Delhi District Court
Sidharth Grover vs Sh. Gagan Grover on 31 January, 2020
IN THE COURT OF SH. PRASHANT KUMAR,
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI.
CS NO. 615359/2016
Sidharth Grover,
S/o Sh. Gagan Grover
through
His Next Friend Sh. Ashok Grover,
R/o 56A, Dilshad Garden,
Shahdra - 110032,
(Delhi.)
..............Plaintiff
Versus
1. Sh. Gagan Grover,
S/o Late Sh. Satish Grover,
A 149, Surya Nagar,
District : Ghaziabad (UP)
2. Smt. Madhu Grover,
Widow of Sh. Satish Grover,
A 149, Surya Nagar,
District : Ghaziabad (UP)
3. Ms. Nisha Grover
D/o Sh. Satish Grover,
A 149, Surya Nagar,
District : Ghaziabad (UP)
(All the aforesaid three defendants No. 1 to 3 carrying on their
HUF business under the name and style of :
M/s Golden Framewala
Shop No. 236, Fatehpuri
Ist Floor, Chandni Chowk,
Delhi 110 006)
CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 1 of 34
4. Smt. Neetu Grover,
W/o Sh. Gagan Grover,
56A, Dilshad Garden,
Shahdra, Delhi - 110 032. ............... Defendants
Date of institution of the suit : 31.05.2001
Date on which order was reserved : 25.01.2020
Date of decision : 31.01.2020
SUIT FOR PARTITION BY INDIGENT PERSON
JUDGMENT
1. In brief, facts of the case is that plaintiff has filed the present suit seeking partition against his father defendant No. 1, his grandmother, defendant No.2, his aunt defendant No.3 and his mother, defendant no. 4. Plaintiff is stated to be minor therefore the present suit has been filed through his next friend Sh. Ashok Kumar, who is stated to be the maternal grandfather of plaintiff. Sh. Ashok Grover is also the real brother of father of defendant No.1 and defendant No. 4 who is stated to be the mother of plaintiff and wife of defendant No. 1. Defendant No. 4 is the daughter of Sh.Ashok Grover. Plaintiff is stated to be the son of Sh.Gagan Grover, i.e. defendant No. 1. Defendant No. 2 is the mother of defendant No. 1 and defendant No. 3 is the sister of defendant No. 1 and defendant No. 4 is the mother of plaintiff.
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2. It is alleged that defendant No.4 married defendant No.1 on 4 th December, 1998 and out of the said wedlock plaintiff was born on 28.08.1999. It is alleged that defendant No.4 was being tortured, exploited and harassed from the very beginning of the marriage and Smt. Neetu Grover was thrown out of her matrimonial house on 08.07.1999. The plaintiff along with his mother since 08.07.99 is residing with the parents of defendant No. 4.
3. As a counter blast of defendant No.4's complaint before the women cell on 11.02.2000, defendant No. 1 filed a case for nullity of marriage under Section 11 of the Hindu Marriage Act, 1955 stating that the marriage between them was hit by the prohibited degree of relationship and both of them are sapindas of each other. The plaintiff and defendant belong to Hindu Undivided Family.
4. It is alleged that the movable and immovable property as mentioned in para No. 7 are in possession of defendant Nos. 1 to 3. Late Sh. Satish Grover, grand father of plaintiff had been managing the aforesaid assets and properties as Karta of the HUF and after his death on 25.02.1999 the same is being managed by defendant Nos. 1 to 3. It is alleged that the funds for purchase of the aforesaid properties came out of the HUF Funds. The parties belong to the Mitakshara School of Hindu CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 3 of 34 Law and plaintiff is entitled to a share in the aforesaid properties and assets as legal heir and coparcener. Plaintiff has also filed a suit for permanent injunction against the defendants as he apprehended that defendants might create a third party interest in the suit property. It is alleged that after the death of Sh. Satish Grover on 25.02.1999 the grand father of the plaintiff and father of defendant no. 1, defendant No. 1 and the plaintiff are the only male members of the Hindu Undivided Family and are entitled to 50 % equal share each in the said property and assets. Hence, the present suit.
5. Written statement was filed on behalf of defendant Nos. 1 to 3 wherein preliminary objections were taken that the plaintiff has not approached the court with clean hands and not filed by a proper person. It is alleged that neither the suit properties are joint family properties nor have been created out of joint family funds. It is contended that the said properties are either the properties belonging to a partnership firm or properties which were personally acquired properties of Late Sh. Satish Grover, father of defendant Nos. 1 and 3 and husband of defendant No. 2, which has been bequeathed to defendant No. 2 under a legal and valid Will executed by Late Sh. Satish Grover. It is stated that the marriage between defendant No. 1 and defendant No. 4 is void marriage as defendants fall within the prohibited degrees and are sapindas to each other, thus plaintiff is not a CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 4 of 34 legitimate off spring from a legal and valid marriage and is not a coparcener in the Hindu Undivided Family. It is also alleged that the suit has not been properly valued and is bad for non joinder of necessary parties and is also barred under Section 16 of the Hindu Marriage Act.
