Delhi District Court
Sh. Abhishek Narain vs Rajiv Narain Shukul on 3 April, 2017
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGEII (CENTRAL): TIS HAZARI COURTS, DELHI
CS No. 499/16
New No.20715/16
1. Sh. Abhishek Narain
(Through his GPA Smt. Poonam Dabas)
2. Miss Akanksha Narain
(Through her natural Guardian)
Both R/o 1, LF, Babar Place,
Bengali Market,
New Delhi110001.
........ Plaintiffs
Versus
1. Rajiv Narain Shukul
S/o Late Prem Narain Shukla,
2. Smt. Kusum Shukla
W/o Late Prem Narain Shukla,
Both Resident of:
3786, Netaji Subhash Marg,
Darya Ganj, New Delhi110002.
...... Defendants
Date of Institution: 21.04.2008
Judgment Reserved on: 04.03.2017
Judgment Pronounced on: 03.04.2017
JUDGMENT:
(1) This suit has been filed by the plaintiffs against the defendants seeking a Decree of Permanent Injunction to restrain the defendants from selling, altering or creating third party interest Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 1 of 22 over all the ancestral properties including the property bearing No. 3786 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi 110002.
Plaintiff's Case:
(2) The case of the plaintiffs is that they have filed the present suit through their mother in her capacity as GPA for Plaintiff no.1 and as guardian of plaintiff no.2 against their grandmother and their father restraining them for selling, alienating, transferring, creating any third party rights over the ancestral properties bearing no. 3786 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi 110002. It is pleaded that on 07.03.1988 the marriage was solemnized under the Special Marriage Act, 1954 between defendant no.1 Rajiv Narain Shukul and Ms. Poonam Dabas and both the plaintiffs were born from the said wedlock. According to the plaintiffs, as a father the defendant no.1 did not carry out his responsibilities and obligation towards the plaintiffs and the entire responsibility of bringing up was met by their mother as a single parent. It is further pleaded that Late Radhika Narain Shukla was the great grandfather of plaintiffs and Late Prem Narain Shukla and defendant no.2 Smt. Kusum Shukla are the grandparents of the plaintiffs. It is also pleaded that Sh. Deepak Shukla is brother of Late Prem Narain Shukla and the properties bearing no. 3786 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi 110002 are amongst the many other ancestral properties.
(3) According to the plaintiffs, they came to know that the defendants wanted to sell the ancestral property bearing no. 3786 Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 2 of 22 Netaji Subhash Marg, Daryaganj, New Delhi110002, pursuant to which on 29.02.2008 they (plaintiffs) issued legal notices dated 26.02.2008 to defendants and a reply was also given by the defendant no.2. It is further pleaded that the contents of the reply to legal notice are incorrect and the reply indicates that defendants have malafide intentions to sell the properties bearing no. 3786 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi110002 illegally. It is pleaded that the value of the above properties is above Rs. Twenty Lacs. It is further pleaded that the cause of action arose firstly on 07.03.1988 when the parents of plaintiffs got married devolving legal rights to the children over the ancestral properties; secondly and thirdly on 09.10.1989 and 19.11.1991 when the plaintiffs were born;
fourthly on 29.02.2008 when plaintiff issued legal notice upon the defendants and lastly on 28.03.2008 when the reply dated 24.03.2008 was received in the chamber of the lawyer and the same is still subsisting.
Defendant's Case:
(4) The defendant no.1 Rajiv Narain Shukul has filed detail a written statement wherein a preliminary objection has been raised that the prayer of the plaintiffs in the suit for injunction is barred by Section 41 (i) and (j) of the Specific Relief Act because the plaintiffs have not approached this Court with clean hands and also because the plaintiffs have no personal interest or title in the suit property. It is further pleaded that the plaintiffs are not entitled to injunction as plaintiffs have no right or title in the property bearing Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 3 of 22 no. 3786 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi 110002 as the same is not the ancestral property of the defendant no.1 and hence the plaintiffs have no locus to file this suit which is liable to be dismissed. According to the defendant no.1, the present suit has not been properly valued for the purposes of court fees and jurisdiction and there is absolutely no cause of action in favour of the plaintiffs and against the defendants (5) On merits, the defendant no.1 has pleaded that the marriage between Ms. Poonam Dabbas the natural guardian of plaintiff no.2 and general power of attorney of plaintiff no.1 was dissolved by a decree passed by Sh. S.N. Agarwal, the then Ld. Addl.
Distt. Judge, Delhi (Hon'ble Mr. Justice S.N. Agarwal as was then) in HMA No. 318/93 vide judgment dated 23.05.1996. The defendant no.1 has conceded that Sh. Deepak Shukla is the brother of late Sh. Prem Narain Shukla he has denied that property bearing no. 3786 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi110002 are amongst the many other ancestral properties. According to the defendant no.1, the said properties are absolute property of defendant no.2 Smt. Kusum Shukla and Sh. Deepak Shukla. It is further pleaded that the defendant no.1 has no concern with property bearing no. 376 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi.
(6) The defendant no.2 Smt. Kusum Shukla has also filed a written statement wherein a preliminary objection has been raised that the suit for injunction is barred by Section 41 (i) and (j) of the Specific Relief Act because the plaintiffs have not approached this Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 4 of 22 Court with clean hands and also because the plaintiffs have no personal interest or title in the suit property. It is also pleaded that the plaintiffs are not entitled for injunction as the plaintiffs have no right or title in the property bearing no. 3786 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi110002 as the same is not the ancestral property of the defendant no.2.
(7) On merits, the defendant no.2 has pleaded that the property bearing no. 3786 to 3790, Netaji Subhash Marg, Daryaganj, New Delhi110002 is not ancestral property of the defendant no.1, rather it is the absolute property of defendant no.2 and Sh. Deepak Shukla in equal share, which was acquired by them vide registered Will of the former absolute owner. It is also pleaded that the marriage between Ms. Poonam Dabas, the natural guardian of plaintiff no.2 and general power of attorney of plaintiff no.2 was dissolved by a decree of divorce. According to the defendant no.2, the notice dated 26.02.2008 filed with suit was duly replied through her counsel.
ISSUES FRAMED:
(8) The plaintiff filed his replications to the respective written statements of the defendants. Thereafter, on the basis of the pleadings of the parties, vide order dated 12.01.2011 (Hon'ble Delhi High Court) framed the following issues:
1. Whether the properties bearing nos. 3786379, Netaji Subhash Marg, Darya Ganj, New Delhi110002 which were owned by Radhika Narain Shukla is not ancestral property? (OPD) Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 5 of 22
2. Whether the plaintiffs are entitled to the relief of permanent injunction? (OPP) [Here, I may note that the onus of proving this issue was upon the plaintiff whereas inadvertently it has been wrongly put upon the defendant and hence, being a typographical error, the same is corrected and the onus of proving this issue shall be read as upon the plaintiffs].
3. Relief.
EVIDENCE:
(9) In order to prove their case the plaintiffs have examined their mother Ms. Poonam Dabas as PW1; the plaintiff no.1 Ms. Akanksha Narain has examined herself as PW2 and the plaintiff no.1 Abhishek Narain has examined as PW3. On the other hand, the defendant no.2 Smt. Kusum Shukla has examined herself as D2W1 and Sh. Ashok Shukla as D2W2.
(10) For the sake of convenience, the details of the witnesses examined by the parties and their deposition are put in a tabulated form as under: Sr. Detail of the Deposition of the witness No. witness Plaintiffs Witnesses:
1. Smt. Poonam PW1 Ms. Poonam Dabas is the mother of the Dabas (PW1) plaintiffs who in her examination in chief by way of affidavit Ex.PW1/A, has corroborated what has been earlier stated in the main plaint.
In her cross examination by the Ld. Counsel for the defendants, the witness has deposed on the following aspects: Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 6 of 22 That apart from the property in question, there is one more property near a Temple in Daryaganj, which is not on the main road, which was inherited by the defendant no.1.
That she is not aware of the address of the said property but she knew the location of the same. That there is also a property in Central Lane, Bengali Market; one property in Lucknow also which she has visited and another property at B21, Sector28, Noida.
