Delhi High Court
Mrs. Saroj Salkan vs Mrs. Huma Singh And Ors. on 5 May, 2016
Author: Valmiki J. Mehta
Bench: Valmiki J.Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.683/2007
% 5th May, 2016
MRS. SAROJ SALKAN ..... Plaintiff
Through: Ms. Malvika Rajkotia, Advocate
with Ms. Arpita Rai, Advocate and
Mr. Vaibhav Vats, Advocate.
Versus
MRS. HUMA SINGH AND ORS. ..... Defendants
Through: Ms. Neelam Singh, Advocate for
defendant No.2.
Mr. N Prabhakar, Advocate for
defendant Nos.3 and 4.
Mr. H.P. Sharma, Advocate for
defendant No.5.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
1. This suit is filed for partition, rendition of accounts etc by the plaintiff Ms. Saroj Salkan. Plaintiff is the daughter of late Gen. Budh Singh.
Defendant nos.1 to 5 are the legal heirs of late Sh. Anup Singh who is the late son of late Gen. Budh Singh. Defendant no.6 in the suit is the sister of the plaintiff and late Sh. Anup Singh and the daughter of late Gen. Budh Singh.
2. The counsel for the plaintiff argues that the suit properties stated in para 2 of the plaint are ancestral properties except the property no.C-38, Anand CS(OS) No.683/2007 Page 1 of 20 Niketan, New Delhi and which is said to have been purchased from the sale of the ancestral properties. Para 2 of the plaint detailing the properties which are said to be ancestral properties or acquired from the funds of the sale of the ancestral properties, reads as under:-
"2. That Late Gen. Budh Singh was a resident of Barota, Sonepat, Haryana. The family owned substantial ancestral property. The details of the property are described in the List of Documents.
However, broadly there were
a) Barota (72 acres approx. with farm house)
b) 11 acres at Kalupur, (Sonepat)
c) Eight bighas of Diary Plot at Sonepat
d) Bhatgaon (30 acres) (House, Outhouses, Orchard)
e) House No.C-38, Anand Niketan, New Delhi
However, plaintiff seeks leave of this Hon‟ble Court to permit her to include other properties if they come to know about it after filing the suit. The above said properties are ancestral properties that had been with the family for generations and/or were acquired out of the funds of the joint family, of which the late Gen. Budh Singh was the karta."
3. At the outset, I may note that so far as the properties (b) and (c) are concerned being 11 acres of land at Kalupur (Sonepat) and eight bighas of diary plot at Sonepat, the suit is liable to be dismissed in limine because no details whatsoever of these lands are given. For a cause of action in law to exist for filing of a suit for the land or immovable property, it is necessary that the lands have to be described specifically with respect to specific revenue numbers or municipal numbers. This is required obviously because only for a really existing property that a suit will lie whether for partition or otherwise and for a property to CS(OS) No.683/2007 Page 2 of 20 exist there must be such references in the plaint that it has to be identified. Order VII Rule 1 of the Code of Civil Procedure, 1908 (CPC) as per its sub-Clause (e) requires stating of a complete cause of action, and for an immoveable property complete cause of action exists only if the complete details of the properties are mentioned in the plaint or at least after reasonably mentioning in the plaint, documents are filed to show the exact description and the area of the property alongwith revenue numbers or municipal numbers. Spirit of Order VII Rule 1(e) CPC is also found in Order VI Rule 4 CPC which requires necessary particulars to be given in a pleading wherever so required. Rule 3 of Order VII CPC clinches the issue as it requires that where the subject matter of a suit is an immoveable property, the plaint shall contain description of the property sufficiently to identify the same with reference to the boundaries or the numbers in a record of settlement or survey. The defendants have denied that any such properties as stated in para 2(b) and (c) of the plaint have at all existed, and accordingly in view of the fact that there are no requisite details whatsoever existing/pleaded in the suit plaint or description of properties shown by means of the documents filed with respect to these alleged properties existing at Kalupur and Sonepat, the suit plaint is liable to be and is accordingly dismissed for these properties.
4. Now there would remain three properties which would be the subject matter of the partition suit. The first property is property stated in para 2(a) at CS(OS) No.683/2007 Page 3 of 20 Barota, the second property stated in para 2(d) is at Bhatgaon and the third property is House No.C-38, Anand Niketan, New Delhi.
