TaxTMI 
TaxTMI 
TaxTMI 
2012 (5) TMI 830
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....coparcenary comprising of her husband and her sons, as the law does not permit her to blend her properties with the HUF properties. It is asserted by the defendant No.3 that all the properties, owned and possessed by her are protected by the Hindu Women's Right to Property Act, 1937, the Benami Transactions (Prohibition) Act, 1988 and the Hindu Succession Act, 1956 and in view thereof, the suit is barred within the meaning of Rule 11(d) of Order VII of the Code of Civil Procedure. 3. It may be noted that the suit in which the aforesaid application is filed is a suit for partition, rendition of accounts, etc., filed by the plaintiff, minor Hindu female through her next friend, her mother, Ms. Sapna Kapur. The mother of the plaintiff and the defendant No.1, who is the father of the plaintiff, though have a continuing and subsisting marriage, are involved in multifarious litigation, to which it is not deemed necessary to advert at this juncture. Suffice it to say that there are allegations and counter-allegations. Several orders have been passed in the ongoing litigation between the parties from time to time by various Courts including the Guardianship Court. 4. As delineated in....
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....termed as the property of the HUF comprising of her husband, sons, grandsons or daughters/granddaughters nor her properties can blend into the HUF properties. 7. In paragraph 11 of the application it is stated that the defendant No.3 is the owner of the following properties:- S. No. Property Status 1. B-103, Som Vihar Residing 2. C-1/1682, Vasant Kunj Sold on 30.11.2004 3. B-2/2059, Vasant Kunj Still holding it. 4. 28, Vasant Apartments Sold on 24.03.2008 5. 271, Vasant Apartments Sold on 14.07.2008 6. Birch Court-38, Nirwana Still holding it. 7. Aspen Garden-26, Nirwana Still holding it. 8. A-3/1502, Uniworld City Sold on 18.12.2006 9. Re-107, EWS, Ridgewood Estate Still holding it. 10. C-701, Sun City Still holding it. 11. 801, T-6, Orchid Petals Sold on 09.02.2008 12. 50% share in B-601, Park View Still holding it. It is urged that just as a grandson cannot seek partition of joint family properties from his grandfather during the lifetime of his father and as long as his father and his brothers, etc. are not separated or are united, a granddaughter (the plaintiff in the instant case) is also not entitled to seek partition of the joi....
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....or interest in the said properties. 9. In order to buttress his aforesaid contention, Mr. Tyagi relied upon the decisions rendered in Commissioner of Income-Tax vs. Smt. Pushpa Devi, ILR (1971) 1 Delhi 292; Padma Lal Chand Mirchandani vs. The Commissioner of Income Tax (Delhi II), ILR (1979) Delhi 295 (DB); Smt. Pushpa Devi vs. The Commissioner of Income Tax, New Delhi, AIR 1977 SC 2230 and Raju and Anr. vs. Muthuammal and Ors., AIR 2004 Madras 134 to contend that a female Hindu not being a coparcener cannot blend her separate property with joint family property. Whether that separate property is her absolute property or whether she has a limited estate in that property would make no difference. He pointed out that in Pushpa Devi's case (supra), the Supreme Court relied upon its earlier decision rendered in Mallesappa Bandeppa Desai and Ors. vs. Desai Mallappa and Ors., AIR 1961 SC 1268, and in the said case, Gajendragadkar J. (as His Lordship then was) made the following apposite observations:- "The rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may by deliberate and intentional cond....
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....lethora of precedents to the effect that the Benami Transactions (Prohibition) Act of 1988 would apply, on a construction of the explicit language of Section 4(1) of the Act, to every suit filed after the coming into effect of the Act, even if the transaction is for a period prior to the passing of the Act. The plaint in the said case was rejected as barred under Section 4(1) of the Act. 12. In order to rebut the aforesaid contentions of Mr. Tyagi, the counsel for the plaintiff, Ms. Mala Goel at the outset contended that it is settled law that the provisions of Order VII Rule 11(d) of the Code of Civil Procedure have limited application. It must be shown that the suit is barred under law and such a conclusion must flow from the averments made in the plaint. The issues on the merit of the matter which may arise between the parties would not be within the realm of the Court at that stage. It has been so held by the Supreme Court time and again and specifically reiterated in the decisions of the Supreme Court rendered in Kamala & Ors. vs. K.T. Eshwara Sa & Ors., AIR 2008 SC 3174 and Mayar (H.K.) Ltd. and Ors. vs. Owners & Parties, Vessel M.V. Fortune Express and Ors., (2006) 3 SCC 10....
