TMI Blog2017 (10) TMI 1634X X X X Extracts X X X X X X X X Extracts X X X X ..... estors 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Yudhishter (supra), in the case of Surender Kumar v. 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 v. Chander 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 remaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual'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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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- -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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause 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 specif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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