Delhi High Court
Master Neel Dayal & Ors vs Someshwar Dayal & Ors on 22 March, 2017
Equivalent citations: AIR 2017 DELHI 120, (2017) 241 DLT 36, (2017) 178 ALLINDCAS 616 (DEL), (2017) 3 CIVILCOURTC 754, (2018) 1 HINDULR 23
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 22nd March, 2017 + CS(OS) No.168/2016 & IA No.4405/2016 (u/O 39 R-1&2 CPC). MASTER NEEL DAYAL & ORS .... Plaintiffs Through: Mr. Sumit Bansal, Ms. Priyanka Kapoor and Ms. Richa Oberoi, Advs. for plaintiff No.3. Versus SOMESHWAR DAYAL & ORS ..... Defendants Through: Ms. Malavika Rajkotia and Mr. Ranjan N., Advs. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The three plaintiffs seek partition of E-27, Poorvi Marg, Vasant Vihar, New Delhi with ancillary reliefs, pleading (i) that the plot of land underneath the property was allotted to one Mr. Jagdishwar Dayal who constructed a house on the front portion of the property; (ii) this was a joint Hindu Undivided Family (HUF) property of Shri Jagdishwar Dayal as Karta along with his sons namely Shri Maheshwar Dayal, Shri Yogeshwar Dayal (defendant no.4) and Shri Nareshwar Dayal (defendant no.5); (iii) that Shri Jagdishwar Dayal expired in the year 1975 and on his death his Class-I legal heirs namely Shri Maheshwar Dayal, Shri Yogeshwar Dayal and Shri Nareshwar Dayal became the joint owners of the property "being inherited as Class-I legal heirs having their respective shares in the suit property to the extent of 1/3rd each"; CS(OS) No.168/2016 Page 1 of 12 (iv) that Shri Maheshwar Dayal died in the year 1991 and as such after his death his two sons and daughter namely defendant no.1 Shri Someshwar Dayal, defendant no.2 Shri Dinesh Dayal (since deceased and represented by his wife defendant no.2a. Ms. Nayantara Dayal and son defendant no.2b. Mr. Devesh Dayal) and defendant no.3 Ms. Abha Dayal inherited 1/3rd share each in the property making each of them owner of 1/9th share in the property; (v) that on 30th March, 1991 all the defendants entered into a family settlement which was reduced in writing in order to make construction in the said property and by virtue of which additional construction was to be made in the back portion of the property with each branch of the family maintaining 1/3rd interest in the overall property; (vi) that in terms of the aforesaid settlement, in or about the year 1990- 1992 construction was carried out in the back portion of the property with the front portion comprising of a house with four bedrooms etc. and the rear portion comprising of four flats; (vii) that a family settlement was recorded on 31st March, 1991 amongst defendants no.1,2&3 and whereunder out of the construction allotted to the branch of Shri Maheshwar Dayal the portion of the defendant No.3 Ms. Abha Dayal was demarcated; (viii) that it was further agreed that the portion of 2000 sq. ft. "shall belong exclusively and absolutely" to the branches of defendant no.2 Shri. Dinesh Dayal and defendant no.1 Shri Someshwar Dayal and shall be held jointly by them and "being inheritance constituting CS(OS) No.168/2016 Page 2 of 12 ancestral property their respective shares would constitute their respective Joint Hindu Family property and any income from the aforesaid construction so held by them jointly would be shared equally by the respective branches" of defendant no.2 and defendant no.1; (ix) that by virtue of the aforesaid settlement the property comprising of 2000 sq. ft. being the basement and ground floor is a joint HUF of the respective branches of defendant no.2 and defendant no.1; (x) that the defendant no.1 Shri Someshwar Dayal married the plaintiff no.3 Ms. Anupama Dayal on 21st January, 1996 and out of the said wedlock the plaintiffs no.1 and 2 were born on 24th December, 1998 and 15th January, 2002 respectively; (xi) that the defendant no.1 Shri Someshwar Dayal, on birth of the plaintiffs no.1&2, formed a joint HUF; (xii) that the plaintiffs no.1&2 attained a birth right after the formation of the joint Hindu family with the defendant no.1 who has 1/9th share in the total property; (xiii) that there have been matrimonial differences between the plaintiff no.3 and the defendant no.1; and, (xiv) that the suit property is ancestral property inherited by defendant no.1 and now forms part of his joint Hindu family along with the plaintiffs no.1&2 and is the matrimonial home of the plaintiff no.3 and they have no other place to live except the suit property. CS(OS) No.168/2016 Page 3 of 12 2. The plaintiffs, in addition to the reliefs of partition and rendition of accounts, have also claimed the relief of permanent injunction restraining the defendants from selling, alienating or parting with possession of the property. 