Delhi District Court
Master Swapnil Jain vs Sanjay Jain And Ors on 19 August, 2023
IN THE COURT OF MS. COLETTE RASHMI KUJUR
ADDITIONAL DISTRICT JUDGE-10: CENTRAL
DISTRICT TIS HAZARI COURTS: DELHI.
CNR NO.:- DLCT01-000467-2017
CS DJ NO.:- 129/2017
CS NO.:-291/21
IN THE MATTER OF :-
Sh. Swapnil Jain/Sh. Ritkrit Jain
S/o Sh. Sanjay Jain
R/o C-215, Vivek Vihar,
Delhi-110095.
......... Plaintiff
VERSUS
1.Sh. Sanjay Jain S/o Late Sh. Ajit Kumar Jain R/o Kings Down Hotel, 59/61, Harold Road, Clifton Ville, CT9-2HS, London, U.K.
2. Sh. Pankaj Jain S/o Late Sh. Ajit Kumar Jain R/o 2749, Hamilton Road, Mori Gate, Delhi-110006.
2nd Address:
ND-53, Pitampura, Delhi.
3. Mrs. Rekha Jain W/o Sh. Rajendra Kumar Jain R/o PU-43, Pitampura, Delhi.
4. Mrs. Mamta Jain W/o Sh. Neeraj Jain R/o BL-106, L Block, Hari Nagar, Jail Road, New Delhi.
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5. Mrs. Sarita Jain W/o Sh. Rajesh Jain R/o 42/14, Ramjas Road, Karol Bagh, New Delhi.
......... Defendants Suit for Declaration, Partition, Rendition of Accounts and Permanent Injunction Date of Institution of the Suit : 23.05.2006 Date on which Judgment was reserved : 17.08.2023 Date of Judgment : 19.08.2023 ::- J U D G M E N T -::
1. The plaintiff has filed the present suit for declaration, partition, rendition of accounts and permanent injunction against the defendants. The name of the plaintiff was changed in March, 2007 from Master Swapnil Jain to Mr. Ritkrit Jain as reflected from the order dated 23.11.2010 passed by the then Hon'ble Joint Registrar.
2. As per the plaint, the plaintiff was a minor, who was born on 03.12.1991 and the present suit has been instituted by the plaintiff through his mother/guardian as next friend. That the mother/next friend has no interest adverse to that of the minor plaintiff. The minor plaintiff was born from the wedlock comprising his mother and defendant no.1 who got married on CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.2 / 47 08.12.1990 according to sacramental Hindu rites and ceremonies.
That the father of the plaintiff i.e. defendant no.1 being coparcener/member of the joint Hindu family whose karta was Shri Ajit Kumar Jain. Sh. Ajit Kumar Jain, hereinafter called the karta of the joint Hindu family known by Shri Ajit Kumar Jain (HUF) was owning various immoveable and moveable properties and running number of the businesses under various trade names and style. That Sh. Ajit Kumar Jain expired on 11.10.2000. During his life time, Late Sh. Ajit Kumar Jain also amassed separate properties which were created out of funds from the joint Hindu family properties and business while creating and maintaining immoveable properties of the HUF. As per information, the deceased had been filing a common income tax return for income from properties/business of the HUF and his separate income from such properties/business. That by birth plaintiff who is the grandson of Late Shri Ajit Kumar Jain has become coparcener and entitled to the benefits of the said HUF. Thus, Ajit Kumar Jain (HUF) comprised of Late Sh. Ajit Kumar Jain, plaintiff, defendant no. 1 and defendant no. 2 who is the other son of Late Sh. Ajit Kumar Jain. That Late Sh. Ajit Kumar Jain was also survived by defendants no.3, 4 and 5, who are his married daughters.
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3. Smt. Nirmala Jain, paternal grand mother of the plaintiff, had vast immoveable and moveable properties, which were gifted to her as stridhan and otherwise acquired benami in her name from the joint HUF funds, mentioned above who expired on 10.08.1997. The various immoveable and moveable properties held under the HUF and separate immovable properties of the two deceased as referred in paras above are detailed in schedule - 1. Late Sh. Ajit Kumar Jain had been doing business in the name and style of the following concerns, who are described hereunder:
(a) M/s National Tractors, 2749, Hamilton Road, Mori Gate, Delhi - 110 006.
(b) M/s Jayna Engineers, 2926 -28, Hamilton Road, Mori Gate, Delhi - 110 006.
(c) M/s Nirmala Exports, 2749, Mori Gate, Delhi - 110 006.
There have been cross investments of funds by late Sh. Ajit Kumar Jain. That Late Sh. Ajit Kumar Jain was running business in the name of the HUF as well as the separate business and he had been filing a common income tax return wherein his separate and HUF income had been shown together. It is the case of the plaintiff that after the demise of Late Sh. Ajit Kumar Jain, CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.4 / 47 it has come to the knowledge of the plaintiff that the said concerns/firms have been illegally taken over by defendant no. 2 to the ouster and detriment of the plaintiff. That the plaintiff is entitled to seek partition of HUF as member/coparcener of the joint Hindu family. That the other surviving coparceners are defendant no.1 and defendant no. 2, whereas, the defendant no. 3, 4 and 5 are the necessary parties as per law being daughters of Sh. Ajit Kumar Jain. It is prayed that in terms of notional partition to be reckoned from the date of demise of Late Sh. Ajit Kumar Jain, plaintiff is entitled to minimum 1/4th share of the Principle of Sivivorship or in such ratio as determined as per law. It is his grievance that the defendants have been eluding the plaintiff from the right of possession, enjoyment, income from the HUF etc. for which repeated requests have been made on his behalf but to no affect and as such, claim for partition.
4. That there has been marital discord amongst the parents of the plaintiff. That since 24/25 th July, 1998 defendant no.1 is settled in United Kingdom and a divorce petition is subjudice between them under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act (HMA No. 694/2002) (129/2006). That no maintenance is being paid by defendant no. 1 despite directions. CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.5 / 47 The plaintiff who is living with his mother has no means for sustenance despite the fact he has legal rights over vast properties of the HUF and other properties referred herein.
