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TMI Blog2016 (1) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;joint properties' and 'working together' without the necessary legal ingredients averred to make a complete existence of a cause of action of joint Hindu family/HUF with its properties and businesses. (ii) Joint funds, joint businesses or working together etc do not mean averments which are complete and as required in law for existence of HUF and its properties have been made, and, joint funds and joint properties do not necessarily have automatic nexus for they being taken as with joint Hindu family/HUF properties. (iii) In view of the specific bar contained in Sections 4(1) and (2) of the Benami Act, once properties in which rights sought by the plaintiff are not by title deeds/documents in the name of the plaintiff but are in the name of defendants, the plaintiff is barred under Section 4(1) of the Benami Act from claiming any right to these properties and the only way in which the right could have been claimed was if there was an existence of an HUF and its properties, but, the plaint does not contain the legally required ingredients for existence of HUF and its properties. (iv) With respect to the properties lacking in exact details with the complete a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding defendant no. 1/applicant who is the father of the plaintiff), and who are alive, plaintiff cannot lay any claim to the properties of late Sh. Jage Ram. It is further averred in the application that the properties of late Sh. Jage Ram were not Hindu Undivided Family (HUF) properties/joint Hindu family properties but were the individual properties of late Sh. Jage Ram. Accordingly, it is prayed that the suit which is seeking the relief of possession, and effectively partition etc, be dismissed. 2. Counsel for the plaintiff in response has argued that in the plaint, plaintiff has made a specific averment in para 4 that the properties of late Sh. Jage Ram, grandfather, remained joint Hindu family properties and have continued to be so even after his death between his legal heirs, and once the suit properties are joint Hindu family properties, the issue with respect to the plaintiff not being the class I legal heir is immaterial because plaintiff claims right in the suit properties as a coparcener of a joint Hindu family/HUF. On behalf of the plaintiff, reliance in support of his arguments is placed upon the judgments of the Supreme Court in the cases of Rohit Chauhan vs. Surin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hishter 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. 6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property. 8. The relevant paragraphs of the judgment in the case of Sunny (Minor) (supra) are paragraphs 6 to 8 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 with respect to when HUF properties can be said to exist before passing of the Hindu Succession Act, 1956 or after passing of the Act in 1956. This para reads as under:- '10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [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 grand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self- acquired property of the person 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint 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 the plaintiffs, and which is a single affidavit by way of evidence filed by the mother of the plaintiffs Smt. Poonam as PW1, no date is given of the death of Sh. Tek Chand the great grandfather of the plaintiffs. In the 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 evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded. 13. In view of the above, actually the application filed under Order VII Rule 11 CPC in fact is treated as an application under Order XII Rule 6 CPC, inasmuch as, it is observed on the admitted fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l earn and made from the earnings made from such business and/or the assets generated their from in the names of the said business or any individual, joint names of the family members, including in the name of defendant no. 2, the same shall belong to and be of joint family assets/properties, irrespective who ever may look after any business, possessing any shop, house or any other property either under ownership or tenanted, at any point of time and all the family members except defendant no. 2, shall have one forth share each therein at all relevant time. Since, defendant no. 1, being father of the plaintiff and defendants no. 3 and 4, happens to be an experience person and plaintiff and defendant no. 3 and 4 had complete faith on him, it was agreed he shall managed and kept all records of all transactions of the businesses, assets and properties etc. with him. It was also agreed specifically, unless divided mutually among all members together, all the said firms, funds, incomes and properties, existing or already disposed off, shall be treated as joint family undivided properties and on partition true accounts of all up-to such date, when agreed to partition, shall be rendered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and are joint properties having been purchased from the joint funds of the family members. i) Tenancy Shop/premises under tenancy of Sh. Tilak Raj Khurana, father of the plaintiff and defendant no. 1 herein, Opposite Shop No. 217, Behind Shri Gauri Shankar Temple, New Lajpat Rai Market, Chandni Chowk, Delhi - 110006, business of which is being run under the name and style of M/s. Khurana Traders. The approx. value of the above shop is about Rupees Two crores and two other and two other