Delhi High Court
Santosh Kumar Jain vs Mehtab Singh Jain & Ors on 13 April, 2018
Equivalent citations: AIRONLINE 2018 DEL 259
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 13th April, 2018
+ CS(OS) 3139/1991
SANTOSH KUMAR JAIN ..... Plaintiff
Through: Plaintiff-in-person.
Versus
MEHTAB SINGH JAIN & ORS ..... Defendants
Through: None.
AND
CS(OS) 3371/1992
SANTOSH KUMAR JAIN .... Plaintiff
Through: Plaintiff-in-person.
Versus
KIRAN JAIN & ORS. ..... Defendants
Through: Mr. Shekhar Nanavaty, Adv. for
D-9.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
CS(OS) No.3139/1991
1. The sole plaintiff instituted this suit for partition of 1/6 th share
claimed by the plaintiff in (i) 7/23, Makhan Lal Street, Darya Ganj, New
Delhi; (ii) 1/4th share in property no.1213 to 1216, Chandni Chowk,
Delhi (sold by defendant no.1 for Rs.2,00,000/-); (iii) 1/5th share in
property bearing no.301, Dariba Kalan, Delhi; (iv) property no.302 to
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 1 of 21
305, Dariba Kalan, Delhi; (v) half portion of property no.279/301,
Dariba Kalan; and, (vi) plot at Rangmahal Co-operative Society, Pitam
Pura, Delhi, and for rendition of accounts.
2. The case of the plaintiff as per the last amended plaint dated 19 th
May, 2010 in Part-I file is, (i) that there exists a coparcenary comprising
of defendant no.1 Mehtab Singh Jain and his three living sons i.e.
defendant no.6 (Surender Kumar Jain), defendant no.7 (Yashodhar
Kumar Jain) and the plaintiff and the grandsons i.e. sons of Subrat Das
Jain and R.D. Jain, the two predeceased sons of defendant No.1 Mehtab
Singh Jain; (ii) that there existed an ancestral business in the name of
Mehboob Singh Ranjit Singh Jain Jewellers at 1734, Dariba Kalan, Delhi
which was started with ancestral funds provided by the plaintiff's
grandfather Shri Mehboob Singh Jain; this business was run by the
defendant no.1 Mehtab Singh Jain and his brother Ranjit Singh Jain; (iii)
that there was a partition between defendant no.1 Mehtab Singh Jain and
his brother Ranjit Singh Jain in the year 1958; (iv) the defendant no.1
Mehtab Singh Jain since then started carrying on business under the
name of Mehtab Singh Jain & Sons Jewellers and the plaintiff, in the
year 1983, was taken as a partner in the said business by the defendant
no.1; (v) in 1989, defendant no.1 Mehtab Singh Jain separated and
relinquished his interest in the business as he was unable to work on
account of advance age and was paid off by the plaintiff; (vi) the plaintiff
since then is the sole proprietor of business in the name and style of
Mehtab Singh Jain & Sons Jewellers; (vii) that the plaintiff's grandfather
Mehboob Singh Jain had similarly set up his two other sons Bahadur
Singh Jain and Daryao Singh Jain in the business of jewellery and they
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 2 of 21
were also carrying on business in the name and style of Mehboob Singh
Jain & Sons at 1707, Dariba Kalan, Delhi; (viii) that the defendant no.1
Mehtab Singh Jain, out of his share of income of the business of
Mehboob Singh Ranjit Singh Jain Jewellers, purchased land underneath
and built property no.7/23, Makhan Lal Street, Darya Ganj, New Delhi
and which property having been built by ancestral funds is property of
Hindu Undivided Family (HUF) of defendant no.1 Mehtab Singh Jain
and his sons; (ix) Mehtab Singh Jain & Sons also owned 1/4th share in
property no.1213 to 1216, Chandni Chowk, Delhi which had come to
late Shri Mehboob Singh Jain in family partition and the said 1/4th share
in the property was of the HUF of defendant no.1 Mehtab Singh Jain;
however defendant no.1 Mehtab Singh Jain sold his 1/4 th share in the
said property without any legal necessity, for a sum of Rs.2,00,000/-
only and for which he is liable account for; (x) that Mehtab Singh Jain
HUF also owns 1/5th share in property no.301, Dariba Kalan, Delhi and
