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DR. PUSHPALATA AND ANR. vs RAM DAS HUF & ORS.

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on:01.08.2024
Judgment pronounced on: 23 .01.2025
+ CS(OS) 2382/2007
DR. PUSHPALATA AND ANR. …..Plaintiffs
Through: Mr Varun Nischal, Mr. Rajat Manchanda, Mr. Parveen Kalra, Ms. Aditi Singhal, Ms. Somya, Mr. Deepanshu Bharti, Mr. Shubham Sharma, Advs.

versus

RAM DAS HUF & ORS. …..Defendants
Through: Mr. Manish Vashisht, Sr. Adv. with Mr. Rikky Gupta, Ms. Ananya Singh, Mr. Vanshay Kaul, Mr. VedanshVashisht, Ms. Harshita Nathrani, Advs.

CORAM:
HON’BLE MR. JUSTICE JASMEET SINGH

J U D G M E N T

: JASMEET SINGH, J

1. The instant suit has been filed seeking the following substantial prayers:-
a. To pass a decree of declaration that the Plaintiff is entitled to 1/5th share of the Suit HUF properties.
b. To pass a preliminary decree of partition in favor of the Plaintiff and against the Defendants holding the Plaintiff to be entitled to 1/5th share of the Suit HUF properties.
c. To pass a decree for declaration in favor of the Plaintiff and against the Defendants declaring that any change in the record of ownership or any Agreement/contract of sale etc. if any done or entered into by any of the Defendants without express consent of the Plaintiff in respect of the Suit HUF properties mentioned in is null and void and not binding upon the Plaintiff;
d. After passing the preliminary decree as at (a) and (b) above, pass orders for appointment of local commissioner/s for effecting the partition by metes and bounds of the suit properties with a further direction to the local commissioner to suggest other modes of partition and in case this Hon’ble Court comes to the conclusion that it is not possible to effect partition by metes and bounds, then the suit properties be sold/ release and the sale/realisation proceedings be distributed between the parties in proportion to their share demarcated.
e. pass final decree of partition in terms of either the report of the local commissioner or any other mode as stated in the prayer “d” above and if the need arises, by delivering the actual vacant physical possession of the respective portions to the parties.
f. For permanent injunction restraining the Defendants, their servants and agents from selling, alienating, encumbering or parting with possession in any manner and ousting the Plaintiff from the joint possession of the properties described above till passing of a final decree for partition partitioning the properties in between the co sharers by metes and bounds;
g. For a permanent injunction restraining the Defendants, their servants and agents from illegally and forcibly dispossessing the Plaintiff from the suit HUF properties.
h. To pass an order directing the Defendants to render accounts of the rents accrued from the tenancy of the ground floor of the HUF Residential property at New Friends Colony East.
2. The plaintiff no. 1 i.e. Dr. Pushpa Lata is the eldest daughter of the defendant No. 2 (since deceased) from his first wife, namely, Mrs. Shakuntala Devi (since deceased).
3. Defendant no. 1 i.e. Ram Das HUF was created by defendant no. 2 i.e. Dr. Ram Das in the year 1978.
4. Defendant no. 2 was the father of the plaintiff and defendant nos. 3- 5 and was also the ‘Karta’ of the defendant no. 1. Defendant no. 3 and 4 are the sons of the defendant no. 2 from his second wife, namely, Mrs. Shanti Devi (since deceased). During the present proceedings, defendant no. 2 died on 10.12.2008.
5. Defendant no. 5 i.e. Smt. Usha Singh is the other daughter of defendant no. 2 from his first wife i.e. Mrs. Shakuntala Devi. Plaintiff no. 1 and defendant no. 5 are real sisters. Vide order dated 08.12.2008, the defendant no. 5 was transposed as plaintiff no. 2.
FACTUAL BACKGROUND AS PER THE PLAINTIFF
6. Defendant no. 2 was married to Mrs. Shakuntala Devi in the year 1937 who died on 03.10.1943. Thereafter, defendant no. 2 got married to Mrs. Shanti Devi on 24.02.1944. The plaintiffs are real sisters and defendant nos. 3 and 4 are real brothers interse and the step brothers of the plaintiffs.
7. In the year 1978, defendant no. 2 created defendant no. 1 i.e. Ram Das HUF (hereinafter referred as “HUF”) from the ancestral nucleus and/or self-acquired property, all thrown into the common stock for the benefit of the entire family of defendant no. 2. Defendant no. 2 was the ‘Karta’ of the HUF. As per the plaintiffs, the HUF is in control of the following properties/assets:-
a. A three storied house situated at A-28, Friends Colony East, New Delhi measuring501.67 sq. mts and the lease rental accruing from it (hereinafter referred to as “Kothi”);
b. Plot Nos. C-1034 and C-1035 situated at Sushant Lok 1, Gurgaon, Haryana;
c. 7700 Units of U.T.I, amounting to Rs. 1 lakh.;
d. Bank Balance in the Account no. 67972 (now 525-1- 008486-5), held with Standard Chartered bank (erstwhile Grindlays Bank), Parliament Street, New Delhi;
e. Bank Balance in the account no. 2380241 in the Standard Chartered Bank, Parliament Street, New Delhi;
f. PPF account no. 10485058884 in the name of HUF held withthe SBI, Friends Colony East, New Delhi;
g. Shop no. FF18 booked in the names of Defendant no. 3 and Defendant no. 4 situated in Sushant Lok Vyapar Kendra, Gurgaon.
8. It is stated that all the aforementioned properties are the coparcenary properties of defendant no. 1, for and on behalf of all the coparceners of the HUF.
9. On 11.09.1987, defendant no. 2 executed a registered Will, whereby he declared that his share of the HUF properties will go to defendant nos. 3 and 4 and his second wife i.e. Mrs. Shanti Devi in equal proportions.
10. In 1989, defendant no. 2 opened a PPF account in the name of the ‘Ram Das HUF’ and later on, in the year 1995, bought two properties in the name of defendant nos. 3 and 4 respectively from the HUF rental income. i.e. Plot Nos. C-1034 and C-1035 situated at Sushant Lok 1, Gurgaon, Haryana.
11. The second wife of defendant no. 2 i.e. Smt Shanti Devi also executed a Will on 23.12.1995, bequeathing her share of the HUF properties in favour of defendant nos. 3 and 4. Thereafter, Smt. Shanti Devi died on 08.03.1997.
12. Another Will came to be executed by defendant no. 2 on 17.07.2004, whereby defendant no. 2 professed to be the sole owner of the Kothi and bequeathed the said property in favour of defendant nos. 3 and 4.
13. The operative portion of the will dated 17.07.2004 reads as under:-
“I am the sole owner of A-28, Friends Colony (East), New Delhi. This building was constructed by me out of my own funds after purchasing the plot also out of my personal earnings. So, I am the sole and absolute owner of the same.
That I leave and bequeath my whole house no. A-28, Friends Colony (East), New Delhi to my two sons Dr. Vijay Kumar Das and Dr. Vinay Kumar Das and each of them shall be the exclusive owner of their respective portions as detailed below and shown in the map attached with this WILL after my death
a. Dr. Vijay Kumar Das (my elder son) will gel the whole of Ground floor of the main building at A-28, Friends Colony (East), New Delhi along with its back yard and front lawn plus left side garage and servant quarter above it (left as looking from front road).
b. Dr. Vinay Kumar Das (my younger son) will get the whole of the first floor and whole of IInd floor with Barsati and Barsati’s roof of the main building at A-28 Friends Colony (East) New Delhi along with staircases leading to his portions plus right-side garage and servant quarter above it (Right as looking from front road).
Dr. Vinay Kumar Das will have right of passage to his share of building via the side pathway between front gate and the garage and also through main side entrance from the same pathway which are part of the joint portion descried in c below.
c. The front gate on road side, Main side entrance to ground floor 1st 2nd floors, main side pathway leading to main side entrance, garages, servant quarters and Pump House shall all be the common/joint property of both my sons named above and these shall all be for their common use.”
14. The defendant no. 2 thereafter, on 24.08.2004, executed a registered Gift Deed with respect to Kothi in favor of defendant nos. 3 and 4.
15. Hence, the plaintiff no. 1 filed the present suit on the ground that the plaintiffs are coparceners in the HUF, after the Hindu Succession (Amendment) Act, 2005 came into force i.e. on 09.09.2005 and the plaintiffs have 1/5th share each in the properties described in para 7 above. Since the defendant nos. 3 and 4 were trying to sell, alienate and dispose of the HUF properties without the consent of the plaintiffs, the present suit was necessitated to be filed.