5. Late Sh. Ajit Kumar and his wife, Late Smt. Nirmala Jain had a soft corner for plaintiff and as such, on numerous occasions showed concern, while trying to prevail upon defendant no. 1 to resume his matrimonial life and take up his responsibilities which was irrespective of the fact that mother of the plaintiff was having uncordial relations with her husband and in-laws. Instead defendant no.1 had been putting pressure upon his parents not to interfere in his personal life. It is because of the acrimony between defendant no.1 and his father, besides possibility as part of scheme to defeat any claim of the mother of the plaintiff in the HUF to recover maintenance etc., a rumour collusively was floated during the course of the divorce proceedings that Sh. Ajit Kumar Jain has disinherited defendant no.1. That the legality of the same remains unchallenged. Though as per information, sufficient wealth has been left behind by Late Sh. Ajit Kumar Jain. That all the documents concerning the properties, financial status etc. are in the custody and possession of defendant no. 2. It is because of love and affection towards CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.6 / 47 plaintiff that Late Smt. Nirmala Jain has made plaintiff his beneficiary in her estate, as per her last Will and testament. The said document is in possession of defendant no. 2 for which the plaintiff shall be moving appropriate application.
6. During the prosecution of the petition for divorce by the mother of the plaintiff, it has come to light that defendant no. 1 has amassed substantial property in United Kingdom by transferring funds from India. That Late Sh. Ajit Kumar Jain and his wife Smt. Nirmala Jain, who are paternal grand parents of the plaintiff have executed testament on the basis of which the plaintiff is a substantial beneficiary to the exclusion of defendant no.1, which is in the knowledge of the mother of the plaintiff and other close relatives as shown to them. The plaintiff reserves his right to move appropriate application for putting a restrain on the properties of defendant no.1 in U.K. for seeking reversion of funds, transmitted illegally out of the HUF and separate properties of Late Sh. Ajit Kumar Jain. As per the last Will and testaments of the deceased grand parents as referred herein are in the possession of defendant no.2. As per these last Will and Testaments, the plaintiff is half owner in respect of the immovable and moveable properties of the two deceased besides CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.7 / 47 his share in the HUF properties. The defendants have refused to give due share of the plaintiff out of the HUF and separate properties of the two deceased. It is learnt from reliable sources that there is siphoning/misappropriation of funds by the defendants from various investments of Late Sh. Ajit Kumar Jain and late Smt. Nirmala Jain without accounting or giving benefits etc. to the plaintiff of his share to which he is legally entitled.
7. All documents/title deeds etc. of the properties being the subject matter of the suit are in possession of the defendants and they have refused to provide details thereof. It has come to the knowledge of plaintiff that defendants are in the process and intend to collusively transfer/dispose off the immoveable properties in their favour or in favour of third parties against consideration and if allowed to continue it shall cause irreparable loss, harm and injury, therefore, it is necessary to partition the HUF properties as per law and seaprate properties as per the last Will and testament of the deceased and directing the defendants to render account and directions to give proportionate share of rent, interest, profits etc. in favour of the plaintiff. A legal notice dated 17.04.2006 has been served on behalf of the plaintiff upon CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.8 / 47 the defendants. The legal notice failed to evoke any response and as such, this suit.
8. Defendant no.1 was proceeded exparte in the proceedings vide order dated 25.01.2008 of Hon'ble Justice S. Ravindra Bhat. In the written statement filed by defendant no.2 Pankaj Jain, he took the preliminary objections that the defendant no.1 was not paying maintenance to the mother of the plaintiff for last several years and therefore, the mother of the plaintiff instituted the present suit (through her son) in an attempt to blackmail and extort money from the answering defendant. It is stated that on 26th June, 1986 Late Ajit Kumar Jain, out of his own personal funds purchased the ground floor and mezzanine floor of property situated at 2749, Mori Gate, Delhi admeasuring 60 sq. yds. That Late Ajit Kumar Jain was also one of the tenants in respect of one of the shops on the ground floor and was running and operating a sole proprietory concern. That on 2 nd July 1986, Late Nirmala Devi purchased the first floor of the said property from her own personal funds. That by Will dated 9th July, 1997 Late Nirmala Devi Jain bequeathed the first floor of the said property in favour of her husband Late Ajit Kumar Jain. That Nirmala Devi Jain passed away on 11th August, 1997. That CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.9 / 47 the said unregistered Will executed by his mother was found amongst the papers of Late Ajit Kumar Jain only after his demise in 2000. That upon the death of Late Nirmala Devi Jain, Late Ajit Kumar Jain became the sole and exclusive owner of the entire said property, to the exclusion of all other legal heirs. That Late Ajit Kumar Jain passed away on October 11, 2000. Pursuant to his death, in terms of an oral family understanding, defendants no.1, 3, 4 and 5 relinquished absolutely their share in the said property exclusively in his favour (ie. answering defendant no.2) vide a duly registered Relinquishment Deed dated 3rd November, 2000.
9. With regard to property bearing No.B-9, Dr. Mukherjee Nagar, Delhi, it is submitted that sometime in 1978, Late Ajit Kumar Jain formed/created an HUF under the name & style of 'Ajit Kumar Jain (HUF)'. That the said HUF, being formed by a personal act, no other member could enter or be admitted without the permission/consent of Late Ajit Kumar Jain. That Late Ajit Kumar Jain remained the karta of the said HUF until his death on October 11, 2000. That the said property was developed as a commercial property but it was sold to different buyers during the period February 20, 1987 and November 29, CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.10 / 47 1997 leaving only two shops unsold on the ground floor which were occupied by tenants. That defendants no.3 to 5 expressed that they were not interested to take any part of the HUF property or other property left by their parents. As a result, the property of HUF was distributed between the defendants no.1 & 2. That in order to avoid any future disputes, defendants no.1 & 2 entered into a Family Settlement Deed dated 31 st August, 2002. As per the said Deed, the defendant no.1 (which included his heirs, legal representatives, successors) was given Rs.1,66,770/- in cash. That the said family settlement had been acted upon and accepted by all the concerned parties.
10. In reply on merits, it is submitted that 'Nirmal Exports' was wound up by the answering defendant after the demise of Late Ajit Kumar Jain. The existence of un-cordial relationship between the plaintiff's mother and her in-laws was admitted. As regards disinheritance of defendant no.1 by Late Ajit Kumar Jain, it is submitted that the answering defendant could not locate any such document. It is vehemently denied that Late Nirmala Devi made the plaintiff a beneficiary in her estate as per her last Will. It is stated that the last Will and testament of late Nirmala Devi was the Will dated 9th July, 1997. The CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.11 / 47 averments of the plaint were categorically denied. It is prayed that the suit of the plaintiff be dismissed.