properties no.302, 303, 304 and 305, Dariba Kalan, Delhi and half of
building no.279/301, Dariba Kalan, Delhi; (xi) the defendant no.1
Mehtab Singh Jain executed and registered his last Will dated 2 nd
January, 1998 in which he admitted (a) property no. 7/23, Makhan Lal
Street; (b) 1/5th share in property no.301, Dariba Kalan, Delhi; (c)
property no.302 to 305, Dariba Kalan, Delhi; and, (d) half portion of
279/301, Dariba Kalan, New Delhi to be ancestral and of the HUF; (xii)
some portions of property no.7/23, Makhan Lal Street, Darya Ganj, New
Delhi are in occupation of defendants, some other portions are lying
vacant and the rest of the property is tenanted; (xiii) the plaintiff and
some of the defendants are in possession of part of property no.301,
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 3 of 21
Dariba Kalan, Delhi and the remaining property is in possession of other
owners thereof; (xiv) properties no.302, 303 and 304 are shops in the
tenancy of different defendants who though enjoying the same are not
paying rent thereof; (xv) property no.305, Dariba Kalan is in occupation
of some of the defendants; (xvi) property no.279/301, Dariba Kalan,
Delhi is also in occupation of some of the defendants; (xvii) defendant
no.8 Kund Lata Jain is the unmarried daughter of defendant no.1 Mehtab
Singh Jain and has been given a flat in Rangmahal Society, Pitampura,
Delhi by the defendant no.1 Mehtab Singh Jain but payment for which
flat was made out of joint family funds; this flat, though in the name of
the defendant no.8 Kund Lata Jain, is also HUF property; (xviii) the
defendant no.1 Mehtab Singh Jain is also in possession of jewellery, gold
and silver which belong to the joint family; and, (xix) that the defendant
no.1 Mehtab Singh Jain, taking advantage of his position as karta, had
been flittering away the HUF assets.
3. The suit came up first before this Court on 10th October, 1991
when, while issuing summons thereof, vide ex parte order, the
defendants were restrained from disposing of, selling, transacting,
alienating or in any other way parting with the properties subject matter
of the suit.
4. The defendant no.1 Mehtab Singh Jain filed a written statement to
the plaint as originally filed, along with Counter Claim, pleading (i) that
there was no joint Hindu family and he was thus not liable to render any
account; (ii) that the plot at Rangmahal Co-operative Society, Pitampura,
Delhi does not exist; (iii) that the suit claim was barred by Benami
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 4 of 21
Transactions (Prohibition) Act, 1988; (iv) that the suit, insofar as for
properties which had been put in Mehtab Munisubrat Das Dharmarth
Trust whose members had not been impleaded, was not maintainable; (v)
that the defendant no.1 Mehtab Singh Jain had five sons and seven
daughters; (vi) that the plaintiff, after living in USA till 1973, returned to
India and claimed before the Police that he with others was in
Engineering profession and was on his own and had not got anything
from his father; (vii) that there is no coparcenary and joint Hindu family;
(viii) all the sons of defendant no.1 Mehtab Singh Jain had been living
separately and messing separately and carrying on independent vocations
and there was no trace of jointness whatsoever; (ix) Shri Ranjit Singh,
younger brother of the defendant no.1 Mehtab Singh Jain, started his
proprietary business of jewellery at 1634, Dariba Kalan, Delhi, as far
back as in the year 1929, in the name and style of Mehboob Singh Ranjit
Singh; (x) defendant no.1 Mehtab Singh Jain at that time was engaged in
legal profession; (xi) subsequently, in the year 1931, the defendant no.1
Mehtab Singh Jain was taken as a partner by Ranjit Singh in the business
of Mehboob Singh Ranjit Singh; (xii) Mehboob Singh did not provide
