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TMI Blog2015 (11) TMI 1831X X X X Extracts X X X X X X X X Extracts X X X X ..... A to the plaint. Though this Annexure A to the plaint does not exist, this Annexure A as per the copy shown to this Court contains the properties which are mentioned in para 15 of the plaint. The properties which are mentioned in para 15 of the plaint read as under:- "15. That the subject matter of the present suit are the following moveable and immovable properties which belong to the Joint Hindu Family property being ancestral in nature, the details of which as per the knowledge of the plaintiffs are as under: (k) Immoveable Properties: a. 113/B-1, Front, Adhichini, Hauz Khas, New Delhi b. 58, Village: Adhichini, Malviya Nagar, New Delhi c. 200 sq. yd. Plot in Ber Sarai Extension, New Delhi d. 4 shops in Adarshani Plaza, Adhichini, New Delhi e. 4 Flats in Adarshini Plaza, 93, Adhichini, New Delhi f. Landed/Agricultural properties in Village: Badarpur, Ballabgarh, Faridabad, g. Landed/Agricultural Properties in Kotputli, Rajasthan. h. 258, Manglapuri Extension, M.G. Road, New Delhi (ii) Vehicles: a. Two Buses - Plying between Kotputilli and Bharatpur, Blue Line - contract carriage. b. Tempo. (iii) Personnel belongings (a) Bank Account in Allahabad Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nam on account of her illicit relationship with the tenant Sh. Rajendra Jha and which facts are not relevant for decision of the present suit. The defendants also plead that the father of the plaintiffs ie Sh. Harvinder Sejwal died under mysterious circumstances. As per the preliminary objection no.6 of the written statement, it is stated that the properties which are the subject matter of the suit are the self-acquired properties of the father/defendant no.1 Sh. Gugan Singh, standing in the name of Sh. Gugan Singh or in the names of defendant nos. 2 to 4; though the same are of the defendant no.1. Defendant no.1 died during the pendency of the suit and since he was represented by defendant nos.2 to 4, Sh. Gugan Chand's estate was accordingly represented. 4. In the suit, the following issues were framed on 18.1.2011: "1. Whether the suit properties, as detailed in Schedule-A to the plaint, are liable to be partitioned and if so, what would be the share of the parties? (OPP) 2. Whether the plaintiff is entitled to rendition of accounts? (OPP) 3. Relief." 5. Issues no. 1 and 2 can be taken together as the main issue to be decided is whether there existed a Hindu Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid decision that the views 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 latte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h/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. 9. Onus of important issues such as issue nos.1 and 2 cannot be discharged by oral self-serving averments in deposition, once the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 or in the name of any member of the family. Therefore, qua all such vague/non- existent properties there does not arise any issue of passing any vague decree of partition having vague and incomplete particulars. 11. I must, at the risk of repetition, note that there exists the legal requirement of discharge of the onus of proof by atleast leading some credible documentary evidence in a case where partition is sought of valuable immovable properties, and oral evidence is not to be treated by courts as sufficient, inasmuch as, rights in immovable properties of defendants cannot be destroyed on account of self-serving oral statements and stand of the plaintiffs that there existed an HUF and HUF had various properties which are mentioned in para 15 of the plaint. 12. I may note that counsel for the plaintiffs sought to place reliance upon a certified copy of the written statement filed by the defendants in an earlier suit filed by Smt. Poonam and attention of this Court was drawn to para 5 of the said written statement which as per the plaintiffs shows the admission of the defendants that property no.93, Village Adhichini, Hauz Khas, New Delhi was an 'ancestral' property. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the creation of an HUF in law had to be proved (either pre 1956 or post 1956) by leading clear-cut evidence discharging the onus of proof and which has not been done by the plaintiffs. 14. Plaintiffs thus have failed to prove that there existed an HUF before 1956 on account of Sh. Tek Chand having inherited properties before 1956 and that the plaintiffs have further failed to prove that HUF was created after 1956 on account of throwing of property/properties into common hotchpotch either by Sh. Tek Chand or by Sh. Gugan Singh/defendant no.1. Accordingly, it is held that there is no HUF and there are no properties of HUF in which late Sh. Harvinder Sejwal had a share. The entire discussion given above for existence/creation of HUF and plaintiffs failing to discharge the onus of proof upon them will similarly apply qua the alleged family settlement pleaded by the plaintiffs because once again no credible evidence has been led except self-serving statements and which cannot be taken as discharge of the onus. In his cross-examination on 01.04.2013, the defendant no.3 as DW1 has denied the suggestion that there was any family settlement. It is therefore held that plaintiffs have f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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