Delhi District Court
Baby Princy vs Sh. Ishwar Singh on 19 May, 2022
IN THE COURT OF SH. SURENDER MOHIT SINGH
ADDITIONAL DISTRICT JUDGE-04 (NORTH)
ROHINI COURTS, DELHI
RCA - 68/17
Baby Princy
D/o Sh. Bijender
Grand Daughter of Sh. Ishwar Singh
Through her mother and Guardian
Smt. Anita W/o Sh. Bijender
Presently residing at :
H.No. 592/26, West Ram Nagar,
Sonepat, Haryana.
......Appellant
Versus
1. Sh. Ishwar Singh
S/o Sh. Roop Singh
2. Sh. Bijender
Sh. Ishwar Singh
Both residents of:-
347, VPO Rani Khera,
Delhi-110081
......Respondents
Date of institution of appeal : 28.07.2017
Date of pronouncement of judgment : 19.05.2022
Result : Dismissed
RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 1/17
JUDGMENT
1. The instant first appeal u/o 41 r/w Section 96 and Section 151 of the Code of Civil Procedure, 1908 (in short CPC) is directed against the impugned order/judgment dated 28.02.2017 of Ld. SCJ-cum-RC (North), Rohini Courts, Delhi whereby the suit bearing no. 35126/16 of appellant/plaintiff was rejected u/o 7 Rule 11 (a) & (d) CPC.
2. Brief facts giving rise to the present appeal are that appellant/plaintiff (hereinafter appellant) filed suit for partition against the respondents/defendants (hereinafter respondents). Appellant is grand daughter of respondent no.1 and daughter of respondent no. 2. She claimed herself to be the co-parcener in land measuring 77 Bighas and 3 Biswas in village Rani Khera, Delhi to the extent of her 1/4th share. She had also claimed her share in land acquisition award of Rs. 12,38,320/- received by respondent no.1 in lieu of acquisition. Apprehending that the respondents may sold the aforesaid property to the prejudice of her co- parcenary rights, she filed the suit for partition.
3. After service of summons, respondents filed application u/o VII Rule 11 CPC. Vide order dated 28.02.2017, the said application was allowed and suit of the appellant was dismissed.
4. Feeling aggrieved with the order of trial court, appellant has filed the instant appeal mainly resting on the ground that the ld. Trial court has wrongly opined that the suit property is self-acquired property despite being the admitted fact that property is ancestral. Appellant prayed for RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 2/17 setting aside of the impugned order. Ld. Counsel for appellant has relied upon (i) AIRONLINE 2020 SC 676 Vineeta Sharma vs. Rakesh Sharma, Civil Appeal 32601 of 2018; and (ii) AIR 2022 Supreme Court 605 Arunchala Gounder (Dead) by LRs. vs. Ponnusamy, Civil Appeal No. 6659 of 2011.
5. Respondents filed reply taking preliminary objections inter alia that (i) appeal not maintainable as there is no infirmity in the impugned order which was passed in accordance with law; and (2) appeal not maintainable being time barred and no application for condonation of delay has been filed along with the appeal. It is submitted that in view of Sections 4, 6, 8 and Schedule of Hindu Succession Act, grand son or grand daughter have no birth right in the properties of grand-father and he/she cannot claim partition during her lifetime. The suit property is self-acquired property of respondent no. 1 having inherited in his individual capacity and he is sole owner of the same. It is prayed that appeal be dismissed. Ld. Counsel for the respondents has relied upon (i) Jai Narain Mathur & Ors. vs. Jai Prakash Mathur (Deceased) RFA No. 571/2011; (ii) Sushil Kumar (Sunil) and Ors. vs. Ram Prakash and Ors. Civil Appeal No. 1576 of 1987, MANU/SC/0521/1988; (iii) Amarjeet Singh @ Rinku vs. Surjeet Singh and Ors. RFA 673/2014; and (iv) Uttam vs. Saubhag Singh and Ors Civil Appeal No. 2360 of 2016.
RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 3/17
6. Ld. counsel has argued that in Jai Narain Mathur & Ors. Case (supra), Hon'ble High Court of Delhi has held as under:
"15. I have in Neelam Vs. Sada Ram MANU/DE/0322/2013 and later reiterated in Shri Naval Kishore Vs. Shri Jugal Kishore MANU/DE/0978/2013, Smt. Bala Devi Vs. Sh. Chhotu Ram MANU/DE/0908/2013, Rajat Khanna Vs. R.P. Khanna MANU/ DE/0971/2013 and by a Division Bench of this Court of which the undersigned was a part in Harvinder Singh Chadha Vs. Saran Kaur Chadha MANU/DE/1457/2014 observed that there is a widespread misconception not only amongst persons not in the know of law but also amongst persons who have studied law that a son has a share in the property inherited by his father from his own father. It is not so after the coming into force of the Hindu Succession Act, 1956. Though Hindu Succession Act made a change in the law applicable to Hindus in this regard but in the last over half a century, the understanding amongst the masses continues to be of the law as it was prior to 1956 i.e. of a son acquiring a share in the properties inherited by his father from his own father."