godowns building No. 418, Shri Gauri Shankar Temple, Chandni Chowk, Delhi - 110006. The approx. value of the said two godowns is Rs. 50,00,000/- (Rupess Fifty Lacs), under the possession of defendants No. 1 and 4. ii) Shop No. 205, New Lajpat Rai Market, Delhi - 110006, in the name of Sh. Tilak Raj Khurana defendant No. 1. The said shop is in occupation and possession of Sh. Surender Khurana, plaintiff herein, business being run under the trade name and style of M/s. Khurana Associates. The approx. value of the above said shop is about Rs. 60,00,000/- (Rupees Sixty Lacs). iii) Shop No. 267, New Lajpat Rai Market, Delhi-110006, comprising of basement, ground, first and second floors, under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n or about 2001 for an approx. value of Rs. 25,00,000/- (Rupees Twenty Five Lacs). The amount has been received by defendant no. 1, account of which the defendant no. 1 will have to disclosed and render the account thereof. ix) One plot at Ramprastha Colony, Ghaziabad (UP) admeasuring 555sq.yds., in the name Smt. Santosh Khurana, defendant no. 2, Sh. Surender Khurana, plaintiff herein and Sh. Sanjay Khurana, defendant no. 4, purchased in the year 1995. The said plot was constructed into Twelve Flats and said flats were sold by defendants no. 1,2, and 4, in league and collusion with each other, without prior consent, knowledge and plaintiff being party thereto and the entire sale consideration of all the said flats is with the defendants 1,2 and 4 who have to rendered the account thereof. In the estimation of plaintiff the sale consideration of said twelve flats would be total Rs. 5 (five) crores. The plaintiff is also entitled to receive his share in the sale consideration of said flats being a joint owner thereof. x) That the plaintiff has also come to know that defendants 1 and 4, from the above said flats sale consideration/funds, have purchased on 1st May, 2004, a Shop No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning business under the trade name and style of M/s. Khurana Sales Corporation, as detailed in para (iii) above from part of the said premises and he is releasing rents from rest of the part of the said shop approximately Rs. 60,000/- per month, which the said defendant is liable to render the account thereof, even since let out and the rent received by him. 8. That all the above properties have been purchased from the joint funds, joint income and joint business and all the money whosoever and whatsoever had earned from the joint business was/is kept by defendants. The defendants 1,2 and 4 have also sold and received considerations of various joint family properties including twelve flats built on plot at Ramprastha Colony, Ghaziabad, another plot at Rajender Nagar, Ghaziabad etc. Even the rental income received by the defendant no. 3 is also in his hands and all the defendants have to render the account of entire family incomes, funds, properties and other assets received and generated therefrom. It is further submitted that from the inception of the business, till date, no division, distribution or partition of joint family funds, properties have been done an/or no rendition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff of joint funds and joint properties being purchased from the joint funds, however, 'joint funds' or joint properties are not in law equal to HUF funds/HUF properties or businesses. It is also further required to be noted that 'joint funds' is an expression which is not in law equal to joint Hindu family property. 'Working together' is not equivalent to existence of a joint Hindu family. This is all the more so after passing of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'the Benami Act') and which states that what is apparent must necessarily be taken as real i.e. who is the owner of a particular property as stated in the title deed is final, subject of course to the exceptions contained in Section 4(3) of the Benami Act of existence of HUF properties or trust properties. Specific and categorical averments have to be made with respect to existence, creation and continuation of HUF and its properties, and which necessary averments are not found in the plaint. Also, there is no averment in the plaint admittedly with respect to the properties being properties purchased in trust for non- applicability of the bar contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of passing any vague decree of partition having vague and incomplete particulars. (emphasis added) (ii) Accordingly, qua vague properties, the suit is not maintainable and would stand dismissed as no reliefs can be granted with respect to properties of which complete details have not been mentioned in the plaint. 7. It may be noted that in para 6 of the plaint various properties are referred which are admittedly already sold, and with respect to such properties therefore there does not arise an issue of partition, and also that it is noted that in the suit plaint no relief is claimed for recovery of monies allegedly on account of the share of the plaintiff in such properties. 8. Accordingly, the following conclusions are arrived at:- (i) The plaint only talks of 'joint funds', 'joint properties' and 'working together' without the necessary legal ingredients averred to make a complete existence of a cause of action of joint Hindu family/HUF with its properties and businesses. (ii) Joint funds, joint businesses or working together etc do not mean averments which are complete and as required in law for existence of HUF and its properties ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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