Delhi District Court
Smt Sarla vs Ram Singh (Now Deceased) on 13 March, 2020
IN THE COURT OF SH. HASAN ANZAR, ADJ-06
WEST DISTRICT,TIS HAZARI COURTS
RCA No. 61043/16
1. Smt Sarla
D/o Sh Amrit Singh
2. Ms Ritika
D/o Sh Ram Singh
3. Sh Rahul
S/o Sh Ram Singh
All R/o B -3/7, First floor,
Model Town, Delhi -09
..........Appellants
Versus
1. Ram Singh (now deceased)
through his LR's
a) Smt Ram Kour
(mother of Ram Singh, already
on record as respondent no. 2)
2. Sh Ram Kour
W/o Late Sh Hari Chand
R/o Village Kharkari, Delhi
3. Sh Bal Kishan
S/o Sh Mahavir Singh Yadav
(Now deceased)
Through his LR's:-
RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 1 /25
a) Smt Sunita Devi
W/o Sh Bal Kishan
b) Sh Kunal Yadav
S/o Sh Bal Kishan
c) Ms Akansha
D/o Sh Bal Kishan
d) Ms Pooja
D/o Sh Bal Kishan
All at 97-4B, Jawahar Nagar,
Subzi Mandi, Delhi
4. Smt Omwati
W/o Sh Rattan Lal
Village Malora, Tehsil Mawana
Distt Meerut, UP
5. Smt Daya
W/o Sh Mukesh Kumar
R/o 387, Village Kapashera, Delhi
.........Respondents
Date of Institution: 25.08.2011
Date Reserve for judgment : 23.01.2020
Date of Judgment : 13.03.2020
JUDGMENT
1. Appellants/ plaintiffs have preferred the appeal in case titled as Sarla and Ors. Vs. Ram Singh and Ors. against judgment and decree RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 2 /25 dated 05.07.2011 whereby suit for permanent injunction and declaration filed by plaintiffs/ appellants was dismissed by Ld. Civil Judge, West District, Tis Hazari, Delhi.
2. Parties shall be referred by their status as appearing before Ld. Trial Court.
3. Plaintiffs/ Appellants have filed suit for permanent injunction and declaration in respect of property bearing no. B-3/7, Model Town, Delhi-09 and from the facts as deduced from the plaint are that plaintiff No.1, plaintiff No.2 and 3 are wife and children of Defendant No.1. It is further case of plaintiffs that they alongwith defendant no. 2 and 3 jointly owned a part in House Bearing no. B-3/7, Model Town, Delhi-09 which is a common ancestral joint Hindu Family Property and plaintiffs being co-parcener of joint Hindu Family by operation of law are in joint possession of the said House with defendant no.2 and 3 and plaintiffs are thus having 1/5 share each in property. It is also averred that plaintiffs were neglected by defendant no.1. Plaintiffs are in occupation of one room in first floor of property bearing No. B-3/7, Model Town, Delhi. It is also pleaded that it has come to the knowledge of plaintiff that a sale deed dated 02.06.1997 was executed by defendant No. 1,2,4 and 5 in favour of defendant No.3 vide Registered Sale Deed before Office of Sub Registrar, Delhi vide register No. 4704, Book No.1, Volume No. 363 at page 146 to RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 3 /25 152 on 13.06.1997. It is pleaded that defendant no. 1 and 2, Omvati and Dayawati have no right to sell the share of plaintiff and also pleaded that plaintiffs cannot be dispossessed without due process of law. Plaintiff prayed for decree of permanent injunction and for relief of declaration for declaring sale deed dated 13.06.1997 in favour of Defendant No. 3 as null and void. It is pertinent to mention that earlier plaintiffs have initially filed suit for declaration and permanent injunction and later on moved an application for amendment of plaint as sale deed dated 13.06.1997 came to the knowledge of plaintiff and application for amendment was allowed vide order dated 25.02.2003 and consequently amended plaint was taken into record on 07.08.2003.
