Delhi High Court
Ravi @ Ravinder vs Sajjan Kumar & Ors on 16 October, 2019
Equivalent citations: AIRONLINE 2019 DEL 2621
Author: Jayant Nath
Bench: Jayant Nath
$~OS-26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 16.10.2019
+ CS(OS) 100/2017
RAVI @ RAVINDER ..... Plaintiff
Through Mr.K.Sunil and Ms.Akshita
Salampuria, Advs.
versus
SAJJAN KUMAR & ORS. ..... Defendants
Through Mr.Anand Yadav and Ms.Anita
Tomar, Advs. for D-8 to 10
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH. J. (JUDGMENT)
IA No.677/2018
1. This application is filed by the defendants No.1 and 8 to 10 under
Order 7 Rule 11 CPC for rejection of the plaint.
2. The present suit is filed by the plaintiff seeking a decree of partition
by allocating shares and thereby partitioning the properties granting share of
the properties as mentioned in para 10 of the plaint to the plaintiff as per the
share of the plaintiff. Other connected reliefs are also sought.
3. The case of the plaintiff is that Shri Sajjan Kumar/defendant No.1 is
sitting on a huge tract of properties as described in para 10 of the plaint
which are HUF properties. It is pleaded that the ancestor of the parties was
Shri Bhim Singh. The plaint narrates the transactions amongst the issues of
Bhim Singh. Thereafter it is pleaded that 1/3rd share of the properties falling
to the share of Khushal Chand the grandfather of the plaintiff are to be
partitioned amongst the parties herein, as defendant No.1 is holding the said
CS(OS) 100/2017 Page 1 of 22
properties.
4. Shri Khushal Chand had three sons. One son is Defendant No.1. The
second son Shri Raj died as a bachelor. The third son Shri Hari Singh was
adopted by his uncle Shri Khazan Singh. There were two daughters, namely,
Sumitra Devi/Defendant No.2 and Smt. Shakuntala Devi who has expired.
The LRs of Smt.Shakuntala Devi are defendants No.3 to 7. It is further stated
that the properties sought to be partitioned have fallen to defendant No.1
from the said share of Khushal Chand and none of the other descendants of
Shri Bhim Singh are required to be impleaded as a party being neither
necessary nor proper parties.
5. Defendant No.1 has two sons, namely, plaintiff and second son Ajit
Singh who has expired. The widow of Ajit Singh has been impleaded as
defendant No.8 and his two sons are impleaded as defendants No.9 and 10.
The sisters of the plaintiff are arrayed as defendants No.11,12 and 13
respectively.
6. It is further pleaded that defendant No.1 inherited various properties,
i.e. agricultural land and other properties from late Shri Khushal Chand.
Accordingly, it is pleaded that this entire property is joint hindu family
property and is ancestral in nature. It is the grievance of the plaintiff that
defendant No.1 has illegally and unauthorisedly sold various ancestral
properties and purchased different properties. In paras 8, 10, 11 and 17 of the
plaint it is pleaded that defendant No.1 inherited the stated properties which
have remained joint family property and ancestral property. The said
paragraphs of the plaint read as follows:-
―
CS(OS) 100/2017 Page 2 of 22
―8. That the defendant No.1 had inherited various properties,
agricultural land and other properties from late Shri Khushal
Chand and late Shri Khushal Chand was the owner and was
in possession of various properties. Accordingly the entire
properties are joint Hindu family property and ancestral. The
defendant No.1 illegally and unauthorizedly has sold various
ancestral properties and out of the said fund has purchased
property bearing No. 34, Shanker Garden, Paschim Vihar,
Near Peeragarhi, Delhi-110087 measuring 150 sq. yards in
the name of defendant No. 1, defendants No. 9 & 10. The
plaintiff shall be giving details in respect of the same at the
appropriate stage in case the further details is required in this
behalf and details of properties are being narrated as referred
to hereinabove.
....
10. That the defendant No.1, father of the plaintiff had inherited
following properties and hence the same remained joint family
property and ancestral property:-
i) one ancestral house measuring about 350 sq. yards situated in
old Lal Dora of village having house No. 20 Kirari Suleman
Nagar,Delhi.
ii) one other ancestral house measuring approximately 150 sq.
yards situated in old Lal Dora of village near the house of Shri
Umed Singh son of Shri Nihal Singh, Kirari Suleman Nagar,
Delhi. The defendant No. 1 has illegally and unauthorisedly sold
the property and also without making any payment/share in
respect thereof to the plaintiff. The plaintiff is entitled to share in
the said property as well. Be that as it may the defendant No. 1
cannot illegally deprive the plaintiff form getting any share in
respect of the property in question.
iii) House No. 34 Shanker Garden, Paschim Enclave, Main
Rohtak Road, Peeragarhi, Delhi-110087 comprising of built up
2-1/2 storey building on the same.
