VINOD GUPTA Vs. BRAHAM VIRA GUPTA

JUDGEMENT

(1.) This appeal under Section 10 of the Delhi High Court Act, 1966 (for short the Act) is preferred, by defendants No. 1 to 4, in the suit, against the order of the learned Single Judge dated 28 September, 1994 whereby appel- lants' application, IA 331 /94 (wrongly noted as IA 313/93) in Suit No. 3626/92. ^ Order 6 Rule 5 and Order II Rule 14 read with Section 151 of the CPC, seeking a direction to respondent No. I/plaintiff to supply copies of the documents mentioned in the application and furnish better particulars, was dismissed.

(2.) In the suit defendant Nos.1I and 5 are the sons of the plaintiff. Defendants 2 to 4 are the wife and two minor sons of defendant No. I, defendant Nos. 6 and 7 are the wife and minor son of defendant No. 5 and defendant No. 8 is the unmarried daughter of the plaintiff. Plaintiff's case is that he started publishing ' business in the year 1946; all that he earned was his individual acquisition; with a view to provide his progeny aforesaid and to reduce the taxation burden, he constituted Hindu Undivided Family (HUF) in the named of Braham Vira Gopta and Sons and to provide nucleus for it, threw money it; purchased a plot No. E 3, Greater Kailash-ll, New Delhi, later sold it and purchased plot No. E-550, Greater Kailash-ll, New Delhi, by throwing further money into the family hotchpot, constructed a house thereon, which is an HUF property. Besides he has selfacquired property also as mentioned in the plaint. Defendant No. 5, one of the members of the HUF, vide his registered letter dated 11 April, 1991 (Annexure A to the plaint), demanded partition of the H.U.F. property, whereupon, the plaintiff as Karta of the family effected partition and informed defendant No. 5 vide his letter dated 20 April, 1991 (Annexure B to the plaint), copies endorsed to defendants No. I and 8, enclosing a proposed plan, earmarking the portions allotted to the share of each member of the HUF in the questioned house, thus, dividing it by metes and bounds. Whereafter letter dated 23 April, 1991 was received by the plaintiff from defendant No. I challenging the plaintiff's right to effect partition and describing the partition made as unfair, resultant where to, the plaintiff, claiming to have a right to effect partition of the HUF assets and ' properties, amongst the members of the family, filed the suit for; (i) declaration that the partition of the property in question as effected by him in his capacity as father and Karta / Manager of the HUF and recorded in the partition plan of the property, is final and binding on all the members/parties to the suit; (ii) restraining defendant No. I from attempting to take possession or trespassing into any portion of the suit property, which has not been specifically allotted to him by partition plan; and (iii) in case prayers (i) and (ii) as above, are not granted, for partition of the suit property by discharging HUF liabilities for the funds provided, with interest.

(3.) On being served, the appellants did not file the written statement but instead moved the afore-noted application seeking better particulars and production of documents, to enable them to file a proper written statement. It was averred that the plaint is vague inasmuch as the relevant documents in support of plaintiff's claim relating to the creation of the HUF, his putting some money into the family hotchpot, particulars of the persons constituting the HUF, the alleged disruption of the HUF,cost of construction of the property and utilisation of the HUF funds had neither been filed with the plaint nor their copies supplied to the appellants. The application was resisted by the plaintiff. The learned Single Judge, observed that appellant No. I, if at all has any share in the property is on account of averments made in the plaint of the plaintiff that the property in dispute is a joint HUF property and his right to have a share in the property is on the basis of the said averment in the plaint and filing of the application by the appellants tantamounts to indulging in roving and fishing enquiry with a view to delay the proceedings. Observing further that whatever objection the appellants have in relation to the documents, the same can be taken in the written statement; issues have to be framed on the basis of the pleadings and if onus is not discharged by the party on whom such onus lies, no relief can be granted to the said party, the learned Judge found no merit in the application and accordingly dismissed the same. Hence the present appeal.