Delhi District Court
Taween Kumar Jain vs Roop Chand Jain Ors on 22 July, 2024
INDEX
Sl. Heading Page No.
No.
1. Memo of parties 5-9
2. Brief Facts - Plaintiff's case 10-17
3. Defendant's case 17-23
Written statement filed on behalf
of defendant no. 1
Defendant no. 2 to 5
Defendant no.7
4. Issues 23-24
5. Plaintiff's Evidence 24-42
PW1 to PW15
6. Defendants' Evidence 43-47
7. Issuewise Findings : Issue no. 1 47-55
Judgments relied on
(i) "Smt. Sukhrani (dead) by LRs &Ors.
VS Hari Shankar &Ors." (1979) 2 SCC
463
(ii) 'Ratnam Chettiar vs SM
Kuppuswami Chettiar, (1976) 1 SCC
214,'(para-18 and 19)
8. Issue no. 2 55-56
Article 58 of the Second Schedule to the
Limitation Act
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9. Issue no. 3 56-60
Judgments relied upon
(i) Shobha Jolly v. Suraj S.J. Bahadur,
2013 SCC OnLine Del 4106
(ii) Krishna Gupta v. Rajinder Nath &
Co. HUF, 2013 SCC OnLine Del 547,
(para- 51)
(iii) Neelavathi v. N. Natarajan, AIR
1980 SC 691
(iv) 'Meenaakshisundaram Chettiar v.
Venkatachalam Chettiar, [1979] 3 SCR
385
10. Issue no. 4 60-65
judgments relied upon
(i) 'Yogesh Goyanka vs Govid &Ors,
2024 SCC OnLine Sc 1962,' in (para-
16)
(ii) "Simla Banking Industrial Co. Ltd.
v. Firm Luddar Mal, Tek Chand, 1957
SCC OnLine Punj 145"
(iii) 'Madhukar Nivrutti Jagtap and
Others vs PramilabaiChandulal
Parandekar (Dead) Through Legal
Representatives and Others, (2020) 15
SCC 731'
(iv) 'Santa Singh Gopal Singh and Ors
vs Rajinder Singh Bur Singh and Ors,
AIR, 1965 Punjab 415,
11. Issue no. 5 66-68
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12. Issue no. 6 68-96
Judgments relied upon
(i) 'Radhesh Singh vs Vineet Singh
&Ors, 2014 SCC OnLine Del 3188'
(Para 13, 14 and 15)
(ii) 'Sir Sobha Singh and Sons Pvt. Ltd.
vs Shashi Mohan Kapur (Deceased)
through LR, (2020) 20 SCC 798, (Para-
39)
(iii) 'Onkar Nath Kapoor Through LRs
vs Jawahar Lal Kapoor (Deceased)
Through LRs, 2018 SCC OnLine Del
8076'
(iv) 'Parvathamma and others vs
Venkatsivamma and others, 2016 SCC
ONLINE SC 1628' (para-2)
(v) Ayaaub Khan Noor Khan Pathan vs.
State of Maharashtra, (2012) 10 S.C.R.
994, (para-31)
(iv) Section 3 of Evidence Act, 1972
13. Issue no. 7 96-116
judgment relied upon
(v) "Sriniwas vs. Narain", AIR 1954 SC
379,'
(vi) Bhagwat Sharan vs. Purushotam,
2020 SCC OnLine SC 348'
(vii) "Yudhishter vs Ashok Kumar"
(1987) 1 SCC 204, (viii)
"Commissioner of Wealth Tax, Kanpur
and Ors. V. Chander Sen and Ors.
(1986) 3 SCC 567,
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(ix) "Sunny(minor) & Anr. vs Sh. Raj
Singh and Ors" 2015 SCC OnLine
Del 13446" (x) "Surender Kumar vs.
Dhani Ram and Ors, 227 (2016) DLT
217'
(xi) "Lalsa Prasad Singh vs.
Chanderwala & Ors, 2017 SCC
OnLine Del 10961"
(xii) 'Rashiklal & Company vs CIT,
AIR 1998 SC 401'( para-12)
14. Issue no. 8 116-126
15. Relief 126-127
Judgment dt. 22.07.2024
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IN THE COURT OF DISTRICT JUDGE- 02,
CENTRAL DISTRICT: TIS HAZARI COURTS, DELHI
Presided By- Sh. Sandeep Kumar Sharma, DHJS
In the matter of-
CS DJ No. 15466/2016
CNR No. DLCT01-000006-1987
TAWEEN KUMAR JAIN
S/o Late Sh. Roop Chand Jain,
R/o House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
............... Plaintiff
VERSUS
1. LATE SH. ROOP CHAND JAIN (expired on 15.12.1999)
(a) Smt. Rattan Mala Jain
W/o Late Sh. Roop Chand Jain,
R/o House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(b) Sh. Taween Kumar Jain
House No. 3545 (G.F.),
Gali Hanuman Mandir,
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Subzi Mandi Main Bazar, Delhi
(c) Ms. Neera Rani Jain
D/o Late Sh. Roop Chand Jain,
House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(d) Ms. Raashi Jain (Pichoo Jain)
D/o Late Sh. Roop Chand Jain
House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(e) Ms. Gunj Lata
D/o Late Sh. Roop Chand Jain
House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(f) Ms. Raashmi Gupta
D/o Late Sh. Roop Chand Jain
House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
2. LATE SH. PREM CHAND JAIN (expired on 21.02.2014)
S/o Late Sh. Latoo Mal Jain
Through its Legal Heirs:-
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(a) Raj Kumar Jain
S/o Late Sh. Prem Chand Jain
R/o 3545, (F.F.) Gali Hanuman Mandir,
Subzi Mandi, Delhi - 110007
(b) Sanjay Jain
S/o Late Sh. Prem Chand Jain
R/o 3545, (F.F.) Gali Hanuman Mandir,
Subzi Mandi, Delhi - 110007
(c) Smt. Renu Jain,
W/o Sh. D.K. Jain,
D/o Late Sh. Prem Chand Jain
R/o 1436, Bazar Guliyan, Main Road,
Dariba Kalan, Opp. Jama Masjid Police Station,
Delhi - 110006
(d) Smt. Rajni Jain,
W/o Sh. Umed Kumar Jain,
D/o Late Sh. Prem Chand Jain,
R/o 5022, Gali Jai Siya Ram,
Pahari Dhiraj, Delhi - 110006
3. LATE SH. PRAKASH CHAND JAIN (died on 03.12.2006)
Through his legal heir-
(i) Sh. Ashish Jain
S/o Late Sh. Prakash Chand Jain
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R/o House no. 3545, Second Floor,
Gali Hanuman Mandir,
Subzi Mandi, Delhi - 110007
4. SH. SURESH CHAND JAIN
S/o Late Sh. Latoo Mal Jain
Defendant No. 2 to 4 residents of House no. 3545 (First &
Second Floors), Gali Hanuman Mandir, Subzi Mandi Main
Bazar, Delhi.
5. SMT. KANTA DEVI JAIN
W/o Sh. Sultan Singh Jain,
R/o House No. 40,
Bhogal, New Delhi.
6. SMT. SHEELA DEVI JAIN (Proceeded ex-parte on 07.10.1993)
W/o Sh. Narinder Kumar Jain,
R/o 3840, Pahari Dhiraj,
Gali Jain Mandir, Delhi
7. LATE SMT. RATTAN MALA JAIN (expired on 06.05.2015)
W/o Late Sh. Roop Chand Jain,
R/o House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(a) Sh. Taween Kumar Jain
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House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(b) Ms. Neera Rani Jain
D/o Late Sh. Roop Chand Jain,
House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(c) Ms. Raashi Jain (Pichoo Jain)
D/o Late Sh. Roop Chand Jain
House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(d) Ms. Gunj Lata
D/o Late Sh. Roop Chand Jain
House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
(e) Ms. Raashmi Gupta
D/o Late Sh. Roop Chand Jain
House No. 3545 (G.F.),
Gali Hanuman Mandir,
Subzi Mandi Main Bazar, Delhi
............... Defendants
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Date of Institution of suit : 18.12.1987
Date of Reservation of judgment : 03.06.2024
Date of Pronouncement of judgment : 22.07.2024
JUDGMENT
1. By this judgment, this court shall decide the present suit for Declaration, Partition and Rendition of Accounts filed by the Plaintiff against the Defendants.
Plaintiff Case:
2. Facts of the case as per the averments made in the plaint by the Plaintiff that there was a HUF consisting of Sh. Jagdish Pershad and his two brothers, namely Sh. Deputy Mal and Sh. Latto Mal, which was disrupted and a partition was affected between the partners on 29.08.1957. In terms of the said partition, Sh. Latto Mal and his LRs were allotted the following properties:
(a) house no. 3545, Ward no. XII, Gali ChhabjuLoharwali and Gali Hanuman Mandir, Subzi Mandi, Delhi (area 220 sq. yds.)
(b)House no. 247/249 and 256/262, Ward XV, (which included six shops), Gali Halwaiwali, Paharganj, Delhi.
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Latto Mal Jain (died on 05.11.1986)
Roop Prem Prakash Suresh Smt. Kanta Smt.
Chand Chand Jain Chand Jain Chand Jain Devi Jain Sheela
Jain (Son) (Son) (son) (daughter) Devi
(Son) Defendant Defendant Defendant Defendant Jain
Defend no. 2 no. 3 no. 4 no. 5 (daught
ant no. er)
1 Defend
ant no.
6
LRs of Defendant no. 1
1. Smt. Rattan Mala Jain (Wife)
2. Taween Kumar Jain (Son)
3. Ms. Neera Rani Jain
4. Ms. Gunj Lata Jain
5. Ms. Rashmi Rani Jain
6. Ms. Pichoo Rani Jain
3. It has been averred by the Plaintiff that Sh. Latoo Mal constituted a HUF consisting of himself and his sons, i.e., Defendants no. 1 to 4. The Defendant no. 2 filed a partition suit against Defendants No. 1, 3, to 6 and his father in the court of the District Judge, Delhi, bearing suit no. 218/82 (new number 116/85) seeking relief of partition of ancestral HUF properties bearing municipal no. 3545, Gali Hanuman Mandir, Subzi Mandi, Delhi, and premises bearing no. 259, 260, 261 and 262, Gali Halwai, Paharganj, New Delhi, and a preliminary decree for partition was passed on 28.02.1983. A local commissioner was appointed to suggest the mode of partition of the properties in suit.
4. It has been alleged by the Plaintiff that the relationship between the Defendant no. 1 and his wife (Defendant no. 7) was not good, and several complaints and litigations were going on between them. The mother of the Plaintiff filed an application under Order 1 Rule 10 read with Section 151 CPC on 06.02.1984 in the abovementioned suit to safeguard the interests of her Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 11 of 127 children in the HUF properties. At the time, the fact of the pendency of the partition suit came to her knowledge, but the names of the children were not mentioned in the application.
Therefore, vide order dated 29.01.1985, the Ld. ADJ directed Smt. Rattan Mala Jain to file a supplementary application mentioning the names and ages of the children. Thereafter, a composite application for impleading the Plaintiff and his sisters was filed by Smt. Rattan Mala Jain on 04.03.1985 which was dismissed by the Ld. ADJ vide order dated 19.11.1985 on the ground that, as the husband is alive, the wife and children have no right to the ancestral properties of the husbandand the suit for partition was decreed.
5. As per the averments of the plaint, thereafter, upon the report of the Ld. Local Commissioner dated 30.05.1983, Defendant No. 1 and his LRs were given a property at Paharganj, which consists of three small tenanted shops on the ground floor and a small room with a broken roof on the first floor, which was under the occupancy of the tenants for ₹.44/- as monthly rent. Whereas, the ground floor of the property at Gali Hanuman Mandir where the Plaintiff was residing with his mother and sisters was divided between Defendant no. 2,3 and 4.
6. Plaintiff has further alleged that the Defendants no. 1 to 4 and the late Sh. Latoo Mal Jain sold the HUF shops and houses bearing nos. 256,257,258 and 247,248 and 249, Gali Halwaiwali, Paharganj and the proceeds of the same were invested in various HUF businesses. The rents received from the shops were realised by Defendant no. 2 and were utilised in various HUF businesses.
Judgment dt. 22.07.2024
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The immovable properties owned by the joint HUF are as under-
(i)Haveli No. 3545, Ward No. 12, Gali Chajju Loharwaliand Gali Hanuman Mandir wali, near post office, Subzi Mandi, Delhi (220 se. yds.)
(ii)No. 247 to 249 and 256 to 262 ward No. XV with six shops Gali Halwaiwali, Paharganj, Delhi (120 sq. yds.)
(iii)Shops of HUF purchased from the funds of business of HUF by the Karta Sh. Latoo Mal Jain one in the name of HUF Firm M/s Latto Mal Nanu Ram Jain bearing Municipal Nos. 217, Block A, New Subzi Mandi Market, Azadpur, Delhi; and other bearing municipal no. 83, block C, New Subzi Mandi Market, Azadpur, Delhi in the name of Sh.
Prem Chand Jain, member of HUF from the funds and business of HUF.
(iv)One MIG Flat under DDA's Rohini Scheme booked from HUF fund by Sh. Latto Mal, karta of HUF in the name of Sh. Raj Kumar S/o Sh. Prem Chand vide application no. 51328 dated 25.04.1981.
(v)One rented shop no. 172, Main Bazar, Subzi Mandi, Delhi in the name of Sh. Prem Chand Jain, member of HUF Family in which a HUF business in the name of M/s R.C. Jain & Co. is being carried out.
7. The following movable properties owned by HUF are as under-
(i) Ancestral jewellery, ornaments, precious stones, silver utensils etc of HUF kept in safe lockers of various banks and in personal possessions of Defendant no. 1 to 4. Details of lockers are as under:
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S.No Name Name of Bank Locker no.
(i) Latto Mal Jain Central Bank of India, 1796
Prem Chand Jain Chandni Chowk
(ii) Latto Mal Jain UCO Bank, Ghanta- 97
Roop Chand Jain Ghar, Subzi Mandi
(iii) Prakash Chand Jain --------do---------- 42
(iv) Bimal Devi W/o --------do---------- 172
Prem Chand Jain
(v) Suresh Chand Jain --------do---------- 215
(ii)Cash of HUF in various bank accounts i.e. UCO Bank, (S.B. A/c No. 9959) Subzi Mandi, Delhi, Central Bank of India, Subzi Mandi, Delhi, Union Bank of India, Subzi Mandi, Delhi, State Bank of India, Rana Pratap Bagh, Delhi.
(iii). HUF money invested in various bonds of Reeserve Bank of India and other banks as fixed deposits.
(iv). Various house-hold goods of HUF i.e. Refrigerators, Air-Coolers, Televisions etc.
(v). Four nos. two wheeler scooters in the name of joint Hindu Family Members i.e. DLO 1814, DEO 9926, 8189 and 1184.
8. It has further been averred by the Plaintiff that the HUF business run with the funds available from the HUF, including the amounts realised by shops and houses sold at Paharganj, and the rent realised (particulars of businesses), is as under:
1. M/s Seth Latoo Mal Nanu Ram Jain, New AzadpurSubzi Mandi, Delhi, carrying on the business of all kinds of fruits, merchants and commission agents with other businesses.
2. M/s Seth Latoo Mal and Pawan Kumar, 4200 Arya Pura, Subzi Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 14 of 127 Mandi, Delhi Carrying on business of fruit merchants and commission agents with other goods.
3. M/s Seth Latoo Mal Nanu Ram & Co. with its shop at 4200 Aryapura, Subzi Mandi, Delhi carrying on business of purchase, sale and commission agents of fresh fruits and vegetable and other businesses.
4. M/s jain Fruit Co., 4200, Aryapura, Subzi Mandi and shop at B-
152, New Subzi Mandi, Azadpur, Delhi dealing in fuir merchants, commission agents and other items.
5. M/s R.C. Jain & Co.
172, Main Bazar Subzi Mandi, Delhi, dealing in purchase and sale of electric goods etc.
9. It is stated by the Plaintiff that the Defendant no. 1 was inimical towards his wife and children and was incapable of looking after their interests. The partition was absolutely inequitable, unjust, unfair, and one-sided, as Defendant no. 1 got the tenanted premises at Paharganj from which a total amount of Rs. 44/- was being realised as rent, whereas the Defendants no. 2 to 4 got the vacant possession of the premises at Gali Hanuman Mandir.
10. Aggrieved by the order dated 19.11.1985, the Plaintiff, his mother, and sisters filed a revision petition bearing C.R. No. 1044/85 in the Hon'ble High Court of Delhi, which was admitted, and an interim order was granted in favour of the Plaintiff, his mother, and sisters by restraining Defendants and the late Sh. Latto Mal Jain from dispossessing them from the ground floor of the property at Gali Hanuman Mandir in terms of the order dated 06.12.1985 and the stay was confirmed later on.
Judgment dt. 22.07.2024
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11. On 03.02.1986, the Plaintiff, his mother, and sisters were dispossessed from the ground floor of Gali Hanuman Mandir; however, they were put back in possession on 05.02.1986 vide Court order. A contempt petition was filed against Defendants no. 1, 2, 4, and three others, and the said persons were held guilty of contempt vide order dated. 10.08.1987 and were fined Rs. 3000/-. The revision petition was dismissed vide order dated 24.11.1987 being not maintainable since the decree for partition had already been passed and remedy lies in a fresh suit challenging the partition. Hence, this suit has been filed with the following prayers:
(a) pass a decree of declaration declaring that the partition affected by judgment and decree dt. 19.11.1985 is null and void and unenforceable and not binding on the Plaintiff ;
(b) pass a decree for partition of the properties belonging to the HUF enlisted in schedule A & B to the plaint after declaring the share of the respective parties and ascertaining the mode of partition through appointment of local commissioner or otherwise as deemed fit and proper;
(c) direct the Defendants to render accounts in respect of the HUF business enlisted in Schedule C to the plaint;
(d) appoint a Local Commissioner to go into the accounts of the HUF businesses and on the basis of the report of the Local Commissioner pass a decree for the amounts found due to the Plaintiff; and Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 16 of 127
(e) award costs in favour of the Plaintiff and against the Defendants.
Written Statement Filed On Behalf Of Defendant No. 1
12. A written statement to the plaint was filed on behalf of Defendant no. 1, wherein it was contended that Smt. Ratan Mala Jain (Defendant No. 7) is not in blood relations with the other Defendants and she should be deleted from the list of Defendants. In the revision case no. 1044/85 filed by Smt. Ratan Mala, it was ordered that only minor males can reopen the partition suit while the Plaintiff is major as of date.
13. It is submitted by the Defendant No.1 that Sh. Latto Mal Jain has not made any property or house from his income, only the partnership business having the partners Sh. Nanu Ram Jain and his sons Sh. Pawan Kumar Jain was there in the name of M/s Latto Mal Nanu Ram Jain or Seth Latto Mal Nanu Ram Jain, 4200, Arya Pura, Subzi Mandi, Delhi. The partnership deed also mentioned the percentage of profit and loss according to the investment made by both the parties.
14. Defendant no. 1 submitted that he was carrying his separate business in the rented shop no. 172, Main Market, Subzi Mandi, Delhi under the name of M/s R.C. Jain & Co. carrying the business of Usha Sales Dealership dealing in Fans and sewing machines.It has also been averred that later on the firm Latto Mal Jain Nanu Ram was dissolved before partition of HUF properties.
Judgment dt. 22.07.2024
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Reply of annexure A
(i) House no. 3545, Gali Hanuman Mandir is an
ancestral house which was constructed by Sh. Sanwal Das Jain and due to partition of HUF Family properties, the same came into the share of Sh. Prem Chand Jain, Sh.Prakash Chand Jain and Sh. Suresh Chand Jain.
(ii) Shop nos. 259, 260,261 and 262 came into the share of Defendant no. 1 while shop no. 247 to 249 and 256 to 258 were sold by Sh. Latto Mal Jain 20 to 25 years ago.
(iii) Shop no. 172, Main Bazar, Subzi Mandi is a rental shop and Defendant no. 1 was carrying his partnership business under the name and style of M/s R.C. Jain & Co. in which Sh. Prem Chand Jain was a sleeping partner. The rent receipt of the said shop was issued in the name of Sh. Prem Chand Jain.
Reply to Annexure B
(i) Locker no. 1796, Central Bank of India was lying empty.
(ii) No account in the name of Defendant no. 1 was there in the banks like UCO Bank, State Bank of India, Subzi Mandi and Pratap Nagar Branch.
(iii) Defendant no. 1 was having only one bond of the Reserve Bank of India for an amount of Rs 250/- and yearly interest comes to Rs. 6.15 only.
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(iv) Defendant no. 1 is residing at house no. 4462, Aryapura, Delhi and left the house no. 3545, Gali Hanuman Mandir after the partition decree passed by the Court.