11. The defendants no.3, 4 and 5 also filed their written statement, stating therein that it is filed only with a view to place on record their stand in the matter keeping in line with release deed dated 29.12.1997, the oral family settlement and the consequent Relinquishment Deed dated November 3, 2000. In reply on merits, it is stated that the answering defendants had clearly stated that they were not interested in taking any part of the HUF or any other property left by their parents and that their share in all the properties be given to defendant no.2. That as a result of this, the HUF Property was distributed between the defendants no.1 & 2 as per the wishes of the answering defendants. That as regards, property bearing No.B-9, Dr. Mukherjee Nagar, Delhi, it is submitted that Late Ajit Kumar Jain formed/created an HUF under the name & style of 'Ajit Kumar Jain (HUF)' which comprised of seven members ie. Ajit Kumar Jain, his wife Nirmala Devi Jain, two sons Sanjay Jain (defendant no.1), Pankaj Jain (defendant no.2) and three daughters ie. defendants no.3 to 5. That the said HUF, being formed by a personal act, no other member could enter or be admitted without CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.12 / 47 the permission/consent of Late Ajit Kumar Jain. That Late Ajit Kumar Jain remained the karta of the said HUF until his death on October 11, 2000.
12. In replications to the written statements, the plaintiff reaffirmed and reiterated the contents of the plaint and denied the allegations made in the written statements. It is submitted that the purported Will dated 09.07.1997 of Late Nirmala was a forged and fabricated document; that the documents such as Release Deed dated 29.12.1997, Relinquishment Deed dated 03.11.2000 and Family Settlement dated 31.08.2002 are collusive, void documents. That defendant no.2 has malafidely held back the documents concerning income tax, relevant property documents with intent to misguide and misrepresent. That due to pending matrimonial dispute between his parents, the defendants joined together to defeat the claim of his mother by fraud and forgery. It is submitted that defendant no.1 purchased flat at B-2/2221, Vasant Kunj, New Delhi for which money was paid by his maternal grand-parents. That defendant no.1 did not maintain the financial discipline and left for United Kingdom, whereupon, the money had to be contributed by his maternal grand-parents. Similar averments were taken to the written statement filed on CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.13 / 47 behalf of defendants no.3, 4 & 5. It is averred that the defendants have colluded in order to usurp the rights and interest of the plaintiff. It is inconceivable that the defendants came to know of the Will of Late Ajit Kumar Jain.
13. On the basis of the pleadings of the parties, following issued were framed by Hon'ble Ms. Justice Reva Khetrapal vide order dated 02.12.2008:-
i) Whether the present suit is maintainable as framed? OPP
ii) Whether the plaintiff is entitled to a decree of declaration against the defendants in respect of the properties of M/s. Ajit Kumar Jain (HUF) and if so, to what share? OPP
iii) Whether the plaintiff is entitled to decree of declaration against the defendants for half share in the separate and self-acquired properties of Late Shri Ajit Kumar Jain and late Smt. Nirmala Jain? OPP
iv) If issues No.1 and 2 are proved in affirmative, whether the plaintiff is entitled to decree of mandatory injunction against the defendants to restore back the properties of the HUF M/s. Ajit Kumar Jain and the self-acquired properties of late Shri Ajit Kumar Jain and late Smt. Nirmala Jain?
OPP CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.14 / 47
v) Whether there was a family partition in 1991 between the defendant no.1 and late Shri Ajit Kumar Jain and if so, its effect? OPD
vi) Whether the plaintiff is entitled to a decree of possession and partition of the properties referred to in paragraph 21(c) of the plaint? OPP
vii) Whether the plaintiff is entitled to rendition of accounts from the defendants? OPP
viii) Whether Smt. Nirmala Devi Jain had executed a valid last will and testament dated 09.07.1997? if so, to what effect? OPD
ix) Whether the defendants had executed the release deeds dated 29th December, 1997, relinquishment deeds dated 3rd November, 2000 and the family settlement dated 31st August, 2002 transferring of the suit properties in favour of Shri Pankaj Jain, the defendant No.2 and if so, its effect? OPD
x) To what relief, if any, is the plaintiff entitled?
14. Ms. Nidhi Jain, mother of Master Swapnil (then minor) stepped in the witness box as PW-1. In her cross- examination, she deposed that her marriage with defendant no.1 was solemnized on 08.12.1990 and her son (plaintiff herein) was born in December, 1991. That the plaintiff stayed with the grand- parents till the year 2000. That she filed divorce petition against defendant no.1 in August, 2002. She further testified that her CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.15 / 47 husband was in joint business with his father and brother at the time of their marriage.
15. She was further cross-examined before the Local Commissioner, wherein, she deposed that her husband, in-laws and some common friends assured her that her husband and her in-laws would not torture her or physically harass her on account of dowry and therefore, she entered into an agreement Ex. PW- 1/1. That she had not read the said agreement and that she was not aware of recital 3 of the said agreement but they never lived at 892, Dr. Mukherjee Nagar. That there was no document indicating that the property bearing no.2749, Mori Gate, Delhi was purchased by Ajit Kumar Jain HUF. That she had not filed any document indicating that any property had been acquired from the funds of HUF, all the documents were with defendant no.2. That she was not aware of the properties which were acquired from the funds of HUF. She again stated that she knew the properties which were acquired from the funds of HUF such as B-9, Dr. Mukherjee Nagar but she did not know about all the properties.
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16. PW-1 Ms. Nidhi Jain, mother of Master Swapnil Jain further deposed that she did not know whether property No.2749, Mori Gate, Delhi was HUF property or not. That her mother-in-law and her father-in-law were joint owners of property No.947, Tilak Gali, Delhi. That her mother-in-law Smt. Nirmala Devi Jain was the owner of property No.2926-2928, Hamilton Road, Mori Gate, Delhi-06. That she did not know whether now it was a residential house and also did not remember due to lapse of time whether it was residential house when she visited it. That the property at Tilak Gali was purchased by her mother-in-law on 11th of December, 1991. That her mother-in-law had told her that the said property was purchased in her name from HUF Funds. That she was not aware of any bank account standing in the name of HUF. That HUF was carrying on business and funding various business such as Jayna Engineers, National Tractor Company and Nirmala Exports. That she could not name any account or show any document evidencing funding of the above three companies. That she could not give the particulars of the properties which were purchased from HUF funds in the name of individual member of her in-laws family. That the agreement Ex. PW-1/1 was not given effect to. CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.17 / 47
17. PW-1 further testified that there was no document on record showing that Smt. Nirmala Devi had her own independent source of income. That Smt. Nirmala Devi was a house-wife having no source of income. That she did not have copy of the Will made by Smt. Nirmala Devi but she told her that she had made a Will and that she had shown her the Will. She further deposed that she came to know about the sale of property No.947, Tilak Gali, Delhi from the written statement of defendant no.2. She denied the suggestion that there was no collusion in selling the above property. She deposed that the collective value of all the properties mentioned in para 19 of the plaint was more than Rs.50 Crores as on date.
