TaxTMI 
TaxTMI 
2016 (1) TMI 1500
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....e suit for lacking the necessary ingredients of law as required for existence of HUF and its properties and since the ratio of that judgment would be directly applicable in the present case, at the outset let me reproduce the relevant paras of that judgment as under : "I.A. No. 17622/2012 (filed by defendant no. 1 under Order VII Rule 11 CPC) & CS (OS) No. 1737/2012 1. This application is filed by the defendant no. 1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for dismissal of the suit on the ground that the suit plaint does not disclose the cause of action. In the application it is averred that the suit plaint does not show existence of the legal cause of action as the plaintiff is only a grandson of late Sh. Jage Ram who owned the property and thus not a class I legal heir, and since there are already the sons of late Sh. Jage Ram who are class I legal heirs (including defendant no. 1/applicant who is the father of the plaintiff), and who are alive, plaintiff cannot lay any claim to the properties of late Sh. Jage Ram. It is further averred in the application that the properties of late Sh. Jage Ram were not Hindu Undivided Family (HUF) pr....
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.... of late Sh. Jage Ram, plaintiff is entitled to his share as a coparcener in the aforesaid suit properties on the ground that the properties when they were inherited by late Sh. Jage Ram were joint family properties, and therefore, status as such of these properties as HUF properties have continued thereby entitling the plaintiff his rights in the same as a coparcener. 5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (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 Vs. 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 1....
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....C which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to 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. 8. The relevant paragraphs of the judgment in the case of Sunny (Minor) (s....
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....nder Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." 7(i). As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father or grandfather or great gr....
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....property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter. 8(i). A reference to the plaint shows that firstly it is stated that Sh. Tek Chand who is the father of the defendant no. 1 (and grandfather of Sh. Harvinder Sejwal and defendants no. 2 to 4) inherited various ancestral properties which became the basis of the Joint Hindu Family properties of the parties as stated in para 15 of the plaint. In law there is a difference between the ancestral property/properties and the Hindu Undivided Family property/properties for the pre 1956 and post 1956 position as stated above because inheritance of ancestral properties prior to 1956 made such properties HUF properties in the hands of the person who inherits them, but if ancestral properties are inherited by a person after 1956, such inheritance in the latter case is as self- acquired properties unless of course it is shown in the latter case that HUF existed prior to 1956 and continued thereafter. It is nowhere pleaded in the plaint that when did Sh. Tek Chand father of Sh. Gugan Singh expire because it is only if Sh. Tek Chand father of Sh. Gugan Singh/defendant no. 1 ....
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....ndu Undivided Family before 1956 existed and this HUF owned properties include the property bearing no. 93, Village Adhichini, Hauz Khas. However, a reference to the affidavit by way of evidence filed by PW1 does not show any averments made as to any HUF existing of Sh. Tek Chand, whether the same be pre 1956 or after 1956. Only a self-serving statement has been made of properties of Sh. Gugan Singh being 'ancestral' in his hands, having been inherited by him from Sh. Tek Chand, and which statement, as stated above, does not in law mean that the ancestral property is an 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 unnecessari....
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....dividual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-Section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision 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 an....
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.... paras 2 to 10 and which read as under: "2. That defendant no. 1, father of the plaintiff initially started business in partnership with defendant no. 3 Madan Lal Khurana in the name and style M/s. Khurana Traders from a tenanted premises Opposite Shop No. 217, Behind Shri Gauri Shankar Temple, New Lajpat Rai Market, Chandni Chowk, Delhi-110006, in as early as 1980 and subsequently the plaintiff was also called and joined in the said business in the next couple of years. At that time it was agreed between the defendants and plaintiff that they being the Joint Hindu Family Members of Shri Tilak Raj Khurana, Hindu Undivided Family of which Sh. Tilak Raj Khurana defendant No. 1, being father and head of the family and plaintiff, defendants No. 3 & 4 being sons, shall be other family members thereof, and all male members including father/head of the family, would contribute and put their best efforts in the said and/or the other businesses, which may be established time to time in the different names, under different- different partnerships and different places and whatever they will earn and made from the earnings made from such business and/or the assets generated their from....
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....ng looked after by Sh. Tilak Raj Khurana and Sh. Sanjay Khurana - defendants no. 1 and 4 respectively. Another firm is being run under the name and style of M/s. Khurana Associates, at Shop No. 205, New Lajpat Rai Market, Delhi-110006. The said shop was purchased in the name of Sh. Tilak Raj Khurana. The same is in possession of and being looked after by Sh. Surender Khurana, plaintiff herein. The third shop No. 267, New Lajpat Rai Market, Delhi-110006, comprising of basement, ground, first and second floors, is being run under the trade name and style of M/s. KHurana Sale Corporation. The said property was purchased in the name of Sh. Surender Khurana, plaintiff herein and Sh. Madan Lal Khurana, defendant no. 3. 5. The prior to 1980, there was no property in the name of plaintiff and the defendants. The business was started in the year 1980 by the plaintiff and defendants No. 1 and 3. 6. That from the income i.e. the joint funds received from the different shops since 1980 onwards, different properties as mentioned hereunder were acquired and purchased in different names of the family members and are joint properties having been purchased from the joint funds of ....
