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Shri Neeraj Bhatia vs Shri Ravindra Kumar Bhatia & Ors on 29 March, 2023

Author: Navin Chawla

Bench: Navin Chawla

            $~8
            *        IN THE HIGH COURT OF DELHI AT NEW DELHI
            +        CS(OS) 210/2023
                     SHRI NEERAJ BHATIA                         ..... Plaintiff
                                     Through: Mr.Praveen Kumar, Mr.Nitesh
                                              Tiwari, Mr.Vishal Pandey,
                                              Advs.

                                        versus

                     SHRI RAVINDRA KUMAR BHATIA & ORS. ..... Defendants
                                  Through: Mr.Ajay Veer Singh, Adv.

                  CORAM:
                  HON'BLE MR. JUSTICE NAVIN CHAWLA
                                   ORDER

% 29.03.2023 I.A. 6139/2023 (exemption)

1. Allowed, subject to all just exceptions. CS(OS) 210/2023 & I.A. 6138/2023

2. It is the case of the plaintiff that the plaintiff's grandfather, Late Sh.Balwant Lal Bhatia, was serving at the rank of Jemadar under the erstwhile British Army. In order to rehabilitate the personnel of the British Indian Army, residential plots were allotted by the Government of India. In the said Scheme, the grandfather of the plaintiff was allotted a residential plot bearing Plot no. A-125, Defence Colony, New Delhi (hereinafter referred to as 'Suit Property') vide lease deed dated 24.08.1957 by the Government of India. He constructed a house comprising of the ground floor, first floor and second floor and shifted to the said suit property along with his family members.

3. A vague averment is thereafter made that on the death of the grandmother of the plaintiff on 07.08.1993, Late Sh.Balwant Lal Bhatia decided to place the suit property in the common hotchpotch and created a Hindu Undivided Family/Joint Family, Signature Not Verified wherein he shall be the 'Karta'.

4. The plaintiff further, again in a vague manner, submits that in the year 1994, the property was orally partitioned amongst the children of Late Sh.Balwant Lal Bhatia, with the two sons and the daughter getting one floor each in the suit property. The plaintiff, in spite of this assertion, has filed this present suit claiming that the property remained a Hindu Undivided Family/Joint Family Property. In my view, this is a contradiction in terms.

5. In fact, I may note the pleadings of the plaintiff on the basis whereof the present suit has been filed. The same are reproduced herein below:

"7. That on 07.08.1993, grandmother of plaintiff i.e. wife of Late Shri Balwant Lal Bhatia passed away and Balwant Lal Bhatia was overcome by emotion and became inconsolable. The last rites were performed and Tehravi was organized on 19.08.1993 at Arya Samaj Mandir, Kotla Mubarakpur, New Delhi. The Plaintiff who was studying in college in Kolkata at that point of time had also come to participate in the rituals. After conclusion of rituals, while the relatives were present, Late Balwant Lal Bhatia on the next day after Tehravi, on 20.08.1993 had in the presence of his two sons, daughter and their children and also in the presence of brother and sister of Late Smt. Sushila Bhatia, namely Sri Hansraj Bhatia, and his wife Smt. Urmila Bhatia, Smt. Vidya Bhatia and her husband Shri Baburam Bhatia, and elder nephew of Late Smt. Sushila Bhatia, Shri Sushil Bhatia expressed his earnest desire that he wants to see his children and grandchildren happy and growing in his house and blended the property bearing no. A-125, Defence Colony, New Delhi-110024, which was his self-acquired property, in the common hotchpotch and impressed the same with joint family character and said that as long as he lives, he will be the Signature Not Verified Karta of the his Hindu Undivided Family/Joint Digitally Signed By:SUNIL Family with the suit property being the joint Signing Date:29.03.2023 family property. In this manner, the self- 19:49:03 acquired property of Late Shri Balwant Lal Bhatia was impressed with the character of a joint family property and was thrown in the common hotchpotch of the Hindu Undivided Family. It is imperative to state that the Plaintiff was living with his grandfather during his childhood and he continued to live with him on the ground floor while his father Defendant No. 1 was posted outside Delhi.