4. Written Statement was filed on behalf of defendant No. 1 and 2. Apart from raising objection that suit is not valued properly for the purposes of court fees and jurisdiction, suit cannot be instituted on behalf of plaintiff no.2 and 3 without appointing guardian. It is asserted that Late Gheesa Ram bequeathed his property by virtue of Will dated 21.01.1982 and first floor of property was bequeathed in favour of Defendant No.3.
5. It is also stated that Sh Hari Chand died on 31.05.1996 leaving behind some LR's. It is also pleaded that defendant no.3 purchased the share of Sh Hari Chand from his Legal heirs by virtue of registered RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 4 /25 sale deed dated 13.06.1997. It is also pleaded that since defendant no.3 has purchased the share of Hari Chand and also other share from other legal representative i.e Sh Somdutt on 10.01.1996 in respect of the ground floor portion of the property, therefore, defendant No.3 became absolute owner of property bearing no. B-3/7, Model Town, Delhi-09.
6. It is also pleaded that plaintiffs are occupying the first floor portion of property bearing no. B-3/7, Model Town, Delhi-09 after the death of Hari Chand. It is also pleaded that except plaintiffs, all the LRs of Late Sh Gheesa Ram and Sh Hari Chand have handed over their respective portion in the property bearing no. B-3/7, Model Town, Delhi. It was denied that plaintiffs are entitled for 1/5th share in suit property as claimed in the plaint. Defendant No.1 and 2 prayed for dismissal of suit. Objection is also taken to the effect that plaintiff no.2 and 3 who were minor could not have instituted the present suit without appointment of guardian and since defendant no.1 is the next friend and guardian of the minor children. It is also stated that in the absence of the appointment of guardian, present suit could not have been continued by plaintiff no.2 and 3.
7. Written Statement was filed by defendant no. 3 in which plea is taken to the effect that Defendant No. 3 is owner of property bearing No. B-3/7, Model Town, Delhi. It is also pleaded that First Floor RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 5 /25 portion of the above property was bequeathed in favour of Defendant No.3 by Shri Gheesa Ram and Ground floor portion was bequeathed in favour of legal heirs of Gheesa Ram including plaintiff. It is also averred that all other legal heirs have executed sale deed in respect of Ground Floor Portion and answering defendant no.3 has sold the same to Ishwar Singh. Defendant No. 3 denied the existence of common joint and ancestral property. Defendant No.3 denied existence of any rights of plaintiff in the suit property.
8. On the basis of pleadings, following issues were framed on 15.01.2004;
Issue no.1: Whether the suit of the plaintiff is not properly valued for the purpose of court fees and jurisdiction.? OPD Issue no.2: Whether the suit has been instituted properly as the plaintiff no.2 and 3 are minors without appointing the legal next husband(friend) of the plaintiff ?OPP Issue no.3: Whether the plaintiff is entitled for declaration as prayed for ? OPP Issue no.4: Whether the plaintiff is entitled for injunction as prayed for? OPP
9. Ld Trial Court dismissed the suit filed by plaintiff/appellant on the following grounds which are as under :
RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 6 /25 a. Suit has not been properly instituted on behalf of plaintiff No.2 and 3, who are minors before the court without appointment of next friend. It was held by Ld Civil Judge that non appointment of next friend on behalf of plaintiff no.2 and 3 is both an illegality and irregularity.
b. Ld Civil Judge also held that it was an admitted position between the parties that property bearing no. B-3/7, Model Town, Delhi was purchased by Shri Gheesa Ram and first floor was exclusively bequeathed by him to plaintiff and remaining portion i.e ground floor and other portion was bequeathed by him to other legal heirs including plaintiff. Sale Deed which was exhibited as Ex.PW-1/1 and in the present suit as Ex PW- 1/3(in connected suit bearing no. 618/06) does not establish that it was purchased out of joint Hindu Family business. Ld Civil Judge also held that even if it is presumed that Gheesa Ram died intestate, then his sons namely Hari Chand, Mahavir Singh and Som Dutt shall have only 1/3 rd Share in the suit property and if Hari Chand died intestate by living behind four children, then husband of plaintiff would not have more than 1/12 share in the suit property.