18. She further deposed that the property No.2926-2928, Hamilton Road, Delhi was not purchased from the funds of HUF. That the property at 2749, National Tractor Company was HUF property and family joint business was being carried out. She further deposed that the defendant no.2 had fabricated a dissolution deed forging the signatures of her father-in-law to the effect that he had retired on 01.04.2000 and that her father-in-law had been signing the cheques of partnership firm after 01.04.2000. That the property no.ND-34, Pitampura was CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.18 / 47 purchased from the funds of HUF as Smt. Neelam Jain had no independent source of income and the said property was purchased in her name. She further deposed that there was no documentary evidence with her evidencing that the property referred to in agreement dated 10.08.1997 was purchased out of HUF funds. That she had mentioned in her affidavit the account number of HUF alongwith the amounts lying in the said account. That there were other accounts of the HUF but she was not in possession of their particulars.
19. Sh. Satya Pal, Tax Assistant from the office of Commissioner of Income Tax was examined as PW-2 who brought the ITR of Sh. Pankaj Kumar Jain. However, his chief examination could not be concluded as the complete records were not brought; Sh. Rajkumar, Income Tax Officer, Ward 47(4), Department of Income Tax was examined as PW-2A. Smt. Secunda Kuzur from the office of Commissioner of Sales Tax, ITO, New Delhi was examined as PW-3. She brought the summoned record pertaining to the change of constitution of firm M/s. National Tractor Co.
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20. Initially, Sh. Dil Raj was examined as PW-4 and later Sh. Balbir Singh from the Ward no.39, Office of the Trade and Taxes Commissioner, ITO Chowk, New Delhi was examined as PW-4A. Sh. Rakesh Kumar, Restorer, Criminal Branch, High Court of Delhi, New Delhi was examined as PW-5. He brought the summoned record ie. file which contained the exhibited copies of cheques issued from the account of Ajit Kumar Jain HUF and the statement of account for the period 20 th August, 1999 to 22nd November, 2000 and marked the same as Ex. PW- 5/1 to Ex. PW-5/5.
21. Sh. Pankaj Jain was examined as DW-1 who placed on record Will of Smt. Nirmala Devi Jain as Mark DA and exhibited the Relinquishment Deeds of different dates as Ex. DW-1/2 to Ex. DW-1/5. In his cross-examination, he deposed that he had no knowledge whether his father had prepared any document while creating HUF apart from Bank Account. He deposed that he was in possession of the document vide which he was appointed Karta of the HUF but the same had not been filed on record. He further deposed that his father constituted a HUF as he intended to buy a plot in Mukherjee Nagar and develop it. He went on to depose that he was not aware as to who were the CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.20 / 47 earning members of the HUF when the plot was purchased or building was constructed. That his mother had rental income, interest and that she used to go to sewing centre to teach sewing, knitting embroidery etc. As per his testimony, plaintiff did not become the member of the HUF by birth and that the HUF created by his father was assessed to income tax. That during his life time, his father used to file separate income tax returns for the HUF and for himself. That he had filed income tax returns for the HUF.
22. DW-1 further testified in his cross-examination that his brother Sh. Sanjay Jain relinquished his share in the individual assets of his parents in his favour. That according to oral settlement, the movable assets were to be shared by him and his brother Sanjay Jain. That the unsold two shops of Mukherjee Nagar property, according to wishes of his sisters and brother, came to him. He deposed that he had prepared the details of all the accounts before 31.08.2002 and that he had deposited amount of Rs.5,62,366/- to the HUF account on 09.01.2001 inclusive of interest, which is at point A in copy of pass-book Mark DW- 1/PD2. He further deposed that the family settlement was oral and that he was not aware whether the income tax authorities CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.21 / 47 were to be notified about the dissolution of HUF and that he had not submitted the copy of document Ex. DW-1/6 to any authority. That the pass-book which he was required to produce on the last date was not traceable. That he had paid an amount of Rs.5,70,500/- to Pankaj Kumar Jain HUF, the relevant entry was at point A-1 in Ex. DW-1/PD-2.
23. The said witness further deposed that it was decided amongst themselves that the movable assets of Ajit Kumar Jain HUF would be equally divided between him and Sanjay Jain and that he had informed Sanjay Jain and therefore Sanjay Jain was paid Rs.4,25,000/- on 08.03.2002 and the said amount was paid to the account of Ajit Kumar Jain HUF from the account of Pankaj Kumar Jain HUF on 06.03.2002. That he did not have any document to show that the said amount was credited to the account of Sanjay Jain. He further deposed that he had not taken any permission from the lessor for selling the said shop and to the best of his knowledge, no such permission was required. He admitted that when agreement to sell Ex. DW-1/PD-3 was entered into, the plaintiff was a minor. That he did not take any permission from the mother/guardian of the plaintiff as they were not part of HUF and that the document Ex. DW-1/PD-3 was not CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.22 / 47 got registered. That after the death of his mother, they gave up their rights over her properties by release deed Ex. DW-1/2 in favour of their father. That after the death of his father, his three sisters and brother gave their rights over all the properties of his father including 947/48, Tilak Gali, Kashmiri Gate, Delhi by release deeds Ex. DW-1/3 to Ex. DW-1/5. That his mother had purchased undivided half share of property no.947/48, Tilak Gali, Kashmire Gate, Delhi.
24. DW-1 went on to depose that he knew that Sh.
Sanjay Jain had raised loan for purchase of property No.2221, Block B-2, Vasant Kunj, New Delhi and that the said property was in the name of Sh. Sanjay Jain. That after Sanjay Jain left India for England, the remaining due amount was paid by him through his wife by selling his assets. That he could not substantiate with documents as all the documents pertaining to the above-mentioned property at Vasant Kunj, New Delhi were with Smt. Nidhi Jain or Sh. Sanjay Jain. That after dissolution of the partnership firm, Sanjay Jain became the sole proprietor. That he did not know as to where was the office of Jayna Engineers upto 31.03.1991.
