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TMI Blog2019 (2) TMI 1786X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicants, submitted that the present suit was not maintainable as an identical suit of the father of plaintiffs being CS(OS) 886/2013 with the same averments and seeking the same relief, after hearing arguments on the very first date of hearing, had been dismissed as withdrawn with liberty to file other proceedings that may be permissible. The order dated 13th May, 2013 is reproduced hereinbelow:- Present suit has been filed for partition, rendition of accounts and permanent injunction. As this Court after hearing some arguments was of the view that present suit for partition was not maintainable, Mr. Bhupesh Narula, learned counsel for the plaintiff wishes to withdraw the present suit with liberty to avail other appropriate remedies that may be available to the plaintiff in accordance with law. With the aforesaid liberty, present suit and applications are dismissed as withdrawn. 5. Mr. Bali stated that since the plaintiffs i.e. children of the defendant No. 4 derive their title from their father, if defendant No. 4 can file proceedings other than the partition suit, then his children who derive title from him, cannot file a partition suit. 6. He pointed out that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperties by the parties. According to him, the only averments in the plaint were with regard to blending of income from salaries. He stated that all the three partnership firms mentioned in the plaint as businesses of the coparcenary had been formed after the death of Mr. R.P. Gulati in 1971. 11. In the alternative, Mr. Bali submitted that even if it was assumed that coparcenary/Hindu Undivided Family properties were in existence, no coparcenary survived in the present case as, according to the plaintiffs themselves, there had been four partitions. He pointed out that upon separation of two brothers of defendant No.1 there was a partition in 1971 and upon separation of third brother, there was another partition in September, 1974. Further, three brothers of defendant No.1 separated in April, 1989 and one son of the defendant No.1 separated and moved to Canada on 17th March, 2004. 12. According to him, when partition of a coparcenary takes place and shares of the members get ascertained, the coparcenary dissolves and thereafter any branch wise division/partition/sub-division is not permissible under Hindu law. 13. Learned senior counsel for defendants No.1, 2 and 5-applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the family only if he is in management of the joint family property. 17. Learned senior counsel for defendants No.1, 2 and 5-applicants submitted that a suit for injunction against the Karta i.e. defendant No.1 is barred by provisions of Specific Relief Act, 1963 and no injunction could be passed against the Karta of a Hindu coparcenary as Karta is entitled to exclusive and entire possession. 18. Mr. Bali stated that the balance of convenience was entirely in favour of the defendants No.1, 2 and 5. He emphasised that Mr. Sandeep Gulati, father of the plaintiffs was in the possession of all cars of the family as well as the factory and warehouse which were yielding rental incomes. He contended that the mala fides of the plaintiffs would be apparent from the fact that defendant No. 4's business in China and house in Dwarka had not been made a part of the partition suit. ARGUMENTS ON BEHALF OF PLAINTIFFS 19. Per contra, Mr. T.K. Ganju, learned senior counsel for plaintiffs submitted that despite the withdrawal of defendant No.4's suit being CS(OS) 886/2013, the present suit was maintainable as the right to demand partition and separate possession is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mma alias Suman Surpur Anr. Vs. Amar Ors., (2018) 3 SCC 343 and Shyam Narayan Prasad Vs. Krishna Prasad Ors., (2018) 7 SCC 646. 24. Mr. Ganju stated that after the great grandfather of the plaintiffs i.e. Mr. R.P. Gulati came from Pakistan in 1947, he got compensation from the Settlement Commission for the family properties left behind in Pakistan and with this compensation, he started a joint family business, being a shoe business in Lajpat Nagar, New Delhi. In support of his contention, he referred to the Income Tax Assessment order dated 31st March, 1986. 25. He further stated that after Mr. R.P. Gulati's death, the members of his family i.e. his sons amongst themselves, carried on family business under three partnership firms i.e. (i) M/s. Ofag International, (ii) M/s. Pishori Traders and (iii) M/s. Lloyd Steel, wherein Mrs. Surinder Gulati-defendant No.5 i.e. grandmother of the plaintiffs, represented the family group of K.S. Gulati and Sons, as Mr. K.S. Gulati was in Government service at that point in time. 26. Mr. Ganju contended that from the income derived from the three joint family partnership firms, the K.S. Gulati joint family purchased a plot of la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndled by his two brothers. Although the division of the shares of the Company amongst the three families was disproportionate, it was clearly understood that all the three had equal stakes therein like in the entire family business. 