6. In reply on merits, it is alleged that the marriage between defendant Nos. 1 and 4 is void abinitio and the plaintiff is not a legitimate child born out of a legal and valid marriage and also not a member of the Hindu Undivided Family of defendant Nos. 1 to 3, thus cannot claim any share in the ancestral property. It is stated that plaintiff can at best claim a share in the selfacquired property of his natural parents. It is stated that the property bearing No. C14 in S4, Sahibabad (UP) is a property belonging to the partnership firm by name and style "Nisha Industries" and no ancestral or joint family funds were used in the purchase of the said property. It is also alleged that the property bearing No. D3 in S4, Sahibabad belongs to partnership firm by the name of "Amritsar Ashoka Optical Industries", which was bought from the funds of partnership and not from or ancestral funds. It is alleged that the property bearing No. D122 Ramprastha, Suryanagar, Sahibabad belongs to Mrs. Rama Tandon. The entire payment for the said property has been made by Mrs. Rama Tandon. She is the owner of the said property for all purposes. The property bearing No. A149, CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 5 of 34 Suryanagar, Sahibabad is the self acquired property of Late Sh. Satish Grover and Sh. Lalit Grover which was purchased from their self earned funds, the said property by virtue of a Will belongs to defendant no. 2. It is stated that the property No. C 46, Suryanagar, Sahibabad UP is the self acquired property of late Sh. Satish Grover acquired by him out of his own funds, the said property in terms of a Will, also belongs to defendant no. 2. It is also alleged that the property bearing shop No. 236, Fatehpuri, Chandni Chowk was taken on rent by the partnership firm in the same and style of "Golden Framewala" and is not the joint family property. It is alleged that partnership business in the name and style of M/s Golden Framewala, Nisha Industries and Amritsar Ashoka Optical Industries are not joint family business and no ancestral funds have been utilized in the said firms or their business. It is alleged that the assets of Satish Grover (HUF) is the only joint family property consisting of defendant Nos. 1, 2 and 3 and plaintiff is not a member of the said joint family. In rest of the reply on merits, averments made by plaintiff in his plaint have been categorically denied by the defendants.
7. Written statement was also filed on behalf of defendant No. 4, wherein averments made by the plaintiff in his plaint have been admitted.
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8. Rejoinder/replication was also filed on behalf of the plaintiff to the written statement of defendant Nos. 1 to 3 wherein the averments made the defendant Nos. 1 to 3 were categorically denied and the averments made in the plaint were reiterated.
9. Following issues were framed vide order dated 10.10.2006:
1. Whether the suit has been filed by a proper person? OPP
2. Whether the present suit is barred under Order II Rule 2 CPC? OPP.
3. Whether the suit is properly valued for the purposes of court fees and jurisdiction and proper court fee has been paid thereon? OPP.
4. Whether the plaintiff is a coparcener in the Hindu Undivided Family of late Sh. Satish Grover? OPP
5. Whether the suit properties are joint family properties or have been created out of joint family funds? OP.
6. Whether the plaintiff is entitled to a decree of partition in respect of the suit property? OPP.
7. Whether the suit is bad for nonjoinder of necessary parties? OPP.
8. Whether the defendants are entitled to render accounts? OPD.
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9. Relief.
10.In order to prove his case, plaintiff got examined one Sh. Ashok Grover as PW1 and tendered in evidence his duly sworn in affidavit exhibited as Ex.PW1/A. In his testimony, PW1 relied upon certified copy of Lease Deed of property bearing No.C14, S4, Sahibabad, UP is Ex.P1/1 and certified copy of Lease Deed of property bearing No.D32, S4, Sahibabad, (UP) is Ex.P1/2, certified copy of Transfer Deed of property bearing No. Kothi No.A149, Surya Nagar, Sahibabad, UP is Ex.P1/3, certified copy of Sale Deed of property bearing No.C46, Surya Nagar, Sahibabad (UP) is ExP1/4 and certified copy of Sale Deed of Shop No.235/236, Fatehpuri, Delhi 6 is Ex.P1/5. Thereafter, PE was closed vide order dated 12.03.2009.
