$~OS-26 * IN THE HIGH COURT OF DELHI AT NEW DELHI % + CS(OS) 100/2017 RAVI @ RAVINDER Pronounced on:
16. 10.2019 ..... Plaintiff Through Mr.K.Sunil and Ms.Akshita Salampuria, Advs. SAJJAN KUMAR & ORS. versus ..... Defendants Through Mr.Anand Yadav and Ms.Anita Tomar, Advs. for D-8 to 10 CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH. J.
(JUDGMENT) IA No.677/2018 1. This application is filed by the defendants No.1 and 8 to 10 under Order 7 Rule 11 CPC for rejection of the plaint.
2. The present suit is filed by the plaintiff seeking a decree of partition by allocating shares and thereby partitioning the properties granting share of the properties as mentioned in para 10 of the plaint to the plaintiff as per the share of the plaintiff. Other connected reliefs are also sought.
3. The case of the plaintiff is that Shri Sajjan Kumar/defendant No.1 is sitting on a huge tract of properties as described in para 10 of the plaint which are HUF properties. It is pleaded that the ancestor of the parties was Shri Bhim Singh. The plaint narrates the transactions amongst the issues of Bhim Singh. Thereafter it is pleaded that 1/3rd share of the properties falling to the share of Khushal Chand the grandfather of the plaintiff are to be partitioned amongst the parties herein, as defendant No.1 is holding the said CS(OS) 100/2017 Page 1 of 22 properties.
4. Shri Khushal Chand had three sons. One son is Defendant No.1. The second son Shri Raj died as a bachelor. The third son Shri Hari Singh was adopted by his uncle Shri Khazan Singh. There were two daughters, namely, Sumitra Devi/Defendant No.2 and Smt. Shakuntala Devi who has expired. The LRs of Smt.Shakuntala Devi are defendants No.3 to 7. It is further stated that the properties sought to be partitioned have fallen to defendant No.1 from the said share of Khushal Chand and none of the other descendants of Shri Bhim Singh are required to be impleaded as a party being neither necessary nor proper parties.
5. Defendant No.1 has two sons, namely, plaintiff and second son Ajit Singh who has expired. The widow of Ajit Singh has been impleaded as defendant No.8 and his two sons are impleaded as defendants No.9 and 10. The sisters of the plaintiff are arrayed as defendants No.11,12 and 13 respectively.
6. It is further pleaded that defendant No.1 inherited various properties, i.e. agricultural land and other properties from late Shri Khushal Chand. Accordingly, it is pleaded that this entire property is joint hindu family property and is ancestral in nature. It is the grievance of the plaintiff that defendant No.1 has illegally and unauthorisedly sold various ancestral properties and purchased different properties. In paras 8, 10, 11 and 17 of the plaint it is pleaded that defendant No.1 inherited the stated properties which have remained joint family property and ancestral property. The said paragraphs of the plaint read as follows:-
"― CS(OS) 100/2017 Page 2 of 22 ―8. That the defendant No.1 had inherited various properties, agricultural land and other properties from late Shri Khushal Chand and late Shri Khushal Chand was the owner and was in possession of various properties. Accordingly the entire properties are joint Hindu family property and ancestral. The defendant No.1 illegally and unauthorizedly has sold various ancestral properties and out of the said fund has purchased property bearing No.34, Shanker Garden, Paschim Vihar, Near Peeragarhi, Delhi-110087 measuring 150 sq. yards in the name of defendant No.1, defendants No.9 & 10. The plaintiff shall be giving details in respect of the same at the appropriate stage in case the further details is required in this behalf and details of properties are being narrated as referred to hereinabove. ….