17. However need for any further discussion in this regard is not felt since this Court in Surender Kumar (supra) has elaborately dealt with the matter as under:-
"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (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 an 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 Vs. 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 an HUF property and inheritance of ancestral property after 1956 therefore does not result in RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 4/17 creation of an 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 an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such CS(OS) No.1737/2012 Page 5 of 16 even after 1956. In such a case, since an 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 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) & Anr. vs. Sh. Raj Singh & Ors., CS(OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-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 an HUF property although the successor(s) indeed inherits "ancestral" property i.e a property CS(OS) No.1737/2012 Page 6 of 16 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 RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 5/17 thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/ year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of 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) An 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 after1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties. CS(OS) No.1737/2012.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property."
8. The relevant paragraphs of the judgment in the case of Sunny (Minor) (supra) are paragraphs 6 to 8 and which paras read as under:-
"6. At the outset, it is necessary to refer to the ratio of the judgment of the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and in para 10 of the said judgment the Supreme Court has made the necessary observations with respect to RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 6/17 when HUF properties can be said to exist before passing of the Hindu Succession Act 1956 or after passing of the Act in 1956. This para reads as under:-
'10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors.
MANU/SC/0265/1986MANU/SC/0265/1986:
[1986]161ITR370(SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. It that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."
(emphasis is mine) 7(i). As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter's paternal ancestors upto three degrees above, has come to an end. Under RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 7/17 the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person "A" inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a self-acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to "A". After passing of the Hindu Succession Act 1956 this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act 1956 and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in-interest 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 property or properties thrown into a common hotchpotch become Joint Hindu Family properties/ HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
(ii) This position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 8/17 defendant no.1 being "ancestral" properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created ie whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter.
7. In Sushil Kumar (Sunil) and Ors. (supra), the Hon'ble Supreme Court has observed as under:
26. In the light of these principles, I may now examine the correctness of the contentions urged in this appeal. The submissions of Mr H.N. Salve, as I understand. proceeded firstly on the premise that a coparcener has as much interest as that of karta in the coparcenary property. Second, the right of coparcener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for legal necessity or for the benefit of the estate. When these two rights are preserved to a coparcener, why should he not prevent the Karta from dissipating the ancestral property by moving the Court? Why should he vainly wait till the purchaser gets title to the property? This appears to be the line of reasoning adopted by the learned counsel.
8. In Uttam vs. Saubhag Singh and Ors. (supra), the Hon'ble Supreme Court has observed as under:
15. On application of the principles contained in the aforesaid decisions, it becomes clear that, on the death of Jagannath Singh in 1973, the proviso to Section 6 would apply inasmuch as Jagannath Singh had left behind his widow, who was a Class I female heir. Equally, upon the application of explanation 1 to the said Section, a partition must be said to have been effected by operation of law immediately before his death. This being the case, it is clear that the plaintiff would be entitled to a share on this partition taking place in 1973. We were informed, however, that the plaintiff was born only in 1977, and that, for this reason, (his birth being after his grandfather's death) obviously no such share RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 9/17 could be allotted to him. Also, his case in the suit filed by him is not that he is entitled to this share but that he is entitled to a 1/8th share on dividing the joint family property between 8 co-sharers in 1998. What has therefore to be seen is whether the application of Section 8, in 1973, on the death of Jagannath Singh would make the joint family property in the hands of the father, uncles and the plaintiff no longer joint family property after the devolution of Jagannath Singh's share, by application of Section, among his Class I heirs. This question would have to be answered with reference to some of the judgments of this Court.
17. This Court examined the legal position and ultimately approved of the view of 4 High Courts, namely, Allahabad, Madras, Madhya Pradesh and Andhra Pradesh, while stating that the Gujarat High Court's view contrary to these High Courts, would not be correct in law. After setting out the various views of the five High Courts mentioned, this Court held:
"It is necessary to bear in mind the preamble to the Hindu Succession Act 1956. The preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to he excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre- existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand vis-à-vis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 10/17 Hindu family property and vis-à-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu Law, 15th Edn. dealing with Section 6 of the Hindu Succession Act at pp. 924-26 as well as Mayne's on Hindu Law, 12th Edn., pp. 918-19. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail. The preamble to the Act reiterates that the Act is, inter alia, to "amend" the law, with that background the express language which excludes son's son but includes son of a predeceased son cannot be ignored. In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct. With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore." [at paras 21- 25]
19. In Bhanwar Singh vs. Puran (2008) 3 SCC 87, this Court followed Chander Sen's case and the various judgments following Chander Sen's case. This Court held:-
"The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non obstante provision in terms whereof any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 11/17 capita and not per stirpes, as also tenants-in-common and not as joint tenants.
