Mr. Nikhil S Khanna & Ors vs Mr. Jagdish Prasad Khanna on 23 September, 2024

[Cites 17, Cited by 0]

Delhi High Court

Mr. Nikhil S Khanna & Ors vs Mr. Jagdish Prasad Khanna on 23 September, 2024

1. Application under Order VII Rule 11 read with Section 151 CPC has been filed on behalf of the defendant for rejection of the Suit of the plaintiffs for Partition, Declaration, Permanent Injunction and Rendition of Accounts against their father, defendant.

2. The first ground of challenge taken by the defendant is that the plaint does not disclose any cause of action for seeking partition of the purported Jagdish Parsad Khanna HUF (hereinafter "JPK HUF") properties.It is explained that the properties enlisted in Schedule A and B of the plaint, have been claimed to be allegedly owned by JPK HUF of which defendant is a Karta and plaintiffs being coparceners. JPK HUF was expressly dissolved w.e.f. 23.02.2006 by a Partition Deed dated 28.11.2006 which was duly stamped and registered. The partition became effective from the said date i.e. 23.02.2006 and the properties/assets and holdings of JPK HUF got duly partitioned.

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 2 of 27 Signing Date:08.10.2024 11:26:50

3. Plaintiff Nos. 1 & 2 were parties to the Partition Deed and have enjoyed full benefits of the partition so affected, which has not been denied by plaintiff No.1 and 2. Plaintiff Nos. 3 & 4 were fully aware of the Partition Deed and were involved in its drawing, before it was actually executed and registered on 28.11.2006. The plaintiffs are fraudulently now challenging the Partition Deed by suppressing material facts.

4. The plaintiffs have further sought to expand the scope of the JPK HUF properties toinclude the scheduled Propertieswhich are the self- acquiredproperties of the defendant and / or owned in his individual capacity and not as Kartaof the JPK HUF. This is admitted by the Plaintiffs in light ofPartition Deed dated 28.11.2006.

5. Furthermore, under the garb of the present suit the plaintiffs have surreptitiously sought to challenge malafide and countermand the facts of Partition Deed dated 28.11.2006 without any prayer to this effect.

6. Pertinently Partition Deed dated 28.11.2006 has not been challenged till date either by the plaintiffs nor have they prayed for its cancellation or setting aside. The Partition Deed is therefore, valid, subsisting and binding on the parties including plaintiff Nos.1 & 2. The express terms of the Partition Deed make it evident that none of the properties mentioned in Schedule A & B are the HUF properties. Moreover, the plaintiff Nos.1 & 2 who have benefited under the Partnership Deed, have been in possession of their respective shares of HUF properties for last almost 12 years; having so elected to accept the Partition Deed they cannot now be allowed to reprobate the Partnership Deed.

7. The second ground of challenge taken by the defendant is that material particulars have not been disclosed by the plaintiffs. It is settled Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 3 of 27 Signing Date:08.10.2024 11:26:50 proposition of law that when a partition is sought of joint family property detailed facts of how and when alleged properties became HUF must be clearly and categorically averred in terms of Order VI Rule 4 CPC. Mere ipse dixit statement in the plaint that it is an HUF property is not sufficient compliance of legal requirements to prove either creation or existence of HUF properties. It is neither disclosed when the HUF came into existence and whether it was before or after 1956 and in what manner did it come to be constituted. Moreover, the facts are required to be pleaded to show that the parties are the coparcener as the partition can be maintained only by a coparcener of the HUF properties. The plaint is miserably silent on this aspect.

8. The third ground agitated by the defendant is that the suit is barred by limitation by a period of almost 10 years. The plaintiff has stated in the cause of action paragraph that it arose following an erratic correspondence in 2017 and a visit by defendant and Kanta Stanchina in June, 2017 to USA where the daughters witnessed a significant reduction of defendant's mental faculties including an ability to speak logically, answer his phone or answer basic questions about his travel and whereabouts. The Defendant has asserted that the alleged cause of action is fabricated one and has no connection with the relief sought in the present plaint.

9. The period of limitation to set aside the partition deed is three years which commences from 28.11.2006 when the Partition Deed was registered. The limitation expired in November, 2009 and thus the present suit is barred by limitation.

10. In the end, the defendant has claimed that as per Order VII Rule 3 read with Order XX Rule 9 of CPC when a suit pertains to immovable Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 4 of 27 Signing Date:08.10.2024 11:26:50 property, the plaint must contain the description of such property sufficient to identify the same. Where such property can be identified by boundary, it should be so specified including the number of settlement or survey which may also be used to identify the suit property. In the present case, plaintiffs have not only failed to provide particulars of certain scheduled properties of which they seek the partition, but have conveniently shifted the burden of the same on the defendant. The plaintiffs have made bald claims of the properties being JPK HUF properties. The suit is, therefore, liable to be rejected.

11. The defendant has thus, contended that the plaintiffs have approached the Court with unclean hands and are guilty of suppression and misrepresentation of facts. The suit of the plaintiff is thus, liable to be rejected.

