Delhi High Court
Dr. Pushpalata And Anr. vs Ram Das Huf & Ors. on 23 January, 2025
Author: Jasmeet Singh
Bench: Jasmeet Singh
$~J
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on:01.08.2024
Judgment pronounced on: 23 .01.2025
+ CS(OS) 2382/2007
DR. PUSHPALATA AND ANR. .....Plaintiffs
Through: Mr Varun Nischal, Mr. Rajat
Manchanda, Mr. Parveen Kalra, Ms. Aditi
Singhal, Ms. Somya, Mr. Deepanshu Bharti,
Mr. Shubham Sharma, Advs.
versus
RAM DAS HUF & ORS. .....Defendants
Through: Mr. Manish Vashisht, Sr. Adv.
with Mr. Rikky Gupta, Ms. Ananya Singh,
Mr. Vanshay Kaul, Mr. VedanshVashisht,
Ms. Harshita Nathrani, Advs.
CORAM:
HON'BLE MR. JUSTICE JASMEET SINGH
JUDGMENT
: JASMEET SINGH, J
1. The instant suit has been filed seeking the following substantial
prayers:-
a. To pass a decree of declaration that the Plaintiff is
entitled to 1/5th share of the Suit HUF properties.
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By:MAYANK
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b. To pass a preliminary decree of partition in favor of the
Plaintiff and against the Defendants holding the Plaintiff
to be entitled to 1/5th share of the Suit HUF properties.
c. To pass a decree for declaration in favor of the Plaintiff
and against the Defendants declaring that any change in
the record of ownership or any Agreement/contract of
sale etc. if any done or entered into by any of the
Defendants without express consent of the Plaintiff in
respect of the Suit HUF properties mentioned in is null
and void and not binding upon the Plaintiff;
d. After passing the preliminary decree as at (a) and (b)
above, pass orders for appointment of local
commissioner/s for effecting the partition by metes and
bounds of the suit properties with a further direction to
the local commissioner to suggest other modes of
partition and in case this Hon’ble Court comes to the
conclusion that it is not possible to effect partition by
metes and bounds, then the suit properties be sold/
release and the sale/realisation proceedings be
distributed between the parties in proportion to their
share demarcated.
e. pass final decree of partition in terms of either the report
of the local commissioner or any other mode as stated in
the prayer “d” above and if the need arises, by delivering
the actual vacant physical possession of the respective
portions to the parties.
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By:MAYANK
Signing Date:23.01.2025
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f. For permanent injunction restraining the Defendants,
their servants and agents from selling, alienating,
encumbering or parting with possession in any manner
and ousting the Plaintiff from the joint possession of the
properties described above till passing of a final decree
for partition partitioning the properties in between the co
sharers by metes and bounds;
g. For a permanent injunction restraining the Defendants,
their servants and agents from illegally and forcibly
dispossessing the Plaintiff from the suit HUF properties.
h. To pass an order directing the Defendants to render
accounts of the rents accrued from the tenancy of the
ground floor of the HUF Residential property at New
Friends Colony East.
2. The plaintiff no. 1 i.e. Dr. Pushpa Lata is the eldest daughter of the
defendant No. 2 (since deceased) from his first wife, namely, Mrs.
Shakuntala Devi (since deceased).
3. Defendant no. 1 i.e. Ram Das HUF was created by defendant no. 2 i.e.
Dr. Ram Das in the year 1978.
4. Defendant no. 2 was the father of the plaintiff and defendant nos. 3- 5
and was also the „Karta‟ of the defendant no. 1. Defendant no. 3 and 4
are the sons of the defendant no. 2 from his second wife, namely, Mrs.
Shanti Devi (since deceased). During the present proceedings,
defendant no. 2 died on 10.12.2008.
5. Defendant no. 5 i.e. Smt. Usha Singh is the other daughter of
defendant no. 2 from his first wife i.e. Mrs. Shakuntala Devi. Plaintiff
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By:MAYANK
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no. 1 and defendant no. 5 are real sisters. Vide order dated 08.12.2008,
the defendant no. 5 was transposed as plaintiff no. 2.
FACTUAL BACKGROUND AS PER THE PLAINTIFF
6. Defendant no. 2 was married to Mrs. Shakuntala Devi in the year 1937
who died on 03.10.1943. Thereafter, defendant no. 2 got married to
Mrs. Shanti Devi on 24.02.1944. The plaintiffs are real sisters and
defendant nos. 3 and 4 are real brothers interse and the step brothers
of the plaintiffs.
7. In the year 1978, defendant no. 2 created defendant no. 1 i.e. Ram Das
HUF (hereinafter referred as “HUF”) from the ancestral nucleus
and/or self-acquired property, all thrown into the common stock for
the benefit of the entire family of defendant no. 2. Defendant no. 2
was the „Karta‟ of the HUF. As per the plaintiffs, the HUF is in
control of the following properties/assets:-
a. A three storied house situated at A-28, Friends Colony
East, New Delhi measuring501.67 sq. mts and the lease
rental accruing from it (hereinafter referred to as
“Kothi”);
b. Plot Nos. C-1034 and C-1035 situated at Sushant Lok 1,
Gurgaon, Haryana;
c. 7700 Units of U.T.I, amounting to Rs. 1 lakh.;
d. Bank Balance in the Account no. 67972 (now 525-1-
008486-5), held with Standard Chartered bank (erstwhile
Grindlays Bank), Parliament Street, New Delhi;
e. Bank Balance in the account no. 2380241 in the Standard
Chartered Bank, Parliament Street, New Delhi;
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By:MAYANK
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f. PPF account no. 10485058884 in the name of HUF held
withthe SBI, Friends Colony East, New Delhi;
g. Shop no. FF18 booked in the names of Defendant no. 3
and Defendant no. 4 situated in Sushant Lok Vyapar
Kendra, Gurgaon.
8. It is stated that all the aforementioned properties are the coparcenary
properties of defendant no. 1, for and on behalf of all the coparceners
of the HUF.
9. On 11.09.1987, defendant no. 2 executed a registered Will, whereby
he declared that his share of the HUF properties will go to defendant
nos. 3 and 4 and his second wife i.e. Mrs. Shanti Devi in equal
proportions.
10. In 1989, defendant no. 2 opened a PPF account in the name of the
‗Ram Das HUF’ and later on, in the year 1995, bought two properties
in the name of defendant nos. 3 and 4 respectively from the HUF
rental income. i.e. Plot Nos. C-1034 and C-1035 situated at Sushant
Lok 1, Gurgaon, Haryana.
11. The second wife of defendant no. 2 i.e. Smt Shanti Devi also executed
a Will on 23.12.1995, bequeathing her share of the HUF properties in
favour of defendant nos. 3 and 4. Thereafter, Smt. Shanti Devi died on
08.03.1997.
12. Another Will came to be executed by defendant no. 2 on 17.07.2004,
whereby defendant no. 2 professed to be the sole owner of the Kothi
and bequeathed the said property in favour of defendant nos. 3 and 4.
13. The operative portion of the will dated 17.07.2004 reads as under:-
―I am the sole owner of A-28, Friends Colony (East), New
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By:MAYANK
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Delhi. This building was constructed by me out of my own
funds after purchasing the plot also out of my personal
earnings. So, I am the sole and absolute owner of the same.
That I leave and bequeath my whole house no. A-28,
Friends Colony (East), New Delhi to my two sons Dr. Vijay
Kumar Das and Dr. Vinay Kumar Das and each of them
shall be the exclusive owner of their respective portions as
detailed below and shown in the map attached with this
WILL after my death
a. Dr. Vijay Kumar Das (my elder son) will gel the whole of
Ground floor of the main building at A-28, Friends Colony
(East), New Delhi along with its back yard and front lawn
plus left side garage and servant quarter above it (left as
looking from front road).
b. Dr. Vinay Kumar Das (my younger son) will get the
whole of the first floor and whole of IInd floor with Barsati
and Barsati’s roof of the main building at A-28 Friends
Colony (East) New Delhi along with staircases leading to
his portions plus right-side garage and servant quarter
above it (Right as looking from front road).
Dr. Vinay Kumar Das will have right of passage to his
share of building via the side pathway between front gate
and the garage and also through main side entrance from
the same pathway which are part of the joint portion
descried in c below.
c. The front gate on road side, Main side entrance to ground
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By:MAYANK
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floor 1st 2nd floors, main side pathway leading to main side
entrance, garages, servant quarters and Pump House shall
all be the common/joint property of both my sons named
above and these shall all be for their common use.‖
14. The defendant no. 2 thereafter, on 24.08.2004, executed a registered
Gift Deed with respect to Kothi in favor of defendant nos. 3 and 4.
15. Hence, the plaintiff no. 1 filed the present suit on the ground that the
plaintiffs are coparceners in the HUF, after the Hindu Succession
(Amendment) Act, 2005 came into force i.e. on 09.09.2005 and the
plaintiffs have 1/5th share each in the properties described in para 7
above. Since the defendant nos. 3 and 4 were trying to sell, alienate
and dispose of the HUF properties without the consent of the
plaintiffs, the present suit was necessitated to be filed.
WRITTEN STATEMENT BY THE DEFENDANTS
16. The defendant nos. 2, 3 and 4 contested the present suit by filing
separate written statements.
17. Plaintiff no. 2 in her written statement as defendant no. 5 supported
the case of the plaintiff no. 1.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 2
18. Defendant no. 2 has denied the averments made by the plaintiffs and
has primarily pleaded that the plaintiff no. 1 ceased to be a Hindu, as
she is married to a Muslim of Pakistani origin in United Kingdom.
The plaintiff no. 1 was not a Hindu, as required under Hindu Law,
either on the date of filing of the present suit or on the date when the
Hindu Succession (Amendment) Act, 2005 came into force i.e.
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By:MAYANK
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09.09.2005. Hence the suit filed by the plaintiff no. 1 is not
maintainable.
19. In view of the registered Gift Deed dated 24.08.2004, defendant no. 2
ceased to be the owner of the property either individually or as the
Karta of the HUF and hence the Hindu Succession Act is not
applicable.
20. Defendant No. 2 purchased the Kothi from the DDA using his
personal funds on a leasehold basis, which was subsequently,
converted to freehold through a conveyance deed dated 21.11.2000. In
addition, all the rights, titles and interests with respect to the said
property are with the defendant nos. 3 and 4, which was given to them
by defendant no. 2 by way of a registered Gift deed dated 24.08.2004.
Therefore, the plaintiff cannot claim any right over the said property.
21. The plaintiffs have relied on the Income Tax returns Income Tax
Returns of the HUF pertaining to the assessment years 2005-06; 2006
– 07; 2007- 08 to state that the Kothi was in the ownership of
defendant no. 1. In this regard, defendant no. 2 has pleaded that the
same is just an inadvertent error on the part of his consultant and even
otherwise, the Income tax Returns of the HUF do not change the
character of the said property, which after execution of the registered
gift deed became the absolute property of defendant nos. 3 and 4.
22. Further, the defendant nos. 3 and 4 have become the sole owners of
the Kothi and defendant no. 3 has registered a Power of Attorney
dated 17.12.2004 in favor of defendant no. 2 for collecting the rentals
with respect to the said property as well as for executing a lease deed.
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By:MAYANK
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A lease has also been executed with a tenant in the said property by
defendant no.2.
23. It is stated that the HUF, as alleged was created only for the purpose
of saving income tax and defendant no. 2- 4 were the only co-
parceners of the HUF. Defendant no. 2 never had any intention of
relinquishing any of his separate or individual rights, title and interest
in the Kothi in favor of the HUF i.e. defendant no. 1.
24. Defendant no. 2 and his second wife, Smt. Shanti Devi have executed
separate wills in favor of defendant nos. 3 and 4 and the plaintiffs
cannot claim any rights over any property under the said wills.
25. With respect to property bearing no. C-1034 and C-1035 situated at
Sushant Lok 1, Gurgaon, Haryana, it is stated that the said properties
were purchased by defendant nos. 3 and 4 in their own name and out
of their own funds and hence were never a part of the HUF. The
defendant nos. 3 and 4 have registered conveyance deeds dated
27.11.1995, with respect to the said properties and the plaintiffs have
not sought cancellation of the said conveyance deeds.
26. As regards, the bank account Nos. 2380241 and 525-1- 008486-5 held
with Standard Chartered Bank, Parliament Street, New Delhi, it is
stated that the same are the pension accounts of the defendant no. 2
and are separate and individual accounts of defendant no. 2 and are
not connected with the HUF.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NOS.
3 AND 4
27. Defendant nos. 3 and 4 by way of a written statement denied the
averments made by the plaintiffs and pleaded that the defendant no. 2
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took Kothi on lease in the year 1969 and thereupon, he built his house
on the said land out of his own funds. Therefore, Kothi is a self-
acquired property of defendant no. 2.
28. It is stated that defendant no. 2 never received any asset by way of
inheritance and he never created any HUF nor was the Karta/
coparcener of any HUF.
