MASTER AANSH KANDHARI vs RISHI KANDHARI AND OTHERS

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 22nd January, 2024
Pronounced on: 30th April, 2024

+ I.A. 2109/2021 in CS(OS) No.554/2016
MASTER AANSH KANDHARI
Through his Mother/Natural Guardian
Smt. Kanika Kandhari
R/o G-342, First Floor,
Preet Vihar,
New Delhi-110031.
….. Plaintiff
Through: Mr. Rajat Aneja and Ms. Chandrika Gupta, Advocates
versus

1. RISHI KANDHARI
S/o Shri Suresh Kandhari
R/o C-4/4A, Krishna Nagar,
Delhi-110051.

2. SURESH KANDHARI
S/o Late Sh. K.N. Kandhari
R/o C-4/4A, Krishna Nagar,
Delhi-110051.

3. SMT. PREM LATA KANDHARI
W/o Shri Suresh Kandhari,
R/o C-4/4A, Krishna Nagar,
Delhi-110051.

4. PRIYANKA KANDHARI
W/o Shri Raj R. Halkere
D/o Shri Suresh Kandhari
R/o 249, W. Thornhill,
Dr. Fort Worth, TX-76115-2621
Also at:
950, W Magnolia Ave
Fort Wort, TX-76104
….. Defendants
Through: Mr. G.K. Sharma, Advocate

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 2109/2021 (Under Order VII Rule 11 CPC)
1. An application under Order VII Rule 11 (a) & (d) read with Section 151 CPC has been filed on behalf of defendant No.2 Shri Suresh Kandhari, grandfather of the minor plaintiff for rejection of the suit.
2. The plaintiff who is a minor has filed the present suit through his mother against his father/Shri Rishi Kandhari, grandfather/Shri Suresh Kandhari, grandmother/Smt. Prem Lata Kandhari and his paternal aunt (Bua) Priyanka Kandhari who are defendant Nos. 1, 2, 3 and 4 respectively, for Partition, Possession, Permanent Injunction and Rendition of Accounts.
3. It is submitted that the earlier application under Order VII Rule 11 CPC filed on behalf of defendant No.2 had been withdrawn on 02.12.2019 because of technical defects with permission to file the same afresh and hence, this present application has been filed.
4. It is submitted in the application that the plaintiff along with his mother Smt. Kanika Kandhari is residing on the First floor in Preet Vihar, East Delhi which is in the joint name of defendant No.1, who is the father of the plaintiff, and mother of the plaintiff. Defendant No.1 is suffering from paralysis and is under the care of his parents, defendant Nos.2 and 3.
5. The defendant has asserted that the plaintiff has claimed in his suit that all the movable and immovable properties as mentioned in the plaint, have been allegedly purchased from the funds of M/s Suresh Kumar & Sons, HUF. Further, the plaintiff has asserted that the suit properties had been acquired from the funds of joint family business namely M/s Rupa Dairy, a sole proprietorship concern of defendant No.2 which had been put in the common hotchpotch of HUF. Though, the properties as mentioned in the plaint were purchased in the name of respective owners, but the funds were of the joint family business.
6. However, it is asserted by the defendant that neither any specific date, month and year of the creation of HUF has been mentioned, nor is there any details of when the alleged suit properties had been put in common hotchpotch. The requisite details have not been detailed in terms of Order VI Rule 4, CPC, and it has not been explained as to when and how the individually owned properties of the defendants, became HUF properties. The factual details qua each property has not been explained in the plaint.
7. In a catena of judgments it has been held that exact details of the specific date, month and year of creation of HUF for the first time and of throwing the property in the common hotchpotch, have to be clearly pleaded and mentioned in order to meet the legal requirements of Order VI Rule 4 CPC. Reliance has been placed on Surender Kumar vs. Dhani Ram & Ors. bearing CS(OS) No.1737/2012 decided on 18.01.2016.
8. It is, therefore, submitted that the plaint is liable to be rejected.
9. The application is contested by the plaintiff who in his Reply has asserted that there are numerous matrimonial litigations inter-se the mother of the plaintiff and defendant No.1, the father of plaintiff and various cases are pending in various Courts including Delhi High Court. The parties had been referred to Delhi High Court Mediation & Conciliation Centre vide common Order dated 17.12.2019; however, no settlement could be arrived at between the parties as was recorded on 25.11.2020. It is asserted that the present application has been filed after withdrawal of first application under Order VII Rule 11 CPC after four years which shows that it is a frivolous application intended to delay the progress of the suit.
10. On merits, it is submitted that plaintiff has filed documents to substantiate the claim with respect to existence of HUF, which is also admitted by the defendant before this Court on 22.11.2016. Therefore, the plaint read in conjunction with the documents relied upon, discloses a cause of action and the application is without any merit and is liable to be rejected.
11. It is further submitted that defendants have forged the Dissolution Deed in order to malafidely show that M/s Rupa Dairy is a Proprietorship concern of defendant No.2 in order to defeat the legitimate rights of the plaintiff and his mother. Moreover, no document has been placed on record to show that the business of M/s Rupa Dairy was a Proprietorship concern of defendant No.2. In fact, it was a joint family business jointly conducted by defendant No.1 and defendant No.2. There also exists a Current Account in the name of M/s Suresh Kumar & Sons, HUF. Therefore, there is sufficient evidence to show that the properties have been purchased from the joint family funds.
12. It is further explained that even though the properties have been purchased in the name of respective owners, but the funds utilized were those of the joint family. It is further asserted that judgment of Surender Kumar (supra) is not applicable to the facts of the present case. It is, therefore, submitted that the application is liable to be dismissed.
13. Submissions heard.
14. At the outset, it is pertinent to note that for the purpose of deciding an application under Order VII Rule 11, CPC, only the averments made in the plaint coupled with the documents relied upon by the plaintiff, can be considered.
15. The assertion made in the plaint is that the movable and immovable properties have been purchased from the funds drawn from HUF account. A perusal of the plaint shows that there is not only an assertion of existence of HUF and putting of the funds in the common hotchpotch of HUF, but there are documents on record which are in the name of Suresh Kumar and Sons HUF. Therefore, from the perusal of the plaint and the averments made therein, it cannot be said that there is no cause of action disclosed in the plaint.
16. It is pertinent to note that there is also an admission by the Defendant No.2 that there existed an HUF by the name of M/s Suresh Kumar & Sons constituted in the year 1992, for which a bank account exists as well. Though, the defendant has asserted that M/s Rupa Dairy was the sole proprietorship business of the defendant No.2 and the funds generated from this business were never put in the common hotchpotch, but these are all defences which can be proved only after recording of evidence.
17. There is no merit in the application under Order VII Rule 11, CPC, which is hereby dismissed.

CS(OS) No.554/2016
18. Affidavit of evidence of the witnesses be filed within four weeks with a copy to the opposite counsel.
19. List before learned Joint Registrar for recording of evidence on 04.07.2024.

(NEENA BANSAL KRISHNA)
JUDGE

APRIL 30, 2024
va

CS(OS) No.554/2016 Page 1 of 6