FAO(OS)/131/2024 of VIJAY KUMAR Vs SHOBHA AGARWAL & ORS.

IN THE HIGH COURT OF DELHI AT NEW DELHI

+FAO(OS)131/2024&CMAPPL.56058/2024,CMAPPL.56059/2024, CM APPL. 56060/2024, CM APPL. 56061/202456059/2024, CM APPL. 56060/2024, CM APPL. 56061/2024

VIJAY KUMAR

.....Appellant

Through:Mr. Kirtiman Singh, Mr. VikhyatOberoi, Mr. Ravi Sharma, Ms. NishitaGuptaandMr.ShivamPrakash,Advs.Oberoi, Mr. Ravi Sharma, Ms. NishitaGuptaandMr.ShivamPrakash,Advs.

versus

SHOBHA AGARWAL & ORS......Respondent

Through:Mr.Manish K. Srivastava and Mr.Hardik Vashisht, Advs. for R-4 andR-5.Mr.Anish Shrestha, Mr. Firoz KhanAdvocatesHardik Vashisht, Advs. for R-4 andR-5.Mr.Anish Shrestha, Mr. Firoz KhanAdvocates

for Defendant/Respondent No. 5Mr. Abhishek Aggarwal, Advocatefor Ms. Seema Gupta, respondent no7Mr. Abhishek Aggarwal, Advocatefor Ms. Seema Gupta, respondent no7

Date of Decision: 24[th]September, 2024

CORAM:HON'BLE THE ACTING CHIEF JUSTICEHON'BLE MR. JUSTICE TUSHAR RAO GEDELA

JUDGMENT

MANMOHAN, ACJ: (ORAL)

1.Present appeal has been filed challenging the judgment dated 19[th]January, 2024 passed by the learned Single Judge in CS (OS) No.347/2018,

whereby the application bearing I.A. No. 1010/2021, filed by the Appellantherein under Order I Rule 10 of the Code of Civil Procedure, 1908 forimpleadment in the underlying suit, was dismissed on the ground that theAppellant had been unable to show any ownership right in the subjectproperty bearing no. 12-A, Sunder Nagar Market, 2[nd]Floor. The subject suithas been filed seeking partition of multiple properties including the subjectproperty.

2.It is pertinent to mention that after passing of the impugned judgment,the Defendant No. 1 in the subject suit i.e., father of the Appellant haspassed away and the Appellant has been impleaded as necessary andproper party in the subject suit as legal heir to the deceased Defendant videorder dated 27[th]May, 2024 passed by the Joint Registrar.

3.By way of the present appeal, the Appellant has challenged theimpugned judgment and is seeking direction to be impleaded in hisindividual and independent capacity, in addition to his status as legal heirof the Defendant No. 1 therein.

4.Learned counsel for the Appellant states that an oral settlement wasentered into between him and the other parties herein in the first week ofDecember, 2006 whereby it was decided that the Appellant would be theexclusive owner of and run his business from the ground floor of theproperty and would get the second floor for his residence. He further statesthat the Learned Single Judge failed to consider that the family businesses ofthe Appellant were in the nature of an HUF, and he had rights in the subjectproperty as coparcener until the aforesaid settlement. He further states thatthe learned Single Judge failed to consider that the Appellant has beenrunning his business from the ground floor of the subject property for very

long period of time and has acquired reputation in the market. He furtherstates that the learned Single Judge failed to consider that no-objectioncertificate (NOC) dated 19[th]June, 2011 was issued in favor of the Appellantby his father, the Defendant No. 1 in the subject suit, that allowed him tocontinue his business in the subject property.

5.After hearing the learned counsel for the Appellant, it is clear that theAppellant has not placed on record any registered document whichshowcases his vested right of individual ownership of the subject property.One of us (Manmohan, J) in Aarshiya Gulati (Minor) Thr. Next Friend andOthers Vs. Kuldeep Singh Gulati and Others, 2019 SCC OnLine Del 6867and another coordinate learned Single Judge of this Court in Sunny (Minor)Vs. Sh. Raj Singh (supra) have held that in suit for partition of acoparcenary or Hindu Joint Family properties, detailed facts have to beaverred and there is no presumption as to the existence of an HUF. In Sunny(Minor) Vs. Sh. Raj Singh, (2015) 225 DLT 211, learned Single Judge ofthis Court has held “…..I must, at the risk of repetition, note that there existsthe legal requirement of discharge of the onus of proof by atleast leadingsome credible documentary evidence in case where partition is sought ofvaluable immovable properties, and oral evidence is not to be treated bycourts as sufficient, inasmuch as, rights in immovable properties ofdefendants cannot be destroyed on account of self-serving oral statements”and stand of the plaintiffs that there existed an HUF..... The Apex Court inthe case of Suraj Lamps and Industries Private Ltd. v. State of Haryanaand Anr., (2009) 7 SCC 363 has categorically held that unregistereddocumentscannotbeconstruedasavalidtransferofproperty.Consequently, the Appellant’s reliance on an Oral Settlement to establish an

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individual right of ownership on the subject property is untenable in law.

6.The Supreme Court in C.W.T vs. Chander Sen, (1986) 3 SCC 567and Yudhishter vs. Ashok Kumar, (1987) 1 SCC 204 has categorically heldthat after the enactment of the Hindu Succession Act, 1956, any propertyinherited by male Hindu from his ancestor is held by him as his personalproperty and it does not acquire the character of coparcenary property. Theaverments in the pleadings relied upon do not show the existence of acoparcenary property. It seems that the distinction between coparcenaryproperty and HUF has not been appreciated by the Appellant.

7.Even vide the aforementioned NOC, the Appellant was only given aright as permissive user of the subject property. No right of individualownership can accrue to the Appellant on account of merely being inpossession of the subject property. The learned Single Judge, afterconsidering all averments and documents placed on record has rightly heldthat not single plea has been made by any of the parties, including thefather of the Appellant from whom the appellant claims the right in theproperty that there was creation of an HUF or that the property is an HUFproperty.

8.In response to pointed query, learned counsel for the appellant is notable to state as to whether the alleged HUF had ever filed an Income TaxReturn in its own name or independently owned bank account.

9.Consequently, this Court has no other option but to conclude that thedefence of coparcenary property is nothing but ‘cock and bull story’, amoonshine defence which is contrary to facts and untenable in law.

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10.There is also delay of 119 days in filing the appeal and 46 days inre-filing the same. Accordingly, the present appeal along with applicationsis dismissed both on merits as well as on the ground of delay.

ACTING CHIEF JUSTICE

TUSHAR RAO GEDELA, J

SEPTEMBER 24, 2024/N.Khanna