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TMI Blog2012 (5) TMI 830X X X X Extracts X X X X X X X X Extracts X X X X ..... d her sons, as the law does not permit her to blend her properties with the HUF properties. It is asserted by the defendant No.3 that all the properties, owned and possessed by her are protected by the Hindu Women's Right to Property Act, 1937, the Benami Transactions (Prohibition) Act, 1988 and the Hindu Succession Act, 1956 and in view thereof, the suit is barred within the meaning of Rule 11(d) of Order VII of the Code of Civil Procedure. 3. It may be noted that the suit in which the aforesaid application is filed is a suit for partition, rendition of accounts, etc., filed by the plaintiff, minor Hindu female through her next friend, her mother, Ms. Sapna Kapur. The mother of the plaintiff and the defendant No.1, who is the father of the plaintiff, though have a continuing and subsisting marriage, are involved in multifarious litigation, to which it is not deemed necessary to advert at this juncture. Suffice it to say that there are allegations and counter-allegations. Several orders have been passed in the ongoing litigation between the parties from time to time by various Courts including the Guardianship Court. 4. As delineated in the plaint, the case of the plainti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of her husband, sons, grandsons or daughters/granddaughters nor her properties can blend into the HUF properties. 7. In paragraph 11 of the application it is stated that the defendant No.3 is the owner of the following properties:- S. No. Property Status 1. B-103, Som Vihar Residing 2. C-1/1682, Vasant Kunj Sold on 30.11.2004 3. B-2/2059, Vasant Kunj Still holding it. 4. 28, Vasant Apartments Sold on 24.03.2008 5. 271, Vasant Apartments Sold on 14.07.2008 6. Birch Court-38, Nirwana Still holding it. 7. Aspen Garden-26, Nirwana Still holding it. 8. A-3/1502, Uniworld City Sold on 18.12.2006 9. Re-107, EWS, Ridgewood Estate Still holding it. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they do not acquire by birth any interest in the HUF properties. The only right given to a female Hindu wife/mother is that on partition of the HUF properties, she gets a share in the joint family property, equal to the share of her husband. Thus, the properties owned by the defendant No.3 cannot be termed as property of the HUF of her husband and their sons/grandsons or daughters/granddaughters. Resultantly, the plaintiff in the present case cannot be permitted to urge that the properties owned and possessed by the defendant No.3 are the properties of the Hindu Undivided Family and the plaintiff being the granddaughter of the defendant No.3 has any right or interest in the said properties. 9. In order to buttress his aforesaid contention, Mr. Tyagi relied upon the decisions rendered in Commissioner of Income-Tax vs. Smt. Pushpa Devi, ILR (1971) 1 Delhi 292; Padma Lal Chand Mirchandani vs. The Commissioner of Income Tax (Delhi II), ILR (1979) Delhi 295 (DB); Smt. Pushpa Devi vs. The Commissioner of Income Tax, New Delhi, AIR 1977 SC 2230 and Raju and Anr. vs. Muthuammal and Ors., AIR 2004 Madras 134 to contend that a female Hindu not being a coparcener cannot blend her separate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. In this context, he relied upon the decision rendered in Rameshwar Mistry and Anr. vs. Bebulal Mistry, AIR 1991 Patna 53, wherein it was held:- 36. An acquisition of property in the name of his wife of a coparcener by the joint family will, in my opinion, constitute a benami transaction and will not be saved under S. 3(2) of the said Act. From a bare perusal of S. 4(3) of the said Act, it is evident that even such a case is not protected thereunder. 11. Reliance was also placed by Mr. Tyagi on the decision of this Court in Smt. Santosh Malik vs. Shri Maharaj Krishan and Anr., 82 (1999) DLT 862, in which it was noted there is now a plethora of precedents to the effect that the Benami Transactions (Prohibition) Act of 1988 would apply, on a construction of the explicit language of Section 4(1) of the Act, to every suit filed after the coming into effect of the Act, even if the transaction is for a period prior to the passing of the Act. The plaint in the said case was rejected as barred under Section 4(1) of the Act. 12. In order to rebut the aforesaid contentions of Mr. Tyagi, the counsel for the plaintiff, Ms. Mala Goel at the outset contended that it is settled la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the HUF is in existence or not and which of the properties vested in the HUF. 14. Rebutting the contention of Mr. Tyagi that under Mitakshara Law a minor cannot claim share in the HUF properties in her father's lifetime, Ms. Goel contended that it is now settled law that a son or daughter can ask for partition of HUF property from the father during his lifetime. It was so held by the Division Bench of this Court in the case of Nanak Chand and Ors. vs. Chander Kishore and Ors., AIR 1982 Delhi 520 = 22 (1982) DLT 11 SN(DB). Paragraph 14 of the said decision reads as follows:- (14) The other contention that came up for consideration was whether in the life time of the father, the sons could ask for partition or not. At one time a view was prevalent that in Delhi like Punjab they could not do so. It was based upon some custom, vide Hari Kishan v. Chander Lal others, AIR 1918 Lahore 291(21) and Sri Ram v. Collector, AIR 1942 Lahore 183. But since the decision of this court of 22-10-1967 in Khushwant Rai v. Dr. Jagmohar Lal RFA 1-D/59 and 24-D of 1959 (22), it is now no more in controversy that the son can ask for partition from the father during his life time. We do not, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re her properties is entirely contrary to the plea taken by her in the written statement that on the death of her husband the HUF stood dissolved and the properties devolved upon her. In any case, the veracity of the said pleas can only be gauged after the parties have adduced their respective evidence and the plaint, therefore, cannot be summarily rejected at this stage. 