Delhi District Court
Rca No. 61084/16 vs Sh Bal Kishan Yadav on 13 March, 2020
IN THE COURT OF SH. HASAN ANZAR, ADJ-06
WEST DISTRICT,TIS HAZARI COURTS
RCA No. 61084/16
Smt Sarla Devi
D/o Sh Amrit Singh
R/o B3/7, First floor,
Model Town, Delhi ..........Appellant
Versus
Sh Bal Kishan Yadav
S/o Sh Mahavir Singh Yadav
(Now deceased)
Through his LR's:-
a) Smt Sunita Devi
Widow of Late Sh Bal Kishan Yadav
b) Sh Kunal Yadav
S/o Sh Bal Kishan Yadav
c) Ms Akansha Yadav
D/o Sh Bal Kishan Yadav
d) Ms Pooja Yadav
D/o Sh Bal Kishan Yadav
All at 97-4B, Jawahar Nagar,
Subzi Mandi, Delhi ..........Respondent
Date of Institution: 06.06.2012
Reserved on : 23.01.2020
Date of Judgment : 13.03.2020
RCA No.61084/16 Sarla Vs Bal Kishan Page no. 1 /29
JUDGMENT
1. Appellant/ Defendant has preferred the appeal against judgment and decree dated 02.05.2012 in case titled as Balkishan Yadav vs Sarla Devi whereby suit for possession, mesne profits and injunction was decreed by Ld. Civil Judge, West District, Tis Hazari, Delhi in favour of plaintiff/Respondent.
2. Parties shall be referred by their status as appearing before Ld. Trial Court.
3. Plaintiff/ respondent has filed suit for possession against defendant seeking recovery of possession in respect of portion of property bearing no. B-3/7, Model Town, Delhi-09 as shown in the red colour of site plan(More appropriately at First Floor). It is averred in the plaint that grandfather of plaintiff Sh Gheesa Ram is the absolute owner of property bearing no. B-3/7, Model Town, Delhi-09 purchased by him by way of registered sale deed dated 16.03.1956. It is also pleaded that Sh Gheesa Ram died on 25.02.1989 leaving behind a registered Will dated 21.01.1982 as per which he bequeathed first floor of property in favour of plaintiff and ground floor of property was bequeathed in favour of plaintiff and his two sons. It is also pleaded that as per the said Will the entire ground floor portion of the suit property was partitioned between plaintiff and his two sons RCA No.61084/16 Sarla Vs Bal Kishan Page no. 2 /29 whereas the possession of first floor alongwith portion in the red colour came into the possession of plaintiff.
4. It is also pleaded that Sh Hari Chand (uncle of plaintiff) requested the plaintiff to allow him to occupy a portion in the first floor of suit property as licensee since he was having insufficient accommodation and pursuant to the request made by his uncle Hari Chand, plaintiff permitted him to occupy the first floor of property bearing no. B-3/7, Model Town, Delhi-09 as licensee.
5. It is also stated that Sh Hari Chand died on 31.05.1996 leaving behind some LR's. It is also pleaded that plaintiff purchased the share of Sh Hari Chand and other Legal heirs by virtue of two separate registered sale deed dated 10.01.1996 and 13.06.1997. It is also pleaded that except defendant all of the LR's have handed over their respective portion in the suit property except defendant. It is also pleaded that since plaintiff purchased the share of ground floor portion, and he became the absolute owner of property bearing no. B- 3/7, Model Town, Delhi-09.
6. It is also pleaded that after the death of Hari Chand defendant occupied the portion of first floor of portion illegally and also trespassed into other portion located on first floor as per site plan.
RCA No.61084/16 Sarla Vs Bal Kishan Page no. 3 /29
7. It is also pleaded that defendant did not vacate the property despite repeated request. Plaintiff also demanded mesne profit of Rs 5000/-p.m.
8. Written Statement was filed on behalf of defendant in which plea is taken to the effect that the execution of sale deed dated 02.06.1997 is illegal as same is forged and fabricated and same was prepared in collusion with the plaintiff. Defendant also took the stand Will dated 21.01.1982 is forged and fabricated. Plea is also taken to the effect that suit filed by plaintiff is counter blast to the suit of permanent injunction filed by the defendant.
9. In the Written Statement date of death of Gheesa Ram was admitted. However it was denied that Sh Gheesa Ram was having absolute right in respect of the suit property.
