Rajasthan High Court

Manoj Sharma vs Pankaj Sharma on 30 January, 2024

Author: Narendra Singh Dhaddha

Bench: Narendra Singh Dhaddha

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                S.B. Civil Revision Petition No. 164/2016

1.       Manoj Sharma S/o Late Sh. Kailash Chandra Sharma, R/o
         Ward No. 12, Near Nagar Palika, Sambhar Lake, Distt.
         Jaipur Rajasthan.
2.       Manish Sharma S/o Late Sh. Kailash Chandra Sharma,
         R/o Ward No. 12, Near Nagar Palika, Sambhar Lake,
         Distt. Jaipur Rajasthan.
                                                                    ----Petitioners
                                     Versus
1.       Pankaj Sharma S/o Sh. Nandkishore Sharma, R/o Ward
         No. 12, Near Nagar Palika Sambhar Jheel, Phulera Distt.
         Jaipur Rajasthan
2.       Nandkishore Sharma S/o Late Sh. Ramnath Sharma, R/o
         Jaiti Ji Ki Gali , Sambhar Lake Distt. Jaipur Rajasthan.
3.       Nawalkishore Sharma S/o Late Sh. Ramnath Sharma, R/o
         Ward No. 12, Near Nagar Palika, Sambhar Lake, Distt
         Jaipur Rajasthan
4.       Subham S/o Sh. Nandkishore Sharma, R/o Ward No. 12,
         Near Nagar Palika, Sambhar Jheel, Phulera, Distt, Jaipur
         Rajasthan.
5.       Tina D/o Nandkishore, W/o Chetanprakash, R/o Bus
         Stand Kabra Ki Pole, Pipad City, Jodhpur Raj
6.       Smt Santosh Devi W/o Sh. Giriraj Prasad Sharma, R/o
         Plot No. 20, Devi Nagar Harnathpura, Bajrang Dwar,
         Kalwar Road, Jaipur
                                                                  ----Respondents


For Petitioner(s)          :     Mr. Umesh Dubey, Adv.
For Respondent(s)          :     Mr. Prahlad Sharma, Adv.
                                 Mr. Parth Sharma, Adv. on behalf of
                                 Mr. Sudhir Jain, Adv.



     HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

                                  Judgment

DATE OF JUDGMENT                                                   30/01/2024



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      This revision petition has been filed by the petitioners

against the order dated 30.07.2016 passed by Civil Judge,

Sambhar Lake, Jaipur in Civil Suit No.72/2016, whereby the

application filed by the petitioners under Order 7 Rule 11 CPC has

been dismissed.

      Learned counsel for the petitioners submits that respondent

No.1 filed a suit for declaration of relinquishment deed dated

12.09.2013 as null and void, partition and bounds and permanent

injunction regarding property mentioned in para No.1 of the plaint

which was purchased by his grandfather late Sh.Ramnath Sharma.

Learned counsel for the petitioners also submits that petitioners

had filed an application under Order 7 Rule 11 CPC before the trial

court. Trial court wrongly dismissed the application filed by the

petitioners vide order dated 30.07.2016. Learned counsel for the

petitioners also submits that respondent No.1 had no right to

bring a suit claiming his right in his grandfather's intestate

property, whereas his father respondent No.2 is alive because

Section 8 of Hindu Succession Act, 1956 bars right of other heirs if

heirs of first degree are present and schedule 1 of the Act of 1956

excludes child of child or grandchild of child from schedule 1 but

includes child of predeceased child or child of predeceased

grandchild as heirs of 1st degree. So, the trial court wrongly came

to the conclusion that matter would be adjudicated after taking

the evidence of the parties.

      Learned counsel for the petitioners has placed reliance upon

the following judgments : (1) Commissioner of Wealth Tax,

Kanpur & Ors. Vs. Chander Sen & Ors. reported in (1986) 3

SCC 567; (2) Mahendra Kumar Vs. Mohd. Salim & Ors.

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reported in 2014 WLC (Raj.) UC 504; (3) Uttam Vs. Saubhag

Singh & Ors. reported in 2016 (2) CDR 324 (SC) and (4)

Surender Kumar Vs. Dhani Ram & Ors. reported in AIR 2016

Delhi 120.