12. The plaintiffs in their detailed Reply have denied all the averments made in the application. The primary objections have been taken that new case/defence/objections are sought to be taken in the present Application which do not find a mention in the Written Statement. Though this Application is styled under Order VII Rule 11 CPC, but is effectively predicated upon the defence on merits taken by the defendant in his Written Statement. Ex facie no case is made out for attracting the provision of Order VII Rule 11 CPC wherein entire enquiry is not only based upon the pleaded case in the plaint but also on the assumption that the facts narrated in the plaint are true and correct.

13. The plaintiffs have explicitly explained in the plaint how the properties fall under the HUF of their father, Jagdish P. Khanna, defendant. The defendant had subsequently filed an Application being IA Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 5 of 27 Signing Date:08.10.2024 11:26:50 No.2257/2018for amendment of suit which has been allowed and the amended plaint filed on 16.02.2018. In the amended Suit their position regarding the 2006 Partition Deed has been clarified. Therefore, the allegations that the plaintiff has approached the Court with unclean hands, is not tenable.

14. From the reading of Clause 1 of Partition Deed dated 28.11.2006, it is apparent that the partition was only in respect to some of the properties of JPK HUF and involved only a few members of HUF namely the defendant, Plaintiff No.l and Plaintiff No.2 and Mrs. Shesha Milty Khanna (Ex-wife of Defendant). Clause 1 also recorded that the partition was in respect of some of immovable and movable properties of JPK HUF and that it shall not curtail in any manner or dilute the rights of Plaintiff No.l and 2 to any other ancestral or other properties that may exist except the properties held by JPK HUF as detailed therein. Therefore, the Plaintiffs have clear and legal right to seek partition of the properties mentioned in Schedule A and B. The Partition Deed was only limited and the HUF was dissolved only with respect to Mrs. Sheesha Milty Khanna, not being the member of HUF.

15. On merits, it is asserted that it is only in 2017 when the defendant and Kanta Stanchina visited United States of America, when they witnessed a significant reduction of defendant's faculties of the defendant to even answer questions logically about his travel and whereabouts.

16. Moreover, Partition Deed of 2006 is not a bone of contention in the present suit and therefore the limitation does not apply. The plaintiffs are not challenging the Partition Deed dated 28.11.2006 but the present suit has been filed to dissolve the JPK HUF with respect to the remaining properties/assets which were not part of the Partition Deed dated Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 6 of 27 Signing Date:08.10.2024 11:26:50 28.11.2006. The plaintiff Nos.1 & 2 are not claiming any share with respect to the properties which were the subject matter of the Partition Deed dated 28.11.2006 but is limited to the properties mentioned in Schedule A & B and thus, the present suit is maintainable.

17. It is further asserted that JPK HUF with defendant as its Karta, continues to exist as is admitted by the defendant himself in his Tax Returns filed in India as well as USA. The defendant may be directed to file his Income Tax Returns in proof thereof.

18. The plaintiffs have stated that JPK HUF came into existence soon after the marriage of Defendant with his ex-wife Shesha Milty and various properties were thrown in common hotchpotch. The defendant has conveniently chosen to ignore the paragraphs of the plaint and has made bald assertions. The proper particulars of all the properties have been detailed in Schedule A annexed to the plaint which cannot be disputed by the defendant. The plaintiffs have only been unable to provide particulars of properties mentioned in Schedule B.Since the relevant documents/information in respect of these properties are in the custody of defendant the plaintiffs are unable to provide the accurate details and Municipal number of the said properties. It is submitted that the plaint discloses a cause of action and the present Application is without any merit.

19. The defendant in the Rejoinder to the Application has reaffirmed the assertions made in the Application.

20. Ld. Counsel for the plaintiffs and defendant have argued on the similar lines as the various contentions taken in their respective pleadings pertaining to the Application.

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 7 of 27 Signing Date:08.10.2024 11:26:50

21. In the Written Submissions in support of Application under Order VII Rule 11, the Ld. Counsel for the defendants has relied upon Nawal Singh vs Chaman Lal 2013 SCC OnLine Del 500; Ilaria Kapur vs Rakesh Kapur & Ors; MANU/DE/1341/2023, Sunny (Minor) vs Raj Singh 2015 SCC OnLine Del 13446;Surender Kumar vs Dhani Ram 2016 SCC OnLine Del 333 and Mohd. Noorul Hoda vs Bibi Raifunnisa, (1996) 7 SCC 767, to buttress the arguments advanced.

22. In the Written Submissionsfiled by the Plaintiffs, reliance is placed upon Anvija Ahluwalia (Minor) v. Bikramjit Ahluwalia &Ors., 230 (2016) DLT 200; Kalyani (Dead) by LRs v. Narayanan and Ors., 1980 Supp. SCC 298; M/s. Kalloomal Tapeswari Prasad (HUF), Kanpur v. Commissioner of Income Tax, Kanpur, (1982) 1 SCC 447; Shyam Narayan Prasad v. Krishna Prasad and Ors., (2018) SCC 646; Rohit Chauhan v. Surinder Singh and Ors., (2013) 9 SCC 419; Sheela Devi &Ors. v. Lal Chand &Anr., (2006) 8 SCC 581; Commissioner of Wealth Tax, Kanpur & Ors. v. Chander Sen &Ors. (1986) 3 SCC 56; and Krishna Pillai Rajasekharan Nair (dead) by LRs v. Padmanabha Pillai (dead) by LRs &Ors. (2004) 12 SCC 754, in support of the contentions.

23. Submissions heard and the record perused.

24. The three daughters and one son of the defendant No. 1 have filed the present Suit seeking Partition of the Properties claiming them either to be HUF or ancestral properties in the hands of their father.

25. To understand the relationship the Pedigree, tracing back to the patriarch of Khanna Family i.e. Late Gokal ChandKhanna and showing the various branches andmembers (the "Khanna Family") of which Plaintiffs area part, is as follows:

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 8 of 27 Signing Date:08.10.2024 11:26:50

Sh. Gokal Chand Khanna B.N. Khanna. M.P. Khanna. T.N. Khanna. S.K. Khanna Jagdish Prasad Shashi (W) Ramesh (S) Khanna Geeta (D) (Defendant) Shesha Milty Ayesha Namita Brinda Nikhil (Son) Khanna (Daughter) (Daughter) (Daughter) (Wife -divorced). (P-3) (P-1) (P-4) (P-2)

26. The present Suit concerns on the branch of MP Khanna (MPK), grandfather of the plaintiffs and father of the defendant.For the sake of clarity, the documents recording the various partitions between the various branches and sub-branches that have taken place in the past years are as under :-

1ST Partition - 4 sons of Gokal Chand Khanna Arbitration Award This Arbitration Award settled the disputes between the 4 branches of The Khanna Family; i.e. between 4 sons of Sh. (14.11.1994) Gokal Chand namely BholaNath Khanna;Mahadev Prasad Khanna, Triloki Nath Khanna; andSantosh Kumar Khanna 2nd Partition - MPK HUF Deed of Settlement This Deed of Settlement was executed to affect a total partition of the MPK HUF. However, this Deed could not be (10.03.1999) formalized.

MoFS(26.02.2000) This Deed of Settlement was executed for partition of the MPK HUF and a total separation of the businesses, in Award (07.03.2000) supersession of the 1999 FSA.

By the Award, the total partition of the MPK HUF was confirmed and the terms of the MoFS 26.02.2000 were enforced.

3rd Partition - JPK HUF Partition Deed JPK HUF was dissolved and assets and liabilities were Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 9 of 27 Signing Date:08.10.2024 11:26:50 (28.11.2006) partitioned between JPK, his ex-Wife ShehaMilti and 2 children namely, Nikhil Khanna and Brinda Khanna.

27. Before embarking upon the facts of the present case, it is necessary to observe that the very objective of pleadings is to clearly outline the point of dispute and the cause of action. The "rule of brevity," calls for the pleadings to be concise, clear, and limited to the interpretation that the pleader wishes to convey. Not only should the pleading be brief, but also need to be precise, accurate and certain and recitals in the plaint should comply with Order VI Rule 4 of CPC, 1908 which mandates pleading of particulars, with dates and items and its succinct incorporation in the pleadings, specifically in cases in which such particulars would be necessary.

28. It has been explained in the cases of Sunny (Minor) (Supra), that Order VI Rule of CPC, 1908 provides that all necessary factual details of the cause of action must be clearly stated along with the exact details and particulars of the properties sought to be partitioned. Similarly, in Surender Kumar (Supra) after referring to the entire aforementioned law, it was concluded that for an HUF and its properties to come into existence, it has to be first pleaded to exist as per the judgments of the Commissioner of Income Tax, Kanpur & Ors. Vs. Chander Sen and Ors.(1986) 3 SCC 567 and Yudhister vs. Ashok Kumar (1987) 1 SCC 204 of Supreme Court of India in terms of Order VI Rule 4 of the CPC, 1908. Thus, a suit be filed by a person claiming to be a coparcener for partition of the HUF properties, is maintainable only when specific details of the existence of HUF and the properties therein, are mentioned. It was also reiterated that it would not be enough to say simply that a Joint Family or HUF existed, in the plaint. Detailed facts as required by Order VI Rule 4 of the CPC as to when and Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 10 of 27 Signing Date:08.10.2024 11:26:50 how the HUF properties had become so must be clearly and categorically averred. Such averments have to be made by factual reference qua each property claimed to be an HUF property as to how the same came to be an HUF property. In law, generally bringing in any and every property as HUF to include unnecessarily many properties claiming them to be an HUF.

29. In light of this scenario, it also becomes germane to discuss the scheme and contours of the Hindu Succession Act, 1956 as well as the recent developments, to determine the fundamental aspect i.e. the nature of the property to ascertain the mode of succession and the devolution of the shares/rights in the present case.

