Inheritance rights under the Hindu Succession Act and the validity of property transfer under the Transfer of Property Act were central to the court's decision.

1. The plaintiff has sued for partition of property No.W-121, Mayapuri Industrial Area, Phase-II, New Delhi-110065 impleading her brother Lekh Raj as defendant No.1, Nirmala Devi as defendant No.2, Gulshan Khanna as defendant No.3, Harish as defendant No.4 and Anoop as defendant No.5.

2. It is the case of the plaintiff (i) that the aforesaid property was owned by Bhagwan Dass who died on 1st January, 1987; (ii) that the plaintiff is the daughter of Om Prakash, brother of Bhagwan Dass; (iii) that Bhagwan Dass, besides the father of the plaintiff had three other brothers namely Ghamandi Lal, Harnam Dass and Ravi Prakash; (iv) that the defendant No.2 Nirmala Devi is the daughter of Ghamandi Lal; (v) that the other two brothers of Bhagwan Dass namely Harnam Dass and Ravi Prakash have also died and “as per the knowledge of the plaintiff, they are not survived by any legal heirs”; (vi) that the defendant No.1, brother of the plaintiff, along with one Shyam Babu propounded a Will dated 18th October, 1985 of Bhagwan Dass and sought probate thereof and which was granted on 2nd August, 1988; (vii) that even before the grant of probate, the defendant No.1 and Shyam Babu sold the property to Shyam Lal being the predecessor of the defendants No.3 to 5 herein; (viii) that the defendant No.2 applied for revocation of the probate, claiming to be the adopted daughter of Bhagwan Dass and the application for revocation was allowed on 28th October, 1997 and the probate petition tried again and ultimately dismissed on 10th August, 2004.

3. It is the plea of the plaintiff that she is a Class II heir of Bhagwan Dass.

4. Under the Hindu Succession Act, 1956 which presumably applies to the parties, in the absence of Class I heirs of the male deceased, the property of the male deceased devolves firstly on his father and if there is no father also then on son’s daughter’s son, son’s daughter’s daughter, brother and sister. Thus, even if it were to be believed that Bhagwan Dass had no Class I heir and the father of Bhagwan Dass had also pre-deceased him, the estate of Bhagwan Dass should devolve upon his living brothers and sisters and not on the children of deceased brothers or sisters who are in the fourth entry and who succeed only if there is no brother, sister or heirs mentioned in the third entry.

5. The plaintiff, in the plaint has not given the date of demise of her father i.e. whether her father died before the demise of Bhagwan Dass or after the demise of Bhagwan Dass. However, a perusal of para 2 of the judgment dated 10th August, 2004 supra of dismissal of probate petition discloses that the father of the plaintiff had pre-deceased Bhagwan Dass. If Bhagwan Dass, at the time of his demise had any living brothers or sisters then the estate of Bhagwan Dass would be inherited by his living brothers and sisters, even if they died subsequently and not by the plaintiff who claims to be the daughter of a pre-deceased brother of Bhagwan Dass.

6. The counsel for the plaintiff, in the plaint, has conveniently not pleaded the date of demise of other brothers and sisters of Bhagwan Dass. In fact, there is not even a statement whether Bhagwan Dass had any sisters or not. Even if all the brothers of Bhagwan Dass had pre-deceased him, as is being now sought to be orally contended, if any sisters of Bhagwan Dass were alive on the date of demise of Bhagwan Dass, then they in preference to the plaintiff, would inherit the estate of Bhagwan Dass.

7. Thus, on the plaint as existing, the plaintiff has no title to the property to claim any partition thereof.

8. I may at this stage also mention that the plaintiff has vaguely stated that the other brothers of Bhagwan Dass namely Harnam Dass and Ravi Prakash have also died and to the knowledge of the plaintiff have not left any heirs. No dates of their demise or of the names of their wives or their children or any particulars of the enquiries made by the plaintiff in this regard have been given. In a suit for parti