Smt. Bala Devi vs Sh. Chhotu Ram & Ors.
2013 Latest Caselaw 1354 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 20th March, 2013

+                               CS(OS) No.966/2010
       SMT. BALA DEVI                                       ..... Plaintiff
                    Through:                 Mr. Hasan Anzar & Mr. Samama
                                             Suhail, Advs.

                                          Versus

    SH. CHHOTU RAM & ORS.                     ..... Defendants
                  Through: Mr. Rajesh Kumar Verma & Mr. S.S.
                           Gulia, Advs. for D-1.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1.

The plaintiff by this suit seeks partition of her 1/9 th share in plot

No.11, ad-measuring 250 sq. yds., Sector-23, Dwarka, Delhi and in house

No. 227, village Kakrola, Dwarka, Delhi from her father impleaded as defendant

No.1 and has impleaded her other siblings as defendants No.2 to 8.

2. It is the case of the plaintiff:

(i) that she is a coparcener in the aforesaid joint property held by

the family of which her father / defendant No.1 is the Karta;

(ii) that the grandfather of the plaintiff Sh. Bhe Ram owned certain

land in village Kakrola, Dwarka and constituted a HUF along

with his two sons viz. the defendant No.1 and Mr. Mukhtiar

Singh;

(iii) that on the demise of Sh. Bhe Ram in 1961-62, there was a

partition in the family and accordingly the two sons of Sh. Bhe

Ram i.e. the defendant No.1 and Mr. Mukhtiar Singh

constituted their respective HUFs; out of total five acres of land

owned by Sh. Bhe Ram, 2½ acres each fell to the respective

shares of the said HUFs;

(iv) that in the aforesaid manner, the defendant No.1's family i.e.

M/s Chhotu Ram HUF came to own 2½ acres of joint Hindu

family property;

(v) that the said property is joint family property as it came out of

nucleus of the joint property of five acres;

(vi) that the said property has not been purchased by the defendant

No.1 out of his own funds, resources or income;

(vii) that the said property has always been joint and held by the

defendant No.1 as its Karta;

(viii) that the defendant No.1 however in collusion with the Revenue

Officer managed to show the said property in his name only;

(ix) that the joint family of Chhotu Ram HUF besides the land

aforesaid also holds ancestral house in village Kakrola,

Dwarka;

(x) that the land ad-measuring 2½ acres was acquired vide Award

No.1 of 1993 and compensation was received in the name of

defendant No.1 and his brother Mr. Mukhtiar Singh;

(xi) that over and above the said compensation amount, alternative

plot has also been given in or about March-April, 2010;

(xii) that the plot having been given as alternative to joint family

land, is also joint family property;

(xiii) that the purpose of providing alternative is to rehabilitate and

settle all the family members whose land is acquired;

(xiv) that after the amendment of the year 2005 to Section 6 of the

Hindu Succession Act, 1956, the plaintiff though a daughter is

also a coparcener and entitled to a share in the coparcenary

property; and

(xv) that the defendant No.1 inspite of demand had denied partition.

3. The defendant No.1 has contested the suit by filing a written statement

pleading:

(i) that the land aforesaid was owned by his father Mr. Bhe Ram

and after the demise of the father, the said land and the

residential house were inherited by the defendant No.1 and his

brother Mr. Mukhtiar Singh and were mutated in their name in

the year 1961-62;

(ii) that the possession of the land on acquisition was taken on

26.08.1992 and the residential house is still recorded in the

name of the defendant No.1 and sons of Mr. Mukhtiar Singh

who has since died;

(iii) that the plaintiff has no right to either of the said properties;

(iv) that the land aforesaid was inherited by the defendant No.1 by

virtue of Section 50 of the Delhi Land Reforms Act, 1954;

(v) that the claim in the suit is barred by limitation inasmuch as the

plaintiff by filing the present suit is challenging the mutation /

transfer of the land in the year 1961-62 in the name of the

defendant No.1 and Mr. Mukhtiar Singh aforesaid;

(vi) that there was never any joint family or joint family properties

as alleged;

(vii) that the plaintiff was married on 02.06.1982;

(viii) that the father of the defendant No.1 Mr. Bhe Ram, besides the

defendant and Mr. Mukhtiar Singh, also left a daughter viz.

Smt. Sarbati but in accordance with the provisions of Section

50 of the Land Reforms Act the land was mutated in the names

of defendant No.1 and Mr. Mukhtiar Singh only; and

(ix) that there was never any joint family of Chhotu Ram HUF and

thus the question of the said HUF owning the said land does not

arise.

4. The defendants No.2 to 5 and 7&8 have supported the defendant

No.1. No written statement has been filed by the defendant No.6. The

plaintiff has filed replications to the written statement of the defendant No.1

and the written statement of the defendants No.2 to 5 and 7&8.

5. The defendant No.1 has filed IA No.12333/2010 under Order 7 Rule

11 of the CPC on the ground of no cause of action having accrued to the

plaintiff. The counsels have been heard on the said application.

6. Attention of the counsel for the plaintiff has been invited to Neelam

Vs. Sada Ram MANU/DE/0322/2013 where on a conspectus of the case law

on the subject, it has been held that in the properties inherited by a father on

demise after the coming into force of the Hindu Succession Act, 1956 of the

grandfather, the son does not acquire any right and that a plea of the property

being joint family property owing to being jointly owned by members of the

family is not the plea of existence of a coparcenery or HUF and for a case

for claiming a share in the property otherwise than under the Hindu

Succession Act, 1956, it has to be pleaded that there existed a HUF since

prior to coming into force of Succession Act and which by virtue of Section

6 of the Act has been permitted to continue.

