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TMI Blog2015 (11) TMI 1831X X X X Extracts X X X X X X X X Extracts X X X X ..... ich cannot be taken as discharge of the onus. In his cross-examination on 01.04.2013, the defendant no.3 as DW1 has denied the suggestion that there was any family settlement. It is therefore held that plaintiffs have failed to prove the issues. Both the issues are decided in favour of the defendants and against the plaintiffs, the plaintiffs are not entitled to the reliefs of partition or rendition of accounts - Suit dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased and which is situated on an area of approximately 150 sq. yds. wherein the plaintiffs alongwith their mother are living in the ground floor of this property. The first floor is with a tenant Sh. Rajendra Jha. Plaintiffs plead that there was a family settlement between the parties as per which the father of the plaintiffs Sh. Harvinder Sejwal got the house no. 258, Manglapuri Extension, New Delhi besides one shop on the ground floor in Adarshini Plaza, Adhichini and a flat no. 93 in Village Adhichini, Hauz Khas, New Delhi. Plaintiffs' father expired on 12.11.2004 and plaintiffs therefore plead to be owners of the properties falling to the share of their father out of the joint properties mentioned in para 15 of the plaint. Plaintiffs claim ownership of 1/5th share in the suit properties. 3. Defendants have contested the suit by filing a common written statement. Defendants have denied that the suit properties were/are Joint Hindu Undivided Family properties/HUF properties. Defendants have also denied that any family settlement as alleged was entered into. Defendants have also stated that when the property no. 93, Village Adhichini, Hauz Khas was sold, the father of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. MANU/SC/0265/1986MANU/SC/0265/1986 : [1986] 161 ITR 370(SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son who inherits the same. There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in-interest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self- acquired property but an HUF property is if after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint even the date of the death of the grandfather of the plaintiffs Sh. Gugan Singh is missing. As already stated above, the dates/years of the death of Sh. Tek Chand and Sh. Gugan Singh were very material and crucial to determine the automatic creation of HUF because it is only if Sh. Tek Chand died before 1956 and Sh. Gugan Singh inherited the properties from Sh. Tek Chand before 1956 that the properties in the hands of Sh. Gugan Singh would have the stamp of HUF properties. Therefore, in the absence of any pleading or evidence as to the date of the death of Sh. Tek Chand and consequently inheriting of the properties of Sh. Tek Chand by Sh. Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the properties of Sh. Tek Chand prior to 1956. (ii) In fact, on a query put to the counsels for the parties, counsels for parties state before this Court that Sh. Gugan Singh expired in the year 2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek Chand died in 1982, inheriting of properties by Sh. Gugan Singh from Sh. Tek Chand would be self-acquired in the hands of Sh. Gugan Singh in view of the ratio of the Supreme Court in the case of Yudhister (supra) inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound at serial nos.(c), (e), (f) and (g) of para 15 of the plaint either in the name of defendant no.1 or of any of the defendants and that in fact no such properties exist. Once that is so there does not arise any question of partition of such imaginary properties. This Court notes that the properties at serial nos.(c), (f) and (g) being of 200 sq. yds plot in Ber Sarai Extension, New Delhi, Ballabhagarh in Faridabad and Kotputli, Rajasthan are wholly vague and without any details of the municipal numbers or agricultural khasra numbers and therefore it cannot be said that any of the said three properties exist, and are thus available for partition. The defendants have further denied that the defendants have ever owned even a single flat, much less four flats, at Village Adhichini, Hauz Khas, New Delhi as mentioned at serial no.(e) of para 15 of the plaint. This Court further observes that the details given of even the last two properties in para 15 of the plaint being vehicles and personal belongings including bank accounts are again wholly vague and are thus incapable of being understood and hence partitioned, because what are the bus and tempo numbers are not stated and nor are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the ratio of the judgment of the Supreme Court in Yudhishter's case (supra) quoted above. Post 1956 the position is that even if Sh. Gugan Singh/defendant no.1 inherited any property from his father Sh. Tek Chand, inheritance by Sh. Gugan Singh of the property of Sh. Tek Chand in 1982 would be as a self-acquired property of Sh. Gugan Singh and not an HUF property. A paternal ancestral property could be an HUF property only if such property was inherited by Sh. Tek Chand prior to 1956, but that is not the case which has been so pleaded and proved by the plaintiff for discharging the onus in this regard. 13. I may note that in the cross-examination of PW1 on 18.05.2012 a suggestion was put by the defendants that the share of her husband namely Sh. Harvinder Sejwal in the property no.93, Village Adhichini was paid to Sh. Harvinder Sejwal, however, such receipt of consideration by Sh. Harvinder Sejwal cannot be said to be on the ground that the same was given to him on account of the property being an HUF property because payment of part price to Sh. Harvinder Sejwal by his father/defendant no.1 can be for various reasons including Sh. Harvinder Sejwal being the son of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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