29. Assuming that even if there was an HUF under the name and style of
Ram Das HUF, then the same stood dissolved on 08.03.1997, when
Smt. Shanti Devi (mother of defendant nos. 3 and 4) passed away
executing a Will on 23.12.1995, whereby she had bequeathed her 1/4 th
share in the HUF in favour defendant nos. 3 and 4. Thus the
coparceners became co sharers of the HUF.
30. In addition, defendant no. 2 also gifted his rights with respect to the
Kothi to defendant nos. 3 and 4 and for the said purpose, he also
executed a Gift Deed on 24.08.2004, which was duly registered,
thereby gifting all his rights, titles and interest in favor of defendant
nos. 3 and 4. In addition, the said property has been mutated in the
names of defendant nos. 3 and 4 and they have been duly paying
electricity, water bills etc. Defendant nos. 3 and 4 have also been
paying house tax to the municipal authorities in respect of their
respective portions of the property. Hence the HUF if any stood
dissolved when Smt Shanti Devi passed away on 08.13.1997 or in the
worst-case scenario when the duly registered Gift Deed was made on
24.08.2004.
31. As regards, the properties bearing nos. C-1034 and C-1035 situated at
Sushant Lok 1, Gurgaon, Haryana is concerned, it is stated that the
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By:MAYANK
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said properties were never a part of any HUF as they were purchased
by defendant nos. 3 and 4 out of their own funds. Defendant nos. 3
and 4 are doctors by profession working in United Kingdom. It is
stated that the property bearing no. C-1034, Sushant Lok 1, Gurgaon,
Haryana was purchased by defendant no. 4 and property bearing no.
C-1035, Sushant Lok 1, Gurgaon, Haryana was purchased by
defendant no. 3 and the sale deeds with respect to the said properties
were executed on 27.11.1995.
ISSUES
32. The following issues were framed on 08.12.2008:
I. Whether any HUF as alleged by the plaintiffs existed at the
time of coming into force of Act 39/2005 amending Section
6 of the Hindu Succession Act? OPP
II. Whether properties mentioned in the plaint or any of them
were the properties of the HUF or were put in the HUF as
on the aforesaid date? OPP
III. If the issues No. 1 & 2 are decided in favour of the
plaintiffs, what share, if any, do the plaintiffs have in the
property/properties? OPP
IV. Whether the suit is correctly valued for the purposes of
court fees and jurisdiction, if not, to what effect? OPP
V. Whether the claim in the suit is barred by time? OPD
VI. Whether the amendment to Section 6 of the Hindu
Succession Act by Act No. 39/2005 is violative of the
constitutional rights of the defendants No. 2 to 4 under
Articles 14 and 300A of the Constitution of India? OPDDigitally Signed CS(OS) 2382/2007 Page 11 of 75
By:MAYANK
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VII. Whether on account of the marriage of the plaintiff/Dr.
Pushp Lata to a Muslim, she has ceased to have any right, if
any, to the property under section 19 of the Special
Marriage Act, 1954 or otherwise? OPD
VIII. Relief.
EVIDENCE LED BY THE PARTIES
33. The plaintiffs examined the following witnesses:
I. Dr. Pushp Lata – PW1 – (Plaintiff No. 1) who tendered her
evidence by way of affidavit, (PW1/A) and Evidence in Rebuttal,
(PW1/B), and was cross-examined. PW1 has exhibited the
following documents:
a. Exhibit P/1 – Autobiography of Defendant no. 2.
b. Mark X – (mentioned as Exhibit P/2 in the evidence
affidavit) – Photocopy of Will executed by defendant
no. 2 on 11.09.1987.
c. Exhibit P/3 (Colly) – Photocopy of statement of the
HUF Savings account No. 525-1-008486-5 held with
Standard Chartered Bank, Parliament Street, New Delhi
from March 2003 to May 2008 along with the bank
envelope.
d. Exhibit P/4 – Photocopy of cheque No. 453154, drawn
on Standard Chartered Bank, Sansad Marg, New Delhi
given by Defendant No. 2 to the plaintiff no. 1
e. Exhibit P/5 – Certified copy of account statement of
plaintiff No. 1 held with the HDFC Bank showing credit
of cheque No. 453154.
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f. Exhibit P/6- Photocopy of Plaintiff No.1’s letter to the
Manager, State Bank of India, A-5, Friends Colony,
New Delhi.
g. Exhibit P/7 – Photocopy of the transaction statement of
the PPF account No. 10485058884.
h. Exhibit P/8 – Certified copy of Tax returns of Defendant
No. 1 for the assessment year 2005 – 06.
i. Exhibit P/9 – Certified copy of Tax returns of Defendant
No. 1 for the assessment year 2006 – 07.
j. Exhibit P/10 – Certified copy of Tax returns of
Defendant No. 1 for the assessment year 2007 – 08.
k. Exhibit P/11 – Certified revised copy of Tax returns of
Defendant No. 1 for the assessment year 2007 – 08.
l. Exhibit P/12 – Information provided by the ITO Ward
22(2) in response to the Plaintiff’s letter dated
27.12.2008.
m. Exhibit P/13 and Exhibit P/14 – Letters dated
09.01.1999 issued by defendant no. 2.
n. Exhibit P/15 – Photocopy of Lease Agreement of
plaintiff No. 2.
o. Exhibit P/16 – Photocopy of the Gift Deed dated
24.08.2004 (subsequently exhibited as Exhibit PW1/D1
– Original Gift Deed dated 24.08.2004.)
p. Exhibit P/17 – not exhibited
q. Exhibit P/18 – not exhibited
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By:MAYANK
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II. Mr. Rajvir Singh (husband of Ms. Usha Singh i.e. plaintiff no.2)
– PW2 – who tendered his evidence by way of affidavit, (PW2/A)
and was cross-examined. PW2 has exhibited the following
documents:-
a. Mark PW 2/ 1, PW 2/ 2 and PW 2/ 3 – Photocopies of
M/s Ansal Properties and Industries Ltd. receipt numbers
301941 and 301942, both dated 05.09.1995 and receipt
number 190391 dated 12.01.1994
III. Mr. Sudhir Gupta (Chartered accountant) – PW3 – was duly
cross examined.
IV. Mr. Pankaj Chaturvedi (Assistant Manager, Ansal
Properties and Infrastructure Ltd.) – PW4 was cross
examined and has relied on the following documents during
his cross examination:
a. Exhibit P4/A – Payment details pertaining to C-1034,
situated at Sushant Lok 1, Gurgaon, Haryana along
with the photocopy of the Sale Deed.
b. Exhibit PW4/B (Colly) – Payment details pertaining to
C-1035, situated at Sushant Lok 1, Gurgaon, Haryana
along with the photocopy of the Sale Deed.
c. Exhibit PW4/C – Payment details pertaining to Unit
No. FF-18, Sushant Lok Vyapar Kendra.
V. Mr. Than Singh (Manager, SBI, Friends Colony Branch) –
PW5 – who tendered his evidence by way of cross-
examination. PW5 has relied on the following documents:-
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a. Exhibit PW – 5/A – Certified copy of Account opening
form of the HUF.
b. Exhibit PW – 5/B -Certified copy of letter dated
07.03.1989.
c. Exhibit PW – 5/C – Certified copy of Statement of
Account of Account bearing no. 10485058884.
d. Exhibit PW – 5/D – Certified copy of the statement of
the Account No. 10485014507 belonging to Mr.
Rajinder Vir Handa.
VI. Mr. Om Prakash (Inspector of Income Tax department)-
PW – 6, was cross examined and has relied on the following
documents during his cross examination:
a. Exhibit PW6/A – Photocopy of the E copy of the ITR
details of the HUF for the assessment years 2004-05.
VII. Mr. Lal Saheb Mishra (Supervisor in the Standard Chartered
Bank, 1st Floor, Express building) – PW – 7, who tendered
his evidence by way of cross examination and has exhibited
the following documents:
a. Exhibit PW – 7/1 – Certified copy of statement of
Account of the HUF bearing no. 525-1-008486-5
held with the Standard Chartered Bank
b. Exhibit PW – 7/2 – Certified copy of the Account
opening Form of the HUF with the Grindlays Bank.
c. Exhibit PW – 7/3 – Certified photocopy of the
signature card of defendant no. 2.
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d. Exhibit PW – 7/4 – Certified copy of the original
fresh signature card dated 12.10.1998 of defendant
no. 2.
e. Exhibit PW – 7/5 – Certified copy of Form DA-1 of
defendant no. 2.
f. Exhibit PW – 7/6 – Certified copy of the letter dated
13.11.1988 written by defendant no. 2 to the
manager of the Grindlays Bank.
g. Exhibit PW – 7/7 – Certified copy of the letter dated
17.12.1996 written by defendant no. 2 to the
manager of the Grindlays Bank.
h. Exhibit PW – 7/8 – Photocopy of the letter dated
17.12.1996 issued to defendant no. 2 by the
Customer Relation Officer.
VIII. Mr. Anil Kumar (Inspector, Income Tax Department) – PW
– 8, was cross examined and has relied on the following
documents during his cross examination:
a. Exhibit P/8 – Certified copy of Tax returns of
Defendant No. 1 for the assessment year 2005 – 06.
b. Exhibit P/9 – Certified copy of Tax returns of
Defendant No. 1 for the assessment year 2006 – 07.
c. Exhibit P/10 – Certified copy of Tax returns of
Defendant No. 1 for the assessment year 2007 – 08.
IX. Mr. Mustafa Ali (Registration clerk, Office of Sub
Registrar, Ghaziabad, Uttar Pradesh) – PW – 9, was crossDigitally Signed CS(OS) 2382/2007 Page 16 of 75
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examined and has relied on the following documents during
his cross examination:
a. Mark 9A – Photocopy of the document pertaining to
the registration of the HUF.
X. Mr. Rakesh Lal (property dealer) – PW – 10, who tendered
his evidence by way of affidavit, (PW-10/A) and was cross
examined.
34. The defendants have relied on the following evidences:
I. Dr. Vijay Das – DW1 – (Defendant No. 3) who tendered his
evidence by way of affidavit, (DW-3/A) and was cross-
examined. DW1 has exhibited the following documents:
a. Exhibit D-1 – Perpetual Lease Deed pertaining to
the Kothi.
b. Exhibit D-2 – Original Sale Deed pertaining to Plot
No. C-1034, Sushant Lok, Gurgaon, Haryana
executed in favor of defendant no. 4.
c. Exhibit D-3 – Conveyance Deed dated 21.11.2000.
d. Exhibit D-4 – Special Power of Attorney in favour
of Defendant no. 2 on 17.12.2004
e. Exhibit D-5 – Mutation dated 02.01.2006 issued by
the Municipal Corporation of Delhi with respect to
the Kothi in favor of the defendant no.4.
f. Exhibit D-6 – Mutation dated 02.01.2006 issued by
the Municipal Corporation of Delhi with respect to
the Kothi in favor of the defendant no. 3.
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g. Mark A – Will executed by the second wife of
Defendant no. 2 i.e. Smt. Shanti Devi on 23.12.1995.
h. Mark B/ Mark DW2/A /Exhibit DW 6/1- Certified
copy of the Will of Defendant no. 2 executed on
17.07.2004.
i. Exhibit PW1/D1 – Gift Deed dated 24.08.2008.
j. Exhibit DW1/D1 – Medical certificate dated
28.08.2004 of Defendant no. 2 certifying his medical
condition.
k. Exhibit DW 1/2 to Exhibit DW 1/13 – Receipts
issued by the Municipal Corporation of Delhi and
the electricity bills, water bills of the Kothi.
l. Exhibit DW 1/14 to Exhibit DW 1/23 – Photocopy
of the Income Tax Returns of defendant no. 2 for the
Assessment years 2005-2006, 2006-2007, 2007-
2008, 2008-2009, 2009-2010, 2010-2011, 2011-
2012, 2012-2013, 2013-2014 & 2014-2015.
m. Exhibit D-7 – Sale Deed pertaining to Plot No. C-
1035, Sushant Lok, Gurgaon, Haryana.
n. Exhibit DW 1/ 24 (Colly) – Photographs of
defendant no. 2.
o. Exhibit DW 1/25 – List of documents filed by
defendant no. 2 in this suit.
p. Exhibit DW1/DX1 (OSR) – Photocopy of the PIO
card issued in favor of defendant no. 3
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By:MAYANK
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II. Mr. Dharmender Mohan- DW2, – Registration clerk,
office of Sub Registrar – I, Meerut was cross-examined.
III. Mr. Rakesh Kumar -DW3, – Zonal Inspector, SDMC
(Central Zone) Sanwal Nagar, New Delhi who was
examined in Chief and thereafter was cross examined.
