Sunday 30 May 2021

Whether the property is HUF property if parties reside in their respective demarcated portions of the suit property?

Further, the appellant’s argument that the parties are residing in their respective demarcated portions of the suit property is contrary to his primary submission of an HUF. This Court is of the view that if the suit property was an HUF property, there was no question of any member of the family being an owner or any family member owning any specific share, as it is settled law that the essence of joint Hindu family property is unity of ownership and community of interest, and the shares of the members are not defined. {Para 28}

IN THE HIGH COURT OF DELHI AT NEW DELHI

 RFA(OS) 37/2020

SHRI RAVI NARAYAN AGARWAL Vs  SHRI SUSHIL KUMAR AGARWAL & ORS. 


CORAM:

HON'BLE MR. JUSTICE MANMOHAN

HON'BLE MR. JUSTICE SANJEEV NARULA

Author: MANMOHAN, J:

Date of Decision:16th December, 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 13

th 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.

xxx xxx xxx

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.”

xxx xxx xxx

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 coowners

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.

xxx xxx xxx

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.

xxx xxx xxx

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

Agarwal.

29. I may note that on 05.03.1962 L&DO had written to the

parties/predecessors stating that the properties have been mutated

in the joint names of the four brothers. There is no reference to the

mutation being in favour of any HUF. The mutation has been done

in the individual names. I may note that defendant no.1 and

defendant no.4 have admitted this letter in admission/denial.

xxx xxx xxx

33. The admitted fact is that the suit property was not bought in

the name of Shri Narayan Agarwal but was bought in the name of

his son Shri Chand Ratan Agarwal. The property continued to

remain undivided despite partition of the rest of the estate of Shri

Narayan Agarwal. The LRs of Late Sh.Narayan Agarwal remained

co-owners of the said property. There is in fact as noted above,

nothing to show that the property was ever treated as an HUF

property by the four brothers i.e. the sons of Shri Narayan

Agarwal. It is only a desperate defence raised by defendant No.1

to prolong the suit. As CS(OS)224/2017 Page 13 has been pointed

out by learned counsel for the plaintiff, it is defendant No.1 who is

occupying a major portion of the suit property and is hence

adopting dilatory tactics to delay the partition.

34. Coming to the main plea about the lady members of the

family, the plea raised by defendant No.1 in the written statement

in paragraph 9 is that the daughters of late Shri Chand Ratan

Agarwal, in paragraph 10 that the daughters of late Shri

Bishanswarup Agarwal do not have a share in the suit property

and also the plea in para 12 of the written statement that

defendants No.2 and 5 do not have a share in the suit property is

misplaced and contrary to the statutory provisions, namely, the

Hindu Succession Act, 1956. Even assuming that the HUF of the

father of defendant No.1 Shri Suraj Narayan Agarwal, HUF had a

share in the suit property as has been vaguely pleaded by

defendant No.1 in the written statement, Shri Suraj Narayan

Agarwal had died intestate on 25.1.2001. Assuming that the

unamended provisions of section 6 of the Hindu Succession Act

apply the defendants No.2 and 5, namely, the mother and sister of

defendant No.1 would still have a right in the suit property.

Reference may be had to section 6 of the Hindu Succession Act as

it stood prior to the amendment of 2005....

xxx xxx xxx

36. Hence, in terms of the unamended section 6 of the said Act

on the death of Shri Suraj Narayan Agarwal on 25.1.2001 his

alleged share in the HUF would devolve through intestate

succession and not by survivorship. The said defendants No.2 and

5 will continue to have a share in the suit property in terms of the

said statutory provisions. The defendant No.1 by pleading that

defendants No.1 and 5 have no share in the said property is only

making vague submissions which are on the face of it are contrary

to the statutory provisions. This plea of defendant No.1 that

defendant No.2 and 5 have no share in the suit property is vague

and is completely without merits.

xxx xxx xxx

39. Keeping in view the above discussions, as stated, it is

manifest that the parties are not at variance on any material

proposition of law or fact, therefore, no issues can be framed.

