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TMI Blog2017 (3) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the branch of Shri Maheshwar Dayal the portion of the defendant No.3 Ms. Abha Dayal was demarcated; (viii) that it was further agreed that the portion of 2000 sq. ft. shall belong exclusively and absolutely to the branches of defendant no.2 Shri. Dinesh Dayal and defendant no.1 Shri Someshwar Dayal and shall be held jointly by them and being inheritance constituting ancestral property their respective shares would constitute their respective Joint Hindu Family property and any income from the aforesaid construction so held by them jointly would be shared equally by the respective branches of defendant no.2 and defendant no.1; (ix) that by virtue of the aforesaid settlement the property comprising of 2000 sq. ft. being the basement and ground floor is a joint HUF of the respective branches of defendant no.2 and defendant no.1; (x) that the defendant no.1 Shri Someshwar Dayal married the plaintiff no.3 Ms. Anupama Dayal on 21st January, 1996 and out of the said wedlock the plaintiffs no.1 and 2 were born on 24th December, 1998 and 15th January, 2002 respectively; (xi) that the defendant no.1 Shri Someshwar Dayal, on birth of the plaintiffs no.1 2, formed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance amount required to complete the aforesaid construction would be made available out of the other assets of late Dr. Maheshwar Dayal. It was agreed to and is recorded herein that out of the aforesaid construction allotted to the branch of late Dr. Maheshwar Dayal, the portion comprising the 1st Floor measuring about 1000 sq. ft. would, as per the desire of late Dr. Maheshwar Dayal, belong exclusively and absolutely to the 2nd party and her husband Shri Ajai Mohan Kaul jointly, and the remaining portion of the construction consisting of the basement and ground floor measuring about 2000 sq. ft. would be allotted to and shall belong exclusively and absolutely to the branches of the 1st and 3rd Party to be held jointly by them and being inheritance constituting ancestral property their respective shares would constitute their respective Joint Hindu Family property and any income from the aforesaid construction so held by them jointly would be shared equally by the respective branches of the 1st and 3rd party. It was agreed to and is recorded herein that the 1st and 3rd Parties would have no right or interest in the 1st Floor portion of the construction allotted to the 2nd Party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndant no.1 has filed his Income Tax Returns and the plaintiff no.3 is fully aware thereof. Vide order dated 17th November, 2016 the defendants were ordered to be bound by their statement aforesaid through the counsel, making it clear that if any time it was found that the statements are false or untrue or misrepresented, the plaintiffs shall be entitled to take appropriate action with respect thereto; on that date, orders on the maintainability of the suit were reserved. 9. The plaintiffs thereafter filed IA No.354/2017 for taking on record the facts (i) that the defendant no.1 in the plaint in CS(OS) No.315/2011 had stated that he owned a share in the family property jointly owned with his brother and described the same as undivided share; and, (ii) that the counsel for the defendants before this Court had stated that the defendant no.1 had always been in an employment but the defendant No.1 had resigned from his employment. 10. The said application came up before the Court on 11th January, 2017 when though observing that the pleas sought to be placed on record had no relevancy to the controversy, the same were nevertheless taken on record. 11. The counsel for the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed therein, there were unequivocal documents of declaration of creation of HUF / Joint Hindu Family and of changing the status of separate property into HUF property followed by the filing of Income Tax Assessments of the properties as HUF properties. 15. Per contra here, save for the clause aforesaid in the Memorandum of Family Settlement between defendants No.1,2 3, there is no plea of creation of HUF or of the property aforesaid having been treated as property of HUF of defendant No.1 Shri Someshwar Dayal. The clause aforesaid of the Memorandum of Family Settlement in my view does not show any intent of the defendant no.1 to abandon his individual rights to the property or to thereafter hold his share in the property as Karta of his HUF. The words being inheritance constituting ancestral property their respective shares would constitute their respective Joint Hindu Family property are not of abandonment of individual rights in the property. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n entity distinct and different from an individual and it would be wrong not to keep that difference in view. Accordingly, assessment under the Income-Tax Act, 1961 sought was denied and the assessee was assessed as an individual. It was held that future possibility of the individual marrying and having children which might or might not materialise cannot be considered; speculation was held to be impermissible. 17. In Surjit Lal Chhabda Vs. The Commissioner of Income Tax, Bombay (1976) 3 SCC 142 discussed by me in detail in Captain Bhupinder Kumar Suri supra , the property was not originally joint in the hands of the assessee and the question for adjudication was whether the property has acquired joint family character in the hands of the assessee. It was held that the composition of the assessee s family was a matter of great relevance. Expanding on the said proposition and relying on C. Krishna Prasad supra, Division Bench of the Madras High Court in Commissioner of Income-Tax, Tamil Nadu-I Vs. M. Balasubramaniam 1979 SCC OnLine Mad 356 held that the property in the hands of a bachelor could not acquire the status of a joint family property or HUF property. 18. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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