VALMIKI J. MEHTA, J.

I.A. No.17622/2012 (filed by defendant no.1 under Order VII Rule 11 CPC) & CS (OS) No.1737/2012

1. This application is filed by the defendant no.1 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for dismissal of the suit on the ground that the suit plaint does not disclose the cause of action. In the application it is averred that the suit plaint does not show existence of the legal cause of action as the plaintiff is only a grandson of late Sh. Jage Ram who owned the property and thus not a class I legal heir, and since there are already the sons of late Sh. Jage Ram who are class I legal heirs (including defendant no.1/applicant who is the father of the plaintiff), and who are alive, plaintiff cannot lay any claim to the properties of late Sh. Jage Ram. It is further averred in the application that the properties of late Sh. Jage Ram were not Hindu Undivided Family (HUF) properties/joint Hindu family properties but were the individual properties of late Sh. Jage Ram. Accordingly, it is prayed that the suit which is seeking the relief of possession, and effectively partition etc, be dismissed.

2. Counsel for the plaintiff in response has argued that in the plaint, plaintiff has made a specific averment in para 4 that the properties of late Sh. Jage Ram, grandfather, remained joint Hindu family properties and have continued to be so even after his death between his legal heirs, and once the suit properties are joint Hindu family properties, the issue with respect to the plaintiff not being the class I legal heir is immaterial because plaintiff claims right in the suit properties as a coparcener of a joint Hindu family/HUF. On behalf of the plaintiff, reliance in support of his arguments is placed upon the judgments of the Supreme Court in the cases of Rohit Chauhan vs. Surinder Singh & Ors., AIR 2013 SC 3525 and Hardeo Rai vs. Sakuntala Devi & Ors., VI (2010) SLT 222.

3. A reading of the plaint shows that plaintiff claims rights in various immovable properties which are detailed in para 2 of the plaint, and which para reads as under:-

“AGRICULTURAL LAND

i. Land comprising in Khasra No.125/1 measuring (4 Bigha and 12 Bishwa), in khasra No. 125/1/10 (4 Bigha and 16 Bishwa), in Khasra No. 125/1/21 (4 Bigha and 16 Bishwa) and in Khasra No.125/1/22 (4 bigha and 12 Bishwa) total land measuring 18 bigha and 16 bishwa situated in the revenue estate of village-Mundka, Delhi-110041.

ABADI LAND/HOUSE

i. Plot No. 711 comprising (1 Bigha and 14 Biswa), plot bearing No. 715 comprising (4 Bigha and 2 Biswa) situated in extended Lal Dorra, Village-Mundla, Delhi-110041.

ii. 4 Biswa of Land out of khasra No.711 allegedly relinquished by defendant no.4 Sh. Sant Ram, brother of defendant no.1 in favour of defendant no.1.

iii. H. No.603 (area about 215 sq. yds. out of khasra No.370) situated in Old Lal Dora, Abadi, Village Mundka Delhi-110041.

iv. H. No.356/524, area about 350 sq. yds. situated in Old Lal Dora Abadi of Village Mundka, Delhi-110041.

v. H. No.527 (area about 200 sq. yds. out of khasra No.370) situated in Old Lal Dora, Abadi of Village Mundka, Delhi-110041.”

4. Plaintiff claims that as a son of defendant no.1 and as a grandson of late Sh. Jage Ram, plaintiff is entitled to his share as a coparcener in the aforesaid suit properties on the ground that the properties when they were inherited by late Sh. Jage Ram were joint family properties, and therefore, status as such of these properties as HUF properties have continued thereby entitling the plaintiff his rights in the same as a coparcener.

5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position