18. Before embarking upon the merits of the respective contentions of the parties, it deserves to be highlighted that the scope and ambit of Order VII Rule 11 of the Code of Civil Procedure is a cabined and limited one. As held in Kamala's case (supra), the conclusion that the suit is barred under any law must be drawn from the averments made in the plaint. Further, for invoking Rule 11(d) of Order VII, no amount of evidence can be looked into. The issues on the merits of the matter which may arise between the parties would not be within the realm of the Court at that stage nor shall form the subject matter of an order under the said provision. In the aforesaid decision which also pertains to a partition suit, it was observed (AIR, page No.3179):- Whether any property is available for partition is itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindu Family properties and which are not. 21. Much emphasis has been laid on behalf of the defendant No.3 on the fact that under Hindu Mitakshara Law, a Hindu female may be a member of a joint family but is not a coparcener and cannot blend her separate property with the joint family property. Indubitably, the Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the three generations next to the holder in unbroken male descent (see Mulla's Hindu Law, 14th Edition, page 262, paragraph 213). A Hindu female is, therefore, not a coparcener, though by virtue of the Hindu Succession (Amendment) Act, 2005, with effect from 09.09.2005, in a Joint Hindu Family governed by the Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. The aforesaid aspects of Hindu Law, however, have no bearing on the present case where undeniably a Hindu Undivided Family was in existence, which acquired huge properties from funds generated from the Hindu Undivided Family business. It is not even the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A benami transaction is defined in Section 2(a), which reads as follows:- 2(a) Benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person. 24. Section 3 and 4 relate to the prohibition of benami transactions and the prohibition of the right to recover property held benami. For the sake of facility, the said Sections are reproduced hereunder:- 3. Prohibition of benami transactions.- (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to - (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a - (i) depository as a registered owner under sub-section (1) of section 10 of the Depositories Act, 1996; (ii) participant as an agent of a depository. 4. Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cannot possibly have any application to the present case at this stage. More so, on account of the fact that in this case the plaintiff alleges that properties standing in the respective names of the defendant Nos.1 and 2 (apart from those in the name of the defendant No.3) are to be taken into consideration for the purpose of partition being HUF properties. 26. It is necessary to pause at this juncture to note that even assuming the Court was inclined to accept the contention of the defendant No.3 that the suit averments relating to her are hit by the Benami Transactions (Prohibition) Act, it is not open to the Court to reject the plaint as it is trite that only a part of a plaint cannot be rejected under Order VII Rule 11. The law has been thus enunciated by the Supreme Court in the case of Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137. The observations made in the said case which are apposite to the present case are reproduced hereunder:- As noted supra, Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with striking out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly so long as the family is joint and to have a partition and separate possession of his share, should he make a demand for it...... 9. The law being thus settled as regards coparceners who are sui juris, the question is whether it operates differently when the coparcener who institutes the suit for partition is a minor acting through his next friend. Now, the Hindu law makes no distinction between a major coparcener and a minor coparcener, so far as their rights to joint properties are concerned. A minor is, equally with a major, entitled to be suitably maintained out of the family properties, and at partition, his rights are precisely those of a major. Consistently with this position, it has long been settled that a suit for partition on behalf of a minor coparcener is maintainable in the same manner as one filed by an adult coparcener, with this difference that when the plaintiff is a minor the court has to be satisfied that the action has been instituted for his benefit...... 30. The further contention raised on behalf of the defendant No.3 that there is no legal necessity for the plaintiff to claim partition and it cannot be said that the partition is likely to be for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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