10. That the defendant No.1, father of the plaintiff had inherited following properties and hence the same remained joint family property and ancestral property:-
"i) one ancestral house measuring about 350 sq. yards situated in old Lal Dora of village having house No.20 Kirari Suleman Nagar,Delhi. ii) one other ancestral house measuring approximately 150 sq. yards situated in old Lal Dora of village near the house of Shri Umed Singh son of Shri Nihal Singh, Kirari Suleman Nagar, Delhi. The defendant No.1 has illegally and unauthorisedly sold the property and also without making any payment/share in respect thereof to the plaintiff. The plaintiff is entitled to share in the said property as well. Be that as it may the defendant No.1 cannot illegally deprive the plaintiff form getting any share in respect of the property in question. iii) House No.34 Shanker Garden, Paschim Enclave, Main Rohtak Road, Peeragarhi, Delhi-110087 comprising of built up 2-
storey building on the same. CS(OS) 100/2017 Page 3 of 22 iv) The plot approximately measuring 1200 sq. yards situated in village Nehrola Kamardinagar, (Near Naala), Main Najafgarh Road, Delhi. v) Plots bearing No.50-54 measuring 800 sq. yards three sides open, forming part of khasra No.403, 405 and 406, C-Block, Partap Vihar-1, Kirari, Suleman Nagar, Delhi. vi) Plots measuring about 1600 sq. yards, adjoining to properties of Shri Hari Singh forming part of Khasra No.373, village Kirari Suleman Nagar, Delhi. vii) Plots measuring about 1655 sq. yards with rasta adjoining to properties of Shri Hari Singh forming part of Khasra No.720 and 723, Ramesh Enclave, Kirari Suleman Nagar, Delhi. viii) Two shops bearing No.8 and 9 measuring about 35 sq.yards adjoining to the property of Shri Umed Singh forming part of Khasra No.1315, 1316 and 1317 Harsukh Vihar, Main Nangloi - Mubarakpur Road, Kirari Suleman Nagar, Delhi. ix) Property measuring about 211 sq. yards out of 352 sq. yards consisting of three shops, one godown and about 141 sq. yards open space and 10 feet common road behind, adjoining the property of Shri Hari Singh forming part of Khasra No.1315, 1316, 1317 and 1318 Harsukh Vihar, Main Nangloi-Mubarakpur Road, Kirari Suleman Nagar, Delhi. x) One plot bearing No.120 -121 measuring about 130 sq.yards forming part of khasra No.472 in village Kirari Suleman Nagar (colony known as Pratap Vihar), Kirari Suleman Nagar,Delhi. xi) Plots bearing No.55 to 59 measuring about 1264 sq. yards three sides open, forming part of Khasra No.403, 405 and 406, C Block, Partap Vihar-1, in village Kirari Suleman Nagar, Delhi. xii) Plot measuring about 820 sq. yards adoining to properties of Shri Satpal Mathur and Shri Mange Ram forming part of Khasra CS(OS) 100/2017 Page 4 of 22 No.373 Kirari Suleman Nagar, Delhi. xiii) Plot measuring about 1060 sq. yards with Rasta adjoining to the property of Shri Umed Singh, forming part of Khasra No.720 and 723 Ramesh Enclave, Kirari Suleman Nagar, Delhi. xiv) Two shops bearing No.6 and 7 measuring about 35 sq. yards adjoining to the property of Shri Hari Singh forming part of Khasra No.1315, 1316 and 1317 Harsukh Vihar, Main Nangloi - Mubarakpur Road, Kirari Suleman Nagar, Delhi. xv) Built up property measuring about 752 sq. yards consisting of two shops, godowns, and 10 feet common road, adjoining to the property of Shri Umed Singh forming part of Khasra No.1315, 1316, 1317 and 1318 Harsukh Vihar, Main Nangloi – Mubarakpur Road, Kirari Suleman Nagar, Delhi. xvi) l/3rd share of the Khasras No.1315 (0-3), Khasras No.1316 (0-15), Khasras No.1317 (3-14), Khasras No.1013 (13-17), Khasras No.1014 (13-17), Khasras No.1140 (10-8), Khasras No.1150 (4-6), Khasra No.1182 (2-3) totalling Kile - 8 (49-03) (20-42). xvii) 1/3rd share of Khasra No.128 (3-5), Khasra No.130 (4 - 16), Khasra No.131 (6-19), Khasra No.346 (5-12), Khasra No.373 (4-4), Khasra No.400 (0-10), Khasra No.410 (1-10), Khasra No.451 (1-16), Khasra No.429 (0-8), Khasra No.412 (4-19), Khasra No.413 (4-1), Khasra No.414 (5-2), Khasra No.511 (0- 1), Khasra No.517 (5-9),Khasra No.518 (4-9), Khasra No.519 (0-6), Khasra No.520 (2-3), Khasra No.521 (4-12), Khasra No.669 (6-10), Khasra No.670 (5-4), Khasra No.723 (1-7), Khasra No.726 (7-10), Khasra No.895 (1-2) totalling Kile 23 (81-9) (34-50). xviii) l/3rd share of Khasra No.341 (9-00), Khasra No.348 (4-6), Khasra No.402 (1-6), Khasra No.403(4-6), Khasra No.405 (0- 1), Khasra No.406 (3-12), Khasra No.407 (3-5), Khasra No.408 (0-17), Khasra No.441 (5-7) totalling Kile - 9 (32-3) (10-28). CS(OS) 100/2017 Page 5 of 22 11. That it may however, be mentioned that the defendant No.1 has illegally and unauthorisedly transferred and alienated/sold created third party interest major portions of the properties shown in para No.10 mentioned above except as mentioned at i), iii), v) to xv) in para No.10 mentioned above may be detailed as under:-
"(i) 1/3rd share of the Khasras No.1315 (0-3), Khasras No.1316 (0-15), Khasras No.1317 (3-14), Khasras No.1013 (13-17), Khasras No.1014 (13-17), Khasras No.1140 (10-8),Khasras No.1150 (4-6), Khasra No.1182 (2-3) totalling Kile -8(49-03) (20- 42). (ii) 1/3rd share of Khasra No.128 (3-5), Khasra No.130 (4-16), Khasra No.131 (6-19), Khasra No.346 (5-12), Khasra No.373 (4-4), Khasra No.400 (0-10), Khasra No.410 (1-10), Khasra No.451 (1-16), Khasra No.429 (0-8), Khasra No.412 (4-19), Khasra No.413 (4-1), Khasra No.414 (5-2), Khasra No.511 (0-1), Khasra No.517 (5-9),Khasra No.518 (4- 9),Khasra No.519 (0-6), Khasra No.520 (2-3), Khasra No.521 (4-12), Khasra No.669 (6-10), Khasra No.670 (5-4), Khasra No.723 (1-7), Khasra No.726 (7-10),Khasra No.895 (1-2) totalling Kile 23 (81-9) (34-50). (iii) l/3rd share of Khasra No.341 (9-00), Khasra No.348 (4-6), Khasra No.402(1-6) , Khasra No.403(4-6),Khasra No.405 (0- 1), Khasra No.406 (3-12), Khasra No.407(3-5), Khasra No.408 (0-17), Khasra No.441 (5-7) totalling Kile - 9 (32-3) (10-28). xxx ―17. That it may also be pointed out that the sisters of the defendant No.1 or the legal heirs thereof who have been impleaded as defendants No.2 to 7 and the legal heirs who have been impleaded as defendants No.11 to 13 have not been shown to have had any share or right in respect of any of properties of late Shri Khushal Chand as said Shri CS(OS) 100/2017 Page 6 of 22 Khushal Chand during his life time had conferred the entire right, title and interest in respect of the land which have been mentioned as under upon defendant No.1 and thus the property being joint Hindu family property is liable to be partitioned:-
"1/3rd share of Khasra No.341 (9-00), Khasra No.348 (4- 6), Khasra No.402 (1-6), Khasra No.403 (4-6), Khasra No.405(0-1), Khasra No.406 (3-12), Khasra No.407 (3- 5), Khasra No.408 (0-17), Khasra No.441 (5-7) totalling Kile-9 (32-3) (10-28)."
1/3rd share of the Khasras No.1315 (0-3), Khasras No.1316 (0-15), Khasras No.1317 (3-14), Khasras No.1013 (13- 17), Khasras No.1014 (13-17), Khasras No.1140 (10-8), Khasras No.1150 (4-6), Khasra No.1182 (2-3) totalling Kile - 8 (49-03) (20-42). 1/3rd share of Khasra No.128 (3-5), Khasra No.130 (4 - 16), Khasra No.131 (6-19), Khasra No.346 (5-12), Khasra No.373 (4-4), Khasra No.400 (0-10), Khasra No.410 (1- 10), Khasra No.451 (1-16), Khasra No.429 (0-8), Khasra No.412 (4-19), Khasra No.413 (4-1), Khasra No.414 (5- 2), Khasra No.511 (0-1), Khasra No.517 (5-9),Khasra No.518 (4-9), Khasra No.519 (0-6), Khasra No.520 (2-3), Khasra No.521 (4-12), Khasra No.669 (6-10), Khasra No.670 (5- 4), Khasra No.723 (1-7), Khasra No.726 (7-10), Khasra No.895 (1-2) totalling Kile 23 (81-9) (34-50).‖ 7. The plaintiff thereafter makes reference to various other properties which have been said to have been bought by defendant No.1 after having usurped money from sale of some of the stated joint HUF property. In para 17 of the plaint it is stated that the sisters of defendant No.1 have not been CS(OS) 100/2017 Page 7 of 22 given any share or right in respect of properties of Shri Khushal Chand as Shri Khushal Chand during his lifetime had conferred entire rights, title and interest in respect of the land which are stated in the said para, upon defendant No.1. Thus it is pleaded that the property being joint hindu family property is liable to be partitioned.
8. The applicants have in this present application pointed out that the plaintiff has filed the Khatoni of village Kirari Suleman Nagar, Delhi for the year 1981-82. As per the said Khatoni 1/3rd share of Shri Khushal Chand devolved upon defendant No.1 by Will and mutation was sanctioned vide order dated 16.3.1995. The Khatoni for the year 2003-04 for the said village has recorded defendant No.1 as bhumidar of 1/3rd share in the said land. It is pleaded that the aforesaid agricultural lands are covered under Delhi Land Reforms Act, 1954. Hence, it is pleaded that the land is not ancestral land in view of the said statutory provision.
9. It is further pleaded that under section 50 of the Delhi Land Reforms Act (hereinafter referred to as the DLR Act) the order of succession is male lineal descendant in the male line of descent. Hence, a grandson cannot claim any right and cannot inherit the land of his grandfather if his father is alive. On the death of Shri Khushal Chand in 1992 the son Shri Sajjan Kumar/defendant No.1 was alive. In view of section 50(a) of the DLR Act plaintiff cannot claim any right or inheritance in the land holding of Shri Khushal Chand.
10. It is further stated that under section 48 of the DLR Act a bhumidar can bequeath his holding. Hence, as is evident from the Khatoni filed by the plaintiff late Shri Khushal Chand executed a Will dated 17.3.1988 which was duly registered. On the basis of the said Will defendant No.1 has CS(OS) 100/2017 Page 8 of 22 inherited the said properties. The said Will has never been challenged nor has the mutation order been challenged.
11. Based on the above contention, it is pleaded that the land in question are the personal property of defendant No.1.
12. It is further stated that in view of section 8 of the Hindu Succession Act, inheritance of ancestral property after 1956 does not create an HUF property. Hence, when the father of defendant No.1 Shri Khushal Chand expired in 1992 the properties inherited by defendant No.1 are his personal properties and cannot be said to be joint hindu family properties or ancestral properties. Hence, properties that are not covered by the DLR Act would also in view of the said statutory provisions would not be HUF Properties.
13. It is further pleaded that the plaintiff had earlier filed a suit seeking partition. The suit was withdrawn by plaintiff. Hence, it is submitted that the present suit filed after more than three years when the partition was refused has become barred by limitation. Based on the above, it is pleaded that the present suit be dismissed as being barred by law and also not disclosing any cause of action.
