Delhi High Court
Kamlesh Devi vs Shyam Sunder Tyagi & Ors on 4 December, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th December, 2017
+ CS(OS) 644/2017
KAMLESH DEVI ..... Plaintiff
Through Mr.Atha Sagar Verma, Advocate
versus
SHYAM SUNDER TYAGI & ORS ..... Defendants
Through None
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No. 14219/2017 (for exemption)
1. Exemption allowed subject to just exceptions.
2. Application stands disposed of.
CS(OS) No. 644/2017 & IA No. 14218/2017 (under Order XXXIX Rule 1
& 2 CPC).
3. This is yet another misconceived suit of the category dealt with by this
Court in Neelam Vs. Sada Ram 2013 SCC OnLine Del 384, Naval Kishore
Vs. Shri Jugal Kishore MANU/DE/0978/2013, Bala Devi Vs. Chhotu Ram
2013 SCC OnLine Del 1159, Rajat Khanna Vs. R.P. Khanna (2013) 200
DLT 203, Harvinder Singh Chadha Vs. Saran Kaur Chadha 2014 SCC
OnLine Del 3413, Jai Narain Mathur Vs. Jai Prakash Mathur (2016) 228
DLT 515, Satyawati Vs. Suraj Bhan 2017 SCC OnLine Del 7961, Sunny
(Minor) Vs. Raj Singh (2015) 225 DLT 211, Surender Kumar Vs. Dhani
Ram (2016) 227 DLT 217, and Sagar Gambhir Vs. Sukhdev Singh
Gambhir (2016) 231 DLT 247.
4. Notwithstanding the aforesaid judgments, a view that a child has a
share in the grandfather's property continues to prevail.
CS(OS) No.634/2004 Page 1 of 5
5. In the present case, it is a daughter who has sued her father defendant
no.1 pleading; i) that her grandfather Sh. Hukam Singh was the
proprietor/Bhoomidar of certain agricultural land in Village Rewla Khanpur,
Tehsil Kapashera, New Delhi; ii) that her grandfather Sh. Hukam Singh
expired in the year 1999-2000; iii) that on the expiry of her grandfather, her
father Shyam Sunder Tyagi became the Bhoomidar of the aforesaid land; iv)
that Sh. Hukam Singh grandfather of the plaintiff, besides leaving the father
of the plaintiff, also left two grandsons and two granddaughters (including
the plaintiff), being the siblings of the plaintiff; v) that one of the brothers of
the plaintiff has died leaving defendant no.2 Kanta Tyagi as his widow; vi)
that under the Delhi Land Reforms Act which had come into force on 20th
July, 1954 and the Hindu Succession Act which came into force on 17th June,
1956 and due to Section 4(2) of the Hindu Succession Act an embargo was
placed whereby the male lineal descendants were entitled to the agricultural
land but the Hindu Succession Act was amended by Parliament by passing
the Hindu Succession (Amendment) Act, 2005 which came into force on 9th
September, 2005 by virtue of which Section 4(2) of the Hindu Succession
Act was omitted; vii) accordingly, with effect from the Hindu Succession
(Amendment) Act, 2005, the daughters became the coparceners by birth in
their own right in the same manner as the sons; viii) accordingly, the
plaintiff being the daughter of the defendant no.1 and granddaughter of Sh.
Hukam Singh became coparcener in the above said agricultural land to the
extent of 1/5th share along with her father and other siblings.
6. The plaintiff has further pleaded to have come to know that the
defendant no.1 has vide registered sale deed dated 28th March, 2014 already
sold some part of the land and gifted the remaining land in favour of
CS(OS) No.634/2004 Page 2 of 5
defendant no.2 being the widow of the pre-deceased son of the defendant
no.1 and in favour of defendant no.3 Smt. Jyoti Tyagi being the wife of a
brother of the plaintiff.
7. The plaintiff has instituted the present suit for declaration that the gift
deed executed by the defendant no.1 in favour of defendants no.2 & 3 are
void and not binding upon the plaintiff and for permanent injunction
restraining the defendants from dealing with land so gifted to them.
8. The plaintiff has valued the suit for the purposes of jurisdiction at Rs.
3,20,25,000/- and paid for court fees of Rs. 200/- thereon.
9. The misconception, with which this suit suffers, is that the property
inherited by the father of the plaintiff from the grandfather of the plaintiff
who died after coming into force of the Hindu Succession Act, 1956 i.e. in
the year 1999-2000, is ancestral or coparcenery property in the hands of the
father of the plaintiff and which was one of the changes brought about by the
Hindu Succession Act passed in the year 1956. Everybody seems to
remember the law existing more than 70 years age and nobody seems to
remember the law which has been in force for the last about 70 years.
10. As far as the reference to the Hindu Succession (Amendment) Act,
2005 is concerned, the only change which is brought about by the same is
with respect to coparcenery property, as distinct from personal property
succession whereof is covered under Section 8 of the Act and to which no
change has been brought. However, for Section 6 to apply, there has to be a
coparcenery property and Hindu Succession (Amendment) Act, 2005 did not
convert the individual property of a person into a coparcenery property.
11. Not only is there not a plea or a whisper in the plaint of the aforesaid
agricultural land being a coparcenery property but the plaintiff has rather
CS(OS) No.634/2004 Page 3 of 5
admitted that her grandfather Sh. Hukam Singh was the sole proprietor and
Bhoomidar of the said agricultural land. The said agricultural land on the
demise of Sh.Hukam Singh would be inherited by his class I heirs only and
since the father of the plaintiff was living at the time of demise of his father
as he is even now, the plaintiff was not a class I heir of her grandfather. It
was only under the old Hindu Law prevalent prior to the Hindu Succession
Act, 1956, that the property inherited by a son from his own father became
coparcenery property in which the grandsons of the deceased also had a
share.
12. The said old Hindu law with respect to coparcenery property was
continued vide Section 6 of the Hindu Succession Act and which has been
amended with effect from the Amendment Act, 2005.
13. The suit is thus misconceived and liable to be dismissed.
14. I may also state that the plaintiff is not entitled to value the suit
differently for the purposes of court fees and jurisdiction for the relief
claimed of declaration. The plaintiff is admittedly not in possession of the
property and as per Suhrid Singh @ Sardool Singh Vs. Randhir Singh
(2010) 12 SCC 112, when the plaintiff is not in possession of the property,
even though is not a signatory to the document qua which declaration is
sought, is required to pay ad valorem court fees. However, the need to give
opportunity to the plaintiff to pay appropriate court fee is not felt in view of
the aforesaid observations, of the suit being otherwise misconceived.
15. I also express doubt as to the maintainability of the reliefs as claimed
in the suit in the absence of the plaintiff having sought the relief of partition
of the property.
16. The suit is thus dismissed.
CS(OS) No.634/2004 Page 4 of 5
17. At this stage, counsel for the plaintiff seeks liberty to withdraw the suit
to file afresh.
18. There is no formal defect, for the plaintiff to be permitted to withdraw
the suit with permission to file afresh. The plaintiff, after realising that on
facts as existing has no case, cannot be permitted to change the facts by
cooking up the same.
RAJIV SAHAI ENDLAW, J.
DECEMBER 4, 2017
'mw'..
(Corrected and released on 15th January, 2018).