any funds to Ranjit Singh or to the defendant no.1 Mehtab Singh Jain for
the purposes of the said business; (xiii) that the partnership business in
the name of Mehboob Singh Ranjit Singh was dissolved in the year 1958
and the defendant no.1 Mehtab Singh Jain since then was not doing
anything; (xiv) denying that Mehboob Singh Jain, father of the defendant
no.1 Mehtab Singh Jain, had settled the other two brothers of defendant
no.1 Mehtab Singh Jain namely Bahadur Singh Jain and Daryao Singh
Jain in business; (xv) the plot of land underneath the Darya Ganj
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 5 of 21
property was purchased by the defendant no.1 Mehtab Singh Jain and his
brothers Ranjit Singh and Daryao with their own funds and is the self
acquired property of defendant no.1 Mehtab Singh Jain; (xvi)
construction thereon also was made by defendant no.1 Mehtab Singh
Jain from his own personal funds; (xvii) defendant no.1 Mehtab Singh
Jain, since the very beginning, is assessed to Income Tax as an
independent and has been dealing with his properties as exclusive owner
thereof; (xviii) that the defendant no.1 Mehtab Singh Jain, when carrying
on jewellery business in the name Mehtab Singh Jain & Sons Jewellers,
had taken his son Surender Kumar Jain as an employee therein; however
subsequently the said Surender Kumar Jain left and started his own
business; (xix) the 1/4th share in property no.1213 to 1216, Chandni
Chowk, Delhi was bequeathed to defendant no.1 Mehtab Singh Jain by
his father, under a Will and the said 1/4th share in the property had since
been given to a religions Trust known as Mehtab Munisubrat Das
Dharmarth Trust which was functioning from the said property; (xx) the
1/4th share in property no.1213 to 1216, Chandni Chowk, Delhi having
been received by defendant no.1 Mehtab Singh Jain under the Will of his
father was the personal property of defendant no.1 Mehtab Singh Jain;
even if it were HUF property, the defendant no.1 Mehtab Singh Jain as
karta has done the right thing to create a charity and the plaintiff cannot
question the same; a certified copy of the said Will of the father of the
defendant no.1 Mehtab Singh Jain was being filed; (xxi) property
no.301, 279 and four shops bearing no.302 to 305, Dariba Kalan, Delhi
belonged to Mehboob Singh Jain who gifted 1/5th share therein to his son
Bahadur Singh and partitioned the remaining 4/5th share amongst his
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 6 of 21
three sons including defendant no.1 Mehtab Singh Jain; this is how
defendant no.1 Mehtab Singh Jain got 1/4th share in this property; the
Deeds of Gift and partition were being filed along with the written
statement; (xxii) thus, of the six properties subject matter of the suit, the
first five properties were properties of defendant no.1 Mehtab Singh Jain
only and the sixth property belonged to the defendant no.10 Kund Lata
Jain; (xxiii) that the defendant no.10 Kund Lata Jain completed her MA
and LL.B and had since then been doing tuition work to keep herself
occupied and had become a member of Rangmahal Cooperative Group
Housing Society as far back as in the year 1973 and in lieu of said
membership had been allotted a flat and which was the personal property
of the defendant no.10 Kund Lalat Jain; and, (xxiv) that the plaintiff is in
wrongful occupation of a room and bathroom on the second floor of
property no.279, Dariba Kalan, Delhi.
5. The defendant no.1 Mehtab Singh Jain along with his written
statement made a Counter Claim against the plaintiff for recovery of
possession of room and one bathroom on the second floor of property
no.279, Dariba Kalan, Delhi and one large room in property no.301 and
of shop 1734, Dariba Kalan, Delhi. However, the same was not
registered and no notice thereof was issued and no pleadings completed
thereon. Thus the said counter-claim has to be ignored.
