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RFA(OS) 11/2010 Page 2

3. The case of the plaintiffs was that prior to the partition, the late Bakshi Ram and his family were settled in a part of Punjab that is now in Pakistan. At the time, the family was a HUF and Bakshi Ram, as karta, was running various businesses (as a contractor, and running a petrol pump) at the time. These businesses, it is claimed, were being run under the name and style of "Bakshi Ram & Sons". It is alleged that after partition, Bakshi Ram alongwith his family shifted from Pakistan to India, and submitted his claims with the Ministry of Rehabilitation (in India) with regard to various assets and properties concerning his businesses and also houses and other property left behind by him in Pakistan. The name of the applicant was "Bakshi Ram & Sons", through Bakshi Ram as the karta, and the address mentioned was 16/229, Joshi Road, Karol Bagh, New Delhi. Thus, the plaintiff urged that the claim was made by the late Bakshi Ram as the karta on behalf of a HUF.

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5. The suit alleged that post partition Bakshi Ram was allotted various properties in lieu of those left behind in Pakistan. First, the Burmah Shell Company allotted a petrol pump in Badarpur, Tehsil Mehrauli, Delhi to M/s. Bakshi Ram & Sons, a HUF firm, of which Bakshi Ram was karta. In addition, the plaintiffs allege that some compensation amount was also paid to Bakshi Ram, which was used by him to carry various businesses in Delhi and in connection with the improvement of properties in question. These were Plot No. 43 at Badarpur, Tehsil Mehrauli, Delhi (for a consideration of ` 950/-), one 'Kutti Machine' at Village Azadpur, Delhi, belonging to the Custodian of Evacuee Property (on a rental basis), and finally Bakshi Ram was also acting as a contractor of "rehra" stand at Farash Khana, GB Road, Delhi. Further, the plaintiffs allege that as against the amounts that Bakshi Ram was entitled to against his assessed claims, by way of compensation, a property - House No. XVI/318-323, Joshi Road, Karol Bagh, New Delhi was acquired by Bakshi Ram by adjusting a part of the compensation amount against the price of the said property. Crucially, the plaintiffs claim that the businesses etc. were run in the name of the HUF firm of Bakshi Ram & Sons, as it was being carried out earlier in Pakistan, till Bakshi Ram died on 10th February, 1960. It is claimed that Sudharshan Lal acted as the karta till his death in 1987.

9. Furthermore, the plaintiffs claim that till the death of Bakshi Ram or till the death of Smt. Chanan Devi, or even till the death of Sudarshan Lal, no partition of the family properties had taken place and the properties as such continue to be joint with all the parties having their respective undivided share in the same.

10. The first two defendants (i.e. the two brothers) filed a common written statement; the third and fourth defendants did not appear and were set down ex parte. The two brothers pleaded that: (1) the first two plaintiffs, and non-contesting appellants in the present appeal, were married in 1944 and 1951, i.e. before the HSA in 1956, and thus, as such they were not members of the HUF; (2) that when Bakshi Ram died on 10th February, 1960, subsequently, on 21st February, RFA(OS) 11/2010 Page 7 1960 all the members of the HUF assembled at the Kriya ceremony and agreed to severe the HUF, and apportion the property. In this connection they made an unambiguous and definite declaration of their intention to separate. Accordingly, it was argued that the plaintiffs, being party to such agreement, were estopped from questioning the validity of the partition; (3) that the suit was time barred under Article 113, Limitation Act, 1963; (4) as regards the plaintiff's claim over the house No. XVI/318-323, Joshi Road, Karol Bagh, New Delhi, the brothers claimed that in terms of a settlement made between the members of the family (including the plaintiffs), the plaintiffs had relinquished their right/claim over the plot under a registered document in favour of Sudarshan Lal; (5) that the petrol pump in Pakistan belonged not to the HUF but to the partnership firm comprising Bakshi Ram,Sudarshan Lal and Kulbhushan Lal; (6) similarly, that the petrol pump allotted in 1947 by M/s. Burmah Shell in Badarpur by an agreement dated 01.12.1948 was to the partnership firm (and not the HUF); (7) the existence of the kutti machine and the rehra stand was denied; (8) that at the time of the demise of Sh. Bakshi Ram, the joint family properties comprised only of the abovementioned house at Joshi Road, Karol Bagh; plot number 43 of khasra number 36/28/2 and 36/29/2 in village Badarpur, and land bearing khasra numbers 32/28/1 and 32/28/2 in village Badarpur; (9) that the Karol Bagh house was acquired as against the compensation amount payable to Bakshi Ram and his three sons (as the partnership firm) in his name, and after his death, all parties to the present case relinquished their rights in the property in favour of Sudarshan Lal by RFA(OS) 11/2010 Page 8 a registered deed, and further, that the property was thus mutated in favour of Sudarshan Lal in the records of the MCD and the DDA; (9) Plot No.43 (bearing Khasra No.36/28/2 & 36/29/2) at Badarpur was acquired by Bakshi Ram from Ministry of Rehabilitation against the claims. On his demise and dissolution of the HUF the said plot vested in the mother of the parties Smt. Chanan Devi. She had in or about the year 1960 filed a suit in the court of Senior Sub-Judge, Delhi with respect to the plot No.43 seeking declaration of her rights as owner and Bhumidar thereof on the statement of her three sons. A decree for declaration was granted declaring her to be the owner and Bhumidar of the said lands; the said lands were also mutated in her name in the revenue records; (10) the plot in Khasra No.32/28/1 & 32/28/2 vested in terms of the family settlement in the three sons of Bakshi Ram and also mutated in their names; (11) that on the dissolution of HUF, three brothers had agreed to pay `10,000/- to each of the sisters and which stood paid; (12) that since September, 1958 all the brothers had been residing separately; it was denied that any of the businesses were of the HUF; (13) with respect to land admeasuring 5 bighas and 1 biswas in Tuglakabad it was stated that the same had been acquired by Sudarshan Lal out of his own personal fund and by registered sale deed dated 11th June, 1960 and Bakshi Ram and Sons had nothing to do with the said land. He had leased out a part of the plot to Burmah Shell for the petrol pump and the petrol pump in the name and style of BE-AR Sales (Auto Grit) was functioning there since 1961 in partnership, between Sudarshan Lal and the Defendant No.1; subsequently Prem Prakash Sharma joined the said firm. It was denied RFA(OS) 11/2010 Page 9 that the petrol pump (Auto Grit) belonged to Bakshi Ram and Sons; it was further averred that the land underneath this was acquired and Sudarshan Lal had filed a writ petition in this Court challenging the said acquisition; during the pendency of the writ petition Sudarshan Lal expired and Prem Prakash Sharma was substituted in his place; (14) Sudarshan Lal had with his own monies in the year 1968 acquired the land measuring 2 bighas and 10 biswas at village Tehkhand and the sale deed thereof was in his name only and was his exclusive property; the same was acquired and in lieu thereof plot No. B-43 Friends Colony, New Delhi was allotted to Sudarshan Lal; (15) with respect to the land in Khasra No.32/28/1 & 32/28/2 in village Badarpur it was stated that though it belonged to Bakshi Ram but on his demise the lands were mutated in favour of his three sons under provisions of the Delhi Land Reforms Act; the said lands were acquired; the acquisition was also challenged by the three sons only of Bakshi Ram; (16) that there was no land bearing Khasra No.32/28/3 described by the plaintiffs; (17) land measuring 2 bighas 16 biswas in Khasra No.231, Village Tajpaul, Tehsil Mehrauli was the exclusive property of Sudarshan Lal acquired in 1957 and that in 1968 Sudarshan Lal had formed HUF in the name and style of Bakshi Ram and Sons and was its karta. (18) the house at Lajpat Nagar was in the tenancy of the second defendant since 1958; it was averred that the said house was purchased by Prem Prakash Sharma by sale deed dated 10th August, 1989; the house has since been sold; (18) BE-AR Sales was a partnership of Sudarshan Lal and the first defendant and it was carrying on business in the name and style of Auto Rest, Auto Rink RFA(OS) 11/2010 Page 10 and Auto Grit; subsequently Prem Prakash Sharma too joined the said firm. The petrol pump Auto Yard was the sole proprietary concern of the second defendant since April, 1966 and it had been converted into a partnership firm of the defendant No.2 and his wife since February 1987. The existence of any firm in the name and style of Sharma and Company was denied.