DW3 has proved the following documents:
a. Ex.DW3/l (OSR) – Photocopy of the application for
mutation filed by defendant no. 4.
b. Ex.DW3/2 (OSR) – Photocopy of the indemnity
Bond filed by defendant no. 3
c. Ex.DW3/3 (OSR) – Photocopy of the Affidavit of
defendant no. 3.
d. Ex.DW3/4 (OSR) – Photocopy of the application for
mutation filed by defendant. 4.
e. Ex.DW3/5 (OSR) – Photocopy of the Affidavit of
defendant no.4 with respect to the Kothi.
f. Ex.DW3/6 (OSR) – Photocopy of the indemnity
Bond filed by defendant no. 4.
IV. Mr. Vinay Kumar Das (defendant no. 4) had filed his
evidence by way of affidavit; however, he was dropped
from the list of witnesses on the statement made by the
counsel for defendant no. 4, namely, Mr. Sameer
Vashisht on 20.02.2017. Hence, Mr. Bharat Sanwaria,
Record Keeper, Sub Registrar – V, Mehrauli, New Delhi
was examined as defendant no. 4 (DW -4) and he proved
Exhibit PW1/D1, however on page no. 2 of the saidDigitally Signed CS(OS) 2382/2007 Page 19 of 75
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document dated 24.08.2004, “24” was filled with hand in
the original which was not available on the record of the
DW – 4.
V. Mr. Santosh Kumar (eldest son of Late Chaudhary Ranjit
Singh. Late Chaudhary Singh was the real uncle of
defendant no. 2) – DW5, who tendered his evidence by
way of affidavit, Exhibit – (DW-5/A) and was cross-
examined.
VI. Mr. Ashok Singh (attesting witness to the will of
defendant no. 2) – DW6, who tendered his evidence by
way of affidavit, Exhibit – (DW-6/A) and was cross-
examined. DW6 has exhibited the following documents:
a. Mark B/Mark DW2/A/Exhibit DW – 6/1- Certified
copy of the Will of defendant no. 2 executed on
17.07.2004.
b. Exhibit DW – 6/2 – Certified copy of the site plan.
FINDINGS
35. I have perused the material on record and heard the arguments
advanced by the learned counsels for the parties.
36. The issues are decided as under: –
Issue no. 1: Whether any HUF as alleged by the plaintiffs existed
at the time of coming into force of Act 39/2005 amending Section 6
of the Hindu Succession Act? OPP
Issue no. 2: Whether properties mentioned in the plaint or any of
them were the properties of the HUF or were put in the HUF asDigitally Signed CS(OS) 2382/2007 Page 20 of 75
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on the aforesaid date? OPP
37. The issue are inter related and are being dealt together: –
38. Mr. Nishchal, learned counsel for the plaintiffs submits that defendant
no. 2, established defendant No. 1 i.e. Ram Das HUF, in 1978 by
transferring his self-acquired property no. A-28, Friends Colony East,
New Delhi, into the common hotchpotch for the benefit of his family.
The existence of the HUF is supported by the registered will dated
11.09.1987 (Mark X) executed by defendant No. 2. Additionally, the
existence of the HUF is also declared in the Income Tax Returns filed
for the HUF for the assessment years 2005-06, 2006-07, and 2007-08
(Exhibits P/8 to P/10).
39. There is an admission by the defendants themselves regarding the
creation of the HUF. Defendant no. 2 himself had admitted the fact
that the HUF was created for the common good of the family and for
the purpose of saving income tax. In this regard, learned counsel
draws my attention to para 9 of the Written Statement of the defendant
no. 2 and the same reads as under:-
―9. ……the H.U.F was created merely to save on income
tax and not for any other purposes. In any case prior to the
coming into force of the Amending Act, the answering
Defendant and Defendants no. 3 & 4 were the only
coparceners of the alleged H.U.F. and a gift was made by
the answering Defendant in favor of the remaining
coparceners i.e. Defendant no. 3 & 4 and which has been
duly accepted and acted upon by the parties and as such the
property bearing no. A-28, Friends Colony East, New DelhiDigitally Signed CS(OS) 2382/2007 Page 21 of 75
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lost its nature as a Joint Family property, if it ever held
such character though denied, and as such no right can be
claimed upon the same by the Plaintiff in the capacity of
being a coparcener.‖
40. He further states that defendant nos. 3 and 4 had initially denied the
existence of the defendant no. 1, however, during the proceedings,
they subsequently admitted to the creation of defendant No. 1, albeit
stating that the defendant no. 1 was only created for the purpose of
saving income tax. In this regard, he draws my attention to para 7 of
the evidence by way of affidavit of defendant no. 3. (Exhibit DW
3/A), whereby defendant no. 3 deposed as under:-
―7. I say further that the above property was acquired and
was acquired, constructed and maintained by late Dr Ram
Das from his own funds and was his only residential house.
I say further that late Dr Ram Das only for the purpose of
saving tax, established an HUF comprising of himself, his
wife Late Smt Shanti Devi, the deponent and Dr Vinay
Kumar Das as the only named coparceners as regards the
property bearing No. A-28, Friends Colony (East) New
Delhi. I say further that though the character of the
property was never changed, but for the mere purpose of
saving tax the rental income of the ground floor was shown
as HUF income. There had never been any intention to
throw the property in the alleged common pool change its
character from individual property to HUF property which
is well apparent from the fact that the Perpetual Lease inDigitally Signed CS(OS) 2382/2007 Page 22 of 75
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respect of the property was obtained in his individual name
and at a later date even the Conveyance Deed was obtained
and registered in his individual name and not as HUF
property.‖
41. He states that defendant no. 2, also in his Will dated 11.09.1987 (Mark
X) has demarcated the properties of HUF and has bequeathed his
share of the HUF in favor of his second wife i.e. Smt. Shanti Devi and
defendant nos. 3 and 4. The said will has also been duly registered and
the parties have acted upon it which clearly indicates the existence of
the HUF. The operative portion of the Will dated 11.09.1987 reads as
under:-
―AND WHEREAS I hereby devise and bequeath that after
my death, my one-fourth interest in the House No. A-28,
situated in Friends Colony East, New Delhi belonging to the
said H.U.F. to my two sons namely Dr. Vijay Kumar Das
and Dr. Vinay Kumar Das and my wife Smt. Shanti Devi
equally meaning thereby that all the three will be entitled to
further 1/12th share in the house. As regards my interest in
the investment in the Unit Trust and Bank balance in
account No. 67992 as stated above, my two sons namely Dr.
Vijay Kumar Das and Dr. Vinay Kumar Das and my wife
Smt. Shanti Devi will share equally.‖
42. He states that the HUF continues to exist as no partition deed or order
under Section 171 of the Income Tax Act has been filed by the
defendants. It is further stated that the said HUF can only be dissolved
through a complete partition of its properties, which has not taken
Digitally Signed CS(OS) 2382/2007 Page 23 of 75
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place. Therefore, the HUF remains intact and has not been dissolved.
In addition, the dissolution of the HUF or the transfer of rights in HUF
properties cannot occur because of:-
A. The Will of Late Smt. Shanti Devi (second wife of
defendant no. 2) executed in 1995 does not automatically
dissolve the HUF.
B. The Will (Mark A) executed by defendant no. 2 on
17.07.2004 is void ab initio or even otherwise
inconsequential because the same has been executed by
defendant no. 2 in his individual capacity, when he was no
longer the sole and absolute owner of the property and he
could not have given away the property as claimed by him
in the Will. In this regard, learned counsel places reliance on
Jugal Kishore vs Roshan Lal and Anr. (2017 SCC OnLine
Del 8732).
C. The Gift Deed (Exhibit PW1/D1) executed by defendant no.
2 on 24.08.2004 with respect to the Kothi is also void ab
initio as the defendant no. 2 i.e. the donor was not the
absolute owner of the Kothi. Defendant No. 2 made the gift
deed in his individual capacity claiming to be the sole and
absolute owner of the Kothi, when the said property had
already been specifically declared to be property of the HUF
in the year 1978. In this regard, learned counsel places
reliance on Thamma Venkata Subbamma (Dead) By L.R
vs ThammaRattamma (1987) 3 SCC 294. Additionally, the
execution date mentioned on the gift deed filed by theDigitally Signed CS(OS) 2382/2007 Page 24 of 75
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defendant nos. 2, 3 and 4 is hand-written with pen, which is
at variance with the one brought by DW4 i.e. Record
Keeper, Sub registrar V, Mehrauli, where the execution date
is missing. In addition, the gift deed was never acted a upon
as defendant no. 2 continued to receive the rental income
from the Kothi and the same was deposited in the account of
the HUF.
43. He further states that during the pendency of the proceedings, some
properties/assets have been discovered by the plaintiffs i.e. a PPF
account bearing no. 10485058884 in the name of the HUF held
withthe SBI, Friends Colony East, New Delhi, and a shop bearing no.
FF18, booked in the names of defendant nos. 3 and 4, situated in
Sushant Lok Vyapar Kendra, Gurgaon. It is stated that the said
assets/properties have been purchased by the funds of the HUF and
have not been disposed of, hence were HUF properties as on
09.09.2005.
44. He further submits that the other immovable properties being C-1034
and C-1035, Sushant Lok-I, Gurugram, Haryana, were also purchased
using the funds of the HUF and, therefore, constitute HUF properties.
Additionally, the HUF also holds movable assets, including 7,700
Units of U.T.I valued at Rs. 1 lakh, bank balance in Account No.
67972 (subsequently renumbered to 525-1-008486-5) held with
Standard Chartered Bank (formerly Grindlays Bank), Parliament
Street, New Delhi and bank balance in Account no. 2380241 also held
with Standard Chartered Bank, Parliament Street, New Delhi. These
assets were also HUF properties and were available for partition as of
Digitally Signed CS(OS) 2382/2007 Page 25 of 75
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09.09.2005 i.e. when the amended section 6 of the Hindu Succession
Act came into force.
45. Since the defendants have been appropriating the proceeds of the HUF
to the exclusion of the plaintiffs, the plaintiffs are entitled to their
rightful share in the aforementioned properties, including rendition of
accounts of the rents received from the HUF property.
46. Mr. Vashist, learned senior counsel for the defendants vehemently
opposes the contentions raised by the plaintiffs and states that the
HUF was created only for the Income Tax purposes and there was
neither any intention nor any act of throwing the immovable property
i.e. the Kothi into the common stock. Moreover, there was no pre-
existing common stock/ ancestral property/ nucleus in existence when
the alleged HUF was created.
47. He states that in the absence of any ancestral properties/ nucleus, there
is no concept of blending applicable and in the absence of any
blending the property continues to be held individually and does not
assume the character of Joint Family property. Learned senior counsel
places reliance on Jupudi Venkata Vijayabhaskar vs. Jupudi Kesava
Rao and Ors. 1994 SCC OnLine AP 1; Mallesappa Bandeppa Desai
& Anr. vs. Desai Mallappa alias Mallesappa & Anr 1961 SCC
OnLine SC 270; Goli Eswariah vs. Commissioner of Gift Tax,
Andhra Pradesh 1970 (2) SCC 390. In this regard, defendant no. 3 in
his evidence by way of affidavit (Exhibit DW 3/A) deposed as under:-
―7…. I say further since there was no ancestral funds, ancestral
income, parental income which fell to the share of late Dr Ram
Das or was available to him and as such, the said propertyDigitally Signed CS(OS) 2382/2007 Page 26 of 75
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always remained individual property. I say further that even the
leasehold rights were converted to Freehold and Conveyance
Deed executed in the name of late Dr Ram Das in his individual
capacity on 21.11.2001 is exhibited as Exhibit D-3.‖
48. He further states that the plaintiffs have not led any evidence of
existence of any ancestral property received by the defendant no. 2.
The onus of proving the existence of such ancestral property lies
squarely upon the plaintiffs. The cross examination of the plaintiff no.
1 also shows that the plaintiffs have been unable to show the ancestral
nucleus of the HUF.
49. In this regard, Mr. Santosh Kumar (DW-5) in his evidence deposed as
under:-
―2. I say that Late Dr. Ram Das had inherited a land
admeasuring 7 Bighas of agricultural land situated in
Village Mangalore (Nibhara) Distt. Bulandshahr, Uttar
Pradesh. I say further that though the said land was
inherited by Late Dr. Ram Das but the said land had always
been in possession, cultivation and control of our family.
3. I say further that Late Dr. Ram Das had educated himself
and had never cultivated the aforementioned land nor
derived any benefits.
4. I say further that Late Dr. Ram Das had given up his
rights over the said land and had neither demanded any
compensation for the said land nor has demanded any share
out of the income derived from the aforementioned land.‖Digitally Signed CS(OS) 2382/2007 Page 27 of 75
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50. He states that the said factum of defendant no. 2 not having any
ancestral property has also been reiterated in the autobiography of
defendant no. 2 (Exhibit P – 1).
51. He further states that the defendants have taken a specific stand that
the Kothi was a self-acquired property of Defendant no. 2 and he had
executed a registered Gift Deed in favor of defendant nos. 3 and 4,
divesting himself of all the rights in the said property and vesting of
the specified portions of the entire property by partitioning and
dividing the same in favor of the defendant nos. 3 and 4.
