SHRI NEERAJ BHATIA vs SHRI RAVINDRA KUMAR BHATIA & ORS.

$~25
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 23rd April, 2024
+ CS(OS) 210/2023 and I.A. 14039/2023
SHRI NEERAJ BHATIA ….. Plaintiff
Through: Mr. Praveen Kumar, Mr. Neeraj Pal, Surbhi Sharma & Ms. Sudha Sharma Adv. (M: 9999099325)

versus

SHRI RAVINDRA KUMAR BHATIA & ORS. ….. Defendants
Through: Mr. Rishabh Bansal with Ms. Dakshaa Arora and Ms Himanshi Malhotra, Advs. for D-1 to 4 and 6 to 8.
Ms. Anushka Sharma, Adv. for D-5. (M:9717798918))

CORAM:
JUSTICE PRATHIBA M. SINGH

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.
2. Vide order dated 30th January, 2024, this Court directed as follows:
“9. After considering the matter and also considering the fact that the Plaintiff and the Defendant No.5 are two grandsons of late Mr. Balwant Lal Bhatia and the fact that the property has already stood mutated in favour of the children, this Court is of the opinion that reconstruction in the property ought not to be stopped. However, no third party interest can be allowed to be created in the reconstructed property without leave of the Court.

10. Accordingly, the Defendant Nos.1 to 4 and Defendant Nos. 6 to 8 are permitted to place on record the proposal as to how they intend to reconstruct the property. This shall, however, be without prejudice to all rights and contentions of the parties. On the basis of the proposal, the Court would consider as to the manner in which reconstruction ought to be permitted.
11. Both the applications are disposed of.
CS(OS) 210/2023
12. List for consideration of the proposal for reconstruction on 23rd April, 2024.”

3. In furtherance of the last order dated 30th January, 2024, a proposal dated 20th April, 2024, has been placed by Defendant Nos. 1, 3 and 6 to the following effect:
“5. Therefore, pursuant to the permission given by the Hon’ble Court, the Defendant No.1, 3 and 6 submit the following proposal to reconstruct the Suit Property for this Hon’ble Court’s consideration:
i. Defendant No.1, 3 and 6 will enter into an Agreement for reconstruction of the Suit Property with reputed a builder/contractor.

ii. No ownership rights in the Suit Property will be created in favour of the said builder/contractor or any third party. No floor of the Suit Property would be given to the builder/contractor.

iii. The entire building on the Suit Property would be first demolished and then reconstructed. The proposed new Structure will include a basement, Stilt floor, and the maximum number of permissible floors in accordance with the prevailing laws/by- laws.

iv. The funds for reconstruction of the Suit Property shall be jointly contributed by Defendant No. 1, 3 and 6. No mortgage will be created on the Suit Property by Defendant No. 1, 3 and 6 for the purpose of taking a loan, if need be.

v. The Structure would have a lift and common area for the convenience of the habitants, considering their old age.

vi. High quality construction material and fittings/fixtures will be used in the Suit Property, commensurate with the market standard.

vii. Defendant No. 1, 3 and 6 will ensure compliance of all the prevailing building laws/by-laws”

4. The Plaintiff and Defendant No. 5 do not accept the above proposal on the ground that they may be required to move out of the suit property if the Court accepts the proposal to reconstruct. The Plaintiff objects to this proposal as he and his family, along with his parents, reside on the first floor of the property in Defence Colony.
5. Accordingly, the ld. Counsel for the Plaintiff has been asked to satisfy the Court regarding the basis for the claim that the suit property located in Defence Colony is an HUF property. The only basis provided by the ld. Counsel for the Plaintiff consists of two paragraphs in the plaint, which read as follows:
“7. That on 07.08.1993, grandmother of plaintiff i.e. wife of Late Shri Balwant Lal Bhatia passed away and Balwant Lal Bhatia was overcome by emotion and became inconsolable. The last rites were performed and Tehravi was organized on 19.08.1993 at Arya Samaj Mandir, Kotla Mubarakpur, New Delhi. The Plaintiff who was studying in college in Kolkata at that point of time had also come to participate in the rituals. After conclusion of rituals, while the relatives were present, Late Balwant Lal Bhatia on the next day after Tehravi, on 20.08.1993 had in the presence of his two sons, daughter and their children and also in the presence of brother and sister of Late Smt. Sushila Bhatia, namely Sri Hansraj Bhatia, and his wife Smt. Urmila Bhatia, Smt. Vidya Bhatia and her husband Shri Baburam Bhatia, and elder nephew of Late Smt. Sushila Bhatia; Shri Sushil Bhatia expressed his earnest desire that he wants to see his children and grandchildren happy and growing in his house and blended the property bearing no. A-125, Defence Colony, New Delhi-110024, which was his self-acquired property, in the common hotchpotch and impressed the same with joint family character and said that as long as he lives, he will be the Karta of the his Hindu Undivided Family/Joint Family with the suit property being the joint family property. In this manner, the self-acquired property of Late Shri Balwant Lal Bhatia was impressed with the character of a joint family property and was thrown in the common hotchpotch of the Hindu Undivided Family. It is imperative to state that the Plaintiff was living with his grandfather during his childhood and he continued to live with him on the ground floor while his father Defendant No. 1. was posted outside Delhi.

