2019 (2) TMI 1786 - HC - Indian Laws

Rejection of plaint - Partition, rendition of accounts and permanent injunction against their grandparents - HELD THAT - This Court is of the view that a meaningful reading of the present plaint, in the present case, does not disclose a cause of action. There is no averment that any specific property was owned by Mr. R.P. Gulati or that defendant No.1 succeeded to any specific estate/business of his father. It is also settled law that land granted to a displaced person is in the nature of grant and a grant is always self acquired. Consequently, the essential averment with regard to nucleus, i.e., sine qua non for Hindu Joint Family, is lacking in the plaint. Mr. R.P. Gulati, the great-grandfather of the plaintiffs having died after coming into force of the Hindu Succession Act, 1956, the property/business inherited by the defendant no. 1, i.e., grandfather of the plaintiffs, would be held by him as his personal/individual property and the father of the plaintiffs would have no right or share therein - Also, as Order 6 Rule 4 CPC is attracted to suits where plaintiff claims that a coparcenary or Hindu Joint Family exists, (inasmuch as after coming into force of the Act, 1956, there is no presumption as to the existence of an HUF), detailed facts have to be averred. However, no averments have been made by factual references qua each property claimed to be a Hindu Joint Family property. In any event, after enactment of section 14 of the Act, 1956, the Legislature has done away with the concept of limited ownership in respect of property owned by Hindu female all together. Consequently, the exception contained in Section 4(3) of the Act, 1988, as it then stood, is not attracted to the present case - It is further settled law that the Hindu law does not recognise some of the members of a joint family belonging to different branches as a coparcenary unit. In the present case, the uncles (without their children) and two nephews (defendant nos. 4 and 3) did not belong to the same branch. The acquisitions made by them even if taken as jointly, cannot be treated to be Hindu joint family property. Even if it is presumed that on the birth of defendant No.4 in 1969, a coparcenary was created, then also the same came to an end by virtue of partition. The essence of coparcenary under Mitakshara Law is unity of ownership and once there is a partition, unity of coparcenary is destroyed / dissolved. Since admittedly there have been four partitions in the present case, the share of the coparceners is deemed to have been determined and the properties ceased to be coparcenary properties. Consequently, even if it is presumed that the plaint discloses a cause of action, the same is barred by law. The present plaint is rejected and the present application is allowed.

Summary

Issues Involved:
1. Maintainability of the suit.
2. Existence of Hindu Joint Family (HUF) and coparcenary properties.
3. Validity of the claim of partition and permanent injunction.
4. Ownership and nature of the property at C-117, East of Kailash, New Delhi.
5. Application of the Benami Transactions (Prohibition) Act, 1988.
6. Impact of the Hindu Succession Act, 1956 on the properties in question.
7. Effect of previous partitions on the current claims.
8. Balance of convenience and irreparable harm.

Detailed Analysis:

1. Maintainability of the Suit:
The defendants argued that the suit was not maintainable as an identical suit filed by the plaintiffs' father had been dismissed as withdrawn with liberty to file other proceedings. The plaintiffs contended that the right to demand partition and separate possession is a recurring right, citing judgments from this Court.

2. Existence of Hindu Joint Family (HUF) and Coparcenary Properties:
The defendants argued that no coparcenary property was specified or named, and no details of any business or property being inherited by defendant No.1 were mentioned in the plaint. They emphasized that coparcenary is a creation of law and cannot be created by an act of the parties. The plaintiffs countered by asserting that the family was a Hindu Joint Family joint in food, worship, and estate, supported by the existence of an HUF under the name "K.S. Gulati and Sons HUF."

3. Validity of the Claim of Partition and Permanent Injunction:
The defendants argued that the suit was barred by the provisions of the Specific Relief Act, 1963, and that no injunction could be passed against the Karta of a Hindu coparcenary. The plaintiffs contended that the fact whether the properties were available for partition was a question of fact to be determined after conducting a trial.

4. Ownership and Nature of the Property at C-117, East of Kailash, New Delhi:
The defendants contended that the property was purchased and owned by defendant No.5, the grandmother of the plaintiffs, and that she could not be a coparcener prior to 2005. The plaintiffs argued that the property was purchased from the income derived from joint family partnership firms and should be considered joint family property.

5. Application of the Benami Transactions (Prohibition) Act, 1988:
The defendants argued that the property in the name of an individual has to be taken as owned by that individual, and no claim to such property is maintainable under the Act. The plaintiffs contended that the name of the wife of defendant No.1 was used as benami for the benefit of the family and the coparcenary.

6. Impact of the Hindu Succession Act, 1956 on the Properties in Question:
The court held that after the enactment of the Hindu Succession Act, 1956, there is no presumption as to the existence of an HUF, and detailed facts have to be averred. It was concluded that the property inherited by defendant No.1 would be held as his personal/individual property, and the plaintiffs' father would have no right or share therein.

7. Effect of Previous Partitions on the Current Claims:
The defendants argued that there had been four partitions, and the properties ceased to be coparcenary properties. The court held that once partition takes place, the coparcenary dissolves, and shares of members get ascertained, thereby ending the coparcenary.

8. Balance of Convenience and Irreparable Harm:
The court found that the balance of convenience was in favor of the defendants, as they had been out of possession of their own house since 2010, and the plaintiffs were in possession of other properties yielding rental income. The court concluded that the plaintiffs would not suffer irreparable harm and injury if they had to vacate the property.

Conclusion:
The court rejected the plaint, vacated the interim order dated 02nd December, 2013, and allowed the application, concluding that a meaningful reading of the plaint did not disclose a cause of action. The essential averment with regard to the nucleus, i.e., sine qua non for Hindu Joint Family, was lacking in the plaint. The properties/business inherited by defendant No.1 would be held as his personal/individual property, and the father of the plaintiffs would have no right or share therein. The court also held that the properties owned by partnership firms or Public or Private Limited Companies cannot be said to belong to a coparcenary.