Shri Manoj Kapoor vs Shri Om Prakash Kapoor And Ors.
2007 Latest Caselaw 1349 Del

JUDGMENT

Sanjay Kishan Kaul, J.

CS (OS) No. 230/2007

IA No. 1421/2007 (Under Order 39 R 1 and 2 CPC)

IA No. 4957/2007 (Under Order 7 R 11 CPC by Defendants 1 and 3)

1. The matter was passed over once and called the second time. None appeared for the plaintiff.

2. The plaintiff has filed a suit for partition, rendition of accounts and permanent injunction in respect of a three storeyed house constructed on a plot bearing No.S-32, Rajouri Garden, New Delhi. The property is stated to be owned by Shri Mangal Sain Kapoor, who passed away. Shri Mangal Sain Kapoor was survived by his wife, Shrimati Soma Wanti, daughter Shrimati Sudarshan Devi and son Shri Om Prakash (defendant No. 1). The wife of Shri Mangal Sain Kapoor also passed away.

3. The plaintiff claims that the property would devolve on his father, Shri Om Prakash Kapoor, himself and defendants 2 and 3, who are his brothers. Defendant No. 2 is stated not to be residing in the suit property while defendant No. 3 is stated to be in occupation of the whole of the second floor along with terrace rights. Defendant No. 3 is stated to be in occupation of a portion of the ground floor. The plaintiff claims 1/4th share in the property.

4. In pursuance to the service of summons defendants 1 and 3 entered appearance while defendant No. 2 did not appear and was proceeded ex parte on 1.5.2007. In the written statement filed by defendants 1 and 3, it has been stated that the plaintiff can have no right, title or claim in the suit property as it was the self-acquired property of Shri Mangal Sain Kapoor in pursuance to a registered sale deed. The three legal heirs to the estate of late Shri Mangal Sain Kapoor, his wife, son and his daughter were the people entitled to property in the share of 1/3rd each. Two registered release deeds were executed in 1972 in terms whereof defendant No. 1 became the absolute owner of the ground floor and was entitled to raise construction for second and third floor. The first floor, however, devolved on his sister Shrimati Sudershan Devi Marwah.

5. Defendants 1 and 3 apart from filing the written statement also filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as the said Code), seeking rejection of the plaint as no cause of action was disclosed against the defendants.

6. The suit had been listed for admission/denial of documents before the Joint Registrar on 30.5.2007 and again on 20.7.2007. The counsel on record for the plaintiff did not appear to carry out the admission/denial of documents. The suit is listed today for framing of issues and disposal of the interim applications.

7. In terms of the directions passed on 1.5.2007 the parties were directed to remain present in Court for recording of statement under Order 10 Rule 2 of the said Code. Defendants 1 and 3 are present. It is already noticed above that neither the plaintiff has appeared nor their counsel despite the matter being passed over once and called the second time.

8. The first aspect to be considered is the consequence of the failure of the plaintiff to remain present in Court. It is necessary to reproduce Order 10 Rule 4(2) of the said Code, which reads as under:

ORDER X

EXAMINATION OF PARTIES BY THE COURT

4. Consequence of refusal or inability of pleader to answer -

...

(2) If such party fails without lawful excuse to appear in person on the date so appointed, the Court may pronounce judgment against him, or make such order in relation to the suit as it thinks fit.

9. A reading of the aforesaid provision shows that if a party fails without lawful excuse to appear in person on the date so appointed, the Court can pronounce judgment. On this short ground alone, the suit is liable to be dismissed.

10. I have, however, deemed it appropriate to consider the aspect raised in the applications filed by the defendants under Order 7 Rule 11 of the said Code. The premise of the application is that the claim as set out undisputedly states that the property was acquired by late Shri Mangal Sain Kapoor. The property would thus be inherited by the class-I heirs, who were his wife, daughter and son (defendant No. 1). The plaintiff, defendant No. 2 and defendant No. 3 would have no share in the property. Thus, no cause of action is disclosed in the plaint.

11. The aforesaid aspect has been considered by this Court in Dr. Prem Bhatnagar v. Shri Ravi Mohan Bhatnagar and Ors. 2006 IV AD (Delhi) 125. In the said judgment a similar question arose as to whether in case of a property inherited by a person from his father, his son would have shares in the property. The judgments of the Apex Court in this behalf was also considered. It will be useful to reproduce the relevant portion:

19. Learned Counsel thus contended that the property inherited by a Hindu from his father is ancestral and since it is not in dispute that late Amar Nath Bhatnagar inherited the property from his father, the same partakes the character of an ancestral property.

20. Learned Counsel also drew the attention of this Court to p.577 para 307 where it is stated that every adult coparcener is entitled to demand and sue for partition of the coparcenary property at any time.