11.On the other hand, defendants in order to prove their case examined two witnesses namely Sh.Gagan Grover and Smt.Madhu Grover as DW1 and DW2, respectively. DW1 Sh. Gagan Grover tendered his evidence by way of affidavit duly exhibited as Ex.DW1/A. In his testimony, DW1 had relied upon the documents which were relied upon by PW1 i.e. Ex.P1/1 to Ex.P1/5, as well as upon the intimations of Income Tax Department under Section 143 (1) of I.T.Act relating to M/s Golden Framewala for the years 199899, 19992000 and 2000201 duly exhibited as Ex.DW1/1 to Ex.DW1/3, CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 8 of 34 respectively. Photocopy of the Form 2 (SaralITS2) of M/s Golden Framewala for the years 20012002 marked as Mark A. Copy of balance sheet as on 31.03.1999 of M/s Golden Framewala marked as Mark B, photocopy of the trading and profit and loss account as on 31.03.1999 of as Mark C, copy of balance sheet of M/s Golden Framewala as on 31.03.2000 is Mark D, photocopy of trading and profit and loss account as on 31.03.2000 of M/s Golden Framewala is Mark F, photocopy of the trading and profit and loss account of M/s Golden Framewala as on 31.03.2001 is marked as Mark G, copy of the balance sheet as on 31.03.2002 of M/s Golden Framewala is Mark H, photocopy of the profit and loss account of M/s Golden Framewala as on 31.03.2002 is MarkI, orginal copy of intimations of Income Tax Department under Section 143 (1) of I.T.Act relating to M/s Nisha Industries for 19981999, 1999 2000 and 2000 to 01 are Ex.DW1/4 to Ex.DW1/6, respectively. Photocopy of the Form 2 (saral ITS2) of M/s Nisha Industries for the years 20012002 is Mark J. Photocopy of the Form 2 (Saral ITS2) of M/s Nisha Industries for the years 2002 to 2003 is Mark K, photocopy of the balance sheet as on 31.03.1998 of M/s Nisha Industries is Mark L, photocopy of the trading and profit and loss account as on 31.03.1998 of M/s Nisha Industries is Mark M, copy of balance sheet of M/s Nisha Industries as on 31.03.1999 is Mark N, copy of trading and profit and loss account as on 31.03.1999 of M/s Nisha CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 9 of 34 Industries is Mark O, photocopy of the balance sheet as on 31.03.2000 of M/s Nisha Industries is Mark P, photocopy of the trading and profit and loss account of M/s Nisha Industries as on 31.03.2000 is Mark Q, copy of the balance sheet as on 31.03.2001 of M/s Nisha Industries is Mark R, photocopy of the profit and loss account of M/s Nisha Industries as on 31.03.2001 is Mark S, copy of the balance sheet as on 31.03.2002 of M/s Nisha Industries is Mark T, copy of the profit and loss account of M/s Nisha Industries as on 31.03.2002 is Mark U, original copies of the intimations of Income Tax Department under Section 143 (1) of I. T. Act relating to M/s Amritsar Ashoka Optical Industries for the years 199899, 19992000 (dated 30.09.1999), 19992000 (dated 27.01.2000) and 200001 is Ex.PW1/7 to Ex.DW1/10, respectively. Copy of intimations of Income Tax Department under Section 143 (1) of I.T. Act relating to M/s Amritsar Ashoka Optical Industries for the year 20022003 is Mark V, copy of the balance sheet of M/s Amritsar Ashoka Optical Industries as on 25.02.1999 is Mark W, copy of the trading and profit and loss account as on 25.02.1999 of M/s Amritsar Ashoka Optical Industries is Mark X, copy of the balance sheet of M/s Amritsar Ashoka Optical Industries as on 31.03.1999 is Mark Y. Copy of the trading and profit and loss account as on 31.03.1999 of M/s Amritsar Ashoka Optical Industries is Mark Z. Copy of balance sheet as on 31.03.2000 of M/s Amritsar CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 10 of 34 Ashoka Optical Industries is Mark AA, copy of trading and profit and loss account of M/s Amritsar Ashoka Optical Industries as on 31.03.2000 is Mark BB, copy of balance sheet as on 31.03.2001 of M/s Amritsar Ashoka Optical Industries is Mark CC, copy of trading and profit and loss account of M/s Amritsar Ashoka Optical Industries as on 31.03.2011 is Mark DD, copy of balance sheet as on 31.03.2002 of M/s Amritsar Ashoka Optical Industries is Mark EE, copy of profit and loss account of M/s Amritsar Ashoka Optical Industries as on 31.03.2002 is Mark FF, original copy of the intimation of Income Tax Department under Section 143 (1) of I.T.Act relating to Satish Grover HUF for the year 1998 - 99 is Ex.DW1/11, copy of intimation of income tax department under Section 143 (1) of I.T.Act relating to Satish Grover HUF for the year 1999 - 2000 is Ex.DW1/12, copy of acknowledgment relating to Satish Grover HUF for the year 20002001 is Mark GG, certified copies of intimation of Income Tax Department under Section 143 (1) of I.T.Act for the year 19981999 is Mark HH, copy of the intimation of income tax department under Section 143 (1) of I.T.Act for the year 20002001 is Ex.DW1/14, copy of my form2 for 2001 2002 is Mark II, copy of my form2D for the year 20022003 is Mark JJ.
12.In her examinationinchief, DW2 Smt.Madhu Grover tendered CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 11 of 34 her evidence by way of affidavit duly exhibited as Ex.DW2/A and relied upon document certified copy of Lease Deed dated 01.05.1997 qua property bearing No. C14, Site4, Sahibabad, UP is Ex.DW2/1, certified copy of Lease Deed dated 20.12.2003 qua property bearing No. D32, S4, Sahibabad, UP is Ex.DW2/2, certified copy of Transfer Deed A149, Surya Nagar, District Sahibabad, UP is Ex.DW2/3, certified copy of Sale Deed qua property bearing No. C46, Surya Nagar, Sahibabad, UP is Ex.DW2/4, certified copy of Sale Deed qua property bearing No. 236, Fatehpuri, Chandani Chowk, Delhi is Ex.DW2/5, certified copy of income tax returns and balance sheets of M/s Golden Framewala, M/s Nisha Industries and M/s Amritsar Ashoka Opticals Industries are Ex.DW2/6 (colly), Ex.DW2/7 (colly), Ex.DW2/8 (colly.). Thereafter, DE was closed vide order dated 24.04.2019.
13.Final arguments have been duly adduced by Ld. Counsel for both the parties. I have duly considered the arguments advanced by Ld. counsels for both the parties and have perused the plethora evidence on record carefully. My issue wise findings are as under:
14.ISSUE No. 1(1) Whether the suit has been filed by a proper person? OPP CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 12 of 34
15.As per record, onus of this issue has been laid upon plaintiff.
