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TMI Blog2019 (4) TMI 2111X X X X Extracts X X X X X X X X Extracts X X X X ..... s the grandson of Kanta Batra. It may also be noticed that none other than the plaintiff including the father of the plaintiff i.e. the defendant no. 3 is claiming the property to be of the HUF. On the contrary, the father of the plaintiff is claiming the property to be the sole property of Kanta Batra and is claiming exclusive right thereto under a document stated to be the last Will of Kanta Batra. The claim if any of the plaintiff to the property can be only out of the share of his father and once the father of the plaintiff himself is not supporting the plea of the plaintiff, it is quite obvious that the present suit has been filed by the plaintiff in collusion with his father and for the eventuality of the father of the plaintiff failing in the Will set up by him. The suit is thus dismissed with costs payable by the plaintiff to the defendants no. 1, 2 4 of Rs. 30,000/-. - CS (OS) 374/2018 and IA No. 10091/2018 (u/O XXXIX R-1 & 2 CPC) - - - Dated:- 16-4-2019 - RAJIV SAHAI ENDLAW, J. For the Appellant : Vinay Jaidka, Adv. For the Respondent : Rahul Gupta, Shekhar Gupta and Arav Kapoor, Advs. ORDER Rajiv Sahai Endlaw, J. 1. The plaintiff Nik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed vide order dated 11th February, 2019. 4. The suit came up before this Court yesterday i.e. 15th April, 2019 when it was the contention of the counsel for the defendants no. 1,2 4 that the plaintiff, as per averments in the plaint had no cause of action for the suit for partition and the suit was liable to be dismissed. 5. Adjournment was sought on behalf of the counsel for the plaintiff yesterday and the suit was posted for today. 6. Today, the counsel for the plaintiff has appeared and has been heard on the maintainability of the suit. He contends that since the subject property, being property No. A-2/27, Janakpuri, New Delhi, though in the name of Kanta Batra, paternal grandmother of the plaintiff, was purchased from the funds received by her husband K.N. Batra (who was the paternal grandfather of the plaintiff) for giving up his share in property no. F-259, New Rajinder Nagar, Delhi which was a property of the HUF, the property No. A-2/27, Janakpuri, New Delhi also is property of the HUF and the plaintiff, being the son of defendant no. 3 who in turn is the son of K.N. Batra, has a share in the property. 7. The plaintiff, along with the plaint has filed (i) proof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her capacity as the absolute owner of the property. 14. I have considered the respective contentions. 15. The property No. A-2/27, Janakpuri, New Delhi of the paternal grandmother of the plaintiff, perpetual lease of land whereunder was acquired by her from the government authorities in her own name as far back as in the year 1971, in my opinion cannot in law constitute a property of the HUF of her husband K.N. Batra (who is stated to have died in the year 1985) along with his sons, for the plaintiff as her grandson to have a share therein. As far as the argument, of Kanta Batra being a housewife and being a benami owner of the property, is concerned, the same is barred by the provisions of Benami Transactions (Prohibition) Act, 1988. It is not open to the plaintiff to contend that the property was held benami by Kanta Batra on behalf of HUF. Moreover, there is nothing, save for a bald plea to this effect and which does not constitute a pleading in law. There is no plea, a) of the amount received in lieu of share in property no. F-259, New Rajinder Nagar, Delhi; b) of, in whose name property no. F-259, New Rajinder Nagar, Delhi was recorded; c) of how the share in property n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rani Dutta (2001) 3 SCC 420 and it was held that no Hindu females could form amongst themselves, a HUF. 17. Mention may also be made of a judgment of a learned Single Judge of the High Court of Orissa in Santanu Kumar Das Vs. Bairagi Charan Das AIR 1995 Ori 300 and with which I respectfully agree. In that case, the property was purchased in the name of a female, when the family members were living jointly and the husband of the said female was the manager and karta of the family. It was the case of the son of the said female that the property was purchased from joint family fund and it was so purchased in the name of the female to maintain goodwill with her. It was held that the Courts below were under a misconception of law that when a property is purchased in the name of a female member of the joint family and there is sufficient nucleus, the said property should be presumed to be joint family property. Such a presumption was held to be available only in the case of a male member of the family, but not a female member. It was held that a female may continue to be a member of the joint family, but property purchased in her name is not joint family property. Reliance was placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a property of a female Hindu and also holds that the same cannot constitute a property of the HUF. 22. Once it is held that the property No. A-2/27, Janakpuri, New Delhi, in law and on the averments in the plaint, cannot be the property of the HUF, the question of the plaintiff having any share therein would not arise. On the demise of Kanta Batra, in the absence of any Will, the said property would devolve on her heirs in accordance with Section 15 of the Hindu Succession Act upon her sons and daughters and not upon the plaintiff who is the grandson of Kanta Batra. 23. It may also be noticed that none other than the plaintiff including the father of the plaintiff i.e. the defendant no. 3 is claiming the property to be of the HUF. On the contrary, the father of the plaintiff is claiming the property to be the sole property of Kanta Batra and is claiming exclusive right thereto under a document stated to be the last Will of Kanta Batra. The claim if any of the plaintiff to the property can be only out of the share of his father and once the father of the plaintiff himself is not supporting the plea of the plaintiff, it is quite obvious that the present suit has been filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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