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High Court Of Delhi
HARISH SHARMA - Appellant
Versus
RAMESH KUMAR - Respondent
Suit 1654 of 1998
Decided On : 11/15/2002
Held :
There is no averments in the entire plaint that the properties in the hands of B, grant father of the plaintiff, were ancestral properties. No document has been filed to show that the suit properties in the hands of the grand father were ancestral. In fact the case set up by the plaintiff is that his father inherited the property, on the basis of the Will executed by the deceased. The plaintiff has not raised any dispute about this. He did not even implead his father as the party to the suit. This by itself shows that B could validly execute the Will in respect of the properties in his hands. The argument that the properties in hands of defendants are ancestral, is liable to be rejected on this argued alone. However, assuming that there was no Will then in the absence of any material or averment in the plaint that the properties in the hands of B were ancestral properties, father of the defendants would inherit the properties under the Hindu Succession Act, 1956. Under Section 8 of the Act, property of a male Hindu dying intestate devolve firstly upon the heirs, being the relatives specified in class 1 of the Schedule. Section 9, provides order of succession among heirs in the Schedule. Those in class I, inherit simultaneously, and to the exclusion of all other heirs ; and Section 10, provides for distribution of property among heirs in class I of the Schedule. The plaintiffs father and father of defendants being class I heirs, inherited the suit properties, left behind by deceased B in accordance with the Act. Thus the plaintiff cannot claim any right, title or interest in the suit property, The plaint does not disclose any cause of action, and the plaintiff is not entitled to the relief claimed in the suit.
( 1 ) THE plaintiff has filed this suit for permanent injunction against the defendants from selling, assigning, parting with possession, letting out etc. the whole or part of property Nos. 737, to 739 (New No. 9 /6919) Gali Arya Samaj, gandhi Nagar, Delhi as shown in red in site plan attached (hereinafter "the suit property" ).
( 2 ) THE plaintiff is a grand-son of Babu Lal who died on 13. 9. 1982. He had three sons, namely Bishan Dayal, Shankar Lal and Rajender Pal and two daughters, Saroj and Bimla. Bishan Dayal one of his sons died during his life-time, leaving behind his wife and one son. Plaintiff is the son of Rajender Pal. Defendant Nos. 1 to 4 are the Legal Representatives of Shankar Lal and defendant Nos. 5 and 6 are the Legal representatives of Bishan Dayal. Babu Lal was the owner of property No. 737-740, gall Arya Samaj, Gandhi Nagar, Delhi (New No. 9/6919 and 9/6919-A), Gali Arya samaj, Gandhi Nagar, Delhi.
( 3 ) THE plaintiff s father on the basis of the Will executed by Babu Lal, inherited property No. 740, and the same was mutated and transferred in his name. There is no dispute about the same. It is pleaded that no Will or testamentary document was executed by Babu Lal in respect of the suit property, i. e. properties 737,738 and 739, gali Arya Samaj, Gandhi Nagar, Delhi. These properties are with defendants being legal Representatives of late Shri Babu Lal. The plaintiff is claiming share in these properties, as the co-owner. It is alleged that the defendants with mala-fide intention are depriving the plaintiff to the lawful benefits. The plaintiff has prayed for an injunction. The defendants have filed their writtenstatements denying the averments made in the plaint, inter alia pleading that initially Babu Lal had executed three different Wills, assigning different portions of the said property to his three sons, through one Will, property No. 740 was given to plaintiff s father, which was taken by him, and remaining two portions of the property was given to the defendants, under two other Wills. However, later on Babu Lal executed one composite Will on 4. 9. 1992, assigning three different shares to his three sons, in accordance with his earlier three Wills. Ever since then the defendants are in possession of their respective shares of the properties. On the basis of above pleadings, on 8. 9. 2000, following issues were framed :
(1) Whether the plaintiff has right, title and interest in the suit property bearing No. 9/6919-A (Old Nos. 737 to 739), Gali Arya Samaj, Gandhi nagar, Delhi?
(2) Whether the plaint discloses any cause of action?
(3) Relief. The matter was listed for hearing on preliminary issue. It appears that there is no dispute on facts. I have heard learned Counsel for parties and have been taken through the record.
( 4 ) LEARNED Counsel for defendants argued that there is no averments in the plaint that the suit property was ancestral property in the hands of Babu Lal. The plaintiff s father and defendants inherited the properties of Shri Babu Lai as class I heirs. The plaintiff s father got his share of the property, and got mutated the same in his name and defendants inherited their shares under the Will referred above. It is argued that assuming there was no Will, under the Hindu Succession Act, 1956 sons of the deceased being class I heirs would succeed to the property of the deceased to the exclusion of all others, and, therefore, the suit is not maintainable. Learned Counsel for plaintiff argued to the contrary, submitting that suit property in possession of the defendants is ancestral property and the plaintiff is the co-owner in the same, therefore, the suit for permanent injunction is maintainable.
( 5 ) I have considered the rival contentions. Admittedly, there is no averments in the entire plaint that the properties in the hands of Babu Lal, grand-father of the plaintiff, were ancestral properties. No document has been filed to show that the suit properties in the han
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