Delhi District Court
Smt. Gulshan Kaur vs Sh. Bagel Singh on 17 August, 2022
IN THE COURT OF MS NEHA GARG, LD. CIVIL JUDGE-01, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CNR No:-DLCT03-000197-2007
CS SCJ No.596594/2016
Smt. Gulshan Kaur
W/o Sh. S.M. Singh
R/o 7A, (MIG), DDA Flats,
Katwaria Sarai,
New Delhi. .............. Plaintiff
Versus
1. Sh. Bagel Singh
S/o Sh. Mehar Singh
2. Sh. Kulwant Singh
S/o Sh. Bagel Singh
3. Sh. Ravinder Singh
S/o Sh. Bagel Singh
All residents of
House No.10725, Andha Mughal
Gali No.12, Pratap Nagar,
Delhi.
4. Mrs. Sital Kaur Sijher,
W/o Sh. Gurbax Singh,
R/o 522, Calgro Ave,
San Jose California(USA), 95123.
..........Defendants
Date of institution of suit : 18.05.2007
Date on which reserved for judgment : 12.07.2022
Date of pronouncement of Judgment : 17.08.2022
CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 1 of 18
SUIT FOR PARTITION AND PERMANENT INJUNCTION
JUDGMENT
1. The present suit has been filed for Partition and Permanent Injunction. The brief facts of the case are that the plaintiff is the daughter of defendant no.1 and the sister of defendants no.2 and 3 and that she was married to Sh. S.M. Singh on 13.04.1986 as per Sikh Rites and Customs and out of this wedlock, two children were born. That the family consists of father, two sons i.e., defendants no.2 and 3 and two daughters i.e., Smt. Sheetal Kaur/defendant no.4 who is staying abroad and plaintiff. That the forefather of plaintiff migrated from Pakistan at the time of partition and a plot No. 10725, Andha Mughal, Pratap Nagar, Delhi (herein after referred to as 'the suit property') was allotted in the name of grandfather of the plaintiff. That a house was constructed at the said plot by grandfather only and marriage was also performed at the said house. That after the death of the grandfather, the house bearing No. 10725, measuring about 130sq. yards situated at Andha Mughal, Pratap Nagar, Delhi is in the possession of the defendant. That plaintiff was not given her share from the suit property for which she is legally entitled. That without intimating and obtaining the consent of the plaintiff the defendants started demolishing the house in order to reconstruct the same. That the plaintiff came to know when she suddenly visited the premises and the defendants were trying to demolish the original structure of the house. That again on 15.04.2007 the plaintiff visited the premises and found that some construction work is in progress at the suit premises. That the plaintiff met the defendants no.1,2 and 3 and raised the objection for removing the structure without her knowledge CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 2 of 18 and consent. That the plaintiff demanded her share out of the suit property. That the defendants misbehaved with her and told that she is not entitled to the suit property. That the plaintiff served them a legal notice dated 21.04.2007 which was duly received by defendants no.2 and 3. That the notice to defendant no.1 came back undelivered. That the said legal notice was duly replied by defendants no.2 and 3. That the defendants never contacted the plaintiff in order to settle the dispute. That the plaintiff is entitled to 1/5th share of the suit property and in case the partition is not possible by metes bonds, the suit property be valued and plaintiff be given her share accordingly. Hence, the present suit.
2. Summons of the suit were issued to the defendants by the Ld. Predecessor of this court upon which the defendants had put their appearance through their Counsels and thereafter the matter was listed for filing of Written Statements on behalf of defendants.
Defendant no.4 was deemed to be served through publication, however, despite that none appeared on behalf of defendant no.4 and the defendant no.4 was proceeded exparte vide order dated 24.08.2013.
3. It is pertinent to mention here that though plaintiff had moved application u/O 1 Rule 10 CPC for deletion of name of Defendant No.1 from array of parties as defendant No.1 had passed away, however, there is no formal order allowing application u/O 1 Rule 10 CPC. It is also pertinent to mention here that plaintiff had moved another application u/O 22 Rule 4 CPC for impleadment of LRs of deceased defendant No.2. Again there is no order for impleadment of LRs of deceased defendant No.2 on record. Furthermore, vide order dated 12.03.2014, defence of defendant No.2/his LRs and defendant No.3 was struck off.
CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 3 of 18Evidence:-
4. Thereafter the matter was listed for recording of plaintiff's evidence. In order to prove her case, the plaintiff has got herself examined as PW-1. PW-1 tendered her evidence by way of affidavit Ex.PW1/A and relied upon the following documents:-
Ex.PW1/1 : Site plan.
Mark X : Certified copy of ration card.
Mark B : Certified copy of the affidavit of Sh. Bagel Singh dated
19.11.1986.
Mark C : Certified copy of Indemnity Bond dated 19.11.1986 duly
registered with Sub Registrar with registration No. 22319 in Addl. Book No. IV, Volume No. 1223 at pages 82,83.
Mark D : Certified copy of letter dated 11.12.1986.
Mark E : Certified copy of letter No. D/45/84/L&L/87 dated
16.04.1987.
Mark F : Provisional demand notice issued by DDA, Slum Wing
dated 23.12.1986.
Mark G : Certified copy of Perpetual Lease Deed dated
12.05.1987(10pages).
Mark H(colly): Photographs and specimen signatures of Bhagel Singh
dully attested by Notary public.
Mark A : Copy of my election voter ID.
Mark I : Certified copy of undertaking executed by late Bhagel
Singh on 25.07.2006.
CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 4 of 18
Mark J : Certified copy of Affidavit of Sh. Bhagel Singh dated
25.07.2006.
Mark K : Certified copy of Indemnity Bond dated 25.04.2006.
Mark L : Certified copy of application moved by Sh. Bhagel Singh
to the Assistant Director Housing/Allot/LL/dated
28.11.2006.
Mark M : Certified copy of letter of conversation dated 20.12.2006
issued by MCD, Slum & JJ to Sh. Bhagel Singh.
Mark N : Certified copy of letter dated 28.09.2010 issued by
Deputy Director (L&L), MCD, Slum Wing.
(Document is not on record)
Mark O : Certified copy of letter regarding stamping of
Conveyance Deed dated 16.01.2007 issued by Deputy
Director, Slum Wing, MCD.
Mark P : Certified copy of letter dated 28.07.2006 regarding
submission of undertaking and challan.
Mark Q : Certified copy of Conveyance Deed allottee dated
23.03.2007 between the Slum and JJ department, MCD
and Bhagel Singh dated 23.03.2007.
Mark R : Third copy of HSS Credit Voucher along with the fourth
copy.
Ex.PW1/20 : Legal notice dated 21.04.2007.
Mark S : Courier receipt
Ex.PW1/22 : Reply from the defendant Ravinder Singh and Kulwant
Singh.
PW-1 was duly cross examined.
CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 5 of 18
Sh. Satpal Singh Yadav, Head Clerk, DUSIB was examined as PW-2. PW-2 proved on record the entire file in respect of property bearing No. 10725, Pratap Nagar, Andha Mughal, Delhi-7 and exhibited the copy of the same on record as Ex.PW2/1(colly) (containing 103 pages).
Thereafter the PE was closed on 14.12.2021 vide separate statement of plaintiff. As the defence of defendants had been struck off, therefore the matter was fixed for final arguments
5. Final Arguments were heard at length and I have carefully perused the record of the case including the citations relied on by plaintiff.