8. That the suit property bearing no. A-125, Defence Colony, New Delhi was used as a joint family/HUF property ever since then and the entire family was using it in their own right. Defendant No.3, Mr. Surinder Mohan Bhatia was due for retirement on 31.07.1994 and Defendant No.1, Mr. Ravindra Kumar Bhatia was due for retirement on 15.06.1996. The Defendant No.1 and 3 both needed their designated portion in the suit property and therefore on first barshi of Late Mrs. Sushila Bhatia, the family had gathered together on 07.07.1994 for the rituals and after the same got over, they orally partitioned the property bearing no. A-125, Defence Colony, New Delhi and ground floor came to the share of branch of Mr. Surinder Mohan Bhatia Defendant No.3, First Floor came to the share of branch of Shri Ravindra Kumar Bhatia, (Defendant No. 1) and Second Floor came to the share of branch of Mrs. Pramila Bhatia, Defendant No.6. The grandfather Late Shri Balwant Lal Bhatia decided not to take any specific portion in the partition and decided that he would live in the portion of Defendant No.3 Shri Surinder Mohan Bhatia on the ground floor as wife of Shri Surinder Mohan Bhatia was already deceased. First Floor was used by the family of Shri Ravindra Kumar Bhatia Defendant No. 1, which included him, his wife Smt. Urvashi Bhatia, Plaintiff and his sister Shimona Bhatia (Defendant No.2) as the family shifted to the suit property in the year 1997 after staying for a brief period in Noida after retirement. Second Floor was rented out as sister Pramila Bhatia Defendant No.6 was living with her husband and the rent was being credited by the tenant to the joint account of Smt. Pramila Bhatia and Late Balwant Lal Bhatia.”

6. In response to a specific query about whether there are any documents showing that the suit property has been included in a common hotchpotch, it is submitted that there are no documents, except the averments made in the plaint and the written statement of Defendant No.5, who supports the case of the Plaintiff.
7. Both the Plaintiff and Defendant No.5 are grandchildren of the late Mr. Balwant Lal Bhatia. The interests of the Plaintiff and Defendant No.5 are contrary to those of their respective parents, Ravinder Kumar Bhatia and Mr. Surinder Mohan Bhatia. Dr. Pramila Bhatia is the aunt of the Plaintiff. These three grandchildren claim rights in the property by virtue of a registered Will dated 15th February, 1999, and the suit property has also been mutated in favor of the three beneficiaries as per the Will. Under such circumstances, considering that all three parties claiming rights in the property and the Will are senior citizens, the proposal presented to the Court ought not to be outrightly rejected. The Plaintiff and Defendant No.5, apart from the mere averments in the plaint, do not have any basis to argue that the suit property has been placed in a common hotchpotch. Further, in Surender Kumar v. Dhani Ram, [227 (2016) DLT 217], it is settled that Order VI Rule 4 CPC applies to cases where the Plaintiff alleges the existence of a coparcenary or HUF. Since the enactment of the Hindu Succession Act, 1956, there is no automatic presumption of an HUF’s existence. As a result, it is necessary to aver specific facts relating to HUF. The Plaintiff ought make specific references for each property claimed as HUF property, explaining how it qualifies as such. The relevant portion of the said decision is as follows:
“9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order 6 Rule 4, CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhister (supra), there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically, stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties”

8. The above opinion has also been reiterated in Aarshiya Gulati (Minor) Thr. Next Friend & Ors. v. Kuldeep Singh (2019:DHC:712) wherein the Court has again observed –
“40. A learned Single Judge of this Court in the case of Surender Kumar Vs. Dhani Ram & Ors. 227 (2016) DLT 217 has held that Order 6 Rule 4 CPC is attracted to suits where the plaintiff claims that a coparcenary or HUF exists, as after coming into force of the Hindu Succession Act, 1956 (hereinafter referred to as ‘Act, 1956’), there is no presumption as to the existence of an HUF. Consequently, detailed facts have to be averred. The averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property.
…
41. A Division Bench of this Court in Sagar Gambhir Vs. Sukhdev Singh Gambhir and Ors., 241 (2017) DLT 98 has endorsed the said view….
…
92. Also, as Order 6 Rule 4 CPC is attracted to suits where plaintiff claims that a coparcenary or Hindu Joint Family exists, (inasmuch as after coming into force of the Act, 1956, there is no presumption as to the existence of an HUF), detailed facts have to be averred. However, no averments have been made by factual references qua each property claimed to be a Hindu Joint Family property.
93. Further, even if the averments in the plaint are to be believed, then it only shows that thirteen properties are in existence, but it does not mean that they are available or capable for partition. After all, properties owned by partnership firms or Public or Private Limited Companies cannot be said to belong to a coparcenary.

