Kulvinder Singh vs . Harvinder Pal Singh & Anr. on 11 July, 2022

[Cites 20, Cited by 0]

Delhi District Court

Kulvinder Singh vs . Harvinder Pal Singh & Anr. on 11 July, 2022

Kulvinder Singh vs. Harvinder Pal Singh & Anr.
&
Kulvinder Singh & Ors vs. Harvinder Pal Singh

IN THE COURT OF SH. NIKHIL CHOPRA (CURRENT POSTING),
SPECIAL JUDGE, CBI 13, (PC ACT), ROUSE AVENUE DISTRICT
COURT, NEW DELHI;

(TO BE ANNOUNCED BY THE COURT OF SH. DINESH KUMAR,
LEARNED ADDL. DISTRICT JUDGE02, SOUTH, SAKET COURTS,
NEW DELHI)

In the matter of
Suit No.:7067/2016

1. Kulvinder Singh
S/o Late Sh. Gurdial Singh

2. Gagan Preet Singh
S/o Sh. Kulvinder Singh

3. Gurjas Singh (Through his father Sh. Kulvinder Singh)
S/o Kulvinder Singh

All:
R/o GC14GBlock,
Hari Nagar, New Delhi110 018
................Plaintiffs

Versus

1. Harvinder Pal Singh
S/o Late Sh. Gurdial Singh

2. Hardial Singh
S/o Late Sh. Amar Singh
R/o B7, 105, First Floor,
Safdarjung Enclave Extension,
New Delhi110 029
3. Balvir (Through father Sh. Harvinder Pal Singh)
S/o Sh. Harvinder Pal Singh

Suit No. 7067/2016
& Page 1 of 58
Suit No.8042/2016
Kulvinder Singh vs. Harvinder Pal Singh & Anr.
&
Kulvinder Singh & Ors vs. Harvinder Pal Singh

4. Dania (Through father Sh. Harvinder Pal Singh)
D/o Sh. Harvinder Pal Singh
All:
R/o B7, 105, Ground Floor,
Safdarjung Enclave Extension,
New Delhi110 029
.............Defendants

SUIT FOR PARTITION & PERMANENT INJUNCTION

Date of Institution : 01.09.2009
Date of reserving the judgment : 23.05.2022
Date of pronouncement : 11.07.2022
Decision : Dismissed

AND

In the matter of
Suit No.:8042/2016

1. Kulvinder Singh
S/o Late Sh. Gurdial Singh
2. Gagan Preet Singh
S/o Kulvinder Singh
3. Gurjas Singh
S/o Kulvinder Singh
All:
R/o GC14GBlock,
Hari Nagar,
New Delhi110 018
................Plaintiffs

Versus

Suit No. 7067/2016
& Page 2 of 58
Suit No.8042/2016
Kulvinder Singh vs. Harvinder Pal Singh & Anr.
&
Kulvinder Singh & Ors vs. Harvinder Pal Singh

Harvinder Pal Singh
S/o Late Sh. Gurdial Singh
R/o B7, 105, Ground Floor,
Safdarjung Enclave Extension,
New Delhi110 029
.............Defendant

Date of Institution : 03.03.2014
Date of reserving the judgment : 23.05.2022
Date of pronouncement : 11.07.2022
Decision : Dismissed

SUIT FOR DECLARATION OF GIFT DEED AS NULL & VOID

JUDGMENT

1. Judgment disposes off a suit for partition and permanent injunction in respect of property bearing Plot No.105, B7, Extension, Safdarjung Enclave, New Delhi110 016, as well as a suit for declaration to the effect that the Gift Deed dated 22.05.2008 as null and void.

2. Insofar as the suit for partition and injunction is concerned, the plaintiff's case is briefly outlined as under:

(i) Sh. Amar Singh was the original owner of the House No.234A, Arjan Nagar, Near Green Park, New Delhi16, by virtue of Sale Deed dated 18.04.1959. Prior to his demise on 26.06.1972, his coparcenery constituted of plaintiff and defendant No.1 & 2.

Suit No. 7067/2016 & Page 3 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

(ii) On his demise, the property was inherited by ClassI Legal Heirs namely Smt. Ved Kaur (wife), Gurdial Singh (son), Hardial Singh (son), Smt. Inderjeet Kaur (daughter) and Smt. Palvinder Kaur (daughter) equally as it was his self acquired property. A Relinquishment Deed dated 25.08.1972 in favour of Smt. Ved Kaur W/o Late Sh. Amar Singh was executed.

(iii) The family, however, continued to be a Hindu Undivided Family and the coparcenary consists of Sh. Gurdial Singh, Hardial Singh, Harvinder Pal Singh and the plaintiff. Sh. Gurdial Singh, being the eldest male member of the HUF was the Karta of the family.

(iv) The property at Arjan Nagar was demolished by the Government during emergency and Smt. Ved Kaur was alloted a Plot No.105, B7, Extension, Safdarjung Enclave, New Delhi110 01,6 on 18.09.1978 in lieu of Arjan Nagar.

(v) Prior thereto, Smt. Ved Kaur had executed a GPA in favour of her elder son Sh. Gurdial Singh on 27.04.1976 in relation with pursuing the matter with the Government and get a plot of land in exchange of property demolished during emergency.

(vi) An exchange Deed was executed by the Government of India in the name of Sh. Gurdial Singh in respect of property bearing Plot No.105, B7, Extension, Safdarjung Enclave, New Delhi, against the property at Arjan Nagar.

(vii) During the lifetime of Smt. Ved Kaur, a family arrangement took place on 21.01.1991 whereunder Sh.Gurdial Singh got the entire first floor, and Sh. Hardial Singh got the entire first floor with subsequent upper floors and roof rights in equal shares. With the said family arrangement of the year 1991, two different HUFs / Co parcenary came into existence namely Sh. Gurdial Singh and his sons & Hardial Singh and his ons.

Suit No. 7067/2016 & Page 4 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

(viii) The property continued to be the coparcenary property at the hands of Sh. Gurdial Singh as it was not his self acquired property.

(ix) Smt. Ved Kaur expired in the year 1997, although, it is claimed by defendant No.1 that Smt. Ved Kaur had also executed a registered Will dated 26.09.1978 in favour of Sh. Gurdial Singh, no application for probate was ever filed and the plaintiff denies the Will.

(x) Sh. Gurdial Singh died on 06.01.2009 and prior to his death, coparcenary constituted of Sh. Gurdial Singh himself, Harvinder Pal Singh, his two sons and daughter as well as the plaintiff and his two sons i.e. 8 coparceners. Upon the demise, the share of Sh. Gurdial Singh in the co parcenary property was inherited by his legal heirs in equal proportions. Despite assurance, defendant No.1 turned down the request of the plaintiff to settle the issues of partition as also threatened to sell the suit property.

3. While claiming cause of action to have been accrued, upon denial/ threat of disposal, the plaintiff have sought a decree of partition as well as permanent injunction.

4. No WS was filed by defendant No.2 to the amended plaint. In the written statement filed by defendant No.2 to the original plaint, defendant No.2 raised the preliminary objections as to the misjoinder of parties and the suit being bad in law while submitting that he has unnecessarily been impleaded as defendant in the present suit. It is submitted that the suit is vague, misconceived and defendant No.2 has no knowledge as to the dealings and transactions as well as disputes between the plaintiff and defendant No.1. On merits, all the averments made Suit No. 7067/2016 & Page 5 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh in the plaint were denied.

5. Defendant No.1 filed the WS for himself as well as for his minor children. The defendants' narration of facts is as follows:

(i) Father of the plaintiff and defendant No.1, namely Late Sh. Gurdial Singh, and defendant No.2 Hardial Singh, are the sons of Late Sh. Amar Singh and Late Smt. Ved Kaur.

Sh. Amar Singh was the exclusive owner of the property bearing No.234A, Arjan Nagar, Near Green Park, New Delhi16, by virtue of a Sale Deed dated 18.04.1959. Subsequent to the demise of Sh. Amar Singh on 20.07.1972, his legal heirs (1) Smt. Ved Kaur (wife), (2) Sh. Gurdial Singh (son); (3) Sh. Hardial Singh (son); (4) Smt. Inderjeet Kaur (daughter); and (5) Smt. Palvinder Kaur (daughter) inherited the property, later on a registered Relinquishment Deed dated 25.08.1972 in favour of Smt. Ved Kaur registered on 26.08.1972 by the rest of legal heirs of Sh. Amar Singh.