6. The sons of Munisubrat Das Jain, predeceased son of defendant
No.1 Mehtab Singh Jain are also found to have filed a written statement
to the plaint as originally filed, though admitting the contents of the
plaint but pleading that the suit was not for partition of all the joint
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 7 of 21
family properties. However the said written statement is found to have
been signed and verified by Ravinder Jain alone.
7. Surender Kumar Jain, another son of defendant No.1 Mehtab
Singh Jain is also found to have filed a written statement to one of the
amended plaints, taking the same pleas as the defendant no.1 Mehtab
Singh Jain.
8. The plaintiff is found to have filed replication to the written
statement of the defendant no.1 Mehtab Singh Jain, to the written
statement of the sons of Munisubrat Das Jain and to the written
statement of Surender Kumar Jain. The plaintiff is also found to have
filed replication to the written statement of the defendant no.10 Kund
Lata Jain but the written statement of the defendant no.10 Kund Lata
Jain is not found on record.
9. On the pleadings of the parties, the following issues were framed
on 10th December, 2009:-
"1. Does the plaintiff prove entitlement to decree
for partition, as claimed, in respect of the
suit property?
2. Relief."
and the following additional issue is found to have been framed on
20th October, 2010:-
"1) Is the plaintiff entitled to decree for
accounts; if so from whom and to what extent?
OPP"
10. The plaintiff, in support of his case is found to have examined
himself only on 12th March, 2013 by tendering his affidavit in
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 8 of 21
examination-in-chief. The plaintiff was not cross-examined by any of the
defendants who were on that date recorded to be already ex parte.
11. The suit, vide order dated 23rd April, 2014, was ordered to be
listed in the category of 'Finals'. However before final arguments could
be heard, the suit, on enhancement of minimum pecuniary jurisdiction of
this Court, vide order dated 10th December, 2015, was ordered to be
transferred to the District Court. The Additional District Judge to whom
the suit was marked, however being of the view that notwithstanding the
enhancement of minimum pecuniary jurisdiction of this Court, the suit
had been wrongly transferred, vide order dated 27 th May, 2016
transferred back the suit to this Court. However vide order dated 2 nd
August, 2016 it was clarified that the suit had been wrongly transferred
back to this Court and was again transferred to the District Court. The
plaintiff thereafter applied for amendment of plaint to enhance the
valuation of the suit and which was allowed by the Additional District
Judge and since as per the amended enhanced valuation the suit was
beyond the maximum pecuniary jurisdiction of the Additional District
Judge, the suit was again transferred to this Court. The suit thereafter
came up before this Court on 28th March, 2017 along with CS(OS)
No.3371/1992 when the plaintiff in person and only the Advocate for the
defendant no.9 in CS(OS) No.3371/1992 appeared. The plaintiff
appearing in person stated that the suit was ripe for final hearing and he
had already filed his written submissions. Accordingly orders were
reserved in the suit.
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 9 of 21
12. The plaintiff, in its ex parte evidence, in view of the written
statement of defendant no.1 Mehtab Singh Jain contents whereof have
been narrated hereinabove, was required to prove the existence of the
HUF of which he was a member and further required to prove that the
properties of which partition was claimed are of the HUF and on which
basis the suit was filed. Only if the plaintiff in his ex parte evidence is
found to have established so would the plaintiff be entitled to a decree
for partition and rendition of accounts. Else, notwithstanding the
defendants having not cross-examined the plaintiff and being ex parte,
the suit will have to be dismissed. Though the defendant no.1 Mehtab
Singh Jain has since died but the claim if any of the plaintiff to a share in
the estate of his father Mehtab Singh Jain, as a son and natural heir of
Mehtab Singh Jain, if the plaintiff were to fail in the case with which he
has approached this Court, cannot be adjudicated in this suit, there being
no pleadings and evidence with respect thereto. This is more so because
the plaintiff himself in his last amended plaint aforesaid has pleaded a
Will of his father Mehtab Singh Jain.
