Document Fragment View

Matching Fragments

22. Mr. Jha, the learned counsel for the applicant-defendant No.1 mounted a multi-pronged challenge to the tenability of the suit in support of the submission that the plaint is liable to be rejected under Order VII Rule 11 of the Code. First and foremost, the plaint singularly lacks bare necessary facts and requisite pleadings to make out a case of existence of HUF, holing of properties by the HUF and the entitlement of the plaintiffs to .. 13 .. IAL-9684-2021++S-113-2021.doc shares therein. Secondly, in view of the change brought about by the Hindu Succession Act, 1956, even if the case of the plaintiffs is taken at par, the properties which devolved upon the defendant No.1 ceased to be the joint family properties and assumed the character of the self-acquired properties. The very premise of the plaintiffs that the properties which devolved upon the defendant No.1 from Phoolchand continued to retain the character of HUF is wholly misconceived. Thirdly, laying emphasis on the necessity and importance of the pleadings, in the light of the provisions contained under Order VI Rule 4 and Order VIII Rule 3 of the Code, Mr.Jha would urge that the averments in the plaint are plainly vague, bald and do not make out a cause of action. It was further submitted that the instant suit is instituted by plaintiff No.3 to wreck vengeance and keep the properties, which are not even remotely joint family properties, entangled in litigation. The suit is neither for the beneft of the plaintiff Nos.1 and 2 nor the plaintiff Nos.1 and 2 can be said to have expressed an unequivocal intention to sever from the joint family. In any event, the plaintiff No.3 is not entitled to seek partition of the joint family property as there is no severance between the defendant No.1 and defendant No.3. Mr.Jha, in support of each of the submissions, placed .. 14 .. IAL-9684-2021++S-113-2021.doc reliance on a number of judgments, reference to which would be made at appropriate stage.

25. Dr.Tulzapurkar joined the issue by canvassing a submission that in an application under Order VII Rule 11 of the Code, what is to be seen is the averments in the plaint. At this stage, the contentions of the defendants either in the application for rejection of Plaint or the written statement are wholly irrelevant. On this touchstone, according to Dr.Tulzapurkar, the plaint discloses, with suffcient clarity, the existence of joint family nucleus and acquisition of the properties by defendant No.1 as a member of HUF. Dr.Tulzapurkar controverted the main plank of .. 16 .. IAL-9684-2021++S-113-2021.doc the submission on behalf of the defendant No.1 that after the enactment of Hindu Succession Act, 1956, in all cases, the property which devolves upon a male Hindu acquires the character of self-acquired property. A distinction was sought to be made by Dr.Tulzapurkar, in the devolution of self-acquired property and joint family property. If the ancestral property was in existence before enactment of Hindu Succession Act, 1956, such property continues to retain the character of joint family property even when the succession opens after 1956. The challenge on behalf of the defendants on the ground that the plaint lacks requisite facts and details was sought to be met by advancing a submission that there is a distinction between the material facts and better particulars. A plaint cannot be rejected, according to Dr.Tulzapurkar, on the ground that it lacks further particulars.

37. A strong reliance was placed by Mr.Jha on the judgment of the Supreme Court in the case of Commissioner of Wealth Tax, , wherein the Supreme Court elucidated the impact of section 8 on the character of the property which devolves upon a Hindu male, as under :

22 In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be diffcult to hold today the property which devolved 10 (1986) 3 SCC 567 .. 25 .. IAL-9684-2021++S-113-2021.doc on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis-

(emphasis supplied)

45. The aforesaid decisions in the cases of Shyam Narayan Prasad (Supra) and Ashnoor Singh (Supra) make it clear that the nature of the property which devolves upon a male Hindu in a situation contemplated by section 8 of the Act, 1956 turns upon two factors. First, the character of the property which devolves upon a male Hindu. Second, whether the succession had opened prior to the commencement of the Hindu Succession Act, 1956. If that is a case, the character of the property would remain a coparcenary property even after the commencement of the Hindu Succession Act, 1956. A broad proposition that whatever be the source of property which devolves upon a male Hindu, the property assumes the character of separate property may not be sustainable.