RFA No.852/2017 Page 1 of 15
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 852/2017
% 10th October, 2017
LALSA PRASAD SINGH ..... Appellant
Through: Mr. Bipin Kumar Jha, Advocate.
versus
CHANDERWALA & ANR. ..... Respondents
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. Nos. 36273-74/2017 (for exemptions)
Exemptions allowed, subject to all just exceptions.
The applications stand disposed of.
C.M. Appl. No. 36275/2017 (for exemption)
Exemption allowed, subject to all just exceptions. On receipt of
certified copy of the judgment, the same be filed in this Court.
The application stands disposed of.
C.M. Appl. No. 36272/2017 (for delay)
This is an application seeking condonation of delay of 37 days
in filing the appeal.
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For the reasons stated in the application the same is allowed and
the delay of 37 days in filing the appeal is condoned.
C.M. stands disposed of.
RFA No. 852/2017
1. This Regular First Appeal under Section 96 Code of Civil
Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning
the judgment of the trial court dated 27.4.2017 by which the trial court
has dismissed the suit as being barred by the Benami Transactions
(Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟).
The suit has been dismissed by rejecting the plaint at the stage of
pleadings and without evidence having been led by the parties.
2. The property in dispute is plot no. 37A, Khasra no. 164,
Revenue Estate, Village Dindarpur, Delhi, also known as Shyam
Vihar, Block E, Najafgarh, Delhi. The plot area is 75 sq. yards.
Appellant/plaintiff as per the plaint pleaded that though the suit
property was purchased by means of usual documentation being the
Agreement to Sell, Power of Attorney, Will, possession letter, etc
dated 6.7.2002 in the names of the wives of his nephews, being the
defendants, but it was the appellant/plaintiff who had paid the
complete consideration amount from his own funds. It was pleaded
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that the appellant/plaintiff and respondents/defendants were members
of a Joint Hindu Family and therefore out of love and affection the
documents dated 6.7.2002 were executed in the names of the wives of
the nephews of the appellant/plaintiff being the defendants in the suit.
Accordingly, in the suit reliefs of declaration, partition, permanent
injunction, etc with respect to the suit property were prayed.
3. The trial court has by the impugned judgment dismissed
the suit by placing reliance upon Sections 3 and 4 of the Benami Act.
The relevant paras of the judgment of the trial court are paras 5 to 11
and 13 and which paras read as under:-
“5. Section 3 of BTA prohibits benami transactions and reads as
under:-
“(1) No person shall enter into any benami transaction.
(2) Nothing in this sub-section (1) shall apply to the purchase of the
property 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.
(3) Whoever enters to any benami transaction shall be punishable with
imprisonment for a term which may extend to three years or with fine or
with both.
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, an offence under this section shall be non-cognizable
and bailable.”
6. Section 4 of BTA, reads as under:-
“(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 to 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.
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(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
the benefit of the coparceners in the family.
(b) where the person in whose name the property is held is a trustee or
other person standing in a fiduciary capacity, and the property is held
for the benefit of another person for whom he is a trustee or towards
whom he stands in such fiduciary capacity.”
It is apparent that as per clause (1) of section 4 of BTA, no suit 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 on the plea
that the property is held benami, with the exception that where the person, in
whose name the property is held, is a „coparcener‟ in the Hindu Undivided
Family and the property is held for the benefit of the coparceners of the
property or where the person in whose name the property is held is a trustee
or stands in a fiduciary capacity to another.
7. From a reading of Section 4 of the Act, it is obvious that for a valid
claim raised by the plaintiff, to bring the case in the exception provided in
clause (a) of sub-Section (3) of Section 4 of the BTA, following three
requisites are essential to be pleaded:-
(i) Existence of a Hindu Undivided Family;
(ii) Defendants in whose name the suit property are held, are a
coparceners of the said Hindu Undivided Family; and
(iii) Suit property is held by the defendants for the benefit of the
coparceners in the family.
8. In the instant case, the defendants are the wives of the nephew of
the plaintiff and thus they are not the coparceners under the definition of
Hindu Undivided Family and thus exception carved out by the BTA is not
available to the plaintiff in the present case as the exception contained in
Section 4 (3) (a) of the BTA restricts its benefits only to property held by a
coparcener in a Hindu Undivided Family as opposed to any „Member‟ of
such family. It is so, because coparceners are recognized by law to jointly
by birth inherit rights in the joint property of the family property and in the
event such property stands in one of their names for the benefit of others, the
BTA is declared to not come in the way. Such benefit however cannot be
extended to all/any members of such family who do not have any vested
right in the property. The plaintiff, being the brother of deceased father in
law of the defendants is not a coparcener in the Hindu Undivided Family of
his deceased brother. In view of the fact that requisite (ii) noted above is not
fulfilled, exception contained in Section 4(3)(a) of the Act has no
application in the instant case.
9. Now it has to be seen whether the case of the plaintiff is covered
under the second exception relating to plea of benami ownership contained
in Section 4(3)(b) of BTA. For the suit/claim of a plaintiff to fall in the
exception provided in clause (b) of sub-Section (3) of Section 4 of BTA, the
plaintiff has to plead/establish that:-
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(i) Defendants in whose name the suit property is held are trustees or
are otherwise standing in a fiduciary capacity towards the plaintiff; and
(ii) Suit property is held by the defendants for benefit of plaintiff for
whom they are trustees or towards whom they stand in a fiduciary
capacity.
