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2016 Supreme(Del) 3566
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
Sunil Mohan Buckshee - Appellant
Versus
M.M. Buckshee & Ors. - Respondents
RSA 16 of 2007 & C.M. Nos. 639-640 of 2007, 4728, 6937 of 2008, 7974 of 2009, 19979 of 2010, 4206 of 2011 & 10329 of 2015
Decided On : 21-09-2016
For the Appellant : Mr. Madan Gera
For the Respondents: Mr. Rajesh Yadav, Ms. Ruchira Arora, Mr. Dhananjay Mehlawat
Headnote:
Civil Procedure Code, 1908 - Section 96, 100 - Partition - HUF property - Classification of - Suit for partition and permanent injunction - Plaintiff claimed that the parties to the suit were members of HUF - Plaintiff claimed to be a co-owner of the flat and for possession - Since the HUF paid Rs. 15,000/- towards purchase of the flat, the members of the HUF are entitled to their respective share in the said flat - Suit was dismissed - Legacy left by K.C. Buckshee was immediately divided equally in the respective shares of the parties - Compensation received in respect of the property left at Pakistan was claimed equally by the brother, and not by the Karta of the so-called HUF - No returns of the HUF were filed for over 20 years after the demise of K.C. Buckshee - K.C. Buckshee & Sons HUF was created for the first time in 1977 - Even the proceeds of the sale were pocketed by all the heirs of late Sh. K.C. Buckshee in equal shares and not by the so-called HUF - Suit property had already been acquired, paid for and constructed by defendant no.2. - Defendant no.2 let out the property and pocketed the proceeds personally - Neither the suit property nor its rental income was ever claimed as belonging to the HUF - Plaintiff failed to establish that the amounts held by R.M. Buckshee were from the HUF funds - Amount was received by defendantno.2 as a personal loan which he had repaid - Plaintiff failed to establish that the amounts were sourced from the HUF funds - Appeal is dismissed.
Vipin Sanghi, J.
1. The present second appeal under section 100 CPC is directed against the judgment dated 04.10.2006 and decree dated 13.11.2006 passed by the First Appellate Court, namely the learned Additional District Judge, Delhi in RCA No. 62/2005, whereby said first appeal under section 96 CPC preferred by the Appellant/Plaintiff has been dismissed, and the judgment and decree dated 31.03.2005 passed by the Trial Court, namely the learned Civil Judge, Delhi in Suit No. 208/02/93 affirmed.
2. The appellant/plaintiff filed the suit for partition and permanent injunction against the defendants in respect of property bearing no. D-394, Defence Colony, New Delhi. The suit had initially been filed against four defendants. Defendant No.1 is the real brother; defendants Nos. 2 & 3 are the half brothers, and; defendant No.4 is the mother of the plaintiff and defendant No.1, and step mother of defendant Nos. 2 & 3.
3. The claim of the plaintiff/ appellant emerging from the record is that late Sh. K.C. Buckshee was the husband of defendant No.4/Mrs. Shanti Buckshee and father of the plaintiff, defendant No.1Shri M.M. Buckshee, defendant No. 2 Lt. Col. Sh. M.L. Buckshee, and defendant No.3 Sh. K.M. Buckshee, and Sh. R.M. Buckshee – who died a bachelor in 1985. Sh. K.C. Buckshee was employed with K.C. Thapar and company at Calcutta after coming to India from Pakistan. Sh. K.C. Buckshee died intestate in the year 1952.
4. The plaintiff claimed that the parties to the suit were members of the Hindu Undivided Family (HUF) viz. ‘K.C. Buckshee & Sons (HUF)’. Shri K.C. Buckshee acted as the karta of his HUF during his life time. After his demise in 1952, one of his sons-Sh. R.M Buckshee acted as the karta of the HUF till his demise in 1985. As noticed above, he was a bachelor and died intestate.
5. The plaintiff claimed that in the aftermath of the partition in 1947, Sh. K.C. Buckshee came to India from Layalpur, West Pakistan, leaving behind a major portion of his property in Pakistan. A claim was lodged before the Claim Officer, Jhalandhar by Sh. K.C. Buckshee to seek compensation in lieu of the residential property situated in Chak No.76, G.B. Tehsil & District Layallpur, Pakistan. The said claim was assessed on 08.01.1953, and Rs. 20,000/- as compensation was given in favour of the ‘Joint Hindu Family’. The plaintiff claimed that the said amount was utilized by the members of the HUF in purchasing various assets.
6. The plaintiff averred that in the year 1961-62, the members of HUF decided to purchase the property bearing No. D-394, Defence Colony, New Delhi (the suit property) for the purpose of raising a family residential house. The suit property was purchased in the name of defendant no.2 Lt. Col. M.L. Buckshee from the funds pooled in by the members of the HUF and defendant No.2. The construction was raised in 1963-64 from the funds of HUF, and contribution of funds made by Mata Niki Devi, grandmother of the plaintiff, and various members contributed towards the same. A sum of Rs. 60,000/- approximately was spent on the construction of the said property. Consequently, all the members of the HUF became co-owners/co-sharers to the extent of 1/5th share each.
7. The plaintiff averred that the said residential house was for the HUF and its members, and members of the HUF stayed in the said house at various points of time according to their needs. However, since defendant No.2 was permanently settled at Delhi and other members of the HUF were settled elsewhere, defendant No.2 primarily remained in the said house. Plaintiff also stayed in the said house during September, 1980 to February 1982 when he shifted to another accommodation in Greater Kailash Part-I, provided by his employer.
8. The plaintiff averred that though the owner of the said house was the HUF, the same was purchased in the name of defendant No.2 as “benami”.
He