40. A preliminary decree is passed holding the share of the

parties to be in terms of para 14 of the plaint.”

2. The paragraph no.14 of the plaint specifying the shares of the various

parties is also reproduced hereinbelow:-

“14. That as such, the shares of the parties in the Suit Property

is as under:-

NAME SHARE

Sushil Kumar Agarwal 1/4th

Rajesh Agarwal 1/4th

Dhiraj Agarwal 1/12th

Subhash Agarwal 1/12th

Ashok Agarwal 1/12th

Sushila Agarwal 1/24th

Ravi Narayan Agarwal 1/24th

Hari Narayan Agarwal 1/24th

Shiv Ratan Agarwal 1/24th

Madhu Agarwal 1/24th

Reshmi Chand Agarwal 1/72nd

Roshini 1/72nd

Rishan Chandra Agarwal 1/72nd

3. Mr. Navniti Pd. Singh, learned senior counsel for the appellant

submitted that the main issue in the present case was whether the Suit

Property is a Hindu Undivided Family (hereinafter referred to as “HUF”) or

coparcenary property. According to him, the answer to this issue determines

which parties are entitled to what share in the Suit Property.

ARGUMENTS ON BEHALF OF THE APPELLANT

4. He stated that after hearing the parties, the learned Single Judge vide

order dated 6th August, 2018 had directed the issues to be framed. However,

he pointed out that instead of framing the issues, the learned Single Judge

erred in passing the impugned judgment and preliminary decree holding that

the suit property was self-owned property of the four sons of the late Shri

Narayan Agarwal.

5. He further stated that the suit property was acquired by the

grandfather of the appellant – late Shri Narayan Agarwal, who died intestate

in January, 1947 – well before the Hindu Succession Act, 1956 came into

force – leaving behind four sons and his widow. He submitted that the

property that devolves upon the legal heirs prior to 1956 is either an HUF

property or a coparcenary property but it cannot be self-owned property as

held by the learned Single Judge in the impugned judgment. He pointed out

that the law of inheritance in case of intestate death of a male Hindu prior to

1956 had been explained by a Single Bench of this Court in Sushovanpal vs.

Sharmistha Pal @ Sharmistha Mazumdar & Anr. (2018) SCC OnLine Del

10082 and the judgment by Division Bench of this Court in Sagar Gambhir

vs. Sukhdev Singh Gambhir, 2017 SCC OnLine Del 7305.

6. Learned senior counsel for the appellant repeatedly emphasised that if

a person dies before 1956, his property shall be treated as HUF property and

consequently, the suit property in the present case was HUF property. He

emphasized that in para 5 of the plaint the plaintiff/respondent No.1 had

admitted that the suit property was an HUF property. He pointed out that

throwing of a property into a common hotchpotch was not required for a

property in order to be treated as HUF in a case governed by the pre-1956

law. Consequently, according to him, defendant no.5/respondent no.8

(married sister of the appellant) would not be entitled to any share.

7. He also pointed out that the ‘family tree’ filed by the plaintiffrespondent

no.1 before the learned Single Judge was incomplete inasmuch

as it did not mention the two sons of the plaintiff-respondent no.1 and the

relevant HUFs had not been impleaded.

8. He lastly stated that all the co-owners are in possession of their

demarcated portion of the suit property and that the same was not denied by

the plaintiff-respondent no.1 as well.