This issue has been framed according to the objection raised by defendant no. 1, 2 and 3 wherein they have alleged that the marriage between defendant No. 1 and 4 is a void marriage. Therefore, plaintiff being born out of said wedlock is an illegitimate child therefore, he cannot claim any right in the properties of his father or he cannot file suit for partition. In my considered opinion, onus of this issue should be laid upon defendant Nos. 1, 2 and 3. It is an issue of law. As per the law on the subject if there is no dispute with regard to the marriage and the child, who is plaintiff herein is admittedly born out of the wedlock in between defendant Nos. 1 and 4, then even though the marriage may be void and the child may be illegitimate but he/she has a right to seek share in the property of his/her father. Such child, if illegitimate cannot seek partition in the properties which are vested with HUF or joint family. It is needless to say that a child whether legitimate or illegitimate can seek his right to the property, as per law which is falling in the hand of his father, if his father is entitled for any share in the properties belonging to joint family or HUF. If any property is self acquired property in the hands of a person then it can only be divided amongst his legal heirs if, he dies intestate or make any testamentary succession. What would be the share of plaintiff cannot be decided while dealing with this issue for which observation shall be given while deciding other issues.
CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 13 of 34 So far as, locus standi of plaintiff is concerned, he being born out of wedlock of defendant Nos.1 and 4 is very much entitled to the share in the property of his father only and not of joint family property. With these observations issue No.1 is decided accordingly.
16.ISSUE No. 2(2) Whether the present suit is barred under Order II Rule 2 CPC? OPP.
17. Defendants have taken an objection in their Written Statement that plaintiff has filed a suit for injunction prior to filing of the present suit. The present remedy of seeking partition was available with the plaintiff even at the time of filing of the earlier suit. Therefore, the present suit being the subsequent suit is barred by Order II Rule 2 CPC. At the outset, it is mentioned that cause of action relating to partition is always in the nature of a continuing cause of action. Such right is always available to all such persons who have legal right in the property and have right to seek partition. Such right arises afresh every time as and when request for the partition of the property is asked for. In other words, no specified period of limitation is prescribed for seeking the relief of partition. Such right however extinguishes provided the person having such right chooses not to claim it or relinquishing it. No such denial by the plaintiff has been shown by defendant Nos. 1, 2 and 3 during entire trial.
CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 14 of 34 Whether plaintiff would be entitled for any share or not has to be assessed on the basis of different criterion. Whether he can claim such right in the property of his father is different from what he would get by claiming his right. Nothing has been shown by the defendants contrary to the above observations. Hence, issue No.2 is decided in favour of plaintiff.
18.ISSUE No. 3(3) Whether the suit is properly valued for the purposes of court fees and jurisdiction and proper court fee has been paid thereon? OPP.
19.One of the objection taken by the defendants is that suit has not been valued and appropriate court fees has not been filed. In this regard, it is needless to say that plaintiff has the liberty to file assessment of value for the purpose of determining the value of the suit as per suit valuation act such determination however, has to be reasonable and not arbitrary. Plaintiff vide this suit has assessed the valuation of the properties details of which are mentioned in para No. 15 of the plaint. This is objected by defendant Nos. 1, 2 and 3. Objecting the valuation of the suit property done by the plaintiff, therefore, make this issue a mixed question of facts and law. Onus of such issue as per law should always be on the defendants. No evidence has been led by defendant Nos. 1, 2 and 3 in this regard. Hence, in the absence of any evidence to the contrary the assessment done CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 15 of 34 by the plaintiff can be considered as per law. Above all the present suit was filed along with an application under Order XXXIII CPC. A detailed enquiry has been conducted in this regard and vide order dated 07.01.2004 this application has been allowed and present suit has been registered as filed by an indigent person. Thus, there arises no question of filing of court fees at the time of filing of the present suit. In terms of these observations, issue No. 3 is decided accordingly.
20.ISSUE Nos. 4, 5 and 6.
(4) Whether the plaintiff is a coparcener in the Hindu Undivided Family of late Sh.Satish Grover? OPP (5) Whether the suit properties are joint family properties or have been created out of joint family funds? OPP.
(6) Whether the plaintiff is entitled to a decree of partition in respect of the suit property? OPP.
21.All these issues are interlinked hence they are taken up together. Following are the relevant points which are necessarily required to decide above mentioned issues:
(a) Whether there is a joint Hindu Undivided family and all the business and factories are run by a Hindu undivided family (HUF).
(b) Who is the Karta of HUF.
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(c) Whether plaintiff is a member of joint Hindu family consisting of defendant No. 1 and 2 as well as a coparcener.
(d) Whether plaintiff has share in the HUF properties.
(e) What is the extent of share of plaintiff in the HUF properties.
(f) Whether all the properties, jointly or substantially are falling within local jurisdiction of this court.
22.In order to decide the burden of proving all the above issues upon the plaintiff, he has to show, first of all, that there is a joint Hindu family having an HUF carrying on joint family business and he is a coparcener in such HUF. In order to establish all these points the plaintiff has examined only one witness i.e. Sh.Ashok Grover, PW1. PW1 is the next friend as well as maternal grandfather of plaintiff. It is stated that marriage in between defendant Nos.1 and 4 was not cordial and defendant No.1 used to torture her and demand dowry. Marriage took place in December, 1998 and plaintiff was born on 28.08.1999. After this she was thrown out of her matrimonial home and plaintiff and defendant No. 4 have been residing with parents of defendant No.4. Marriage in between defendant No.1 and defendant No. 4 have been annulled under Section 11 of Hindu Marriage Act. In para No. 6 of affidavit Ex.PW1/3, it is stated that plaintiff and defendants belong to Hindu undivided family.
CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 17 of 34 In para No.7 of the affidavit, details of the properties forming part of HUF and ancestral properties are mentioned. It is stated that late Sh. Satish Grover, grandfather of the plaintiff had been managing the aforesaid assets and properties as Karta of HUF and after his death on 25.02.1999, they are managed by defendant No. 1, 2 and 3. It is stated that parties belong to Mitakshara school of Hindu Law. After the death of Sh.Satish Grover, defendant No.1 and plaintiff are the only male members of HUF and are entitled to 50% equal share each.
23.During his cross examination, it is stated by PW1 with regard to ancestral business that it was started in the name of Ashoka Opticals. Earlier it was run by father of PW1 and during his last time, his father handed over entire business to his two brothers. It is stated that Ashoka Opticals was stated by father of PW1. Father of PW1 had invested his personal money in Ashoka Optical at that time. PW1 has categorically stated that his grandfather was not having any HUF. It is further stated that even father of PW1 was not having any HUF. PW1 has further expressed his ignorance and stated that he do not know whether brothers of his father was having any HUF. PW1 has further stated that he did not participated in optical business and he has no personal knowledge of the business transaction which was done by his father during his lifetime. It is further stated that Ashoka Opticals was initially a CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 18 of 34 proprietorship concern but it was later converted into a partnership firm. PW1 has not furnished any documentary proof to show that all the three brothers created a partnership of Ashoka Optical. PW1 has also expressed his ignorance alleging that he do not know if his father was paying income tax as sole proprietor or not. PW1 has categorically stated that his father started another business of optical in the name of Grover Sons after handing over the Ashoka Opticals to his brothers. PW1 is not aware about the other business done by Sh.Varinder Grover. PW1 has further stated that his father did not take any assistance from his father. PW1 Sh.Ashok Grover has further stated that even Sh.Varinder Grover also did not take any financial assistance from his father in the business of Ashoka Opticals.
24.It is stated by PW1 Sh.Varinder Grover distributed his assets and maximum of his assets have been given to his son Sh.Satish Grover, who is the father of defendant No.1. PW1 has expressed his ignorance and stated that he cannot tell in which firm Sh.Satish Grover was partner. PW1 has not been able to tell when HUF was created by Sh.Satish Grover. PW1 admitted that the properties mentioned in Ex.PW1/3 i.e. plot No. 149, Suryanagar, Sahibabad, UP was purchased by Sh.Satish Grover and Sh. Lalit Grover from their personal account. PW1 has admitted that property Nos.C14, Sahibabad, UP and B52 CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 19 of 34 Sahibabad, UP are in the name of defendant Nos.1 and 2 who had paid the sale consideration out of their personal account. Same is the reply with regard to property C46, Surya Nagar, Sahibabad, UP. PW1 has further admitted that Shop No. 236, Fatehpuri, Chandni Chowk was a rented property which was purchased by M/s Golden Framewala, whose partners are Smt. Madhu Grover and Sh. Gagan Grover. PW1 has not furnished any document to show that Sh. Satish Grover and Sh. Lalit Grover were partners of M/s Golden Framewala. PW1 has further stated that Sh. Satish Grover is the Karta of Satish Grover HUF and he is having 100% share in Ashoka Opticals, Golden Framewala and Nisha Industries. When PW1 was asked as to whether above mentioned three firms are partnership firm he had expressed his ignorance. PW1 though stated that he had seen the accounts and ITRs of Satish Grover HUF but was not able to tell what was the profit of Satish Grover HUF from these above mentioned firm. PW1 mentioned that above mentioned three firms belongs to defendant Nos. 1 and 2. It is categorically stated that Satish Grover HUF has no business in its name but has made some investments.
25.It has not been explained by PW1 as to what investment and to what extent it has been made by Satish Grover HUF. From the testimony of PW1, it is also reflected that he has not been able to explain and furnish details about constitution of Satish CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 20 of 34 Grover HUF and all the defendants including plaintiff are the member thereof. The entire testimony of PW1 is silent on this aspect that plaintiff and defendant No.4 were part of joint Hindu family and HUF. PW1 on the other hand has stated that defendant No. 4 started residing separately at her parents house since 1999 and has been living separately from defendant No. 1 since then along with plaintiff. It is also a matter of record that marriage in between defendant No. 1 and 4 has been declared void under Section 11 Hindu Marriage Act though an appeal is stated to have been pending.
26.From the sole testimony from the side of the plaintiff it is reflected that no evidence in detail has been led on the aspect that Satish Grover was having an HUF with defendant Nos. 1 and 2 or a joint family business was carried by Sh.Satish Grover by forming an HUF which was later on carried by defendant No.1 or plaintiff remained joint with family of defendant No. 1 or he was a member of HUF at any point of time after his birth till date. In these circumstances, therefore, the onus with regard to above mentioned facts which have been mentioned at the start of discussion of evidence led by PW1, cannot be said to be shifted upon defendant. It is needless to say that as per Section 101, 102 and 106 of Evidence Act the burden of proving any fact is always upon a person who alleges such fact.