WRITTEN STATEMENT BY THE DEFENDANTS
16. The defendant nos. 2, 3 and 4 contested the present suit by filing separate written statements.
17. Plaintiff no. 2 in her written statement as defendant no. 5 supported the case of the plaintiff no. 1.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 2
18. Defendant no. 2 has denied the averments made by the plaintiffs and has primarily pleaded that the plaintiff no. 1 ceased to be a Hindu, as she is married to a Muslim of Pakistani origin in United Kingdom. The plaintiff no. 1 was not a Hindu, as required under Hindu Law, either on the date of filing of the present suit or on the date when the Hindu Succession (Amendment) Act, 2005 came into force i.e. 09.09.2005. Hence the suit filed by the plaintiff no. 1 is not maintainable.
19. In view of the registered Gift Deed dated 24.08.2004, defendant no. 2 ceased to be the owner of the property either individually or as the Karta of the HUF and hence the Hindu Succession Act is not applicable.
20. Defendant No. 2 purchased the Kothi from the DDA using his personal funds on a leasehold basis, which was subsequently, converted to freehold through a conveyance deed dated 21.11.2000. In addition, all the rights, titles and interests with respect to the said property are with the defendant nos. 3 and 4, which was given to them by defendant no. 2 by way of a registered Gift deed dated 24.08.2004. Therefore, the plaintiff cannot claim any right over the said property.
21. The plaintiffs have relied on the Income Tax returns Income Tax Returns of the HUF pertaining to the assessment years 2005-06; 2006 – 07; 2007- 08 to state that the Kothi was in the ownership of defendant no. 1. In this regard, defendant no. 2 has pleaded that the same is just an inadvertent error on the part of his consultant and even otherwise, the Income tax Returns of the HUF do not change the character of the said property, which after execution of the registered gift deed became the absolute property of defendant nos. 3 and 4.
22. Further, the defendant nos. 3 and 4 have become the sole owners of the Kothi and defendant no. 3 has registered a Power of Attorney dated 17.12.2004 in favor of defendant no. 2 for collecting the rentals with respect to the said property as well as for executing a lease deed. A lease has also been executed with a tenant in the said property by defendant no.2.
23. It is stated that the HUF, as alleged was created only for the purpose of saving income tax and defendant no. 2- 4 were the only co-parceners of the HUF. Defendant no. 2 never had any intention of relinquishing any of his separate or individual rights, title and interest in the Kothi in favor of the HUF i.e. defendant no. 1.
24. Defendant no. 2 and his second wife, Smt. Shanti Devi have executed separate wills in favor of defendant nos. 3 and 4 and the plaintiffs cannot claim any rights over any property under the said wills.
25. With respect to property bearing no. C-1034 and C-1035 situated at Sushant Lok 1, Gurgaon, Haryana, it is stated that the said properties were purchased by defendant nos. 3 and 4 in their own name and out of their own funds and hence were never a part of the HUF. The defendant nos. 3 and 4 have registered conveyance deeds dated 27.11.1995, with respect to the said properties and the plaintiffs have not sought cancellation of the said conveyance deeds.
26. As regards, the bank account Nos. 2380241 and 525-1- 008486-5 held with Standard Chartered Bank, Parliament Street, New Delhi, it is stated that the same are the pension accounts of the defendant no. 2 and are separate and individual accounts of defendant no. 2 and are not connected with the HUF.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NOS. 3 AND 4
27. Defendant nos. 3 and 4 by way of a written statement denied the averments made by the plaintiffs and pleaded that the defendant no. 2 took Kothi on lease in the year 1969 and thereupon, he built his house on the said land out of his own funds. Therefore, Kothi is a self-acquired property of defendant no. 2.
28. It is stated that defendant no. 2 never received any asset by way of inheritance and he never created any HUF nor was the Karta/ coparcener of any HUF.
29. Assuming that even if there was an HUF under the name and style of Ram Das HUF, then the same stood dissolved on 08.03.1997, when Smt. Shanti Devi (mother of defendant nos. 3 and 4) passed away executing a Will on 23.12.1995, whereby she had bequeathed her 1/4th share in the HUF in favour defendant nos. 3 and 4. Thus the coparceners became co sharers of the HUF.
30. In addition, defendant no. 2 also gifted his rights with respect to the Kothi to defendant nos. 3 and 4 and for the said purpose, he also executed a Gift Deed on 24.08.2004, which was duly registered, thereby gifting all his rights, titles and interest in favor of defendant nos. 3 and 4. In addition, the said property has been mutated in the names of defendant nos. 3 and 4 and they have been duly paying electricity, water bills etc. Defendant nos. 3 and 4 have also been paying house tax to the municipal authorities in respect of their respective portions of the property. Hence the HUF if any stood dissolved when Smt Shanti Devi passed away on 08.13.1997 or in the worst-case scenario when the duly registered Gift Deed was made on 24.08.2004.
31. As regards, the properties bearing nos. C-1034 and C-1035 situated at Sushant Lok 1, Gurgaon, Haryana is concerned, it is stated that the said properties were never a part of any HUF as they were purchased by defendant nos. 3 and 4 out of their own funds. Defendant nos. 3 and 4 are doctors by profession working in United Kingdom. It is stated that the property bearing no. C-1034, Sushant Lok 1, Gurgaon, Haryana was purchased by defendant no. 4 and property bearing no. C-1035, Sushant Lok 1, Gurgaon, Haryana was purchased by defendant no. 3 and the sale deeds with respect to the said properties were executed on 27.11.1995.
ISSUES
32. The following issues were framed on 08.12.2008:
I. Whether any HUF as alleged by the plaintiffs existed at the time of coming into force of Act 39/2005 amending Section 6 of the Hindu Succession Act? OPP
II. Whether properties mentioned in the plaint or any of them were the properties of the HUF or were put in the HUF as on the aforesaid date? OPP
III. If the issues No. 1 & 2 are decided in favour of the plaintiffs, what share, if any, do the plaintiffs have in the property/properties? OPP
IV. Whether the suit is correctly valued for the purposes of court fees and jurisdiction, if not, to what effect? OPP
V. Whether the claim in the suit is barred by time? OPD
VI. Whether the amendment to Section 6 of the Hindu Succession Act by Act No. 39/2005 is violative of the constitutional rights of the defendants No. 2 to 4 under Articles 14 and 300A of the Constitution of India? OPD
VII. Whether on account of the marriage of the plaintiff/Dr. Pushp Lata to a Muslim, she has ceased to have any right, if any, to the property under section 19 of the Special Marriage Act, 1954 or otherwise? OPD
VIII. Relief.
EVIDENCE LED BY THE PARTIES
33. The plaintiffs examined the following witnesses:
I. Dr. Pushp Lata – PW1 – (Plaintiff No. 1) who tendered her evidence by way of affidavit, (PW1/A) and Evidence in Rebuttal, (PW1/B), and was cross-examined. PW1 has exhibited the following documents:
a. Exhibit P/1 – Autobiography of Defendant no. 2.
b. Mark X – (mentioned as Exhibit P/2 in the evidence affidavit) – Photocopy of Will executed by defendant no. 2 on 11.09.1987.
c. Exhibit P/3 (Colly) – Photocopy of statement of the HUF Savings account No. 525-1-008486-5 held with Standard Chartered Bank, Parliament Street, New Delhi from March 2003 to May 2008 along with the bank envelope.
d. Exhibit P/4 – Photocopy of cheque No. 453154, drawn on Standard Chartered Bank, Sansad Marg, New Delhi given by Defendant No. 2 to the plaintiff no. 1
e. Exhibit P/5 – Certified copy of account statement of plaintiff No. 1 held with the HDFC Bank showing credit of cheque No. 453154.
f. Exhibit P/6- Photocopy of Plaintiff No.1’s letter to the Manager, State Bank of India, A-5, Friends Colony, New Delhi.
g. Exhibit P/7 – Photocopy of the transaction statement of the PPF account No. 10485058884.