9. Mr. Jai Sahai Endlaw and Mr. Shashank Khurana, learned counsel for

respondents stated that it was an admitted case of the parties that the suit

property was a self acquired property of late Shri Narayan Agarwal and all

his four sons had one-fourth (1/4

ARGUMENTS ON BEHALF OF RESPONDENTS

th) share in the suit property in their

individual capacities. In support of their contention, they relied upon

paragraph no. 14 of appellant’s written statement wherein he had admitted

that his father i.e. Late Shri Suraj Narayan Agarwal had a one-fourth (1/4th)

10. They also relied upon paragraph nos. 28 to 30 of the impugned

judgment wherein the learned Single Judge had observed that the appellant

had admitted, in an earlier letter dated 5

share in his individual capacity. They emphasised that there was no mention

of any HUF of Late Shri Suraj Narayan Agarwal in the appellant’s written

statement.

th March, 1962 addressed to the Land

and Development Office, that the suit property had been mutated in the

names of all four sons of Late Shri Narayan Agarwal in their individual

capacities and not in favour of any HUF of Late Shri Narayan Agarwal.

11. They contended that the appellant had merely raised a bald plea

unsupported by any documentary evidence to show the existence of HUF.

They also stated that a perusal of the Written Statement as well as the appeal

filed by the appellant would clearly show that the entire defense of the

appellant was built on false and frivolous pleas. According to them, in a case

where proposed issues were based on pleas unsubstantiated by any

documentary evidence, the learned Single Judge was not bound to frame any

issue. In support of their submission, they relied upon the judgment of this

Court in Kawal Sachdeva vs Madhu Bala Rana 2013 SCC OnLine Del

1479.

12. They pointed out that the appellant had admitted the individual shares

of the parties as the appellant had admitted the Memorandum dated 5th

13. Mr. Jai Sahai Endlaw stated that a plain reading of the plaint filed

before the Trial Court would show that there was an oral agreement of 1947

and a subsequent declaration deed of 1960 which pertained to other

properties and not the suit property.

August, 2013 issued by Department of Urban Development, Land and

Development Office. Consequently, according to them, the appellant cannot

be allowed to approbate and reprobate at the appeal stage.

14. Mr. Shashank Khurana submitted that the contention of the appellant

that there had been demarcation of shares and parties were occupying the

demarcated areas since 1954, was wholly without merit inasmuch as

possession of one co-sharer in the eyes of law, was possession of all and

mere occupation of large portion or even the entire property did not amount

to ouster or proof of partition. In support of his submission he relied upon

the judgment of this Court in Rajbir vs Padma Devi (2008) 155 DLT 577.


15. He lastly submitted that since admittedly Late Shri Suraj Narayan

Agarwal had no HUF and he died intestate, all the female heirs i.e.

Defendant No. 5 (Respondent No. 8 herein), Defendant No. 6 (Respondent

No. 9 herein) and Defendant No. 8 (Respondent No. 11 herein) would be

entitled to their respective shares in the suit property.

COURT’S REASONING

16. Having heard the learned counsel for the parties and having perused

the paper book, this Court finds that it is an admitted position that the Suit

Property was acquired by Shri Narayan Agarwal, prior to 1956, in the name

of his eldest son, Chand Ratan Agarwal.

IT IS NEITHER PARTY’S CLAIM THAT SHRI NARAYAN AGARWAL HAD

AN HUF WITH HIS SONS, OR THAT THE SUIT PROPERTY WAS PART

OF A COMMON HUF. THIS COURT IS IN AGREEMENT WITH THE

FINDINGS OF THE TRIAL COURT THAT UPON THE DEATH OF SHRI

NARAYAN AGARWAL, HIS FOUR SONS INHERITED THE SUIT

PROPERTY IN EQUAL SHARE AND NOT AS AN HUF PROPERTY.

17. Further, Shri Narayan Agarwal died intestate prior to 1956, leaving

behind his wife and four sons as his only legal heirs. From a reading of the

plaint including its para 5, it is apparent that the suit property remained the

joint property of the sons of Late Shri Narayan Agarwal. Vide a

‘DECLARATION’ dated December 1960 / 04th January, 1961 all the four

sons of Late Shri Narayan Agarwal admitted that they were the owners of

the suit property in equal shares as joint tenants and not as members of an

HUF having an unpredictable and fluctuating interest. The relevant portion

of the ‘DECLARATION’ is reproduced hereinbelow:-

“(6) It appears that the said property, both in records of Rights

and the property register of the New Delhi Municipal Committee

still continues to stand in the name of Chandratan Shrinarayan

Agarwal, the declarant No.3 herein, in whose name our father

Late Lala Shrinarayan Ramchand Agarwal had originally

purchased the said property.