2. Ms. Akanksha PW2 Ms. Akanksha Narain is the plaintiff no.2 who Narain (PW2) in her examination in chief by way of affidavit Ex.PW2/A, corroborated what has been earlier stated in the main plaint.
In her cross examination by the Ld. Counsel for the defendants, the witness has deposed that the defendant no.1 has inherited the suit property but she is not not aware of the other properties.
3. Sh. Abhishek PW3 Sh. Abhishek Narain is the plaintiff no.3 who in Narain (PW3) his examination in chief by way of affidavit Ex.PW3/A, corroborated what has been earlier stated in the main plaint.
In his cross examination by the Ld. Counsel for the defendant, the witness has deposed that the defendant no.1 has inherited the suit property but he is not aware of the other properties.
Defendant's Witnesses:
4. Smt. Kusum D2W1 Smt. Kusum Shukla is the defendant no.1 who Shukla (D2W1) in her examination in chief by way of affidavit Ex.D2W1/A has corroborated what has been earlier stated in the written statement. She has placed her reliance on the following documents:
1. Copy of reply dated 29th March, 2008 which is Ex.D2W1/1.
2. Copy of registered relinquishment deed dated 6th September, 2006 which Ex.D2W1/2.
3. Copy of Mutation Order which is Ex.D2W1/3.
In her cross examination by the Ld. Counsel for the plaintiff, the witness has deposed on the following aspects: Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 7 of 22 That the plaintiffs are her grand children being children of her elder son/ defendant no.1 but she does not remember when the plaintiffs were born.
That she is not aware that defendant no.1 divorced his wife nor does she remember when the divorced decree was granted.
That she is not aware whether she has filed the divorced decree on record.
That at present she is residing at the address given in her affidavit i.e. 3786, Netaji Subhash Marg, Darya Ganj, Delhi where she is residing since her marriage in 1959.
That she got this property of Daryaganj from her husband.
That Sh. Radhika Narayan Shukla was the father of her husband and as such great grandfather of plaintiffs.
That Sh. Radhika Narayan Shukla got these properties through partition but she cannot say if the partition took place on 16.01.1968. That defendant no.1 changed his name to Rashid Narayan at the time of his second marriage with Muslim lady but she does not know when he did so.
That the defendant no.1 relinquished his share only after his conversion to Islam.
5. Sh. Ashok D2W2 Sh. Ashok Shukla is the son of the defendant Shukla (D2W2) no.2 and brother of the defendant no.1 who in his examination in chief by way of affidavit Ex.D2W2/A has corroborated the testimony of her mother Smt. Kusum Shukla in toto. He has placed his reliance on the Relinquishment Deed which is Ex.D2W1/2.
In his cross examination by the Ld. Counsel for the plaintiff, the witness has deposed on the following aspects: That the defendant no.1 is his brother and defendant no.2 is her mother.
That he know plaintiff no.1 being his brother's son but he does not know about plaintiff no.2. That he had 1/3rd share in the properties mentioned in Ex.D2W1/2.
That he got share in the property through her mother, defendant no.2.
Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 8 of 22 That he had 1/3rd share in 50% share of her mother and likewise defendant no.1 also had 1/3rd share in the properties.
That the Special Power of Attorney executed by defendant no.1 in his favour is annexed with relinquishment deed but there is no such SPA on record.
That the defendant no.1 as per his knowledge converted to Islam some time in 1998 but he is not sure.
FINDINGS & OBSERVATIONS:
(11) I have heard the arguments advanced before me and considered the written memorandum of arguments filed by the parties. I have also gone through the testimonies of the various witnesses examined by the parties and the documents on record. My findings on the various issues are as under:
Issue No.1: Whether the properties bearing nos. 3786379, Netaji Subhash Marg, Darya Ganj, New Delhi 110002 which were owned by Radhika Narain Shukla is not ancestral property? (OPD) Issue No.2: Whether the plaintiffs are entitled to the relief of permanent injunction? (OPP) (12) Both the issues are clubbed together for the sake of convenience involving common discussion and being interlinked.
Onus of proving the issue no.1 was upon the defendants and that of the issue no.2 upon the plaintiffs.
(13) The short grounds on which the defendants seek dismissal of the suit is firstly that the plaintiffs have wrongly and falsely claimed that the suit property bearing No. 3786 to 3790, Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 9 of 22 Netaji Subhash Marg, Daryaganj, New Delhi - 110002 to be ancestral property and secondly that the suit for Injunction Simplicitor is not maintainable as the consequential relief of Declaration and Possession have not been sought by the plaintiffs. In this regard the Ld. Counsel for the defendant no.2 has placed his reliance on the authority of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others reported in 2009 (2) L.W. 546 wherein the general principles as to when a suit for mere permanent injunction would lie and when it is necessary to file a suit for declaration and possession with injunction as a consequential relief, are well settled. It is submitted that the suit property is not the ancestral property of the defendant no.1 and in fact the suit properties are the absolute property of the defendant no.2 and Sh. Deepak Shukla in equal shares. In this regard, reliance is placed upon the Will dated 28.06.1971 wherein the said properties were devolved in favour of Late Sh. Prem Narain Shukla, Late Sh. Rupendra Narain Shukla and Sh. Deepak Shukla in equal shares. It is further submitted that the legal heir of Late Sh. Prem Narain Shukla, including the defendant no.1 had relinquished their shares in favour of the defendant no.2 vide registered Relinquishment Deed dated 06.09.2006 which is Ex.D2W1/1. It is also submitted that all the releasers, including defendant no.1 in the said relinquished deed released, disclaimed and gave up all their rights, title, interest, and share whatsoever in suit property in favour of the Defendant No.2 and hence the defendant no. 2 became the absolute owner of the half undivided share of Late Sh. Prem Narain Shukla in the suit Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 10 of 22 properties. It is further submitted that the said properties were mutated in favour of the defendant no.2 in the Municipal Corporation which Mutation Certificate dated 09.03.2007 is Ex.D2W1/3. In support of his contentions, Ld. Counsel for the defendant has placed his reliance on the following authorities:
1. Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others reported in (2009) 2 LW 546.
2. Uttam Vs. Saubhag Singh & Ors. Civil in Appeal No. 2360 of 2016.
3. Commissioner of Wealth Tax Vs. Chander Sen reported in AIR 1986 SC 247.
4. Yudhishter Vs. Ashok Kumar reported in AIR 1987 SC 558.
5. Commissioner of IncomeTax Vs. P.L. Karuppan Chettiar reported in 1993 Supp (1) SCC 580.
6. Rahul Behl and Ors. Vs. Smt. Ichayan Behl and Anr. reported in 1991 (3) Delhi Lawyers 275
7. Dr. Prem Bhatnagar Vs. Shri Ravi Mohan Bhatnagar & Ors. decided by the Delhi High Court on 8 March, 2006.
(14) On the other hand the case of the plaintiffs is that the defendant no.1 Sh. Rajiv Narain Shukul is their natural father who had obtained an exparte divorce decree vide order dated 23.05.1996 by way of which the marriage between their mother and the defendant no.1 was dissolved. It is submitted that the plaintiffs are living with their mother since 13.11.1992 as she was forced to leave her matrimonial house and since then the plaintiffs are in care and custody of their mother. It is also submitted that the suit property being an ancestral property was inherited by the plaintiffs by lineage.
Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 11 of 22 It is further submitted that the plaintiffs are the children of Hindu parents and their father Sh. Rajiv Narain Shukul had converted to Islam much later for purposes of marriage and the evidence on record confirms that he had relinquished his share after he was converted to Islam and hence under the given circumstances, as per the provisions of Section 26 of Hindu Succession Act, it is only the children who are born after such conversion are disqualified from inheriting the property by succession since they would not be Hindus at the time when the succession opens. According to the plaintiffs, since they were born to Hindu parents and the property in question being an ancestral property, the property in question devolves upon them by birth since the defendant no.1 converted himself to Islam in the year 1998 i.e. much after the birth of the plaintiffs and hence, under the given circumstances the defendant no.1 is barred by law to relinquish the share of his children who were born to him which he was a Hindu male. It is submitted that the plaintiff are entitled to 1/4 th share of the defendant no.1 in 50% of the suit properties and the defendants should be restrained from selling, alienating, transferring and creating a third party interest in the suit property. (15) I have considered the rival contentions and at the very Outset I may observe that the case of the defendants throughout is that the suit properties are not the ancestral properties of the defendant no.1 but are the absolute properties of the defendant no.2 Smt. Kusum Shukla and Sh. Deepak Shukla in equal shares. Before coming to the said averments, I may observe that there is no dispute in so far as the lineage is concerned. For the sake of clarity, the Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 12 of 22 family chart/ pedigree chart is as under:
P t. R a j N a r a in (G r e a t G r e a t G r a n d fa th e r ) L a te S .N . L a te H a r L a te In d er L a te R a d h ik a P a n d it N a r a in S h u k la N a r a in S h u k la (S o n (D a u g h te r) (D a u g h te r) (S o n ) (S o n ) (S o n ) - D ie d o n 0 8 .0 2 .1 9 9 7 -
E x e c u te d a W ill d a te d 2 8 .0 6 .1 9 7 1 ) (G re a t G ra n d fa th e r) R upendra P r e m N a r a in K u sum S m t. G ee ta L a te S m t. D eepak N a r a in S h u k la S h u k la S h u k la M is h r a M eena S h u k la ( S o n - D ie d (S o n - D ie d (W if e ) (D a u g h te r) S h u k la (S o n ) in te s ta te o n o n 1 8 .0 1 .1 9 7 2 ) (D -2 ) (D a u g h te r) 2 5 .0 5 .2 0 0 2 ) (G ra n d fa th e r) R a jiv N a r a in P oonam R achna A sh ok S h u k la D abas K adam S h u k la (S o n - D -1 ) (W ife - D iv o rc e d ) (D a u g h te r) (S o n ) A b h is h e k N a r a in A k a n k s h a N a r a in (S o n ) (D a u g h te r) ( P la in tiff - 1 ) ( P la in tif f - 2 ) Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 13 of 22 (16) Secondly, it is evident from the pleadings and the testimony of the defendant no.2 that the properties in question had devolved in favour of Late Sh. Prem Narain Shukla, Late Sh.
Rupendra Narain Shukla and Sh. Deepak Shukla vide Will dated 28.06.1971 which fact has not been disputed. As per the testimony of the defendant no.2, the legal heir of Late Sh. Prem Narain Shukla, including the defendant No.1 had relinquished their share in the said properties in favour of the defendant No. 2 vide Relinquishment Deed dated 06.09.2006 which is Ex.D2W1/2 by way of which all the releasers, including defendant No.1 released, disclaimed and gave up all their rights, title, interest and shares whatsoever in suit property in favour of the Defendant No. 2 and therefore the Defendant No.2 became the absolute owner of the half undivided share of Late Sh. Prem Narain Shukla in the suit properties which were mutated in favour of the Defendant No. 2 with the Municipal Authorities vide Mutation Certificate dated 09.03.2007 which is Ex.D2W1/3. In this regard, I note that the Relinquishment Deed has been admitted by the defendant no.1 in his written statement but despite the same no relief of declaration to the extent that the Relinquishment Deed Ex.D1W1/2 was bad in law has been sought by the plaintiffs. It is writ large that the plaintiffs are claiming their rights in the suit property being children of the defendant no.1 but according to the defendant no.1 he had already relinquishment his share in the property in favour of his mother Smt. Kusum Shukla widow of Late Sh. Prem Narain Shukla vide Relinquishment Deed which is registered as document no. 6283 in Addl. Book No. 1, Vol. No. 12, Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 14 of 22 089 on pages 145 to 149 dated 06.09.2006 in the office of Sub Registrar, New Delhi which was much prior to the filing of the present suit. Therefore, the defendant no.2 Smt. Kusum Shukla becomes the sole owner in possession of the half share of Late Sh. Prem Narain Shukla in the property in question wholly by virtue of aforesaid Relinquishment Deed.
(17) Thirdly, it is an admitted case of the plaintiffs that they are not in possession of any of the portion of the property in question and have not sought any declaration of their rights in respect of the properties in question. The plaintiffs not being in possession of the property, have only sought the relief of Injunction Simplicitor. In this regard the law is very clear. In the case of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Others reported in 2009 (2) L.W. 546 the Hon'ble Apex Court has observed and I quote as under:
"......... 11.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 15 of 22 11.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction....."
(18) A person out of possession of the property cannot seek the relief of Injunction Simplicitor without seeking declaration of title and consequential relief of possession. No doubt, nobody is obligated to bring declaratory suit and a party does not loose his subsisting right because he does not sue for declaration but in the present case, I cannot loose sight of this fact that the plaintiffs have never been in possession of the suit property and it is the defendants who are in uninterrupted possession of the same. Hence, by application of the above principles of law to the facts of the present case, the plaintiff not having sought the essential relief of Declaration and Possession would not be entitled to any discretion. (19) Fourthly, the plaintiffs have sought a relief of Permanent Injunction as against the entire property. The defendants have in their written statements very specifically pleaded that Sh. Deepak Shukla is also the coowner of the property and is in possession of the same. Despite the same, the plaintiffs have not impleaded Sh. Deepak Shukla as a necessary party to the suit.
Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 16 of 22 (20) Fifthly, even if the version of the plaintiffs is accepted and they are held to have a primafacie right over the property, yet the fact that they are not in possession of any of part the property is very relevant and they cannot seek an injunction against other coowners unless they are able to prove before this Court that the act of the person in possession of the property causes prejudice or is adverse to their interest. In this regard, the law relating to nature of properties inherited by the Hindu from his father under Section 8 of the Hindu Succession Act are well settled. In the case of Uttam Vs. Saubhag Singh & Ors. Civil, in Appeal No. 2360 of 2016 the Hon'ble Apex Court has observed as under:
"........ 20. That a conjoint reading of Sections 4, 8 and 19 of the Hindu Succession Act, 1956, 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......"
(21) Further, in the case of Commissioner of Wealth Tax Vs. Chander Sen reported in AIR 1986 SC 247 the Hon'ble Apex Court has held and I quote as under:
"......... 20. In view of the Preamble to the Act i.e. that to modify where necessary or to codify the law, in our opinion it is not possible when Schedule indicates heirs in Class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 17 of 22 contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to be preexisting Hindu law. It would be difficult to hold, today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF property in his hand visavis his own son; that would amount to creating two classes among the heirs mentioned in Class I, the male heirs in whose hands it will be joint Hindu family property and visavis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc....."
(22) Also, in the case of Yudhishter Vs. Ashok Kumar reported in AIR 1987 SC 558 it has been observed by the Hon'ble Apex Court that the property which devolved on a Hindu under Section 8 would not be an HUF property in his hand visavis his own son. The Hon'ble Court observed and I quote as under:
"........ 10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen , where Page 1029 one of us (Sabyasache Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and becomes part of the coparcenary. His right accrues to him not on the Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 18 of 22 death of the father or inheritance from the father but with the very fact of his birth. Normally therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity....."
(23) Further, in the case of Commissioner of Income Tax Vs. P.L. Karuppan Chettiar reported in 1993 Supp (1) SCC 580 the Hon'ble Apex Court has held and I quote as under:
"........ That in case the father's share is separated from his wife and son and the son along with his wife and children formed an HUF, after the death of the father intestate, the separate property of the father would be divided between his widow and son and the properties inherited by the son had to be treated as his individual and separate properties and not in the hands of the HUF......"
