Rajat Khanna & Anr. vs R.P. Khanna & Ors.
2013 Latest Caselaw 1355 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 20th March, 2013

+                                  CS(OS) No.784/2012

       RAJAT KHANNA & ANR.                                    ..... Plaintiffs
                   Through:               Mr. Chetan Sharma, Sr. Adv. with
                                          Mr. Vaibhav Gaggar, Adv.
                                      Versus
    R.P. KHANNA & ORS.                                        ..... Defendants
                  Through: None.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J

1.

The plaintiff No.1 seeks partition of property No.B-6/7, Vasant Vihar,

New Delhi from his father defendant No.1 and has impleaded his father's

siblings / their heirs as defendants No.2 to 13.

2. It is the case of the plaintiff No.1 in the plaint:

(i) that his grandfather Late Sh. O.P. Khanna was the exclusive

owner of the said property;

(ii) that the grandfather Sh. O.P. Khanna died intestate on

24.09.1985, leaving a widow Smt. Kamla Rani Khanna, three

sons viz. the defendants No.1&2 and Sh. R.K. Khanna being the

predecessor of defendants No.4, 5 & 13 and two daughters viz.

defendant No.3 & Smt. Achala Mehta, predecessor of

defendants No.6 to 8;

(iii) that on the demise of the grandfather Sh. O.P. Khanna, the

property devolved on all the heirs aforesaid;

(iv) that the plaintiff No.1 was borne on 21.10.1977 i.e. before the

demise of his grandfather on 24.09.1985 and thus the plaintiff

No.1 acquired a vested right by birth in the 1/6 th share of his

father in the aforesaid property;

(v) that the 1/6th share inherited by the defendant No.1 being the

father of the plaintiff No.1 became ancestral property in the

hands of the defendant No.1, the defendant No.1 having

inherited the same from his own father;

(vi) that Smt. Kamla Rani Khanna being the mother of the defendant

No.1 also died intestate on 06.10.1995 and thus her 1/6th share in

the property devolved on her three sons and two daughters;

(vii) that though the plaintiff No.1 was residing in the aforesaid

property but owing to the dispute with his father was constrained

to leave the said property; and

(viii) that the plaintiff No.1 had sought partition and which had been

denied.

The plaintiff No.1 on the aforesaid pleas claims that his minor son

plaintiff No.2 also has a share in the property.

3. The defendant No.1 in his written statement has pleaded:

(i) that the suit is not maintainable in view of the Commissioner of

Wealth Tax, Kanpur Vs. Chander Sen AIR 1986 SC 1753,

Yudhishter Vs. Ashok Kumar AIR 1987 SC 558 and Pratap Vs.

Shiv Shanker 164 (2009) DLT 479;

(ii) that after the demise of Sh. O.P. Khanna on 24.09.1985, all his

sons and daughters including the defendant No.1 relinquished

their respective rights in the property in favour of their mother

Smt. Kamla Rani Khanna by registered Relinquishment Deed.

Thus Smt. Kamla Rani Khanna became the sole and absolute

owner of the property;

(iii) that Smt. Kamla Rani Khanna vide registered Will dated

18.05.1995 bequeathed the property in favour of her sons; and

(iv) that as such on the demise of Smt. Kamla Rani Khanna, her sons

including the defendant No.1 became the owners of the property.

4. The defendant No.1 has also filed an application being I.A.

No.12314/2012 under Order 7 Rule 11 of the CPC.

5. The suit came up for hearing on 08.03.2013 on the aforesaid

application of the defendant No.1 when the counsel for the defendant No.1

invited attention besides to the judgments aforesaid, on Neelam Vs. Sada

Ram MANU/DE/0322/2013, Master Sushant (Minor) Vs. Sh. Sunder

Shyam Singh MANU/DE/6206/2012 and Amit Johri Vs. Deepak Johri

MANU/DE/5924/2012 also holding to the effect that a son acquires no right

in the property inherited by his father from his own father if the grandfather

has died after the coming into force of the Hindu Succession Act, 1956 as

the position is in this case.

6. The counsel for the plaintiffs on that date sought adjournment.

7. The counsel for the plaintiffs has at the outset argued that the

judgments Chander Sen & Yudhishter supra on taxation matters would not

apply to a civil suit for adjudication of rights. It is contended that it is only in

the context of taxation that in the said judgments, it has been held that a son

has no right in the property inherited by his father from his own father but

under the Hindu law there would be a right. Finding the argument to be

preposterous inasmuch as there could be no two laws qua rights in

immovable property, one for taxation purposes and the other for asserting

rights in the Civil Court, it was enquired from the counsel for the plaintiffs

whether he could substantiate the said argument on any precedent. Though

the counsel vehemently contended that it has been so held in several

judgments but could not cite any and ultimately conceded that what has been

held is that statements made to the taxation authorities can be explained in

civil proceedings.

8. The counsel for the plaintiffs then pegged his entire case on the

judgment of the Division Bench of the Gauhati High Court in Gauri

Shankar Agarwalla Vs. Madanlal Agarwalla MANU/GH/0718/2010.

However upon being asked whether the grandfather, in the facts of that case,

had died prior to the coming into force of the Hindu Succession Act, 1956 or

thereafter, the counsel again though stated after 1956 but could not show the

same from the judgment.

9. In my view, in the light of the categorical dicta of the Supreme court

followed by this Court in several judgments, the matter is no longer res

integra. The judgment in Gauri Shankar Agarwalla supra proceeded on the

premise of the property belonging to a joint family and / or a coparcenary. It

is not so in the present case.

10. Though the plaintiffs have not filed replication to the written

statement of the defendant No.1 but the senior counsel for the plaintiffs

while joining the argument did not controvert that the defendant No.1 and

his other siblings after the demise of the father had relinquished the share

inherited by them in the property in favour of their mother and that the

defendant No.1 is now holding the property under a Will of his mother. In

this light of the matter, in any case, the property cannot be said to be HUF

property. The defendant No.1, being the father of the plaintiff No.1, is today

holding the property having inherited the same under the Will of his mother

and not as an heir of the father. The senior counsel for the plaintiffs also

admits that the question of the property being HUF property or coparcenary

property thus does not arise in any case.

11. The suit is patently misconceived and is dismissed.

12. However, owing to the close relationship of the parties and the suit

having been dismissed at an early stage and in the hope that the plaintiffs

will allow the dismissal of the suit to bring about harmony in the family and

not create further acrimony, no costs.

Decree sheet be drawn up.

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