VALMIKI J.MEHTA, J.

CS(OS) No.1862/2010 and I.A. Nos.12117/2010 (stay), 15254/2011 (under Order XI Rules 12 and 14 CPC by plaintiff), 1325/2012 (under Order VII Rule 11 CPC by defendant no.1), 5248/2012 (under Order XXXIX Rule 4 CPC by defendant No.2) & 13263/2013 (under Order VI Rule 17 CPC by plaintiff)

1. This suit for partition etc is filed by the plaintiff/Mr. Sagar Gambhir who is the son of late Sh. Sunil Gambhir. Late Sh. Sunil Gambhir was the younger son of defendant no.1/Sh. Sukhdev Singh Gambhir. Defendant no.2 in the suit is the son of the defendant no.1 and the brother of late Sh. Sunil Gambhir.

2. By the suit, reliefs are claimed for two immovable properties and one business. The two immovable properties are 4-B/8, Poorvi Marg (NEA), Rajinder Nagar, New Delhi and D-II/83, Sector-10, Faridabad, Haryana. The business is the business in the name of M/s. Gian Singh Sukhdev Singh, K-42, Connaught Place, New Delhi-110001. Plaintiff claims that the properties and the business are HUF properties and business inasmuch as the defendant no.1, grandfather of the plaintiff and father of late Sh. Sunil Gambhir and the defendant no.2, purchased these properties and started business from ancestral properties. Accordingly, plaintiff who is the son of late Sh. Sunil Gambhir claims that since Sh. Sunil Gambhir was entitled to 1/3rd share in the two immovable properties and the business which are the subject matter of the suit, the plainwho is the son of late Sh. Sunil Gambhir will hence inherit the 1/3rd share of late Sh. Sunil Gambhir.

3. The relevant paras of the plaint containing averments with respect to existence of HUF and its properties are paras 2 and 3 of the plaint and these paras read as under:-

“2. It is submitted that the Plaintiff attained majority in the year 2007 and has been studying abroad for the past 5 years. The Plaintiff alongwith his mother have been residing at the premises at 4-B/8, Poorvi Marg (NEA), Rajinder Nagar, New Delhi and more specifically on the first floor thereof ever since Plaintiff’s birth. Unfortunately, disputes and differences have arisen between the family members with regard to distribution of the assets of HUF of Defendant No.1 of which late Shri Sunil Gambhir was a member which interalia include the residential house at 4-B/8, Poorvi Marg (NEA), Rajinder Nagar, New Delhi, income from the proprietorship concern under the name and style of Gian Singh Sukhdev Singh, K-42, Connaught Place, New Delhi-110001 and a property bearing No. D-II/83, Sector-10, Faridabad, Haryana.

3. It is submitted that the property at 4-B/8, Poorvi Marg (NEA), Rajinder Nagar, New Delhi was purchased by the Defendant No.1 from the funds of the firm M/s. Gian Singh Sukhdev Singh which was set up by the late great grandfather of the Plaintiff and as such the same is ancestral in the hands of the Plaintiff herein. The Plaintiff believes that even the funds for the business came from the properties left behind in Pakistan prior to partition of India. Similarly, the income from the firm Gian Singh Sukhdev Singh is also liable to be divided amongst the legal heirs of late Shri Sunil Gambhir to the extent of his share, as he was the grand son of late Shri Gian Singh who was the Owner/Proprietor of the firm Gian Singh Sukhdev Singh. The property at Faridabad is also an HUF property as per information of the Plaintiff.”

4. The defendant no.1 has filed the written statement in which existence of HUF and its properties is denied. It is also denied that defendant no.1 at all received any ancestral properties and in fact it is pleaded that defendant no.1 came as a refugee in India and thereafter the defendant no.1 started the business of M/s Gian Singh Sukhdev Singh with the name of Sh. Gian Singh being put as a mark of respect for Sh. Gian Singh who was father of the defendant no.1/Sh. Sukhdev Singh Gambhir and therefore the name of the sole proprietorship firm of the defendant no.1 was M/s Gian Singh Sukhdev Singh. As per t