GULAB SINGH Vs. DAL CHAND LOWADIA

JUDGEMENT

(1.) This Regular Second Appeal is filed under Section 100 of Code of Civil Procedure, 1908 (CPC) impugning the judgments of the courts below; of the trial court dated 3.8.2009 and the appellate Court dated 22.12.2012; by which the suit of the appellant/plaintiff for declaration and injunction with respect to property bearing Municipal No.3738, Gali No.17, Rehghar Pura, Karol Bagh, Delhi-110005 was dismissed. In the suit, declaration was prayed that the registered sale deed dated 28.3.1990 executed by the father of the appellant/plaintiff late Sh. Panna Lal in favour of the defendant is illegal and void because the property was an HUF property and not the exclusively owned property of the father.

(2.) Both the courts below have held that the appellant/plaintiff has failed to prove existence of any HUF whatsoever. In this Court, I put a query to the counsel for the appellant as to what documentary evidence the appellant/plaintiff has led to prove existence of HUF and to which query it is admitted that not a single document has been filed to show the existence of HUF between the appellant/plaintiff and father late Sh. Panna Lal. It is only argued before this Court that the father late Sh. Panna Lal was carrying out a business in which appellant/plaintiff was helping and therefore the property purchased from the funds of that business had become HUF property.

(3.) The argument urged on behalf of the appellant/plaintiff is a totally misconceived argument because HUF does not come into existence merely because a son helps his father in business. HUF is a specific creation of law whereby either the same comes into existence for the first time when member of HUF throws property into common hotch-potch or if the property inherited is by a male from his parental ancestors before the passing of the Hindu Succession Act, 1956. I may note that Supreme Court in the cases of Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen and Ors., 1986 AIR(SC) 1753 and Yudhishter Vs. Ashok Kumar, 1987 AIR(SC) 558 has held that after passing of the Hindu Succession Act, 1956 merely because a person inherits property from his parental ancestors, the inherited property will not be an HUF property in the hands of the person who inherits the same, unless and until an HUF is shown to be existing on the date of death of the ancestor. In these judgments, Supreme Court has held that if a property is inherited prior to the passing of the Hindu Succession Act, 1956 from the parental ancestors only then in such circumstances by the mere factum of inheritance the property becomes HUF property, but that is not the legal position after passing of the Hindu Succession Act, 1956.