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27.Defendant No.1 has examined himself as DW1 in his examination in chief filed by way of affidavit Ex.DW1/A. He has narrated all the facts stated by him in his written statement which are not repeated here for the sake of brevity.
28.DW1 has stated that property situated at C14, Sahibabad, UP belongs to a partnership firm which is at present run by defendant Nos. 1 and 2. No family funds have been used in purchase of the property. Certified copy of lease deed dated 01.05.1997 with regard to this property is Ex.P1/1. DW1 further stated that the property situated at D32, Site - 4, Sahibabad, UP is the property belonging to the partnership firm being run under the name and style of M/s Amritsar Ashoka Opticals Industries which at presently is run by DW1 and defendant No. 2. No family funds have been used in purchase of the property. Certified copy of the lease deed dated 20.12.2003 with regard to this property is Ex.P1/2. DW1 further stated that the property situated at D122, Ramprastha, Suryanagar, Sahibabad, UP was the property belonging to Mrs.Rama Tandon. Though the property is shown as joint property of Mrs. Rama Tandon and DW1, however, the entire consideration was paid by Mrs. Rama Tandon, who has not been made a party to the present suit. DW1 further stated that the property situated at A149, Suryanagar, Sahibabad, UP is the self acquired property of Late Sh. Satish Grover and Sh.Lalit Grover. The CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 22 of 34 said property is alleged to be jointly purchased from separately acquired income and no ancestral fund were utilized. The said property was partitioned by virtue of a Will whereby half portion fell in the share of Late Sh. Satish Grover which belongs to defendant No.2, which is again not the property of joint family. Certified copy of the transfer deed with regard to the said property is Ex.P1/3. DW1 further stated that the property situated at C46, Surya Nagar, Sahibabad, UP was self acquired property of Late Sh. Satish Grover. No family funds were utilized for the purchase of the property. The certified copy of the Sale Deed with respect to the said property is Ex.P 1/4. It is alleged that the property situated at Shop No. 236, Fatehpuri, Chandni Chowk was initially taken on rent by the partnership firm functioning under the name and style of 'Golden Framewala' which is now being represented by DW1 and defendant No. 2. No ancestral funds were used. Certified copy of the Sale Deed with respect to the said shop is Ex.P1/5. From the perusal of all the above documents, it is reflected that it has not been purchased by any HUF.
29. It is stated that Satish Grover HUF has no immovable property. Plaintiff otherwise does not claim any right in Satish Grover HUF because he is not the coparcener of the said HUF as the marriage in between defendant No. 1 and 4 has been declared null and void. It is further stated that Sh. Satish Grover was a CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 23 of 34 selfmade man and had acquired all the assets on his own from his own funds. Hence, all his properties were self acquired properties. Sh. Satish Grover (since deceased) had executed a Will in favour of defendant No. 2, therefore, defendant No. 2 is the absolute owner of all the assets and properties which were owned by Satish Grover (since deceased).
30.During his cross examination DW1 has corroborated the fact that lease deed in respect of property bearing No. C14, Sahibabad, UP was in between UPSIDC and M/s Nisha Industries. It is further stated that lease deed pertaining to property No. D32, Sahibabad, UP was executed on 20.12.2003 in favour of M/s Amritsar Ashoka Optical, a firm of Smt.Madhu Grover and Sh.Gagan Grover. Apart from this DW1 has denied all the suggestions given by the plaintiff.
31. DW2 is Smt.Madhu Grover i.e. defendant No. 2, who has also tendered her evidence by way of affidavit Ex.DW2/A. Affidavit of DW1 and DW 2 are almost same and arising the same averments as well as facts alleged in their written statement. It is not repeated herein for the sake of brevity.
32.During her crossexamination it is stated by DW2 that plaintiff and her mother defendant No. 4 are not residing with them since the beginning. Mother of plaintiff resided with defendant No.1 CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 24 of 34 for only 4 to 5 months after her marriage. DW2 has stated that plaintiff is not a member of joint Hindu family. With regard to property bearing No. C14, Sahibabad, UP, DW2 has stated on the same line as DW1 alleging that it was a lease deed executed in the name of Nisha Industries a partnership firm of Smt.Madhu Grover and Sh.Gagan Grover. DW2 expressed ignorance about the source of funds used to create Nisha Industries. DW2 also expressed ignorance about the funds arranged for purchasing the property C14, Sahibabad. With regard to property bearing No.D-32, Sahibabad, UP, DW2 has stated that it was purchased in the name of Amritsar Ashoka Optical Industries. DW2 also expressed ignorance about the source of purchasing the property bearing No. D32, Sahibabad, UP. Similar is the reply with regard to property No. D122, Ramprasth, Surya Nagar, Sahibabad and DW2 has expressed ignorance about source of funds in purchasing the same. With regard to property D122, it is stated that the payment for purchasing the property was made by Smt. Rama Tandon from her own bank account, who is the sister of defendant No.2. It is stated that Smt. Rama Tandon used to reside separately. DW2 has also denied the suggestion that the shop bearing No. 236, Fathepuri, Chandi Chowk was purchased from ancestral funds. It is stated that initially this shop was held by Sh. Satish Grover. Apart from this, DW2 has denied all the suggestions given to her and has reiterated what she has stated in her examinationin CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 25 of 34 chief.
