Delhi High Court
Arjun Singh Gupta (Deceased) And Anr vs Ajay Kumar Gupta And Anr. on 28 February, 2017
Author: R.K.Gauba
Bench: R.K.Gauba
$
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 10 th February, 2017
Pronounced on: 28th February, 2017
+ CS (OS) 3625/2014 & IA 21329/2015 (U/O. 12 R. 6 CPC of
defendants), IA 23626/2014 (u/O. 39 R. 1 and 2 CPC of the
plaintiff) and IA 3792/2015 (u/O. 39 R. 4 CPC of defendants)
ARJUN SINGH GUPTA (DECEASED)
AND ANR ...PLAINTIFFS
Through: Mr. Rajesh Yadav, Ms.
Chandrani Prasad and Ms.
Mitali, Advocates
Versus
AJAY KUMAR GUPTA AND ANR. .... DEFENDANTS
Through: Mr. Jai Sahai Endlaw,
Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER
1. The civil suit in the context of which application (IA 21329/2015) has been filed by the defendants seeking its dismissal in part with reference to "admissions", invoking Rule 6 of Order XII of the Code of Civil Procedure, 1908 (CPC), was instituted in November 2014 for reliefs in the nature of declaration, partition and injunction by two plaintiffs, they being Sh. Arjun Singh Gupta (first plaintiff) and his wife Smt. Roopa Gupta (second plaintiff), Ajay Kumar Gupta (first defendant) and Alok Kumar Gupta (second defendant) being the sons of the said first plaintiff from out of his CS (OS) 3625/2014 Page 1 of 20 wedlock with Mrs. Archana Gupta, the said marriage of the first plaintiff having ended in divorce in July 1989, he having later entered into a second marriage with the said second plaintiff in 1991. The said first plaintiff Arjun Singh Gupta, however, died on 29.08.2015 and on this fact being brought on record, inter alia, through application (IA 19723/2015 under Order XXII Rule 1 and 2 CPC) the cause of action having survived between the remaining parties on record, the case has been further prosecuted solely by the second plaintiff asserting her own rights.
2. The plaint seeks the following reliefs :-
"(a). Pass a decree of declaration declaring the properties bearing No.(i). 19, Poorvi Marg, First Floor, Vasant Vihar, New Delhi, (ii). D-1/37, First Floor, Vasant Vihar, New Delhi (iii) D-1/37, Second Floor, Vasant Vihar, New Delhi to be properties of Arjun Singh Gupta HUF.
(b). A decree of partition dividing the HUF properties bearing No. :-
(i). 19, Poorvi Marg, First Floor, Vasant Vihar, Delhi.
(ii). D-1/37, First Floor, Vasant Vihar, New Delhi.
(iii). D-1/37, Second Floor, Vasant Vihar, New Delhi In equal shares amongst the coparceners / parties to the present suit.
(c). A decree of declaration declaring the deed of execution dated 04.09.2014 alongwith its annexure as illegal, null and void.
(d). pass a decree of permanent injunction restraining the defendants from dispossessing the plaintiffs from CS (OS) 3625/2014 Page 2 of 20 property No.D-1/37, Second Floor, Vasant Vihar, New Delhi.
(e). Pass a decree of permanent injunction restraining the defendants from instructing the tenants of 19 Poorvi Marg, First Floor, to stop paying the entire rent of the said premises to the Arjun Singh Gupta as before or to interact with the said tenants.
(f). A decree for mandatory injunction may please be passed against the defendant no.1 directing him to return the original PAN cad and original title documents, pertaining to HUF and immovable properties and other investment papers and documents of HUF and plaintiffs, mentioned above.
(g). Cost of the suit be awarded to the plaintiffs and against the defendants.
(h). Pass such other further orders that this Hon'ble Court deems fit and proper in the circumstances of the case, in favour of the plaintiffs and against the defendants in the interest of justice."
3. It is fairly conceded that the right to claim the other reliefs would depend on and be circumscribed by the relief in the nature of declaration as in prayer clause (a) vis-a-vis each of the three properties mentioned therein.
