Delhi District Court
Baljeet Singh vs Sher Singh on 25 October, 2023
DLND010007422013
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 58080/16
Sh. Baljeet Singh
S/o Sh. Sher Singh
R/o 364A/1, Village Munirka,
Julaha Basti, New Delhi-110067
......... Plaintiff
Versus
1. Sh. Sher Singh
S/o Late Sh. Bujan
2. Sh. Ravi Dutt
3. Sh. Kishan
Both sons of Sh. Sher Singh
All R/o 364A, Village Munirka,
Julaha Basti, New Delhi-110067
4. Smt. Indra Devi
W/o Sh. Raj Kumar
D/o Sh. Sher Singh
R/o H.No. WZ-1350,
(Neem Wala Park)
Nagal Raya, New Delhi-110046
........ Defendants
Suit presented On : 28.11.2013
Arguments Concluded On : 10.10.2023
Judgment Pronounced On : 25.10.2023
CS no. 58080/16
Baljeet Singh VS. M/s. Sher Singh Page no. 1 of 14
JUDGMENT
PLEADINGS
1. This is a suit for partition and permanent injunction filed by the plaintiff against his father (defendant no.1, now deceased) and two brothers (defendants no.2 & 3) qua 120 sq. Yds of property no. E-352, Near Girls School, Budh Vihar, Munirka, New Delhi (hereinafter, referred to as the suit property') and shown as red colour in the site plan averring that (a) That defendant no.1 (since deceased) had received property no. E-352, Near Girls School, Budh Vihar, Munirka, New Delhi as his share in the ancestral property out of which he had sold 120 Sq. Yds.,
(b) That remaining portion (the suit property) was in possession of defendant no.1 (c) That the plaintiff being a co-parcner in the suit property had been demanding his share but despite all requests, defendant no.1 (since deceased), had neither partitioned it nor given any share to the plaintiff from the sale of remaining 120 Sq. Yds., of E-352, Near Girls School, Budh Vihar, Munirka, New Delhi. (d) That in September 2013, defendant no.1 (since deceased) has started to raise construction over the suit property and had defied all requests of the plaintiff to not raise the construction and had also threatened the plaintiff that on completion of construction, he would dispose off the suit property to some third person (e) Hence, legal notice dated 18.09.2013 had been issued to defendant no.1 (since deceased) but to no avail. Thus, the present suit has been filed claiming partition by metes and bounds in the suit property and to restrain CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 2 of 14 the defendants from creating any third party interest in the suit property.
WRITTEN STATEMENTS
2. Joint written statement has been filed on behalf of all the defendants through defendant no.1 (since deceased) taking the following preliminary objections:
a) That the plaintiff has not approached the Court with clean hands as he has concealed that in 2004, 1/4th share in the sale proceed of 120 Sq. Yds., to Sh. Naveen Kumar had been taken by him.
b) That the plaintiff has not paid the appropriate Court fees as he has not appropriately valued his suit considering that he is not in possession of the suit property.
c) It is denied that the suit property is ancestral. It is stated to be the self-acquired property of defendant no.1 (since deceased).
3. On merits, it is admitted that 120 Sq. Yds., of property no. E-352, Near Girls School, Budh Vihar, Munirka, New Delhi had been sold to one Naveen Kumar in the year 2004 for a sum of Rs.3,00,000/- out of which, the plaintiff was paid 1/4th share because of his quarrelsome nature, even though, property no. E- 352, Near Girls School, Budh Vihar, Munirka, New Delhi was not ancestral. Construction work has not been disputed but it is asserted that the same has been carried out by defendant no.2 & 3 and that the plaintiff had no right, therein. It is denied that defendant no.1 (since deceased) had threatened the plaintiff to create third party interest in the suit property.
CS no. 58080/16Baljeet Singh VS. M/s. Sher Singh Page no. 3 of 14 REPLICATION
4. Replication is a denial of preliminary objections and the contents of the plaint have been asserted.
ADMISSION AND DENIAL OF DOCUMENTS
5. No admission and denial of documents have been conducted on behalf of both the parties.
ISSUES
6. Vide order dated 22.02.2017 following issues were framed:
1) Whether the suit of the plaintiff is liable to be rejected for want of cause of action? OPD
2) Whether suit property is self acquired property of defendant no.1? OPD1
3) Whether plaintiff is entitled for preliminary decree for partition in respect of the suit property?OPP
4) Whether plaintiff is entitled for permanent injunction as prayed? OPP
5) Relief.
PLAINTIFF EVIDENCE
7. To prove his case, PW-1 Sh. Baljeet Singh tendered his evidence by way of affidavit Ex. PW-1/A alongwith following documents:
CS no. 58080/16Baljeet Singh VS. M/s. Sher Singh Page no. 4 of 14 Sr. No. Documents Exhibited as 1 Site plan Ex. PW-1/1 2 Office copy of legal notice dated Ex. PW-1/2 18.09.2013 He was duly cross-examined by the Ld. Counsel for the defendant company.
DEFENDANT EVIDENCE
8. On behalf of the defendant, DW-1 Sh. Ravi Dutt was examined who tendered his evidence by way of evidence Ex. DW-1/A. That he also relied upon photocopy of receipt dated 10.04.2004 which is Mark A. He was duly cross-examined by Ld. Counsel for the plaintiff.
