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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