8. That the suit property bearing no. A-I25, Defence Colony, New Delhi was used as a joint family/HUF property ever since then and the entire family was using it in their own right. Defendant No.3, Mr. Surinder Mohan Bhatia was due for retirement on 31.07.I994 and Defendant No.1, Mr. Ravindra Kumar Bhatia was due for retirement on 15.06.I996. The Defendant No.1 and 3 both needed their designated portion in the suit property and therefore on first barshi of Late Mrs. Sushila Bhatia, the family had gathered together on 07.07.1994 for the rituals and after the same got over, they orally partitioned the property bearing no. A-I25, Defence Colony, New Delhi and ground floor came to the share of branch of Mr. Surinder Mohan Bhatia Defendant No.3, First Floor came to the share of branch of Shri Ravindra Kumar Bhatia, (Defendant No. 1) and Second Floor came to the share of branch of Mrs. Pramila Bhatia, Defendant No.6. The grandfather Late Shri Balwant Lal Bhatia decided not to take any specific portion in the partition and decided that he would live in the portion of Defendant No.3 Shri Surinder Mohan Bhatia on the ground floor as wife of Shri Surinder Mohan Bhatia was already deceased. First Floor was used by the family of Shri Ravindra Kumar Bhatia Defendant No. 1, which included him, his wife Smt. Urvashi Bhatia, Plaintiff and his sister Shimona Bhatia (Defendant No.2) as the family shifted to the suit property in the year 1997 after staying for a brief period in Noida after retirement. Second Floor was rented out as sister Pramila Bhatia Defendant No.6 was living with her husband and the rent was being credited by the tenant to the joint account of Smt. Pramila Bhatia and Late Balwant Lal Bhatia.

9. The parties have been using their respective portions as per the oral partition Signature Not Verified dated 07.07.1994 which was acted upon by the Digitally Signed By:SUNIL parties who continued living in their respective Signing Date:29.03.2023 19:49:03 portions until death of grandfather of the plaintiff Sri Balwant Lal Bhatia on 07.03.2004 and even thereafter. The electricity and water connection are still in the name of Late Balwant Lal Bhatia. However, the land underneath the suit property is joint and all the parties have their 1/9th share each in the same.

6. Prima facie, the above averments, without at least some document to support the same, are insufficient to make out a case for the property being converted into a Hindu Undivided Family property by putting the same in family hotchpotch when admittedly none existed prior thereto.

7. The learned counsel for the plaintiff further submits that mere pleadings in the plaint are sufficient to claim a right in the suit property. In support, he places reliance on the judgment of this Court in Sunny (Minor) & Anr. v. Sh.Raj Singh & Ors. 2015 SCC OnLine Del 13446.

8. In my view, rather than supporting the case of the plaintiff, the above judgment holds that mere vague assertions in the pleadings are not sufficient. The onus of proof in a case where partition is sought is on the plaintiff and it should be discharged by leading some credible documentary evidence; rights in the immovable properties of the defendants cannot be destroyed on account of self-serving oral statements and stand of the plaintiff. I may quote from the judgment as under:-

"11. I must, at the risk of repetition, note that there exists the legal requirement of discharge of the onus of proof by at least leading some credible documentary evidence in a case where partition is sought of valuable immovable properties, and oral evidence is not to be treated by courts as sufficient, inasmuch as, rights in immovable properties of Signature Not Verified defendants cannot be destroyed on account of Digitally Signed By:SUNIL self-serving oral statements and stand of the Signing Date:29.03.2023 19:49:03 plaintiffs that there existed an HUF and HUF had various properties which are mentioned in para 15 of the plaint."

