SURYA KANT CHUNILAL Vs. MAHESH CHAND

JUDGEMENT

(1.) The plaintiffs in this case are sons of Chuni Lal, defendant No. 5. They have filed a suit for declaration and injunction in which they seek a declaration that two bungalows in Civil Lines, Delhi bearing Nos. 23 and 25 at Rajpur Road belong to and are the property of the joint Hindu Family comprising of the plaintiffs and defendants No. 5 and that defendants Nos. 1 to 4 be restrained by means of a permanent Injunction from interfering with the peaceful enjoyment of these two properties by the plaintiffs and defendant No. 5. The circumstances which have led to the filing of the suit. briefly stated, are that one Seth Beni Pershad, the grandfather of plaintiffs, is claimed to have constituted a joint Hindu Family with his sons and grandsons which family was the owner of various properties as well as a running business. Seth Beni Pershad died in December, 1948 and thereafter the joint family was constituted by Chuni Lal, defendant No. 5 and his three sons, the plaintiffs, as well as Mahaveer Prasad, defendant No. 3, who was a minor in 1948. In 1953, it is alleged, defendants Nos. 3 and 5 separated and put an end to their joint Hindu Family and became co-owners of the erstwhile joint Hindu Family property and the family business which they had inherited from Seth Beni Pershad. Thus the family property and business came to be owned by Mahaveer Prasad defendant No. 3 as one joint owner and the joint Hindu Family comprised of the plaintiffs and defendant No. 5 as the other joint owner. Subsequently there was a partition between these two branches and the two bungalows in suit fell to the share of Chuni Lal, defendant No. 5 and the plaintiffs and, it is alleged, is still in the ownership of this joint Hindu Family.

(2.) Defendant No. 2 herein, Seth Beni Pershad Jaipuria Charitable Trust, has as its trustees, amongst others, Chuni Lal, defendant No. 5. Mahaveer Prasad, defendant No. 3 is claimed to be another trustee and the case of defendants 1 to 4 is that the third trustee is Smt. Rukmani Devi. The plaintiffs allege that while they were minors, their father Chuni Lal expressed the intention of giving away the properties in suit to this Charitable Trust for the purposes of running a school etc. but in fact the properties were never transferred. However, defendants 1 to 4 have started asserting title to the properties in suit and have threatened to interfere with the peaceful enjoyment of these properties by the real owners and so it is necessary to get a declaration and a permanent injunction as claimed by them.

(3.) Defendant No. 5 has naturally supported the plaintiff's suit. Defendants 2, 3 and 4 have contested the suit. They have pleaded, inter alia, that the suit for declaration and injunction is not maintainable on the allegations made in the plaint, that the plaintiffs are not in possession of the property in suit, that the suit as filed is barred under the proviso to Section 34 of the Specific Relief Act, that the suit is not maintainable against defendant No. 2 which is an unregistered body, that all the trustees of the trust, defendant No. 2, have not been impleaded as defendants and inasmuch as Smt. Rukmani Devi is also a trustee, she is a necessary party to the suit, that there was a dedication of the properties in suit in favour of the Trust, and that the properties were not owned by the Joint Hindu Family headed by Seth Beni Pershad and at no time did the property in suit fall to the share of the plaintiffs and Chuni Lal in any alleged partition and so there was no question of the coparcenery set up by the plaintiffs owning any property. Defendant No. 1 has set up the plea that the property in suit belongs to the Trust since a long time and is being utilised by the said Trust for the purposes of running a girls school. He has denied that the property belonged to the plaintiffs and Chuni Lal and has asserted that the possession is that of the Trust. Defendant No. 1 is the brother-in-law of defendants 3 and 4. Defendant No. 6 is the wife of defendant No. 5 and so has naturally supported the plaintiffs' case. In the replication filed on behalf of the plaintiffs the allegations in the plaint have been reiterated.