Master Anant Narayan Rai and Anr v. Mr. Siddharth Rai & Anr

RAJIV SAHAI ENDLAW, J FEBRUARY 06, 2020 "ak"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th February, 2020. + CS(OS) 1737/2007, CCP(O)88/2015, IA No.5753/2012(u/S.25(2) of DV Act), IA No.20636/2015 (u/S.26 of DV Act), IA No.12698/2017 (u/S.151 of CPC) & IA No.9712/2019 (u/S.151 of CPC) MASTER ANANT NARAYAN RAI AND ANR. ..... Plaintiffs Through: Mr. Sanjeev Sahay with Mr. Sulalit Sisodia, Advs. Versus SIDDHARTH RAI & ANR. ..... Defendants Through: Mr. P.P.Malhotra, Sr. Adv. with Mr. Pramod Kumar, Ms. Tanya Kathuria & Mr. Akshya, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. On 25th September, 2019, the following order was passed in this suit: "1. This suit for partition of the following Joint Family Properties: "A. Joint Family Properties:- 1. Flat at D-4, Upasana Building, Hailey Road, Connaght Place, New Delhi: 110001; At present the said flat is on rent @ over Rs.90,000/- per month. 2. Farm House (8.5 acre) bearing khasra number 7, 11, 14/1, 17/2, 18, 19, 20, 21/1, 22/1, 23/1 situated in Dera Gaon, New Delhi in the name A.B.S enterprises of which Defendant no. 1 is a sole proprietor 3. Ancestral House bearing khasra number 275,1056 measuring .4150 hectare situated at Semri Jamalpur, Mau, Uttar Pradesh of around 1 bigha; (currently occupied by plaintiff no.2 and defendant). 4. 20 Bigha agricultural ancestral land bearing khasra no. 938,1145,1144 of land measuring 2.4740 hectare situated at Semri Jamalpur, Mau, Uttar Pradesh. (current capital value of which is approximately 50 lacs; Defendant no.1 takes all the produce and income) 5. 5 Bigha Mango Orchid bearing khasra no.945,1147 land measuring 4.9350 hectare situated at Semari, Jamlpur, Distt Mau, U.P; capital value of which is around 12 lacs; (Defendant no.1 takes all the produce and income)" and for rendition of accounts and permanent injunction, post-trial is ripe for final hearing. 2. The senior counsel for the plaintiffs and the senior counsel for the defendant no.1 have been heard. The only other defendant namely M/s Innovative B2B Logistics Solutions Pvt. Ltd. was proceeded against ex parte on 9th July, 2008 and remains ex parte. 3. It is not in dispute that the plaintiff no. 1 Master Anant Narayan Rai, who has since attained majority, is the son and the plaintiff no.2 Dr. (Mrs.) Sita Kumari Rai, who is the wife of the defendant no.1 Siddharth Rai. 4. The senior counsel for the plaintiffs has drawn attention to the issues framed in the suit on 24th January, 2011 and has contended that the present suit has been filed for partition of the plaintiff no.1's share in Kalpnath Rai HUF; it is informed that Kalpnath Rai died on 6th August, 1999. 5. Since the suit is for partition of share in HUF, and Kalpnath Rai, informed to be the karta/co-parcenor of the HUF is stated to have died prior to institution of the suit, I have enquired from the senior counsel for the plaintiffs about the natural heirs of Kalpnath Rai inasmuch as in terms of Section 6 of the Hindu Succession Act, 1956, on the demise of Kalpnath Rai, there would be a deemed partition and the share of Kalpnath Rai in the HUF would be inherited by his natural heirs, in accordance with Section 8 of the said Act and would not devolve upon the remaining co- parcenors/members of the HUF. 6. The senior counsel for the plaintiffs informs that Kalpnath Rai left defendant no.1 as his only son, a wife and five married daughters. 7. Thus, the share of Kalpnath Rai in the HUF would be divided into seven shares and of which the defendant no.1 would have one-seventh share only. Though, the senior counsel for the plaintiffs has contended that the said one-seventh share inherited by the defendant no.1 out of his father's share in the HUF would also be HUF property in the hands of the defendant no.1 but the senior counsel for the plaintiffs has not been able to support the said contention with any case law and the position of law is clear that the property inherited by Class I heirs, even if out of share of, their predecessor in HUF property, is in