TaxTMI 
TaxTMI 
2020 (5) TMI 752
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....cordance with the admitted position as to title through documents, there should be no impediment to a decree for partition being passed immediately. It was however further felt that the counsels should have an opportunity to address the Court on the said aspect. Accordingly, the framing of issues was deferred to 20th November, 2019 and on which date the counsels were heard and order on framing of issues deferred. 2. The suit has had a chequered history, as also evident from the fact that in spite of having been pending for over ten years, issues even have not been framed as yet. 3. The suit was originally instituted by Niti Jain (Niti) against (i) Ram Kali Jain (Ram Kali), (ii) Shruti Jain (Shruti), (iii) Pramod Kumar Jain (Pramod), (iv) Sunil Jain (Sunil), (v) Ramesh Kumar Jain (Ramesh) and (vi) Raj Kumar Jain (Raj Kumar). It was the case of Niti, that (a) Niti, (b) Ram Kali and Shruti together, (c) Pramod and (d) Sunil had 1/4th share each in the property and Ramesh and Raj Kumar were impleaded, being tenants in the property. Pramod and Sunil, in their written statements, supported the claim of Niti to the extent of the share of different parties in the property. However Ra....
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....er hand, that (a) all the members of the joint family have not been impleaded as parties to the present suit and the suit is thus not maintainable; (b) the suit is not also maintainable being for partial partition of properties of HUF; there are other various properties and businesses of the joint family which also need to be included in case partition is to be effected; (c) the parties to the suit are descendant's of Uddham Singh Jain who was the Chairman of Municipal Committee of Charkhi Dadri, Haryana and had lot of assets in the shape of agricultural land and properties; (d) Uddham Singh Jain had four sons viz. R.N. Jain, J.R. Jain, S.R. Jain and N.L. Jain; (e) J.R. Jain, some time in the year 1942-43, started family business with his father Uddham Singh Jain, of manufacture of electric stoves, in Delhi; they made good fortune and entered into other businesses; (f) J.R. Jain was very energetic and enthusiastic and in 1948 shifted to Assam for exploiting the business opportunities there; (g) as the business was expanding R.N. Jain, S.R. Jain and N.L. Jain also joined the family business; (h) as the business expanded even further, various companies like Jain Steel Fabricators Pvt....
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....6, Friends Colony (West), Delhi; and, (iii) similar transactions of "so called rent" were created in favour of various companies like Jain Export Pvt. Ltd., Ajanta Tubes and Pashupati Spinning and Weaving Mills Ltd. which otherwise belonged to Raj Kumar and Ramesh; (n) J.R. Jain, being the head of his branch of the family, continued to deal with the property with all authorities including MCD on behalf of all those in whose name the sale deed of the property may have existed; (o) disputes started arising amongst the family members in 2005; (p) when J.R. Jain confronted his brothers in this regard, they apologized for their behavior and the matter rested; (q) however on demise of R.N. Jain on 2nd May, 1997 again disputes started; (r) Mukesh Jain, son of J.R. Jain expired on 31st July, 1997; to assure his wife, Ram Kali transferred 12.5% out of her 25% share in the subject property in favour of his widow Shruti by way of Gift Deed; and, (s) J.R. Jain and his family have been using the property and have been making additions, alterations and constructions therein. This narrative has been given from the written statement of Ram Kali and Ramesh. Though in the written statement of Raj Ku....
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....ere is no impediment to passing a decree for partition as per the title documents and whereunder (i) Niti, (ii) Promod, (iii) Sunil and (iv) Ram Kali and Shruti together, have 1/4th undivided share each in the property and a preliminary decree for partition can follow. 11. The law with respect to framing of issues and HUF has been dealt with repeatedly, not only by me on earlier occasions but also in a large number of other judgments. 12. Reference on the aspect of framing of issues can be made to: (a) Precision Steels Vs. Reeta Salwan (2013) 205 DLT 695 holding (i) it is not as if the CPC requires all matters to be decided only after trial, unless admissions are made; (ii) issues are to be framed on material propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence; (iii) where parties are found not in issue on any question of law or fact, Order XV requires the Court to at once pass judgment; (iv) if on a meaningful, not formal reading, the pleading is found to be manifestly vexations and meritless, not disclosing a right to sue or defend and implausible, the Court should e....
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.... (c) Adarsh Kumar Puniyani Vs. Lajwanti Piplani 2015 SCC OnLine Del 14022, in addition holding that in the absence of particulars viz. date, mode and terms of creation of tenancy, in the pleadings, an issue, on bare claim of tenancy ought not to have been framed that that a bogey of a legal defence should not be permitted to prevail. (d) Abbott Healthcare Pvt. Ltd. Vs. Raj Kumar Prasad (2018) 249 DLT 220 holding that a mere plea of invalidity (of registration of trade mark) in the pleading would not be enough to raise an issue of invalidity, without satisfying the Court that the said plea is prima facie tenable and for which specific averments will ought to be made in the pleadings. (e) Anil Kumar Vs. Devender Kumar 2019 SCC OnLine Del 8782, holding that (i) framing of omnibus issues with respect to the reliefs claimed, is in violation of Order XIV Rule 1(3) of the CPC which requires distinct issues to be framed on each material position affirmed by one party and denied by the other party; such omnibus issues do not cull out the material proposition of fact or law on which the parties are at variance and do not tell the Court the issues on which the right....