4. The case of the plaintiff as set out in the suit needs to be taken note of at some length, particularly because the "admissions" which are referred to seek dismissal of the case vis-à-vis two of the three subject properties, they being Flat nos. D-1/37, First Floor and D-1/37, Second Floor, both in Vasant Vihar, New Delhi, are sought to be drawn from such averments.
5. It is undisputed that the plaintiff having worked as senior technical specialist in United States of America (USA) returned to CS (OS) 3625/2014 Page 3 of 20 India, in 1989, to settle down here, which is around the time he entered into second marriage (in 1991) with the second plaintiff. It is not disputed that the first plaintiff was in receipt of about Rs.25 Crores as his share in the joint property inherited from his father which was sold sometime in 2006, the said inheritance having been put in the account of Hindu Undivided Family (HUF) known and styled as "Arjun Singh Gupta HUF" (HUF) in which he would be the karta, the said HUF account (bearing no.52410017600) maintained with Standard Chartered Bank, the other parties to the suit admittedly being coparceners / members in its respect. It is the case of the plaintiff and is supported by documents which cannot be controverted, that the said HUF account continued even thereafter, even upto the date of death of the first plaintiff in August 2015, it having been reflected in the annual income tax returns (ITRs) of HUF submitted, during his lifetime by the first plaintiff (since deceased), against permanent account number (PAN) AAAHA2908R, documents filed in its support being inclusive of copies of computation of taxable income, profit and loss accounts, balance sheet etc. submitted that on record beginning with those pertaining to assessment year 2009-2010, they reflecting the date of the HUF having been formed on 01.01.2001.
6. As noted earlier, the reliefs claimed in the suit concern three properties, the first one being property bearing no.19 Poorvi Marg, First Floor, Vasant Vihar, New Delhi. The averments in the plaint, supported by the documents which are not disputed, reveal that the said property was purchased by the first plaintiff as the karta of the HUF, in the name of the HUF, by sale deed dated 22.02.2007 for a CS (OS) 3625/2014 Page 4 of 20 total consideration of Rs.11 Crores approximately, the said money having been drawn from the account of the HUF. The said property located at Poori Marg, Vasant Vihar held in the name of the HUF is admitted by the defendants to be one of the assets of the HUF, as it is reflected in the ITRs submitted periodically by the first plaintiff during his lifetime.
7. The history of acquisition of the other two properties respecting which the plaintiff seeks relief in this suit have been set out in (paras 7 to 10 of) the plaint in the following words :-
"7. That towards the beginning of the year 2008, the defendant nos.1 and 2 approached their father with a request that they wanted to purchase two apartments situated on the First and Second Floors of the property bearing No.D-1/37, Vasant Vihar, New Delhi in their individual names. They requested their father to advance them loans from out of the remaining HUF funds with a promise that they would either return the said loan within a period of five years with interest @ 18% p.a. or failing the return of the loan amount they would transfer the said two apartments in the hotchpotch of the Arjun Singh Gupta HUF.
8. That the plaintiff no.1 acceded to the request of his two sons and transferred the sum of Rs.8,66,00,000/- (Rupees Eight Crores Sixty Six Lakhs only) as loan to the defendant no.1 and another sum of Rs.7,50,20,000/- (Rupees Seven Crores Fifty Lakhs Twenty Thousand only) as loan to the Defendant no.2 from the "Arjun Singh Gupta HUF" for the purchase of the aforementioned two apartments. Since the Plaintiff No.1 enjoyed a fiduciary relationship with his sons and had trust and faith in them no documents / loan agreements were executed.
9. That with the afore stated funds given as loans from the Arjun Singh Gupta HUF, an immovable CS (OS) 3625/2014 Page 5 of 20 property bearing No.D-1/37, First Floor, Vasant Vihar, New Delhi was purchased on 06.06.2008 for the sum of Rs.8,25,00,000/- (Rupees Eight Crore Twenty Five Lakh) vide a registered Sale deed, registered as No.5568 in Volume No.4413 dated 06.06.2008.