52. He further submits that the plaintiffs have failed to produce any
evidence to substantiate their allegation that the HUF came into
existence in the year 1978. The allegation remains unsupported by any
documents or credible evidence on record. Further, the plaintiffs have
not demonstrated the availability of any funds or income attributable
to the alleged HUF.
53. He submits that no HUF was constituted by defendant No. 2.
However, without prejudice to this contention, even if it is presumed
that an HUF existed, the same stood dissolved on 08.03.1997 when,
Smt. Shanti Devi passed away, executing a will on 23.12.1995,
bequeathing her share in the HUF property to defendants No. 3 and 4,
thereby converting the coparceners into co-sharers. Furthermore,
Defendant No. 2 gifted his rights in the Kothi to defendants No. 3 and
4 through a duly registered gift deed. In the Gift Deed (Exhibit
PW1/D1) and the Will dated 17.07.2004 (Mark
B/MarkDW2/A/Exhibit DW6/1), the defendant no. 2 partitioned the
Kothi by metes and bounds with clear demarcation of the individual
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portions/specified areas with defendant no. 3 and defendant no. 4.
Further, the respective portions of the Kothi are in possession of the
defendant nos. 3 and 4, have been duly mutated in their name and they
have been paying water and electricity bills of their respective
portions since 24.08.2004.
54. He submits that as regards, the properties C-1034 and C-1035,
Sushant Lok-I, Gurugram, Haryana are concerned, the said properties
are purchased by defendant nos. 3 and 4 out of their own funds and
have no relation to the HUF. None of the properties mentioned in the
plaint were available for partition on 09.09.2005 i.e. the date when the
Hindu Succession Amendment Act came into force. Moreover, since
the plaintiff no. 1 is married to a Muslim of Pakistani origin, she has
ceased to be a Hindu under the ambit of section 19 of the Special
marriage Act, which clearly provides that a marriage of a person
solemnized under the Special Marriage Act will amount of severance
from any such family covered under the Hindu Succession Act.
55. Before delving further into the matter, it is crucial to examine the
existence of the HUF. In the present matter, defendant no. 2 explicitly
acknowledged the creation of the HUF and its assets in his Will dated
11.09.1987 (Mark X), where he bequeathed his one-fourth share in the
HUF properties to his second wife, Smt. Shanti Devi, and his two
sons, defendant nos. 3 and 4. Similarly, Smt. Shanti Devi, in her Will
dated 23.12.1995 (Mark A), affirmed that the Kothi had been made
part of the HUF by defendant no. 2. Though these documents are not
exhibited the same have been filed by defendant nos. 3 and 4 and their
authenticity has also not been disputed by the plaintiffs. In addition,
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the defendant no. 2, in para 9 of his Written Statement, and defendant
no. 3 in para 7 of his evidence by way of affidavit (Exhibit DW 3/A)
have explicitly acknowledged the existence of the HUF, albeit
claiming it was created solely for the purpose of saving income tax.
They have stated that the defendant no. 2 established the HUF
comprising himself, his second wife i.e. Smt. Shanti Devi, and
defendant nos. 3 and 4, as coparceners. The Kothi was also identified
as part of the HUF. Further, the existence of the HUF has also been
shown before the Income Tax Authorities in the Income Tax Returns
of the HUF pertaining to the assessment years 2005-06; 2006 – 07;
2007- 08 (Exhibit P/8 – P/10). Thus, based on the consistent
declarations and the actions of the parties involved, it is evident that
the existence of the defendant no. 1 i.e. Ram Das HUF cannot be
denied.
56. The arguments raised by the defendants that no ancestral property or
nucleus existed when the HUF was created and without the concept of
the blending, the Kothi cannot be given the character of the HUF is
misplaced.
57. In the present case, the Kothi is the self-acquired property of
defendant no.2 and there was no ancestral property/nucleus at the time
when the HUF was created in the year 1978, however, the fact
remains that it was defendant No.2, himself, who put the Kothi in the
common hotchpotch of defendant No.1. i.e. Ram Das HUF for the
common good of his family.
58. Defendant No. 2, acting as the Karta of the HUF, had a clear intention
to include the Kothi in the common hotchpotch of HUF
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assets/properties. Given the clear intention and the actions of the
defendant no. 2, the argument raised by the defendants that there was
no property/nucleus or there was no concept of blending is
misconceived.
59. I am of the view that the Kothi was a part of the HUF and had
acquired the character of joint family property. It is a settled position
of law that an HUF can be created even if there is no preexisting
coparcenary/Hindu undivided family property. In this regard, the
judgment laid down by this Court in Captain Bhupinder Singh Suri
vs Naresh Kumar Suri and others 2017 SCC OnLine Del 7214 is
relevant. The operative portion reads as under:-
―36. I highlight (though it is already the reasoning in Surjit
Lal Chhabda as well as of the learned Single Judge in
Kewal Krishan Mayor supra) that in the present case Major
Khemraj Suri by the Declaration dated 25th February, 1969
constituted the HUF comprising of himself, his wife and his
sons. It is not as if HUF was constituted with any strangers.
The HUF was created with his wife and sons and daughters,
with whom as per law, there could be a HUF. The act of
creation of HUF was a unilateral act of declaration by
Major Khemraj Suri and not a contract with his wife and
sons and daughters. Mulla, in 21st Edition (2010) on Hindu
Law in Chapter XII in paragraph 212 titled ―Formation of
coparcenary‖ has authored that ―the conception of a joint
Hindu family constituting a coparcenary is that of a
common male ancestor with his lineal descendants in theDigitally Signed CS(OS) 2382/2007 Page 31 of 75
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male line within four degrees counting from, and inclusive
of, such ancestor (or three degrees exclusive of the
ancestor). No coparcenary can commence without a
common male ancestor, though after his death, it may
consist of collaterals, such as brothers, uncles, nephews,
cousins, etc.‖ and that ―no female can be a coparcener,
although a female can be a member of a joint Hindu
family‖. I also do not find any basis to hold that a Hindu
male living jointly with his wife, sons and daughters, even if
there is no joint family property and no jointness in law in
the name of HUF, cannot form a Joint Hindu Family or a
Hindu Undivided Family with his wife, sons and daughters
or that to be able to so, he has to wait to have grandsons
and great grandsons.
37. The contention that, a Hindu male cannot create a
Joint Hindu Family or a Hindu Undivided Family along
with his wife, sons and daughters, if has no existing Joint
Hindu Family/coparcenary/Hindu Undivided Family or
existing joint Hindu property or coparcenary property or
Hindu Undivided Family property, cannot be accepted also
for the reason that it is the settled principle of law that
even after partition amongst members of the
coparcenary/Joint Hindu Family or Hindu Undivided
Family, whereafter, there is no Joint Hindu Family/Hindu
Undivided Family/coparcenary in existence, they can
reunite and a Hindu Undivided Family/Joint HinduDigitally Signed CS(OS) 2382/2007 Page 32 of 75
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Family/coparcenary can again come into existence.
Reference, if any in this regard can be made to Bhagwan
Dayal v. Reoti Devi AIR 1962 SC 287 and Anil Kumar
Mitra v. Ganendra Nath Mitra (1997) 9 SCC 725.
38. I find a coordinate bench also to have in Surender
Kumar v. Dhani Ram AIR 2016 Del 120 held that the only
way in which a HUF/Joint Hindu Family can come into
existence after the coming into force of the Hindu
Succession Act is if an individual’s property is thrown into
a common hotchpotch.
(emphasis supplied)
60. The next issue for determination is whether the HUF was dissolved
upon the execution of Smt. Shanti Devi’s Will, dated 23.12.1995
(Mark A), wherein she bequeathed her 1/4th share in the Kothi to
defendant nos. 3 and 4 and the subsequent execution of the Gift Deed
on 24.08.2024 (Exhibit PW1/D1) by defendant no. 2, through which
he gifted the Kothi to defendant nos. 3 and 4, ultimately making
defendant nos. 3 and 4, the absolute owners of the Kothi.
61. In the present case, the HUF was created with 4 coparceners being (i)
defendant no. 2 i.e. Mr. Ram Das (since deceased) (ii.) Smt. Shanti
Devi (since deceased) (iii.) defendant no. 3 and (iv.) defendant no. 4.
62. Smt. Shanti Devi, being a coparcener was entitled to deal with her
share in the HUF properties, which she so did by executing a Will on
23.12.1995 (Mark A), whereby she bequeathed her share of the HUF
properties in favour of defendant nos. 3 and 4. As per her will, her
share in the ground floor of the Kothi was to go to defendant no. 3 and
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her share in the first and the second floor along with barsati was to go
to defendant no. 4. Her share in the garage and the servant quarter
were also to be equally divided among both the sons. Consequently,
when she died on 08.03.1997, the HUF comprised of defendant Nos.
2, 3 and 4.
63. Defendant no. 2 had gifted the Kothi to defendant nos. 3 and 4 by way
of the Gift Deed dated 24.08.2004. The Gift Deed is dated 24.08.2004
and was duly registered with the Sub-Registrar vide registration No.
10760, Book No. 1, Volume 4258, pages 105 to 121 on the same date.
Through the Gift Deed, the Kothi was partitioned by metes and
bounds with clear demarcation of the individual portions / specified
areas to be held by defendant nos. 3 and 4. Ground floor of the Kothi
along with one garage, open space and lawns was to exclusively
belong to the defendant no. 3 and the first floor, second floor with roof
rights, one garage and servant quarter of the Kothi was to exclusively
belong to the defendant no. 4.
64. On 24.08.2004, defendant Nos. 2, 3 and 4 were the only coparceners
of the HUF and the Gift Deed has been executed by defendant No. 2
with the consent of defendant Nos. 3 and 4, whereby the defendant no.
2 signed the Gift Deed as the donor and defendant nos. 3 and 4 signed
the Gift Deed as the donees.
65. I am of the view that with the execution of the Gift Deed (Exhibit
PW1/D1), the Kothi lost the character of a Joint family property on
24.08.2024 i.e. the date when the Gift deed came to be registered. In
this regard, the Hon‟ble Supreme Court in V.N. Sarin v. Major Ajit
Kumar Poplai 1965 SCC OnLine SC 301 inter alia held as under:-
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―10……Community of interest and unity of possession are
the essential attributes of coparcenary property; and so, the
true effect of partition is that each coparcener gets a
specific property in lieu of his undivided right in respect of
the totality of the property of the family. In other words,
what happens at a partition is that in lieu of the property
allotted to individual coparceners they, in substance,
renounce their right in respect of the other properties; they
get exclusive title to the properties allotted to them and as a
consequence, they renounce their undefined right in respect
of the rest of the property. The process of partition,
therefore involves the transfer of joint enjoyment of the
properties by all the coparceners into an enjoyment in
severality by them of the respective properties allotted to
their shares. Having regard to this basic character of joint
Hindu family property, it cannot be denied that each
coparcener has an antecedent title to the said property,
though its extent is not determined until partition takes
place. That being so, partition really means that whereas
initially all the coparceners have subsisting title to the
totality of the property of the family jointly, that joint title is
by partition transformed into separate titles of the
individual coparceners in respect of several items of
properties allotted to them respectively. If that be the true
nature of partition, it would not be easy to uphold the broad
contention raised by Mr Purshottam that partition of anDigitally Signed CS(OS) 2382/2007 Page 35 of 75
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undivided Hindu family property must necessarily mean
transfer of the property to the individual coparceners. As
was observed by the Privy Council in Girja Bed v. Sadashiv
Dhundiraj [43 IA 151 at p. 161] ―Partition does not give
him (a coparcener) a title or create a title in him; it only
enables him to obtain what is his own in a definite and
specific form for purposes of disposition independent of the
wishes of his former co-sharers.‖
(emphasis supplied)
66. Hence, by way of the Gift Deed, the defendant no. 2 has gifted his
rights in the Kothi to defendant nos. 3 and 4 and the coparcenary
property i.e. the Kothi stood divided by metes and bounds. The
operative portion of the Gift Deed reads as under:-
―GIFT DEED
This Gift Deed is made and executed at Delhi on this 24th Day
of August, 2004 by Dr. Ram Das son of Sh. B. Singh resident
of A-28, Friends Colony East, New Delhi, hereinafter called
‗DONOR’ of the one part.
IN FAVOUR OF
(i) Dr. Vijay Kumar Das (ii) Dr. Vinay Kumar Das sons of Dr.
Ram Das both resident of A-28, Friends Colony East, New
Delhi, hereinafter called the ‗DONEES’ of the other part and
have blood relations, Donees being sons at Donor.
The expression of the Donees shall mean and include their
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respective legal heirs, successors, executors, administrators,
representatives and assignees.
…..
And whereas the donor is the sole absolute & exclusive owner
and in possession of freehold built-up property bearing No. A-
28, measuring 501.67 Sq. Mtrs., shown in the layout plan of
Friends Colony Residential Scheme, now known as Friends
Colony East, New Delhi, with the freehold rights of land
beneath the same.
