Delhi District Court
Sh. Saurabh Kumar Puri vs Smt. Motia Rani on 25 April, 2018
IN THE COURT OF SH. SANJEEV KUMAR, ADDITIONAL DISTRICT JUDGE12, TIS
HAZARI COURTS, DELHI
Suit No. 14258/2016
Sh. Saurabh Kumar Puri,
S/o Sh. Ravi Kumar Puri,
R/o H.No. 2290/27 Jagadhari District,
Yamuna Nagar, Haryanai. ....Plaintiff.
Versus
1. Smt. Motia Rani,
W/o Late Sh. Om Prakash Puri,
R/o Gali No.3, Shankar Garden,
Bahadurgarh, Haryana.
Also at:
R/o WZ1599, Shakur Basti, Rani Bagh
Delhi - 110034.
R/o Gali No.3, Shakur Basti,
2. Sh. Ravi Kumar Puri,
S/o Late Sh. Om Prakash Puri,
R/o WZ1599, Shakur Basti, Rani Bagh
Delhi - 110034.
3. Smt. Rita Chauhan,
W/o Sh. Kumar Chauhan,
R/o M4, 15 A, Raguna Restaurant Wali Gali,
Model Town - III, Delhi.
4. Smt. Versa Rani,
W/o Sh. Raj Kumar,
R/o 306/7, Railway Colony,
Shakur Basti, Delhi - 110034.
Suit No. 14258/16 Page No. 1 of 29
5. Smt. Sunita Beniwal,
W/o Mahabir Beniwal,
R/o H.No. 190, Shiva Market, Village Pitampura,
Delhi 110034.
6. Smt. Kiran Arora,
W/o Sh. Satnam Arora,
R/o 252, Tarun Enclave,
Pitampura, Delhi. .....Defendants.
Date of institution : 13.01.2011
Date of reserving order : 18.04.2018
Date of decision : 25.04.2018
SUIT FOR PARTITION, SEPARATE POSSESION, DECLARATION AND
PERMANENT INJUCTION
JUDGMENT
The present suit has been filed by the plaintiff against the defendants for partition, separate possession,declaration and permanent injunction. The case of the plaintiff is that grand father of the plaintiff had acquired the property bearing no. WZ 1599, Shakur Basti, Rani Bagh, New Delhi measuring 100 sq. yds (herein after called as suit property) out of the ancestral funds in the year 195455. Later on the said Sh.
Om Prakash Puri died intestate and left behind his legal heirs i.e. Plaintiff and defendants no.1 to 5. Therefore, the defendants no. 1 to 5 cannot adversely act against the interests of plaintiff.
Suit No. 14258/16 Page No. 2 of 292. It is stated that the defendant no.1 is the grandmother of the plaintiff and defendant no.2 is the father of the plaintiff and defendants no.3 to 5 are paternal aunts(Buas) of plaintiff and defendant no.6 is the necessary party and plaintiff is the only son of defendant no.2. It is further stated that the defendant no.2 and the mother of the plaintiff had divorced each other and have been living separately and the plaintiff lives with his mother since his childhood at Yamuna Nagar, Haryana.
3. It is stated by the plaintiff in the plaint that he has filed the civil suit for mandatory and permanent injunction no. 66/2007, titled as Saurabh Kumar Puri Vs. Motia Rani and Others. During the pendency of said suit on 01.09.2010 the defendants no. 1,4,5 and 6 therein had informed the Court that they have already sold the suit property during the pendency of the said suit and they also filed a copy of relinquishment deed dated 04.02.2010 and a supplementary/recertification deed dated 12.04.2010 (Annexure A & B ) collectively. The defendant no.5 herein thereafter had further created a third party interest in favour of defendant no.6 vide sale deed dated 15.04.2010. The copy of said sale deed is placed on record as Annexure C. It is stated by the plaintiff that therefore, he had withdrew the said suit with the liberty to file the fresh suit against the defendant no.1 to 5. The plaintiff had got claim against defendants no. 1 to 5. During the pendency of the said suit third party interest had been created by defendants no. 1 to 5 in favour of defendant no.6.