(v) No two wheeler is in his name.
Reply to Annexure C
Except the firm M/s R.C. Jain & co., the Defendant no. 1 was not the partner of any firm. The Shop no. B-152, New Subzi Mandi Azadpur is in the name of M/s Latto Mal Nanu Ram Jain which is now divided shop and half of the same has gone to the son of Nanu Ram Jain.
Reply on Merits by Defendant No. 115. It was contended that the suit for partition was not a collusive suit and the Plaintiff cannot seek rendition of accounts as family is a divided one on 08.02.83 by the Court's order and therefore, it was prayed that the suit may be dismissed with a heavy cost in favour of the Defendants.
Written Statement Filed On Behalf Of Defendant No.2
16. Defendant No. 2 denied the claims of the Plaintiff and submitted that there was no HUF and his income was separate as he was carrying on the business of hiring loud speakers at rented shop No. 172. Thereafter, he also did business as a general merchant and a cloth merchant in rented shop No. 172. Thereafter, carry out the fruit business however the same was closed. The profit was invested in fixed deposit accounts, post offices, and life insurance company bearing no. 46776 was also Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 19 of 127 dropped and bonds were purchased.It has further been contended by the Defendant No. 2 that the rent received from the Paharganj property was received by Defendant no.1 Sh. Roop Chand Jain.
Written Statement Filed On Behalf Of Defendants No. 3 To 5
17. Joint written statement was filed on behalf of Defendants no. 3 to 5 wherein preliminary objections were taken by them. It was stated that the Plaintiff has not valued his suit properly. The suit has not been filed within the limitation. The suit is bad for non-joinder and mis-joinder of necessary parties. The Plaintiff has no locus standi to file the present suit during the lifetime of Defendant no. 1. The Plaintiff has been estopped from challenging the decree passed in the earlier suit for partition amongst Defendants no. 1 to 4 as the final decree has been passed with the consent and knowledge of Defendant no. 1.
Reply on merits
18. The defendants denied all the averments made in the plaint. It has been contended by the Defendants that there was no HUF amongst the family members of Sh. Latto Mal as all of them were living separately, and the properties that fell into the share of Sh. Latto Mal vide partition in 1957 were the joint properties of the family of Sh. Latto Mal and Sons. It has been denied that the relations of the Defendant no. 1 with his wife and the children were strained. As per the joint WS, neither the Plaintiff nor Defendant no. 7 are residing in the property bearing no. 3545, Gali Hanuman Mandir, Subzi Mandi, Delhi but they are living at house no. 105, Baird road, Gole Market, New Delhi. There was no share allotted to the heirs of Defendant No. 1, as Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 20 of 127 he, being the head of his branch, was impleaded as party to the case, being the son of Sh. Latto Mal Jain. It was denied that Defendants no. 3 to 5 sold any part of the property, and the properties available were the subject matter of the partition suit and were divided amongst the parties to the suit who were otherwise entitled to get a share therein.
Stand of Defendants No. 3 to 5, in response to annexure A-
(i) House no. 3545, Ward no. 12, Gali Chhajja Lahar Wali was the joint property of Defendants no. 1 to 4 and Sh. Latto Mal. The same is in occupation of Defendant no. 1 and his family.No movable properties was owned by any alleged HUF. All the members of the family are owning their individual properties were purchased the same from their own income/sources or acquired from their own sources. Rest of the contents of annexure 'C' were denied by the Defendants no. 3 to 5.
(ii)None of the properties mention in Annexure 'B' belong to any HUF.
Reply to Annexure 'C'
(i) M/s Seth Latto Mal Nanu Ram Jain is a partnership business of Sh. Prakash Chand and Sh. Suresh Chand only. Rest of the contents of annexure 'C' were denied by the Defendants no. 3 to 5. The Plaintiff is not entitled to claim any rendition of accounts from the answering Defendants as no HUF properties/business exist.
(ii) The share of Latto Mal after his death on 05.11.1986 has devolved upon Sh. Suresh Chand, Defendant no 4 alone by virtue of the Will executed by him in his favour and as such Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 21 of 127 name of the Defendant has got any concern with the same. Hence, it was prayed that the suit of the Plaintiff may be dismissed with costs.
Written Statement Was Not Filed On Behalf Of Defendant No. 6 And Hence, Defendant No. 6 Was Proceeded With Ex-Parte On 07.10.1993.
Written Statement On Behalf Of Defendant No. 719. Written statement was filed on behalf of Defendant no. 7 (mother of the Plaintiff) and supported the case of the Plaintiff and submitted that the list of properties and businesses as mentioned in annexures A and C of the plaint are not complete. The properties and businesses are as under-
(i) Being shop no. 4200, Aryapura, Subzi Mandi, Delhi.
(ii) HUF Firm, Pawan Kumar Prakash Chand Jain, carrying out business as Commission Agents for fruits.
(iii) Firm S.S. Textiles, 19, Pal Market, Chandni Chowk, Delhi- 110006, carrying on business of whole sale cloth dealers and being in the nature of HUF property of late Sh. Latto Mal Jain.
(iv) HUF Firm Suresh and Co. 172, Main Bazar Subzi Mandi, Delhi.
Replications
20. Replication to the written statement of Defendant no. 1 was filed by the Plaintiff wherein all the contentions made by the defendant were denied and reiterated all the averments as Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 22 of 127 mentioned in the plaint. Further, replication to the written statement of Defendant no. 2 was also filed on behalf of the Plaintiff and denied all the counter allegations made in the written Statement. It has further been denied by the Plaintiff that there is no HUF business of property on the ground that the Defendant no. 2 has no independent source of income and whatever business he carried on was from the HUF Funds.
Issues
21. After completion of pleadings, the following issues were framed on 29.10.1996:
(1) Whether the Plaintiff has no locus standi to file the suit?
(2) Whether the suit is barred by time? (3) Whether the suit has been properly valued for the purposes of court fee and jurisdiction?
(4) Whether the suit is bad for non-joinder and mis-joinder of parties?
(5) Whether the Plaintiff is estopped from challenging the decree dt. 19.11.1985 in suit no. 116/85 which merged in the decision in Civil Revision no. 1044/85?
(6) Whether the partition effected by judgment and decree dt. 19.11.1985 is collusive, null and void, uneforceable and not binding on the Plaintiff?
(7) Whether businesses mentioned in
Judgment dt. 22.07.2024
CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 23 of 127
Annexure 'C' are HUF or ancestral
businesses?
(8) In respect of what properties is the Plaintiff entitled to relief of partition or rendition of account?
(9) Relief.
Evidence:
21. To prove his case Plaintiff entered into witness box and tendered his evidence affidavit as Ex. PW-1/A and relied upon the following documents (also relied upon the documents relied upon by Defendant no. 7 i.e. mother of the Plaintiff)-
S.No Exhibit/ Mark No. Description of Documents
1. Ex. PW-1/1 Certified copy of affidavit of Sh. Roop Chand Jain filed before Hon'ble Supreme Court of India (SLP No. 3478/1988)
2. Ex. PW-1/2 Copy of order dt. 28.02.1983 passed by Ld. ADJ, Tis Hazari
3. Ex. PW-1/3 Copy of election ID Card of Plaintiff
4. Ex. PW-1/4 Original copy of notice of motion in SLP no. 3478
5. Ex. PW-1/5 Original envelope of notice of motion on Hon'ble Supreme Court in SLP delivered to Plaintiff
6. Ex. PW-1/6 Annexure A of suit no. 2813/17
7. Ex. PW-1/7 Original receipt no. 21926, application no. 51328 dt.
25.04.1981
8. Ex. PW-1/8 Annexure B of suit no. 2813/17
9. Ex. PW-1/9 Annexure C of suit no. 2813/17
10. Ex. PW-1/10 Certified copy of application filed in DDA for plot no. B-
Judgment dt. 22.07.2024
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152, New Subzi Mandi,
Azadpur, by Sh. Latto Mal Jain
11. Ex. PW-1/11 Certified copy of letter dt.
24.11.1969 by DDA to Sh.
Latto Mal Jain regarding plot
in new Subzi Mandi, Delhi
12. Ex. PW-1/12 Certified copy of forwarding
letter by DDA to Sh. Latto Mal
Jain regarding issuance of plot
in New Subzi Mandi Delhi
13 Ex. PW-1/13 Certified copy of perpetual
lease between DDA and Sh.
Latto Mal Jain
14. Ex. PW-1/14 Documentation charges receipt
for DDA documents.
15. Ex. PW-1/15 Telephone directory of New
Azadpur Subzi Mandi showing
the working of HUF Firms at
Shop no. B-152, New Subzi
Mandi, Delhi.
16. Ex. PW-1/16 Copy of partnership deed of
HUF Firms M/s Latto Mal
Nanu Ram Jain
17. Ex. PW-1/17 Copy of partnership deed of
HUF Firm M/s Latto Mal
Pawan Kumar.
18. Ex. PW-1/18 Copy of partnership deed of
HUF Firm M/s Latto Mal Nanu
Ram & Company
19. Ex. PW-1/19 Copy of Partnership deed of
HUF Firm M/s R.C. Jain & Co.
20. Ex. PW-1/20 Copy of partnership deed of
HUF Firm M/s Jain Fruit
Company.
21. Ex. PW-1/21 Copy of partnership deed of
HUF Firm M/s S.S. Textiles
22. Ex. PW-1/22 Certified copy of house tax
assessment for the year 1957 of
House no. 247-249, Paharganj,
Delhi.
23. Ex. PW-1/23 Certified copy of house tax
assessment year 1957 of house
Judgment dt. 22.07.2024
CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 25 of 127 no. 256-259, Paharganj, Delhi.
24. Ex. PW-1/24 Certified copy of house tax assessment year 1957 of House no. 260-262, Paharganj, Delhi.
25. Ex. PW-1/25 Certified copy of house tax assessment year 1996-97 of house no. 247-249, Paharganj, Delhi.
26. Ex. PW-1/26 Certified copy of house tax assessment year 1996-97 of house no. 256-258, Paharganj, Delhi.
27. Ex. PW-1/27 Certified copy of house tax assessment year - 1996-97 of house no. 259-262, Paharganj, Delhi.
28. Ex. PW-1/28 Original receipt for documentation charges.
29. Ex. PW-1/29 Report of Local Commissioner Sh. S.K. Somani in suit no.116/85
30. Ex. P-1 Copy of final decree dt.29.08.1957 in suit no. 140/57
31 Ex. P-2 Copy of registry detail of final decree dt. 29.08.1957 32 Ex. P-3 Copy of application under Order I Rule 10 CPC dt.
06.02.1984 filed by Defendant no. 7 Smt. Ratanmala Jain.
33. Ex. P-4 Copy of affidavit filed with application under Order I Rule 10 CPC
34. Ex. P-5 Copy of supplementary application I Rule 10 CPC dt.
04.03.1985
35. Ex. P-6 Copy of affidavit of Smt. Ratan Mala Jain filed with Supplementary application I Rule 10 CPC
36. Ex. P-7 Copy of order dt. 19.11.1985 in suit no. 116/85
37. Ex. P-8 Copy of report of local Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 26 of 127 commissioner Sh. S.K. Somani dt. 30.05.1983.
38. Ex. P-9 Copy of the site map drawn by LC of H.No. 3545, Subzi Mandi, Delhi.
39. Ex. P-10 Copy of site map drawn by LC of Gali Halwai Wali, Paharganj, Delhi.
40. Ex. P-11 Copy of order dt. 13.09.1968 passed by Hon'ble Court of Sh.
S.C. Jain, Tis Hazari Courts, Delhi.
41. Ex. P-12 Copy of order of Hon'ble High Court dt. 08.11.1968 rejecting appeal filed against order dt.
13.09.1968
42. Ex. P-13 Copy of order dt. 26.07.1982 passed by Sh. J.D. Kapoor, Ld. ADJ, Tis Hazari Courts, Delhi.
43. Ex. P-14 Copy of order dt. 10.08.1987 passed by Hon'ble High Court in CCP 24/86.
44. Ex. P-15 Copy of order dt. 24.11.1987 passed by Hon'ble High Court in C.R. No. 1044/85
45. Ex. P-16 Copy of reply of Sh. Prem Chand dt. 31.10.1985 in suit no. 116/85.
46. Ex. P-17 Copy of Ration Card of Plaintiff at 3545, Gali Hanuman Mandir, Subzi Mandi, Delhi
47. Ex. P-18 Copy of complaint by Sh. Latto Mal Jain dt. 08.09.1982 stating Plaintiff resides at 3545, Gali Hanuman Mandir, Subzi Mandi, Delhi
48. Ex. P-19 Copy of summons to Plaintiff by Hon'ble Magistrate, Tis Hazari Courts, Delhi dt.
14.04.1982 received by
Plaintiff at his residence i.e.
Judgment dt. 22.07.2024
CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 27 of 127
3545, Gali Hanuman Mandir,
Subzi Mandi, Delhi
49. Ex. P-20 Certified copy of Final decree
dt. 29.08.1957
50. Ex. P-21 Certified copy of registry detail
final decree dt. 29.08.1957
51. Ex. P-22 Certified copy of partition suit
no. 116/85
52. Ex. P-23 Copy of written statement dt.
27.01.1983 filed in suit no.
116/85
53. Ex. P-24 Certified copy of application
u/O I rule 10 CPC dt.
06.02.1984 filed by mother of
the Plaintiff
54. Ex. P-25 Certified copy of
supplementary application u/O
I Rule 10 CPC dt. 04.03.1985
filed by mother of Plaintiff
55. Ex. P-26 Certified copy of order dt.
19.11.1985 in suit no. 116/85
56. Ex. P-27 Certified copy of report of
local commissioner Sh. S.K.
Somani dt. 30.05.1983
57. Ex. P-28 Order dt. 13.09.1968 of Sh.
S.C. Jain, Tis Hazari Courts,
Delhi in suit no. 128/68.
58. Ex. P-29 Copying agency receipt dt.
29.08.1987.
59. Ex.P-30 Certified copy of order dt.
08.11.1968 of Delhi High
Court rejecting the appeal filed
against order dt. 13.09.1968.
60. Ex. P-31 Order dt. 04.02.1981 of special
Ex. Magistrate, Subzi Mandi,
Delhi
61. Ex. P-32 Certified copy of order dt.
26.07.1982 passed by Ld. Add.
Dist. Judge, Delhi upholding
the order dt. 04.02.1981
62. Ex.P-33 Certified copy of order dt.
10.08.1987 in C.C. P. no.
Judgment dt. 22.07.2024
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24/1986
63. Ex. P-34 Certified copy of order dt.
24.11.1987 in C.R. No.
1044/85.
64. Ex. P-35 Copy of ration card of Plaintiff
showing his residential addrss
as 3545, Gali Hanuman
Mandir, Subzi Mandi, Delhi
65. Ex. P-36 Detail of Ration Card of
Plaintiff.
66. Ex.P-37 Detail of ration card of Plaintiff
67. Ex. P-38 Certified copy of reply by Sh.
Prem Chand in collusive suit
no. 116/85
68. Ex. P-39 Certified copy of complaint dt.
08.09.1982 of Sh. Latto Mal
Jain Proving Plaintiff address
as 3545, Gali Hanuman
Mandir, Subzi Mandi, Delhi.
69. Ex. P-40 English Translation of
complaint of Sh. Latto Mal dt.
08.09.1982.
70. Ex. P-41 Original summons dt.
14.04.1982 issued by
Magistrate, Tis Hazari to
Plaintiff
71. Ex. P-42 Certified copy of FIR No.
1379/79 lodged by Plaintiff
against his father
72. Ex. P-43 Certified copy of complaint dt.
13.09.1979 lodged by Plaintiff
against his father
73. Ex. P-44 Copy of complaint dt.
26.08.1986 lodge by Plaintiff
against his father and
Defendant no. 4 in PS Subzi
Mandi
74. Ex.P-45 Certified copy of order dt.
16.09.1985 in suit 116/85
75. Ex. D7/1 Copy of complaint dt.
28.05.1980 to SHO, Subzi
Mandi by Defendant no. 7
Judgment dt. 22.07.2024
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against Defendant no. 1 and 4
76. Ex. D7/2 Copy of complaint dt.
13.07.1980 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1 and 4
77. Ex. D7/3 Copy of complaint dt.
13.08.1990 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1.
78. Ex. D7/4 Copy of complaint dt.
27.08.1980 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1 and 4
79. Ex. D7/5 Complaint under Section
406/120 IPC filed by
Defendant no. 7 against
Defendant no. 2,5 and 6.
80. Ex. D7/6 Copy of complaint dt.
25.08.1982 to SHO, Subzi
Mandi by Defendant no. 7
against sons of Defendant no. 2
and Defendant no. 4.
81. Ex. D7/7 Complaint dt. 04.09.1982 to
SHO, Subzi Mandi by
Defendant no. 7 against
Defendant no. 1,2 and 4.
82. Ex. D7/8 Copy of petition under Section
13 of HMA dt. 13.09.1982
filed on behalf of Defendant
no. 1 against Defendant no. 7.
83. Ex. D7/9 Certified copy of order dt.
01.03.1984 in petition under
Section 13 of HMA.
84. Ex. D7/10 Copy of complaint dt.
30.06.1983 to SHO, Subzi
Mandi by Defendant no. 7.
85. Ex. D7/11 Complaint dt. 22.11.1985 to
SHO Subzi Mandi by
Defendant no. 7 against
Defendant no. 1 and 2.
86. Ex. D7/12 Complaint dt. 04.02.1986 to
ACP, Subzi Mandi by
Judgment dt. 22.07.2024
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Defendant no. 7 against
Defendant no. 1,2 and 4.
87. Ex. D7/13 Copy of FIR no. 48/86 dt.
03.02.1986 by Defendant no. 7
against Defendant no. 1,2 and
4.
88. Ex. D7/14 Extract from Electoral Roll
including Defendant no. 7
89. Ex. D7/15 Copy of ration card of
Defendant no. 7
90. Ex. D7/16 Copy of summon from the
Hon'ble Court of MM to
Defendant no. 7.
91. Ex. D7/17 Copy of complaint dt.
08.09.1982 to SHO Subzi
Mandi by Sh. Latto Mal
92. Ex. D7/18 Certified copy of stay order
issued by Hon'ble Supreme
Court of India dt. 03.10.1988 in
SLP of Mrs. Ratanmala Jain
93. Ex. D7/19 Copy of affidavit filed by
Defendant no. 7 before
Hon'ble Supreme Court.
94. Ex. D7/20 Application filed by Defendant
no. 7 in Hon'ble Supreme
Court.
95. Ex. D7/21 Affidavit with application filed
by Defendant 7 in Hon'ble
Supreme Court.
96. Ex. D7/22 Copy of FIR no. 1379 dt.
19/08/1979 lodged by Plaintiff
against Defendant no. 1
97. Ex. D7/23 Copy of summons dt.
03.06.1983 to Defendant no. 7
98. Ex.D7/24 Copy of complaint dt.
20.04.1984 filed by Ms. Neera
Jain against Defendant no. 1
99. Ex. D7/25 Copy of complaint dt.
28.05.1980 filed by Defendant
no. 7 against Defendant no. 1
and 4.
100. Ex.D7/26 Copy of complaint dt.
Judgment dt. 22.07.2024
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13.07.1980 to SHO Subzi
Mandi by Defendant no. 7
against Defendant no. 1 and
Defendant no. 4.
101. Ex. D7/27 Copy of complaint dt.
13.08.1980 to SHO Subzi
Mandi by Defendant no. 7
against Defendant no. 1.
102 Ex. D7/28 Copy of complaint dt.
27.08.1980 to SHO Subzi
Mandi by Defendant no. 7
against Defendant no. 1.
103. Ex. D7/29 Memo of parties of the suit
before Special Executive
Magistrate of Asstt.
Commissioner of Police, Sub-
Dis. Subzi Mandi, Delhi.
104 Ex. D7/30 Copy of order dt. 04.02.1981
passed by Special Executive
Magistrate of Asstt.
Commissioner of Police, Sub-
Dis. Subzi Mandi, Delhi.
105. Ex. D7/31 Memo of parties in appeal filed
against order dt. 04.02.1981 by
Special Executive Magistrate
of Asstt. Commissioner of
Police, Sub-Dis. Subzi Mandi,
Delhi.
106. Ex. D7/32 Copy of order dt. 26.07.1982
passed by Ld. ASJ, Delhi
107. Ex. D7/33 Copy of complaint dt.
25.08.1982 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1 and 4.
108. Ex. D7/34 Copy of complaint dt.
04.09.1982 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1, 2 and
4.
109. Ex. D7/35 Copy of complaint dt.
30.06.1983 to SHO Subzi
Mandi by Defendant no. 7.
