The Long-Con: Hindu Undivided Family,

broken and bereaved.

A case law analysis of ILARIA KAPOOR V. RAKESH KAPOOR

BRIEF:
Citation: 2023 SCC ONLINE DEL 1304; 2023 DHC 1605; 2023/DHC/001605.

1. The plaintiff, represented by Ms Sapna Kapur, her mother, has filed a Suit for
Partition against the defendants. It is contended that all parties formed a joint family,
known as Hindu Undivided Family (HUF), under Mitakshara law. The suit properties
in question are claimed to be joint family properties owned by the HUF of late Major
K.C. Kapur, which includes defendant Nos. 1, 2, and 3.
2. In contrast, the defendants assert that the suit properties are not joint family properties
and do not belong to the HUF. They argue that the plaintiff’s grandfather died
intestate, further complicating the matter.
3. The Hindu Succession Act of 1956, specifically Section 6, provides an exception for
coparcenary property. However, the presence of Class I female heirs removes this
exception. It is important to note that Section 6(3) of the Hindu Succession Act in
2005 has significantly altered the laws of inheritance.
4. As a coparcener, the plaintiff asserts her entitlement to claim partition in the suit
properties. However, it must be highlighted that the plaint lacks necessary details of
the cause of action and material particulars, rendering it susceptible to rejection.
5. The defendants face accusations of intentionally delaying the suit to deprive the
plaintiff of her rightful share. These allegations further complicate the proceedings,
suggesting a deliberate attempt to hinder the plaintiff’s claim.
6. The plaintiff contends that the properties in question belonged to the joint family and,
as a coparcener, she is entitled to a share. On the other hand, defendant No. 3 argues
that while a Hindu female may be a member of a joint family, she does not possess
the status of a coparcener, thus challenging the plaintiff’s claim.
7. The application for rejection of the suit is grounded in the dissolution of the alleged
HUF following the demise of Major K.C. Kapoor. The plaintiff, unfortunately, fails to
 provide sufficient evidence substantiating the existence of an HUF and its properties,
casting doubt on the veracity of her claims.
8. Consequently, the plaintiff’s claim for a share in the alleged HUF properties appears
to be mis-founded, as it lacks substantial evidence and fails to establish a solid legal
basis.
9. Based on the lack of a cause of action, the suit is rejected. As a result, the present Suit,
along with any pending applications, was dismissed.
ANALYSIS OF CASE LAWS USED
Table of Cases:
CASE LAW
COMMISSIONER OF INCOME TAX, KANPUR V. The express words of Section 8 of the Hindu
CHANDER SEN (1986) 3 SCC 567
CONTROLLER OF ESTATE DUTY, MADRAS V. The Supreme Court held that a Hindu
ALLADI KUPPUSWAMY (1977) 3 SCC 385
RATIO DECIDENDI
Succession Act, 1956 cannot be ignored and
must prevail. The property which devolved on a
Hindu on the death of his father intestate after
the coming into force of the Hindu Succession
Act, 1956, did not constitute HUF property
consisting of his branch including his sons. The
High Court believed it would not be consistent
with the spirit and object of the enactment to
strain provisions of the Act to accord with the
prior notions and concepts of Hindu law.
coparcenary under the Mitakshara school
consists of males alone and it includes only
those members who acquire by birth or adoption
interest in the coparcenary property. The Act of
1937 introduced broad and important changes
by bettering the rights of a Hindu widow and
conferring on her the same interest as possessed
by her husband. Section 3(2) of the Act of 1937
further conferred on the widow the right to
demand partition and on partition she was
entitled to get the same share as her husband.
The interest conferred on a Hindu widow arose
by statutory substitution and the Act of 1937
introduced changes which were so far alien to
the structure of a Hindu coparcenary. It must
follow as a logical corollary that though a Hindu
widow cannot be a coparcener, she has
coparcenary interest, and she is also a member
of the coparcenary under the rights conferred on
her under the Act of 1937.
GOWLI BUDDANA V. COMMISSIONER OF Under Section 3 of the Income Tax Act, a Hindu
INCOME TAX, MYSORE AIR 1966 SC 1523 undivided family is considered as one of the
assessable entities, not a Hindu coparcenary.

The argument that a Hindu undivided family

must have at least two male members to be a
taxable entity is not valid. The term "Hindu
undivided family" in the Income Tax Act is
understood in the same sense as a Hindu joint
family under personal Hindu law. A joint family
can consist of a single male member and
widows of deceased male members. The Income
Tax Act does not require a Hindu undivided
family to have at least two male members.

