant No. 3 [Sh. Paresh Dandona] inter alia contended that the suit properties were self acquired property of Late Sh. Somnath Dandona and Mrs. Shyam Kumari Dandona and the same has devolved by survivorship on Defendant No. 1 and Defendant No. 3 and no other person has any right to lay a claim over the same. It is further contended that by virtue of a consent decree passed in CS(OS) 1175/2010, the property at Vasant Vihar has been divided into two portions, one for Defendant No. 1 and the other one for Defendant NO. 3. The property at Kailash Hills has fallen into the share of Defendant No. 1 under the said settlement.
4. The aforesaid defense of the Defendants has prompted the Plaintiff to file an application seeking amendment of the Plaint. In the application, it is alleged that for the first time during the hearing on 7th March 2019, counsel for Defendant No. 3 disclosed that a partition suit bearing [CS (OS) No. 1175/2010] was decided on 4th February 2015, by way of compromise, and the rights qua the suit properties have been settled between Defendant No. 1 and Defendant No. 3. The Plaintiff claims that she was not aware of the said proceedings and was shocked on gaining knowledge of the aforesaid compromise/settlement between the Defendants and now seeks to amend the plaint by introducing averments, to assail the compromise decree passed in CS (OS) 1175/2010. The proposed amendments have two components. The first one being introduction of averments giving the background which has resulted in the consent decree dated 4th February 2019. The second is amendment of the prayer clause. Plaintiff now seeks additional prayers by way of declaration that the settlement/decree dated 4th February 2019 is not binding on her on the ground that she was not a party to the compromise suit and the settlement/ compromise decree is non est, null and void qua her rights in the suit properties.
5. The Court has heard the learned counsels at length. Learned counsel for the Plaintiff contended that the law relating to the amendment of pleadings is well settled. The Courts have repeatedly held that amendments should be considered liberally, especially when the same is filed promptly and diligently. At the time of the consideration of the application under Order 6 Rule 17 CPC, the Court should not go into merits/demerits of the amendments and in support of his submissions, learned counsel for the Plaintiff has relied upon the judgments of the Supreme Court in Rajesh Kumar Aggarwal and Ors v. K.K. Modi and Ors, (2006) 4 SCC 385, Mohinder Kumar Mehra v. Roop Rani Mehra and Ors, (2018) 2 SCC 132 and Abdul Rehnam and Anr v. Mohd Ruldu and Ors, (2012) 11 SCC 341.
6. Defendant No. 2 does not oppose the prayers made in the application. However, Defendant No. 3 has vehemently opposed the amendment sought by the Plaintiff on several grounds. It is urged that the application is not maintainable, being barred by law and deserves to be dismissed. It is submitted that no suit can be filed to set aside the consent decree under Order 23 Rule 3(A) of the Code of Civil Procedure. The legal bar under the said provision is absolute and the same would also apply to the Plaintiff, even if she was not party to the compromise suit. The application has been filed pursuant to the Defendant’s application seeking rejection of the plaint. The timing of the application and the documents annexed thereto is suspicious and shows malice. It has been further contended that it is a settled principle of law that no amendment of the plaint can be entertained or permitted which would defeat the prayer seeking rejection thereof under Order 7 Rule 11 of the CPC. The purpose of the proposed amendment is only to delay the inevitable consequence of rejection of plaint.
7. Firstly, let me deal with the contention regarding the maintainability of the application under Order 7 Rule 11 CPC, 1908. Defendant no. 3 contends that the Court is precluded from entertaining an application under Order 6 Rule 17 once it is seized of an application under Order 7 Rule 11. On this proposition, the position of law is settled. The Division bench of this Court has in the case of Mrs. Anita Kumari Gupta v. Late Mr. Ved Bhushan and Ors, (2014) 5 SCC Online Del 2895 has held as under:- “11. We are not only unable to agree with the reasoning given by the learned Single Judge for allowing the application of the respondents/defendants under Order VII Rule 11 CPC and in the facts aforesaid, do not find any ground for rejection of the plaint to have been made out but are also of the view that the order is erroneous also for dealing first with the application under Order VII Rule 11 CPC, when an application filed earlier in point of time for amendment of the plaint was pending consideration. We are of the opinion that once an application for amendment of the plaint has been filed, even if after the filing of an application under Order VII Rule 11 CPC, ordinarily the application for amendment of the plaint is to be considered first and it is only thereafter, if the amendment were to be refused, that the application for rejection of the plaint as originally filed, is to be considered; needless to state that if the amendment is allowed, it has to be seen, whether the ground on which rejection is sought survives. It was so held by this Court as far back as in Wasudhir Foundation Vs. C. Lal & Sons 45 (1991) DLT 556 by aptly observing that Courts allow amendments, not really as a matter of power but in performance of loftier duty to deliver substantial justice and the ouster of Order VI Rule 17 CPC will throttle the very life line of Order VII Rule 11 and instead of promoting, would defeat the ends of justice. Alas, neither counsel cited the law before the learned Single Judge or before us.” (Emphasis supplied)
8. The ratio of the aforesaid decision is clear that once an application for amendment of the plaint has been filed even if, after the filing of an application under order 7 Rule 11 CPC, ordinarily the application for amendment is to be considered first and only thereafter, if the amendments were to be refused, the application for rejection of the plaint as originally filed is to be considered. If the amendment is allowed, then it has to be seen whether the grounds urged in the application seeking to reject the plaint would still survive. Thus, the filing of the application for amendment, subsequent to the filing of the application for rejection of plaint is immaterial and cannot be a ground to reject the application.