10. The pleadings made in the plaint by the plaintiff as noted above do
not contain even a whisper that the defendants in whose name the suit
property is held are trustees or were otherwise standing in a fiduciary
capacity towards the plaintiff and suit property was held by them for benefit
of plaintiff for whom they, are the trustee or towards whom they stands in a
fiduciary capacity.
11. In view of the fact that there are no averments in the plaint to bring
the claim raised by the plaintiff within the exception provided by clause (b)
of sub-Section 3 of Section 4 of BTA, Section 4(3)(b) of BTA does not save
the claim raised by the plaintiff from being barred in law.
XXXXX XXXXX XXXXX
13. In view of the aforesaid settled law, the defendants in whose names
the suit property stands as per the pleadings of the plaintiff himself, they are
absolute owners of the suit property by virtue of section 14(1) of Hindu
Succession Act, 1956. The plaintiff himself has pleaded in his plaint that
the suit property was purchased in the names of wives of his nephew out of
love and affection and if such fact is admitted in the plaint itself, it is not
necessary for this court to go on trial to find out the fact or to lift the veil to
come to the conclusion which is necessary for the parties by determining the
question raised in the plaint. In my considered opinion once the plaintiff has
admitted in his pleadings that the property had been purchased for the
benefit of the defendants, he cannot be turned around at this stage and file a
suit claiming himself as real owner/co owner of the property in question.
Accordingly, I hold that the suit filed by the plaintiff is barred under BTA
and Order 7 Rule 11(d) CPC and thus the same is accordingly rejected.
Ordered accordingly. File be consigned to record room.”
(underlining added)
4. I completely agree with the conclusions of the trial court
contained in the impugned judgment, inasmuch as, there is no
entitlement to claim a right in a property which is benami by virtue of
Section 4(1) of the Act. Benami property means a property which is
purchased in the name of one person and funds are paid for purchase
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by another person with the intention that the benami owner is only a
nominal owner and the actual owner is the person who has paid the
funds. The Benami Act was passed in the year 1988 to nullify benami
transactions as most of the benami transactions had their roots in
illegalities, including existence of unaccounted or illegal moneys. The
only two exceptions to the bar contained in Sub-Sections (1) and (2) of
Section 4 of the Benami Act are as per Section 4 (3) of the Benami
Act when firstly where there exists an Hindu Undivided Family (HUF)
and the property is in the name of a coparcener and secondly where
the property is purchased by a person standing in a fiduciary capacity
or as a trustee. In the present case the exception which is pleaded by
the appellant/plaintiff to avoid the application of the provision of
Section 4(1) of the Benami Act is the existence of HUF and which
will not apply because respondents/defendants being females are not
coparceners and the exception under Section 4(3) of the Benami Act
applies if the property claimed to be an HUF is in the name of a
coparcener.
5. Appellant/plaintiff as per the plaint pleads and has
invoked the mantra of Joint Hindu Family on the ground that parties
are residing together. In law, however, such pleadings do not make a
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cause of action of existence of an HUF. HUF is a concept and HUF
property is a property belonging to an HUF having a particular colour.
After passing of the Hindu Succession Act, 1956 if a male person
inherits the property from his paternal ancestors upto three degrees
above then such inheritance is not an HUF property in the hands of the
person who inherits the same and as held by the Supreme Court in the
judgments in the case of Commissioner of Wealth Tax, Kanpur and
Others Vs. Chander Sen and Others, (1986) 3 SCC 567 and
Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204. In these judgments
the Supreme Court had held that the traditional concept of Hindu Law
of a male person when he inherits a property from his paternal
ancestors then in such a case the inherited property becomes an HUF
property is a concept which no longer prevails after passing of the
Hindu Succession Act. HUF therefore comes into existence only if a
person inherits the property from his male ancestor prior to passing of
the Hindu Succession Act, 1956 or if HUF is created after the passing
of Hindu Succession Act by a person throwing his self-acquired
property/individual property in common hotchpotch. In the present
case, there is no pleading of the appellant/plaintiff having inherited the
suit property prior to the year 1956 and therefore the only case is of
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existence of HUF after the year 1956 and which could have accrued
only if there was a specific pleading of throwing of the individual
property of the appellant/plaintiff into common hotchpotch and which
is not so.
6. Proper pleading of existence of HUF is all the more so
required in the present case because the HUF which is pleaded to exist
is not of the appellant/plaintiff and his immediate family members
being his wife or his sons or the wives of his sons, inasmuch as, the
respondents/defendants are the wives of the nephews of the
appellant/plaintiff. In such extended degree relationship not within the
family an HUF does not come into existence merely by uttering a
mantra of there being a Joint Hindu Family or Hindu Undivided
Family. What are the requirements of an HUF and how an HUF
property comes into existence has been dealt with by this Court, after
referring to the ratios of the judgments of the Supreme Court in the
cases of Chander Sen (supra) and Yudhistir (supra), in the case of
Surender Kumar Vs. Dhani Ram and Others, 227 (2016) DLT 217.