30. In Sunny (Minor)(supra) this Court considered the judgments of the Apex court in Yudhister(supra) and Commissioner of Wealth Tax, Kanpur(supra) and succinctly enumerated the principles relating to HUF property/ self-acquired property and its inheritance as under :

"(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 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 Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 11 of 27 Signing Date:08.10.2024 11:26:50 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"

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 12 of 27 Signing Date:08.10.2024 11:26:50

31. Hence, it emerges that in the pre-1956 era when the customary Hindu law was prevalent, a coparcenary with HUF properties, which came into existence prior to passing of the Hindu Succession Act, 1956 and continued even after the passing of Hindu Succession Act, 1956, then the property belonging to the HUF would be HUF property in the hands of the coparceners as the status of Joint Hindu Family/ HUF properties continues.

32. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties upto three generations, but after passing of the Hindu Succession Act, 1956 in view of the ratio in the cases of Chander Sen (Supra) and Yudhishter (Supra), there is no such presumption that inheritance of ancestral property creates an HUF.

33. Thus, post-1956, HUF is created only when the HUF is expressly created and properties/ self-acquired property in the hands of a person are expressly thrown by him into a common hotchpotch, with an intention to make them HUF properties.

34. In order to claim the properties to be HUF post 1956 after the enactment of Hindu Succession Act,1956 the facts as to how the properties are HUF properties, is required to be clearly stated in the plaint. It has to be specifically pleaded as to when these particular properties were thrown in common hotchpotch and hence, Hindu Undivided Family was created. Only in these cases would the devolution be in accordance with the Rules of survivorship, as each coparcener acquires right by birth in the HUF properties.

35. Keeping in mind the above crystallised principles of law, we may now analyse the facts of the present Suit.

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 13 of 27 Signing Date:08.10.2024 11:26:50

36. Before considering the averments of the plaintiffs in respect of the properties so mentioned it would be pertinent to note that admittedly the JPK HUF was dissolved vide the Partition Deed dated 28.11.2006 which was duly registeredand the benefits under the Partition have been duly availed by petitioner No.1 and 2, who were the party to the said Partition which took place between the two plaintiffs and defendant and Smt. Shesha Milty the ex-wife of the defendant.

37. While it was claimed in the plaint that the said partition was not binding on plaintiff No. 3 and 4 who were as much a party of the HUF, but in the face of the objection by the defendant that any such challenge is barred by limitation, the plaintiffs in their Rejoinder and the Plaint, have conceded that the said Partition Deed dated 28.11.2006and the division of properties therein, has not been challenged. They have accepted its terms and, therefore, have not sought either its cancellation or annulment. It is quite evident that admittedly, the JPK HUF stood dissolved in 2009 and has not continued thereafter.

38. Though the plea has been taken by the plaintiffs that the Income Tax Returns are still been filed in the name of JPK HUF but no copy of Income Tax Return has been filed.Even if it is accepted that Income Tax are allegedly being filed, would not lead to the conclusion of the HUF still continuing. There is not a single averment made in the entire plaint which would show that the JPK HUF has continued after its dissolution. There is no activity, no income, no statement of the JPK HUF which has been asserted to have taken place in support thereof.

39. Furthermore, in Paragraph wise Rejoinder it is admitted by the plaintiffs that JPK HUF was partitioned vide Partition Deed dated Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 14 of 27 Signing Date:08.10.2024 11:26:50 28.11.2006. However, it was claimed that it was only in respect of the properties that were mentioned in the Partition Deed and that too between plaintiff No.1 and 2, defendant and Smt. Shesha Milti as the Partition Deed itself provides that it shall in no manner effect or dilute the rights of the parties therein to any ancestral or other properties except the subject properties of the said Partition Deed.

40. For this it would be pertinent to now refer to the Schedule A and Schedule B properties to ascertain the contentions made by the plaintiffs.

41. The Immovable Properties mentioned in Schedule B are as under :

SCHEDULE B S. No. Property Description

1. 8 acres (approx.) of land in village Majorda, Goa in the name of Goan Resorts Pvt. Ltd.

2. 2. 1 lakh sq. mts (approx. 25 acres) of land in Goa

42. From the bare perusal of the plaint and the Schedule B, it is evident that aside from making a generic averment that the lands mentioned therein, were owned by the HUF and there are no details or specifications given by which the properties can be identified. There are no documents filed by the Plaintiff to demonstrate that these properties are in manner ancestral/coparcenary/ HUF Properties.

43. The Plaint and the accompanying Annexures are bereft of the necessary particulars qua the properties and there is no information provided to assist in tracing the right, title or interest of any person in the property.

44. Admittedly, the plaintiffs have themselves submitted that they are unable to provide accurate municipal numbers or other numbers as per the agricultural land records of the properties mentioned in Schedule B. Only a vague plea has been taken by the plaintiffs that the relevant Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 15 of 27 Signing Date:08.10.2024 11:26:50 information/documents with respect to these properties, are in the custody of the Defendant.

45. The Plaintiffs have only attempted to shift the burden of the same onto the Defendant. In the absence of such specific pleadings, the plaint is not maintainable qua the properties mention in Schedule B and is thus, liable to be rejected.

46. The Plaintiff, qua properties mentioned in Schedule A,has again asserted that these properties devolved upon the Defendant as Karta of JPK HUF.