CS(OS) 100/2017 Page 3 of 22
iv) The plot approximately measuring 1200 sq. yards situated in
village Nehrola Kamardinagar, (Near Naala), Main Najafgarh
Road, Delhi.
v) Plots bearing No. 50-54 measuring 800 sq. yards three sides
open, forming part of khasra No. 403, 405 and 406, C-Block,
Partap Vihar-1, Kirari, Suleman Nagar, Delhi.
vi) Plots measuring about 1600 sq. yards, adjoining to properties
of Shri Hari Singh forming part of Khasra No. 373, village Kirari
Suleman Nagar, Delhi.
vii) Plots measuring about 1655 sq. yards with rasta adjoining to
properties of Shri Hari Singh forming part of Khasra No. 720 and
723, Ramesh Enclave, Kirari Suleman Nagar, Delhi.
viii) Two shops bearing No. 8 and 9 measuring about 35 sq.yards
adjoining to the property of Shri Umed Singh forming part of
Khasra No. 1315, 1316 and 1317 Harsukh Vihar, Main Nangloi -
Mubarakpur Road, Kirari Suleman Nagar, Delhi.
ix) Property measuring about 211 sq. yards out of 352 sq. yards
consisting of three shops, one godown and about 141 sq. yards
open space and 10 feet common road behind, adjoining the
property of Shri Hari Singh forming part of Khasra No. 1315,
1316, 1317 and 1318 Harsukh Vihar, Main Nangloi-Mubarakpur
Road, Kirari Suleman Nagar, Delhi.
x) One plot bearing No. 120 -121 measuring about 130 sq.yards
forming part of khasra No. 472 in village Kirari Suleman Nagar
(colony known as Pratap Vihar), Kirari Suleman Nagar,Delhi.
xi) Plots bearing No. 55 to 59 measuring about 1264 sq. yards
three sides open, forming part of Khasra No. 403, 405 and 406, C
Block, Partap Vihar-1, in village Kirari Suleman Nagar, Delhi.
xii) Plot measuring about 820 sq. yards adoining to properties of
Shri Satpal Mathur and Shri Mange Ram forming part of Khasra
CS(OS) 100/2017 Page 4 of 22
No. 373 Kirari Suleman Nagar, Delhi.
xiii) Plot measuring about 1060 sq. yards with Rasta adjoining to
the property of Shri Umed Singh, forming part of Khasra No. 720
and 723 Ramesh Enclave, Kirari Suleman Nagar, Delhi.
xiv) Two shops bearing No. 6 and 7 measuring about 35 sq.
yards adjoining to the property of Shri Hari Singh forming part of
Khasra No. 1315, 1316 and 1317 Harsukh Vihar, Main Nangloi -
Mubarakpur Road, Kirari Suleman Nagar, Delhi.
xv) Built up property measuring about 752 sq. yards consisting of
two shops, godowns, and 10 feet common road, adjoining to the
property of Shri Umed Singh forming part of Khasra No. 1315,
1316, 1317 and 1318 Harsukh Vihar, Main Nangloi -
Mubarakpur Road, Kirari Suleman Nagar, Delhi.
xvi) l/3rd share of the Khasras No. 1315 (0-3), Khasras No.1316
(0-15), Khasras No. 1317 (3-14), Khasras No. 1013 (13-17),
Khasras No. 1014 (13-17), Khasras No. 1140 (10-8), Khasras
No.1150 (4-6), Khasra No. 1182 (2-3) totalling Kile - 8 (49-03)
(20-42).
xvii) 1/3rd share of Khasra No. 128 (3-5), Khasra No. 130 (4 -
16), Khasra No. 131 (6-19), Khasra No. 346 (5-12), Khasra No.
373 (4-4), Khasra No. 400 (0-10), Khasra No. 410 (1-10), Khasra
No. 451 (1-16), Khasra No. 429 (0-8), Khasra No. 412 (4-19),
Khasra No. 413 (4-1), Khasra No. 414 (5-2), Khasra No. 511 (0-
1), Khasra No. 517 (5-9),Khasra No. 518 (4-9), Khasra No.519
(0-6), Khasra No. 520 (2-3), Khasra No. 521 (4-12), Khasra No.