(ii) The suit property was demolished during emergency and as per the policy temporary accommodation was provided to Smt. Ved Kaur and Hardial Singh, who was disclosed to be a tenant in the suit property.

(iii) Property No. 30A/L1, DDA Flats, Kalkaji Extension, New Delhi110 019 was allotted to Smt. Ved Kaur.

(iv) Smt. Ved Kaur applied for allotment of freehold plot in exchange of the demolished property by means of an application dated 06.06.1978. She was alloted the suit property bearing No.105, B7, Extension, Safdarjung Enclave, New Delhi110 016. Out of her free will and violation, she transferred the property in favour of Late Sh. Gurdial Singh and made an application for allotment of the said land in the name of Sh. Gurdial Singh. All other Legal Heirs tendered various documents like NOCs, Affidavits etc. Suit No. 7067/2016 & Page 6 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh in this respect. Smt. Ved Kaur executed a GPA in favour of Sh. Gurdial Singh apart from the registered Will dated 26.09.1978.

(v) The suit property, accordingly, was allotted in the name of Sh. Gurdial Singh alone by DDA, vide Sanction Letter dated 13.11.1979. He completed the construction of the ground floor in the year 1980. In the year 1989, a Deed with respect to the said suit property was executed in his name.

(vi) Sh. Gurdial Singh was the sole and absolute owner of the suit property which is evident from the documents, letters, sanctions, property tax receipts, occupancy certificate.

(vii) Plaintiff Kulvinder Singh and defendant No.1 Harvinder Pal Singh were born out of the wedlock of Sh. Gurdial Singh and Smt. Harjeet Kaur. Pursuant to the dissolution of their marriage, plaintiff remained in the custody of Smt. Harjeet Kaur, and defendant No.1 remained in the custody of Late Gurdial Singh.

(viii) In the year 199091, defendant No.2 approached Late Sh. Gurdial Singh with the proposal to develop the suit property and a collaboration agreement dated 21.01.1991 was executed between Sh. Gurdial Singh and Sh. Hardial Singh, which agreement was signed by Sh. Gurdial Singh on good faith. The said agreement was merely an agreement to transfer the first floor of the suit property to defendant No.2 with right to develop jointly. However, there was some dispute on account of nonfulfillment of obligations by defendant No.2. Sh. Gurdial Singh transferred his entire right to the extent of entire ground floor and 50% of the second floor and the subsequent floors by way of registered Gift Deed dated 22.05.2008 in favour of defendant No.1. Defendant No.1 has been in continued possession of the property during his lifetime and even after the demise of Sh. Gurdial Singh on 06.01.2009.

Suit No. 7067/2016 & Page 7 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh Defendant No.1, further, raised objections as to the locus standi, estoppel and the maintainability of the suit.

6. On merits, it has been submitted that defendant No.1 is the sole and absolute owner of the suit property by virtue of Gift Deed validly executed by Sh. Gurdial Singh, father of defendant No.1. Sh. Gurdial Singh is also stated to be the sole and absolute owner of the property. The property is also stated to be mutated in the name of Sh. Gurdial Singh in the records of MCD and further that he has been paying the House Tax etc. in respect of property. Sh. Gurdial Singh is also stated to have been paid the stamp duty for Exchange Deed, and the development charges etc. It is stated that the Collaboration Agreement, which was got signed by defendant No.2, does not confer any ownership right over defendant No.2 as Sh. Gurdial Singh never intended to do so. Defendant No.2 is stated to have played fraud on Sh. Gurdial Singh. The property is stated to have been now mutated in favour of defendant No.1.

7. Plaintiffs have filed another suit for declaration of Gift Deed as null & void, against the defendant by submitting that plaintiff No.1 and defendant are real brothers while plaintiff No.2 & 3 are his sons. It is averred that the ground floor, half of the entire second floor and upper floors of the house No.B7, Extension/105, Safdarjung Enclave, New Delhi is the co Suit No. 7067/2016 & Page 8 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh parcenary property of the Hindu Undivided Family consisting of Late Sh. Gurdial Singh, plaintiffs and defendant; and that Sh. Gurdial Singh executed a Gift Deed in favour of the defendant in respect of the suit property, to the exclusion of other co parceners i.e. plaintiffs. It is averred that Sh. Amar Singh i.e. grandfather of the plaintiff No.1 & defendant was owner of the property bearing No.234A, Arjan Nagar, Near Green Park, New Delhi16, which, after the demise of Sh. Amar Singh, was inherited by all his legal heirs i.e. wife and children and that the children of Sh. Amar Singh had relinquished their share in favour of their mother Smt. Ved Kaur, who became the sole and absolute owner of the said property. It is averred that the said property was acquired by the Delhi Development Authority and in lieu of that property, a plot of land i.e. 105, B7, Extension, Safdarjung Enclave, New Delhi, was allotted in favour of Smt. Ved Kaur, who on 27.04.1976 executed a General Power of Attorney in faovur of her elder son Sh. Gurdial Singh i.e. father of plaintiff No.1 and the defendant, for taking steps with regard to the property in question and subsequently, an Exchange Deed was executed between Sh. Gurdial Singh i.e. the father of the plaintiff No.1 and DDA in respect of the property i.e. plot No.B 7, 105, Extension, Safdarjung Enclave, New Delhi, admeasuring 175 sq. mts. It is averred that during the lifetime of Smt. Ved Kaur, on 21.01.1991 as a family settlement, an agreement of collaboration for the construction/ modification/ division of House No.B7, 105, Extension, Safdarjung Enclave, New Delhi, was entered between Sh. Gurdial Singh and Sh. Hardial Singh Suit No. 7067/2016 & Page 9 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh and accordingly, entire ground floor came in the share of Sh. Gurdial Singh and entire first floor was given to Sh. Hardial Singh but the upper floor with roof rights were equally distributed between both the brothers i.e. Sh. Gurdial Singh and Sh. Hardial Singh. It is further submitted that in the year 1991, after the family arrangement, Sh. Gurdial Singh and his sons constituted separate coparcenary from Sh. Hardial Singh. It is stated that defendant is living in Canada in 1998 whereas plaintiff No.1 has been living in Delhi and has been taking care of his parents. It is stated that after the demise of Sh. Gurdial Singh, his share in coparcenary property was inherited by both plaintiff No.1 and defendant and in January, 2009, defendant promised to settle the matter but refused to do so on 23.06.2009 and further threatened to sell the property without giving any share to the plaintiff. Therefore, plaintiff filed a suit for partition and permanent injunction against the defendant, which was opposed by the defendant while claiming to be the owner of the same vide Gift Deed dated 22.05.2008. It is stated that the plaintiff was shocked to find out about the Gift Deed, in respect of the entire suit property, in favour of the defendant without the consent of other coparceners. Accordingly, having left with no other option, plaintiffs filed the present suit for declaration declaring the Gift Deed dated 22.05.2008 as null and void by claiming to be the owners of 3/8th share in the ground floor and 3/16th share in the second floor of the suit property and further claiming that being classI legal heirs, plaintiff No.1 and defendant are entitled to half of the 1/8th Suit No. 7067/2016 & Page 10 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh share of Sh. Gurdial Singh in the coparcenary property.

8. It is pertinent to mention here that vide order dated 04.01.2018, Learned Predecessor had observed that since an issue with regard to the validity of the Gift Deed had already been framed, there is no need for the defendant to file WS in this present suit for declaration.

9. Vide order dated 25.08.2017, on the basis of the pleadings of the parties, Learned Predecessor framed the following issues:

1. Whether the plaintiff is entitled to seek a decree of partition of the ground floor and half of the second floor of the property No.B7, 105, Safdarjung Extension, New Delhi? OPP

2. Whether the suit is maintainable in the present form since the declaration of ownership qua the suit property has been prayed for without seeking its possession? OPD

3. Whether the property in question has been validly gifted to defendant No.1 by the father of the plaintiff and defendant No.1, and hence plaintiff has no right to seek partition of the suit property?

OPD 4A. Whether the gift deed dated 22.05.2008 could not have been executed by the Late Sh. Gurdial Singh since the property in question is coparcenery property? Onus on the plaintiff

5. Relief Suit No. 7067/2016 & Page 11 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh Sofar as Issue No.4A is concerned, the same was framed by the Learned Predecessor vide order dated 04.01.2018.