3. The suit came up first on 6th April, 2016 when the counsel for the plaintiffs sought time to amend the plaint. The amended plaint as aforesaid was filed and taken on record on 7th September, 2016. It was however enquired from the counsel for the plaintiffs on that date that it being not the case of the plaintiffs that there was any co-parcenary in existence since prior to the coming into force of the Hindu Succession Act, 1956 and it being also not the case of the plaintiffs that the property in the hands of Shri Jagdishwar Dayal was ancestral or co-parcenary property, on what basis it is contended that the property was of a HUF or of a joint Hindu family and in which the plaintiffs no.1&2 by birth got a share. 4. The counsel for the plaintiffs drew attention to the following clause in the Memorandum of Family Settlement between the defendants no.1,2&3 and in which defendant No.2 Shri Dinesh Dayal is described as first party, the defendant No.3 Ms. Abha Dayal as the second party and the defendant No.1 Shri Someshwar Dayal as the third party:- "Accordingly, the Parties hereto belonging to the branch of late Dr. Maheshwar Dayal agreed to amongst themselves and it is recorded herein that for the purpose of making the aforesaid construction by the branch of late Dr. Maheshwar Dayal, consisting of a basement, ground floor and first floor, having a total constructed area of about 3000 sq. ft. the 2nd Party and her husband Shri Ajai Mohan Kaul would make available a sum of Rs.1,50,000/- (Rupees one lac and fifty thousand) CS(OS) No.168/2016 Page 4 of 12 approximately and that the balance amount required to complete the aforesaid construction would be made available out of the other assets of late Dr. Maheshwar Dayal. It was agreed to and is recorded herein that out of the aforesaid construction allotted to the branch of late Dr. Maheshwar Dayal, the portion comprising the 1st Floor measuring about 1000 sq. ft. would, as per the desire of late Dr. Maheshwar Dayal, belong exclusively and absolutely to the 2nd party and her husband Shri Ajai Mohan Kaul jointly, and the remaining portion of the construction consisting of the basement and ground floor measuring about 2000 sq. ft. would be allotted to and shall belong exclusively and absolutely to the branches of the 1st and 3rd Party to be held jointly by them and being inheritance constituting ancestral property their respective shares would constitute their respective Joint Hindu Family property and any income from the aforesaid construction so held by them jointly would be shared equally by the respective branches of the 1 st and 3rd party. It was agreed to and is recorded herein that the 1st and 3rd Parties would have no right or interest in the 1st Floor portion of the construction allotted to the 2nd Party and likewise the 2nd Party would have no right or interest in the basement and ground floor portions allotted to the 1st and 3rd Parties". (emphasis added) and argued that the words "being inheritance constituting ancestral property their respective shares would constitute their respective Joint Hindu Family property......" are admission of the share of the defendant no.1 Shri Someshwar Dayal of the property being held by him as joint family property. 5. It was however further enquired from the counsel for the plaintiffs that if from the other averments in the plaint no case of existence of a HUF/joint Hindu family was made out, how could a HUF / Joint Hindu Family come into the existence from the language aforesaid. CS(OS) No.168/2016 Page 5 of 12 6. The counsel for the plaintiffs was further heard on admissibility of suit on 22nd September, 2016 and subject to the plaintiffs depositing a sum of Rs.1,00,000/- in this Court, summons of the suit and notice of the application for interim relief were issued. The plaintiffs deposited the said amount. 7. The counsel for all the defendants appeared on 17th November, 2016 and on specific query stated (i) that the defendant No.1 Mr. Someshwar Dayal, being the father of plaintiffs No.1&2 and husband of the plaintiff No.3 and Mr. Somesh Dayal are one and the same person; (ii) that defendant No.1 Mr. Someshwar Dayal has always been in employment and has never carried on any trade or business; (iii) that the defendant No.1 Mr. Someshwar Dayal is an income tax assessee; (iv) that there is no HUF of the defendant No.1 Mr. Someshwar Dayal and the defendant No.1 Mr. Someshwar Dayal or anyone acting on his behalf has never filed any income tax returns of Someshwar Dayal HUF; (v) that there is no HUF of the defendants together; (vi) that no such HUF has been shown in any records filed with any authority and there is no document of existence of any such HUF; (vii) that the property No.27, Poorvi Marg, Vasant Vihar, New Delhi (described in the memorandum