Property suit lacking clear reasons for actionable claim can be dismissed: High Court of Delhi

 IN THE HIGH COURT OF DELHI AT NEW DELHI Pronounced on: 12.02.2021 CS(OS) 3438 2014 and IA No. 3789 2016 MASTER ANSH KAPOOR & ANR. Plaintiffs Through Ms.Deepti Kathpalia Adv. K.B. KAPUR & ORS. Defendants Through Mr.Harshvardhan Pandey Adv. for D 1 & 2. HON BLE MR. J USTICE J AYANT NATH J AYANT NATH J . This suit is filed seeking a preliminary decree of partition of the suit properties namely J 5 Ground Floor Saket New Delhi 110007 5 B Sagar Apartment 6 Tilak Marg New Delhi and other properties mentioned in relation to the share of the plaintiffs. The plaintiffs are minors being represented through their mother Smt.Shelly Kapur. Defendant No.1 is the grandfather of the minor plaintiffs. Defendant No.2 is the grandmother of the minor plaintiffs. Defendant No.3 is the father of the plaintiffs and defendant No.4 is the sister of defendant It is pleaded in the plaint that the great grandfather of the plaintiffs Late Sh.Lal Chand Kapur father of defendant No.1 Sh.K.B.Kapur was the CS(OS) 3438 2014 owner of various lands and houses in Delhi including a house at Darya Ganj. The said Sh.Lal Chand Kapur died intestate. It is stated that after his death the estate of Late Sh.Lal Chand Kapur fell in the hands of his sons namely Sh.K.B.Kapur defendant No.1 and his brother Sh.Parvesh Kapur who became owners to the extent of one half each. The estate held by Sh.K.B.Kapur defendant No.1 is an ancestral property qua the minor plaintiffs the same being purchased from the funds obtained by selling the ancestral property i.e. property of Late Sh.Lal Chand Kapur. It is further pleaded that defendants No.3 and 4 the children of defendant No.1 are the joint owners being coparceners to the extent of 1 4th share each in the estate left behind by Late Sh.Lal Chand Kapur. Therefore the plaintiffs being the children of defendant No.3 Mr.Rishi Kapur it is pleaded by virtue of succession of the coparcenary properties have a share in the properties being held by defendants No.1 to 4 purchased out of the funds obtained by selling the properties of their great grandfather Late Sh.Lal Chand Kapur. It is claimed that the plaintiffs are the co owners in respect of their undivided share in the suit properties to the extent of 1 8 share each. It is further claimed that in the year 1981 82 defendant No.1 sold away the ancestral property at Darya Ganj bearing No.2638 Gali Khajoor Masjid Kucha Chalan Daryaganj Delhi and out of the proceeds bought other properties either in his own name or in the name of his wife comprising of the house being J 5 Ground Floor Saket New Delhi measuring 500 sq.yds Office in Sagar Apartments being 5 B Sagar Apartments 6 Tilak Marg New Delhi one Godown in Mahipalpur iv) One office in East of Kailash a plot of 1100 sq.yds in Gurgaon and there is also one more flat in Gurgaon. It is pleaded that since the CS(OS) 3438 2014 properties received by defendant No.1 attain the characteristic of a caparcenary property once the children namely the plaintiffs were born they became coparceners in the ancestral properties in the hands of defendants No.1 to 4. It is stressed that the said properties were bought by selling the ancestral property at Darya Ganj and throwing the proceeds into a common hotch potch. The suit properties hence acquire a status of an HUF property. Prior to 1956 the great grandfather of the plaintiffs owned the Darya Ganj property. Hence an HUF was existing prior to 1956 and that HUF continued after 1956. In that HUF the grandfather of the plaintiffs namely defendant No.1 inherited the Darya Ganj property after 1956 which was thrown into a common hotch potch. As such the paternal successor in interest of the grandfather of the plaintiffs will have the right upto 3 degrees and as such the plaintiffs have a right in the suit properties. It is admitted that there is a marital dispute between Smt.Shelly Kapur the mother and guardian of the minors through whom the suit has been filed and defendants No.1 to 4. The said Smt.Shelly Kapur has filed a petition under The Protection of Women from Domestic Violence Act 2005 in the court of learned MM Saket where the matter is said to be pending trial. I may also note that defendants No.1 and 2 have also filed a suit against Smt.Shelly Kapur and defendant No.3 for possession permanent injunction and damages regarding the property situated at J 5 Ground Floor Saket New Delhi 110007. Defendants No.1 to 3 have filed their written statement. As far as defendant No. 1 is concerned his right to file written statement was closed on 14.09.2016. They have categorically denied the existence of any HUF CS(OS) 3438 2014 and urged that the suit properties are self earned properties of defendants No.1 and 2 and are not ancestral properties or purchased from the funds by selling the ancestral