(7) We all the four declarants do hereby solemnly affirm and

say and declare that we are the owners of the said property in

equal shares as Joint tenants.

xxx xxx xxx

Solemnly declared at Bombay

by the Within named Bishansarup

S/o Lala Shrinarayan this 31st

Day of December 1960

Solemnly declared at

by the within named Surajnarayan

S/o Lala Shrinarayan this

Day of 4th Jan. 1961.

Solemnly declared at

by the Within named Chandratan

S/o Lala Shrinarayan this

Day of 4th Jan. 1961.

Solemnly declared at Bombay

by the Within named Sushil Kumar

S/o Lala Shrinarayan this 31st

18. Further, the appellant along-with his written statement had himself

filed a copy of the letter dated 05

day of December 1960.”

th March, 1962 issued by the Land and

Development Officer addressed to the four sons of late Sh.Narayan Agarwal

wherein it had been stated that in accordance with their letter dated 03rd

October, 1961, the suit property had been mutated in their names jointly in

the records. The said letter is reproduced hereinbelow:-

“No.Allot.4/88(9)/60 Dated the 5 MAR 1962

From:

Shri K. B. Menon,

Land & Development Officer,

New Delhi – 1

To:

Shri Chandrattan Shrinarayan Agarwal,

Shri Bishansarup Shrinarayan Agarwal,

Shri Surajnarayan Shrinarayan Agarwal,

Shri Sushilkumar Shrinarayan Agarwal,

18, Doctors Lane, New Delhi

Sub: Premises situated on plot No.9 in Block 88 known

As 18, Doctors Lane, New Delhi.

Dear Sirs,

With reference to your letter dated 3rd

19. Consequently, it is neither party’s claim that Shri Narayan Agarwal

had an HUF with his sons, or that the Suit Property was part of a common

HUF. In fact, it is not the appellant’s case that there was a composite

overarching HUF comprising four sons (namely Chand Ratan Agarwal,

Bishan Swaroop Agarwal, Suraj Narayan Agarwal and Sushil Kumar

October, 1961 I am directed

to inform you that the property mentioned above have been mutated

in your names jointly in the records of this office. You are all now

jointly bound by the terms and conditions of the original Perpetual

lease.

Yours faithfully,

Sd/- 3/3

(K.B. Menon)

Land and Development Officer”

Agarwal) of the deceased Shri Narayan Agarwal. Instead, the appellant’s

case in appeal is that all the four sons of late Shri Narayan Agarwal had

separate and independent HUFs.

20. The family members of the other three sons of late Shri Narayan

Agarwal (excluding the appellant’s father) i.e. Chand Ratan Agarwal,

Bishan Swaroop Agarwal and Sushil Kumar Agarwal have given their no

objection to the present suit being decreed.

21. Even in the appellant’s family faction, the appellant and his brother

(defendant No.4 before the trial Court) were the only parties contesting the

present suit and the appellant is the only one who has filed an appeal against

the preliminary decree. The remaining heirs of late Suraj Narayan Agarwal

(father of appellant) have denied the factum of an overarching composite

HUF and have supported the present suit being decreed.