47. Immovable Properties mentioned in Sl. No. 1-6 of Schedule Aare asunder: -

SCHEDULE A S. No. Property Description and Particulars

1. Property situated at plot no. 234 (FIES) admeasuring 450 sq. metrs.

Patparganj Industrial Area, New Delhi

2. 50% of 25% share in lease land at 21-A, Aurangzeb Lane, New Delhi-

110001 along with Superstructure thereon known as Flat No. 2 and out houses built on the said land.

3, Duplex Flat No. 5 on the 2nd and 3th floors bearing Panchayat House number 187/4 built on the Plot No. 63, measuring 1460 Square Meters of Samudra Darshan Colony, being part of Survey No. 209/1 of Village Bambolim being part of the larger property identified as Palmar Cacra situated at Dona Paula within the limits of the Village Panchayat St. Cruz Taluka Tiswadi Goa.

4. Piece of land located on the North, East and West of Plot No. 63 in Samudra Darshan, measuring 2700 square meters, located in Survey No. 209 and bounded as followed on the east by Bambolim Village, on the West by undevelopable area belonging to Salgoancar Construction Company Pvt. Ltd. On the North by cul-de-sac and Plot No. 38 of Samudra Darshan and on the south by Plot No. 63 and partly by 6 meters wide road with cul-de- sac of Samudra Darshan

5. Agricultural land admeasuring about 29,585 Sq. Mtrs. Bearing survey No. 189B at Talpona Village of Poinguinim, Canacona Taluka, South Goa.

6. 3.5% equity shares of EIHL devolved upon the Defendant after the demise of MPK.

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 16 of 27 Signing Date:08.10.2024 11:26:50

(i) Property at Sl. No. 1 - Property situated at Plot No.234 (FIES) admeasuring 450 sq. metrs. Patparganj Industrial Area, New Delhi.

48. The plaintiffs have relied upon the Arbitration Award dated 07.03.2000 vide which a total partition of Mahadev Prasad Khanna HUF was confirmed.

49. The Clause 9(b) of the Arbitration Award dated 07.03.2000 read as under:

"JPK shall own, manage control the Industrial plot bearing no.234 at FIES Patparganj admeasuring 450 sq. mtrs. and superstructures thereon including the name of MPK‟s proprietary Firm Preteen Fashion wears."

50. It is evident from the aforesaid clause of the Award that this property was transferred by Sh. Mahadev Prasad Khanna, father of the defendant and grandfather of the plaintiffs, to Jagdish Prasad Khanna in his individual capacity and not as a Karta of JPK HUF. The documents relied upon by the plaintiffs itself reflect that this is the individual property of the defendant. The plaintiffs therefore cannot claim a right of partition in the individual property of defendant.

51. Though, this property may have been transferred by the father of the defendant to him as his individual property, the best case of the plaintiff is of ancestral family property, a concept that is different from HUF. It is simply claimed that the properties are ancestral family properties and thus, the Plaintiffs are entitled to a share in all the properties.

52. As already discussed above, such a vague claim which lacks even the basic facts, would not be sufficient to maintain a suit as held in the case of Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 17 of 27 Signing Date:08.10.2024 11:26:50 Sunny (Minor) (supra). Further, even if there existed a Joint Family, the plaintiff does not acquire a right in the ancestral family properties.

53. The plaintiffs have claimed a share in the property inherited by his father, which even though may have come from his father but by virtue of amended S.6 & 8 Hindu Succession Act, 1956 (as amended in 2005), it devolves in his individual property in accordance with rules of Succession (and not survivorship) under Section 8 Hindu Succession Act, 1956.The plaintiff cannot claim a share in the properties of her father during his lifetime. The plaintiffs can claim a right (if any) by succession, in the self- acquired properties of Defendant, only after his demise, as his class 1 heirs.

(ii) Property at Sl. No. 2: - 50% of 25% share in lease land at 21-A, Aurangzeb Lane, New Delhi-110001 along with Superstructure thereon known as Flat No.2 and out houses built on the said land.

54. In this respect it would be again pertinent to refer to Clause I(a)(ii) Arbitration Award dated 07.03.2000, wherein it was observed :

" (a) MPK is allotted the following Assets and liabilities out of the Hindu Undivided Family (HUF) :-

(i)......

(ii) 25% share in Leasehold land at 21-A, Aurangzeb Lane, New Delhi alongwith Flat no .2 and the houses thereon, being the property which has devolved on the partition of the larger HUF"

55. Thus, the subject property became exclusive property of Mahadev Prasad Khanna and he was entitled to manage, own, and control the Property by virtue of the Arbitration Award dated 07.03.2000.