Judgment dt. 22.07.2024
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110. Ex. D7/36 Copy of Memo of Parties in
divorce case filed against
Defendant no. 7 by Defendant
no. 1.
111. Ex. D7/37 Copy of order dt. 01.03.1984 in
divorce case filed against
Defendant no. 7 by Defendant
no. 1.
112. Ex. D7/38 Copy of application under
Order I Rule 10 CPC filed by
Defendant no. 7 in suit no.
116/85
113. Ex. D7/39 Copy of affidavit filed with
application under Order I Rule
10 CPC by Defendant no. 7.
114. Ex. D7/40 Copy of supplementary
application under Order I Rule
10 CPC filed by Plaintiff and
other family members dt.
04.03.1986.
115. Ex. D7/41 Copy of affidavit filed with
Supplementary application
under Order I Rule 10 CPC.
116. Ex. D7/42 Copy of order dt. 16.09.1985
and 16.11.1985 passed by Ld.
ADJ, Tis Hazari, Delhi
117. Ex. D7/43 Copy of petition under Section
13 of HMA dt. 13.09.1982
118. Ex. D7/44 Copy of plaint of suit no.
116/85 dt. 15.09.1982.
119. Ex. D7/45 Copy of order dt. 13.09.1968 in
case no. 128/1968.
120. Ex. D7/46 Order dt. 08.11.1968 passed by
Hon'ble High Court of Delhi in
case no. 128/1968
121. Ex. D7/47 Copy of final decree dt.
29.08.1957 passed by Hon'ble
High Court in suit no.
140/1957
122. Ex. D7/48 Copy of registration record of
final decree dt. 29.08.1957.
123. Ex. D7/49 Copy of registration record of
Judgment dt. 22.07.2024
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final decree in suit no. 140/57
124. Ex. D7/50 Copy of FIR dt. 03.02.1986 by
Defendant no. 7 against
Defendant no. 1, 2 and 4.
125. Ex. D7/51 Copy of order dt. 05.02.1986 in
C.R. No. 1044/86.
126. Ex. D7/52 Copy of memo of parties in
contempt petition no. 24/1986
127. Ex. D7/53 Copy of order dt. 10.08.1987 in
Contempt Petition No.
24/1986.
128. Ex. D7/54 Copy of complaint dt.
09.10.1995 by the Defendant
no. 7 against Defendant no. 1,
2 and 4 etc.
129. Ex. D7/55 Copy of complaint dt.
27.10.1995 by the Defendant
no. 7 against Defendant no. 1
to 4.
130. Ex. D7/56 Copy of complaint dt.
08.09.1982 to SHO Subzi
Mandi by Sh. Latto Mal Jain .
131. Ex. D7/57 Extract from Electoral Roll of
Defendant no. 7
132. Ex. D7/58 Copy of ration card of Plaintiff
133. Ex. D7/59 Copy of election identity card
of Defendant no. 7.
134. Ex. D7/60 Copy of order dt. 01.11.1995
passed by Hon'ble Supreme
Court of India.
135. Ex. D7/61 Copy of election I Card of
Defendant no. 7
136. Ex. D7/62 Certified copy of affidavit filed
by Defendant no. 7 before
Hon'ble Supreme Court of
India
137. Ex. D7/63 Copy of application filed by
Defendant no. 7 before the
Hon'ble Supreme Court of
India.
138. Ex. D7/64 Certified Copy of affidavit with
application filed by Defendant
Judgment dt. 22.07.2024
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no. 7 before the Hon'ble
Supreme Court of India.
139. Ex. D7/65 Certified copy of FIR no. 1379
dt. 19.08.1979 by the Plaintiff
against Defendant no. 1.
140. Ex. D7/66 Certified copy of summons to
Defendant no. 7 from the Court
of Ld. MM, Delhi
141. Ex. D7/67 Certified copy of complaint dt.
20.04.1984 to SHO, Subzi
Mandi by Ms. Neera Jain
against Defendant no. 1.
142. Ex. D7/68 Copy of complaint dt.
28.05.1980 by Defendant no. 7
against Defendant no. 1 and 4.
143. Ex. D7/69 Copy of complaint dt.
13.07.1980 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1 and 4.
144. Ex. D7/70 Copy of complaint dt.
13.08.1990 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1.
145. Ex. D7/71 Copy of complaint dt.
27.08.1980 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1 and 4.
146. Ex. D7/72 Copy of memo of parties and
order sheet dt. 04.02.1981
passed by Special Executive
Magistrate, Subzi Mandi,
Delhi.
147. Ex. D7/73 Certified copy of memo of
parties in appeal filed by
Defendant no. 2 to 4 against
order dt. 04.02.1981.
148. Ex. D7/74 Certified copy of complaint dt.
25.08.1982 to SHO Subzi
Mandi by Defendant no. 7
against sons of Defendant no. 2
and Defendant no. 4.
149. Ex. D7/75 Certified copy of complaint dt.
Judgment dt. 22.07.2024
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04.09.1982 to SHO, Subzi
Mandi by Defendant no. 7
against Defendant no. 1 , 2 and
4 etc.
150. Ex. D7/76 Certified copy of complaint dt.
30.06.1983 to SHO Subzi
Mandi by Defendant no. 7.
151. Ex. D7/77 Certified copy of memo of
parties in divorce case filed
against Defendant no. 7 by
Defendant no. 1.
152. Ex. D7/78 Certified copy of order in
divorce case filed against
Defendant no. 7 by Defendant
no. 1.
154. Ex. D7/79 Certified copy of application
under Order I Rule 10 CPC
filed by Defendant no. 7 in suit
no. 116/85
155. Ex. D7/80 Certified copy of affidavit filed
with application under Order I
Rule 10 CPC by Defendant no.
7.
156. Ex. D7/81 Certified copy of
supplementary application
under Order I Rule 10 CPC
filed by Plaintiff and other
family members dt.
04.03.1986.
157. Ex. D7/82 Certified copy of affidavit filed
with Supplementary
application under Order I Rule
10 CPC.
158. Ex. D7/83 Certified copy of order dt.
16.09.1985 and 16.11.1985
passed by Ld. ADJ, Tis Hazari,
Delhi
159. Ex. D7/84 Certified copy of petition under
Section 13 of HMA dt.
13.09.1982
160. Ex. D7/85 Certified copy of plaint of suit
no. 116/85 dt. 15.09.1982.
Judgment dt. 22.07.2024
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161. Ex. D7/86 Certified copy of order dt.
13.09.1968 in case no.
128/1968.
162. Ex. D7/87 Certified copy of order dt.
08.11.1968 passed by Hon'ble
High Court of Delhi in case no.
128/1968
163. Ex. D7/88 Certified copy of final decree
dt. 29.08.1957 passed by
Hon'ble High Court in suit no.
140/1957
164. Ex. D7/89 Certified copy of registration
record of final decree dt.
29.08.1957.
165. Ex. D7/90 Certified copy of registration
record of final decree in suit
no. 140/57
166. Ex. D7/91 Certified copy of FIR dt.
03.02.1986 by Defendant no. 7
against Defendant no. 1, 2 and
4.
167. Ex.D7/92 Certified copy of order dt.
05.02.1986 in C.R. No.
1044/86.
168. Ex. D7/93 Certified copy of memo of
parties in contempt petition no.
24/1986
169. Ex. D7/94 Certified copy of order dt.
10.08.1987 in Contempt
Petition No. 24/1986.
170. Ex. D7/95 Certified copy of complaint dt.
09.10.1995 by the Defendant
no. 7 against Defendant no. 1,
2 and 4 etc.
171. Ex. D7/96 Certified copy of complaint dt.
27.10.1995 by the Defendant
no. 7 against Defendant no. 1
to 4.
172. Ex. D7/97 Certified copy of complaint dt.
08.09.1982 to SHO Subzi
Mandi by Sh. Latto Mal Jain .
173. Ex. D7/98 Certified copy of Extract from
Judgment dt. 22.07.2024
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Electoral Roll of Defendant no.
7
174. Ex. D7/99 Certified copy of ration card of
Plaintiff, his mother and other
family members
175. Ex. D7/100 Certified copy of election
identity card of Defendant no.
7.
176. Ex. D7/101 Certified copy of order dt.
01.11.1995 passed by Hon'ble
Supreme Court.
177. Ex.D7/102 Copy of charge sheet no. 48 dt.
04.02.1986 under Section 448
on complaint of Defendant no.
7 against Defendant no. 1,2 and
4 etc.
22. During cross examination PW1 has deposed in sync with the contentions of the plaint and denied the suggestion that there was no joint firm or jewellery or cash or joint business of HUF comprising of Sh. Jagdish Prasad, Sh. Deputy Mal and Sh. Latu Mal in the year 1957. The joint firm had been created after sale of six properties situated at Paharganj. PW1 deposed that the properties no. 247, 248, 249, 256, 257 and 258, situated at Gali Halwai, Paharganj, Delhi were sold to Sh. Munni Lal Bahl.
23. Sh. Latto Mal was doing business of trading in fruits since 1935. PW1 deposed that he does not know if Sh. Latto Mal was paying any income tax. He further deposed that his father Sh. Roop Chand Jain also used to work with his grandfather Sh. Latto Mal in his business and after the death of his grandfather rent was paid from the joint family funds. The shop bearing no. 172, Main Bazar, Subzi Mandi had taken on rent by his grandfather and joint business was done from the said shop Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 38 of 127 (mentioned in Ex. D-7/86 and Ex. D-7/87). PW1 stated that he is not having knowledge if any litigation had taken place in respect of shop bearing no. 172, Main Bazar, Sabzi Mandi and the landlord had filed any eviction petition only against Sh. Prem Chand. PW1 denied that the shop no. 172 was taken on rent by Mr. Prem Chand and he was doing independent business from the said shop.
24. PW1 deposed that Sh. Latto Mal was doing business in the year 1935. He was operating from shop no. 4 with MaqtoolAhmad. Sh. Latto Mal was an income tax payee; however, he could not tell the exact years. PW1 stated that he was paying income tax as Karta of HUF. He deposed that income tax was paid as HUF indirectly as he being the karta of the joint family. The shop bearing no. B-152 at Azadpur Mandi was allotted in lieu of shop no. 4, old Subzi Mandi and denied that the shop no. B-152 was allotted in the name of Sh. Latto Mal and deposed that it was allotted in the name of a joint Hindu family firm. PW1 further deposed that his father sold the shopsbearing no. 259 to 262, Gali Halwai, Paharganjand his signatures were obtained under force. Though PW1 denied having an idea about the area of these shops.
25. PW1 admitted that M/s Seth Latto MalNanuram Jain is a partnership concern consisting of family members, but members kept on changing to save income tax. PW1 further deposed that he does not remember the names of partners of M/s R.C. Jain & Company and also could not answer whether the firm came to an end after the death of Sh. Latto Mal. PW1 further deposed that Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 39 of 127 M/s Jain Fruit Company, 4200 Arya Pura, was also a partnership concern consisting of our family members. He denied the suggestion that M/s R.C. Jain & Company never worked at 172, Main Bazar, Sabzi Mandi, Delhi. PW1 further denied that Late. Latto Mal Jain was doing his independent business during his lifetime and all the sons were having separate households.
26. PW Sh. Naveen Rawat S/o Sh. P.S. Rawat, LDC, record room (criminal) Tis Hazari Court was examined as PW2. PW Sh. Jitender Sharma S/o Sh. Jamuna Das, LDC, Record Room (Civil) was examined as PW3. PW3 brought the documents, Ex. P-20. PW Sh. Bilochan Prasad, S/o Late Sh. Kanhiya Lal, Assistant, Record Room (Sessions), Tis Hazari Courts, Delhi, was examined as PW4. PW4 proved the documents Ex. PW1/2, 1/45, 1/22, 1/26, 1/29, and 1/38. PW4 further proved the original file of HMA Case No. 289/82 and proved the petition filed by Roop Chand Jain, Ex. D7/8. The copy of the order of Ld. ADJ dated 01.03.84 is Ex. D7/9. The copy of the petition filed by Roop Chand Jain is Ex. D7/8. The record of petition no. 72/81 (revision petition filed by Latto Mal Jain &Ors. vs. State) was decided on July 26, 1982, and the said record was weeded out, and the report of the Mauza Clerk is Ex. PW4/1.
27. PW Sh. Dayanidhi S/o Sh. Gauri Shankar, JR. Judicial Assistant, Record Room Branch, Delhi High Court was examined as PW5. PW5 proved the final order in FAO 176/1968 dated 08.11.1968 as Ex. PW5/1. Final order in FAO 176/1968 is marked as PW5/2. Final order in CR no. 1044/1985 is Ex. PW5/3.PW Mr. Rajender Prasad S/o Late Sh. Uday Ram, Junior Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 40 of 127 Court Assistant, Record Room, Hon'ble Supreme Court of India was examined as PW6. PW6 proved the documents already marked as Ex. PW1/1, Ex.D-7/18 and Ex. D-7/19.
28. Sh. Surender Narayan, Head Constable, 509, PS Subzi Mandi, Delhi was examined as PW7. He stated that the complaints dated 08.09.1982, 13.09.1979, 26.08.1988, 13.07.1988, 13.08.1988, 27.08.1988, 25.08.1982, 04.09.1982,22.11.1985, 04.02.1986 and 16.11.1984 not found in their station as the record upto 31.12.2006 were destroyed vide order passed by the ACP. The copy of order was marked as Mark X. The copy of FIR no. 48/1986u/S 448 IPC is Ex. PW7/1. Sh. Dharam Singh, Head Clerk, MCD, Civil Lines was examined as PW8. The documents issued by the MCD is Ex. PW8/1. The replies to the demand notices Ex. PW8/2 (two sheets which are self explanatory) done by partner on behalf of M/s Latto Mal Nanu Ram Jain, signed by partner.
29. Sh. A.K. Tiwari, Dealing Assistant, CL Branch, Vikas Sadan, INA, Delhi Development Authority was examined as PW9. PW9 has proved the documents Ex. PW1/10 i.e. application sl. no. 1958, Ex. PW1/11 i.e. carbon copy of letter dated 24.11.1969 addressed to Sh. Latto Mal, Ex. PW1/12 i.e. memo dated 28.12.1969, Ex. PW1/13 i.e. perpetual lease deed copy dated 26.06.1971 in favour of M/s Latto Mal Nanu Ram Jain. Ms. Sarita Bajaj, UDC, LAB Branch, Rohini, Delhi Development Authority was examined as PW10. PW10 has proved the document Ex. PW1/7 i.e. original receipt no. 21926, application no. 51328 dated 25.04.1981 and stated that the date of Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 41 of 127 allotment is 05.02.1990 and in the name of Sh. Raj Kumar Jain S/o Sh. Prem Chand Jain. A plot no. 127, Sector-3, Pocket-9, Rohini, Delhi measuring 90 sq. mts. was allotted to Sh. Raj Kumar Jain.
30. Sh. Mahesh Gulati, Deputy Secretary, APMC, Panchvati, New Azadpurt, Delhi, was examined as PW11. PW 11 stated that license no. B-6 was issued in the name of M/s Latto Mal Nanu Ram Jain for shop no. B-152, N.S. M. License No. B-5 was issued in the name of M/s Latoo Mal Nanu Ram for shop no. B- 152, N.S.M. and Co., and license no. B-2509 was issued in favour of M/s Latto Mal, Sanjay Kumar Jain, for shop no. B-152, N.S.M. Sh. Laxmi Narayan, Record Keeper, O/o Chief Electoral Office, Kashmere Gate, Delhi. PW12 proved the electoral extract showing the names of Smt. Ratan Mala Jain at Sl. No. 785 and Meera Rani Jain at Sl. No. 786 and marked as Ex. PW12/A.
31. Sh. Shriprakash, AZI, SP Zone, Sadar Park, MCD, Delhi- 6, was examined as PW-13, who proved the documents already exhibited as Ex. PW1/22 to Ex. PW1/27. PW13 stated that property bearing no. 247-249 and 256-258 stands in the name of Munni Lal Bahal, and property bearing no. 259-262/XV Gali Ghee Mandi, Paharganj, stands in the name of Latto Mal. Sh. Laxmi Narayan, Record Keeper, O/O Chief Electoral Officer, Kashmere Gate, Delhi, was examined as PW15. PW15 proved the voter ID card of Plaintiff already, Ex. PW1/3, Ex. D-7/61, and Ex. PW15/1, i.e., a certified copy of the voter list of constituency no. 64.
Judgment dt. 22.07.2024
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Defendants' Evidence
32. The affidavit of DWs Raj Kumar Jain and Sanjay Jain, respectively, was taken off the record via a statement and order dated 03.10.2016. Whereas, Defendant No. 4, Sh. Suresh Chand Jain, entered the witness box as DW2, and tendered his evidence affidavit as Ex. DW2/A, and relied upon the following documents already exhibited as Ex. DW1/1 to Ex. DW1/14, however, Ex. DW2/11 to Ex. DW2/13 were de-exhibited.
S.No Exhibit/ Mark No. Description of Documents
1. Ex. DW-2/1 & Ex. DW- Copy of Form A of 2/2 Registrar of Firm for the year 1948
2. Ex. DW-2/3 Partnership deed dated 22.09.1960.
3. Ex. DW-2/4 Partnership deed dated 04.10.1963.
4. Ex. DW-2/5 Dissolution deed dated 26.04.1982.
5. Ex. DW-2/6 Partnership deed 23.06.1982.
6. Ex. DW-2/7 Copy of perpetual lease deed (already Ex. D2/1)
7. Ex. DW-2/8 Certified copy of order dated 19.11.1985.
8. Ex. DW-2/9 Certified copy of the order dated 24.11.1987.
9. Ex. DW-2/10 Certified copy of the Supreme Court order.
33. In his evidence affidavit, DW2 has testified that no HUF, HUF business or HUF funds ever existed. It has further been deposed that Sh. Latto Mal and his brothers never remained joint and had separate businesses and residences. Sh. Latto Mal was carrying on his business dealing in fruits and vegetables at No. 4, Sabzi Mandi, Delhi, as a commission agent, of which he was Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 43 of 127 either the proprietor or a partner in the partnership firm. He also inducted partners in his commission agency business and formed partnerships since the year 1935. Sh. Latto Mal was an income tax assessee in his individual capacity and never filed income tax returns as the karta of a HUF, and his partnership business firm was also an assessee in the income tax.
34. It is deduced by DW2 that there was no element of HUF in his partnership firm, namely Latto MalNanuram Jain, Sethi Latto Mal Pawan Kumar, and Latto Mal Nanu Ram & Co.; whatever was invested by the respective partners was their self-acquired interest, and the said firm was carrying on business at Shop No. 4, Sabzi Mandi. In the year 1975, the Lt. Governor of Delhi Metropolitan Council decided to shift Sabzi Mandi to a new place, now known as New Sabzi Mandi, Azadpur, and Latto MalNanuram Jain, and allotted plot no. B-152 in place of shop no. 4, old Subzi Mandi. The Jain Fruit Company was a partnership firm in which Dulari Jain, Lalit Jain, Mona Jain, Sanjay Jain, Rajkumar Jain, and Vidyavati Jain were the partners. They were carrying on business at 4200, Arya Pura, Sabzi Mandi, Delhi, and Sh. Latto Mal Jain had no interest in the same and had nothing to do with B-152, New Sabzi Mandi, Azadpur.
35. It was also deposed that Sh. Roop Chand was engaged in a pharmaceutical company as a medical representative and was getting salary and commission. Sh. Roop Chand, after marriage, separated and lived with his wife at 105 Baired Road, Gole Market, Delhi. The property no. 3545, ground floor, is locked. No electricity has been consumed since the year 1985 onwards.
Judgment dt. 22.07.2024
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The firm R.C. Jain and Company was a proprietary concern of Sh. Roop Chand Jain and the Defendants no. 2 to 4, and Sh. Latto Mal had no interest therein. No MIG flat of DDA, Rohini, was booked by Sh. Latto Mal Jain in the name of Sh. Raj Kumar Jain. It was booked by Sh. Raj Kumar Jain with his own funds. The same has been sold by him since 1996. Since the head of the branch was substituted as per law, only Roop Chand Jain was substituted in the suit for partition.
36. During the cross-examination, DW2 deposed that Sh. Latto Mal was running a partnership business under the name and style of M/s Latto MalNanuram Jain. He never had any business as a sole proprietorship. He denied that M/s Latto MalNanuram Jain was a joint family business. The business remained the same even though there was a change in the partners, who were family members. He stated that he does not remember when he became a partner in M/s Latto Mal Nanuram Jain & Company and did not invest any capital in the partnership firm. He voluntarily stated that the investment was made by his father. The firm Latto Mal Nanu Ram Jain was dissolved in 1982 and continued for the next 4-5 years; thereafter, the firm has not done any business and restarted in 1982 itself.
