JUDGMENT

AMIT BANSAL, J.

I.A. 5693/2017 (O-VII R-11 of CPC)

1. By way of this judgment, I shall decide the application filed on behalf of the defendant no.1 under Order VII Rule 11 of the Civil Procedure Code, 1908 (CPC) seeking rejection of plaint.

2. The present suit was filed on behalf of the plaintiff seeking partition and permanent injunction in respect of property bearing no.64 B, Sainik Farms, New Delhi (hereinafter referred to as „suit property‟).

3. Summons in the suit were issued on 19th May, 2015 and the parties were directed the maintain status quo in respect of the suit property vide the same order. On 5th September, 2016 issues in the suit were framed and the interim order was confirmed.

4. Subsequently, the present application under Order VII Rule 11 of the CPC, was filed on behalf of the defendant no.1. Notice in the application was issued on 11th May, 2017 and reply has been filed by the plaintiff.

5. The pleadings in the plaint insofar as are relevant for deciding of the present application are set out below:

i. Plaintiff is the son of late Shri Surinder Singh Chowdhary and late Smt. Punit Kaur. The Defendants are the elder sisters of the plaintiff.

ii. Shri Surinder Singh Chowdhary expired on 3rd November, 2013 and subsequently, Smt. Punit Kaur expired on 5th February, 2014 leaving behind plaintiff and the defendants as the sole surviving legal heirs.

iii. Late Shri Surinder Singh Chowdhary was the Karta of Surinder Singh Chowdhary HUF (hereinafter „HUF‟), which owned shares in one M/s Anjala Exhibitors Private Limited. The said shares were sold in the year 1988 and the proceeds thereof were invested in HUDCO Tax Saving Bonds.

iv. The aforesaid bonds were subsequently redeemed on 21st June, 1991 and amounts thereof were received in the account of the HUF.

v. The plaintiff along with the plaint has filed letter dated 20th June, 1988 issued by the Assistance Finance Officer, HUDCO confirming the redemption and Income Tax Assessment orders in respect of the aforesaid bonds.

vi. In early 1992, late Shri Surinder Singh Chowdhary, as Karta of the HUF purchased the suit property from the funds of the HUF received upon the redemption of the aforesaid bonds. The sale deed dated 18th August 1992 was executed in the name of late Shri Surinder Singh Chowdhary as the Karta of the HUF for the benefit of other coparceners.

vii. The suit property was let out by late Shri Surinder Singh Chowdhary to various tenants and the rents received therefrom were deposited in the HUF accounts. Reliance is placed on the TDS certificates filed by the tenants to show that TDS was being deposited in the name of the HUF.

viii. Late Shri Surinder Singh Chowdhary executed a Will dated 15th May, 2007 bequeathing the entire suit property to the defendants in equal proportion. The plaintiff contends that the aforesaid Will has been made under a misconception as the suit property was always an HUF property and late Shri Surinder Singh Chowdhary could not have bequeathed the entire suit property in favour of the defendants. The Will itself provided that share of Shri Surinder Singh Chowdhary in HUF would be divided equally between his wife, the plaintiff and the defendants. Probate proceedings initiated by the defendant no.1 in respect of the aforesaid Will are pending before the District Court.

ix. At the time of death of late Shri Surinder Singh Chowdhary, the HUF comprised of his wife, the plaintiff and the defendants and therefore, each of them had 25% share in the suit property. Subsequently, in terms of the Will of his mother, the plaintiff acquired her share in the suit property and therefore, the share of the plaintiff became 50% in the suit property. Consequently, the share of the defendant no.1 is limited to 25% share in the suit property.

SUBMISSIONS OF THE DEFENDANT NO.1

6. Senior counsel appearing on behalf of the defendant no.1 has made the following submissions in support of the present application:

i. The suit property was not purchased in the name