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 18 of 27 Signing Date:08.10.2024 11:26:50

56. Sh. Mahadev Prasad Khanna,the grandfather, died on 22.02.2015 leaving behind the Will dated 12.12.2000Clause 8 and 10 of which read as under:

"8.That I hereby give and bequeath the rights and title of the following immovable property to my son Jagdish P. Khanna;

(i) Second and Third Floor, along with the entire Root of the Third Floor of Flat No.2 built on a Leasehold Plot at 21-

Aurangzeb Lane, New Delhi including a portion of the Basement, and unhindered access or enjoyment of the casements and common services appurtenant to the said Mat and the entire building in that Flat along with 50% of my share in the Leasehold Rights in the said piece of land as marked in Green in the enclosed building plans annexed hereto.

xxxxxxxxxxxx

10. I further direct that if any of my aforesaid children predecease me, then, I hereby give and bequeath my immovable properly as described in (a) paragraph 7 above, to Ramesh Kanna's legal heirs, (b) paragraph 8 above to Jagdish P. Kanna's legal heirs and (c) paragraph 9 above to Geeta Dhawan s legal heirs, each of whom shall, respectively, have complete and unlettered light of ownership, enjoyment and disposal thereof to the exclusion of any person whosoever and in whatsoever capacity he or she may."

57. The Clause 8 of the Will clearly records that the subject property devolved upon the Defendant, after the demise of his father, in his individual capacity and not to the JPK HUF. Furthermore, Clause 10 of the Willstatesthat the subject property could have been bequeathed to the heirs of the Defendant only in the event he dies before Mahadev Prasad Khanna, further substantiating that the Defendant is awarded the Subject Property in his individual capacity.

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 19 of 27 Signing Date:08.10.2024 11:26:50

58. Thus, the Plaintiff's cannot claim any right in individual/self - acquired property of their father. The right of the plaintiffs to inherit the property would be by way of succession and not by way of survivorship.

(iii) Property at Sl. No. 3- Duplex Flat No. 5 on the 2nd and 3th floors bearing Panchayat House number 187/4 built on the Plot No. 63, measuring 1460 Square Meters of Samudra Darshan Colony, being part of Survey No. 209/1 of Village Bambolim being part of the larger property identified as Palmar Cacra situated at Dona Paula within the limits of the Village Panchayat St. Cruz Taluka Tiswadi Goa.

(iv) Property at Sl. No. 4 - Piece of land located on the North, East and West of Plot No. 63 in Samudra Darshan, measuring 2700 square meters, located in Survey No. 209 and bounded as followed on the east by Bambolim Village, on the West by undevelopable area belonging to Salgoancar Construction Company Pvt. Ltd. On the North by cul-de-sac and Plot No. 38 of Samudra Darshan and on the south by Plot No. 63 and partly by 6 meters wide road with cul-de-sac of Samudra Darshan.

(v) Property at Sl. No. 5 - Agricultural land admeasuring about 29,585 Sq. Mtrs. Bearing survey No. 189B at Talpona Village of Poinguinim, Canacona Taluka, South Goa.

59. The plaintiff has vaguely mentioned in the Plaint that, these properties at serial no. 3,4 and 5 of Schedule A were "acquired" by Defendant/JPK for and on behalf of as well asfor the benefit of his family comprising of the plaintiffs.In the absence of any pleadings whatsoever, disclosing the ownership of these properties or there being any cogent averment of it Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 20 of 27 Signing Date:08.10.2024 11:26:50 belonging to HUF, these properties are not disclosed to be the HUF properties.

60. In the absence of any pleadings whatsoever disclosing the ownership of these properties, in light of the decisions Ilaria Kapur(Supra), Sunny (Supra)and Surender (Supra)the suit for partition is not maintainable qua these properties as well.

(vi) Property at Sl. No. 6: 3.5% equity shares of EIHL devolved upon the Defendant after the demise of Shri Mahadev Prasad Khanna.

61. The plaintiff has submitted that out of the 50% shareholding of EIHL which came to the share of MPK family, 10% (1,80,314 shares) of EIHL came to the share of Defendant's family.Out of these1,80,314 shares, 62680 shares were registered in the name of Jagdish Khanna HUF with the remaining 1,17,634 shares to be registered in the names of the family members of Defendant's family.

62. As per Clause 9.1 (a) Award dated 07.03.2000 the shares of EIHL were distributed in the following manner:

"JPK in his individual capacity & as Karta of JPKHUF' own, manage & control 1,76,334 equity shares of (EIHL) already held and registered and or to be held and registered in the name(s) of JPK and JPK (HUF) by virtue of this Award as per Annexure 7 ."

63. The Annexure VII reads as under :-

"Annexure 7 Shares of EIHL already registered/ to be transferred and registered by JPK Group.

Already registered in name of JPK HUF = 59902 To be transferred from:-

Laguna restaurant= 51807 Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 21 of 27 Signing Date:08.10.2024 11:26:50 MP HUF = 6060 Rammi Khanna and Co. Pvt. Ltd. 58565 TOTAL =1,76,334 "

64. From the Award dated 07.03.2000 read along with its Annexure VII of the Award, it is evident that about 59,902 share of EIHL were directed to be transferred to JPK HUF, while the remaining went to defendant in his individual capacity.

65. These shares which were is in name of JPK HUF, were divided videClause IV and 7 of the Partition Deed dated 28/.11.2006, which reads as under:-

"Cl. IV - That the aforesaid 65,962 equity shares of Rs. 10/- each in the share capital of Eastern International Hotels Ltd., Mumbai were allotted to Mr. Jagdish P. Khanna."