h. Exhibit P/8 – Certified copy of Tax returns of Defendant No. 1 for the assessment year 2005 – 06.
i. Exhibit P/9 – Certified copy of Tax returns of Defendant No. 1 for the assessment year 2006 – 07.
j. Exhibit P/10 – Certified copy of Tax returns of Defendant No. 1 for the assessment year 2007 – 08.
k. Exhibit P/11 – Certified revised copy of Tax returns of Defendant No. 1 for the assessment year 2007 – 08.
l. Exhibit P/12 – Information provided by the ITO Ward 22(2) in response to the Plaintiff’s letter dated 27.12.2008.
m. Exhibit P/13 and Exhibit P/14 – Letters dated 09.01.1999 issued by defendant no. 2.
n. Exhibit P/15 – Photocopy of Lease Agreement of plaintiff No. 2.
o. Exhibit P/16 – Photocopy of the Gift Deed dated 24.08.2004 (subsequently exhibited as Exhibit PW1/D1 – Original Gift Deed dated 24.08.2004.)
p. Exhibit P/17 – not exhibited
q. Exhibit P/18 – not exhibited
II. Mr. Rajvir Singh (husband of Ms. Usha Singh i.e. plaintiff no.2) – PW2 – who tendered his evidence by way of affidavit, (PW2/A) and was cross-examined. PW2 has exhibited the following documents:-
a. Mark PW 2/ 1, PW 2/ 2 and PW 2/ 3 – Photocopies of M/s Ansal Properties and Industries Ltd. receipt numbers 301941 and 301942, both dated 05.09.1995 and receipt number 190391 dated 12.01.1994
III. Mr. Sudhir Gupta (Chartered accountant) – PW3 – was duly cross examined.
IV. Mr. Pankaj Chaturvedi (Assistant Manager, Ansal Properties and Infrastructure Ltd.) – PW4 was cross examined and has relied on the following documents during his cross examination:
a. Exhibit P4/A – Payment details pertaining to C-1034, situated at Sushant Lok 1, Gurgaon, Haryana along with the photocopy of the Sale Deed.
b. Exhibit PW4/B (Colly) – Payment details pertaining to C-1035, situated at Sushant Lok 1, Gurgaon, Haryana along with the photocopy of the Sale Deed.
c. Exhibit PW4/C – Payment details pertaining to Unit No. FF-18, Sushant Lok Vyapar Kendra.
V. Mr. Than Singh (Manager, SBI, Friends Colony Branch) – PW5 – who tendered his evidence by way of cross-examination. PW5 has relied on the following documents:-
a. Exhibit PW – 5/A – Certified copy of Account opening form of the HUF.
b. Exhibit PW – 5/B –Certified copy of letter dated 07.03.1989.
c. Exhibit PW – 5/C – Certified copy of Statement of Account of Account bearing no. 10485058884.
d. Exhibit PW – 5/D – Certified copy of the statement of the Account No. 10485014507 belonging to Mr. Rajinder Vir Handa.
VI. Mr. Om Prakash (Inspector of Income Tax department)– PW – 6, was cross examined and has relied on the following documents during his cross examination:
a. Exhibit PW6/A – Photocopy of the E copy of the ITR details of the HUF for the assessment years 2004-05.
VII. Mr. Lal Saheb Mishra (Supervisor in the Standard Chartered Bank, 1st Floor, Express building) – PW – 7, who tendered his evidence by way of cross examination and has exhibited the following documents:
a. Exhibit PW – 7/1 – Certified copy of statement of Account of the HUF bearing no. 525-1-008486-5 held with the Standard Chartered Bank
b. Exhibit PW – 7/2 – Certified copy of the Account opening Form of the HUF with the Grindlays Bank.
c. Exhibit PW – 7/3 – Certified photocopy of the signature card of defendant no. 2.
d. Exhibit PW – 7/4 – Certified copy of the original fresh signature card dated 12.10.1998 of defendant no. 2.
e. Exhibit PW – 7/5 – Certified copy of Form DA-1 of defendant no. 2.
f. Exhibit PW – 7/6 – Certified copy of the letter dated 13.11.1988 written by defendant no. 2 to the manager of the Grindlays Bank.
g. Exhibit PW – 7/7 – Certified copy of the letter dated 17.12.1996 written by defendant no. 2 to the manager of the Grindlays Bank.
h. Exhibit PW – 7/8 – Photocopy of the letter dated 17.12.1996 issued to defendant no. 2 by the Customer Relation Officer.
VIII. Mr. Anil Kumar (Inspector, Income Tax Department) – PW – 8, was cross examined and has relied on the following documents during his cross examination:
a. Exhibit P/8 – Certified copy of Tax returns of Defendant No. 1 for the assessment year 2005 – 06.
b. Exhibit P/9 – Certified copy of Tax returns of Defendant No. 1 for the assessment year 2006 – 07.
c. Exhibit P/10 – Certified copy of Tax returns of Defendant No. 1 for the assessment year 2007 – 08.
IX. Mr. Mustafa Ali (Registration clerk, Office of Sub Registrar, Ghaziabad, Uttar Pradesh) – PW – 9, was cross examined and has relied on the following documents during his cross examination:
a. Mark 9A – Photocopy of the document pertaining to the registration of the HUF.
X. Mr. Rakesh Lal (property dealer) – PW – 10, who tendered his evidence by way of affidavit, (PW-10/A) and was cross examined.
34. The defendants have relied on the following evidences:
I. Dr. Vijay Das – DW1 – (Defendant No. 3) who tendered his evidence by way of affidavit, (DW-3/A) and was cross-examined. DW1 has exhibited the following documents:
a. Exhibit D-1 – Perpetual Lease Deed pertaining to the Kothi.
b. Exhibit D-2 – Original Sale Deed pertaining to Plot No. C-1034, Sushant Lok, Gurgaon, Haryana executed in favor of defendant no. 4.
c. Exhibit D-3 – Conveyance Deed dated 21.11.2000.
d. Exhibit D-4 – Special Power of Attorney in favour of Defendant no. 2 on 17.12.2004
e. Exhibit D-5 – Mutation dated 02.01.2006 issued by the Municipal Corporation of Delhi with respect to the Kothi in favor of the defendant no.4.
f. Exhibit D-6 – Mutation dated 02.01.2006 issued by the Municipal Corporation of Delhi with respect to the Kothi in favor of the defendant no. 3.
g. Mark A – Will executed by the second wife of Defendant no. 2 i.e. Smt. Shanti Devi on 23.12.1995.
h. Mark B/ Mark DW2/A /Exhibit DW 6/1- Certified copy of the Will of Defendant no. 2 executed on 17.07.2004.
i. Exhibit PW1/D1 – Gift Deed dated 24.08.2008.
j. Exhibit DW1/D1 – Medical certificate dated 28.08.2004 of Defendant no. 2 certifying his medical condition.
k. Exhibit DW 1/2 to Exhibit DW 1/13 – Receipts issued by the Municipal Corporation of Delhi and the electricity bills, water bills of the Kothi.
l. Exhibit DW 1/14 to Exhibit DW 1/23 – Photocopy of the Income Tax Returns of defendant no. 2 for the Assessment years 2005-2006, 2006-2007, 2007-2008, 2008-2009, 2009-2010, 2010-2011, 2011-2012, 2012-2013, 2013-2014 & 2014-2015.
m. Exhibit D-7 – Sale Deed pertaining to Plot No. C-1035, Sushant Lok, Gurgaon, Haryana.
n. Exhibit DW 1/ 24 (Colly) – Photographs of defendant no. 2.
o. Exhibit DW 1/25 – List of documents filed by defendant no. 2 in this suit.
p. Exhibit DW1/DX1 (OSR) – Photocopy of the PIO card issued in favor of defendant no. 3
II. Mr. Dharmender Mohan- DW2, – Registration clerk, office of Sub Registrar – I, Meerut was cross-examined.
III. Mr. Rakesh Kumar –DW3, – Zonal Inspector, SDMC (Central Zone) Sanwal Nagar, New Delhi who was examined in Chief and thereafter was cross examined. DW3 has proved the following documents:
a. Ex.DW3/l (OSR) – Photocopy of the application for mutation filed by defendant no. 4.
b. Ex.DW3/2 (OSR) – Photocopy of the indemnity Bond filed by defendant no. 3
c. Ex.DW3/3 (OSR) – Photocopy of the Affidavit of defendant no. 3.
d. Ex.DW3/4 (OSR) – Photocopy of the application for mutation filed by defendant. 4.
e. Ex.DW3/5 (OSR) – Photocopy of the Affidavit of defendant no.4 with respect to the Kothi.
f. Ex.DW3/6 (OSR) – Photocopy of the indemnity Bond filed by defendant no. 4.
IV. Mr. Vinay Kumar Das (defendant no. 4) had filed his evidence by way of affidavit; however, he was dropped from the list of witnesses on the statement made by the counsel for defendant no. 4, namely, Mr. Sameer Vashisht on 20.02.2017. Hence, Mr. Bharat Sanwaria, Record Keeper, Sub Registrar – V, Mehrauli, New Delhi was examined as defendant no. 4 (DW -4) and he proved Exhibit PW1/D1, however on page no. 2 of the said document dated 24.08.2004, “24” was filled with hand in the original which was not available on the record of the DW – 4.
V. Mr. Santosh Kumar (eldest son of Late Chaudhary Ranjit Singh. Late Chaudhary Singh was the real uncle of defendant no. 2) – DW5, who tendered his evidence by way of affidavit, Exhibit – (DW-5/A) and was cross-examined.
VI. Mr. Ashok Singh (attesting witness to the will of defendant no. 2) – DW6, who tendered his evidence by way of affidavit, Exhibit – (DW-6/A) and was cross-examined. DW6 has exhibited the following documents:
a. Mark B/Mark DW2/A/Exhibit DW – 6/1– Certified copy of the Will of defendant no. 2 executed on 17.07.2004.
b. Exhibit DW – 6/2 – Certified copy of the site plan.