And whereas the said donor is desirous to gift and is gifting the
aforesaid freehold built-up property bearing No. A-28
measuring 501.67 Sq. Mtrs., shown in the Layout plan of
Friends Colony Residential Scheme, now known as Friends
Colony East, NewDelhi in the manner prescribed hereunder,
(hereinafter called the said property)
to his sons namely (i) Dr. Vijay Kumar Das – Entire Ground
Floor portion without terrace/roof rights, with front lawn and
back yard, one left side garage at Ground Floor alongwith one
servant quarter above garage out of above mentioned freehold
property and (ii) Dr. Vanay Kumar Das – Entire First Floor
and one barsati and mumty on Seconal Floor, with entire
terrace /roof rights, one right side garage at Ground Floor
alongwith one servant quarter above garage, out of above
mentioned freehold property, due to natural love and affection
without any monetary consideration, possessing good health
Digitally Signed CS(OS) 2382/2007 Page 37 of 75
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and sound disposing mind.
(i.) Dr. VIJAY KUMAR DAS’S PORTION:
Entire Ground Floor portion without terrace/roof rights, with
frond lawn and back yard, one left side garage at Ground Floor
alongwith one servant quarter above garage, with root rights,
out of freehold built-up property bearing No. A-28, measuring
501.67 Sq. Mtrs., shown in the layout plan of Friends Colony
Residential Scheme, now known as Friends Colony East, New
Delhi, alongwith proportionate undivided, indivisible &
impartiable rights of land beneath the same, more particularly
shown in Green Colour in site plan annexed herewith and
common portion shown in yellow colour.
(ii.) DR. VINAY KUMAR DAS’S PORTION:
Entire Fist Floor and one barsati & mumty on Second Floor
with entire terrace/roof rights, one right side garage at Ground
Floor alongwith one servant quarter above garage, with roof
rights, out of freehold built-up property bearing No. A-28,
measuring 501.67 Sq. Mtrs., shown in the layout plan of Friends
Colony Residential Scheme, now known as Friends Colony East,
New Delhi, alongwith proportionate undivided, indivisible &
impartiable rights of land beneath the same, more particularly
shown in Red colour in site plan annexed herewith and common
portion shown in yellow colour.
NOW THIS DEED WITNESSES AS UNDER: –
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1. That actual, physical possession of respective portions of
above said property is already handed over by the donor to the
donees in advance of this Gift Deed and the donees have
occupied the same, the proprietory/symbolic possession is being
handed over by the donor to the donees.
2. That all previous dues such as House-Tax, Electricity and
Water bills etc. of the said property upto the date of execution of
this Gift Deed shall be paid by the Donor to all the concerned
authorities and later on the same shall be paid & borne by the
donees.
3. That original documents such as Lease Deed, Conveyance
Deed of the freehold property etc. relating to the said property
have been handed over by the Donor to donee at No.1 namely
Dr. Vijay Kuamr Das and the photocopies of the same have
been handed over to donee at No.2 namely Dr. Vinay Kumar
Das, and the Dr. Vijay Kumar Das hereby undertake to produce
the original for the inspection as and when required.
4. That the donor assures the donees, that said property is
free from all sorts of encumbrances such as prior sale,
mortgage, gift, litigation, attachment, notification, acquisition,
surety, lien, etc. whatsoever and if it is proved otherwise then
the donor shall be liable and responsible for the same.
5. That the Donor has gifted, transferred, conveyed, assigned,
handed over all his rights, titles, powers, interests, authorities of
ownership of under gift (in the manner prescribed above), unto
the Donees by way of this Gift Deed.
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6. That all the expenses of this Gift Deed shall be borne by
the Donor such as stamp papers, execution and registration
charges etc. whatsoever.
7. That the Donees have become sole and absolute owner of
aforesaid property, by way of this Gift Deed and shall be fully
entitled, empowered, authorised to use, enjoy, occupy, hold,
sale, mortgage, gift, exchange, lease out or to transfer or to
dispose off their respective portion in any manner, as the
Donees deem fit and proper to do so as their own property
without any claim, demand, objection by the Donor or any of his
legal heir or any other person claiming under the Donor.
8. That the Donees shall also be fully entitled, empowered,
authorised to get their respective portions mutated and
transferred in their own name in all the concerned Govt.
Revenue Records/MCD on the basis of this Gift Deed even in the
absence of the Donor also. The donees shall be entitled to
obtain new electricity/water connections/meters in their own
name in their respective portion at their own costs & expenses.
9. That the Donor has obtained the valuation report of the
said property from Govt. Approved Valuer (report enclosed
herewith) for the purpose of stamp duty and the valuation comes
out to Rs. 47,08,500/-.
10. That the passage from the main door upto garage and also
side entrance from common passage on ground floor (below
porch) is marked as common portion (show in yellow colour in
site plan) and this property shall be used by both the donees and
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their authorized representatives.
11. That the new owners and their respective successors of
said property by way of this gift deed shall have no right to use
common staircase passage leading from ground floor to top
floor to go to terrace of top floor for repairing/maintenance of
T.V./Cable Antenna & Overhead Water Tank only and the
occupant(s)/owner(s) of top floor shall have no objection in this
regard.
12. That the said Donees accept the said gifted property.
13. That the donor hereby declares that this Gift Deed is
executed by donor with full understanding and of his free will
without any pressure from any person(s).
67. It is well-established in law that nothing prevents a coparcener from
gifting his undivided interest in a coparcenary property to the other
coparceners. In this regard, reliance is placed on the judgment passed
by the Hon‟ble Supreme Court in Thamma Venkata Subbamma
(Dead) By L.R vs Thamma Rattamma (1987) 3 SCC 294, wherein the
Hon‟ble Supreme Court observed:-
―17. It is, however, a settled law that a coparcener can
make a gift of his undivided interest in the coparcenary
property to another coparcener or to a stranger with the
prior consent of all other coparceners. Such a gift would be
quite legal and valid.‖
(emphasis supplied)Digitally Signed CS(OS) 2382/2007 Page 41 of 75
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68. Further, the Hon‟ble Supreme Court in M.R. Vinoda v. M.S.
Susheelamma, (2021) 20 SCC 180 while reiterating the position laid
down in Thamma (supra) inter alia held as under:-
―23. This judgment in Thamma Venkata Subbamma
[Thamma Venkata Subbamma v. Thamma Rattamma,
(1987) 3 SCC 294] draws a distinction between gifts and
relinquishment by a coparcener of his share; and the head
of the branch or karta as the representative or eldest
member of the branch. Former is valid and legal, provided
the relinquishment is in favour of all other coparceners. The
gift or relinquishment would also be valid if it is with the
prior consent of another coparcener. Equally, a
coparcener may make a gift of his undivided interest in the
coparcenary property to another coparcenary with the
prior consent of other coparceners.
24. Mulla’s Hindu Law, 22nd Edn. vide Article 262, states
that a coparcener may renounce his interest in favour of the
other coparceners as a body, but not in favour of one or
more of them. When he renounces in favour of one or
more of them, the renunciation enures for the benefit of
all other coparceners and not for the sole benefit of the
coparcener or coparceners in whose favour the
renunciation is made. A similar exposition vide Article 407
in Mayne’s Treatise on Hindu Law and Usage, 17th Edn.,
states that a gift by a coparcener of his entire undivided
interest in favour of the other coparcener or coparceners is
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valid whether it is regarded as one made with the consent of
the other or others or as a renunciation of his interest in
favour of all. Referring to the judgment in Thamma Venkata
Subbamma [Thamma Venkata Subbamma v. Thamma
Rattamma, (1987) 3 SCC 294], Mayne’s Treatise on Hindu
Law and Usage observes that renunciation in the form of
ostensible gift may have the effect of relinquishment and if it
enures for the benefit of all the coparceners, such gift would
be construed as valid. In addition, Mulla’s Hindu Law, 22nd
Edn. recognises that a father or other managing member of
the ancestral immovable property can make gifts within
reasonable limits for ―pious purposes‖. [See Articles 223
and 224 at pp. 332 and 333, Mulla’s Hindu Law, 22nd Edn.]
(emphasis supplied)
69. Since the HUF only comprised of defendant nos. 2, 3 and 4, on the
date of the execution of the Gift Deed i.e 24.08.2004, in view of the
law discussed above nothing prevented the defendant no. 2 to gift his
interest in the Kothi being the coparcenary property in favor of the
other coparceners i.e. defendant nos. 3 and 4.
70. The fact that defendant no. 2 in the gift deed has purported to say that
he is the owner of the entire property No. A-28, Friends Colony
(East), New Delhi-110065 will not make the gift deed void ab initio.
The intention of defendant no. 2 was to transfer his interest in the
Kothi in favor of defendant nos. 3 and 4. Whether defendant no. 2
owned the entire Kothi or as a coparcener only a portion of the same
will not make any difference as the Kothi was being partitioned and
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being gifted to defendant nos. 3 and 4 by metes and bounds. Post the
execution of the registered gift deed dated 24.08.2004, it would only
be defendant nos. 3 and 4 who would be entitled to own the Kothi as
per their respective demarcated shares. On the date of the execution of
the gift deed, the amendment to section 6 of the Hindu Succession Act
was not in existence. Hence, the plaintiffs had no share in defendant
no. 1 i.e. the HUF on the date, the Gift Deed was executed.
71. Pursuant to the execution of the Gift Deed, the defendant nos. 3 and 4
have been in possession and occupation of their respective portions in
the Kothi and the said portions have also been mutated in favour of
defendant nos. 3 and 4 (Exhibit D-5 and Exhibit D-6). respectively.
72. In this regard, DW – 3, Mr. Rakesh Kumar in his cross examination
on 18.01.2017 deposed as under:-
―18.01.2017
I have brought the summoned record i.e. the application
filed by Mr. Vinay Kumar Das and Mr. Vijay Kumar Das,
both sons of Sh. Ram Das for mutation of the property No.
A-28, Friends Colony (East), New Delhi-110065 alongwith
the documents filed by them vide Dy. No. 5194 dated
26.12.2005. The property was mutated in the names of the
applicants vide two letters dated 02.01.2006. The letters are
already exhibited as Ex.D5 and Ex. D6. The receipts
showing payment of house tax are correct as per our
records and the same are already exhibited as Ex.DW1/12
and Ex.DW1/13. As per the records of SDMC, the aforesaid
property was assessed in the name of Dr. Ram Das in theDigitally Signed CS(OS) 2382/2007 Page 44 of 75
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year 1994. The property remained assessed in the name of
Dr. Ram Das till 2006. The property returns after 2006 have
been filed by Mr. Vinay Kumar Das and Mr. Vijay Kumar
Das. The copy of the application for mutation is now
exhibited as Ex.DW3/1 (OSR). The copy of Indemnity Bond
filed by Mr. Vijay Kumar Das is exhibited as Ex.DW3/2
(OSR). The affidavit of Mr. Vijay Kumar Das is exhibited as
Ex.DW3/3 (OSR). The copy of application for mutation by
Mr. Vinay Kumar Das is exhibited as Ex.DW3/4(OSR). The
affidavit of Mr. Vinay Kumar Das is exhibited as Ex.DW3/5
(OSR). The copy of Indemnity Bond filed by Mr. Vinay
Kumar Das is exhibited as Ex.DW3/6 (OSR).
73. Further, the electricity and the water connections were also transferred
in the name of defendant nos. 3 and 4. It is stated that since the date of
the Gift Deed i.e. 24.08.2004, the house tax and other bills are being
paid by defendant nos. 3 and 4 for their respective portions (DW 1/2
to Exhibit DW 1/13).
74. In this regard, defendant no. 3 (DW – 1) in his evidence deposed as
under:-
―12. I say further that after the execution of the Gift Deed
i.e. Exhibit PW 1/ D1, my father was left with no right, title
or interest of any kind whatsoever over the property bearing
No. A-28, Friends Colony (East), New Delhi and the said
property became the exclusive property of the deponent and
his brother, Dr. Vinay Kumar Das. I say further that the
said property though was self-acquired property andDigitally Signed CS(OS) 2382/2007 Page 45 of 75
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remained as an individual property but in any case, even if
the said property formed part of HUF, the same lost its
character as an HUF property and the said Gift Deed
Exhibit PW 1/D1 amounted to separation of shares,
partition of the property and dissolution of the HUF.
13. 1 say further that the said Gift Deed was duly acted
upon and the mutation of the. property was made in favour
of the deponent and his brother. Dr. Vinay Kumar Das in
respect of the respective portions which fell to their share as
per the Gift Deed i.e. the ground floor in favour of the
deponent and the first floor and above in favour of Dr.
Vinay Kumar Das. The mutations accorded by the
Municipal Corporation of Delhi are exhibited as Exhibit D-
5 & Exhibit D-6 respectively.