XXXXXXXXX Cl. 7. That the Party of the Second, Third and Fourth Parts shall execute the Share Transfer Form(s) or any other documents as may be required in favour of Mr. Jagdish P. Khanna, within five days from the date hereof to facilitate the transfer of 65,962 equity shares of Rs. 10/- each in the share capital of Eastern International Hotels Ltd. in the name of the Party of the First Part. Mr. Jagdish P. Khanna is also entitled to sign the Share Transfer Forms by himself as Karta of Jagdish Khanna HUF and such action of Mr. Jagdish P. Khanna shall be deemed to have been done by the parties to this Deed and shall always stand ratified by the Parties hereto."\

66. Therefore, the shares of EIHL which were in the kitty of JPK HUF already stand partitioned.

67. Though the plaintiff have attempted to set up a case that the remaining 1,17,634 shares were transferred in the name of Defendant to beheld in trust for his family members including the Plaintiffs, however, there is no Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 22 of 27 Signing Date:08.10.2024 11:26:50 document placed on record in support of this claim.Thus, the plaintiff cannot claim any right in the remaining shares which were in the individual name of the Defendant and the suit is not maintainable quathese properties as well.

68. All Movable Properties in Sl No. 7. Of Schedule A which are the bank accounts detailed as under:

" A. BANK ACCOUNTS:

Name of the Address of the Type of Operative Account No. APPROX.

                           Bank            Bank             Account         Instruction                      VALUE (Rs.)

                           Union Bank of   52, Sunder       Saving          Single        344902010104390    1581985
                           India           Nagar, New       Deposit
                                           Delhi-110003.

                           Hongkong &      Barakhamba       Saving          Single        051-487577-006     507531
                           Shanghai        Road, New        Deposit
                           Banking         Delhi-110001.
                           Corporation
                           Ltd.

                           Citibank N.A.   124, Jeevan      Saving          Jointly       5702746002         52817
                                           Bharati          Deposit
                                           Building, 3rd
                                           Floor,
                                           Connaught
                                           Circus, New
                                           Delhi-110001.
                           Corporation     234, Uttorda,    Saving          Single        23400101005236     15839
                           Bank            J.B. Pereira     Deposit
                                           Building,
                                           Mollar,
                                           Uttorda, Goa-
                                           403713
                           State Bank of   Margao, Goa      Saving          Single        11064840717        111325000
                           India                            Deposit

                           Union Bank of   52, Sunder       Fixed Deposit   Single        344902010104390    5999986
                           India           Nagar, New
                                           Delhi-110003

B. INVESTMENTS IN EQUITY SHARES AND MUTUAL FUNDS: Scheme/Stock Address In Type of Type of Folio No./A/c APPROX. Name India Scheme/Stock Company No. VALUE (Rs.) & Quantity Eastern Balraj Sahni Equity Corporation J017 376974191 International Marg, Juhu, shares/110642 Hotels Ltd. Mumbai-

                                         400049



Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
                           CS(OS) 656/2017                                                                 Page 23 of 27
Signing Date:08.10.2024
11:26:50
                            Goan Retreat      G-7, Vaikunth     Equity         Corporation   N.A.         283200000
                           Pvt. Ltd.         Apt., Comba,      shares/47200
                                             Margao, Goa-
                                             403601
                           Sosegado          S-2,              Equity         Corporation   N.A.         99000000
                           Resorts Pvt.      Sambhavi,         shares/5000
                           Ltd.              Comba,
                                             Margao, Goa-
                                             403601

                           Oasis             K-37, 2nd         Equity         Corporation   N.A.         125000000
                           ExpotravelsPvt.   Floor, Green      shares/10000
                           Ltd.              Park Main,
                                             New Delhi-
                                             110016

                           Tata              5C/11, Ground     Mutual         Corporation   478270       597812
                           Infrastructure    Floor, Mittal     Fund/21741
                           Fund              Court, 224
                                             Nariman
                                             Point,
                                             Mumbai-
                                             400021
                           Infosys Ltd.      Kotak             Equity         Corporation   11159914     3070320
                                             Securities Ltd.   shares/2400
                                             Bakhtawar 1st
                                             Floor, 229
                                             Nariman
                                             Point,
                                             Mumbai-
                                             400021
                           HDFC Bank         Kotak             Equity         Corporation   1259040
                           Ltd.              Securities Ltd.   shares/860     11159914
                                             Bkhtawar 1st
                                             Floor, 229
                                             Nariman
                                             Point,
                                             Mumbai-
                                             400021
                           Crompton          Kotak             Equity         Corporation   11159914     320985
                           Greaves Ltd.      Securities Ltd.   shares/1575
                                             Bkhtawar 1st
                                             Floor, 229
                                             Nariman
                                             Point,
                                             Mumbai-
                                             400021
                           Crompton          Kotak             Equity         Corporation   11159914     301376
                           Greaves           Securities Ltd.   shares/1575
                           Consumer          Bkhtawar 1st
                           Electricals       Floor, 229
                                             Nariman
                                             Point,




Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
                           CS(OS) 656/2017                                                             Page 24 of 27
Signing Date:08.10.2024
11:26:50
                                               Mumbai-
                                              400021
                           Bajaj Auto         Kotak             Equity       Corporation   11159914     312200
                                              Securities Ltd.   shares/100
                                              Bkhtawar 1st
                                              Floor, 229
                                              Nariman
                                              Point,
                                              Mumbai-
                                              400021
                           Mahindra &         Kotak             Equity       Corporation   11159914     603580
                           Mahindra Ltd.      Securities Ltd.   shares/400
                                              Bkhtawar 1st
                                              Floor, 229
                                              Nariman
                                              Point,
                                              Mumbai-
                                              400021
                           Zee Entt.          Integrated        Equity       Corporation   10044139     31040
                           Enterprises Ltd.   Master            shares/527
                                              Securities Pvt.
                                              Ltd. 303-304,
                                              New Delhi
                                              House, New
                                              Delhi-110001
                           Zee Media          Integrated        Equity       Corporation   10044139     16971
                           Corporation        Master            shares/406
                           Ltd.               Securities Pvt.
                                              Ltd. 303-304,
                                              New Delhi
                                              House, New
                                              Delhi-110001
                           Zee Learn          Integrated        Equity       Corporation   10044139     894
                           Limited            Master            shares/21
                                              Securities Pvt.
                                              Ltd. 303-304,
                                              New Delhi
                                              House, New
                                              Delhi-110001
                           Siti Cable         Integrated        Equity       Corporation   10044139     18765
                           Network Ltd.       Master            shares/450
                                              Securities Pvt.
                                              Ltd. 303-304,
                                              New Delhi
                                              House, New
                                              Delhi-110001
                           Dish TV India      Integrated        Equity       Corporation   10044139     56818
                           Ltd.               Master            shares/517
                                              Securities Pvt.
                                              Ltd. 303-304,
                                              New Delhi
                                              House, New
                                              Delhi-110001




Signature Not Verified
DigitallySigned By:SAHIL
SHARMA
                           CS(OS) 656/2017                                                            Page 25 of 27
Signing Date:08.10.2024
11:26:50
                            SBI Magnum        Almondz            Mutual          Corporation   7093415     97387
                           Tax Gain          Global             Fund/2184
                           Scheme Regular    Securities Ltd.,
                           Plan-Dividend     Post Box
                                             No.3, Head
                                             Post Office,
                                             Manipal-
                                             576104
                           13-Sundaram       Sundaram           Mutual          Corporation   SBBNAB      266713
                           Tax Saver         BNP Paribas        Fund/18238                    366329
                           Dividend          Fund Services
                                             Ltd. Post Box
                                             No.3, Head
                                             Post Office,
                                             Manipal-
                                             576104

                           C. OTHER ASSETS

                           Name              Address in         Type of Asset                             APPROX.
                                             India                                                        VALUE (Rs.)
                           Oasis             K-37, 2nd          Loan                                      2983311
                           ExpotravelsPvt.   Floor, Green
                           Ltd.              Park Main,
                                             New Delhi-
                                             110016
                           Goan Retreat      G-7, Vaikunth      Loan                                      10363797
                           Pvt. Ltd.         Apt., Comba,
                                             Margao, Goa-
                                             403601
                           Sosegado          S-2,               Loan                                      7394135
                           Resorts Pvt.      Sambhavi,
                           Ltd.              Comba,
                                             Margaon Goa-
                                             403601

69. However, there are no documents whatsoever, which have been filed to show that these lockers/bank accounts were ever with the HUF.Mere ipse dixit statement in the plaint that an HUF and properties as per Annexure A exist in the name of HUF, is not a sufficient to establish that all these Bank Accounts belong to HUF. Moreover,each of these Accounts give the description under "operative instruction"/ "type of Company" making it abundantly clearthat none of the above assets/ Accounts were in the name of the JPK HUF, but were under single/joint/Company holding.

Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 26 of 27 Signing Date:08.10.2024 11:26:50

Conclusion:

70. In the end, from the above analysis of the properties in the light of averments in the Plaint, the only necessary and inevitable conclusion is that though the plaintiffs had claimed that the properties mentioned in Schedule A and B are the HUF properties, but there is no document or particulars to show that these properties were ever a part of JPK HUF. Even if it is assumed that the properties are ancestral properties devolving upon the defendant from his father, then also the plaintiffs cannot seek any right in these properties during the lifetime of defendant as theythen would devolve upon them only after his demise according to Rules of succession under S.8 Hindu Succession Act, as his Class I heirs.

71. There is no cause of action, therefore, disclosed in the present plaint, which is hereby rejected under Order VII Rule 11 CPC.

CS(OS) 656/2017

72. In light of the foregoing, the Suit along with pending Applications if any, stand dismissed.

(NEENA BANSAL KRISHNA) JUDGE SEPTEMBER 23, 2024 Signature Not Verified DigitallySigned By:SAHIL SHARMA CS(OS) 656/2017 Page 27 of 27 Signing Date:08.10.2024 11:26:50

Unlock Advanced Research with PRISMAI

Delhi High Court