FINDINGS
35. I have perused the material on record and heard the arguments advanced by the learned counsels for the parties.
36. The issues are decided as under: –
Issue no. 1: Whether any HUF as alleged by the plaintiffs existed at the time of coming into force of Act 39/2005 amending Section 6 of the Hindu Succession Act? OPP
Issue no. 2: Whether properties mentioned in the plaint or any of them were the properties of the HUF or were put in the HUF as on the aforesaid date? OPP
37. The issue are inter related and are being dealt together: –
38. Mr. Nishchal, learned counsel for the plaintiffs submits that defendant no. 2, established defendant No. 1 i.e. Ram Das HUF, in 1978 by transferring his self-acquired property no. A-28, Friends Colony East, New Delhi, into the common hotchpotch for the benefit of his family. The existence of the HUF is supported by the registered will dated 11.09.1987 (Mark X) executed by defendant No. 2. Additionally, the existence of the HUF is also declared in the Income Tax Returns filed for the HUF for the assessment years 2005–06, 2006–07, and 2007–08 (Exhibits P/8 to P/10).
39. There is an admission by the defendants themselves regarding the creation of the HUF. Defendant no. 2 himself had admitted the fact that the HUF was created for the common good of the family and for the purpose of saving income tax. In this regard, learned counsel draws my attention to para 9 of the Written Statement of the defendant no. 2 and the same reads as under:-
“9. ……the H.U.F was created merely to save on income tax and not for any other purposes. In any case prior to the coming into force of the Amending Act, the answering Defendant and Defendants no. 3 & 4 were the only coparceners of the alleged H.U.F. and a gift was made by the answering Defendant in favor of the remaining coparceners i.e. Defendant no. 3 & 4 and which has been duly accepted and acted upon by the parties and as such the property bearing no. A-28, Friends Colony East, New Delhi lost its nature as a Joint Family property, if it ever held such character though denied, and as such no right can be claimed upon the same by the Plaintiff in the capacity of being a coparcener.”
40. He further states that defendant nos. 3 and 4 had initially denied the existence of the defendant no. 1, however, during the proceedings, they subsequently admitted to the creation of defendant No. 1, albeit stating that the defendant no. 1 was only created for the purpose of saving income tax. In this regard, he draws my attention to para 7 of the evidence by way of affidavit of defendant no. 3. (Exhibit DW 3/A), whereby defendant no. 3 deposed as under:-
“7. I say further that the above property was acquired and was acquired, constructed and maintained by late Dr Ram Das from his own funds and was his only residential house. I say further that late Dr Ram Das only for the purpose of saving tax, established an HUF comprising of himself, his wife Late Smt Shanti Devi, the deponent and Dr Vinay Kumar Das as the only named coparceners as regards the property bearing No. A-28, Friends Colony (East) New Delhi. I say further that though the character of the property was never changed, but for the mere purpose of saving tax the rental income of the ground floor was shown as HUF income. There had never been any intention to throw the property in the alleged common pool change its character from individual property to HUF property which is well apparent from the fact that the Perpetual Lease in respect of the property was obtained in his individual name and at a later date even the Conveyance Deed was obtained and registered in his individual name and not as HUF property.”
41. He states that defendant no. 2, also in his Will dated 11.09.1987 (Mark X) has demarcated the properties of HUF and has bequeathed his share of the HUF in favor of his second wife i.e. Smt. Shanti Devi and defendant nos. 3 and 4. The said will has also been duly registered and the parties have acted upon it which clearly indicates the existence of the HUF. The operative portion of the Will dated 11.09.1987 reads as under:-
“AND WHEREAS I hereby devise and bequeath that after my death, my one-fourth interest in the House No. A-28, situated in Friends Colony East, New Delhi belonging to the said H.U.F. to my two sons namely Dr. Vijay Kumar Das and Dr. Vinay Kumar Das and my wife Smt. Shanti Devi equally meaning thereby that all the three will be entitled to further 1/12th share in the house. As regards my interest in the investment in the Unit Trust and Bank balance in account No. 67992 as stated above, my two sons namely Dr. Vijay Kumar Das and Dr. Vinay Kumar Das and my wife Smt. Shanti Devi will share equally.”
42. He states that the HUF continues to exist as no partition deed or order under Section 171 of the Income Tax Act has been filed by the defendants. It is further stated that the said HUF can only be dissolved through a complete partition of its properties, which has not taken place. Therefore, the HUF remains intact and has not been dissolved. In addition, the dissolution of the HUF or the transfer of rights in HUF properties cannot occur because of:-
A. The Will of Late Smt. Shanti Devi (second wife of defendant no. 2) executed in 1995 does not automatically dissolve the HUF.
B. The Will (Mark A) executed by defendant no. 2 on 17.07.2004 is void ab initio or even otherwise inconsequential because the same has been executed by defendant no. 2 in his individual capacity, when he was no longer the sole and absolute owner of the property and he could not have given away the property as claimed by him in the Will. In this regard, learned counsel places reliance on Jugal Kishore vs Roshan Lal and Anr. (2017 SCC OnLine Del 8732).
C. The Gift Deed (Exhibit PW1/D1) executed by defendant no. 2 on 24.08.2004 with respect to the Kothi is also void ab initio as the defendant no. 2 i.e. the donor was not the absolute owner of the Kothi. Defendant No. 2 made the gift deed in his individual capacity claiming to be the sole and absolute owner of the Kothi, when the said property had already been specifically declared to be property of the HUF in the year 1978. In this regard, learned counsel places reliance on Thamma Venkata Subbamma (Dead) By L.R vs ThammaRattamma (1987) 3 SCC 294. Additionally, the execution date mentioned on the gift deed filed by the defendant nos. 2, 3 and 4 is hand-written with pen, which is at variance with the one brought by DW4 i.e. Record Keeper, Sub registrar V, Mehrauli, where the execution date is missing. In addition, the gift deed was never acted a upon as defendant no. 2 continued to receive the rental income from the Kothi and the same was deposited in the account of the HUF.
43. He further states that during the pendency of the proceedings, some properties/assets have been discovered by the plaintiffs i.e. a PPF account bearing no. 10485058884 in the name of the HUF held withthe SBI, Friends Colony East, New Delhi, and a shop bearing no. FF18, booked in the names of defendant nos. 3 and 4, situated in Sushant Lok Vyapar Kendra, Gurgaon. It is stated that the said assets/properties have been purchased by the funds of the HUF and have not been disposed of, hence were HUF properties as on 09.09.2005.
44. He further submits that the other immovable properties being C-1034 and C-1035, Sushant Lok-I, Gurugram, Haryana, were also purchased using the funds of the HUF and, therefore, constitute HUF properties. Additionally, the HUF also holds movable assets, including 7,700 Units of U.T.I valued at Rs. 1 lakh, bank balance in Account No. 67972 (subsequently renumbered to 525-1-008486-5) held with Standard Chartered Bank (formerly Grindlays Bank), Parliament Street, New Delhi and bank balance in Account no. 2380241 also held with Standard Chartered Bank, Parliament Street, New Delhi. These assets were also HUF properties and were available for partition as of 09.09.2005 i.e. when the amended section 6 of the Hindu Succession Act came into force.
45. Since the defendants have been appropriating the proceeds of the HUF to the exclusion of the plaintiffs, the plaintiffs are entitled to their rightful share in the aforementioned properties, including rendition of accounts of the rents received from the HUF property.
46. Mr. Vashist, learned senior counsel for the defendants vehemently opposes the contentions raised by the plaintiffs and states that the HUF was created only for the Income Tax purposes and there was neither any intention nor any act of throwing the immovable property i.e. the Kothi into the common stock. Moreover, there was no pre-existing common stock/ ancestral property/ nucleus in existence when the alleged HUF was created.
47. He states that in the absence of any ancestral properties/ nucleus, there is no concept of blending applicable and in the absence of any blending the property continues to be held individually and does not assume the character of Joint Family property. Learned senior counsel places reliance on Jupudi Venkata Vijayabhaskar vs. Jupudi Kesava Rao and Ors. 1994 SCC OnLine AP 1; Mallesappa Bandeppa Desai & Anr. vs. Desai Mallappa alias Mallesappa & Anr 1961 SCC OnLine SC 270; Goli Eswariah vs. Commissioner of Gift Tax, Andhra Pradesh 1970 (2) SCC 390. In this regard, defendant no. 3 in his evidence by way of affidavit (Exhibit DW 3/A) deposed as under:-
“7…. I say further since there was no ancestral funds, ancestral income, parental income which fell to the share of late Dr Ram Das or was available to him and as such, the said property always remained individual property. I say further that even the leasehold rights were converted to Freehold and Conveyance Deed executed in the name of late Dr Ram Das in his individual capacity on 21.11.2001 is exhibited as Exhibit D-3.”
48. He further states that the plaintiffs have not led any evidence of existence of any ancestral property received by the defendant no. 2. The onus of proving the existence of such ancestral property lies squarely upon the plaintiffs. The cross examination of the plaintiff no. 1 also shows that the plaintiffs have been unable to show the ancestral nucleus of the HUF.
49. In this regard, Mr. Santosh Kumar (DW-5) in his evidence deposed as under:-
“2. I say that Late Dr. Ram Das had inherited a land admeasuring 7 Bighas of agricultural land situated in Village Mangalore (Nibhara) Distt. Bulandshahr, Uttar Pradesh. I say further that though the said land was inherited by Late Dr. Ram Das but the said land had always been in possession, cultivation and control of our family.
3. I say further that Late Dr. Ram Das had educated himself and had never cultivated the aforementioned land nor derived any benefits.
4. I say further that Late Dr. Ram Das had given up his rights over the said land and had neither demanded any compensation for the said land nor has demanded any share out of the income derived from the aforementioned land.”
50. He states that the said factum of defendant no. 2 not having any ancestral property has also been reiterated in the autobiography of defendant no. 2 (Exhibit P – 1).
51. He further states that the defendants have taken a specific stand that the Kothi was a self-acquired property of Defendant no. 2 and he had executed a registered Gift Deed in favor of defendant nos. 3 and 4, divesting himself of all the rights in the said property and vesting of the specified portions of the entire property by partitioning and dividing the same in favor of the defendant nos. 3 and 4.
52. He further submits that the plaintiffs have failed to produce any evidence to substantiate their allegation that the HUF came into existence in the year 1978. The allegation remains unsupported by any documents or credible evidence on record. Further, the plaintiffs have not demonstrated the availability of any funds or income attributable to the alleged HUF.