property. It is stated that the great grandfather of the plaintiffs namely Late Sh.Lal Chand Kapur was survived by two sons namely Sh.K.B.Kapur defendant No.1 and Sh.Parvesh Kumar and five daughters. He was working at a very low scale in the Post Office. Sh.Lal Chand Kapur had taken a loan from private parties for the marriage of his five daughters. To repay the same he sold his Darya Ganj property in the year 1979 80. After the death of Sh.Lal Chand Kapur nothing fell in the hands of Sh.K.B.Kapur defendant No.1 or Sh.Parvesh Kapur. Defendant No.1 shifted with his family to a rented accommodation in Sheikh Sarai New Delhi in the year 1980 81. Thereafter in 1982 he shifted to a rented accommodation in Kailash Colony New Delhi. Both defendants No.1 and 2 were earning. Through her own earnings defendants No.2 purchased a flat in Mandikini from DDA. The said flat was sold and defendant No.2 purchased a floor i.e. first floor in East of Kailash. The said floor was also sold in 2005 and defendant No.2 purchased the present property being J 5 Ground Floor Saket New Delhi 110007 in 2005 and shifted in the same year. Regarding Sagar Apartments office it is stated that the same is a self owned property of defendant No.1 that was purchased in 1990. The Godown in Mahipalpur is a rented property. Regarding the plot of 1100 sq.yds in Gurgaon it is stated that there is no such plot. However there is a plot of 404 sq.yds in Gurgaon which is owned by defendant No.1 and was purchased in the year 2003. Further defendant No.2 also owns a flat in Gurgaon which is again a self earned property of defendant No. 2 which was purchased in 2011. The properties documents have been placed on record. CS(OS) 3438 2014 On 30.03.2016 this court had directed the defendants to maintain status quo with regard to title of the property bearing No. J 5 Ground Floor Saket till the next date of hearing. On 07.12.2017 this court passed the following order: “This suit is filed on behalf of the minor children seeking a decree of partition of properties located at J 5 Ground Floor Saket New DeIhi 110007 and 5 B Sagar Apartment 6 Tilak Marg New Delhi. The plea in the plaint is that a property in Darya Ganj was owned by late Shri Lal Chand Kapur the late grand father of the plaintiffs. This property was said to have been sold out to buy the afore noted two properties. Based on this averment it is urged that the plaintiffs are coparceners in the suit properties. It has been put to the learned counsel for the plaintiffs that the plaint does not prima facie disclose any cause of action. List for framing of issues and arguments as above on Hence the matter was heard at the stage of framing of issues and judgment was reserved. After having reserved the judgment the plaintiffs chose to file an application being IA No.9687 2018 seeking amendment of the plaint. This application was allowed. The matter was re heard again on framing of issues. I have heard learned counsel for the parties. 11. Learned counsel for the plaintiffs has reiterated that the plaintiffs are entitled to 1 8th share in the suit properties owned by their great grandfather Late Sh. Lal Chand Kapur who died intestate. The contentions of the plaint are reiterated. It is reiterated that after passing of the Hindu Succession Act the position has undergone a change and if a person after 1956 inherits a CS(OS) 3438 2014 property from his paternal ancestors the said property is not an HUF property in his hands. However there are two exceptions to this proposition. The first exception is that if a person inherits a property which was HUF even prior to passing of the Hindu Succession Act and which continued to be so even after passing of the Hindu Succession Act. In such a case since the HUF existed continued before and after 1956 the property inherited by a member of an HUF after 1956 would be an HUF property in his hands. The second exception it is pleaded is that if a man owns a self acquired property and throws the same into a common hotch potch then such property or properties thrown into a common hotch potch become a joint family property. In such an eventuality an HUF is formed. It is also strongly urged that defendant No. 2 in her cross examination in the suit that has been filed by defendants No. 1 and 2 which is pending in the district courts has admitted the existence of an HUF family at the time of her father in law and other members and that all of them had contributed to the joint family funds for regular maintenance of the property at Darya Ganj. It is strongly urged that there is a clear averment in the plaint that the properties were thrown into a hotch potch to constitute an HUF. The plaintiffs must be given an opportunity to lead evidence. It is further stated that the pleas of defendant No .1cannot be looked into as his right to file written statement stands closed. 