Bishamber v. Sudhir Yadav

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no.2 in the suit impugning the judgment of the trial court dated 20.5.2017 decreeing the suit for specific performance as against the appellant/defendant no.2. 2017:DHC:3870

2. It is noted that originally when the suit for specific performance was filed seeking specific performance of the agreement to sell dated 10.10.2006 with respect to 11 bighas and 13 biswas of the land situated in K.No.51/3(4-16), 51/4/1(3-2), 51,7/2(1-10), 51/8/1(1- 16), 105/134 (0-19) in the Revenue Estate of Village Pandwala Kalan, Najafgarh, New Delhi there were a total of 8 defendants in the suit and the contesting defendants were defendant nos. 3 and 6. All the 8 defendants were the sellers under the subject agreement to sell dated 10.10.2006. All the defendants, except the defendant nos. 3 and 6, during the pendency of the suit executed the sale deeds of their shares in the suit land in favour of the respondent/plaintiff. Thus only the defendant nos. 3 and 6 remained who contested the suit and who thereafter became the defendant nos. 1 and 2.

3. I need not advert to the facts in detail inasmuch as the only issue which is argued before this Court and arise for decision is as to whether appellant was not entitled to enter into the agreement to sell because in the agreement to sell he stated that he had 1/8th share in the suit property whereas he only had 1/32 share in the suit property and this was on account of the fact that the appellant was not the sole owner of his 1/8th share and that his sons and grandsons had an equal right in the 1/8th share in the suit property on account of the suit property being inherited by the appellant as an ancestral property from his father.

4. It is not disputed before this Court that father of the appellant Sh. Dilip Singh expired in the year 1983. In law, ancestral property is no longer an HUF property in view of the judgment of the Supreme Court in the cases of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567 and Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204. As per the ratios of these judgments if after passing of the Hindu Succession Act in 1956 a person inherits property from his paternal ancestors then the inheritance is as a self acquired property and not as an HUF property in the hands of the person who inherits the same. Admittedly, there is no plea of any HUF existing of the appellant with his father and the only plea argued before this Court is that the appellant inherited ancestral property and therefore his sons and grandsons have equal right as that of the appellant in the suit property. Reliance in support of the arguments on behalf of the appellant is placed upon the judgment of the Supreme Court in the case of Sheela Devi and Others Vs. Lal Chand and Another, (2006) 8 SCC 581.

5. In my opinion, the arguments urged on behalf of the appellant is without substance in view of the categorical and direct ratios of the judgments of the Supreme Court in the cases Commissioner of Wealth Tax (supra) and Yudhishter (supra). I have had an occasion to examine this issue in the case of Sunny (Minor) and Anr. Vs. Raj Singh and Ors. 225 (2015) DLT 211 and in which judgment after referring to the ratios of the judgments of the Supreme Court in the cases Commissioner of Wealth Tax (supra) and Yudhishter (supra) it has been observed that merely inheriting of ancestral paternal property after 1956 will not make the property as an HUF property in the hands of the person who inherits the same and inheritance will only be as a self acquired property in the hands of the person who inherits the same. The relevant paras of the judgment in the case of Sunny (Minor) (supra) are paras 6 to 9 and which paras read as under:- “6. At the outset, it is necessary to refer to the ratio of the judgment of the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and in para 10 of the said judgment the Supreme Court has made the necessary observations with respect to when HUF properties can be said to exist before passing of the Hindu Succession Act, 1956 or after passing of the Act in 1956. This para reads as under:- “10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. MANU/SC/0265/1986MANU/SC/0265/1986: [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 Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. 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.” (emphasis is mine) 7(i). 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 self-acquired 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.