37. The dissolution deed is Ex. DW2/P-1 (already Ex. DW2/5). The father decided to give the firm to both his sons, i.e., Prakash Chand Jain and Suresh Chand Jain, and shifted them to B-152, Azadpur, Sabzi Madi, Delhi. Sh. Latto Mal had sold the property of Paharganj as he required the money for the marriage of his children, i.e., Sh. Prakash Chand Jain and Sh. Suresh Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 45 of 127 Chand Jain. After the year 1969, I (Suresh Chand Jain) started the business of Usha Swing Machines and Fans for about 10 years from shop no. 172, Main Bazar, Subzi Mandi, Delhi, and thereafter, my father included me in the business of fruits at Sabzi Mandi, Azadpur, Delhi. Prior to 1969, Sh. Prem Chand used to run a cloth business from the above-mentioned address, i.e., shop no. 172, Main Bazar, Subzi Mandi, Delhi. The said shop was closed in the years 1979-80.
38. DW2 could not tell the details of the premises from where R.C. Jain and Co. used to function but denied that the Co. used to run from shop no. 172, Main Bazar, Subzi Mandi, Delhi, and the same is mentioned in the partnership deed dated 01.01.1981 (Ex. D-1). DW2 stated that as per the decree dated 19.11.1985 (Ex. P-
26), Sh. Roop Chand was not given any share in the residential property at 3545, Gali Hanuman Mandir, Sabzi Mandi, Delhi. He voluntarily stated that he was given a house at Paharganj by Sh. Latto Mal Jain. The house at Paharganj was not mentioned in Decree Ex. P-26. He denied the suggestion that no house at paharganj was given to Sh. Roop Chand Jain, as the said property had already been sold by his father before partition. He denied the suggestion that the market value of the Paharganj property falls into the share of Sh. Roop Chand was very nominal and was given an unfair deal in the partition. DW2 further testified that he does not remember if Sh. Roop Chand Jain filed an affidavit in the SLP stating that the decree Ex. PW1/26 was collusive and he had been compelled by his brothers to accept the compromise and he did not file any objections to the said affidavit of Sh.
Judgment dt. 22.07.2024
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Roop Chand.
The Court heard the learned Counsel for the parties extensively and examined all the material on record (including written submissions and judicial precedents filed by the respective parties).
ISSUE-WISE FINDINGS:
Issue no. 1: Whether the Plaintiff has no locus standi to file the suit? OPD
39. The onus to prove this issue was upon the defendants, as the Defendants have raised this objection in their written statement. To prove this issue, Defendant No. 4 has examined himself as DW2. It is the stand of the Defendant that a suit for partition was filed by the Defendant no. 2 against his father and brothers in the year 1982, which was decreed in the year 1985. In that suit, a preliminary decree (dated 28.02.1983) was passed by the competent court, and thereafter, the partition was affected by the suggestions made in the report of the local commissioner dated 30.05.1983 (Ex. PW1/29). Thereafter, a final judgment, ExDW2/8, was passed by the Ld. Court and the respective shares of the parties were given to the parties as per the report of the local commissioner.
40. It is an admitted position that the mother of the Plaintiff Smt. Rattan Mala Jain had also moved an application for impleading the Plaintiff (of the present suit), her daughters and herself as a party in the said suit under Order I Rule 10 CPC (Ex. P-3). However, the said application was dismissed vide order Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 47 of 127 dated 19.11.1985 (Ex. P-26) with the observation that " so long as Defendant no. 2 is alive, she has got no locus standi to file such objections and to be impleaded as a party. Her application is, therefore, dismissed." However, while dismissing the application the Court did not hold anything against the Plaintiff of the present case on merits.
41. Thereafter, the mother of the Plaintiff filed a revision petition before the Hon'ble High Court of Delhi against the order (Ex.P-26) and vide order dated 24.11.1987 (Ex. P-34) the revision was dismissed and the Hon'ble High Court of Delhi by relying on the judgments titled "Maj. Pran Nath Kaushik VS Rajinder Nath Kaushik" AIR 1986, Delhi 121 and "Sukhrani and Others VS Hari Shankar" AIR 1979Supreme Court 1436 held that "for the proposition that where the decree was obtained by fraud, the minor children of a coparcener who had the interest in the co-parcenary property could be impleaded as parties. A reading of these cases revealed that this proposition was correct only to the extent that a subsequent suit could be filed by the minor children on the ground that the decree was obtained by fraud, undue influence or misrepresentation..... that a petition could be reopened at the instance of the minor coparcener even if there was no fraud but the partition was unfair or prejudicial to the interest of the minor. In the subsequent suit, it has to be shown that the partition decree was obtained by fraud, misrepresentation or undue influence and it will in any way prejudicial to the interest of the minor. ".
42. In the present case the entire premise of the case of the Plaintiff is that in view of the decree passed in the said suit filed by Defendant no. 2, the father of the Plaintiff got inferior share i.e. no business or house for residence was given to him. It is also Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 48 of 127 the case of the Plaintiff that since the parents of the Plaintiff were not in a cordial relationship and litigations were pending amongst the mother and other family members of the Plaintiffand, therefore, the father of the Plaintiff in collusion with his other brothers accepted the lower share so that the rights of the present Plaintiff and his mother may be jeopardized and defeated.
43. It is pertinent to mention that the father of the Plaintiff filed an affidavit before the Hon'ble Supreme Court (Ex. PW1/1) and stated that he compromised and under the influence of alcohol he had taken the inferior share. To substantiate the claim the Plaintiff has further relied upon the partnership deed dated. 28.05.1982 (Ex. P-20), the plaint of the suit filed by Defendant no. 2 (Ex.P-22) wherein it has been prayed that a decree of partition in favourof the Plaintiff and thereby the suit properties be partitioned between the Plaintiff and Defendants in equal shares.
44. Counsel for the defendants challenged the locus of the Plaintiff to file the present suit on the ground that since the father of the Plaintiff has accepted the share on the basis of a decree of a competent court where all the necessary parties were impleaded and duly represented and the said decree had never been challenged, ultimately it has attained finality. It is also the stand of the Defendants that since the father has never challenged the decree, there is no right whatsoever for the present Plaintiff to challenge the decree.
Judgment dt. 22.07.2024
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45. In the considered opinion of this court the contentions of the Defendants regarding the locus of the Plaintiff to file the present suit does not hold substance as the basic premise of the Plaintiff case is this that his father was in collusion with the other Defendants partitioned the property and deliberately obtained lesser share and just because his father was alive Plaintiff cannot file a separate suit or challenge the judgment Ex DW2/8, The law cannot restrict a person from approaching the court to seek the remedies to which he is legally entitled. Further, the law also cannot ask the Plaintiff to wait for the filing of the suit until his father passes away. The fundamentals of the Plaintiff suit are based on the ground of collusion, and therefore, the Plaintiff has an independent right to challenge the judgment wherein his rights have allegedly been defeated. In the present case, the allegations of fraud were also leveled against the father of the Plaintiff, and therefore, it would be very unreasonable to hold that the party who has committed wrong will challenge the same. Had the opportunity not been given to the Plaintiff to challenge the judgment, it would ultimately tantamount to defeating his rights without judicial examination.
46. In support of the arguments on issue no. 1, Ld. Counsel for Plaintiff has placed reliance on the documents i.e. written statement of Defendant no. 3 to 6 page no. 4 reply to para no. 1 in which the Defendant has accepted there was HUF. On Ex. P- 20 i.e. Certified copy of Final decree dated 29.08.1957, Ex P-34 Copy of order dated. 24.11.1987 passed by Hon'ble High Court in C.R. No. 1044/85, Ex P-22 i.e. Certified copy of partition suit Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 50 of 127 no. 116/85 and Ex P-26 i.e. Certified copy of order dated 19.11.1985 in suit no. 116/85.
47. Per contra, it has been argued by the defendant that there was HUF of late Sh. Latoo Mal, Sh. Jagdish Prasad, and Sh. Deputy Mall, which was dissolved as per partition dated 29.08.1957. No fresh HUF was ever constituted, as claimed by the Plaintiff. The Plaintiff has not filed any documents to show that there was any HUF between Sh. Latto Mal Jain and his sons. In the suit for partition filed by Sh. Prem Chand Jain, the father of the Plaintiff, Sh. Roop Chand Jain, was also a Defendant and the property came to the share of Sh. Roop Chand Jain and became his self-acquired property. It is further submitted that the Plaintiff has no right to claim the share in the property that came to his father during his lifetime. The partition decree was passed by the court of the Additional District Judge, and the same cannot be challenged or set aside by the court of equal rank.
48. It is pertinent to mention that at the time of framing of issues in this case, a specific issue regarding the nature of the property has already been framed, and at this juncture, this Court is only examining whether Plaintiff may file a suit to challenge the judgment passed in 1985 and finding qua nature of the properties shall be given while deciding issue no. 7. The arguments of the defendant are that since the earlier decree was passed by the court of equivalent rank, this court doesn't have jurisdiction to entertain the present suit. The contentions of the defendant are liable to be rejected because, under Section 9 of the CPC, this Court assumes the jurisdiction to entertain the present Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 51 of 127 suit. This Court is not sitting as an appellate court against the decree Ex. P26. This Court is adjudicating a separate suit in which the judgment has been challenged on the grounds of fraud and collusion, and hence, in the considered opinion of this Court, it has the jurisdiction to adjudicate the present suit.
49. After hearing the arguments from both sides and perusing the record, this court holds that Plaintiff has a locus standi to file the present suit. Since it isproved from the documents filed by the Plaintiff and depositions of the witnesses that the mother and the father of the Plaintiff not share a good relationship and a series of litigation and complaints were initiated by the mother of the Plaintiff against the father and other family members of the Plaintiff. Therefore, the earlier partition was deliberately done and his father accepted the lesser share to defeat the right of the mother of the Plaintiff and the defendant has admitted the fact of accepting lesser share before the Hon'ble Supreme Court in affidavit. Though that affidavit may not be accepted as a conclusive proof in the present proceedings, however, it is relevant to adjudicate the issue in hand.
50. Plaintiff has relied upon the following judgments to substantiate that the Plaintiff has locus standi to file the present suit, titled as "Smt. Sukhrani (dead) by LRs &Ors. VS Hari Shankar &Ors." (1979) 2 SCC 463, where in it has been stated that "even though there was no fraud, misrepresentation for undue influence, a partition can be reopened at the instance of a minor coparcener, despite the fact that his branch was represented by his father at the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 52 of 127 partition, if the partition was unfair or prejudicial to the interest of the minor.
........Hindu Joint family property-inequality, a partition can be re-opened by the minor......"
51. Further, the Hon'ble Supreme Court has held in the case of 'Ratnam Chettiar vs SM Kuppuswami Chettiar, (1976) 1 SCC 214,'(para-18 and 19)
18. Apart from that there are numerous authorities which have consistently held that where a partition is unjust and unfair and detrimental to the interests of the minors the partition would be reopened irrespective of the question of bona fides. In Lal Bahadur Singh v. Sispal Singh and Ors. it was observed that even though the ground of fraud and mistake failed, the partition which affected the interests of the minor could be reopened. Similarly in Chanvira 'Pa' v. Da 'Na' 'Va' &Ors. a Division Bench of the Bombay High Court held that a partition will be binding on the minors only if it was just and legal, but if it was made and finalised there being no means of testing the validity of the assets the partition was not final. The same view was taken in Maruti v. Rama.
19. Thus on a consideration of the authorities discussed above and the law on the subject, the following propositions emerge:
(1) A partition effected between the members of the Hindu Undivided Family by 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. In such a case the Court should require a strict proof of facts because an act inter vivos cannot be lightly set aside.
(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is bindig on the minors also if it is done in good faith and in bona fide manner keeping into account the interests of the minors. (3) Where, however a partition effected between the members of the Hindu Undivided Family which consists of minors Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 53 of 127 is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can certainly be reopened whatever the length of time when the partition took place. In such a case it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on the party supporting the partition. (4) Where there is a partition of immovable and movable properties but the two transactions are distinct and separable or have taken place at different times. If it is found that only one of these transactions is unjust and unfair it is open to the Court to maintain the transaction which is just and fair and to reopen the partition that is unjust and unfair. (Emphasis Supplied)
52. Though the above-cited judgments do not support the Plaintiff's cause as the facts of those cases differ from the present case. Specifically, the Plaintiff was not a minor at the time the suit was filed in 1983. The Plaintiff stated in his affidavit of evidence, filed in 2006, that he was around 44 years old.
Therefore, in 1982, he would have been around 20 years old and not a minor, making the mandate of the above-cited judgments inapplicable to the Plaintiff. However, given the strained relationship between the Plaintiff's parents, it is undisputed that the Plaintiff's father received a portion of the family's properties partitioned among themselves, and for that Plaintiff has alleged that his father obtained lesser share and approached this Court for the reopening of the partition earlier done.
53. Therefore, the judicial examination is necessary to determine if the Plaintiff's rights have truly been compromised and whether the Plaintiff's father voluntarily received a smaller or lesser Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 54 of 127 portion. Merely because the Plaintiff has attained majority, he has the right to challenge a judicial decision where his rights were allegedly usurped by the defendants, and that too, without his knowledge, may not be taken away. The law is to protect every individual who has suffered from the wrongful actions of others, and therefore, the notion of justice demands that the Plaintiff deserves an opportunity to establish his case. Moreover, the Defendant has not brought anything on record to prove contrary or to substantiate their averments, nor have any questions regarding this issue been asked or suggestions made during the cross-examination. Therefore, keeping in view the judicial records and the submissions made by the respective parties, issue no. 1 is decided in favour of the Plaintiff and against the defendants. This court holds that the Plaintiff has the locus standi to file the present suit. However, the question of Hindu Undivided Family (HUF) shall only be considered while deciding issue no. 7, and nothing discussed in issue no. 1 shall have an effect on the findings of issue no. 7.
Issue No. 2:
"Whether the suit is barred by time?"
54. The onus to prove this issue was on the Plaintiff that his suit is well within the limitation period. To discharge the onus, Ld. Counsel for the Plaintiff has argued that the partition decree may be challenged within 3 years of the passing of the judgment. It is an admitted fact that the partition decree dated 19.11.1985 Ex. P26 was challenged by the Plaintiff, his mother, and his sisters vide civil revision no. 1044/85 before the Hon'ble High Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 55 of 127 Court of Delhi, The revision petition was dismissed vide order dated 24.11.1987 (Ex. P-34) being as not maintainable since the decree for partition had already been passed and the remedy lies in a fresh suit challenging the partition. Hence, the present suit was filed on 14.12.1987 and it was filed within three years of the passing of the final judgment decree.
55. This Court holds that the suit was filed well within the limitation period. Article 58 of the Second Schedule to the Limitation Act provides for the period of limitation to file a suit to obtain any other declaration. As per the mandate of Article 58, a suit for declaration declaring the decree null and void can be filed within three years of passing the judgment. The final judgment was passed on 19.11.1985 and the present suit was filed on 14.12.1987 which is well within the period of three years. Therefore, it may safely be concluded that the suit is filed within the limitation period, and hence, issue no. 2 is decided in favour of the Plaintiff and against the Defendant.
Issue No. 3:
"Whether the suit has been properly valued for the purposes of court fee and jurisdiction?"
56. The onus to prove this issue was on the Defendant, as this issue was also raised by the Defendants in the written statement. However, the Defendants have neither led any evidence nor addressed any substantive arguments to discharge the burden. Even otherwise, the perusal of the record reveals that the present suit has properly been valued for the purposes of court fees and jurisdiction, as the relief of partition has been valued at Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 56 of 127 ₹.79,59,000/-, the total market value of assets set down in Annexures A and B of the plaint. Since the Plaintiff has challenged the decree dated 19.11.1985 passed in suit no. 116/85, and sought the relief of declaration to declare the decree null and void, in which the value of the properties in the said suit was shown as Rs. 95,000/-, the Plaintiff has valued the present suit for the relief of declaration, partition, and rendition of accounts as per the valuation of the relief sought in suit no. 116/85, and for the relief of rendition of accounts, the suit has been valued at Rs. 200/-.
57. Plaintiff, while deposing as PW1, deposed that he was in possession of the ground floor of the property at Gali Hanuman Mandir, part of HUF property. To substantiate this, PW1 has relied upon the order passed by the Court while adjudicating the application under Order XXXIX Rule 1 and 2 CPC on 18.12.1987. Plaintiff also relied upon the various police complaints in which the address of the Plaintiff was undeniably mentioned as the address of the suit property. The Hon'ble High Court of Delhi in the case of Shobha Jolly v. Suraj S.J. Bahadur, 2013 SCC OnLine Del 4106, (para- 18) it has been observed that, "18. In a partition suit, the averments in the plaint as regards the Plaintiff being in possession, either constructive or physical, of the property in question of which partition has been sought is a critical element. The legal position in terms of the unamended Act is that where the Plaintiff in a partition suit avers that the Plaintiff is in actual or constructive possession jointly with the other coparceners of the other suit property, then such Plaintiff will have to pay a fixed court fee and not an ad valorem court fee. On the other hand, if there is no such averment as to the Plaintiff being in actual or constructive possession, and the narration shows Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 57 of 127 that there has been an ouster of the Plaintiff from the suit properties then the Plaintiff will not be entitled to pay a lesser court fee, i.e., not a fixed court fee but ad valorem court fee at 4% on the market value of the share claimed by the Plaintiff."
58. Further, in the case of Krishna Gupta v. Rajinder Nath & Co. HUF, 2013 SCC OnLine Del 547, (para- 51) , it has been observed by the Hon'ble Delhi High Court that, "51. It is settled law that in a suit for partition, if joint possession is pleaded by the Plaintiff, on the basis that he is a co-owner of the suit property sought to be partitioned, fixed court fees is to be paid under Article 17(vi) of Schedule II of the Court Fees Act, 1870 on the presumption of joint possession of the Plaintiff, even if the Plaintiff is not in actual possession. Equally, it is not necessary that the Plaintiffs should be getting a share or some income from the property. This is because by creating a fiction of law, it is deemed that in case of co- owners, the possession of one in law is the possession of all, unless upon perusal of the averments in the plaint that must be read as a whole, a clear cut case of ouster is made out. Only in such circumstances would the Plaintiff be liable to pay ad valorem court fees on the market value of his share as provided for under Section 7(iv)(b) of the Court Fees Act."
59. The Hon'ble Supreme Court of India in the case of Neelavathi v. N. Natarajan, AIR 1980 SC 691 , held that the question of court fees must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. It was held that the general principle of law is that in the case of co-owners, the possession of one is in law the possession of all unless ouster or exclusion is proved. Defendant has not led any evidence to prove the exclusion or ouster of the Plaintiff from the part of the suit Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 58 of 127 property. Moreover, Plaintiff has relied upon various documents wherein the address the address of the suit property has duly been mentioned as the address of the Plaintiff. Therefore, in the absence of the evidence to the contrary it may not be accepted that Plaintiff was not in the possession of the part of the suit property and thus ad valorem court fees are not required to be paid by the Plaintiff.
60. This Court may further relied upon the Judgment of the Hon'ble Supreme Court of India titled as 'Meenaakshisundaram Chettiar v. Venkatachalam Chettiar, [1979] 3 SCR 385' wherein it was observed that, "The Plaintiff is required to state the amount at which he values the relief sought. In suits for accounts it is not possible for the Plaintiff to estimate correctly the amount which he may be entitled to for, as in the present case, when the Plaintiff asks for accounting regarding the management by a power of attorney agent, he might not know the state of affairs of the Defendant's management and the amount to which he would be entitled to on accounting. But it is necessary that the amount at which he values the relief sought for should be a reasonable estimate."
61. Keeping in view the above discussion and the mandates of the judgments of the Hon'ble superior courts, it is clear that Plaintiff is only liable to pay the ad-valorem court fees in a suit of partition if the exclusion of the Plaintiff from the suit property is proved and in the present suit defendants has failed to prove the exclusion of the Plaintiff from the suit property. Furthermore, for the relief of the rendition of accounts Plaintiff has valued the relief sought is reasonable. Therefore, this Court is of the considered opinion that in the absence of the evidence to the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 59 of 127 contrary, the averments of the Plaintiff is entitled to be accepted as true and therefore, issue no. 3 is decided in favour of the Plaintiff and against the Defendant.
Issue No- 4:
"Whether the suit is bad for non-joinder and mis- joinder of parties?"
62. The burden of proving this issue was upon the Defendants as they have also taken the objection of non-joinder and misjoinder of necessary parties into consideration in their written statement. However, no evidence is presented on behalf of Defendants on this issue, as there is no mention of this objection in the Defendant's evidence affidavit, Ex. DW2/A. Also, no question was put forth during the cross-examination of PW1 about the non-joinder or mis-joinder of necessary parties.
