Delhi High Court
Satyawati vs Suraj Bhan & Ors on 18 April, 2017
$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 170/2017 & IAs No.4587/2017 (u/O XXXIX R-1&2 CPC),
4588/2017 (for exemption from filing original documents) &
4589/2017 (for condonation of 92 days delay in re-filing)
SATYAWATI ..... Plaintiff
Through: Mr. Virender Kumar Sharma & Ms.
Suman Rani, Advs.
Versus
SURAJ BHAN & ORS ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 18.04.2017
1. The plaintiff has sued her father and siblings for partition of
immovable property claimed to have been inherited by the father (defendant
no.1 Suraj Bhan) from his own father namely Inder Raj pleading (i) that the
plaintiff and the defendants are members of Joint Hindu family; (ii) that the
plaintiff by this suit is seeking partition of Joint Hindu property in respect of
ancestral properties and other properties purchased from the fund of
ancestral properties; (iii) that the plaintiff till date has not been given any
share in the properties; (iv) that the plaintiff is the legal heir of late Sh. Inder
Raj who died leaving behind Suraj Bhan, Deep Chand as his sons and
Kastoori and Shanti as his daughters; (v) that the plaintiff is the daughter of
Suraj Bhan; (vi) that Suraj Bhan has acquired / inherited from his father
Inder Raj the properties described in para 3 of the plaint; (vii) that the
plaintiff has 1/9th share in the properties as the father of the plaintiff namely
Suraj Bhan, besides the mother of the plaintiff namely Murti Devi has five
sons and another daughter besides the plaintiff; (viii) that the father of the
plaintiff Suraj Bhan has no self acquired property; (ix) that the father of the
plaintiff Suraj Bhan has sold some of the properties so inherited by him from
his father and from sale proceeds thereof acquired other properties; (x) that
the sale consideration of some of the properties has been retained by the
father of the plaintiff only; (xi) that the plaintiff on 2nd November, 2016
claimed oral partition and which was denied.
2. The plaintiff, besides the relief of partition, has claimed recovery of
Rs.80,000/- being her 1/9th share of the sale consideration retained by the
father.
3. Though the plaintiff in the plaint has not stated the date or year of
demise of Inder Raj, being the paternal grandfather of the plaintiff, but the
counsel for the plaintiff on enquiry, on passover, after taking telephonic
instructions, informs that Inder Raj died in November, 1976.
4. The claim of the plaintiff, to a share in the property and hence for
partition, being based only on the ground of the father of the plaintiff having
inherited the properties of which partition is sought from his own father, it
has been enquired from the counsel for the plaintiff, under which law does
the plaintiff acquires a share in the properties inherited by her father from
his own father. Attention of the counsel for the plaintiff was drawn to the
Hindu Succession Act, 1956 which governs succession of a male Hindu, as
Inder Raj was and whereunder the property of a male Hindu dying intestate
devolves only on his widow and sons and daughters and not on
grandchildren.
5. Thus, under the Hindu Succession Act, the properties of Inder Raj
(being the paternal grandfather of plaintiff) would devolve on Suraj Bhan
(being the father of plaintiff and defendant No.1 in this suit) and not on
plaintiff (being the granddaughter of Inder Raj and daughter of Suraj Bhan).
6. This issue has been threshed out in detail as far back as in
Commissioner of Wealth Tax, Kanpur Vs. Chander Sen (1986) 3 SCC 567
and Yudhishter Vs. Ashok Kumar (1987) 1 SCC 204 by the Supreme Court
and thereafter repeatedly by this Court in Master Daljit Singh Vs. S. Dara
Singh AIR 2000 Delhi 292, Neelam Vs. Sada Ram 2013 SCC OnLine Del
384, Harvinder Singh Chadha Vs. Saran Kaur Chadha 2014 SCC OnLine
Del 3413 (DB), Sunny (Minor) Vs. Raj Singh (2015) 225 DLT 211,
Mukesh Kumar Vs. Pavitra 2016 SCC OnLine Del 4907 and Surender
Kumar Vs. Dhani Ram AIR 2016 Del 120.
7. Unfortunately, the suits continue to be filed under a misconception
children have a right in the property inherited by their father from the
grandfather.
8. Under the same misconception the counsel for the plaintiff on the first
call kept on simply urging that the plaintiff has a right to the properties since
the properties had been inherited by her father from the paternal grandfather
of the plaintiff.
9. On passover, the counsel for the plaintiff has drawn attention to
Ganduri Koteshwaramma Vs. Chakiri Yanadi (2011) 9 SCC 788.
10. Ganduri Koteshwaramma supra is with respect to coparcenary
property, dealt with under Section 6 of the Hindu Succession Act, as distinct
from self acquired property.
11. The plaintiff has nowhere pleaded existence of any coparcenary or
coparcenary property. The fact that the case of the plaintiff is not based on
coparcenary property is also evident from the fact that all the heirs of Inder
Raj or all the properties of Inder Raj which may have been inherited by the
other sons and daughters of Inder Raj are not subject matter of suit as would
have been the case had there been any coparcenary of Inder Raj. Though till
the amendment of the Hindu Succession Act in the year 2005, the daughters
did not have a share in coparcenary property but thereafter have. The suit is
with respect to the properties which Suraj Bhan alone inherited from Inder
Raj and only against wife and children of Suraj Bhan.
12. The property inherited by a male Hindu from his father, after coming
into force of the Hindu Succession Act, is held by such male Hindu as his
personal property and does not become ancestral or coparcenary property in
his hand in which his own children would have a share by birth. Nor does a
coparcenary come into existence on a Hindu male inheriting properties from
his father under the Hindu Succession Act. The use by the plaintiff of the
term "Joint Hindu Family" in the plaint is not in the context of a
coparcenary. Jointness is else a facet of a Hindu family.
13. The judgment cited by the counsel for the plaintiff thus does not have
any relevance to the facts of the case.
14. The plaint on the averments therein does not disclose any cause of
action.
15. Resultantly, the suit is not entertainable and is dismissed.
No costs. Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 18, 2017/„gsr/bs‟