12. Learned counsel for defendants No. 1 to 3 states that the plaint fails to state any cause of action. It is stated that the common ancestor of the defendants and the plaintiffs Late Sh. Lal Chand Kapur died intestate admittedly way prior to commencement of the amendment to the Hindu Succession Act. Unamended Section 6 will govern the situation in the CS(OS) 3438 2014 present case. Section 6 of the Act as it stood prior to the amendment provided that if a male Hindu dies leaving behind a female relative in Class I of the Schedule appended to the Act then his interest in the coparcenery properties will devolve as per the Act and not by survivorship. It is reiterated that the legal position is that if a male Hindu dies intestate with his widow or daughter surviving him his interest in the joint family properties will devolve upon the surviving relatives in Class I of the Schedule. The property so inherited takes the character of a self acquired property and the joint family ceases to exist. It is reiterated that admittedly Late Sh. Lal Chand Kapur the great grandfather of the plaintiffs died in 1984 much prior to the Hindu SuccessionAct 2005. He was survived by five daughters who are Class I heirs under the Schedule to the Act. Therefore by virtue of the legal position the property even it was an HUF at the time of Shri Lal Chand Kapur ceased to be an HUF property. Defendant No. 1 and his siblings and their mother took the property as a separate property. Therefore the plaintiffs or even their father namely defendant No. 3 have no right of partition to the properties held by defendants No. 1 and 2. Reliance is placed on the judgments of the Supreme Court in the case of Gurupad Khandappa Magdum vs. Hirabai Khandappa Magdum & Ors. 1978) 3 SCC 383 Uttam vs. Saubhag Singh & Ors. 4 SCC 68 Commission of Wealth Tax Kanpur & Ors. Vs. Chander Sen & Ors. 1986) 3 SCC 567 and Yudhister vs. Ashok Kumar 1 SCC 204. 13. The facts as put forward in the plaint are simple. Late Sh. Lal Chand Kapoor the great grandfather of the plaintiffs is said to have acquired the property in Darya Ganj which is said to be an HUF property. He had two sons namely defendant No. 1 and Sh. Parvesh Kapur and four daughters3438 2014 per the plaint though the defendants state he had five daughters). After the death of Sh. Lal Chand Kapur his estate fell in the hands of his sons namely defendant No. 1 and Sh. Parvesh Kapur who became the owner of their shares to the extent of one half each and such estate was held by defendant No.1 as an HUF. It is urged that the HUF and its properties existed prior to 1956 and they continued after 1956. Further the grandfather of the plaintiffs namely defendant No. 1 inherited the Darya Ganj property after 1956 which was thrown into a common hotch potch. Hence the property retains its ancestral character and the plaintiffs are coparceners in such ancestral property. The plaintiffs by birth have a right in the said property. All the properties which are subject matter of this suit were bought from the sale proceeds of the Darya Ganj HUF property. They have become owners of 1 8th share of the properties being held by defendants No. 1 to 4 is the sum and substance of the plea of the plaintiffs. I may look at the legal position in this regard. I may note that the matter is at the stage of framing of issues. What are the powers of this court at this stage In this context it is settled position of law that CPC does not require all matters to be decided only after trial or unless admissions are made. Issues are to be framed on material proposition of law and facts which the plaintiff alleges in order to show a right to sue or the defendant must allege in order to constitute his defence. Where parties are found not in issue on any question of law or fact Order 15 CPC requires the court to at once pass a judgment. I may in this context refer to a recent judgment of a Coordinate Bench of this court in the case of Promod Kumar Jain & Ors. vs. Ram Kali Jain & Ors. MANU DE 1115 2020 where the court held as follows: CS(OS) 3438 2014 “12. Reference on the aspect of framing of issues can be made a) Precision Steels Vs. Reeta Salwan 205 DLT 695 holding it is not as if the CPC requires all matters to be decided only after trial unless admissions are made issues are to be framed on material propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence where parties are found not in issue on any question of law or fact Order XV requires the Court to at once pass judgment if on a meaningful not formal reading the pleading is found to be manifestly vexations and meritless not disclosing a right to sue or defend and implausible the Court should exercise its powers and should not allow it to create an illusion and such defences should not be needlessly permitted to go to trial and v) mere clever drafting by advocates cannot compel the Courts to put