Sh. Jitesh Kumar Yadav vs Sh. Satpal Yadav And Ors.
2016 Latest Caselaw 3384 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           I.P.A No.6/2016

%                                                                 9th May, 2016

SH. JITESH KUMAR YADAV                                          ..... Plaintiff
                                   Through:    Mr. Prag Chawla, Advocate.

                                   Versus

SH. SATPAL YADAV AND ORS.                                   ..... Defendants
                      Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

+I.P.A. No.6/2016 and I.A. Nos.5680-82/2016

1.

Petitioner/plaintiff has filed this suit as an indigent person. I may

mention that the aspect of paupership of the petitioner/plaintiff is being accepted

by me only and since in my opinion no legal cause of action is pleaded in the

plaint and therefore, I allow the petitioner to sue as a pauper and the petition is

converted into a suit.

2. This suit for partition is filed by the plaintiff/Sh. Jitesh Kumar

Yadav. Plaintiff/Sh. Jitesh Kumar Yadav is the son of defendant no.1/Sh. Satpal

Yadav. Plaintiff claims partition of the suit property on the ground that the suit

property is ancestral property as the defendant no.1 inherited the same from his

mother Smt. Omwati.

3. The suit property is described in para 1 of the plaint and the aspect of

Smt. Omwati, mother of the defendant no.1, inheriting the suit property from her

father Sh. Bhagwana and the defendant no.1 inheriting the property on the death

of Smt. Omwati are stated in paras 1 to 5 of the suit plaint and which paras read as

under:-

"1. That the Plaintiff is filing the present Suit for Partition, Possession, Declaration and Permanent Injunction against the Defendants in respect to the agricultural Land bearing Khasra No.6//1 (4-16), 7//4 (2-14), 5(4-16), 7 (6-9), 15/1 (0-16), 11//13 (4-16), 17/1 (2-16), 17/2 (2-0), 18 (4-16), 23(4-16), 26 (0-4), 17//2/3 (1-2), 3(4-16), 9/1 (3-16), 31//9 (4-12), 10(4-16), 11(4-16), 12(4-13), 13(4-5), 18(4-5), 19(4-16), 20/1(3-18), 31//20/2(0-18), 21(4-16), 22(4-16), 23(4-5), 27(0-7), 32//16/1(0-14), 35//5/2(3-16), 4/2 (3-0), 6(4-14), 7(4-12), 36//1 (4-16), 10(4-16), 58(2-0), 13/1(12-4) total measuring 145 Bighas 4 Biswas situated in the revenue state of village Pandwala Khurd, Tehsil Kapashera, New Delhi in Khata Khatouni No.89/98, the land Kh. No.32//16/2(4-2), 25/1(2-8) total admeasuring 6 Bighas 10 Biswas situated in the revenue of village Pandwala Khurd, Tehsil Kapashera, New Delhi in Khata Khatouni No.90/99, the land in the Kh. No.6//27(0-5) total measuring 5 Biswas of village Pandwala Khurd, Tehsil Kapashera, New Delhi in Khata Khatouni No.91/100 and the residential property bearing No.20/1, Railway Road, Samaypur, Delhi-110042. (hereinafter referred as the "Suit Property"). The said residential property falls in Old Lal Dora Abadi of Village Samaypur, Delhi- 110042. The Plaintiff is in use and occupation of a hall on the Ground Floor and the First Floor of the residential property and of some part of the agricultural land. The copies of Khatouni Consolidation are enclosed herewith and marked as ANNEXURE-P1 (Colly.). The copies of the status report dated 23.09.2015, Electricity Bill, Ration Card of the Mother of the Plaintiff Smt. Rajesh Devi and the Aadhar Cards are enclosed herewith and marked as ANNEXURE-P2 (Colly.). The site plan of the residential property bearing No.20/1, Railway Road, Samaypur, Delhi-110042 is enclosed herewith and marked as ANNEXURE-P3.

2. That the Plaintiff and the Defendant No.2 are the sons born out of the wedlock between the Defendant No.1 and Smt. Rajesh Devi. Whereas, the Defendant 3 and 4 are the daughters born out of the wedlock between the Defendant No.1 and Smt. Rajesh Devi, i.e, the Mother of the Plaintiff herein. It is pertinent to mention herein that Defendant no 3 is a married Daughter.

