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JudgmentReserved On:March 02,2017
JudgmentDelivered On:March 06.2017 RFA(OS^ 46/2016
SAGAR GAMBHIR Appellant Represented by: Mr.Kirti Uppal,Sr.Advocate instructed by Ms.Aastha Dhawan and Mr.Harsh Kumar,Advocates
HEIRS&ANR Respondents Represented by: Mr.A.S.Chandhiok,Sr.Advocate instructed by Mr.J.K.Chawla and
Mr.Rajan Chawla,Advocatesfor R-l(i)to R-l(v)
Mr.Rajesh Yadav,Advocatefor R-2
HON'BLE MR.JUSTICEYOGESHKHANNA PRADEEP NANDRAJOG,J.
JUDGMENT
1 TheappellantisthegrandsonoflateSukhdev SinghGambhir,whom he impleaded as defendant No.l in a suit seeking partition. Appellant's uncle:Anil Gambhir wasthe second defendant.The appellant is the son oflate Sh.SunilGambhir, thesecondsonbomtoSukhdev Singh Gambhir. The appellant claims share through his father in properties bearmg municipal No.B-4/8 Poorvi Marg(NEA)Rajinder Nagar,New Delhi and D-II/83,Sector-10,Faridabad(Haryana).He also claims 1/3''share inthe income and assets ofthe firm Mis Gian Singh Sukhdev Singh carrying on Page 1 of10 RFA(OS)No.46/2016 2017:DHC:8961-DB T businessfrom K-42,ConnaughtPlace,New Delhi.Case pleaded isthatthe property atRajinder Nagar and Faridabad was purchased from the funds ofthe firm M/s Gian Singh Sukhdev Singh which was set up by the late grandfatheroftheplaintiffand assuchthesameis ancestralinthehandsof the appellant. Itis pleaded;'Theplaintiffbelieves thateven thefundsfor the business camefrom the properties left behind in Pakistan prior to partition ofIndia.Similarly,the incomefrom thefirm Gian Singh Sukhdev Singh is also liable to be dividedamongstthe legalheirs oflateShriSunil Gambhir to the extent ofhis share, as he was the grandson oflate Shri Gian Singh who wasthe owner/proprietorofthefirm Gian SinghSukhdev Singh. The property at Faridabad is also an HUF property as per information oftheplaintiff. '
2. The defendants deniedthe averments madeinthe plaint and pleaded thatthefirm M/s Gian Singh Sukhdev Singh wasthe sole proprietaryfirm of defendant No.l who migrated to India and settled m Delhi during partition. Asarefiigee he came with nofunds. The native place now in Pakistan wasJhelam. Ownership ofthetwo properties,partition whereof was prayed for, was claimed to be his and for which plea the title documents were relied upon. Itis pleaded thatthe property atFaridabad had been sold.
3 Asthe suitlingered on,defendantNo.l died. Hislegal heirs were broughtonrecord. AppellantfiledlANo.13263/2013toamendtheplaint bylaying achallengetothe saleoftheproperty atFaridabadonthe plea that being property ofthe HUF,defendantNo.l could not sellthe same withouttheconsentoftheother coparceners. A will dated May29,2008 which waspropoundedbydefendantNo,2wasalsochallenged. Page2of10
4. An application registered as lA No.1525/2011 for discovery and inspection was also fded concerning sale ofthe property at Faridabad as alsothe wealth-taxreturn,ifany,filed bydefendantNo.l.
5. The defendants filedlA No.1325/2012 invoking Order VII Rule 11 oftheCodeofCivilProcedurepleadingthattheavermentsintheplaintdid not disclose a cause ofaction.
6. Videimpugnedorderdated May06,2016,relyinguponthedecision oftheSupremeCourtreported as(1987)1 SCC204 YvMMervs.Ashok Kumar, and two decisions ofthis Court reported as 225(2015)DLT 211 fMinor)& »"'• & O"- 227(2016)DLT 217 Kumar nhnni Kam & Ors. the learned Single Judge has held thatthepleadings wereillusoryand.didnotdiscloseacauseofaction. The suithasbeen dismissed,and wetreatthistobeamisnomerforthereasonif a plaint does not disclose a cause of action it has to be rejected. Qua challengetothewill,thelearned SingleJudgehasheldthatthiswouldbea separatecauseofactionandaseparatesuitcouldbefiled.