Suit No. 14258/16 Page No. 3 of 294. It is further stated by the plaintiff that the said information had been received by the plaintiff on 01.09.2010 in the Court. Therefore, without any delay plaintiff filed an application U/o 23 Rule 1(3) read with Section 151 CPC and the same was disposed off vide order dated 6.12.2010 with liberty to file fresh suit. On seeing the relinquishment deed, the plaintiff noticed that photographs reflect on the said relinquishment does not appear to be of defendant no.2 who is father of plaintiff. This contention is proved on record by defendants no. 1,4,5 and 6 in their written statement in the previous suit that defendant no.2 is not mentally sound and due to the said reason defendant no.2 did not filed any written statement in said suit.
5. It is the case of the plaintiff that he and his mother were thrown out of the family in the year 1991 and defendants no. 1 to 5 do not have any interest, love and sympathy towards the plaintiff and they are in collusion with each other and they all are intending to deprive the plaintiff from his lawful and legal rights in the suit property.
6. It is the case of the plaintiff that he has apprehension that if the defendants no.1 to 6 are not restrained from creating the further third party interest and if they succeed in the ulterior motives, the would deprive the plaintiff of all his lawful rights and claims and therefore, the plaintiff had no other remedy available with him except to file the present suit before this Hon'ble Court with one of the claim of stay on Suit No. 14258/16 Page No. 4 of 29 further creating the third party interest.
7. It is further stated by the plaintiff that the defendants no. 1 to 5 have no legal right to deprive the plaintiff from his lawful rights in respect of the suit property nor they have any right to sell or transfer or create any third party right or dispose of the property in any manner in respect of the interest of the plaintiff.
8. It is stated by the plaintiff that the cause of action for filing the present suit firstly arose in August 2006, when defendants no. 1 to 5 allowed the outsider to use the suit property, secondly when the relinquishment deed dated 04.02.2010 and a supplementary recertification deed dated 12.04.2010 was executed by defendant no.1 to 4 in favour of the defendant no.5, thirdly when defendant no.5 thereafter, had created third party interest in favour of defendant no.6 vide sale deed dated 15.04.2010. It is stated by the plaintiff that the cause of action still persists as on today and would continue till the share of the plaintiff is not handed over to him by way of separate portion after partition. The suit property is situated in the territorial jurisdiction of this Court. The value of the suit property for the purpose of Court fee for jurisdiction and for relief of permanent injunction and declaration as prayed for by the plaintiff is assessed as Rs. 130/ each and for the purpose of partition and separate possession of the property the value of the suit is Rs. 15,38,608/.
Suit No. 14258/16 Page No. 5 of 299. It is therefore, prayed by the plaintiff that the defendants no. 1 to 6 as well as their legal heirs be also restrained from creating any further third party interest in the suit property by way of selling, letting out, transferring, mortgaging, creating any encumbrance and handing over the possession of suit property i.e. wz1599, Shakur Basti, Rani Bagh, Delhi - 110034. It is further prayed by the plaintiff that the defendants be further restrained from constructing, changing, demolishing, modifying the structure existed as on today in the suit property.
10. It is further prayed by the plaintiff that the relinquishment deed dated 04.02.2010, supplementary/recertification deed dated 12.04.2010 and consequential deed dated 15.04.2010 be declared as null and void not binding upon the plaintiff in any manner. It is further prayed by the plaintiff that partition of the suit property and direct handing over the peaceful vacant possession of the share of the plaintiff to him.
11. The defendants no. 3,4 and 5 have filed joint written statement in which they have taken preliminary objection that the plaintiff has no locus standie to file the present suit as he is not the class I legal heir of deceased Om Prakash Puri as per Hindu Succession Act, hence the present suit is not maintainable and is liable to be rejected. Other preliminary objection taken by defendants no. 3,4 and 5 is that present suit of the plaintiff is not maintainable as per Section 8 of the Hindu Succession Act as Suit No. 14258/16 Page No. 6 of 29 the plaintiff has no right, title or interest in the suit property as his father is still alive.
The said suit property is the self acquired property of late Sh. Om Prakash Puri and not an ancestral property and hence the present suit is liable to be dismissed.
12. On merits the defendants have denied the contents of the plaint as incorrect. It is denied by the defendants that the plaintiff has any relation with late Sh.
Om Prakash Puri as well as other family members. It is also alleged in the written statement that the suit propertry is the self acquired property of late Sh. Om Prakash Puri and the answering defendants no.3,4 and 5 being the class I legal heir of Late Sh.
Om Prakash Puri and therefore, they have every right to Act law and have every right to relinquish their share to anybody else and since the plaintiff is not the classI legal heir of deceased Sh. Om Prakash Puri hence he has no right title or interest in the suit property. It is further denied by them that they are paternal aunt of the plaintiff. It is submitted by the defendants that the mother of the plaintiff has already taken divorce and has also taken full and final maintenance i.e. past, present and future for herself and for the plaintiff at the time of divorce. It is further denied that the photograph on the relinquishment deed does not appear to be of defendant no.2. it is stated that the plaintiff has never seen defendant no.2 till date and therefore cannot say that the photograph on the relinquishment deed is of defendant no.2 or not.
Suit No. 14258/16 Page No. 7 of 2913. Defendant no.6 has filed separate written statement in which he has taken preliminary objection that he has a bonafide purchaser who has purchased the suit property/vacant land measuring 100 sq.yds after paying consideration amount of Rs. 16,00,000/ to the vendor i.e. defendant no.5 who was the absolute owner vide relinquishment deed dated 4/5.02.2010 and rectification/supplementary deed dated 12/13.04.2010. it is further stated on merits that defendant no.6 has also denied the contents of the plaint as incorrect for want of knowledge.
14. Replication was filed by plaintiff to the written statement in which has denied the contents of written statement as incorrect and has reiterated the contents of the plaint as true and correct. He has alleged that the plaintiff has no right, title or interest in the suit property. He has further stated that the defendant no.2 is mentally ill and is therefore, not competent to relinquish his share and the same is admitted by defendants no. 1,3,4 and 5 and hence he was not competent to execute the relinquishment deed in question. Hence the relinquishment deed executed by defendants no. 1,to 4 is a fraud document and is liable to be prosecuted U/s 420/468/471/195 read with section 340/120 B IPC.
15. After completion of pleadings of the parties following issues were framed on 04.10.2012.: Suit No. 14258/16 Page No. 8 of 29
1. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP.
2. Whether the alleged Relinquishment Deed dated 04.02.2010 and sale deed dated 15.04.2010 is null and void? OPP.
3. Whether the plaintiff is entitled for decree of partition as prayed for? OPP.
4. Whether the plaintiff has not come to court with clean hands? OPD.
5. Whether the suit of the plaintiff is not maintainable as per Section 8 of the Hindu Succession Act? OPD.
6. Relief.
16. Thereafter, plaintiff has led his evidence. He examined himself as PW1 and led his examination in chief by way of affidavit, Ex. PW1/A. In his affidavit, he almost reiterated the same facts as stated in the plaint.
17. Thereafter, additional issue was framed on 18.04.2018 as under : "Whether the suit is not maintainable because father of plaintiff, i.e. defendant no.2, is still alive? OPD".
Suit No. 14258/16 Page No. 9 of 2918. Since additional issue was treated as preliminary issue, therefore, arguments were heard on the additional issue. My findings on additional issue are as under:
19. It is argued by the counsel for the defendants that the property in question was admittedly owned by Late Sh. Om Prakash Puri who was the husband of defendant No. 1 and father of defendant Nos. 2 to 5 and grandfather of the plaintiff. He submits that Sh. Om Prakash Puri died intestate leaving behind first class legal heirs i.e. defendant No. 1 to 5 being his widow and children and therefore, the property in question would devolved by way of Section 8 of Hindu Succession Act and not by way of survivorship. Therefore, after the death of Sh. Om Prakash Puri, defendant Nos. 1 to 5 became joint owners of the property and since the defendant No. 2, who was the father of the plaintiff is still alive. Plaintiff cannot get any right in the property in question.
Hence, the suit filed by the plaintiff is not maintainable and liable to be dismissed as he has no right, title or interest in the property in question.
20. On the other hand, counsel for the plaintiff has argued that the plaintiff being the grandson of Sh. Om Prakash Puri is a coparcener and has inherited the property in question. Therefore, the suit is maintainable even if his father i.e. defendant No. 2 is alive as property will devolve by way of survivorship and not by way of Suit No. 14258/16 Page No. 10 of 29 succession to class 1 legal heir hence being coparcernor the plaintiff is entitle to his share in the property.
21. He further argued that otherwise since defendant Nos. 1 and 3 to 5 have admitted in the earlier suit bearing CS No. 66/07 titled as "Saurabh Kumar Puri s. Motia Rani" filed by the plaintiff that defendant No. 2 is of unsound mind. Therefore, the alleged relinquishment deed executed by defendant No. 2 in favour of defendant No. 5 is appeared to be either fabricated or forged and the same cannot be treated as valid as defendant No. 2 was not capable to execute the same. Hence, the sale deed in favour of defendant No. 6 by defendant No. 1 on the basis of said relinquishment deed is also against the law and should be treated as cancelled. Hence, in the circumstances, the plaintiff is entitled to succeed the share of the defendant No. 2 being his son.
22. I have heard the arguments and have gone through the record.
23. The issue here is that whether a person can claim any right in the property of his deceased grandfather during the lifetime of his father being coparcernor.
This issue involve the question whether property will devolved to legal heir as per section 8 of the Hindu Succession Act 1956 or as per survivorship. Before deciding the issue it would be appropriate to reproduce the section. Sections 6, 8 and 9 of the Suit No. 14258/16 Page No. 11 of 29 Hindu Succession Act which deals with devolution of property of a male Hindu are reproduced hereunder : [ 6 Devolution of interest in coparcenary property. --
(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of subsection (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by Suit No. 14258/16 Page No. 12 of 29 testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the predeceased son or a predeceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre deceased daughter; and
(c) the share of the predeceased child of a predeceased son or of a predeceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or a predeceased daughter, as the case may be.
Explanation. --For the purposes of this subsection, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or greatgrandson for the recovery of any debt due from his father, grandfather or greatgrandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or greatgrandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession Suit No. 14258/16 Page No. 13 of 29 (Amendment) Act, 2005*, nothing contained in this subsection shall affect--
(a) the right of any creditor to proceed against the son, grandson or greatgrandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. --For the purposes of clause (a), the expression "son", "grandson" or "greatgrandson" shall be deemed to refer to the son, grandson or greatgrandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. -- For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.] Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005] Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the Suit No. 14258/16 Page No. 14 of 29 daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely:-- "6A. Equal rights to daugher in coparcenary property.-- Notwithstanding anything contained in section 6 of this Act--
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the coparcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving Suit No. 14258/16 Page No. 15 of 29 child of such predeceased son or of such predeceased daughter:
Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
6B Interest to devolve by survivorship on death. -- When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara coparcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that if the deceased had left any child or child of a predeceased child, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.
Suit No. 14258/16 Page No. 16 of 29(Explanations) -- (1) For the purposes of this section the interest of female Hindu Mitakshara coparcenary shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.
(2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the coparcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein. 6C Preferential right to acquire property in certain cases. -- (1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under subsection (1) shall in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.
(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the Suit No. 14258/16 Page No. 17 of 29 transfer shall be preferred. Explanation.-- In this section 'court' means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the Official Gazette specify in this behalf. [ Vide Karnataka Act 23 of 1994, sec. 2 (w.e.f. 3071994).]
(i) The contention of the petitioners that there was automatic partition amongst the heirs of the deceased Karta on his death has been negatived because it is only when the deceased had left his surviving female heirs as provided in proviso to section 6 of the Act, a notional partition is deemed to have taken place in the joint family property for the purpose of ascertaining the share of the deceased in the joint family properties which comes to the share of the female heirs. If there are male heirs there is no automatic partition; Shivgonda Balgonda Patil v. Director of Resettlement, AIR 1992 Bom 72.
(ii) The heirs will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition; Gurupad v. Hirabai, AIR 1978 SC 1239.
(iii) The fiction in the explanation of section 6 of the Act should be carried to a narrow extent only with a new point to implement the purpose for which it was introduced. When there were only two coparceners and one of them died, then if any person other then the coparcener is entitled to a share as a result of severance of the share of the deceased coparcener, the share of such other person will become fixed; Shushilabai v. Naraynarao, AIR 1975 Bom 257.
Suit No. 14258/16 Page No. 18 of 29(iv) The deceased coparcener's share gets fixed on the date of his death, subsequent fluctuations in the fortunes of the coparceners do not affect it; Karuppa v. Palaniammal; AIR 1963 Mad 254.
7 Devolution of interest in the property of a tarwad, tavazhi, kutumba, kavaru or illom . --
(1) When a Hindu to whom the marumakkattayam or nambudri law would have applied if this Act had not been passed, dies after the commencement of this Act, having at the time of his or her death an interest in the property of a tarwad, tavazhi or illom, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not according to the marumakkattayam or nambudri law. Explanation.-- For the purposes of this subsection, the interest of a Hindu in the property of a tarwad, tavazhi or illom shall be deemed to be the share in the property of the tarwad, tavazhi or illom, as the case may be, that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the tarwad, tavazhi or illom, as the case may be, then living, whether he or she was entitled to claim such partition or not under the marumakkattayam or nambudri law applicable to him or her, and such share shall be deemed to have been allotted to him or her absolutely. (2) When a Hindu to whom the aliyasantana law would have applied if this Act had not been passed, dies after the commencement of this Act, having at the time of his or her death an undivided interest in the property of a kutumba or kavaru, as the case may be, his or her interest in the property shall devolve by testamentary or intestate succession, as Suit No. 14258/16 Page No. 19 of 29 the case may be, under this Act and not according to the aliyasantana law. Explanation.-- For the purposes of this subsection, the interest of a Hindu in the property of a kutumba or a kavaru shall be deemed to be the share in the property of the kutumba or kavaru as the case may be that would have fallen to him or her if a partition of that property per capita had been made immediately before his or her death among all the members of the kutumba or kavaru, as the case may be, then living, whether he or she was entitled to claim such partition or not under the aliyasantana law, and such share shall be deemed to have been allotted to him or her absolutely.
(3) Notwithstanding anything contained in subsection (1), when a sthanamdar dies after the commencement of this Act, sthanam property held by him shall devolve upon the members of the family to which the sthanamdar belonged and the heirs of the sthanamdar as if the sthanam property had been divided per capita immediately before the death of the sthanamdar among himself and all the members of his family then living, and the shares falling to the members of his family and the heirs of the sthanamdar shall be held by them as their separate property. Explanation.-- For the purposes of this subsection, the family of a sthanamdar shall include every branch of that family, whether divided or undivided, the male members of which would have been entitled by any custom or usage to succeed to the position of sthanamdar if this Act had not been passed. State Amendment Kerala: In section 7, in subsection (3)--
(a) between the words "him" and "shall", the words "or her", between the words "himself" and "and", the words "or herself" and between the words Suit No. 14258/16 Page No. 20 of 29 "his" and "family" in the two places where they occur the words "or her"
shall be respectively inserted;
(b) in the e xplanation, the word "male" shall be omitted;
(c) the existing Explanation shall be numbered as Explanation I and the following Explanation shall be added, namely:--
"Explanation II.-- The devolution of Sthanam properties under sub section (3) and their division among the members of the family and heirs shall not be deemed to have conferred upon them in respect of immovable properties any higher rights than the sthanamdar regarding eviction or otherwise as against tenants who were holding such properties under the sthani ." [ Vide Kerala Act 28 of 1958, sec. 27 (w.e.f. 1851958).]
8. General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
9. Order of succession among heirs in the Schedule.--Among the heirs specified in the Schedule, those in class I shall take simultaneously Suit No. 14258/16 Page No. 21 of 29 and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession".
24. Further Schedule I of the Act contain the list of class I legal heir which is as under:
"Class I Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a pre deceased son of a predeceased son; widow of a predeceased son of a predeceased son; 1[son of a predeceased daughter of a predeceased daughter; daughter of a predeceased daughter of a predeceased daughter; daughter of a predeceased son of a predeceased daughter; daughter of a predeceased daughter of a predeceased son]".
25. It is admitted position that the defendant No. 1 being widow of Sh. Om Prakash Puri and defendant Nos. 2 to 5 being sons of Sh. Om Prakash Puri are the Class I legal heirs. From perusal of entire pleadings and documents, it is not evident that Sh. Om Prakash Puri had died but it would not make any difference as there is no change in law regarding devolution of rights of a male Hindu except the only change as amendment in the Hindu Succession Act that the daughters have been make co parceners. By virtue of Sections 6 & 8 of Hindu Succession Act, property will devolve Suit No. 14258/16 Page No. 22 of 29 upon defendant Nos. 2 to 5 and not devolve upon plaintiff by way of survivorship.
Hence, till the death of defendant No. 2 being father of plaintiff, the plaintiff did not get any right in the property in question. In this regard, I rely upon the Judgment of Uttam Vs. Saubhag Singh & Ors., 2016 (2) CLJ 1 SC passed by the Hon'be Supreme Court of India wherein it was held that, "20. (i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death and interest in 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 Suit No. 14258/16 Page No. 23 of 29 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 selfacquired 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.
21. Applying the law to the facts of this case, it is clear that on the 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".
Suit No. 14258/16 Page No. 24 of 2926. Further In Satyawati vs Surajbhan & others CS(OS) 170/17 dated 18.04.17 Hon'ble Justice R.S Endlaw held as under:
"4. The claim of the plaintiff, to a share in the property and hence for partition, being based only on the ground of the father of the plaintiff having inherited the properties of which partition is sought from his own father, it has been enquired from the counsel for the plaintiff, under which law does the plaintiff acquires a share in the properties inherited by her father from his own father. Attention of the counsel for the plaintiff was drawn to the Hindu Succession Act, 1956 which governs succession of a male Hindu, as Inder Raj was and whereunder the property of a male Hindu dying intestate devolves only on his widow and sons and daughters and not on grandchildren. CS(OS) 170/2017 Page 2 of 4 5. Thus, under the Hindu Succession Act, the properties of Inder Raj (being the paternal grandfather of plaintiff) would devolve on Suraj Bhan (being the father of plaintiff and defendant No.1 in this suit) and not on plaintiff (being the granddaughter of Inder Raj and daughter of Suraj Bhan). 6. This issue has been threshed out in detail as far back as in Commissioner of Wealth Tax, Kanpur Vs. Chander Sen (1986) 3 SCC 567 and Yudhishter Vs. Ashok Kumar (1987) 1 SCC 204 by the Supreme Court and thereafter repeatedly by this Court in Master Daljit Singh Vs. S. Dara Singh AIR 2000 Delhi 292, Neelam Vs. Sada Ram 2013 SCC OnLine Del 384, Harvinder Singh Chadha Vs. Saran Kaur Chadha 2014 SCC OnLine Del 3413 (DB), Sunny (Minor) Vs. Raj Singh (2015) 225 DLT 211, Mukesh Kumar Vs. Pavitra 2016 SCC OnLine Del 4907 and Surender Kumar Vs. Dhani Ram AIR 2016 Del 120. 7.Suit No. 14258/16 Page No. 25 of 29
Unfortunately, the suits continue to be filed under a misconception children have a right in the property inherited by their father from the grandfather. 8. Under the same misconception the counsel for the plaintiff on the first call kept on simply urging that the plaintiff has a right to the properties since the properties had been inherited by her father from the paternal grandfather of the plaintiff. 9. On passover, the counsel for the plaintiff has drawn attention to Ganduri Koteshwaramma Vs. Chakiri Yanadi (2011) 9 SCC 788. 10. Ganduri Koteshwaramma supra is with respect to coparcenary property, dealt with under Section 6 of the Hindu Succession Act, as distinct from self acquired property. CS(OS) 170/2017 Page 3 of 4 11. The plaintiff has nowhere pleaded existence of any coparcenary or coparcenary property. The fact that the case of the plaintiff is not based on coparcenary property is also evident from the fact that all the heirs of Inder Raj or all the properties of Inder Raj which may have been inherited by the other sons and daughters of Inder Raj are not subject matter of suit as would have been the case had there been any coparcenary of Inder Raj. Though till the amendment of the Hindu Succession Act in the year 2005, the daughters did not have a share in coparcenary property but thereafter have. The suit is with respect to the properties which Suraj Bhan alone inherited from Inder Raj and only against wife and children of Suraj Bhan. 12. The property inherited by a male Hindu from his father, after coming into force of the Hindu Succession Act, is held by such male Hindu as his personal property and does not become ancestral or coparcenary property in his hand in which his own children would have a share by birth. Nor does a coparcenary come into existence on a Hindu male inheriting properties Suit No. 14258/16 Page No. 26 of 29 from his father under the Hindu Succession Act. The use by the plaintiff of the term "Joint Hindu Family" in the plaint is not in the context of a coparcenary. Jointness is else a facet of a Hindu family".
