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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 ..... tle and take a stand diametrically opposite with the past dealing with the subject matter of the dispute - It cannot also be forgotten that the initiation of this suit for partition was by none other than the daughter-in-law of J.R. Jain namely Niti, who, it is not as if is estranged from the remaining family of J.R. Jain or from her husband; she and her husband are themselves residing in the subject property. J.R. Jain representing all the owners of the property created leases of different portions of the property in favour of companies of which also the family members were shareholders, Directors and for the residence of Ramesh and Raj Kumar as tenants therein. J.R. Jain, while so letting out the property, did not create lease on behalf of any HUF and the rentals were not credited to any HUF. The explanation of the same being for taxation purposes cannot be accepted. As aforesaid, what is good for revenue purposes is good for Court purposes also and different stands diametrically contrary to each other cannot be permitted to be taken. The pleas in the written statements of Ram Kali, Ramesh and Raj Kumar who alone are contesting the suit are not found to be bona fide; the said ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 controverted the claim of Niti with respect to the shares in the property also. 4. Vide order dated 9th December, 2013, Pramod and Sunil, whose stand qua the shares in the property was the same as Niti, were transposed as plaintiffs in the suit along with Niti. Vide order dated 9th December, 2015, the suit, on enhancement of minimum pecuniary jurisdiction of this Court, was transferred to the District Court. However finding the valuation of the suit to be defective and the suit as per valuation pleaded by Niti also being within the pecuniary jurisdiction of this Court, vide order dated 20th August, 2016 of the District Judge, the plaintiffs were directed to amend the plaint qua valuatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Co. Ltd., Ajanta Tubes Ltd. etc. were incorporated; as the family was joint, the shareholding of these companies was allotted in such a manner that each brother had an equal share in the same; (i) as the business was growing, the family, in or about 1951, bought house No.110-D, Kamla Nagar, Delhi in the name of wives of N.L. Jain, R.N. Jain, J.R. Jain and S.R. Jain; in 1962, property No.3372/73, Hauz Qazi, Delhi was acquired "with the funds of HUF"; the title deed was again executed in such a manner so that each brother gets an equal share; in 1970, property No.14 Alipur Road, Delhi was purchased in the name of wives of N.L. Jain, R.N. Jain, J.R. Jain and S.R. Jain so that each b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 also given but the same are not relevant for the present purposes and thus are not recorded herein. 7. Suffice it is to state that Niti, in her replication disputed the existence of any HUF or of oral family settlement and Pramod and Sunil also controvert the same. 8. Ram Kali and Ramesh, along with their written statement, have produced before this Court a document described in the index of documents as "copy of Family Settlement" and which is a photocopy of a single page document with no title, as under: "We agree to divide all the assets of JAIN GROUP in seventeen Shares after first taking up Rs.5 Crore which is to be divided in four equal shares Plus Rs. 0 lacs each for two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust 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 clever drafting by advocates cannot compel the Courts to put a suit to trial and the Court is entitled to see through and clear the maze sought to be raised and see what the real defence is. (b) Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine Del 1479, holding (i) the Court would not frame an issue on a point of law which is perfectly clear; (ii) if the plea is mala fide or preposterous or vexatious and can be disposed of without going into the facts or is contrary to law or the settled legal position, the Court will not be justified in adopting a hands off policy and allow the game of the defendant to have its sway; (iii) it is a notorious fact that to drag a case, a litigant o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation 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 shall proceed, excluding diversions and departures therefrom; and, (iii) at the stage of framing of issue, the real dispute between the parties is determined, the area of conflict is narrowed and a concave mirror held by the Court reflecting the pleadings of the parties pinpointing into issues and disputes on which the two sides differ. (f) Bhavna Khanna Vs. Subir Tara Singh 2019 SCC OnLine Del 6978, holding that what is required to be seen, at the stage of framing of issues, is, whether the pleaded defence of the defendant, in law, entitles the defendant to defeat the claim of the plaintiff. If it does not, it will not constitute a material proposition of fact or law for an issue t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UF 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 be an HUF property as to how the same is an HUF property, and, in law generally 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading 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 facts as pleaded in the plaint that no HUF and its properties are found to exist. There is no averment in the plaint that l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 itself is proof of a family settlement and this is not such a suit where opportunity to further prove the plea of HUF and oral family settlement should not be granted; (h) contended that in fact wherever Gift Deeds have not been executed, the concerned family members are bound under the family settlement to execute the same; (i) a copy of the written statement dated 2nd July, 2019 filed by Pramod in CS(OS) No.261/2019 of this Court filed by Poonam Jain and others against Kailashwati Jain and others was handed over in the Court and attention was invited to paragraph (c) of the preliminary submissions therein where Pramod has pleaded that he along with others was in possession of prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led 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, 2019 from the senior counsel / counsel for the contesting defendants, how exclusive occupation of the property even if any by the members of family of each of the sons of Uddham Singh Jain indicated any HUF since in large families it is quite normal that separate properties are occupied by separate units of the family. Attention was also invited to Ramesh Arya Vs. Pawan Arya MANU/DE/3117/2019 and Rameshwar Prasad Gupta Vs. Rajender Kumar Gupta 2011 SCC OnLine Del 2963 laying down that mere long occupation of separate portions of the property is not indicative of oral partition of the property. 23. As far as the contention, of the contesting defendants not asserting any rights in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the property and transferred the same by way of a Gift Deed, claiming to be sole absolute owner of the said one-fourth share, in favour of his wife Niti. With the execution of the said Gift Deed, J.R. Jain's branch of the family ceased to have any share in the subject property inasmuch as Niti, though daughter-in-law of J.R. Jain, did not qualify as a coparcener / member of the alleged HUF and property held by female members are not properties of the HUF. Reference in this regard may be made to Pushpa Devi Vs. CIT, New Delhi (1977) 4 SCC 184 and Harish Peswani Vs. Jaishree Peswani MANU/DE/3387/2016. Though Sushil, being the son of S.R. Jain gifted his one-fourth share in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ognizes 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 corporate entity governed respectively by Partnership Act and Companies Act, 1956 and for the purposes of the present suit, represent the business to have been carried on through the vehicle of joint Hindu trading firm. 28. Though it is pleaded in the contesting written statement that Uddham Singh Jain had a lot of assets in the shape of agricultural land and property but it is not the plea that he had inherited the same assets from his forefathers. It is not the plea that Uddham Singh Jain even though all assets were his personal, created a HUF along with his sons and put the said assets in the hotchpotch of the said HUF. It is also not the plea that Uddham Singh Jain or his forefathe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated. 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 fiscal laws and would be permitting the litigants to change their face from time to time to their advantage and to the detriment of public exchequer and the public at large. The same cannot be permitted. Reference in this regard can be made to Dr. Mukesh Sharma Vs. Dr. Maheshwar Nath Sharma 2017 SCC OnLine Del 7237, M/s New Era Impex (India) Pvt. Ltd. Vs. M/s Oriole Exports Pvt. Ltd. (2016) 234 DLT 615 and M/s Moolchand Khairati Ram Trust Vs. Union of India 2016 SCC OnLine Del 2840. 30. Here, the documents executed by the wife and son of J.R. Jain who have now raised the bogey of HUF, belie that the property was ever owned by or dealt with as the property of HUF. Again, no litiga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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