7. Laying a challenge to the impugned order,Sh.Kirti Uppal,learned Senior Counsel for the appellant argued thatthe impugned order suffers from aseriousproceduralInfirmity,inthat,thelearnedSingleJudgeought tohavefirstdecidedappellant'sapplicationtoamendtheplaint andifthe amendment was allowed,to consider thereafter whether as amended the plmntdisclosedacauseofaction. Onmerits,learnedSeniorCounselurged thatIt wassufficientavermentto be madethatdefendantNo.l setupthe firm from ancestralfundsandthetwo properties partitioned whereofwas prayedforwereacquiredfromthegainsofthesaidancestralbusiness.The third grievance wastothe view takenin para9oftheimpugned decision wherein the learned Single Judge has referred to the written statement filed concerning the firm M/s Gian Singh Suldtdev Singh,which was Page3of10 RFA(OS)TSto.46/2016 Id t' pleaded to bethe sole proprietaryfirm ofdefendantNo.l withthe pleathat he used his father's name out ofrespect and that on May 10, 1980 it was converted into a partnership firm by inducting appellant's father as a partner who retired from the firm with effectfrom March 31,1992interms ofthe retirement deed dated April 07,1992.
8. Pertaining to the first grievance, whilst it may be true that procedurally the learned Single Judge ought to have first decided the application filed bythe appellantto amend the plaint. Butwe find thatsaid procedural error needs to be overlooked in the facts and circumstances of the instantcase because while seeking to amend the plaintthe appellant did not expand upon the existing pleadings concerning the HUF. Challenge wasto the sale effected by defendantNo.l ofthe property atFaridabad and thattoo without proposing to implead the purchaser. The challenge wason the ground thatthe property belonged to HUF.
9. It thus has to be seen whether actionable pleadings have been made inthe plaint quathe claim.
10. In ChanderSen'^case(supra), the Supreme Courtheldthatafterthe promulgation of the Hindu Succession Act, 1956, the traditional view underthe HinduLaw nolongerremained the legal position. Thisdecision was followed incase (supra) the Supreme Court held that after the promulgation of the Hindu Succession Act, 1956, the traditional view undertheHinduLaw nolongerremainedthelegalposition. Thisdecision was followed in YudhishterS case (supra). We agree with the legal position noted by the learned Single Judge which flows out ofthe two decisionsoftheSupreme Court,which would be asunder;- "(i) Ifaperson dies afterpassingoftheHinduSuccession Act, 1956 and there is no HUF existing at the time ofthe death of such a person, inheritance of an immovable propertyofsuchaperson byhissuccessors-in-interest is no Page4of10 u doubt inheritance of an 'ancestral' property hut the inheritance is as a self-acquired property in the hands of the successor and not as an HUE property although the successor(s) indeed inherits 'ancestral' property i.e. a property belonging to hispaternalancestor.
(ii) The only way in which a Hindu Undivided
1956) is if an individual's property is thrown into a common hotchpotch. Also, once aproperty is thrown into a common hotchpotch^ it is necessary that the exact details of the specific date/month/year etc. ofcreation ofan HUEfor 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 ofOrder VI Rule 4 CPC which provides that all necessaryfactual details ofthe cause ofaction must be clearly stated. Thus, if an HUE 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 ashare in such HUEproperty. (in) An HUE 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 inheritedprior to'1956from paternal ancestors. Once that status and position continues even after 1956; ofthe HUE and of its properties existing; a coparcener etc. will have a right to seek partition ofthe properties.