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....or a case for claiming a share in the property otherwise than under the Hindu Succession Act, it has to be pleaded that there existed a HUF since prior to the coming into force of the Succession Act and which HUF, by virtue of Section 6 of the Act has been permitted to be continued. (ii) Surender Kumar Vs. Dhani Ram AIR 2016 Del 120 holding as under: "5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen, (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 v. 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 1956 does not create an HUF proper....
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....ails 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. 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 Hi....
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....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 any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the ....
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....w attention to page 136 of Part-1A, Volume-II file, being the family tree commencing from Uddham Singh Jain and ending with the wives, children and grandchildren of the sons of Uddham Singh Jain; (b) drew attention to the written statement of Raj Kumar, where the history as aforesaid from J.R. Jain along with his father Uddham Singh Jain commencing business and subsequently other sons of Uddham Singh Jain joining the said business, is pleaded; (c) contended that each of the business and each of the properties owned by the family has a member / representation from the family of each of the four sons of Uddham Singh Jain; (d) contended that the oral family settlement arrived at was implemented through execution of Gift Deeds inter se family members; (e) contended that such conduct of the members of the family demonstrates a family settlement and which will be proved during trial; (f) contended that, it is for the reason of said family settlement only that J.R. Jain's family is in exclusive occupation of the subject property at 26, Friends Colony (West), Delhi and similarly the families of the other three sons of Uddham Singh Jain are also in exclusive occupation of other properties s....
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....sel / counsel for the contesting defendants, how the property, once purchased by four persons, even if of the same family, became the property of any HUF and whether not under the law i.e. the Transfer of Property Act, 1882, in the absence of any specification of respective shareholding, all four purchasers are co-owners of the property. It was also enquired from the senior counsel / counsel for the contesting defendants that if the four family members representing each of the four branches of the four sons of Uddham Singh Jain were not the absolute owner of one-fourth undivided share in each of the property, in their personal individual capacity and joined the purchase merely as members of HUF, with the property being of the HUF, how could they execute Gift Deeds in favour of others, representing in the said Gift Deeds to be the sole absolute owner of one-fourth share, of which the sale deed dated 14th November, 1978 stood in their name. I may in this regard notice that the Gift Deeds filed by the plaintiffs as well as the Gift Deeds filed by the contesting defendants have been executed by the executants thereof representing to be the sole absolute owner of the share in the proper....
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....ment; and, (iii) a family arrangement can, as a matter of law, be implied from long course of dealing between the parties. 26. Attention of the senior counsel for the contesting defendant was drawn to Rama Nand Vs. Roop Ram 2018 SCC OnLine Del 10186, Pushpa Saroha Vs. Mohinder Kumar 157 (2009) DLT 425, Satender Kumar Jain Vs. Nirmal Jain 2019 SCC OnLine Del 8414, Kalpana Palupuri Butta Vs. Pritendra Kumar Butta 2018 SCC OnLine Del 10716 and Harvinder Singh Chadha Vs. Saran Kaur Chadha 2014 SCC OnLine Del 3413 (DB) holding that under a family settlement shares of each of the member of the family in different properties of the family can be increased, decreased or relinquished in favour of another member already having a share in that property, without a registered document but under a family settlement even if in writing but not registered, right in immovable property cannot be transferred from one family member to another family member who earlier did not have any right in that property. Thus, for the property subject matter of this suit i.e. property No.26, Friends Colony (West), Delhi to be dealt with under a family settlement, it was essential that the family members to whose....
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....losure of all assets including the assets in the name of third party or held benami including ornaments by taking oath. From the dates under some of the purported signature, it is also clear that the at least between 13th October, 1988 and 13th August, 1992 the division as envisaged had not taken place. The contesting written statements also do not give any date of settlement. Had anything been orally decided amongst the four brothers with the blessings of the father, as pleaded in the contesting written statements, a date on which the said oral settlement would have been pleaded. No date, month or year of the oral family settlement has been pleaded. Merely because those carrying on business as proprietors, partners, shareholders, Directors through the vehicle of partnership firm and company are family members, does not convert the business into a family business or business of an HUF. Law, besides sole proprietary firm, partnership firm, private limited companies and public limited companies, also recognizes a joint Hindu family trading firm and which is not governed by the Partnership Act, 1932 or the Companies Act. 1956. The business carried on by the Jain family, to qualify in ....
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....ily trading firm. Considering the wealth of the family as evident from the pleadings, it is surprising that there is not a whisper of any income tax return filed at any point of time of any HUF or of the assets held by the HUF. In the absence of any such plea, it has but to be inferred that each of the family members was being assessed for income in their personal individual capacity and not as members of any HUF. Moreover whatever was owned by Uddham Singh Jain, on his death, in the absence of any Will, would be inherited by his widow, sons and daughters and not by his grandchildren. Though the date of demise of Uddham Singh Jain is not pleaded but it is obvious from the pleadings that he died post coming into force of Hindu Succession Act. The document filed by Ram Kali and Ramesh along with their written statement refers to properties held benami. If any of the properties are held benami, they are liable to be acted upon under the Prohibition of Benami Property Transactions Act, 1988 and to be confiscated. 29. The question which arises for consideration is, whether the Courts today can permit litigants coming before it to take a stand before the Court different from that they....