9. Now, coming to the next objection raised by the Defendants regarding the merits of the proposed amendment as to whether the nature of amendment is such that would render the suit to be not maintainable under Order 23 Rule 3A of the CPC. The objection of the Defendant No. 3 is that the amendment sought in the present application is barred by law and deserves to be dismissed. Order 23 Rule 3A, Code of Civil Procedure provides that no suit can be filed to set aside a consent decree passed in another suit. The nature of the legal bar created in the said provision is absolute and the same has been interpreted repeatedly to place a bar against such a suit. Since the proposed prayer would itself be barred by law, the amendment sought is not maintainable and for this reason, the same deserves dismissal.
10. A reference to the Order 23 Rule 3A CPC is necessary: “3. Compromise of suit— Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise [in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subjectmatter of the suit, the Court shall order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith [so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:] [Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but not adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.] [Explanation—An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule;] 3A. Bar to suit— No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.” The aforesaid provision bars a challenge to the consent decree passed under Order 23 Rule 3 CPC. Admittedly, in the present case, the Plaintiff was neither party to the suit bearing CS (OS) 1175/2010, nor a party to the compromise/settlement that has been arrived at between Defendant No. 1 and Defendant No. 3. The proposed amendments seek a declaration that the compromise between Defendant No. 1 and Defendant No. 3 does not affect the rights of the Plaintiff. To my mind, the reliefs sought to that extent, are superfluous. A compromise between parties cannot affect the rights of a third party, who is not a party to the compromise. Such an aggrieved party can file a suit for appropriate relief disregarding the compromise decree and the same would not be barred by principles of res judicata or estoppel. The Allahabad High Court in the case of Smt Suraj Kumari v. District Judge Mirzapur and Ors, 1990 SCC OnLine All 459 held as under:- “22. The petitioner's second submission regarding the applicability of O.23, R. 3-A of the Code of Civil Procedure is misconceived the provision is confined only to the parties to the suit. The said provision is not applicable to a stranger to the said compromise decree. A suit by stranger to set aside the compromise decree, which affects his rights is not barred by the said provision. Order 23, Rule 3-A of the Code of Civil Procedure cannot be read dehors its earlier provision of the same chapter. The said provision is only a part of the entire Chapter of Order 23 of the Code of Civil Procedure which prescribes provisions for withdrawl and adjustment of the suit. Order 23, Rule 3 of the Code of Civil Procedure provides for a situation where the parties have arrived at a compromise. Order 23, Rule 3 and Rule 3-A of the Code of Civil Procedure as added by Amending Act No. 104 of 1976 read together, makes it clear that a party to the suit is debarred from filing suit for setting aside compromise decree on the ground of being unlawful. Such a party has remedy by moving appropriate application before the Court concerned which has passed the compromise decree.
23. The said provision does not bar the present petitioner who was not a party to the said compromise decree to file a suit. As such there is no force in the petitioner's contention that a suit for setting aside the compromise decree entered into between Sri Nagarmal and Smt. Paradevi was barred by O.23, R. 3-A of the Code of Civil Procedure. The suit at the instance of present petitioner for setting aside compromise decree entered into between Smt. Paradevi and Sri Nagarmal is maintainable in law. In support of this contention the petitioner has placed reliance on AIR 1985 Karnataka 270, Smt. Tarabai v. Krishnaswamy Rao. Since the said provision does not bar the petitioner from filing the suit the decision is of no help to the petitioner.”