of family settlement at page 16 of the documents file as E-27, Poorvi Marg, Vasant Vihar, New CS(OS) No.168/2016 Page 6 of 12 Delhi) is assessed in all government records in the individual names and has never been treated as property of any HUF. 8. The counsel for the defendants further stated that in the matrimonial proceedings between plaintiff no.3 and the defendant no.1, the defendant no.1 has filed his Income Tax Returns and the plaintiff no.3 is fully aware thereof. Vide order dated 17th November, 2016 the defendants were ordered to be bound by their statement aforesaid through the counsel, making it clear that if any time it was found that the statements are false or untrue or misrepresented, the plaintiffs shall be entitled to take appropriate action with respect thereto; on that date, orders on the maintainability of the suit were reserved. 9. The plaintiffs thereafter filed IA No.354/2017 for taking on record the facts (i) that the defendant no.1 in the plaint in CS(OS) No.315/2011 had stated that he owned a share in the family property jointly owned with his brother and described the same as undivided share; and, (ii) that the counsel for the defendants before this Court had stated that the defendant no.1 had always been in an employment but the defendant No.1 had resigned from his employment. 10. The said application came up before the Court on 11 th January, 2017 when though observing that the pleas sought to be placed on record had no relevancy to the controversy, the same were nevertheless taken on record. 11. The counsel for the plaintiffs during the hearing relied on Surender Kumar Vs. Dhani Ram AIR 2016 Delhi 120. However the said judgment, instead of helping the plaintiffs is found to be against the plaintiffs. This Court therein has unequivocally held (i) that if a person dies after passing of CS(OS) No.168/2016 Page 7 of 12 the Hindu Succession Act, 1956 and there is no HUF existing at the time of his death, inheritance of an immovable property of such a person by his successors-in-interest though 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 inherit 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; (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; and, (iv) even before 1956, an HUF could come into existence even without inheritance of ancestral property from paternal ancestors, as HUF can be created post 1956, by throwing of individual property into a common hotchpotch; if such an HUF continues after 1956, then in such a case a coparcener etc., of an HUF is entitled to partition of the HUF property. 12. The counsel for the plaintiffs relied on the part aforesaid of Surender Kumar supra holding that after 1956 an HUF can be created by throwing of individual property into a common hotchpotch. It was his contention that clause aforesaid of the Memorandum of Family Settlement between defendants no.1,2&3 constitutes an act of throwing of the property into HUF hotchpotch. 13. The question for determination thus is whether the clause aforesaid of the Memorandum of Family Settlement amounts to the defendant no.1 Shri CS(OS) No.168/2016 Page 8 of 12 Someshwar Dayal throwing his share in the property aforesaid into the HUF hotchpotch. 14. I have also recently in judgment dated 15 th February, 2017 in CS(OS) No.2092/2013 titled Captain Bhupinder Kumar Suri Vs. Naresh Kumar Suri held that even after 1956 an HUF can be created and individual property thrown into common hotchpotch. However therein as well as in the judgments on which reliance was placed therein, there were unequivocal documents of declaration of creation of HUF / Joint Hindu Family and of changing the status of separate property into HUF property followed by the filing of Income Tax Assessments of the properties as HUF properties. 15. Per contra here, save for the clause aforesaid in the Memorandum of Family Settlement between defendants No.1,2&3, there is no plea of creation of HUF or of the property aforesaid having been treated as property of HUF of defendant No.1 Shri Someshwar Dayal. The clause aforesaid of the Memorandum of Family Settlement in my view does not show any intent of the defendant no.1 to abandon his individual rights to the property or to thereafter hold his share in the property as Karta of his HUF. The words "being inheritance constituting ancestral property their respective shares would constitute their respective Joint Hindu Family property......" are not of abandonment of individual rights in the property. The recitals of the Memorandum of Family Settlement clearly show that a share in the property was acquired by the defendants no.1,2&3 by way of inheritance from their father Shri Maheshwar Dayal. Had the property been of the HUF, the defendant no.2 being the eldest