…
15. I say further that the aforementioned property has since
remained the property of the deponent and his brother Dr
Vinay Kumar Das and has been so utilized as such. I say
further that the deponent and his brother have been making
payment of House Tax as regards the said property out of
their own funds ever since the date of execution of the Gift
Deed. I sayfurther that the electricity connection as well as
the Water connection were also got transferred in the name
of the deponent and Dr Vinay Kumar Das and the bills have
been raised in their name since upon the execution of the
Gift Deed i.e. after 24.08.2004. The receipts issued by theDigitally Signed CS(OS) 2382/2007 Page 46 of 75
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Municipal Corporation of Delhi and the electricity bills,
water bills etc are exhibited as Exhibit DW 1/2 to Exhibit
DW 1/13 respectively.‖
75. In the present case, the plaintiffs could not be recognized as members
of the HUF till 09.09.2005 i.e. the date of amendment when section 6
of the Hindu Succession Act was substituted.
76. I deem fit to refer to section 6 of the Hindu Succession (Amendment)
Act, 2005. The operative portion of the same reads as under:-
―6. Devolution of interest in coparcenary property. —
(1) On and from the commencement of the Hindu Succession
(Amendment) Act, 2005, in a Joint Hindu family governed
by the Mitakshara law, the daughter of a coparcener
shall,–
(a) by birth become a coparcener in her own right in the
same manner as the son;
(b) have the same rights in the coparcenary property as she
would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said
coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall
be deemed to include a reference to a daughter of a
coparcener:
Provided that nothing contained in this sub-section shall
affect or invalidate any disposition or alienation including
any partition or testamentary disposition of property which
had taken place before the 20th day of December, 2004.
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……
(5) Nothing contained in this section shall apply to a
partition, which has been effected before the 20th day of
December, 2004.
Explanation. –For the purposes of this section ―partition‖
means any partition made by execution of a deed of
partition duly registered under the Registration Act, 1908
(16 of 1908) or partition effected by a decree of a court.‖
77. The legislative intent behind section 6 of the Hindu Succession
(Amendment) Act, 2005 is to confer upon the daughters the same
rights as given to the sons in respect of coparcenary property, thereby
entitling them to be recognized as coparceners and to claim a share in
the HUF property. Section 6(5) of the Hindu Succession
(Amendment) Act, 2005 specifically addresses the issue of partitions,
whereby the proviso to section 6(5) clearly holds that the unregistered
partitions, are termed legally invalid as defenses against the
entitlement of daughters to their rightful share. This provision is
intended to prevent the use of fraudulent claims or collusive actions
where such informal or unregistered documents are invoked to
circumvent the legal rights of daughters. In this regard, the Hon‟ble
Supreme Court in Prakash and Others vs Phulavati and Others
(2016) 2 SCC 36 inter alia held as under:-
―22. In this background, we find that the proviso to Section
6(1) and sub-section (5) of Section 6 clearly intend to
exclude the transactions referred to therein which may have
taken place prior to 20-12-2004 on which date the Bill wasDigitally Signed CS(OS) 2382/2007 Page 48 of 75
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introduced. Explanation cannot permit reopening of
partitions which were valid when effected. Object of giving
finality to transactions prior to 20-12-2004 is not to make
the main provision retrospective in any manner. The object
is that by fake transactions available property at the
introduction of the Bill is not taken away and remains
available as and when right conferred by the statute
becomes available and is to be enforced. Main provision of
the amendment in Sections 6(1) and (3) is not in any manner
intended to be affected but strengthened in this way. Settled
principles governing such transactions relied upon by the
appellants are not intended to be done away with for period
prior to 20-12-2004. In no case statutory notional partition
even after 20-12-2004 could be covered by the Explanation
or the proviso in question.‖
(emphasis supplied)
78. Similar position of law was also laid down by the Hon‟ble Supreme
Court in Vineeta Sharma vs Rakesh Sharma and Others (2020) 9
SCC 1 wherein the Hon‟ble Supreme Court inter alia held as under:-
―134. The protection of rights of daughters as coparcener
is envisaged in the substituted Section 6 of the 1956 Act
recognises the partition brought about by a decree of a
court or effected by a registered instrument. The partition
so effected before 20-12-2004 is saved.
135. A special definition of partition has been carved out in
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the Explanation. The intendment of the provisions is not to
jeopardise the interest of the daughter and to take care of
sham or frivolous transaction set up in defence unjustly to
deprive the daughter of her right as coparcener and prevent
nullifying the benefit flowing from the provisions as
substituted. The statutory provisions made in Section 6(5)
change the entire complexion as to partition. However,
under the law that prevailed earlier, an oral partition was
recognised. In view of change of provisions of Section 6, the
intendment of the legislature is clear and such a plea of oral
partition is not to be readily accepted. The provisions of
Section 6(5) are required to be interpreted to cast a heavy
burden of proof upon proponent of oral partition before it is
accepted such as separate occupation of portions,
appropriation of the income, and consequent entry in the
revenue records and invariably to be supported by other
contemporaneous public documents admissible in evidence,
may be accepted most reluctantly while exercising all
safeguards. The intendment of Section 6 of the Act is only to
accept the genuine partitions that might have taken place
under the prevailing law, and are not set up as a false
defence and only oral ipse dixit is to be rejected outrightly.
The object of preventing, setting up of false or frivolous
defence to set at naught the benefit emanating from
amended provisions, has to be given full effect. Otherwise, it
would become very easy to deprive the daughter of her
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rights as a coparcener. When such a defence is taken, the
court has to be very extremely careful in accepting the
same, and only if very cogent, impeccable, and
contemporaneous documentary evidence in shape of public
documents in support are available, such a plea may be
entertained, not otherwise. We reiterate that the plea of an
oral partition or memorandum of partition, unregistered
one can be manufactured at any point in time, without any
contemporaneous public document needs rejection at all
costs. We say so for exceptionally good cases where
partition is proved conclusively and we caution the courts
that the finding is not to be based on the preponderance of
probabilities in view of provisions of gender justice and the
rigour of very heavy burden of proof which meets the
intendment of Explanation to Section 6(5). It has to be
remembered that the courts cannot defeat the object of the
beneficial provisions made by the Amendment Act. The
exception is carved out by us as earlier execution of a
registered document for partition was not necessary, and
the court was rarely approached for the sake of family
prestige. It was approached as a last resort when parties
were not able to settle their family dispute amicably. We
take note of the fact that even before 1956, partition in other
modes than envisaged under Section 6(5) had taken place.‖
(emphasis supplied)
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79. The courts have time and again held that post amendment to the
section 6 of the Hindu Succession Act, 1956 any disposition or
alienation including any partition or testamentary disposition of
property taken place before 20.12.2004 shall remain unaffected and
the parties shall not be allowed to reopen the partitions taken place
before 20.12.2004, which were valid when executed. To my mind, the
plaintiffs cannot be permitted to reopen the validity of the Gift Deed
dated 24.08.2004 by virtue of section 6 of the Hindu Succession
(Amendment) Act, 2005, especially in view of the fact that there is no
challenge or declaration sought with regard to the gift deed. Reliance
placed by the defendants on the judgment passed by the Hon‟ble
Supreme Court in N. Sarin (supra) is well placed.
80. The status of the Kothi changed from that of an HUF property to that
of individual property of defendant nos. 3 and 4 on 24.08.2004 i.e.
prior to 20.12.2004 by virtue of a registered document being the Gift
Deed. That being so, in order to the Kothi being the HUF property and
being available for partition, there has to be a conscious act showing
that defendant Nos. 3 and 4 have put their respective shares back in
the HUF hotchpotch or in the alternative there has to be a challenge to
the Gift Deed and the Gift Deed needs to be set aside.
81. Admittedly, there is no affirmative challenge to the Gift Deed nor any
prayer seeking declaration for setting aside the Gift Deed. Further,
there is no affirmative action by the defendant nos. 3 and 4 to put back
their respective shares of the Kothi in the HUF hotchpotch.
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82. In the absence of either of the two, I cannot persuade myself to hold
that the Kothi was belonging to the HUF after 24.08.2004 and was
available for partition on 09.09.2005 or prior to 20.12.2004.
83. Further, the defendant no. 3 has also executed a power of attorney as
owner of his respective share in the Kothi in favor of defendant no. 2
to manage and administer his portion in the Kothi. The Power of
attorney has been exhibited as Exhibit D – 4 and the same reads as
under:-
―SPECIAL POWER OF ATTORNEY
Know all men by these presents that I, Dr. Vijay Kumar Das
son of Dr. Ram Das resident of A-28, Friends Colony East,
New Delhi, hereby appoint, nominate, constitute and
authorize Dr. Ram Das son of Sh. B. Singh residents of A-
28, Friends Colony East, New Delhi, as my true and lawful
Special Attorney to do followings acts, deeds and things in
mu name and on my behalf in respect of Entire Ground
Floor portion without terrace/roof rights, with front lawn
and back yard, one left side garage at Ground Floor
alongwith one servant quarter above garage, with roof
rights, out of freehold built-up property bearing No. A-28,
measuring 501.67 Sq. Mtrs., shown in the layout plan of
Friends Colony residential Scheme, now known as Friends
Colony East, New Delhi, of which I am the lawful owner.
The said attorney is fully empowered as under:-
1. To continue the present lease with Sh. Raj Handa till
further advice from me.
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2. When necessary enter into a lease agreement/rent
agreement, to sign and execute and get the lease
agreement/rent agreement with a person of my choice.
3. To realise the rent of the said tenant/s and issue rent
receipts thereof.
4. To issue notice for the ejectment of the tenants of the said
property and to do all acts, deeds and things which are
necessary for the same.
5. To deposit the house-tax, electricity and water bills to the
concerned departments.
In witness whereof I have signed this power of attorney at
New Delhi on this 17th Day of December, 2004, in the
presence of the following witnesses….‖
84. The very fact that Income Tax Returns of the HUF pertaining to the
assessment years 2005-06; 2006 – 07; 2007- 08 (Exhibit P/8 – P/10)
show that the Kothi was the part of the HUF or that the rental income
derived from the ground floor of the Kothi was being deposited in the
HUF account is of no significance as there is no conscious act of
defendant no. 3 and 4 of putting the Kothi back in the HUF
hotchpotch. The income tax return of the assessment year 2007-08
was subsequently revised and has been exhibited as Exhibit – P/11.
85. As regards, the properties bearing no. C-1034 and C-1035, Sushant
Lok-I, Gurugram, Haryana, are concerned, the plaintiffs have pleaded
that the said properties have been bought out of the HUF funds and
the defendant nos. 3 and 4 have failed to show any source for buying
the said properties. It is stated that both the defendant nos. 3 and 4,
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being permanent British residents, were also required to make
payment in Foreign Exchange through banking system and the same
has not been done.
86. PW – 1 in her cross examination on 28.04.2010 deposed as under:-
―28.04.2010
…I do not know the year of purchase of the plots no. 1034
and 1036, Sushant Lok, Gurgaon. I do not remember the
amount of those sale considerations. The said sale
considerations were paid by my father. It is correct that I
was not present at the time of payment of the sale
considerations.
Q. Do you have any documentary evidence to show that the
sale consideration of the Sushant Lok plots have been paid
by your father?
A. I do not have any documentary evidence at present but
the sale considerations had been paid from the HUF
account of my father maintained at Grindlays Bank. The
said Grindlays bank has been subsequently taken over by
M/s Standard Chartered Bank, Parliament Street, New
Delhi.
Q. Can you produce the documents to show that the sale
consideration had been paid from the HUF account of your
father?
A. The said documents would be summoned by us in the
present matter.
Q. When had you come to know about the payment of the
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aforementioned sale considerations and whether your
knowledge had come about a year ago or about two years, 5
years or 20 years ago?
A. I do not know.
Q. When had you come to know about the execution of the
sale deeds in respect of the Sushant Lok plots?
A. I do not remember the exact year but the said fact was
known to me before filing the suit.
Q. Have you seen the sale deeds?
A. Yes.
Q. Do you confirm that the sale deeds of Sushant Lok plots
are in the name of defendant no. 3 & 4?
A. Yes.‖
87. The properties bearing no. C-1034 and C-1035, Sushant Lok-I,
Gurugram, Haryana were purchased by defendant nos. 3 and 4 in their
own names on 03.04.1986 from M/s Ansal Properties and Industries
Ltd and the sale Deeds and the proof of payment for purchase of the
said properties have been duly proved on record which are exhibited
as Exhibits D-2 and D-7.
88. In this regard, DW – 1 (defendant no. 3) in his evidence by way of
affidavit deposed as under:-
―17. I say further that the plot bearing plot No. C-1035,
Sushant Lok, Gurgaon, Haryana was acquired by the
deponent out of his own funds. I say further that the sale
Deed was executed by the seller on 27.11.1995 in my favour
upon receipt of the entire sale consideration and the same isDigitally Signed CS(OS) 2382/2007 Page 56 of 75
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exhibited as Exhibit D-7. I say that the said property has
always been in my possession as my individual property and
no ancestral funds from alleged HUF were utilized for
acquiring the same by the undersigned.
