462 SANo 3208 of 2004O8MI 1 4 In the High Court of Punjaband Haryanaat Chandigarh RSANo 3208 of 2004OSMl Dateof decisionl231011 1 HartejSohan Singh 0 O e e ppellant 0 C Versus C5 I DaljitSinghSahi and another e Z r CORAM HONBLE MRSUSTICE SABINA I ctl Presentl MrIshwar Lal Advocate forthe appellant m7 MrADS Jattana Advocate Z for 4r1 SABINA Je Plaintiffhad filed a suit for declaration that he was entitled to 318 share out of the suit propenybeinga member of Joint Hindu Familybyway of partition The case of the plaintiffin brief was that he was son of defendantNol Sohan SinghSahi had acquiredsuHicient propeny 4 In Pakistan as he was doingthe business of money Iendingand transpottSohan SinghSahi had purchasedagriculturalIand and t . Radhika 2012.07.13 11: 10 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 463 0 SANo 3208 of 2004OSMl 2 l r urban in Pakistan Sohan SinghSahi shifted to India after and in dispute was allottedto him in Iieu of property Ieftby him Pakistan After the death of Sohan SinghSahi the property was bySartajSinghSal SattajSinghSahi also certain properties out of the funds of the ancestral property in the name of his wife Mohini Sahi Theyformed a Hindu 1r UndividedFamily referredto as the HUF Mohini Sahi 0 died on 9 1994 and her propenywas inheritedby SattajSingh 3 I Sahi On 244 1995 SartajSinghSahi died due to hean failure 0 Defendant N1 was with another woman namelyNeeraj Sharma atChandigarh and tried to disposeof the propettybelonging Z t to HUFIe had of Maruti car and Gypsyafter the death a r of his father Defendant Nol had also put up a hotel for sale I situatedin Himachal Pradesh Plaintiff was the grandson of Sartaj 08 Singh Sahi and was thus a memberof the HUF PlaintiHhad 318 7 share in the belonging to the HUF Z Defendant No in his written statement denied the contentionsin the plaint It was averredthat Sohan SinghSahi had not any propertyin the name of SartajSinghSahi or any otherfamilymember The mother of the plaintiH had abandoned her husband and children on 271 991 and statted residingwith her parentsat Delhi She had taken up a jobin Hotel Taj Man Singh Despitevarious effoits made by defendant N1 mother of the plaintiffhad not joineddefendant No in the matrimonial home 9 mother of defendant Nol died on 92 1994 In these circumstances wife of defendant Nol returned back to Chandigarh on 272 1994 Thereafter defendant Nol moved a petitionseeking . Radhika 2012.07.13 11: 10 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 464 1 1 0 SANo 3208 of 2004O8MI 3 4 divorce Wifeof defendant Nol filed complaintagainsthim that she was beingforciblythrown out of the matrimonial home Wife of defendant Nol fiied a suit in the Court at Chandigarh and succeeded in ex partestatus quo order in her favour FlR NoA8 dated 21 1995 was gotregistered by defendant Nol qua the murder of hisfathet The suit had been Oledwith a view to pressurise defendant 1 r Nol to withdraw the criminal In the year 1980 defendant 0 No starledhis business and soughtpartition of the HUF and continued 3 I money qua his share The panition were tlnally C5 and a memorandumof agreementof familysettlement was I recordedon 271 986 Defendant Nol thus separated from the HUFof Z his father MrsSatlajSinghSahi Ieft a Will dated 6 1987 and on the r basisof the same her husband inheritedall her propertyRerthe death of I SattajSinghSahi the propenywas inherited by defendant No on the ctl basisofWill dated 2101994 e On the pleadingsof the pat1iesfollowing issues were framed Vm3 Z bythe trial Cout Il 1 Whether the suit propertyis jointHindu familypropeny7 OPP 2 Whether the plaintiffis coparcener 71tseHect 70PP 3 Whether the suit is not maintainable7OPD 4NVhether the Will dated 241 994 is validlyexecuted Wi1170PD 5 If issue Nol is provedwhether the plaintiHis entitled for 3181hshare in the said property7OPP 6 Rejjee The trial Coutt dismissed the suit of the plaintiHvide judgmentand decree dated 181999 AppealOledbythe plaintiH . Radhika 2012.07.13 11: 10 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 465 0 SAN0 3208 of 2004OSMI 4 1 was also dismissed vide judgmentand decree dated 1622004 passedby Additional District Judge Chandigarh Hence the presentappealbythe plaintiH Learned counsel for the appellant has submittedthat the born on 231985 whereas memorandumqua panition was executed on 271986 Thus the plaintiH became a member a r of the HUF by birth Assumingthat defendant Nol had panitioned 0 his share from the HUF but the plaintiffcontinued to retain his share C3 I Ill the HUF Hence the suit of the plaintiff was Iiable to be decreed C5 I In supportof his argumentsIearnedcounsel