a suit to trial and the Court is entitled to see through and clear the maze sought to be raised and see what the real defence b) Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine Del. 1479 holdingthe Court would not frame an issue on a point of law which is perfectly clear if the plea is mala fide or preposterous or vexatious and can be disposed of without going into the facts or is contrary to law or the settled legal position the Court will not be justified in adopting a hands off policy and allow the game of the defendant to have its sway iii) it is a notorious fact that to drag a case a litigant often takes all sorts of false untenable pleas legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute should be put to trial and not illusory or unnecessary or mala fide based on false or untenable please to delay the suit the Court is not bound to frame an issue on unnecessary or baseless pleas thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable time in order to frame an issue it is necessary to consider whether the plea raised is bona CS(OS) 3438 2014 take pleas to perpetuate it prompts and to so act mechanically fide or merely raised to delay decision in the matter and which entitles the litigant so raising the plea to remain in possession of the property until adjudication of the issue it is necessary to see whether there is sufficient material placed on record to frame an issue the Court is not under any obligation to frame and remit the issue mechanically merely on the same being raised in the written statement and without judicial satisfaction of its necessity and justification if the Courts unmerited possession when a vague plea is taken the Court should hesitate to frame an issue unless the parties are able to give particulars in support of the plea and if it were that on every plea howsoever vague and to be held unsubstantiated an issue needs to be struck there can be no effective application of Order XII Rule 6 of the CPC. c) Adarsh Kumar Puniyani Vs. Lajwanti Piplani 2015 SCC OnLine Del 14022 in addition holding that in the absence of particulars viz. date mode and terms of creation of tenancy in the pleadings an issue on bare claim of tenancy ought not to have been framed that a bogey of a legal defence should not be permitted to prevail. d) Abbott Healthcare Pvt. Ltd. Vs. Raj Kumar Prasad249 DLT 220 holding that a mere plea of invalidity in the pleading would not be enough to raise an issue of invalidity without satisfying the Court that the said plea is prima facie tenable and for which specific averments will ought to be made in the pleadings. e) Anil Kumar Vs. Devender Kumar 2019 SCC OnLine Del 8782 holding thatframing of omnibus issues with respect to the reliefs claimed is in violation of Order XIV Rule 1(3) of the CPC which requires distinct issues to be framed on each material position affirmed by one party and denied by the other party such omnibus issues do not cull out the material proposition of fact or law on which the parties are at variance CS(OS) 3438 2014 and do not tell the Court the issues on which the right decision of the case depends the stage of framing the issues is an important one as on that day the scope of the trial is determined by laying the path on which trial shall proceed excluding diversions and departures therefrom and at the stage of framing of issue the real dispute between the parties is determined the area of conflict is narrowed and a concave mirror held by the Court reflecting the pleadings of the parties pinpointing into issues and disputes on which the two sides f) Bhavna Khanna Vs. Subir Tara Singh 2019 SCC OnLine Del 6978 holding that what is required to be seen at the stage of framing of issues is whether the pleaded defence of the defendant in law entitles the defendant to defeat the claim of the plaintiff. If it does not it will not constitute a material proposition of fact or law for an issue to be framed thereon. g) Satish Kumar Vs. Purshottam Maheshwari MANU DE 2741 2019 where finding the pleaded defence of the defendant to be barred by law no issue was framed and decree passed immediately.” Hence a boggy of a legal right should not be permitted to prevail. Where from a bare reading of the plaint or written statement right to sue or defend is found to be improbable pleadings are found to be vexatious and meritless not disclosing a right to sue or defend the court should exercise its powers and should not allow such matters to go to trial. I may now look at the legal position regarding HUF properties. Section 6 as it existed prior to the Hindu Succession Act 2005 and Section 8 of the Hindu Succession read as follows: “6. Devolution of interest in coparcenary property.