29. He contended that in view of the said fact, even the pre-existence of a nucleus was not necessary. In support of his submission, Mr. Ganju relied upon the following judgments:- A. Sanwal Das Vs. Kuremal Ors. AIR 1928 Lah. 224 wherein it has been held as under:- In Laldas Naraindas Vs. Motibai (6), it was held that, where a father and his sons acquire their property by their joint labours and are besides joint in food and worship, they must be regarded as having constituted a joint hindu family even though there may have been no nucleus of property which has come down to the father from his father or grandfather or great-grandfather. For the formation of a coparcenary in Hindu law, such a nucleus is not absolutely necessary, provided the persons constituting it stand in relationship of father and son or other relationship requisite for a coparcenary system. B. Madanlal (Dead) By LRs. Ors. Vs. Yoga Bai (Dead) By LRs., (2003) 5 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another. 22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision. xxx xxx xxx 32. We may proceed on the assumption that the shares of the parties were defined. There was a partition amongst the parties in the sense that they could transfer their undivided share. What would, however, be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which, in our opinion, cannot be gone into in a proceeding under Order 7 Rule 11(d) of the Code. Whether any property is available for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s logical conclusion by getting the properties partitioned by metes and bounds is a question which cannot be gone into in a proceeding under Order VII, Rule 11(d) of the Code. Whether any property is available for partition is itself a question of fact. Identity of properties which were subject matter of the earlier suit, vis-a-vis, properties which were subsequently acquired and effect thereof was beyond the purview of Order VII, Rule 11(d). 31. Mr. Ganju lastly contended that the balance of convenience was entirely in favour of the plaintiffs. He stated that father of the plaintiffs had been acquitted in the murder case and, if the interim order was not continued, the plaintiffs would suffer irreparable loss and injury inasmuch as they may be ousted from the Hindu Joint Family properties in which they have a right and the same shall cause irreparable loss and injury to them. REJOINDER ARGUMENTS ON BEHALF OF THE DEFENDANTS NO.1, 2 AND 5. 32. In rejoinder, Mr. Bali stated that the plaintiffs' submission that the parties were coparceners in a joint family property was predicated on a wrong assumption of law that property granted to an individual/displaced person at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quisite factual ingredients of a cause of action. This Court is of the view that it is the bounden duty and obligation of every court, while deciding an Order 7 Rule 11 CPC application, to carefully scrutinize the pleadings and the documents on which the pleadings are predicated. The Supreme Court has highlighted the requirement to read the pleadings meaningfully in view of the relied upon documents and see that the same are not illusionary or vexatious. The Apex Court in T. Arivandandam Vs. T.V. Satyapal and Another, (1977) 4 SCC 467 has held as under:- 5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful -- not formal -- reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... close no cause of action and/or if the same disclose a cause of action, the same is barred by any law. In the judgments cited by learned senior counsel for the plaintiffs, the earlier Supreme Court judgments in T. Arivandandam Vs. T.V. Satyapal and Another (supra) and I.T.C. Limited Vs. Debts Recovery Appellate Tribunal and Others (supra) have neither been set aside nor dissented or distinguished. ORDER 6 RULE 4 CPC IS ATTRACTED TO SUITS WHERE THE PLAINTIFF CLAIMS THAT A COPARCENARY OR HUF EXISTS, AS AFTER COMING INTO FORCE OF THE HINDU SUCCESSION ACT, 1956, THERE IS NO PRESUMPTION AS TO THE EXISTENCE OF AN HUF. 40. A learned Single Judge of this Court in the case of Surender Kumar Vs. Dhani Ram Ors. 227 (2016) DLT 217 has held that Order 6 Rule 4 CPC is attracted to suits where the plaintiff claims that a coparcenary or HUF exists, as after coming into force of the Hindu Succession Act, 1956 (hereinafter referred to as 'Act, 1956'), there is no presumption as to the existence of an HUF. Consequently, detailed facts have to be averred. The averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court reported as (1987) 1 SCC 204Yudhihster v. Ashok Kumar, and two decisions of this Court reported as 225 (2015) DLT 211 Sunny (Minor) v. Sh. Raj Singh and 227 (2016) DLT 217 Surinder Kumar v. Dhani Ram the learned Single Judge has held that the pleadings were illusory and did not disclose a cause of action. The suit has been dismissed, and we treat this to be a misnomer for the reason if a plaint does not disclose a cause of action it has to be rejected. Qua challenge to the will, the learned Single Judge has held that this would be a separate cause of action and a separate suit could be filed. 