27. Recently in Kamlesh Devi Vs. Shyam Sunder Tyagi, CS (OS) No. 644/17 dated 18.4.2017 passed by the Hon'ble High Court of Delhi again reiterated the same position. The relevant portions of the said Judgments are reproduced as under : "9. The misconception, with which this suit suffers, is that the property inherited by the father of the plaintiff from the grandfather of the plaintiff who died after coming into force of the Hindu Succession Act, 1956 i.e. in the year 19992000, is ancestral or coparcenery property in the hands of the father of the plaintiff and which was one of the changes brought about by the Hindu Succession Act passed in the year 1956. Everybody seems to remember the law existing more than 70 years age and nobody seems to remember the law which has been in force for the last about 70 years. 10. As far as the reference to the Hindu Succession (Amendment) Act, 2005 is concerned, the only change which is brought about by the same is with respect to coparcenery property, as distinct from personal property succession whereof is covered under Section 8 of the Act and to which no change has been brought. However, for Section 6 to apply, there has to be a coparcenery property and Hindu Succession (Amendment) Act, 2005 did not convert the individual property of a person into a coparcenery property. 11. Not only is there not a plea or a whisper in the plaint of the aforesaid agricultural land being a coparcenery property but the plaintiff has rather admitted that Suit No. 14258/16 Page No. 27 of 29 her grandfather Sh. Hukam Singh was the sole proprietor and Bhoomidar of the said agricultural land. The said agricultural land on the demise of Sh. Hukam Singh would be inherited by his class I heirs only and since the father of the plaintiff was living at the time of demise of his father as he is even now, the plaintiff was not a class I heir of her grandfather. It was only under the old Hindu Law prevalent prior to the Hindu Succession Act, 1956, that the property inherited by a son from his own father became coparcenery property in which the grandsons of the deceased also had a share. 12. The said old Hindu law with respect to coparcenery property was continued vide Section 6 of the Hindu Succession Act and which has been amended with effect from the Amendment Act, 2005. 13. The suit is thus misconceived and liable to be dismissed".
28. Hence in view of above I held that property of a deceased male will devolve by way of succession to class I legal heir and not by survivorship to coparcernor. Hence plaintiff has no right in the property of Omparkash Puri devolve upon plaintiff during the lifetime of his father.
29. As far as the another contention of the counsel for the plaintiff that father of the plaintiff was of unsound mind at the time of alleged execution of relinquishment deed of property in question therefore, being his son, the appellant had right in the property in question, if relinquishment deed is cancelled which will lead the cancellation Suit No. 14258/16 Page No. 28 of 29 of sale deed. In my opinion, even if I presume for the sake of arguments that the defendant No. 2, father of the plaintiff is of unsound mind, since the present case has not been filed by the plaintiff on behalf of defendant No. 2 being his next friend as per order 32 of the Civil Procedure Code 1908 but has been in individual capacity as coparcenor claiming partition of the property in question. Therefore, the plaintiff has no right to challenge the execution of relinquishment deed by his father on the ground that he was of unsound mind at the time of execution of relinquishment deed.
30. In view of the above discussion I held that the plaintiff has no right, in the property in question till his father is alive. Hence, the present suit is not maintainable. Additional issue is decided accordingly against the plaintiff.
31. RELIEF.
In view of my finding in additional issue, there is no need to decide other issues. I hereby dismiss the present suit being non maintainable. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Announced in the open Court on 25.04.2018 ( Sanjeev Kumar) Additional District Judge12,(Central), Tis Hazari Courts, Delhi 25.04.2018.
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