—When a male Hindu dues after the commencement of this Act having at the time of his death an interest in a Mitakshara coparcenary CS(OS) 3438 2014 property his interest in this property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act Provided that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative the interest of the deceased in the Mitakshra coparcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.” Explanation 1. For the purpose of this section the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death irrespective of whether he was entitled to claim partition or not. Explanation 2. Nothing contained in this proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.” “8. General rules of succession in the case of males The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter a) firstly upon the heirs being the relatives specified in Class I of the Schedule b) secondly if there is no heir of Class I then upon the heirs being the relatives specified in Class II of the Schedule c) thirdly if there is no heir of any of the two classes then upon the agnates of the deceased and d) lastly if there is no agnate then upon the cognates of the deceased.” 16. Reference may also be had to the judgment of the Supreme Court in CS(OS) 3438 2014 the case of Uttam vs. Saubhag Singh & Ors.(supra) where the Court held as follows: coparcener. Dharma “18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener and if a son is born to such coparcener thereafter the joint family property continues as such there being no hiatus merely by virtue of the fact there is a Agalawe v. Pandurang Miragu Agalawe2 SCC 126] Sheela Devi v. Lal Chand8 SCC 581] and Rohit Chauhan v. Surinder Singh9 SCC 419 :4 SCC Civ) 377] were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4 8 and 19 of the Hindu Succession Act. The law therefore insofar as it applies to joint family property governed by the Mitakshara School prior to the amendment of 2005 could therefore be summarised as follows: i) When a male Hindu dies after the commencement of the Hindu Succession Act 1956 having at the time of his death an interest in Mitakshara coparcenary property his interest in the property will devolve by survivorship upon the surviving members of the coparcenaryTo propositionan exception is contained in Section 30 Explanation of the Act making it clear that notwithstanding anything contained in the Act the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. iii) A second exception engrafted on proposition is contained in the proviso to Section 6 which states that if such a male Hindu had died leaving behind a female relative specified CS(OS) 3438 2014 in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession and not by survivorship. iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso a partition is effected by operation of law immediately before his death. In this partition all the coparceners and the male Hindu s widow get a share in the joint family property. v) On the application of Section 8 of the Act either by reason of the death of a male Hindu leaving self acquired property or by the application of Section 6 proviso such property would devolve only by intestacy and not survivorship. vi) On a conjoint reading of Sections 4 8 and 19 of the Act after joint family property has been distributed in accordance with Section 8 on principles of intestacy the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants.” 17. Reference may again be had to the judgment of a Coordinate Bench of this court in the case of Promod Kumar Jain & Ors. vs. Ram Kali Jain & Ors. where the court held as follows: “13. Reference on the aspect of HUF can be made to: i) Neelam Vs. Sada Ram MANU DE 0322 2013 holding that the Hindu Succession Act 1956 did away with the concept of ancestral properties as existed prior thereto after coming into force thereof the property inherited by a male from his father is held as self acquired property in which children of such male do not acquire any right by birth that the plea of property being a joint family property owing to being jointly owned by CS(OS) 3438 2014 members of a family is not the plea of existence of a coparcenary or HUF that HUF and coparcenary are not one and the same under the Hindu law though for the purposes of taxation under the taxation laws are treated as one and the same that the law of succession after coming into force of the Hindu Succession Act is governed thereby only of course Section 6 thereof carves out an exception qua interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act however in the absence of any plea of existence of any coparcenary merely on the plea of the property being of inference of a coparcenary arises for a case for claiming a share in the property otherwise than under the Hindu Succession Act it has to be pleaded that there existed a HUF since prior to the coming into force of the Succession Act and which HUF by virtue of Section 6 of the Act has been permitted to be continued. ii) Surender Kumar Vs. Dhani Ram MANU DE 0126 2016 : AIR 2016 Del 120 holding as under: joint family no “5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax Kanpur v. Chander Sen MANU SC 0265 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 remained the legal position in view of Section 8 of the Hindu Succession Act 1956. This judgment of the Supreme Court in the case of Chander Sen was thereafter followed by the Supreme Court in the case of Yudhishter v. Ashok Kumar MANU SC 0525 1986 :1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act 1956 inheritance of ancestral property after 1956 does not create an HUF property and CS(OS) 3438 2014 inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property. 