The relevant paras of the judgment in the case of Surender Kumar
(supra) are paras 5 to 12 and which paras read as under:-
“5. The Supreme Court around 30 years back in the judgment in the
case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander
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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 1956 does
not create an HUF property and inheritance of ancestral property after
1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the cases of Chander
Sen (supra) and Yudhishter (supra), in law ancestral property can only
become an HUF property if inheritance is before 1956, and such HUF
property therefore which came into existence before 1956 continues as
such even after 1956. In such a case, since an HUF already existed prior
to 1956, thereafter, since the same HUF with its properties continues, the
status of joint Hindu family/HUF properties continues, and only in such
a case, members of such joint Hindu family are coparceners entitling
them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e before passing
of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the
Hindu Succession Act, 1956, the same has been considered by me
recently in the judgment in the case of Sunny (Minor) & Anr. vs. Sh.
Raj Singh & Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this
judgment, I have referred to and relied upon the ratio of the judgment of
the Supreme Court in the case of Yudhishter (supra) and have
essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956
and there is no HUF existing at the time of the death of such a person,
inheritance of an immovable property of such a person by his
successors-in-interest is no doubt inheritance of an „ancestral‟ property
but the inheritance is as a self-acquired property in the hands of the
successor and not as an HUF property although the successor(s) indeed
inherits „ancestral‟ property i.e a property belonging to his paternal
ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu
family can come into existence after 1956 (and when a joint Hindu
family did not exist prior to 1956) is if an individual‟s property is
thrown into a common hotchpotch. Also, once a property is thrown into
a common hotchpotch, it is necessary that the exact details of the
specific date/month/year etc of creation of an HUF for the first time by
throwing a property into a common hotchpotch have to be clearly
pleaded and mentioned and which requirement is a legal requirement
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because of Order VI Rule 4 CPC 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 selfacquired
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) (supra) are paragraphs 6 to 8 and which paras read as under:-
“6. At the outset, it is necessary to refer to the ratio of the judgment of
the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987)
1 SCC 204 and in para 10 of the said judgment the Supreme Court has
made the necessary observations with respect to when HUF properties
can be said to exist before passing of the Hindu Succession Act, 1956 or
after passing of the Act in 1956. This para reads as under:-
‘10. This question has been considered by this Court in Commissioner of
Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors.
MANU/SC/0265/1986MANU/SC/0265/1986 : [1986]161ITR370(SC)
where one of us (Sabyasachi Mukharji, J) observed that under the Hindu
Law, the moment a son is born, he gets a share in father's property and
become part of the coparcenary. His right accrues to him not on the
death of the father or inheritance from the father but with the very fact of
his birth. Normally, therefore whenever the father gets a property from
whatever source, from the grandfather or from any other source, be it
separated property or not, his son should have a share in that and it will
become part of the joint Hindu family of his son and grandson and other
members who form joint Hindu family with him. This Court observed
that this position has been affected by Section 8 of the Hindu
Succession Act, 1956 and, therefore, after the Act, when the son
inherited the property in the situation contemplated by Section 8, he
does not take it as Kar of his own undivided family but takes it in his
individual capacity. At pages 577 to 578 of the report, this Court dealt
with the effect of Section 6 of the Hindu Succession Act, 1956 and the
commentary made by Mulla, 15th Edn. pages 924-926 as well as
Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied
on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages
918-919. This Court observed in the aforesaid decision that the views
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expressed by the Allahabad High Court, the Madras High Court the
Madhya Pradesh High Court and the Andhra Pradesh High Court
appeared to be correct and was unable to accept the views of the Gujarat
High Court. To the similar effect is the observation of learned author of
Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it
would be difficult to hold that property which developed on a Hindu
under 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.”
(emphasis is mine)
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 grandfather then the property in his hand
was not to be treated as a self-acquired property but was to be treated as
an HUF property in which his son, grandson and great grandson had a
right equal to „A‟. After passing of the Hindu Succession Act, 1956, this
position has undergone a change and if a person after 1956 inherits a
property from his paternal ancestors, the said property is not an HUF
property in his hands and the property is to be taken as a self-acquired
property of the person who inherits the same. There are two exceptions
to a property inherited by such a person being and remaining selfacquired
in his hands, and which will be either an HUF and its properties
was existing even prior to the passing of the Hindu Succession Act, 1956
and which Hindu Undivided Family continued even after passing of the
Hindu Succession Act, 1956, and in which case since HUF existed and
continued before and after 1956, the property inherited by a member of
an HUF even after 1956 would be HUF property in his hands to which
his paternal successors-in-interest upto the three degrees would have a
right. The second exception to the property in the hands of a person
being not self-acquired property but an HUF property is if after 1956 a
person who owns a self-acquired property throws the self-acquired
property into a common hotchpotch whereby such property or properties
thrown into a common hotchpotch become Joint Hindu Family
properties/HUF properties. In order to claim the properties in this
second exception position as being HUF/Joint Hindu Family
properties/properties, a plaintiff has to establish to the satisfaction of the
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court that when (i.e date and year) was a particular property or properties
thrown in common hotchpotch and hence HUF/Joint Hindu Family
created.
(ii) This position of law alongwith facts as to how the properties are
HUF properties was required to be stated as a positive statement in the
plaint of the present case, but it is seen that except uttering a mantra of
the properties inherited by defendant no.1 being „ancestral‟ properties
and thus the existence of HUF, there is no statement or a single
averment in the plaint as to when was this HUF which is stated to own
the HUF properties came into existence or was created ie whether it
existed even before 1956 or it was created for the first time after 1956 by
throwing the 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 had expired before 1956 only then the property which was inherited
by Sh. Gugan Singh from his father Sh. Tek Chand would bear the
character of HUF property in the hands of Sh. Gugan Singh so that his
paternal successors-in-interest became co-parceners in an HUF. Even in
the evidence led on behalf of the plaintiffs, and which is a single
affidavit by way of evidence filed by the mother of the plaintiffs Smt.