Indisputably, Bhima left behind Sant Ram and three daughters. In terms of Section 8 of the Act, therefore, the properties of Bhima devolved upon Sant Ram and his three sisters. Each had 1/4th share in the property. Apart from the legal position, factually the same was also reflected in the record-of- rights. A partition had taken place amongst the heirs of Bhima.
Although the learned first appellate court proceeded to consider the effect of Section 6 of the Act, in our opinion, the same was not applicable in the facts and circumstances of the case. In any event, it had rightly been held that even in such a case, having regard to Section 8 as also Section 19 of the Act, the properties ceased to be joint family property and all the heirs and legal representatives of Bhima would succeed to his interest as tenants-in-common and not as joint tenants. In a case of this nature, the joint coparcenary did not continue." (at paras 12-15)
20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarized as follows:-
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section
6).
RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 12/17
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.
RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 13/17
9. I have heard Sh. Devender Kumar, ld. counsel for appellant and Ms. Vedicca, ld. Counsel for the respondent. I have perused the record of the appeal as well as of the trial court received on requisition.
10. The Hindu Succession Act was passed in 1956. Sections 8 to 13 and Schedule-I of Hindu Succession Act, 1956 laid down the law of inheritance in case a Hindu male died intestate. After the enactment, some basic principles were retained, modified and abrogated. As to the son or daughter, they inherit the property of his/her deceased father as Class-I legal heirs. However, the question that arises is: What is the character of this property in the hands of son or daughter in case a Hindu male dies intestate? Whether he or she will take it as his/her separate property against his/her descendants or he/she will take it as karta of his branch as coparcenar? Judicial interpretation on this issue has been fairly consistent and courts have affirmed that son/daughter inheriting the property from his/her father, grandfather and great-grandfather would take it as his/her exclusive or absolute property with no right of his/her descendants over it. Hon'ble Supreme Court in Commissioner of Wealth Tax, Kanpur Etc. vs. Chander Sen Etc. (1986) 3 SCC AIR 1986 SC 1753 and CIT vs. Virendra Kumar 2001 (252) ITR 539 (Delhi) held that after passing the Hindu Succession Act, 1956, the properties inherited by son from his father would constitute his separate property and not coparcenary property. The son or daughter does not inherit the property as karta of his/her branch but does it in his/her individual capacity as the RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 14/17 son or daughter of the intestate and not as representative of his male issue. He/she retains the exclusive power of disposal of his property and his male/female issue is not competent to restrain him from doing it or to ask for partition of the property. Hence, under Section 8 to 13 of the Hindu Succession Act 1956, the property inherited by son or daughter from his or her father would be his/her separate and exclusive property and his male or female issues will not have any right by birth in this property. Therefore, during the lifetime of father, the grandson/grand daughter are neither entitled to inherit the property of his/her grandfather nor entitled to ask for partition.
10. In Jai Narain (supra) Hon'ble High Court of Delhi has observed as under:
7(i)............................................................................ There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act 1956 and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in-interest 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 property or properties thrown into a common hotchpotch become Joint Hindu Family properties/ HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 15/17 (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
9............Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.
10.........
11..........
12......... It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act, 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded."
RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 16/17
11. In the present case, nothing stated in the plaint that there was an HUF and its properties were existing even prior to the passing of the Hindu Succession Act, 1956 and which HUF continued even after passing of the Hindu Succession Act, 1956. Further, nothing is stated that after 1956, plaintiff thrown the self-acquired property into a common hotchpotch thereby such self-acquired property became joint Hindu family property/HUF property.
12. In view of the aforesaid discussions, I find no infirmity in the order passed by ld. Trial court. The trial court has rightly appreciated all the facts of the case in a thoughtful manner. The appeal being devoid of merit deserves to be dismissed. Accordingly, the appeal is dismissed. No order as to costs. TCR be returned with copy of this order. Appeal file be consigned to record room.
Announced in open Court (Surender Mohit Singh) on 19th May, 2022 Addl. Distt. Judge-04 (North) Rohini Courts, Delhi.
RCA 68/17 Baby Princy vs. Ishwar Singh & Anr. 17/17