KRISHNA GUPTA Vs. RAJINDER NATH AND CO HUF

JUDGEMENT

(1.) The defendant No.2 and defendant No.4 have filed these applications, under Order VII Rule 11 CPC praying inter alia that the suit for partition of the HUF assets, for possession, rendition of accounts, permanent and mandatory injunction etc., instituted by the plaintiffs be rejected as being barred by law, barred by limitation and for the reason that the plaintiffs not being in actual/constructive or symbolic possession of any of the suit premises, they are liable to pay ad valorem court fees on the valuation of their shares in the suit premises for the relief of partition and the plaint has been insufficiently stamped by them by paying fixed court fees for the said relief.

(2.) The factual matrix of the case is as follows. Plaintiffs No.1 and 2 and defendant No.3(daughters) and defendant No.2(son) are siblings and children of late Shri Rajinder Nath. As per the plaintiffs, the defendant No.1 is an HUF company with defendant No.2 as its present Karta. Defendant No.4 is another HUF with Shri Ashok Nath (son of Sh. Ram Chander Nath and nephew of late Shri Rajinder Nath) as its Karta. As per the plaintiffs, the defendant No.4/HUF has common undivided joint family businesses and movable and immovable assets alongwith defendant No.1/HUF and both the said HUFs are engaged in joint family businesses with joint undivided common assets.

(3.) The case set up by the plaintiffs is that Shri Sham Nath had three sons, including Sh. Rajinder Nath, predecessor-in-interest of the plaintiffs and the defendants No.2 and 3 and he alongwith his sons were engaged in ancestral joint family business established in the early part of the nineteenth century under the firm name, M/s Faqir Chand Raghu Nath Dass and various other trade names. It is averred in the plaint that the said joint family business owned various ancestral movable and immovable assets that were acquired over a period of time in the name of the firm or Benami in the names of various family members. The aforesaid joint family businesses and assets were allegedly partitioned under an Award dated 26.10.1978 made by the Sole Arbitrator, Shri Rameshwar Nath (son-in-law of Shri Sham Nath). Plaintiffs claim that under the Award, the Sole Arbitrator had allotted specific assets to the share of Shri Surinder Nath, one of the sons of Shri Sham Nath, and the remaining assets were allotted in equal share jointly to the other two sons and their branch of HUF, i.e., Shri Rajinder Nath and Shri Ram Chander Nath and that the undivided businesses and assets allocated to the two HUFs jointly remained undivided under the said Award. The aforesaid Award was made rule of the court by the High Court in a suit registered as CS(OS) 427- A/1979, which was finally decreed on 21.08.2006. The said decree was challenged in an appeal filed by the legal heirs of late Shri Surinder Nath and is stated to be pending adjudication.