10. Defendant denied that property bearing No. B-3/7, Model Town, Delhi could have been distributed in the manner as stated in the Will. Defendant also denied that plaintiff allowed his uncle Hari Chand to live in the first floor of portion as licensee as alleged. A plea is also taken to the effect that suit property is a common ancestral Joint Hindu Family. It is also pleaded that defendant is a legally wedded wife of son of Late Sh Hari Chand and from the wedlock of defendant and son of Late Hari Chand two children namely Rahul and Ritika RCA No.61084/16 Sarla Vs Bal Kishan Page no. 4 /29 were born.
11. It is also stated that Sh Hari Chand was the Karta of family and as such the family was a Hindu Family governed by Mitakshara Hindu Family law. It is also pleaded that since defendant is a daughter in law of Hari chand and a member of family therefore she is a coparcener of the Hindu Joint Family of operation of law. After the death of Hari Chand, defendant and her two children are having 1/5th share in the property.
12. It is pleaded that sale deed dated 02.06.1997 executed by Legal Heirs of Sh Hari Chand in respect of suit property was absolutely illegal. It is also stated that sale deed dated 02.06.1997 is false and baseless document. Plea is also raised to the effect that husband of defendant did not take care of the children and also did not make any arrangement for the maintenance and accommodation in the family.
13. Reference was also made to the effect that family members as well as husband of defendant was interested to remove the plaintiff from the property.
14. On the basis of pleadings, following issues were framed on 09.05.2001 by Ld Civil Judge, Issue no.1: Whether the plaintiff is entitled to claim RCA No.61084/16 Sarla Vs Bal Kishan Page no. 5 /29 possession of suit property from defendant? OPP Issue no.2: Whether the plaintiff is entitled to claim damages from the defendant for unauthorised use and occupation of the suit property ?OPP Issue no.3: Whether the suit is not maintainable in the present form?OPD Issue no.4: Whether the plaint does not disclose any cause of action? OPD Issue no.5: Whether the sale deed dated 02.06.1997 executed by Legal Heirs of Sh Hari Chand in respect of suit property was illegal, fabricate and forged document and the same was allegedly executed by them in collusion with the plaintiff?OPD Issue no.6: Whether the Will executed by Gheesa Ram dated 21.01.1982 is illegal, bogus and fabricated document?OPD Issue no.7: Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD Issue no.8: Whether the plaintiff has no locus standi to file present suit? OPP Issue no.9: Relief
15. Ld Trial Court held that Will dated 21.01.1982 was validly and properly executed. Ld Trial court also held that sale deed dated RCA No.61084/16 Sarla Vs Bal Kishan Page no. 6 /29 2.6.1997 (registered on 13.06.1997) was also properly and correctly executed. Ld Trial Court also held that suit as filed by plaintiff is maintainable in its present form and same discloses the cause of action. Ld Trial Court held that plaintiff is also entitled for possession of property as well as the mesne profit.
16. I have heard Counsels for parties and perused the written submissions filed by them.
17. It is contended on behalf of appellant/defendant that plaintiff has failed to prove the Will beyond doubt and once it is proved that Will had not been proved in accordance with the law then issue no.6 in respect of the Will should have been decided in favour of defendant as against the plaintiff. It is also contended that Will in respect of first floor portion cannot be executed as same is not in possession of plaintiff and therefore, same creates suspicious circumstances. It is also contended that Ld. Trial Court did not frame the issue that suit property is common ancestral and joint Hindu family property and therefore, suit was wrongly decreed by Ld Trial Court. It is also contended that Issues have not been framed in proper manner and therefore, issue should have been framed and case should be remanded to the Ld Trial court for deciding the case after framing the necessary issue.
RCA No.61084/16 Sarla Vs Bal Kishan Page no. 7 /29
18. Per Contra, Ld counsel for plaintiff/ respondent supported the judgment and decree as passed by Ld Trial Court. It is contended that Ld Trial Court has dealt each and every issue in proper manner and the appeal filed by defendant/ appellant be dismissed.
