Ravi Shankar Sharma vs Kali Ram Sharma And Ors.
2012 Latest Caselaw 5364 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) No.2329/1999

%                                                     7th September, 2012

RAVI SHANKAR SHARMA                                  ..... Plaintiff
                 Through:                Mr. Ravi Prakash Gupta, Adv.

                      versus

KALI RAM SHARMA AND ORS.           ..... Defendants
                Through: Mr. Amit Jain, Adv. for D-6.


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 has been filed by the plaintiff for partition,

possession, rendition of accounts, injunction, etc. on the ground that the

suit property vested with Sh. Tulsi Ram, who was the grandfather of the

plaintiff and the father of the defendant no.1. As per the suit/plaint, plaintiff

has rights in the properties inherited by the defendant no.1 from his father,

and which properties are set out in para 4 of the plaint as under:

"(A) AGRICULTURAL LAND - 29 BIGHAS 5 BISWAS

(i) Khasra No.78/1 (3 Bighas 11 Biswas)

(ii) Khasra No.78/9 (4 Bighas)

(iii)Khasra No.78/10 (4 Bighas 5 Biswas)

(iv)Khasra No.78/11 (4 Bighas 5 Biswas)

(v) Khasra No.78/12 (4 Bighas 16 Biswas)

(vi)Khasra No.81/6 (4 Bighas 16 Biswas)

(vii) Khasra No.81/15 (3 Bighas 12 Biswas) Situated in Village Rithala, Delhi-110085 (B) One Double storey house constructed over the plot measuring about 75 sq. yds. bearing House No.161/164 situated at Village Rithala, Delhi. (C) One double storey house constructed on plot bearing No.67 measuring about 125 sq. yds. including one shop.

(D) RESIDENTIAL PLOT

(i) Plot No. 931 (02 Bighas 04 Biswas)

(ii) Plot No.1012/1 (08 Biswas)

(iii) Plot No.1013 (02 Bighas 11 Biswas)"

2. The date of death of the grandfather, Sh. Tulsi Ram is

2.11.1980, and as noted in the order of this Court dated 4.9.2012. On

4.9.2012, the following order was passed:-

"I.A. No. 10268/2012 (u/O XIV R 2(2) CPC for deciding the preliminary issues, by plaintiff)

As per the suit plaintiff claims right to the properties of late Sh. Tulsi Ram who was said to have expired on 02.11.1980 i.e after the passing of the Hindu Succession Act, 1956. I have put the counsel for the plaintiff to notice of the judgments delivered in The Commissioner of Wealth Tax, Kanpur and Ors. vs. Chander Sen Ors., 1986 AIR 1753 and Yudhister Vs. Ashok Kumar, 1987 AIR 558 which say that if a person inherited property from his paternal ancestor after passing of Hindu Succession Act, 1956, the inheritance will be as a self-acquired property and not as HUF property. Prima facie, therefore, the suit, on the admitted facts, does not make out a legal entitlement which needs to be adjudicated and, therefore, may have to be dismissed. Counsel for the plaintiff after having gone through the aforesaid judgments on the matter being passed over prays for further time to address arguments.

At request, adjourned to 7th September, 2012."

3. Issues in this case were framed on 21.10.2002 and whereafter,

the suit was to be listed for deciding of a preliminary issue under IA

No.10268/2012, and as per which, it had to be decided whether the

properties which are governed by the Delhi Land Reforms Act, 1985,

cannot be the subject matter of the present suit. Issue nos. 2 and 3 were

framed on this aspect. Therefore, plaintiff wanted to get the issues, which

were got framed on behalf of the contesting defendant of bar of the suit

under Section 185 of the Delhi land Reforms Act, 1985 decided as

preliminary issues.

4. I have already reproduced the order dated 4.9.2012 above. It

is admitted that the defendant no.1 inherited the property from his father

Sh.Tulsi Ram, and who is the grandfather of the plaintiff, when Sh. Tulsi

Ram died on 2.11.1980. It is not the case of the plaintiff that Sh.Tulsi Ram

was a member of an existing HUF. The only case as per the plaintiff is that

on the death of Sh. Tulsi Ram, his son-defendant no.1-the father of the

plaintiff, received the properties from Sh.Tulsi Ram as ancestral properties

in his hands.

5. This issue is no longer res integra that if a male member

inherits property from his paternal ancestors after passing of the

Hindu Succession Act in 1956 then the inheritance in his hands is not an

HUF property but only as a self-acquired property. This is the ratio of the

judgments of the Supreme Court in the cases of Commissioner of Wealth

Tax, Kanpur etc. v. Chander Sen AIR 1986 SC 1753 and Yudhishter v.

Ashok Kumar AIR 1987 SC 558. These judgments have also thereafter

been relied upon in the subsequent judgments of the Supreme Court.

6. As per the provisions of Order 12 Rule 6 CPC, a Court is

entitled to decide the suit on the basis of admitted facts at any stage. The

intendment of Order 12 Rule 6 CPC is that litigants should not undergo

rigours of long pendency of a case and tribulations of a trial if on the

admitted facts the entitlement of the plaintiff to the reliefs is not made out.

The salutary object under Order 12 Rule 6 CPC is utilized in order to cut

short such litigation which should no longer remain pending. I may note

that a decree as per Section 2(2) CPC includes dismissal of a suit and

therefore the provision of Order 12 Rule 6 CPC applies even for dismissal

of a suit which is also called a decree.

7. In view of the fact that the only cause of action which is

mentioned in the plaint is of the defendant no.1 inheriting the properties

from his ancestor/father Sh. Tulsi Ram, on account of death of Sh.Tulsi

Ram on 2.11.1980, the properties which have been inherited by the

defendant no. 1, are in fact self-acquired properties in the hands of

defendant no.1 in view of the ratio of the decisions of the Supreme Court

referred to above. Once there is no HUF which is alleged to exist of

Sh.Tulsi Ram, and the inheritance by defendant no. 1 is self-acquired in his

hands, then, the plaintiff cannot claim any right in such properties.

8. I do not find it necessary to go into the defence as contained in

the written statement of the bar of the suit on account of provisions of

Delhi Land Reforms Act, 1985 as under Order 12(6) I may only look at the

admitted facts in the suit/plaint, and whether the case as set up entitles the

plaintiff to the reliefs as claimed or not.

9. Learned counsel for the plaintiff has sought to place reliance

upon the judgment of the Supreme Court in the case of Thamma Venkata

Subbamma Thr. LR vs. Thamma Rattamma & Ors., 1987 (3) SCC 294. I

really fail to understand as to how this cited judgment applies inasmuch as

that judgment even as per the counsel for the plaintiff applies to the fact

that once there exists a Mitakshara property the same cannot be alienated to

the detriment of the other members. There is no Mitakshara coparcenery in

the present case as I have already stated above that the defendant no.1

inherited the properties as self-acquired properties and not as a Mitakshara

coparcener. The judgment cited by the plaintiff has therefore no

application to the facts of the present case.

10. In view of the above, the suit of the plaintiff does not make out

any legal entitlement for the reliefs claimed, and is therefore dismissed

leaving the parties to bear their own costs.

VALMIKI J. MEHTA, J SEPTEMBER 07, 2012 ak