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TMI Blog2017 (3) TMI 1814X X X X Extracts X X X X X X X X Extracts X X X X ..... andfather of the appellant and that the funds for the business came from the properties left behind in Pakistan. No details or particulars of the properties left behind at Pakistan have been pleaded. We take judicial notice of the fact that post-partition, people who migrated to India from the territories of the newly State of Pakistan were required to file claims before the custodian of evacuee properties and upon proof of properties left behind in Pakistan, compensations were assessed. These people were treated as refugees and either money or an immovable property was allotted to these refugees by the Ministry of Rehabilitation, Government of India. In the plaint the lack of pleadings to said effect cannot be overlooked. The positive statements required by law to be pleaded in the plaint regarding constitution of an HUF are missing as has been rightly held by the learned Single Judge - We concur with the view taken that the plaint does not disclose an actionable cause of action and we supplement by recording that the proposed amendment of the plaint does not improve this lack of actionable pleading. Appeal dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... same without the consent of the other coparceners. A will dated May 29, 2008 which was propounded by defendant No.2 was also challenged. 4. An application registered as IA No.1525/2011 for discovery and inspection was also filed concerning sale of the property at Faridabad as also the wealth-tax return, if any, filed by defendant No.1. 5. The defendants filed IA No.1325/2012 invoking Order VII Rule 11 of the Code of Civil Procedure pleading that the averments in the plaint did not disclose a cause of action. 6. Vide impugned order dated May 06, 2016, relying upon the decision of the Supreme Court reported as (1987) 1 SCC 204 Yudhihster vs. Ashok Kumar, and two decisions of this Court reported as 225(2015) DLT 211 Sunny (Minor) & Anr. vs. Sh.Raj Singh & Ors. and 227 (2016) DLT 217 Surinder Kumar vs. Dhani Ram & Ors. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This decision was followed in Yudhishter‟s case (supra). We agree with the legal position noted by the learned Single Judge which flows out of the two decisions of the Supreme Court, which would be as under:- "(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an "ancestral‟ property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits "ancestral‟ property i.e. a property belonging to his paternal ancestor. (ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual‟s property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies establishes that appellant No.1 had a valid title to the suit property and had given possession of the suit property to her brother as a caretaker; the respondent No.1 had not been able to establish any family arrangement by virtue of which the possession of the suit property was given to him; caretaker, watchman or servant can never acquire interest in the property irrespective of their long possession and the courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time, either as a friend, relative or caretaker. Thus, the Supreme Court allowed the appeal. Though the matter had reached the Supreme Court after trial and parties had led their evidence, 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 pleadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he party and inform the other party of the case it has to meet. It means that the necessary facts to support a particular cause of action or a defence should be clearly delineated with a clear articulation of the relief sought. It is the duty of a party presenting a pleading to place all material facts and make reference to the material documents, relevant for purposes of fair adjudication, to enable the Court to conveniently adjudicate the matter. The duty of candour approximates uberrima fides when a pleading, duly verified, is presented to a Court. In this context it may be highlighted that deception may arise equally from silence as to a material fact, akin to a direct lies. Placing all relevant facts in a civil litigation cannot be reduced to a game of hide and seek. In the decision reported as 2011 (6) SCALE 677 Rameshwari Devi vs. Nirmala Devi the Supreme Court highlighted that pleadings are the foundation of a claim of the parties and where the civil litigation is largely based on documents, it is the bounden duty and obligation of the Trial Judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. 12. Highlighting that pleading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the income generated from the firm. This document being filed by the appellant could be looked into by the learned Single Judge and the only error in the impugned order would be one of narrative of fact wherein said document has been referred to as relied upon by the defendants. It is a case where the appellant as well as the defendants relied upon the documents. 16. The positive statements required by law to be pleaded in the plaint regarding constitution of an HUF are missing as has been rightly held by the learned Single Judge. 17. We concur with the view taken that the plaint does not disclose an actionable cause of action and we supplement by recording that the proposed amendment of the plaint does not improve this lack of actionable pleading. 18. Defendant No.1 died during the pendency of the suit and defendant No.2 propounded a will statedly executed by defendant No.1. We agree with the view taken by the learned Single Judge that if the appellant has to challenge the will a separate of cause of action has to accrue and it would be open to the appellant to claim partition of the properties as devolving upon the legal heirs through intestacy. 19. The appeal is accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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