Delhi High Court
Amit Saini vs Jaimala Saini And Ors on 17 October, 2012
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 17.10.2012
+ CS(OS) 1624/2012
AMIT SAINI ..... Plaintiff
Through: Mr. M. Taiyab Khan, Adv.
versus
JAIMALA SAINI AND ORS ..... Defendants
Through: Mr. V. K. Nanda, Adv. for D-1 to 3
Mr. Mukesh M. Goel, Adv. for D-4
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL)
IA No. 10579/2012 (O. 39 R. 1&2 CPC)
This is a suit for partition of (i) property no. 8, Khasra No. 99/22, Firni Road
Saran Park Extn., Mundka measuring 490 sq yards, (ii) property/plot no. 22, part of
Kh. No. 101/11, Amar Colony, Munda, Nangloi, New Delhi-41 measuring 200 sq.
yards and (iii) property no. 1871/139, Shanti Nagar, Tri Nagar, Delhi-35 measuring
250 sq. yards . It is alleged in the plaint that the aforesaid properties were owned by
late Dharam Pal father of the plaintiff and the husband of defendant no. 2. Mr.
Dharam Pal expired on 04.11.2010 leaving the parties to the suit as his class I legal
heirs.
The plaintiff is accordingly seeking partition of the aforesaid properties and
claims to have 1/5th share in each of them.
2. The written statements has been filed by the defendants. The defendant nos.
1 to 3 are contesting the suit, whereas defendant no. 4 is supporting the plaintiff. It
has not been disputed in the written statement of defendant no. 1 to 3, that all the
three properties which are the subject matter of suit were owned by Mr. Dharam
Pal Saini. It is also not in dispute that the parties to the suit are the only class I legal
heirs of late Dharam Pal. The only defence taken by the defendant no. 1 to 3 is that
late Dhram pal Saini had disowned the plaintiff in his life time by publication in
newspaper and therefore he is not entitled to any share in the suit property.
3. Prima facie the plea taken in the written statement of defendant no. 1 to 3 has
no force in the eyes of law.
Section 8 of the Hindu Succession Act, to the extent it is relevant, provides
that the property of a male Hindu dying intestate shall devolve first upon his class
I legal heirs. The provision does not exclude a legal heir who has been disinherited
by the Hindu dying intestate. The only exceptions I can find to Section 8 of Hindu
Succession Act are Sections 25 and 26 of the said Act. Section 25 disqualifies a
person who commits murder or abets the commission of murder from inheriting the
property. Section 26 of the Act provides that a person who has ceased to be or
ceases to be a Hindu by conversion to another religion, children born to him or her
after such conversion and their descendants shall be disqualified from inheriting the
property of their Hindu relatives, unless such children or descendants are Hindus at
the time when the succession opens.
This is not a case that the contesting defendants had murdered his late father.
This is also not their case that he had converted to some other religion.
Therefore prima facie the plaintiff is entitled to an equal share in the
properties owned by his late father. Since the plaintiff has made out a strong prima
facie case with respect to the share claimed by him in the suit properties, he is also
entitled to an interim injunction during pendency of the suit so that the suit
property is preserved during the pendency of the suit and their title and/or
possession is not disturbed by creating any third party interest therein. The parties
to the suit are therefore directed to maintain status quo with respect to the title and
possession of the suit properties during pendency of the suit.
The IA stands disposed of.
CS (OS) 1624/2012
The learned counsel for the defendant no. 1 to 3 wants a short adjournment
to argue on the maintainability of the defence taken in the written statement.
List for arguments on 21.11.2012.
V.K. JAIN, J
OCTOBER 17, 2012
NR/bg