11. Similar view has been expressed by the co-ordinate bench of Calcutta High Court in Ashis Kumar Ghosh & Ors v. Gopal Chandra Ghosh & Ors, 2004 SCC OnLine Cal 173 wherein it was held as under:- “9. In the present case, the right was claimed on the strength of an alleged Will purported to be executed by Manmotha Kumar and that too in respect of the two properties out of several of which are accepted by the plaintiffs, seeking to restrain the defendants from proceeding against the third parties with whom no relation or interest of the plaintiff has been established. The alleged Will is to take effect after the demise of the testator, even if the Will was purported to have been executed before the compromise. The persons claiming through the alleged Will purported to be executed by the testator are claiming through the testator, party to the compromise. Therefore, plaintiffs cannot claim to be a stranger. Section 11 CPC restricts re-opening of the case in between the parties or between the parties claiming through the parties to the suit. Therefore, nothing prevented the plaintiffs to take steps within the forum as provided in CPC within the time. However, absence of knowledge having been pleaded, it was open to the plaintiffs to establish their right taking aid of the provisions contained in the Limitation Act. The decision in Suraj Kumari (supra) has no manner of application in the present case, inasmuch as in the said case, it was held that a person coming to the Court with unclean hands is not entitled to any relief. It does not help Mr. Bhattacharyya inasmuch as in the said decision, it was held that Order 23 Rule 3A is not applicable to a stranger to challenge the compromise decree. Therefore, the suit by a stranger to set aside a compromise decree on the ground that compromise was not lawful was held to be maintainable. In the present case, we have already observed that the plaintiff was not a stranger to the compromise decree since the plaintiffs were claiming through Manmotha Kumar Ghosh who was a party to the compromise. The decision in Gosto Behari Pramanik (supra) also does not help in the present case, which, in fact, did not notice the distinction in the various provisions as discussed above.”
12. The amendments sought, to my mind, state the obvious. If the Plaintiff has independent right over the suit properties on the basis of the averments stated in the plaint, the Court would have to necessarily examine the same irrespective of the compromise. Therefore, I do not find any legal bar regarding the maintainability of the suit seeking the relief as sought in the proposed amended suit. It is also settled law that a liberal approach has to be adopted by the Courts while dealing with the application seeking amendment. Moreover, at this stage, I am not inclined to evaluate the merits of proposed amendments or the reliefs sought in the present application. That would have to be necessarily examined at the appropriate stage. Accordingly, I allow the application and take the proposed amended plaint on record.
13. Now, I shall proceed to deal with the application filed by Defendant No. 3 under Order 7 Rule 11 CPC. Since the amended plaint has been taken on record, I have to examine whether the plea for rejection of the plaint still survives or not on the basis of the averments made therein.
14. The principle in law while dealing with an application under Order
7 Rule 11 is equally well settled. In order to examine whether a plaint is liable to be rejected under any of the provisions enumerated therein, the averments in the plaint alone are to be examined and they have to be assumed to be correct. It is not permissible to look into the pleadings raised in the written statement or any piece of evidence. Applying the said principles, the Applicant/Defendant No-3 has contended that the plaint did not disclose any cause of action to seek partition of the suit properties. The applicant submitted that the plaint did not satisfy the requirement of law to show that the suit properties are HUF properties. It is claimed by the Defendants that a lease hold right of the property at E-25, Vasant Marg, Vasant Vihar, New Delhi 110057 was allotted to late Shri. Somnath Dandona, by virtue of him becoming a member of the Government Servants Cooperative House Building Society. The said leasehold rights were converted into free hold out of the self acquired and personal fund of late Smt. Somnath Dandona and no funds of HUF were used in this acquisition as there was no HUF in existence then or in the past. Similarly, the property at Kailash Hills was also a self acquired property of Sh. Somnath Dandona. After his death, the said property devolved by survivorship upon Defendant No. 1 and 3 and by way of a consent decree, Defendant No.1 and 3 had settled all their disputes qua the properties in question. It is contended by the Applicant/ Defendant No. 3 that the plaint also fails to disclose any facts to establish any linkage between the funds of the HUF and the suit properties.
15. The law relating to the inheritance of ancestral properties after 1956 has been settled by the Supreme Court in Yudhishter V. Ashok Kumar, (1987) 1 SCC 204, wherein it has been held that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property. The relevant portion of the said judgment reads as under: “This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [1986]161ITR370(SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity…..In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house….”
16. This Court has also in several judgments considered the question of existence of an HUF and law relating to inheritance of an ancestral property. In Sunny (Minor) & Anr vs. Raj Singh & Ors, 2015 (225) DLT 211, this court held as under: “As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a self- acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to 'A'. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in-interest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self- acquired property but an HUF property is if after 1956 a person who owns a self-acquired property throws the selfacquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.” (emphasis supplied)
17. In the case of Surender Kumar Versus Dhani Ram & Others, 2016 (227) DLT 217, it was held as under: “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 successorsin-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. 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. 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 1956from 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. Even before 1956, an HUE can come into existence even without inheritance of ancestral property from paternal ancestors, as HUE could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUE continues even after 1956, then in such a case a coparcener etc of an HUE was entitled to partition of the HUF property.
