9911796707
TMI Blog2020 (2) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... n as self-acquired properties of the applicant, have been admitted by the plaintiff. Facts 2. The applicant Smt.Indu Kamboj is the wife of Sh.Virender Singh Kamboj [defendant no.1 in the suit], who is the older brother of the plaintiff, Sh.Surender Kamboj. The relief claimed by the plaintiff in the suit is principally for partition of various properties, which he contends were purchased out of the joint family funds, earned out of the joint business of the parties. The plaintiff claims 1/3rd share in 19 properties [enumerated in prayer A of the plaint] and 1/9th share in 3 other properties [enumerated in prayer B of the plaint]. Of the 22 properties included in the schedule of properties, the applicant claims that the following properties are her self-acquired exclusive properties: "i) 25/37, Gali No. 16, Viswas Nagar, Delhi ii) First floor House No.2425, Tilak Gali, Pahar Ganj, New Delhi-110055 iii) K-217, South City-I, Gurgaon (Hayrana), Customer ID No. 8610641 Unitech Limited South City, Gurgaon." 3. Although the applicant was not originally impleaded in the suit, she applied for impleadment by way of I.A. 12588/2015, which was allowed vide order dated 08.10.2015. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onse to these arguments, Ms. Anita Sahani, learned counsel for the plaintiff, referred to various paragraphs of the plaint [discussed in detail hereafter] wherein the plaintiff has pleaded that the properties in question were purchased from joint family funds, in the names of various members of the family including defendant no.1, his wife and children. With regard to the three specific properties, Ms. Sahani submitted as follows:- i) The property bearing no. 25/37, Gali no. 16, Viswas Nagar, Delhi, was originally purchased jointly in the name of the applicant and one Sh.Narender Kumar Kamboj, deceased brother of the plaintiff and the defendant no.1. Learned counsel referred to a sale deed dated 05.06.1984 in this regard. ii) According to Ms. Sahani, First Floor, House no. 2425, Tilak Gali, Paharganj, New Delhi, was originally in the name of defendant no.1 and was transferred to the applicant (his wife) only in May, 2014. She referred to a General Power of Attorney dated 04.06.2014 and an Agreement to Sell dated 04.06.2014 between defendant no. 1 and his wife (the applicant). iii) With regard to the property allotted by Unitech Gurugram [K-217, South City-I, Gurugram (Haryana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tself. 15 That after the demise of late Shri Jitender Singh Kamboj on 18.8.1998, his share in the business fell to the share of the four brothers in equal four shares namely the Plaintiff, defendant no.1, defendant no.2 and late sh. Narinder Kumar Kamboj. The family house situated at house no. 587 Kesri Mohall Jain Mandir Gali Shahadara Delhi, however fell to the equal share of all the brothers and sisters l/9th eaeh. The plaintiff alongwith the other brothers namely late Shri Narinder Kumar Kamboj and Shri Devender Kumar Kamboj treated the Defendant No. 1 like their father and gave him all the respect that they paid to their father. They took his advice for all the purpose be it business or otherwise and put him on the pedestal of their father late Shri Jitender Singh Kamboj. The family of the three brothers namely plaintiff with Defendant no. 1-2 and Late Sh. Narinder Kumar Kamboj himself, lived in a joint family even after the demise of their father late Shri Jitender Singh Kamboj and the Defendant No. 1 was put in the position of the head of the family. All the business remained joint with every working brother putting his money and efforts to the running of the business conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1 and Defendant No. 2 are the sharers of the said commercial properties which are mentioned herein below. While the share of late Sh. Narinder Kumar Kamboj is heritable by all the defendants along with the plaintiff being the brothers and sisters of the deceased brother. xxxx xxxx xxxx 40 The plaintiff was always busy attending to the customers at all the premises where the business was conducted, entire documentation was in the hands of Defendant No. 1 who used to distribute the expenses for running the house of the other three brothers i.e. plaintiff, deceased brother Narinder Kumar Kamboj and defendant no.2 Devender Kumar. Rest of the money used to be invested in the properties. Other than the properties which were purchased in the names of the Plaintiff and Defendant No. 2 specifically the rest of the properties were purchased either in the name of the business or in the name of the Defendant No. 1, his wife or children. Since the business and the family was joint, there was no occasion for the Plaintiff to ever doubt the intentions of Defendant No. 1. The trust of the Plaintiff is evident from the conduct that the Defendant No. 1 was allowed to shift to his property in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to prove his case at trial. There is no unequivocal or categorical admission in favour of the applicant in the facts and circumstances of this case. The judgment in Anil Kumar (supra), cited by Mr. Aditya Shankar, is distinguishable as there was no plea of a coparcenary/joint family in that case. In contrast, the present case, there are clear pleadings regarding the existence of a joint Hindu family and the share of the plaintiff. Reliance for this purpose may be placed on another coordinate Bench decision of this Court in Aarshiya Gulati (Minor) Thr. Next Friend and Ors. vs. Kuldeep Singh Gulati & Ors. (2019) 257 DLT 550:- "52. However, if sufficient nucleus/income of Hindu Joint Family is shown and property had been purchased from the said nucleus, then even if ownership stands in the name of one of its members, it can be presumed that property is owned by the Hindu Joint Family. Even in the judgment of Appasaheb Peerappa Chamdgade (supra) cited by the plaintiffs, there were Hindu Joint Family properties and the business was started from the Hindu Joint Family funds. The said judgment categorically holds that proof of nucleus/sufficient income of a Hindu Joint Famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC OnLine Del 1968 [FAO (OS) 83 & 84/2008, decided on 16.07.2009]. The Division Bench held inter alia that a pleading in respect of a joint Hindu family, where property is held as a trustee for all family members, could not be decided at the stage of an application for rejection of plaint and ought to be taken to trial. 16. Turning now to the point of limitation, it may be noted at the outset that, in addition to the declaratory relief of shares in the properties, the plaintiff also claims a decree of partition. In this context, the decision of this Court in Anita Anand (supra) cited by Mr.Mohan is relevant. That judgment holds as follows:- "30. Hence, it was argued this suit is primarily a case of declaration and not of partition and the limitation for such a relief would start on 15.12.1987 from the death of Joginder Nath Kapur. It is submitted the claim raised by the plaintiff would only succeed if she gets a declaration that Joginder Nath Kapur is the real owner of this property and she could have got such declaration either during the lifetime of her father or within 3 years of his death and now this suit is barred by limitation. In fact it is argued the plaintiff need to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