5. So far as the property at Barota is concerned, the plaintiff in the plaint has mentioned that with respect to this property a suit no.671/71 was filed by the two minor sons of late Sh. Anup Singh. This suit resulted in a Judgment and Decree dated 6.4.1972. Copy of the plaint of this suit and the decree dated 6.4.1972 of this suit has been filed by the plaintiff herself and I have gone through the same. It is seen from these documents that the present plaintiff was also a plaintiff in that suit. The effect of this Judgment dated 6.4.1972 is that there is a declaration in favour of the plaintiff of the plaintiff getting rights alongwith the two minor sons of late Sh. Anup Singh in the Barota land. It is however seen that the plaintiff has also filed herself alongwith the list of documents dated 5.3.2014, the plaint of another suit filed by the father Gen. Budh Singh to which the plaintiff/daughter as also another daughter Smt. Sharda Hooda, defendant no.6 in the present suit, were party/defendants. A reference to this suit plaint filed and the Judgment dated 8.3.1977 of the Sub Judge, Sonepat in this suit shows that it was held by this judgment which was on admission (as was also the earlier judgment in suit no.671/71) that the plaintiff in the present suit and the defendant no.6 in the present suit being the two daughters agreed and gave up any rights in the Barota land. I may note that under Section 74 of the Indian Evidence Act, CS(OS) No.683/2007 Page 4 of 20 1872, this Court is entitled to look at the certified copy of the judgment more so when the certified copies are filed by the plaintiff herself.
6. Qua this property at Barota, counsel for the plaintiff has argued that plaintiff being the dutiful daughter, and as per the social circumstances prevailing at that time, she did not oppose the passing of the first Judgment and Decree on 6.4.1972 in suit no.671/71 and thereafter in the second suit no.66/1977 decided by the Judgment dated 8.3.1977 which gave exclusive ownership of the Barota land to the father late Gen. Budh Singh and it is argued that hence these decrees are collusive and not binding on the plaintiff.
7. In my opinion, averring in a suit of the year 2007 that decree passed way back on 8.3.1977 i.e 30 years back is to be treated as collusive and hence not binding cannot help the plaintiff because as per the decree, the father did act as the owner of the Barota land. More importantly Article 59 of the Limitation Act, 1963 debars the plaintiff from raising this argument as this article states that a suit to cancel or set aside an instrument or decree should be filed within three years of the knowledge of the decree, and therefore in the year 2007 plaintiff cannot be allowed to challenge a decree passed way back on 8.3.1977. Clearly therefore Barota land has to be held of the father late Gen. Budh Singh and it cannot be held that this Barota land was an HUF property. Also this Barota land cannot be held as an HUF for the reasons which I am giving hereinafter and which will also CS(OS) No.683/2007 Page 5 of 20 cover the issue with respect to properties stated in para 2(d) and 2(e) i.e Bhatgaon land and the C-38, Anand Niketan property.
8. What is an HUF and its properties have been dealt with by this Court in the judgment in the case of Surender Kumar Vs. Dhani Ram and Ors. 227 (2016) DLT 217. In this judgment, I have only followed the ratio of the judgment of the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and which judgment follows the earlier ratio laid down by the Supreme Court in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567. The ratios of the judgments in the cases of Yudhishter (supra) and Commissioner of Wealth Tax, Kanpur and Others (supra) are that after passing of the Hindu Succession Act, 1956, inheritance by a person of an ancestral property would not be HUF in his hands but would be a self acquired property in his hands. I have also observed in the judgment in the case of Surender Kumar (supra) as to how an HUF and its properties come into existence pre 1956 i.e before passing of the Hindu Succession Act, 1956 and also post 1956. I have also made observations as to when a cause of action pleaded is complete for the suit to be a suit seeking partition of HUF properties. I have also referred to the aspect that merely mentioning the existence of ancestral properties would not mean existence of HUF and its properties, and which aspect was in fact considered by me in the judgment in the case of Sunny (Minor) & Anr. Vs. Sh.
Raj Singh and Ors. 225 (2015) DLT 211. In the case of Sunny (Minor) & Anr.
CS(OS) No.683/2007 Page 6 of 20(supra) the plaint laid a cause of action of properties being ancestral properties and hence the plaintiff being entitled to claim partition, and on such pleadings it was held by this Court that alleging existence of ancestral properties is not the same thing as alleging existence of HUF and its properties, and which is because of the ratios of the judgments of the Supreme Court in the cases of Yudhishter (supra) and Commissioner of Wealth Tax, Kanpur and Others (supra) that inheritance of ancestral property after 1956 does not make the inherited property an HUF property. In the case of Surender Kumar (supra) the plaintiff had gone one step further i.e existence was alleged of „HUF and its properties‟ i.e not of the properties being „ancestral properties‟. Thus the pleadings in the case of Surender Kumar (supra) contained averments as to existence of HUF and its properties, yet it was held that bland and incomplete pleadings of existence of HUF and its properties cannot become a cause of action unless it is specifically stated that the properties which were inherited were prior to 1956 and if properties were inherited after 1956, then, existence of HUF and its properties can only be by throwing of properties in common hotchpotch and which is by making specific pleadings as to when/month and year the properties were thrown into common hotchpotch for creation of HUF properties.
