Delhi High Court
Raj Kumar vs Ram Bhaj Bansal & Ors on 2 August, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 2nd August, 2019
+ CS(OS) 2665/2013, IA No.22130/2012 (u/O XXXIX R-1&2
CPC), IA No.654/2013 (u/O XXXIII r/w S 151 CPC), IA
No.9087/2015 (u/O VII R-11 CPC)
RAJ KUMAR ..... Plaintiff
Through: Ms. Shreya Rao, Adv.
Versus
RAM BHAJ BANSAL & ORS ..... Defendants
Through: Mr. S. Chaturvedi, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff Raj Kumar instituted this suit against his father
Ram Bhaj Bansal and against his father‟s three brothers viz. Ram
Kumar, Laxmi Narayan and Narayan Dass, for a) declaration, b)
partition, and, c) permanent and mandatory injunction.
2. The father of the plaintiff, defendant no.1, having died during
the pendency of the suit, his heirs minus the plaintiff were substituted.
3. The suit came up for admission before the undersigned on 8 th
January, 2013, when doubts were expressed as to the maintainability
thereof and on request of the counsel for the plaintiff, hearing
adjourned to 15th January, 2013. The plaintiff thereafter sought
amendment of the plaint which was allowed on 15th January, 2013.
Though on 15th January, 2013 also doubts were expressed as to the
maintainability of the suit on the plea of existence of an HUF,
reasoning that the claim of the plaintiff was contrary to Commissioner
of Wealth Tax Vs. Chander Sen (1986) 3 SCC 567 and Bhanwar
CS(OS) No.2665/2013 Page 1 of 8
Singh Vs. Puran (2008) 3 SCC 87, but finding that the plaintiff had
sued as an indigent person, enquiry into the indigency of the plaintiff
was ordered.
4. The counsel for the plaintiff informs that the plaintiff
subsequently withdrew the application under Order XXXIII Rule 1 of
the CPC to sue as an indigent person and the plaint was registered as a
suit. The defendant no.(1a), 3 and 4 have filed written statement to the
plaint. The written statement of none of the other defendants are on
record, and the counsel for the plaintiff states that the remaining
defendants have been proceeded against ex parte.
5. Today, IA No.9087/2015 of the defendant no.(1a), 3 and 4
under Order VII Rule 11 of the CPC is for consideration and the
counsel for the applicants / defendants and the counsel for the plaintiff
have been heard.
6. It is the case of the plaintiff in the amended plaint, (i) "that the
plaintiff is seeking partition in the properties purchased and left behind
by his grandfather Late Sh. Gyani Ram in the capacity of a coparcener
in the Joint Hindu Family which was headed by Late Sh. Gyani Ram
during his life time."; (ii) that the plaintiff and the defendants (1a) to
(1d) were born out of the first marriage of deceased defendant no.1
and the defendants (1e) & (1f) were born out of the second marriage
of deceased defendant no.1; (iii) "that since the year 1940 and during
his life time Late Sh. Gyani Ram was carrying on the business of dal
and grains under the name and style of „M/s Kanhaiya Lal Gyani
Ram‟ from the premises No.2074, Old Anaj Mandi, Narela, Delhi and
was looking after the affairs and interest of the entire family
CS(OS) No.2665/2013 Page 2 of 8
comprising of himself and other family members including the
defendants"; (iv) that Gyani Ram, out of joint family funds, purchased
various properties in the name of one or the other member of the joint
family, with the intention that the same should be used for the benefit
of all the members / coparceners of the joint family / coparcenary; (v)
list of 17 properties is given in paragraph 5(iv) of the plaint; (vi) that
Gyani Ram, till his death was residing along with his family members
at 2074, Old Anaj Mandi, Narela, Delhi which was purchased by
Gyani Ram for the benefit of and / or enjoyment of all of the family
members; (vii) that in November, 2009, the plaintiff learnt that the
defendant no.1 had filed a suit for partition of 2074, Old Anaj Mandi,
Narela, Delhi and another property against the defendants no.2 to 4,
claiming each of the defendants no.1 to 4 to be having one-fourth
undivided share therein; (viii) that the plaintiff applied for
impleadment in the said suit, pleading the properties with respect to
which the suit was filed to be joint family properties; however the said
application was dismissed, holding that the plaintiff ought to file a
separate suit asserting his rights; (ix) that a preliminary and thereafter
final decree for partition was passed in the said suit; and, (x) that the
said preliminary as well as final decree are bad in law and liable to be
cancelled, having been obtained by fraud and depriving the plaintiff of
his one-eighth share in the property. On the said pleas, reliefs of (a)
declaration that the preliminary and final decree for partition in the
suit inter se the defendants no.1 to 4 had been obtained by
misrepresentation and by playing fraud; (b) declaration that the
properties listed in paragraph 5(iv) of the plaint are properties
CS(OS) No.2665/2013 Page 3 of 8
purchased by Late Sh. Gyani Ram as Karta of Hindu joint family from
joint family funds; (c) declaration that the plaintiff is entitled to one-
eighth share from the proceeds of sale of the two properties with
respect to which the preliminary and final decree for partition had
been passed; (d) declaration of the plaintiff being entitled to 1/32th
share in the properties mentioned in paragraph 5(iv); and, e) partition
of the said properties and injunctions with respect thereto have been
claimed.
7. Need to go into the written statement of the defendants (1a), 3
and 4 is not felt, being of the view that the present is yet another suit
of the genre of suits which have been dealt with by this Court in
Neelam Vs. Sada Ram 2013 SCC OnLine Del 384, Sunny (minor)
Vs. Raj Singh 2015 SCC OnLine Del 1346, Surender Kumar Vs.
