Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2017 (3) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (3) TMI 1189 - HC - Indian LawsThrowing of individual property into a common HUF hotchpotch - Held that:- The recitals of the Memorandum of Family Settlement clearly show that a share in the property was acquired by the defendants no.1,2&3 by way of inheritance from their father Shri Maheshwar Dayal. Had the property been of the HUF, the defendant no.2 being the eldest son of Shri Maheshwar Dayal would have become the Karta of the HUF and would have been described so in the Memorandum of Family Settlement and the defendant no.3 being the daughter of Shri Maheshwar Dayal would have got a share in the property only out of the share of Shri Maheshwar Dayal in the property. On the contrary, the defendants no.1,2&3 all equally inherited 1/3rd share of Shri Maheshwar Dayal in the property. The purport of the Memorandum of Family Settlement was to out of the 1/3rd share of Shri Maheshwar Dayal demarcate the share of the defendant no.3 Ms. Abha Dayal being the married daughter of Shri Maheshwar Dayal, with the defendants No.1&2 Shri Someshwar Dayal and Shri Dinesh Dayal being the sons of Shri Maheshwar Dayal continuing to hold the remaining property jointly. However merely because brothers hold the property inherited from their father jointly does not constitute HUF and does not make the property HUF property. The language used in the Memorandum of Family Settlement only shows that the defendants no.1&2 were treating the property as inherited property. An act of creation of HUF and of putting of individual property into HUF hotchpotch has to be unequivocal and unambiguous. From mere use of the words “joint Hindu family property”, an HUF does not come into existence and the exclusive rights in the property not divested/abandoned. The plaint does not disclose the property to be the property of any HUF or joint Hindu family property for the plaintiffs no.1&2 to have any right therein by birth or the plaintiff no.3 acquiring rights therein as wife of the Karta/co-parcener of the HUF. The plaint is thus not found to disclose a right in the plaintiffs to seek partition and the suit is resultantly dismissed. However we make it clear that the dismissal of this suit for partition on the basis of the property being HUF/joint Hindu family property would not come in the way of the plaintiffs if have any other rights to the property, agitating the same.
|