Point of Law: Family and Personal Laws - Partition - If a person dies after passing of Act, 1956 and there is no HUF existing at time of death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an ‘ancestral’ property but inheritance is as a self-acquired property in hands of successor and not as an HUF property although successors indeed inherits ‘ancestral’ property i.e. a property belonging to his paternal ancestor.

JUDGMENT :

SANJEEV NARULA, J.

I.A. No. 9380/2021 (for passing appropriate order after preponing the case and for passing appropriate orders on the application moved under Order 39 Rule 1 and 2 i.e. I.A. No. 7871/2021)

1. By way of this application, the Plaintiffs seek early hearing of the suit and the application for interim reliefs. For the grounds and reasons stated therein, the application is allowed. Plaintiff’s counsel has been called upon to address the court on the maintainability of the suit.

2. The application is disposed of.

C.S. (OS) No. 295/2021 and I.A. Nos. 7871/2021 (u/Order 39 Rule 1 and 2) and 7872/2021 (condonation of delay in re-filing)

Who are the parties to the Suit?

3. The case, as set out in the plaint, is that Late Mr. Ujagar Singh-father of Defendant No. 1 and grandfather of the Plaintiffs herein-passed away sometime in the year 1982. On his death, properties owned by him including the suit properties, devolved upon his children, which included inter-alia, Defendant No. 1.

4. The Plaintiffs herein (Ms. Harbant Kaur, Ms. Manmohan Kaur and Mrs. Gurmeet Kaur) are daughters of Defendant No. 1 (Mr. Ranjeet Singh). Defendant No. 1 has two other surviving children-Defendant No. 2 (son, Mr. Manmohan Singh) and Defendant No. 7 (daughter, Ms. Amarjeet Kaur). Defendant No. 1 had another son, since deceased-Late Mr. Harbant Singh-his legal heirs are impleaded as Defendant No. 3 (widow, Ms. Mahender Kaur), Defendant No. 4 (son, Mr. Gurnam Singh) Defendant No. 5 (son, Mr. Amarjit Singh), and Defendant No. 6 (daughter, Ms. Kamaljeet Kaur). Defendants No. 8 to 16 are stated to be the occupants of the suit properties which form subject matter of the present suit.

What is the suit for?

5. The Plaintiffs seek partition of the following properties which are in the hands of Defendant No. 1:

(i) Property bearing No. F-38, in Khasra No. 586 admeasuring 1200 sq. yard in Chhattarpur Extension, New Delhi.

(ii) Property bearing No. E-120, Khasra No. 879, admeasuring 300 sq. yards Chhattarpur Extension, New Delhi.

(iii) Property bearing No. E-133 in Khasra No. 877, admeasuring 217 sq. yards in Chhattarpur Extension, New Delhi.

6. Plaintiffs contend that they have been repeatedly requesting Defendant No. 1 for partition, but he has refused to do so. As legal heirs, they seek share in the properties of their deceased grandfather, which are now in the hands of their father.

Whether the suit is misconceived?

7. The plaint, as framed, for asserting the Plaintiffs’ right to partition, is based on the following averments:

“4. That as on date the Defendant No. 1 is owning three properties in village Chhattarpur Extension their number as on date is F-38, in Khasra No. 586 which is measuring 1200 sq. yard and the profit of the said property is earned by the Defendant No. 4 and 5 while parking the Villages cars and they are charging getting approximately Rs. 2000/- per car for one month time. Approximately 25 to 30 cars are being parked daily by the villagers and the defendant No. 4 and 5 at the instance and instructions of the Defendant No. 1 have been earning approximately profit of Rs. 60,000/- per month from the Villagers who are parking their cars in the open area. The plaintiffs are also moving a separate application to this effect with the prayer to the Hon'ble High Court that the profit which they are having from the parking of the cars. The plaintiffs are also entitled to have a share in the said earning from the joint Properties from where they are earning approximately Rs. 60,000/- per month in which Properties. The Plaintiffs have also got the share which money/amount the Defendant No. 1, 4 and 5 are usurping/eating/depriving the plaintiffs legal and lawful rights in the said properties.

5. That the Defendant No. 1 is also owning a property bearing No. E-133 in Khasra No. 877, which is measuring 217 sq. yards which is also at Chhattarpur Extension, New Delhi which is occupied mostly by the tenants from whom the defendant No. 1 has been getting hu