6. In view of the ratios of the judgments in the cases of Chander Sen and Yudhishter in law ancestral property can only become an HUF property if inheritance is before 1956 and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case since an HUF already existed prior to 1956 thereafter since the same HUF with joint Hindu its properties continues family HUF properties continues and only in such a case members of such joint Hindu family are coparceners entitling them to a share in the HUF properties. 7. On the legal position which emerges pre 1956 i.e. before passing of the Hindu Succession Act 1956 and post 1956 i.e. after passing of the Hindu Succession Act 1956 the same has been considered by me recently in the judgment in the case of Sunny v. Sh. Raj Singh CS(OS) No. 431 2006 decided on 17.11.2015. In this judgment I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter and have essentially arrived at the following conclusions: the status of i) If a person dies after passing of the Hindu Succession Act 1956 and there is no HUF existing at the time of 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 19563438 2014 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 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 that status and position paternal ancestors. Once 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 inheritance of ancestral property from paternal ancestors as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956 then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property. 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 become HUF properties must be clearly and categorically averred. Such averments have to be made by factual CS(OS) 3438 2014 references qua each property claimed to be an HUF property as to how the same is an HUF property and in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act 1956 there was a presumption as to the existence of an HUF and its properties but after passing of the Hindu Succession Act 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen and Yudhishter supra) there is no such presumption that inheritance of ancestral property creates an HUF and therefore in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF 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 Act 1988and 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 CS(OS) 3438 2014 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 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) andof Section 4 of the Benami Act then to take the case outside sub Sections and 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 specific facts are not pleaded this Court in fact would be negating the mandate of the language contained in sub Sections and of Section 4 of the Benami Act. 12. This Court is flooded with litigations where only self serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen and Yudhishter come in the pre 1956 position and the post 1956 position has to be made clear and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956 that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded. 13. In view of the above actually the application filed under Order VII Rule 11 CPC in fact is treated as an application under Order XII Rule 6 CPC inasmuch as it is observed on the admitted facts as pleaded in the plaint that no HUF and CS(OS) 3438 2014 late Sh. Jage Ram its properties are found to exist. There is no averment in the plaint that late Sh. Jage Ram inherited property(s) from his paternal ancestors prior to 1956. In such a situation therefore the properties in the hands of late Sh. Jage Ram cannot be HUF properties in his hands because there is no averment of inheriting ancestral property(s) from his paternal ancestors prior to 1956. There is no averment in the plaint also of late Sh. Jage Ram s properties being HUF properties because HUF was created after 1956 by late Sh. Jage Ram by throwing properties into a common hotchpotch. I have already elaborated in detail above as to how an HUF has to be pleaded to exist in the pre 1956 and the post 1956 positions and the necessary averments which had to be made in the present plaint. The suit plaint however grossly lacks the necessary averments as required in law to be made for a complete cause of action to be pleaded for existence of an HUF and its properties." iii) Sagar Gambhir Vs. Sukhdev Singh Gambhir MANU DE 0541 2017 : 241 DLT 98 affirming Surender Kumar supra and as noted in Saurabh Sharma Vs. Om Wati MANU DE 1981 2018. iv) Sangeeta Vs. Ramphool @ Bobby MANU DE 2941 2016 Jagdish Singhal Vs. Ram Bhaj Bansal MANU DE 1139 2017 Sukruti Dugal Vs. Jahnavi Dugal MANU DE 3120 2019 : 264 2019) DLT 182 and Raj Kumar Vs. Ram Bhaj Bansal MANU DE 2601 2019 following the above.” 