RFA No.873/2003

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No.873/2003

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12^th September, 2011

SH.RAVISH CHAND JAIN

...... Appellant

Through:

Mr. Prakash Khandelwal, Adv.

VERSUS

SMT. RAJ RANI JAIN & ORS.

...... Respondents

Through: Mr.Randhir Jain with

Mr. Dhananjai Jain, Advs.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

1.

Whether the Reporters of local papers may be

allowed to see the judgment?

2.

To be referred to the Reporter or not?

3.

Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1.

The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC), is to the impugned

judgment and decree dated 8.9.2003, and by which judgment the Court

below dismissed the suit for partition filed by the appellant/plaintiff. In the

suit the appellant/plaintiff had sought 1/6^th share of the house bearing No.

119, Bahubali Enclave, Delhi.

2.

A reading of the pleadings of the appellant/plaintiff shows that

the appellant/plaintiff pleaded existence of an HUF. The appellant/plaintiff

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RFA No.873/2003

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thereafter further pleaded that the respondent no1/defendant no.2/mother in

whose name the property was, was not the real owner of the property

because she was only a housewife and funds for the purchase and the

construction on the same were provided for by the grandfather and also by

the appellant/plaintiff. The defendants/respondents contested the suit and

denied the existence of HUF and also as to the property being a joint family

property. It was denied that the plaintiff had any share in the property which

belonged to the respondent No.1 and it was prayed that the suit for partition

be dismissed.

2A.

The Trial Court, after the pleadings were complete, framed the

following issues:-

“1. Was the property to suit purchased/acquired out of Hindu

Undivided Family Funds?

2. If issue no.1 is proved, does plaintiff have a share in its? If

so, how much?

3. Relief.”

3.

Before proceeding to analyze the evidence which has been led

before the Trial Court, as also the findings/conclusions of the Trial Court, it is

necessary to understand and appreciate as to how a Hindu undivided family

comes into existence before the enactment of the Hindu Succession Act,

1956 or thereafter. A Hindu undivided family before 1956 came into

existence if a male member inherited a property from any of his three

paternal ancestors. An HUF could also be created when no HUF was in

existence if a self-acquired property was thrown in a common hotchpotch.

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After 1956, merely because a person inherited a property from any of his

three paternal ancestors would not automatically mean that an HUF comes

into existence. This is clear from two judgments of the Supreme Court being

Commissioner of Wealth Tax vs. Chander Sen Etc. AIR 1986 SC 1753

and Yudhishter vs. Ashok Kumar AIR 1987 SC 558. After enactment of

the Hindu Succession Act, 1956, an HUF can ordinarily come into existence

for the first time only if an individual throws his self-acquired property into

common hotchpotch by a declaration and thereafter the property is treated

as a property of the Hindu undivided family. Persons being joint in mess

would not automatically mean that there is an existence of an HUF property

i.e. even if there is an existence of an HUF, there is no automatic

presumption that HUF also owned properties. Keeping this position of the

law in mind, let us turn to the facts of the present case.

4.

I put it to counsel for the appellant during the course of the

arguments as to whether even a single document was filed in the Trial Court

so as to prove the existence of an HUF, and, it is admitted that there is

absolutely no documentary evidence showing existence of an HUF. Neither

has the property as per the title deeds