Delhi High Court
Ravi Shankar Sharma vs Kali Ram Sharma & Ors. on 12 December, 2013
Author: Najmi Waziri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 28.11.2013
Date of Decision: 12.12.2013
+ RFA(OS) NO.13 OF 2013 & CMs 1113/2013 & 1114/2013
RAVI SHANKAR SHARMA ..... Appellant
Through: Mr. Ravi Prakash Gupta, Advocate.
versus
KALI RAM SHARMA & ORS. ..... Respondents
Through: Mr. Vipin K.Singh, Advocate for
R-3, 4, 7, 9, 11 & 12.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI
1. The appellant had, on a claim of hereditary rights, sought partition,
possession, rendition of accounts, injunction, etc. of certain properties
which he claims were inherited by his father from his grandfather Mr.
Tulsi Ram. He had claimed the suit property devolved upon his father
and him too by inheritance from his grandfather, who in turn had
earlier inherited it from his father (i.e. from the appellant's great-
grandfather). It is thus claimed that the suit property was an HUF
property because of this hereditary succession of the ancestral
property.
2. The suit was dismissed on the ground that the plaintiff had not been
able to establish as to how the mere ownership of property of the
grandfather Mr.Tulsi Ram and then to his father Late Shri Kali Ram
and, if at all, subsequently to him formed a part of a HUF. His suit
was dismissed by the learned Single Judge vide order dated 7 th
September, 2012 wherein it was noted that Mr.Tulsi Ram died on 2 nd
November, 1980 i.e. after the enactment of the Hindu Succession Act,
1956. According to the legal precedents (The Commissioner of
Wealth Tax, Kanpur & Ors. v. Chander Sen Ors., 1986 AIR 1753 and
Yudhister v. Ashok Kumar, 1987 AIR 558), the inheritance of
property by a male Hindu from his paternal ancestors will be treated
as his self-acquired property and not as HUF property. It was not the
case of the plaintiff/ appellant that the grandfather was part of an HUF
which owned the suit property. The plaintiff was unable to make out
a legal entitlement for himself which would require adjudication.
Even the reliance by the plaintiff on Thamma Venkata Subbamma
Thr. LR v. Thamma Rattamma & Ors,. 1987 (3) SCC 294 was
misplaced since that judgment dealt with alienation of undivided
coparcenery interest. Whereas in the present case, a Mitakshara
coparcenery had yet to be established and the mere fact of transfer of
ownership of property down the male lineage do not, ipso facto,
establish that fact. The appellant has impugned the aforesaid
dismissal of his suit.
3. Learned counsel for the appellant reiterates emphatically the
contentions raised before the learned Single Judge and again relied
upon the judgment in Thamma Venkata Subbamma (supra). He urged
that since the appellant's grandfather acquired the property before
1956, the provisions of the Hindu Succession Act is inapplicable and
that he (the appellant) was entitled to sue his father for partition, as a
coparcener member of the Hindu Undivided Family of which both
were members.
4. This Court has considered the arguments. The law has been laid
down by the Supreme Court in Chander Sen and Yudhister (supra). In
the latter case, it has been held:
"11. This question has been considered by this Court in Commr.
of Wealth Tax, Kanpur v. Chander Sen (1986) 3 SCC 567 : (AIR
1986 SC 1753), where one of us (Sabyasachi 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 separated 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 6 of the
Hindu Succession Act, 1956 and the commentary made by Mulla,
15th Edn., pages 924-26 as well as Mayne's on Hindu Law, 12th
Edition pages 918-19. Shri Banerji relied on the said
observations of Mayne on Hindu Law', 12th Edn., at pages 918-
19. 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-à-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." (emphasis supplied)
5. The appellant has not claimed or set up his case on the basis of an
existing HUF apropos the suit property and the consequent devolution
of hereditary rights equivalent to that of his father. His claim is
premised, but not proved, upon the act of inheritance by the father of
the grandfather's property thus entitling him to a claim in the
"ancestral property". Section 8 of the Hindu Succession Act, 1956
declares succession of intestate estate. The appellant's father became
the successor by virtue of the said provision. The fundamental flaw in
the appellant's argument is that it fails to acknowledge that the suit
property was a self-acquired property by operation of law as discussed
hereinabove, both when the grandfather later when the father inherited
it. The plaint was devoid of any particulars setting up a claim through
an HUF. Therefore, the arguments of the appellant are untenable.
6. There is a body of authority to the effect that though a family might
be joint, there is no presumption that property of someone is HUF
property. Understood from this perspective, the appellant-plaintiff
was under an obligation to prove in the first instance that his
grandfather's acquired the suit property through devolution of HUF
interest. He clearly did not adduce any evidence in support of such
claim. Consequently, the Single Judge's finding that succession was
to be in terms of Section 8, cannot be faulted.
7. We find no reason to interfere with the reasoning and conclusion
arrived at by the learned Single Judge. Accordingly, the appeal is
dismissed along with the applications.
NAJMI WAZIRI
(JUDGE)
S. RAVINDRA BHAT
(JUDGE)
DECEMBER 12, 2013
RN