11. .......the Supreme Court laid emphasis that Courts must accord due attention to the pleadings, and in civil cases pertaining to property, must accord the necessary consideration to the admitted documents filed by the parties and highlighted that this care would prevent many a false claims from sailing beyond the stage of issues. In paragraph 73 to 79 of the opinion, the Supreme Court highlighted that suspicious pleadings, incomplete pleadings and pleadings not supported by documents would not even warrant issues to be settled. Thus, the said observations of the Supreme Court would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of this Court whereupon Mr Rai has placed strong reliance being SBI v. Ghamandi Ram [(1969) 2 SCC 33 : AIR 1969 SC 1330]. Therein this Court was concerned with a notification issued by the Government of Pakistan in terms of Section 45 of the Pakistan (Administration of Evacuee Property) Ordinance, 1949. We may, however, notice the dicta laid down therein: (Ghamandi Ram case [(1969) 2 SCC 33 : AIR 1969 SC 1330] , SCC pp. 36- 37, para 5) 5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (see Mitakshara, Chapter I, pp. 1-27). The incidents of coparcenership under the Mitakshara Law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rao Pissey Ors. (2004) 11 SCC 320 has held as under:- 7. Crucial question in the present appeal is as to whether business which was conducted by defendant No.1 was his separate business or it belonged to joint family, consisting of himself and his sons. It is well settled that so far as immovable property is concerned, in case the same stands in the name of individual member, there would be a presumption that the same belongs to joint family, provided it is proved that the joint family had sufficient nucleus at the time of its acquisition, but no such presumption can be applied to business. Reference in this connection may be made to a decision of this Court in the case of G.Narayana Raju v.G.Chamaraju:AIR 1968 SC 1276 wherein in a suit for partition defence was taken that business of Ambika Stores was separate business of defendant as the business did not grow out of joint family funds or at least by efforts of members of joint family which was accepted by the trial court as well as the High Court. When the matter was brought to this Court in appeal, upholding the judgment of the High Court, the Court observed thus at page 466:- (AIR p. 1278, para 3) It is well established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant. It had been observed that a property could not be presumed to be a joint Hindu family property merely because of the existence of a joint Hindu family and raised an ancillary question in the following terms: (SCC p. 314, para 7) 7. The question to be determined in the present case is as to who is required to prove the nature of property whether it is joint Hindu family property or self-acquired property of the first appellant. 8. The query was answered in para 18 in the following terms: (SCC p. 317) 18. The legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a joint Hindu family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self-acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. (emphasis supplied) 9. The High Court has also rightly o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment by which the said property was purchased by the joint family. LAND GRANTED TO A DISPLACED PERSON UNDER THE PROVISIONS OF THE DISPLACED PERSONS (COMPENSATION AND REHABILITATION) ACT, 1954 IS IN THE NATURE OF A GRANT AND A GRANT IS ALWAYS SELF ACQUIRED 54. In the opinion of this Court, land granted to a displaced person under the provisions of the Displaced Persons (Compensation and Rehabilitation) Act, 1954 is in the nature of a grant and does not retain the characteristics of properties left behind in Pakistan. A grant is always self acquired. In Pohla Singh alias Pohla Ram (D) by LRs and Others Vs. State of Punjab and Others, (2004) 6 SCC 126, the Supreme Court held: This clearly shows that a displaced person on account of his migration to India after partition did not get the same property which he had in the area which became Pakistan, but he got monetary compensation though it was possible that some property out of compensation pool could be sold or transferred to him out of the said compensation amount. The consequence is that the land which Dhanna Singh got in village Budhlada, in District Bhatinda is not the same land which he had got by way of military grant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any specific estate/business of his father. 