C.S.(OS). 1353/2009. Case: Ms. Ilaria Kapur Vs Sh. Rakesh Kapur & Ors.. High Court of Delhi (India)
| Case Number | C.S.(OS). 1353/2009 |
| Counsel | For Appellant: Ms. Mala Goel, Adv. Along with Plaintiff in Person and For Respondents: Mr. Vinod Tyagi, Adv. in Person |
| Judges | Ms. Reva Khetrapal, J. |
| Issue | Benami Transactions (prohibition) Act, 1988 - Sections 2(a), 3, 4, 4(1); Code of Civil Procedure, 1908 - Rule 1, 11, 11(d), 16, 4; Depositories Act, 1996 (22 of 1996) - Sections 10, 4, 4(3); Guardians And Wards Act, 1890 - Section 29; Hindu Minority And Guardinship Act,1956 - Sections 12, 6, 8; Hindu Succession Act, 1956 - Sections 14, 14(1) |
| Citation | 2012 (V) AD 514 (Del) |
| Judgement Date | May 28, 2012 |
| Court | High Court of Delhi (India) |
Judgment:
Reva Khetrapal, J.
1. By way of this application filed under Order VII Rule 11 CPC, the applicant, the defendant No.3, alleges that the plaint does not disclose any cause of action qua the defendant No.3 and being barred by Hindu Law as well as the provisions contained in the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, the Guardians and Wards Act, 1890, the Specific Relief Act, 1963 and the Benami Transactions (Prohibition) Act, 1988, deserves rejection at the threshold. The aforesaid application is predicated on the contention of the defendant No.3 that she being a woman cannot be a coparcener in the HUF of her husband/sons and, therefore, the properties owned by her cannot be termed as HUF properties belonging to or vesting in the coparcenary comprising of her husband and her sons, as the law does not permit her to blend her properties with the HUF properties. It is asserted by the defendant No.3 that all the properties, owned and possessed by her are protected by the Hindu Women's Right to Property Act, 1937, the Benami Transactions (Prohibition) Act, 1988 and the Hindu Succession Act, 1956 and in view thereof, the suit is barred within the meaning of Rule 11(d) of Order VII of the Code of Civil Procedure.
2. It may be noted that the suit in which the aforesaid application is filed is a suit for partition, rendition of accounts, etc., filed by the plaintiff, minor Hindu female through her next friend, her mother, Ms. Sapna Kapur. The mother of the plaintiff and the defendant No.1, who is the father of the plaintiff, though have a continuing and subsisting marriage, are involved in multifarious litigation, to which it is not deemed necessary to advert at this juncture. Suffice it to say that there are allegations and counter-allegations. Several orders have been passed in the ongoing litigation between the parties from time to time by various Courts including the Guardianship Court.
3. As delineated in the plaint, the case of the plaintiff is that the plaintiff and the defendants are Hindus governed by Mitakshara law. Late Major Kailash Chander Kapur (Retd.), his wife Ms. Ritu Kapur (the defendant No.3) and their two sons Mr. Rakesh Kapur (defendant No.1) and Mr. Ravi Kapur (defendant No.2) constituted a Hindu Undivided Family, which resided together at B-103, Som Vihar Apartment, R.K. Puram, Delhi. Their family business commonly known as "Ace Detectives India" was started in 1984 as a private detective agency and over a period of time other family businesses sprung up including M/s. International Security, M/s. Ace Consultants and M/s. Absolute Security Pvt. Ltd. The joint family acquired several properties in Delhi, Gurgaon and Punjab from the funds generated with the joint labour and efforts of the defendant Nos.1 and 2 and of their late father. Some properties were purchased and acquired in the name of Major Kailash Chander Kapur; others in the names of the defendant Nos.1, 2 and 3. A list of the vast immovable and movable assets of the Hindu Joint Family is filed with the plaint as Annexure-A.
4. It is further averred in the plaint that on the death of Major Kailash Chander Kapur on 29.06.2007, according to the plaintiff, the share of the defendant Nos.1 to 3 in the joint family properties was 1/4th each. The 1/4th share of Major Kailash Chander Kapur, as he died intestate, is also to be divided amongst the defendant Nos.1 to 3, each getting 1/3rd share in the 1/4th share of Major Kailash Chander Kapur. The plaintiff, who is the minor daughter of the defendant No.1, thus, claims to have right and interest in the joint family assets by virtue of her birth to the extent of 1/3rd share in the 1/4th share of the defendant No.1 in the HUF assets; as well as 1/3rd share in the 1/3rd share of the defendant No.1 in the 1/4th share coming to him from his father, i.e., grandfather of the plaintiff. The defendants having denied the plaintiff's right, the present suit for partition has been instituted by her claiming her rightful share in the HUF properties.
5. In the present application filed by the defendant No.3, it is asserted that the properties set out in the plaint are owned by the defendant No.3, and cannot form subject matter of partition in a suit for partition of properties of the HUF, as property belonging to a female Hindu cannot be termed as the property of the HUF comprising of her husband, sons, grandsons or daughters/granddaughters nor her properties can blend into the HUF properties.
6. In paragraph 11 of the application it is stated that the defendant No.3 is the owner of the following properties:-
S. No.PropertyStatus1.B-103, Som ViharResiding2.C-1/1682, Vasant Kunj Sold on 30.11.20043.B-2/2059, Vasant Kunj Still holding it.4.28, Vasant Apartments Sold on 24.03.20085.271, Vasant Apartments Sold on 14.07.20086.Birch Court-38, Nirwana Still holding it.7.Aspen Garden-26, Nirwana Still holding it.
8.A-3/1502, Uniworld City Sold on 18.12.20069.Re-107, EWS, Ridgewood Estate Still holding it.10.C-701, Sun City Still holding it.11.801, T-6, Orchid Petals Sold on 09.02.200812.50% share in B-601, Park View Still holding it.
It is urged that just as a grandson cannot seek partition of joint family properties from his grandfather during the lifetime of his father and as long as his father and his brothers, etc. are not separated or are united, a granddaughter (the plaintiff in the instant case) is also not entitled to seek partition of the joint family properties of her grandfather during the lifetime of her father (the defendant No.1). In any case, there is no legal necessity for the plaintiff to seek partition of her alleged share in the properties of the HUF of the parties and, therefore, it cannot be said that the partition of the properties is likely to be for the benefit of the minor or for the advancement of her interest. It is also asserted in the application that the mother of the plaintiff cannot act as guardian/next friend in respect of the minor's undivided interest in the joint family properties by virtue of the provisions of Section 6 of the Hindu Minority and Guardianship Act, 1956. Section 12 of the said Act provides that no guardian be appointed by the Court for the minor's undivided interest in the joint family properties. By virtue of the provisions of Section 8 of the said Act and Section 29 of the Guardian and Wards Act, the guardian can in no case bind a minor by a personal covenant in respect of fluctuating indefinite interest in her alleged joint family properties.
7. Mr. Vinod Tyagi, the learned counsel for the defendant No.3, in the course of hearing of the present application contended that it is settled law that a coparcenary consists of only male members of a family, lineally descended from a common ancestor, who acquire by birth an interest in the HUF properties, and though the daughter of a coparcener has now been held entitled to the coparcenary property by virtue of the Hindu Succession (Amendment) Act, 2005, (with effect from 09.09.2005), the wife or mother of the coparceners/male members of a Joint Hindu Family governed by Mitakshara Law are not included as coparceners in the coparcenary of...
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