Delhi District Court
Kapil Kumar And Anr vs Mishro Devi And Anr on 6 September, 2025
IN THE COURT OF SH. PANKAJ ARORA:
DISTRICT JUDGE-16, CENTRAL DISTRICT:
TIS HAZARI COURTS: DELHI
CSDJ no. 15115/2016
CNR No. DLCT01-002238-2014
Sh. Kapil Kumar
s/o Sh. Ashok Kumar & Ors. ..............Plaintiff
Versus
Smt. Mishro Devi (since deceased)
through LRs D-2 to D-5 and
Sh. Prakash Chand (D-6) ...........Defendants
ORDER
1. Vide this order, this court shall proceed to dispose of an application u/o 7 Rule 11 CPC moved on behalf of defendant no. 6.
2. It is submitted on behalf of applicant/ defendant no. 6 that earlier the present applicant/defendant no. 6 had filed an application under Order VII Rule 11 r/w 151 of CPC. The Ld. predecessor of this Court vide its order dt. 21/10/2015 was pleased to dismiss the said application. The applicant/defendant no.6 has assailed the said order by filing a Civil Revision Petition bearing no. 35/2016 before the Hon'ble Delhi High Court. Vide order dated 11/07/2017, the said civil revision petition was dismissed by Hon'ble Mr. Justice Rajiv Sahai Endlaw with the following observations:-
"9. Prima facie it appears that the plaintiffs on the said averments did not disclose any right in the property to maintain the suit for CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........1 of 13 setting aside the earlier decree for partition or for being declared as co- owners/co-sharers of the property. Reference in this regard can be made to series of the judgments in Commissioner of Wealth Tax, Kanpur Vs. Chander Sen (1986) 3 SCC 567 and Yudhishter Vs. Ashok Kumar (1987) 1 SCC 204 by the Supreme Court and thereafter repeatedly by this Court in Master Daljit Singh Vs. S Dara Singh AIR 2000 Delhi 292, Neelam Vs. Sada Ram 2013 SCC OnLine Del 384, Harvinder Singh Chadha Vs. Saran Kaur Chadha 2014 SCCOnLine Del 3413 (DB), Sunny (Minor) Vs. Raj Singh (2015) 225 DLT 211, Mukesh Kumar Vs. Pavitra 2016 SCC OnLine Del 4907 and Surender Kumar Vs. Dhani Ram AIR 2016 Del 120."
3. It is further submitted that the Revision Petition was dismissed with liberty to the applicant /defendant no. 6 to file another application under Order VII Rule 11 of CPC for urging the said and any other ground which may be available and which application shall be decided by the suit court in accordance with law. The applicant/defendant no. 6 has already taken the objections qua the locus standi of the plaintiff to maintain the present suit and lack of cause of action against the applicant/defendant no. 6 in the written statement. The averments in the plaint are general and vague with respect to inheriting ancestral property (Suit property) or having any right, title qua the suit property. The plaintiffs have no right, title or interest qua the suit property in view of the Law laid down by the Hon'ble Supreme Court of India in 'Commissioner of Wealth Tax, Kanpur & Ors Vs Chander Sen and Ors' (1986) 3 SCC 567, wherein it was categorically held that inheritance of ancestral properties after the passing of Hindu Succession Act, 1956 does not result in the property being held as HUF property and that the property inherited after 1956 is inherited as a self-acquired property.
4. It is further submitted on behalf of defendant no. 6 that there is not a single averment in the plaint as to whether any HUF property was created and if so, when was this HUF CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........2 of 13 property came into existence or was created i.e. whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property into a common hotchpotch. It is further submitted that it is nowhere pleaded in the plaint as to when Sh. Kanahiya and Sh. Manohar expired. In the plaint, no date of the death of Sh. Kanahiya, the great grandfather of the plaintiffs, is given. In the plaint even the date of the death of the grandfather of the plaintiffs Sh. Manohar Lal is missing. There is not even a whisper in the pleadings of the plaintiffs, as to the specific date/period/month/year of creation of HUF by Sh. Kahaniya or Sh. Manohar Lal after 1956 throwing properties into common hotchpotch. The ratio and judgments as referred to by the Hon'ble High Court in its order dt. 11/07/2017 are squarely applicable to the facts and circumstances of the case, hence, plaint filed by the plaintiff is liable to be rejected.
5. It is further submitted that it is impermissible for the plaintiffs to claim a share, much less 1/5th share in the suit property during lifetime of their fathers in view of the bar placed in Section 8 of Hindu Succession Act, 1956 13. The plaintiffs have not stated in the entire plaint that the defendants no. 3 and 4 or late Sh. Manohar -grandfather of the plaintiffs was/were holding the suit property as a Karta of an HUF wherein the plaintiffs are/were a coparcener. Hence, the suit property has to be treated as self-acquired property in the hands of defendants no. 3 and 4 and the plaintiffs cannot claim any share therein on the ground that the said property is ancestral in nature. The suit of the plaintiff being not maintainable and barred in view of the above said judgments is a legal plea hence, can be adjudicated and raised at any time. The plaintiffs have no cause of action, hence the present suit is not maintainable in view of the CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........3 of 13 provisions contained under Order VII Rule 11 of the CPC.
6. The application is vehemently opposed on behalf of plaintiffs on the ground that plaintiff nos. 1, 2, 3, 4, 5 & 6 respectively filed the present suit for decree of declaration and permanent injunction against Smt. Mishro Devi, Sh. Partap, Sh. Arjun Kumar, Sh. Ashok Kumar. Smt. Rukmani Devi and Sh. Prakash Chand (hereinafter called defendant no. 1, 2, 3, 4, 5 & 6 respectively) on the ground that the compromise dated 21-08- 2014 arrived at between defendant no. 6 on the one side and defendant no. 1 to 4 on the other side is unlawful to the extent of 1/4th share each of plaintiffs out of 1/5th share of the defendant no. 3 and 4. It is further submitted that the afore-said settlement arrived at by defendant no. 1 to 4 was illegal as consent of defendant no. 5 being the daughter of defendant no. 1 was not taken.
7. The case set up by the plaintiffs is that plaintiff no. 1 to 3 and 4 to 6 are the sons and daughter of defendant no. 4 and 3 respectively and they being the descendant of Late Kanhiya Lal, are co-owner of property no. 8706, Sidhi Pura, Karol Bagh (hereinafter called the suit property). Plaintiffs also alleged that defendant no. 2 to 4 are the sons of defendant no. 1 whereas defendant no. 5 is daughter of defendant no. 1. Plaintiff also alleged that defendant no. 6 claimed himself to be co-owner of suit property being son of Late Budh Ram and he is residing on ground floor of suit property. Further, plaintiffs alleged that sometime in second week of December, 2014, defendant no. 6 informed plaintiff no. 1 that very soon he would demolish the entire building and construct a multi-storey new house and then he would throw them from the suit property. Plaintiff no 1 got shocked and informed his father about the threat of defendant no.
CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........4 of 13 6 to which defendant no. 4 started weeping and informed plaintiff no. 1 about order of court and expressed his helplessness. Then, they made enquiry from defendant no. 3 and 4 and other family members and contacted the counsel who applied for certified copy of decided matter including the final order of the Court and thereafter, they came to know that defendant no. 6 filed a suit bearing no. 271/05 against defendant no. 1 to 4 thereby, claiming 1/2 share in suit property on false ground and without the knowledge of plaintiffs and also deliberately and intentionally concealing the existence of defendant no. 5 knowing fully well that defendant no. 5 is also having share in suit property. Plaintiffs alleged that Ld. Civil Judge passed a judgment and preliminary decree on 27.02.2012 and subsequently, final decree was also passed on 30.10.2012 in favour of parties by giving 1/2 share to defendant no. 6 and 1/2 share to defendant no. 1 to 4 in suit property.
8. Plaintiffs further alleged that defendant no. 2 to 4 filed regular civil appeal bearing no. 10/13 against judgment and final decree dated 30.10.2012 which was dismissed by Ld. ADJ on 19.11.2013. Plaintiffs also alleged that defendant no. 1 also filed a separate appeal against judgment and preliminary decree dated 27.02.2012 and final decree dated 30.10.2012 which was assigned to the Court of Ld. ADJ Sh. J.K. Mishra who fixed the appeal on maintainability for 21.08.2014 and on that day parties to the appeal without any authority vested in them entered into compromise with defendant no. 6 and agreed to sale half share of suit property in term of final decree dated 30.10.2012 for a total sum of Rs. 22.00 lakhs without disclosing the factum of the share of plaintiffs, defendant no. 5 and other legal heirs. The Ld. ADJ Sh. J. K. Mishra recorded the statement of the parties to the CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........5 of 13 appeal and set aside judgment and final decree dated 30.10.2012 and directed to prepare fresh compromise decree vide its order dated 21.08.2014.
9. Plaintiffs alleged that compromise so arrived by defendant no. 1 to 4 and 6 is not a lawful compromise as parties to appeal concealed the material fact from the court and played fraud upon the plaintiffs and other legal heirs just to deprive them of their legitimate right, interest and share in suit property which have been accrued as per law of succession. Accordingly, plaintiffs filed suit for declaration declaring compromise decree dated 21.08.2014 as null and void and further declaring them to be the co-owner in possession of suit property to the extent of 1/4th share each out of 1/5 share of defendant no. 3 and 4 and further for injunction restraining defendant no. 6 not to dispossess them from suit property under the garb of compromise decree dated 21.08.2014.
10. Summons for settlement of issues were served upon all the defendants. Defendant no. 1 and 2 filed their common written statement whereas defendant no. 4 and 5 filed their separate written statement. However defendant no. 3 and 4 have not filed written statement in spite of several opportunities.
11. Defendant no. 1 and 2 in their written statement alleged that defendant no. 1 to 4 are descendant of Late Sh. Kanhiya Lal, the actual owner of suit property. They came to know from their ancestors that Late Sh. Kanhiya Lal took loan of some amount and mortgaged the suit property to the creditor. Later on, the said loan was redeemed by Sh. Budh Ram @ Budha, real younger brother of Late Sh. Kanhiya Lal and therefore, the name of Sh. Budh Ram was mentioned in redemption deed instead of Sh. Kanhiya Lal. The defendant no. 6 CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........6 of 13 is the only son of Sh. Budh Ram, who died leaving him as infant. The mother of defendant no. 6 was also expired so, defendant no.1 and her husband has brought up defendant no. 6 as his own child and after some time, defendant no. 6 claimed that suit property is joint property on the basis of redemption deed and instituted a suit for partition. Defendant no. 1 and 2 also stated that they wanted to maintain good relation in family and accordingly defendant no. 1 and 2 compromised in appeal pending in the court of Ld. ADJ along with other defendants. Defendant no. 1 & 2 admitted that they have entered into compromise on 21.08.2014 in the Court of Ld. ADJ. Sh. J. K. Mishra and did honour the compromise and therefore, plaintiff has no cause of action to file the instant suit. Accordingly defendant no. 1 & 2 prayed for dismissal of suit with cost.
12. Defendant no. 5 in her written statement stated that suit against her is without any merit and without any relief as she has impleaded only as a proforma party.
13. Defendant no. 6 in his written statement stated that plaintiffs have no locus standi to file the suit as they being son and daughter of defendant no. 3 and 4 have been properly and effectively represented by their father i.e. defendant no. 3 & 4 so the outcome of the suit bearing no. 271/05 qua compromise decree dated 21.08.2014 is binding upon them. He further stated that suit filed by plaintiff is barred U/O 23 Rule 3A CPC. He further stated that suit is collusive being filed by plaintiffs with active connivance of defendant no. 1 to 5. On merits, defendant no. 6 denied that he informed plaintiff no. 1 that very soon he would demolish the entire building of suit property and construct a multi-storey new house. Accordingly, defendant no. 6 prayed for dismissal of the suit with cost.
CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........7 of 13
14. During the pendency of the suit, vide order dated 06- 09-2016, the defence of defendant no. 3 and 4 was struck off as they have not filed their written statement despite the directions of the court. Vide order dated 22-11-2016, defendant no. 5 was proceeded ex-parte as nobody appeared on her behalf on that date as well as on the preceding dates.
15. I have heard the arguments of Ld. Counsel for the plaintiffs and defendants no. 1, 2, 5 & 6 and perused the material placed on record as well as the case law referred by Ld. Counsel for the parties during course of arguments.
16. In support of their arguments, Ld. Counsel for plaintiffs has relied upon the citation of Smt. Badami (deceased) by her LR Vs. Bhali, AIR 2012 SC 2858. The Ld. Counsel for defendant no. 6 has relied upon the following citations:-
(1) Commissioner of Wealth Tax, Kanpur Vs. Chander Sen etc, AIR 1986, SC 1753;
(2) Yudhister Vs. Ashok Kumar, AIR 1987 SC 558; (3) Neelam & Anr. Vs. Sada Ram & Ors., CS (OS) no. 823/2010 (4) S. Harvinder Singh Chadha Vs. S. Ujagar Singh Chadha & Ors. 2014 SCC online Delhi 3413;
(5) Sunny (minor) & Anr. Vs. Raj Singh & Ors. (2015) 225 DLT 211;
(6) Mukesh Kumar & Anr. Vs. Smt. Pavitra & Anr., 2016 SCC online Delhi 4907;
(7) Surender Kumar Vs. Dhani Ram & Ors., AIR 2016 DEL 120; and (8) Triloki Nath Singh Vs. Anirudh Singh, 2020 SCC Online SC
444.
17. Perusal of plaint reveals that the plaintiffs have filed the present suit inter-alia seeking a decree that a compromise CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........8 of 13 dated 21-08-2014 between defendant no. 1 and 4 on one side and defendant no. 6 is null and void which was arrived at in connection with the suit property. They are asserting their birth rights in the suit property on the premise that suit property in the hands of their ancestor Sh. Manohar Lal is a coparcenary property as per the law of inheritance/ succession. They are seeking nullity of compromise dated 21-08-2014 on two grounds:-
(1) The said compromise was arrived at without the consent of defendant no. 5, who is daughter of late Sh. Manohar Lal (2) That the said compromise was arrived at without seeking consent of the plaintiffs.
18. As far as ground no. 1 is concerned, in the opinion of this court, it is only for the defendant no. 5 to come forward and challenge the compromise dated 21-08-2014. The plaintiffs herein are neither Class I heir of defendant no. 5 as per Hindu Succession Act, 1956 nor they are deriving title in the suit property from the defendant no. 5 in any manner. It is not in dispute that the compromise dated 21-08-2014 is an agreement enforceable by law made by the parties competent to contract, for a lawful consideration and with a lawful object. Thus, compromise dated 21-08-2014 can only be challenged by defendant no. 5 by virtue of Section 19 of Indian Contract Act. Section 19 of Indian Contract Act reads as under:-
19. Voidability of agreements without free consent When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true.
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19. Thus, in the opinion of this court, the plaintiffs have no right to challenge the compromise dated 21-08-2014 merely on the ground that it was passed without taking into consideration the interest of defendant no. 5 in the suit property being the legal heir of late Sh. Manohar Lal. It is not out of place to mention here that defendant no. 5 had already been proceeded ex-parte vide order dated 22-11-2016 and thus, she is not asserting her right in the suit property on the ground of her being legal heir of late Sh. Manohar Lal.
20. As far as ground no. 2 is concerned, it is observed that nowhere in the plaint it is revealed as to when the predecessor in interest of suit property i.e. late Sh. Manohar Lal, who is father of defendant no. 2 to 5 and husband of defendant no. 1 had passed away. Nor it is mentioned as to when father of late Sh. Manohar Lal namely late Sh. Kanhaiya Lal had passed away. Nor it is the case of the plaintiffs that the suit property is an HUF (Hindu Undivided Family) property in the hands of late Sh. Manohar Lal as there is no mention of creation of any HUF. Nor it is the case of the plaintiffs that late Sh. Manohar Lal had thrown the suit property in a common hotchpotch whereby it became joint Hindu family property.