19. One of the Ground/objection is with regard to execution of Will dated 21.1.1982. Defendant/Appellant vehemently challenged Execution of Will on various ground. Relevant to note that in order to prove Will Ex PW-1/5 & Ex PW-1/6(site plan). Attesting Witness i.e. PW-2 Ravi Kumar was examined, who proved Ex PW-1/5. Evidence by way of Affidavit of PW-2 is detailed one and in which he deposed that he signed the Will as one of the attesting witness. He also deposed that Will was prepared in his presence and deceased Gheesa Ram was in sound state of mind and health at the time of execution of Will. PW2 also deposed that Gheesa Ram put his thumb impression on both Will and site plan. He also deposed that Will was registered at the office of Sub Registrar on the same day i.e. 21.1.1982. PW-2 was extensively cross examined on behalf of defendant and perusal of his searching cross examination would reveal that he stood the test of cross examination and questions with regard to due execution of Will was satisfactorily answered by him and there is nothing in the cross examination of PW2 to suggest that deceased Gheesa Ram was person of unsound mind or he suffers from any debility by which any doubt can be expressed on the due execution of Will and Testimony of RCA No.61084/16 Sarla Vs Bal Kishan Page no. 8 /29 PW-2 can be safely relied upon.
20. PW-4, UDC, Sub Registrar was examined on behalf of plaintiff, who proved that Will Ex PW-1/5 and Site Plan Ex PW-1/6 was duly registered document No. 252, Additional Book No.3, Volume No. 240, Page 76 to 79 and proved that Will was duly registered.
21. Perusal of the testimonies of both PW-2 and PW-4 would reveal that due execution of Will cannot be doubted. Both the witnesses have proved that Will was properly executed. PW-2 has confirmed about the presence of other witness. PW-2 had explained the complete process involved in the preparation of Will. There are no circumstances which create any doubt with regard to due execution of Will and no inconsistencies have been brought into the record which makes the testimony of PW2 and PW4 unreliable. Nothing could be elicited in the cross-examination of both the witnesses to demolish the genuineness of the Will and the fact that Will is registered and same fortifies the presumption that a registered document has been properly executed. (vide Ravindra Dayal vs Shashi Dayal R.C. 544/2011 dated 7.8.2015 has referred and relied upon paragraph 21 of Bhinka and others v. Charan Singh AIR 1959 SC 960, in which three judge Bench of the Supreme Court held that under section 79 Indian Evidence Act a court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the RCA No.61084/16 Sarla Vs Bal Kishan Page no. 9 /29 official character which he claimed in the said document. But such a presumption is permissible only if the certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. To put it differently, if a certified copy was executed substantially in the form and in the manner provided by law, the court is required to raise a rebuttable presumption regarding its genuineness).
22. In so far as the criticism of Counsel for appellant that Scribe writer was not examined and also the person who drafted the Will was not examined. The said objection as raised on behalf of appellant is not sustainable as plaintiff/respondent had examined the attesting witness and also has proved the due execution /registration of the Will and once the document has been properly and validly executed by the deceased in favour of the plaintiff and there are no circumstances which indicate to the contrary, mere non-examination of scribe writer would not make difference in the present case. The site plan as annexed with the Will is also proved by the fact that same was signed/ thumb impression was affixed by deceased Gheesa Ram and attesting witness has lent credence to the proper execution of the site plan Ex.PW1/6.
23. Pertinently, Will was executed on 21.01.1982 whereas the present suit was filed in the year 1999 and time period of 17 years RCA No.61084/16 Sarla Vs Bal Kishan Page no. 10 /29 gives due legitimacy both to the execution of Will as well as the site plan and therefore, the objection that Will Ex PW-1/5 and Site plan Ex PW-1/6 are not properly executed is rejected.
24. Further criticism of appellant to the effect that PW2 ie attesting witness is not aware as to how many shops, rooms, kitchen etc are mentioned in the Will or in the site plan. An attesting witness is not supposed to be aware with regard to the existence of various things as mentioned in the Will or in the site plan. He is only witness to the due execution of the Will and which in the present case stands duly proved.
25. Hence, in view of the above mentioned discussion, it stands established that Will and annexed site plan was validly executed by deceased Gheesa Ram in favour of plaintiff and other legal heirs.
26. Other objection raised on behalf of appellant is to the effect that the suit property is common and ancestral and joint Hindu family property and therefore specific issue should have been framed by the Ld. Trial Court. It is also contended on behalf of defendant that issue with regard to the induction of Harish Chand S/o Gheesa Ram as licensee was not framed and therefore in the absence of framing of proper issues, the suit could not have been disposed of and on this basis, the appellant has prayed for the remand of the case to the Ld RCA No.61084/16 Sarla Vs Bal Kishan Page no. 11 /29 Trial Court.