Dhani Ram (2016) 227 DLT 217, Kamlesh Devi Vs. Shyam Sunder
Tyagi 2017 SCC OnLine Del 12701 and Saurabh Sharma Vs. Om
Wati 2018 SCC OnLine Del 9186, obviously filed on a misconception
of the ancient Hindu law prevalent prior to the coming into force of
the Hindu Succession Act, 1956 and of the Hindu Succession Act,
1956 itself. In fact, I may mention that plaint as originally filed and
which had come up first before this Court on 11th December, 2012 was
purely on the basis of the belief that since the properties qua which the
suit was filed were of the grandfather of the plaintiff, the plaintiff had
a share therein. It is only when the counsel for the plaintiff was
quizzed on 11th December, 2012 and 8th January, 2013, that the
application for amendment was filed to bring in the words of Joint
CS(OS) No.2665/2013 Page 4 of 8
Hindu Family and coparcenary in the plaint, and which is obviously
an afterthought.
8. This misconception is evident, from the counsel for the plaintiff
today also, being unable to tell, upon asking, as to when Gyani Ram,
grandfather of the plaintiff, died. The counsel for the plaintiff is
unable to also respond whether it was before or after coming into force
of the Hindu Succession Act.
9. Though the plaintiff, in the amended plaint has paid lip service
to a claim for partition, by using the terminology Joint Hindu Family
and coparcenary, but the averments in the plaint do not constitute any
plea of Joint Hindu Family. It is not the plea in the plaint that Gyani
Ram had inherited anything from his ancestor. All that is pleaded is
that Gyani Ram with his income had purchased the properties, of
which partition is sought, in different names. There is nothing also to
show, apart from a bare plea, that Gyani Ram acquired the properties
from a nucleus of the Joint Hindu Family for the properties acquired to
be presumed to be joint family property. It is not even the plea that
Gyani Ram, at any point in his lifetime, though not having any
coparcenary or Joint Hindu Family, constituted any Joint Hindu
Family with his sons and threw all his personal properties into the
hotchpotch of Joint Hindu Family.
10. Else, after coming into force of the Hindu Succession Act,
1956, there is no presumption of jointness and even if the averments in
the plaint are to be accepted on their face, the plaintiff, as a grandson
of Gyani Ram, would not have any share in the estate of Gyani Ram.
CS(OS) No.2665/2013 Page 5 of 8
11. The counsel for defendants No.(1a), 3&4 has also informed that
the plaintiff filed objections in the execution proceedings of the decree
for partition with respect to two properties, in the suit aforesaid and
which objections were premised on the same facts as in this suit and
were dismissed vide order dated 21st January, 2017 by the Court of
Additional District Judge, Central-07, Delhi and no remedy
thereagainst also has been preferred.
12. Once the plaintiff has preferred objections in the execution
proceedings and which as per law are required to be disposed of in the
same way as a suit, and the said objections have been dismissed, even
if without recording any evidence, the plaintiff at least qua two of the
properties which were subject matter of the said decree, is barred by
the principles of res judicata from agitating the same by way of this
suit. Thus, the suit, insofar as for declaration of the decree in Suit
No.892/2008 to be bad, is even otherwise not maintainable and the
claim for partition of the properties subject matter thereof is barred by
res judicata.
13. The counsel for the plaintiff has argued that at the time of
purchase of property No.2074, Old Anaj Mandi, Narela, Delhi,
defendant No.1 i.e. the father of the plaintiff was in a government job
and had no means to purchase the said property and the defendant
No.2 was working with the father, the defendant No.3 was barely 22
years of age and the defendant No.4 was 4 years old and it is quite
obvious therefrom that the property was purchased by Gyani Ram
from his own monies.
CS(OS) No.2665/2013 Page 6 of 8
14. As aforesaid, even if it be so, the plaintiff still gets no share in
the estate of Gyani Ram.
15. Even otherwise, the plea of Gyani Ram being the real owner of
the property, though in the name of others, is also barred by the
Benami Law, as also held in the judgment of dismissal of objections to
the execution filed by the plaintiff.
16. The counsel for the plaintiff has also argued that the defendant
No.1, being the father of the plaintiff, was taking care of his children
from his second marriage only and was not taking care of the plaintiff
and defendants No.(1a) to (1d).
17. If the plaintiff had any right against his father, the remedy of the
plaintiff was to sue his father only and not to sue for partition of the
entire estate of Gyani Ram.
18. The suit, on the averments in the plaint, does not disclose any
right, title, interest or entitlement of the plaintiff to a share in the
properties of which partition is sought, and the suit, insofar as for
declaration of the decree in Suit No.892/2008 as bad in law, is barred
by res judicata.
19. The counsel for the defendants no.(1a), 3 and 4 now informs
that Gyani Ram died in the year 1999.
20. On demise of Gyani Ram, after coming into force of Hindu
Succession Act, only his sons will have a share therein and the
plaintiff, being a grandson, will have no share.
21. The suit is thus dismissed with costs of Rs.25,000/- payable by
the plaintiff to the defendants No.(1a),3&4.
No costs.
CS(OS) No.2665/2013 Page 7 of 8
Decree sheet be drawn up.
22. The dismissal of this suit will however not come in the way of
plaintiff claiming share in estate of his father.
RAJIV SAHAI ENDLAW, J.
AUGUST 02, 2019 „gsr/bs‟..
(Corrected & released on 16th August, 2019) CS(OS) No.2665/2013 Page 8 of 8