9. The relevant paras of the judgment in the case of Surender Kumar (supra) and which also reproduces the ratio laid down in the earlier case of Sunny (Minor) & Anr. (supra) are paras 4 to 13 and these paras read as under:-
CS(OS) No.683/2007 Page 7 of 20"4. Plaintiff claims that as a son of defendant no.1 and as a grandson of late Sh. Jage Ram, plaintiff is entitled to his share as a coparcener in the aforesaid suit properties on the ground that the properties when they were inherited by late Sh. Jage Ram were joint family properties, and therefore, status as such of these properties as HUF properties have continued thereby entitling the plaintiff his rights in the same as a coparcener.
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 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 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, CS(OS) No.683/2007 Page 8 of 20 inheritance of an immovable property of such a person by his 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.
(iii) 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, 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:-CS(OS) No.683/2007 Page 9 of 20
'10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. MANU/SC/0265/1986MANU/SC/0265/1986 :
[1986]161ITR370(SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis- a-vis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."
(emphasis is mine) 7(i). As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter‟s paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in CS(OS) No.683/2007 Page 10 of 20 that property equal to that of the person who inherited the same. Putting it in other words when a person „A‟ inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a self-acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to „A‟. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in-interest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self-acquired property but an HUF property is if after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
(ii) This position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant no.1 being „ancestral‟ properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created ie whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter.
8(i). A reference to the plaint shows that firstly it is stated that Sh. Tek Chand who is the father of the defendant no.1 (and grandfather of Sh. Harvinder Sejwal and defendants no.2 to 4) inherited various ancestral properties which became the basis of the Joint Hindu Family properties of the parties as stated in para 15 of the plaint. In law there is a difference between the ancestral property/properties and the Hindu Undivided Family property/properties for the pre 1956 and post 1956 position as stated above because inheritance of ancestral properties prior to 1956 made such properties HUF properties in the hands of the person who inherits them, CS(OS) No.683/2007 Page 11 of 20 but if ancestral properties are inherited by a person after 1956, such inheritance in the latter case is as self-acquired properties unless of course it is shown in the latter case that HUF existed prior to 1956 and continued thereafter. It is nowhere pleaded in the plaint that when did Sh. Tek Chand father of Sh. Gugan Singh expire because it is only if Sh. Tek Chand father of Sh. Gugan Singh/defendant no.1 had expired before 1956 only then the property which was inherited by Sh. Gugan Singh from his father Sh. Tek Chand would bear the character of HUF property in the hands of Sh. Gugan Singh so that his paternal successors-in-interest became co-parceners in an HUF. Even in the evidence led on behalf of the plaintiffs, and which is a single affidavit by way of evidence filed by the mother of the plaintiffs Smt. Poonam as PW1, no date is given of the death of Sh. Tek Chand the great grandfather of the plaintiffs. In the plaint even the date of the death of the grandfather of the plaintiffs Sh. Gugan Singh is missing. As already stated above, the dates/years of the death of Sh. Tek Chand and Sh. Gugan Singh were very material and crucial to determine the automatic creation of HUF because it is only if Sh. Tek Chand died before 1956 and Sh. Gugan Singh inherited the properties from Sh. Tek Chand before 1956 that the properties in the hands of Sh. Gugan Singh would have the stamp of HUF properties. Therefore, in the absence of any pleading or evidence as to the date of the death of Sh. Tek Chand and consequently inheriting of the properties of Sh. Tek Chand by Sh. Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the properties of Sh. Tek Chand prior to 1956.
(ii) In fact, on a query put to the counsels for the parties, counsels for parties state before this Court that Sh. Gugan Singh expired in the year 2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek Chand died in 1982, inheriting of properties by Sh. Gugan Singh from Sh. Tek Chand would be self-acquired in the hands of Sh. Gugan Singh in view of the ratio of the Supreme Court in the case of Yudhister (supra) inasmuch as there is no case of the plaintiffs of HUF existing before 1956 or having been created after 1956 by throwing of property/properties into common hotchpotch either by Sh. Tek Chand or by Sh. Gugan Singh/defendant no.1. There is not even a whisper in the pleadings of the plaintiffs, as also in the affidavit by way of evidence filed in support of their case of PW1 Smt. Poonam, as to the specific date/period/month/year of creation of an HUF by Sh. Tek Chand or Sh. Gugan Singh after 1956 throwing properties into common hotchpotch.
