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IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Narendra Singh Dhaddha, J.
Manoj Sharma and Others – Petitioners
Versus
Pankaj Sharma and Others – Respondents
S.B. Civil Revision Petition No. 164 of 2016
Decided On : 30-01-2024
Revision petition filed against trial court's order dated 30.07.2016 dismissing petitioners' application under Order 7 Rule 11 CPC in Civil Suit No. 72/2016. (!)
Respondent No. 1 filed suit seeking declaration that relinquishment deed dated 12.09.2013 is null and void, along with partition, boundaries, and permanent injunction over property purchased by his grandfather, late Sh. Ramnath Sharma. (!)
Petitioners argued that Respondent No. 1 has no locus standi to claim rights in grandfather's intestate property since his father (Respondent No. 2) is alive; Section 8 of Hindu Succession Act, 1956 bars other heirs if first-degree heirs exist, and Schedule I excludes grandchildren (child of living child). (!) (!)
Trial court erroneously dismissed the Order 7 Rule 11 application, holding that the matter required evidence. (!)
Respondents countered that Respondent No. 1 had birth rights in grandfather's property, and his father lacked authority to execute relinquishment deed in favor of his sister, allowing challenge to the deed. (!)
Disputed property admitted to be in name of Ramnath Sharma (grandfather), and father of Respondent No. 1 admitted to be alive. (!)
Under Section 8 of Hindu Succession Act, 1956, property devolves on Class I heirs; living son (first entry) excludes grandson (son of living son), as Schedule does not include son of living son but only son of predeceased son. (!) (!) (!) (!) (!) (!) (!)
Hindu Succession Act, 1956 codifies and amends intestate succession law; express provisions prevail over prior law, preventing grandson from inheriting during father's lifetime. (!) (!) (!) (!) (!)
Respondent No. 1 lacked right to sue over suit property during his father's lifetime. (!)
Trial court erred in dismissing Order 7 Rule 11 application; revision petition allowed, trial court order set aside, and Respondent No. 1's suit dismissed as barred by law under Order 7 Rule 11 CPC. (!) (!)
Pending applications disposed of. (!)
JUDGMENT :
Narendra Singh Dhaddha, J.
1. This revision petition has been filed by the petitioners against the order dated 30.07.2016 passed by Civil Judge, Sambhar Lake, Jaipur in Civil Suit No. 72/2016, whereby the application filed by the petitioners under Order 7, Rule 11 CPC has been dismissed.
2. Learned counsel for the petitioners submits that respondent No. 1 filed a suit for declaration of relinquishment deed dated 12.09.2013 as null and void, partition and bounds and permanent injunction regarding property mentioned in para No. 1 of the plaint which was purchased by his grandfather late Sh. Ramnath Sharma. Learned counsel for the petitioners also submits that petitioners had filed an application under Order 7, Rule 11 CPC before the trial court. Trial court wrongly dismissed the application filed by the petitioners vide order dated 30.07.2016. Learned counsel for the petitioners also submits that respondent No. 1 had no right to bring a suit claiming his right in his grandfather's intestate property, whereas his father respondent No. 2 is alive because section 8 of Hindu Succession Act, 1956 bars right of other heirs if heirs of first degree are present and schedule 1 of the Act of 1956 excludes child of child or grandchild of child from schedule 1 but includes child of predeceased child or child of predeceased grandchild as heirs of 1st degree. So, the trial court wrongly came to the conclusion that matter would be adjudicated after taking the evidence of the parties.
3. Learned counsel for the petitioners has placed reliance upon the following judgments : (1) Commissioner of Wealth Tax, Kanpur & Ors. v. Chander Sen & Ors. reported in (1986) 3 SCC 567; (2) Mahendra Kumar v. Mohd. Salim & Ors. reported in 2014 WLC (Raj.) UC 504; (3) Uttam v. Saubhag Singh & Ors. reported in 2016 (2) CDR 324 (SC) and (4) Surender Kumar v. Dhani Ram & Ors. reported in AIR 2016 Delhi 120.
4. Learned counsel for the respondents have opposed the arguments advanced by learned counsel for the petitioners and submitted that the trial court has rightly dismissed the application filed by the petitioners and rightly came to the conclusion that suit filed by the respondent No. 1 cannot be dismissed under Order 7, Rule 11 CPC because it is an admitted position that disputed property belongs to the grandfather of respondent No. 1. So, respondent No. 1 had right in the disputed property since birth. Respondent No. 2 who is father of respondent No. 1 had no right to execute the relinquishment deed in favour of his sister Urmila Devi. So, petitioners can challenge the said relinquishment deed in relation to his share. So, revision petition be dismissed.
5. Learned counsel for the respondents has placed reliance upon the following judgments : (1) Nathu Ram Seth v. Smt. Poonam Seth & Ors reported in 2013 (2) DNJ (Raj.) 498; (2) Poonam Chand & Anr. v. Phoola Ram reported in 2013 (2) DNJ (Raj.) 552; (3) Ramlal Maniram Navdhinge v. Maniram Patiram Navdhinge & Ors. reported in AIR 2008 (NOC) 1219 (Bom.); (4) Sheela Devi & Ors. v. Lai Chand & Anr. reported in 2006 (8) SCC 581 and (5) Seeta Ram & Anr. v. Gulab Chand reported in 2014 (1) DNJ (Raj.) 53.
6. I have considered the arguments advanced by learned counsel for the petitioners as well as learned counsel for the respondents.
7. It is an admitted position that disputed property was in the name of Ramnath Sharma. It is also admitted position that father of respondent No. 1 is alive. As per section 8 of Hindu Succession Act, respondent No. 1 had no right to sue regarding disputed property because schedule 1 of the Act of 1956 excludes child of child or grandchild of a child.
8. Hon'ble Supreme Court in Commissioner of Wealth Tax, Kanpur & Ors. v. Chander Sen & Ors. : (1986) 3 SCC 567 held and observed as under:
“10. The question here, is, whether the income or asset which a son inherits from his father when separated by partition the same should be assessed as income of the Hindu undivided family of son or his indivi
AI
Under Section 8 of the Hindu Succession Act, a grandson cannot inherit if his father is alive, reaffirming the exclusion of certain heirs in intestate succession.
The main legal point established in the judgment is the requirement for evidence to determine the status of the suit property and the relevance of the plaintiff's non-involvement in the sale deed dtd....
The court affirmed daughters' coparcener rights under the Hindu Succession Act, emphasizing that prior sales cannot negate their claims to jointly inherited property.
The court affirmed that a second suit for partition is maintainable despite prior dismissal, recognizing differing rights under the Hindu Succession Act.
The court ruled that a plaint cannot be dismissed for lack of a cause of action if it provides sufficient information for adjudication, leaving the question of limitation to be determined during tria....
The judgment reinforces daughters' coparcenary rights under the Hindu Succession Act, stating that alienation by male relatives does not bar the daughters' claims for partition of property.
The Hindu Succession (Amendment) Act, 2005 grants daughters co-parcener status from birth, making any prior relinquishment of rights invalid for partition claims.
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