21. Learned Counsel further referred to p.592 para 321 dealing with the shares on partition that on a partition between the father and his son, each son takes a share equal to that of the father. Thus, if a joint family consists of a father and three sons, the property will be divided into four parts, each of the four members taking one/fourth.

22. Learned Counsel referred to the judgment of the Supreme Court in Villiammai Achi v. Nagappa Chettiar and Anr. to advance the submission that the father in Mitakshara family has a very limited right to make a Will and the mere fact that the property is willed and a probate is taken out would not alter the character of the property. In the said case, the son was given only the residue property from the joint Hindu family property and had taken out probate proceedings. It was held that even if it be assumed that the son had made an election when he took out probate, there could be no question of his sons being bound by that election because the right which a son takes at his birth in ancestral property is wholly independent of his father.

23. Learned Counsel for the plaintiff relied upon the judgment of the Supreme Court in State Bank of India v. Ghamandi Ram (dead) by his LR Gurbax Rai where it was observed in para 7 as under:

7. ...The incidents of co-parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenery under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of the latter.

24. The learned Counsel for the plaintiff thus submitted that a person up to third generation acquires at birth ownership and thus the plaintiff is entitled to his share in the ancestral property.

25. Learned Counsel for contesting defendants, on the other hand, contended that the principles sought to be made applicable by the plaintiff to ancestral property stand modified by the said Act. Thus, succession amongst Hindus has to be as per the Hindu Succession Act, 1956. Section 4 of the said Act provides as under:

4. Overriding effect of Act. - (1) Save as otherwise expressly provided in this Act, -

(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;

(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.

(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provision of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.

26. It was thus submitted that wherever a provision is made under the Act, the ancient Hindu Law would cease to operate.

27. Learned Counsel for the defendants referred to two important judgments of the apex court in this behalf to contend that the property was not an ancestral property. Before discussing the judgments, as noticed above, an important fact is that the property was inherited not by the father of the plaintiff alone but he inherited the same along with his brothers and sisters. The brothers and sisters relinquished their share specifically in his favor as per the Relinquishment Deed and thus there was no devolution of 5/6th share of the estate on him but rather the same devolved on the father of the plaintiff in pursuance to the Relinquishment Deed. Only 1/6th share devolved from late L. Roop Narain.

28. The first judgment referred to by learned Counsel for the contesting defendants is Commissioner of Wealth-tax, Kanpur v. Chander Sen . The effect of Section 8 of the said Act was discussed. Section 8 is as under:

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.

29. The Supreme Court held that Section 8 had modified the old Hindu Law and thus his son inherited a self-acquired property of the father as an individual and not as a karta of his own family. The relevant question was framed and answered by the Supreme Court as under:

11. The heirs mentioned in Class I of the Schedule are son, daughter etc. including the son of a predeceased son but does not include specifically the grandson, being a son of a son living. Therefore, the short question, is, when the son as heir of Class I of the Schedule inherits the property, does he do so in his individual capacity or does he do so as karta of his own undivided family xxx xxx xxx

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 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 pre-existing 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 vis-a-vis 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 vis-a-vis 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.

30. The second judgment referred to is of Yudhishter v. Ashok Kumar . It was held that the property which devolved on a Hindu under Section 8 would not be an HUF property in his hand vis-a-vis his own son. It was observed in para 10 as under:

10. This question has been considered by this Court in Commr. of Wealth Tax, Kanpur v. Chander Sen , where 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 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. At pages 577 to 578 (of SCC) (at p.1760 of AIR) of the report this Court dealt with the effect of Section 8 of the Hindu Succession Act 1956 and the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law - 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court, the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was 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. page 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 vis-a-vis 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.

31. A reading of the aforesaid two judgments leaves no manner of doubt 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. Such a property would be a self-acquired property. The rationale for this has been explained in the aforesaid two judgments as the effect of the provisions of Section 8 of the said Act. Two classes among the heirs mentioned in class I of the said Section would not be permissible as it cannot be accepted that in the hands of a male class I heir, the property would be a joint Hindu family property while in respect of female heirs, no such concept could be applied or contemplated.

12. The aforesaid discussions have been reproduced because it has referred to the judgments of Apex Court in this behalf and the same issues have been raised in the said case as in the present case.

13. In view of the aforesaid pronouncement there can be no doubt about the principle that in case of such a property as in the present case, the property which has been inherited by defendant No. 1 from his father, his sons, plaintiff and defendants 2 and 3 could not acquire a share. Thus the plaint discloses no cause of action for the plaintiff to sue for partition of the suit property.

14. The result of the aforesaid is that the suit is liable to be dismissed with costs.

15. Suit and IA No. 1421/2007 stand dismissed. IA No. 4597/2007 stands allowed.

16. At the fag end of the dictation of the judgment Mr. Rajiv Sharma, Proxy counsel for the Advocate for the plaintiff appeared and was apprised of the order.