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25. In the cross-examination of the said witness DW-1, he was asked as to whether Agreement to Sell dated 10 th August, 1996 was executed in his favour by Mrs. Maya Aggarwal in respect of four shops on the ground floor of property No.D-60, Block D, Pocket 11, Rohini, Delhi. However, the said question was objected to by the Ld. Counsel for defendant no.2 and was accordingly decided to be taken up at final stage. The witness deposed further that he had no personal knowledge about any general power of attorney executed in favour of his mother, but, looking at the certified copy of said general power of attorney ie. Ex. DW-1/PW-7, he said that it might have been executed. That the said property remained with him for a very short period and thereafter, he sold it off. The witness, however, admitted that it must had been executed. He further admitted that National Tractor, a business concern was originally started by his late father Sh. Ajit Kumar Jain as a sole proprietor concern and that he retired on 31st March, 2000. He deposed that mother of plaintiff was married to defendant no.1 in the year 1990 and that not even a single property was purchased from the funds of Ajit Kumar Jain, HUF. He deposed that he did not remember exactly as to how much amount was in the account of Ajit Kumar Jain HUF at the time of death of Sh. Ajit Kumar Jain. That the CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.24 / 47 statement had been placed on record Ex. DW-1/PD-2. That Sh. Ajit Kumar Jain expired on 11.10.2000. He further deposed that that amount was distributed between him and defendant no.1. He further stated that he did not remember the exact amount paid to defendant no.1, that it was written on family settlement Ex. DW- 1/6.
26. DW-2 Mr. Shiv Shankar, Data Entry Operator was examined who stated that there was no summoned record in the office of Sub-Registrar VIA, Pitampura, Delhi. Mr. Surya Prakash, LDC from the office of Sub-Registrar-I, Kashmiri Gate, Delhi-06 was examined as DW-3 who brought the summoned record ie. Relinquishment Deeds Ex. DW-1/2; Ex. DW-1/3; Ex. DW-1/4 and Ex. DW-1/5.
27. Written synopsis were filed on behalf of the plaintiff. In his written synopsis, Ld. Counsel for plaintiff contended that the plaintiff despite being member of Ajit Kumar Jain (HUF) had been illegally denied all the benefits of the HUF and the defendants, after the death of his grand-parents, refused to give his due share out of the HUF. That the defendants clandestinely worked upon a settlement amongst themselves dividing the CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.25 / 47 interest and share of plaintiff amongst themselves in the HUF and separate properties of Late Ajit Kumar Jain and Nirmala Jain. That defendant no.2 schemed to acquire all the properties or transfer in favour of third parties against consideration wherein plaintiff had rights and interest. That plaintiff being coparcener has a joint interest and joint possession as held in the case of SBI V. Ghamandi Ram AIR 1969 SC 1330, wherein, it has been held that the right of coparcener devolves by survivorship, it is the property in which the male issue of the coparceners acquire interest by birth as based on fundamental principle of sapindaship. He relied upon the cases titled as Smt. Sukhrani (Dead) By LRs and others v. Hari Shankar & Others, (1979) 2 SCC 463; Ratnam Chettiar and others v. S.M. Kuppuswami Chettiar and others, (1976) 1 SCC 214 and Veerabhadrappa and others v. Lingappa and others AIR `963 Mys 5, to lay stress upon re-opening of partition. He further placed reliance on the case titled as Mudi Gowda Gowdappa Sankh v. Ram Chandra Ravagowda Sankh, 1968 (1) SCC 386 to ascertain whether the properties were joint family properties and were not the self- acquisition. He also placed on record copy of citation titled as Mst. Rukhmabai v. Lal Laxminarayan & Ors. (1960) 2 SCR 253: AIR 1960 SC 335, the burden lies upon the person who CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.26 / 47 asserts that a particular property is joint family property to establish that fact. But if he proves that there was sufficient joint family nucleous from and out of which the said property could have been acquired, the burden shifts to the member of the family setting up the claim that it is his personal property to establish that the said property has been acquired without any assistance from the joint family property.
28. On the other hand, Ld. Counsel for defendant no.2 in his written submissions contending that the present suit is not in the interest of minor and is a tool to extort money from the defendant no.2. That the plaintiff has no right or claim, legal or otherwise to any of the properties set out in the plaint. He laid stress upon the point that the separate income tax returns of the individuals as well as firms, clearly belies the argument relating to common income tax returns being filed or that the properties were purchased out of funds of the HUF. He placed reliance on the judgment of the Hon'ble Supreme Court in Ratnam Chettiar & Ors. v. S.M. Kuppuwami Chettiar & Ors., reported in (1976) 1 SCC 214, wherein, while upholding the rights of a minor to reopen a partition has qualified the same by holding that partition affected between the members of the Hindu Undivided Family by CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.27 / 47 their own volition and with their consent cannot be reopened, unless it is shown that the same is obtained by fraud, coercion, misrepresentation or undue influence and that the same requires strict proof because an act intra-vivos cannot be lightly set aside. It further goes on to hold that the family settlement can be reopened at the instance of a minor, if it is proved that the same was unjust, unfair and detrimental to the interest of the minor. That the plaintiff has failed to lead any evidence which would show that the partition is unfair, unjust or detrimental to the interest of the plaintiff. That, at no stage, the plaintiff has made out a case that his father was incapable or not protecting his interest and therefore, the settlement was unjust, unfair and ought to be set aside. That no prayer has been made to seek declaration of release deed dated 29.12.1997 and relinquishment deed dated 03.12.2000 as invalid.