3. That Sh. Bhagwana was the owner of the agricultural land and after his unfortunate demise in March, 1954, the entire property devolved upon his two surviving Daughters, i.e, Smt. Omwati (Late Mother of the Defendant No.1) and her Sister Smt. Parmeshwari, W/o Sh. Munshi Ram in equal shares. It is submitted herein, that the Plaintiff is claiming share in respect of the Land which came to the share of Smt. Omwati, which is the Suit property.

4. That after the death of Smt. Omwati, i.e, the Mother of the Defendant No.1, the Suit property devolved upon the Defendant No.1 and as such, the Suit property being an ancestral property in the hand of the Defendant No.1, was for the welfare and the benefit of the Plaintiff.

5. That the Plaintiff being the Son of the Defendant No.1, as such, has the right to inheritance to the Suit property being an ancestral property. It is pertinent to mention herein, that the Plaintiff and the Defendant no. 4 are residing in the Suit property alongwith their Mother, whereas, the Defendant No.1 is residing separately alongwith the Defendant No.2."

4. In the opinion of this Court, the suit plaint is based on a non-existing

legal cause of action for two clear cut reasons. Firstly, a person under the

traditional Hindu law of Joint Hindu Family had a right to a property which was

inherited by a person from his paternal ancestor. In traditional law, HUF never

came into existence on inheriting of a property by a person from his maternal

ancestor. As per the plaint, the suit property is inherited by the defendant no.1

from his mother and therefore the suit property may be „ancestral‟ property but

this suit property cannot be an HUF property or joint Hindu family property for

the plaintiff to claim a share in the same as the same is not inherited by defendant

no.1 from his paternal ancestor. The suit is therefore liable to be dismissed on

this admitted fact as appearing in the plaint and is accordingly dismissed.

5. The second clear cut reason for dismissing of the suit is that even if

we assume that the property inherited from the maternal ancestors results in an

HUF property, (though in law the same does not) but in case inheritance by Smt.

Omwati from her father Sh. Bhagwana is found to have been taken after 1956,

then, inheritance by Smt. Omwati and also by defendant no.1 from Smt. Omwati

after 1956 will only result in property in the hands of the defendant no.1 being a

self-acquired property and not an HUF property as per the ratios of the judgments

of the Supreme Court in the cases of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC

204 and Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen

and Others, (1986) 3 SCC 567. The judgment in the case of Yudhishter (supra)

follows the ratio in the earlier case of Commissioner of Wealth Tax, Kanpur and

Others (supra) and the relevant para 10 of the judgment in the case of Yudhishter

(supra) reads as under:-

"10. This question has been considered by this Court in CWT v. Chander Sen: (1986) 3 SCC 567 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 become 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 Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 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 924-926 as well as Mayne's Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observations of Mayne Hindu Law, 12th Edn. at pages 918-919. 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 developed on a Hindu under Section 8 of

the Hindu Succession Act, 1956 would be HUF in his hand vis- a-vis his own sons. If that be the position then the property which developed 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 is mine)

6. It is clear from the reading of the ratio of the judgment of the

Supreme Court in the case of Yudhishter (supra) that inheritance by a person of

ancestral property, even if it is from his paternal ancestors, after 1956 does not

result in creation of HUF. The plaint in the present case is deliberately silent as to

when the defendant no.1/father of the plaintiff inherited the suit property from his

mother Smt. Omwati and this deliberate silence is obviously because Smt.

Omwati would have died after 1956 because the father of Smt. Omwati, Sh.

Bhagwana died in the year 1954. Once Smt. Omwati dies post 1956, then

inheritance by defendant no.1 from his mother Smt. Omwati will mean that

property inherited by the defendant no.1 is a self-acquired property in the hands of

the defendant no.1 and to which the children of the defendant no.1 including the

plaintiff will have no right and hence no legal cause of action to sue for partition.

The suit is therefore liable to be dismissed on the second reason on account of the

ratios of the judgments of the Supreme Court in the cases of Yudhishter (supra)

and Commissioner of Wealth Tax, Kanpur and Others (supra).

7. Suit is accordingly dismissed, leaving the parties to bear their own

costs. In case, the plaintiff has a different and a complete legal cause of action

than as pleaded in the present suit plaint, the plaintiff in such a case in accordance

with law, is granted liberty, as prayed for, to file a suit and in which suit plaint the

present judgment will be mentioned and also filed.

MAY 09, 2016                                              VALMIKI J. MEHTA, J.
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