22. In the appellant’s own written statement there is no averment that his

family faction comprising children of late Suraj Narayan Agarwal had any

HUF. This is apparent from para 14 of the written statement filed by the

appellant, which is reproduced hereinbelow:-

“14. That the contents of Para 14 of the Plaint are wrong and

denied. The actual share of the eligible co-owners in the Suit

Property is provided as under:-

NAME OF THE

PARTIES

SHARE IN THE

PROPERTY

Sushil Kumar Agarwal

HUF

1/4th

Bishen Swarup Agarwal

HUF

1/4th

Chand Ratan Agarwal

HUF

1/4th

Suraj Naryan Agarwal 1/4th

23. In oral arguments, learned senior counsel for appellant had stated that

there was a typographical error in the aforesaid chart. However, the said

ground had not been taken before the learned Single Judge or even in the

appeal. Consequently, this Court cannot accept the bald statement made by

the learned senior counsel for appellant at this stage.

24. Keeping in view the aforesaid factual scenario, this Court is in

agreement with the findings of the Trial Court that upon the death of Shri

Narayan Agarwal, his four sons inherited the Suit Property in equal shares

but not as an HUF property.

25. This Court is further of the opinion that the Appellant’s submission

that the Suit Property is an HUF property is not only contrary to facts, but

untenable in law as well. At this stage, it would be apposite to quote the

judgment of the Division Bench of this Court in Sagar Gambhir (supra),

APPELLANT’S SUBMISSION THAT THE SUIT PROPERTY IS AN HUF

PROPERTY IS UNTENABLE IN LAW IN VIEW OF THE JUDGMENT OF

THE DIVISION BENCH OF THIS COURT IN SAGAR GAMBHIR (SUPRA)

AND IS CONTRARY TO HIS ARGUMENT THAT PARTIES ARE

RESIDING IN THEIR RESPECTIVE DEMARCATED PORTIONS. IF THE

SUIT PROPERTY WAS AN HUF PROPERTY, THERE WAS NO

QUESTION OF ANY MEMBER OF THE FAMILY OWNING ANY

SPECIFIC SHARE, AS IT IS SETTLED LAW THAT THE ESSENCE OF

JOINT HINDU FAMILY PROPERTY IS UNITY OF OWNERSHIP AND

COMMUNITY OF INTEREST, AND THE SHARES OF THE MEMBERS

ARE NOT DEFINED.


whereby the judgment of the learned Single Judge in Surender Kumar v. Dhani Ram 227 (2016) DLT 217 was confirmed:-

“10. In Chander Sen's case (supra), the Supreme Court held that

after the promulgation of the Hindu Succession Act, 1956, the

traditional view under the Hindu Law no longer remained the

legal position. This decision was followed incase (supra) the

Supreme Court held that after the promulgation of the Hindu

Succession Act, 1956, the traditional view under the Hindu Law no

longer remained the legal position. This decision was followed

in Yudhishter's case (supra). We agree with the legal position

noted by the learned Single Judge which flows out of the two

decisions of the Supreme Court, which would be as under:—

“(i) If a person dies after passing of the Hindu Succession Act,

1956 and there is no HUF existing at the time of the death of

such a person, inheritance of an immovable property of such a

person by his successors-in-interest is no doubt inheritance of

an ‘ancestral’ property but the inheritance is as a self-acquired

property in the hands of the successor and not as an HUF

property although the successor(s) indeed inherits ‘ancestral’

property i.e. a property belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided Family/joint

Hindu family can come into existence after 1956 (and when a

joint Hindu family did not exist prior to 1956) is if an

individual's property is thrown into a common hotchpotch. Also,

once a property is thrown into a common hotchpotch, it is

necessary that the exact details of the specific date/month/year

etc. of creation of an HUF for the first time by throwing a

property into a common hotchpotch have to be clearly pleaded

and mentioned and which requirement is a legal requirement

because of Order VI Rule 4 CPC which provides that all

necessary factual details of the cause of action must be clearly

stated. Thus, if an HUF property exists because of its such

creation by throwing of self-acquired property by a person in

the common hotchpotch, consequently there is entitlement in

coparceners etc. to a share in such HUF property.

