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TMI Blog2021 (5) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... he property. The documents pertaining to the property were called for from the assessee and also from the Land Registration Authorities u/s 133(6) of the Act. The Assessing Officer observed that the document No.457/2009 was registered on 8.4.2009 with regard to the sale of property in question and that till 28.1.2009, only leasehold rights were with the assessee. He observed that the assessee had acquired lease rights over the property on 30.6.1950 by virtue of Settlement and Arrangement deed dated 30.06.1950 and consequent to the demise of his father in the year 1955, the assessee, his mother and two sisters were left behind as heirs and legal representatives. The Assessing Officer observed that the assessee's mother and two sisters gave no objection for conversion of the lease hold rights to free hold rights over the property as also the conveyance of the property in favour of the assessee. Accordingly, the Estate Officer, Secunderabad, vide Conveyance Deed document No.452/2009, dated 28.01.2009 has converted the leasehold rights to free hold rights in favour of the assessee for a consideration of a sum of Rs. 50,400/-. The Assessing Officer observed that prior to conversion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer in assessing the capital gains on sale of property in individual status of the assessee, when the property was owned by the HUF having been inherited/succeeded by the assessee prior to the introduction of Hindu Succession Act, 1956. 3. On the facts and in law, the learned CIT (A) erred in holding that there was no existence of HUF at all, when the HUF had come into existence automatically by operation of law then prevailing. 4. On the facts and in the circumstances of the case, the learned CIT (A) grossly erred in not referring the sold property to the Valuation Officer u/s 50C(2) of the I.T. Act, 1961, merely for the reason that the said right was not exercised during assessment proceedings. 5. On the facts and in the circumstances of the case, the learned CIT (A) ought to have adopted the value of the sold property as on 1.4.1981 based on the valuation of the registered valuer. 6. On the facts and in the circumstances of the case, the learned CIT (A) grossly erred in taking the value of some other property as the basis for arriving at the value of the sold property as on 1.4.1981. 7. On the facts and in the circumstances of the case, the learned CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on the HUF before and after the promulgation of Hindu Succession Act in 1956 has been considered by the Hon'ble Delhi High Court in the case of Vinod Chopra vs. Vasudev Chopra and another in CS(OS) No.2588/2011 dated 22.3.2011. The relevant paras are reproduced hereunder for ready reference: "4. I have had an occasion to consider this aspect in the judgment delivered in the case of Sunny (Minor) & Anr. Vs. Raj Singh & Ors., 225 (2015) DLT 211. In this judgment, I have held by referring to the ratio of the judgment of the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 that inheritance of ancestral property after 1956 does not mean inheritance is of an HUF property but inheritance will be as a self acquired property in view of Section 8 of the Hindu Succession Act, 1956. The relevant paras of the judgment in the case of Sunny (Minor) & Anr. (supra) are paras 6 to 9 and 14 and which paras read as under:- "6. At the outset, it is necessary to refer to the ratio of the judgment of the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and in para 10 of the said judgment the Supreme Court has made the necessary observations wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." (emphasis is mine) 7(i). As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter‟s paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person "A‟ inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a self-acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to "A‟. After passing of the Hindu Succession Act, 1956, this position has u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndants no.2 to 4) inherited various ancestral properties which became the basis of the Joint Hindu Family properties of the parties as stated in para 15 of the plaint. In law there is a difference between the ancestral property/properties and the Hindu Undivided Family property/properties for the pre 1956 and post 1956 position as stated above because inheritance of ancestral properties prior to 1956 made such properties HUF properties in the hands of the person who inherits them, but if ancestral properties are inherited by a person after 1956, such inheritance in the latter case is as self-acquired properties unless of course it is shown in the latter case that HUF existed prior to 1956 and continued thereafter. It is nowhere pleaded in the plaint that when did Sh. Tek Chand father of Sh. Gugan Singh expire because it is only if Sh. Tek Chand father of Sh. Gugan Singh/defendant no.1 had expired before 1956 only then the property which was inherited by Sh. Gugan Singh from his father Sh. Tek Chand would bear the character of HUF property in the hands of Sh. Gugan Singh so that his paternal successors-in- interest became co-parceners in an HUF. Even in the evidence led on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 1956. Only a self-serving statement has been made of properties of Sh. Gugan Singh being "ancestral‟ in his hands, having been inherited by him from Sh. Tek Chand, and which statement, as stated above, does not in law mean that the ancestral property is an HUF property. 9. Onus of important issues such as issue nos.1 and 2 cannot be discharged by oral self-serving averments in deposition, once the case of the plaintiffs is denied by the defendants, and who have also filed affidavit of DW1 Sh.Ram Kumar/defendant no.2 in the amended memo of parties for denying the case of the plaintiffs. An HUF, as already stated above, could only have been created by showing creation of HUF after 1956 by throwing property/properties in common hotchpotch or existing prior to 1956, and once there is no pleading or evidence on these aspects, it cannot be held that any HUF existed or was created either by Sh. Tek Chand or Sh. Gugan Singh. In my opinion, therefore, plaintiffs have miserably failed to discharge the onus of proof which was upon them that there existed an HUF and its properties, and the plaintiffs much less have proved on record that all/any properties as mentioned in para 15 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property. 7. On the legal position which emerges pre 1956 i.e before passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh & Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such 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 property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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