c. Ld Civil Judge, also noted that in Evidence by way of affidavit RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 7 /25 of plaintiff, it was admitted that suit property was purchased by Gheesa Ram and once the factum with regard to admission of purchase of suit property by Sh. Gheesa Ram is made by plaintiffs themselves, therefore, the case of plaintiffs to the effect that entire suit property was an ancestral property is demolished. It was also held by Ld Civil Judge that since it had been proved that Sh Gheesa Ram had executed a Will in respect of property in dispute being its owner, there can be no right of plaintiffs in respect of the property in dispute and hence, it can not be held that suit property is a joint family property.
d. Ld Trial Court also held that in connected suit, Will executed by Shri Gheesa Ram is already on record. (It is pertinent to mention that certified copy of judgment dated 02.05.2012 of connected suit bearing no.618/2006 titled as Balkishan Vs. Sarla Devi has also been placed into the record of the present case and appeal against the same is also preferred.
10. I have heard ld counsel for parties and perused case file alongwith Trial Court record. I have also considered the written submissions filed by both the parties.
11. It is pertinent to mention that in connected suit bearing No.618/2006, Ld Civil Judge, held that Will dated 21.01.1982 was RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 8 /25 proved in accordance with law and in the connected civil appeal bearing RCA No.61084/16, it was already held that defendant No.3 / Respondent No. 3 has proved the Will in accordance with law and furthermore, it was already held that property bearing No B-3/7, Model Town, Delhi is not the ancestral or common joint Hindu family property.
12. Suit property was purchased by Lt Gheesa Ram S/o Chaudhary Kripa Ram in his own name vide sale deed Ex.PW1/1 (which was duly exhibited in CS No.618/06) on 16.03.1956 and the suit property was the self acquired property and same was bequeathed by Gheesa Ram on 21.01.1982 in which he specifically bequeathed the first floor portion of the property bearing no. B-3/7, Model Town, Delhi-09 in favour of the plaintiff i.e. specific share was allocated to Bal Kishan. Section 30 of the Hindu Succession Act provides that a Hindu can dispose of his property either by Will or by such other disposition or by any other law time being enforced and since the first floor portion of the suit property has been bequeathed in favour of defendant no.3/respondent no.3 and other part of suit property has been sold by other LRs in favour of defendant no.3 by registered sale deed.
13. Therefore objection as raised on behalf of appellant/ Plaintiff is not tenable, since reading of the issues framed by Ld. Trial Court would reveal that Ld Trial Court has rightly and correctly framed all RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 9 /25 the issues and plea of Joint and ancestral property as attempted to be raised by appellant/defendant would fall flat since suit property was originally purchased by Shri Gheesa Ram and once the suit property was self acquired property of Late Shree Gheesa Ram, who died on 25.02.1989 and then by virtue of operation of Section 30 of Hindu Succession Act, property would be liable to be disposed in such manner as the self acquired property of deceased.
14. In order to consider the contention that suit property is common ancestral and joint Hindu Family property, it is noteworthy to consider the judgment titled as Surender Kumar Vs. Dhani Ram, in CS OS1737/2012 dated 18.1.2016, taking into consideration number of judgments, Hon'ble Delhi High Court held as under ;
"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 10 /25 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. 6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such CS(OS) No.1737/2012 Page 5 of 16 even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties. 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) & Anr. vs. Sh. Raj Singh & Ors., 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 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 RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 11 /25 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.
(ii) 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, RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 12 /25 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. The relevant paragraphs of the judgment in the case of Sunny (Minor) (supra) are paragraphs 6 to 8 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 RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 13 /25 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 RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 14 /25 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 RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 15 /25 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 RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 16 /25 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 coparceners 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 PW1, no date is given of the death of Sh.
RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 17 /25 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 PW1 Smt. Poonam, as to the specific date/period/month/year RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 18 /25 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 PW1 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."