10. Plaintiff examined only himself as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He relied on the following documents:

1. Copy of the exchange deed dated 06.07.1989 as Ex.PW1/1;

2. True copy of judgment dated 04.01.1971 passed by Learned Additional District Judge, Delhi as Ex.PW1/2;

and

3. The copy of the agreement of collaboration for construction/ modification of the division of H. No.B7, Extension/105, Safdarjung Enclave and sale of flats L1/30B, Kalkaji, DDA, New Delhi dated 21.01.1991 as Ex.PW1/3.

11. Plaintiff deposed on the lines of his plaint. During his cross examination, PW1 stated that his relations with his brother i.e. defendant No.1 were cordial earlier but after the litigation had become strained; that defendant No.1 is working in the field of computer softwares in Canada; that defendant No.1 has been in Canada since 1989 but does not remember his age when he left for Canada and as to who sponsored the travel to Canada of Defendant No.1. He submitted that as he was minor so is not aware whether there is any revenue document Suit No. 7067/2016 & Page 12 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh substantiating that Late Amar Singh was owner of property in Arjan Nagar; that he used to stay with his mother Smt. Harjeet Kaur W/o Late Sardar Gurdial Singh; that his parents divorced in the year 1971 and thereafter he had been living with his mother; that defendant No.2 is his Chachaji (paternal uncle); that he is not aware of the Relinquishment Deed dated 25.08.1972 wherein the legal heirs of Late Sh. Amar Singh had relinquished their shares in the property at Arjan Nagar in favour of their mother Smt. Ved Kaur; that he got to know about the same only when the written statement of the present suit was filed by the defendants; that at the time when the Exchange Deed dated 12.07.1989 was executed, the defendant No.1 was in India; that his father Sh. Gurdial Singh expired on 06.01.2009; that he has no idea whether there was any objection to the GPA executed by Smt. Ved Kaur in favour of his father Late Sh. Gurdial Singh as he was a minor at that time; that he has seen any allotment letter or possession letter issued from DDA; that it is only in the year 1999 that he got to know about the Exchange Deed and property allotted in the name of his father; and that he is not aware who paid the stamp duty for the property. PW1 stated that he also lived in the suit property for some time. To a specific question regarding his staying with his mother after his parents' divorce in 1971 and not visiting or staying in the suit property, he denied that that he did not take care about his father while submitting that after his brother went to Canada he often used to visit his father, who also gave key of the suit property to him and he had accessed the suit Suit No. 7067/2016 & Page 13 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh property some times.

12. PW1 further stated that the ground floor is in the name of his deceased father, and the first floor is in the name of his chachaji and his deceased father jointly. He further deposed that he does not know as on which date the coparcenary came into existence and volunteered that Arjan Nagar house was in the name of his grandfather Late Sh. Amar Singh. He denied that there was no coparcenary and neither was his father late Sh. Gurdial Singh a Karta of the HUF as alleged. Witness submitted that he was not aware that the suit property bequeathed upon Late Sh. Gurdial Singh, from Mrs. Ved Kaur, through her Will and her letters to DDA for allotting the same to her son Sh. Gurdial Singh as he was minor at that time.

13. When put to the documents i.e. letter dated 02.01.1979, 2 indemnity bonds dated 02.01.1979 by Smt. Ved Kaur & Sh. Gurdial Singh, letter dated 22.11.1978 written by Sh. Gurdial Singh and affidavit dated 21.11.1978 of Sh. Hardial Singh, he denied the documents Ex.PW1/X2. In respect of the Gift Deed dated 22.05.2008 executed in favour of the defendant No.1 by Late Sh. Gurdial Singh with respect to the suit property, witness stated that he came to know about this document only in 2011 when the written statement was filed by the defendants. He identified the signature on the Gift Deed to be of Sh. Gurdial Singh. He admitted that he did not pay any property tax, maintenance or the utility bills for the suit property; and stated Suit No. 7067/2016 & Page 14 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh that he was not aware of the Will executed by Smt. Ved Kaur. He denied that the suit property is the self acquired property of Sh. Gurdial Singh and not an ancestral property; that he has no right to the suit property as the same was duly gifted to defendant No.1 vide gift deed dated 22.05.2008; that the coparcenery as alleged does not include him and defendant No.1's sisters and further denied that no HUF was ever created by his father and volunteered that his father was karta of the suit property and he gave share to his chachaji.

14. PW1 further stated that his father gave him the papers being the exchange deed and collaboration agreement Ex.PW1/3 in the year 2000. He further denied that the defendant No.1 has taken care of his father and also paid all the taxes, and bills of the suit property and he has no right over the said property.

No other witness was examined on behalf of the plaintiffs.

15. Defendants examined defendant No.1 as DW1; Smt. Paramjit Kaur as DW2; and Sh. Anil Kumar Yadav, Junior Assistant, Office of SubRegistrarIX, as DW3.

16. DW1 tendered his evidence by way of affidavit Ex.DW1/A and relied on the following documents:

Suit No. 7067/2016 & Page 15 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

1. The original registered relinquishment deed dated 25.08.1972 in favour of Smt. Ved Kaur as Ex.DW1/1;

2. The original registered GPA dated 27.04.1976 executed in favour of Sh.Gurdialk Singh as Ex.DW1/2;

3. Original allotment letter dated 18.09.1978 issued by DDA as Ex.DW1/3;

4. The true copy of application dated 29.08.1978 by Late Smt. Ved Kaur as Ex.DW1/4;

5. The original provisional approval of the allotment in the name of Late Sh. Gurdial Singh dated 01.01.1979 as Ex.DW1/5;

6. The original letter for personal hearing of Smt. Ved Kaur dated 03.11.1978 issued by DDA as Ex.DW1/6;

7. The letter dated 22.11.1978 to DDA submitting the affidavits as Ex.DW1/7 (Colly.);

8. The letter dated 02.01.1979 for submitting indemnity bonds to DDA as Ex.DW1/8;

9. The registered original Will dated 26.09.1978 as Ex.DW1/9;

10. Copy of letter dated 13.11.1979 to DDA as Ex.DW1/10;

11. Original letter dated 13.11.1979 issued by the DDA for permission for construction of the suit property as Ex.DW1/11;

12. The original exchange deed dated 06.07.1989 as Ex.DW1/11A;

13. The original occupancy certificate dated 10.08.1989 Suit No. 7067/2016 & Page 16 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh of the suit premises as Ex.DW1/12;

14. The original letter dated 18.09.1989 issued by DDA to Late Sh. Gurdial Singh as Ex.DW1/14;

15. The original bills and receipts for payment of property tax as Ex.DW1/15 (Colly.);

16. The copy of the allotment letter dated 16.04.1976 in favour of defendant No.2 as MarkA;

17. The copy of the allotment letter dated 14.06.1976 in favour of defendant No.2 as MarkB;

18. The copy of the legal notice dated 27.04.1998 as Ex.DW1/17;

19. The registered Gift Deed dated 22.05.2008 in favor of defendant No.1 alongwith mutation dated 17.06.2009 as Ex.DW1/18 (Colly.); and

20. The original telephone bills, copy of ration card, electricity bills, LPG cylinder bill, copy of PAN Card (OSR), Cable connection and water bills as Ex.DW1/19 (colly.)

17. DW1 deposed on the lines of his written statement.

During his cross examination, he admitted that they used to live at House No.234A, Arjan Nagar, Green Park, New Delhi; that the said house was purchased by his grandfather Sh. Amar Singh; that Delhi Development Authority demolished this house; that his father got an alternative residence to live at Kalkaji; and that the property in dispute was alotted by DDA in the exchange of demolished flat No.234A, Arjan Nagar, Green Park, New Delhi. DW1 stated that in 1978 when the plot of land was given Suit No. 7067/2016 & Page 17 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh in exchange, he was 17 years old. He stated that his brother Kulvinder is 23 years younger to him. He denied that his father was entrusted with the responsibility of allotment of the property in dispute which was allotted in view of the Arjan Nagar property, by his grandmother, chachaji and both the buas and volunteered that only his grandmother had authorized his father to carry out the necessary acts in this regard. DW1 further stated that as per his knowledge, his grandmother Smt. Ved Kaur expired in the year 1997 and admitted that this property in dispute was not purchased by his father and was not a self acquired property.

