JUDGMENT :

I.A. 15083/2017 (by the defendant under Order I Rule 10 of the CPC)

1. The plaintiff and the defendant are brothers. The present suit has been filed by the plaintiff for partition of a property, namely, E-64, Greater Kailash, Enclave-I, New Delhi-110048 [hereinafter, "E-64"], which he claims is jointly held by the two parties. The defendant has filed this application under Order I Rule 10 of the Code of Civil Procedure, 1908 [“CPC"], seeking impleadment of the parents of the parties.

2. The case of the plaintiff is that E-64 was purchased jointly in the names of the plaintiff, the defendant and their father [Sh. Surinder Kumar Chawla], and subsequently, the father of the parties transferred his 1/3rd share to the plaintiff by way of a registered gift deed dated 11.06.2010. The plaintiff thus claims 2/3rd share in E-64 and states that the defendant has 1/3rd share therein. An amendment of the plaint [which is not material for the present application] was permitted by an order dated 21.01.2015, following which the defendant filed an amended written statement, affirmed on 10.03.2015. The defendant pleaded inter alia that the plaintiff and the defendant were part of a joint Hindu Undivided Family ["HUF"] and that the suit property was purchased from the funds of the joint family. He also asserted that joint family funds were used to purchase two other properties - Shop No.152, Bhagat Singh Market, Connaught Place, New Delhi [hereinafter, "Shop No.152"] and Shop No.F-71, Bhagat Singh Market, Connaught Place, New Delhi [hereinafter, "Shop No.F-71"]. It is undisputed that Shop No.152 is registered in the name of the plaintiff and Shop No.F-71 in the name of the mother of the parties. The defendant contended in the written statement that the partition suit was thus for partial partition of the joint family properties, which is not permissible under law.

3. The contention of the defendant to this effect is set out in paragraph 6 of the amended written statement, which is reproduced below:

“6. That the present suit is not maintainable and is liable to be dismissed. The plaint is based on a totally wrong, fabricated, frictitious and misconceived facts and cause of action. The correct facts of the case are as under:-

That there exists a joint Hindu undivided family. That the suit property was purchased from the funds derived by selling ancestral property bearing no. B-54, Kalkaji, New Delhi of the grandfather of the parties namely Late Sh.T.C. Chawla, further Late Sh. T.C. Chawla left over the jewellery, cash etc. all of these funds came into the HUF. That the intentions of the parties were through out to be undivided family for that purpose the property was purchased in the joint name further in order to get the tax benefits. That the nucleus of the family always existed as the property was of joint name. The father of the parties was given the agency of Bombay region but to keep the family intact the father came back to Delhi and purchased the property bearing no. 152 Bhagat Singh Market, Connaught Place New Delhi out of the Hindu Undivided family funds to run the family business of lotteries. That it is also worth to state that the property was purchased in the name of the plaintiff whereas the agency was in the name of the defendant and the name of the agency was Deepak agency. The defendant used to work at Deepak agencies alongwith the plaintiff and the father of the parties. Further when the lotteries were banned by the Government the parties decided to purchase a land for poultry farm which was purchased from the efforts of the defendant at pali sona road Faridabad Haryana further the same was later on disposed off. the plaintiff informed that his in laws were selling off their business which the family agreed to purchase. That for that business Rs 25 lakhs was required. 10 lakhs was provided by the defendant in the business of the family. The cheque of Rs 10 lakhs was provided to the in-laws of the plaintiff by the defendant