Delhi District Court
Srishty Mittal vs Shri K.K. Mittal on 19 November, 2016
IN THE COURT OF SHRI GAGANDEEP SINGH: ADDITIONAL
SENIOR CIVIL JUDGE : JSCC : GUARDIAN JUDGE,
KARKARDOOMA COURTS (EAST)
Suit No. 7945/16
1. Srishty Mittal
d/o Shri K.K. Mittal
2. Tapush Mittal
s/o Shri K.K. Mittal
through his natural guardian / mother
Smt. Sangeeta Mittal w/o Shri K.K. Mittal.
Both r/o House No. X/2818, Gali no.5,
Raghubar Pura No.2, Gandhi Nagar, Delhi31.
Also at:
C74, Pandav Nagar,
Delhi110092.
............... Plaintiffs.
Versus
1. Shri K.K. Mittal
s/o late Shri Darbari Lal Mittal
2. Smt. Manju Mittal
w/o Late Shri Vinay Kumar Mittal
3. Shri Rajesh Mittal
s/o late Shri Darbari Lal Mittal
4. Shri Vipin Mittal
s/o late Shri Darbari Lal Mittal
5. Smt. Sheela Gupta
d/o late Shri Darbari Lal Mittal
All r/o
House No. X/2818, Gali no.5,
Raghubar Pura No.2, Gandhi Nagar,
Delhi31.
.............. Defendants.
Suit No. 7945/16 Page No. 1/7
JUDGMENT
1. Vide this judgment, I shall decide the following preliminary issue framed on 05.05.2016 : Whether the suit is maintainable in its present form ? OPD
2. The facts in brief are that marriage of the mother of plaintiffs was solemnized with defendant no.1 on 10.12.1994 according to Hindu rites and customs. The property no. X/2819, Gali no.5, Rabhubar Pura No.2, Gandhi Nagar, Delhi31 (hereinafter referred to as suit property) measuring 100 sq. yards is the ancestral property of plaintiffs. The said property was purchased by the grandfather of plaintiffs namely late Shri Darbari Lal from his own earnings. The grandfather expired intestate on 05.09.2015 leaving behind all the defendants as his legal heirs. The grandmother of plaintiffs has already expired on 28.03.2015.
3. The defendants committed utmost cruelties and domestic violence towards the mother of plaintiffs. Under said compelling circumstances they are residing separately at C74, Pandav Nagar, Delhi. However, certain portion on the ground floor in the suit property is still in their possession.
4. The defendant no.1 is having illicit relations with many women who was caught by the police officials of P.S. GKI, New Delhi. The plaintiff's mother has also filed an application u/s 12 of Domestic Violence Act which is pending consideration. But now all the defendants wish to dispose off the suit property without giving any share to the plaintiffs. But being legal heirs of late Shri Darbari Lal they have every right in the suit property left by their grandfather. They are also under apprehension that they may be forcibly dispossessed from the suit property and third party interest might be created by the defendants. Hence the plaintiffs have preferred the suit for declaration Suit No. 7945/16 Page No. 2/7 seeking declaration of their coownership rights in the suit property.
5. The second relief of permanent injunction ha been sought seeking restraint against all the defendants from creating any third party interest or parting with the possession of the suit property.
6. The summons of settlement were issued to the defendants and joint written statement has been filed. It has been pleaded that the present suit by the plaintiffs at the instance of their mother who has falsely instituted the cases against them. The plaintiffs have falsely disclosed their residential address that of suit property and they are not in possession of the same. The entire suit property has been transferred in favour of defendants vide Will dated 27.03.2012 executed by late father of defendants. Thus plaintiffs have no right, title or interest in the suit property. Hence it is contended that suit is not maintainable in the present form. Remaining averments of forcible dispossession or creating third party interest were termed as incorrect.
7. Replication to the written statement was filed by plaintiffs reiterating and reaffirming the contents of plaint and denying the contents of written statement.
8. On the basis of pleadings the following preliminary issue was framed vide order dated 05.05.2016.
Whether the suit is maintainable in its present form ? OPD
9. Heard the parties and gone through the record.
10. It was argued on behalf of plaintiffs that suit property belongs to their grandfather and they have all the rights in it. Therefore, they are seeking the relief of declaration of their right of ownership by preferring the present suit. As they are already in possession of part of the suit property, no relief of possession has been sought.