18. He admitted that the property in dispute is not the self acquired property of his father, and that it was in his knowledge on the date of the execution of the Gift Deed dated 22.05.2008, and stated that the gift deed is valid. He further denied that he changed the main lock of the house on 26.02.2009 and he refused to partition the suit property. He admitted that he has been staying in Canada since 1998 while submitting that he keep visiting India; that he acquired Canadian Passport sometime around the year 2005. He denied that his brother Kulvinder was taking care of his father in my absence at Delhi; that his brother had one key of the main entrance gate of the ground floor of the suit property or that he changed the lock to deprive him entry in the house; that documents mentioned in para 27 of his affidavit were prepared after the death of his Suit No. 7067/2016 & Page 18 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh father in the year 2009; that he is opposing just to deprive his brother of his rightful share in the suit property.

19. DW2 Smt. Paramjit Kaur tendered her evidence by way of affidavit Ex.DW2/A and relied on the registered Gift Deed already exhibited as Ex.DW1/18. She deposed that she was witness of the Gift Deed dated 22.05.2008 and the same was signed between late Sh. Gurdial Singh and defendant No.1 vide which he transferred his entire right, title and interest in the suit property in favour of defendant No.1. During her cross examination, she stated that defendant No.1 is her brotherin law as her younger sister is married to him. She admitted that she was called by her brotherinlaw to sign some document while submitting that she did not know whether it was the gift deed or any other document and that she did not go through the contents of the document.

20. DW3 was the summoned witness, who brought the record pertaining to gift deed executed by Sh. Gurdial Singh in favour of Sh. Harvinder Pal Singh Dhillon, affirmed that the document is correct. During his cross examination, he stated that he was not posted at Kapashera Registrar office when the aforesaid document was executed on 22.05.2008 and admitted that no ownership document of the property No.B7/105, Safdarjung Extension was filed along with gift deed dated 22.05.2008.

Suit No. 7067/2016 & Page 19 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh No other witness was examined on behalf of the defendants.

21. I have heard the Learned counsel for the parties and have gone through the written submissions filed by the parties.

22. Main contentions of the ld. counsel for the plaintiff are:

(i) Property No. B7, Extension/105 Safdarjung Enclave, New Delhi, is ancestral property. In as much as the same was acquired through exchange in lieu of the property i.e. an old house belonging to the grand father of the plaintiff no. 1 and great grand father of the plaintiff no. 2 & 3.

(ii) Sh. Gurdial Singh was merely a "Karta" and had received the plot of land from DDA in the year 1989 for and on behalf of the entire family which a HUF.

(iii) In terms of the collaboration/settlement dated 23.01.1991, two HUFs have come into existence i.e. (i) Sh. Gurdial Singh and his legal heirs, and (ii) Sh. Hardial Singh and his legal heirs. The property continued to be ancestral property at the hands of Sh. Gurdial Singh and that the plaintiff and the defendants have acquired the right in the property by virtue of their birth, and coparceners, they have a right to claim partition.

(iv) There is a clear admission as to the property being "ancestral" in the documents dated 23.01.1991 and thus, the rights of the plaintiffs could not be disputed or denied by the defendants. The Gift deed dated 22.05.2008 is invalid, as the property was not a self acquired property of Sh. Gurdial Singh. Sh. Gurdial Suit No. 7067/2016 & Page 20 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh Singh could not have parted with the said property without there being any legal necessity.

(v) No legal necessity has been proved to be existing, which could have enabled Sh. Gurdial Singh to have sold or transferred the said property.

(vi) It is settled law that the property inherited from parental ancestors remain "coparcenary" property in the hands of male descendants and would continue to remain the ancestral property, even after commencement of Hindu Succession Act, 1956.

Ld counsel for the plaintiff has also relied upon: (1) Arshnoor Singh Vs Harpal Kaur & Ors. 2019 (9) SCALE 147 (Para 2.102.14 & 411).

(2) Shyam Narayan Prasad Vs Krishna Prasad & Ors.

(2018) 7 SCC 646 (Para 12).

(3) Smt. Dipo Vs Wassan Singh and Others. (1983) 3 SCC 376 (Para 2 & 3).

(4) Doddamuniyappa (Dead) Through Lrs. Vs Muniswamy and Ors. (2019) SCC OnLine SC 804 (Para 18, 23 & 24).

(5) Baljinder Singh Vs. Rattan Singh (2008) 16 SCC

785. (Para 27, 32, 37 & 39) (6) Thamma Venkata Subbamma v. Thamma Rattamma (1987) 3 SCC 294 (Para 1214 & 17)

23. Main contentions on behalf of ld. counsel for defendants are: Suit No. 7067/2016 & Page 21 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

(i) That the property is not ancestral and infact, is a self acquired property of Sh. Gurdial Singh and thus, he was competent to gift/transfer the property in accordance with his will.

(ii) The Arjan Nagar property was purchased by late Sh.

Amar Singh out of his personal savings, subsequent to his demise all the legal heirs namely Smt. Ved Kaur, wife of late Sh. Amar Singh, Sh. Gurdial Singh, Sh. Hardayal Singh, Smt. Inderjeet Kaur and Smt. Parminder Kaur had executed a relinquishment deed dated 25.08.1972, relinquishing all their rights, title and interest in favour of Smt. Ved Kaur W/o late Sh. Amar Singh.

(iii) There was no HUF nor was there any coparcenary and the plaintiff has failed to prove the existence of any coparcenary of Late Sh. Amar Singh or even thereafter of Sh. Gurdial Singh or Hardial Singh.

(iv) The plaintiff's reliance on Ex.PW1/3 the Collaboration Agreement is misplaced and the same does not prove existence of any HUF/ coparcenary.

(v) The property was admittedly a self acquired property of Late Sh. Amar Singh and thereafter it became the self acquired property of ClassI legal heirs of Late Sh. Amar Singh and with the execution the Relinquishment Deed - Ex.DW1/1, Smt. Ved Kaur W/o Late Sh. Amar Singh became the exclusive owner of the property.

(vi) Smt. Ved Kaur had all the rights of exclusive owner and as such, she had validly transferred the property in the name of Sh. Gurdial Singh, by issuing necessary instructions to DDA for mutation/ transfer in the name of Sh. Gurdial Singh. The transfer in favour of Sh. Gurdial Singh has remained unchallenged throughout.

(vii) The property was never 'ancestral' at the hands of Suit No. 7067/2016 & Page 22 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh Sh. Gurdial Singh or Sh. Hardial Singh, as it was self acquired property of ClassI legal heirs of Late Sh. Amar Singh in view of the fact that upon the demise of Sh. Amaar Singh, all his ClassI legal heirs have acquired a share each, this goes on to show that the property was neither HUF or coparcenary property.

(viii) The plaintiff has failed to discharge his onus to prove that the property was either HUF or coparcenary property.

(ix) Sh. Gurdial Singh has validly executed the Gift Deed dated 22.05.2008 and there is nothing on record to show that there was any HUF /coparcenary, or that Sh. Gurdial Singh was the 'Karta' thereof, the Gift Deed cannot be interfered with on the grounds of competence of Sh. Hardial Singh.

Learned counsel for the defendants have also relied upon the following judgments:

1. Surender Kumar vs. Dhani Ram, CS (OS) No.1737/ 2012 decided on 18.01.2016; and

2. Govindbhai Chhotabhai Patel & Ors vs. Patel Ramanbhai Mathurbhai, Civil Appeal No.7528 of 2019 decided on 23.09.2019.

24. Time now to deal with the issues. Issue No.1 is taken up first being most central to the lis.

Suit No. 7067/2016 & Page 23 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh ISSUE NO.1 Whether the plaintiff is entitled to seek a decree of partition of the ground floor and half of the second floor of the property No.B7, 105, Safdarjung Extension, New Delhi? OPP

25. The questions which are foregrounded most prominently by the narratives of the parties in conflict, is whether the property No.105, B7 Extension, Safdarjung Enclave, New Delhi 110 016 is an ancestral property as well as HUF/coparcenary property. For a better understanding, a reference to the documents proved on record, appears to be indispensable.

26. Ex.PW1/1 is the Exchange Deed dated 06.01.1989 executed by DDA in favour of Sh. Gurdial Singh S/o Late Sh. Amar Singh. The Schedule A and Schedule B there to, shows that the suit property bearing No. 105, B7 Extension, Safdarjung Enclave, New Delhi110 016 stood transferred to Sh. Gurdial Singh in exchange / in lieu of the property No.234A, Village Humayunpur, New Delhi, belonging to Late Sh. Amar Singh. This position, is even otherwise, is not in dispute between the parties.

