Ravi Narayan Agarwal vs Sushil Kumar Agarwal & Ors.

,,,,

Manmohan, J",,,,

CM APPL. 28498/2020, 28499/2020, 28500/2020, 28502/2020",,,,

Allowed, subject to just exceptions.",,,,

RFA(OS) 37/2020 & CM Appls.28497/2020, 28501/2020",,,,

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 13th 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,,,,

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.â€​,,,,

xxx xxx xxx,,,,

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 co-owners or that the parties agreed that the demarcated area that they are occupying, are their respective",,,,

shares from the property in question.,,,,

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,,,,

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,,,,

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.",,,,

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,,,,

...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.,,,,

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.,,,,

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,,,,

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,,,,

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,,,

January, 1947 â€" well before the Hindu Succession Act, 1956 came into force â€" 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.",,,,

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.,,,,

He also pointed out that the ‘family tree’ filed by the plaintiff-respondent 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.,,,,

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.,,,,

ARGUMENTS ON BEHALF OF RESPONDENTS,,,,

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 (1/4th) 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) 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.,,,,

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 5th 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.,,,,

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.,,,,

They pointed out that the appellant had admitted the individual shares of the parties as the appellant had admitted the Memorandum dated 5th,,,,

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.,,,,

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.,,,,

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.,,,,

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,,,,

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.,,,,

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.",,,,

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,,,,

day of December 1960.â€​,,,,

Further, the appellant along-with his written statement had himself filed a copy of the letter dated 05th 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 â€" 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 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 Officerâ€​,,,,

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 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.,,,,

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.,,,,

NAMEÂ Â Â Â Â Â Â

OFÂ Â Â Â Â Â Â THE PARTIES","SHAREÂ Â Â Â Â Â Â Â

INÂ Â Â Â Â Â Â Â 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,,,

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

or “approbate and reprobateâ€. 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.â€​,,,,

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.â€​,,,,

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.,,,,

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.",,,,

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:-,,,,

“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.â€​,,,,

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.,,,,

Consequently, the present appeal, along with pending applications, is dismissed being bereft of any merit without any order as to costs.",,,,