27. In order to consider the contention that suit property is common ancestral and joint Hindu Family property, it is noteworthy to consider the judgment titled as Surender Kumar Vs. Dhani Ram, in CS OS1737/2012 dated 18.1.2016, taking into consideration number of judgments, Hon'ble Delhi High Court held 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 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, RCA No.61084/16 Sarla Vs Bal Kishan Page no. 12 /29 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 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 RCA No.61084/16 Sarla Vs Bal Kishan Page no. 13 /29 family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of 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.
(ii) 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 after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties.. (iv) Even before 1956, 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 RCA No.61084/16 Sarla Vs Bal Kishan Page no. 14 /29 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 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 Kar of his own undivided family but takes it in his individual capacity.
RCA No.61084/16 Sarla Vs Bal Kishan Page no. 15 /29 At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. 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. If 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 the RCA No.61084/16 Sarla Vs Bal Kishan Page no. 16 /29 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 RCA No.61084/16 Sarla Vs Bal Kishan Page no. 17 /29 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 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.
8(i). A reference to the plaint shows that firstly it is stated that Sh. Tek Chand who is the father of the defendant no.1 (and grandfather of Sh. Harvinder Sejwal and defendants no.2 to 4) inherited various ancestral properties which became the basis of the Joint Hindu Family properties of the parties as stated in para RCA No.61084/16 Sarla Vs Bal Kishan Page no. 18 /29 15 of the plaint. In law there is a difference between the ancestral property/properties and the Hindu Undivided Family property/properties for the pre 1956 and post 1956 position as stated above because inheritance of ancestral properties prior to 1956 made such properties HUF properties in the hands of the person who inherits them, but if ancestral properties are inherited by a person after 1956, such inheritance in the latter case is as self-acquired properties unless of course it is shown in the latter case that HUF existed prior to 1956 and continued thereafter. It is nowhere pleaded in the plaint that when did Sh. Tek Chand father of Sh. Gugan Singh expire because it is only if Sh. Tek Chand father of Sh. Gugan Singh/defendant no.1 had expired before 1956 only then the property which was inherited by Sh. Gugan Singh from his father Sh. Tek Chand would bear the character of HUF property in the hands of Sh. Gugan Singh so that his paternal successors-in-interest became coparceners in an HUF. Even in the evidence led on behalf of the plaintiffs, and which is a single affidavit by way of evidence filed by the mother of the plaintiffs Smt. Poonam as PW1, no date is given of the death of Sh. Tek Chand the great grandfather of the plaintiffs. In the plaint even the date of the death of the grandfather of the plaintiffs Sh. Gugan Singh is missing. As already stated above, the dates/years of the death of Sh. Tek Chand and Sh. Gugan Singh were very material and crucial to determine the automatic creation of HUF because it is only if Sh. Tek Chand died before 1956 and Sh. Gugan Singh inherited the properties from Sh.
RCA No.61084/16 Sarla Vs Bal Kishan Page no. 19 /29 Tek Chand before 1956 that the properties in the hands of Sh. Gugan Singh would have the stamp of HUF properties. Therefore, in the absence of any pleading or evidence as to the date of the death of Sh. Tek Chand and consequently inheriting of the properties of Sh. Tek Chand by Sh. Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the properties of Sh. Tek Chand prior to 1956. (ii) In fact, on a query put to the counsels for the parties, counsels for parties state before this Court that Sh. Gugan Singh expired in the year 2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek Chand died in 1982, inheriting of properties by Sh. Gugan Singh from Sh. Tek Chand would be self-
acquired in the hands of Sh. Gugan Singh in view of the ratio of the Supreme Court in the case of Yudhister (supra) inasmuch as there is no case of the plaintiffs of HUF existing before 1956 or having been created after 1956 by throwing of property/properties into common hotchpotch either by Sh. Tek Chand or by Sh. Gugan Singh/defendant no.1. There is not even a whisper in the pleadings of the plaintiffs, as also in the affidavit by way of evidence filed in support of their case of PW1 Smt. Poonam, as to the specific date/period/month/year of creation of an HUF by Sh. Tek Chand or Sh. Gugan Singh after 1956 throwing properties into common hotchpotch.
