Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 7 October, 2024
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Date of Decision: 10 December, 2024
+ CS(OS) 806/2024 & I.A. 41552/2024, I.A. 41553/2024
SMT. SAMTA .....Plaintiff
Through: Mr. Vedant, Advocate (Through VC)
versus
SH. SUDEEPAK KUMAR RAJAN AND ORS .....Defendants
Through: None
CORAM:
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
J U D G M E N T
MANMEET PRITAM SINGH ARORA, J:
1. The present suit has been filed seeking a decree of partition of the
house property i.e., built up property bearing House H.No.500/2-B, Block-
30, 60 Ft. Road, Street No.6 & 7, Vishwas Nagar, Delhi-110032
admeasuring 200 sq. yards (‘suit property’). The suit also seeks a decree for
permanent injunction against the defendants from creating any third-party
interest in the suit property.
1.1. It is stated in the plaint that the suit property was purchased by Sh.
Daulat Ram (‘deceased’) in 1990s. It is stated that Sh. Daulat Ram expired
on 12.03.2023 and he died intestate.
1.2. It is stated that plaintiff is the grand-daughter of Sh. Daulat Ram.
Defendant no. 1 is the father of the plaintiff and son of Sh. Daulat Ram.
Defendant no. 6 is the brother of the plaintiff and son of defendant no. 1.
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Defendant nos. 2 to 4 are other sons of late Sh. Daulat Ram and thus uncles
of the plaintiff. Defendant no. 5 is the wife of late Sh. Daulat Ram and the
grandmother of the plaintiff.
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1.3. The plaintiff has filed the present suit claiming 1/15 share in the suit
property on the plea that the suit property was a joint Hindu family property
as it was purchased from joint Hindu family funds.
Arguments on behalf of the counsel for the plaintiff
2. Learned counsel for the plaintiff states that the plaintiff verily believes
that the suit property was purchased by late Sh. Daulat Ram from joint
Hindu family funds in 90’s, therefore, the said property is a joint Hindu
family property.
2.1. He states that there are matrimonial disputes pending between the
plaintiff’s parents and the suit property was purchased by late Sh. Daulat
Ram prior to the marriage of the parents of the plaintiff.
2.2. He fairly states that the plaintiff doesn’t have in her possession any
documents to substantiate the oral plea that the suit property is a Hindu
Undivided Family (HUF) property; however, she has been orally informed
that indeed the property is an HUF property.
2.3. He states that the suit property was also the matrimonial home of the
plaintiff’s mother and the mother’s income has also been used in
reconstruction of the entire suit property in the mid-year of 2001. He states
that upon these pleas, the present suit has been filed seeking partition of the
suit property as a HUF property.
2.4. He states that there is no dispute that the suit property stands in the
individual name of late Sh. Daulat Ram.
2.5. He states that the plaintiff is not aware as regards to the name of the
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HUF or whether any taxing entity by the name of the said HUF exists.
2.6. He further contends that the suit property was in the individual name
of late Sh. Daulat Ram and he has died intestate, however, as the suit
property is ancestral, therefore, the plaintiff herein has rights by birth in the
suit property.
Findings and Analysis
3. This Court has considered the submissions of the learned counsel for
the plaintiff and perused the record.
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4. The plaintiff has filed the present suit seeking 1/15 share in the suit
property standing in the name of late Sh. Daulat Ram on the plea that the
suit property was purchased by him from joint Hindu family funds. The
relevant pleading in the plaint is at paragraph ‘4’ and paragraph ‘18’ of the
plaint, which reads as under:-
“4. That the grandfather of the plaintiff and father of defendants no. 1
to 4 and husband of defendant no.5 namely Late Sh. Daulat Ram
purchased the suit property and maintained the same as Hindu
joint family property in 90’s from joint Hindu family funds , the
suit property comprises of four shops at ground floor, ground floor,
first floor and second floor, most specifically shown red in the site
plan attached herewith.
