The main legal point established in the judgment is that the property that devolves on a Hindu under Section 8 of the Hindu Succession Act, 1956, cannot be treated as an HUF property in his hands vis-à-vis his own sons, and the provisions of Section 6 are not applicable in the absence of averments regarding the existence of an HUF and coparcenary.

HIMA KOHLI, J.

1. The present application has been filed by the defendants No.11 and 12 under Order VII Rule 11 CPC, praying inter alia for rejection of the accompanying suit instituted by the plaintiff for declaration, partition, possession and permanent injunction in respect of property bearing municipal No.1112, Chatta Madan, Gopal Maliwara, Chandani Chowk, Delhi, or in the alternative, for recovery of `50 lacs alongwith interest, on the ground that the plaintiff does not have a legal right to institute the said suit during the lifetime of his father, i.e., defendant No.1 and that he is not entitled to challenge the sale of the suit property by the defendants No.1 to 9 in favour of the defendants No.11 and 12.

2. The plaintiff has filed the accompanying suit on the allegation that the suit premises was originally owned by late Shri Laxmi Narain Johri, who had three sons, i.e., Shri K.K. Johri, Shri P.P. Johri and Shri Baldev Prasad Johri. The plaintiff is the great grandson of late Shri Laxmi Narain Johri, who had expired on 27.08.1972, the grandson of late Shri K.K. Johri, who had expired on 29.10.1985 and the son of Mr. Deepak Johri, defendant No.1 herein. As per the averments made in the plaint, defendant No.1 had inherited 1/3rd undivided share in the suit property, defendants No.2 to 6 had jointly inherited 1/3rd undivided share of late Shri P.P. Johri and defendants No.7 to 9 had jointly inherited the remaining 1/3rd share, being the legal heirs of late Shri Baldev Prasad Johri. Shri K.K. Johri had two sons, namely, Shri Deepak Johri, defendant No.1 and late Shri Rupak Johri, who was issueless and had expired intestate. Defendant No.1 had got married to defendant No.10 and out of the wedlock, the plaintiff herein was born on 02.11.1981. Later on, defendants No.1 and 10 parted ways after obtaining a decree of divorce by mutual consent on 27.09.2010.

3. The plaintiff claims half of his fathers 1/3rd share in the suit property on the ground that the said property was an ancestral property in the hands of his father. The averments that are relevant for deciding the present application have been made in paras 8 and 9 of the plaint. The applicants herein, i.e., defendants No.11 and 12 have purchased the suit property from the defendants No.1 to 9 by virtue of a Sale Deed dated 02.07.2010. Apart from a preliminary objection raised by the defendants No.11 and 12 on the same lines as in their written statement, this application has been filed by them stating inter alia that the suit property was not an HUF property in the hands of the defendant No.1, and on the demise of his father on 29.10.1985, he had inherited the same in his individual capacity and not as a Karta of an HUF.

4. Though a preliminary objection has been raised in the written statement to the effect that assuming without conceding that the suit property was inherited by Shri Deepak Johri as a Karta of an HUF and not in his individual capacity, in that event also, the plaintiff could not challenge the sale, as the defendant No.1 was entitled to sell the suit property for legal necessity and as also for the benefit of the estate, the aforesaid ground has however not been seriously urged by learned Senior Advocate appearing for the defendants No.11 and 12 in the course of his arguments. Instead, emphasis was laid by Mr. Seth, learned Senior Advocate appearing for the defendants No.11 and 12 on the fact that after the Hindu Succession Act, 1956 (hereinafter referred to as the Act) came into force, the general rules of succession in case of males has been clearly laid down in Section 8 of the Act and the said provision bars the plaintiff from instituting the present suit in the lifetime of his father, defendant No.1 herein.

5. It was urged on behalf of the defendants No.11 and 12 that from a plain reading of the plaint, it is apparent that the defendant No.1 was not holding the suit property as a Karta of an HUF vis-à-vis his son, the plaintiff and that def