6. Ld. Counsel for plaintiff has argued that the suit property is the ancestral property of the plaintiff as the same was allotted to her grandfather Sh. Mehar Singh in the year 1947 in lieu of the properties left behind the family in Pakistan during partition. Ld. Counsel for plaintiff has argued that the grandfather of the plaintiff Sh. Mehar Singh had paid monthly premium against the said allotment and had also applied for seeking liquidation of the suit property in his favour. That the grandfather of the plaintiff constructed house on the suit property. Plaintiff has examined Head Clerk from Delhi Urban Shelter Improvement Board (DUSIB) as PW-2. PW-2 was a summoned witness who has filed on record the entire file in respect of property bearing No. 10725, Pratap Nagar, Andha Mughal, Delhi-7 as Ex.PW2/1. Ld. Counsel for plaintiff has argued that it is evident from the entire record maintained by DUSIB which is now Ex.PW2/1 that the suit property was initially allotted in the name of Sh. Mehar Singh. That page no.102 and 103 of documents Ex.PW2/1 is a letter written by the Asst. Director (L&L) D.D.A. (Slum & JJ) which clearly shows that Sh. Mehar Singh had applied for the liquidation of CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 6 of 18 the suit property which was allotted to him. Ld. Counsel for plaintiff has further argued that though the suit property was originally allotted in the name of Sh. Mehar Singh on 01.12.1947, that however, a Perpetual Lease Deed dated 22.05.1987 in respect of the suit property had been executed by the President of India in favour of defendant no.1/Bhagel Singh. That the Perpetual Lease Deed dated 22.05.1987 itself provides that the lessee is entitled to hold the suit property in perpetuity computed from 01.12.1947, which clearly reflects that any subsequent conveyance in the name of defendant no.1 was in furtherance of the initial allotment made in the name of Sh. Mehar Singh. Ld. Counsel has further argued that defendant no.1 has got a Conveyance Deed dated 23.03.2007 executed in his favour from the Slum and JJ Department, Municipal Corporation of Delhi by falsely stating before the Slum and JJ Department on affidavit that he is the only legal heir of deceased Mehar Singh. That though, the Perpetual Lease Deed dated 22.05.1987 and the Conveyance deed dated 23.03.2007 have been executed exclusively in the name of defendant no.1, however, the suit property is the ancestral property of the plaintiff and plaintiff being the coparcener in the suit property is entitled to 1/5th share by virtue of section 6 of the Hindu Succession Act, 1956. Ld. Counsel for plaintiff has relied on the following citations in support of her arguments:-
a) Surender Kumar Khurana Vs Tilak Raj Khurana & Ors. 2016 (227) DLT 217
b) Chief Settlement Commissioner Rehabilitation Department Punjab Vs Om Prakash & Ors. (1975) SC 7856 (7).
c) Vineeta Sharma Vs Rakesh Sharma dated 11.8.2020 passed in Civil Appeal Diary No.32601 of 2018
d) Pushpalata N.V Vs V Padma AIR 2010 Kar 124.CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 7 of 18
e) Mihan Vs Inder AIR 2008 P & H 200 FB
f) Kantibhai Ishwarbhai Patel Vs Chandrakant Ishwarbhaio Patel, 2006 AIC 585 (Guj).
7. It is clear from the documents Ex. PW-2/1 (colly) that the initial allotment of the suit property was in favour of Sh. Mehar Singh and that subsequently a Perpetual Lease Deed dated 22.05.1987 (at page 37 of documents Ex.PW-2/1 (colly)) and Conveyance Deed dated 23.03.2007 (at page 58 of documents Ex.PW- 2/1 (colly)) been executed in favour of defendant no.1. It is a case of plaintiff that the initial allotment in the name of Sh. Mehar Singh on 01.12.1947 by Municipal Corporation of Delhi, Slum and Housing Department was made under Displaced Person's (Compensation and Rehabilitation) Act, 1954 and that the same was in lieu of the properties left by the forefather of the plaintiff in Pakistan during partition. Firstly, the averment that the suit property was allotted to Sh. Mehar Singh in lieu of the properties left by the forefathers of the plaintiff in Pakistan finds no mention either in the plaint or affidavit of evidence of plaintiff/PW-1. What is mentioned in the plaint is that the forefathers of the plaintiff migrated from Pakistan at the time of partition and the suit property was allotted to the grandfather of the plaintiff. It is nowhere the averment of the plaintiff in her plaint that the suit property was allotted to her grandfather in lieu of the ancestral properties left by her forefathers in Pakistan. The plea that the suit property was allotted to her grandfather in lieu of the property(s) left by her forefathers in Pakistan was introduced for the first time during the course of final arguments. Even otherwise, there is nothing on record to prove that the suit property was allotted to Sh. Mehar Singh in lieu of the ancestral property left by him in Pakistan.
CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 8 of 18Plaintiff has not filed on record any proof to show that Sh. Mehar Singh or the forefathers of the plaintiff had any property in Pakistan which was ancestral property of the family of the plaintiff. Perusal of the entire plaint and affidavit of plaintiff / PW-1 do not reflect any mention of the details of the ancestral property allegedly left behind by the forefathers of the plaintiff in Pakistan. Only because the initial allotment was given to Sh. Mehar Singh as a displaced person is not a ground to presume that he has left behind ancestral property at Pakistan. There is no legal presumption that whosoever gets any compensation under the Displaced Person's (Compensation and Rehabilitation) Act, 1954 got the same in lieu of the ancestral property left behind him in Pakistan and not in lieu of the self-acquired property left in Pakistan. There is not even an iota of evidence on record to suggest that the suit property is the ancestral property of the plaintiff except mere averments. As the suit property is not the ancestral property in the hands of Sh. Mehar Singh and in view of the Conveyance Deed dated 23.03.2007 executed in favour of defendant no. 1, the suit property is the exclusive property of defendant no. 1.