9. In Ansh Kapoor & Anr. v. K.B. Kapur & Ors., 2021 SCC OnLine Del 510, this Court observed as under:-

"24. Another plea that has been vaguely raised is that after the death of the great grandfather of the plaintiffs Late Sh. Lal Chand Kapur in 1984, what Defendant 1 inherited from his father Late Sh. Chand Kapur was thrown into the common hotchpotch and constituted an HUF property. The plea is vague and unsubstantiated. No material particulars or details are given.

25. What is visible from a perusal of the plaint is that vague and unsubstantiated pleas have been raised which lack material facts and particulars. Sweeping allegations have been made that late Sh. Lal Chand Kapur, the great grandfather of the plaintiffs had a property in Darya Ganj which was an HUF property. On his death, Defendant 1 received 1/2 share in the said estate of late Sh. Lal Chand Kapur which is an HUF property in the hands of Defendant 1. The plaintiffs on birth had 1/8 share in the said properties. The learned counsel for the plaintiffs clarified that late Sh. Lal Chand Kapur had thrown the Darya Ganj property into a hotchpotch and that is why, the said property is an HUF property. It is claimed that all the properties now owned by Defendants 1 to 4 were purchased out of the funds obtained from selling the said HUF property. It is claimed that in 1981-1982 Defendant 1 sold away the HUF property at Darya Ganj and out of the proceeds, all other properties were bought by Defendant 1 in his name or in the name of his wife including the properties at Saket, Sagar Apartment, East of Kailash, Mahipalpur and the property at Gurgaon.

26. The legal position as noted above is quite clear. Under Order 6 Rule 4 CPC, there is a legal requirement to provide all necessary factual details of the cause of action which must be clearly stated. Once it is claimed that Signature Not Verified the property was thrown into a common Digitally Signed By:SUNIL hotchpotch, it is necessary that the exact Signing Date:29.03.2023 19:49:03 details of the specific date, month, year, etc. of creation of the HUF for the first time by throwing the property into a hotchpotch must be clearly pleaded. Averments have also to be made by factual reference to each property claimed to be an HUF property as to how the same is an HUF property. As noted above by a Coordinate bench of this Court in Parmod Kumar Jain v. Ram Kali Jain, there is a known tendency of litigants to include unnecessarily many properties as HUF properties, which is done for less than an honest motive. Hence, a mere ipse dixit statement in the plaint that an HUF exists and the properties are part of the HUF is not a sufficient compliance of the legal requirements of creation or existence of HUF properties."

10. In the present case, apart from giving details of dates when allegedly the suit property was thrown into the hotchpotch of the Hindu Undivided Family, no document whatsoever has been produced by the plaintiff in the form of any Property Tax Return, Income Tax Return, Utilities Bills, etc. In fact, it is not even the case of the plaintiff that the parties to the suit were having any common business or common kitchen or common source of income.

11. In fact, the learned counsel for the defendants, who has entered appearance, submits that the plaintiff is well aware of the fact that the grandfather, Late Sh.Balwant Lal Bhatia, had left behind a Will, acting whereupon, the suit property was mutated in the name of his children upon his death in 2004 and partitioned. He further submits that the defendant no.1, the father of the plaintiff, has filed proceedings under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 against the plaintiff, notice of which proceedings are with the plaintiff, however, the plaintiff has intentionally concealed these facts from this Court.

12. Before I issue summons in the suit, I, therefore, deem it Signing Date:29.03.2023 19:49:03 appropriate to direct the plaintiff to deposit a sum of Rs.2,00,000/- (Rupees Two Lakhs only) with the Registry of this Court within a period of one week from today, which shall act as a security of costs for the defendants in case I find this suit to be meritless or vexatious.

13. List on 18th April, 2023.

14. It is made clear that there is no interim order in the present suit.

15. It is also made clear that the above observations are merely prima facie in nature and made only to give reasons why the issuance of summons is being delayed to after the plaintiff secures the defendants of the costs of the Suit.

NAVIN CHAWLA, J MARCH 29, 2023 RN Signature Not Verified Digitally Signed By:SUNIL Signing Date:29.03.2023 19:49:03