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....ther in the life time of the father, the sons could ask for partition or not. At one time a view was prevalent that in Delhi like Punjab they could not do so. It was based upon some custom, vide Hari Kishan v. Chander Lal & others, AIR 1918 Lahore 291(21) and Sri Ram v. Collector, AIR 1942 Lahore 183. But since the decision of this court of 22-10-1967 in Khushwant Rai v. Dr. Jagmohar Lal RFA 1-D/59 and 24-D of 1959 (22), it is now no more in controversy that the son can ask for partition from the father during his life time. We do not, therefore, propose to dilate any more on this issue." 15. The decision rendered in Nanak Chand's case (supra) was subsequently followed by this Court in the case of Rajinder Kumar Khanna & Ors. vs. R.K. Bajaj & Ors., 1993 (3) Current Civil Cases 127, wherein it was held:- "14. The contention of Mr. Lekhi that the son cannot claim partition during the life time of his father has no force in view of the decision of this court in the case of Nanak Chand and Others v. Chander Kishore, AIR 1982 Delhi 520, wherein a Division Bench of this court held in Delhi a son can ask for partition of the Joint Hindu Family property from the father dur....
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.... that the suit is barred under any law must be drawn from the averments made in the plaint. Further, for invoking Rule 11(d) of Order VII, no amount of evidence can be looked into. The issues on the merits of the matter which may arise between the parties would not be within the realm of the Court at that stage nor shall form the subject matter of an order under the said provision. In the aforesaid decision which also pertains to a partition suit, it was observed (AIR, page No.3179):- "Whether any property is available for partition is itself a question of fact." 19. In the case of Kamala (supra), a suit was filed claiming partition in the properties. After the passing of the preliminary decree, no property was available for partition. The properties were possessed by the co-sharers independenty in accordance with the respective shares held by the co-sharers. Yet, the Supreme Court observed that what would be the effect of a partition suit which had not been taken to its logical conclusion by getting the properties partitioned by metes and bounds is a question which cannot be gone into in a proceeding under Order VII, Rule 11(d) of the Code. Whether any property is avai....
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...., therefore, not a coparcener, though by virtue of the Hindu Succession (Amendment) Act, 2005, with effect from 09.09.2005, in a Joint Hindu Family governed by the Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. The aforesaid aspects of Hindu Law, however, have no bearing on the present case where undeniably a Hindu Undivided Family was in existence, which acquired huge properties from funds generated from the Hindu Undivided Family business. It is not even the case of the defendant No.3 that she was an earning member of the family or that she had inherited property from her father's side of the family or owned self-acquired properties. Had that been the case, subject to her furnishing proof in this regard, the aforesaid properties could be said to be her absolute properties by virtue of the provision of Section 14 of the Hindu Succession Act, incapable of blending into the properties of the Hindu Undivided Family. 22. The defendant No.3 has in her pleadings, i.e., the written statement filed by her and the present application adopted shifting stands which, though may not have a bearing upon the de....
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....erty by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a - (i) depository as a registered owner under sub-section (1) of section 10 of the Depositories Act, 1996; (ii) participant as an agent of a depository." "4. Prohibition of the right to recover property held benami.- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for....
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.... to the Court to reject the plaint as it is trite that only a part of a plaint cannot be rejected under Order VII Rule 11. The law has been thus enunciated by the Supreme Court in the case of Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137. The observations made in the said case which are apposite to the present case are reproduced hereunder:- "As noted supra, Order 7 Rule 11 does not justify rejection of any particular portion of the plaint. Order 6 Rule 16 of the Code is relevant in this regard. It deals with "striking out pleadings‟..........................." 27. In Sopan Sukhdeo (supra), the Court, in the context of an application under Clause (d) of Rule 11 of Order VII with regard to the manner in which the plaint is to be read for the purposes of the aforesaid provision of law, laid down the following guidelines:- "15.There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascerta....