USHA PASARI Vs SATYA NARAYAN PASARI AND ORS
IA NO. GA/1/2023 In CS/258/2022
Facts:
1. Plaintiff and Defendant No. 1, 5, 9 and 13 are daughter and sons of Late Jaichand Lal Pasari; Defendant No. 2, 6 and 10 are daughters-in-laws of Late Jaichand Lal Pasari whereas Defendant No. 3, 4, 7, 8, 11 and 12 are grand-children of Late Jaichand Lal Pasari. Defendant No. 14 to 18 are the sons and daughters of the deceased daughter of Late Jaichand Lal Pasari since deceased.
2. These businesses as well as the immovable properties were acquired out of joint family fund. Since these properties as well as the companies belong to joint family property and since the Plaintiffs’ rights are denied, the Plaintiff instituted the suit praying for declaration, partition by metes and bounds and other remedies.
3. Plaint is filed by the Defendant No. 9 praying for rejection of plaint.
Issue: Whether the Plaint is maintainable ?
Argument:
Petitioner:
1. Counsel submitted that the plaint does not disclose any coparcenary or any nucleus of joint family. Secondly, the plaint does not disclose that the Plaintiff is the member of any Defendant company. Thirdly, the suit is barred by Companies Act, 2013. All the assets and properties standing in the name of the company herein were registered under the Companies Act, 2013. Fourthly, it is also averred in the application that the suit is barred by Benami Transaction Prohibition Act, 1988.
2. Counsel appearing for the Defendant No. 9 argued firstly that there is no pleading of existence of any Hindu Undivided Family of Late Jaichand Lal Pasari or any other Hindu Undivided Family created by Late Jaichand Lal Pasari. It is well-settled that there is no presumption of joint family business assets and properties.
Defendant:
1. Counsel submitted that pleadings in the plaint are to be considered as sacrosanct; there is not a single ground on the basis of which it can be said that the plaint barred under any law for the time being in force. Secondly, the plaint discloses a cause of action which rules out scope of any demurer application. Thirdly, the Defendants are brothers, their family members of the Plaintiff while the other juristic entities are all companies which were constituted and developed with family fund either by Late Jaichand Lal Pasari or by taking out of family nucleus by the brothers of the Plaintiff.
2. Counsel submitted that while dealing with application under the Order VII Rule 11, the Plaintiff is not called upon to give evidence. Mere existence of pleading is more than enough to sustain the plaint. Bare reading of the plaint clearly discloses that the Plaintiff has filed the suit on the basis of a joint family corpus which is a joint family funds out of which business entities were established and properties both movable and immovable were acquired. Secondly, it is argued that this is a suit for partition. The Company Law Tribunal has no jurisdiction to consider the issue of partition of joint family property.
Decision: Hon’ble HC dismissed the application.
Rationale:
1. It held that the question of existence of nucleus of fund is also a matter of fact to be established in evidence. But at this stage it cannot be said that the suit does not disclose cause of action or barred by Companies’ Act 2013 or Benami Transaction Prohibition Act, 1988. Conclusion at this stage that the suit is barred under the laws, as mentioned above, would be inappropriate.
Order:
