Vineeta Sharma vs. Rakesh Sharma & Ors. AIR 2015 (NOC) 895 (Del)
The
plaintiff had filed a suit for partition against her brothers and
mother in respect of constructed premises. The undisputed facts were
that the suit premises were purchased and constructed by the plaintiff’s
father, wherein he along with his family stayed for some time and also
let out a portion thereof to the tenants. The plaintiff’s case was that
since her father and brother died intestate, she was entitled to
one-fourth share in the suit premises. She stated that whenever she
visited her paternal home, she stayed in the suit premises. The
plaintiff averred that the suit premises were never treated as HUF
property and no Will was ever executed by their father.
The
defendants No. 1 and 2 (sons) contested the suit. Their case was that
the plaintiff being the married daughter, had only restricted rights in
the suit premises and could not seek its partition. They averred that
the plaintiff was also not entitled to any share, as the suit premises
was a HUF property, and was so assessed by the Income Tax Department as
also the Wealth Tax Authorities.
The plaintiff deposed that her
father acquired the suit premises from his own earnings, savings and
loans and had constructed the same in March, 1966, when all the
defendants were studying and they could not have contributed to the
construction expenses.
On the other hand, the defendants stated
that their father had abandoned his individual rights in the suit
premises by making a declaration on affidavit dated 23.05.1966,
submitted by him with the Income Tax Department, and which was accepted
as HUF property vide Assessment Order dated 31.03.1976 for the
Assessment Year 1972- 73. They stated that from the Assessment Year
1972-73 to 1988-90 and until the demise of their father, the premises
had been assessed to Income-tax as well as Wealth-tax, as HUF under the
provisions of Income-tax Act as well as Wealth-tax Act.
The
Hon’ble Court observed that as per the plaintiff, the suit premises was
self-acquired property of their father, whereas as per defendants No. 1
and 2, though, it was the self-acquired property of their father, he had
thrown it in the hotchpot of HUF.
The law relating to blending
of separate property with joint family property is well settled.
Property, separate or self-acquired of a member of a joint Hindu family
may be impressed with the character of joint family property, if it was
voluntarily thrown by the owner into the common stock with the intention
of abandoning his separate claim therein, but to establish such
abandonment a clear intention to waive separate rights must be
established.
The separate property of a Hindu ceases to be
separate property and acquires the characteristics of a joint family or
ancestral property not by any physical mixing with his joint family or
his ancestral property but by his own volition and intention, by his
waiving and surrendering his separate rights in it as a separate
property. The act by which the coparcener throws his separate property
in the common stock is a unilateral act. There is no question of either
the family rejecting or accepting it. By his individual volition, he
renounces his individual right in that property and treats it as a
property of the family. No sooner than he declares his intention to
treat his self-acquired property as that of the joint family property,
the property assumes the character of joint family property. The
doctrine of throwing into the common stock is a doctrine peculiar to the
Mitakshara school of Hindu law.
The Hon’ble Court observed that
from the Assessment Order dated 31.03.1972 of the Assessment Year 1972-
73, it is seen that the plaintiff’s father had declared some income
from the suit premises in the status of HUF. It is also seen therefrom
that the HUF came into existence under the assessee’s declaration made
on 23.05.1966 on an affidavit. The Income Tax record of the subsequent
year upto the Assessment Year 1999-2000 would evidence that the
plaintiff’s father had been filing Income Tax Returns and been assessed
to Income Tax as Karta of HUF. The incomes received from the suit
premises was being declared by the plaintiff’s father as of HUF and was
assessed as such during all these years. The Assessment Order under the
Wealth Tax Act of the years 1977-78 onward would also evidence the suit
premises having been assessed as HUF for the purpose of Wealth Tax. From
all this record, it was concluded that the plaintiff’s father, for all
purposes, had consciously abandoned his individual rights in the suit
premises to HUF with effect from 23.05.1966. The affidavit filed by the
plaintiff’s father with Income Tax Department declaring the suit
premises as HUF on 23.05.1966 was not the solitary step taken by him,
but, he continued to maintain the HUF status of the suit premises till
he died. In view of all this, even the payment of property tax by the
plaintiff’s father in his name and not that of HUF or even for that
matter, filing of eviction case against the tenant Bank of Baroda in his
own name than that of HUF would not make any difference. There is no
dispute that the suit premises was initially acquired by the plaintiff’s
father in his own name and it was in those circumstances that the suit
premises continued to be assessed to property tax in his individual name
rather than that of HUF. The payment of property tax by any means does
not create any right or title in the name of the assessee. Filing an
eviction case by the plaintiff’s father in his own name instead of the
HUF, can also be said to be only for the convenience. In any case, the
partition could only be filed by him in his name, being the Karta of
HUF. Thus it was held that the suit premises was of the HUF property of
the plaintiff’s father, with he being the Karta thereof till his death.