18. The facts of the present case admittedly are that the great grandfather of the plaintiffs Sh. Lal Chand Kapur passed away in 1984. He was survived by two sons and four daughters who all are Class I heirs in the Schedule to the Hindu Succession Act. Assuming that Late Lal Chand Kapur had an HUF property at Darya Ganj as is being claimedthen Section 6 of the Hindu Succession CS(OS) 3438 2014 Act would have no application. The proviso to Section 6clearly states that where a deceased leaves behind a female relative as specified in Class I of the Schedule such devolution of interest by intestate succession in the hands of the successor as noted above is a self acquired property and is not an HUF property. Hence what defendant No. 1 allegedly inherited from Late Lal Chand Kapur in 1984 in terms of Section 6 of the Hindu Succession Actread with the legal position elaborated above is a self acquired property of defendant No. 1. The plaintiffs cannot claim the same to be an HUF property and claim any rights in the same. 19. Another plea that has been vaguely raised is that after the death of the great grandfather of the plaintiffs Late Sh. Lal Chand Kapur in 1984 what defendant No. 1 inherited from his father Late Sh. Chand Kapur was thrown into the common hotch potch and constituted an HUF property. The plea is vague and unsubstantiated. No material particulars or details are given. 20. What is visible from a perusal of the plaint is that vague and unsubstantiated pleas have been raised which lack material facts and particulars. Sweeping allegations have been made that Late Sh. Lal Chand Kapur the great grandfather of the plaintiffs had a property in Darya Ganj which was an HUF property. On his death defendant No. 1 received 1 2 share in the said estate of Late sh. Lal Chand Kapur which is an HUF property in the hands of defendant No. 1. The plaintiffs on birth had 1 8th share in the said properties. The learned counsel for the plaintiffs clarified that Late Sh. Lal Chand Kapur had thrown the Darya Ganj property into a hotch potch and that is why the said property is an HUF property. It is claimed that all the properties now owned by defendants No. 1 to 4 were purchased out of the funds obtained from selling the said HUF property. It CS(OS) 3438 2014 is claimed that in 1981 1982 defendant No. 1 sold away the HUF property at Darya Ganj and out of the proceeds all other properties were bought by defendant No. 1 in his name or in the name of his wife including the properties at Saket Sagar Apartment East of Kailash Mahipalpur and the property at Gurgaon. 21. The legal position as noted above is quite clear. Under Order 6 Rule 4 CPC there is a legal requirement to provide all necessary factual details of the cause of action which must be clearly stated. Once it is claimed that the property was thrown into a common hotch potch it is necessary that the exact details of the specific date month year etc. of creation of the HUF for the first time by throwing the property into a hotch potch must be clearly pleaded. Averments have also to be made by factual reference to each property claimed to be an HUF property as to how the same is an HUF property. As noted above by a Coordinate bench of this court in the case of Promod Kumar Jain & Ors. vs. Ram Kali Jain & Ors.(supra) there is a known tendency of litigants to include unnecessarily many properties as HUF properties which is done for less than an honest motive. Hence a mere ipse dixit statement in the plaint that an HUF exists and the properties are part of the HUF is not a sufficient compliance of the legal requirements of creation or existence of HUF properties. I may also note that there is no plea in the plaint as to when was the Darya Ganj property sold what was the price at which it was sold when were the other properties bought What was the consideration that defendant No. 1 received on sale of the property is not mentioned. Then it is further claimed that from the sale proceeds of this property the defendants bought the other properties namely J 5 Ground Floor Saket New Delhi CS(OS) 3438 2014 measuring 500 sq.yds Office in Sagar Apartments being 5 B Sagar Apartments 6 Tilak Marg New Delhi one Godown in Mahipalpur iv) One office in East of Kailash a plot of 1100 sq.yds in Gurgaon and vi) one more flat in Gurgaon. Again no