ORDER :- A serious objection to the maintainability of the suit was taken by the learned counsel for the defendants. This was also noted in the order dated 15-12-2006 wherein it was pointed out to the Court that the suit has been filed by the grandchildren of late Sh. Vilayati Ram Sikri in the lifetime of their father. The matter was thereafter adjourned for arguments on this aspect. The same has been argued today by the counsel for the plaintiffs as well as by the counsel for the defendants.

2. The short point taken by the learned counsel for the defendants is that if all the averments made in the plaint are taken to be correct, it would not disclose a cause of action and, therefore, the plaint has to be rejected. He submitted that as per averments made in the plaint late Sh. Vilayati Ram Sikri was the owner of the suit properties detailed in paragraph 3 of the plaint. It is an admitted position between the parties that late Sh. Vilayati Ram Sikri passed away on 11-12-2001 and that he died intestate. As per paragraph 3 of the plaint it is stated that late Sh. Vilayati Ram Sikri was the owner and/or had ownership interest in the suit properties detailed therein. In paragraph 4 of the plaint it is stated that late Sh. Vilayati Ram Sikri died intestate at Delhi on 11-12-2001 leaving behind the following heirs ;-

(a) Smt. Kaushalya Sikri (Widow) (defendant No.1)

(b) Sh. Rajesh Sikri (Son) (defendant No. 2)

(c) Sh. Pradeep Sikri (Son) (defendant No. 3)

(d) Sh. Pawan Sikri (Son) (defendant No. 4)

(e) Smt. Anjana Rani (Married daughter) (defendant No. 5)

3. In paragraph 5 of the plaint, it is alleged that a registered release deed has been executed by defendant Nos. 2 to 5 on 24-12-2001 in favour of their mother (defendant No. 1) whereby they have relinquished all their rights, title, interest in whole of the estate of late Sh. Vilayati Ram Sikri including the properties mentioned in paragraph 3 of the plaint. It is further stated in the plaint that by this action, the defendant No. 1 (Smt. Kaushalya Sikri) has become the absolute and exclusive owner of the suit properties. It is further stated in paragraph 6 of the plaint that after the death of late Sh. Vilayati Ram Sikri, as per law of succession, his estate has devolved upon the plaintiffs and the defendants, namely, defendant Nos. 1 to 5 in equal shares.

4. The present suit has been filed by Gaurav Sikri and Khushal Sikri, who are both minor sons of the defendant No. 2. The suit has been filed through their mother Smt. Neha Sikri. It is relevant to point out that the defendant No. 2 and Smt. Neha Sikri are separated and the two minor plaintiffs are residing with their mother (Smt. Neha Sikri). Suits for maintenance had been filed on behalf of the plaintiffs as well as their mother and the same has ultimately been disposed of by a Division Bench of this Court in an appeal by awarding a sum of Rs. 7,000/- per month for the maintenance of the plaintiffs as well as their mother Smt. Neha Sikri.

5. The learned counsel for the defendants submitted that in the background of the averments made in the plaint, the suit would not be maintainable as no cause of action has been disclosed. He says that as per the averments made in the plaint late Sh. Vilayati Ram Sikri was the owner of the suit properties. He further submitted that on the death of late Sh. Vilayati Ram Sikri his heirs succeeded to the same as per the law of succession. In view of the Hindu Succession Act, 1956, the plaintiffs would not fall in the category of Class I heirs and only their father (defendant No. 2) would be entitled to inherit along with his brothers, sister and mother. He submits that under the Hindu Succession Act, 1956 the plaintiffs are excluded from the purview of succession insofar as the properties of late Sh. Vilayati Ram Sikri are concerned. The learned counsel for the defendants placed reliance on a decision of the Supreme Court in the case of Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors

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