27. Ex.DW1/1 is the Relinquishment Deed dated 25.08.1972, executed by all the ClassI legal heirs of late Sh. Amar Singh, in favour of one of the legal heirs Smt. Ved Kaur W/o Late Sardar Amar Singh, thereby relinquishing all their shares and interest, Suit No. 7067/2016 & Page 24 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh inherited by them pursuant to the demise of S. Amar Singh.

28. Ex.DW1/2 is General Power of Attorney executed by Smt. Ved Kaur on 27.04.1976 authorising her son Sh. Gurdial Singh to act for and on behalf of herself, in respect of pursuing the matter relating to the claim against the property at Arjan Nagar.

29. Ex.DW1/3 is the letter dated 18.09.198 issued by DDA to Smt. Ved Kaur, communicating the allotment of a plot in lieu of her land at Arjan Nagar.

30. Ex.DW1/4 is the letter dated 24.08.1978 whereby she has requested DDA for allotment in name of Sh. Gurdial Singh.

31. Ex.DW1/7 is the letter dated 21.11.1978 vide which Sh.

Gurdial Singh has submitted the No Objection Affidavit of his siblings to DDA.

32. Ex.DW1/11A is the original Exchange Deed dated 06.07.1989, which the plaintiff has also proved as Ex.PW1/1.

33. Ex.DW1/18 is the registered Gift Deed dated 21.03.2008 executed by Sh. Gurdial Singh in favour of defendant No.1, insofar as the ground floor and 50% share in the roof rights, from the roof over the first floor onwards.

Suit No. 7067/2016 & Page 25 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

34. The parties are not in dispute insofar as the nature/ character of the property, at the time of acquisition by S. Amar Singh is concerned. Sh. Amar Singh had acquired the property out of his own funds and the property was his self acquired property. It is also not the case of either of the sides that he had executed a Will. It is the admitted case of the parties that upon his demise all ClassI legal heirs namely Smt. Ved Kaur (wife), Sh. Hardial Singh (son), Sh. Gurdial Singh (son), Smt. Palvinder Kaur (daughter) and Smt. Inderjeet Kaur (daughter) inherited the property in equal shares.

35. Although in the original plaint, there is no specific assertion as to HUF/ coparcenary, it is in the subsequent amendments allowed that the plaintiff claimed that the prior to the demise of S. Amar Singh, an HUF existed. The said assertion, needless to say had been denied by the defendants.

36. The execution of the Relinquishment Deed by all the legal heirs of Sh. Amar Singh, infavour of Smt. Ved Kaur, on 25.08.1972 is also not in dispute and even otherwise, stands proved by defendants side.

37. It is also not in dispute that the said property was demolished during the period of emergency and that a temporary accommodation was allotted to the family and Suit No. 7067/2016 & Page 26 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh further that in lieu of the property at Arjan Nagar, the suit property was allotted to Smt. Ved Kaur which allotment was ultimately effected in the name of Sh. Gurdial Singh S/o Sh. Amar Singhr, pursuant to the request made by Smt. Ved Kaur and the documentation in pursuance thereof.

38. While it is the assertion of the plaintiff that notwithstanding the execution of the Exchange Deed in the name of Sh. Gurdial Singh, the character/ status of the family, and the property respectively, continued to be as HUF and coparcenary, the defendants' vehement contention is that not only the property has assumed the character of personal property at the hands of Smt. Ved Kaur, upon execution of Relinquishment Deed, but also it had become the personal/ self acquired property of Sh. Gurdial Singh on the execution of Exchange Deed - Ex.PW1/1 & Ex.DW1/11A.

39. Plaintiff has claimed that not only the property continued to retain its character of ancestral property but also it being the case of Joint Hindu Family and being a coparcenary with Sh. Gurdial Singh as Karta thereof, the property is partible amongst the male lineal descendants as well as their sons/ daughters as they have also acquired an interest in the property by birth. The said claim also being vehemently opposed by the defendants on the ground that neither any HUF nor any coparcenary has been proved.

Suit No. 7067/2016 & Page 27 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

40. Insofar as the concept of "coparcenary" is concerned, it has been identified to be a smaller unit from within a Hindu Joint Family comprised of lineal descendants of a common ancestor including a male head and its descendants and unmarried daughters. A coparcenary is characterized by existence of 'propositus' and his three lineal descendants. It's essential feature is coownership marked by unity of possession, title & interest.

41. An ancestral property, as is identified by law, is the property which is inherited by a male Hindu from his father, grandfather or great grandfather, and is the one in which the acquisition of interest is not based on the demise of any of the ascendants, but is incidental upon the birth of the male issue.

42. In Shyam Narayan Prasad Vs Krishna Prasad & Ors.

(2018) 7 SCC 646, the Hon'ble Supreme Court observed as under:

"12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and Suit No. 7067/2016 & Page 28 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.Shyam Narayan Prasad v. Krishna Prasad, Civil Appeal No. 5415 of 2011 decided by Hon'ble Supreme Court of India.

13. In C. Krishna Prasad v. C.I.T, Bangalore, 1975 (1) SCC 160, this Court was considering a similar question. In the said case, C. Krishna Prasad, the appellant along with his father Krishnaswami Naidu and brother C. Krishna Kumar formed Hindu undivided family up to October 30, 1958, when there was a partition between Krishnaswami Naidu and his two sons. A question arose as to whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of undivided family even though no other person besides him is a member of the family. It was held that the share which a coparcener obtains on partition is ancestral property as regards male issue. It was held as under:

"The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mulla's Principles of Hindu Law, 14th Ed.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten".

Suit No. 7067/2016 & Page 29 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

43. In Doddamuniyappa (Dead) v. Muniswamy and Ors.

(2019) SCC OnLine SC 804, the Hon'ble Supreme Court observed as under:

"23. It is well settled and held by this Court in Smt. Dipo Vs. Wassan Singh and Others (supra) that the property inherited from the father by his sons becomes joint family property in the hands of the sons. The relevant portion is as under:

2. "...........Property inherited from paternal ancestors is, of course, "ancestral property" as regards the male issue of the propositus, but it is his absolute property and not ancestral property as regards other relations. In Mulla's Principles of Hindu Law (15th Edn.), it is stated at p. 289:

". . . if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he pleases. . . .

*** A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, sons' sons and sons' sons' sons, but as regards other relations he holds it, and is entitled to hold it, as his absolute property." Again at p. 291, it is stated:

"The share which a coparcener obtains on partition of ancestral property is ancestral Suit No. 7067/2016 & Page 30 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession."

44. In Commissioner of Wealth Tax, Kanpur & Ors. vs. Chander Sen & Ors. (1986) 3 Supreme Court Cases 567, the Hon'ble Supreme Court addressed the issue of coparcenary rights which a male descendant acquires upon birth and the effect of Section 8 of the Hindu Succession Act thereon. The court observed as under:

"Under the Hindu law, the moment a son is born, he gets a share in the father's property and becomes part of the comparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. But this position has since been affected by Section 8 of the Hindu Succession Act. Since the Preamble to the Act reiterates that the Act is to 'amend' and codify the law and Section 4 thereof makes it clear that one should look to the Act in case of doubt and not to the preexisting Hindu law. The Suit No. 7067/2016 & Page 31 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh express words of of the Act would prevail over the aforesaid general law. When, therefore, son inherits the property in the situation contemplated by Section 8 he does not take it as karta of his own undivided family but takes it in his individual capacity."

45. Similar observations were made by the Hon'bel Supreme Court in Yudhishter v. Ashok Kumar, (1987) 1 SCC 204, the Hon' ble Supreme Court observed as under:

"This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Others v. Chander Sen and Others, 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 section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta 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 924926 as well as Mayne's on Hindu Law, 12th Edition pages 91819. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 91819. This Court observed in the aforesaid decision that the views Suit No. 7067/2016 & Page 32 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh 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 visavis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property."

46. In Jai Narayan Mathur & Ors. v. Jai Prakash Mathur, through LRs, RFA 5/71/2011, decided by the Hon'ble Delhi High Court on 09.02.2016. The Hon'ble High Court of Delhi wile dealing with the appeal a preliminary decree of partition also dealt with similar question. In the said case, the property of the grand far Sh. Shish Ram was sought to be partition the ground that the respondent/Plaintiff had a share in the said property. Sh. Shish Ram was the owner of the aforesaid land who had died some time in the mid 80's. His sons jointly possessed the suit property till the year 1992 when the partition had taken place. The appellant/defendant no. 1 had received a share in the partition in the year 1992 and the respondent/plaintiff claiming the property to be ancestral as well as family property, claimed rights in the said property. The Hon'ble Delhi High Court while relying upon it's earlier decisions in sunny (Minor's) case as well as Harvinder Singh Chadha v. Saran Kuar Chadha observed that such claim is not Suit No. 7067/2016 & Page 33 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh founded in law. The court observed: "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. D Harvinder Singh Chadha v. Saran Kuar Chadha etailed 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 to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties."

