Mansi Jai Surya Harvey & Ors vs Arnold Harvey & Ors
2013 Latest Caselaw 4822 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+    CS(OS) 1973/2011

%                                            Reserved on: 8th October, 2013
                                             Decided on: 22nd October, 2013

      MANSI JAI SURYA HARVEY & ORS
                                                                   ..... Plaintiff
                           Through       Mr. Jagjit Singh, Mr. Rahul Chopra,
                                         Advs.

                           versus

      ARNOLD HARVEY & ORS
                                                                   ..... Defendants
                           Through       Mr. Rikky Gupta, Adv.

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
IA 17947/2011 (by defendants u/O VII R 11 CPC)


1.

By this application the major objection of the defendants is that since no cause of action arises at this stage, the present suit is liable to be rejected.

2. Learned counsel for the defendants contends that the plaintiffs who are the minor daughters of the defendant No.1 are claiming their share in the property of defendant No.1, inherited by him from his father. Since the defendant No.1 is alive and is the absolute owner of the property, the plaintiffs in the life time of the defendant No.1 cannot seek partition of the property and recovery of the share. Consequently, the suit is liable to be dismissed on this count itself. According to the learned counsel for the defendants, the reliance of learned counsel for the plaintiff on the Indian

Succession Act (in short the Act) is misconceived, as Section 5 of the Act itself provides for the succession of the property of the person, who is deceased.

3. Learned counsel for the plaintiff on the other hand contends that the plaintiffs are the daughters of defendant No.1. The properties mentioned in the schedule-I are not self-acquired of the defendant No.1 and since the same are inherited, the plaintiffs have a right to seek partition thereof. There is no provision in the Indian Succession Act which prohibits the plaintiffs to seek the partition of the property and their shares. Hence, the present suit cannot be rejected being without cause of action.

4. Heard learned counsel for the parties. As per the plaint, the plaintiffs are the minor daughters of defendant No.1 and have filed the present suit through their mother who had a live-in relationship with defendant No.1. Late father of the defendants No. 1 to 4 had acquired vast movable and immovable properties as mentioned in the schedule besides other properties, details of which are not known to the plaintiffs. On 28th May, 2008 the mother of defendants No. 1 to 4 died without a Will. Thereafter the father of defendants No.1 to 4 passed away in December, 2008 intestate and thus the entire estate devolved on the defendants No.1 to 4 in equal shares of 1/4 th each. The relationship between defendant No.1 and the mother of the plaintiffs became strained over a period of time and thus defendant No.1 moved out of the flat where the parties were living together. He not only neglected all his duties and responsibilities towards their mother but also neglected his duties as a father and did not provide maintenance to the plaintiffs, who are his minor daughters. Thus, a petition under Section 125

Cr.P.C. was filed and vide order dated 7th August, 2010 the learned Metropolitan Magistrate awarded a maintenance of Rs. 25,000/- per month to the plaintiffs. However despite the same the defendant No.1 did not pay the maintenance and thus the plaintiffs are living a miserable life being denied of the financial support that a father is expected to provide to his children. Due to acute financial crisis the plaintiffs have called upon the defendant No.1 to partition the estate which has devolved upon him through his father, which he has flatly refused, and thus the plaintiffs are entitled to 1/3rd share each in the 1/4th share which has devolved on defendant No.1.

5. Defendant No.1 is a Christian by religion and the mother of the plaintiffs is a Hindu by religion. Thus, both the sides rely upon the Indian Succession Act to assert and deny the right of inheritance. Section 5 of the Indian Succession Act provides as under:

"5.Law regulating succession to deceased person's immovable and movable property, respectively.

(1) Succession to the immovable property in [India] of a person deceased shall be regulated by the law of [India], wherever such person may have had his domicile at the time of his death. (2) Succession to the movable property of a person deceased is regulated by the law of the country in which such person had his domicile at the time of his death."

6. It is thus relevant that the Act itself provides for succession of immovable property of a person who is deceased. In law there can be no succession of property of a person who is alive as he continues to be the absolute owner thereof till his life time. The property belonging to a Christian can be alienated by him or can be dealt with by him during his life

time and he can dispose of the property by a Will, if he so chooses and if he dies intestate, his property will devolve upon his legal heirs as per the Indian Succession Act.

7. Consequently, the application is allowed.

CS(OS) 1973/2011 & I.A No. 12841/2011 (u/O XXXIX R 1&2 CPC) I.A No. 1905/2012 (u/O VIII R 1 CPC)

Consequently, the suit and applications are rejected.

(MUKTA GUPTA) JUDGE OCTOBER 22, 2013 'ga'