Puran Chand Oberoi vs Jitender Oberoi & Ors.
2012 Latest Caselaw 6178 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              CS(OS)No.189/2003

%                                             15th October, 2012

PURAN CHAND OBEROI               ..... Plaintiff
                Through: Mr. Vivek Vidyarthi, Advocate

                      versus


JITENDER OBEROI & ORS.                  ..... Defendants
                   Through : Mr. Rajan Sharma, Advocate for
                   Defendant No. 1.


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

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

The subject suit for partition has been filed by Sh. Puran Chand

Oberoi son of late Sh. Ram Chand Oberoi. The defendant No. 1 is the

brother of the plaintiff i.e another son of late Sh. Ram Chand Oberoi.

Defendant Nos. 2 to 5 are the daughters of late Sh. Ram Chand Oberoi i.e

the sisters of the plaintiff and the defendant No. 1. The subject suit for

partition is predicated on the facts that the father of the plaintiff and

defendant No. 1, namely, late Sh. Ram Chand Oberoi inherited properties

from his father late Sh. Moti Shah Oberoi by virtue of a Will dated

06.08.1965, and therefore, the properties are ancestral in the hands of late

Sh. Ram Chand Oberoi, and consequently, plaintiff has a right/share in

the properties inherited by late Sh. Ram Chand Oberoi from his father

late Sh. Moti Shah Oberoi.

2. As per the judgments of the Supreme Court in the cases of The

Commissioner of Wealth Tax, Kanpur and Ors. Vs. Chander Sen &

Ors., AIR 1986 SC 1753 and Yudhister Vs. Ashok Kumar, AIR 1987

SC 558, a male Hindu who inherits properties from his paternal ancestors

after passing of the Hindu Succession Act, 1956, inherits the properties as

self-acquired properties in his hands unless there existed a Hindu

Undivided Family (HUF) at the time of the death of the paternal ancestor.

3. In the present case, the plaintiff admits that the properties were

inherited by his father late Sh. Ram Chand Oberoi from his own father

late Sh. Moti Shah Oberoi (i.e the grand-father of the plaintiff and the

defendant No. 1) under a Will of late Sh. Moti Shah Oberoi dated

06.08.1965. There is no challenge in the plaint that late Sh. Moti Shah

Oberoi could not have made the Will dated 06.08.1965 as the properties

were HUF in his hands. In fact, a reference to the plaint shows that there

is no averment at all of any HUF existing at the time of death of the

grandfather Sh. Moti Shah Oberoi on 18.10.1965.

4. In view of the above admitted facts and the position of law, this

suit can be disposed of on the principles contained in Order XII Rule 6 of

Code of Civil Procedure, 1908 (CPC) inasmuch as only the admitted

contents of the plaint are being referred to. As per the admitted position,

the position which emerges is that the properties inherited by the father of

the plaintiff, namely, late Sh. Ram Chand Oberoi would be self-acquired

properties in his hands, and to such self-acquired properties plaintiff

would have a right inasmuch the plaintiff himself admits in para 5 of the

plaint that the father Sh. Ram Chand Oberoi died leaving behind a Will

dated 22.09.1994. Para 5 of the plaint states that in fact the plaintiff was

made executor of the Will of the father late Sh. Ram Chand Oberoi dated

22.09.1994. As per this Will plaintiff is disinherited and the father Ram

Chand Oberoi bequeathed the suit properties to defendant No.1

exclusively.

5. Issues in this case were framed on 21.07.2009 and no issue was got

framed by the plaintiff that the father late Sh. Ram Chand Oberoi did not

execute any Will dated 22.09.1994 and this was because the plaintiff

himself admits the Will and it is averred in the plaint that the plaintiff was

made the executor of this Will.

6. In view of the above, late Sh. Ram Chand Oberoi's properties were

self-acquired in his hands, and since Sh. Ram Chand Oberoi died leaving

behind a Will dated 22.09.1994 in which the plaintiff has not been given

any share in the properties, the subject suit for partition will not lie and is

wholly misconceived. As per the Will dated 22.09.1994, the defendant

No. 1 has been bequeathed the properties by the father late Sh. Ram

Chand Oberoi to the exclusion of the plaintiff, and who, therefore, cannot

ask for partition.

7. In view of the above, the suit is dismissed leaving the parties to

bear their own costs.

VALMIKI J. MEHTA, J OCTOBER 15, 2012 godara