The judgment established that inheritance of ancestral property after the passing of the Hindu Succession Act, 1956 does not automatically grant coparcenary rights to the sons/children of the persons who inherited the property.

Valmiki J. Mehta, J.

1. This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugning the concurrent Judgments of the courts below; of the Trial Court dated 21.12.2013 and the First Appellate Court dated 16.9.2015; by which the courts below have dismissed the suit filed by the appellants/plaintiffs/sons for cancellation of the Sale Deed dated 15.12.2004 executed by their father/defendant no.2/respondent no.2 in favour of their mother defendant no.1/respondent no.1. The courts below have dismissed the suit as being barred by limitation which was the subject matter of issue no.2 by holding that the Sale Deed which is sought to be cancelled is dated 15.12.2004, and the suit is filed on 24.2.2009, i.e. after a period of three years and hence the suit is barred by limitation. Since the Sale Deed dated 15.12.2004 was registered on 4.1.2005, the courts below have held that there is deemed notice of this registered sale deed to the plaintiffs/appellants and suit filed three years after 4.1.2005 is barred by limitation.

2. The facts of the case are that the appellants/plaintiffs are the sons of defendants/respondents. There are disputes and differences between defendant no.1/wife and defendant no.2/husband as defendant no.1 claims that she and her daughters are being harassed and tortured by defendant no.1. The suit was said to be filed in collusion between the plaintiffs/sons and defendant no.2/father. It is pleaded by defendant no.1/respondent no.1/wife that the suit property was purchased by the sale deed by paying valuable consideration to respondent no.2/defendant no.2/husband. The case of the appellants/plaintiffs was that defendant no.2/respondent no.2 could not have executed the Sale Deed dated 15.12.2004 in favour of respondent no.1/defendant no.1 as the suit property being a built up property admeasuring 325 sq. yards of Khasra no.146, Old Lal Dora of Village Burari, Delhi is an ancestral property.

3. In the plaint the cause of action pleaded by the appellants/plaintiffs/sons is that the suit property is an ‘ancestral property’ and therefore appellants/plaintiffs/sons have a right in the same. The relevant paragraphs in the plaint are paragraphs 4, 5, 9 and 10 and which paragraphs read as under:-

“4. That the above said suit property is ancestral property and other properties are not divided till today between the defendant no.2 and his brother between the defendant no.2 and his brother namely Dev Dutt including agricultural land. All the properties have not divided/shared/partition till today between the defendant no.2 and his brother.

5. That the grand father of the plaintiffs were two real brother one brother was issueless and one brother have two issues i.e. defendant no. 2 and Dev Dutt. The issueless grand father executed the will in favour of the defendant no. 2 and his brother Sh. Dev Dutt during his life time. Till today no partition have arrived between the parties. Due to the said reason and circumstances the defendant No. 2 have no right to sell, transfer or execute any documents in favour of any one.

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9. That defendant no. 2 has no right, title or interest to execute the sale deed in favour of the defendant no. 1 or in the name of any other person. This is a ancestral property and all of the them equal rights of the ancestral property.

10. That defendant no.1 has no right to transfer or sell or dispose off the suit property to any other person.”

4. Dehors the aspect of whether the subject suit has been dismissed by the courts below as being barred by limitation, I exercise my powers under Order XLI Rule 24 CPC for deciding this Second Appeal on an issue which is not considered by the courts below. This I am doing so in view of the ratio of the judgment of the Supreme Court in the case of Lisamma Antony and Another Vs. Karthiyayani and Another (2015) 11 SCC 782 which holds that once the record of the trial court is complete, the appellate courts should not re