(iv) Even before 1956, an HUE can come into existence even withoutinheritance ofancestralpropertyfrompaternal ancestors,asHUEcould have been createdprior to 1956by throwing ofindividualproperty into a common hotchpotch. Ifsuch an HUE continues even after 1956, then in such a case a coparcener etc ofan HUEwas entitledtopartition of theHUEproperty." RFA(OS)No.46/2016 5of10 t
11. In the decision reported as JT 2012(3)SC 451 Maria Marsardia Secfueria Fernandes & Ors. v. Erasmo Jack de Secfueria(dead) Thru LRs, the facts of the case were that the appellant No.l and respondent No.l therein were brother and sister. The respondent No.l had filed a suit under Section 6 of the Specific Relief Act, 1963 against the appellant No.l seeking grant of a decree of permanent and mandatory injunction in his favour in respect ofthe suit property. In the plaint filed,it was alleged by respondent No.l that he remained in possession of the suit property for several years by virtue ofa family arrangement; his sister, appellant No.l had dispossessed him from the suit property without following the due process of law and thus the possession of the suit property should be restored to him.On the other hand,appellantNo.l contended thatshe is the rightful owner of the suit property and had given possession ofthe suit property to her brother as a caretaker. The trial courtdecreed the suitfiled by respondent No.l,which decree was affirmed by the High Court. The Supreme Courtheldthatthe pleadings andthe documents placed onrecord by the parties establishes that appellant No.l had a valid title to the suit property and had given possession ofthe suit property to her brother as a caretaker; the respondent No.l had not been able to establish any family arrangement by virtue of which the possession of the suit property was given to him;caretaker,watchman or servant can never acquire interestin the property irrespective of their long possession and the courts are not justified in protecting the possession ofa caretaker,servant or any person who was allowed to live in the premises for some time,either as a friend, relative or caretaker. Thus, the Supreme Court allowed the appeal. Though the matter had reached the Supreme Court after trial and parties had led their evidence,the Supreme Court laid emphasis that Courts must accord due attention to the pleadings, and in civil cases pertaining to RFA(OS)No.46/2016 ^of t) property, must accord the necessary consideration to the admitted documents filed by the parties and highlighted that this care would preyent many a false claims from sailing beyond the stage ofissues. In paragraph 73 to 79 of the opinion, the Supreme Court highlighted that suspicious pleadings,incomplete pleadings and pleadings not supported by documents would not eyen warrant issues to be settled. Thus,the said observations of the Supreme Court would be very relevantin the instant case.
12. We need to note a very pertinent observation, on the subject of pleadings, by the US Supreme Court in the decision reported as 556 U.S. 662, John D. Ascroft. Former Attorney General v Javaid Iqbal:factual allegations must be enough to raise a right to reliefabove the speculative level. The pleadings must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action and recitals ofthe elements ofa cause of action, supported by mere conclusory statements,do notsuffice. Althoughfor thepurposes of a motion to dismiss we must take all of thefactual allegations in the complaintasatrue, weare notboundto acceptastruealegalconclusion couched as factual allegation only a complaint that states a plausibleclaimforreliefsurvivesa motion to dismiss\
13. In the decision reported as 2011 (6)SCALE 677 Ramrameshwari Devi vs.Nirmala Devi in para 52(a) the Supreme Court highlighted that pleadings are foundation ofthe claim by a party and it is the bounden duty and obligation ofevery trial Judge to carefully scrutinize the pleadings and the documents on which the pleadings are predicated. In the decision reported as AIR 1999 SC 1464 D.M.Dehpande vs. Janardhan Kashinath Kadam,the Supreme Court highlighted the relevance ofpleading material facts. In the decision reported as AIR 1982 Bom.491 Nilesh Construction Co. vs. Gan2u Bat with reference to a plea oftenancy,the Bombay High RFA(OS)No.46/2016 Page7of10 IM e Court highlighted that pleadings must disclose the details with reference to the day when the tenancy was created and the exact nature thereof. In the decision reported as AIR 2006 SC 1828 Mavar(HK)Ltd. & Ors. vs. Owners & Parties Vessel MV Fortune Express, the Supreme Court highlighted the requirement to read pleadings meaningfully in view ofthe relied upon documents and see whether the same are not illusory or vexatious.