14. I have heard learned counsel for the parties.
15. A perusal of the plaint shows that the plaintiff essentially claims that defendant No.1, the father had inherited various properties, agricultural land etc from his father Shri Khushal Chand. Based on this, it is pleaded that the entire properties are joint hindu family properties and ancestral. This is clear from a perusal of para 8 of the plaint. It is also clear from para 10 of the plaint where it is stated that defendant No.1 had inherited properties and hence they have remained joint family property and ancestral property.
16. Section 50(a) of the Delhi Land Reforms Act, 1954 reads as follows:-
"CS(OS) 100/2017 Page 9 of 22 ―50. GENERAL ORDER OF SUCCESSION FROM MALES. – Subject to the provisions of section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below : (a) Male lineal descendants in the male line of the descent : Provided that no member of this class shall inherit if any male descendant between him and the deceased is alive: Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive:‖ 17. Regarding the above statutory provision, reference may be had to some of the judgments relied upon by learned counsel for the defendant. In Nathu vs. Hukam Singh, AIR1983Del 216 the Division Bench of this Court held as follows:-
"“7..The effect of Section 4 is that a person can either be a Bhumidar (one class of tenure holder) of an agricultural land or he could be an Asami (one class of sub-tenure holder). There could be no other kind of right in the agricultural land. It is implicit in these provisions that there is abolition of the ownership rights in the agricultural land and new rights are recognised for the purposes of the Act. …. 10…The manner of devolution of interest of a Bhumidar or an Asami is provided in Sections 48 to 54 of the Act. Under Section 48, a Bhumidar is permitted to bequeath his holding or any part thereof except as provided in sub-section (2). Sub- section (2) says that ―no Bhumidar entitled to any holding or part in the right of a widow, mother, unmarried daughter, or CS(OS) 100/2017 Page 10 of 22 unmarried sister, may bequeath by will such holding or part‖. No Asami has the right to bequeath his holding or part thereof. General order of succession from males is provided in Section 50 of the Act. It says that when a Bhumidar or Asami being male dies, his interest in his holding shall devolve in accordance with the order of succession indicated in Section 50.
11. These provisions and various other provisions of the Act show that a Bhumidar does not have an unrestricted interest in the agricultural land which was held by him before the commencement of the Act as an owner or proprietor. After the commencement of the Act and the declaration of the Bhumidari rights, he is only given the right to use the agricultural land in a particular manner as specified in the statutory provisions. There are restrictions laid down on the rights of a Bhumidar to create leases. A Bhumidar cannot transfer possession of the land. A Bhumidar is obliged to use the land for agricultural purposes. A Bhumidar is only a tenure holder having lost the right of ownership on agricultural land after the commencement of the Act. There is, however, a great security of the tenure under the Act. Bhumidari rights are, therefore, special rights created on the abolition of the ownership of the agricultural land and are controlled and regulated by the provisions of the Act. The language of Section 5 of the Act shows that a Bhumidar has all the rights and is subject to all the liabilities conferred or imposed upon a Bhumidar by or under the Act. The rights to the tenure holder are granted under the provisions of the Act. The restrictions imposed on the rights of a Bhumidar are also by or under the Act. There is no warrant to travel outside the Act and the Rules for further restrictions in the right or manner of transfer of the Bhumidari rights. Section 34 of the Act, permits simple mortgage of land by a Bhumidar. This right is granted to tenure holder under the Act. Reading any further restriction by involving the customary law would come in conflict with the right granted under the Act. Any such impediment would be inconsistent with the provisions of the Act. The rule of custom pleaded and upheld by the Courts below in this case is CS(OS) 100/2017 Page 11 of 22 inconsistent with the provisions of the Act. The inconsistent rule having the force of law stands repealed by Section 2(1)(vi) of the Act.