18. I say that my younger brother Dr. Vinay Kumar Das did
his MBBS from Shimla Medical College. He is working as a
consultant in the UK National Health Service for over 03
Decades.
19. I say that similarly, the property bearing plot no. C-
1034, Sushant Lok, Gurgaon, Haryana, was acquired by my
brother out of his own funds and the sale Deed is executed
in his favour which is exhibited as Exhibit D-2 upon receipt
of the entire sale consideration.‖
89. Further, DW – 1 in his cross examination on 27.04.2016 deposed as
under:-
―27.04.2016
It is correct that the two plots at Gurgaon were purchased
one by me and one by my brother from M/s. Ansal
Properties. I do not remember exactly about the mode of
payments of these two plots whether it was by cheque or it
was by way of cash. The payment was made in installments
spread out for the period of 4-5 years. I am not sure but the
installments were perhaps annual in nature. I do not
remember how many installments were paid by me in cash
and how many installments were paid through cheque. TheDigitally Signed CS(OS) 2382/2007 Page 57 of 75
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cash payments used to be made by me, my wife, my brother
and his wife depending on who so ever was present in India
when the payments were made. I do not remember even the
approximate amount of installments of the plot purchased
by me. The total price of the plots was around Rs. 1.14 lakhs
each.‖
90. Another Shop No. FF-18 at Sushant Lok Vyapar Kendra, Gurgaon
was also purchased by defendant no. 3 i.e. Dr. Vijay Kumar Das in his
own name and the payment details regarding the said shop has also
been duly placed on record (Exhibit P4/C).
91. In this regard, DW – 1 in his cross examination on 29.04.2016
deposed asunder:-
―29.04.2016
I and my brother Dr. Vinay Kumar Das (Defendant no.4)
had booked one shop in Vyapar Kendra, Gurgaon, but
never took its possession. The shop was booked with Ansal
Properties. I do not remember if any money was deposited
for booking the shop or simply an application was filed. I do
not remember if any shop was allotted by Ansal Properties
on our booking or not. It is wrong to suggest that I and my
brother had actually been allotted a shop and for which we
had also made several payments. It is wrong to suggest that
those payments were also made from the income of the HUF
properties. It is wrong to suggest that I and my brother
resold our allotment with all the rights in the shop and didDigitally Signed CS(OS) 2382/2007 Page 58 of 75
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not account for sale proceed to the HUF.‖
92. To my mind, the argument raised by the plaintiffs that the said
properties were bought from the HUF funds is meritless. Defendant
nos. 3 and 4 are medical practitioners in UK having their own
independent source of income. It can be plausible to say that the
defendant nos. 3 and 4 had enough resources to buy the said properties
out of their own funds. The bookings of the said plots were also made
in the year 1986 in the name of defendant nos. 3 and 4 (Exhibit P4/A
and P4/B) and the plaintiffs have not placed anything to the contrary.
93. The onus of proving that the two plots and the shop belong to the HUF
was on the plaintiffs. The plaintiffs have only stated that the defendant
nos. 3 and 4, being UK nationals could not have transferred money to
India to buy the properties, which in my view is merely an averment.
The said averment required substantiation, however, the plaintiffs
have failed to discharge any evidence for me to hold that the said plots
and the shop were purchased from the HUF funds and were the HUF
properties. Further, the said properties have not been mentioned in any
of the Wills executed by defendant nos. 2 (Mark X and Mark
B/MarkDW2/A/Exhibit DW6/1) and Smt. Shanti Devi (Mark A) nor
in any of the Income Tax Returns of the HUF.
94. Therefore, I am unable to bring myself to the conclusion that the
properties bearing no. C-1034 and C-1035, Sushant Lok-I, Gurugram,
Haryana and the Shop No. FF-18 at Sushant Lok Vyapar Kendra,
Gurgaon were a part of the HUF at the time when the amended section
6 of the Hindu Succession Act, 1956 came into force i.e. on
09.09.2005.
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95. Even though I am unable to give a finding that properties bearing no.
C-1034 and C-1035, Sushant Lok-I, Gurugram, Haryana and the Shop
No. FF-18 at Sushant Lok Vyapar Kendra, Gurgaon were a part of the
HUF, however, defendant nos. 3 and 4 have filed an affidavit in terms
of order dated 04.07.2024, stating that as a goodwill gesture for their
step sisters, defendant nos. 3 and 4 are ready to relinquish their rights,
titles and interests in properties bearing no. C-1034 and C-1035,
Sushant Lok-I, Gurugram, Haryana, in their favour. The said
affidavits are placed on record.
96. In this view of the matter, plaintiff nos. 1 and 2 are at liberty to take
appropriate action for conversion of the properties bearing no. C-1034
and C-1035, Sushant Lok-I, Gurugram, Haryana in their own names.
97. In relation to the 7700 Units of U.T.I. valued at Rs 1 Lakh, the
plaintiffs have contended that these units were purchased using funds
belonging to the HUF. In this regard, learned counsel for the plaintiffs
draws my attention to the Will dated 11.09.1987 (Mark X) to state that
the 7700 Units of U.T.I were a part of the HUF. The operative portion
of the will dated 11.09.1987 reads as under:-
―Whereas I, the Testator, own various properties and assets
consisting of deposits in banks, house-hold goods and
interest in the H.U.F. (Ram Dass & Sons), I hereby devise
and bequeath the said properties and assets including my
interest in the HUF in the manner laid down here under.
The abovesaid HUF (Ram Dass, Wife and Sons) own the
following assets and properties in which my interest is one-
fourth:
Digitally Signed CS(OS) 2382/2007 Page 60 of 75
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House No. A-28, situate in Friends Colony East, New
Delhi.
7700 Units of U.T.I, amounting to Rs. 1,00,000/-
Bank balance in the account No. 67972 in the Grindlays
Bank, Parliament Street, New Delhi.‖
98. PW – 1 in her evidence by way of affidavit, regarding this, deposed as
under:-
―5. In the year 1978 the Defendant No. 2 created Ram Das
HUF and threw his self-acquired property at A-28 Friends
Colony East, New Delhi, into the common stock for the
benefit of the family on the whole. That the said Ram Das
HUF was being managed by the Defendant No. 2, Dr. Ram
Das being the Karta/Manager of the HUF. That once an
HUF is created it can only be dissolved by way of partition
of the HUF properties. That since no such partition of Ram
Das HUF has taken place till date; the same is still in
existence. Following is a description of the coparcenary
properties forming part of the Defendant No. 1 HUF as
known to the Plaintiff No. 1:
…..
7700 Units of U.T.I, amounting to Rs. 1 lac. These units
existed in 1987 as per the will of the Karta dated 11.9.1987
and may have been cashed by the Karta.‖
99. The 7,700 units of U.T.I, valued at Rs. 1 lakh, have only been
mentioned in the registered Will dated, 11.09.1987 (Mark X),
however, consequently, the said units have not been mentioned in any
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of the documents i.e. the Income Tax Returns filed by the HUF, the
Will of Smt Shanti Devi or the Will of the defendant no. 2 dated
17.07.2004. During the course of the proceedings, the plaintiffs have
also stated that the status of the 7,700 units is not known.
100. The onus to prove that these units formed part of the HUF at the time,
the amended Section 6 of the Hindu Succession Act came into force
rests entirely on the plaintiffs, who have failed to discharge this
burden. The plaintiffs have failed to produce any documentary
evidence to establish whether these units existed at the time when
amended Section 6 of the Hindu Succession Act came into force. As
such, their claim regarding these units being HUF property remains
unsubstantiated.
101. In the absence of any credible evidence from the plaintiffs, I am
unable to hold that the 7,700 units of U.T.I, valued at Rs. 1 lakh were
a part of the HUF as on 09.09.2005.
102. As regards, Account no. 67972 (now 525-1- 008486-5), held with
Standard Chartered bank (erstwhile Grindlays Bank), Parliament
Street, New Delhi is concerned, the same has been closed.
103. DW1‟s cross examination dated 28.04.2016, in this regard reads as
under:-
―28.04.2016
It is correct that there was a bank account in the name of
M/s. Ram Das HUF in National Grindlays Bank. (Vol.) It
has since been closed.
……..
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I was not aware of the HUF account at National Grindlays
Bank since its opening. (Vol.) My father had opened this
account to save the tax. It is wrong to suggest that I have
deposed falsely. It is wrong to suggest that I am feigning
lack of memory about the opening the aforesaid HUF
account in the year 1983.‖
104. There is no evidence placed on record to substantiate the amount
credited to this account, nor has any proof been provided regarding the
balance standing to its credit. Furthermore, nothing has been provided
to show the amounts, if any, withdrawn from the account after the
filing of the suit. The said bank account has not been mentioned in the
Income tax Returns of the HUF.In the absence of such material
evidence, no relief can be granted in respect of this account.
105. Concerning the PPF account no. 10485058884 in the name of the
HUF held with the SBI, Friends Colony East, New Delhi is concerned,
PW5‟s, cross examination dated 25.03.2014 in this regard reads as
under:-
―25.03.2014
….I joined as manager (personal banking division) at SBI,
Friend Colony Branch in August 2012. Generally, the
branch is looked after by a Branch Manager. PPF Account
is looked after by service manager. One, Mr. Gyan Singh
was service manager before my joining.
I am not a service manager. However, if there is any
emergency in the absence of service manager, I attend to theDigitally Signed CS(OS) 2382/2007 Page 63 of 75
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same.
The PPF account in question is not closed yet. After
completion of 2012, no amount is credited to the PPF
account in question except the interest accrued.
The PPF account is in the name of HUF Ram Das as
Karta. We do not have any other particulars with regard to
members of the HUF.
I cannot who has obtained the bank statement which was
produced on record pertaining to PPF account in question
as there is no endorsement of receipt.‖
106. My attention has also been drawn to the transaction statement of the
PPF account No. 10485058884 which is duly placed on record and is
exhibited as Exhibit P-7. It clearly shows that the PPF Account is in
the name of the HUF and as per the testimony of PW5, the said
account has not been closed and still remains an asset of the HUF. The
said testimony has never been contradicted by the defendants. The
defendant nos. 3 and 4have pleaded that the amount lying in the credit
in the PPF account is to be distributed in accordance with the last Will
and testament of Smt. Shanti Devi, dated 23.12.1995, (Mark A) as
well as the last Will and testament of Late Dr. Ram Das, dated
17.07.2004 (Mark B/MarkDW2/A/Exhibit DW6/1).
107. The argument raised by the defendants is unfounded. The defendants
have failed to provide any evidence to demonstrate that the PPF
account was never a part of the HUF. Furthermore, no proof has been
submitted to establish that the PPF Account was closed or that the
amount was released in favor of defendant nos. 3 and 4 prior to
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20.12.2004. Further, the statement made by PW – 5 has also not been
contradicted by the defendants.
108. The amount lying to the credit of the PPF account cannot be
distributed in terms of the Will of Smt. Shanti Devi, dated 23.12.1995,
as well as the Will of Late Dr. Ram Das, dated 17.07.2004 as the same
is an asset of the HUF and continues to be an asset of the HUF.
109. As the status of the PPF account is intact, the same remains a property
of the HUF. Therefore, in light of section 6 of the Hindu Succession
(Amendment) Act, 2005, the plaintiffs, as members of the HUF, are
legally entitled to a share in the HUF‟s property, being the amount
lying credit in the PPF Account. Accordingly, the plaintiffs are
entitled to their rightful share in the funds lying credit in the PPF
Account.
110. As regards issue no. 1 is concerned, I have already held that the HUF
i.e. defendant no.1 existed at the time when section 6 of the Hindu
Succession (Amendment) Act, 2005 came into force and had not been
dissolved.
111. Accordingly, issue no. 1 is held in favor of the plaintiffs, meanwhile
issue no. 2 is partially held in favor of the plaintiffs.
Issue no. 3: If the issues No. 1 & 2 are decided in favour of the
plaintiffs, what share, if any, do the plaintiffs have in the
property/properties? OPP
112. As on the date when section 6 of the Hindu Succession Act came into
force, the Kothi had already become the exclusive property of
defendant nos. 3 and 4 by virtue of the registered gift deed dated
24.08.2004. The same has duly been mutated in the name of defendant
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nos. 3 and 4 and they are enjoying their respective portions. Thus, in
view of the law laid down by the Hon‟ble Supreme Court in Vineeta
Sharma (supra), the Kothi was partitioned before 20.12.2004 and the
plaintiffs cannot be entitled to any share in the Kothi.
113. The properties bearing nos. C-1034 and C-1035, Sushant Lok-I,
Gurugram, Haryana have never been shown as part of the HUF. The
same has been purchased by defendant nos. 3 and 4 and the sale deeds
with respect to the said properties is also placed on record as (Exhibit
P4/A and P4/B). Thus, the plaintiffs do not have a share in the said
properties.
