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IN THE HIGH COURT OF DELHI
Manmohan, Sanjeev Narula, JJ.
Ravi Narayan Agarwal - Appellant
Versus
Sushil Kumar Agarwal - Respondent
RFA(OS) 37 of 2020
Decided On : 16-12-2020
HUF Property - Property Inheritance - Hindu Succession Act - [FACT OF THE CASE] The appeal was filed challenging the judgment and preliminary decree passed by the learned Single Judge in CS(OS) 224/2017. The main issue was whether the Suit Property is a Hindu Undivided Family (HUF) or coparcenary property. The appellant contended that the property devolved upon the legal heirs prior to 1956 is either an HUF property or a coparcenary property but it cannot be self-owned property. [FINDING OF THE COURT] The Court found that the Suit Property was acquired by Shri Narayan Agarwal prior to 1956 and remained the joint property of his sons. The Court held that the property was inherited in equal shares but not as an HUF property. [ISSUES] The main issue was whether the Suit Property is a Hindu Undivided Family (HUF) or coparcenary property. [RATIO DECIDENDI] The Court relied on the judgment of the Division Bench of the Court and the absence of specific pleading or evidence to conclude that the inheritance of the property prior to 1956 would not automatically convert the property into an HUF property. [FINAL DECISION] The appeal was dismissed being bereft of any merit without any order as to costs.
JUDGMENT
Manmohan, J.
CM APPL. 28498/2020, 28499/2020, 28500/2020, 28502/2020
Allowed, subject to just exceptions.
RFA(OS) 37/2020 & CM Appls.28497/2020, 28501/2020
1. Present appeal has been filed by appellant-Shri Ravi Narayan Agarwal, who was defendant no.1 in CS(OS) 224/2017 before the Trial Court, challenging the judgment and preliminary decree dated 13th March, 2020, passed by the learned Single Judge in CS(OS) 224/2017. The relevant portion of the impugned judgment is reproduced hereinbelow:
"9. Other than defendants No.1 and 4 none of the defendants have opposed the present suit.
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13. The matter was fixed for framing of issues. On 6.8.2018 this court passed the following order:
"Learned counsel appearing for the plaintiff submits that the only defendants who are opposing partition are defendant No.1 and 4. He further submits that in the written statement of defendant No.1 there is a clear admission that the plaintiffs are entitled to respective shares in the suit property. Learned counsel appearing for defendant No.1 has raised the following objections:
(i) He submits that the HUF of respective parties has also to be impleaded as a necessary party.
(ii) He submits that there has been demarcation of shares and parties are occupying the demarcated areas since 1954.
(iii) He further submits that defendants No.5, 6 and 8 being lady members are not entitled to any share in the suit property. List for framing of issues and arguments on 29.10.2018."
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19.I may note that there is no averment in the written statement that a partition took place and the parties subsequent to the partition have continued to occupy the area that fell to their share. There are also no documents filed by any of the defendants to support the plea that any partition took place amongst the co-owners or that the parties agreed that the demarcated area that they are occupying, are their respective shares from the property in question.
20. It also cannot follow that mere long occupation of a particular area by a co-owner implies that a partition has taken place amongst the co-owners.
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22. Hence, being in possession of a part of the property does not ipso facto mean that any partition has taken place. In fact no partition has been pleaded in the written statement. Hence, mere long occupation of certain areas by a co-owner does not debar the filing of a partition suit.
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24. The defendant No.1 is making contradictory submissions and statements. At one place it is pleaded that partition has already taken place and parties are occupying their respective areas which were demarcated and have fallen to their shares since 1954. On the other hand in paragraph 14 of the written statement defendant No.1 pleads that the actual share of eligible co-owners is 1/4th to Sushil Kumar Agarwal, HUF 1/4th to Shri B.S. Agarwal, HUF, 1/4th to Shri Chand Ratan Agarwal, HUF and 1/4th to Shri Suraj Narayan Agarwal. Hence, he claims that the respective HUFs of the four sons of late Shri Narayan Agarwal are the joint owners of the properties.
25. I may only note that existence of the HUF is neither pleaded nor in any manner sought to be shown by any documentary evidence. In fact defendant No.1 has not filed any documents. I may note that it is settled position of law that as to how a property came be an HUF has to be stated so in the pleadings.
xxx xxx xxx
27....It is clear that as already noted above, defendant No.1 in the written statement has not elaborated as to how he claims that the property is an HUF property in the hands of the four sons of late Shri Narayan Agarwal.
28. It follows that other than a bald averment in the written statement there is nothing to show that the property in question vests in the HUF's of the respective parties. On the other hand the documents filed by the plaintiffs which have been admitted by defendants No.1 and 4 accept the status of the suit property as that of the self owned property of the four sons of late Shri Narayan Ag
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