12. In ―Ram Mehar v. Mst. Dakhan‖, I.L.R. (1972) II Delhi 922, a question arose before a Division Bench of this Court as to whether the rule of succession in the Act or the Rule of succession in the Hindu Succession Act, 1956 governed the parties. If the Hindu Succession Act applied, then the plaintiff and the defendant in that case had to succeed to their late father as co-heirs each entitled to an equal share. If the Act was to apply, then the succession had to be according to the provisions of Section 50 of the Act according to which an unmarried daughter succeeds to a Bhumidar only if there is no superior heir. The Division Bench examined the preamble of the Act, the object and reasons to ascertain the nature of the reform brought about by the Act and various provisions of the Act to come to the conclusion that the Act provides for the prevention of the fragmentation of agricultural holdings and also, at the same time, fixed ceilings on agricultural holdings and also dealt with the devolution of tenancy rights of such holdings. It was held that the only type of tenancy existing in agricultural land after the passing of the Act is denoted by the new tenure holdings, Bhumidars and Asamis though the rights of Bhumidars were somewhat different from tenants under the previous law but they did not become owners and, therefore, were held to be nothing more than tenants with certain additional rights. It was then held that the law of devolution of tenancy rights on the holdings was saved by Section 4(2) of the Hindu Succession Act and was not repealed by the provisions of the Hindu Succession Act. That meant that the rule of succession governing Bhumidars was to be found in Section 50 of the Act and not in the Hindu Succession Act, 1956. 13...
14. The result of the above discussion is that the right of transfer of interest by a Bhumidar of its bhumidari rights in the agricultural land is controlled only by the provisions of the CS(OS) 100/2017 Page 12 of 22 Act. The provisions of the customary law relating to restrictions on transfer do not apply to the transfer of bhumidari rights. The appeal succeeds and is allowed. The impugned judgments and decrees are hereby set aside and the suit of the plaintiffs is dismissed leaving the parties to bear their own costs throughout.” 18. Similarly, in Ram Niwas vs.Pitamber Singh & Others, 2008 (102) DRJ81(DB) the Division Bench held as follows:-
"―7. In this connection we may refer to the decision of the Supreme Court in Haiti v. Sunder Singh reported in 1970 (2) SCC841 In paragraph 7 of the said judgment, it was held as under: ―7. The High Court, in this connection, referred to Section 186 of the Act under which any question raised regarding the title of any party to the land which is the subject-matter of a suit or proceeding under the First Schedule has to be referred by the Revenue Court to the competent Civil Court for decision after framing ah issue on that question. Inference was sought to be drawn from this provision that questions of title could be competently agitated by a suit in the Civil Court, as the jurisdiction of the Civil Court was not barred. It appears to us that there is no justification for drawing such an inference. On the contrary, Section 186 envisages that questions of title will arise before the Revenue Courts in suits or proceedings under the First Schedule and, only if such a question arises in a competent proceeding pending in a Revenue Court, an issue will be framed and referred to the Civil Court. Such a provision does not give jurisdiction to the Civil Court to entertain the suit itself on a question of title. The jurisdiction of the Civil court is limited to deciding the issue of title referred to it by the Revenue Court. This clearly implies that, if a question of title is raised in an application for declaration of Bhumidari rights under Item 4 of Schedule- I of the Act, that question will then be referred by the Revenue Assistant to the Civil Court; but a party wanting to raise such a question of title in order to claim Bhumidari right cannot directly approach the Civil Court. The Act is a CS(OS) 100/2017 Page 13 of 22 complete Code under which it is clear that any one, wanting a declaration of his right as Bhumidar, or aggrieved by a declaration issued without notice to him in favour of another, can approach the Revenue Assistant under Item 4 of the First Schedule and this he is allowed to do. without any period of limitation, because he may not be aware of the fact that a declaration has been issued in respect of his holding in favour of another. A declaration by a Gaon Sabha of the right of any person can also be sought without any period of limitation. If there is dispute as to possession of agricultural land, the remedy has to be sought under Section 84, read with item 19 of the First Schedule. All the reliefs claimed by the respondent in the present suit were, thus, within the competent jurisdiction of the Revenue Assistant, and the Civil court had no jurisdiction to entertain the suit.‖ 19. It would follow from the above statutory provisions and stated decision that on the death of a bhumidar the succession takes place in terms of section 50 of the DLR Act. Under the said Act the male lineal descendent in the male line of descent inherits the properties. Defendant No.1 has bhumidary rights of various properties which were inherited in terms of the aforesaid statutory provisions. The properties are governed by the DLR Act only. Under proviso to Section 50 of the DLR Act, no male member of a class shall inherit, if any male descendent between him and the deceased is alive. The question of formation of any HUF or family property does not arise in these facts.
