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TMI Blog1992 (7) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... nthly rent from the plaintiff. Defendant No. 3 immediately after the purchase of the premises in question, with ulterior motive and design and to coerce the plaintiff to quit from the premises, filed as eviction petition in the year 1970 under section 14(1)(b) and (g) of the Delhi Rent Control Act. In the petition, defendant No. 3 admitted that he was the purchaser of this property, by a registered sale deed. In the year 1971, defendant No. 3 filed another eviction petition under Section 14(1)(a) of the Delhi Rent Control Act, which was dismissed. The matter did not rest there, and defendant No. 3 also instituted an eviction petition under Section 14(1)(e) of the Delhi Rent Control Act. In that petition also, he described himself as the owner of the property bearing No. A-167, Defence Colony, New Delhi. The petition was dismissed. 2. The appeal filed by defendant No. 3 was also dismissed and the second appeal is pending in this court. It is further stated that another false petition was filed by defendant No. 3 seeking eviction of the plaintiff. In sum and substance, the plea is that defendant No. 3 is making all possible efforts to evict the plaintiff from the premises in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passed in the suit is nullity and non est.. In these premises, aforesaid declaration is sought. 4. Alongwith this suit, an application, which is under disposal being I.A. No. 1465/1991 has been filed with the prayer that the proceedings pending in the Court of Smt. Mamta Sehgal, Rent Controller, Delhi in the eviction case, be stayed. The allegations made in this application is simply a repetition of the allegations made in the plaint. In the application, it is further stated that the balance of convenience lies in favour of the plaintiff and against the defendants, and the proceedings pending before the Rent Controller are liable to be stayed. Plaintiff has been advised that the tenant cannot challenge the partition decree in the proceedings before the Rent Controller, therefore, the necessity of filing the present suit has arisen. 5. The suit is resisted on behalf of the defendants. In the written statement filed on behalf of defendants 1 and 2, the defence set up is that the defendants 1 and 2 constituted an HUF of which, defendant No. 3 in the karta. House No. A-167, Defence Colony, New Delhi has seen partitioned between the defendants by virtue of judgment and decree da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... open to the plaintiff to allege fraud or collusion against the defendants in respect of partition of the property which, the defendants owned and got it partitioned willingly for genuine needs. It was agreed for the convenience of the defendants 3 4 who are aged 67 and 62 years respectively and sick, to give them ground flour so that in the evening of their lives, they could live comfortably. It is denied that the decree passed by this Court in a partition suit is collusive or void. It is denied that Section 81 of the Income Tax Act, in any manner affected the suit filed by defendant No. 1 against other defendants. The house in question was acquired out of the funds of ancestral property and the house has been a HUF property. Therefore, the defendants who are members of HUF, during the life time of their father, can seek partition of the property. 6. The written statement has also been filed on behalf of the defendants 3 4. The defence raised by the defendants 3 4 is almost the same as that of defendants 1 2. It is stated that defendant No. 3 who has retired as Assistant Director General, P T, in his capacity as retired Government servant, is entitled to invoke the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the life time of the farther, his son cannot enforce partition in joint family property. In the other case of Nehal Chand Gopal Dass v. Mohan Lal, AIR 1932 Lahore 211 similar view was taken. It was next contended that the decree of partition was obtained by defendant No. 1 by tactics and playing fraud on the Court. He had drawn my attention to the various petitions filed by defendant No. 3 for eviction of the plaintiff where in Column 3(a) meant for name and address of landlord, name of defendant No. 3 is given and not plea of joint property, had been taken in those eviction petitions. In sum and substance, the contention is that the decree obtained by defendant No. 1 against defendants 2 to 4, is illegal, void and ineffective and cannot be enforced against the plaintiff. 10. On behalf of the defendants, it was contended that the plaintiff had no right to challenge the partition decree. Even otherwise, it was a Joint Hindu Family property and defendant No. 1 could enforce the partition. There is no bar in Delhi to enforce partition of property by a son during the life time of his father. On merits, it was contended that defendant No. 3 constituted a Joint Hindu Family propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention was also drawn by the learned counsel for the defendants to various orders passed by the Income Tax Authorities on the record. There is a notice of demand dated 28.2.1975 under Section 156 of the Income Tax Act addressed to M/s Dev Raj Bajaj and Sons, A-167, Defence Colony, New Delhi, by the Income Tax pertaining to assessment year 1972-73. It is mentioned in this notice that the status of the family is 'HUF'. Also on the record, there is an Assessment Order dated 8.7.1975 pertaining to the Assessment year 1974-75 wherein the same and address of the assessee is stated to be M/s. Dev Raj Bajaj and Sons. A-167, Defence Colony New Delhi. 'STATUS HUF'; House property a-167, Defence Colony, New Delhi. There is another Assessment order dated 13.3.1979 pertaining to the assessment year 1976-77 wherein the name of the assessee is stated to be Shri Dev Raj Bajaj and Sons, A-167, Defence Colony, New Delhi. The assessment order pertaining to the year of Assessment 1978-79 is also placed on the record which also reads the name of the assessee as Dev raj Bajaj and Sons, A-167, Defence Colony, New Delhi. In the assessment order dated 24.9.1983 pertaining to the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, I do not see much force in the contention. In the assessment order for the assessment year 1974-75 the name of the assessee is shown to be Shri Dev Raj Bajaj and Sons, A-167, Defence Colony New Delhi and the status is shown as 'HUF' and the House property is house as A-167, Defence Colony, New Delhi. In the subsequent years also the assessment is shown to be in the name of Dev Raj Bajaj Sons which shows that Dev Raj Bajaj and Sons is a Joint Hindu Family. The contention of Mr. Lekhi that in he eviction petition as filed by defendant No. 3 it was stated by him that the had purchased house property No. A-167, Defence Colony, New Delhi, would clearly indicate that the house was the personal property of defendant No. 3. I am not inclined to accept this contention. There is material on the record such as the assessment orders which lead to the inference that there is a Joint Hindu Family in the name and style of M/s Dev Raj Bajaj and Sons and the house property. A-167, Defence, colony, New Delhi was shown to be the Joint Hindu Family property. Prima facie the defendants have been able to establish that they constituted a Joint Hindu Family under the name and style of Dev Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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