THE PR. COMMISSIONER OF INCOME TAX-4 vs. INDRAPRASTHA POWER GENERATION CO. LTD.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 3rd July, 2018

C.R.P. 189/2017

A.N. KAUL

..... Petitioner Through: Mr. Pradeep Dhingra & Mr. Mohit Nandwani, Advs. Versus

NEERJA KAUL & ANR

..... Respondents Through: Mr. Sandeep Mittal, Ms. Ashwarya Chander & Mr. Abhimanyua Walia, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

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said property; (iii) that the defendant no.1 is a citizen of United States of America (USA), permanently settled in USA and was married to the son of the petitioner / plaintiff, also settled in USA; (iv) the son of the petitioner / plaintiff and the respondent / defendant no.1 have in October, 2006, taken divorce from the Court in USA; (v) that the respondent / defendant no.2 is the granddaughter of the petitioner / plaintiff but has fallen into bad company; (vi) that the petitioner / plaintiff purchased the subject property in the month of July, 1964; (vii) that the petitioner / plaintiff, from 1982 till 2008, let out the first floor of the property to different tenants; (viii) while the petitioner / plaintiff was in USA with his son, the respondents / defendants trespassed into the property and took away all the original documents of title to the property; (ix) that the Income Tax Returns filed by the petitioner / plaintiff show the rental income of the first floor of the property assessed to the petitioner / plaintiff; (x) that the petitioner / plaintiff allowed the respondent / defendant no.2 as his granddaughter, to stay as a guest in one room on the first floor of the property; (xi) thereafter, the respondent / defendant no.1, who was also settled in USA, started visiting the first floor of the property; and, (xii) that the respondents / defendants are in illegal occupation of the front portion of the first floor of the property comprising of three rooms, one kitchen, two bathrooms. 4. The two respondents/defendants filed separate written statements contesting the suit, pleading (i) that the respondents/defendants have been living in the property since 1980-81 and the suit for recovery of possession is barred by time; (ii) that the respondent / defendant no.1 was not aware of the divorce decree pleaded by the petitioner / plaintiff and the said divorce decree if any is not conclusive, being not on the merits of the case and being founded on breach of Hindu Marriage Act, 1955 in force in India; (iii) that

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the suit had not been correctly valued for the purposes of court fees and jurisdiction and the court fees had not been paid on the correct market value of the property; (iv) that the respondent / defendant no.1 had undertaken the construction of the first floor out of the money given by her father at the time of marriage to the son of petitioner / plaintiff and the respondents / defendants as such have a right to stay in the first floor; (v) that the respondents / defendants, prior to institution of this suit, have instituted a suit claiming rights in the property and which suit is pending in the Court of the Civil Judge, Delhi; (vi) that the petitioner / plaintiff did not contribute any money to the first floor of the property and when the respondent / defendant no.1 constructed the same from her self-earned money, the petitioner / plaintiff assured the respondent / defendant no.1 that in future the petitioner / plaintiff shall never create any hindrance in the peaceful possession and enjoyment of the property by the respondent / defendant no.1 and it was on the basis of the said assurance that the respondent / defendant no.1 spent her monies on the construction of the first floor of the property; (vii) that the petitioner / plaintiff in the past has made attempts to forcibly remove the respondents / defendants from the property; (viii) the petitioner / plaintiff has been a US citizen for over a decade; (ix) that the respondent / defendant no.1 put her signatures on the ‘Quit Claim Deed’ just to buy peace for herself and her daughter; (x) the respondent / defendant no.1 made payments against electricity bill and water bills of the property; and, (xi) that the petitioner / plaintiff purchased the subject property out of funds from selling the property in Rajender Nagar which was allotted by the Government of India in lieu of an ancestral property in Lahore at the time of partition and also from the funds derived from sale proceeds of ancestral properties in

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Kashmir; thus the respondent / defendant no.2, as a granddaughter of the petitioner / plaintiff, has a share in the property which is an ancestral property. 5. The respondent / defendant no.2 along with her written statement also filed a Counter Claim seeking partition of the property. 6. I have hereinabove reproduced only portions of the pleadings, which are otherwise verbose, which are relevant for the present purposes. 7. The petitioner / plaintiff filed an application under Order XII Rule 6 of the CPC for decree of ejectment on admissions. 8. The learned Additional District Judge has dismissed the said application, reasoning that there was no admission in the written statement of the defendants for a decree on admissions to be passed; on the contrary, the defendants in their written statement have denied that they were inducted as tenants or licencees under the petitioner / plaintiff; the defendants have also pleaded the property to be ancestral and the defendant no.2 to be a co-owner, and the merits of the rival claims are not to be assessed at the stage of Order XII Rule 6 of the CPC. 9. I have considered the contentions of the counsels. 10. The reasoning given in the impugned order, of the petitioner / plaintiff, in the absence of express admission, being not entitled to a decree on admissions is indeed faulty and without considering a series of judgments of this Court. In Ashoka Estate Pvt. Ltd. Vs. Dewan Chand Builders Pvt. Ltd. 159 (2009) DLT 233, reiterated in judgment dated 14th September, 2017 in C.R.P. No. 190 of 2015 titled Vireet Investments Pvt. Ltd. Vs. Vikramjit