Suit No. 7945/16 Page No. 3/711. On the contrary, it was argued on behalf of defendants that suit in the present form is not maintainable. Further, plaintiffs have no right, title or interest in the suit property in view of Will dated 27.03.2012.
12. The case of the plaintiffs is based upon the premise that suit property was in the name of their late grandfather Shri Darbari Lal. Further, it is the case of the plaintiffs themselves that he purchased it from his own earnings and funds. Hence it was self acquired property of their grandfather. Therefore, in these circumstances, they have coownership rights hence entitled to the decree of declaration of coownership of the suit property. The plaintiffs have claimed that they are only in part possession of the suit property and it is a joint family property. Despite the said fact the relief of partition of suit property which is the consequential relief after declaration of coownership right of plaintiff has been omitted. Therefore, the suit of the plaintiff is clearly hit by the provisions of Section 34 (Proviso) as consequential relief of partition has been omitted.
13. The second relief sought by the plaintiff is relief of permanent injunction seeking restraint against the defendants from creating third party interest or parting with the possession of the suit property. It is admitted case of both parties that defendants are also in possession of the suit property. The defendants are the coowners of the suit property and no restriction can be put as to alienation of suit property being coowner. Therefore, the said relief is also not maintainable being barred under Section 41 (h) of Specific Relief Act. Equally efficacious remedy for the plaintiff in this regard was to obtain decree of partition and relief of permanent injunction being only consequential relief. The suit of the plaintiff is also hit by the provisions of Section 41 (h) of Specific Relief Act.
Suit No. 7945/16 Page No. 4/714. It is the admitted case of the plaintiffs that suit property was purchased by late Shri Darbari Lal from his earnings and it was self acquired property of their grandfather. Admittedly, their grandfather expired on 05.09.2015. Thus the suit property devolves as per provisions of Section 8 of Hindu Succession Act 1956. The moment it devolved to the heirs i.e. defendants herein they hold the said entire inherited property in their hands as their separate property and not as joint family property as is the case put forth by the plaintiffs. In this regard, issue has been discussed by Hon'ble Supreme Court in case titled as Yudhishter v. Ashok Kumar, (1987) 1 SCC 204 at page 210. The relevant para is reproduced hereunder: ".....This question has been considered by this Court in CWT v. Chander Sen [(1986) 3 SCC 567 : 1986 SCC (Tax) 641] where one of us (Sabyasachi 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 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 separated 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. At p. 577 to 578 of the Report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn., pp. 92426 as well as Mayne's Hindu Law, 12th Edn. pp. 91819. Shri Banerji relied on the said observations of Mayne on Hindu Law, 12th Edn., at p. 91819. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Suit No. 7945/16 Page No. 5/7 Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn., p. 919. In that view of the matter, it would be difficult to hold that property which devolved on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand visàvis his own sons. If that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."
15. Thus it is quite apparent from the said legal settled proposition of law laid down by the Hon'ble Supreme Court that any devolving of the property under Hindu Succession Act in terms of Section 8, the legal heirs holds the said property in their hands as 'separate property' and not as joint family property. This view has been recently again reiterated by Hon'ble Delhi High Court in Satish Vs. Om Bati 2016 IX AD (Delhi) 128. Thus once it is admitted by plaintiffs that legal heirs of their grandfather includes the father of plaintiffs i.e. defendant no.1, he holds the suit property in his hand as separate property and plaintiffs have no right, title or interest in it till he is alive. Their father has all the rights to dispose off it in any manner he wish or bequeath it in favour of any other person to the exclusion of his family members. Thus the case of the plaintiffs on the basis of pleadings as pleaded in the plaint also not disclose any cause of action in their favour. Accordingly, the plaint is also liable to be rejected under Order 7 rule 11 CPC.
Suit No. 7945/16 Page No. 6/716. In view of abovesaid reasons, the preliminary issue is decided against the plaintiff and in favour of defendants. The suit is dismissed under Section 34 Proviso as well u/s 41 (h) of Specific Relief Act. Further, it is liable to be rejected u/o 7 rule 11 CPC. The suit is accordingly dismissed. No orders as to the cost. File be consigned to record room.
Announced in the open court ( Gagandeep Singh ) on this 19th day of November 2016. ASCJ/JSCC/G. Judge (East) Karkardooma Courts, Delhi.
Suit No. 7945/16 Page No. 7/7