The Schedule of the Act sets out the limits of

exempted income but does not specify that a
Hindu undivided family must have at least two
members entitled to claim partition.

[However, no opinion was expressed on

M. ARUMUGAM V. AMMANIAMMAL 2020 SCC The Court further held that the partition must be
ONLINE SC 15
PRAKASH V. PHULAVATI (2016) 2 SCC 36
whether a Hindu undivided family consisting of
a single member, male or female, can be treated
as a taxable entity under the Indian Income Tax
Act.]
treated and accepted as a concrete reality,
something that cannot be recalled at a later
stage.
This Court held that the Succession Act
supersedes all Mitakshara laws.
The amendment to the Hindu Succession Act,
1956 applies to pending proceedings even if it is
taken to be prospective. The liability in terms of
the amended provisions operates and the
exception available under sub-section (5) to
Section 6 cannot be called in aid by the
 defendants.
Interpretation of a provision depends on the text,
context, and purpose. The Act indisputably
would prevail over the old Hindu law. All that is
required is that the daughter should be alive, and
her father should also be alive on the date of the
amendment.
PRAKASHWATI V. BHAGWATI DEVI 2012 SCC Under traditional Hindu Law, if any male
ONLINE DEL 4477 member of a family inherited any property from
any of his three immediate paternal ancestors,
the properties in his hands were HUF properties.
After the passing of the Hindu Succession Act,
in 1956, this position has however ceased. After
the passing of the Hindu Succession Act, in
1956, if a male member receives any property
from any of the three immediate ancestors, he
receives the property as a self-acquired property
and not as a HUF property.
SUNNY (MINOR) V. RAJ SINGH (2015) 225 DLT It has been observed in [1986] 161 ITR 370
211 (SC) that under the Hindu Law, the moment a
son is born, he gets a share in the father’s
property and becomes part of the coparcenary.
This position has been affected by Section 8 of
the Hindu Succession Act, 1956 and, therefore,
after the Act, when the son inherited the
property in the situation contemplated by
Section 8, he does not take it as Karta of his
own undivided family but takes it in his
capacity.
SURENDER KUMAR KHURANA V. TILAK RAJ The court concluded that the plaint only talks of
KHURANA (2016) 155 DRJ 71 ‘joint funds’, ‘joint properties’ and ‘working
together’ without the necessary legal ingredients
averred to make a complete existence of a cause
of action of joint Hindu family/HUF with its
properties and businesses.
SURENDER KUMAR V. DHANI RAM 2016 AIR It is not enough to say, in the plaint simply that
DEL 120 a joint Hindu family or HUF exists. Such a bald

SURJIT LAL CHHABRA V. COMMISSIONER OF The expression “Hindu undivided family” finds
INCOME TAX, BOMBAY (1976) 2 SCR 164
UTTAM V. SAUBHAG SINGH (2016) 4 SCC 68
VINEETA SHARMA V. RAKESH SHARMA AIR The contention of the respondents that the
2020 SC 3717
averment cannot create a HUF unless it was
pleaded that the late Sh. Jage Ram inherited the
properties from his paternal ancestors before
1956 or that late Sh. Jage Ram created a HUF
by throwing his properties into a common
hotchpotch. These essential averments are
completely missing in the plaint and therefore
making a casual statement of the existence of a
HUF does not mean the necessary factual cause
of action, as required in law, is pleaded in the
plaint of the existence of a HUF and of its
properties.
reference in provisions of the Income Tax Act,
but that expression is not defined in the Act. The
presumption, therefore, is that the members of a
Hindu family are living in a state of union
unless the contrary is established. The normal
state of every Hindu family is joint and in the
absence of proof of division, such is the legal
presumption. Under the Income Tax Act, a
Hindu undivided family, not a coparcenary, is a
taxable unit. A joint Hindu family consists of
persons lineally descended from a common
ancestor and includes their wives and unmarried
daughters. The wife and unmarried daughter are
members of his family.
Section 8 of the Hindu Succession Act, 1956
governs the devolution of property in case of
intestate succession. The express words of
Section 8 of the Hindu Succession Act, 1956
cannot be ignored and must prevail.
amendment should be read as retrospective,
being a piece of social legislation, cannot be
accepted.
 It was laid down that by the change of law, the
share of the daughter can be enlarged even after
passing a preliminary decree, and the effect can
be given to in final decree proceedings.
YUDHISTER V. ASHOK KUMAR (1987) 1 SCC After the Hindu Succession Act, when the son
204 inherited the property in the situation
contemplated by Section 8, he does not take it as
Karta of his own undivided family but takes it in
his capacity.
DISCUSSION OF THE RATIO OF THE CASE

The plaint was dismissed by the Delhi HC on the following grounds:

 The plaintiff has no right to claim a share in the properties of her father during his
lifetime. Therefore, the plaint does not disclose any cause of action for partition.1

We look to the averments of the plaintiffs and analyse their claim to the share in the property
of Rakesh Kapoor.

