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21.02.2023

I.A. 2687/2020(U.O. VII R. XI of CPC)

1.

This application has been preferred for rejection of a plaint

which has come to be instituted in a suit for partition.

2.

Mr. Rohatgi, learned counsel appearing for the Applicant has

vehemently urged that although the plaint seeks to assert that a Hindu

Undivided Family [HUF] came into being and as a consequence of which

the minor Plaintiff obtained a right and interest therein by virtue of birth,

the pleadings taken in the plaint are wholly insufficient and unsupported by

any evidence. Taking the Court through the plaint which has been filed, Mr.

Rohatgi, pointed out that apart from the various assertions made with

respect to meetings and oral statements attributed to parties, the plaint

neither places on the record any documentary evidence nor any statutory

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record which may have indicated that an HUF came into being and that the

nature of the properties was changed in terms thereof. According to Mr.

Rohtagi, in the absence of any corroborative material in respect of creation

of the HUF, the plaint is liable to be rejected by recourse to Order VII Rule

11.

3.

Learned counsel has firstly placed reliance on a judgment rendered

by a learned Judge of the Court in Jatinder Pal Singh Dang & Anr. vs.

Gunpreet Singh Dang & Anr.¹ to contend that while dealing with an

identical question, the Court had found that a mere bald assertion of the

creation of an HUF would not be sufficient. While dealing with the

challenge which was laid there, the learned Judge in Jatinder Pal Singh had

observed as follows:-

“20. That brings me to the crux of the matter i.e. qua HUF.

21. The counsel for the respondent No. 1/plaintiff has contended

that Surender Kumar supra relied upon by the senior counsel for the

petitioners/defendants itself does not support the petitioners/defendants.

Attention is invited to para 7(ii) and para 10 thereof and it is argued that

as per the said judgment also, an HUF can come into existence after

1956 even if did not exist prior thereto, when an individual's property is

thrown into a common hotchpotch and that the respondent No.

1/plaintiff in paras 5 & 6 of the plaint as reproduced above has pleaded

such throwing in of the properties by Joginder Singh Dang, paternal

grandfather of the respondent No. 1/plaintiff into HUF.

22. I am unable to agree. The respondent No. 1/plaintiff, as aforesaid,

has admitted the properties being held in the name of the

petitioner/defendant No. 1 and not in the name of his paternal

grandfather Joginder Singh Dang. Once, it was so, the throwing of the

properties into the common hotchpotch at or around December, 2010,

could not have been by Joginder Singh Dang in whose name the

properties did not stand and without the petitioner/defendant No. 1 in

whose name the properties admittedly stood joining in the same. It is

not the plea that the petitioner/defendant No. 1 joined in throwing of the

properties into the HUF.

26. Surender Kumar supra in para 7(ii) thereof holds that the averments

of throwing a property into common hotchpotch have to be clearly

pleaded and which requirement is a legal requirement because of Order

VI Rule 4 of CPC which provides that all necessary factual details of

the cause of action must be clearly stated. Reference on the aspect of

existence of HUF may be made to the dicta of this Court in Jai Narain

Mathur v. Jai Prakash Mathur, 2016 SCC OnLine Del 986. The

1 2018 SCC OnLine Del 8354

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respondent No. 1/plaintiff in the plaint has merely pleaded the throwing

in of the properties in