63. In the present suit, the Plaintiff has challenged the partition decree dated 19.11.1985 (Ex. P-26). During the cross- examination on 25.10.2010, PW1 replied while answering a question, that he was not aware of the fact that four shops, and properties nos. 259 to 262, Gali Halwai Wali, and Paharganj, were sold in 1990. PW1 further deposed that his father filed an affidavit before the Hon'ble Supreme Court and from there only the factum of sale of these four shops came to his knowledge. However, PW1 further clarified that these shops were not sold by his father, but his signatures were obtained under force.
64. The only question that needs to be considered here is whether the subsequent buyers need to be arraigned as Defendant Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 60 of 127 in the suit for partition. At the stage of final arguments, it has been argued by the Ld. Counsel for the Defendant that in the absence of the subsequent buyer, no effective decree may be passed, and therefore, their presence is essential for the proper adjudication of the suit in hand. Per-contra, Ld. Counsel for the Plaintiff has argued that the shops were sold during the pendency of the suit and the date on which the suit was filed. The Plaintiff has arraigned all the necessary parties in the suit as Defendants. The fact of selling the four shops only came to light much after the filing of the suit.
65. The onus of proving this issue was upon the Defendants; however, no evidence has been led by the Defendants to substantiate their averments. The issue may be decided in the favour of the Plaintiff only on the failure of the Defendant to provide evidence to prove the issue. However, on merits, it may be decided, as it is an admitted fact that the properties were sold during the pendency of the suit. The suit was filed in the year 1987, and the shops were sold in the year 1990. Section 52 of the Transfer of Property Act, 1872, which provides the doctrine of lis-pendens which serves to protect the rights and interests of parties involved in a pending suit concerning a specific property. It provides that during the pendency of such a suit or proceeding, no party to the case can transfer or deal with the property in question in a way that would affect the rights of any other party involved, except with the authorization of the court. The 'Transferee pendente lite' is bound by the verdict just as if he was a party to the suit, and the transfer shall be subordinate to the result of the pending suit.
Judgment dt. 22.07.2024
CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 61 of 127
66. The Hon'ble Supreme Court recently in the month of July 2024, in the matter titled as 'Yogesh Goyanka vs Govid &Ors, 2024 SCC OnLine Sc 1962,' in (para- 16) held that "the doctrine of lis pendens as provided under Section 52 of the Act does not render all transfers pendente lite to be void ab- initio, it merely renders rights arising from such transfers as subservient to the rights of the parties to the pending litigation and subject to any direction that the Court may pass thereunder."
67. Further, in the case of "Simla Banking Industrial Co. Ltd. v. Firm Luddar Mal, Tek Chand, 1957 SCC OnLine Punj 145" , It was held by the Hon'ble Punjab and Haryana High Court (paras- 34 and 35) that, "34. It was held by their Lordships of the Privy Council, that the doctrine of lis pendens applied, and that the Plaintiff had a better title. Their Lordships followed the leading case of Bellamy v. Sabine (1857) 44 E.R. 842 in which case the principle on which the doctrine of lis pendens rested, was explained. The earlier view which had prevailed in England that the rule of lis pendens was based upon the assumption of constructive notice, did not find favour. In the words of Lord Chancellor at page 847.
"It is scarcely correct to speak of lis pendens as affecting a purchaser through the doctrine of notice, though undoubtedly the language of the Court often so describes its operation. It affects him not because it amounts to notice, but because the law does not allow litigant parties to give to others, pending the litigation, rights to the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a Plaintiff& a Defendant as to the right to a particular estate, the necessities of mankind require that the decision of the Court in the suit shall be binding, not only on the litigant parties, but also on those who derive title under them by alienations made pending the suit, whether such alienees had or had not notice of the pending Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 62 of 127 proceedings. If this were not so, there could be no certainty that the litigation would ever come to an end. A mortgage or sale made before final decree to a person who had no notice of the pending proceedings would always render a new suit necessary, and so interminable litigation might be the consequence." (Emphasis Supplied)
35.Lord Justice Turner at page 849 expressed the same view in the following words:
"The doctrine of lis pendens is not, as I conceive, founded upon any of the peculiar tenets of a Court of Equity as to implied or constructive notice. It is, as I think, a doctrine common to the Courts both of law and of Equity, and rests, as I apprehend upon this foundation -- that it would plainly be impossible that any action or suit could be brought to a successful termination, if alienations pendente lite were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings."
68. The Hon'ble Supreme Court of India in the case of 'Madhukar Nivrutti Jagtap and Others vs PramilabaiChandulal Parandekar (Dead) Through Legal Representatives and Others, (2020) 15 SCC 731' held that, (para 14.2 and 14.3), 14.2. In the case of Guruswamy Nada (supra), this Court has held as under: -(para 13) "13. Normally, as a public policy once a suit has been filed pertaining to any subject- matter of the property, in order to put an end to such kind of litigation, the principle of lis pendens has been evolved so that the litigation may finally terminate without intervention of a third party. This is because of public policy otherwise no litigation will come to an end. Therefore, in order to discourage that same subject-matter of property being subjected to subsequent sale to a third person, this kind of transaction is to be checked. Otherwise, litigation will never come to an end."
Judgment dt. 22.07.2024
CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 63 of 127
14.3. The aforesaid observations in no way lead to the proposition that any transaction on being hit by Section 52 ibid., is illegal or void ab initio, as assumed by the High Court. In Sarvinder Singh (supra), as relied upon by the High Court, the subsequent purchasers sought to come on record as Defendants and in that context, this Court referred to Section 52 of the T.P. Act and pointed out that alienation in their favour would be hit by the doctrine of lis pendens. The said decision is not an authority on the point that every alienation during the pendency of the suit is to be declared illegal or void. The effect of doctrine of lis pendens is not to annul all the transfers effected by the parties to a suit but only to render them subservient to the rights of the parties under the decree or order which may be made in that suit. In other words, its effect is only to make the decree passed in the suit binding on the transferee, i.e., the subsequent purchaser. Nevertheless, the transfer remains valid subject, of course, to the result of the suit. In the case of A. Nawab John (supra), this Court has explained the law in this regard, and we may usefully reiterate the same with reference to the following:-
"18. It is settled legal position that the effect of Section 52 is not to render transfers effected during the pendency of a suit by a party to the suit void; but only to render such transfers subservient to the rights of the parties to such suit, as may be, eventually, determined in the suit. In other words, the transfer remains valid subject, of course, to the result of the suit. The pendent lite purchaser would be entitled to or suffer the same legal rights and obligations of his vendor as may be eventually determined by the court.
69. Further Punjab and Haryana High Court in the case of 'Santa Singh Gopal Singh and Ors vs Rajinder Singh Bur Singh and Ors, AIR, 1965 Punjab 415, it has been held that ""The doctrine of lis pendens is expressed in the maxim "ut lite pendente nihilinnovetur", and the principle on which it rests is explained in Bellamy v. Sabine, (1857)1 De G & J 566. The exposition of law in that case by Cranworth L.C. and Turner Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 64 of 127 L.J. was followed by the Privy Council in Faiyaz Husain Khan v. Munshi Prag Narain, 34 Ind. App 102 (PC) the principle being that "pendente lite neither party to the litigation can alienate the property in dispute so as to affect his opponent."
As mentioned in Mulla's Transfer of Property Act, the rule is based not on the doctrine of notice but of expediency. According to story, the effect of the maxim is not to annul the conveyance, but, only to render it subservient to the rights of the parties to the litigation.."
70. The primary aim of this doctrine is to provide the court with broad oversight over property transfers in ongoing lawsuits. The transferee steps in the shoes of his predecessor in interest and remains bound by the result of the suit. This doctrine doesn't annul pendente- lite transfers but only makes it a subject to the outcome of the litigation. Further, the notice of pending litigations is not a sine-qua-non for the application of the doctrine of Section- 52 of the Transfer of Property Act, the moment properties are sold during the pendency of the suit without the permission of the court then the purchaser pendente- lite steps in the shoes of the party who sold the properties. The present suit is a partition suit and the subsequent buyers are not the parties whose presence is required for the adjudication of the present suit. As they stand in the shoes of Defendants and don't have any independent right to claim and therefore, Plaintiff is not bound to implead them as parties in the present suit. Keeping in view the above discussion and the mandate of judgments cited above this Court is deciding the issue in favour of the Plaintiff and against the Defendants.
Issue No.5
Judgment dt. 22.07.2024
CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 65 of 127
"Whether the Plaintiff is estopped from challenging the decree dated. 19.11.1985 in suit no. 116/85 which merged in the decision in Civil Revision no. 1044/85?"
71. The burden of proving this issue was also upon the Defendants as they have taken the objection of estoppel that Plaintiff is estopped from challenging the decree dated 19.11.1985 (Ex. P-26) in their written statement. However, no evidence is presented on behalf of Defendants to substantiate the averments made in the written statement regarding the issue at hand. During the course of the final arguments, Ld. Counsel for the Plaintiff has argued that the Plaintiff never accepted the partition decree dated 19.11.1985 (Ex. P-26) and challenged the same in appropriate legal proceedings at the earliest available opportunity; therefore, no question of estoppels has arisen.
72. Perusal of the record reveals that the mother of the Plaintiff filed an application under Order I Rule 10 CPC (Ex. P-
24) and vide order dated 16.09.1985 (Ex. P-45), she was appointed as next friend/guardian of minor children and though the application was dismissed by the Court observing that the mother of the Plaintiff has no locus standi to become a party to the suit. Subsequent to this, a Civil Revision no. 1044/85 challenging the said order (Ex. P-25) was filed by the Plaintiff and Defendant no. 7 before the Hon'ble High Court of Delhi, though the said revision petition was dismissed vide order dated 24.11.1987 (Ex. P-34) being not maintainable since the decree for partition had already passed and the Hon'ble High Court observed that the remedy lies in a fresh suit challenging the said partition.
73. It is lucid that neither in the order of the Ld. Trial Court Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 66 of 127 nor in the order of the Hon'ble High Court of Delhi, grievances of the Plaintiff was adjudicated on merits. Even the Hon'ble High Court of Delhi in its order dated 24.11.1987 (Ex. P-34) by which the revision application of the Plaintiff was dismissed, observed that an appropriate remedy lies to challenge the decree in the fresh suit. As already held by this Court while deciding issue no.1 that a decree for partition obtained by committing fraud upon other coparceners or even if it is unjust or unfair than the judgment/decree may be challenged by other coparceners. Doctrine of estoppels provides that no party shall be allowed to say contrary things. It is settled proposition of law that once an order has been passed and if it is complied with, accepted by the other party and derived the benefit out of it, then the parties cannot challenge it on any ground. However, in the present case, the Plaintiff has not obtained any benefit from the earlier decision. In fact, it is the Plaintiff's case that he has suffered, and his rights are jeopardized; therefore, the Plaintiff has approached this court to get the earlier judgment reversed and to reopen the partition. Plaintiff has also claimed that since the properties belong to HUF, his father could not represent him in the litigation because he is a co-parcener and has a share in the properties.
74. In a nutshell, neither the Defendants adduced any evidence to substantiate that the Plaintiff is estopped from challenging the decree nor the Plaintiff or his mother ever accepted the judgment/ decree of the partition; therefore, no question of estoppel has arose against the Plaintiff to challenge the decree dated 19.11.1985. Moreover, when the Plaintiff filed this suit and Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 67 of 127 arraigned his father as Defendant on the grounds of fraud and collusion, anything done by his father could not bind the Plaintiff; therefore, the objection of estoppels doesn't hold. It is also pertinent to mention that the Plaintiff was neither a party to an earlier suit nor has acquired or obtained benefits from the decree dated 19.11.1985, therefore, the issue at hand is decided against the Defendants and in favour of the Plaintiff.
Issue No. 6:
"Whether the partition effected by judgment and decree dated. 19.11.1985 is collusive, null and void, unenforceable and not binding on the Plaintiff?"
75. Under the Shastric law, Manu says, 'once a partition is made, once a damsel is given in marriage, and once a gift is made, it is irrevocable and irretraceable.' A partition is generally irrevocable. The logic behind this is that while coparceners hold their shares as their separate and exclusive property, they may enter into transactions relating to them so as to create valid titles in favour of even third parties. However, there are certain exceptions to the principle that "shares are divided only once." It may become imperative in certain situations to have a redistribution of the properties in order to prevent gross injustice to the members of the family. However, a plea that the partition was unfair cannot be countenanced when the facts show that it was undertaken after due and proper deliberations. However, in the present matter, the Plaintiff is seeking the reopening of the partition; therefore, the onus to prove this issue was upon the Plaintiff.
76. To prove this issue Plaintiff has taken a stand that the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 68 of 127 partition decree dated 19.11.1985 (Ex. P-26) was collusive and therefore it should be declared as null & void, unenforceable and not binding upon the Plaintiff as all the properties of the HUF have not been included in the partition decree (Ex. P-26). To prove this issue Plaintiff stepped into the witness box as PW1 and deposed that since the relation of the father of Plaintiff i.e. Defendant no. 1 were not cordial with his mother and therefore, to defeat the right of his mother and of the Plaintiff, his father and other members partitioned the suit property by a collusive suit. To prove the factum of the strained relations the Plaintiff has exhibited the police complaints etc. which are exhibited as Ex.P-31, Ex. P-32, Ex. P-42 to Ex. P-44, Ex. D7/1 to Ex. D7/35, Ex. D7/50, Ex. D7/54 to Ex. D7/56, Ex. D7/67 to Ex. D7/71, Ex.D7/74 to Ex. D7/76, Ex. D7/91 and Ex. D7/95 to Ex. D7/97.
77. Plaintiff also relied upon the Civil Appeal no. 3473 of 1983 (Ex. D7/62), wherein the mother of the Plaintiff has made certain allegations of cruelty against the father and other family members of the Plaintiff though, the appeal filed by the mother of the Plaintiff was dismissed as not pressed. Plaintiff has maintained his stance in his deposition and deposed that the decree dated 19.11.1985 Ex. P-26 was a collusive decree as the suit was not contested by any of the parties. Defendants have cross-examined PW1 to refute the claim of the Plaintiff of the strained relationship, but Plaintiff deposed in sync with the contents of the plaint, and Defendant was unable to elicit material which has any negative affect on the factum of matrimonial disputes amongst the mother with his father and other family members of the Plaintiff.
Judgment dt. 22.07.2024
CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 69 of 127
78. Further, to prove the fraud in the earlier partition proceedings it has further been deposed by the Plaintiff that the suit for partition filed by Defendant no. 2 and divorce case filed by Defendant no. 1 against Defendant no. 7 was filed by the same counsel and therefore, a suspicion arises that both the Defendants were acting in connivance as both of them were represented by the same counsel in different proceedings. It has further been submitted by the Ld. Counsel for the Plaintiff that the local commissioner was appointed (Ex. PW1/2) by the uncles of the Plaintiff and the report filed by him was not neutral. It has been stated that the blank portion (as mentioned in the site plan filed along with the report of LC) was not given to anyone. The report of the local commissioner has not been objected to by any of the Defendants. The suit properties were not divided equally between the Plaintiff and the Defendants. The share given to the father of the Plaintiff (Defendant no. 1) was unequal, unjust and unfair as no residential property was given to the Defendant no.
1. The father of the Plaintiff had taken the inferior (lesser) share deliberately under the influence as he was not having good relation with wife and children and was residing with father and brothers and dependent on them.
79. Per- contra it has been argued by the Ld. Counsel for the Defendants that the Plaintiff has to prove that the decree was obtained in collusion or by fraud. It has been emphasized by the Defendant that, except for bald averments, the Plaintiff has not filed any document to show that there was any HUF. The Plaintiff has not made specific pleas against the averments of Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 70 of 127 fraud, but he sought relief on the basis of the surmises and conjunctures. Ld. Counsel for the Defendant raised the issue of the maintainability of the suit on the ground that the final decree in the earlier suit was never prepared, and in the absence of the decree, the issue at hand cannot be adjudicated.
80. Before delving into the facts of the case this Court deems it appropriate to adjudicate the contentions of the Defendant with regard to the fact that the final decree was never prepared in an earlier suit and therefore, in the absence of the final decree relief under this issue is not maintainable. Perusal of the record reveals that the final decree was never drawn in the earlier partition suit and the partition was done on the basis of the judgment which was passed on the suggestions of the Ld. Local Commissioner Ex. PW-1/29.
81. As per the definition of decree given under Section 2 (2) CPC, a 'decree' means a formal expression of an adjudication as regards the court expressing it which conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. A decree always follows the judgment. The last paragraphs of the judgment normally state precisely the relief granted to the parties, and the decree records the way the relief should be given to the parties and how the fruits of the judgment may be crystallised. Therefore, a decree records the reliefs given by the court by way of judgment.
82. In the present case, the final decree was not drawn, but that doesn't disentitle the Plaintiff from claiming his relief. If the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 71 of 127 Plaintiff's case is dismissed only because he has not filed the final decree, then it will also be an injustice to him because, in such a situation, he will never be able to exercise his right to challenge the judgment passed in the earlier partition suit. It was not the Plaintiff who was responsible for paying the requisite court fee for the drawing up of the final decree, and therefore, no adverse consequences may be imposed on him for the omission of the parties to the earlier suit. The rights of the Plaintiff cannot be jeopardized merely by this fact. In essence, drawing up the decree is immaterial in these circumstances because the partition was done on the basis of the judgment rendered by the Ld. Court.
83. If the decree was not drawn up in the earlier case, then it is the fault of the parties of the earlier suit and therefore, the Plaintiff in this case should not have to suffer for their omission to pay the requisite court fee. At this juncture, it is relevant to mention the judgment of the Hon'ble High Court of Delhi, which has been relied upon by the Plaintiff, titled as 'Radhesh Singh vs Vineet Singh &Ors, 2014 SCC OnLine Del 3188' (Para 13, 14 and 15), where it has been held that, "12. I have wondered, what is the difference between a judgment and a decree. Section 2(9) of the CPC defines "judgment" as the statement given by the judge on the grounds of a decree or order and Section 2(2) defines a "decree" as a formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all and any of the matters in controversy in the suit. Section 33 of the CPC provides that the Court, after the case has been heard, shall pronounce judgment and on such judgment, a decree shall follow.Similarly, Order XX Rule 1 provides that the Court, after the case has been heard shall pronounce judgment and Rule 6 of Order XX provides that the decree shall agree with Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 72 of 127 the judgment and besides containing the number of the suit, the name and description of the parties their address and particulars of the claim, shall specify clearly the relief granted or other determination of the suit. Rule 6A of Order XX, as it stood prior to the amendment with effect from 1st July, 2002, provided that every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and in any case within 15 days from the date on which the judgment is pronounced and further provided that so long as the decree was not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution. After the amendment, the same provides that as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose. Order XXI Rule 11 provides that where a decree is for the payment of money, the Court may on the oral application of the decree-holder, at the time of passing of the decree, order immediate execution thereof by arrest of the judgment-debtor.
13. Though the first impression from the aforesaid provisions of the CPC may be that the judgment and the decree are two different things with, what is pronounced and signed by the Judge being a judgment and what is subsequently prepared by the Office/Registry of the Judge in terms of Order XX Rule 6 of the CPC is the decree but on deeper consideration it is found that what is pronounced and signed by the Judge is a judgment as well as decree with the factual position, issues arising, analysis of the evidence, findings based on the reasons on the issues, being the judgment and the result thereof being the decree. It cannot be ignored that it is the Judge who passes the decree. Drawing up thereof within the meaning of Order XX Rule 6 of the CPC is a separate and independent act which is subsequent to the passing of the decree. Else, the final order in the judgment amounts to passing of a decree by the Judge. It is for this reason only that there is no hiatus between the judgment and the decree. It is again for this reason only that the judgment, under Order XX Rule 6A and under Order XXI Rule 11, is executable even prior to the drawing up in the form provided under Order XX Rule 6 of the decree. My understanding thus is that a decree is passed by the Court even if for the time being there is no decree drawn up in the form provided under Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 73 of 127 Order XX Rule 6 of the CPC. The passing of the decree is therefore independent and earlier to the drawing up of a decree. I draw support in holding so from an old judgment of the High Court of Gujarat in Bai Vasanti v. SuryaprasadIshvarlal Patel AIR 1969 Guj. 152, and have been unable to find anything to the contrary. Reference in this regard can also be made to the judgment of the Full Bench of the High Court of Allahabad in Gopal Singh Visharad v. Jahoor Ahmad MANU/UP/0719/2011 where also it was observed that almost all the High Courts are unanimous with the view that decree comes into existence on the date of judgment even though it is signed later; as soon as the judgment is pronounced, decree is there; in law it comes into existence though it is not formally prepared and signed on the same date. Though Special Leave Petitions against the said judgment have been granted but it appears, not on the said aspect.