47. In Harvinder Singh Chadha v. Saran Kuar Chadha, Suit No. 7067/2016 & Page 34 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh FAO (OS) Nos. 416 & 252 of 2013 CMs. Nos. 1440506 of 2013 & 14408 of 2013 & CS(OS) Nos. 1333 & 1150 of 2002, IAs Nos. 2052 of 2004 & 16382 of 2013, 6053 of 2002, 1102 of 2003, decided on 01.07.2014 by Hon'ble Delhi High Court, while dealing with a suit for injunction and declaration, challenging the sale deed and claiming declaration as to ownership of a part of the property on the ground of the suit property being ancestral, the Hon'ble Delhi High Court dismissed the suit while observing: "We had invited the attention of the counsel for the appellant/plaintiff to a judgment dated 30th January, 2013 of one of us (Justice Rajiv Sahai Endlaw) in CS(OS) No. 823/2010 titled Neelam v. Sada Ram, where on a conspectus of a case law in this regard including Chander Sen and Yudhishter supra it was held that after the coming into force of the Hindu Succession Act, 1956 the property inherited by a male from his father is held as self acquired property in which children of such male do not acquire any right by birth. Thus, even if it were to be held that the Model Town property, though purchased in the name of the father of the appellant/plaintiff was not his self acquired property but held benami by him for his own father (and which plea of benami is also prohibited by the Benami Transactions (Prohibition) Act, 1988), even then the grandfather of the appellant/plaintiff having died in the year 1969 i.e. after coming into force of the Hindu Succession Act, the said property would be held by the father of the appellant/plaintiff as his personal individual property and the appellant/plaintiff would not have any right or share therein. It would matter not that the said property was, besides in the name of the father of the appellant/plaintiff was also in the name of elder brother of the father of the appellant/plaintiff and the father of the appellant/plaintiff and his brother Suit No. 7067/2016 & Page 35 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh partitioned the same between them. Similarly, it would matter not that the father of the appellant/plaintiff and his brother paid off the share of their other siblings in the said property. These facts would not change the character of the inheritance in the hands of the father of the appellant/plaintiff from that of personal individual property to ancestral property."

48. In Sunny (Minor) and Anr. v. Raj Singh and Anr. Civil Suit no. 41/2006, decided on 17.11.2015 by the Hon'ble High Court of Delhi. The court was dealing with a suit for partition on the claim that the immovable properties are joint Hindu family properties being ancesstral in nature. The Honb'ble High Court of Delhi, while relying upon Yudhishter v. Ashok Kumar, (1987) 1 SCC 204, observed as under: "6. At the outset, it is necessary to refer to the ratio of the judgment of the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and in para 10 of the said judgment the Supreme Court has made the necessary observations with respect to when HUF properties can be said to exist before passing of the Hindu Succession Act, 1956 or after passing of the Act in 1956. This para reads as under:

10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur & Ors. v. Chander Sen and Ors. MANU/SC/0265/1986 :

[1986] 161ITR370 (SC) where one of us (Sabyasachi Mukharji,J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from Suit No. 7067/2016 & Page 36 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924926 as well as Mayne's on Hindu Law 12th Edition pages 918919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918919.

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 visavis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."

Suit No. 7067/2016 & Page 37 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh 7(i). As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessorsininterest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a self acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to 'A'. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self acquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining selfacquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successorsininterest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self acquired property but an HUF property is if after 1956 a person who owns a selfacquired property throws the self Suit No. 7067/2016 & Page 38 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.

(ii) This position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant no.1 being 'ancestral' properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created ie whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter.

8(i). A reference to the plaint shows that firstly it is stated that Sh. Tek Chand who is the father of the defendant no.1 (and grandfather of Sh. Harvinder Sejwal and defendants no.2 to 4) inherited various ancestral properties which became the basis of the Joint Hindu Family properties of the parties as stated in para 15 of the plaint. In law there is a difference between the ancestral property/properties and the Hindu Undivided Family property/properties for the pre 1956 and post 1956 position as stated above because inheritance of ancestral properties prior to 1956 made such properties HUF properties in the hands of the person who inherits them, but if ancestral properties are inherited by a person after 1956, such inheritance in the latter case is Suit No. 7067/2016 & Page 39 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh as selfacquired properties unless of course it is shown in the latter case that HUF existed prior to 1956 and continued thereafter."

49. The issue also cropped up again for consideration before the Hon'ble Supreme court in Arshnoor Singh Vs Harpal Kaur & Ors. 2019 (9) SCALE 147. The Hon'ble Supreme Court revisited the impact of Section 8 of the Hindu Succession Act 1956, over HUF/ coparcenary. The Hon'ble Supreme Court observed as under:

"7.3. Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property.

..........

7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post - 1956, if a person inherits a self acquired property from his paternal ancestors, the said property becomes his self acquired property, and does not remain coparcenary property.

7.6. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands visàvis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the Suit No. 7067/2016 & Page 40 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh commencement of the Hindu Succession Act, 1956."

50. The broader take away from the aforesaid judicial pronouncement are:

(i) There is no deemed extension of coparcenary in case the succession is opened after the Hindu Succession has come in force, in view of Section 8 of the said Act;

(ii) In case of opening of the succession to the property after the date of the Hindu Succession Act, 1956 having come in force, the property would become the self acquired property of the members of family, regardless its earlier character as a coparcenary property;

(iii) The ancestral property need not be a coparcenary property, and for a property, to be proved to be a coparcenary property person claiming right on the basis of such coparcenary has to categorically plead the dates of coparcenary / HUF coming into existence;

(iv) An ancestral property may not be a coparcenary property, and it has to be proved that the property was thrown to the common hotch potch of the Joint Hindu Family

51. It transpires that the original plaint did not contain sufficient or secific particulars as to the existence of any HUF/ coparcenary. However, by means of the amendments in plaint, Suit No. 7067/2016 & Page 41 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh the plaintiff has incorporated certain averments to bring it's claim in conformity with requirement of law.

52. In so far as the existence of HUF or coparcenary is concerned, it transpires that the original plaint does not bear any mention as to when HUF / coparcenary had come into existence. This deficiency appears to have been addressed by the plaint iff in the subsequent amendments in the plaint. In the amended plaint dated 11.11.2014, the plaintiff has claimed as under:

"2. That late Amar Singh out of his personal savings purchased the House No.234A, Arjan Nagar, Green Park, New Delhi110016 (hereinafter referred to as "the said property") vide registered sale deed registered as document no.1957, Addl. Book No.1, Volume No.379 at pages 350352 on 18.04.1959. That just before death of late Sh. Amar Singh on 26.08.1972, the plaintiff alongwith, his father Sh. Gurdial Singh, his brother Sh. Harvinder Pal (defendant no.1 herein) & his uncle Hardial Singh (defendant no.2 herein) constituted coparcenary. After demise of late Sh. Amar Singh the said property was inherited by his classI legal heirs i.e. by his widow Smt. Ved Kaur, sons Sh. Gurdial Singh and Sh. Hardial Singh and daughters Smt. Inderjeet Kaur and Smt. Palvinder Kaur equally as it was his self acquired property. However all the sons & daughters relinquished their shares in the said property in favour of their mother i.e. Smt. Ved Kaur vide registered Relinquishment Deed dated 25.08.1972 registered as document no.5733, Book No.1, volume no.2968 at pages 128129 on 26.08.1972. Thus Smt. Ved Kaur became the sole and absolute owner of the said property.

Suit No. 7067/2016 & Page 42 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

3. That even after the death of Late Sh. Amar Singh in 1972, the family did not loose its character of a Hindu Undivided Family and remained as such and coparcenary consisted of Sh. Gurdial Singh, Sh. Hardial Singh, Sh. Harvinder Pal and the plaintiff. Sh. Gurdial Singh being the eldest male member of the HUF was the Karta of the family."

