HSA- Proxy Litigation By Wife In The Name Of Daughter Cannot Help Parties, Children Are The Worst Victim: Observes Delhi HC In Partition Suit
|The Delhi High Court has dismissed a partition suit filed by plaintiff through her mother claiming a share in the property of her father/defendant no.1.
The bench of Justice Neena Bansal Krishna held that there was no HUF existing at the time of birth of the plaintiff into which she could be born. The Court added that since the alleged Hindu Undivided Family stood already dissolved, the plaintiff had no right to claim a share in the properties of her father.
Before parting with the case the Court observed that “…this kind of proxy litigation by a wife in the name of the daughter cannot help parties to peaceful settlement of their disputes but only increases acrimony and bitterness, the worst victim of which are the children as in this case.”
In this case, two applications under Order VII Rule 11 of Code of Civil Procedure read with Order XII Rule 6 and Order VI Rule 4 of the Code of Civil Procedure, 1908 were filed on behalf of the father of the plaintiff for rejection of the Partition Suit filed by the plaintiff, claiming a share in the property of her father/defendant no.1 by claiming it to be HUF property in which she has a share being a coparcener.
Advocate Mala Goel appeared for the plaintiff and Advocate Ashim Vaccher appeared for Defendants.
The Court observed that the plaint is liable to be rejected as it lacked material particulars and disclosed no cause of action.
“Axiomatically, the entire plaint neither makes any averment in regard to creation of HUF or the properties and assets having been put in the common hotchpotch to HUF. Their best case is of a Joint Family, a concept that is different from HUF. As already discussed above, even if there existed a Joint Family, the plaintiff does not acquire a right in the family properties.”, the Court observed.
The Court noted that the basic premise on which the plaintiff has claimed a right in the properties of her father/defendant no.1 is in the light of amendments to Section 6 of Hindu Succession Act, by virtue of which the daughter by birth has become a coparcener in her own right in the same manner as a son and has a right in the coparcenary property.
The Court observed that the mother who allegedly also is entitled to a share as per averments in the plaint sues on behalf of the daughter but she herself is not a party to the suit.
The Court held that in a suit for partition all the co-owners are the proper and necessary party without whom the suit is liable to be rejected on this ground itself.
The Court further noted that “Indisputably, Major K.C. Kapur had already expired on 29.06.2007 i.e. prior to the birth of the plaintiff on 16.05.2008 which implies that she had not even been conceived at the time of demise of Major K.C. Kapur and the HUF stood dissolved/ partitioned before her birth. Therefore, no HUF existed at the time of her birth of which she can claim herself to be the coparcerner. As already observed, the plaintiff has not asserted any HUF of her father/ defendant no.1 of which she could claim to be the member.”
Thus the Court held that there was no HUF existing at the time of birth of the plaintiff into which she could be born and that the plaintiff has no right to claim a share in her father's properties.
Thus the Court allowed the two applications under Order VII Rule 11 of the CPC and the suit was rejected.
Cause Title- CS(OS) 1353/2009 (Neutral Citation No: 2023/DHC/001605)
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