14. Reference in this regard can also be made to West Bengal Essential Commodities Supply Corporation v. Swadesh Agro Farming & Storage Pvt. Ltd. (1999) 8 SCC 315 to the effect that the decree becomes enforceable the moment the judgment is delivered and merely because there is a delay in "drawing up of the decree", it cannot be said that the decree is not enforceable till it is prepared; this is so because an enforceable decree in one form or another is available to a decree holder from the date of the judgment. The same view was reiterated in Dr. Chiranji Lal (supra) also. I have in Manoranjana Sharma v. Naresh Kumar Manshani MANU/DE/3121/2013 held that though the amendment with effect from 1st July, 2002 to Rule 6A of Order XX of the CPC was not noticed in Dr. Chiranji Lal (supra) but the said amendment would not make any difference inasmuch as though the amended Rule 6A does not contain the express provision as earlier contained "that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution, but still provides that as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose". It was held that the same implies that till the decree is drawn up, the judgment shall have the effect of a decree for the purpose of execution also.
Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 74 of 127
15. From the aforesaid, it follows that it is not as if there is no decree dated 31st May, 1984 in existence. The decree is very much in existence having been passed on 31st May, 1984 itself. The only thing which has not happened is that the decree is not drawn up in terms of Order XX Rule 6 of the CPC. (Emphasis Supplied)
84. Ld. Counsel for the Plaintiff also filed one more judgment of the Hon'ble Supreme Court, titled 'Sir Sobha Singh and Sons Pvt. Ltd. vs Shashi Mohan Kapur (Deceased) through LR, (2020) 20 SCC 798, (Para-39), "39. This takes us to examine the next question, namely, what is the effect of not filing the copy of the decree along with the execution application filed by the appellant. In our view, even though the appellant did not file the certified copy of the decree along with the execution application for the reason that the same was not passed by the Court, yet the execution application filed by the appellant, in our view, was maintainable. Indeed, so long as the formal decree was not passed, the order dated 01.06.2012 was to be treated as a decree during the interregnum period by virtue of Order 20 Rule 6A (2) of the Code. In other words, notwithstanding the fact that the decree had not been passed, yet by virtue of principle underlined in Order 20 Rule 6A(2) of the Code, the order dated 01.06.2012 had the effect of a decree till the date of actual passing of the decree by the Court for the purposes of execution or for any other purpose. This empowered the Executing Court to entertain the execution application and decide the objections raised by the respondent on merits."
85. In light of the mandate of the judgment cited above, the contentions of the Ld. Counsel of the Defendants are liable to be rejected because the decree shall follow the judgment and be based upon the relief given in the judgment; thus, the suit of the Plaintiff cannot be defeated merely because he failed to file a Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 75 of 127 final decree. This Court is of the considered opinion that challenging the judgment is as good as challenging the decree. Moreover, if the judgment goes away, then the decree shall ipso facto become irrelevant; therefore, this Court doesn't find any difference in the judgment or decree for the purpose of challenge in the subsequent suit. In view of this non-filing of the final decree by the Plaintiff, it doesn't adversely affect the suit of the Plaintiff in any manner.
86. Now, this Court will deal with the grounds which are raised by the Plaintiff for the reopening of the partition one by one, Engagement of the same lawyer for different Defendants in different matters-
a) According to the Plaintiff, this gives rise to grave suspicions and increases the likelihood that the parties in the previous suit colluded. It is sufficient to assume that the earlier partition suit was a sham because the same Ld. Counsel represented his uncles against his father in the partition suit, who was also representing his father against his mother in the divorce proceedings. This indicates that both parties are working together and supporting one another. The Ld. Counsel for Defendants has refuted all the allegations of connivance and argued that there is no restriction on a lawyer holding a brief from a party in a different case against whom he appeared from the opposite side.
Judgment dt. 22.07.2024
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b) As per the professional ethics and settled rules of practice of lawyers, there is no impediment that an advocate cannot represent a party in a case against whom he was representing some other party in a different matter. The test to be applied is whether real mischief will result. In such matters, each case turns on its own facts to establish whether real mischief and real prejudice will result. The only fact which needs to be examined that whether the representation by the same advocate is affecting the cause of the Plaintiff. It is highly unfathomable that how merely the presence of an advocate for his father in one matter and against him in a different matter adversely affects the cause of the Plaintiff. The noble profession of advocacy cannot be brought under the scanner of doubts just because he holds brief against a party in a different matter to whom he has represented earlier. There is no such rule that stops a lawyer from holding a brief for a party against whom he represented other parties. The only impediment is not to hold briefs from both parties in the same matter or the matters that are interconnected to each other, where the result of one suit affects the outcome of the other suit, but that is not the case in the present matter as the one suit was of divorce whereas the other suit was of partition, which cannot be deemed related to one Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 77 of 127 another or having an impact on the other case's outcomes. Therefore, the contentions of the Plaintiff without evidence to establish connivance cannot be accepted.
Earlier suit was collusive as all the parties consented to the partition
a) The Plaintiff has contended that the earlier suit was a collusive suit which is very much apparent that though the Defendants had filed written statements Ex. P-23 but subsequently gave their consent to pass a preliminary decree without any objections whatsoever on the averments made in the plaint. Per-contra Defendants have argued that it is not uncommon to have consented decree in family matters. Since, neither the relationship amongst the parties nor the status of the properties was wrong and therefore, a preliminary decree was passed by a court of competent jurisdiction.
b) The contentions of the Plaintiff regarding the consent of the parties in an earlier partition suit do not ipso facto make the suit a false or collusive suit. All the parties who had interest and share in the partition were duly been impleaded in that suit. All the properties liable to be partitioned were also made part of the suit. Then merely because Plaintiff's father had accepted a share Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 78 of 127 which according to Plaintiff is unfair and inequitable doesn't make it a bad judgment or collusive suit.
c) This Court is in agreement with the contentions of the Ld. Counsel for the Defendants that bald averments which are based on surmises and conjunctures that a fraud has been played upon the Plaintiff cannot be a ground to challenge a decree which has duly been passed by a competent court. Neither from the record of the earlier case nor from the evidence of this case it has come to record that it was not a case of free will and parties did not give their consent freely. When all the parties gave consent to obtain their respective shares then in the absence of evidence that consent was not freely given or proving of the circumstances which raised serious doubts on the sanctity of the consent, it will not be justifiable to cast doubts on the proceedings which took place before the Hon'ble Court.
d) Moreover, it was not a case where all the parties admitted the claim of the Plaintiff in the very inception but they have filed a joint written statement. Had it been a case of collusiveness then the parties would have given their consents on the very first hearing and they would not have filed Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 79 of 127 their written statements. This Court is in complete agreement with the submissions of the Ld. Counsel for the Defendant that in family matters it is not uncommon to have a consented decree and this matter is not an exception. It was a suit where father and sons were litigating for the shares in the properties and interestingly, all the parties were living in the same premises at the time of the filing of the partition suit. Therefore, it is unfathomable that how giving consent for partition by the members of the same family where everyone got a share in the properties made it a collusive suit. Plaintiff has miserably failed to provide any evidence by which it may be substantiated that the consent was not freely given. Further, it could not be established that the consent recorded by the Court was per se illegal or there were any errors in recording the consent of the parties before passing the preliminary decree. Merely because Plaintiff of the present suit is aggrieved by the decision of the earlier suit does not give him right to challenge the proceedings that took place before the Hon'ble Court. Therefore, the contentions of the Plaintiff on this aspect are also liable to be rejected.
(a) Report of Ld. Local Commissioner was not neutral The Plaintiff has contended that the appointment of the Ld. Local Commissioner also raised serious Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 80 of 127 doubts, and the way he prepared a report was patently not neutral, therefore, the partition on the basis of his recommendations should not be acted upon. Contrary to this, the Ld. Counsel for the Defendants has argued that the Ld. Local Commissioner was appointed by the Hon'ble Court, Ex-PW1/2. The Ld. Local Commissioner prepared a report after examining the suit properties and then made suggestions about the partition of the suit properties. It has further been argued that since the wife of the Plaintiff has filed complaints against the defendants, it was contemplated that in order to avoid further family disputes, commercial properties in Paharganj should be given to the father of the Plaintiff in partition, which was duly accepted by the father of the Plaintiff, and therefore, for no reason whatsoever, the Plaintiff has to challenge the earlier partition.
b) The basic premise of the Plaintiff's objection is that the Ld. Court did not appoint the Ld. Local Commissioner by itself but parties requested to the Ld. Court to appoint a particular lawyer to act as Ld. Local Commissioner and therefore, the report made by him was not neutral as a lesser share was given to the father of the Plaintiff and also all the properties were not added to the list of Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 81 of 127 properties which were to be partitioned.
(c) The order of the appointment of the Ld. Local Commissioner Ex PW1/2, mentioned only the presence of Ld. Lawyers and not the parties. Moreover, a prayer has been made by the Ld. Counsel for the parties for the appointment of the lawyer who was present in the court to act as local commissioner. Therefore, it will be unjust to hold that the Ld. Local Commissioner was appointed at the request of the parties as none of them were present in the Court. There is no reason for this Court to raise a suspicion on the Ld. Counsel in the absence of evidence to the contrary they were also the part of the collusion as alleged by the Plaintiff in the present case.
(d) Plaintiff cross examined the DWs but nothing could be extracted which may establish or substantiate the fact that the appointment of the Ld. Local Commissioner was not right or he acted against the interest of any parties. The order of the appointment of the Ld. Local Commissioner Ex PW1/2 reveals that the Ld. Counsel who was appointed as Local Commissioner was present in the Court and he was appointed by the Ld. Court on the request of the Ld. Counsel for the parties. The relevant part of the order is reproduced here in verbatim, that "Sh. S.K.Somani, Advocate is present in Court. The Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 82 of 127 learned counsel for the parties pray that he be appointed the Local Commissioner for suggesting any mode of partition."
e) It is common practice in courts to appoint a counsel as local commissioner who is present in the Court provided he consents to act as Local Commissioner. In the earlier suit, it has specifically been mentioned that Sh. S K Somani was present in the Court at that time. Plaintiff has argued that he was brought by the Defendants so that Ld. Court appointed him as Local Commissioner though as per the order sheet of the court, no defendants were present in court at that time. Further, there is nothing on record to show that he was brought by the Defendants. It has not been proved that Sh. S K Somani did not have a case listed in that Court on that day and his presence was secured by the Defendants just to make him Local Commissioner in that suit.
f) Plaintiff further failed to establish and prove that was there any reason to doubt the appointment of Sh. S K Somani or was there any reason for which a free and fair report could not have been expected from him Nothing has been brought on record by the Plaintiff to substantiate that the Ld. Local Commissioner had reasons to act in a biased manner and in the absence of any Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 83 of 127 evidence to prove the report of Ld. Local Commissioner erred and was wrong no emphasis could be given to the allegations of the Plaintiff.
g) Moreover, the report of Ld. Local Commissioner is not conclusive evidence and the courts are not bound to accept the report prepared by the Ld. Local Commissioner as it is nothing but a report of facts and status of the properties which may or may not be accepted by the courts. The law has granted complete discretion to courtsto examine and assess the report of Ld. Local Commissioner and then may determine whether any reliance may be placed upon the report or not. Even if the contentions of the Plaintiff are admitted that the Ld. Local Commissioner acted in a biased manner then it was the Hon'ble Court who examined the report and passed a judgment on the suggestions made therein. Had the Hon'ble Court found something which may not be called as correct then the Hon'ble Court had the authority to refuse to accept the report of Ld. Local Commissioner.
h) Moreover, no valuation of the properties of Paharganj that were allotted to his father was filed by the plaintiff or examined by any witness to establish that the commercial properties allotted to Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 84 of 127 his father were inferior in value. The valuation of the shops was sufficient for the Plaintiff to prove that his father got the inferior share. Because while deposing as PW1, the Plaintiff has deposed that Sh. Lattoo Mal started HUF business from the funds obtained from the sale of the six shops bearing no. 246 to 248 and 256 to 258 in the Paharganj area. These shops were adjacent to the four shops bearing numbers 259 to 262, which fall under the share of his father. On the one hand, the plaintiff has taken the stand that by selling six shops, Sh. Latto Mal obtained sufficient proceeds to start a new family business, and on the other hand, the shops that fell under the share of his father did not have any value or were of lesser value. The stand is itself contradictory and self- defeating because if the six shops situated just beside the shops that came in his father's share could have obtained proceeds from which a new HUF business was started by Sh. Latto Mal, then in the absence of the valuation report of the value of the four shops or evidence to the contrary, it could not be held that the commercial value of his father's share was of no value or inferior in value.
(i) Therefore, in a nutshell, since the Ld. Local Commissioner was appointed by the Hon'ble Court and his report was examined therefore, a final judgment was passed on the basis of the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 85 of 127 recommendations of the Ld. Local Commissioner. Just because Plaintiff's father accepted commercial properties in Paharganj instead of taking a share in residential property doesn't make this report false or biased ipso facto.
(j) The Plaintiff has asserted that since his father accepted a lesser and inferior share in the properties it is apparent that the earlier suit was a collusive suit. At this juncture, reliance may be placed on the judgment of the Hon'ble High Court of Delhi, titled as 'Onkar Nath Kapoor Through LRs vs Jawahar Lal Kapoor (Deceased) Through LRs, 2018 SCC OnLine Del 8076', wherein, it has been held that that by partition the properties need not be divided between the parties equally. Parties may agree to a bigger or smaller share in the property or may entirely relinquish their shares for nothing. Consequently, the argument that the partition between the parties was inequitable is untenable in law. In para 30 of 'Onkar Nath (Supra)' it has been held that, "30. Partition does not always mean partition by raising dividing wall between the demarcated share. Same can also be achieved if parties have identified their respective share in the property on drawing or otherwise agreeing to treat a particular portion as belonging one or other. Partition need not be equal too. Parties may agree among themselves to take slightly big or small share in the property or may agree to leave parcel of Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 86 of 127 land in lieu of money or other worthy item or may entirely relinquish his/her claim for nothing.Simply because predecessor of a claimant has not been given equal share will not entitle him to seek re-opening of the partition and disturb the otherwise peace and harmony in the family.(Emphasis Supplied)
k) Even the Hon'ble Supreme Court in the judgment titled 'Parvathamma and others vs Venkatsivamma and others, 2016 SCC ONLINE SC 1628' wherein it was held (para-2) that, "2. There is no finding to the effect that at the time of partition, the parties did not agree or there was any coercion. In the absence of such a factor, especially when the partition had taken place at free will of the father of the present respondents, we do not see any reason for the High Court to interfere with the order passed by the trial court. Very often, for some special reasons not recorded in the partition deed, the properties may not be divided equally. Partition of family property, being a subject involving the family, the family members may agree to unequal partition for some just reasons."
l) It is an admitted position of fact that the father of the Plaintiff got shops in the Paharganj area bearing no. 259 to 262, Gali Halwai, Paharganj, Delhi. While deposing as PW1 it has been deposed by the Plaintiff that these four shops were sold to some other persons in 1990 by his father though his signatures were obtained by coercion. The relevant portion of his cross examination is reproduced as under in verbatim...
Judgment dt. 22.07.2024
CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 87 of 127
"It is incorrect to suggest that the
properties belonging to Latto Mal were later on sold by my father Roop Chand and an affidavit in this regard was filed by the father in the Hon'ble Supreme Court. The properties 259 to 262, Gali Halwai, Paharganj, were not sold by my father, however, his signatures were obtained under force"
m) The father of the Plaintiff was given the commercial premises in terms of the final decree dated 19.11.1985 (Ex. P-26) and no share in the residential property was given to him. Sh. Roop Chand Jain sold the said share in 1990 and collected the consideration by himself and there is no evidence to the contrary that he gave the said amount to someone else or that he did not receive money for the same. Plaintiff has relied upon the certified copy of the affidavit which was filed by his father in the Hon'ble Supreme Court wherein he deposed that he obtained lesser share because he was dependent upon his brothers and the four shops and barsathi were sold by him under threat by his brothers. Though he didn't challenge the said partition and chose to remain reticent for years and except for making allegations in the affidavit he did nothing against his brothers on the fact of alleged unequal share in the property nor the alleged sale of shops under force, therefore, his deposition which was given in a different case Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 88 of 127 cannot be accepted as a conclusive truth in the present matter in the absence of further evidence.
The relevant part of his deposition is reproduced in verbatim, "That when the suit for partition was filed by one of my brothers, Shri Prem Chand bearing suit No. 116/85 at that time I did not take care the interests of my wife and children as there was a divorce petition pending on my behalf against my wife, and my children were living with her at 3545, Gali Hanuman Mandir at Ground Floor, Sabzi Mandi, Delhi. I was living separately from my own family members and was living with my brother and their family members on the first floor of the same building. Therefore, under their instructions, I did not like to protect my own rights and interests in the property in question which ultimately led me to become a houseless and shelterless person because before the execution of the partition deed the six shops out of ten shops situated at Paharganj which was my ancestral property were deliberately sold by my father in collusion with my other brothers, resulting in the verdict of the partition suit the property allotted to me consisted of only four small tenanted shops and a broken barsathi which were not fit for the purpose of the habitation, and the same had already been sold under threat by my other brothers and nephews."
(n) The ground of force raised by the Plaintiff first time when he was deposing as PW1 despite the fact that his father filed an affidavit in the Hon'ble Supreme Court in the year 1995 and Plaintiff filed his affidavit of evidence in 2006 and was cross examined in 2010. It has not been explained by the Plaintiff even in the final arguments why he did not raise this issue of the selling of shops Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 89 of 127 under force earlier.
(o) PW1 deposed that the properties no. 259 to 262, Gali Halwai, Paharganj were not sold by his father, however, his signatures were obtained under force. It has not been proved that who put force upon the father of Plaintiff. Further, no evidence or witness was produced or examined to substantiate the claim of fraud and neither his father ever challenged the sale of the shops or raised this issue ever before the competent authorities.
(p) Ergo, in the absence of evidence to the contrary, it is safe to hold that his father was not forced to sign the sale deed. Merely that Plaintiff's father filed an affidavit in the Hon'ble Supreme Court in a matter filed by his wife (Plaintiff mother). Admittedly, in those proceedings, the Defendants of the present suit were not a party and therefore, anything which has been said by a party against a third party who did not have an opportunity to examine him on that aspect should not be accepted as a conclusive truth because his own admissions or submissions against the strangers to the proceedings does not bind the other party.
Judgment dt. 22.07.2024
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(q) Moreover, Insofar as the affidavit of Sh. Roop Chain Jain is concerned, the said affidavit cannot be read in evidence as he did not appear for cross- examination. This is clear in view of the settled legal position in 'Ayaaub Khan Noor Khan Pathan vs. State of Maharashtra, (2012) 10 S.C.R. 994, (para-31) wherein the Hon'ble Supreme Court observed that an affidavit by itself is not considered evidence under Section 3 of the Indian Evidence Act, 1972. Merely filing an affidavit containing one's own statements in favor of oneself does not meet the standard of sufficient evidence required by Courts. The relevant portion of the said decision reads as follows:
"31. Affidavit - whether evidence within the meaning of Section 3 of the Evidence Act, 1872: It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act'). Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code of Civil Procedure'). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 91 of 127 particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan and Ors. : AIR 1988 SC 1381; and Range Forest Officer v. S.T. Hadimani : AIR 2002 SC 1147).
(r) In fact, this deposition of his father adversely affected the stand of the Plaintiff that his father was acting in connivance with his uncles because had he really been under their influence he would not have deposed in the manner as he did before the Hon'ble Supreme Court, and never gave statements which are hostile or inimical to other defendants. His conduct is sufficed to prove that he was a sane man and could take independent decision. It is further pertinent to mention that the Paharganj area is one of the prominent business places not only in Delhi but in the entire India.
Therefore, Plaintiff's stand of unfair partition does not have any substance. It is pertinent to mention that Plaintiff has not filed any valuation which may establish that the value of the property given to his father was not equal. Even during his cross examination PW1 replied that he is not aware of the areas of the shops which were given to his father. Therefore, in the absence of the valuation or the knowledge of the area, it is not possible to hold that the share of the Plaintiff's father was not equal or unfair.
(s) Further, Plaintiff did not bring any evidence to Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 92 of 127 substantiate the contentions of the force or coercion upon his father nor did any evidence or documents were brought to prove that from where this fact came to his knowledge that his father signed the sale deed in force. It is beyond anyone's ken to fathom that had his father was in complete dominance of other Defendants then why he was given a share in the property by giving 04 shops in an area like Paharganj which has a very high commercial value If there was any collusiveness between the parties and the Ld. Local Commissioner then his father would not have obtained or relinquished his share in favour of the other parties which he did not do.
Therefore, submissions of the Plaintiff merely on basis on the surmises and conjectures of fraud or inferior share may not be accepted.