53. He submits that no HUF was constituted by defendant No. 2. However, without prejudice to this contention, even if it is presumed that an HUF existed, the same stood dissolved on 08.03.1997 when, Smt. Shanti Devi passed away, executing a will on 23.12.1995, bequeathing her share in the HUF property to defendants No. 3 and 4, thereby converting the coparceners into co-sharers. Furthermore, Defendant No. 2 gifted his rights in the Kothi to defendants No. 3 and 4 through a duly registered gift deed. In the Gift Deed (Exhibit PW1/D1) and the Will dated 17.07.2004 (Mark B/MarkDW2/A/Exhibit DW6/1), the defendant no. 2 partitioned the Kothi by metes and bounds with clear demarcation of the individual portions/specified areas with defendant no. 3 and defendant no. 4. Further, the respective portions of the Kothi are in possession of the defendant nos. 3 and 4, have been duly mutated in their name and they have been paying water and electricity bills of their respective portions since 24.08.2004.
54. He submits that as regards, the properties C-1034 and C-1035, Sushant Lok-I, Gurugram, Haryana are concerned, the said properties are purchased by defendant nos. 3 and 4 out of their own funds and have no relation to the HUF. None of the properties mentioned in the plaint were available for partition on 09.09.2005 i.e. the date when the Hindu Succession Amendment Act came into force. Moreover, since the plaintiff no. 1 is married to a Muslim of Pakistani origin, she has ceased to be a Hindu under the ambit of section 19 of the Special marriage Act, which clearly provides that a marriage of a person solemnized under the Special Marriage Act will amount of severance from any such family covered under the Hindu Succession Act.
55. Before delving further into the matter, it is crucial to examine the existence of the HUF. In the present matter, defendant no. 2 explicitly acknowledged the creation of the HUF and its assets in his Will dated 11.09.1987 (Mark X), where he bequeathed his one-fourth share in the HUF properties to his second wife, Smt. Shanti Devi, and his two sons, defendant nos. 3 and 4. Similarly, Smt. Shanti Devi, in her Will dated 23.12.1995 (Mark A), affirmed that the Kothi had been made part of the HUF by defendant no. 2. Though these documents are not exhibited the same have been filed by defendant nos. 3 and 4 and their authenticity has also not been disputed by the plaintiffs. In addition, the defendant no. 2, in para 9 of his Written Statement, and defendant no. 3 in para 7 of his evidence by way of affidavit (Exhibit DW 3/A) have explicitly acknowledged the existence of the HUF, albeit claiming it was created solely for the purpose of saving income tax. They have stated that the defendant no. 2 established the HUF comprising himself, his second wife i.e. Smt. Shanti Devi, and defendant nos. 3 and 4, as coparceners. The Kothi was also identified as part of the HUF. Further, the existence of the HUF has also been shown before the Income Tax Authorities in the Income Tax Returns of the HUF pertaining to the assessment years 2005-06; 2006 – 07; 2007- 08 (Exhibit P/8 – P/10). Thus, based on the consistent declarations and the actions of the parties involved, it is evident that the existence of the defendant no. 1 i.e. Ram Das HUF cannot be denied.
56. The arguments raised by the defendants that no ancestral property or nucleus existed when the HUF was created and without the concept of the blending, the Kothi cannot be given the character of the HUF is misplaced.
57. In the present case, the Kothi is the self-acquired property of defendant no.2 and there was no ancestral property/nucleus at the time when the HUF was created in the year 1978, however, the fact remains that it was defendant No.2, himself, who put the Kothi in the common hotchpotch of defendant No.1. i.e. Ram Das HUF for the common good of his family.
58. Defendant No. 2, acting as the Karta of the HUF, had a clear intention to include the Kothi in the common hotchpotch of HUF assets/properties. Given the clear intention and the actions of the defendant no. 2, the argument raised by the defendants that there was no property/nucleus or there was no concept of blending is misconceived.
59. I am of the view that the Kothi was a part of the HUF and had acquired the character of joint family property. It is a settled position of law that an HUF can be created even if there is no preexisting coparcenary/Hindu undivided family property. In this regard, the judgment laid down by this Court in Captain Bhupinder Singh Suri vs Naresh Kumar Suri and others 2017 SCC OnLine Del 7214 is relevant. The operative portion reads as under:-
“36. I highlight (though it is already the reasoning in Surjit Lal Chhabda as well as of the learned Single Judge in Kewal Krishan Mayor supra) that in the present case Major Khemraj Suri by the Declaration dated 25th February, 1969 constituted the HUF comprising of himself, his wife and his sons. It is not as if HUF was constituted with any strangers. The HUF was created with his wife and sons and daughters, with whom as per law, there could be a HUF. The act of creation of HUF was a unilateral act of declaration by Major Khemraj Suri and not a contract with his wife and sons and daughters. Mulla, in 21st Edition (2010) on Hindu Law in Chapter XII in paragraph 212 titled “Formation of coparcenary” has authored that “the conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from, and inclusive of, such ancestor (or three degrees exclusive of the ancestor). No coparcenary can commence without a common male ancestor, though after his death, it may consist of collaterals, such as brothers, uncles, nephews, cousins, etc.” and that “no female can be a coparcener, although a female can be a member of a joint Hindu family”. I also do not find any basis to hold that a Hindu male living jointly with his wife, sons and daughters, even if there is no joint family property and no jointness in law in the name of HUF, cannot form a Joint Hindu Family or a Hindu Undivided Family with his wife, sons and daughters or that to be able to so, he has to wait to have grandsons and great grandsons.
37. The contention that, a Hindu male cannot create a Joint Hindu Family or a Hindu Undivided Family along with his wife, sons and daughters, if has no existing Joint Hindu Family/coparcenary/Hindu Undivided Family or existing joint Hindu property or coparcenary property or Hindu Undivided Family property, cannot be accepted also for the reason that it is the settled principle of law that even after partition amongst members of the coparcenary/Joint Hindu Family or Hindu Undivided Family, whereafter, there is no Joint Hindu Family/Hindu Undivided Family/coparcenary in existence, they can reunite and a Hindu Undivided Family/Joint Hindu Family/coparcenary can again come into existence. Reference, if any in this regard can be made to Bhagwan Dayal v. Reoti Devi AIR 1962 SC 287 and Anil Kumar Mitra v. Ganendra Nath Mitra (1997) 9 SCC 725.
38. I find a coordinate bench also to have in Surender Kumar v. Dhani Ram AIR 2016 Del 120 held that the only way in which a HUF/Joint Hindu Family can come into existence after the coming into force of the Hindu Succession Act is if an individual’s property is thrown into a common hotchpotch.
(emphasis supplied)
60. The next issue for determination is whether the HUF was dissolved upon the execution of Smt. Shanti Devi’s Will, dated 23.12.1995 (Mark A), wherein she bequeathed her 1/4th share in the Kothi to defendant nos. 3 and 4 and the subsequent execution of the Gift Deed on 24.08.2024 (Exhibit PW1/D1) by defendant no. 2, through which he gifted the Kothi to defendant nos. 3 and 4, ultimately making defendant nos. 3 and 4, the absolute owners of the Kothi.
61. In the present case, the HUF was created with 4 coparceners being (i) defendant no. 2 i.e. Mr. Ram Das (since deceased) (ii.) Smt. Shanti Devi (since deceased) (iii.) defendant no. 3 and (iv.) defendant no. 4.
62. Smt. Shanti Devi, being a coparcener was entitled to deal with her share in the HUF properties, which she so did by executing a Will on 23.12.1995 (Mark A), whereby she bequeathed her share of the HUF properties in favour of defendant nos. 3 and 4. As per her will, her share in the ground floor of the Kothi was to go to defendant no. 3 and her share in the first and the second floor along with barsati was to go to defendant no. 4. Her share in the garage and the servant quarter were also to be equally divided among both the sons. Consequently, when she died on 08.03.1997, the HUF comprised of defendant Nos. 2, 3 and 4.
63. Defendant no. 2 had gifted the Kothi to defendant nos. 3 and 4 by way of the Gift Deed dated 24.08.2004. The Gift Deed is dated 24.08.2004 and was duly registered with the Sub-Registrar vide registration No. 10760, Book No. 1, Volume 4258, pages 105 to 121 on the same date. Through the Gift Deed, the Kothi was partitioned by metes and bounds with clear demarcation of the individual portions / specified areas to be held by defendant nos. 3 and 4. Ground floor of the Kothi along with one garage, open space and lawns was to exclusively belong to the defendant no. 3 and the first floor, second floor with roof rights, one garage and servant quarter of the Kothi was to exclusively belong to the defendant no. 4.
64. On 24.08.2004, defendant Nos. 2, 3 and 4 were the only coparceners of the HUF and the Gift Deed has been executed by defendant No. 2 with the consent of defendant Nos. 3 and 4, whereby the defendant no. 2 signed the Gift Deed as the donor and defendant nos. 3 and 4 signed the Gift Deed as the donees.
65. I am of the view that with the execution of the Gift Deed (Exhibit PW1/D1), the Kothi lost the character of a Joint family property on 24.08.2024 i.e. the date when the Gift deed came to be registered. In this regard, the Hon’ble Supreme Court in V.N. Sarin v. Major Ajit Kumar Poplai 1965 SCC OnLine SC 301 inter alia held as under:-
“10.…..Community of interest and unity of possession are the essential attributes of coparcenary property; and so, the true effect of partition is that each coparcener gets a specific property in lieu of his undivided right in respect of the totality of the property of the family. In other words, what happens at a partition is that in lieu of the property allotted to individual coparceners they, in substance, renounce their right in respect of the other properties; they get exclusive title to the properties allotted to them and as a consequence, they renounce their undefined right in respect of the rest of the property. The process of partition, therefore involves the transfer of joint enjoyment of the properties by all the coparceners into an enjoyment in severality by them of the respective properties allotted to their shares. Having regard to this basic character of joint Hindu family property, it cannot be denied that each coparcener has an antecedent title to the said property, though its extent is not determined until partition takes place. That being so, partition really means that whereas initially all the coparceners have subsisting title to the totality of the property of the family jointly, that joint title is by partition transformed into separate titles of the individual coparceners in respect of several items of properties allotted to them respectively. If that be the true nature of partition, it would not be easy to uphold the broad contention raised by Mr Purshottam that partition of an undivided Hindu family property must necessarily mean transfer of the property to the individual coparceners. As was observed by the Privy Council in Girja Bed v. Sadashiv Dhundiraj [43 IA 151 at p. 161] “Partition does not give him (a coparcener) a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers.”
(emphasis supplied)