(iii) The position of HUF otherwise existing could only be if it was proved on record that in the lifetime of Sh. Tek Chand a Hindu Undivided Family before 1956 existed and this HUF owned properties include the property bearing no.93, Village Adhichini, Hauz Khas.
RCA No.61084/16 Sarla Vs Bal Kishan Page no. 20 /29 However, a reference to the affidavit by way of evidence filed by PW1 does not show any averments made as to any HUF existing of Sh. Tek Chand, whether the same be pre 1956 or after 1956. Only a self-serving statement has been made of properties of Sh. Gugan Singh being „ancestral‟ in his hands, having been inherited by him from Sh. Tek Chand, and which statement, as stated above, does not in law mean that the ancestral property is an HUF property."
28. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of 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 RCA No.61084/16 Sarla Vs Bal Kishan Page no. 21 /29 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. A reference to the plaint in the present case shows that it is claimed that ownership of properties by late Sh. Jage Ram in his name was as joint Hindu family properties. Such a bald averment in itself cannot create an HUF unless it was pleaded that late Sh. Jage Ram inherited the properties from his paternal ancestors prior to 1956 or that late Sh. Jage Ram created an HUF by throwing his own properties into a common hotchpotch. These essential averments are completely missing in the plaint and therefore making a casual statement of existence of an HUF does not mean the necessary factual cause of action, as required in law, is pleaded in the plaint of existence of an HUF and of its properties.
29. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, RCA No.61084/16 Sarla Vs Bal Kishan Page no. 22 /29 needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-Section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub-Sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub Sections (1) and (2) of Section 4 of the Benami Act. 12. This Court is flooded with litigations where only self-serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. 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 RCA No.61084/16 Sarla Vs Bal Kishan Page no. 23 /29 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."
Above view of Hon'ble Delhi High Court was reiterated in number of Judgment such as JAI NARAIN MATHUR & ORS Vs JAI AKASH MATHUR (DECEASED) THROUGH LR's RFA No.571/2011 dated 9th February, 2016.
28. Suit property was purchased by Lt Gheesa Ram S/o Chaudhary Kripa Ram in his own name vide sale deed Ex.PW1/1 on 15.03.1956 and the suit property was the self acquired property and same was bequeathed by Gheesa Ram on 21.01.1982 in which he specifically bequeathed the first floor portion of the suit property bearing no. B- 3/7, Model Town, Delhi-09 in favour of the plaintiff i.e specific share was allocated to Bal Kishan. Section 30 of the Hindu Succession Act provides that a Hindu can dispose of his property either by Will or by RCA No.61084/16 Sarla Vs Bal Kishan Page no. 24 /29 such other disposition or by any other law time being enforced and since the first floor portion of the suit property has been bequeathed in favour of plaintiff/respondent and other part of suit property has been sold by other LRs in favour of the plaintiff through registered Sale deed. Therefore, plaintiff/ Respondent can maintain the suit for eviction against Defendant/Appellant.
29. Thus objection as raised on behalf of appellant/defendant is not tenable, since reading of the issues as framed by Ld. Trial Court would reflect that Ld Trial Court has rightly and correctly framed all the issues and plea of Joint and ancestral property as attempted to be raised by appellant/defendant would fall flat since suit property was originally purchased by Shri Gheesa Ram and once the suit property was self acquired property of Late Shri Gheesa Ram, who died on 25.02.1989 and therefore, by virtue of operation of Section 30 of Hindu Succession Act, property could be liable to be disposed in such manner as it was the self acquired property of deceased Gheesa Ram.
30. In view of the ratio of judgment of Hon'ble Delhi High Court as referred above and followed in various other judgments. Upon evaluating the case as set up in the written statement and the evidence as led on behalf of the defendant would indicate that defendant failed to explain as to how the suit property is a common ancestral joint Hindu family property as same was the self acquired property of Late RCA No.61084/16 Sarla Vs Bal Kishan Page no. 25 /29 Gheesa Ram who bequeathed various portion of the property to his children.
31. It was also contended by counsel for appellant/ defendant that issues with regard to common ancestral and joint family property was not framed in the present case. Issues are framed on the basis of pleadings of the parties and bald plea unsupported by facts would make it apparent that there is no requirement to frame such an issue and furthermore, Ld Civil Judge, Delhi has evaluated the abundant material on record and returned a categoric finding that suit property was self acquired property of Sh. Gheesa Ram and after his death, property is to be devolved in accordance with Section 30 of Hindu Succession Act.