29. In his additional written submissions, Ld. Counsel for plaintiff contended that the suit of the plaintiff is maintainable in its present form. In support of the same, he placed reliance on the cases titled as Mst. Rukhmabai v. Lala Laxmi Narayan & Ors. AIR 1960 SC 335, wherein, it was held that "... There is a presumption in Hindu Law that a family is joint. There can be a CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.28 / 47 division in status among the members of a joint Hindu Family by refinement of shares which is technically called "Division in Status" or an actual division among them by allotment of specific property to each one of them which is described as division by metes and bounds". Another relied by him was Mudi Gowda Gowdappa Sankh v. Ram Chandra Rawagowda Sankh 1969 (1) SCC 386, wherein, it has been held that "... the person alleging the property to be coparcenery property must prove it. But if it is shown that there was nucleus of joint family property then any acquisition by its aid by a member is joint property. In such an event, the person claiming the property to be self-acquired has to be prove it to be so". "...It is only after the possession of the adequate nucleous is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate." He further vehemently contended that the coparcenerary under the Mitakshara School is a creature of law and cannot arise by act of parties and that a partition could be reopened at the instance of a minor coparcener despite the fact that his branch was represented by his father at the partition, if the partition was unfair or prejudicial to the interest of the minor. CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.29 / 47 (Smt. Sukh Rani & Ors. v. Hari Shankar & Ors. (1979) 2 SCC
463).
30. Ld. Counsel for defendants no.3 to 5 in their written submissions contended that in the absence of any substantial evidence, the averments in the plaint regarding the properties in question remain mere allegations which cannot be given any credence. That the suit of the plaintiff is not maintainable in the present form.
31. Submissions on behalf of the parties are taken into consideration. Record perused. My issue wise findings are as under:
i) Whether the present suit is maintainable as framed? OPP
32. The onus to prove the issue was upon the plaintiff whose counsel relied upon cases titled as Mst. Rukhmabai v. Lala Laxmi Narayan & Ors. AIR 1960 SC 335 and Mudi Gowda Gowdappa Sankh v. Ram Chandra Rawagowda Sankh 1969 (1) SCC 386. The existence of joint Hindu Family property is not disputed any where either in the testimony of the PW-1 nor DW-1. Plaintiff being born on 03.12.1991 prima facie became a CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.30 / 47 co-parcener- much before the execution of relinquishment deeds and division of HUF properties. In view of the law laid down above, the issue is decided in favour of the plaintiff and against the defendants.
ii) Whether the plaintiff is entitled to a decree of declaration against the defendants in respect of the properties of M/s. Ajit Kumar Jain (HUF) and if so, to what share? OPP
33. The onus to prove the issue was upon the plaintiff. It is the case of the plaintiff that Late Ajit Kumar Jain had amassed separate properties from Joint Hindu Family properties and businesses and was submitting common tax return and Nirmala Devi had received stridhan/benami acquirements from Joint Hindu Family properties.
PW-1 in her deposition stated that her marriage with defendant no.1 was solemnized on 08.12.1990 and her son (plaintiff herein) was born in December, 1991 and that the plaintiff stayed with the grand-parents till the year 2000. She further deposed that she filed divorce petition against defendant no.1 in August, 2002 and that her husband was in joint business with his father and brother at the time of their marriage. CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.31 / 47
Admittedly, Late Ajit Kumar Jain was the grand- father of the plaintiff herein, who in turn had two sons (ie. defendants no.1 & 2) and three daughters. The defendant no.1 (father of the plaintiff) was entitled to 1/5 th share in the HUF property and separate property of Late Ajit Kumar Jain and through, defendant no.1, his son ie. Plaintiff herein is entitled to declaration with respect to the properties of Ajit Kumar Jain HUF and also to half share of the 1/5 th share held by his father ie. defendant no.1. However, PW1 Nidhi Jain in her testimony categorically deposed that she had not filed any document indicating that any property had been acquired from the funds of HUF, all the documents were with defendant no.2. That she was not aware of the properties which were acquired from the funds of HUF. She deposed that she knew the properties which were acquired from the funds of HUF such as B-9, Dr. Mukherjee Nagar, but, she did not know about all the properties.
34. Whereas, the defendant no.2 who stepped in the witness box as DW-1 deposed that plaintiff did not become member of Ajit Kumar Jain HUF by birth as it was created by Ajit Kumar Jain and was assessed to income tax as there was separate income tax for his separate property. It is deposed by CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.32 / 47 DW1 that defendant no.1 had relinquished his share. That defendant no.1 namely Sanjay jain has taken his share from Ajit Kumar HUF. That there was an oral family settlement dissolving the HUF Ex. DW-1/6. The defendant deposed to the effect that movable properties were to be equally divided between defendants no.1 & 2. There is no specific evidence of plaintiff to show which are the properties of Ajit Kumar Jain (HUF). For lack of evidence, declaration as to his share cannot be granted. The issue is decided in said terms in favour of the defendants and against the plaintiff.
iii) Whether the plaintiff is entitled to decree of declaration against the defendants for half share in the separate and self-acquired properties of Late Shri Ajit Kumar Jain and late Smt. Nirmala Jain? OPP
35. The onus was upon the plaintiff to prove the above issue. His mother Smt. Nidhi Jain testified herself as PW-1. In her cross-examination before the Local Commissioner, she deposed that there was no document indicating that the property bearing no.2749, Mori Gate, Delhi was purchased by Ajit Kumar Jain HUF. That she had not filed any document indicating that CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.33 / 47 any property had been acquired from the funds of HUF, all the documents were with defendant no.2. That she was not aware of the properties which were acquired from the funds of HUF. She again stated that she knew the properties which were acquired from the funds of HUF such as B-9, Dr. Mukherjee Nagar but she did not know about all the properties. She further deposed that she did not know whether property No.2749, Mori Gate, Delhi was HUF property or not. That her mother-in-law and her father- in-law were joint owners of property No.947, Tilak Gali, Delhi. That her mother-in-law Smt. Nirmala Devi Jain was the owner of property No.2926-2928, Hamilton Road, Mori Gate, Delhi-06. That she did not know whether now it was a residential house and also did not remember due to lapse of time whether it was residential house when she visited it. That the property at Tilak Gali was purchased by her mother-in-law on 11th of December, 1991. That her mother-in-law had told her that the said property was purchased in her name from HUF Funds. That she was not aware of any bank account standing in the name of HUF. That HUF was carrying on business and funding various business such as Jayna Engineers, National Tractor Company and Nirmala Exports. That she could not name any account or show any document evidencing funding of the above three companies. That CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.34 / 47 she could not give the particulars of the properties which were purchased from HUF funds in the name of individual member of her in-laws family. That the agreement Ex. PW-1/1 was not given effect to.