21. It has been held by the Hon'ble High Court in case titled as Sunny (Minor) & Anr. Vs. Raj Singh & Ors. bearing CS (OS) No. 431/2006 decided on 17.11.2015 that, "(i) As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latter's paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person 'A' inherited property from his father or CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........10 of 13 grandfather or great grandfather then the property in his hand was not to be treated as a self-acquired property but was to be treated as an HUF property in which his son, grandson and great grandson had a right equal to 'A'. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in-interest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self- acquired property but an HUF property is if after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
(ii) This position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant no.1 being 'ancestral' properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created i.e. whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter."
22. Vide order dated 11-07-2017 of Hon'ble High Court of Delhi in civil revision petition bearing no. 35/16, the Hon'ble High Court too was of the view that prima facie averments in the plaint did not disclose any right of the plaintiffs in the suit property to maintain the suit for setting aside the earlier decree for partition or for being declared co-owners/ co-sharers of the property. Similar view was expressed in the following authorities:-
(1) Commissioner of Wealth Tax, Kanpur Vs. Chander Sen etc, CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........11 of 13 AIR 1986, SC 1753;
(2) Yudhister Vs. Ashok Kumar, AIR 1987 SC 558; (3) Neelam & Anr. Vs. Sada Ram & Ors., CS (OS) no. 823/2010 (4) S. Harvinder Singh Chadha Vs. S. Ujagar Singh Chadha & Ors. 2014 SCC online Delhi 3413;
(5) Sunny (minor) & Anr. Vs. Raj Singh & Ors. (2015) 225 DLT 211;
(6) Mukesh Kumar & Anr. Vs. Smt. Pavitra & Anr., 2016 SCC online Delhi 4907;
(7) Surender Kumar Vs. Dhani Ram & Ors., AIR 2016 DEL 120; and (8) Triloki Nath Singh Vs. Anirudh Singh, 2020 SCC Online SC
444.
23. Thus, in the opinion of this court, the plaintiff has failed to show that the suit property in the hands of late Sh. Manohar Lal was an HUF property, of which the plaintiffs are the co-coparceners.
24. In the opinion of this court, the plaint filed by the plaintiff does not even discloses the cause of action. It is pertinent to mention here that it has been held by Hon'ble Supreme Court of India in the case of Church of North India Vs. Lavajibhai Ratanjibhai, AIR 2005 SC 2544 (2555) that, "when the plain read as a whole does not disclose material facts giving rise to a cause of action, which can be entertained by a Civil Court, it may be rejected in terms of Order 7 Rule 11 of CPC."
25. The citation of Smt. Badami (deceased) by her LR Vs. Bhali, AIR 2012 SC 2858 being relied upon on behalf of the plaintiffs is not found to be applicable in view of peculiar facts of the present case. The plaintiffs have failed to show to the satisfaction of this court as to when HUF in connection with the CSDJ No. 15115/16 Kapil Kumar Vs. Mishro Devi Page no..........12 of 13 suit property was created. Thus, the share of suit property inherited by late Sh. Manohar Lal has to be treated as self- acquired and the plaintiffs have no right, title or interest in the suit property as long as their parents i.e. defendant no. 3 and 4 are alive as per the Hindu Succession Act, 1956. As per Section 8 of Hindu Succession Act, 1956, the son's/daughter's son/daughter gets excluded and the son/daughter alone inherits the property to the exclusion of his son/daughter. It is not the case of the plaintiffs that they were alive at the time of death of their ancestors namely Late Sh. Manohar Lal. Accordingly, the plaint filed by the plaintiffs is hereby rejected being devoid of cause of action. The application u/o 7 Rule 11 of CPC moved on behalf of defendant no. 6 is allowed. Since the plaint of the plaintiff is rejected, the pending applications u/o 22 Rule 4 of CPC moved on behalf of plaintiffs is hereby dismissed being infructuous. Parties to bear their own cost. File be consigned to Record Room.
Announced in the open Court
on 06-09-2025 PANKAJ Digitally signed by
PANKAJ ARORA
ARORA 16:29:50 +0530
Date: 2025.09.08
(PANKAJ ARORA)
DISTRICT JUDGE-16/ CENTRAL:
TIS HAZARI COURT:DELHI/ 06-09-2025
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