(ii) This position of law alongwith facts as to how the properties are

HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant no.1 being „ancestral‟ properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created ie whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter. 8(i). A reference to the plaint shows that firstly it is stated that Sh. Tek Chand who is the father of the defendant no.1 (and grandfather of Sh. Harvinder Sejwal and defendants no.2 to 4) inherited various ancestral properties which became the basis of the Joint Hindu Family properties of the parties as stated in para 15 of the plaint. In law there is a difference between the ancestral property/properties and the Hindu Undivided Family property/properties for the pre 1956 and post 1956 position as stated above because inheritance of ancestral properties prior to 1956 made such properties HUF properties in the hands of the person who inherits them, but if ancestral properties are inherited by a person after 1956, such inheritance in the latter case is as self-acquired properties unless of course it is shown in the latter case that HUF existed prior to 1956 and continued thereafter. It is nowhere pleaded in the plaint that when did Sh. Tek Chand father of Sh. Gugan Singh expire because it is only if Sh. Tek Chand father of Sh. Gugan Singh/defendant no.1 had expired before 1956 only then the property which was inherited by Sh. Gugan Singh from his father Sh. Tek Chand would bear the character of HUF property in the hands of Sh. Gugan Singh so that his paternal successors-in-interest became co-parceners in an HUF. Even in the evidence led on behalf of the plaintiffs, and which is a single affidavit by way of evidence filed by the mother of the plaintiffs Smt. Poonam as PW[1], no date is given of the death of Sh. Tek Chand the great grandfather of the plaintiffs. In the plaint even the date of the death of the grandfather of the plaintiffs Sh. Gugan Singh is missing. As already stated above, the dates/years of the death of Sh. Tek Chand and Sh. Gugan Singh were very material and crucial to determine the automatic creation of HUF because it is only if Sh. Tek Chand died before 1956 and Sh. Gugan Singh inherited the properties from Sh. Tek Chand before 1956 that the properties in the hands of Sh. Gugan Singh would have the stamp of HUF properties. Therefore, in the absence of any pleading or evidence as to the date of the death of Sh. Tek Chand and consequently inheriting of the properties of Sh. Tek Chand by Sh. Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the properties of Sh. Tek Chand prior to 1956.

(ii) In fact, on a query put to the counsels for the parties, counsels for parties state before this Court that Sh. Gugan Singh expired in the year 2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek Chand died in 1982, inheriting of properties by Sh. Gugan Singh from Sh. Tek Chand would be self-acquired in the hands of Sh. Gugan Singh in view of the ratio of the Supreme Court in the case of Yudhister (supra) inasmuch as there is no case of the plaintiffs of HUF existing before 1956 or having been created after 1956 by throwing of property/properties into common hotchpotch either by Sh. Tek Chand or by Sh. Gugan Singh/defendant no.1. There is not even a whisper in the pleadings of the plaintiffs, as also in the affidavit by way of evidence filed in support of their case of PW[1] Smt. Poonam, as to the specific date/period/month/year of creation of an HUF by Sh. Tek Chand or Sh. Gugan Singh after 1956 throwing properties into common hotchpotch.

(iii) The position of HUF otherwise existing could only be if it was proved on record that in the lifetime of Sh. Tek Chand a Hindu Undivided Family before 1956 existed and this HUF owned properties include the property bearing no.93, Village Adhichini, Hauz Khas. However, a reference to the affidavit by way of evidence filed by PW[1] does not show any averments made as to any HUF existing of Sh. Tek Chand, whether the same be pre 1956 or after 1956. Only a self-serving statement has been made of properties of Sh. Gugan Singh being „ancestral‟ in his hands, having been inherited by him from Sh. Tek Chand, and which statement, as stated above, does not in law mean that the ancestral property is an HUF property.

9. Onus of important issues such as issue nos.[1] and 2 cannot be discharged by oral self-serving averments in deposition, once the case of the plaintiffs is denied by the defendants, and who have also filed affidavit of DW[1] Sh.Ram Kumar/defendant no.2 in the amended memo of parties for denying the case of the plaintiffs. An HUF, as already stated above, could only have been created by showing creation of HUF after 1956 by throwing property/properties in common hotchpotch or existing prior to 1956, and once there is no pleading or evidence on these aspects, it cannot be held that any HUF existed or was created either by Sh. Tek Chand or Sh. Gugan Singh. In my opinion, therefore, plaintiffs have miserably failed to discharge the onus of proof which was upon them that there existed an HUF and its properties, and the plaintiffs much less have proved on record that all/any properties as mentioned in para 15 of the plaint are/were HUF properties.”

6. Reliance placed by the learned counsel for the appellant on the judgment in the case of Sheela Devi (supra) is misconceived because in that case there was an existing HUF and thereafter the issue arose with respect to inheritance of HUF properties. In the present case, HUF itself did not come into existence and hence the facts of the case of Sheela Devi (supra) being distinguishable, the ratio of said judgment does not help the appellant.

7. Learned counsel for the appellant seeks setting aside of the order of costs of Rs.1,00,000/- imposed upon the appellant as also direction issued to initiate proceedings under Section 340 Cr.P.C, however, I find that in a case such as the present these directions against the appellant are completely justified inasmuch as appellant himself has most illegally and dishonestly sought to frustrate the agreement to sell dated 10.10.2016, on a completely misconceived and non-maintainable legal plea.

8. In view of the above discussion, the trial court has rightly held that the appellant/defendant no.2 is the owner of 1/8th share of the property and not 1/32 share in the suit property inasmuch as in law an ancestral property is not an HUF property if the inheritance is after

1956.

9. Dismissed. JULY 25, 2017/ib VALMIKI J. MEHTA, J