The main legal point established in the judgment is the requirement for clear pleadings and necessary averments for the existence of joint Hindu family/HUF properties, and the court's wide discretion to pass judgment on admissions at any stage of the suit.

JUDGMENT

Amit Bansal, J. - I.A. 13628/2019 (O-VII R-11(a) & (d) of CPC)

1. The present application has been filed on behalf of the defendant no.1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint.

2. Notice in this application was issued on 30th September, 2019. No reply has been filed on behalf of the plaintiff.

3. The present suit has been filed on behalf of the plaintiff seeking relief of declaration, partition and possession in respect of following three immovable properties:

i. Property bearing No. 3/24, West Patel Nagar, New Delhi- 110008, admeasuring 200 square yards;

ii. Cottage No. 8, West Patel Nagar, New Delhi-110008 admeasuring 350 square yards; and

iii. Property bearing No. 2644, Sadar Thana Road, Delhi admeasuring about 707 square feet.

4. Plaintiff and the defendants no.1 to 3 are brothers, the defendant no.4 is their sister and the defendants no.5 and 6 are the children of another predeceased sister. All the parties are descendants of late Dr. Harnam Singh, who expired on 8th September, 2001. The plaintiff seeks partition of the aforesaid three properties on the ground that the said properties were joint family properties.

5. The ground for seeking rejection of the plaint, as set out in the application, is in respect of one of the aforesaid properties, being Cottage No. 8, West Patel Nagar, New Delhi-110008 admeasuring 350 square yards (subject property), which is claimed to be the exclusive and self-acquired property of the defendant no.1, having purchased the same by way of a registered Sale Deed dated 26th April, 1974. Counsel for the defendant no.1 submits that there are no pleadings in the plaint with regard to the creation, existence or continuity of an Hindu Undivided Family (HUF) and therefore, the subject property cannot be made subject matter of the present suit on the basis that it is an HUF property.

6. The counsel for the defendant no.1 has relied upon the judgment of a Co-ordinate Bench of this Court in Surender Kumar Khurana v. Tilak Raj Khurana & Ors., 2016 (155) DRJ 71 (DB), wherein this Court, while deciding an application under Order VII Rule 11 of the CPC, held that there have to be clear pleadings in the suit with regard to existence and creation of an HUF, the date on which the HUF was created, whether it was created after 1956, who were and are its coparceners and karta and in the event the HUF was created after 1956, when was the property claimed to be an HUF property, put in the common hotchpotch.

7. The observations of the Court as contained in paragraph 7 of the judgment are set out below:

'7. On the legal position which emerges pre 1956 i.e before passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) v. Sh. Raj Singh, CS (OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions : -

(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e a property belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc. of cre