53. The above averments are incorporated in the amended plaint filed in terms of the order dated 21.07.2014.

54. While it is the vehement contention of the Learned counsel for the defendants that there is no evidence of property being HUF or coparcenary, the plaintiff side heavily relies upon, and seeks legitimacy of its claim, through Ex.PW1/3 Collaboration Agreement. The said document, according, to the plaintiff side, is a clear admission of the property being ancestral as well as retaining the character of HUF/ coparcenary property and it is also asserted that on the execution of the said document in year 1991, two HUFs have come into existence.

55. Before proceeding further, a reference to the relevant recitals thereof, seems to be desirable:

"THIS agreement is made and executed on this day, the 21st of January, 1991 between Shri Gurdial Singh S/o Late Shri Amar Singh, resident of B7 Extension/105, Safdarjung Enclave, New Delhi110029, hereinafter called the FIRST PARTY, AND Shri Hardial Singh S/o late Shri Amar Singh, Suit No. 7067/2016 & Page 43 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh younger brother of the FIRST PARTY, resident of B7 Extension/105, Safdarjung Enclave, New Delhi110029, hereinafter called the SECOND PARTY WHEREAS the FIRST PARTY was made the owner of piece of land measuring 175 sq. mtrs, bearing Plot No. B7 Extension/105, Safdarjung Enclave, New Delhi 110029, and is bound as under:

                           East                  :   B7 Extension/106
                           West                  :   B7 Extension/104
                           North                 :   Road
                           South                 :   Service lane,

having been allotted from DDA on EXCHANGE DEED basis in lieu of our House No.234A, Arjan Nagar, New Delhi which was demolished by DDA in October, 1975. Later on, DDA allotted a Flat No.30, BL1, Kalkaji Extension to SECOND PARTY (Sh. Hardial Singh) and younger brother of the FIRST PARTY, certainly in exchange of our demolished house, which was in the name of our father, Shri Amar Singh, who expired in 1972. As a matter of fact, FIRST PARTY and SECOND PARTY are equal partners in the plot and flat mentioned above, having been allotted by DDA in exchange of our demolished house of our father.

AND whereas FIRST PARTY AND SECOND PARTY have jointly constructed the ground floor and are residing together. With this COLLABRATIVE AGREEMENT, the FIRST PARTY gives the possession for further construction on the roof of the constructed (ground floor) of the house as per plan agreed to between the FIRST and SECOND PARTY and also approved by DDA and MCD."

...............

"AND WHEREAS, the first party is agreeable to confer ownership right to the SEOND PARTY on the 1 st floor of the said plot No. B7 Extension/105, Safdarjung Suit No. 7067/2016 & Page 44 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh Enclave, New Delhi110029 and BOTH the parties are also ready to undertake the construction on the said roof of the house."

..................

"This agreement was made out of natural love, affection and mutual understanding between the said two parties, namely Shri Gurdial Singh and Shri Hardial Singh, who are real brothers and related by blood and the property under reference belongs to their Late father Shri Amar Singh, who expired in 1972.

27. All the expenses until completion of FIRST AND SECOND FLOORS and MODIFICATION (S) of constructed ground floor which is to be modified jointly be both the parties equivalent to the type of construction of first floor and all the expenses will be born by both the parties equally.

28. That the SECOND PARTY declares that they have to their ownership a DDA Flat (L1/30B, Kalkaji DDA Flats, New Delhi19) for which all the expenses and cost of that flat was born by BOTH the parties equally. The parties hereby agree that NOTWITHSTANDING anything to the contrary written above the sale proceeds of the flat arrived at by the second party shall be treated to be joint asset and utilized jointly by both the parties for the purpose of construction of FIRST and SECOND FLOORS and MODIFICATIONS of ground floor, equivalent to the construction of FIRST FLOOR and the excess thereof shall be shared equally by both the PARTIES.

29. That as already, it has been mentioned in the agreement and it becomes important to be pointed out again that the land has been allotted by DDA on EXCHANGE DEED basis (i.e. land was exchanged with the a flat L1, 30/A, Kalkaji DDA Flats, New Delhi, which was allotted by DDA after demolishing the house at Arjun Nagar. Any dues, rent bills or any kind of payment which is due or may come up in future will be Suit No. 7067/2016 & Page 45 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh born by both the parties jointly in equal proportions."

56. Attention of the court is also invited towards the document MarkA, pertaining to allotment of flat at Kalkaji, which is also shown to be allotted to defendant No.2, in lieu of the eviction of defendant No.2 from the Arjan Nagar property. The said allotment, in fact, is on hire purchase basis, with an option to the allottee to purchase it on deposit of the sum mentioned therein.

57. Coming back to the Collaboration Agreement dated 21.01.1991. The recitals therein indicate jointness/ unity of interests insofar as the property No.105, B7, Safdarjung Enclave, and the flat No.30B/L1, Kalkaji are concerned. In terms of the said agreement, Sh. Gurdial Singh seems to have indicated the ownership / joint interest of Sh. Hardial Singh in Safdarjung property, and Sh. Hardial Singh has also admitted the proprietary interest of Sh. Gurdial singh insofar as the flat at Kalkaji is concerned. Besides, they found to have acknowledged the fact that the property No.105, B7, Safdarjung Enclave, was constructed jointly by them. Sh. Gurdial Singh and Sh. Hadial Singh are also found to acknowledge the fact of the properties at Safdarjung, and flat at Kalkaji were allotted in lieu of property of Sh. Amar Singh at Arjan Nagar. There is a clear reference as to the property being "ancestral", it having been acquired by Sh. Amar Singh out of his funds.

Suit No. 7067/2016 & Page 46 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

58. The plaintiff's case banks upon the jointness of the interest, and the property having been referred to as "ancestral" in the Collaboration Agreement dated 21.01.1991 Ex.PW1/3. The question which arises in succession is that whether the said document would be sufficient to infer the existence of HUF/ coparcenary, even if the property is referred to as "ancestral", and in view of the fact that properties at Safdarjung and Kalkaji, are acknowledged to be jointly owned.

59. The Arjan Nagar property was acquired by Sh. Amar Singh in the year 1959. Though, it is not disputed by either of the sides that upon his demise, his legal heirs had become the owners in equal shares, there cannot be any presumption of any HUF/ coparcenary, as the same ceases to be deemed fiction, pursuant to the Hindu Succession Act having come into operation. The effect of Section 8, upon a succession opening after 1956, has already been emphasised upon by Hon'ble Supreme Court and Hon'ble High Court in various judicial pronouncements. Even if the property is admitted to be "ancestral", the said character of the property, in itself, would not render the property as HUF/ coparcenary property.

60. There may be a thick overlap between "ancestral property" and "HUF"/ "coparcenary property" but the said characters of the property are distinguishable in nature and essence, regardless there generalisation or being commonly Suit No. 7067/2016 & Page 47 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh used interchangeably, and employed indiscriminately in partition suit.

61. Normally, there would be a presumption of joint family having regard to their living together, and observing jointness and unity of interest in certain factors, but there is no presumption of a joint family possessing the joint property, or coparcenary, especially after Section 8 of Hindu Succession Act came in operation.

62. Sofar coparcenary is concerned, it is a narrow body of persons within a joint family. Coparcenary consists of father, son, son's son, son's son's son. In terms of amended provisions of Hindu Succession Act, the daughter of coparcener is also a coparcener in her own right and in the manner as a son. A coparcener has fluctuating interest by birth, in the joint family property until partition taken place, as far as Mitakshara Law is concerned, the joint Hindu property may flow many sources like ancestral property, property jointly acquired by coparceners, the property acquired by exchange in lieu of joint family property, the coparceners puts or mixes his self acquired property into joint family property to be treated as joint family property, accretions, recovery of lost property of joint Hindu family, and so on.

63. The Hon'ble Delhi High Court in Jai Narayan Mathur vs. Suit No. 7067/2016 & Page 48 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh Jay Prakash Mathur, while dealing with a claim for partition of a portion received by the plaintiff's father therein, and relying upon its previous discussion, reiterated that after passing of Hindu Succession Act 1956, there is no presumption that inheritance of ancestral property creates as HUF and therefore, a mere mention in the plaint that HUF and its property exists, is not sufficient compliance of legal requirement of creation or existence of HUF. The Hon'ble High court asserted the need of specific facts as to the existence of HUF for a person claiming to be a coparcener for partition in HUF property.