10. Thereafter similarly with the funds of the aforesaid loans given from the Arjun Singh Gupta HUF, another immovable property bearing No.D-1/37, Second Floor, Vasant Vihar, New Delhi was purchased on 07.07.2008 for the sum of Rs.7,70,00,000/- (Rupees Seven Crores Seventy Lakhs only) vide a registered Sale deed registered as No.6637 in additional Book No.1 in Volume No.4469 dated 07.07.2008."
8. The registered sale deeds in respect of the above mentioned two properties, they being two separate apartments situated at first and second floors of property bearing no.D-1/37, Vasant Vihar, New Delhi in the names of first and second defendant respectively have been filed on record and have been admitted by the plaintiff whereupon they were accepted as proven documents, they being Ex.P4 and P5 respectively. A perusal clearly shows that there is no mention anywhere in these documents about the sale consideration having been paid to the seller by the first and second defendants respectively either for or in the name, or on behalf, of the HUF or by negotiable instruments drawn against the account of the HUF. Noticeably, in the first sale deed (Ex. P4), the first plaintiff signed as an attesting witness for and on behalf of the purchaser (the first defendant) while in the second sale deed (Ex. P5), the first plaintiff signed as the special attorney of the purchaser (the second defendant) on the strength of duly notarized special power of CS (OS) 3625/2014 Page 6 of 20 attorney dated 30.08.2007, he being, even as per the averments of the plaint, an ordinary resident of USA, working for gain there.
9. The plaint alleges that the first defendant had been extremely active in the purchase of the above mentioned two properties at D- 1/37, Vasant Vihar, New Delhi and it was on the basis of his mis- representation / assurance that the loans were advanced from the account of the HUF to the defendants but, even after expiry of the agreed period of five years, neither the loan amounts had been returned by the defendants nor the properties transferred to the HUF, fraud having been played on the plaintiffs by the first defendant taking advantage of "his fiduciary relationship with the plaintiffs" and "of the old age and infirmities of plaintiff no.1".
10. The plaint refers to certain instances which had given reasons to the plaintiffs to believe that the defendants had become greedy, they including an instruction by the first defendant to a financial investment company (Bajaj Capital Ltd.) not to release amount beyond a limit to the first plaintiff from his investments out of his personal funds; execution of a Will in October 2013, by the first plaintiff, it being duly registered whereby bequest of certain shares, inter alia, for the benefit of the second plaintiff had been arranged this having upset the first defendant who having taken advantage of his father's condition (described in later paragraphs as speech and hearing impairment, diabetes, cardiac condition leading to bypass surgery, etc.) had played fraud upon him by making him sign on "yet another document", though the nature of such other document having not been spelt out at any stage. This, however, has to be read alongside subsequent averments in the plaint wherein reference CS (OS) 3625/2014 Page 7 of 20 is made to "certain papers" (para 19) on which the plaintiffs were made to sign by the first defendant exploiting the fiduciary capacity in which he was placed, taking advantage of his position and medical condition, not permitting the plaintiffs to read such papers or being made aware of the effect or consequences thereof, it having been clarified in the following paragraph (para 20) that the papers were in the nature of deed for "partition", the said document being dated 22.12.2007, it forming part of another document styled as "deed of execution pursuant to partition" executed and registered on 02.09.2014.
11. A copy of the "deed of execution pursuant to partition" dated 02.09.2014 of which copy of "partition deed" dated 22.12.2007 forms a part has been filed on record (pages 107 to 126 of part-III) by the plaintiffs themselves. It is not disputed that the partition deed dated 22.12.2007 was signed by both the plaintiffs and the defendants, the second defendant (described as "party of the second part") through the first plaintiff he being his constituted attorney, the second plaintiff being described as the wife of the first plaintiff ("party of the first part"), she signing "to confirm" the said partition ("ïn so far this deed relates to her"), the deed of execution pursuant to partition, however, was not signed or confirmed by the second plaintiff, the first plaintiff being its signatory on his own behalf and on behalf of the second defendant he being his constituted attorney, this in addition to the first defendant, the document having been duly registered.
