TaxTMI 
TaxTMI 
2017 (3) TMI 1814
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....gh which was set up by the late grandfather of the plaintiff and as such the same is ancestral in the hands of the appellant. It is pleaded : "The plaintiff believes that even the funds for the business came from the properties left behind in Pakistan prior to partition of India. Similarly, the income from the firm Gian Singh Sukhdev Singh is also liable to be divided amongst the legal heirs of late Shri Sunil Gambhir to the extent of his share, as he was the grandson of late Shri Gian Singh who was the owner/ proprietor of the firm Gian Singh Sukhdev Singh. The property at Faridabad is also an HUF property as per information of the plaintiff." 2. The defendants denied the averments made in the plaint and pleaded that the firm M/s Gian Singh Sukhdev Singh was the sole proprietary firm of defendant No.1 who migrated to India and settled in Delhi during partition. As a refugee he came with no funds. The native place now in Pakistan was Jhelam. Ownership of the two properties, partition whereof was prayed for, was claimed to be his and for which plea the title documents were relied upon. It is pleaded that the property at Faridabad had been sold. 3. As the suit lingered on, defend....
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....defendant No.1 with the plea that he used his father's name out of respect and that on May 10, 1980 it was converted into a partnership firm by inducting appellant's father as a partner who retired from the firm with effect from March 31, 1992 in terms of the retirement deed dated April 07, 1992. 8. Pertaining to the first grievance, whilst it may be true that procedurally the learned Single Judge ought to have first decided the application filed by the appellant to amend the plaint. But we find that said procedural error needs to be overlooked in the facts and circumstances of the instant case because while seeking to amend the plaint the appellant did not expand upon the existing pleadings concerning the HUF. Challenge was to the sale effected by defendant No.1 of the property at Faridabad and that too without proposing to implead the purchaser. The challenge was on the ground that the property belonged to HUF. 9. It thus has to be seen whether actionable pleadings have been made in the plaint qua the claim. 10. In Chander Sen's case (supra), the Supreme Court held that after the promulgation of the Hindu Succession Act, 1956, the traditional view under the Hindu L....
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.... 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." 11. In the decision reported as JT 2012 (3) SC 451 Maria Margardia Sequeria Fernandes & Ors. v. Erasmo Jack de Sequeria (dead) Thru LRs, the facts of the case were that the appellant No.1 and respondent No.1 therein were brother and sister. The respondent No.1 had filed a suit under Section 6 of the Specific Relief Act, 1963 against the appellant No.1 seeking grant of a decree of permanent and mandatory injunction in his favour in respect of the suit property. In the plaint filed, it was alleged by respondent No.1 that he remained in possession of the suit property for several years by virtue of a family arrangement; his sister, appellant No.1 had dispossessed him from the suit property without following the due process of law and thus the possession of the suit property should be restored to him. On the other hand, appellant No.1 contended that she is the rightful owner of the suit property and had given possession of th....
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....le claim for relief survives a motion to dismiss'. 13. In the decision reported as 2011 (6) SCALE 677 Ramrameshwari Devi vs.Nirmala Devi in para 52(a) the Supreme Court highlighted that pleadings are foundation of the claim by a party and it is the bounden duty and obligation of every trial Judge to carefully scrutinize the pleadings and the documents on which the pleadings are predicated. In the decision reported as AIR 1999 SC 1464 D.M.Dehpande vs. Janardhan Kashinath Kadam, the Supreme Court highlighted the relevance of pleading material facts. In the decision reported as AIR 1982 Bom. 491 Nilesh Construction Co. vs. Gangu Bai, with reference to a plea of tenancy, the Bombay High Court highlighted that pleadings must disclose the details with reference to the day when the tenancy was created and the exact nature thereof. In the decision reported as AIR 2006 SC 1828 Mayar (HK) Ltd. & Ors. vs. Owners & Parties Vessel MV Fortune Express, the Supreme Court highlighted the requirement to read pleadings meaningfully in view of the relied upon documents and see whether the same are not illusory or vexatious. 14. On November 21, 2011 this Court while deciding RFA (OS) 78/2011 P.K.....
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.... Rajinder Nagar was purchased by the grandfather of the appellant from out of the funds of the firm M/s Gian Singh Sukhdev Singh which was set up by the late grandfather of the appellant and that the funds for the business came from the properties left behind in Pakistan. No details or particulars of the properties left behind at Pakistan have been pleaded. We take judicial notice of the fact that post-partition, people who migrated to India from the territories of the newly State of Pakistan were required to file claims before the custodian of evacuee properties and upon proof of properties left behind in Pakistan, compensations were assessed. These people were treated as refugees and either money or an immovable property was allotted to these refugees by the Ministry of Rehabilitation, Government of India. In the plaint the lack of pleadings to said effect cannot be overlooked. There is thus a bald assertion without any material particulars regarding the firm M/s Gian Singh Sukhdev Singh being set up by the great grandfather of the appellant. The appellant has himself filed documents, and one of which is an income-tax assessment order for the Assessment Year 1957-58 concerning th....