8. Ld. Counsel for plaintiff has argued that any property inherited by Hindu from his father, father's father and father's father's father is ancestral property. That the essential characteristics of ancestral property is that if the person inheriting the property has sons, grandsons and great grandson, they by reason of their birth, become joint owners with him. Ld. Counsel has further argued that post amendment in 2005, Section 6 of the Hindu Succession Act, 1956 provides that the daughters are now coparceners in the ancestral property of their Hindu Joint Family (having a right in the ancestral property by birth). Ld. Counsel for plaintiff CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 9 of 18 has relied on judgments cited earlier in support of her contentions that a daughter has coparcenary interest in the Joint Hindu Family Properties since her birth.
9. It is no longer res-integra that daughters have been introduced as coparceners in Mitakshara Coparcenary, with the same rights as the sons to share, to claim partition and to become Karta by virtue of amendment in 2005 in Section 6 of the Hindu Succession Act, 1965. The said right is available to the daughter even if the daughter is born earlier with effect from 09.09.2005 and it is not necessary that the father coparcener should be living as on 09.09.2005 (reliance herein is placed on the judgment in Vineeta Sharma (supra)). However, in order to be entitled to a share in the suit property as per the averments made in the plaint, plaintiff should have proved that the suit property was coparcenary property in the hands of Sh. Mehar Singh. However, plaintiff has failed to discharge the burden to prove the same.
10. The citations relied upon by Ld. Counsel for plaintiff are not of any help to the case of the plaintiff. In Vineeta Sharma (supra), the Hon'ble Supreme Court has dealt extensively with the scope and interpretation of Section 6 of the Hindu Succession Act, 1956. In order to be entitled to the benefit of Section 6 of the Hindu Succession Act, 1956, the burden was on plaintiff to prove that the suit property was coparcenary property, which burden plaintiff has failed to discharge. In Pushpalata N.V Vs V Padma (supra), the question that has arisen before the Court was as to what is the right of the daughter of a coparcener in a Joint Hindu Family governed by Mitakshara Law in coparcenary property by virtue of the amendment and whether Section 6 is applicable to partitions already affected. The CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 10 of 18 facts in Pushpalata N.V are totally different from the facts in the present case as in the said case it was not disputed by the defendants that the suit properties involved therein were coparcenary properties. Similarly, facts of Kantibhai Ishwarbhai Patel (supra) are distinguishable from the facts of the present case as in the said case the Court had arrived on a finding of fact that the suit properties involved therein were coparcenary properties while extending the benefit of Section 6 of the Hindu Succession Act, 1956, whereas plaintiff in the instant case has failed to prove that the suit property is the coparcenary property. The decision in Mihan vs Inder (supra) is also not applicable as the same was a rendered in the background of a reference made in view of the conflict created by the two judgements of the Court. Also, reliance on Chief Settlement Commissioner Rehabilitation Department Punjab Vs Om Prakash & Ors. (supra) appears to be totally misplaced as the said judgment dealt with an entirely different issue. Ld. Counsel for plaintiff has relied on the following paragraph of the said judgment in support of her case:
"Even where a displaced land holder in whose name the land stands in the records received from West Punjab has died, the allotment is made in the name of the deceased. In the fard taqsim, 'therefore, the entry will be in the name of the deceased land holder. Possession is ordinarily given to the heirs but there must be regular mutation proceedings before the entry in column 3 of the fard taqsim is- altered in favour of the heirs."
The Hon'ble Supreme Court in Vishal N. Kalsaria vs. Bank of India AIR 2016 SC 530 has held that a word or a sentence cannot be picked up from a judgment to construe that it is the ratio decidendi on the relevant aspect of the case. Further a judgment cannot be read as a statue and interpreted and applied to a CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 11 of 18 fact situation. Thus, what has to kept in mind is that every judgment pronounced is not to be read as a statue and is a judgment on the facts of each case, a slight difference in the facts could lead to a different situation. In the case at hand, plaintiff has merely picked up a paragraph from the aforesaid judgment without showing how the same is applicable to the present case. I see no applicability of the ratio of the aforesaid judgment to the facts of the present suit.