XXXXX … In view of the above, actually the application filed under Order VII Rule 11 CPC in fact is treated as an application under Order XII Rule 6 CPC, inasmuch as, it is observed on the admitted facts as pleaded in the plaint that no HUF and its properties are found to exist. There is no averment in the plaint that late Sh. Jage Ram inherited property(s) from his paternal ancestors prior to
1956. In such a situation, therefore, the properties in the hands of late Sh. Jage Ram cannot be HUF properties in his hands because there is no averment of late Sh. Jage Ram inheriting ancestral property(s) from his paternal ancestors prior to 1956.”
18. Reference may also be made to the case of Surender Kumar vs. Tilak Raj Khurana, 2016 (155) DRJ 71, wherein the court held as under: “I would like to further note that it is hot 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 1956scenario a mere ipse 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...”
19. The reading of the aforesaid judgments leaves no room for doubt that there are certain requirements under law to establish the case of HUF. The vague averments without specifying the necessary details cannot be said to have met the standard required to prove the character of the property to be that of an HUF. Let us first examine what are the averments made in the amended plaint, with respect to the creation of HUF. The same are as follows:- “It is stated that there existed an HUF prior to coming into force of the Hindu Succession Act, 1956 and which HUF has been continuing since then till date. More specifically it is submitted as per the knowledge derived from within the family, that the great maternal grandfather namely Mr. Kedamath Dandona of the plaintiff has created the HUF way back pre partition of the country.” “……..It is further submitted the elder son of the great grandfather of the plaintiff has also died in the year early 1990's and thereafter, the demise of his elder brother, the maternal grandfather of the plaintiff being the surviving eldest male member of the family has become the karta of the said HUF. It is further submitted that during the period from creation of the HUF and till date all the movable and immovable properties either purchased by the great grandfather of the plaintiff or his sons were put into the Common hotch potch of the HUF and since then all the properties are the properties of the HUF and all the members of the HUF are entitle for their share in the same.” “That the aforesaid late Shri Somnath Dandona maternal grandfather of the Plaintiff was the karta of the Hindu Undivided family and the parties herein are the members / the coparceners in the HUF and were living under the common roof….” “That thereafter Late Shri Somnath Dandona the grandfather of the Plaintiff died on 25/03/2008 and Late Smt. Shyam Kumari Dandona the grandmother of the Plaintiff died on 05/02/2010. That during the lifetime of the grandparents the family was a HUF and thereafter, after the unfortunate demise is still a HUF. Both the maternal grandparents to the knowledge of the plaintiff had died intestate.”
20. Detailed facts are required to be stated under Order 6 Rule 4 CPC explaining as to how the properties have become HUF properties; the date when each of the property was thrown in the common hotchpotch; details showing that the properties are purchased from HUF Funds; details of the fact that the HUF existed prior to 1956. This has to be clearly and categorically averred with factual references qua each property that is claimed to be an HUF. A perusal of the averments in the amended plaint shows that the same are completely unspecific and vague. The Plaintiff has merely stated that the HUF existed prior to coming into force of the Hindu Succession Act, 1956 and the same has been continuing till date. However, the said averment remains unsubstantiated by any material placed on record. There are some photocopies of Income Tax and Wealth Tax Returns, filed by the Plaintiff and the same are relied upon to expound the existence of HUF. The computation of income annexed thereto is unsigned. The returns use the expression “specified HUF”. This specified HUF and its member are not described. This also contradicts the plea of the Plaintiff that the HUF existed prior to 1956 and the suit properties are purchased from the funds of the HUF. These documents do not in any way show that the properties were put in the family hotchpotch. The acquisition in the name of HUF and its existence prior to 1956 and continuation thereafter is also not established by these documents. The title of the properties continued to be that of self acquired. The necessary factual details are missing and thus the plaint does not plead a cause of action of existence of HUF and its properties. It is not enough for the Plaintiff to merely state in a plaint that an HUF came into existence pre 1956 and that the same has continued post 1956. The plaint also does not give any details regarding the acquisition of the property, the manner in which it was created, who were members of the HUF, or any other such factual details which are required under law to give rise to a cause of action of an HUF.
21. For the foregoing reasons, I am of the considered opinion that even the amended plaint does not disclose any cause of action qua the properties being suit properties and accordingly, the application under Order 7 Rule 11 CPC is treated as an application under Order 12 Rule 6 CPC. Resultantly, the application is allowed and the suit is dismissed as there is no cause of action which is found to exist with respect to the existence of HUF and its properties. Parties are left to bear their own costs.
SANJEEV NARULA, J. SEPTEMBER 23, 2019 /ss