The main legal point established in the judgment is that the property that devolves on a Hindu would not be an HUF property in his hands vis-à-vis his own sons, as per the provisions of the Hindu Succession Act.

1. The present suit has been instituted by the plaintiff praying inter alia for seeking partition of and for determining his share in premises No. 142, Anand Vihar, near Saraswati Vihar, Pitampura, Delhi.

2. As per the averments made in the plaint, Shri Harjinder Singh, grandfather of the plaintiff and father of the defendant No. 1, had purchased and developed the suit property from his own funds and raised three floors in his lifetime. Shri Harjinder Singh had died intestate in the year 2000 and at the time of his demise, he was survived by three sons including the defendant No. 1 and two daughters. The two daughters had relinquished their shares in the properties owned by late Shri Harjinder Singh in favour of their brothers (defendants No. 1 to 3). The plaintiff has averred that he was born from out of the wedlock of the defendant No. 1 and Smt. Surinder Kaur. The relationship between the defendant No. 1 and his wife was strained and in the year 1987, when defendant No. 1 had got a divorce from his wife, the plaintiff was five years old and he had remained in the custody of the defendant No. 1. After his divorce, defendant No. 1 had got re-married in the year 1988 and from the second marriage, begot a son and a daughter (defendants No. 4 and 5). The plaintiff claims entitlement to 1/12th share in the suit premises, as the son of the defendant No. 1.

3. Defendants No. 1 to 5 have averred in the written statement that the suit is liable to be rejected under Order VII Rule 11 CPC on the ground that it is devoid of any cause of action. Learned counsel for the defendants states that even as per the plaintiff, it is an undisputed position that the suit premises is a self-acquired property of late Shri Harjinder Singh and on his expiring intestate, the suit premises was inherited by six class I heirs, namely, his widow, three sons and two daughters. Pertinently, the plaintiff has nowhere in the plaint mentioned the fact that his paternal grandmother was alive at the time of the demise of her husband, Shri Harjinder Singh and she would also be entitled to a share in the suit premises.

4. Learned counsel for the defendants No. 1 to 5 states that the plea taken in the written statement is that after the demise of Shri Harjinder Singh, all his class I heirs were entitled to 1/7th share each in the suit premises, as envisaged under Section 8 of the Hindu Succession Act. However, the widow and two daughters of late Shri Harjinder Singh had relinquished their respective shares in favour of the defendants No. 1 to 3 and on the basis of the said Relinquishment Deed, which was duly registered, the suit premises has devolved on the defendant No. 1 to 3 exclusively and they are entitled to 1/3rd share each therein.

5. Learned counsel for the defendants states that Section 9 of the Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’), prescribes the order of succession amongst the heirs specified in the Schedule and the defendants No. 1 to 3 alongwith their siblings, being, the children of Shri Harjinder Singh and their mother are entitled to all his movable and immovable assets. He particularly refers to Section 10 of the Act, which deals with the manner of distribution of the property of an intestate amongst the heirs under class-I of the Schedule.

6. Learned counsel for the plaintiff does not dispute the fact that a specific averment has been made in para 1 of the plaint that the suit premises was the self-acquired property of late Shri Harinder Singh and he had died intestate in the year 2000. He submits that the only plea taken by the plaintiff is that the defendant No. 1 had divorced his first wife (the plaintiff’s mother) and had abandoned the plaintiff who was brought up by his grandmother and the defendant No. 2 (uncle).

7. The Court has considered the rival submissions made by the counsels for the parties and perused the pleadings in the suit.

8. To test the submission of the counsel for the plaintiff that his client