11. Ld. Counsel for plaintiff has also relied on the judgment of the Hon'ble High Court of Delhi in Surender Kumar vs Dhani Ram & Ors ; 227(2016) DLT 217 in support of her arguments. In Surender Kumar plaintiff had claimed that as a son of defendant no. 1 and as a grandson of late Sh. Jage Ram, he is entitled to his share as a coparcener in the suit properties on the ground that the properties when they were inherited by late Sh. Jage Ram were joint family properties, and therefore, status as such of these properties as HUF properties have continued thereby entitling the plaintiff his rights in the same as a coparcener. The Hon'ble Court had in light of the averments made in the plaint, dismissed the suit under Order VII Rule 11 of CPC on the ground that there was no cause of action which was found to exist with respect to existence of an HUF and its properties. The relevant observations in Surender Kumar (supra) are reproduced as follows:
"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur v. Chander Sen , (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 12 of 18 view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e., before passing of the Hindu Succession Act, 1956 and post 1956 i.e., after passing of the Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) v. Sh. Raj Singh, CS (OS) No. 431/2006 decided on 17.11.2015 In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 13 of 18 Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an 'ancestral' property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits 'ancestral' property i.e., a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individual's property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc. of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self-acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc. to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 14 of 18 inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc. will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc. of an HUF was entitled to partition of the HUF property.
......9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 15 of 18 in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.
10. A reference to the plaint in the present case shows that it is claimed that ownership of properties by late Sh. Jage Ram in his name was as joint Hindu family properties. Such a bald averment in itself cannot create an HUF unless it was pleaded that late Sh. Jage Ram inherited the properties from his paternal ancestors prior to 1956 or that late Sh. Jage Ram created an HUF by throwing his own properties into a common hotchpotch. These essential averments are completely missing in the plaint and therefore making a casual statement of existence of an HUF does not mean the necessary factual cause of action, as required in law, is pleaded in the plaint of existence of an HUF and of its properties.
CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 16 of 1812. In light of the judgment in Surender Kumar(supra), mere bald averment of the plaintiff that the forefathers of the plaintiff have left behind ancestral property in Pakistan at the time of partition and that the suit property was allotted to her grandfather in lieu of ancestral properties left behind in Pakistan and therefore the allotment of the suit property in the name of Sh. Mehar Singh was as joint Hindu Family Property, in itself cannot create an HUF unless the same was to be proved through cogent evidence. As stated earlier, plaintiff has failed to prove that the suit property was ancestral property in the hands of her grandfather. In view of the conveyance deed dated 23.03.2007 executed in favour of defendant no.1, the suit property is self-acquired property of defendant no.1. Even if, the argument of Ld. Counsel for the plaintiff that the subsequent conveyance of the suit property in the name of defendant no.1 is in furtherance of the initial allotment in the name of Sh. Mehar Singh is taken to be accepted, any subsequent allotment/conveyance of the suit property in the name of defendant no.1 being the successor in interest of Sh. Mehar Singh is akin to self-acquired property in the name of defendant no.1 and not an HUF property as plaintiff has failed to prove that the initial allotment in the name of Sh. Mehar Singh was HUF property and Sh. Mehar Singh has died in the year 1967 i.e. after passing of the Hindu Succession Act, 1965. After the death of Sh. Mehar Singh in 1967, the self-acquired properties of Sh. Mehar Singh would devolve upon his heirs as per scheme of Section 8 of Hindu Succession Act, 1956 and the same would be a self-acquired property in the hands of heirs of Sh. Mehar Singh.
13. In light of the aforesaid discussion, it is clear that plaintiff has failed to discharge the burden to prove that the suit property was ancestral property in the CS SCJ No.596594/2016 Gulshan Kaur vs Bagel Singh Page 17 of 18 hands of Sh. Mehar Singh and that she is entitled to share in the suit property being a coparcener along with defendants in the suit property.
RELIEF:-
14. In view of the foregoing discussion, the present suit filed by the plaintiff is dismissed.
No order as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room after due completion of formalities.
Announced in the open Court
on 17.08.2022 (NEHA GARG)
CIVIL JUDGE-01/CENTRAL
TIS HAZARI COURTS, DELHI
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