66. Hence, by way of the Gift Deed, the defendant no. 2 has gifted his rights in the Kothi to defendant nos. 3 and 4 and the coparcenary property i.e. the Kothi stood divided by metes and bounds. The operative portion of the Gift Deed reads as under:-
“GIFT DEED
This Gift Deed is made and executed at Delhi on this 24th Day of August, 2004 by Dr. Ram Das son of Sh. B. Singh resident of A-28, Friends Colony East, New Delhi, hereinafter called ‘DONOR’ of the one part.

IN FAVOUR OF
(i) Dr. Vijay Kumar Das (ii) Dr. Vinay Kumar Das sons of Dr. Ram Das both resident of A-28, Friends Colony East, New Delhi, hereinafter called the ‘DONEES’ of the other part and have blood relations, Donees being sons at Donor.
The expression of the Donees shall mean and include their respective legal heirs, successors, executors, administrators, representatives and assignees.
…..
And whereas the donor is the sole absolute & exclusive owner and in possession of freehold built-up property bearing No. A-28, measuring 501.67 Sq. Mtrs., shown in the layout plan of Friends Colony Residential Scheme, now known as Friends Colony East, New Delhi, with the freehold rights of land beneath the same.

And whereas the said donor is desirous to gift and is gifting the aforesaid freehold built-up property bearing No. A-28 measuring 501.67 Sq. Mtrs., shown in the Layout plan of Friends Colony Residential Scheme, now known as Friends Colony East, NewDelhi in the manner prescribed hereunder, (hereinafter called the said property)
to his sons namely (i) Dr. Vijay Kumar Das – Entire Ground Floor portion without terrace/roof rights, with front lawn and back yard, one left side garage at Ground Floor alongwith one servant quarter above garage out of above mentioned freehold property and (ii) Dr. Vanay Kumar Das – Entire First Floor and one barsati and mumty on Seconal Floor, with entire terrace /roof rights, one right side garage at Ground Floor alongwith one servant quarter above garage, out of above mentioned freehold property, due to natural love and affection without any monetary consideration, possessing good health and sound disposing mind.