14. On the question of which properties were part of the HUF at the time of the death of Bakshi Ram, i.e. on 10.02.1960, the learned Single Judge, based on admissions of the first and second defendants in the form of the partnership deed dated 1st April, 1968, held that the following properties were held jointly: a) the house at Joshi Road, Karol Bagh, b) Plot No. 43 comprising khasra number 36/28/2 and 36/29/2 at Village Badarpur, Delhi, c) plot of land bearing khasra number 32/28/1 and 32/28/2 at village Badarpur, Delhi, d) plot of land bearing number 231, village Tejpaul, Tehsil Mehrauli, Delhi and finally, e) a plot of land in Tughlakabad. Of these properties, Bakshi Ram's 1/5th share (the entire share being divided between the five members of the family who would share in the coparcenary, i.e. him, his wife, and three sons) would devolve upon the eight children and late Bakshi Ram's widow. Thus, the learned Single Judge held that each of the plaintiffs would be entitled to a 1/8th share of the 1/5th share of late Bakshi Ram. However, with respect to the house at Joshi Road, Karol Bagh, the Single Judge held that the plaintiffs had, by way of a registered relinquishment deed (which was admitted by the plaintiffs), surrendered any claim over that property to Sudarshan Lal. Further, with respect to Plot No. 43 comprising khasra number 36/28/2 and 36/29/2 at Village Badarpur, Delhi, the Single Judge held that it was admitted and established that the property stand mutated in RFA(OS) 11/2010 Page 15 the name of the mother, Smt. Chanan Devi, as the bhumidar and thus, the provisions of Section 51 of the Delhi Land Reforms Act, 1954 would apply, despite the fact that the land may have been urbanized. Accordingly, the learned Single Judge held that under Section 51, only male members of the family would be entitled to the land, and the plaintiffs would be excluded from any share. Thus, in conclusion, the learned Single Judge held that the only properties in which the plaintiffs could have a share are those which were admitted in the partnership deed dated 1st April, 1968 minus those over which the claim was relinquished, or that were regulated by the Delhi Land Reforms Act. This, the learned Single Judge noted, left three properties in which the plaintiffs had a share, i.e. a) plot of land bearing khasra number 32/28/1 and 32/28/2 at village Badarpur, Delhi, b) plot of land bearing number 231, village Tejpaul, Tehsil Mehrauli, Delhi and finally, c) a plot of land in Tughlakabad. However, the learned Single Judge held that Section 185 of the Land Reform Act bars the jurisdiction of civil courts with respect to properties governed by the Act, irrespective of whether the lands were mutated in favour of the HUF or any individual family member. Accordingly, the learned Single Judge held that none of the three properties could be partitioned in this suit, given the bar under Section