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DELHI HIGH COURT
Valmiki J. Mehta, J.
Sh. Jitesh Kumar Yadav —Plaintiff
versus
Sh. Satpal Yadav & Ors. —Defendants
I.P.A. No.6 of 2016
Decided on 9.5.2016
Counsel for the Parties:
For the Plaintiff:Mr. Prag Chawla, Advocate
IMPORTANT POINT
HUF never comes into existence on inheriting of a property by a person from his maternal ancestor.
Headnote:Civil Procedure Code, 1908—Order 7 Rule 11—Rejection of plaint—Partition suit—HUF property—Suit plaint is based on a non-existing legal cause of action—A person under traditional Hindu law of Joint Hindu Family had right to a property which was inherited by a person from his paternal ancestor—In traditional law, HUF never came into existence on inheriting of a property by a person from his maternal ancestor—As per plaint, suit property is inherited by defendant from his mother and suit property may be ancestral property but this suit property cannot be an HUF property or joint Hindu family property for plaintiff to claim a share in the same as the same is not inherited by defendant from his paternal ancestor—Suit is liable to be dismissed on this admitted fact as appearing in plaint—Besides, inheritance by a person of ancestral property, even if it is from his paternal ancestors, after 1956 does not result in creation of HUF—Suit dismissed. (Paras 4, 6 and 7)
Result: Suit dismissed.
I.P.A. No.6/2016 and I.A. Nos.5680-82/2016
Valmiki J. Mehta, J.—Petitioner/plaintiff has filed this suit as an indigent person. I may mention that the aspect of paupership of the petitioner/plaintiff is being accepted by me only and since in my opinion no legal cause of action is pleaded in the plaint and therefore, I allow the petitioner to sue as a pauper and the petition is converted into a suit.
2. This suit for partition is filed by the plaintiff/Sh. Jitesh Kumar Yadav. Plaintiff/Sh. Jitesh Kumar Yadav is the son of defendant no.1/Sh. Satpal Yadav. Plaintiff claims partition of the suit property on the ground that the suit property is ancestral property as the defendant no.1 inherited the same from his mother Smt. Omwati.
3. The suit property is described in para 1 of the plaint and the aspect of Smt. Omwati, mother of the defendant no.1, inheriting the suit property from her father Sh. Bhagwana and the defendant no.1 inheriting the property on the death of Smt. Omwati are stated in paras 1 to 5 of the suit plaint and which paras read as under:-
“1. That the Plaintiff is filing the present Suit for Partition, Possession, Declaration and Permanent Injunction against the Defendants in respect to the agricultural Land bearing Khasra No.6//1 (4-16), 7//4 (2-14), 5(4-16), 7 (6-9), 15/1 (0-16), 11//13 (4-16), 17/1 (2-16), 17/2 (2-0), 18 (4-16), 23(4-16), 26 (0-4), 17//2/3 (1-2), 3(4-16), 9/1 (3-16), 31//9 (4-12), 10(4-16), 11(4-16), 12(4-13), 13(4-5), 18(4-5), 19(4-16), 20/1(3-18), 31//20/2(0-18), 21(4-16), 22(4-16), 23(4-5), 27(0-7), 32//16/1(0-14), 35//5/2(3-16), 4/2 (3-0), 6(4-14), 7(4-12), 36//1 (4-16), 10(4-16), 58(2-0), 13/1(12-4) total measuring 145 Bighas 4 Biswas situated in the revenue state of village Pandwala Khurd, Tehsil Kapashera, New Delhi in Khata Khatouni No.89/98, the land Kh. No.32//16/2(4-2), 25/1(2-8) total admeasuring 6 Bighas 10 Biswas situated in the revenue of village Pandwala Khurd, Tehsil Kapashera, New Delhi in Khata Khatouni No.90/99, the land in the Kh. No.6//27(0-5) total measuring 5 Biswas of village Pandwala Khurd, Tehsil Kapashera, New Delhi in Khata Khatouni No.91/100 and the residential property bearing No.20/1, Railway Road, Samaypur, Delhi-110042. (hereinafter referred as the “Suit Property”). The said residential property falls in Old Lal Dora Abadi of Village Samaypur, Delhi-110042. The Plaintiff is in use and occupation of a hall on the Ground Floor and the First Floor of the residential property and of some part of the agricultural land. The copies of Khatouni Consolidation are enclosed herewith and marked as ANNEXURE-P1 (Colly.). The copies of the status report dated 23.09.2015, Electricity Bill, Ration Card of the Mother of the Plaintiff Smt. Rajesh Devi and the Aadhar Cards are enclosed herewith and marked as ANNEXURE-P2 (Colly.). The site plan of the residential property bearing No.20/1, Railway Road, Samaypur, Delhi-110042 is enclosed herewith and marked as ANNEXURE-P3.
2. That the Plaintiff and the Defendant No.2 are the sons born out of the wedlock between the Defendant No.1 and Smt. Rajesh Devi. Whereas, the Defendant 3 and 4 are the daughters born out of the wedlock between the Defendant No.1 and Smt. Rajesh Devi, i.e, the Mother of the Plaintiff herein. It is pertinent to mention herein that Defendant no 3 is a married Daughter.
3. That Sh. Bhagwana was the owner of the agricultural land and after his unfortunate demise in March, 1954, the entire property devolved upon his two surviving Daughters, i.e, Smt. Omwati (Late Mother of the Defendant No.1) and her Sister Smt. Parmeshwari, W/o Sh. Munshi Ram in equal shares. It is submitted herein, that the Plaintiff is claiming share in respect of the Land which came to the share of Smt. Omwati, which is the Suit property.
4. That after the death of Smt. Omwati, i.e, the Mother of the Defendant No.1, the Suit property devolved upon the Defendant No.1 and as such, the Suit property being an ancestral property in the hand
