2017 (3) TMI 1189 - HC - Indian Laws

Throwing of individual property into a common HUF hotchpotch - Held that - The recitals of the Memorandum of Family Settlement clearly show that a share in the property was acquired by the defendants no.1,2&3 by way of inheritance from their father Shri Maheshwar Dayal. Had the property been of the HUF, the defendant no.2 being the eldest son of Shri Maheshwar Dayal would have become the Karta of the HUF and would have been described so in the Memorandum of Family Settlement and the defendant no.3 being the daughter of Shri Maheshwar Dayal would have got a share in the property only out of the share of Shri Maheshwar Dayal in the property. On the contrary, the defendants no.1,2&3 all equally inherited 1/3rd share of Shri Maheshwar Dayal in the property. The purport of the Memorandum of Family Settlement was to out of the 1/3rd share of Shri Maheshwar Dayal demarcate the share of the defendant no.3 Ms. Abha Dayal being the married daughter of Shri Maheshwar Dayal, with the defendants No.1&2 Shri Someshwar Dayal and Shri Dinesh Dayal being the sons of Shri Maheshwar Dayal continuing to hold the remaining property jointly. However merely because brothers hold the property inherited from their father jointly does not constitute HUF and does not make the property HUF property. The language used in the Memorandum of Family Settlement only shows that the defendants no.1&2 were treating the property as inherited property. An act of creation of HUF and of putting of individual property into HUF hotchpotch has to be unequivocal and unambiguous. From mere use of the words joint Hindu family property , an HUF does not come into existence and the exclusive rights in the property not divested/abandoned. The plaint does not disclose the property to be the property of any HUF or joint Hindu family property for the plaintiffs no.1&2 to have any right therein by birth or the plaintiff no.3 acquiring rights therein as wife of the Karta/co-parcener of the HUF. The plaint is thus not found to disclose a right in the plaintiffs to seek partition and the suit is resultantly dismissed. However we make it clear that the dismissal of this suit for partition on the basis of the property being HUF/joint Hindu family property would not come in the way of the plaintiffs if have any other rights to the property, agitating the same.

Summary

Issues Involved:
1. Nature of the property (HUF or individual)
2. Validity of the plaintiffs' claims for partition and other reliefs
3. Admissibility and maintainability of the suit

Issue-wise Detailed Analysis:

1. Nature of the Property (HUF or Individual):
The plaintiffs contended that the property in question was a joint Hindu Undivided Family (HUF) property. They argued that the property was ancestral and, by virtue of a family settlement, it should be treated as HUF property. The defendants, however, denied the existence of any HUF and asserted that the property was inherited individually and not as a part of any HUF. The court examined the Memorandum of Family Settlement and found that the language used did not indicate an unequivocal intent to abandon individual rights and treat the property as HUF property. The court emphasized that merely using the term "joint Hindu family property" does not suffice to create an HUF. Additionally, at the time of the family settlement, the defendant No.1 was unmarried and childless, which further negated the possibility of forming an HUF.

2. Validity of the Plaintiffs' Claims for Partition and Other Reliefs:
The plaintiffs sought partition of the property and other ancillary reliefs, claiming that they had a birthright in the property as part of the HUF. The court referred to the case of Surender Kumar Vs. Dhani Ram, which clarified that after the Hindu Succession Act, 1956, inheritance of property by successors is as self-acquired property unless it is thrown into a common hotchpotch to form an HUF. The court found no evidence or declaration of the property being treated as HUF property in tax records or any other official documents. Consequently, the court held that the plaintiffs did not have a valid claim for partition based on the property being HUF property.

3. Admissibility and Maintainability of the Suit:
The court questioned the basis on which the plaintiffs claimed the property to be HUF property. It was noted that there was no co-parcenary in existence prior to the Hindu Succession Act, 1956, and no evidence was provided to show that the property was treated as HUF property. The court also considered the defendants' statements and the lack of any HUF-related documentation. Given these findings, the court concluded that the suit was not maintainable as the plaint did not disclose a right in the plaintiffs to seek partition.

Conclusion:
The court dismissed the suit, stating that the property in question was not HUF property and the plaintiffs did not have any birthright or other claims to it. The dismissal was without prejudice to any other rights the plaintiffs might have. The court also addressed the deposit of ?1,00,000/- made by the plaintiffs, directing that it be refunded if the plaintiffs accepted the order, or released to the defendant No.1 towards costs if the plaintiffs decided to pursue the matter further.