Harish Sharma vs Ramesh Kumar And Ors.
2002 Latest Caselaw 2006 Del

JUDGMENT

S.K. Agarwal, J.

1. The plaintiff has filed this sit for permanent injunction against the defendants from selling, assigning, parting with possession, letting out etc. the whole or part of property Nos. 737 to 739 (New No 9/6919) Gali Arya Samaj, Gandhi Nagar, Delhi as shown in red in site plan attached (hereinafter "the suit property").

2. The plaintiff is a grand son of Babu Lal who died on 13.9.1982. He had three sons, namely Bishan Dayal, Shankar Lal and Rajender Pal and two daughters, Saroj and Bimla. Bishan Dayal one of his sons died during his lifetime, leaving behind his wife and one son. Plaintiff is the son of Rajender Pal. Defendant Nos. 1 to 4 are the Legal Representatives of Shankar Lal and defendant Nos. 5 and 6 are the Legal Representatives of Bishan Dayal. Babu Lal was the owner of property No. 737-740, Gali Arya Samaj, Gandhi Nagar, Delhi. Gali Arya Samaj, Gandhi Nagar, Delhi.

3. The plaintiff's father on the basis of the Will executed by Babu lal, inherited property No. 740, and the same was mutated and transferred in his name. There is no dispute about the same. It is pleaded that no Will or testamentary document was executed by Babu Lal in respect of the suit property, i.e. properties No. 737, 738 and 739, Gali Arya Samaj, Gandhi Nagar, Delhi. These properties are with defendants being Legal Representatives of late Shri Babu Lal. The plaintiff is claiming share in these properties, as the co-owner. It is alleged that the defendants with mala-fide intention are depriving the plaintiff to the lawful benefits. The plaintiff has prayed for an injunction. The defendants have filed their written statements denying the averments made in the plaint, inter alia pleading that initially Babu Lal had executed three different Wills, assigning different portions of the said property to his three sons. Through one Will, property No. 740 was given to plaintiff's father, which was taken by him, and remaining two portions of the property was given to the defendants, under two other Wills. However, later on Babu Lal executed one composite Will on 4.9.1992, assigning three different shares to his three sons, in accordance with his earlier three Wills. Ever since then the defendants are in possession of their respective shares of the properties. On the basis of above pleadings, on 8.9.2000, following issues were framed:

1. Whether the plaintiff has right, title and interest in the suit property bearing No. 9/6919-A (Old Nos. 737 to 739), Gali Aryan Samaj, Gandhi Nagar, Delhi?

2. Whether the plaint discloses any cause of action?

3. Relief.

The matter was listed for hearing on preliminary issue. It appears that there is no dispute on facts. I have heard learned counsel for parties and have been taken through the record.

4. Learned counsel for defendants argued that there is no averments in the plaint that the suit property was ancestral property in the hands of Babu Lal. The plaintiff's father and defendants inherited the properties of Sh. Babu Lal as class 1 heirs. The plaintiff's father got his share of the property, and got mutated the same in his name and defendants inherited their shares under the Will referred above. It is argued that assuming there was no Will, under the Hindu Succession Act, 1956 sons of the deceased being class I heirs would succeed to the property of the deceased to the exclusion of all others, and, therefore, the suit is not maintainable. Learned counsel for plaintiff argued to the contrary, submitting that suit property in possession of the defendants is ancestral property and the plaintiff is the co-owner in the sam,e therefore, the suit for permanent injunction is maintainable.

5. I have considered the rival contentions. Admittedly, there is no averments in the entire plaint that the properties in the hands of Babu Lal, grand father of the plaintiff, were ancestral properties. No document has been filed to show that the suit properties in the hands of Babu Lal were ancestral. In fact the case set up by the plaintiff is that his father inherited the property No. 740 Gali Arya Samaj, Gandhi Nagar, Delhi, on the basis of the Will executed by the deceased. The plaintiff has not raised any dispute about this. He did not even implead his father as the party to the suit. This by itself shows that Sh. Babu Lal could validly execute the Will in respect of the properties in his hands. The argument that the properties in hands of defendants are ancestral, and is liable to be rejected on this ground alone. However, assuming that there was no Will then in the absence of any material or averment in the plaint that the properties in the hands of Babu Lal were ancestral properties, father of the defendants would inherit the properties under the Hindu Succession Act, 1956 (for short, "the Act"). Under Section 8 of the Act, property of a male Hindu dying intestate devolve firstly upon the heirs, being the relatives specified in class I of the Schedule. Section 9, provides order of succession among heirs in the Schedule. Those in class I, inherit simultaneously, and to the exclusion of all other heirs; and Section 10, provides for distribution of property among heirs in class I of the Schedule. The plaintiff's father and father of defendants being class I heirs, inherited the suit properties, left behind by deceased Babu lal in accordance with the Act. Thus the plaintiff cannot claim any right, title or interest in the suit property, therefore, issue No. 1 has to be decided against the plaintiff and in favor of defendants. The plaint does not disclose any cause of action, and the plaintiff is not entitled to the relief claimed in the suit.

5. For the foregoing reasons, the suit and all pending applications are dismissed with costs.