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TMI Blog2020 (5) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... o title through documents, there should be no impediment to a decree for partition being passed immediately. It was however further felt that the counsels should have an opportunity to address the Court on the said aspect. Accordingly, the framing of issues was deferred to 20th November, 2019 and on which date the counsels were heard and order on framing of issues deferred. 2. The suit has had a chequered history, as also evident from the fact that in spite of having been pending for over ten years, issues even have not been framed as yet. 3. The suit was originally instituted by Niti Jain (Niti) against (i) Ram Kali Jain (Ram Kali), (ii) Shruti Jain (Shruti), (iii) Pramod Kumar Jain (Pramod), (iv) Sunil Jain (Sunil), (v) Ramesh Kumar Jain (Ramesh) and (vi) Raj Kumar Jain (Raj Kumar). It was the case of Niti, that (a) Niti, (b) Ram Kali and Shruti together, (c) Pramod and (d) Sunil had 1/4th share each in the property and Ramesh and Raj Kumar were impleaded, being tenants in the property. Pramod and Sunil, in their written statements, supported the claim of Niti to the extent of the share of different parties in the property. However Ram Kali, Shruti, Ramesh and Raj Kumar controv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily have not been impleaded as parties to the present suit and the suit is thus not maintainable; (b) the suit is not also maintainable being for partial partition of properties of HUF; there are other various properties and businesses of the joint family which also need to be included in case partition is to be effected; (c) the parties to the suit are descendant's of Uddham Singh Jain who was the Chairman of Municipal Committee of Charkhi Dadri, Haryana and had lot of assets in the shape of agricultural land and properties; (d) Uddham Singh Jain had four sons viz. R.N. Jain, J.R. Jain, S.R. Jain and N.L. Jain; (e) J.R. Jain, some time in the year 1942-43, started family business with his father Uddham Singh Jain, of manufacture of electric stoves, in Delhi; they made good fortune and entered into other businesses; (f) J.R. Jain was very energetic and enthusiastic and in 1948 shifted to Assam for exploiting the business opportunities there; (g) as the business was expanding R.N. Jain, S.R. Jain and N.L. Jain also joined the family business; (h) as the business expanded even further, various companies like Jain Steel Fabricators Pvt. Ltd., Jain Tube Mills India Pvt. Ltd., Jain Tube ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r transactions of "so called rent" were created in favour of various companies like Jain Export Pvt. Ltd., Ajanta Tubes and Pashupati Spinning and Weaving Mills Ltd. which otherwise belonged to Raj Kumar and Ramesh; (n) J.R. Jain, being the head of his branch of the family, continued to deal with the property with all authorities including MCD on behalf of all those in whose name the sale deed of the property may have existed; (o) disputes started arising amongst the family members in 2005; (p) when J.R. Jain confronted his brothers in this regard, they apologized for their behavior and the matter rested; (q) however on demise of R.N. Jain on 2nd May, 1997 again disputes started; (r) Mukesh Jain, son of J.R. Jain expired on 31st July, 1997; to assure his wife, Ram Kali transferred 12.5% out of her 25% share in the subject property in favour of his widow Shruti by way of Gift Deed; and, (s) J.R. Jain and his family have been using the property and have been making additions, alterations and constructions therein. This narrative has been given from the written statement of Ram Kali and Ramesh. Though in the written statement of Raj Kumar details of certain additional properties are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Kali and Shruti together, have 1/4th undivided share each in the property and a preliminary decree for partition can follow. 11. The law with respect to framing of issues and HUF has been dealt with repeatedly, not only by me on earlier occasions but also in a large number of other judgments. 12. Reference on the aspect of framing of issues can be made to: (a) Precision Steels Vs. Reeta Salwan (2013) 205 DLT 695 holding (i) it is not as if the CPC requires all matters to be decided only after trial, unless admissions are made; (ii) issues are to be framed on material propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence; (iii) where parties are found not in issue on any question of law or fact, Order XV requires the Court to at once pass judgment; (iv) if on a meaningful, not formal reading, the pleading is found to be manifestly vexations and meritless, not disclosing a right to sue or defend and implausible, the Court should exercise its powers and should not allow it to create an illusion and such defences should not be needlessly permitted to go to trial; and, (v) mere cle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of creation of tenancy, in the pleadings, an issue, on bare claim of tenancy ought not to have been framed that that a bogey of a legal defence should not be permitted to prevail. (d) Abbott Healthcare Pvt. Ltd. Vs. Raj Kumar Prasad (2018) 249 DLT 220 holding that a mere plea of invalidity (of registration of trade mark) in the pleading would not be enough to raise an issue of invalidity, without satisfying the Court that the said plea is prima facie tenable and for which specific averments will ought to be made in the pleadings. (e) Anil Kumar Vs. Devender Kumar 2019 SCC OnLine Del 8782, holding that (i) framing of omnibus issues with respect to the reliefs claimed, is in violation of Order XIV Rule 1(3) of the CPC which requires distinct issues to be framed on each material position affirmed by one party and denied by the other party; such omnibus issues do not cull out the material proposition of fact or law on which the parties are at variance and do not tell the Court the issues on which the right decision of the case depends; (ii) the stage of framing the issues is an important one as on that day, the scope of the trial is determined by laying the path on which trial shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which HUF, by virtue of Section 6 of the Act has been permitted to be continued. (ii) Surender Kumar Vs. Dhani Ram AIR 2016 Del 120 holding as under: "5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen, (1986) 3 SCC 567, held that after passing of the Hindu Succession 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 v. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a share in such HUF property. (iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc. will have a right to seek partition of the properties. (iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property. 