114. However, in view of the affidavits placed by defendant nos. 3 and 4,
the plaintiffs are entitled to the properties bearing nos. C-1034 and C-
1035, Sushant Lok-I, Gurugram, Haryana and the plaintiffs are
entitled to get the said properties transferred in their own names.
115. Admittedly, the bank account no. 67972 (now 525-1- 008486-5), also
stands closed and hence the plaintiffs cannot be entitled to any relief
with respect to the said bank account.
116. As regards, the 7700 Units of U.T.I. valued at Rs 1 Lakh, the plaintiffs
have failed to discharge the onus to prove that whether the said units
ever existed at the time when section 6 of the Hindu Succession Act
got amended.
117. Amongst the properties mentioned in the plaint, only the PPF account
no. 10485058884 was an HUF property and was available for partition
as on, 09.09.2005.
118. Since the PPF account no. 10485058884 held with the SBI, Friends
Colony East, New Delhi continues to stand in the name of the HUF
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i.e. defendant no.1, the plaintiffs are entitled to a share therein.
Accordingly, the plaintiffsare entitled to 1/4th share each in the amount
lying to the credit in the PPF Account.
119. Accordingly, issue no. 3 is held in favor of the plaintiffs.
Issue no. 4: Whether the suit is correctly valued for the purposes
of court fees and jurisdiction, if not, to what effect? OPP
120. In the present case, the plaintiff no. 1 has valued the suit have valued
the suit properties at Rs. 12 crores, and as per her claim i.e. 1/5 th share
in the suit properties, the value of the plaintiffs‟ share is Rs. 2.4
crores. Plaintiff no. 1 has paid ad valorem Court Fees on the said
amount.
121. During the proceedings, the defendant no. 5 was subsequently
transposed as plaintiff no. 2. Plaintiff no. 2 has not filed any fresh
plaint and her prayer in the written statement filed as defendant no. 5
is only supporting the plaintiff.
122. Further, no evidence nor any argument has been led by the defendants
regarding the market value of the properties in question. Hence, there
is no reason to doubt the valuation made by the plaintiff no. 1.
123. In view of the above findings, it is held the suit is correctly valued for
the purposes of court fees and jurisdiction, and accordingly, issue no 4
is held in favour of the plaintiffs.
Issue no. 5: Whether the claim in the suit is barred by time? OPD
124. With regard to the question of whether the suit is barred by limitation,
the relevant portion of the cause of action para reads as under:-
―That the cause of action arose in favour of the Plaintiff
and against the Defendants when in December 2006 theDigitally Signed CS(OS) 2382/2007 Page 67 of 75
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Defendants for the first time refused to acknowledge the
right of the Plaintiff to stay in the HUF residential property
at New Friends Colony. That the cause of action continued
on every instance thereafter when the Defendants actively
prevented the Plaintiff from enjoying the HUF properties
and misappropriated the proceeds of the same. The cause of
action again arose in September 2007 when the Defendant
No. 2 under undue pressure from the Defendant No. 3 and 4
served a notice of vacation upon the present tenants of the
HUF property at New Friends Colony. The cause of action
is continuing in favour of the Plaintiff and against the
Defendants till date. Hence this suit.‖
125. The present suit was filed on 03.12.2007, In the present case, the
cause of the action for the plaintiffs are based on the amendment to
the Hindu Succession Act, which came into effect on 09.09.2005
through which section 6 was amended and the plaintiffs being the
daughters of the coparcener of the HUF were also granted share in the
HUF properties. The plaintiffs’ rights, as asserted in the plaint, are also
entirely based on this amendment. The subsequent events that took
place in December 2006 and September 2007, as mentioned in the
cause of action para above, are also rooted through the amended
section 6. As such, the suit, having been filed in December 2007, is
well within the limitation period of three years.
126. Issue no. 5 is answered accordingly.
Issue no. 6: Whether the amendment to Section 6 of the Hindu
Succession Act by Act No. 39/2005 is violative of the constitutional
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rights of the defendants No. 2 to 4 under Articles 14 and 300A of
the Constitution of India? OPD
127. As regards, issue no. 6 is concerned, the issue no. 6 challenges the
vires of section 6 of theHindu Succession (Amendment) Act, 2005 for
which no evidence nor any argument has been raised by the either of
the parties. In a suit interse between the parties, the court cannot
adjudicate the vires of a statute.
128. Hence, issue no. 6 is decided against the defendants.
Issue no. 7: Whether on account of the marriage of the
plaintiff/Dr. Pushp Lata to a Muslim, she has ceased to have any
right, if any, to the property under section 19 of the Special
Marriage Act, 1954 or otherwise? OPD
129. In this regard, the plaintiff in her replication to the written statement
of defendant no. 2 has categorically stated as under:-
―That it is wrong and denied that plaintiff ceased to be a
Hindu owing to her marriage to a Muslim of Pakistani
origin. She was re-married to a Muslim of Indian origin
having British Nationality and never converted from
Hinduism. It was a civil marriage. She did not even
change her name. The plaintiff has brought up her second
son from the said marriage as a Hindu who respects all
religions. His first name is Ajay. It is specifically asserted
that the plaintiff was and continues to be a Hindu
throughout. She is entitled to claim her rights as a
coparcener under the Hindu Succession (Amendment) Act.
The suit is very much maintainable and merits beingDigitally Signed CS(OS) 2382/2007 Page 69 of 75
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decreed. Rests of the contents of this para of the written
statement as stated are wrong and denied.‖
(emphasis supplied)
130. Further the plaintiff no. 1 in her evidence by way of Affidavit deposed
as under:-
―…..At an early age, in 1958, the Plaintiff No. 1 was forced
into an unhappy marriage that she endured for sixteen
years. During this period she worked hard to complete her
Bachelor’s and Master’s degrees and started working to
gain economic independence. While working,
simultaneously, enrolled for the Ph.D. degree and received
her doctorate from Kanpur University in 1974. All this time,
while she was working, she was also taking care of the
family and looking after her son Ashish Singh who was born
on 22/5/1964. In April 1974 she left India, with her son, to
study abroad, first In Alexandria, Egypt where the
Defendant No. 2 was working and later at London
University. She moved to UK, in September 1974, with her
son, with initial financial help from her father.
DefendantNo. 2. In his autobiography on page 181, the
Defendant No.2 stated about the Plaintiff No. 1 that “She
has been through a difficult and nerve-racking process
while studying particularly in UK”. The complete
autobiography of Defendant No. 2, Dr. Ram Das is placed
as Exhibit P/1. Plaintiff No.2 obtained divorce from herDigitally Signed CS(OS) 2382/2007 Page 70 of 75
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husband and raised her son single handedly. Her son,
Ashish Singh obtained his Ph.D. degree from the Bath
University of UK and is now a senior executive in a
multinational firm. Plaintiff No.1 received her second
Doctorate from the London University in 1980 and married
her colleague Dr. ZainUl Haque. The couple got married at
the Registrar’s office and both continued to follow their own
religions. Plaintiff No. I’s second son Ajay who was born on
11.01.1983, has been brought up to respect all religions.
The Plaintiff No. 1 worked in UK and retired in May 2007.‖
131. PW1‟s cross examination dated 29.11.2018, in this regard reads as
under:-
“29.11.2018
I was Indian Citizen at the time of my second marriage in the
year 1980. My husband late Mr. Muhammad Zainul Haque had
his origin from Patna in India. It is wrong to suggest that he
and his family migrated to Pakistan. Vol. I am not aware as I
did not have any concern with this fact. It is wrong to suggest
that Nikah was performed between me and my husband Mr.
Muhammad Zainul Haque in 1980. My father did not attend my
marriage with Mr. Haque. Vol. I did not even invite anyone. It
is correct that my husband did not convert to Hinduism at the
time of our marriage. It is correct that our marriage was
witnessed by two Muslim gentlemen.
Q. Were you ever divorced by your husband during his lifetime?
Ans. No. It is correct that my son Mr. Ajay Haque was bornDigitally Signed CS(OS) 2382/2007 Page 71 of 75
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from my marriage to Mr. Muhammad Zainul Haque. It is
correct that I and my late husband Mr. Haque continue to
reside together in the same house after our marriage in 1980. I
was divorced with my first husband somewhere in 1978 but I do
not remember the exact date. My son Sh. Ashish Singh was
around 14 years of age when I was divorced. I do not remember
when I first met Mr. Haque but it was after 1974 as I had gone
to England in 1974. It is correct that no objection was raised by
the witnesses to my marriage with Mr. Haque that I was
marrying a Muslim being a Hindu lady.
(At this stage, attention of the witness is drawn to Ex.PW1/B).
I am not aware about the intricacies of Marriage Act, 1949 as
mentioned in para no. l of my affidavit. I do not remember as to
when I became a British Citizen. I was not made aware of the
facts at the time of my marriage with Mr. Haque that it was a
permanent and a civil contract and not a ritual. There was no
Kazi present at the time of our marriage. I am not aware at all
about the antecedents of two Muslim gentlemen, who witnessed
my marriage with Mr. Haque. However, I can say with certainty
that none of them was a Kazi. I say so because both witnesses
were my husband’s friend and as told by him one was an
accountant. I do not remember the name of my husband’s friend
who was an accountant. I cannot tell the exact time of my
marriage with Mr. Haque but it was perhaps in the morning. ItDigitally Signed CS(OS) 2382/2007 Page 72 of 75
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is wrong to suggest that no Muslim rituals were performed on
my son Mr. Ajay Haque after his birth. I am a Doctor in Botany.
It is wrong to suggest that Khatna ceremony was performed on
my son Mr. Ajay Haque. My husband did not accompany me to
any temple during the subsistence of my marriage.
…..
Q. Did you ever inform any Muslim Cleric disclosing that you
are still practicing Hindu Religion despite being married to a
Muslim?
Ans. No.
It is wrong to suggest that my statement that I was practicing
Hindu Religion even after marrying a Muslim is a false
statement with an objective, to claim partition from my father
and step brothers. It is wrong to suggest that my husband late
Mr. Haque was never welcomed by my father in his house at
Delhi. I have not filed any photograph separately showing that
there were close terms between my father and my husband Mr.
Haque. Vol. I have already placed on record the Autobiography
of my father, which contain photograph showing close terms
between my father and my husband Mr. Haque. No letter has
been filed by me on record of this case to show that my father
had written to my late husband affectionate letters showing his
love towards him. Vol. my father affectionately wrote letters
appreciating qualities of my husband and myself but I have not
put them on record in the present case.‖Digitally Signed CS(OS) 2382/2007 Page 73 of 75
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132. The burden of proving that plaintiff No. 1 ceased to be a Hindu owing
to her marriage to Dr. Zain Ul Haque, a Muslim of Pakistani origin
residing in the United Kingdom, rests entirely on the defendants.
However, the defendants have failed to discharge this burden, as no
evidence has been presented to substantiate the claim that plaintiff No.
1 renounced Hinduism or formally converted to Islam.
133. The plaintiff no. 1 in her evidence by way of affidavit (Exhibit PW
1/A) has categorically stated that pursuant to her civil marriage to Dr.
Zain Ul Haque, she continued to follow her religion i.e. Hinduism.
134. To my mind, merely marrying a Muslim does not result in an
automatic conversion from Hinduism to Islam. In the present case,
aside from a bare averment made by the defendants, no substantive
evidence has been produced by the defendants to prove that the
plaintiff no. 1 underwent a recognized process of conversion to Islam.
In the absence of such proof, the claim of conversion solely on the
basis of marriage cannot be accepted. Since the plaintiff no. 1 has not
changed her religion, she is entitled to claim her share in the HUF
properties.
135. Hence, issue no. 7 is held against the defendants.
Issue no. 8: Relief
136. In the present suit, the plaintiffs had sought a decree of declaration
that the plaintiffs are entitled to 1/4th share each in the HUF properties
as described in para 7 above, on the ground that the plaintiffs are
coparceners in the HUF, after the Hindu Succession (Amendment)
Act, 2005 came into force i.e. on 09.09.2005.
Digitally Signed CS(OS) 2382/2007 Page 74 of 75
By:MAYANK
Signing Date:23.01.2025
15:47:28
137. In view of my findings given in issue nos. 1, 2 and 3, I have held that
the plaintiffs are only entitled to their share (1/4th each) in the amount
lying credit in the PPF Account bearing no. 10485058884, in the name
of HUF held with the SBI, Friends Colony East, New Delhi.
138. Apart from that, the plaintiffs are also entitled to properties bearing
no. Plot Nos. C-1034 and C-1035 situated at Sushant Lok 1, Gurgaon,
Haryana in view of the affidavit filed by defendant nos. 3 and 4,
whereby they have given up all their rights, title and interests in favor
of the plaintiffs as an act of a goodwill gesture.
139. Hence, the present suit is partially allowed.
140. Decree sheet be prepared accordingly.
JASMEET SINGH, J
JANUARY 23, 2025/priyesh
Digitally Signed CS(OS) 2382/2007 Page 75 of 75
By:MAYANK
Signing Date:23.01.2025
15:47:28
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