12. Concededly, the partition deed dated 22.12.2007 was not registered. Noticeably, the plaint alleges that the said partition deed CS (OS) 3625/2014 Page 8 of 20 as also the deed of execution dated 04.09.2014 were got executed by the first defendant exercising undue influence and by playing fraud on the plaintiffs and it is on this ground that a declaration about such deed of execution dated 04.09.2014 being "illegal, null and void" has been sought as one of the reliefs in the suit, vide prayer clause (c).
13. Be that as it may, the reliefs concerning the two apartments on first and second floor of property bearing no.D-1/37, Vasant Vihar, New Delhi have been sought on the grounds summarized in para 26 (of the plaint) thus :
"26. That the alleged partition deed dated 22.12.2007 which is made Annexure-I to the deed dated 04.09.2014 was never given effect to due to change in circumstances. As stated hereinabove, a sum of Rs.8,66,00,000/- (Rupees Eight Crores Sixty Six Lakhs Only) had been advanced as loan to defendant no.1 and a sum of Rs.7,50,20,000/- (Rupees Seven Crore Fifty Lakhs Twenty Thousand Only) to the defendant no.2 from "Arjun Singh Gupta HUF" in the beginning of 2008. The said loans are still outstanding in the HUF accounts and all the three properties including 19 Poorvi Marg, Vasant Vihar, New Delhi and the two properties bearing No. First and Second Floors of D-1/37, Vasant Vihar, New Delhi are also HUF properties and were being so treated throughout the years 2007 till date. The plaintiff no.2 was made to pay Rs.3.70 Crores to Wigeon Promoters and Development Private Ltd., an Uppal group company which was also towards the price of the two flats purchased at D-1/37, Vasant Vihar, New Delhi and a further sum of Rs.2.90 Crores was paid to Saras Developers Pvt. Ltd. by the Plaintiff No.1 also towards the consideration of the aforesaid two flats."
14. Reference is made to the ITRs, copies of which were filed by the plaintiffs for the period beginning assessment year 2009-2010 CS (OS) 3625/2014 Page 9 of 20 and upto assessment year 2014-2015 wherein the amounts of loan given, from the account of HUF in favour of the first and second defendants, statedly for purchase of the two said properties in question, have been reflected as outstanding from year to year.
15. The defendants by their application (IA 21329/2015) sought dismissal of the suit in so far as it claims reliefs concerning the apartments at first and second floor of property bearing no.D-1/37, Vasant Vihar, New Delhi on the basis of admissions in the pleadings, also craving reference to certain documents which have come on record including deed of execution dated 04.09.2014 and Will admittedly executed and got registered by first plaintiff in October 2013 besides certain pleadings appearing in the replication filed by the plaintiff in answer to the written statement and averments made in the context of applications one (IA 19723/2015) under Order 22 Rules 1 & 2 CPC and another (IA 1964/2015) under Order 39 Rule 4 CPC.
16. Since the plaintiff alleges fraud having been played in the context of the deed of execution dated 04.09.2014, preceded by partition deed dated 22.12.2007 and further since it is the case of the surviving plaintiff that the Will of October 2013 had been substituted by another Will, the latter claimed to be the last Will and testament of the first plaintiff, for purposes of considering the prayer in the application under Order 12 Rule 6 CPC, declarations or averments made in such other documents as are disputed, or pleadings other than plaint, are not being considered at this stage. The scrutiny of the prayer of the defendants for part dismissal of the suit is thus restricted to the case set out in the plaint as noted above.
CS (OS) 3625/2014 Page 10 of 2017. The plaintiff has argued that a piecemeal consideration of the prayer in the suit is not permissible. It is her submission that if the plaint were to be rejected, it would have to be rejected as a whole. Reliance is placed on Roop Lal Sathi Vs. Nachhattar Singh Gill, (1982) 3 SCC 487 and Ram Prakash Gupta Vs. Rajiv Kumar Gupta and Ors., (2007) 10 SCC 59. Reference is also made to M/s. Jeevan Diesels & Electricals Ltd. Vs. M/s. Jasbir Singh Chadha (HUF) and Anr., AIR 2010 SCC 1890 to submit that a judgment on admissions under Order 12 Rule 6 CPC can be rendered only if there is "clear, unambiguous admission" which discretion essentially concerning a question of fact in the present case, it is urged, ought not be exercised.