(iii) The position of HUF otherwise existing could only be if it was proved on record that in the lifetime of Sh. Tek Chand a Hindu Undivided Family before 1956 existed and this HUF owned properties include the property bearing no.93, Village Adhichini, Hauz Khas. However, a reference to the affidavit by way of evidence filed by 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, CS(OS) No.683/2007 Page 12 of 20 having been inherited by him from Sh. Tek Chand, and which statement, as stated above, does not in law mean that the ancestral property is an HUF property."
9. 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 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 necessary factual cause of action, as required in law, is pleaded in the plaint of existence of an HUF and of its properties.
CS(OS) No.683/2007 Page 13 of 2011. 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 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.
13. In view of the above, actually the application filed under Order VII Rule 11 CPC in fact is treated as an application under Order XII Rule 6 CPC, inasmuch as, it is observed on the admitted facts as pleaded in the plaint that no HUF and its properties are found to exist.
CS(OS) No.683/2007 Page 14 of 20There is no averment in the plaint that late Sh. Jage Ram inherited property(s) from his paternal ancestors prior to 1956. In such a situation, therefore, the properties in the hands of late Sh. Jage Ram cannot be HUF properties in his hands because there is no averment of late Sh. Jage Ram inheriting ancestral property(s) from his paternal ancestors prior to 1956. There is no averment in the plaint also of late Sh. Jage Ram‟s properties being HUF properties because HUF was created after 1956 by late Sh. Jage Ram by throwing properties into a common hotchpotch. I have already elaborated in detail above as to how an HUF has to be pleaded to exist in the pre 1956 and the post 1956 positions and the necessary averments which had to be made in the present plaint. The suit plaint however grossly lacks the necessary averments as required in law to be made for a complete cause of action to be pleaded for existence of an HUF and its properties."
10(i) A reading of the suit plaint in the present case does not show as to creation and existence of an HUF prior to 1956 because of which specific properties were inherited by late Gen. Budh Singh prior to 1956. In the absence of such pleadings no HUF and its properties can exist on account of late Gen. Budh Singh having inherited ancestral properties prior to 1956. I cannot agree with the argument that what were the ancestral properties which were inherited by Gen. Budh Singh prior to 1956 is a matter of trial for various reasons. Firstly, evidence can only be if a property is pleaded to exist by reference to the property by specific description. This is the mandate of Order VI Rule 4 CPC. Secondly, no amount of evidence can be looked into on a plea which is not found in the pleading. Thirdly, in my opinion courts are not forced to entertain suits on totally vague averments of alleged ancestral properties inherited before 1956 and hence courts being flooded with litigation of suits for partition on self-serving convenient vague allegations of ancestral properties inherited before 1956 and CS(OS) No.683/2007 Page 15 of 20 which cause of action is only an illusionary cause of action and not a real/legal cause of action.
(ii) So far as the position after 1956 is concerned, in view of the ratios of the judgments of the Supreme Court in the cases of Yudhishter (supra) and Commissioner of Wealth Tax, Kanpur and Others (supra) even if late Gen. Budh Singh inherited ancestral properties after 1956 such inheritance will be as self-acquired property in the hands of late Gen. Budh Singh unless it was also alleged that there already existed an HUF prior to 1956, but that is not so pleaded in the plaint. It is also not pleaded in the plaint that the HUF came into existence after 1956 at a particular time viz a particular month and year when the properties were thrown into a common hotchpotch.
(iii) Therefore, as per the pleadings which exist as per the present plaint, they do not show any pleading that any HUF and its properties existed, much less with respect to the Bhatgaon land or with respect to such other properties which are said to have provided the funds for purchase of the house no.C-38, Anand Niketan, New Delhi.
(iv) In fact, as per the pleadings, the undisputed position which emerges is that the house no.C-38, Anand Niketan, New Delhi was transferred by the government way back to late Sh. Anup Singh by a Perpetual Deed in the name of Sh. Anup Singh on 3.4.1970. Once title of a property is in the name of a particular person, such a person has to be taken as the owner of such property on CS(OS) No.683/2007 Page 16 of 20 account of passing by the legislature of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) and Section 4(1) of which Act lays down a bar for filing of a suit to claim rights in a property which is held in the name of a particular person on the ground that that particular person holds the property as a benami property. The only two exceptions to this position are contained in Section 4(3) of the Benami Act which allows existence of HUF and its properties as also of a property having been purchased by a person as a trustee/fiduciary capacity, but as I have already noted above the facts of the present case do not show existence of pleadings of HUF and its properties. I have also observed in the case of Surender Kumar (supra) that once the main provision is Section 4(1) of the Benami Act, the exceptions thereof will have to be construed strictly as per law, otherwise the effect would be wiping away the intention of the legislature contained in Section 4(1) of the Benami Act.