has placedreliance on c Krishsn Kumar sharma VS Ashok Kumar Sharma 1997 121PLR 2 2 841 wherein it was held that in the absence of necessary partiesto C the partition the pattitionof coparcenaiy propeny I cannot be giveneffect otj Learned counsel has futther placed reliance on J Valliammai Achi VS NagappaChettiar and aoother AIR 1967 Z Ll SupremeCourt 1153 54 C 2401wherein it was held that a coparcener gaInS rightsin the ancestral propertyby birth and the same Iswholly of his father Learned counsel has also placed reliance on CeNArunachaia Mudaliar VS CAMurunamtha MudaHar and another AlR 1953 SupremeCourt 495 wherein it was held as underl The son can assert an equalrightwith the father only when the grandfatherspropertyhas devolved upon his 4 father and has become ancestral propertyin his hands . Radhika 2012.07.13 11: 10 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 466 10 0 l 1 SANo 3208 of 2001OSMl 5 4 The propeityof the can normally vest in the father as ancestral if and when the father inherits such propertyon the death of the orreceives it bypartitionmade bythe himself duringhis Iife time On both these occasions the propertycomesto thefather byvirtue of the Iatters Iegal 1 r right as a son or descendant of the former and 0 it becomes ancestral propenyin his hands ll 0 Learned counselforthe on the other hand C5 I has submittedthat the respondentNol had withdrawnfrom the HUF in the year 1980 and hence the plaintiffdid not become memberof Z the HUF bybi11has his father was no Ionger a member of the HUF at C Gt that time I After hearingIearned counsel for the panies am of the cll oplrllOnthat the presentappealis devoid of any merit and deserves 7 dismissal Z In the presentcase the plaintiffis the son of r defendant No The questionthat requiresconsideration is as to whetherthe plaintiffhad become a memberof the HUF or not In this regardthe most document IS the memorandumof partition dated 271 11986 Ex A perusalof the said document reveals that the HUF consisting of SanajSinghSahi Mohini Sahi and Daljit SinghSahi was in existence The HUF was owner in possessionof the movable as well as immovable properties However Daljit 9 SinghSahi defendant Nolad not been good relations with the other paitiesand had been claiminghis 113 share in the C propertyof the HUF Defendant Nol had been insistingfor his . Radhika 2012.07.13 11: 10 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 467 0 4 SAN0 3208 of 2004O8M1 6 share for the Iast about 5 years and the coparceners had been extending him credit as per statementin para 2 on page 50f the said memorandum Since it was not possibleto disposeof the assets of the HUF due to circumstancesbeyondthe controlof the paniesthe paitieshad agreedto allow partitionof 113 share of the HUF 1 to defendant Nol It was furtheraverredOlatthe remaining 1 t may keep the properties of the HUF with them as 0 defendantNol was interestedin receivingpaymentin cash Thus Ca3 X as perthe amongst the members of the HUF share of C5 I defendant Nol was to be paidto him in the form of Iiquidassets It was further agreedamongstthe members of the HUF that the Z amount alreadypaidto defendant Nl shall be treatedto have been er paidin satisfaction of his 113 Share in the HUF Thereaner it was futtheragreedthat defendant Nol shall have no interest rightor title c8 in the assets of the HUF Thusfrom the memorandumof agreement t S7 of familysettlement Exe2 it IS evident that when the said Z agreementwas executed defendant Nol had alreadyreceived his ll share in the form of Iiquidassets It also transpires that principally the partieshad decided to panitionthe HUF about five years priorto the execution of EPm2 This shows that when the plaintiH was born defendant N1 was no Iongermember of the HUF In these circumstances the plaintiffalso could not claim any share in the HUFOefendant Nl got the propenyafter the death of his father on the basis of Will and hence the plaintiffcannot seek paitition as 1 hewas nctamemberof the HUF In these circumstances the Couns e below had rightlydismissed the suit of the plaintiffbeingnot 1 maintainable The judgments relied upon by Iearned counsel for the . Radhika 2012.07.13 11: 10 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 468 0 S SANo 3208 of 2004OSMI 7 fail to advance the case of the appellantas these are basedon differentfacts No substantial questionof Iaw arises in this regular second appealwhich would warrant interference by this Court the same is dismissed 1 r r JUDGE 0 Februar1 2011 0 anita I 1 C5 Z e I oll W2 Z 0 . Radhika 2012.07.13 11: 10 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document