Poonam as PW1, no date is given of the death of Sh. Tek Chand the
great grandfather of the plaintiffs. In the plaint even the date of the death
of the grandfather of the plaintiffs Sh. Gugan Singh is missing. As
already stated above, the dates/years of the death of Sh. Tek Chand and
Sh. Gugan Singh were very material and crucial to determine the
automatic creation of HUF because it is only if Sh. Tek Chand died
before 1956 and Sh. Gugan Singh inherited the properties from Sh. Tek
Chand before 1956 that the properties in the hands of Sh. Gugan Singh
would have the stamp of HUF properties. Therefore, in the absence of
any pleading or evidence as to the date of the death of Sh. Tek Chand
and consequently inheriting of the properties of Sh. Tek Chand by Sh.
Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the
properties of Sh. Tek Chand prior to 1956.
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(ii) In fact, on a query put to the counsels for the parties, counsels for
parties state before this Court that Sh. Gugan Singh expired in the year
2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek Chand
died in 1982, inheriting of properties by Sh. Gugan Singh from Sh. Tek
Chand would be self-acquired in the hands of Sh. Gugan Singh in view
of the ratio of the Supreme Court in the case of Yudhister (supra)
inasmuch as there is no case of the plaintiffs of HUF existing before
1956 or having been created after 1956 by throwing of
property/properties into common hotchpotch either by Sh. Tek Chand or
by Sh. Gugan Singh/defendant no.1. There is not even a whisper in the
pleadings of the plaintiffs, as also in the affidavit by way of evidence
filed in support of their case of PW1 Smt. Poonam, as to the specific
date/period/month/year of creation of an HUF by Sh. Tek Chand or Sh.
Gugan Singh after 1956 throwing properties into common hotchpotch.
(iii) The position of HUF otherwise existing could only be if it was
proved on record that in the lifetime of Sh. Tek Chand a Hindu
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.”s
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 unnecessarily many properties as HUF
properties, and which is done for less than honest motives. Whereas
prior to passing of the Hindu Succession Act, 1956 there was a
presumption as to the existence of an HUF and its properties, but after
passing of the Hindu Succession Act, 1956 in view of the ratios of the
judgments of the Supreme Court in the cases of Chander Sen (supra)
and Yudhishter (supra) there is no such presumption that inheritance of
ancestral property creates an HUF, and therefore, in such a post 1956
scenario a mere ipse dixit statement in the plaint that an HUF and its
properties exist is not a sufficient compliance of the legal requirement of
creation or existence of HUF properties inasmuch as it is necessary for
existence of an HUF and its properties that it must be specifically stated
that as to whether the HUF came into existence before 1956 or after
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1956 and if so how and in what manner giving all requisite factual
details. It is only in such circumstances where specific facts are
mentioned to clearly plead a cause of action of existence of an HUF and
its properties, can a suit then be filed and maintained by a person
claiming to be a coparcener for partition of the HUF properties.
10. A reference to the plaint in the present case shows that it is
claimed that ownership of properties by late Sh. Jage Ram in his name
was as joint Hindu family properties. Such a bald averment in itself
cannot create an HUF unless it was pleaded that late Sh. Jage Ram
inherited the properties from his paternal ancestors prior to 1956 or that
late Sh. Jage Ram created an HUF by throwing his own properties into a
common hotchpotch. These essential averments are completely missing
in the plaint and therefore making a casual statement of existence of an
HUF does not mean the necessary factual cause of action, as required in
law, is pleaded in the plaint of existence of an HUF and of its properties.
11. I may note that the requirement of pleading in a clear cut
manner as to how the HUF and its properties exist i.e whether because
of pre 1956 position or because of the post 1956 position on account of
throwing of properties into a common hotchpotch, needs to be now
mentioned especially after passing of the Benami Transaction
(Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) and
which Act states that property in the name of an individual 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 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 judgments of the Supreme
Court in the cases of Chander Sen (supra) and Yudhishter (supra)
come in, the pre 1956 position and the post 1956 position has to be made
RFA No.852/2017 Page 15 of 15
clear, and also as to how HUF and its properties came into existence
whether before 1956 or after 1956. It is no longer enough to simply
state in the plaint after passing of the Hindu Succession Act 1956, that
there is a joint Hindu family or an HUF and a person is a coparcener in
such an HUF/joint Hindu family for such person to claim rights in the
properties as a coparcener unless the entire factual details of the cause of
action of an HUF and each property as an HUF is pleaded.”
7. In view of the aforesaid discussion, I do not find an
illegality in the impugned judgment by which the suit plaint has been
rejected, inasmuch as, the suit was barred by Benami Act.
8. Dismissed.
OCTOBER 10, 2017 VALMIKI J. MEHTA, J
AK
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 852/2017
% 10th October, 2017
LALSA PRASAD SINGH ..... Appellant
Through: Mr. Bipin Kumar Jha, Advocate.
versus
CHANDERWALA & ANR. ..... Respondents
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. Nos. 36273-74/2017 (for exemptions)
Exemptions allowed, subject to all just exceptions.
The applications stand disposed of.
C.M. Appl. No. 36275/2017 (for exemption)
Exemption allowed, subject to all just exceptions. On receipt of
certified copy of the judgment, the same be filed in this Court.
The application stands disposed of.
C.M. Appl. No. 36272/2017 (for delay)
This is an application seeking condonation of delay of 37 days
in filing the appeal.
RFA No.852/2017 Page 2 of 15
For the reasons stated in the application the same is allowed and
the delay of 37 days in filing the appeal is condoned.
C.M. stands disposed of.
RFA No. 852/2017
1. This Regular First Appeal under Section 96 Code of Civil
Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning
the judgment of the trial court dated 27.4.2017 by which the trial court
has dismissed the suit as being barred by the Benami Transactions
(Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟).
The suit has been dismissed by rejecting the plaint at the stage of
pleadings and without evidence having been led by the parties.
2. The property in dispute is plot no. 37A, Khasra no. 164,
Revenue Estate, Village Dindarpur, Delhi, also known as Shyam
Vihar, Block E, Najafgarh, Delhi. The plot area is 75 sq. yards.
Appellant/plaintiff as per the plaint pleaded that though the suit
property was purchased by means of usual documentation being the
Agreement to Sell, Power of Attorney, Will, possession letter, etc
dated 6.7.2002 in the names of the wives of his nephews, being the
defendants, but it was the appellant/plaintiff who had paid the
complete consideration amount from his own funds. It was pleaded
RFA No.852/2017 Page 3 of 15
that the appellant/plaintiff and respondents/defendants were members
of a Joint Hindu Family and therefore out of love and affection the
documents dated 6.7.2002 were executed in the names of the wives of
the nephews of the appellant/plaintiff being the defendants in the suit.
Accordingly, in the suit reliefs of declaration, partition, permanent
injunction, etc with respect to the suit property were prayed.
3. The trial court has by the impugned judgment dismissed
the suit by placing reliance upon Sections 3 and 4 of the Benami Act.
The relevant paras of the judgment of the trial court are paras 5 to 11
and 13 and which paras read as under:-
“5. Section 3 of BTA prohibits benami transactions and reads as
under:-
“(1) No person shall enter into any benami transaction.
(2) Nothing in this sub-section (1) shall apply to the purchase of the
property 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.
(3) Whoever enters to any benami transaction shall be punishable with
imprisonment for a term which may extend to three years or with fine or
with both.
(4) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973, an offence under this section shall be non-cognizable
and bailable.”
6. Section 4 of BTA, reads as under:-
“(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 to 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.
RFA No.852/2017 Page 4 of 15
(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
the benefit of the coparceners in the family.
(b) where the person in whose name the property is held is a trustee or
other person standing in a fiduciary capacity, and the property is held
for the benefit of another person for whom he is a trustee or towards
whom he stands in such fiduciary capacity.”
It is apparent that as per clause (1) of section 4 of BTA, no suit 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 on the plea
that the property is held benami, with the exception that where the person, in
whose name the property is held, is a „coparcener‟ in the Hindu Undivided
Family and the property is held for the benefit of the coparceners of the
property or where the person in whose name the property is held is a trustee
or stands in a fiduciary capacity to another.
7. From a reading of Section 4 of the Act, it is obvious that for a valid
claim raised by the plaintiff, to bring the case in the exception provided in
clause (a) of sub-Section (3) of Section 4 of the BTA, following three
requisites are essential to be pleaded:-
(i) Existence of a Hindu Undivided Family;
(ii) Defendants in whose name the suit property are held, are a
coparceners of the said Hindu Undivided Family; and
(iii) Suit property is held by the defendants for the benefit of the
coparceners in the family.
8. In the instant case, the defendants are the wives of the nephew of
the plaintiff and thus they are not the coparceners under the definition of
Hindu Undivided Family and thus exception carved out by the BTA is not
available to the plaintiff in the present case as the exception contained in
Section 4 (3) (a) of the BTA restricts its benefits only to property held by a
coparcener in a Hindu Undivided Family as opposed to any „Member‟ of
such family. It is so, because coparceners are recognized by law to jointly
by birth inherit rights in the joint property of the family property and in the
event such property stands in one of their names for the benefit of others, the
BTA is declared to not come in the way. Such benefit however cannot be
extended to all/any members of such family who do not have any vested
right in the property. The plaintiff, being the brother of deceased father in
law of the defendants is not a coparcener in the Hindu Undivided Family of
his deceased brother. In view of the fact that requisite (ii) noted above is not
fulfilled, exception contained in Section 4(3)(a) of the Act has no
application in the instant case.
9. Now it has to be seen whether the case of the plaintiff is covered
under the second exception relating to plea of benami ownership contained
in Section 4(3)(b) of BTA. For the suit/claim of a plaintiff to fall in the
exception provided in clause (b) of sub-Section (3) of Section 4 of BTA, the
plaintiff has to plead/establish that:-
RFA No.852/2017 Page 5 of 15
(i) Defendants in whose name the suit property is held are trustees or
are otherwise standing in a fiduciary capacity towards the plaintiff; and
(ii) Suit property is held by the defendants for benefit of plaintiff for
whom they are trustees or towards whom they stand in a fiduciary
capacity.