59. As there is no question of inheritance or succession, the essential averment with regard to nucleus, i.e., sine qua non for Hindu Joint family, is lacking in the plaint. IN ANY EVENT, THE SUCCESSION HAVING OPENED UP ON THE DEATH OF GREAT-GRANDFATHER AFTER COMING INTO FORCE OF THE HINDU SUCCESSION ACT, 1956, THE GRANDFATHER OF THE PLAINTIFFS WOULD HOLD THE PROPERTY AS HIS PERSONAL / INDIVIDUAL PROPERTY. 60. In any event, Mr. R.P. Gulati, the great-grandfather of the plaintiffs, having died after coming into force of the Hindu Succession Act, 1956, the property inherited by the defendant no. 1, i.e., the grandfather of the plaintiffs, would be held by him as his personal / individual property and the plaintiff's father will not have any right or share therein. It was so held in Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, Bhanwar Singh Vs. Puran and Others (2008) 3 SCC 87, Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204, Sheela Devi and Ors. Vs. Lal Chand Anr., (2006) 8 SCC 581, Sunny (Minor) Anr. Vs. Sh. Raj Singh Ors., 225 (2015) DLT 211 and Surender Kumar Vs. Dhani Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and uncles did not own any family property jointly that could be subjected to partition. 63. The Supreme Court in Danamma alias Suman Surpur Anr. Vs. Amar Ors. (supra) did not refer or rely upon Rohit Chauhan (supra). It only deals with the interpretation and effect of the Hindu Succession (Amendment) Act, 2005 to Section 6 with regard to female coparcenors. Consequently, the said judgment offers no assistance to the plaintiffs. 64. Undoubtedly, the Supreme Court in Shyam Narayan Prasad Vs. Krishna Prasad Ors., (supra) has relied on and applied the judgment in Rohit Chauhan (supra), but the said judgment has been passed without taking into account the earlier binding judgment of Uttam Vs. Saubhag Singh (supra) wherein the judgment in Rohit Chauhan Vs. Surinder Singh Ors. (supra) has been held to have overlooked mandatory statutory provisions. In the opinion of this Court as Shyam Narayan Prasad vs. Krishna Prasad Ors. (supra) has been passed in ignorance of a binding authority, the rule of stare decisis is not applicable. 65. Consequently, as in the present case, Mr. R. P. Gulati died after coming into force of the Act, 1956 his properties / businesses, if any, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty was purchased by defendant No.5, who is an independent Income Tax Assessee admittedly having rental and business income. On the date of purchase, father of the plaintiffs (defendant No.4) was nine years old. 70. The Benami Transaction (Prohibition) Act, 1988 (for short Act, 1988 ) states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4 (1) of the Act, 1988. Consequently, the defendant No. 5 is the absolute owner of the said property. A Coordinate Bench of this Court in Surender Kumar Vs. Dhani Ram and Others (supra) has held as under:- 11......the Benami Transaction (Prohibition) Act (hereinafter referred to as ‗the Benami Act') and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. (emphasis supplied) 71. It is pertinent to mention that unlike in Ms. Ilaria Kapur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenary and coparcenary property as well as the existence of the separate property of a coparcener. How this doctrine can be applied to the case of a Hindu female who has acquired immovable property from her father as a limited owner it is difficult to understand. Such a Hindu female is not a coparcener and as such has no interest in coparcenary property. She holds the property as a limited owner, and on her death the property has to devolve on the next reversioner. Under Hindu law it is open to a limited owner like a Hindu female succeeding to her mother's estate as in Madras, or a Hindu widow succeeding to her husband's estate, to efface herself and accelerate the reversion by surrender; but, as is well known, surrender has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er:- 4. The suit properties consist of both agricultural lands and urban properties and the plaint case is that they are ancestral properties belonging to the joint family. The further plaint case is that though some of the properties stand in the name of the first defendant, they were bought benami in her name by the late Ganganna out of the income from agricultural lands and the income of the first plaintiff's husband who was working as an accountant in a private firm and drawing salary. He also had a leather business and had earning from running a taxi. Thus he was contributing seven to eight thousand rupees every month to the family and out of such income the suit properties were purchased. 