64. While referring to various judicial pronouncements including the observations made by Hon'ble Supreme Court in Yudishtra vs. Ashok Kumar, the Hon'ble High Court categorically observed that there are only two exceptions to the position of law that the property inherited after passing of Hindu Succession Act, 1956, would remain self acquired. One, that it was HUF property existing since prior to 1956 and the continuation of HUF after 1956, in which case, the property inherited by a member of HUF would be HUF property in his hands. The second exception is that the person who owns a self acquired property, throws the self acquired property in a common hotch potch whereby such property or properties become joint Hindu Family Properties/ HUF properties. The court further observed as under:"

"In order to claim the properties in the second exception position as being HUF/ Joint Hindu Family property/ Suit No. 7067/2016 & Page 49 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh properties, the plaintiff has to establish to the satisfaction of the court that when ( i.e. date and year) was a particular property or properties thrown in common hotch potch and hence HUF/ Joint Hindu Family created."

65. On the contrary, the court finds that although the amendments were incorporated by the plaintiff in order to bring the pleadings in conformity with the requirements of law, the plaintiff has failed to lead any evidence as to the creation/ existence of HUF/ coparcenary. The assertion as to the existence of the coparcenary prior to the demise of Sh. Amar Singh, and coming into existence of two HUFs, respectively, of Sh. Gurdial Singh and Sh. Hardial Singh has not been substantiated and thus have neither graduated from above the level of mere assertion/ pleadings, but also have remained far below the threshold of proof as to existence of the coparcenary. The cross examination of PW1 shows that the plaintiff had expressed his ignorance as to when did the coparcenary came into existence.

66. At this juncture, a reference to the observations made by Hon'ble High Court in Surender Kumar vs. Dhani Ram, CS (OS) No.1737/ 2012 decided on 18.01.2016, appears to be appropriate:

"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 Suit No. 7067/2016 & Page 50 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh & Ors.,CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors ininterest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e a property belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of selfacquired 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 Suit No. 7067/2016 & Page 51 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh 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."

67. Coming now to main plank of the plaintiff's case that Ex.PW1/3 Collaboration Agreement.

68. It has been impressed upon the court that the said document is a clear admission property being 'ancestral' as well as a 'coparcenary'. In order to buttress the contention, Learned counsel for the plaintiff has taken the court for various recitals thereof. Undoubtedly, the document records that property is ancestral, which fact is even otherwise made out, if the traditional definition of ancestral property is looked at. However, having regard to the observations made by the superior courts in various judicial pronouncements, the said character of property by itself would neither proselytize the suit property into a coparcenary property, nor would the same indicate the creation or existence of any HUF. The plaintiff side Suit No. 7067/2016 & Page 52 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh has further pressed upon that the said documents also records "joint ownership" of Sh. Gurdial Singh and Sh. Hardial Singh as well as construction by using joint funds. The said recitals, despite being suggestive of "jointness" fails to satisfy the test as to it being a "coparcenary" property. The sharing of costs of acquisition of properties, may not factor in significantly having regard to the observations made by the Hon'ble High Court in Harvinder Singh Chadda's case. The Hon'ble High Court has observed as under:

"It would matter not that the said property was, besides in the name of the father of the appellant/ plaintiff was also in the name of elder brother of the father of the appellant/ plaintiff and the father of the appellant/ plaintiff and his brother partitioned the same between them. Similarly, it would matter not that the father of the appellant/ plaintiff and his brother paid off the share of their other siblings in the said property. These facts would not change the character of the inheritance in the hands of the father of the appellant/ plaintiff from that of personal individual property to ancestral property."

69. The recitals to this effect, thus, would not be a conclusive proof of existence of coparcenary, in the absence of any other evidence as to when did HUF came into existence and that the property was thrown into common hotch potch.

70. Having regard to the fact that the succession in this case opened after the Hindu Succession Act's coming into operation, the plaintiff was under a higher quotient of "burden of proof" as to when and how the HUF came into existence and as to when Suit No. 7067/2016 & Page 53 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh and how the property was thrown into common hotch potch, and by whom.

71. Summing up, it can be stated:

(i) No conclusive proof of HUF/coparcenary of Sh. Amar Singh or thereafter, HUF or coparcenary of Sh. Gurdial Singh, with Sh. Gurdial Singh as Karta has come on record.

(ii) Upon the demise of Sh. Amar Singh, the property devolved upon ClassI legal heirs as their "self acquired property" and any coparcenary even if assumed to be existing prior thereto, came to an end.

(iii) With the execution of Relinquishment Deed in favour of Smt. Ved Kaur, the property continued to retain the character of self acquired property of Smt. Ved Kaur.

(iv) The fact that property is "ancestral", by itself, is far lass decisive insofar as the existence of HUF or a coparcenary.

Even if the suit property is considered to be Ancestral, the same cannot be contextualized in terms of coparcenary. Every 'Ancestral' property cannot be deemed to be a coparcenary property.

(v) Plaintiff has not been able to prove that Sh. Amar Suit No. 7067/2016 & Page 54 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh singh's property was an HUF property or that after his demise, the property continued to retain such character, or even that Sh. Gurdial Singh had become "Karta" at any point of time.

(vi) The Collaboration Agreement does indicate some commonality of interests, but the inferences it generate are not too strong or conclusive enough to prove the existence of HUF or coparcenary, there being no evidence as to how, when and by whom the HUF was created.

(vii) Mere assertion in plaint as to existence of HUF or coparcenary cannot be made a ground to infer the existence of HUF/ coparcenary, and the plaintiff ought have proved the same specifically, in view of the settled proposition of law. Once the property assumed the character of 'self acquired property' of ClassI legal heirs, and thereafter at the hands of Smt. Ved Kaur, and later at the hands of Sh. Gurdial Singh, the plaintiff burden to prove the character of suit property as a coparcenary property, had become even heavier. The burden has not been discharged.

With these findings stacked against the plaintiff, it can be said that Issue No.1 has not been proved by the plaintiff, and as such decided against him.

Suit No. 7067/2016 & Page 55 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh ISSUE NO. 2 Whether the suit is maintainable in the present for since the declaration of ownership qua the suit property has been prayed for without seeking its possession? OPD

72. The onus to prove this issue was upon the defendants. No evidence led, nor even pressed by defendants. Accordingly, this issue is decided against the defendants.

ISSUE NO.3 & 4

3. Whether the property in question has been validly gifted to defendant No.1 by the father of the plaintiff and defendant No.1, and hence plaintiff has no right to seek partition of the suit property? OPD 4A. Whether the gift deed dated 22.05.2008 could not have been executed by the Late Sh. Gurdial Singh since the property in question is coparcenery property? Onus on the plaintiff

73. Both these issues are taken up together since they are interconnected.

74. The challenge to the Gift Deed dated 22.05.2008 is Suit No. 7067/2016 & Page 56 of 58 Suit No.8042/2016 Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh steeped in the notion that Sh. Gurdial Singh was 'Karta' and could not have gifted the property as 'Karta' cannot dispose off the property without any legal necessity. However, having regard to the fact that the plaintiff has failed to prove the very existence of HUF/ coparcenary, the plaintiff can scarcely afford to claim that Sh. Gurdial Singh was 'Karta' of the Hindu Joint Family.

75. In the absence of any conclusive evidence in this respect, and considering the findings under issue No.1, as recorded above, the challenge to the Gift Deed incurs as much disqualification. There is no reason, thus, to invalidate the transaction of Gift Deed or declare it as void.

76. Issue No.3 is decided in favour of defendants, and Issue No.4, which was placed on the plaintiff, is decided against the plaintiff.

RELIEF

77. As a sequel to the above, both the suits of the plaintiffs are dismissed. No orders as to cost. Decree sheet be prepared.

78. File be consigned to the record room after due compliance.

Suit No. 7067/2016 & Page 57 of 58 Suit No.8042/2016

Kulvinder Singh vs. Harvinder Pal Singh & Anr.

& Kulvinder Singh & Ors vs. Harvinder Pal Singh

79. Ahlmad is directed to send the copy of this judgment to the Learned counsel for the parties through email, if available on record.

(NIKHIL CHOPRA) (currently posted as) SPECIAL JUDGE, CBI 13, (PC ACT) ROUSE AVENUE DISTRICT COURT, NEW DELHI/11.07.2022 (TO BE ANNOUNCED BY THE COURT OF SH. DINESH KUMAR, LEARNED ADDL. DISTRICT JUDGE02, SOUTH, SAKET COURTS, NEW DELHI ON 11.07.2022) Suit No. 7067/2016 & Page 58 of 58 Suit No.8042/2016

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Kulvinder Singh vs . Harvinder Pal Singh & Anr. on 11 July, 2022