son of Shri Maheshwar Dayal would have become the Karta of the HUF and would have been described so in the CS(OS) No.168/2016 Page 9 of 12 Memorandum of Family Settlement and the defendant no.3 being the daughter of Shri Maheshwar Dayal would have got a share in the property only out of the share of Shri Maheshwar Dayal in the property. On the contrary, the defendants no.1,2&3 all equally inherited 1/3rd share of Shri Maheshwar Dayal in the property. The purport of the Memorandum of Family Settlement was to out of the 1/3rd share of Shri Maheshwar Dayal demarcate the share of the defendant no.3 Ms. Abha Dayal being the married daughter of Shri Maheshwar Dayal, with the defendants No.1&2 Shri Someshwar Dayal and Shri Dinesh Dayal being the sons of Shri Maheshwar Dayal continuing to hold the remaining property jointly. However merely because brothers hold the property inherited from their father jointly does not constitute HUF and does not make the property HUF property. The language used in the Memorandum of Family Settlement only shows that the defendants no.1&2 were treating the property as inherited property. An act of creation of HUF and of putting of individual property into HUF hotchpotch has to be unequivocal and unambiguous. From mere use of the words "joint Hindu family property", an HUF does not come into existence and the exclusive rights in the property not divested/abandoned. 16. There is another aspect. At the time of execution of the Memorandum of Family Settlement on 31st March, 1991, the defendant No.1 Shri Someshwar Dayal had no wife and no children. The plaintiff No.3 Ms. Anupama Dayal is pleaded to have married the defendant No.1 only on 21st January, 1996 and the plaintiffs No.1&2 pleaded to have been borne on 24 th December, 1998 and 15th January, 2002. The defendant No.1 on 31st March, 1991 could not have changed the status of his share in the property from that of his individual property to property in which his wife and children also had CS(OS) No.168/2016 Page 10 of 12 a share. Supreme Court, in C. Krishna Prasad Vs. C.I.T., Bangalore (1975) 1 SCC 160 held that the word „family‟ always signifies a group - plurality of persons is an essential attribute of a family; a single person, male or female does not constitute a family; he or she would remain what is inherent in the very nature of things, an individual. It was held that Hindu undivided family is an entity distinct and different from an individual and it would be wrong not to keep that difference in view. Accordingly, assessment under the Income-Tax Act, 1961 sought was denied and the assessee was assessed as an individual. It was held that future possibility of the individual marrying and having children which might or might not materialise cannot be considered; speculation was held to be impermissible. 17. In Surjit Lal Chhabda Vs. The Commissioner of Income Tax, Bombay (1976) 3 SCC 142 discussed by me in detail in Captain Bhupinder Kumar Suri supra, the property was not originally joint in the hands of the assessee and the question for adjudication was whether the property has acquired joint family character in the hands of the assessee. It was held that the composition of the assessee‟s family was a matter of great relevance. Expanding on the said proposition and relying on C. Krishna Prasad supra, Division Bench of the Madras High Court in Commissioner of Income-Tax, Tamil Nadu-I Vs. M. Balasubramaniam 1979 SCC OnLine Mad 356 held that the property in the hands of a bachelor could not acquire the status of a joint family property or HUF property. 18. In my view thus the plaint does not disclose the property to be the property of any HUF or joint Hindu family property for the plaintiffs no.1&2 CS(OS) No.168/2016 Page 11 of 12 to have any right therein by birth or the plaintiff no.3 acquiring rights therein as wife of the Karta/co-parcener of the HUF. 19. The plaint is thus not found to disclose a right in the plaintiffs to seek partition and the suit is resultantly dismissed. 20. I however make it clear that the dismissal of this suit for partition on the basis of the property being HUF/joint Hindu family property would not come in the way of the plaintiffs if have any other rights to the property, agitating the same. 21. Though at the time of making the plaintiffs deposit Rs.1,00,000/- in this Court it was observed that the same would be appropriated towards costs to the defendant but it is directed if the plaintiffs accept this order, they would be entitled to refund of the said amount. However if the plaintiffs decide to take the matter further, the amount deposited be released to the defendant no.1 towards costs of the suit. RAJIV SAHAI ENDLAW, J.
MARCH 22, 2017 „pp‟ CS(OS) No.168/2016 Page 12 of 12