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.... 3 herein, is in possession and user with his family members of First Floor, and half portion of basement and Sh. Surender Khurana-plaintiff, with his family members is in possession and user of ground floor and half portion of basement. The approx. value of the above built up property is about Rupees Six crores. vi) Residential Built up Property/Flat in Sai Cooperative Society, situated at Rohini, Delhi, in the name of Sh. Madan Lal Khurana defendant No. 3, purchased in the year 1981. Sh. Tilak Raj Khurana, defendant No. 3 herein, is in possession thereof. The approx. value of the above flat is about Rs. 75,00,000/- (Rupees Seventy Five lacs). vii) Residential built up property/flat in Sai Cooperative Society, situated at Rohini, Delhi, in the name of Smt. Santosh Khurana defendant no. 2, purchased in the year 1981. Sh. Tilak Raj Khurana, defendant no. 1 herein, is possession. The approx. value of the above flat is about Rs. 75,00,000/- (Rupees Seventy Five Lacs). viii) One plot at Rajender Nagar, Ghaziabad (UP) admeasuring 650sq.yds., acquired in the name of Smt. Santosh Khurana, defendant no. 2 in the year 1987, which was sold on or about 2001 for an a....
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.... sale value of the property is Rs. 11,22,400/- (Rupees Eleven Lacs, Twenty Two Thousands, Four Hundred). As on date the value of the same is more than Rs. 25,00,000/- (Rupees Twenty Five lacs). xiii) One property plot area 300 sw. meters had been purchased by defendant no. 1, either in his own name or in the name of Smt. Santosh Khurana or Sh. Sanjay Khurana, defendant no. 4, at manesar, Gurgaon (Haryana). Approx. value of the property is Rs. 45,00,000/- (Rupees Forty Five Lacs). xiv) One property plot area 300 sq.meters had been purchased by defendant no. 1, either in his own name or in the name of Smt. Santosh Khurana or Sh. Sanjay Khurana, defendant no. 4, at Kundli, Sonepat (Haryana). Approx. value of the said property is Rs. 35,00,000/- (Rupees Thirty Five Lacs). It is submitted although, the plaintiff is in legal possession of the aforesaid joint family properties, yet he is also in actual physical and symbolical possession. 7. That Shop No. 267, New Lajpat Rai Market, Delhi- 110006, comprising of basement, ground, first and second floors, under the joint names of Sh. Surender Khurana plaintiff and Sh. Madan Lal Khurana, defendant no. 3. Th....
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....tio of the judgment in Sh. Surender Kumar's case (supra), the aforesaid averments made in paras 2 to 10 of the plaint cannot be said to be the legal and factual averments required to be made for existence of a cause of action with respect to HUF and its properties. There are three firms as per the plaint being M/s. Khurana Traders, M/s. Khurana Associates and M/s. Khurana Sales Corporation. Qua the firm M/s. Khurana Traders as per the averments made in para 2 of the plaint, plaintiff is admittedly not a partner. Though plaintiff claims to be a partner in M/s. Khurana Associates and M/s. Khurana Sales Corporation, no details are stated in the plaint as to under which partnership deed (of which date) plaintiff claims to be a partner of any of these firms. In a case such as the present, besides ipse dixit of the plaintiff being a partner, it is necessary in law as per Order VI Rule 4 of the Code of Civil Procedure, 1908 (CPC) to make specific reference to the partnership deed as per which plaintiff is a partner in M/s. Khurana Associates and M/s. Khurana Sales Corporation. This however has not been done and the plaint is conspicuously silent in this regard. 5. It is also seen t....
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....This Court notes that the properties at serial nos.(c), (f) and (g) being of 200 sq. yds plot in Ber Sarai Extension, New Delhi, Ballabhagarh in Faridabad and Kotputli, Rajasthan are wholly vague and without any details of the municipal numbers or agricultural khasra numbers and therefore it cannot be said that any of the said three properties exist, and are thus available for partition. The defendants have further denied that the defendants have ever owned even a single flat, much less four flats, at Village Adhichini, Hauz Khas, New Delhi as mentioned at serial no.(e) of para 15 of the plaint. This Court further observes that the details given of even the last two properties in para 15 of the plaint being vehicles and personal belongings including bank accounts are again wholly vague and are thus incapable of being understood and hence partitioned, because what are the bus and tempo numbers are not stated and nor are the bank accounts details given of the alleged accounts in Allahabad Bank and Punjab National Bank and there is no proof on record that these properties are in the name of defendant no. 1 or in the name of any member of the family. Therefore, qua all such vague/non-e....