10. The pleadings made in the plaint by the plaintiff as noted above do
not contain even a whisper that the defendants in whose name the suit
property is held are trustees or were otherwise standing in a fiduciary
capacity towards the plaintiff and suit property was held by them for benefit
of plaintiff for whom they, are the trustee or towards whom they stands in a
fiduciary capacity.
11. In view of the fact that there are no averments in the plaint to bring
the claim raised by the plaintiff within the exception provided by clause (b)
of sub-Section 3 of Section 4 of BTA, Section 4(3)(b) of BTA does not save
the claim raised by the plaintiff from being barred in law.
XXXXX XXXXX XXXXX
13. In view of the aforesaid settled law, the defendants in whose names
the suit property stands as per the pleadings of the plaintiff himself, they are
absolute owners of the suit property by virtue of section 14(1) of Hindu
Succession Act, 1956. The plaintiff himself has pleaded in his plaint that
the suit property was purchased in the names of wives of his nephew out of
love and affection and if such fact is admitted in the plaint itself, it is not
necessary for this court to go on trial to find out the fact or to lift the veil to
come to the conclusion which is necessary for the parties by determining the
question raised in the plaint. In my considered opinion once the plaintiff has
admitted in his pleadings that the property had been purchased for the
benefit of the defendants, he cannot be turned around at this stage and file a
suit claiming himself as real owner/co owner of the property in question.
Accordingly, I hold that the suit filed by the plaintiff is barred under BTA
and Order 7 Rule 11(d) CPC and thus the same is accordingly rejected.
Ordered accordingly. File be consigned to record room.”
(underlining added)
4. I completely agree with the conclusions of the trial court
contained in the impugned judgment, inasmuch as, there is no
entitlement to claim a right in a property which is benami by virtue of
Section 4(1) of the Act. Benami property means a property which is
purchased in the name of one person and funds are paid for purchase
RFA No.852/2017 Page 6 of 15
by another person with the intention that the benami owner is only a
nominal owner and the actual owner is the person who has paid the
funds. The Benami Act was passed in the year 1988 to nullify benami
transactions as most of the benami transactions had their roots in
illegalities, including existence of unaccounted or illegal moneys. The
only two exceptions to the bar contained in Sub-Sections (1) and (2) of
Section 4 of the Benami Act are as per Section 4 (3) of the Benami
Act when firstly where there exists an Hindu Undivided Family (HUF)
and the property is in the name of a coparcener and secondly where
the property is purchased by a person standing in a fiduciary capacity
or as a trustee. In the present case the exception which is pleaded by
the appellant/plaintiff to avoid the application of the provision of
Section 4(1) of the Benami Act is the existence of HUF and which
will not apply because respondents/defendants being females are not
coparceners and the exception under Section 4(3) of the Benami Act
applies if the property claimed to be an HUF is in the name of a
coparcener.
5. Appellant/plaintiff as per the plaint pleads and has
invoked the mantra of Joint Hindu Family on the ground that parties
are residing together. In law, however, such pleadings do not make a
RFA No.852/2017 Page 7 of 15
cause of action of existence of an HUF. HUF is a concept and HUF
property is a property belonging to an HUF having a particular colour.
After passing of the Hindu Succession Act, 1956 if a male person
inherits the property from his paternal ancestors upto three degrees
above then such inheritance is not an HUF property in the hands of the
person who inherits the same and as held by the Supreme Court in the
judgments in the case of Commissioner of Wealth Tax, Kanpur and
Others Vs. Chander Sen and Others, (1986) 3 SCC 567 and
Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204. In these judgments
the Supreme Court had held that the traditional concept of Hindu Law
of a male person when he inherits a property from his paternal
ancestors then in such a case the inherited property becomes an HUF
property is a concept which no longer prevails after passing of the
Hindu Succession Act. HUF therefore comes into existence only if a
person inherits the property from his male ancestor prior to passing of
the Hindu Succession Act, 1956 or if HUF is created after the passing
of Hindu Succession Act by a person throwing his self-acquired
property/individual property in common hotchpotch. In the present
case, there is no pleading of the appellant/plaintiff having inherited the
suit property prior to the year 1956 and therefore the only case is of
RFA No.852/2017 Page 8 of 15
existence of HUF after the year 1956 and which could have accrued
only if there was a specific pleading of throwing of the individual
property of the appellant/plaintiff into common hotchpotch and which
is not so.
6. Proper pleading of existence of HUF is all the more so
required in the present case because the HUF which is pleaded to exist
is not of the appellant/plaintiff and his immediate family members
being his wife or his sons or the wives of his sons, inasmuch as, the
respondents/defendants are the wives of the nephews of the
appellant/plaintiff. In such extended degree relationship not within the
family an HUF does not come into existence merely by uttering a
mantra of there being a Joint Hindu Family or Hindu Undivided
Family. What are the requirements of an HUF and how an HUF
property comes into existence has been dealt with by this Court, after
referring to the ratios of the judgments of the Supreme Court in the
cases of Chander Sen (supra) and Yudhistir (supra), in the case of
Surender Kumar Vs. Dhani Ram and Others, 227 (2016) DLT 217.
