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TMI Blog2019 (11) TMI 1789X X X X Extracts X X X X X X X X Extracts X X X X ..... ly owned and possessed by Shri Surender Singh Kalsi (son of Darshan Singh) and his wife (Petitioner No. 2). Petitioner No. 2 is the recorded owner of property bearing No. 2/122, Nakul Gali, Vishwas Nagar, Shahdara, Delhi. Shri Surender Singh Kalsi was the recorded owner of property bearing No. U-2, Hans Apartment, East Arjun Nagar, Delhi and on his demise said property devolved on his wife - Smt. Hani Kalsi (petitioner No. 2) and his daughter i.e. petitioner no. 1 absolutely and to the exclusion of all others. 5. It is contended that from the bare reading of the plaint, it is apparent that since the properties were in the name of the petitioners, no Suit for partition could lie. 6. Learned counsel further submits that the Suit is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988 as there was neither a Hindu undivided family nor HUF funds. 7. Learned counsel for the petitioner further submits that after the petitioner had filed an application under Order 7 Rule 11, an application under Order 6 Rule 17 CPC was filed by the legal heirs of the plaintiff seeking to incorporate a plea of existence of Hindu undivided family, however, said application was dismiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alcohol together with the youngest son of the plaintiff and also brought her younger daughter and started residing together with the youngest son of the plaintiff and also started limitless drinking in the residential house where the plaintiff including the other family members were residing. ***** ***** ***** 7. That with the development and promotion of the business. The plaintiff very honestly purchased property No.U-2, Hans Apartment, East Arjun Nagar, Delhi as well as purchased property No.2/122, Nakul Gali, Vishwas Nagar, Shahdara, Delhi-110032 in the name of the youngest son and his wife and the business was also promoted either in the name of the youngest son or in the name of the wife of the youngest son as the plaintiff never wanted to create any rupture in the relations between the defendant no.l and the other family members as the habits of defendant no. 1 and her younger sister was not appreciable and the defendant no. 1 was very alcoholic and used to take limitless liquor during the might together with the youngest son and her younger sister. However, the plaintiff objected to such heavy drinking but the defendant no. 1 threatened that in case of any objection t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ornaments and invested in the business for development and promotion of the independent business younger son. 10. Further it is alleged in the plaint that the properties which are subject matter of the Suit were purchased in the name of Shri Surender Singh and his wife and the business was also promoted in his name as they did not want to create rupture in the relationship between her and the family members due to the habit of taking alcohol by the daughter-in-law and further that she used to threaten that she would implicate all the family members under Section 406/498-A IPC and also implicate them in false cases through Crime Women Cell. 11. It is contended that it is in these circumstances that the properties were bought in the name of Shri Surender Singh Kalsi or the daughter-in-law. Further it is alleged that the properties were purchased out of their own earnings through joint business of the family that was being run by the plaintiff - Darshan Singh as well as Sh. Surender Singh Kalsi and Sh. Mahender Singh Kalsi. 12. Since the Suit was filed in the year 1996, provisions of the Benami Transactions (Prohibition) Act, 1988 as it existed prior to its amendment in 2016 would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily; or 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 capacity. 17. Perusal of the plaint clearly shows that the case set up by the respondent is not that there was any Hindu undivided family in existence or that the parties were coparcener in a Hindu undivided family or that the property was purchased in the name of Shri Surender Singh Kalsi or his wife as coparcener of the Hindu Undivided family or as trustees or in fiduciary capacity. 18. A Coordinate Bench of this Court in 'Surender Kumar Khurana Vs. Tilak Raj Khurana & Ors. 2016 (155) DRJ 71 has held that 'joint funds' or 'joint properties' are in law not equal to Hindu undivided family funds or Hindu undivided family properties or businesses and the joint funds is an expression which is not a law equal to joint Hindu family funds working together equivalent to existence of joint Hindu family. 19. Said Bench further held that specific and categorical averments have to be made with regard to the existence, creation and continuation of HUF an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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