AI Drafter 
TaxTMI 
TaxTMI 
2017 (3) TMI 1189
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....ty "being inherited as Class-I legal heirs having their respective shares in the suit property to the extent of 1/3rd each"; (iv) that Shri Maheshwar Dayal died in the year 1991 and as such after his death his two sons and daughter namely defendant no.1 Shri Someshwar Dayal, defendant no.2 Shri Dinesh Dayal (since deceased and represented by his wife defendant no.2a. Ms. Nayantara Dayal and son defendant no.2b. Mr. Devesh Dayal) and defendant no.3 Ms. Abha Dayal inherited 1/3rd share each in the property making each of them owner of 1/9th share in the property; (v) that on 30th March, 1991 all the defendants entered into a family settlement which was reduced in writing in order to make construction in the said property and by virtue of which additional construction was to be made in the back portion of the property with each branch of the family maintaining 1/3rd interest in the overall property; (vi) that in terms of the aforesaid settlement, in or about the year 19901992 construction was carried out in the back portion of the property with the front portion comprising of a house with four bedrooms etc. and the rear portion comprising of four flats; (vii) that a family....
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....t being not the case of the plaintiffs that there was any co-parcenary in existence since prior to the coming into force of the Hindu Succession Act, 1956 and it being also not the case of the plaintiffs that the property in the hands of Shri Jagdishwar Dayal was ancestral or co-parcenary property, on what basis it is contended that the property was of a HUF or of a joint Hindu family and in which the plaintiffs no.1&2 by birth got a share. 4. The counsel for the plaintiffs drew attention to the following clause in the Memorandum of Family Settlement between the defendants no.1,2&3 and in which defendant No.2 Shri Dinesh Dayal is described as first party, the defendant No.3 Ms. Abha Dayal as the second party and the defendant No.1 Shri Someshwar Dayal as the third party:- "Accordingly, the Parties hereto belonging to the branch of late Dr. Maheshwar Dayal agreed to amongst themselves and it is recorded herein that for the purpose of making the aforesaid construction by the branch of late Dr. Maheshwar Dayal, consisting of a basement, ground floor and first floor, having a total constructed area of about 3000 sq. ft. the 2nd Party and her husband Shri Ajai Mohan Kaul would mak....
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.... November, 2016 and on specific query stated (i) that the defendant No.1 Mr. Someshwar Dayal, being the father of plaintiffs No.1&2 and husband of the plaintiff No.3 and Mr. Somesh Dayal are one and the same person; (ii) that defendant No.1 Mr. Someshwar Dayal has always been in employment and has never carried on any trade or business; (iii) that the defendant No.1 Mr. Someshwar Dayal is an income tax assessee; (iv) that there is no HUF of the defendant No.1 Mr. Someshwar Dayal and the defendant No.1 Mr. Someshwar Dayal or anyone acting on his behalf has never filed any income tax returns of Someshwar Dayal HUF; (v) that there is no HUF of the defendants together; (vi) that no such HUF has been shown in any records filed with any authority and there is no document of existence of any such HUF; (vii) that the property No.27, Poorvi Marg, Vasant Vihar, New Delhi (described in the memorandum of family settlement at page 16 of the documents file as E-27, Poorvi Marg, Vasant Vihar, New Delhi) is assessed in all government records in the individual names and has never been treated as property of any HUF. 8. The counsel for the defendants further stated that in th....
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....ven before 1956, an HUF could come into existence even without inheritance of ancestral property from paternal ancestors, as HUF can be created post 1956, by throwing of individual property into a common hotchpotch; if such an HUF continues after 1956, then in such a case a coparcener etc., of an HUF is entitled to partition of the HUF property. 12. The counsel for the plaintiffs relied on the part aforesaid of Surender Kumar supra holding that after 1956 an HUF can be created by throwing of individual property into a common hotchpotch. It was his contention that clause aforesaid of the Memorandum of Family Settlement between defendants no.1,2&3 constitutes an act of throwing of the property into HUF hotchpotch. 13. The question for determination thus is whether the clause aforesaid of the Memorandum of Family Settlement amounts to the defendant no.1 Shri Someshwar Dayal throwing his share in the property aforesaid into the HUF hotchpotch. 14. I have also recently in judgment dated 15th February, 2017 in CS(OS) No.2092/2013 titled Captain Bhupinder Kumar Suri Vs. Naresh Kumar Suri held that even after 1956 an HUF can be created and individual property thrown into common ho....
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....d property. An act of creation of HUF and of putting of individual property into HUF hotchpotch has to be unequivocal and unambiguous. From mere use of the words "joint Hindu family property", an HUF does not come into existence and the exclusive rights in the property not divested/abandoned. 16. There is another aspect. At the time of execution of the Memorandum of Family Settlement on 31st March, 1991, the defendant No.1 Shri Someshwar Dayal had no wife and no children. The plaintiff No.3 Ms. Anupama Dayal is pleaded to have married the defendant No.1 only on 21^st January, 1996 and the plaintiffs No.1&2 pleaded to have been borne on 24th December, 1998 and 15th January, 2002. The defendant No.1 on 31st March, 1991 could not have changed the status of his share in the property from that of his individual property to property in which his wife and children also had a share. Supreme Court, in C. Krishna Prasad Vs. C.I.T., Bangalore (1975) 1 SCC 160 held that the word "family" always signifies a group - plurality of persons is an essential attribute of a family; a single person, male or female does not constitute a family; he or she would remain what is inherent in the very natur....