2024 (6) TMI 716

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.... to 4, 26, 37, 38, 54 & 56 ORDER The Court : GA 3 of 2023 is filed by the Defendant No. 9 praying for rejection of plaint. A short recital of the plaint case is needed first. The suit is instituted by the Plaintiff praying for declaration of rights; partition by metes and bounds along with other prayers. The Plaintiff and Defendant No. 1, 5, 9 and 13 are daughter and sons of Late Jaichand Lal Pasari; Defendant No. 2, 6 and 10 are daughters-in-laws of Late Jaichand Lal Pasari whereas Defendant No. 3, 4, 7, 8, 11 and 12 are grand-children of Late Jaichand Lal Pasari. Defendant No. 14 to 18 are the sons and daughters of the deceased daughter of Late Jaichand Lal Pasari since deceased. All are governed by Mitaksara School of Law, it is cont....

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....rred under any law for the time being in force. Secondly, the plaint discloses a cause of action which rules out scope of any demurer application. Thirdly, the Defendants are brothers, their family members of the Plaintiff while the other juristic entities are all companies which were constituted and developed with family fund either by Late Jaichand Lal Pasari or by taking out of family nucleus by the brothers of the Plaintiff; these brothers have usurped not only money from family corpus but also the companies which the Plaintiffs have equal share being daughter of Late Jaichand Lal Pasari. It is stated that behind her back the properties were dealt with or without giving a single farthing out of such property or state. It is further stat....

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....he documents, appended thereto, failed to disclose existence of a joint family or joint family property which further failed to disclose any cause of action of the suit. The Learned Counsel referred to Dahiben Vs. Arvindbhai Kalyanji Bhanusali (Dead) through Legal Representative and Ors. [(2020) 7 SCC 366]. Thirdly, it is argued that the present suit is barred by the provisions of the Companies Act, 2013. According to Mr. Bose, Section 430 of the Companies Act, 2013 puts an embargo in the institution of the suit. This apart, it is opposed to the fundamental principle of companies jurisprudence that the assets of the companies belonged to the joint family. Properties of a company belong to the company itself; a claim of the company's propert....

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....properties, sought to be partitioned, include immovable properties mentioned in Schedule 'B' of the plaint, as well as movable properties and companies registered under the Companies' Act 2013. Whether the companies can be subject matter of partition is a questionable issue. But there are immovable properties too. It is argued that the plaint failed to disclose genesis of the joint family fund or any particulars on it. Whether the properties were purchased out of joint family fund or not and the question of jointness of movable and immovable properties are question of fact to be established in trial. It is too early to say at this stage, that the suit does not disclose cause of action. Joint fund is averred in the plaint, as stated above; p....