The relevant paras of the judgment in the case of Surender Kumar
(supra) are paras 5 to 12 and which paras read as under:-
“5. The Supreme Court around 30 years back in the judgment in the
case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander
RFA No.852/2017 Page 9 of 15
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 1956 does
not create an HUF property and inheritance of ancestral property after
1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the cases of Chander
Sen (supra) and Yudhishter (supra), in law ancestral property can only
become an HUF property if inheritance is before 1956, and such HUF
property therefore which came into existence before 1956 continues as
such even after 1956. In such a case, since an HUF already existed prior
to 1956, thereafter, since the same HUF with its properties continues, the
status of joint Hindu family/HUF properties continues, and only in such
a case, members of such joint Hindu family are coparceners entitling
them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e before passing
of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the
Hindu Succession Act, 1956, the same has been considered by me
recently in the judgment in the case of Sunny (Minor) & Anr. vs. Sh.
Raj Singh & Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this
judgment, I have referred to and relied upon the ratio of the judgment of
the Supreme Court in the case of Yudhishter (supra) and have
essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956
and there is no HUF existing at the time of the death of such a person,
inheritance of an immovable property of such a person by his
successors-in-interest is no doubt inheritance of an „ancestral‟ property
but the inheritance is as a self-acquired property in the hands of the
successor and not as an HUF property although the successor(s) indeed
inherits „ancestral‟ property i.e a property belonging to his paternal
ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu
family can come into existence after 1956 (and when a joint Hindu
family did not exist prior to 1956) is if an individual‟s property is
thrown into a common hotchpotch. Also, once a property is thrown into
a common hotchpotch, it is necessary that the exact details of the
specific date/month/year etc of creation of an HUF for the first time by
throwing a property into a common hotchpotch have to be clearly
pleaded and mentioned and which requirement is a legal requirement
RFA No.852/2017 Page 10 of 15
because of Order VI Rule 4 CPC 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 selfacquired
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) (supra) are paragraphs 6 to 8 and which paras read as under:-
“6. At the outset, it is necessary to refer to the ratio of the judgment of
the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987)
1 SCC 204 and in para 10 of the said judgment the Supreme Court has
made the necessary observations with respect to when HUF properties
can be said to exist before passing of the Hindu Succession Act, 1956 or
after passing of the Act in 1956. This para reads as under:-
‘10. This question has been considered by this Court in Commissioner of
Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors.
MANU/SC/0265/1986MANU/SC/0265/1986 : [1986]161ITR370(SC)
where one of us (Sabyasachi Mukharji, J) observed that under the Hindu
Law, the moment a son is born, he gets a share in father's property and
become part of the coparcenary. His right accrues to him not on the
death of the father or inheritance from the father but with the very fact of
his birth. Normally, therefore whenever the father gets a property from
whatever source, from the grandfather or from any other source, be it
separated property or not, his son should have a share in that and it will
become part of the joint Hindu family of his son and grandson and other
members who form joint Hindu family with him. This Court observed
that this position has been affected by Section 8 of the Hindu
Succession Act, 1956 and, therefore, after the Act, when the son
inherited the property in the situation contemplated by Section 8, he
does not take it as Kar of his own undivided family but takes it in his
individual capacity. At pages 577 to 578 of the report, this Court dealt
with the effect of Section 6 of the Hindu Succession Act, 1956 and the
commentary made by Mulla, 15th Edn. pages 924-926 as well as
Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied
on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages
918-919. This Court observed in the aforesaid decision that the views
RFA No.852/2017 Page 11 of 15
expressed by the Allahabad High Court, the Madras High Court the
Madhya Pradesh High Court and the Andhra Pradesh High Court
appeared to be correct and was unable to accept the views of the Gujarat
High Court. To the similar effect is the observation of learned author of
Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it
would be difficult to hold that property which developed on a Hindu
under 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.”
(emphasis is mine)
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 grandfather then the property in his hand
was not to be treated as a self-acquired property but was to be treated as
an HUF property in which his son, grandson and great grandson had a
right equal to „A‟. After passing of the Hindu Succession Act, 1956, this
position has undergone a change and if a person after 1956 inherits a
property from his paternal ancestors, the said property is not an HUF
property in his hands and the property is to be taken as a self-acquired
property of the person who inherits the same. There are two exceptions
to a property inherited by such a person being and remaining selfacquired
in his hands, and which will be either an HUF and its properties
was existing even prior to the passing of the Hindu Succession Act, 1956
and which Hindu Undivided Family continued even after passing of the
Hindu Succession Act, 1956, and in which case since HUF existed and
continued before and after 1956, the property inherited by a member of
an HUF even after 1956 would be HUF property in his hands to which
his paternal successors-in-interest upto the three degrees would have a
right. The second exception to the property in the hands of a person
being not self-acquired property but an HUF property is if after 1956 a
person who owns a self-acquired property throws the self-acquired
property into a common hotchpotch whereby such property or properties
thrown into a common hotchpotch become Joint Hindu Family
properties/HUF properties. In order to claim the properties in this
second exception position as being HUF/Joint Hindu Family
properties/properties, a plaintiff has to establish to the satisfaction of the
RFA No.852/2017 Page 12 of 15
court that when (i.e date and year) was a particular property or properties
thrown in common hotchpotch and hence HUF/Joint Hindu Family
created.