7. In the present case though the plaintiff has pleaded the grandfather to

be the Karta of the HUF and the properties being of the said HUF and

further that on the demise of the grandfather the land having been partitioned

and the father of the plaintiff viz. the defendant No.1 having held it as Karta

of his own HUF but save for the bald plea there is absolutely nothing to

show the same.

8. The counsel for the plaintiff also does not argue that upon being given

an opportunity to lead evidence, anything more will be available to the

plaintiff to demonstrate the existence of any such HUF. Rather the argument

of the plaintiff on existence of the HUF also is that since the property had

been inherited by her father i.e. the defendant No.1 from his own father, it is

an HUF property in the hands of the father and the plaintiff after the

amendment of the year 2005 to the Hindu Succession Act having been

conferred the status of a coparcener in the said HUF, has a share in the said

joint property.

9. It is this understanding of the plaintiff and her counsel which has been

challenged in Neelam supra as well as in number of other cases filed on

similar misconception. The grandfather of the plaintiff having died in the

year 1961-62 i.e. after the coming into force of the Hindu Succession Act,

1956, the property inherited by the defendant No.1 on such demise of his

father was self-acquired property in the hands of the defendant No.1 in

which the children of the defendant No.1 did not acquire any rights.

10. The counsel for the plaintiff has invited attention to Shivgonda

Balgonda Patil Vs. The Director of Resettlement AIR 1992 Bombay 72 to

contend that mutation entries in the name of the defendant No.1 only on the

demise of his father cannot vest the land / property in the defendant No.1

only. Reliance in this regard is also placed on judgment dated 11.07.2008 of

the Supreme Court in Civil Appeal No.5269/2003 titled Rajinder Singh Vs.

State of Jammu & Kashmir.

11. Though I have in Ram Niwas Vs. The Financial Commissioner 2011

(122) DRJ 708, in the context of the Delhi Land Reforms Act, 1954 and the

Delhi Land Revenue Act also of the year 1954 expressed doubts on the said

proposition observing that the said records are records of rights providing a

complete mechanism for adjudication of disputes but it is not necessary, in

my opinion in this case, to enter into the said controversy as the suit has to

be dismissed for the same reasons as recorded in Neelam supra.

12. The counsel for the plaintiff has also invited attention to Pyare Vs.

The Financial Commissioner 94 (2001) DLT 348 to contend that the

reliance by the defendant No.1 on Section 50 of the Delhi Land Reforms Act

is misconceived as on acquisition, the said Act ceased to apply to the said

land. However as aforesaid, even if we are to consider the matter on the

anvil of the Hindu Succession Act, the premise on which the suit is based, of

the child acquiring right in the property inherited by the father from his / her

own father, is misconceived.

13. Per contra, the counsel for the defendant No.1 has argued that the

alternative land is not in lieu of acquired land and an application is required

to be made therefor within the prescribed time and the allotment is not as a

matter of right. It is contended that the plaintiff neither filed any objections

to the acquisition or to the Award nor applied for alternate plot and cannot in

any case claim a share in the alternate plot allotted on the application of the

defendant No.1. It is reiterated that the suit filed in the year 2010

challenging the mutation entries of the year 1961-62 is barred by limitation.

14. The counsel for the plaintiff in rejoinder has contended that since the

alternate plot was allotted in the year 2010 only, the suit cannot be barred by

limitation. It is contended that the scheme of alternate plot was introduced

with rehabilitation of the displaced landholders in mind and thus the entire

family which has been displaced would have a share in the alternate plot.

15. The counsel for the defendant No.1 rebuts by contending that the

plaintiff at the time of acquisition was not in possession and has thus not

been dispossessed.

16. I may mention that though the plaintiff in the plaint has also made

allegations of the defendant No.1 having consented to the property being

joint and having agreed to give the plaintiff a share but need is not felt to put

the said issues to trial as once it is held that the plaintiff in law has no share,

the question of any agreement as to partition which can only be amongst co-

sharers does not arise.

17. I may add that though unlike in Neelam, in the present case there are

pleadings of a HUF, but when the existence of an HUF is pleaded only on

the premise of the property being inherited/ancestral, such plea of HUF

ought not to be put to trial. It cannot be lost sight of that on an application of

the plaintiff for interim relief, vide ex parte order dated 02.06.2010, the

parties were directed to maintain status quo with respect to the possession of

the suit properties. The suit has already remained pending for nearly three

years and if it were to be put to trial, would take considerably more time.

The Courts have to take judicial notice of litigation today being used as a

tool of oppression. The Supreme Court in T. Arivandandam Vs. T.V.

Satyapal (1997) 4 SCC 467 & Abdul Gafur Vs. State of Uttranchal (2008)

10 SCC 97 has held that where the Court comes to the conclusion that the

case pleaded is wholly frivolous and vexatious and has no legal legs to stand

on, then it is the duty of the Court to bring such a litigation to an end

immediately. In the present case, on a holistic reading of the plaint and

documents filed therewith, there is no manner of doubt that the sole basis on

which the plaintiff claims the property to be of a coparcenary / HUF is the

inheritance of the defendant No.1 of the properties from his own father and

none else.

18. I am of the considered view that the suit is misconceived.

19. The same is dismissed, leaving the parties to bear their own costs, in

the fond hope that the same will bring about harmony amongst the family.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J MARCH 20, 2013 'gsr'..