36. The said witness went on to testify that there was no document on record showing that Smt. Nirmala Devi had her own independent source of income. That Smt. Nirmala Devi was a house-wife having no source of income. That she did not have copy of the Will made by Smt. Nirmala Devi but she told her that she had made a Will and that she had shown her the Will. She further deposed that she came to know about the sale of property No.947, Tilak Gali, Delhi from the written statement of defendant no.2. She denied the suggestion that there was no collusion in selling the above property. She further deposed that the property No.2926-2928, Hamilton Road, Delhi was not purchased from the funds of HUF. That the property at 2749, National Tractor Company was HUF property and family joint business was being carried out. That the property no.ND-34, Pitampura was purchased from the funds of HUF as Smt. Neelam Jain had no independent source of income and the said property was purchased in her name. She further deposed that there was CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.35 / 47 no documentary evidence with her evidencing that the property referred to in agreement dated 10.08.1997 was purchased out of HUF funds. That she had mentioned in her affidavit the account number of HUF alongwith the amounts lying in the said account. That there were other accounts of the HUF but she was not in possession of their particulars. Nevertheless, the half share in the separate and self-acquired properties can only be ascertained when PW1 would show the properties that are separate. Without documentary evidence, properties cannot be segregated into HUF or separate properties. Even if the properties have diluted, there is not sufficient evidence that separate property was amalgamated in HUF or vice versa. The plaintiff was within his right to call documents from the defendants and other authorities to prove his case. The testimony of PW-1 is not sufficient enough to prove the issue in hand. Hence, the issue is decided against the plaintiff.
iv) If issues No.1 and 2 are proved in affirmative, whether the plaintiff is entitled to decree of mandatory injunction against the defendants to restore back the properties of the HUF M/s. Ajit Kumar Jain and the self-acquired properties of late Shri Ajit Kumar Jain and late Smt. Nirmala Jain? OPP CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.36 / 47
37. Since the plaintiff has failed to prove the Issue no.3 (wrongly mentioned as issues no.1 & 2) in his favour, this issue is also decided against the plaintiff.
v) Whether there was a family partition in 1991 between the defendant no.1 and late Shri Ajit Kumar Jain and if so, its effect? OPD
38. The onus to prove the issue was upon the defendant. Defendant no.2 stated in his written statement that Late Ajit Kumar Jain passed away on October 11, 2000 and that pursuant to his death, in terms of an oral family understanding, defendants no.1, 3, 4 and 5 relinquished absolutely their share in the said property exclusively in his favour (ie. answering defendant no.2) vide a duly registered Relinquishment Deed dated 3rd November, 2000. In his cross-examination, though, Sh. Pankaj Jain as DW-1 failed to depose categorically about the family partition in 1991, however, he placed on record Will of Smt. Nirmala Devi Jain as Mark DA and exhibited the Relinquishment Deeds of different dates as Ex. DW-1/2 to Ex. DW-1/5. DW-1 further testified in his cross-examination that his brother Sh. Sanjay Jain relinquished his share in the individual assets of his parents in his favour. Implying thereby that the father of the plaintiff abandoned his CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.37 / 47 separate right in favour of the co-parcener. The deposition of DW1 can be inferred to mean there was property left behind by Ajit Singh (HUF or not) which was divided. DW1 was not cross- examined on this aspect. In fact, there is no specific denial by PW1 about family settlement and the act of relinquishment. To the contrary, the testimony of PW-1 did not prove to be of any worth as there was not even a whisper about the said family partition in 1991 or any ancestral nucleus. In the absence of any cogent evidence, the issue is decided in favour of the defendants.
vi) Whether the plaintiff is entitled to a decree of possession and partition of the properties referred to in paragraph 21(c) of the plaint? OPP
vii) Whether the plaintiff is entitled to rendition of accounts from the defendants? OPP
39. All the above issues are inter-related and can be decided together. The onus to prove the same was upon the plaintiff. PW-1 Smt. Nidhi Jain who deposed in her cross- examination that there was no document indicating that the property bearing no.2749, Mori Gate, Delhi was purchased by Ajit Kumar Jain HUF. That she had not filed any document indicating that any property had been acquired from the funds of HUF, all the documents were with defendant no.2. That she was CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.38 / 47 not aware of the properties which were acquired from the funds of HUF. She again stated that she knew the properties which were acquired from the funds of HUF such as B-9, Dr. Mukherjee Nagar but she did not know about all the properties. She further deposed that she did not know whether property No.2749, Mori Gate, Delhi was HUF property or not. That her mother-in-law and her father-in-law were joint owners of property No.947, Tilak Gali, Delhi. That her mother-in-law Smt. Nirmala Devi Jain was the owner of property No.2926-2928, Hamilton Road, Mori Gate, Delhi-06. That the property at Tilak Gali was purchased by her mother-in-law on 11th of December, 1991. That her mother-in-law had told her that the said property was purchased in her name from HUF Funds. That she was not aware of any bank account standing in the name of HUF. That HUF was carrying on business and funding various business such as Jayna Engineers, National Tractor Company and Nirmala Exports. That she could not name any account or show any document evidencing funding of the above three companies. That she could not give the particulars of the properties which were purchased from HUF funds in the name of individual member of her in-laws family. That the agreement Ex. PW-1/1 was not given effect to.
CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.39 / 47
40. PW-1 further testified that there was no document on record showing that Smt. Nirmala Devi had her own independent source of income. That Smt. Nirmala Devi was a house-wife having no source of income. That she did not have copy of the Will made by Smt. Nirmala Devi but she told her that she had made a Will and that she had shown her the Will. She further deposed that she came to know about the sale of property No.947, Tilak Gali, Delhi from the written statement of defendant no.2. She denied the suggestion that there was no collusion in selling the above property. She further deposed that the property No.2926-2928, Hamilton Road, Delhi was not purchased from the funds of HUF. That the property at 2749, National Tractor Company was HUF property and family joint business was being carried out. She further deposed that the defendant no.2 had fabricated a dissolution deed forging the signatures of her father-in-law to the effect that he had retired on 01.04.2000 and that her father-in-law had been signing the cheques of partnership firm after 01.04.2000. That the property no.ND-34, Pitampura was purchased from the funds of HUF as Smt. Neelam Jain had no independent source of income and the said property was purchased in her name. She further deposed CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.40 / 47 that there was no documentary evidence with her evidencing that the property referred to in agreement dated 10.08.1997 was purchased out of HUF funds. That she had mentioned in her affidavit the account number of HUF alongwith the amounts lying in the said account. However, no proof of the same was filed nor any witness from the bank was summoned to prove the same. There was no whisper about property bearing no. DP-184, Pitampura, Delhi.