(ii) This position of law alongwith facts as to how the properties are
HUF properties was required to be stated as a positive statement in the
plaint of the present case, but it is seen that except uttering a mantra of
the properties inherited by defendant no.1 being „ancestral‟ properties
and thus the existence of HUF, there is no statement or a single
averment in the plaint as to when was this HUF which is stated to own
the HUF properties came into existence or was created ie whether it
existed even before 1956 or it was created for the first time after 1956 by
throwing the 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 had expired before 1956 only then the property which was inherited
by Sh. Gugan Singh from his father Sh. Tek Chand would bear the
character of HUF property in the hands of Sh. Gugan Singh so that his
paternal successors-in-interest became co-parceners in an HUF. Even in
the evidence led on behalf of the plaintiffs, and which is a single
affidavit by way of evidence filed by the mother of the plaintiffs Smt.
Poonam as PW1, no date is given of the death of Sh. Tek Chand the
great grandfather of the plaintiffs. In the plaint even the date of the death
of the grandfather of the plaintiffs Sh. Gugan Singh is missing. As
already stated above, the dates/years of the death of Sh. Tek Chand and
Sh. Gugan Singh were very material and crucial to determine the
automatic creation of HUF because it is only if Sh. Tek Chand died
before 1956 and Sh. Gugan Singh inherited the properties from Sh. Tek
Chand before 1956 that the properties in the hands of Sh. Gugan Singh
would have the stamp of HUF properties. Therefore, in the absence of
any pleading or evidence as to the date of the death of Sh. Tek Chand
and consequently inheriting of the properties of Sh. Tek Chand by Sh.
Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the
properties of Sh. Tek Chand prior to 1956.
RFA No.852/2017 Page 13 of 15
(ii) In fact, on a query put to the counsels for the parties, counsels for
parties state before this Court that Sh. Gugan Singh expired in the year
2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek Chand
died in 1982, inheriting of properties by Sh. Gugan Singh from Sh. Tek
Chand would be self-acquired in the hands of Sh. Gugan Singh in view
of the ratio of the Supreme Court in the case of Yudhister (supra)
inasmuch as there is no case of the plaintiffs of HUF existing before
1956 or having been created after 1956 by throwing of
property/properties into common hotchpotch either by Sh. Tek Chand or
by Sh. Gugan Singh/defendant no.1. There is not even a whisper in the
pleadings of the plaintiffs, as also in the affidavit by way of evidence
filed in support of their case of PW1 Smt. Poonam, as to the specific
date/period/month/year of creation of an HUF by Sh. Tek Chand or Sh.
Gugan Singh after 1956 throwing properties into common hotchpotch.
(iii) The position of HUF otherwise existing could only be if it was
proved on record that in the lifetime of Sh. Tek Chand a Hindu
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.”s
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 unnecessarily many properties as HUF
properties, and which is done for less than honest motives. Whereas
prior to passing of the Hindu Succession Act, 1956 there was a
presumption as to the existence of an HUF and its properties, but after
passing of the Hindu Succession Act, 1956 in view of the ratios of the
judgments of the Supreme Court in the cases of Chander Sen (supra)
and Yudhishter (supra) there is no such presumption that inheritance of
ancestral property creates an HUF, and therefore, in such a post 1956
scenario a mere ipse dixit statement in the plaint that an HUF and its
properties exist is not a sufficient compliance of the legal requirement of
creation or existence of HUF properties inasmuch as it is necessary for
existence of an HUF and its properties that it must be specifically stated
that as to whether the HUF came into existence before 1956 or after
RFA No.852/2017 Page 14 of 15
1956 and if so how and in what manner giving all requisite factual
details. It is only in such circumstances where specific facts are
mentioned to clearly plead a cause of action of existence of an HUF and
its properties, can a suit then be filed and maintained by a person
claiming to be a coparcener for partition of the HUF properties.
10. A reference to the plaint in the present case shows that it is
claimed that ownership of properties by late Sh. Jage Ram in his name
was as joint Hindu family properties. Such a bald averment in itself
cannot create an HUF unless it was pleaded that late Sh. Jage Ram
inherited the properties from his paternal ancestors prior to 1956 or that
late Sh. Jage Ram created an HUF by throwing his own properties into a
common hotchpotch. These essential averments are completely missing
in the plaint and therefore making a casual statement of existence of an
HUF does not mean the necessary factual cause of action, as required in
law, is pleaded in the plaint of existence of an HUF and of its properties.
11. I may note that the requirement of pleading in a clear cut
manner as to how the HUF and its properties exist i.e whether because
of pre 1956 position or because of the post 1956 position on account of
throwing of properties into a common hotchpotch, needs to be now
mentioned especially after passing of the Benami Transaction
(Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) and
which Act states that property in the name of an individual 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 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 judgments of the Supreme
Court in the cases of Chander Sen (supra) and Yudhishter (supra)
come in, the pre 1956 position and the post 1956 position has to be made
RFA No.852/2017 Page 15 of 15
clear, and also as to how HUF and its properties came into existence
whether before 1956 or after 1956. It is no longer enough to simply
state in the plaint after passing of the Hindu Succession Act 1956, that
there is a joint Hindu family or an HUF and a person is a coparcener in
such an HUF/joint Hindu family for such person to claim rights in the
properties as a coparcener unless the entire factual details of the cause of
action of an HUF and each property as an HUF is pleaded.”
7. In view of the aforesaid discussion, I do not find an
illegality in the impugned judgment by which the suit plaint has been
rejected, inasmuch as, the suit was barred by Benami Act.
8. Dismissed.
OCTOBER 10, 2017 VALMIKI J. MEHTA, J
AK