14. On November 21, 2011 this Court while deciding RFA (OS) 78/2011 P.K. Gupta vsEssAar Universal(P)Ltd. held as under:- "11. We need to highlight that thefundamentalprinciples, essential to the purpose ofa pleading is to place before a Courtthe case ofaparty with a warranty oftruth to hindthe party and inform the other party ofthe case it has to meet. It means that the necessaryfacts to support a particular cause ofaction or a defence should be clearly delineated with a clear articulation ofthe reliefsought. It is the duty of apartypresentingapleading toplace all materialfacts and make reference to the material documents, relevant for purposes offair adjudication, to enable the Court to conveniently adjudicate the matter. The duty ofcandour approximates uberrimafides when apleading,duly verified, ispresentedto a Court. In thiscontextit may be highlighted that deception may arise equally from silence as to a materialfact,akin to a directlies. Placingallrelevantfacts in a civillitigation cannot be reducedto agameofhide and seek. In the decision reported as 2011 (6) SCALE 677 Rameshwari Devi vs. Nirmala Devi the Supreme Court highlighted thatpleadings are thefoundation ofa claim of theparties and where the civil litigation is largely based on documents, itis the bounden duty and obligation ofthe Trial Judge to carefullyscrutinize, checkand verify thepleadings and the documentsfiled by theparties.
12. Highlighting that pleadings must be sufficient and consequence of laconic pleadings, which cannot be permitted, and the failure to plead sufficient details amountingto an insufficientplea,in the decision reportedas RFA(OS)No.46/2016 Page8of10 AIR 1999 SC 1464 P.M. Deshpande v^' Janardhan Kashinath Kadam,the Supreme Court observed qua a claim for tenancy that in the absence ofa concise statement of materialfacts relating to the tenancy, the mere raising ofa plea oftenancy is not enoughfor the purpose ofraising an issue on the question. The Court cautioned against a pedantic approach to the problem and directed that the Courts must ascertain the substance ofthepleading and not theform, in order to determine the same. It was observed thatpertaining to a claim oftenancy, the exact nature ofthe right which is claimed has to be set-forth and no issue pertaining to existence of tenancy could be framed on a vagueplea."
15. The pleadings by the appellant is only to the effect that the property at Rajinder Nagar was purchased by the grandfather ofthe appellant from out ofthe funds ofthe firm M/s Gian Singh Sukhdev Singh which was set up by the late grandfather of the appellant and that the funds for the business came from the properties left behind in Pakistan. No derails or particulars ofthe properties left behind atPakistan have been pleaded. We take judicial notice ofthe fact that post-partition, people who migrated to India from the territories ofthe newly State ofPakistan were required to file claims before the custodian of evacuee properties and upon proof of properties left behind in Pakistan, compensations were assessed. These people were treated as refugees and either money or an immovable property was allotted to these refugees by the Ministry ofRehabilitation, Government of India. In the plaint the lack of pleadings to said effect cannot be overlooked. There is thus a bald assertion without any material particularsregarding the firm M/s Gian Singh Sukhdev Singh being setup by the great grandfather ofthe appellant. The appellant has himselffiled documents, and one of which is an income-tax assessment order for the Assessment Year 1957-58 concerning the income-tax return of the defendant No.l. The same shows that the business of M/s Gian Singh RFA(OS)No.46/2016 ^ u t Sukhdev Singh wasthe sole proprietary business ofdefendantNo.1 and the source offunds to acquire the property in Rajinder Nagar was from the income generated from the firm. This document being filed by the appellant could be looked into by the learned Single Judge and the only error in the impugned order would be one ofnarrative offact wherein said documenthas been referred to as relied upon by the defendants. It is a case wherethe appellant as well asthe defendants relied uponthe documents.
16. The positive statements required by law to be pleaded in the plaint regarding constitution ofan HUF are missing as has been rightly held by the learned Single Judge.
17. We concur with the view taken that the plaint does not disclose an actionable cause of action and we supplement by recording that the proposed amendment ofthe plaint does not improve this lack ofactionable pleading.
18. Defendant No.1 died during the pendency ofthe suit and defendant No.2 propounded a will statedly executed by defendant No.l. We agree with the view taken by the learned Single Judge that ifthe appellant has to challenge the will a separate ofcause ofaction has to accrue and it would be open to the appellant to claim partition ofthe properties as devolving upon the legal heirs through intestacy.
19. The appeal is accordingly dismissed but without any order as to costs. (PRADEEPNANd'iIAJOG) JUDGE
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