5. The first defendant being a housewife had no income to purchase properties. However, later on relationship between Plaintiff 1 and her husband and Defendant 1 became strained and Plaintiff 1 and her husband had to leave the ancestral house. The plaint case is that out of the properties those at Items 1 to 4 are joint family properties. 9. Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as the Act ) has a bearing on the issue. As the properties at It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as joint tenants but as tenants-in-common . The decision of this Court in SBI [(1969) 2 SCC 33 : AIR 1969 SC 1330] , therefore, is not applicable to the present case. 23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. (emphasis supplied) 80. In the opinion of this Court, once partition of a coparcenary takes place, the coparcenary dissolves and shares of members get ascertained. Consequently, on a partition, no coparcenery survives and it comes to an end. Thereafter branch-wise partition is not possible under Hindu Law. 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, COULD NOT BE TREATED AS A HINDU JOINT FAMILY PROPERTY. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties passed by inheritance and not by survivorship. (emphasis supplied) 83. The Supreme Court in Kalyani (Dead) By LRs. Vs. Narayanan and Others, 1980 Supp. SCC 298 has held as under:- 24. A further submission that there was partition branchwise is unknown to Mitakshara law and is wholly untenable. In Mayne's Hindu Law, 11th Edn., p. 347, law is thus stated: So long as a family remains an undivided family, two or more members of it, whether they be members of different branches or of one and the same branch of the family, can have no legal existence as a separate independent unit; but all the memb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint with regard to third partition in April, 1989 would be false! HUF BANK ACCOUNT IS NOT RELATABLE TO ANY PROPERTY. THEREFORE, IRRELEVANT 86. As regards the HUF Bank account opened on 22nd November, 1985, it is not relatable to any property. It is an admitted position that the Public as well as the Private Limited Companies, Partnership Firms and Family Members of the defendant No.1 had been filing independent Income Tax Returns. Therefore, the said HUF Bank account is wholly irrelevant. 87. In any event, showing in Income Tax Return, a HUF Bank account is meaningless unless the sufficient income is shown from nucleus of Hindu Joint Family Properties. The consistent legal position is that once there is no sufficient nucleus in Savings Bank Account, as in the present case, it will not make a Business/Property as a Hindu Joint Family property. Some of the relevant judgments in this context are reproduced hereinbelow:- A. Justice Shanti Sarup Dewan, Chief Justice (Retired) Anr. Vs. Union Territory, Chandigarh Ors., LPA No.1007 of 2013 wherein it has been held as under:- 20. .....The crux of the dispute, as stated above, was found to be house in Chandigarh which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in 1978, the defendant nos. 1 and 5 had been in occupation of the same for the thirty-two years. This Court is of the view that no sane person would voluntarily walk out of its own property in their ‗twilight years' if they were not harassed or subjected to atrocities. In fact, it is the case of defendants No.1, 2 and 5 that they had been subject to a number of atrocities. 89. Since the defendant No. 4 and plaintiffs are in exclusive possession of all cars of family as well as the factory and warehouse (Serial Nos.(x) and (xiii) of Schedule to the plaint) which are yielding rental income, this Court is of the view that even if the plaintiffs have to vacate the aforesaid property, they would not suffer any irreparable harm and injury. CONCLUSION 90. To conclude, 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 sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 97. The plaintiffs' reliance on Rohit Chauhan's judgment (supra) for the proposition that by virtue of the defendant No.4's birth in the year 1969 a coparcenary was created, is misplaced inasmuch as in a subsequent judgment of Uttam vs. Saubhag Singh (supra), it has been specifically held that Rohit Chauhan's (supra) judgment did not take into account mandatory statutory provisions like Sections 4, 8 and 19 of the Act, 1956. 98. 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. Consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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