(i.) Dr. VIJAY KUMAR DAS’S PORTION:
Entire Ground Floor portion without terrace/roof rights, with frond lawn and back yard, one left side garage at Ground Floor alongwith one servant quarter above garage, with root rights, out of freehold built-up property bearing No. A-28, measuring 501.67 Sq. Mtrs., shown in the layout plan of Friends Colony Residential Scheme, now known as Friends Colony East, New Delhi, alongwith proportionate undivided, indivisible & impartiable rights of land beneath the same, more particularly shown in Green Colour in site plan annexed herewith and common portion shown in yellow colour.

(ii.) DR. VINAY KUMAR DAS’S PORTION:
Entire Fist Floor and one barsati & mumty on Second Floor with entire terrace/roof rights, one right side garage at Ground Floor alongwith one servant quarter above garage, with roof rights, out of freehold built-up property bearing No. A-28, measuring 501.67 Sq. Mtrs., shown in the layout plan of Friends Colony Residential Scheme, now known as Friends Colony East, New Delhi, alongwith proportionate undivided, indivisible & impartiable rights of land beneath the same, more particularly shown in Red colour in site plan annexed herewith and common portion shown in yellow colour.

NOW THIS DEED WITNESSES AS UNDER: –

1. That actual, physical possession of respective portions of above said property is already handed over by the donor to the donees in advance of this Gift Deed and the donees have occupied the same, the proprietory/symbolic possession is being handed over by the donor to the donees.
2. That all previous dues such as House-Tax, Electricity and Water bills etc. of the said property upto the date of execution of this Gift Deed shall be paid by the Donor to all the concerned authorities and later on the same shall be paid & borne by the donees.
3. That original documents such as Lease Deed, Conveyance Deed of the freehold property etc. relating to the said property have been handed over by the Donor to donee at No.1 namely Dr. Vijay Kuamr Das and the photocopies of the same have been handed over to donee at No.2 namely Dr. Vinay Kumar Das, and the Dr. Vijay Kumar Das hereby undertake to produce the original for the inspection as and when required.
4. That the donor assures the donees, that said property is free from all sorts of encumbrances such as prior sale, mortgage, gift, litigation, attachment, notification, acquisition, surety, lien, etc. whatsoever and if it is proved otherwise then the donor shall be liable and responsible for the same.
5. That the Donor has gifted, transferred, conveyed, assigned, handed over all his rights, titles, powers, interests, authorities of ownership of under gift (in the manner prescribed above), unto the Donees by way of this Gift Deed.
6. That all the expenses of this Gift Deed shall be borne by the Donor such as stamp papers, execution and registration charges etc. whatsoever.
7. That the Donees have become sole and absolute owner of aforesaid property, by way of this Gift Deed and shall be fully entitled, empowered, authorised to use, enjoy, occupy, hold, sale, mortgage, gift, exchange, lease out or to transfer or to dispose off their respective portion in any manner, as the Donees deem fit and proper to do so as their own property without any claim, demand, objection by the Donor or any of his legal heir or any other person claiming under the Donor.
8. That the Donees shall also be fully entitled, empowered, authorised to get their respective portions mutated and transferred in their own name in all the concerned Govt. Revenue Records/MCD on the basis of this Gift Deed even in the absence of the Donor also. The donees shall be entitled to obtain new electricity/water connections/meters in their own name in their respective portion at their own costs & expenses.
9. That the Donor has obtained the valuation report of the said property from Govt. Approved Valuer (report enclosed herewith) for the purpose of stamp duty and the valuation comes out to Rs. 47,08,500/-.
10. That the passage from the main door upto garage and also side entrance from common passage on ground floor (below porch) is marked as common portion (show in yellow colour in site plan) and this property shall be used by both the donees and their authorized representatives.
11. That the new owners and their respective successors of said property by way of this gift deed shall have no right to use common staircase passage leading from ground floor to top floor to go to terrace of top floor for repairing/maintenance of T.V./Cable Antenna & Overhead Water Tank only and the occupant(s)/owner(s) of top floor shall have no objection in this regard.
12. That the said Donees accept the said gifted property.
13. That the donor hereby declares that this Gift Deed is executed by donor with full understanding and of his free will without any pressure from any person(s).
67. It is well-established in law that nothing prevents a coparcener from gifting his undivided interest in a coparcenary property to the other coparceners. In this regard, reliance is placed on the judgment passed by the Hon’ble Supreme Court in Thamma Venkata Subbamma (Dead) By L.R vs Thamma Rattamma (1987) 3 SCC 294, wherein the Hon’ble Supreme Court observed:-
“17. It is, however, a settled law that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. Such a gift would be quite legal and valid.”
(emphasis supplied)