20. As far as properties which are not agricultural properties and not covered by the DLR Act are concerned, given the nature of averments in the plaint, again these properties cannot said to be HUF properties or joint family properties. In this context reference may be had to the judgment of a Coordinate Bench of this Court in the case of Neelam & Anr. vs. Sada Ram CS(OS) 100/2017 Page 14 of 22 & Ors., (2013) 197 DLT (CN) 52 where the concept of ancestral property subsequent to enactment of the Hindu Succession Act, 1956 was stated. The co-ordinate Bench of this court relied upon judgments of the Supreme Court in Commissioner of Wealth Tax, Kanpur vs. Chander Sen, AIR1986SC1753and Yudhishter vs. Ashok Kumar, AIR1987SC558and held as follows:-
"―3. The Hindu Succession Act, 1956 enacted more than half a century ago did away with the concept of ancestral properties, as existed prior thereto. After the coming into force thereof, the property inherited by a male from his father is held as self acquired property in which children of such male do not acquire any right by birth. Reference in this regard can be made to Commissioner of Wealth Tax, Kanpur v. Chander Sen AIR1986SC1753and Yudhishter v. Ashok Kumar AIR1987SC558 The counsel for defendants No.1 to 5 in this regard has also referred to Master Daljit Singh v. S. Dara Singh AIR2000Delhi 292 and Pratap v. Shiv Shanker 164 (2009) DLT479 However the popular misconception of ‗ancestral properties‘ continues to hold field, as is apparent from plethora of claims, even in courts, being made on the said premise. … 8. A plea of the property being ‗Joint Family Property‘ owing to being jointly owned by members of a family is not the plea of existence of a coparcenary or a HUF. The Supreme Court in Sathyaprema Manjunatha Gowda v. Controller of Estate Duty, Karnataka (1997) 10 SCC684held that even HUF & coparcenary are not one and the same under the Hindu law though for the purposes of taxation under the taxation laws are treated as one and the same. The law of succession after coming into force of the Hindu Succession Act is governed thereby only. Of course, Section 6 thereof carved out an exception qua interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. However, it is not the case of the plaintiff that there CS(OS) 100/2017 Page 15 of 22 was any coparcenary of which their grandfather, his father and the plaintiff's father were a member. This Court recently in Premwati v. Bhagwati Devi MANU/DE/4784/2012 held that for a case for claiming a share in the property otherwise than under the Hindu Succession Act, it has to be pleaded that there existed an HUF since prior to coming into force of the Succession Act and which HUF by virtue of Section 6 of the Act has been permitted to continue. There is no such plea in the present case also.” 21. Reference may also be had to the judgment of the Supreme Court in the case of Uttam vs. Saubhag Singh and Others, (2016) 4 SCC68 That case also pertains to a case where the plaintiff had filed a suit against his father and the brothers of the father claiming 1/8th share in the property on a footing that the suit property was ancestral property and he being a coparcener has a right by birth in the said property in accordance with the Mitakshara law. The Supreme Court noted the legal position as follows:-
"Devi v. Lal ―18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe ; Sheela and Rohit Chauhan v. Surinder Singh were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarised as follows: (i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Chand CS(OS) 100/2017 Page 16 of 22 in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). (ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. (iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. (iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in- common and not as joint tenants.