13. The plaintiff, in his affidavit by way of examination-in-chief
tendered as PW1/A, besides repeating the contents of the plaint, has
deposed i) that there existed ancestral business of bullion in the name of
M/s Niranjan Das Hukum Chand in Gohana, Haryana and owned by
great grandfather of plaintiff L. Hukum Chand Jain; ii) that L. Hukum
Chand Jain shifted to Delhi and started a firm in the name and style of
Hukum Chand Jagodharmal at 1213, Chandni Chowk, Delhi; iii) that
Mehboob Singh, Jagodharmal, R.S. Amritlal and R.S. Ulfat Rai, being
sons of L. Hukum Chand Jain, joined their father L. Hukum Chand Jain
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 10 of 21
as partners in aforesaid business; iv) that an Agreement dated 15th
September, 1930 was arrived at between the grandfather of the plaintiff
Mehboob Singh Jain and his three brothers viz. Jagodharmal, R.S.
Amritlal and R.S. Ulfat Rai, certified copy of which obtained from the
record of Suit No.281/1974 of this Court was tendered in evidence by
summoning the file of Suit No.281/1974 of this Court and identifying the
signatures of defendant no.1 Mehtab Singh Jain and his brother Ranjit
Singh Jain as witnesses thereon; v) that the properties for which this suit
for partition had been filed, originated from and / or were created from
the funds obtained from ancestral business of Hukum Chand
Jagodharmal and hence there existed a coparcenary of defendant no.1
Mehtab Singh Jain and his sons and grandsons; vi) that the ancestral
nature of the business of the Mehboob Singh Ranjit Singh Jain is
confirmed by agreement dated 15th September, 1930; vii) that the
Relinquishment Deed filed by Surender Kumar Jain was tendered in
evidence and the same also confirms the ancestral nature of the business
in the name of Mehboob Singh Ranjit Singh Jain; viii) that the factum of
the plaintiff becoming a partner in the business of Mehboob Singh Ranjit
Singh was sought to be proved from carbon copy of a letter written by
the plaintiff to his brother Munisubrat Das Jain by tendering the same as
Exhibit PW1/2; ix) the documents executed between plaintiff and the
defendant no.1 Mehtab Singh Jain of retirement of defendant no.1
Mehtab Singh Jain from the business of Mehtab Singh Jain & Sons were
tendered in evidence; x) the autobiography of L. Hukum Chand Jain was
tendered in evidence and in proof of ancestral nature of the business; xi)
a Partition Deed dated 18th October, 1943 with respect to other properties
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 11 of 21
was tendered in evidence to demonstrate the ancestral nature of the
business of Mehboob Singh Ranjit Singh Jain; xii) the plaintiff has
similarly tendered in evidence several other documents filed by Surender
Kumar Jain who supported the defendant No.1 Mehtab Singh Jain, to
prove the existence of HUF.
14. The documents on which exhibit marks are purported to have been
put in the ex-parte evidence of plaintiff and referred to in the written
note of arguments of the plaintiff were however, at the time of perusing
this file and dictating the judgment not found in either of the four files of
this suit and the Restorer informs that there are no other records of the
present suit. As aforesaid, when the order/judgment was reserved in the
suit, the plaintiff had appeared in person and none had appeared for the
defendants and this fact was not pointed out and did not come to the fore
at that time. The written note of arguments of the plaintiff also contains
no explanation, though the affidavit in examination-in-chief of the
plaintiff, with reference to some of the documents on which exhibit
marks were put, refers to the list of documents under which the said
documents were filed. However there is no Part III file. However, on
pursuing with the Registry, an entire 'basta' of files has been found.
Obviously the endorsement made, of the file comprising of four volumes
only, by whosoever, is faulty. The Registry to, in future ensure that the
entire file is sent and if it is voluminous, a notation is made in bold on
Part I about the remaining files.