68. Further, the Hon’ble Supreme Court in M.R. Vinoda v. M.S. Susheelamma, (2021) 20 SCC 180 while reiterating the position laid down in Thamma (supra) inter alia held as under:-
“23. This judgment in Thamma Venkata Subbamma [Thamma Venkata Subbamma v. Thamma Rattamma, (1987) 3 SCC 294] draws a distinction between gifts and relinquishment by a coparcener of his share; and the head of the branch or karta as the representative or eldest member of the branch. Former is valid and legal, provided the relinquishment is in favour of all other coparceners. The gift or relinquishment would also be valid if it is with the prior consent of another coparcener. Equally, a coparcener may make a gift of his undivided interest in the coparcenary property to another coparcenary with the prior consent of other coparceners.
24. Mulla’s Hindu Law, 22nd Edn. vide Article 262, states that a coparcener may renounce his interest in favour of the other coparceners as a body, but not in favour of one or more of them. When he renounces in favour of one or more of them, the renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made. A similar exposition vide Article 407 in Mayne’s Treatise on Hindu Law and Usage, 17th Edn., states that a gift by a coparcener of his entire undivided interest in favour of the other coparcener or coparceners is valid whether it is regarded as one made with the consent of the other or others or as a renunciation of his interest in favour of all. Referring to the judgment in Thamma Venkata Subbamma [Thamma Venkata Subbamma v. Thamma Rattamma, (1987) 3 SCC 294], Mayne’s Treatise on Hindu Law and Usage observes that renunciation in the form of ostensible gift may have the effect of relinquishment and if it enures for the benefit of all the coparceners, such gift would be construed as valid. In addition, Mulla’s Hindu Law, 22nd Edn. recognises that a father or other managing member of the ancestral immovable property can make gifts within reasonable limits for “pious purposes”. [See Articles 223 and 224 at pp. 332 and 333, Mulla’s Hindu Law, 22nd Edn.]
(emphasis supplied)
69. Since the HUF only comprised of defendant nos. 2, 3 and 4, on the date of the execution of the Gift Deed i.e 24.08.2004, in view of the law discussed above nothing prevented the defendant no. 2 to gift his interest in the Kothi being the coparcenary property in favor of the other coparceners i.e. defendant nos. 3 and 4.
70. The fact that defendant no. 2 in the gift deed has purported to say that he is the owner of the entire property No. A-28, Friends Colony (East), New Delhi-110065 will not make the gift deed void ab initio. The intention of defendant no. 2 was to transfer his interest in the Kothi in favor of defendant nos. 3 and 4. Whether defendant no. 2 owned the entire Kothi or as a coparcener only a portion of the same will not make any difference as the Kothi was being partitioned and being gifted to defendant nos. 3 and 4 by metes and bounds. Post the execution of the registered gift deed dated 24.08.2004, it would only be defendant nos. 3 and 4 who would be entitled to own the Kothi as per their respective demarcated shares. On the date of the execution of the gift deed, the amendment to section 6 of the Hindu Succession Act was not in existence. Hence, the plaintiffs had no share in defendant no. 1 i.e. the HUF on the date, the Gift Deed was executed.
71. Pursuant to the execution of the Gift Deed, the defendant nos. 3 and 4 have been in possession and occupation of their respective portions in the Kothi and the said portions have also been mutated in favour of defendant nos. 3 and 4 (Exhibit D-5 and Exhibit D-6). respectively.
72. In this regard, DW – 3, Mr. Rakesh Kumar in his cross examination on 18.01.2017 deposed as under:-
“18.01.2017
I have brought the summoned record i.e. the application filed by Mr. Vinay Kumar Das and Mr. Vijay Kumar Das, both sons of Sh. Ram Das for mutation of the property No. A-28, Friends Colony (East), New Delhi-110065 alongwith the documents filed by them vide Dy. No. 5194 dated 26.12.2005. The property was mutated in the names of the applicants vide two letters dated 02.01.2006. The letters are already exhibited as Ex.D5 and Ex. D6. The receipts showing payment of house tax are correct as per our records and the same are already exhibited as Ex.DW1/12 and Ex.DW1/13. As per the records of SDMC, the aforesaid property was assessed in the name of Dr. Ram Das in the year 1994. The property remained assessed in the name of Dr. Ram Das till 2006. The property returns after 2006 have been filed by Mr. Vinay Kumar Das and Mr. Vijay Kumar Das. The copy of the application for mutation is now exhibited as Ex.DW3/1 (OSR). The copy of Indemnity Bond filed by Mr. Vijay Kumar Das is exhibited as Ex.DW3/2 (OSR). The affidavit of Mr. Vijay Kumar Das is exhibited as Ex.DW3/3 (OSR). The copy of application for mutation by Mr. Vinay Kumar Das is exhibited as Ex.DW3/4(OSR). The affidavit of Mr. Vinay Kumar Das is exhibited as Ex.DW3/5 (OSR). The copy of Indemnity Bond filed by Mr. Vinay Kumar Das is exhibited as Ex.DW3/6 (OSR).
73. Further, the electricity and the water connections were also transferred in the name of defendant nos. 3 and 4. It is stated that since the date of the Gift Deed i.e. 24.08.2004, the house tax and other bills are being paid by defendant nos. 3 and 4 for their respective portions (DW 1/2 to Exhibit DW 1/13).
74. In this regard, defendant no. 3 (DW – 1) in his evidence deposed as under:-
“12. I say further that after the execution of the Gift Deed i.e. Exhibit PW 1/ D1, my father was left with no right, title or interest of any kind whatsoever over the property bearing No. A-28, Friends Colony (East), New Delhi and the said property became the exclusive property of the deponent and his brother, Dr. Vinay Kumar Das. I say further that the said property though was self-acquired property and remained as an individual property but in any case, even if the said property formed part of HUF, the same lost its character as an HUF property and the said Gift Deed Exhibit PW 1/D1 amounted to separation of shares, partition of the property and dissolution of the HUF.
13. 1 say further that the said Gift Deed was duly acted upon and the mutation of the. property was made in favour of the deponent and his brother. Dr. Vinay Kumar Das in respect of the respective portions which fell to their share as per the Gift Deed i.e. the ground floor in favour of the deponent and the first floor and above in favour of Dr. Vinay Kumar Das. The mutations accorded by the Municipal Corporation of Delhi are exhibited as Exhibit D-5 & Exhibit D-6 respectively.
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15. I say further that the aforementioned property has since remained the property of the deponent and his brother Dr Vinay Kumar Das and has been so utilized as such. I say further that the deponent and his brother have been making payment of House Tax as regards the said property out of their own funds ever since the date of execution of the Gift Deed. I sayfurther that the electricity connection as well as the Water connection were also got transferred in the name of the deponent and Dr Vinay Kumar Das and the bills have been raised in their name since upon the execution of the Gift Deed i.e. after 24.08.2004. The receipts issued by the Municipal Corporation of Delhi and the electricity bills, water bills etc are exhibited as Exhibit DW 1/2 to Exhibit DW 1/13 respectively.”
75. In the present case, the plaintiffs could not be recognized as members of the HUF till 09.09.2005 i.e. the date of

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