9911796707
TMI Blog2017 (10) TMI 1634X X X X Extracts X X X X X X X X Extracts X X X X ..... i 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 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 by another person with the intention that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndividual 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. 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 Yudhishter (supra), in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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-à-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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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