18.That the cause of arose when grandfather of petitioner
purchased the suit property from Hindu family funds in 90’s and
cause of action further arose when the petitioner’s married to
defendant no. l and petitioner born out of wedlock and further cause of
action arose when the petitioner & her mother thrown out of suit
property on 11.09.2012 with malic that petitioner will not get her
share in the suit property, and cause of action further arose when the
petitioner got married and entire expanses born by the petitioner’s
mother alone, and cause of action further arose when the grandfather
namely Sh. Daulat Ram was expired on 12.03.2023 and dies intestate,
and cause of action further arose when the defendant no. l with
concurrence of his family members filed false case against the
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petitioner’s mother and hon’ble court rejected the plaint of the
defendant no. l and cause of further arose when defendant no. l
deliberately mentioned wrong facts in the petition rejected by the
Hon’ble court only to make disentitlement of share of petitioner in the
suit property, hence still subsisting.”
(Emphasis Supplied)
5. On a prima facie consideration of materials placed on record with the
suit, it would be pertinent to note that neither any title documents pertaining
to the suit property nor documents evidencing the source of the funds
alleged to form the corpus of the joint Hindu family funds have been placed
on record in support of the plea that joint Hindu family funds were used for
purchasing the suit property by late Sh. Daulat Ram.
6. Moreover, the learned counsel for the plaintiff during arguments
sought to alter the stand by alleging that the suit property is an HUF
property. However, learned counsel fairly admitted that the plaintiff is not
aware as regards the existence of any HUF entity of late Sh. Daulat Ram.
7. In this regard it would be relevant to note that ordinarily a HUF has a
name and is also recognized as a separate taxing entity under the Income
Tax Act, 1961. If an HUF owns properties, it would ordinarily have an
independent Permanent Account Number (PAN) and bank accounts in the
name of the HUF. The existence of the PAN and bank accounts in the name
of the HUF would all show its existence. The inability of the plaintiff to
state the name of the alleged HUF leads to the inescapable conclusion that
no HUF of late Sh. Daulat Ram exists.
8. The use of the phrase Hindu joint family property in the captioned
plaint is inaccurate. In law, the correct nomenclature is coparcenary
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property . In law, Hindus can own two types of properties known as
coparcenary property or personal property. The incidence of ownership of
coparcenary property and personal property are distinct. The personal
property of a Hindu includes his/her self-acquired property and property
inherited from an ancestor to hold as his/her personal property. The
coparcenary property is a distinct species of property which belongs to a
coparcenary in which the Hindu acquires interest by birth as a coparcener
and receives share in the property upon partition.
9. In view of the pleaded facts, wherein the suit property came into
existence in 1990s as per the plaint, it would be relevant to recall that there
is no presumption attached to creation and existence of an HUF upon
purchase of a property by a male Hindu or such a property being considered
as a coparcenary property in the hands of the lienal descendants upon death
of the title holder after the coming into force of Section 8 of Hindu
Succession Act, 1956 (‘Act of 1956’).
10. In this regard it would be relevant to firstly refer to the judgments
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passed by the Supreme Court in Yudhishter v. Ashok Kumar reiterating
the legal position held in Commissioner of Wealth Tax, Kanpur and Ors.
3
v. Chander Sen and Ors. wherein it has been observed that after coming
into force of Section 8 of the Act of 1956, inheritance of ancestral property
does not result in creation or existence of an HUF property and such
property inherited by the son retains the character of a separate property
taken in its individual capacity.
1
Neeraj Bhatia v. Ravindra Kumar Bhatia (2024 SCC OnLine Del 4894) [Paragraph 38]
2
(1987) 1 SCC 204
3
(1986) 3 SCC 567
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11. It has been further explained by the Coordinate bench of this Court in
Aarshiya Gulati (Minor) Through Next Friend and Others v. Kuldeep
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Singh Gulati and Others that in regards to the claim of property being a
HUF property it is not simply enough to aver in the plaint that the subject
property is a Hindu Joint Family Property or that there exists a HUF. The
operative portion to this aspect reads as under:
“ORDER 6 RULE 4 CPC IS ATTRACTED TO SUITS WHERE THE PLAINTIFF
CLAIMS THAT A COPARCENARY OR HUF EXISTS, AS AFTER COMING
INTO FORCE OF THE HINDU SUCCESSION ACT, 1956, THERE IS NO
PRESUMPTION AS TO THE EXISTENCE OF AN HUF.