28. 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 RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 19 /25 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 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.
10. A reference to the plaint in the present case shows that it is claimed that ownership of properties by late Sh. Jage Ram in his name was as joint Hindu family properties. Such a bald averment in itself cannot create an HUF unless it was pleaded that late Sh. Jage Ram inherited the properties from his paternal ancestors prior to 1956 or that late Sh. Jage Ram created an HUF by throwing his own properties into a common hotchpotch. These essential averments are completely missing in the plaint and therefore making a casual statement of existence of an HUF does not mean the RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 20 /25 necessary factual cause of action, as required in law, is pleaded in the plaint of existence of an HUF and of its properties.
29. 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 mandate of the language contained in sub Sections (1) and (2) of RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 21 /25 Section 4 of the Benami Act. 12. This Court is flooded with litigations where only self-serving 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."
Above view of Hon'ble Delhi High Court was reiterated in number of Judgment such as JAI NARAIN MATHUR & ORS Vs JAI AKASH MATHUR (DECEASED) THROUGH LR's RFA No.571/2011 dated 9th February, 2016.
15. In view of the ratio of above referred judgment as held by Hon'ble Delhi High Court and followed in various other judgments RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 22 /25 and upon evaluating the case as set up in the plaint and the evidence as led on behalf of the plaintiff would indicate that plaintiff has failed to explain as to how the suit property is a common ancestral joint Hindu family property as same was the self acquired property of Late Gheesa Ram who bequeathed various portion of the property to his legal heirs.
16. Issues in a case are framed on the basis of pleadings of the parties and bald plea unsupported by facts would make it apparent that there is no requirement to frame such that suit property was common ancestral property. Furthermore, Ld Civil Judge, Delhi has evaluated the abundant material on record and the and returned the finding that suit property was self acquired property of Sh. Ghisa Ram and after his death, property is to be devolved in accordance with Section 30 of Hindu Succession Act.
17. Once the property was self acquired property of deceased Gheess Ram, then such property has to be devolve in accordance with section 30 or Section 8 of Hindu Succession Act, 1956 and any such property coming into the hands of such legal heirs shall be his self acquired property and such legal heirs can dispose of the property in such manner as he or she likes and in the present case, all legal heirs RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 23 /25 have sold ground floor portion of suit property to Balkishan,defendant No. 3 by various sale deed and present defendant No. 3 was already owner of first floor of property bearing No. B-3/7, Model Town, Delhi-9 by virtue of will dated 21.1.1982 and therefore, plaintiffs cannot seek an injunction against true owner.
18. No evidence or material has been brought into record which even remotely suggests that after the death of Sh Gheesa Ram, the legal heirs of Sh Gheesa Ram have treated the suit property as a joint Hindu Family property or there is a common nucleus by which the suit property is to be treated as joint Hindu family property.
19. Suit was filed by plaintiff no.1 on behalf of plaintiff no.2 and 3 stating that plaintiff no.2 and 3 are minor children of plaintiff no.1. Perusal of the record shows that specific issue has been framed with regard to maintainability of the suit as suit was filed without appointment of Guardian. Ld Civil Judge has rightly held that a suit cannot be instituted without appointment of guardian and the said objection was taken at a very initial stage however, plaintiff no.1 did not take any step for moving a separate application for appointment of legal guardian of plaintiff no.2 and 3 and therefore, suit filed on behalf of no.2 and 3 would not be maintainable
20. In view of the abovementioned discussion, the appeal filed RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 24 /25 by appellants is devoid of merits and thus dismissed. All pending application stands disposed of in view of the above mentioned discussion.
Copy of this judgment alongwith Trial Court record be sent back to the Ld Trial Court.
Appeal file be consigned to record room as per law.
Announced in the Open Court
on 13.03.2020 (Hasan Anzar)
Additional District Judge-06
West District, THC
RCA No.61043/16 Sarla and Ors. Vs. Ram Singh and Ors. Page no. 25 /25