(iii) An HUF can also exist if paternal ancestral properties are

inherited prior to 1956, and such status of parties qua the

properties has continued after 1956 with respect to properties

inherited prior to 1956 from paternal ancestors. Once that

status and position continues even after 1956; of the HUF and

of its properties existing; a coparcener etc. will have a right to

seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence even

without inheritance of ancestral property from paternal

ancestors, as HUF could have been created prior to 1956 by

throwing of individual property into a common hotchpotch. If

such an HUF continues even after 1956, then in such a case a

coparcener etc. of an HUF was entitled to partition of the HUF

property.”

26. This Court finds that appellant’s reliance on Sushovanpal (supra) is

misplaced as the parties therein were governed by the Dayabhaga School of

law and there was no plea of succession prior to 1956.

27. In view of the settled law and absence of any specific pleading or

evidence to the contrary, the inheritance of suit property prior to 1956 would

not automatically convert the suit property into an HUF property as sought

to be contended by the appellant.

28. Further, the appellant’s argument that the parties are residing in their

respective demarcated portions of the suit property is contrary to his primary

submission of an HUF. This Court is of the view that if the suit property was

an HUF property, there was no question of any member of the family being

an owner or any family member owning any specific share, as it is settled

law that the essence of joint Hindu family property is unity of ownership and

community of interest, and the shares of the members are not defined.


THE APPELLANT HAS ADMITTED THE MEMORANDUM DATED 5th

29. Moreover, the appellant has admitted the memorandum dated 5

AUGUST, 2013 ISSUED BY THE MINISTRY OF URBAN

DEVELOPMENT, LAND AND DEVELOPMENT OFFICE WHEREIN THE

INDIVIDUAL SHARES OF THE SURVIVING HEIRS OF LATE SHRI

NARAYAN AGARWAL HAVE BEEN SPECIFICALLY MENTIONED

th

August, 2013 issued by the Ministry of Urban Development, Land and

Development Office wherein the individual shares of the surviving heirs of

late Shri Narayan Agarwal have been specifically mentioned. The relevant

portion of the memorandum dated 5th

“Government of India

Ministry of Urban Development

Land and Development Office

Moulana Azad Road, Nirman Bhawan

New Delhi – 110 108

August, 2013 is reproduced

hereinebelow:-

NO. LDO/LS1/341 Date 05-Aug-2013

Property ID 24846 Application ID : 100026171

To,

1. Shri DHIRAJ P. AGARWAL

7-BASANT BAHAR-3 NEAR HOMEOPETHIC COLLEGE/BHOPAL

AHMEDABAD- 380058

MEMORANDUM

xxxx xxxx xxxx xxxx

2. The property now stands in the books of this office in the

name(s) of:

RFA(OS) 37/2020 Page 18 of 21

S.

No.

Name Sex/Age Relation/Deceased

Lessee Name

Share

1. DHIRAJ P

AGARWAL

MALE/40 SON SH.

PRAKASH

CHAND B AGARWAL

1/12TH

UNDIVIDED

SHARE

2. RAJESH

AGGARWAL,

SURAJ

NARAYAN

AGGARWAL,

SUSHIL

KUMAR

AGGARWAL

MALE/40 PRESENT

LESSE/SH.PRAKASH

CHAND B AGARWAL

1/4TH

UNDIVIDED

SHARE

EACH

3. SH.SUBHAS

CHAND B

AGARWAL,

ASHOK B

AGARWAL

MALE/0 PRESENT

LESSE/SH. PRAKASH

H CHAND B

AGARWAL

1/12TH

UNDIVIDED

SHARE

EACH

Sd/-

(SUMIT GAKHAR)

Deputy Land & Development Officer

For and on behalf of President of India”

30. It is relevant to mention that in the said memorandum, appellant’s

share is covered within the one-fourth (1/4th) share that devolved upon Shri

Suraj Narayan Agarwal (i.e. deceased father of appellant). Accordingly, this

Court is of the view that assuming, without admitting, if there is any dispute

vis-à-vis the branch/family faction of the appellant i.e. within the one-fourth

(1/4th

31. In any event, as the appellant has admitted the aforesaid document

during the course of admission and denial of documents before the Trial

) share that devolved upon Late Suraj Narayan Agarwal – the same

would have to be subject matter of a different partition suit and cannot hold

up the present proceedings.