94. Not only the agreement to sell and receipt of payment of C-117, East of Kailash, New Delhi are admittedly in favour of the defendant no.1’s wife, namely, defendant no.5, but the conveyance deed executed by the DDA is also in her favour exclusively. The plaintiffs’ contention that the name of the wife of defendant no.1 was used as benami with regard to C-117, East of Kailash is untenable in law inasmuch as the grandmother of the plaintiffs, i.e., defendant no. 5, was admittedly not a coparcener in the Hindu undivided family. The said property was purchased by defendant no.5, who is an independent income tax assessee having rental and business income.”

9. In the present case, apart from a bare averment in the Plaint on an oral statement that the property is HUF property, there is nothing to establish the existence of a HUF. There are no documents, tax returns, or even an intention expressed anywhere of such an HUF. Moreover, the parents of the Plaintiff and Defendant no.5 are alive and are in their 80s. They are also present in Court. The Plaintiff on the other hand works in the Merchant Navy and lives with his family. The parents wish to see that the dispute is resolved during their lifetime between each other. In view of this, the Court is inclined, prima facie, to permit the reconstruction of the suit property at ‘A-125 Defence Colony, New Delhi’, subject to the following conditions:
i. Defendant Nos. 1, 3 and 6 are permitted to identify any reputed contractor for the demolition and reconstruction of the suit property.
ii. The building plans for the suit property shall be finalised and shall be placed before the Court. Copies of the same shall be given to the Plaintiff and to Defendant No.5.
iii. No part of the suit property shall be transferred to the developer, builder or the contractor.
iv. The entire cost of the construction shall be borne by Defendant Nos. 1, 3 and 6 and no special equities shall be created in their favour for financing the construction.
v. The new structure shall strictly comply with the building by-laws and consist of a basement, stilt parking and the number of floors as permitted in the bye-laws.
vi. While undertaking construction, provision for lift and common spaces for all the inhabitants shall also be provided for.
vii. Quality of construction shall be of a marketable nature, matching similar construction in the vicinity.
viii. The agreement which may be entered into by Defendant Nos. 1, 3 and 6, in favour of any builder or contractor shall be placed on record. After placing the same on record, and serving a copy of the same upon the Plaintiff and Defendant No.5, the building plans shall also be finalised and be placed on record.
ix. The construction shall commence after the building plans are approved.
x. The reconstruction shall not commence at least for period of three months, to enable the Plaintiff to make alternative arrangements for residence of his family.
10. In the meantime, the trial of the suit is expedited. Upon the reconstruction being completed, parties shall take possession of the respective portions of the suit property, after obtaining permission of this Court. One floor of the property shall be kept vacant for further orders of this Court.
11. The following issues are framed in the matter:
“i. Whether Mr. Balwant Lal Bhatia threw the Suit Property in common hotchpotch on 20.08.1993? If yes, whether the Suit Property gained the character a Joint Hindu Family Property on 20.08.1993? OPP
ii. Whether the Suit Property was orally partitioned on 07.07.1994, as pleaded? OPP
iii. Whether Late Shri Balwant Lal Bhatia left the registered Will dated 15.02.1999 as his last and final Will and Testament and whether the same is validly executed? OPD 1,3 & 6
iv. Whether the Plaintiff is entitled to a decree of partition of the Suit Property? OPP
v. Whether the Plaintiff is entitled to 1/9th share in the Suit Property? OPP
vi. Whether the Plaintiff is entitled to decree of permanent injunction with respect to the Suit Property? OPP
vii. Cost
viii. Relief”

12. Considering that there is an urgency in the matter, a Local Commissioner is appointed to record the evidence.
13. Accordingly, Mr. Mohan K. Kukreja, Advocate [M:9810143111], who is present in Court, is appointed as the Local Commissioner in this matter. The fee of the Local Commissioner is fixed at Rs. 3 lakhs lump sum. Rs. 1 lakh to be paid upfront on the first date of hearing. The second instalment shall be paid at the time of conclusion of the evidence and Defendant No.5 and third instalment shall be paid at the time of conclusion of evidence of Defendant Nos. 1, 3 and 6. The fee for the local commission shall be borne 50% by the Plaintiff along with Defendant No.5 and remaining 50% shall be borne by the remaining Defendants.
14. The list of witnesses shall be filed by all the parties. The evidence shall be first led by the Plaintiff. Affidavits-in-evidence shall be filed within eight weeks.
15. I.A. 14039/2023 is disposed of.
16. List before the Local Commissioner on 11th July, 2024.
17. List before Court on 30th September, 2024.

PRATHIBA M. SINGH
JUDGE
APRIL 23, 2024
dj/dn

CS(OS) 210/2023 Page 2 of 2