18. Per contra, the defendants (applicants) argued that what they seek is not rejection of the plaint under Order VII Rule 11 CPC but dismissal of part of the claim in the suit in view of the admitted factual matrix of the case concerning two of the subject properties and that such part dismissal of the suit, which would also be a "decree" within the meaning of the expression defined in Section 2(2) CPC, is permissible under the said provision of law read with order XII Rule 6 CPC, the remainder of the claim in the suit continuing to be subjected to further scrutiny as per the procedure established by law.
19. Reliance by the plaintiff on Roop Lal Sathi (supra) is misplaced. It was not clear from the order impugned before the Supreme Court rejecting a particular portion of the plaint in that case as to whether it had been passed under Order VII Rule 11 CPC or under Order VI Rule 16 CPC (striking out pleadings), the court CS (OS) 3625/2014 Page 11 of 20 ruling that rejection of a particular portion of the plaint was not justified under the former provision, it being obligatory on the Court to examine if the plaint was liable to be rejected "as a whole"
should it not disclose any cause of action. There can be no quarrel with the proposition that in order to render a judgment, even to partly dismiss or decree the suit, there must be found clear and unambiguous admission on record, the idea being that if there is an admission of the opposite party which clearly entitles the other to an order, the latter should not have to wait or go through the rigors of full-fledged trial to obtain such an order; judgment on admissions, of course, not being a matter of right and rather a matter of discretion [M/s. Jeevan Diesels & Electricals Ltd. (supra) & S.M. Asif v. Virendra Kumar Bajaj (2015) 9 SCC 287].
20. It is trite that this Court has the judicial discretion under Order XII Rule 6 CPC to pass judgment on the basis of facts which emerge as admitted or undisputed, the expression "decree" defined in Section 2(2) CPC being inclusive of result in the nature of dismissal of even a part of the suit, such result being a preliminary decree.
21. Though in the application under Order XII Rule 6 CPC moved by the defendants praying for dismissal of the suit insofar as it claims reliefs concerning the two apartments i.e. first and second floors of property No. D-1/37, First Floor, Vasant Vihar, New Delhi, various other grounds have been set out, in the opinion of this Court, the relief deserves to be granted merely on the basis of the case set out in the plaint with regard to the mode and manner of CS (OS) 3625/2014 Page 12 of 20 acquisition of the said properties in the names of the two defendants. This may be elaborated by the discussion that follows.
22. The relevant paras of the plaint (para 7 to 10 and 26) have been extracted in extenso in the earlier part of this order. The plaint read and construed accordingly reveals that it has not been the case of the plaintiffs that the two said apartments in property No. D-1/37, First Floor, Vasant Vihar, New Delhi were ever, or at any stage, intended to be purchased as properties of the HUF or for that matter, for the benefit of HUF or any member thereof. The case of the plaintiffs clearly has been that first and second defendants desired, the former being pro-active, to purchase residential properties in their respective names and, thus, had approached their father (the first plaintiff), the then Karta of the HUF, for financial support in such venture. Borrowing the expression used by the plaintiff, the financial support was afforded in the form of "loan" amounts being extended by the Karta (first plaintiff) by transfer of monies from the account of the HUF to the respective defendants. Concededly, no documents respecting the loan transactions between the HUF and the first or second defendants were executed at any stage. It must be granted that the documents filed and relied upon by the plaintiffs, particularly the ITRs, do show that the amounts from the account of HUF were treated as loans advanced to its members (first and second defendant) which would be payable in due course. One may presume, for the present, that the period for which such loans were given and on the expiry of which the defendants would owe CS (OS) 3625/2014 Page 13 of 20 repayment to the lender (HUF) was agreed upon as of five years, as stated in the plaint.