40. A learned Single Judge of this Court in the case of Surender Kumar v.
Dhani Ram, 227 (2016) DLT 217 has held that Order 6 Rule 4 CPC is
attracted to suits where the plaintiff claims that a coparcenary or HUF
exists, as after coming into force of the Hindu Succession Act, 1956
(hereinafter referred to as Act, 1956‘), there is no presumption as to the
existence of an HUF. Consequently, detailed facts have to be averred. The
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. The relevant
portion of the said judgment is reproduced hereinbelow:—
“9. 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 6 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 Yudhister
(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 HUF and its properties
exist is not a sufficient compliance of the legal requirement of creation
4
2019 SCC OnLine Del 6867
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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.”
(emphasis supplied)
41. A Division Bench of this Court in Sagar Gambhir v. Sukhdev Singh
Gambhir, 241 (2017) DLT 98 has endorsed the said view. The relevant
portion of the Division Bench's judgment is reproduced hereinbelow:—
5. The defendants filed IA No. 1325/2012 invoking Order VII
Rule 11 of the Code of Civil Procedure pleading that the
averments in the plaint did not disclose a cause of action.
6. Vide impugned order dated May 06, 2016, relying upon the
decision of the Supreme Court reported as (1987) 1 SCC 204
Yudhihster v. Ashok Kumar, and two decisions of this Court
reported as 225 (2015) DLT 211 Sunny (Minor) v. Sh. Raj
Singh and 227 (2016) DLT 217 Surinder Kumar v. Dhani Ram
the learned Single Judge has held that the pleadings were
illusory and did not disclose a cause of action. The suit has been
dismissed, and we treat this to be a misnomer for the reason if a
plaint does not disclose a cause of action it has to be rejected.
Qua challenge to the will, the learned Single Judge has held that
this would be a separate cause of action and a separate suit could
be filed.
11. …….the Supreme Court laid emphasis that Courts must
accord due attention to the pleadings, and in civil cases
pertaining to property, must accord the necessary consideration
to the admitted documents filed by the parties and highlighted
that this care would prevent many a false claims from sailing
beyond the stage of issues. In paragraph 73 to 79 of the opinion,
the Supreme Court highlighted that suspicious pleadings,
incomplete pleadings and pleadings not supported by documents
would not even warrant issues to be settled. Thus, the said
observations of the Supreme Court would be very relevant in the
instant case.
…..
……….
THERE IS A PRESUMPTION THAT EVERY HINDU FAMILY WHICH IS
JOINT IN FOOD AND WORSHIP IS A HINDU JOINT FAMILY; BUT THERE
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IS NO PRESUMPTION THAT THE ESTATE IS JOINT OR THE PROPERTY IS
THE HINDU JOINT FAMILY PROPERTY. THE PARTY WHO ASSERTS
THAT THE PROPERTY IS HINDU JOINT FAMILY PROPERTY HAS TO
PROVE IT.
48. In the opinion of this Court, there is a presumption that every Hindu Family
which is joint in food and worship is a Joint Family; but there is no presumption
that the Estate is joint or that the properties of the family members belong to the
Hindu Joint Family. The party who asserts that the property is joint family
property has to prove it.
49. Mulla in his Treatise Hindu Law states as under –:
st
“Para 231-Mulla's Hindu Law – 21 Edition
1) Presumption that a joint family continues joint - Generally speaking,
‗the normal state of every Hindu family is joint. Presumably every such
family is joint in food, worship and estate.‘ In the absence of proof of
division, such is the legal presumption.