669 (6-10), Khasra No. 670 (5-4), Khasra No. 723 (1-7), Khasra
No. 726 (7-10), Khasra No. 895 (1-2) totalling Kile 23 (81-9)
(34-50).
xviii) l/3rd share of Khasra No. 341 (9-00), Khasra No. 348 (4-6),
Khasra No. 402 (1-6), Khasra No. 403(4-6), Khasra No. 405 (0-
1), Khasra No. 406 (3-12), Khasra No. 407 (3-5), Khasra No. 408
(0-17), Khasra No. 441 (5-7) totalling Kile - 9 (32-3) (10-28).
CS(OS) 100/2017 Page 5 of 22
11. That it may however, be mentioned that the defendant No. 1 has
illegally and unauthorisedly transferred and alienated/sold created
third party interest major portions of the properties shown in para
No. 10 mentioned above except as mentioned at i), iii), v) to xv) in
para No. 10 mentioned above may be detailed as under:-
(i) 1/3rd share of the Khasras No. 1315 (0-3), Khasras No.1316
(0-15), Khasras No. 1317 (3-14), Khasras No. 1013 (13-17),
Khasras No. 1014 (13-17), Khasras No. 1140 (10-8),Khasras No.
1150 (4-6), Khasra No. 1182 (2-3) totalling Kile -8(49-03) (20-
42).
(ii) 1/3rd share of Khasra No. 128 (3-5), Khasra No. 130 (4-16),
Khasra No. 131 (6-19), Khasra No. 346 (5-12), Khasra No. 373
(4-4), Khasra No. 400 (0-10), Khasra No. 410 (1-10), Khasra No.
451 (1-16), Khasra No. 429 (0-8), Khasra No.412 (4-19), Khasra
No. 413 (4-1), Khasra No. 414 (5-2), Khasra
No. 511 (0-1), Khasra No. 517 (5-9),Khasra No. 518 (4-
9),Khasra No. 519 (0-6), Khasra No. 520 (2-3), Khasra No. 521
(4-12), Khasra No. 669 (6-10), Khasra No. 670 (5-4), Khasra No.
723 (1-7), Khasra No. 726 (7-10),Khasra No. 895 (1-2) totalling
Kile 23 (81-9) (34-50).
(iii) l/3rd share of Khasra No. 341 (9-00), Khasra No.348 (4-6),
Khasra No. 402(1-6) , Khasra No. 403(4-6),Khasra No. 405 (0-
1), Khasra No. 406 (3-12), Khasra No.407(3-5), Khasra No. 408
(0-17), Khasra No. 441 (5-7) totalling Kile - 9 (32-3) (10-28).
xxx
―17. That it may also be pointed out that the sisters of the
defendant No. 1 or the legal heirs thereof who have been
impleaded as defendants No. 2 to 7 and the legal heirs who
have been impleaded as defendants No. 11 to 13 have not
been shown to have had any share or right in respect of any
of properties of late Shri Khushal Chand as said Shri
CS(OS) 100/2017 Page 6 of 22
Khushal Chand during his life time had conferred the
entire right, title and interest in respect of the land which
have been mentioned as under upon defendant No. 1 and
thus the property being joint Hindu family property is
liable to be partitioned:-
1/3rd share of Khasra No. 341 (9-00), Khasra No. 348 (4-
6), Khasra No. 402 (1-6), Khasra No. 403 (4-6), Khasra
No. 405(0-1), Khasra No. 406 (3-12), Khasra No. 407 (3-
5), Khasra No. 408 (0-17), Khasra No. 441 (5-7) totalling
Kile-9 (32-3) (10-28)."
1/3rd share of the Khasras No. 1315 (0-3), Khasras No.
1316
(0-15), Khasras No. 1317 (3-14), Khasras No. 1013 (13-
17),
Khasras No. 1014 (13-17), Khasras No. 1140 (10-8),
Khasras No. 1150 (4-6), Khasra No. 1182 (2-3) totalling
Kile - 8 (49-03) (20-42).
1/3rd share of Khasra No. 128 (3-5), Khasra No. 130 (4 -
16), Khasra No. 131 (6-19), Khasra No. 346 (5-12), Khasra
No. 373 (4-4), Khasra No. 400 (0-10), Khasra No. 410 (1-
10), Khasra No. 451 (1-16), Khasra No. 429 (0-8), Khasra
No. 412 (4-19), Khasra No. 413 (4-1), Khasra No. 414 (5-
2), Khasra No. 511 (0-1), Khasra No. 517 (5-9),Khasra No.
518
(4-9), Khasra No. 519 (0-6), Khasra No. 520 (2-3), Khasra
No. 521 (4-12), Khasra No. 669 (6-10), Khasra No. 670 (5-
4), Khasra No. 723 (1-7), Khasra No. 726 (7-10), Khasra
No. 895 (1-2) totalling Kile 23 (81-9) (34-50).‖
7. The plaintiff thereafter makes reference to various other properties
which have been said to have been bought by defendant No.1 after having
usurped money from sale of some of the stated joint HUF property. In para
17 of the plaint it is stated that the sisters of defendant No.1 have not been
CS(OS) 100/2017 Page 7 of 22
given any share or right in respect of properties of Shri Khushal Chand as
Shri Khushal Chand during his lifetime had conferred entire rights, title and
interest in respect of the land which are stated in the said para, upon
defendant No.1. Thus it is pleaded that the property being joint hindu family
property is liable to be partitioned.
8. The applicants have in this present application pointed out that the
plaintiff has filed the Khatoni of village Kirari Suleman Nagar, Delhi for the
year 1981-82. As per the said Khatoni 1/3rd share of Shri Khushal Chand
devolved upon defendant No.1 by Will and mutation was sanctioned vide
order dated 16.3.1995. The Khatoni for the year 2003-04 for the said village
has recorded defendant No.1 as bhumidar of 1/3rd share in the said land. It is
pleaded that the aforesaid agricultural lands are covered under Delhi Land
Reforms Act, 1954. Hence, it is pleaded that the land is not ancestral land in
view of the said statutory provision.
9. It is further pleaded that under section 50 of the Delhi Land Reforms
Act (hereinafter referred to as the DLR Act) the order of succession is male
lineal descendant in the male line of descent. Hence, a grandson cannot
claim any right and cannot inherit the land of his grandfather if his father is
alive. On the death of Shri Khushal Chand in 1992 the son Shri Sajjan
Kumar/defendant No.1 was alive. In view of section 50(a) of the DLR Act
plaintiff cannot claim any right or inheritance in the land holding of Shri
Khushal Chand.
10. It is further stated that under section 48 of the DLR Act a bhumidar
can bequeath his holding. Hence, as is evident from the Khatoni filed by the
plaintiff late Shri Khushal Chand executed a Will dated 17.3.1988 which
was duly registered. On the basis of the said Will defendant No.1 has
CS(OS) 100/2017 Page 8 of 22
inherited the said properties. The said Will has never been challenged nor
has the mutation order been challenged.
11. Based on the above contention, it is pleaded that the land in question
are the personal property of defendant No.1.
12. It is further stated that in view of section 8 of the Hindu Succession
Act, inheritance of ancestral property after 1956 does not create an HUF
property. Hence, when the father of defendant No.1 Shri Khushal Chand
expired in 1992 the properties inherited by defendant No.1 are his personal
properties and cannot be said to be joint hindu family properties or ancestral
properties. Hence, properties that are not covered by the DLR Act would
also in view of the said statutory provisions would not be HUF Properties.
13. It is further pleaded that the plaintiff had earlier filed a suit seeking
partition. The suit was withdrawn by plaintiff. Hence, it is submitted that the
present suit filed after more than three years when the partition was refused
has become barred by limitation. Based on the above, it is pleaded that the
present suit be dismissed as being barred by law and also not disclosing any
cause of action.
14. I have heard learned counsel for the parties.
15. A perusal of the plaint shows that the plaintiff essentially claims that
defendant No.1, the father had inherited various properties, agricultural land
etc from his father Shri Khushal Chand. Based on this, it is pleaded that the
entire properties are joint hindu family properties and ancestral. This is clear
from a perusal of para 8 of the plaint. It is also clear from para 10 of the
plaint where it is stated that defendant No.1 had inherited properties and
hence they have remained joint family property and ancestral property.
16. Section 50(a) of the Delhi Land Reforms Act, 1954 reads as follows:-
CS(OS) 100/2017 Page 9 of 22
―50. GENERAL ORDER OF SUCCESSION FROM MALES. -
Subject to the provisions of section 48 and 52, when a Bhumidhar
or Asami being a male dies, his interest in his holding shall devolve
in accordance with the order of the succession given below :
(a) Male lineal descendants in the male line of the descent :
Provided that no member of this class shall inherit if any male
descendant between him and the deceased is alive:
Provided further that the son or sons of a predeceased son
howsoever low shall inherit the share which would have devolved
upon the deceased if he had been then alive:‖
17. Regarding the above statutory provision, reference may be had to
some of the judgments relied upon by learned counsel for the defendant. In
Nathu vs. Hukam Singh, AIR 1983 Del 216 the Division Bench of this
Court held as follows:-
"7..The effect of Section 4 is that a person can either be a
Bhumidar (one class of tenure holder) of an agricultural land
or he could be an Asami (one class of sub-tenure holder).
There could be no other kind of right in the agricultural land. It
is implicit in these provisions that there is abolition of the
ownership rights in the agricultural land and new rights are
recognised for the purposes of the Act.
....
10...The manner of devolution of interest of a Bhumidar or an
Asami is provided in Sections 48 to 54 of the Act. Under
Section 48, a Bhumidar is permitted to bequeath his holding or
any part thereof except as provided in sub-section (2). Sub-
section (2) says that ―no Bhumidar entitled to any holding or
part in the right of a widow, mother, unmarried daughter, or
CS(OS) 100/2017 Page 10 of 22
unmarried sister, may bequeath by will such holding or part‖.
No Asami has the right to bequeath his holding or part thereof.
General order of succession from males is provided in Section
50 of the Act. It says that when a Bhumidar or Asami being
male dies, his interest in his holding shall devolve in
accordance with the order of succession indicated in Section
50.
11. These provisions and various other provisions of the Act
show that a Bhumidar does not have an unrestricted interest in
the agricultural land which was held by him before the
commencement of the Act as an owner or proprietor. After the
commencement of the Act and the declaration of the
Bhumidari rights, he is only given the right to use the
agricultural land in a particular manner as specified in the
statutory provisions. There are restrictions laid down on the
rights of a Bhumidar to create leases. A Bhumidar cannot
transfer possession of the land. A Bhumidar is obliged to use
the land for agricultural purposes. A Bhumidar is only a tenure
holder having lost the right of ownership on agricultural land
after the commencement of the Act. There is, however, a great
security of the tenure under the Act. Bhumidari rights are,
therefore, special rights created on the abolition of the
ownership of the agricultural land and are controlled and
regulated by the provisions of the Act. The language of
Section 5 of the Act shows that a Bhumidar has all the rights
and is subject to all the liabilities conferred or imposed upon a
Bhumidar by or under the Act. The rights to the tenure holder
are granted under the provisions of the Act. The restrictions
imposed on the rights of a Bhumidar are also by or under the
Act. There is no warrant to travel outside the Act and the Rules
for further restrictions in the right or manner of transfer of the
Bhumidari rights. Section 34 of the Act, permits simple
mortgage of land by a Bhumidar. This right is granted to
tenure holder under the Act. Reading any further restriction by
involving the customary law would come in conflict with the
right granted under the Act. Any such impediment would be
inconsistent with the provisions of the Act. The rule of custom
pleaded and upheld by the Courts below in this case is
CS(OS) 100/2017 Page 11 of 22
inconsistent with the provisions of the Act. The inconsistent
rule having the force of law stands repealed by Section
2(1)(vi) of the Act.
12. In ―Ram Mehar v. Mst. Dakhan‖, I.L.R. (1972) II Delhi
922, a question arose before a Division Bench of this Court as
to whether the rule of succession in the Act or the Rule of
succession in the Hindu Succession Act, 1956 governed the
parties. If the Hindu Succession Act applied, then the plaintiff
and the defendant in that case had to succeed to their late
father as co-heirs each entitled to an equal share. If the Act
was to apply, then the succession had to be according to the
provisions of Section 50 of the Act according to which an
unmarried daughter succeeds to a Bhumidar only if there is no
superior heir. The Division Bench examined the preamble of
the Act, the object and reasons to ascertain the nature of the
reform brought about by the Act and various provisions of the
Act to come to the conclusion that the Act provides for the
prevention of the fragmentation of agricultural holdings and
also, at the same time, fixed ceilings on agricultural holdings
and also dealt with the devolution of tenancy rights of such
holdings. It was held that the only type of tenancy existing in
agricultural land after the passing of the Act is denoted by the
new tenure holdings, Bhumidars and Asamis though the rights
of Bhumidars were somewhat different from tenants under the
previous law but they did not become owners and, therefore,
were held to be nothing more than tenants with certain
additional rights. It was then held that the law of devolution of
tenancy rights on the holdings was saved by Section 4(2) of
the Hindu Succession Act and was not repealed by the
provisions of the Hindu Succession Act. That meant that the
rule of succession governing Bhumidars was to be found in
Section 50 of the Act and not in the Hindu Succession Act,
1956.
13...
14. The result of the above discussion is that the right of
transfer of interest by a Bhumidar of its bhumidari rights in the
agricultural land is controlled only by the provisions of the
CS(OS) 100/2017 Page 12 of 22
Act. The provisions of the customary law relating to
restrictions on transfer do not apply to the transfer of
bhumidari rights. The appeal succeeds and is allowed. The
impugned judgments and decrees are hereby set aside and the
suit of the plaintiffs is dismissed leaving the parties to bear
their own costs throughout."
18. Similarly, in Ram Niwas vs.Pitamber Singh & Others, 2008 (102)
DRJ 81 (DB) the Division Bench held as follows:-
―7. In this connection we may refer to the decision of the Supreme
Court in Haiti v. Sunder Singh reported in 1970 (2) SCC 841. In
paragraph 7 of the said judgment, it was held as under:
―7. The High Court, in this connection, referred to Section
186 of the Act under which any question raised regarding the
title of any party to the land which is the subject-matter of a
suit or proceeding under the First Schedule has to be referred
by the Revenue Court to the competent Civil Court for
decision after framing ah issue on that question. Inference
was sought to be drawn from this provision that questions of
title could be competently agitated by a suit in the Civil
Court, as the jurisdiction of the Civil Court was not barred. It
appears to us that there is no justification for drawing such an
inference. On the contrary, Section 186 envisages that
questions of title will arise before the Revenue Courts in suits
or proceedings under the First Schedule and, only if such a
question arises in a competent proceeding pending in a
Revenue Court, an issue will be framed and referred to the
Civil Court. Such a provision does not give jurisdiction to the
Civil Court to entertain the suit itself on a question of title.
The jurisdiction of the Civil court is limited to deciding the
issue of title referred to it by the Revenue Court. This clearly
implies that, if a question of title is raised in an application
for declaration of Bhumidari rights under Item 4 of Schedule-
I of the Act, that question will then be referred by the
Revenue Assistant to the Civil Court; but a party wanting to
raise such a question of title in order to claim Bhumidari right
cannot directly approach the Civil Court. The Act is a
CS(OS) 100/2017 Page 13 of 22
complete Code under which it is clear that any one, wanting a
declaration of his right as Bhumidar, or aggrieved by a
declaration issued without notice to him in favour of another,
can approach the Revenue Assistant under Item 4 of the First
Schedule and this he is allowed to do. without any period of
limitation, because he may not be aware of the fact that a
declaration has been issued in respect of his holding in favour
of another. A declaration by a Gaon Sabha of the right of
any person can also be sought without any period of
limitation. If there is dispute as to possession of agricultural
land, the remedy has to be sought under Section 84, read with
item 19 of the First Schedule. All the reliefs claimed by the
respondent in the present suit were, thus, within the
competent jurisdiction of the Revenue Assistant, and the
Civil court had no jurisdiction to entertain the suit.‖
19. It would follow from the above statutory provisions and stated
decision that on the death of a bhumidar the succession takes place in terms
of section 50 of the DLR Act. Under the said Act the male lineal descendent
in the male line of descent inherits the properties. Defendant No.1 has
bhumidary rights of various properties which were inherited in terms of the
aforesaid statutory provisions. The properties are governed by the DLR Act
only. Under proviso to Section 50 of the DLR Act, no male member of a
class shall inherit, if any male descendent between him and the deceased is
alive. The question of formation of any HUF or family property does not
arise in these facts.
20. As far as properties which are not agricultural properties and not
covered by the DLR Act are concerned, given the nature of averments in the
plaint, again these properties cannot said to be HUF properties or joint
family properties. In this context reference may be had to the judgment of a
Coordinate Bench of this Court in the case of Neelam & Anr. vs. Sada Ram
CS(OS) 100/2017 Page 14 of 22
& Ors., (2013) 197 DLT (CN) 52 where the concept of ancestral property
subsequent to enactment of the Hindu Succession Act, 1956 was stated. The
co-ordinate Bench of this court relied upon judgments of the Supreme Court
in Commissioner of Wealth Tax, Kanpur vs. Chander Sen, AIR 1986 SC
1753 and Yudhishter vs. Ashok Kumar, AIR 1987 SC 558 and held as
follows:-
―3. The Hindu Succession Act, 1956 enacted more than half a
century ago did away with the concept of ancestral properties, as
existed prior thereto. After the coming into force thereof, the
property inherited by a male from his father is held as self
acquired property in which children of such male do not acquire
any right by birth. Reference in this regard can be made
to Commissioner of Wealth Tax, Kanpur v. Chander Sen AIR
1986 SC 1753 and Yudhishter v. Ashok Kumar AIR 1987 SC
558. The counsel for defendants No. 1 to 5 in this regard has also
referred to Master Daljit Singh v. S. Dara Singh AIR 2000 Delhi
292 and Pratap v. Shiv Shanker 164 (2009) DLT 479. However
the popular misconception of ‗ancestral properties' continues to
hold field, as is apparent from plethora of claims, even in courts,
being made on the said premise.
...
8. A plea of the property being ‗Joint Family Property' owing to
being jointly owned by members of a family is not the plea of
existence of a coparcenary or a HUF. The Supreme Court
in Sathyaprema Manjunatha Gowda v. Controller of Estate Duty,
Karnataka (1997) 10 SCC 684 held that even HUF &
coparcenary are not one and the same under the Hindu law
though for the purposes of taxation under the taxation laws are
treated as one and the same. The law of succession after coming
into force of the Hindu Succession Act is governed thereby only.
Of course, Section 6 thereof carved out an exception qua interest
held by the deceased in a Mitakshara coparcenary property and
provides that such interest shall devolve by survivorship upon the
surviving members of the coparcenary and not in accordance
with the Act. However, it is not the case of the plaintiff that there
CS(OS) 100/2017 Page 15 of 22
was any coparcenary of which their grandfather, his father and
the plaintiff's father were a member. This Court recently
in Premwati v. Bhagwati Devi MANU/DE/4784/2012 held that
for a case for claiming a share in the property otherwise than
under the Hindu Succession Act, it has to be pleaded that there
existed an HUF since prior to coming into force of the
Succession Act and which HUF by virtue of Section 6 of the Act
has been permitted to continue. There is no such plea in the
present case also."
21. Reference may also be had to the judgment of the Supreme Court in
the case of Uttam vs. Saubhag Singh and Others, (2016) 4 SCC 68. That
case also pertains to a case where the plaintiff had filed a suit against his
father and the brothers of the father claiming 1/8 th share in the property on a
footing that the suit property was ancestral property and he being a
coparcener has a right by birth in the said property in accordance with the
Mitakshara law. The Supreme Court noted the legal position as follows:-
―18. Some other judgments were cited before us for the proposition
that joint family property continues as such even with a sole
surviving coparcener, and if a son is born to such coparcener
thereafter, the joint family property continues as such, there being
no hiatus merely by virtue of the fact there is a sole surviving
coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu
Agalawe ; Sheela Devi v. Lal Chand and Rohit
Chauhan v. Surinder Singh were cited for this purpose. None of
these judgments would take the appellant any further in view of the
fact that in none of them is there any consideration of the effect of
Sections 4, 8 and 19 of the Hindu Succession Act. The law,
therefore, insofar as it applies to joint family property governed by
the Mitakshara School, prior to the amendment of 2005, could
therefore be summarised as follows:
(i) When a male Hindu dies after the commencement of the Hindu
Succession Act, 1956, having at the time of his death an interest in
CS(OS) 100/2017 Page 16 of 22
Mitakshara coparcenary property, his interest in the property will
devolve by survivorship upon the surviving members of the
coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30
Explanation of the Act, making it clear that notwithstanding
anything contained in the Act, the interest of a male Hindu in
Mitakshara coparcenary property is property that can be disposed of
by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in
the proviso to Section 6, which states that if such a male Hindu had
died leaving behind a female relative specified in Class I of the
Schedule or a male relative specified in that class who claims
through such female relative surviving him, then the interest of the
deceased in the coparcenary property would devolve by
testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener
who is governed by Section 6 proviso, a partition is effected by
operation of law immediately before his death. In this partition, all
the coparceners and the male Hindu's widow get a share in the joint
family property.
(v) On the application of Section 8 of the Act, either by reason of
the death of a male Hindu leaving self-acquired property or by the
application of Section 6 proviso, such property would devolve only
by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after
joint family property has been distributed in accordance with
Section 8 on principles of intestacy, the joint family property ceases
to be joint family property in the hands of the various persons who
have succeeded to it as they hold the property as tenants-in-
common and not as joint tenants.
19. Applying the law to the facts of this case, it is clear that on the
CS(OS) 100/2017 Page 17 of 22
death of Jagannath Singh in 1973, the joint family property which
was ancestral property in the hands of Jagannath Singh and the
other coparceners, devolved by succession under Section 8 of the
Act. This being the case, the ancestral property ceased to be joint
family property on the date of death of Jagannath Singh, and the
other coparceners and his widow held the property as tenants-in-
common and not as joint tenants. This being the case, on the date of
the birth of the appellant in 1977 the said ancestral property, not
being joint family property, the suit for partition of such property
would not be maintainable. The appeal is consequently dismissed
with no order as to costs.‖
22. Hence, the Supreme Court held that the father of the plaintiff therein
had inherited property by intestate under section 8 of the Act. The ancestral
property was not joint family property and the suit for partition was not
maintainable.
23. Keeping in view the aforesaid legal position, a perusal of the relevant
paras of the plaint would show that bald averments are made in the plaint
stating that the father of the plaintiff i.e. defendant No.1 inherited properties
which remained joint family property and ancestral property. This is so in
para 8, 10 and 17 of the plaint.