      Learned counsel for the respondents have opposed the

arguments advanced by learned counsel for the petitioners and

submitted that the trial court has rightly dismissed the application

filed by the petitioners and rightly came to the conclusion that suit

filed by the respondent No.1 cannot be dismissed under Order 7

Rule 11 CPC because it is an admitted position that disputed

property belongs to the grandfather of respondent No.1. So,

respondent No.1 had right in the disputed property since birth.

Respondent No.2 who is father of respondent No.1 had no right to

execute the relinquishment deed in favour of his sister Urmila

Devi. So, petitioners can challenge the said relinquishment deed in

relation to his share. So, revision petition be dismissed.

      Learned counsel for the respondents has placed reliance

upon the following judgments : (1) Nathu Ram Seth VS. Smt.

Poonam Seth & Ors reported in 2013 (2) DNJ (Raj.) 498; (2)

Poonam Chand & Anr. Vs. Phoola Ram reported in 2013 (2)

DNJ (Raj.) 552; (3) Ramlal Maniram Navdhinge Vs. Maniram

Patiram Navdhinge & Ors. reported in AIR 2008 (NOC) 1219

(Bom.); (4) Sheela Devi & Ors. Vs. Lal Chand & Anr. reported

in 2006 (8) SCC 581 and (5) Seeta Ram & Anr. Vs. Gulab

Chand reported in 2014 (1) DNJ (Raj.) 53.

      I have considered the arguments advanced by learned

counsel for the petitioners as well as learned counsel for the

respondents.

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It is an admitted position that disputed property was in the

name of Ramnath Sharma. It is also admitted position that father

of respondent No.1 is alive. As per Section 8 of Hindu Succession

Act, respondent No.1 had no right to sue regarding disputed

property because schedule 1 of the Act of 1956 excludes child of

child or grandchild of a child.

Hon'ble Supreme Court in Commissioner of Wealth Tax,

Kanpur & Ors. V. Chander Sen & Ors. : (1986) 3 SCC 567 held and

observed as under:-

"10. The question here, is, whether the income or asset which a son inherits from his father when separated by partition the same should be assessed as income of the Hindu undivided family of son or his individual income. There is no dispute among the commentators on Hindu law nor in the decisions of the court that under the Hindu law as it is, the son would inherit the same as karta of his own family. But the question, is, what is the effect of Section 8 of the Hindu Succession Act, 1956? The Hindu Succession Act, 1956 lays down the general rules of succession in the case of males. The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and class I of the Schedule provides that if there is a male heir of class I then upon the heirs mentioned in class I of the Schedule. Class I of the Schedule reads as follows:

Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased; daughter of a

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predeceased son of a predeceased son; widow of a predeceased son of a predeceased son.

11. The heirs mentioned in class I of the Schedule are son, daughter etc. including the son of a predeceased son but does not include specifically the grandson, being a son of a son living. Therefore, the short question, is, when the son as heir of class I of the Schedule inherits the property, does he do so in his individual capacity or does he do so as karta of his own undivided family?

21. It is necessary to bear in mind the preamble of the Hindu Succession Act, 1956. The preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.

22. In view of the preamble to the Act i.e. that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by Section 8 he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under Section 8 to inherit, the latter would by applying the old Hindu Law get a right by birth of the said property contrary to the scheme outlined in Section 8. Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by Section 4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under Section 8 of the Hindu Succession Act would be HUF in his hand visa-vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in

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whose hands it will be joint Hindu family property and visa-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in class I of Schedule under Section 8 of the Act included widow, mother, daughter of predeceased son etc.

24. The express words of Section 8 of the Hindu Succession Act, 1956 cannot be ignored and must prevail.

The preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law, with that background the express language which excludes son's son but include son of a predeceased son cannot be ignored."

In view of the above undisputed fact and the law laid down

by the Hon'ble Supreme Court in the case of Commissioner of

Wealth Tax, Kanpur & Ors. (supra), the respondent No.1 had no

right in the suit property during the life time of his father. So, in

my considered opinion, the trial court wrongly dismissed the

application filed by the petitioners under Order 7 Rule 11 CPC.

The revision petition filed by the petitioners is allowed, order

dated 30.07.2016 passed by the trial court is set aside and the

suit filed by the respondent No.1 is dismissed under Order 7 Rule

11 CPC being barred by law.

Pending application(s), if any, stand(s) disposed of.

(NARENDRA SINGH DHADDHA),J