2) No presumption that a joint family possesses joint property - There is
no presumption that a family, because it is joint, possesses joint
property or any property. When in a suit for partition, a party claims
that any particular item of the property is joint family property, or when
in a suit for a mortgage, a party contends that the property mortgaged is
joint family property, the burden of proving it rests on the party
asserting it.
(emphasis supplied)
50. In Makhan Singh (Dead) By LRs. v. Kulwant Singh, (2007) 10 SCC 602,
the Apex Court has held as under:—
“7. ……In this connection the judgment in D.S. Lakshmaiah case becomes
relevant. It had been observed that a property could not be presumed to be a
joint Hindu family property merely because of the existence of a joint Hindu
family and raised an ancillary question in the following terms : (SCC p. 314,
para 7)
“7. The question to be determined in the present case is as to who is
required to prove the nature of property whether it is joint Hindu family
property or self-acquired property of the first appellant.”
8. The query was answered in para 18 in the following terms: (SCC p. 317)
“18. The legal principle, therefore, is that there is no presumption of a
property being joint family property only on account of existence of a
joint Hindu family. The one who asserts has to prove that the property
is a joint family property. If, however, the person so asserting
proves that there was nucleus with which the joint family
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property could be acquired, there would be presumption of the
property being joint and the onus would shift on the person who
claims it to be self-acquired property to prove that he purchased
the property with his own funds and not out of joint family
nucleus that was available.”
(emphasis supplied)
9. The High Court has also rightly observed that there was no presumption
that the property owned by the members of the joint Hindu family could a
fortiori be deemed to be of the same character and to prove such a status it
had to be established by the propounder that a nucleus of joint Hindu
family income was available and that the said property had been purchased
from the said nucleus and that the burden to prove such a situation lay on
the party, who so asserted it. The ratio of K.V. Narayanaswami Iyer case
[AIR 1965 SC 289 : (1964) 7 SCR 490] is thus clearly applicable to the
facts of the case. We are therefore in full agreement with the High Court
on this aspect as well. From the above, it would be evident that the High
Court has not made a simpliciter reappraisal of the evidence to arrive at
conclusions different from those of the courts below, but has corrected an
error as to the onus of proof on the existence or otherwise of a joint Hindu
family property.
(emphasis supplied)
51. A Division Bench of this Court in Ravi Shankar Sharma v. Kali Ram Sharma,
2014 I AD (Delhi) 609 has held that there is a body of authority to the effect that
though the family might be joint, yet there is no presumption that property of
someone is Hindu Undivided Family property.
HOWEVER IF SUFFICIENT NUCLEUS/INCOME OF HINDU JOINT
FAMILY IS SHOWN AND PROPERTY HAD BEEN PURCHASED FROM
THE SAID NUCLEUS, THEN EVEN IF OWNERSHIP STANDS IN THE
NAME OF ONE OF ITS MEMBERS, IT CAN BE PRESUMED TO BE HINDU
JOINT FAMILY PROPERTY
52. However, if sufficient nucleus/income of Hindu Joint Family is shown and
property had been purchased from the said nucleus, then even if ownership stands
in the name of one of its members, it can be presumed that property is owned by
the Hindu Joint Family. Even in the judgment of Appasaheb Peerappa
Chamdgade (supra) cited by the plaintiffs, there were Hindu Joint Family
properties and the business was started from the Hindu Joint Family funds. The
said judgment categorically holds that proof of nucleus/sufficient income of a
Hindu Joint Family as well as purchase from the said nucleus is a must.
53. In Ms. Ilaria Kapur v. Sh. Rakesh Kapur (supra), it was also held that if
nucleus whereof was generation of funds from Hindu joint family business for the
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purchase of properties, then it is immaterial whether the name of one of the family
members appears on a document by which the said property was purchased by the
joint family.”
(Emphasis supplied)
12. Applying the above legal principles to the facts of the present case,
the entire edifice of the claim in the plaint rests on a bald plea that the
purchase of the suit property by late Sh. Daulat Ram was as joint Hindu
family property and it was purchased from Joint Hindu Family Funds.