(t) The allegations of the Plaintiff also lack substance as there is no evidence as to how the proceeds of the sale of the shops were utilized, and therefore, in the absence of the evidence, it cannot be accepted that the other defendants usurped the sale proceeds. Plaintiff neither produced any document nor evidence by which it may be established that his father was not in a proper state of physical or mental health, which made him incompetent to make rational decisions Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 93 of 127 or his father paid that money to other defendants.
(u) Further, in a partition, equal or unequal, there is no element whatsoever of consideration, partial or full, since in a partition there is only an adjustment of rights and a substitution of joint enjoyment by enjoyment in severalty. In his view, it is a confusion to mix up unequal partitions with inadequate consideration, and it is worse confusion to talk in terms of bona fide and mala fide partitions where the shares are merely unequal by choice. Moreover, there is no document on record to show that the value of the suit shops was lessor than the share obtained by the other family members in the residential premises bearing no. 3545. Even if the contentions of the plaintiff accept on their face value then it may be called as a case of inadequate consideration but cannot be said partition obtained by playing fraud or in the absence of free will of the father of the Plaintiff. Unequal divisions of properties knowingly made may not spell invalidity and mathematical equality may not be maintained always in a partition while, ordinarily, substantial fairness in division is shown.
(v) Legally there is no bar that a partition must be equal in all sense. A partition is a partition and when Plaintiff failed to prove that there was any Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 94 of 127 force, coercion. It is trite law that partition can be reopened only if it is shown that the same had been obtained by fraud, or by suppression of material facts or all the parties were not present before the court, however, in the present case the rights of the parties were duly been determined in accordance with the partition which had taken place by the judgment of the Hon'ble Court of the competent jurisdiction and the same cannot be taken to be set aside or invalid merely on the ground that son of one of the parties in the earlier partition suit feeling aggrieved by the share which was given to his father.
87. Keeping in view the mandate of the abovecited judgments and the lengthy discussion this Court is of the considered opinion that the Plaintiff has failed to prove that the judgment of partition obtained in the earlier suit was collusive, null and void and not binding on the Plaintiff. Therefore, in the absence of the evidence to support the claim of the Plaintiff, it would be unjust to unsettle the partition which was determined decades ago.
88. Thus in regard to the division of the immovable properties since four shops and a hall were given to the father of the Plaintiff in a commercial area of Paharganj, therefore, in the absence of the valuation of the shops which fell in the share of the father of the plaintiff which may prove that the partition was unequal or unfair it would be unjust to hold that there was Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 95 of 127 unfairness or fraud or irregularity in the allotment of the properties between the parties in the earlier partition suit. Merely Plaintiff's father got a share in commercial properties in Paharganj area and other defendants had obtained share in residential properties doesn't give a reason to hold that the partition done on the basis of the report of Ld. Local Commissioner who was duly been appointed by the Court, was unfair, unjust and inequitable.
89. On the basis of the above discussion this court does not hesitate to hold that the scheme of the division of the immovable properties was proper and therefore, it cannot be said that the Plaintiff's father acted against the interests of his son or that the other Defendants took any advantage of his position and allotted to themselves the best among the properties available for division. Ergo, the partition is binding on the Plaintiff and that the Plaintiff is not entitled to reopen the partition. Hence, this issue is decided in the favour of the Defendants and against the Plaintiff.
Issue No. 7:
"Whether businesses mentioned in Annexure 'C' are HUF or ancestral businesses?"
90. The onus to prove this issue was upon the Plaintiff, as he has claimed these properties of the 'Hindu Undivided Family' (HUF). To prove this issue, Plaintiff deposed as PW1 and specifically relied upon the properties as shown in Annexure 'C', which are Ex-PW1/16 to Ex-PW1/21. PW1 deposed that the properties mentioned in Annexure 'C' are the HUF and belong to Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 96 of 127 the Joint Hindu Undivided family. It has been argued by the Ld. Counsel for the Plaintiff that in 1935, Sh. Latto Mal had started a fruit-selling business with Sh. Maktool Ahmed, and in 1957, partition took place amongst Sh. Latto Mal Jain and his two brothers, namely Sh. Deputy Mal and Sh. Jagdish Prasad. After the partition, the properties that fell under the ownership of Sh. Lattoo Mal Jain were nothing but HUF properties besides the business of fruit selling which was in existence from 1935.
91. The entire premise of the Plaintiff 's claim is that all the firms mentioned in Annexure-C were constituted by Sh. Latto Mal Jain and other family members with joint family funds and part of HUF properties. The funds were obtained after selling the six shops in Paharganj, which came in the share of Sh. Latto Mal Jain after the partition of 1957. The firm, M/s Latto Mal Jain Nanu Ram Jain, was constituted by Sh. Latto Mal Jain on 04.10.1963 with joint family funds. Sh. Prem Chand (son), Sh. Prakash Chand (son), Smt. Parvati Devi (sister), and Sh. Pawan Kumar (sister's son of Sh. Latto Mal Jain) were also partners in the said firm, which is reflected in Ex. PW1/16, i.e., a copy of the partnership deed of HUF Firms M/s Lattoo Mal Nanu Ram Jain, in the partnership firm M/s Lattoo Mal Nanu Ram Jain, all the sons were included, and they were all carrying out the family business.
92. It has further been argued by the Ld. Counsel for the Plaintiff that since all the firms and businesses that were started by Sh. Latto Mal Jain and his sons from the joint family funds, are the properties of HUF, therefore, the Plaintiff, being a co-parcener, is Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 97 of 127 entitled to a portion of the business and income earned from the business started from those funds. The Ld. Counsel for the Plaintiff has relied on various judgments of the Hon'ble Supreme Court and the Hon'ble High Courts to prove that income earned from the business established from the funds of the joint family is nothing but the income of the joint family, and all the co- parceners have the right to the proceeds of the business or properties as per their respective shares.
93. The Ld. Counsel for the Defendants, in contrast, denied all of the contentions of the Plaintiff and submitted that there is no documentation proving that Sh. Latto Mal Jain or any other family member ever formed HUF following the 1957 partition. Furthermore, it has been maintained by the defendants that each defendant was operating their own firm. Additionally, the Plaintiff 's father did not hold a partnership in any other firm, with the exception of Ex PW1/19, and no commercial ventures were initiated or sustained using joint family funds. Therefore, the claim of the Plaintiff of having HUF is nothing but a sham and liable to be dismissed.
94. The Plaintiff has examined himself as PW1 and deposed in line with the contents of the plaint. During the cross-examination, it was testified by PW1 that following the partition of 1957, Sh. Latto Mal Jain sold six shops in Paharganj, and from those funds, the business was started. Besides PW1, one more witness, Sh. Mahesh Gulati, Deputy Secretary, APMC, Panchvati, New Azadpur, Delhi, was also examined as PW11 by the Plaintiff to prove this issue. It was deposed by him that license no. B-6 was issued in the name of M/s Latto Mal Jain Nanu Ram Jain for Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 98 of 127 shop no. B-152, N.S. M. License No. B-5 was issued in the name of M/s Latto Mal Nanu Ram for shop no. B-152, N.S.M. and Co, and license no. B-2509 was issued in favor of M/s Latto Mal Jain, Sanjay Kumar Jain, for shop no. B-152, N.S.M. Ld. Counsel for the Plaintiff argued that since all the licenses were issued in the name of Sh. Latto Mal Jain, who was acting as the Karta of the HUF, the Plaintiff also has a share in these properties.
95. It is trite law that the burden to prove a fact is always on the person who asserts it. Plaintiff has averred that there was HUF created by joint family funds; therefore, he has to prove this fact by adducing cogent and convincing evidence. At this stage, it is appropriate to mention the law of the land on the issue and how a plea of joint family property (HUF) is examined by the Hon'ble Courts. In "Sriniwas vs. Narain", AIR 1954 SC 379, the Hon'ble Supreme Court has held that the ''burden lies upon the person who asserts that the particular property is a joint family property to establish the fact''. The Hon'ble Supreme Court again reiterated this view in a case titled 'Bhagwat Sharan vs. Purushotam, 2020 SCC OnLine SC 348' where it was held that the burden to prove that the property is a joint property of HUF is on the person who asserts so.
96. Plaintiff claimed that after the partition of the ancestral properties in 1957, ten shops in Paharganj area bearing no. 247 to 249 and 256 to 257 to 262, Gali Halwai Wali, Pahar Ganj, Delhi, and one residential property bearing no. 3545, Gali Hanuman Mandir, Subzi Mandi Main Bazar, Delhi, came in the share of Sh. Latto Mal, and from the sale proceeds of the six shops Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 99 of 127 bearing no. 246 to 248 and 256 to 258 Paharganj, Sh. Latto Mal established a joint family business and created HUF. Now the law is well established on this issue, and it is not res-integra that after the enactment of the Hindu Succession Act, 1956, ancestral property can become HUF only if its inheritance is prior to 1956 and such HUF property came into existence before 1956. Subsequent to the passing of the Hindu Succession Act, 1956, the position is different regarding creation of HUF any person who acquires any ancestral property then said property has the character of self acquired property of the said person and not HUF property and it attains the character of HUF property only when the said property is thrown into a common hotchpotch by the person who acquires the joint family property and in the later circumstance the party who asserts the said property to be the HUF property has to specifically plead as per Order VI Rule 4 CPC, the necessary details like date, month and year of creation of HUF and when the said property was thrown into a common hotchpotch. For this, reference can be made to the following judgments: "Yudhishter vs Ashok Kumar" (1987) 1 SCC 204, "Commissioner of Wealth Tax, Kanpur and Ors. V. Chander Sen and Ors. (1986) 3 SCC 567, and "Sunny(minor) & Anr. vs Sh. Raj Singh and Ors" 2015 SCC OnLine Del 13446"
97. The judgment of "Yudhishter"(Supra) and "Commissioner of Wealth Tax" (Supra) are followed by the Hon'ble Delhi High Court in various of its judgment like "Surender Kumar vs. Dhani Ram and Ors, 227 (2016) DLT 217'&"Lalsa Prasad Singh vs. Chanderwala & Ors, 2017 SCC OnLine Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 100 of 127 Del 10961" and also "Sunny(minor) (Supra) etc. wherein it has been held (para-7(i)) that, "7 (i). As per the ratio of the Supreme court in the case of "Yudhister" (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 parental 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 decrees 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 selfacquired 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 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 self acquired in hands, and which will be either 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 self acquired property throws the self acquired property into a common hotchpotch whereby such Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 101 of 127 HUF/Joint Hindu Family 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.(Emphasis Supplied)
99. The Hon'ble High Court of Delhi in Surender Kumar vs Dhani Ram & Ors;227(2016) DLT 217 in support of her arguments. The relevant observations of the judgments are reproduced as follows (para-5, 6,7):
"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen , (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of HUF property.
6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 102 of 127 entitling them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e., before passing of the Hindu Succession Act, 1956 and post 1956 i.e., after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) v. Sh.
Raj Singh, CS (OS) No. 431/2006 decided on 17.11.2015 In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self-acquired property in the hands of the successor and not as 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 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 HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc. to a share in such HUF property.
(iii) HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors.
Once that status and position continues even Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 103 of 127 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, 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 HUF continues even after 1956, then in such a case a coparcener etc. of HUF was entitled to partition of the HUF property .....9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be HUF property as to how the same is HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of 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 HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that 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 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 HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 104 of 127 HUF properties.
10. A reference to the plaint in the present case shows that it is claimed that ownership of properties by late Sh. Jage Ram in his name was as joint Hindu family properties. Such a bald averment in itself cannot create HUF unless it was pleaded that late Sh. Jage Ram inherited the properties from his paternal ancestors prior to 1956 or that late Sh. Jage Ram created HUF by throwing his own properties into a common hotchpotch. These essential averments are completely missing in the plaint and therefore making a casual statement of existence of HUF does not mean the necessary factual cause of action, as required in law, is pleaded in the plaint of existence of HUF and of its properties.
100. In light of the law discussed above it is lucid that the only way in which a Hindu Undivided Family/joint Hindu Family can come into existence after 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 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 HUF property exists because of its creation by throwing of self acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property.
101. In the judgment of "Surender Kumar" (Supra), the Hon'ble High Court has also held that in the plaint the detailed Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 105 of 127 facts as required by Order VI rule 4 CPC as to when and how the suit property has become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be HUF property as to how the same is HUF property. There is no such presumption that inheritance of ancestral property creates HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties in as much as it is necessary for existence of 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". Therefore, mere bald averments of the Plaintiff regarding the creation and existence of the HUF cannot be taken into consideration.
102. Now, reverting back to the facts of the case, it is the Plaintiff who has asserted that the suit property was the HUF property; therefore, the burden was upon him to prove that there was HUF and the property belonged to it. Plaintiff in para 1 of the plaint it has mentioned that an earlier partition disrupted after the partition in 1957. It is relevant to reproduce the relevant para of the plaint in-verbatim, Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 106 of 127 "1. That there was HUF consisting of Sri Jagdish Prashad and his two brothers Shri Deputy Mal eeptimal and Latto Mal. The said HUF was disrupted when a partition was affected between the said persons finally on 29.08.1957."
103. Though there is no evidence on record to prove that even prior to 1957 there was an existing HUF between Sh. Latoo Mal and his brothers but even otherwise Plaintiff himself has averred in the plaint that the HUF was disrupted in 1957 and subsequently also contended that in 1963, Sh. Latto Mal sold six of the shops bearing no. 246 to 248 and 256 to 258, Paharganj, and started a new HUF business. However, while deposing as PW1, he stated that he was not aware of the consideration received from the sale of these six shops. Therefore, the claim of the Plaintiff is liable to be defeated because the Plaintiff has failed to aver in the plaint the basic requirements of the creation of the HUF as mandated by the above-cited judgments since no details have been given in the plaint as to when the HUF was created after the partition of 1957. Further, the Plaintiff himself was not aware of how much consideration was obtained by Sh. Latto Mal and how it was invested in the alleged HUF business.
104. Further, in Annexure 'C', the Plaintiff has relied upon a few partnership deeds, Ex. PW1/16 to PW1/20, to establish that HUF business was in existence through several partnership firms. The claim of the Plaintiff about the existence of the HUF is not legally tenable because, on perusal of the partnership deed M/s. Latto Mal Nanu Ram Jain, Ex-PW1/16, it comes to light that Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 107 of 127 Smt. Parvati Devi w/o Lala Nanu Ram, D/o Lala Sawal Das, and Sh. Pawan Kumar s/o Lala Nanu Ram were also partners in that firm. It is pertinent to mention that Sh. Nanu Ram was the brother-in-law (jeeja) of Sh. Latto Mal Jain.
105. Similarly, the partnership deed of M/s Latto Mal Jain N. Pawan Kumar Ex PW-1/17 reveals that Smt. Parvat Devi and her son, Sh. Pawan Kumar Jain (HUF), were also partners in this firm. Further, the partnership deed of M/s Latto Mal Nanu Ram & Co. Ex PW1/18 reveals that Smt. Kanta, w/o Sultan Singh Jain, and Sh. Sunit Kumar Jain, s/o Sh. Surender Kumar Jain, were also partners in this firm. Ex PW1/20, which is a partnership deed of M/s Jain Fruits Co. consisting of partners Smt. Dulari Jain w/o Sh. Pawan Jain, Sh. Manoj Kumar Jain s/o Sh. Vijay Kumar Jain, and Sh. Jadish Kumar s/o Sh. Sawal Kumar Jain, were also partners in the firm.
106. These documents reveal that besides the family members, many other persons who were neither members of the family of Sh. Latto Mal nor a part of the chain of his family became partners in these partnership firms, and they were part of the business as claimed by the Plaintiff which were run by Sh. Latto Mal Jain or his sons. It is beyond comprehension that how a person who is not a part of the family (as mentioned by the Plaintiff in his plaint) can become a partner in the business of the Hindu Undivided Family (HUF), as mentioned in Ex-PW1/16 to Ex-PW1/19 and Ex-PW1/21. It is further pertinent to mention that, as per the mandate of the Partnership Act, 1932, any HUF Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 108 of 127 cannot become a partner with any other individual or with the association of persons as mentioned in Ex PW1/17. Reliance may be placed upon the judgment of the Hon'ble Supreme Court titled 'Rashiklal & Company vs CIT, AIR 1998 SC 401'( para-12), it has been held that, "12.HUF cannot be in a better position than a firm in the scheme of the Partnership Act. The reasons that led this Court to hold that a firm cannot join a partnership with another "individual" will apply with equal force to HUF. In law, HUF can never be a partner of a partnership firm. Even if a person nominated by the HUF joins a partnership, the partnership will be between the nominated person and the other partners of the firm. Having regard to the definition of "partnership" and "partners" and in view of the principle laid down in Dulichand case [(1956) 29 ITR 535 : AIR 1956 SC 354] it is not possible to hold that HUF being a fluctuating body of individuals, can enter into a partnership with other individual partners. It cannot do indirectly what it cannot do directly. If a Karta or any other member of the HUF joins a partnership, he can do so only as an individual. His rights and obligations vis-à-vis other partners are determined by the Partnership Act and not by Hindu law. Whatever may be the relationship between HUF and its nominee partner, in a partnership, neither the HUF nor any member of the HUF can claim to be a partner or connected with the partnership through a nominee. Where the Karta of HUF enters into a partnership agreement with a stranger, the Karta alone in the eye of law is the partner. If any payment by the firm to a partner is prohibited by law, the Karta cannot be heard to say that the payment was received by him not as a partner but in some other capacity. Within the partnership, the Karta is a partner like any other partner with whom he has entered into a partnership agreement individually. It is essential to have an agreement between the partners to form a partnership. HUF not being a "person" cannot enter into an agreement of partnership. If the Karta of HUF enters into partnership with a stranger, upon the death of the Karta, the partnership will stand dissolved. In the absence of a contract to the contrary, another member of the family cannot step into the shoes of the Karta claiming that the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 109 of 127 Karta was merely representing the HUF and the real partner was the HUF. A Karta who enters into a contract of partnership with a stranger may be accountable to the other members of the HUF for the profits received from the partnership business. But that is something between the Karta and the HUF. But so far as the partnership firm is concerned, the Karta is a partner like any other partner. If a commission is paid to a partner who happens to be a nominee of HUF, the commission is not paid to the HUF. It is paid by the firm to one of its individual partners. The partner may have to account for the monies received from the firm to another person or another firm or an association of persons or HUF. But that will not alter the fact that commission was paid by the firm to one of its partners".(Emphasis Supplied)
107. The above-cited judgment held that HUF as such cannot be a partner in a firm but it is competent to the manager or karta acting on behalf of HUF to enter into a valid partnership with a stranger or with the karta of another family." Therefore, it is lucid that HUF cannot be a partner but its Karta or any individual member of HUF can be a partner in a partnership firm in its individual capacity and not HUF. It is well- established law that HUF cannot become a partner with other individuals to form a partnership firm because HUF is itself an association of individuals and an individual/association of individuals cannot be joined with other individual/ individuals to form another association of individuals which is called a partnership firm. Though in the Ex. PW1/13, the name of the firm M/s Lattoomal Nanu Ram Jain is mentioned. Further, Plaintiff did not bring on record the tax details of these firms to establish that Sh. Latto Mal was paying tax on behalf of HUF. During the cross- examination PW1 testified that he is not aware of the tax details. The relevant portion of the examination dt. 25.10.2010 is Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 110 of 127 produced as under in verbatim:
"25.10.2010 Question was asked- whether the HUF had a status of an income tax assessee? Ans. Yes. The income tax was paid as HUF indirectly as Karta of joint family as he was karta of the joint family. Such documents are on record."
108. However, no document has been placed on record to show that the income tax was paid by the HUF directly or indirectly. Therefore, the claim of the plaintiff cannot be accepted with regards to the payment of income tax by and on behalf of the HUF.
109. The plaintiff's claim that the properties were part of a Hindu Undivided Family (HUF) or ancestral properties is liable to be rejected because if the properties were ancestral, then the children (being co-parceners in the ancestral property) of the parties in existence at that time should have been included in the partition suit decided in 1957. However, none of the children of either the plaintiff's or the defendants' were added to the said partition suit. Moreover, the plaintiff himself has contended that the HUF was disrupted in 1957. Further, there is no document or evidence is placed on record by the plaintiff to demonstrate that the HUF was ever reconstructed by Late Shri Latto Mal Jain. Based on these observations, the court held that the properties were self-acquired by Late Shri Latto Mal Jain and his brothers which were even distributed between Late Shri Latto Mal Jain and his brothers by disrupting the HUF.