15. The documents so found have been perused.
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 12 of 21
CS(OS) No.3371/1992
16. This suit has been filed by the same plaintiff as in the aforesaid
suit, impleading inter alia the same defendants as in the aforesaid suit
and in addition impleading Mehtab Singh Munisubrat Das Jain
Dharmarth Trust as defendant No.8 and Krishna Devi as defendant No.9,
for the reliefs of declaration that the dedication and transfer of 1/4th share
in property No.1213 to 1216, Chandni Chowk, Delhi by Mehtab Singh
Jain in favour of Mehtab Singh Munisubrat Das Jain Dharmarth Trust is
illegal and bad and for declaration of the Sale Deed dated 3 rd May, 1991
executed by Mehtab Singh Jain in favour of Krishna Devi as illegal and
for setting aside of the same. The pleas in the plaint in this suit are the
same as in the suit aforesaid and in addition, it is pleaded (I) that since
Mehtab Singh Jain in his written statement filed in the aforesaid
disclosed creation of Mehtab Singh Munisubrat Das Jain Dharmarth
Trust and handing over of 1/4th share in property No.1213 to 1216,
Chandni Chowk, Delhi along with a flat, garage and roof in properties
No.4495/1 and 7/23, Makhan Lal Street, Darya Ganj, Delhi to the said
Trust and since the dedication of the properties to the Trust is illegal and
bad in law because Mehtab Singh Jain could not have created any such
Trust in respect of the properties which are ancestral, it has become
incumbent upon the plaintiff to institute this suit for declaration as null
and void of the dedication and transfer of the properties to Mehtab Singh
Munisubrat Das Jain Dharmarth Trust as illegal; (II) that the trustees of
the said Trust never received and took possession of the properties and
thus no Trust came into existence in the eyes of law; (III) that Mehtab
Singh Jain acting as the Trustee of the Trust had also sold the said 1/4th
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 13 of 21
share in the property No.1213 to 1216, Chandni Chowk, Delhi to
Krishna Devi and which fact also had come to the knowledge of the
plaintiff when some changes were being carried out in the property and
hence the need to set aside said sale also.
17. This suit came up before this Court first on 28th September,
1992,when while issuing summons thereof, status quo was directed to be
maintained with respect to 1/4th share in property No.1213 to 1216,
Chandni Chowk, Delhi.
18. Written statement to the suit is found to have been filed by
Surender Kumar Jain, defendant in this suit also. None of the other
defendants are found to have filed written statement.
19. The following issues were framed in the suit on 23 rd October,
2007:
"1. Whether the plaintiff is entitled for a declaration that the
sale deed dated 3rd May, 1991 executed by M/s. Mehtab
Singh Munisubrat Das Jain Dharmarth Trust is bad and
illegal? OPP
2. Whether the plaintiff is entitled for declaration without
seeking cancellation of sale deed dated 3rd May, 1991?
OPP
3. Whether the properties Nos.1214-1216, Chandni Chowk,
Delhi were the self-acquired properties of late Shri Mehtab
Singh Jain as alleged by defendant, if so, to what effect?
OPD
4. Relief."
and Issue No.2 was ordered to be treated as a preliminary issue.
20. The plaintiff sought amendment of the plaint to get over the
preliminary issue and which was allowed vide order dated 1 st September,
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 14 of 21
2010 and resultantly the preliminary issue did not survive and the
plaintiff relegated to leading evidence.
21. The plaintiff is found to have on 2nd February, 2013 tendered in
evidence his affidavit by way of examination-in-chief and none cross-
examined him with notation that the defendants were ex-parte vide order
dated 28th September, 2012.
22. I may however notice that prior thereto, vide order dated 20th July,
2012, the plaintiff was put to notice that prima facie the suit, on the pleas
therein was not found to be maintainable in view of judgments of the
Supreme Court in Commissioner of Wealth Tax Etc. Etc. Vs. Chander
Sen Etc. AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar AIR
1987 SC 558, inasmuch as after passing of the Hindu Succession Act,
1956, any person who receives property from his paternal ancestors
receives so as his self-acquired property and not as property of his HUF
and that the plaint did not show any reference to existence of HUF.
However, several adjournments were taken thereafter and applications
moved from time to time, which led to the said aspect being lost and the
plaintiff having led his ex-parte evidence.