Court and has not challenged the said document, this Court is of the opinion

that the appellant having taken benefit of mutation cannot now be permitted

to approbate and reprobate. The Supreme Court in Bhagwat Sharan

(Deceased, through LRs) v. Purushottam, (2020) 6 SCC 387 has held as

under:-

“26. …. It is trite law that a party cannot be permitted to

approbate and reprobate at the same time. This principle is based

on the principle of doctrine of election. In respect of wills, this

doctrine has been held to mean that a person who takes benefit of

a portion of the will cannot challenge the remaining portion of the

will. In Rajasthan State Industrial Development & Investment

Corpn. v. Diamond & Gem Development Corpn. Ltd., this Court

made an observation that a party cannot be permitted to “blow hot

and cold”, “fast and loose” or “approbate and reprobate”. Where

one party knowingly accepts the benefits of a contract or

conveyance or an order, it is estopped to deny the validity or

binding effect on him of such contract or conveyance or order.”

32. Insofar as the appellant’s contention qua impleading HUF of each son

as a necessary and proper party is concerned, this Court finds that this

argument has been dealt with in the impugned order, wherein the learned

Single Judge has rightly held as under:-

“17. I may look at the contentions of the said defendants No.1 and

4. As far as the first plea raised by learned counsel for defendant

No.1 is concerned, namely, that the HUF of respective parties

have to be impleaded as necessary party, the plea is misplaced.

The respective alleged coparceners of all the HUFs are admittedly

parties to the present suit. Necessary and proper parties have been

duly impleaded. That apart, as elaborated below the plea of there

being an HUF is a vague and unsubstantiated submission which

cannot be accepted. This plea is misplaced.”

33. Further, the said contention is inconsequential as the persons who

would be kartas of such alleged HUFs are already impleaded in the Suit and

have not raised any objection to the division of the property.

34. While discussing the importance of giving due attention to pleadings

in civil cases pertaining to property, the Supreme Court in Maria Margarida

Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC

370 emphasized that Courts must accord the necessary consideration to the

documents filed by the parties as this would prevent many a false claims

from sailing beyond the stage of issues. The relevant portion of the judgment

is reproduced hereinbelow:-

THE LEARNED SINGLE JUDGE WAS BOUND TO PASS THE

IMPUGNED JUDGMENT AT THE STAGE OF FRAMING OF ISSUES

INASMUCH AS THE GROUNDS RAISED BY THE APPELLANT WERE

EITHER VAGUE OR NO LONGER RES INTEGRA AND

CONSEQUENTLY, DID NOT MERIT A TRIAL.

“74. If the pleadings do not give sufficient details, they will not

raise an issue, and the court can reject the claim or pass a decree

on admission. On vague pleadings, no issue arises. Only when he

so establishes, does the question of framing an issue arise.

Framing of issues is an extremely important stage in a civil trial.

Judges are expected to carefully examine the pleadings and

documents before framing of issues in a given case.”

35. Keeping in view the settled legal position, this Court is of the view

that the learned Single Judge was bound to pass the impugned judgment at

the stage of framing of issues inasmuch as the grounds raised by the

appellant were either vague or no longer res integra and consequently, did

not merit a trial. Even at the appellate stage, the appellant has failed to raise

any triable issue before this Court. It is also pertinent to mention that the

appellant is in sole possession of the house constructed on the Suit Property.

36. Consequently, the present appeal, along with pending applications, is

dismissed being bereft of any merit without any order as to costs.

MANMOHAN, J

SANJEEV NARULA, J

DECEMBER 16, 2020


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