32. No evidence or material has been brought into record which even remotely suggest that after the death of Sh Gheesa Ram, the legal heirs of Sh Gheesa Ram have treated the suit property as a joint Hindu Family property or there is a common nucleus by which the suit property was treated as joint Hindu family property. The suit property i.e. first floor portion was bequeathed by way of Will to respondent/plaintiff and Ground Floor of B-3/7, Model Town, Delhi is transferred by registered sale deed in favour of plaintiff. Therefore, respondent/plaintiff would be entitled to seek possession in his own independent right.
RCA No.61084/16 Sarla Vs Bal Kishan Page no. 26 /29
33. Since entitlement of respondent/plaintiff in respect of the suit property is well established and the suit property has come into the hand of respondent/plaintiff by way of testamentary succession, plaintiff/ respondent would be entitled to remove such person from the possession of the suit property. Perusal of issue no.1 as framed by Ld Civil Judge would indicate that plaintiff has claimed the relief of possession from defendant on the ground that plaintiff has permitted his Uncle Hari Chand to live in the first-floor portion of the suit property which is presently occupied by defendant. Once the plaintiff has permitted his Uncle to reside in the suit property as licensee then any person in occupation of such portion of suit property has to be treated as licensee of plaintiff and therefore, plaintiff would be entitled to seek and recovery the possession from the person from occupying the suit property.
34. It is also contended on behalf of appellant/defendant that suit for possession and mesne profit is not maintainable without seeking the relief of declaration of ownership and title and reference is also laid to the judgment of Anathula Sudhakar Vs. P Buchi Reddy AIR 2008 SC 2033. However, cited judgment is not applicable in reference to the present case as plaintiff is not required in all cases to establish his entitlement by seeking relief of declaration in respect of a property. It is only when there is doubt or cloud in respect of the title of the suit property, it is only then there is a requirement to seek declaration. The RCA No.61084/16 Sarla Vs Bal Kishan Page no. 27 /29 entire chain of documents as filed on behalf of plaintiff would indicate that suit property was originally purchased by Sh Gheesa Ram and once there is no doubt or cloud in respect of the title of suit property and the Will executed by Sh Gheesa Ram in favour of respondent/plaintiff, it would show that a clear title was passed on to the respondent/ plaintiff. Hence, respondent/plaintiff is not required to seek relief of declaration. It was held by Hon'ble Supreme Court of India that a suit for possession without declaration maintainable when there is no doubt with regard to the title. Reference can be had to the judgment of Hon'ble Supreme Court of India in Muddasani Venkata vs Muddasani Sarojana Civil Appeal no. 4816/16 dated 05.05.2016.
35. It was also contended on behalf of defendant/appellant that all legal heirs of Sh Gheesa Ram are to be impleaded as party in the present case. Submission as raised on behalf of appellant/ defendant is liable to be rejected for the reason that in a suit for possession only such parties are to be impleaded from whom the possession is sought to be recovered. Present case is not one of those cases in which there are other co-owners in respect of the suit property due to which the consent of all co-owners are required to be taken.
36. Appellant/defendant has also raised an objection to the effect that Ld Trial Court has not framed all the issues pertaining to the present case. Perusal of the record would reveal that all necessary RCA No.61084/16 Sarla Vs Bal Kishan Page no. 28 /29 issues have been framed in the present case. It is pertinent to mention that present suit was filed in the year 1999 and it continued for about 13 years and at no stage of proceedings any application for framing of any other issue was filed or pressed by defendant. As many as, nine issues were framed by the Ld Trial Court on 09.05.2001 and at no stage, any grievance was made by defendant/appellant that proper issues were not framed and on the contrary, vide order dated 22.03.2003, application of plaintiff for striking of certain issues was dismissed.
37. In view of the abovementioned discussion, the appeal filed by appellant/defendant is devoid of merits and thus dismissed.
All pending applications stand disposed of in view of the abovementioned discussion.
Copy of this order alongwith Trial Court record be sent back. Appeal file be consigned to record room as per law.
Announced in the Open Court on 13.03.2020 (Hasan Anzar) Additional District Judge-06 West District, THC RCA No.61084/16 Sarla Vs Bal Kishan Page no. 29 /29