23. From the above factual matrix, however, it cannot follow that the properties which were purchased by the defendants with the help of such loan amounts taken from the HUF would be subject to charge in the nature of they returning to the "hotchpotch" of the HUF, as is claimed (para 7 of plaint) by the plaintiffs, in the event of default occurring in repayment of the loan amounts. For such a lien to be created on the immovable properties, there could not have been, in law, only an oral understanding. In the given facts, assuming the case set out in the plaint is correct, all that could be claimed by the HUF, or by its members (including the Karta) would be the repayment of the loan(s), the term (of five years as stated) having come to an end. Going further, assuming there was some verbal understanding of the properties being transferred to the HUF in the event of default in repayment of loan, the HUF would have to demand such transfer of the title in the properties in favour of the HUF to claim a cause of action on that score.
24. The provision contained in Rule 2 of Order VI CPC (pleadings generally) mandates that every pleading (which expression includes the plaint) "shall contain ... a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be". It is trite that the word "material" as appearing in the above clause means that the facts necessary to formulate a complete cause of action must be stated. The omission of a single material fact may lead to "incomplete CS (OS) 3625/2014 Page 14 of 20 cause of action" rendering "the statement of claim" bad. [Samant N. Balkrishna vs. George Fernandez (1969) 3 SCC 238].
25. The Prohibition of Benami Property Transactions Act, 1988, as amended by the Benami Transactions (Prohibition) Amendment Act, 2016 (hereinafter referred to referred to "Benami Property Act") not only prohibits, by Section 3, every person against entering into "any benami transaction" but also mandates, by Section 4 (1), that "no suit, claim or action to enforce any right of" such property. Prior to its amendment in 2016, Section 4 of Benami Property Act contained an exclusion clause in the form of sub-section (3) which covered certain properties of Hindu Undivided Family. The amendment has deleted the sub-section (3) of Section 4 but amended the definition of the expression "benami transaction" as given in Section 2(9), such expression ("benami transaction") being at the core of the meaning of the expression "benami property" as defined in Section 2(8). By such modification of the meaning of the expression "benami transaction", the exclusions, inter alia, concerning HUF properties as existed in sub-section 3 of Section 4 prior to the amendment have been substantially brought in (apart from certain other changes) to keep the same out of the purview of "benami transaction".
26. For clarity, sub-section (3) of Section 4, as it stood prior to the amendment, may be noted as under:-
" (3) Nothing in this section shall apply,--
(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the CS (OS) 3625/2014 Page 15 of 20 property is held for the benefit of the coparceners in the family; or..."
27. After the amendment, upon omission of the above sub- section while the expression "benami transaction" means and includes " a property... transferred to or ... held by a person" where "the consideration of such property has been provided, or paid by, another person" but not in a case when the property is held by :-
"(i) A karta, or a member of a Hindu undivided family, as the case may be, and the property is held for his benefit or benefit of other members in the family and the consideration of such property has been provided or paid out of the known sources of the Hindu undivided family...."
28. Whether examined in the light of statutory command of Benami Property Act prior to its amendment or thereafter, the crucial facts to maintain a case concerning property held in another person's name, claimed as HUF, or in other words (benami), would include an assertion that such property is held " for ... the benefit of (karta or claimant member) or benefit of other members in the family", this apart from the necessary pleading that consideration for such property had been provided or paid out of the known source of the HUF. These assertions would be the "material facts"
within the meaning of Rule 2 of Order VI, omission to so plead rendering the case in such respect an incomplete cause of action and the statement of claim being bad. [Samant N. Balkrishna (supra)].
29. The plaint presented before the Court nowhere pleads that the two apartments, i.e. first and second floor of property No. D-1/37, Vasant Vihar, New Delhi, were purchased for the "benefit of" the CS (OS) 3625/2014 Page 16 of 20 karta or other members of the HUF. The averments about the defendants being in fiduciary capacity are not in the context of acquisition of the title to the said properties. It is admitted case that the said properties were purchased not in the name of the HUF but in the individual names of the two defendants. As noted earlier, the registered sale deeds executed at the time of such acquisition were endorsed by the first plaintiff himself, in one as an attesting witness and in the other for and on behalf of the purchaser (the second defendant), with no claim or assertion made at that stage that the properties were being acquired for or on behalf of HUF or for the benefit of its members.