(24) Similar view has been taken in Rahul Behl and Ors. Vs. Smt. Ichayan Behl and Anr. reported in 1991 (3) Delhi Lawyers 275 wherein it has been observed that:
"........ The plaintiffs being the sons of the son were held not entitled to any right as a coparcener. The facts are somewhat apposite and thus can be discussed. The selfacquired property after the Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 19 of 22 death of the deceased was inherited by six heirs under Section 8 of the said Act in equal share. The remaining five legal heirs of the deceased released and relinquished their 1/6th share in favor of defendant No. 1 in the suit which Relinquishment Deed was duly registered and was acted upon by mutation of the property. It was held that on the death of the deceased, the property did not fall in the common pool nor became a coparcenary property but was inherited in separate equal shares by the heirs in their individual capacity. The property was thus not inherited by anyone as karta of a joint Hindu coparcenary but in the individual capacity in view of the provisions of the said Act. The property was held to be acquired to the exclusion of the sons of the party which benefited from the inheritance as well as the Relinquishment Deed. It was held not to be a coparcenary property. The Court observed as under:
7. ...Hindu Law as it stands today clearly postulates that if it is a selfacquired property of the father it falls into the hands of his sons not as coparcenery property but devolve on them in their individual capacity. Since defendant No. 2 acquired 1/6th share by inheritance in his individual capacity, therefore, to my mind, plaintiffs have no right in that 1/6th share of defendant No. 2. Defendant No. 2 had full authority to release and relinquish his 1/6th share to whomsoever he wanted......"
(25) A similar view has been taken by the Hon'ble Delhi High Court in the case of Dr. Prem Bhatnagar Vs. Shri Ravi Mohan Bhatnagar And Ors. decided on 8 March, 2006 wherein it has been that:
"........ 37. The provisions of the said Act modified the Ancient Hindu Law and in view of the clear mandate of Section 4 of the said Act, there can Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 20 of 22 again be little doubt over this matter. The succession thus takes place in accordance with Section 8 of the said Act contrary to the Ancient Hindu Law. The two judgments of the Supreme Court have clearly explained this position and have been repeatedly followed in subsequent judgments by the apex court and this court. The principle of law is that in view of Section 8 of the said Act, the son inherits the property from his father as a self acquired property. It is this principle which has to be kept in mind and which has been made applicable in the given facts of the present case.
38. In view of the aforesaid, the properties in the suit are held to be the individual properties of late Shri Amar Nath Bhatnagar and do not have the character of HUF/ancestral properties......"
(26) From a combine reading of the above authorities, it is clear that the property inherited by a son from his father does not partake the character of an ancestral property nor does he hold it as a karta of his own undivided family and such a property would be a selfacquired property.
(27) Hence, in the light of the aforesaid, I hereby hold that the dispute with regard to the legal rights of the plaintiffs having been raised visavis the suit property and the plaintiffs who are not in possession of the suit property having failed to seek any declaration with regard to their rights in the suit property either by way of lineage or by way of succession or by seeking a declaration to the effect that the Will dated 28.06.1971 and the Relinquishment Deed dated 06.09.2006 to be null and void; I hereby hold that the plaintiffs would not be entitled to the discretionary relief of Mandatory Injunction as asked for in the plaint. Even otherwise, in Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 21 of 22 their entire evidence the plaintiffs have failed to make a whisper of any threat to their title. Even the threat to threat of infringement to the rights of the plaintiff or the irreparable injury has not been proved.
(28) Upon evaluation of the circumstances before me, I hereby decline the discretionary relief of Injunction leaving the issue of title open to be adjudicated by the court of competent jurisdiction in the light of the Will dated 28.06.1971 and the Relinquishment Deed dated 06.09.2006 and the validity.
(29) Both the issues are accordingly decided in favour of the defendants and against the plaintiffs.
Relief:
(30) In view of my above discussion, I hereby hold that the plaintiffs are not entitled to any relief of Permanent Injunction as asked for in the plaint.
FINAL CONCLUSIONS:
(31) In view of my findings on the various issues, I hold that the plaintiffs are not entitled to any relief of Permanent Injunction as asked for in the plaint.
(32) Suit of the plaintiff is hereby Dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
(33) File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 03.04.2017 ADJII(CENTRAL)/ DELHI Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 22 of 22
Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr.CS No. 499/2016
03.04.2017 Present: None for the plaintiff.
None for the defendant no.1.
Sh. Sumit Goswami Advocate for the defendant no.2. Vide my separate detail order dictated and announced in the open court, but not yet typed, the suit of the plaintiff is Dismissed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
File be consigned to Record Room.
(Dr. Kamini Lau) ADJII(Central)/ 03.04.2017 Abhishek Narain & Anr. Vs. Rajiv Narain Shukul & Anr., CS No. 499/16 Page No. 23 of 22