However, no proof of existence nucleus/income of Hindu Joint family or
particulars of the alleged nucleus have been set out in the plaint to enable
this Court to frame a prima facie view of the existence of any HUF of late
Sh. Daulat Ram.
13. The plaintiff has not placed on record any iota of evidence which
would show that late Sh. Daulat Ram had available with him joint Hindu
family funds in 1990s when he purchased the property and/or that late Sh.
Daulat Ram after purchasing the suit property filed written declarations with
the statutory authorities declaring the said property as a HUF property. The
plaintiff has also not placed on record any evidence to show that any
coparcenary existed in 1990s between Sh. Daulat Ram, his sons i.e.
defendant nos. 1 to 4 and his grandchildren.
Furthermore, it is relevant to note that it is an admitted fact that the
plaint has been drafted by the counsel on oral instructions of the plaintiff, as
recorded in the order dated 07.10.2024. This shows that no documents exist
to the knowledge of the plaintiff to substantiate her pleas in the plaint.
14. The plaintiff has filed the plaint ostensibly to make a claim of
partition therein by invoking Section 6 of the Act of 1956. Section 6 of Act
of 1956 applies to coparcenary property. However, there is no pleading in
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the plaint to the effect that there was ever any coparcenary of her
grandfather, late Sh. Daulat Ram. Rather, plaintiff’s own averments
establish that she is asserting rights in the property of her father and not in
any HUF due to the matrimonial disputes arisen between her parents and
with her father.
15. The oral assertions made by the learned counsel for the plaintiff that
by virtue of being a coparcener in the HUF property, plaintiff became
entitled to 1/15th share by birth is an erroneous claim based on
misconception of law. There is no presumption in law of the existence of
coparcenary and the plaintiff has failed to even show a prima facie case in
her favour. The bald averments in the plaint and oral submissions are not
sufficient to give rise to any presumption of the existence of the
coparcenary.
16. Even if the entire pleading is considered as correct, the essential
requirement to even prima facie establish the coparcenary nature of the suit
property is entirely missing and thus, the claim of the plaintiff cannot be
sustained and the plaint is liable to be rejected for being devoid of any cause
of action.
17. Learned counsel for the plaintiff has relied upon the judgment of
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Supreme Court in Vineeta Sharma v. Rakesh Sharma to contend that the
present suit is maintainable. Though, the counsel has not referred to the
relevant paragraph of the judgement, however, it is assumed that the plaintiff
is referring to amended Section 6 of the Act of 1956. However, for invoking
the said section as well, it is essential in its first instance that there must
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(2020) 9 SCC 1
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exist a coparcenary property in order to claim a share in it. And as noted
above mere bald averments cannot lead to existence of HUF and since the
plaintiff has failed to discharge the burden to prove and to bring on record
any facts to evidence that there existed any HUF in which late Sh. Daulat
Ram was a coparcener and any evidence that the suit property formed part of
such an HUF, therefore, the reliance placed on the judgement of Vineeta
Sharma (supra) is not applicable to the facts of this case.
18. It appears from the averments in the plaint that the title documents
stand in the name of late Sh. Daulat Ram. In such facts the presumption is
that the suit property is the personal property of late Sh. Daulat Ram. The
devolution of interest in this personal property will, therefore, be governed
by Section 8 of the Act of 1956 and the property will devolve upon his
Class-I legal heirs i.e. defendant nos. 1 to 5 as held by Supreme Court in
Chander Sen (supra) and Yudhister (supra).
19. Accordingly, in view of the judgments noted hereinabove as well as
having perused the pleas in the plaint, this Court is satisfied that the
averments made in the plaint fail to evidence that the suit property was a
coparcenary property or HUF property and, therefore, the plaint is without
any cause of action and is accordingly rejected in exercise of the powers
under Order VII Rule 11 (a) of CPC.
20. The pending applications also stand disposed of.
MANMEET PRITAM SINGH ARORA
(JUDGE)
DECEMBER 10, 2024/ rhc/ms
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