110. Further, Ld. Counsel for the Plaintiff has argued that in Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 111 of 127 1968, Delhi wholesale fruit and vegetable market was shifted to New Azadpur, Subzi Mandi and a plot was offered by Delhi Development Authority (DDA) to all those who were having their shops in old Sabzi Mandi wholesale market. Therefore, Sh. Latto Mal on behalf of firm M/s Latto Mal Nanuram Jain applied for plot on 17.06.1968 (Ex. PW1/10) and in pursuance of that letter a demand letter dated 24.11.1969 for ₹. 8185 after adjusting ₹.1000/- paid by Sh. Lattoo Mal Jain with the application Ex. PW1/10 was received from DDA and the same was paid by Sh. Latto Mal Jain and in order to pay the amount to DDA for construction thereon, Sh. Lattoo Mal sold six shops of Pahar Ganj, Delhi which were HUF properties and by that amount full payment was made on 19.12.1969 to DDA for the plot no. B-152, New Azadpur Sabzi Mandi by Sh. Lattoo Mal Jain. The claim of the Plaintiff challenged by the Ld. Counsel for the Defendant and submitted that no HUF was ever existed and therefore, question of payment from the joint family funds does not arise.
111. In the plaint Plaintiff has averred that Sh. Latto Mal sold six shops and out of the sale proceeds of those shops HUF business was started by him, whereas to the contrary he deposed as PW1 in Ex PW1/A, that shops were sold in 1963 and out of the proceeds of those shops a new partnership business was started by him. Further, plaintiff again stated that shops were sold in 1969. Rs. 3500/- were paid to DDA for a shop in new Subzi Mandi out of the funds of sale proceeds of the shops. Therefore, in the absence of the cogent evidence that when the shops were Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 112 of 127 sold by Sh. Latto Mal and how much was the consideration he received from the same and how the amount were used by Sh. Latto Mal with the intention to create a HUF, the stand of the Plaintiff doesn't hold any substance and liable to be rejected.
111. Additionally, the plaintiff's claim that the properties were part of a Hindu Undivided Family (HUF) or ancestral properties is liable to be rejected because if the properties were ancestral, then the children (being co-parceners in the ancestral property) of the parties in existence at that time should have been included in the partition suit decided in 1957. However, none of the children of either the plaintiff's or the defendants' were added to the said partition suit. Moreover, the plaintiff himself has contended that the HUF was disrupted in 1957. Further, there is no document or evidence is placed on record by the plaintiff to demonstrate that the HUF was ever reconstructed by Late Shri Latto Mal Jain. Based on these observations, the court held that the properties were self-acquired by Late Shri Latto Mal Jain and his brothers which were even distributed between Late Shri Latto Mal Jain and his brothers by disrupting the HUF.
112. During the proceedings of the suit both the parties filed two set of perpetual lease deed of the shop bearing no. shop at B-152, New Subzi Mandi, Azadpur, Delhi (Ex no. PW1/17 and Ex. DW2/7). It has been submitted by the Ld. Counsel for the defendant that the plaintiff has admitted the perpetual lease deed dated 26.06.1971, which has been exhibited as DW2/7 and Ex. D2/1 which is in the name of M/s Lattomal Nanuram Jain which has been signed by Sh. Lattomal Jain wherein the names of the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 113 of 127 partners are mentioned. Though, no witness was produced by the Defendants to prove the document as it was their stand that since the document was admitted at the time of admission and denial before the Hon'ble High Court therefore, an admitted document need not to be proved by calling a witness.
113. Whereas, Plaintiff has also filed a perpetual lease issued by DDA (Ex No. PW1/13) however, on the lease deed of the Plaintiff no names of the partners are mentioned but only name of the firm is written. Plaintiff also examined one witness from DDA to establish that the perpetual lease filed by the Defendants is nothing but a forged document. The perpetual lease deed filed by the Defendants lost from the judicial record but subsequently the document was reconstructed by the orders of the Ld. Predecessor of this Court. Perusal of the perpetual lease deed (DW-2/7) filed by the Defendants transpired that it mentioned the name of the partners of the firm and perpetual lease deed was not given in the name of HUF but in the name of the firm M/s Lattomal Nanu Ram Jain.Even if this Court holds that the Defendants have failed to prove their perpetual lease deed even then perpetual deed adduced by the Plaintiff not supporting its case. As already mentioned that no where it has been mentioned in the document that perpetual lease was given to the HUF, therefore, perpetual lease deed issued in the favour of the firm doesn't give any weightage or substance to the case of the Plaintiff.
Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 114 of 127
114. In the considered opinion of this Court the Plaintiff has failed to prove that HUF was constituted by Sh. Latto Mal and/or that there was any property which formed the nucleus of the said joint family or that there was a 'jointness' of the alleged family or that the property/ properties belonged to such a joint family or that it was purchased through funds derived from the business of the joint family/HUF. The partnership deeds merely established the existence of a business jointly run by members of the family with some other individual members who are not the part of family which does not support the Plaintiff in substantiating his claim over the existence of HUF or that of the alleged HUF properties as mentioned in Annexure 'C'. The fact of the presence of the members who were not the part of the family is suffice to hold that there was no HUF in existence at any point of time because by no stretch of an imagination it may be thought of that HUF may consists members outside the family. Further, it is also well established law that HUF cannot enter partnership with any other person or association of persons, therefore, the partnership firms as mentioned in 'Annexure C' cannot be covered within the ambit of HUF.
115. In nutshell, in light of the mandate of the judgments cited above mere bald averment and unsubstantiated submission of the Plaintiff that Sh. Latto Mal started joint family business from the funds obtained from the selling of the joint family properties and therefore, all the firms and business are nothing but joint family properties, could not be accepted. Further, neither the Plaintiff has proved the creation of the HUF by the specific details nor it has been explained that how the members outside from the Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 115 of 127 family may become the members of the HUF or joint family. Neither any document comes on record by which it may be established that Sh. Latto Mal was paying income-tax on behalf of HUF or acting as a Karta of HUF. Therefore, the present issue is decided against the Plaintiff and in favour of the Defendants.
ISSUE No. 8 :
"(8) In respect of what properties is the Plaintiff entitled to relief of partition or rendition of account?"
116. The burden to prove this issue was upon the plaintiff. Plaintiff has filed three annexures as A, B and C containing the properties allegedly obtained/purchased or acquired by the joint family funds. As far as the properties as mentioned in Annexure A and C except other than M/s R.C. Jain & Co. (Ex. PW-1/19) are concerned has already been dealt by this court in issue no. 6 and 7 wherein it has been adjudicated that after the partition of 1957, no HUF was ever constituted. Plaintiff has not only failed to prove that9 the members of the family were ever blended their resources to constitute an HUF but also did not bring the cogent evidence to support his submissions that the property mentioned in Annexure A and C were the HUF property or properties acquired by the funds of joint family business or HUF Funds. Perusal of the record reveals that M/s R.C. Jain & Co. was a partnership firm consisting of Sh. R.C. Jain and Sh. Prem Chand Jain having 90% and 10% respectively share in the said firm. It is pertinent to mention that the abovesaid firm was carrying on its business of sewing machines, electric goods, radio, amplyfiers Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 116 of 127 etc. from the shop no. 172, Main Bazar, Subzi Mandi Delhi which was a tenanted shop taken on rent by Sh. Lattoo Mal Jain in the name of his elder son.
117. At the cost of repetition this court is reiterating that the documents and evidence on record suggest that a partition took place in 1957 between Late Shri Latto Mal Jain and his two brothers. There is no averment in the plaint that Late Shri Latto Mal Jain inherited property(s) from his paternal ancestors prior to 1956. Furthermore, the plaintiff has failed to produce any document or evidence before this court to establish that a HUF was created after 1956 by throwing any property into the common hotchpotch either by Late Shri Latto Mal Jain or his sons, including the father of the plaintiff. There is no mention in the pleadings of the plaintiff, nor in the affidavit submitted as evidence by PW1, specifying the date, period, month, or year of the creation of a HUF by Late Shri Latto Mal Jain after 1956 by throwing any properties into the common hotchpotch.
118. Additionally, a review of the plaint reveals only a claim that the properties owned by Late Shri Latto Mal Jain were joint Hindu family/HUF properties. Such a vague assertion does not establish the existence of an HUF unless it is explicitly stated that Late Shri Latto Mal Jain inherited the properties from his paternal ancestors before 1956 or that he created an HUF by throwing his own properties into the common hotchpotch. These essential details are entirely missing from the plaint. Thus, merely stating the existence of a HUF, does not fulfill the necessary factual Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 117 of 127 cause of action, as required by law, to establish the existence of a HUF and its properties. In the absence of any specific evidence, the plaintiff's claim that the properties were part of the HUF/joint Hindu family does not stand and is liable to be rejected. It is hereby held that there was no HUF was formed by Late Shri Latto Mal Jain and no property was a part of the alleged HUF.
119. Additionally, the Hon'ble High Court of Delhi in the case titled "Sh. Surender Kumar vs Sh. Dhani Ram & Others" has held that "If a person dies after passing HSA and there is no HUF existing at the time of the death of such a person, inheritance of immovable property of such a person by his successors - in - interest is no doubt inheritance of 'ancestral' property, but the inheritance is as self-acquired property in the hands of the successor and not as HUF property although the successor(s) indeed inherits 'ancestral' property i.e., a property belonging to his parental ancestor."
120. In view of the settled legal position and upon perusal of the facts of the present case, it is clear that there was no HUF existing at the time of the death of Late Shri Latto Mal Jain. Therefore, the inheritance of his immovable property by his successors-in- interest is indeed inheritance of 'ancestral' property, but it is considered as self-acquired property in the hands of the successor and not as HUF property, even though the successor(s) inherit 'ancestral' property, i.e., property belonging to their parental ancestor.
Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 118 of 127
121. Considering the aforementioned observations, this court for the purpose of clarification is dealing with each property referred by the plaintiff in Annexures A, B, and C. Annexure A (immovable properties owned by HUF) Property No.1 - Haveli No. 3545, Ward No. 12, Gali Chajju Loharwali and Gali Hanuman Mandir wali, near post office, Subzi Mandi, Delhi (220 se. yds.) As the issue no.6 was decided against the plaintiff and the order/judgment dated 19.11.1985 is in force since it has attained the finality and this court in issue no.6 has already been held that the said judgment and decree is valid and binding on the plaintiff andas per the said order/judgment, this property belongs to the defendant no.2 to 5 and the plaintiff has no right/claim/stake qua this property.
Property No.2 - No. 247 to 249 and 256 to 262 ward No. XV with six shops Gali Halwaiwali, Paharganj, Delhi (120 sq. yds.) This Court has already adjudicate the issue no. 6 against the plaintiff and it has been held that shops no. 259, 260, 261, and 262 were sold by Late Shri Roop Chand Jain, the father of the plaintiff, during his lifetime. The plaintiff's case asserts that these shops were sold under pressure from the brothers of the plaintiff's father, i.e., defendants no. 2 to 5. However, the plaintiff has not provided any evidence to support this claim. Regarding the remaining shops, bearing no. 247, 248, 249, 256, 257, and 258, Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 119 of 127 these shops were sold by Late Shri Latto Mal Jain during his lifetime as the sole owner. Furthermore, the plaintiff made contradictory statements in his pleadings and evidence that the properties were sold in 1963 to start the business M/s Latto Mal Nanu Ram Jain, and contrary to this, he asserted that the sale proceeds were used to pay dues in 1969 to DDA and to construct Shop no. B-152, New Sabzi Mandi, Azadpur, Delhi. Additionally, issue no. 7 has already been decided, establishing that the firm M/s Latto Mal Nanu Ram Jain is a separate entity with different partners at various times. In any case, the six shops were already sold before the filing of the partition suit between Late Shri Latto Mal Jain and his sons. During the evidence, PW11 Mr. Mahesh Gulati was examined, who deposed that the shop was allotted to the firm as licensee. As per the witness, a license was issued to the firm M/s Lattoo Mal Nanu Ram for Shop no. B-152, New Subzi Mandi. It is a settled law that neither the licensee right can be culminated into the ownership right nor it can be partitioned or inheritable right. Therefore, the plaintiff has no right, claim, or stake in these properties.
Property No.3 - Shops of HUF purchased from the funds of business of HUF by the Karta Sh. Latoo Mal Jain one in the name of HUF Firm M/s Latto Mal Nanu Ram Jain bearing Municipal Nos. 217, Block A, New Subzi Mandi Market, Azadpur, Delhi; and other bearing municipal no. 83, block C, New Subzi Mandi Market, Azadpur, Delhi in the name of Sh. Prem Chand Jain, member of HUF from the funds and business of HUF.
Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 120 of 127 In Issue No. 7, this claim of the plaintiff has already been adjudicated with respect to the firm M/s Latto Mal Nanu Ram Jain. Additionally, the plaintiff's assertion that in suit No. 128/1968, the firm M/s Latto Mal Nanu Ram Jain was decided as a joint family business does not entitle him to any claim over the property. This suit was a maintenance suit between the father and mother of the plaintiff, and none of the other defendants (arrayed in the present suit) were parties to that suit. Consequently, the plaintiff has no right, claim, or stake in the property bearing Nos. B-152 and B-182, New Sabzi Mandi, Azadpur, Delhi.
Property no.4 - One MIG Flat under DDA's Rohini Scheme booked from HUF fund by Sh. Latto Mal, karta of HUF in the name of Sh. Raj Kumar S/o Sh. Prem Chand vide application no. 51328 dated 25.04.1981.
It is undisputed that the DDA property was purchased in the name of Shri Raj Kumar Jain, Defendant No. 2(a) herein, and also sold by him. Further, it has already been decided that there was no HUF after 1957 and in Issue No. 7, it has also been decided that the plaintiff has no claim in the firm M/s Latto Mal Nanu Ram Jain. In view of this, the plaintiff has no right, claim, or stake in this property.
Property No.5 One rented shop no. 172, Main Bazar, Subzi Mandi, Delhi in the name of Sh. Prem Chand Jain, member of HUF Family in which a HUF business in the name of M/s R.C. Jain & Co. is being carried out.
Judgment dt. 22.07.2024
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Admittedly the shop bearing no. 172, Main Bazar, Sabzi Mandi, Delhi was a rented premise. Further, perusal of the record, it is evident that the rent receipts were issued in the name of late Shri Prem Chand Jain and an eviction petition was also filed against late Shri Prem Chand Jain. However, the plaintiff has failed to place on record any cogent evidence/document to establish that the said rented shop was a HUF property or that the father of the plaintiff had any right or claim in the said rented shop. Hence, the plaintiff has no right/claim/stake qua this property. It is important to note that the plaintiff is unable to support his positions with consistency. While he claims that his father was a drunkard who did nothing but depend on his brothers for support, he also claims that his father was involved in business with them. Consequently, these two positions are incompatible: either he was doing nothing and dependent on his brothers, or he was competent enough to manage his own partnership firm. Unsubstantiated claims made by the plaintiff that conflict with one another are liable to be rejected.
ANNEXURE - B (movable properties owned by HUF)
(i) Ancestral jewellery, ornaments, precious stones, silver utensils etc of HUF kept in safe lockers of various banks and in personal possessions of Defendant no. 1 to 4. Details of lockers are as under:
Latto Mal Jain Prem Chand Jain at Central Bank of India, Chandni Chowk bearing Locker No. 1796 Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 122 of 127 Latto Mal Jain Roop Chand Jain at UCO Bank, Ghanta-
Ghar, Subzi Mandi bearing Locker No.97 Prakash Chand Jain at UCO Bank, Ghanta-Ghar, Subzi Mandi bearing Locker No.42 Bimal Devi W/o Prem Chand Jain at UCO Bank, Ghanta-
Ghar, Subzi Mandi bearing Locker No.172 Suresh Chand Jain at UCO Bank, Ghanta-Ghar, Subzi Mandi bearing Locker No.215 In reference to the above mentioned articles this court has carefully perused the report submitted by the Local Commissioner, Shri K.K. Aggarwal, the following findings are noted:
Locker No. 1796 was surrendered by Shri Prem Chand Jain in 1982 and was subsequently allotted to someone else. Therefore, this locker could not be opened. Locker No. 97 did not belong to Shri Roop Chand Jain and was in the name of another individual, so it could not be opened.
Locker No. 42 was opened on 16.01.1988, but the Local Commissioner found it empty, with no articles present. Locker No. 172 contained only one iron key and nothing else.
Locker No. 215 was opened, and the Local Commissioner found four boxes. A list of inventories was prepared, with the total value of the inventories amounting to Rs. 1,65,151/-. However, it appears from the report and Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 123 of 127 documents that this locker No. 215, belonged to and was owned by Shri Suresh Chand Jain.
In addition to the above, the plaintiff has failed to produce any document or evidence to establish that the inventories in locker No. 215 belonged to the HUF, as claimed. In light of these findings, the claim regarding the contents of locker No. 215 being part of the HUF's assets is not substantiated.
(ii) Cash of HUF in various bank accounts i.e. UCO Bank, (S.B. A/c No. 9959) Subzi Mandi, Delhi, Central Bank of India, SubziMandi, Delhi, Union Bank of India, Subzi Mandi, Delhi, State Bank of India, Rana Pratap Bagh, Delhi.
(iii). HUF money invested in various bonds of Reserve Bank of India and other banks as fixed deposits.
(iv). Various house-hold goods of HUF i.e. Refrigerators, Air-
Coolers, Televisions etc.
(v). Four nos. two wheeler scooters in the name of joint Hindu Family Members i.e. DLO 1814, DEO 9926, 8189 and 1184.
As discussed in the preceding paragraphs, this court has observed that the plaintiff has failed to establish the existence of any HUF subsequent to 1956. Consequently, there is no need for this court to further address the plaintiff's claims regarding the properties of the HUF. The court also notes that while there may be a presumption that every Hindu family which is joint in food and worship is a Hindu Joint Family, there is no presumption that Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 124 of 127 the estate or property is joint or part of a Hindu Joint Family. Further, the plaintiff has not provided any documentary proof to support the claim that the property was part of a HUF. In the absence of such evidence, the relief sought by the plaintiff is therefore rejected.
ANNEXURE - C (business of HUF)
1. M/s Seth Latoo Mal Nanu Ram Jain, New AzadpurSubzi Mandi, Delhi, carrying on the business of all kinds of fruits, merchants and commission agents with other businesses.
2. M/s Seth Latoo Mal and Pawan Kumar, 4200 Arya Pura, Subzi Mandi, Delhi Carrying on business of fruit merchants and commission agents with other goods.
3. M/s Seth Latoo Mal Nanu Ram & Co. with its shop at 4200 Aryapura, Subzi Mandi, Delhi carrying on business of purchase, sale and commission agents of fresh fruits and vegetable and other businesses.
4. M/s Jain Fruit Co., 4200, Aryapura, Subzi Mandi and shop at B-152, New Subzi Mandi, Azadpur, Delhi dealing in fuir merchants, commission agents and other items.
This court has already addressed the properties listed in Annexure C, points 1 to 4, except for M/s R.C. Jain & Co. (Ex. PW-1/19). It was determined in previous proceedings in Issues no. 6 and 7 that no HUF was ever constituted after the 1957 partition. Plaintiff has not only failed to prove that the members of the family ever blended their resources to constitute a HUF but Judgment dt. 22.07.2024 CS DJ No. 15466/2016 Taween Kumar Jain Vs Roop Chand Jain and Ors. Page No. 125 of 127 also did not bring any cogent evidence to support his submissions that the property mentioned in Annexure C was the HUF property or properties acquired by the funds of joint family business or HUF Funds.
5. M/s R.C. Jain & Co. at 172, Main Bazar Subzi Mandi, Delhi, dealing in purchase and sale of electric goods etc. It is a settled law that the party who asserts has the onus to prove the same. However, except for referring to the name of the firm M/s R.C. Jain & Co. in Annexure C, the plaintiff did not plead anything in his plaint and neither in his evidence by way of affidavit. Further, the plaintiff has also failed to bring any document on record to establish that till when the said partnership firm was in operation and doing business. Additionally, the plaintiff also failed to provide any cogent evidence for the running and profit or loss of M/s R.C. Jain & Co. Therefore, this court does not deem it fit to allow the prayer of the plaintiff seeking rendition of account.
Therefore, this court is constrained to hold that the plaintiff is not entitled to any partition of the properties or rendition of account and Issue no.8 is accordingly decided against the plaintiff.
Relief :
122. In view findings on the issue no. 1 to 8, the suit of the plaintiff is dismissed with costs.
Judgment dt. 22.07.2024
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123. Decree sheet be prepared accordingly.
124. File be consigned to record room.Digitally signed by
SANDEEP SANDEEP KUMAR
KUMAR SHARMA
Date: 2024.07.22
SHARMA 18:17:56 +0530
Pronounced in the open Court (Sandeep Kumar Sharma)
on July 22nd, 2024 District Judge-02,Central,
Tis Hazari Courts, Delhi
Judgment dt. 22.07.2024
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