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Singh Puri and again reiterated in Bhupinder Jit Singh Vs. Sonu Kumar 2017 SCC OnLine 11061, it was held (i) that the plaintiff, if otherwise found entitled to a decree on admission, cannot be deprived thereof by astute drafting of the written statement and/or by taking pleas therein which have no legs to stand upon; (ii) the Court is to read the pleadings of the parties meaningfully; (iii) issues are to be framed on ‘material’ and not on all propositions of law and fact; (iv) a plea, which on the face of it is found by the court to be untenable, does not require the framing of any issue. In Adarsh Kumar Puniyani Vs. Lajwanti Piplani 2015 SCC OnLine Del 14022 it was held that material propositions of law or fact would mean such issues which are relevant and necessarily arise for deciding the controversy involved; if a plea is not valid and tenable in law or is not relevant or necessary for deciding the controversy involved, the Court would not be bound and justified in framing issue on such unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time. Reliance was inter alia placed on Abbot India Ltd. Vs. Rajinder Mohindra (2014) 208 DLT 201 holding that once it is found that there was no defence, merely because a bogey thereof is raised at the stage of framing of issues or upon the respondents/plaintiffs filing an application under Order XII Rule 6 of the CPC, would not call for framing of an issue. It was further held in Bhupinder Jit Singh supra that issues are to be framed only on material propositions of law or fact requiring trial and not on all propositions of fact or law which may be contained in the pleadings and which are not material i.e. on the outcome whereof the outcome of the suit does not depend. The Court is not obliged to, on finding pleas to have been raised in the written statement, mechanically frame issues thereon. If

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issues were to be framed in such manner, the same would be in disregard of the word ‘material’ in Order XIV Rule 1 of the CPC. The enquiry thus to be made at the time of framing of issues is, whether the pleas raised in the written statement, purportedly in defence to the claim in the plaint, have any material bearing to the outcome of the suit and if it is found that irrespective of the findings thereon, the plaintiff would be entitled to the relief, the parties are not to be put to trial in the suit. Similarly in Zulfiquar Ali Khan Vs. Straw Products Ltd. 87 (2000) DLT 76, it was observed that it is a notorious fact that to drag the case, a litigant often takes all sorts of false or legally untenable pleas and it was held that legal process should not be allowed to be misused by such persons and only such defence as give rise to clear and bona fide dispute or triable issues should be put to trial and not illusory or unnecessary or mala fide based on false or untenable pleas, to delay the suit. It was yet further held that the Court is not bound to frame an issue on unnecessary or baseless pleas, thereby causing unnecessary and avoidable inconvenience to the parties and waste of valuable Court time. Reference in this regard may also be made to Kawal Sachdeva Vs. Madhu Bala Rana 2013 SCC OnLine 1479 and to P.S. Jain Co. Ltd. Vs. Atma Ram Properties (P) Ltd. (2013) 205 DLT 302. 11. Not only so, Order XV of the CPC empowers the Court to, upon finding that the parties are not on an issue of any question of law or fact, pronounce judgment at once. Thus even if there is no express admission in the written statement but an intelligent reading of the written statement shows the propositions or pleas taken to be not material and no issue to be arising therefrom, the Court is still entitled to pass a decree forthwith.

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Succession (Amendment) Act, 2005, to do away with the discrimination as existed under ancient Hindu Law, between grandsons and granddaughters. Section 6 as amended provides that with effect from the Hindu Succession (Amendment) Act, 2005, in a joint Hindu family, governed by Mitakshara law, the daughter of a coparcener shall by birth, become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son. 14. The plea of the respondent / defendant no.2, who is the granddaughter of the petitioner / plaintiff, is that because the petitioner / plaintiff purchased the subject property out of monies realized on sale of a house in Rajender Nagar and of properties in Kashmir allotted against properties left behind in Lahore, the properties in the hands of the petitioner / plaintiff are ‘ancestral’ and she has a share in the same. 15. However, Section 6 of the Hindu Succession Act, even post amendment, saves the ancient Hindu Law only with respect to Mitakshara coparcenary property i.e. coparcenary property governed by Mitakshara Law. There is no plea in the written statement of the respondent / defendant no.2, of the existence of any coparcenary. The only plea is, of the petitioner / plaintiff having purchased the property from the monies from sale of properties inherited by him from his father. However as aforesaid, on the coming into force of the Hindu Succession Act, the properties inherited by the petitioner / plaintiff from his father would be his personal individual properties and in which the son of the petitioner / plaintiff or the grandson or granddaughter of the petitioner / plaintiff would have no share.

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(1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, MANU/SC/0525/1986 : (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956,

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inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property. 6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties. 7. On the legal position which emerges pre 1956 i.e before passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh & Ors., MANU/DE/3560/2015 : CS(OS) No. 431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:- (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

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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. 9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there

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is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties. 11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as 'the Benami Act') and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-Section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the

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main provision contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub- Sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub- Sections (1) and (2) of Section 4 of the Benami Act. 12. This Court is flooded with litigations where only self- serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded. 13. In view of the above, actually the application filed under Order VII Rule 11 CPC in fact is treated as an application under Order XII Rule 6 CPC, inasmuch as, it is observed on the admitted facts as pleaded in the plaint that no HUF and its properties are found to exist. There is no averment in the plaint that late Sh. Jage Ram inherited property(s) from his paternal ancestors prior to 1956. In such a situation, therefore, the properties in the hands of late Sh. Jage Ram cannot be HUF properties in his hands because there is no averment of late Sh. Jage Ram inheriting ancestral property(s) from his paternal ancestors prior to 1956. There is no

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averment in the plaint also of late Sh. Jage Ram's properties being HUF properties because HUF was created after 1956 by late Sh. Jage Ram by throwing properties into a common hotchpotch. I have already elaborated in detail above as to how an HUF has to be pleaded to exist in the pre 1956 and the post 1956 positions and the necessary averments which had to be made in the present plaint. The suit plaint however grossly lacks the necessary averments as required in law to be made for a complete cause of action to be pleaded for existence of an HUF and its properties.”

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No costs.

The Revision Petition is disposed of.

RAJIV SAHAI ENDLAW, J. JULY 03, 2018 ‘pp/gsr’