33.It has been pointed out in the above mentioned paras that as plaintiff has alleged that there is a joint Hindu family forming an HUF earlier run by Late Satish Grover and thereafter by Sh.Gagan Grover, defendant No.1 and the business as well as factories as mentioned in the plaint are run by an HUF and also such properties are ancestral properties. During entire evidence plaintiff has not placed on record any document to show that all the properties for which partition is sought, is purchased from joint family funds. Moreso, plaintiff has not been able to establish that there was a joint Hindu family running at relevant point of time. Plaintiff has not been able to show from record as to how many members as well as coparceners were there in the joint Hindu family at the relevant time. Plaintiff admittedly has not placed on record any document to show that he has resided with his father at any point of time. He is admittedly residing with his mother after his birth along with his maternal grand father.
34.It is also a matter of record that the marriage between defendant No. 1 and 4 has been annulled under Section 11 of the Hindu Marriage Act having being falling under a marriage under Prohibited Degrees of Relationship though an appeal is stated to have been pending. From the entire evidence led by CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 26 of 34 both the parties, it is reflected that defendant No.1 is the son of the real uncle of defendant No. 4. It means and implies that both defendant No. 1 and 4 are falling under the category of Sapinda relations as well as Prohibited Degree as envisaged under the Hindu Marriage Act. As per the act, such marriage within Sapinda relations and Prohibited Degree is a void marriage. It further means and implies that, if any marriage take place within Sapinda relations or Prohibited Degree then any such children born out of such wedlock which is nothing but a void marriage, cannot be said to be a coparcener. This fact is not disputed by either of the parties. Plaintiff, therefore, in my considered opinion has not been able to show on the record that he is a coparcener in the joint Hindu undivided family of defendant Nos. 1 and 2.
35.Evidence has been allowed to be led by both the parties on the aspect of source of properties mentioned in para Nos.7 and 15 of the plaint. Plaintiff has not been able to bring on record any documentary evidence that the business run at various places as mentioned in the pliant is run by an HUF. It is needless to say that an HUF is an entity which has been granted some fiction and status as per the law. Such HUF is run by a Karta, who is admittedly the senior most male member of the family and such HUF is assessed for the purpose of Income Tax as well. No such document has been placed on record to show that any CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 27 of 34 business as alleged is run under the name of HUF.
36.Now, coming to the evidence pertaining to the source of income used for purchase of properties mentioned in para Nos.7 and 15 of the plaint, the onus is upon the plaintiff to show that all such properties have been purchased by a joint Hindu family or from any of the members from the funds of joint Hindu family. It has already been mentioned above that the evidence pertaining to the existence of an HUF consisting of plaintiff and defendants is lacking. Plaintiff has not been able to show on record by way of any documentary evidence that there is any account run by an HUF of Sh.Satish Grover or defendant Nos.1 and 2, at any point of time. Defendant Nos.1 and 2 on the other hand, has stated that all the businesses as alleged by the plaintiff are run by defendant No. 1 and 2, through a partnership firm which is not run and governed by any HUF. The documents of income tax return of such firm corroborate this fact. Nowhere, it is mentioned or shown by the plaintiff that income of all such businesses and the properties as mentioned in para Nos. 7 and 15 are being assessed as income of HUF.
37.Another aspect of 'Doctrine of Blending' needs to be discussed here before proceeding further. As per Mitakshara School of Law, a joint Hindu family need not be in existence since the beginning but it can be formed at any point of time and its CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 28 of 34 purpose may be limited or may cover the entire activities of the family. Existence of joint Hindu family and any funds depends largely upon the 'Doctrine of Blending'. If any member of the joint family or coparcener uses any of his own fund whether self acquired or otherwise, for the purpose of family as a whole with an intention that it is to be used by the entire family and its members, then that fund and anything purchased out of such funds becomes joint family property. In this regard therefore, it is the intention of the members of HUF which is always considered and has to prevail before arriving at an opinion.
38.Plaintiff in support of his contention has relied upon a number of judgments which are discussed as under;
(i) Shyam Narayan Prasad v. Krishna Prasad And Ors., (2018) 7 Supreme Court Cases 646"
In this case, Hon'ble Supreme Court of India has explained as to who can be a coparcener in a joint Hindu family. The foremost issue is required to be decided is whether there exist any joint Hindu family or not. Evidence to this extend is lacking to this extent as mentioned above. Hence, this judgment does not apply in present circumstances.
(ii) Arshnoor Singh Vs. Harpal Kaur & Ors, 2019 LawSuit (SC) 1257 In this case, it has been held by Hon'ble Supreme Court of India as to how a property is divided in a joint Hindu family and when alienation of joint family property is challenged by affected party. In the present case, there is no relief of declaration of CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 29 of 34 challenging any sale deed, therefore, this judgment is not applicable here.
(iii) U.R. Virupakshaiah Vs. Sarvamma & Anr., CA No. 7346 of 2008, para no. 15 page no. 10 In this case, Hon'ble Supreme Court of India has discuss at length the issue pertaining to the formation of coparcenery in a joint Hindu family. The facts and circumstances of present case however are different.
Marriage in between defendant no 1 and defendant no 4 has been declared as void u/s 11 of Hindu Marriage Act. In such circumstances, any issue born out of such wedlock cannot be said to be a corparcener in a joint Hindu family but his right in the property is limited only to the extent of the property held by his parents.
