Master Sushant (Minor) vs Sh. Sunder Shyam Singh
2012 Latest Caselaw 7156 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.1240/2003

%                                                    December 13, 2012

MASTER SUSHANT (MINOR)                              ...... Plaintiff
                     Through:                 Mr. S.P. Dixit, Advocate.




                            VERSUS



SH. SUNDER SHYAM SINGH                                ..... Defendant
                      Through:                 Mr. S.C. Jain, Advocate.


CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

This is a suit filed by the plaintiff- Master Sushant (minor)

through his natural guardian and mother against his father Sh. Sunder Shyam

Singh. The suit is a suit for partition and rendition of accounts.

2. As per the averments which have been made in the plaint, the

plaintiff's father i.e the defendant received in his hands ancestral properties

and therefore plaintiff becomes a coparcener and entitled to the share from

the properties which have been inherited by the defendant-Sh. Sunder

Shyam Singh from his father Sh. Joginder Singh. Admittedly, Sh. Joginder

Singh/grandfather died on 14.11.1999.

3. Prior to passing of the Hindu Succession Act, 1956 if any

person inherited ancestral properties, the ancestral properties in his hands

automatically were HUF properties and to which the successors by four

degrees automatically took a share. However, after passing of the Hindu

Succession Act, 1956 merely because a person receives property from his

paternal ancestors, the property in his hands is not an HUF property but the

inheritance is as self-acquired property unless at the time of devolution there

existed an HUF. The Supreme Court has specifically laid down this ratio in

the judgments in the cases of Commissioner of Wealth Tax Etc. Vs.

Chander Sen Etc. AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar

AIR 1987 SC 558 by observing that merely because a person who receives

ancestral properties after passing of the Hindu Succession Act, 1956,

the person who inherits will not receive the properties as HUF

properties but as self-acquired properties i.e ancestral properties did not

automatically have the stamp of HUF properties. The only exception would

be if a person after receiving self-acquired properties, he creates an HUF and

in which case the members of the HUF including the sons would have rights

to the HUF properties.

4. In the present case, since the only averments which are

mentioned in the plaint are with respect to inheritance of the properties by

the defendant i.e the father of the plaintiff from the grandfather of the

plaintiff as ancestral properties, it cannot be said that the plaintiff can have

any rights to the properties inherited by the defendant from his own father

inasmuch as inheritance of properties by the defendant from his ancestors

will only make the properties in the hands of the defendant as self-acquired

properties and not HUF properties in view of the ratio of the judgments of

the Supreme Court in the cases of Commissioner of Wealth Tax Etc.

(supra) and Yudhishter (supra).

5. Accordingly, on the admitted facts contained in the plaint, the

plaintiff has no legal right to sue. The plaint since does not disclose a cause

of action, the same is therefore rejected under Order 7 Rule 11 of Code of

Civil Procedure, 1908 (CPC). Parties are left to bear their own costs.

6. Since the suit stands disposed of, all the pending applications

also stand disposed of.

VALMIKI J. MEHTA, J DECEMBER 13, 2012 Ne