8.1 Statement of the plaintiff under Section 165 of Indian Evidence has also been recorded on 10.10.2023.
FINAL ARGUMENTS
9. Final arguments have been heard on behalf of the plaintiff.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
10. This Court has considered the submissions and material on record.
CS no. 58080/16Baljeet Singh VS. M/s. Sher Singh Page no. 5 of 14 ISSUEWISE FINDINGS A) Whether the suit of the plaintiff is liable to be rejected for want of cause of action? OPD (Issue no.1) B) Whether suit property is self acquired property of defendant no.1? OPD1 (Issue no.2)
11. The onus to prove the issues are upon the defendant.
11.1 No arguments have been advanced by either sides.
11.2 However, perusal of legal notice Ex. PW-1/2, plaint as well as affidavit Ex. PW-1/A relied upon by the plaintiff elucidate that the plaintiff has instituted the suit asserting his rights in the suit property as a co-parcener. He has consistently maintained a stand that the suit property is an ancestral property. However, it is worth observing that the plaintiff even states that property bearing no. E-532, Near Girls High School, Budh Vihar, Munirka, New Delhi admeasuring 240 Sq. Yds., was received by defendant no.1 as his share in the ancestral property.
11.3 Here, it is relevant to allude to Commissioner of Wealth Tax, Kanpur And Others v. Chander Sen And Others (1986) 3 SCC 567 where it was held as under:
2.5 Under the Hindu law, the property of a male Hindu devolved on his death on his sons and the grandsons as the grandsons also have an interest in the property.
However, by reason of s. 8 of the Act, the son's son gets excluded and the son alone inherits the properly to the exclusion of his son. As the effect of s. 8 was directly derogatory of the law established according to Hindu law, the statutory provisions must prevail in view of the CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 6 of 14 unequivocal intention in the statute itself, expressed in s. 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu Law.
2.6 The intention to depart from the pre-existing Hindu law was again made clear by s. 19 of the Hindu Succession Act which stated that 257 if two or more heirs succeed together to the property of an intestate, they should take the property as tenants-incommon and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father's property took a joint tenants and not tenants-in-common. The Act, however, has chosen to provide expressly that they should take as tenants-in-common. Accordingly the property which devolved upon heirs mentioned in class I of the Schedule under s. 8 constituted the absolute properties and his sons have no right by birth in such properties.
11.4 Further, in Yudhistir Vs. Ashok Kumar (1987) 1 SCC 204, the Apex Court reiterated the legal position as under :
"This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others, [1986] 3 SCC 567 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 fight 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 section8 of the Hindu Succession Act, 1956 and, there- fore, 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 918919. Shri Banerji relied on the said observations of Mayne on 'Hindu CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 7 of 14 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."
11.5 In Sagar Gambhir Vs. Sukhdev Singh Gambhir 241 (2017) DLT 98 (DB) considering the judgments of Commissioner of Wealth Tax, Kanpur And Others v. Chander Sen And Others (supra) and Yudhistir Vs. Ashok Kumar (supra) Hon'ble Mr. Justice Pradeep Nandrajjog speaking for the bench condensed the findings as under :
10. In Chander Sen's case (supra), the Supreme Court held that after the promulgation of the Hindu Succession Act, 1956, the traditional view under the Hindu Law no longer remained the legal position. This decision was followed incase (supra) the Supreme Court held that after the promulgation of the Hindu Succession Act, 1956, the traditional view under the Hindu Law no longer remained the legal position. This decision was followed in Yudhishter's case (supra). We agree with the legal position noted by the learned Single Judge which flows out of the two decisions of the Supreme Court, which would be 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 CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 8 of 14 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."
11.6 Hon'ble Mr. Justice Rajiv Sahai Endlaw in Saurabh Sharma Vs. Om Wati and ors (supra) also opined as under :
"18. I have in Kamlesh Devi Vs. Shyam Sunder Tyagi MANU/DE/7689/2017 and in Aditya Prasad Dube Vs. Shobha Dube 2018 SCC OnLine Del 6567 observed that everybody including Advocates seem to remember the ancient Hindu Law prevalent prior to coming into force of Hindu Succession Act, 1956 i.e. probably prior to the time they were born and / or joined the practice of law and no one remembers the law in force for the last over a half a century i.e. the Hindu Succession Act.
19. This Court, in Surender Kumar supra has held as under:-
"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 9 of 14 MANU/SC/0265/1986 : (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, MANU/SC/0525/1986 : (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., MANU/DE/3560/2015 : CS(OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his 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 CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 10 of 14 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.
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 CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 11 of 14 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.
11. 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 CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 12 of 14 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."
11.7 It has not been pleaded or explained as to how the suit property which came to the share of defendant no.1 in inheritance, was thrown in the common pool, thereafter. During cross-examination PW-1 was unable to substantiate the claim that the suit property was ancestral. Considering that defendant no.1 received the suit property as his share, it would have been his self acquired property and to seek partition by way of the present suit from defendant no.1 during his lifetime was misconceived.
11.8 Even if, the Court takes steps further to acknowledge any family settlement wherein, defendant no.1 agreed to give a share in the sale proceeds of 120 Sq. Yds., of the plot sold by him, the pleading and evidence led lack material particulars to make out a case under family settlement as laid down in Kale & Others Vs. Deputy Director of Consolidation (1976) 3 Supreme Court Cases 119.
CS no. 58080/16Baljeet Singh VS. M/s. Sher Singh Page no. 13 of 14 11.9 Hence, the issues are decided in favour of the defendants and defendant no.1, respectively.
C) Whether plaintiff is entitled for preliminary decree for partition in respect of the suit property?OPP (Issue no.3) D) Whether plaintiff is entitled for permanent injunction as prayed? OPP (Issue no.4)
12. The onus to prove the issues were upon the plaintiff.
12.1 In view of findings upon issues no.1 & 2, the issues are decided against the plaintiff.
RELIEF
13. In view of above discussions, the suit is dismissed. No oder as to cost.
14. Decree sheet be prepared, accordingly.
15. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 25.10.2023 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS no. 58080/16 Baljeet Singh VS. M/s. Sher Singh Page no. 14 of 14