2017 (3) TMI 1814 - HC - Indian Laws

Partition of property - amendment of plaint by laying a challenge to the sale of the property at Faridabad on the plea that being property of the HUF defendant No.1 could not sell the same without the consent of the other coparceners - whether actionable pleadings have been made in the plaint qua the claim? - HELD THAT - In Chander Sen s case 1986 (7) TMI 7 - SUPREME COURT the Supreme Court held that after the promulgation of the Hindu Succession Act 1956 the traditional view under the Hindu Law no longer remained the legal position. This decision was followed incase (supra) the Supreme Court held that after the promulgation of the Hindu Succession Act 1956 the traditional view under the Hindu Law no longer remained the legal position. In the present case the pleadings by the appellant is only to the effect that the property at Rajinder Nagar was purchased by the grandfather of the appellant from out of the funds of the firm M/s Gian Singh Sukhdev Singh which was set up by the late grandfather of the appellant and that the funds for the business came from the properties left behind in Pakistan. No details or particulars of the properties left behind at Pakistan have been pleaded. We take judicial notice of the fact that post-partition people who migrated to India from the territories of the newly State of Pakistan were required to file claims before the custodian of evacuee properties and upon proof of properties left behind in Pakistan compensations were assessed. These people were treated as refugees and either money or an immovable property was allotted to these refugees by the Ministry of Rehabilitation Government of India. In the plaint the lack of pleadings to said effect cannot be overlooked. The positive statements required by law to be pleaded in the plaint regarding constitution of an HUF are missing as has been rightly held by the learned Single Judge - We concur with the view taken that the plaint does not disclose an actionable cause of action and we supplement by recording that the proposed amendment of the plaint does not improve this lack of actionable pleading. Appeal dismissed.

Summary

Issues Involved:
1. Claim of 1/3rd share in properties and firm income.
2. Denial of ancestral property status by defendants.
3. Procedural error in deciding the amendment application.
4. Applicability of Hindu Succession Act, 1956.
5. Sufficiency and specificity of pleadings.
6. Challenge to the will propounded by defendant No.2.

Detailed Analysis:

1. Claim of 1/3rd Share in Properties and Firm Income
The appellant, grandson of late Sukhdev Singh Gambhir, sought partition of properties at Rajinder Nagar, New Delhi, and Faridabad, Haryana, claiming a 1/3rd share through his father. He also claimed a 1/3rd share in the income and assets of the firm M/s Gian Singh Sukhdev Singh. The appellant argued that these properties were purchased from the firm's funds, making them ancestral properties.

2. Denial of Ancestral Property Status by Defendants
The defendants denied the appellant's claims, asserting that the firm M/s Gian Singh Sukhdev Singh was solely owned by defendant No.1, who migrated to India as a refugee with no funds. They claimed ownership of the properties through title documents and stated that the Faridabad property had been sold.

3. Procedural Error in Deciding the Amendment Application
The appellant filed an application to amend the plaint, challenging the sale of the Faridabad property on the grounds that it was HUF property. The learned Single Judge dismissed the suit without first deciding the amendment application. The appellate court noted this procedural error but deemed it non-prejudicial because the amendment did not expand upon existing HUF pleadings.

4. Applicability of Hindu Succession Act, 1956
The court referenced the Supreme Court decisions in Chander Sen and Yudhishter to clarify the legal position post-Hindu Succession Act, 1956:
- Inheritance of property after 1956 is as self-acquired property, not HUF property, unless thrown into a common hotchpotch.
- Specific details of the creation of an HUF must be pleaded.
- HUF can exist if properties were inherited before 1956 and the status continued post-1956.

5. Sufficiency and Specificity of Pleadings
The court emphasized the need for precise and detailed pleadings:
- The appellant's pleadings lacked specifics about properties left in Pakistan and the establishment of the firm.
- The appellant's documents, including an income-tax assessment order, indicated the firm was a sole proprietorship of defendant No.1.
- The court noted the importance of clear articulation of material facts and relevant documents to support claims, referencing multiple Supreme Court decisions on the necessity of detailed pleadings.

6. Challenge to the Will Propounded by Defendant No.2
The appellant also challenged a will propounded by defendant No.2. The court held that this constituted a separate cause of action, requiring a distinct suit. The appellant could claim partition of properties through intestacy if the will was successfully challenged.

Conclusion
The court concluded that the appellant's plaint did not disclose an actionable cause of action due to insufficient pleadings regarding the HUF status and the ancestral nature of the properties. The proposed amendment did not rectify this deficiency. The court dismissed the appeal, allowing the appellant to pursue a separate suit to challenge the will and claim partition through intestacy. The appeal was dismissed without any order as to costs.