The application under Order VII Rule 11 CPC cannot be used to dismiss the suit on merits at an early stage, and the extent of HUF properties and its various businesses are questions of fact to be established at trial.

IA No.13260/2012 (under Order VII Rule 11 CPC)

1. The defendants have filed the present application seeking rejection of the plaint.

2. At the outset, I must note that for deciding this application this Court has consciously ignored the averments made in this application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) which are on merits and which dispute and deny the existence of the HUF. This is because when an application under Order VII Rule 11 CPC is considered, the contents of the plaint are deemed to be correct. Also, in the application under Order VII Rule 11 CPC, it is noticed that defences on merits have been taken up, and which defences can only be the subject matter of the contents of the written statement, and which cannot be the basis of an application under Order VII Rule 11 CPC.

3. Let us therefore, examine the pleading/plaint as to whether the plaint discloses a cause of action as distinguished from proving a cause of action and which will arise only at the stage of trial. When an application under Order VII Rule 11 CPC uses the expression “discloses a cause of action”, the expression pertains to the existence only of sufficient pleading with respect to the existence of HUF and its properties. Once such pleading exists, what are the properties of HUF etc will be issues of merits to be decided after trial in the suit and not by means of an application under Order VII Rule 11 CPC.

4. The averments of the amended plaint are reproduced below and which are examined, as to whether the plaintiff has pleaded the case (as distinguished from establishing a case of existence of an HUF and its properties for the plaintiff to have a share as a coparcener in the HUF) of existence of an HUF and its properties and businesses. The plaintiff is the minor daughter of her father/defendant no.2 in this suit filed for partition etc. The instant suit has been filed through estranged wife of defendant no.2 and who is the mother of the plaintiff. Relevant paragraphs of the amended plaint, which in the opinion of this Court make out, as per the pleading, the cause of action of existence of an HUF and its properties and businesses, are inter alia paragraph nos. 1, 2, 14, 15, 15 (a) to 15 (e), 15 (g), 15 (h) and 16, and which paras are being reproduced hereunder:

“(1) The present suit is being filed praying for partition, declaration in respect of Joint Family Properties purchased from the nucleus of joint family funds being suit properties as detailed in the Schedule A and rendition of accounts of the joint family businesses as detailed in the Schedule B.

(2) That the Plaintiff and the Defendants are the members of HUF of Defendant No.1 [Mr.Bikramjit Ahluwalia], the grand-father of the Plaintiff.

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(14) That initially the business of the construction was started as a joint family business by Late Mr. Karam Chand Ahluwalia and Mr. Bikramjit Ahluwalia with the nucleus of HUF funds. Thereafter as the business grew and a private limited the company Ahluwalia Contracts Private (India) Ltd. was set up in 1979 wherein the Defendant no.1 and Late Sh. Karam Chand Ahluwalia were promoter/shareholders. Thereafter with passage of time the other family members being Defendants no.2 to 6 were introduced, in the company and allotted shares, along with other relatives. The payment for the said shares was made out of the joint family funds as none of the defendants had any independent source of income. Thus, the entire funding for the share holding was from the joint family funds. That subsequently the Defendant no.7 was converted to public limited. That the main business concern of the Defendants is Ahluwalia Contracts (India) Ltd. which is India’s leading EPC [Engineering, Procurement and Constructions] services provider having business interests in various segments including Metro Stations, Stadiums, Airport, IT Parks, SEZ Retail, Multi Stored Housing Complexes. Industrial complexes luxurious 5 star hotels and hospitals. It