Delhi High Court
Neelam & Anr vs Sada Ram & Ors on 30 January, 2013
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30th January, 2013.
+ CS(OS) 823/2010, I.A. No.5597/2010 (u/O 39 R-1 & 2 CPC) & I.A.
No.5598/2010 (u/O 40 R-1 CPC)
NEELAM & ANR ..... Plaintiffs
Through: Mr. Deepender Hooda, Advocate.
Versus
SADA RAM & ORS ..... Defendants
Through: Mr. B.S. Maan, Ms. Smita Maan and
Mr. Jitin Singh, Advocates for D-1
to 5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
% 30.01.2013
1. This suit is predicated on the fact that the two plaintiffs have a share
in the properties inherited by their grandfather (defendant No.1) from his
own father. The entire case of the plaintiffs is that the said properties are
thus „ancestral properties‟ in the hands of their grandfather defendant No.1
and in which the father of the plaintiffs had a share by birth and which
share, upon the death of their father devolved on the plaintiffs and their
mother (defendant No.6). The plaintiffs thus claim partition. The defendants
No.2 to 5 are the paternal aunts of the plaintiffs and the daughters of the
defendant No.1. According to the plaintiffs, defendants No.1 to 5 have 1/6th
share each and the plaintiffs and defendant No.6 together have remaining
1/6th share in the said properties.
2. It has at the outset been enquired from the counsel for the plaintiffs as
to when the father of the grandfather of the plaintiffs died. He is informed to
have died in the year 1974.
3. The Hindu Succession Act, 1956 enacted more than half a century
ago did away with the concept of ancestral properties, as existed prior
thereto. After the coming into force thereof, the property inherited by a male
from his father is held as self acquired property in which children of such
male do not acquire any right by birth. Reference in this regard can be made
to Commissioner of Wealth Tax, Kanpur Vs. Chander Sen AIR 1986 SC
1753 and Yudhishter Vs. Ashok Kumar AIR 1987 SC 558. The counsel for
defendants No.1 to 5 in this regard has also referred to Master Daljit Singh
Vs. S. Dara Singh AIR 2000 Delhi 292 and Pratap Vs. Shiv Shanker 164
(2009) DLT 479. However the popular misconception of „ancestral
properties‟ continues to hold field, as is apparent from plethora of claims,
even in courts, being made on the said premise.
4. Thus, the properties inherited by the grandfather of the plaintiffs on
the demise of his own father in the year 1974, were held by him as his
personal properties and in which his son i.e. the father of the plaintiffs did
not acquire any share. Axiomatically, the question of the plaintiffs inheriting
any such share on demise of their father does not arise.
5. The counsel for the plaintiffs has relied on Om Prakash Gulshan Vs.
J.D. Gulshan AIR 2005 Delhi 360 (DB), particularly to para 14 thereof.
However the said para 14 refers to the case of a coparcenary. On the
contrary the case of the plaintiffs is merely on the basis of the properties
being ancestral properties. No case of any coparcenary of grandfather and
father of the plaintiffs is pleaded.
6. The counsel for the plaintiffs, faced therewith, has invited attention to
para No.15 of the plaint, where it has been mentioned "that the cause of
action first arose when the plaintiffs had acquired share in the ancestral/joint
family properties.....".
7. However, what the plaintiffs say therein becomes clear from para
No.14 of the plaint, where it is mentioned that "the said ancestral properties
are the joint family properties which have never been divided by metes and
bounds....". The claim of the plaintiffs of the properties being joint family
properties is thus based only on the factum of the same being ancestral
properties in the hands of their grandfather and not on the factum of there
being any coparcenary or HUF in existence and of which no foundation
whatsoever is laid in the plaint.
8. A plea of the property being 'Joint Family Property' owing to being
jointly owned by members of a family is not the plea of existence of a
coparcenary or a HUF. The Supreme Court in Sathyaprema Manjunatha
Gowda Vs. Controller of Estate Duty, Karnataka (1997) 10 SCC 684 held
that even HUF & coparcenary are not one and the same under the Hindu law
though for the purposes of taxation under the taxation laws are treated as
one and the same. The law of succession after coming into force of the
Hindu Succession Act is governed thereby only. Of course, Section 6
thereof carved out an exception qua interest held by the deceased in a
Mitakshara coparcenary property and provides that such interest shall
devolve by survivorship upon the surviving members of the coparcenary
and not in accordance with the Act. However, it is not the case of the
plaintiff that there was any coparcenary of which their grandfather, his
father and the plaintiff's father were a member. This Court recently in
Premwati Vs. Bhagwati Devi MANU/DE/4784/2012 held that for a case for
claiming a share in the property otherwise than under the Hindu Succession
Act, it has to be pleaded that there existed an HUF since prior to coming
into force of the Succession Act and which HUF by virtue of Section 6 of
the Act has been permitted to continue. There is no such plea in the present
case also.
9. The suit is therefore clearly misconceived and not maintainable.
10. It may be clarified that though no preliminary issue on the aforesaid
aspect has been framed but as far back as on 31 st July, 2012 arguments on
this aspect were ordered to be heard and the matter has been adjourned
several times thereafter for the said purpose and the counsel for the
plaintiffs has also proceeded to argue and has not raised any procedural
objection.
11. The suit is accordingly dismissed. The interim order dated 4 th June,
2010 also stands vacated. Decree sheet be drawn up.
12. It is however worthwhile to record statement of the counsel for the
defendants No.1 to 5 that the mother of the plaintiffs (defendant No.6)
continues to reside with the defendant No.1 in the same house and this
misconceived action on the part of the plaintiffs will not be allowed to come
in the way of the said defendant No.6 continuing to so reside in the house.
No costs.
RAJIV SAHAI ENDLAW, J
JANUARY 30, 2013
bs