Rakesh Kapoor and Sapna Kapoor were a married couple but are now estranged, and the suit
rises from the 14-month-old minor daughter of the couple, Ilaria Kapoor, through her mother.

The Court, here, notes in para 56 of the judgment:

Before concluding, this court is compelled to observe 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. It is only hoped that better sense would prevail upon
both the parties to concentrate on real disputes and find mutually acceptable
solutions rather than finding solutions by waging battles in the court. May they cease
these arm twisting tactics and move for harmonious solutions.

Simply put, the courts are reluctant to turn courtrooms into arenas where families can have
their spats. There are many soap operas and movies where we see a courtroom scene or two
where a family dispute turns into a legal conflict that is mediated by legal systems.

At the same time, this is not the ratio of the judgment, and nor is there any reason to believe
that the plaint was dismissed for a lack of merit to the plaintiffs’ arguments. Rather, filing for
partition of suit requires certain elements to exist – primarily, the right to demand partition.

Under Hindu Mitakshara Law, we note that only ancestral property owned jointly by the
Hindu Joint Family shall enjoin the right to demand partition to the remaining family
members, who are called coparcenaries. In §306 of page 498 in Mulla’s Hindu Law, it is

1
ILARIA KAPOOR V. RAKESH KAPOOR 2023 DHC 1605.
noted that “every adult coparcener is entitled to sue and demand for partition [of the
coparcenary property] at any time.”2

In essence, the court here held that there was no case to be made out in favour of the plaintiffs
that the property in question was ancestral property OR that it was part of the joint property
of the HUF comprising of the Defendants, prior to the passing of Rakesh Kapoor’s father,
Maj. Kapoor.

It is pertinent to note that the court has applied the cases within the pleadings effectively to
delineate the concept of HUF jointly owned property and the rights of partition arising from
that and Hindu Mitakshara injunctions regarding intestate succession. Furthermore, as the
court notes in para 32, there is no assertion of the creation or prima facie existence of a HUF.
Furthermore, the court attempts to point out that a Hindu Joint Family is different from a
HUF.

The courts, since 1987, have been of the opinion that the specific facts must be laid out
proving that the HUF was formed and constituted before the passing of the 1956 Act. 3 In a
sense, this would mean that even if there is no strict definition of HUF exists within the
Income Tax Act, the Benami Transactions Act, the Hindu Succession Act, or any other
statute in force for the time being, and considering the oblique claim that a HUF is different
from a Hindu Joint Family, we can point to the existence of a HUF from the facts averred by
the parties regarding the existence of the same.

If the plaintiff could make out a case for the actual and indisputable existence of a HUF, it
would have conferred the plaintiff a right to demand partition as if it were an ancestral
property.

2
DINSHAH FARDUNJI MULLA, MULLA HINDU LAW: WITH A GENERAL INTRODUCTION TO HINDU LAW AND WITH
COMMENTARIES ON THE HINDU MARRIAGE ACT, 1955, THE HINDU SUCCESSION ACT, 1956, THE HINDU
MINORITY & GUARDIANSHIP ACT, 1956, THE HINDU ADOPTIONS & MAINTENANCE ACT, 1956 (2021).
3
SURENDER KUMAR V. DHANI RAM 2016 AIR DEL 120
CONCLUSION AND IMPLICATIONS
In conclusion, this legal dispute revolves around the ownership of joint family properties and
the rights of coparceners. The rejection of the suit emphasizes the importance of providing
substantial evidence and presenting a clear cause of action. It is crucial for parties to establish
their entitlements under the applicable laws and ensure the necessary particulars are included
in their pleadings. In its judgment, the court expressed its concern about the use of proxy
litigation by a wife in the name of the daughter, emphasizing that such practices do not
facilitate peaceful dispute resolution but instead increase acrimony and bitterness, with the
children being the worst affected. The court urged the parties to focus on resolving their real
disputes and finding mutually acceptable solutions, rather than engaging in battles in the
courtroom.

It is important to note that the court’s reluctance to entertain family disputes in courtrooms
does not imply a lack of merit to the plaintiff’s arguments. Rather, the dismissal of the plaint
was based on the requirement for certain elements to be present in a partition suit, primarily
the right to demand partition.