30. The plaint does allege that the first defendant has played fraud and made certain misrepresentations or further that he had abused the condition of his father (the first plaintiff) to secure such loans in his name and in the name of his sibling (second defendant). Noticeably, no such averments have been made vis-à-vis the second defendant. In absence of any case made out imputing similar conduct or intention on the part of second defendant, it is not even explained as to how his property had been agreed upon to be subject to transfer to the HUF after the period of five years in the event of the loan taken in his name remaining unpaid.
31. Be that as it may, in the above facts and circumstances, there being no averment about the acquisition of the two apartments in question for the benefit of other members of the HUF, the mere fact that the finance for such acquisitions had come from the account of the HUF would not bring these apartments - admittedly purchased in the name of the two defendants - under the exclusion clause so as CS (OS) 3625/2014 Page 17 of 20 to take them out of the purview of Section 4 of Benami Property Act. Since the plaintiffs admit not only in the pleadings, but also otherwise (reference being made to the admission of the documents leading to they having been accepted as good evidence of the transactions), that the said two apartments were purchased by sale deeds executed and registered in favour of the respective defendants, the HUF being distinct entity, cannot bring in a suit to claim such properties to be of the latter, not the least on the basis of background facts as pleaded.
32. The suit, as noted in the initial part of this order, inter alia, prays for a decree of declaration that these properties - namely D- 1/37, First Floor, Vasant Vihar, New Delhi and D-1/37, second Floor, Vasant Vihar, New Delhi - are properties of the HUF. The properties may have been purchased in the names of first and second defendants with the help of finance provided by the HUF in the form of loans to the two defendants. This, by itself, cannot render the properties to be of the HUF. The plaintiffs have not pleaded that they had demanded the transfer of these properties to the HUF nor seek any relief (illustratively, for cancellation) concerning the sale deeds (Ex.P4 and Ex.P5) whereunder they are held by the first and second defendants respectively.
33. On the above facts and in the circumstances, and additionally in view of the prohibition contained in Section 4 of Benami Property Act, the suit cannot be maintained for and on behalf of the HUF by its karta or by any member of the HUF vis-à-vis the title of the above-mentioned two properties. If the plea about loans can be substantiated, all that the plaintiff could seek would be repayment CS (OS) 3625/2014 Page 18 of 20 of the said loan amounts to the HUF account, the suit, afterall, essentially being for partition of the assets of the HUF. Crucially, the allegations of fraud or misrepresentation have been leveled, not concerning the acquisition of the properties in the name of the defendants, but about the taking of the loans or execution of the "partition deed" followed by the signing and registration of the "deed of execution".
34. In view of the above, the reliefs of declaration, partition and permanent injunction vis-à-vis two properties viz D-1/37, First Floor, Vasant Vihar, New Delhi and D-1/37, Second Floor, Vasant Vihar, New Delhi, as claimed in the prayer clauses (a), (b) and (d) of the plaint are declined and the suit to that extent is dismissed.
35. On the application (IA No. 23626/2014 of the plaintiffs under Order XXXIX Rules 1 and 2 CPC) some interim orders were earlier passed concerning, inter alia, the above-mentioned properties, i.e. D-1/37, First Floor, Vasant Vihar, New Delhi and D-1/37, Second Floor, Vasant Vihar, New Delhi. In view of the above result of the suit concerning the said properties, such interim orders are vacated. Given the fact that the remainder of the case will have to proceed further to trial, the ad interim injunction granted on the said application of the plaintiffs under Order XXXIX Rules 1 and 2 CPC is made absolute for the pendency of the case.
36. This disposes of applications under Order XII Rule 6 CPC of defendants (IA No. 21329/2015), under Order XXXIX Rules 1 & 2 CPC of plaintiffs (IA No. 23626/2014) and under Order XXXIX Rule 4 CPC of defendants (IA 3792/2015).
CS (OS) 3625/2014 Page 19 of 2037. A preliminary decree of dismissal of the part of the claim in the suit shall be drawn up.
(R.K. GAUBA) JUDGE FEBRUARY 28, 2017 yg/nk CS (OS) 3625/2014 Page 20 of 20