24. Keeping in view the above legal position and the averments made in
the plaint, it is manifest that the properties which are owned by defendant
No.1 cannot be said to be HUF or ancestral property. The plaintiff cannot
claim that he has a right by birth in these properties.
25. In this context reference may be had to the judgment of a co-ordinate
bench of this court in the case of Jai Narain Mathur vs. Jai Prakash
Mathur, 2016 (228) DLT 515 where the Court held as follows:-
―17....
(ii) This position of law alongwith facts as to how the
CS(OS) 100/2017 Page 18 of 22
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 ie
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.‖
26. In this case also the plaintiff has repeatedly mentioned the term joint
family property and ancestral property like a mantra without being able to
state as to how these properties can be said to be HUF properties or joint
family properties. The material facts which if accepted would lead to the
property being termed as HUF properties are absent from the plaint. Clearly,
the plaintiff has failed to show that any cause of action has accrued in his
favour.
27. Order 7 Rule 11 CPC reads as follows:-
―11. Rejection of plaint
The plaint shall be rejected in the following cases :-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff,
on being required by the Court to correct the valuation
within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the
plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the
CS(OS) 100/2017 Page 19 of 22
requisite stamp-paper within a time to be fixed by the Court,
fails to do so;
(d) where the suit appears from the statement in the plaint to
be barred by any law :
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of
rule 9;
xxxxxxx‖
28. Hence, where the plaintiff fails to show any cause of action, the plaint
is liable to be rejected.
29. The settled legal position is that while looking at an application under
Order 7 Rule 11 CPC, the court can only look at averments in the plaint
presuming them to be correct and the accompanying documents.
30. Reference may be had to the Judgment of this court in the case of
Tilak Raj Bhagat v. Ranjit Kaur & Ors., 2012 SCCOnLine Del 1675 where
this court held as follows:--
―6. It may be worthwhile to mention here that while considering an
application under Order 7 Rule 11 CPC, the Court has to look at the
averments made in the plaint by taking the same as correct on its
face value as also the documents filed in support thereof. Neither
defence of the defendant nor averments made in the application
have to be given any weightage. Plaint has to be read as a whole
together with the documents filed by the plaintiff.‖
31. Reference in this context may also be had to the judgment of the
Supreme Court in the case of Mayar (H.K.) Ltd & Ors v. Owners & Parties,
Vessel M.V. Fortune Express & Ors, (2006) 3 SCC 100 wherein the
Supreme Court held as follows:
CS(OS) 100/2017 Page 20 of 22
―12. From the aforesaid it is apparent that the plaint cannot be
rejected on the basis of the allegations made by the defendant in
his written statement or in an application for rejection of the
plaint. The Court has to read the entire plaint as a whole to find
out whether it discloses a cause of action and if it does, then the
plaint cannot be rejected by the Court exercising the powers
under Order 7, Rule 11 of the Code. Essentially, whether the
plaint discloses a cause of action, is a question of fact which has
to be gathered on the basis of the averments made in the plaint
in its entirety taking those averments to be correct. A cause of
action is a bundle of facts which are required to be proved for
obtaining relief and for the said purpose, the material facts are
required to be stated but not the evidence except in certain cases
where the pleadings relied on are in regard to misrepresentation,
fraud, wilful default, undue influence or of the same nature. So
long as the plaint discloses some cause of action which requires
determination by the court, mere fact that in the opinion of the
Judge the plaintiff may not succeed cannot be a ground for
rejection of the plaint.....‖
32. Similar are the observations of the Supreme Court in the case of
Vigneswara Coop. Housing Society Ltd. vs. K. Balachandramouli & Ors,
(2005) 13 SCC 506.
33. Applying the aforesaid legal position to the facts of the present case, it
would show that the suit is filed seeking partition of what are termed as
ancestral/HUF properties. However, other than making bald averments that
the properties which are in the hands of the father of the plaintiff, namely,
defendant No. 1 are ancestral/HUF properties, the plaint is completely bereft
of any details or material facts as to how the said properties can be said to be
ancestral/HUF properties. On the contrary, the plaint shows that the
properties have been inherited by defendant No 1 from his father through
CS(OS) 100/2017 Page 21 of 22
intestate succession or under Section 50 of the DLR Act and are not HUF
properties.
34. Clearly, the plaint fails to disclose any cause of action. The application
is accordingly allowed.
CS(OS)100/2017
Suit is dismissed. All pending applications, if any, also stand disposed
of accordingly.
JAYANT NATH, J.
OCTOBER 16, 2019/n CS(OS) 100/2017 Page 22 of 22