23. This suit also faced the same fate as the aforesaid suit, with being
transferred, transferred back, again transferred and yet again transferred
back to this Court.
24. Thereafter, this suit along with the aforesaid suit was listed on 28th
March, 2017 when only the counsel for Krishna Devi appeared and the
plaintiff stated that this suit had been filed for setting aside of sale of
portion of one of the properties for partition whereof, earlier suit had
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 15 of 21
been filed. It was enquired from the plaintiff and the counsel for Krishna
Devi on 28th March, 2017, as to what was the need to proceed with the
present suit. It prima facie appeared that if the suit for partition were to
be allowed and decreed, Mehtab Singh Munisubrat Das Jain Dharmarth
Trust and Krishna Devi, as assignees of Mehtab Singh Jain,
notwithstanding the assignment/sale in their favour, could get only the
share of their assignor and nothing more and there was thus no need to
set aside the sale/assignment. The plaintiff however stated that the
property was ancestral and the plaintiff wanted the property to remain in
family fold and that is why has applied for setting aside of the sale deed.
However, on further enquiry, it was informed that the property which
had been sold to Krishna Devi is commercial and not residential. Though
it was observed in the order dated 28th March, 2017 that this suit shall be
considered after judgment in the aforesaid suit but on going through the
files and having found that the outcome of the present suit depends on
the outcome of the aforesaid suit, it is not deemed appropriate to keep
this suit for consideration, after decision of aforesaid suit and it is
deemed expedient to adjudicate the same along with the aforesaid suit.
25. The ex-parte evidence of the plaintiff in this suit, needless to state,
is on the same lines as the ex-parte evidence in the aforesaid suit. The
documents referred to in the ex-parte evidence and purported to have
been proved are however found on record of the present suit and have
been perused.
CS(OS) No.3139/1991 & CS(OS) No.3371/1992
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 16 of 21
26. The only question for adjudication, as aforesaid, is whether a
coparcenary/HUF, as claimed by the plaintiff and denied by his father
Mehtab Singh Jain, exists and whether the six properties of which
partition is claimed are proved to be properties of such coparcenary/HUF
of Mehtab Singh Jain and his sons and grandsons. If it is so proved,
plaintiff as son of Mehtab Singh Jain would be a coparcener in the said
coparcenary/HUF and would be entitled to a share therein. Else, the
suits are liable to be dismissed.
27. For the following reasons, I hold that the plaintiff has been unable
to prove the existence of the coparcenary/HUF or the properties to be of
such coparcenary/HUF:
(A) Merely because the ancestors of the plaintiff have been carrying
on business, does not prove the existence of a coparcenary or
HUF.
(B) Rather the business is deposed as being carried on not as a Joint
Hindu Family firm but as a partnership and which negates the
existence of any Joint Hindu Family inasmuch as had there been
any Joint Hindu Family, the business would have been carried on
as a business of the Joint Hindu Family and/or as a business of a
Joint Hindu Family Firm and not in partnership.
(C) It is the deposition of the plaintiff that his great grandfather
Hukum Chand Jain was carrying on business in partnership with
his sons including the grandfather of the plaintiff. It is also the
deposition of the plaintiff that the grandfather of the plaintiff along
with his brothers was also carrying on business in partnership. In a
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 17 of 21
share of a partner in a partnership business, the sons and
grandsons of the partner do not have any right, title share of
interest.
(D) Merely because the business of the partnership firms from time to
time was the same, though may lead to the family members
referring to it as ancestral business, but does not create a HUF or
coparcenary, in law.
(E) The plaintiff has similarly also deposed that he was taken in as a
partner by his father defendant no.1 Mehtab Singh Jain in the
business being carried on by him. Had the business been of
family, the question of plaintiff being taken in as a partner therein
would not have arisen as the plaintiff from birth would then have
had a share therein.