(iv) Union of India Vs. Ibrahaim Uddin & Ors., CA No. 1374 of 2008, para No. 12 at page No. 14.
The nature of suit in this judgment was declaration. No such relied has been sought in the present suit. Therefore, keeping in mind the peculiar facts and circumstances, this judgment is not applicable in the present case.
(v) Adiveppa & Ors Vs. Bhimappa & Anr, CA No. 11220 of 2017, Para No. 22 page Nos. 8 to 9 In this case, one Adiveppa died instate and there was a dispute pertaining to division of property. There was not dispute with regard to the property being ancestral but whether partition had taken place or not. The issue involved in present case is different and the dispute apart from division of property is whether the properties can be said to be ancestral and joint Hindu family or not. Thus, it is not applicable in present circumstances.
39.Defendants on the other hand have also relied upon certain CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 30 of 34 judgments which are as under;
(i) Revanasiddappa & Anr. Vs. Mallikarjun & Ors., (2011) 11 Supreme Court Cases 1 In this case, it has held by Hon'ble Supreme Court of India that some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the preexisting common law view.
(ii)Uttam Vs. Saubhag Singh & Ors., AIR 2016 Supreme Court 1169.
In this case, it has been held that during the lifetime of grandfather or father, a grandson has no right to seek partition.
(iii)Saurabh Sharma Vs. Om Wati & Ors, 250 (2018) Delhi Law Times 544 In this case, it has been held that when the property in question is held by paternal grandfather in his individual capacity and not for benefit of his own progeny, and paternal grandfather of plaintiff also died after coming into force of Hindu Succession Act, then, as grand son did not acquire any interest in estate of his grandfather. In the present case however, another issue required to be considered is whether there ever existed any joint Hindu family or not. PW 1 himself has disputed this fact during his crossexamination. Therefore, all the judgments Revanasiddappa & Anr. Vs. Mallikarjun & Ors. (SUPRA), Uttam Vs. Saubhag Singh & Ors.
(SUPRA) & Saurabh Sharma Vs. Om Wati & Ors (SUPRA) are equally applicable in the present facts and circumstances.
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40.In above discussion, therefore, it is reflected that during entire evidence plaintiff has not been able to show through PW 1 that any of the member of the family at any point of time had used their income self earned or otherwise, for purchasing the properties as alleged or there was a joint account in the name of HUF or there was any account or fund which was created by and used for the entire family. In the absence of any evidence to the contrary to this extent, in my considered opinion, it therefore cannot be concluded that:
1. Plaintiff was the coparcener at any point of time.
2. There was existence of any HUF for which plaintiff was the member.
3. Properties mentioned in para No. 7 were purchased from the funds of joint Hindu family.
4. Plaintiff was having any share in any of the suit property or joint family property, if any.
5. Defendant No.1 is the Karta of HUF which is allegedly consisting of plaintiff and defendant No.1 along with other members.
6. With regard to properties situated outside the jurisdiction of this court, Plaintiff has not been able to establish that all the properties are substantially falling within jurisdiction of this court. Admittedly, most of them are situated outside Delhi, hence, even otherwise no opinion in this regard can be given.
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41.In the light of above mentioned findings, I am of the opinion that plaintiff has not been able to discharge the burden of proving Issue Nos. 4, 5 and 6. Evidence led by PW1 do not inspire his confidence and he is not able to throw any light upon the controversies alleged by him. Thus, onus of all these issues have not been shifted upon the defendants at all. Defendants, on the other hand have been able to show the contrary.
42.ISSUE No. 7(7) Whether the suit is bad for nonjoinder of necessary parties? OPP.
43.The onus of this issue as per record has been laid upon plaintiff. This issue has been framed according to the objection of defendant Nos.1 and 2, therefore, legally speaking onus of proving this issue should be upon defendant Nos.1 and 2. Defendants however, have not been able to show from the record that presence of Smt. Rama Tandon is necessary to decide the case on merits. In the absence of anything to the contrary it can be concluded that the suit of the plaintiff is bad due to nonjoinder of necessary parties. This issue is decided accordingly.
44.ISSUE No. 8(8) Whether the defendants are entitled to render accounts? OPD.
45.The outcome of Issue Nos. 4, 5, 6 and 7 is that neither of the CS No. 615359/2016 Sidharth Grover Vs. Gagan Grover & Ors Page No. 33 of 34 property is an HUF property nor there exist any HUF forming plaintiff and defendant No. 1 and 2 including defendant Nos. 3 and 4, thus there arises no question of determining the fact that the property and business being joint, parties are require to render the true accounts. In terms of this observation, issue No. 8 is decided accordingly.
46.RELIEF.
In the light of above discussion, it is reflected that plaintiff has not been able to discharge the burden of proving any of the issues upon him. Only witness examined by plaintiff is PW1 who is his maternal grandfather. Defendant No. 4 is stated to be his mother but she has not come in the witness box in support of plaintiff, as well. Therefore, the suit filed by the plaintiff is dismissed. No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room, after necessary Digitally signed by legal formalities. PRASHANT KUMAR PRASHANT KUMAR Date: 2020.01.31 16:58:31 +0530 Announced in the open court (PRASHANT KUMAR) on 31st January, 2020. ADJ01/ Central District Tis Hazari Court/Delhi.
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