11. Accordingly, the following conclusions can be derived on the basis of the pleadings and the admitted documents on record:-
(i) In the subject suit for partition, and properties whereof are stated in para 2 of the plaint, as regards the properties stated in para 2(b) and 2(c), no details of these properties have been provided as required by Order VII Rule 1, Order VII Rule 3 read with Order VI Rule 4 CPC, and hence the suit plaint is not maintainable for seeking partition of these properties which are alleged to exist, but which really do not exist. This aspect is to be taken note of with the fact that CS(OS) No.683/2007 Page 17 of 20 no documents whatsoever have been filed by the plaintiff (assuming such documents form part of the pleadings) which will give the municipal number or the revenue numbers or the areas of these properties. Suit is therefore liable to be and is accordingly dismissed for properties stated in para 2(b) and 2(c) of the plaint being the properties situated at Kalupur and diary plot at Sonepat in Haryana.
(ii) The plaint and the replication as they stand allege existence of HUF and its properties on account of late Gen. Budh Singh having acquired ancestral properties but not only no details are pleaded/given of which are the specific ancestral properties which are acquired by late Gen. Budh Singh, and also it is further not pleaded as to which of these specific properties were inherited by late Gen. Budh Singh prior to 1956. Once there do not exist averments of inheritance of specific properties by Gen. Budh Singh prior to 1956, no HUF of these properties can be said to exist of having come into existence prior to 1956.
(iii) The only other way thereafter that HUF and its properties could exist is if Gen. Budh Singh who inherited ancestral properties had thrown the properties into a common hotchpotch, but, that too is not the case as set out in the plaint of HUF and its properties being created on account of late Gen. Budh Singh throwing the property or properties into common hotchpotch.
(iv) Challenge by the plaintiff to the Judgment and Decree dated 8.3.1977 passed in suit no.66/1977 on the ground that this decree is collusive and not CS(OS) No.683/2007 Page 18 of 20 binding is liable to fail by virtue of Article 59 of the Limitation Act, 1963 inasmuch as challenge in the year 2007 to a judgment and decree passed 30 years back on 8.3.1977 is hopelessly barred by limitation.
(v) So far as the property at C-38, Anand Niketan is concerned, once title deeds of this property are admittedly in the name of late Sh. Anup Singh (and who is now represented by his legal heirs, defendant nos.1 to 5), the suit is barred by Section 4(1) of the Benami Act read with the fact that no sufficient pleadings exist for existence of HUF and its properties and of the property at C-38, being an HUF property.
(vi) So far as the land situated at Barota, Sonepat is concerned and with respect to which the case of the defendant is that late Gen. Budh Singh died leaving behind his Will dated 3.11.1987 and this Will is disputed by the plaintiff, I need not examine the merits of the matter because the suit land is situated at Sonepat, Haryana and therefore in view of Section 16 CPC, suit for this land at Barota, Sonepat on the cause of action that father was the exclusive owner of this property and who died intestate and hence plaintiff as a legal heir will inherit a share in the properties of the father will have to be dealt with and decided by the competent court at Sonepat, Haryana.
12. I may note that the present suit is listed today for framing of issues and once as per the admitted pleadings and documents no cause of action arises, no issues are required to be framed and accordingly I exercise my powers under Order XII Rule 6 CPC to pass a decree; decree includes dismissal of a suit as per CS(OS) No.683/2007 Page 19 of 20 Section 2(2) CPC, for dismissing the suit with respect to all the properties except to the extent of the cause of action of the plaintiff having a right as a daughter of late Gen. Budh Singh who owned the Barota, Sonepat land and with respect to which plaintiff will have a right to file a suit in the court of competent jurisdiction of course in accordance with law. Suit is liable to be dismissed as barred by Benami Act with the aspect that the admitted and/or undisputed position of the pleadings and documents do not show existence of HUF and its properties. Suit is accordingly dismissed and disposed of reserving liberty to the plaintiff to approach the competent court at Sonepat, Haryana where the Barota land is situated. Parties are left to bear their own costs.
MAY 05, 2016 VALMIKI J. MEHTA, J.
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