Delhi High Court
Rajat Khanna & Anr. vs R.P. Khanna & Ors. on 20 March, 2013
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 20th March, 2013
+ CS(OS) No.784/2012
RAJAT KHANNA & ANR. ..... Plaintiffs
Through: Mr. Chetan Sharma, Sr. Adv. with
Mr. Vaibhav Gaggar, Adv.
Versus
R.P. KHANNA & ORS. ..... Defendants
Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1.The plaintiff No.1 seeks partition of property No.B-6/7, Vasant Vihar, New Delhi from his father defendant No.1 and has impleaded his father's siblings / their heirs as defendants No.2 to 13.
2. It is the case of the plaintiff No.1 in the plaint:
(i) that his grandfather Late Sh. O.P. Khanna was the exclusive owner of the said property;
(ii) that the grandfather Sh. O.P. Khanna died intestate on 24.09.1985, leaving a widow Smt. Kamla Rani Khanna, three sons viz. the defendants No.1&2 and Sh. R.K. Khanna being the predecessor of defendants No.4, 5 & 13 and two daughters viz. CS(OS) No.784/2012 Page 1 of 6
defendant No.3 & Smt. Achala Mehta, predecessor of defendants No.6 to 8;
(iii) that on the demise of the grandfather Sh. O.P. Khanna, the property devolved on all the heirs aforesaid;
(iv) that the plaintiff No.1 was borne on 21.10.1977 i.e. before the demise of his grandfather on 24.09.1985 and thus the plaintiff No.1 acquired a vested right by birth in the 1/6 th share of his father in the aforesaid property;
(v) that the 1/6th share inherited by the defendant No.1 being the father of the plaintiff No.1 became ancestral property in the hands of the defendant No.1, the defendant No.1 having inherited the same from his own father;
(vi) that Smt. Kamla Rani Khanna being the mother of the defendant No.1 also died intestate on 06.10.1995 and thus her 1/6th share in the property devolved on her three sons and two daughters;
(vii) that though the plaintiff No.1 was residing in the aforesaid property but owing to the dispute with his father was constrained to leave the said property; and CS(OS) No.784/2012 Page 2 of 6
(viii) that the plaintiff No.1 had sought partition and which had been denied.
The plaintiff No.1 on the aforesaid pleas claims that his minor son plaintiff No.2 also has a share in the property.
3. The defendant No.1 in his written statement has pleaded:
(i) that the suit is not maintainable in view of the Commissioner of Wealth Tax, Kanpur Vs. Chander Sen AIR 1986 SC 1753, Yudhishter Vs. Ashok Kumar AIR 1987 SC 558 and Pratap Vs. Shiv Shanker 164 (2009) DLT 479;
(ii) that after the demise of Sh. O.P. Khanna on 24.09.1985, all his sons and daughters including the defendant No.1 relinquished their respective rights in the property in favour of their mother Smt. Kamla Rani Khanna by registered Relinquishment Deed.
Thus Smt. Kamla Rani Khanna became the sole and absolute owner of the property;
(iii) that Smt. Kamla Rani Khanna vide registered Will dated 18.05.1995 bequeathed the property in favour of her sons; and
(iv) that as such on the demise of Smt. Kamla Rani Khanna, her sons including the defendant No.1 became the owners of the property. CS(OS) No.784/2012 Page 3 of 6
4. The defendant No.1 has also filed an application being I.A. No.12314/2012 under Order 7 Rule 11 of the CPC.
5. The suit came up for hearing on 08.03.2013 on the aforesaid application of the defendant No.1 when the counsel for the defendant No.1 invited attention besides to the judgments aforesaid, on Neelam Vs. Sada Ram MANU/DE/0322/2013, Master Sushant (Minor) Vs. Sh. Sunder Shyam Singh MANU/DE/6206/2012 and Amit Johri Vs. Deepak Johri MANU/DE/5924/2012 also holding to the effect that a son acquires no right in the property inherited by his father from his own father if the grandfather has died after the coming into force of the Hindu Succession Act, 1956 as the position is in this case.
6. The counsel for the plaintiffs on that date sought adjournment.
7. The counsel for the plaintiffs has at the outset argued that the judgments Chander Sen & Yudhishter supra on taxation matters would not apply to a civil suit for adjudication of rights. It is contended that it is only in the context of taxation that in the said judgments, it has been held that a son has no right in the property inherited by his father from his own father but under the Hindu law there would be a right. Finding the argument to be preposterous inasmuch as there could be no two laws qua rights in CS(OS) No.784/2012 Page 4 of 6 immovable property, one for taxation purposes and the other for asserting rights in the Civil Court, it was enquired from the counsel for the plaintiffs whether he could substantiate the said argument on any precedent. Though the counsel vehemently contended that it has been so held in several judgments but could not cite any and ultimately conceded that what has been held is that statements made to the taxation authorities can be explained in civil proceedings.
8. The counsel for the plaintiffs then pegged his entire case on the judgment of the Division Bench of the Gauhati High Court in Gauri Shankar Agarwalla Vs. Madanlal Agarwalla MANU/GH/0718/2010. However upon being asked whether the grandfather, in the facts of that case, had died prior to the coming into force of the Hindu Succession Act, 1956 or thereafter, the counsel again though stated after 1956 but could not show the same from the judgment.
9. In my view, in the light of the categorical dicta of the Supreme court followed by this Court in several judgments, the matter is no longer res integra. The judgment in Gauri Shankar Agarwalla supra proceeded on the premise of the property belonging to a joint family and / or a coparcenary. It is not so in the present case.
CS(OS) No.784/2012 Page 5 of 6
10. Though the plaintiffs have not filed replication to the written statement of the defendant No.1 but the senior counsel for the plaintiffs while joining the argument did not controvert that the defendant No.1 and his other siblings after the demise of the father had relinquished the share inherited by them in the property in favour of their mother and that the defendant No.1 is now holding the property under a Will of his mother. In this light of the matter, in any case, the property cannot be said to be HUF property. The defendant No.1, being the father of the plaintiff No.1, is today holding the property having inherited the same under the Will of his mother and not as an heir of the father. The senior counsel for the plaintiffs also admits that the question of the property being HUF property or coparcenary property thus does not arise in any case.
11. The suit is patently misconceived and is dismissed.
12. However, owing to the close relationship of the parties and the suit having been dismissed at an early stage and in the hope that the plaintiffs will allow the dismissal of the suit to bring about harmony in the family and not create further acrimony, no costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J MARCH 20, 2013/'gsr'..
CS(OS) No.784/2012 Page 6 of 6