19. Applying the law to the facts of this case, it is clear that on the CS(OS) 100/2017 Page 17 of 22 death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants-in- common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. The appeal is consequently dismissed with no order as to costs.‖ 22. Hence, the Supreme Court held that the father of the plaintiff therein had inherited property by intestate under section 8 of the Act. The ancestral property was not joint family property and the suit for partition was not maintainable.
23. Keeping in view the aforesaid legal position, a perusal of the relevant paras of the plaint would show that bald averments are made in the plaint stating that the father of the plaintiff i.e. defendant No.1 inherited properties which remained joint family property and ancestral property. This is so in para 8, 10 and 17 of the plaint.
24. Keeping in view the above legal position and the averments made in the plaint, it is manifest that the properties which are owned by defendant No.1 cannot be said to be HUF or ancestral property. The plaintiff cannot claim that he has a right by birth in these properties.
25. In this context reference may be had to the judgment of a co-ordinate bench of this court in the case of Jai Narain Mathur vs. Jai Prakash Mathur, 2016 (228) DLT515where the Court held as follows:-
"―17…. (ii) This position of law alongwith facts as to how the CS(OS) 100/2017 Page 18 of 22 properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant No.1 being ‗ancestral‘ properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created ie whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter.‖ 26. In this case also the plaintiff has repeatedly mentioned the term joint family property and ancestral property like a mantra without being able to state as to how these properties can be said to be HUF properties or joint family properties. The material facts which if accepted would lead to the property being termed as HUF properties are absent from the plaint. Clearly, the plaintiff has failed to show that any cause of action has accrued in his favour.
27. Order 7 Rule 11 CPC reads as follows:-
"―11. Rejection of plaint The plaint shall be rejected in the following cases :-
"(a) where it does not disclose a cause of action; (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the CS(OS) 100/2017 Page 19 of 22 requisite stamp-paper within a time to be fixed by the Court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law : (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9; xxxxxxx‖ 28. Hence, where the plaintiff fails to show any cause of action, the plaint is liable to be rejected.
29. The settled legal position is that while looking at an application under Order 7 Rule 11 CPC, the court can only look at averments in the plaint presuming them to be correct and the accompanying documents.
30. Reference may be had to the Judgment of this court in the case of Tilak Raj Bhagat v. Ranjit Kaur & Ors., 2012 SCCOnLine Del 1675 where this court held as follows:— ―6. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made in the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff.‖ 31. Reference in this context may also be had to the judgment of the Supreme Court in the case of Mayar (H.K.) Ltd & Ors v. Owners & Parties, Vessel M.V. Fortune Express & Ors, (2006) 3 SCC100wherein the Supreme Court held as follows: CS(OS) 100/2017 Page 20 of 22 ―12. From the aforesaid it is apparent that the plaint cannot be rejected on the basis of the allegations made by the defendant in his written statement or in an application for rejection of the plaint. The Court has to read the entire plaint as a whole to find out whether it discloses a cause of action and if it does, then the plaint cannot be rejected by the Court exercising the powers under Order 7, Rule 11 of the Code. Essentially, whether the plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the plaintiff may not succeed cannot be a ground for rejection of the plaint…..‖ 32. Similar are the observations of the Supreme Court in the case of Vigneswara Coop. Housing Society Ltd. vs. K. Balachandramouli & Ors, (2005) 13 SCC506 33. Applying the aforesaid legal position to the facts of the present case, it would show that the suit is filed seeking partition of what are termed as ancestral/HUF properties. However, other than making bald averments that the properties which are in the hands of the father of the plaintiff, namely, defendant No.1 are ancestral/HUF properties, the plaint is completely bereft of any details or material facts as to how the said properties can be said to be ancestral/HUF properties. On the contrary, the plaint shows that the properties have been inherited by defendant No 1 from his father through CS(OS) 100/2017 Page 21 of 22 intestate succession or under Section 50 of the DLR Act and are not HUF properties.
34. Clearly, the plaint fails to disclose any cause of action. The application is accordingly allowed. CS(OS)100/2017 Suit is dismissed. All pending applications, if any, also stand disposed of accordingly. JAYANT NATH, J.
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