41. As seen above, the testimony of PW-1 did not prove to be fruitful as she could not prove that the plaintiff was entitled to a decree of possession and partition of the properties referred to in paragraph 21(c) of the plaint or to rendition of accounts from the defendants. The issues are thus decided against the plaintiff.
viii) Whether Smt. Nirmala Devi Jain had executed a valid last will and testament dated 09.07.1997? if so, to what effect? OPD
ix) Whether the defendants had executed the release deeds dated 29th December, 1997, relinquishment deeds dated 3rd November, 2000 and the family settlement dated 31st August, 2002 transferring of CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.41 / 47 the suit properties in favour of Shri Pankaj Jain, the defendant No.2 and if so, its effect? OPD
42. The onus to prove the issues was upon the defendant. Sh. Pankaj Jain, ie. defendant no.2 stepped in the witness box as DW-1 who placed on record Will of Smt. Nirmala Devi Jain as Mark DA and exhibited the Relinquishment Deeds of different dates as Ex. DW-1/2 to Ex. DW-1/5. In his cross- examination, he deposed that he had no knowledge whether his father had prepared any document while creating HUF apart from Bank Account. He deposed that he was in possession of the document vide which he was appointed Karta of the HUF but the same had not been filed on record. He further deposed that his father constituted a HUF as he intended to buy a plot in Mukherjee Nagar and develop it. He further deposed that he was not aware as to who were the earning members of the HUF when the plot was purchased or building was constructed. That his mother had rental income, interest and that she used to go to sewing centre to teach sewing, knitting embroidery etc. As per his testimony, plaintiff did not become the member of the HUF by birth and that the HUF created by his father was assessed to income tax. That during his life time, his father used to file CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.42 / 47 separate income tax returns for the HUF and for himself. That he had filed income tax returns for the HUF.
43. DW-1 further testified in his cross-examination that his brother Sh. Sanjay Jain relinquished his share in the individual assets of his parents in his favour. That according to oral settlement, the movable assets were to be shared by him and his brother Sanjay Jain. That the unsold two shops of Mukherjee Nagar property, according to wishes of his sisters and brother came to him. He further deposed that the family settlement was oral and that he was not aware whether the income tax authorities were to be notified about the dissolution of HUF and that he had not submitted the copy of document Ex. DW-1/6 to any authority. The said witness further deposed that it was decided amongst themselves that the movable assets of Ajit Kumar Jain HUF would be equally divided between him and Sanjay Jain and that he had informed Sanjay Jain and therefore Sanjay Jain was paid Rs.4,25,000/- on 08.03.2002 and the said amount was paid to the account of Ajit Kumar Jain HUF from the account of Pankaj Kumar Jain HUF on 06.03.2002. That after the death of his mother, the plaintiff and his mother gave up their rights over her properties by release deed Ex. DW-1/2 in favour of their father. CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.43 / 47 That after the death of his father, his three sisters and brother gave their rights over all the properties of his father including 947/48, Tilak Gali, Kashmiri Gate, Delhi by release deeds Ex. DW-1/3 to Ex. DW-1/5. That his mother had purchased undivided half share of property no.947/48, Tilak Gali, Kashmire Gate, Delhi.
44. DW-1 went on to depose that he knew that Sh.
Sanjay Jain had raised loan for purchase of property No.2221, Block B-2, Vasant Kunj, New Delhi and that the said property was in the name of Sh. Sanjay Jain. That after Sanjay Jain left India for England, the remaining due amount was paid by him through his wife by selling his assets. That he could not substantiate with documents as all the documents pertaining to the above-mentioned property at Vasant Kunj, New Delhi was with Smt. Nidhi Jain or Sh. Sanjay Jain. That after dissolution of the partnership firm, Sanjay Jain became sole proprietor. The witness admitted that National Tractor, a business concern was originally started by his late father Sh. Ajit Kumar Jain as a sole proprietor concern and that he retired on 31st March, 2000. He deposed that mother of plaintiff was married to defendant no.1 in the year 1990 and that not even a single property was purchased CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.44 / 47 from the funds of Ajit Kumar Jain, HUF. He deposed that he did not remember exactly as to how much amount was in the account of Ajit Kumar Jain HUF at the time of death of Sh. Ajit Kumar Jain. That the statement had been placed on record Ex. DW- 1/PD-2. That Sh. Ajit Kumar Jain expired on 11.10.2000. He further deposed that that amount was distributed between him and defendant no.1. He further stated that he did not remember the exact amount paid to defendant no.1, that it was written on family settlement Ex. DW-1/6.
45. The death of a coparcener does not bring to an end any coparcenery interest. An increase or decrease in the coparcenery interest independently held by each coparcener may occur by birth or death. On the coparcener's death, the notional partition is drawn only to determine his coparcenery's interest. It does not disturb the other incidents of coparcenery, it can continue without disruption with other coparceners, and even new coparceners can be added on account of birth till the time an actual partition takes place. Coparcenery interest becomes definite only when a partition is effected.
So by virtue of being a coparcener, the plaintiff would be entitled to a share, however, from the pleadings it is not CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.45 / 47 clear if there were separate HUFs ie. Ajit Kumar HUF, Sanjay Jain HUF and Pankaj Jain HUF. If there was, plaintiff would form part of Sanjay Jain HUF. Consequently, he would get a share from Sanjay Jain HUF. Since the plaintiff has not denied the oral settlement and relinquishment deed of Sanjay Jain, the plaintiff is entitled only to separate property of Sanjay Jain who is still alive.
46. PW-1, on the other hand, testified that there was no document on record showing that Smt. Nirmala Devi had her own independent source of income. That Smt. Nirmala Devi was a house-wife having no source of income. That she did not have copy of the Will made by Smt. Nirmala Devi but she told her that she had made a Will and that she had shown her the Will. This witness on the one hand relied upon the said Will allegedly executed by Late Nirmala Jain and on the other, did not even prove the same. She failed to rebut the testimony of DW-1 in favour of plaintiff. Hence, the issues are decided in favour of the defendant and against the plaintiff.
CS DJ No.129/2017 Swapnil Jain v. Sanjay Jain & Ors. Page No.46 / 47 RELIEF
47. In view of the opinion on the issues above, the suit of the plaintiff is dismissed with no order as to costs. Decree sheet be prepared accordingly. File be consigned to record room. Announced in the open court On 19th August, 2023.
(Colette Rashmi Kujur) ADJ-10/Central/THC/Delhi.
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