9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub-Sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub- Sections (1) and (2) of Section 4 of the Benami Act. 12. This Court is flooded with litigations where only self- 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 lon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with his father Uddham Singh Jain commencing business and subsequently other sons of Uddham Singh Jain joining the said business, is pleaded; (c) contended that each of the business and each of the properties owned by the family has a member / representation from the family of each of the four sons of Uddham Singh Jain; (d) contended that the oral family settlement arrived at was implemented through execution of Gift Deeds inter se family members; (e) contended that such conduct of the members of the family demonstrates a family settlement and which will be proved during trial; (f) contended that, it is for the reason of said family settlement only that J.R. Jain's family is in exclusive occupation of the subject property at 26, Friends Colony (West), Delhi and similarly the families of the other three sons of Uddham Singh Jain are also in exclusive occupation of other properties so acquired by the family and in which J.R. Jain and his family members inspite of having a share are not asserting any right; similarly in no other property also constituents of other branch of the family though having a share are asserting any right; (g) contended that such long course of conduct its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o-owners of the property. It was also enquired from the senior counsel / counsel for the contesting defendants that if the four family members representing each of the four branches of the four sons of Uddham Singh Jain were not the absolute owner of one-fourth undivided share in each of the property, in their personal individual capacity and joined the purchase merely as members of HUF, with the property being of the HUF, how could they execute Gift Deeds in favour of others, representing in the said Gift Deeds to be the sole absolute owner of one-fourth share, of which the sale deed dated 14th November, 1978 stood in their name. I may in this regard notice that the Gift Deeds filed by the plaintiffs as well as the Gift Deeds filed by the contesting defendants have been executed by the executants thereof representing to be the sole absolute owner of the share in the property gifted under the deed being executed. Had the property been of any HUF or been treated by the family members to be of the HUF, the family members in whose name sale deed of the property stood, could not have so executed the Gift Deeds. 21. No answer was forthcoming. 22. It was also enquired on 20th November, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Nirmal Jain 2019 SCC OnLine Del 8414, Kalpana Palupuri Butta Vs. Pritendra Kumar Butta 2018 SCC OnLine Del 10716 and Harvinder Singh Chadha Vs. Saran Kaur Chadha 2014 SCC OnLine Del 3413 (DB) holding that under a family settlement shares of each of the member of the family in different properties of the family can be increased, decreased or relinquished in favour of another member already having a share in that property, without a registered document but under a family settlement even if in writing but not registered, right in immovable property cannot be transferred from one family member to another family member who earlier did not have any right in that property. Thus, for the property subject matter of this suit i.e. property No.26, Friends Colony (West), Delhi to be dealt with under a family settlement, it was essential that the family members to whose exclusive share the property fell had a pre-existing share in the same. Seen in this context, it will be seen that the sale deed of the property though was in the names of son of each of the four brothers J.R. Jain, R.N. Jain, N.L. Jain and S.R. Jain but Rakesh being the son of J.R. Jain did not retain his one- fourth share ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements also do not give any date of settlement. Had anything been orally decided amongst the four brothers with the blessings of the father, as pleaded in the contesting written statements, a date on which the said oral settlement would have been pleaded. No date, month or year of the oral family settlement has been pleaded. Merely because those carrying on business as proprietors, partners, shareholders, Directors through the vehicle of partnership firm and company are family members, does not convert the business into a family business or business of an HUF. Law, besides sole proprietary firm, partnership firm, private limited companies and public limited companies, also recognizes a joint Hindu family trading firm and which is not governed by the Partnership Act, 1932 or the Companies Act. 1956. The business carried on by the Jain family, to qualify in law as a business of the family, was required to be carried on as joint Hindu family trading firm and assessed for the purposes of taxation as joint Hindu family trading firm and it is not open to the contesting defendants to, before revenue and other authorities represent their business vehicle to be a partnership or a corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed for income in their personal individual capacity and not as members of any HUF. Moreover whatever was owned by Uddham Singh Jain, on his death, in the absence of any Will, would be inherited by his widow, sons and daughters and not by his grandchildren. Though the date of demise of Uddham Singh Jain is not pleaded but it is obvious from the pleadings that he died post coming into force of Hindu Succession Act. The document filed by Ram Kali and Ramesh along with their written statement refers to properties held benami. If any of the properties are held benami, they are liable to be acted upon under the Prohibition of Benami Property Transactions Act, 1988 and to be confiscated. 29. The question which arises for consideration is, whether the Courts today can permit litigants coming before it to take a stand before the Court different from that they have been taking for long period of time before taxation and other authorities. In my view, the Courts, if permit the litigants to, for the purposes of litigation take a different stand from what they have been taking while complying with various laws, would be aiding and abetting such litigants to violate the laws, particularly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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