(F) The relationship of the plaintiff with his father defendant no.1
Mehtab Singh Jain with respect to the said business would thus be
governed by the Partnership Act, 1932 and not by the ancient
Hindu law pertaining to coparcenary, Hindu Undivided Family
and Joint Hindu Family Firm.
(G) It is also the evidence of the plaintiff himself that on his father
Mehtab Singh Jain ceasing to be a partner, the firm in the name
and style of which the plaintiff and his father Mehtab Singh Jain
were carrying on business was dissolved and accounts thereof
settled. It would not have been so had the business been of a
coparcenary or Joint Hindu Family. The other brothers of the
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 18 of 21
plaintiff and their sons also would then have been concerned and
having a share in the business, and which is not the plea.
(H) Mere mention in the documents, of the business of jewellery
which the members of the family in partnership had been carrying
from time to time, as ancestral business would not change the
nature and character of the business from that of a partnership,
governed by Partnership Act to the business of a Joint Hindu
Family or Joint Hindu Family Firm, governed by ancient hindu
law.
(I) If the pleas of existence of HUF/Joint Hindu Family/Ancestral
business were to lead to existence of such HUF, all the sons of L.
Hukum Chand Jain and their families would also be members of
such HUF in as much as no partition therewith is pleaded and
proved. The factum of the plaintiff not pleading so and not making
them parties to the suit and not including properties held by such
family members in this suit, negates the pleas of existence of
HUF/Joint Family Business.
(J) It has come in evidence that the family members were filing
income tax returns. Even otherwise, the business being carried on
from time to time must have been assessed to various taxations
and there must be records of holding and assessments of several
properties. It is not the plea that anywhere there is any mention of
HUF, as would have been if the income and properties were of
HUF/Joint Hindu Family Business or coparcenary. Adverse
inference has to be drawn against the plaintiff therefrom.
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 19 of 21
(K) The plaintiff, in his ex parte evidence, has relied heavily on
admissions of his brother Surender Kumar Jain. Surender Kumar
Jain, though filed written statement supporting the father Mehtab
Singh Jain, is in the same position as plaintiff and merely because
he may have at sometime also pleaded/claimed coparcenary or
HUF would not bind the father Mehtab Singh Jain in whom the
title to the properties as sole owner vested.
(L) Once the existence of any Joint Hindu Family or Joint Hindu
Family Firm or coparcenary has not been established, the evidence
of the properties having been acquired from the earnings of
coparcenary/Joint Hindu Family Business does not arise and the
properties would not be of the HUF or of coparcenary.
(M) The paternal grandfather of the plaintiff Mehboob Singh Jain died
after coming into force of the Hindu Succession Act, 1956 and
thus what was inherited by Mehtab Singh Jain father of the
plaintiff from his father Mehboob Singh Jain was not ancestral or
coparcenary property in the hands of Mehtab Singh Jain but was
personal property of Mehtab Singh Jain and in which the plaintiff
as son of Mehtab Singh Jain has/had no share.
(N) This Court in order dated 20th July, 2012 in CS(OS) No.3371/1992
rightly expressed a prima facie opinion of the claim of the plaintiff
in both the suits being not maintainable in view of Chander Sen
and Yudhishter supra.
28. Thus Suit No.3139/1991 for partition, on the premise of existence
of an HUF/coparcenary and the properties of which partition is sought
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 20 of 21
therein being of the HUF/coparcenary and the plaintiff as a coparcener of
the HUF/coparcenary having a share therein and being entitled to
partition, fails.
29. Once CS(OS) No.3139/1991 fails, the plaintiff in CS(OS)
No.3371/1992 cannot have any basis for declaration as bad of the
alienations or dispositions of the property made by his father Mehtab
Singh Jain in whose name admittedly title to such properties vested and
in which the plaintiff has not been found to have any share. Resultantly,
CS(OS) No.3371/1992 also fails.
30. The suits are thus dismissed.
However no costs.
Decree sheets be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 13, 2018 'pp/gsr/bs'..
CS(OS) No.3139/1991 & CS(OS) No.3371/1992 Page 21 of 21