Back
DELHI HIGH COURT
Valmiki J. Mehta, J.
Sh. Jawahar Lal (Since Deceased) Through Lrs and Ors. —Appellants
versus
Sh. Amar Nath (Since Deceased) Through Lrs and Ors. —Respondents
RSA Nos.229 & 230 of 2007 and C.M. No.11864/2007 (stay)
Decided on 3.11.2016
Counsel for the Parties:
For the Appellants:Mr. Vishesh Issar, Advocate with Mr. Jaskaran Singh, Advocate
For the Respondent Nos.2 to 6:Mr. Pushkar Sood, Advocate with Mr. Satya Prakash, Advocate
For the Respondent Nos.6(a) and 6(b):Mr. Sunil Satyarthi, Advocate
IMPORTANT POINT
One admission’ in itself cannot be made sole basis for a decision of a case.
Headnote:(A) Hindu Law—Partition—HUF—In law, once property is in name of an individual person, onus of proof shifts upon other persons who want to allege and prove that this property is not individual property of person in whose name title deeds exist and property is in fact HUF property—It is in law necessary to establish on preponderance of probabilities not only existence of HUF but also of availability of such funds with HUF by which property could have been purchased—Self-serving depositions of appellants/plaintiffs cannot be said to be discharge of onus of proof for holding the property to be declared as an HUF property and not as self-owned property of mother. (Para 6)
(B) Civil Law—Proof of case—HUF—A civil case is decided on preponderance of probabilities i.e., entire pleadings and evidence are considered as a whole for arriving at a conclusion—One admission’ in itself, unless so strong and overpowering to override every other aspect in the case; cannot be made sole basis for a decision of a case. (Para 9)
Result: Appeal dismissed.
Valmiki J. Mehta, J.—These Regular Second Appeals under Section 100 of the Code of Civil Procedure, 1908 (CPC) are filed by the appellants who are the plaintiffs in the two suits filed for partition. Appellants/plaintiffs represent the branch of Sh. Jawahar Lal son of Sh. Nanak Chand. One suit was filed by Sh. Jawahar Lal being suit No.19/2002. Another suit bearing No.17/2002 was filed by the legal heirs of Sh. Jawahar Lal. The properties and businesses with respect to which the suits for partition were filed are stated in Schedule A and Schedule B of the plaint. Schedule B contains the movable properties and Schedule A contains the immovable properties and also the businesses. Since there are no longer any live issues with regard to movable properties, the counsel for the appellants concedes that no judgment is invited so far as movable properties in Schedule B are concerned. Even with respect to the properties and businesses which are mentioned in Schedule A, the judgment of this Court is invited only with respect to the claim of partition of property at serial No.5 bearing No.530, Kucha Pati Ram, Delhi and which property by means of sale deed Ex.DX-2 was purchased in the name of Smt. Samarkar Devi wife of Sh. Nanak Chand i.e the mother of Sh. Jawahar Lal.
2. The only issue which is argued before this Court is as regards whether this Kucha Pati Ram property was an HUF property for the appellants/plaintiffs being legal heirs of the son Sh. Jawahar Lal, and other legal heirs being the other sons of Sh. Nanak Chand/ their legal heirs to have a share in this property. Suit No.19/2002 was filed on 6.10.1978 and another suit being Suit No.17/2002 was filed on 23.7.1998. Both the suits were consolidated and resulted in the common Judgment of the Trial Court dated 23.11.2004 by which only property no.278, Mohalla Karkari, Ajmere Gate, Delhi was declared as an HUF property and the other properties and businesses were held not to be HUF properties and businesses. The operative Order of the Trial Court dated 23.11.2004 reads as under:-
“23.11.2004
Present: None.
Vide a separate common judgment of even date the suit bearing no.17/02 and suit bearing no.19/02 have been disposed of wherein following opinion and relief has been granted to the parties.
I am of the opinion that only one property which is residential in nature bearing no.278 Mohalla Karkari as shown in site plan is a joint family property which alone is subject to partition. The other properties are held not to be the joint family properties. Therefore, I appoint Ms. Sunita Jonwal Chamber No.12 and 18, Western Wing, Tis Hazari Courts, Delhi-54 R/o 103, Vasudha Apartments, Sector-9, Rohini as the Local Commissioner who shall suggest the mode of partition of the above mentioned suit property and file her report within 45 days of this Order.
The plaintiff is directed to supply the copy of the plaint and copy of the site plan to the Local Commissioner. The fee of the Local Commissioner is fixed at Rs.2500/- to be borne by both the contesting parties.
As the plaintiff has not been able to establish that the property at 1085, Maliwara was under the tenancy of the HUF M/s Nanak Chand Fakir Chand therefore, the declaration and permanent injunction sought in suit no.17/02 is denied. The suit bearing no.17/02 is thus dismissed.
Parties to bear their own costs. Preliminary decree-sheet be prepared accordingly. File be consigned to record room. One copy of this order be given dasti to the parties.
sd/-
CJ/Delhi
23.11.2004”
3. The contesting defendants in the suit are the legal heirs of Sh. Amar Nath and who are respondent nos. 1(a) to (f). Sh. Amar Nath was one of the three sons of late Sh. Nanak Chand and late Smt. Samarkar Devi. Sh. Nanak Chand and Smt. Samarkar Devi had three sons, namely Sh. Faqir Chand, Sh. Amar Nath and Sh. Jawahar Lal. So far as the present second appeals are concerned, the appellants/plaintiffs are supported by the legal heirs of Sh