details are given when were these properties bought in whose name were these properties bought and how much consideration was paid. The entire pleadings are vague evasive and make belief. Only sweeping and general allegations are made. 23. At this stage I may also deal with another submission made by the learned counsel for the plaintiffs namely that in the cross examination of defendant No. 2 in the suit filed by defendants No. 1 and 2 against the mother of the plaintiffs which is pending in the district court there is an admission that there was an HUF property. I may note that the cross examination is spread over 17 18 pages. No attempt was made by the plaintiffs to highlight that portion of the cross examination which according them contains an admission that an HUF property existed. On the contrary at the end of the cross examination defendant No. 2 has categorically stated that the suit property of that suit i.e. the Saket property is not an ancestral property and the same is a self acquired property purchased from the own earnings and savings of defendant No. 2. 24. One cannot help concluding on seeing the factual background of the case that the present suit has merely been filed as a counter blast to the matrimonial proceedings pending between Ms.Shelly Kapur and defendants No. 1 to 4. The attempt is merely to entangle all the properties of defendants No. 1 to 4 in some way or the other. In my opinion the plaintiffs have failed to show any meaningful cause of action that has arisen in their favour. The plaint fails to disclose a CS(OS) 3438 2014 cause of action and is completely devoid of merits on the face of it. It accordingly is required to be dismissed at this stage. The suit is dismissed. Pending applications also stand dismissed. FEBRUARY 12 2021 rb v J AYANT NATH J CS(OS) 3438 2014 

Summary: When the plaintiff pleads for claim over property, it is important that the details of such property in its entirety are disclosed and vague disclosure of facts cannot be admissible in court.  This was decided in the case of Master Ansh Kapoor &amp; Anr V. K.B. Kapur &amp; Ors [CS(OS) 3438/2014 and IA No. 3789/2016] in the High Court Of Delhi by Hon’ble Justice Jayant Nath. This suit is filed seeking a preliminary decree of partition of the suit properties. In this case Chand Kapoor, the great grandfather of the plaintiffs is said to have acquired the property in Darya Ganj which is said to be an HUF property. He had two sons, namely, defendant No. 1 and Sh. Parvesh Kapur and four daughters. After his death,  his estate fell in the hands of his sons his estate fell in the hands of his sons. The plaintiffs by birth have a right in the said property. Hence, the property retains its ancestral character and the plaintiffs are coparceners in such ancestral property. All the properties, which are subject matter of this suit, were bought from the sale proceeds of the Darya Ganj HUF property. the plaintiffs has reiterated that the plaintiffs are entitled to 1/8th share in the suit properties owned by their great grandfather who died intestate. The court noted that the matter is at the stage of framing of issues. It said that it is settled position of law that CPC does not require all matters to be decided only after trial or unless admissions are made. Issues are to be framed on material proposition of law and facts which the plaintiff alleges in order to show a right to sue or the defendant must allege in order to constitute his defence. The court referred the case of Promod Kumar Jain &amp; Ors. vs. Ram Kali Jain &amp; Ors., MANU/DE/1115/2020 where the court held as follows: “mere clever drafting by advocates cannot compel the Courts to put a suit to trial and the Court is entitled to see through and clear the maze sought to be raised and see what the real defence is, it is not as if the CPC requires all matters to be decided only after trial, unless admissions are made; ) issues are to be framed on material propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence” The court observed that the legal position as noted above is quite clear. Under Order 6 Rule 4 CPC, there is a legal requirement to provide all necessary factual details of the cause of action which must be clearly stated. Once it is claimed that the property was thrown into a common hotch-potch, it is necessary that the exact details of the specific date, month, year, etc. of creation of the HUF for the first time by throwing the property into a hotch-potch must be clearly pleaded. Averments have also to be made by factual reference to each property claimed to be an HUF property as to how the same is an HUF property. As noted above by a Coordinate bench of this court in the aforementioned case that there is a known tendency of litigants to include unnecessarily many properties as HUF properties, which is done for less than an honest motive.